Speaker acting as president: No constitutional controversy
Md. Nazmuzzaman Bhuian
A fierce debate is now in progress with regard to the constitutional post of the president of Bangladesh which can very gently be clarified from the constitutional point of view as the Constitution of the People's Republic of Bangladesh contains clear provision regarding this issue. If Article 54 of the constitution is read with article 74 and article 152, of the constitution, then it would be evident that the discharge of the functions of the president by the Speaker until the president resumes his office cannot give rise to any Constitutional controversy, even when the president is present in the country, but unable to discharge his functions due to illness.
Article 54 of the Bangladesh constitution categorically states that if a vacancy occurs in the office of the president or if the president is unable to discharge the functions of his office on account of absence, illness, or any 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. So, no debate should arise regarding the discharge of functions of the president by the speaker when the former is unable to discharge his functions due to illness. Now, question arises, will the speaker discharge the functions as President or as speaker? If article 54 is read with article 74, then the answer becomes transparent. Article 74, while describing the reasons for the vacancy in the speaker's office, clearly states that while the office of the speaker is vacant or the speaker is acting as president or if it is determined by the parliament that the speaker is unable to perform his functions of his office, those functions shall be performed by the deputy speaker. So, there is no doubt that while discharging the functions of the president, speaker will act as president, not as speaker. And article 152 of the constitution clearly states that “the president” means the president of Bangladesh elected under this constitution or any person for the time being acting in that office. So, it is crystal clear that speaker is going to act as president, not as speaker and he will receive all the protocol as president, not as speaker.
Now, whether the speaker, while acting as president, should be called the acting president or president-in-charge, that may create a controversy. To explain that, we have to go back to the history of our constitution. Before the fourth amendment of the constitution, the provision of article 74(3) was a bit different. Then the language of that article was --“while…the speaker is 'exercising the functions of the' president…”- but by the fourth amendment act, 1975 (Act II of 1975), the words 'acting as' president was substituted for the words 'exercising the functions of the' president. Not only that, by the fourth amendment, in fact the whole Chapter I regarding the president was substituted for a new 'Chapter I --the president and vice president'. Then the provision of article 55 under the heading 'acting president' stated that in case of a vacancy in the Office of the president or if the president is unable to discharge his functions on account of absence, illness or any other cause, the vice president shall act as president, and when both the president and the vice president are unable to discharge their functions on account of absence, illness or any other cause, the speaker shall act as president. So, according to the article 55 (due to its heading) and amended article 74, speaker could be called acting president in such an inevitable situation. But by the constitution (Twelfth Amendment) Act, 1991, when this Chapter 1 was again substituted by a new chapter namely 'Chapter 1 The president', previous Article 55 under that chapter was abolished and article 54 was incorporated under the heading 'Speaker to act as president during absence etc'. And the language in this article 54 does not directly grant the speaker the status of acting president, rather it says: '…the speaker shall discharge those functions…' only.
But, even after the enactment of the (Twelfth Amendment) Act, 1991, article 74 remained unchanged and still it contains the words 'while…the speaker is acting as president…'However, article 54 being the enabling article for the speaker to discharge the functions of the president, it is better to address the speaker not as acting president, but as president-in-charge, who is acting as president. But according to the provisions of article 54 (with its heading), read with article 74 and article 152, the speaker while acting as president, shall be entitled to the full protocol as the regular president. At the same time, when the president is ill, as per the certificate of the doctors, who is unable to discharge his functions, may very well rest in his home while the speaker is discharging the function of the president in his office--no constitutional controversy may arise due to this reason. But whether the president is unable to discharge his functions due to his present illness or not, that can only be a question of fact, which is to be decided by the doctors, and to be clarified by the government, but it cannot be a question of law to be decided by the law specialists.
The author is Assistant Professor, Department of Law, University of Dhaka.