Friday, December 08, 2006

Call for unity to save the Constitution

AMIR-UL ISLAM

While the entire country is united in its expectations for a free and fair election, instead of allowing constitutional processes to precede, a deliberately contrived crisis has been created.
While the entire country is united in its expectations for a free and fair election, instead of allowing constitutional processes to proceed, a deliberately contrived crisis has been created.

The outgoing Government is required by the Constitution to handover the reign of government to a non-party, impartial, caretaker government during the interim period following the dissolution of parliament. The present arrangement whereby the President appointed himself as the Chief Advisor of Caretaker Government is a gross violation of the Constitution. The President himself being the choice of a particular alliance, there was added reason for genuine apprehension that the combination of the two offices would prevent the Non Party Caretaker Government from functioning in a credible manner.

The President initially projected himself as a make-believe non-party Advisor to the Caretaker Government as though the outgoing party in power exercised undue influence upon him to act the way he did. The events which unfolded later during last two weeks have now confirmed that the President himself is still working under the advise of forces outside the 10 advisers which are very apparent now, last instance being the arbitrary order/s in form of an absurd notification purporting to deploy the army in all the districts without any due consultation with the chief of staff and without any decision of the advisor's council showing the height of tyranny. Thanks God. This as we are told has been corrected due to timely intervention by the Advisers. We do not know how many more surprises are in the store for the nation to witness as the time closes towards election.

President has concentrated all the powers in his own hand without distributing the portfolios, which are most relevant for holding election, to other advisers. President in violation of the Constitution addressed the secretaries that it was a presidential form of government and that the secretaries should be accountable to him; whereas according to the Rules of Business, Advisers, who are now performing the function of the ministers are the head of the respective ministry and the Chief Adviser according to the Constitution and the Rules of Business ought to act collectively and not over the head of the advisers. The President even appointed his Press Secretary an adviser with the rank of a State Minister, which is unprecedented, and beyond the scope of the Constitution. Every day there is a new surprise causing concern rather than creating confidence and credibility in the system that is followed.

It took two weeks before the advisers could even have a proper minuted meeting held only on November 13, 2006. The immediate past government successfully destroyed all the institutions of the state including the Election commission, Public Service Commission, and the Judiciary and also the institution of the Caretaker Government as is being now unfolded.

The only institution, that is, the armed forces despite all odds and erosion in other sectors seem to have preserved some core discipline and developed their professional standard. Their professional image and performance has been acknowledged universally. The present unholy alliance is now trying to drag that institution also into the political controversy, so that the country and the people may not have any leverage left in order to keep the Constitution intact.
What can be done in order to bring the country back on the Constitutional rail?
President obviously skipped three steps and assumed (if not usurped) the power of the Chief Adviser. Thereby the checks and balances of the Constitution has been disturbed. This is bound to lead towards an anarchy and lawlessness in the state administration. While street anarchy and violence can be contained very easily (signs of moderation are already in sight) but downhill deterioration of state institution unless arrested immediately it will lead to irreversible damage causing major dent to our nascent democracy, our administration state agencies and further diminishing the prospect for economic development and progress.

Can we humbly suggest that¬ the two offices i.e. the President and that of the Chief Adviser ought to be kept distinct from each other.

While the Bill for 13th Amendment to the constitution was introduced in the parliament Mr. Jamiruddin Sircar the then Law Minister while introducing the Bill told the entire nation from the floor of the house in no uncertain terms the objects as well as the meaning and intent of the Bill clearly elaborating the three options in his own words as quoted here below:

In Part III at page 58 it further states that the Bill was in the select committee where M K Anwar, Khandakar Mahbuddin Ahmed and Barrister Aminul Huq were present. The then Law Minister's statement explains the object of the Bill in clear terms creating, thereby a universal consensus regarding steps to be taken under 58C (3), (4) and (5) never disputed ever before.

The reader may read the relevant provision of the Constitution reproduced hereunder and come to their own Conclusion in order to find remedial measures:

"58C. Composition of the Non-Party Caretaker government, appointment of Advisers, etcetera.

(1) Non-Party Caretaker government shall consist of the Chief Adviser at its head and not more than ten other Advisers, all of whom shall be appointed by the President.

(2) The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.

(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Caretaker government in addition to his own functions under this Constitution.

(7) The President shall appoint Advisers from among the persons who are-

(a) qualified for election as members of parliament;

(b) not members of any political party or of any organisation associated with or affiliated to any political party;

(c) not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament;

(d) not over seventy-two years of age.

(8) The Advisers shall be appointed by the President on the advice of the Chief Adviser.

(9) The Chief Adviser or an Adviser may resign his office by writing under his hand addressed to the President.

(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under this article.
(11) The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister.

(12) The Non-Party Caretaker government shall stand dissolved on the date on which the Prime Minister enters upon his office after the constitution of new parliament."
Readers may kindly note that dead person cannot be counted because the Constitution does not look for a dead person to be appointed the Chief Adviser. Secondly in 58C (3) the word such is used; whereas in (4) word 'such' is not mentioned. It says "If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article". Hence the then Law Minister Mr Sircar is right in explaining that each of the retired Chief Justice within 72 years of age to be considered and exhausted before the next step is under taken.

