Law Opinion
What if Article 54 becomes operative?
Sinha MA Sayeed
President Professor Dr Iajuddin Ahmed's putting on the cap of the Chief Adviser of the non-party, neutral caretaker government following Article 58C(6) in the wake of the deadlock arising out of opposing stands of AL-led fourteen parties' combine and BNP-led four parties alliance, for the time being apparently paved the way for holding free and fair election by the Election Commission to the ninth parliament. But it has also created a big problem that may upset the whole scenario overnight. It is the possible operation of Article 54 of the Constitution.
Article 54 reads: If a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any of other cause the Speaker shall discharge those functions until a President is elected or until the President resumes the functions of his office, as the case may be.
If such situation actually does crop up any time then the incumbent speaker of the 8th parliament Barrister Jamiruddin Sircar will put on the shoes of President Iajuddin and become acting President. It is known to all that Professor Iajuddin is not involved directly in the politics of BNP; rather his attachment with Zia Porished was dimly a reality. His political obligation to BNP and to Begum Khaleda Zia may not be so fluid as well. He cannot be ungrateful at least morally to the party and its chairperson for backing him to the office of the Head of the State.
After the dissolution of the parliament on 27th October, constitutional obligations under Article 48(3) are no more alive and now Articles 58B(2) and 58C(6) are on in full swing; whether, under the given circumstances, his moral obligation shall bring anything positively meaningful for BNP and its leader Khaleda Zia is still a matter of gymnastics to be exercised by the President-cum-CA Dr Iajuddin Ahmed.
Meanwhile he, in the exercise of such gymnastics, has made himself a bit of acceptable Chief Adviser to fourteen parties' combine, but his final acceptance depends on the meeting of the eleven points demand placed by the combine. Recently taken initiatives may be just a beginning, but nothing promising and/or alluring at all. Is it really possible for him to satisfy the combine at the cost of the so-called political benefits of BNP? Justice Shahabuddin Ahmed, President during the rule of AL led government headed by Sheikh Hasina could not stand by Sheikh Hasina at the time of her self defined requirements during the general elections in 2001. It is on record in history that Sheikh Hasina made a Herculean attempt to convince Justice Shahabuddin to become the President in 1996.
Is there any possibility of the same to be repeated in case of President Iajuddin and Khaleda Zia? Sequence of events since 29th October bears testimony that professor Iajuddin, in most cases, willingly or unwillingly, is complying with the outgoing government led by Khaleda Zia. There is a wave of belief-that Dr. Iajuddin's Presidency-cum-Chief Advisership has been strongly tied up with hidden design of the outgoing government. That the four walls of his administration are within the grip of those who are committed and loyal not to the President and CA but to the Hawabhaban. Is the President-cum-CA nothing but a helpless spectator to the ongoing happenings in and around his two-edged administration?
Even an ordinary citizen in the country today does not take time to utter that President's tortoise steps for overhauling and restructuring political setup of the government signal that he may not be going for anything substantial to ensure a befitting atmosphere where all the political parties including the fourteen parties' combine can sigh a relief to be able to participate in the polls likely to be held in January 2007. Why the President-cum-CA distributed the portfolios of the government in such a manner that ultimately made him sole master of all the major ministries and departments directly connected with elections? The Chief Election Commissioner's views about his resignation is not understandable at all as he is not taking any lesson from his predecessors Justice Sultan Hossain Khan and Justice Sadeque who resigned at the request of the then CTGs. Will President-cum-CA be daring enough to take decision by initiating a drive to refer the matter to the Supreme Judicial Council?
It is not beyond any suspicion that President-cum-CA has taken over burden on his shoulders either forgetting his overall physical fitness or setting it aside, willingly or unwillingly. If there happens any sort of complicacy with the health of the President-cum-CA in that case he has no better choice but to go for a rest upon advice of medical board. If such scenario develops then automatically, without any design by any quarter, option for the office of President shall go to the Speaker under Article 54. If there is any hidden design to invite such reality otherwise, option is again for the Speaker to act as President under the same article.
Then the question arises: will the acting president be discharging as acting CA too, as the President is doing?
Sayed Badrul Hasan, a leading columnist, wrote: "The health of the president and the health of the country somehow do not allow us to think that Iajuddin Ahmed can handle all these jobs all by himself. And if he cannot, there arises the very grim spectre of what unknown and fearsome course the country might take should he falter. The speaker of the just-dissolved Jatiya Shangshad, we have been told on good authority, has had to hold a planned tour abroad in abeyance ..... the assumption of near-absolute powers by the president and the postponement of Jamiruddin Sircar's trip are a pointer to the uncertainties we in this country try to muddle through even as we look ahead, tentatively and with trepidation, to a good, healthy general election in January." (Years ago, President Sattar had his chance, November 7, 2006, The Daily Star.)
After such arrival of the Speaker as the Acting President as well as Acting CA as it appears (situation no option but to allow it), the political landscape shall have a possibility to be upset abruptly because of the direct partisan involvement and role of the Speaker, a BNP groomed politician. It is very difficult to convince oneself that the political situation shall then not be rapidly deteriorating one as a result of which holding of elections to the 9th parliament may not also be possible then.
But as a nation we are not at all pessimistic; we hope against hope. We must be pragmatic in getting rid of any kind of pessimism. The remarks of the chief architect of Bangladesh constitution, Dr Kamal Hossain, deserves to be drawn here logically and relevantly. In an article titled "The caretaker government needs intensive care" published in The Daily Star on 7th November, 2006, he wrote: "The present Caretaker Government cannot continue to remain an important bystander while the administration, the law-enforcing agencies, and the state machinery are manipulated by an "invisible government," which has at its care loyalists of the out-going government. To allow them to do so, without accountability, amounts to subversion of the constitution."
He further added: "There is still time to save the country from a constitutional crisis by appointing, without delay, a non-party chief adviser, following the guidelines of clauses 3 to 5 of Article 58C. This would carry out the basic purpose of assuring the nation that it would be governed in the interim period till the election of the next parliament by a non-party caretaker government so that it could, together with an independent Election Commission, hold a fair, free, and peaceful election."
Therefore before signing off, attention must be given to the universal truth that: to err is human President-cum-CA Professor Dr Iajuddin is a man therefore he can err; but there is nothing wrong and shameful to correct such errors and follow the right course courageously.
The author is Faculty member, Newcastle Law Academy and former International, Publicity & Publications Secretary, Jatiya Party.