Article 58 (3) and (4) if read together which Mr Jamiruddin Sircar explained as clear as the daylight that there will be two lists, one is that of all the retired Chief Justices who are within 72 years of age, and another that of the retired judges of the Appellate Division starting from the last retired. Those lists if one after another is exhausted and none is found available from either of the list then and then only, one should try to select a citizen to hold the office after due consultation. President did not act upon any of these options, which is evident from the conversation the Military Secretary of the President held with Justice Mahmudul Amin Chowdhury whom he sounded if he would like to feel embarrassed to enter upon the office of the Chief Adviser. Reply was as is reported through the media that he never felt embarrassed to hear any case in his court, nor he would ever feel embarrassed to perform any constitutional duty and obligation as he may be called upon to perform. Obviously the President knew that he was the next person to be offered after Justice K M Hasan declined. In case the President had any doubt or confusion or difficulty in understanding the finding the intent of the Constitution it was his obligation to refer the matter to be decided by the Appellate Division under Article 106. Obviously he knew who was the next to be appointed and perhaps that is the reason for which PMS contacted Justice Mahmudul Amin Chowdhury.

The entire nation is painfully aware that there has been no handing over of the power by the outgoing government to a properly constituted Non- Party Caretaker government. People are thus being deprived of a non-party caretaker government as a result of an utterly irresponsible conduct of the outgoing government. This amounts to violation of the Constitution which can only deepen the crisis and could ultimately lead to the destruction of the Constitution itself. The only way the Constitution can be saved and the country rescued from the current crisis is by the immediate appointment of Chief Adviser in accordance to the Constitution.

Election Commission:

Article 119 (1) gives the power of the Election Commission which includes the duty and obligation to prepare the electoral rolls specially mentioned in 119 (1) (d).

Article 119 and 120, if read together, ensure that every qualified person must be entitled to be a voter and there must be a permanent electoral roll, continuously to be updated and certainly before each of the elections. A transparent and flawless electoral roll is a necessary attribute to our citizenry and also of democracy envisaged under the constitution. The present Election Commission failed and/or wilfully defaulted by not making a transparent and lawful voter list according to the rules despite the judgements of the Highest Court. One after another flawed voter list are being prepared in a non transparent manner. Under the law it is obligatory to publish the draft voter list under Section 7(2) of Electoral Rolls Ordinance. This is in order for every citizen to be able to check and help correct the electoral roll if necessary. The Election Commission in violation of the law and the judgement declared that there will be no publication of draft voter list. Till now it is a hidden document, no one having access to it; whereas people ought to have been able to get it on the internet/website by now when so much money and time have been wasted during last several years. Wilful failure and publicly denying to publish the draft voter list is a serious violation obstructing constitutional process for a free and fair election. This is a clear misconduct for which the entire commission is liable to be dismissed.

The present status, of the electoral data is so messy that the printers find many new entries without serial and some men's name in the female list and vice versa. For violation of court's order the High Court Division issued Contempt Rule. Besides other misconduct of Chief Election Commissioner, the entire Election Commission, including its Secretary and Additional Secretary have failed to discharge the minimum requirement in preparing a dependable and credible voter list, but in the process spent 64 crore taka without any accountability and thus raising questions even by the then Finance Minister as to the propriety of the expenditures.

On January 4, 2006 High Court Division of Supreme Court held (in the writ case filed by Mr M A Jalil, General Secretary of Awami League challenging arbitrary and non transparent way of preparing the voter list) that "A correct and valid voter list is sine qua non for any free and fair election and any lack of transparency in the process of its preparation... is bound to have wide ramification."

In upholding the judgement of the High Court Division the Appellate Division gave fine-tuning to one of the directives in following terms -

The Commission should prepare Electoral Roll taking into consideration of the existing roll under Section 7(6) of the Ordinance. If there is a computerised database, the Commission should make the best use of it and if not, a computerised electoral roll with database would always be maintained to avoid further controversy.

May I ask very humbly the Hon'ble men in the election commission where is that transparent computerised electoral roll with data base? Where is the honest and manifest intent to avoid further controversy? Have you complied with the judgement? Have you not violated the judgement as well as the law by denying to publish the draft electoral roll as is required under Section 7(2) of the Ordinance and thus violated the law of transparency in election process asked from you by the nation through its Supreme Court?
If so are you not liable to be removed?

If you yet refuse to resign, does it not become the Constitutional obligation of the President to order for constitution of the Supreme Judicial Council with reference as to the reason, motive and purpose for derailing the election and thereby causing obstruction to the constitutional process amounting to high treason?

Suggestion:

1. President, therefore, is under a Constitutional obligation to refer the matter to Supreme Judicial Council for removal of the Election Commission.
2. Secretary and Additional Secretary be removed.
3. Audit be conducted regarding the money spent and they be prosecuted, if irregularities/misappropriation found. Let the Auditor and Comptroller General and other agencies be activated.

Let the people from all shades of opinion, profession and calling be united as they are expected to be in such a national crisis and in one voice demand and persuade the Hon'ble President to relinquish his additional responsibility of Chief Advisor by resigning from that office under Article 58C (9) and invite the person now duly available under the Constitution according to Article 58C (3) and (4). This will bring the Constitutional process back on the track and prevent the President from giving the nation shocking surprises every other day.
AMIR-UL ISLAM, Barrister-at-Law, eminent lawyer, co-author of Bangladesh constituion and presently president of Bangladesh Supreme Court Bar Association

Published in arrangement with South Asian News (SAN)-Feature Service