Star Law Analysis
Article 58C and assumption of office of the Chief Adviser by the President
Dr. M. Shah Alam
The 13th Amendment to our Constitution providing for non-party Caretaker Government (NPCTG) was effectuated in the aftermath of nationwide upsurge and demand for free and fair elections to be conducted under such a government. Under prevailing circumstances then the amendment was made in a great haste and without holding sufficient deliberations on the detailed provisions of the Amendment Act. Presumably it also did not receive sufficient critical expert observations and vetting, for the acceptance by the then ruling majority of the very concept of NPCTG and moving a bill in the Parliament to that effect was the main and immediate concern, and it took away attention from consideration of the details. This left its marks on the wordings and logical aspects of the provisions of the impugned amendment from which it is now becoming difficult for the nation to come out clean and safe.
The present write-up aims at examining the linguistic, logical and legal weaknesses and lacunae of Article 58C that provides for the appointment of the Chief Adviser of the NPCTG by the President. Our contaminated politics has taken gross advantage of these weaknesses to interpret Art.58C in a manner threatening to the very concept of the NPCTG.
Yes, words of Article 58C are susceptible and even vulnerable to diverging interpretations. Even there is scope for mala fide interpretation and then taking the plea of innocence. If such plea is backed by the factor of state and political power, consequences can be dangerous. Bismarck who unified Germany in the middle of 19th century said he would first do by whatever means that which was politically profitable to him and then find hundred lawyers to justify his acts legally.
Interpretation of legal instruments is one of the most important topics in juridical science. Law has developed over the years on true interpretation of its various provisions to provide justice. US Constitution contains only seven Articles and 27 amendments. The rest running into volumes of constitutional laws are the works of interpretations by the US Supreme Court. Legal science has developed scores of canons, principles and methods of interpretation for making out the true meaning of any legal document. Gone are the days when a Roman general would offer to his rival general to surrender his troops on condition that he (Roman) would not take revenge and shed blood, and then, after the surrender, bury the prisoners alive without shedding blood, as promised!
Jurisprudence of legal interpretation at our disposal when applied bona fide clarifies beyond reasonable doubt the true meaning of Art.58C. From volumes written on the issues of interpretation it appears that text of law and intention of law makers (so called letter of law and spirit of law) are the prime considerations in any interpretation. Text is important because intention is ordinarily assumed to be reflected in the text. However, it may not always happen for various reasons, i.e. ambiguity, double meaning, general construction of the words etc. Then there comes the main task of interpretation to make out the true intention of law and law makers by using various other means, i. e. objective of law, context in which law was enacted, logic, common sense, implication etc.
Art. 58C ought to be interpreted keeping the above in mind. Owing to weak formulation of the Art 58C, strictly textual or literal interpretation may lead to two opposing results. One put forward by the then ruling alliance has been taken and acted upon by the President. The other textual approach visibly nearer to common sense and 'intention' approach and hence nearer to true meaning of the law has not been accepted by the President. Let us explain.
Proponents of the first textual approach have argued that Article 58C(3) specifically mention only two retired Chief Justices in order of retirement, the second qualifying for the job of the Chief Adviser in case the last retired Chief Justice, the first claimant of the job, is not available. Because second last retired Chief Justice Mainur Reza Chowdhury expired, the list has been exhausted, they insisted, and option therefore must shift to the category of retired judges of the Appellate Division under 58C(4). This is an utterly mechanical approach. In fact, the text has not limited the list only to two Chief Justices, rather has simply indicated an order of succession of Chief Justices as possible candidates for the Chief Adviser, limited inter alia by the age bar of 72. This becomes obvious when Article 58C (3) and (4) are read together. We see that in 58C(3) when the last retired Chief Justice is not available, to consider the second last Chief Justice the qualifying word 'such' is used to render the wordings as “ Provided that if such retired Chief Justice is not available or willing ….”, thereby indicating a specific person whose absence would shift the choice to the next option.
On the other hand, when second Chief Justice is also not available or willing, Article 58C(4) has not used the qualifying word 'such' not indicating any person and thereby keeping the possibilities of any available and willing Chief Justice within the prescribed age limit to qualify for the Chief Adviser. Article 58C (4) unequivocally states, “If no retired Chief Justice is available…….,” option will shift to the retired judges of the Appellate Division. The same argument will also be valid for appointing the Chief Adviser from amongst the retired judges of the Appellate Division when the list of Chief Justices is exhausted. When the list of the retired judges of the Appellate Division will be exhausted in the like manner, option will shift to clause (5) to appoint the Chief Adviser from amongst the citizens of the country. This is also textual interpretation, but strongly backed up by all cannons and principles of interpretation. Let us explain.
Rationally, logically and commonsense wise, the lawmakers could not have contemplated judges of the Appellate Division to be candidates for the Chief Adviser while a retired Chief Justice within the age limit was available. Moreover, the first interpretation, one adopted by the President, limits the scope for candidature only to four persons who might not be available for various reasons. This makes the very concept of NPCTG vulnerable to potential arbitrariness of the President who is a ruling party choice, which is what has exactly happened on October 29, 2006. Even after this mechanically textual interpretation, the President had the opportunity to appoint someone as Chief Adviser from amongst the citizens of Bangladesh. Article 58C (5) requires the President only to consult major parties and then use his prerogative to appoint the Chief Adviser. Formally, the President did hold consultations with major political parties, but did not appoint any citizen to the job. Instead, he hurried to go to last option i.e. clause (6) to assume the functions of the Chief Adviser. In fact, in breach of constitutional provisions he offered to become the Chief Adviser himself even before formal consultations with political parties started.
Combining the functions of the Chief Adviser and the President in one person has led to mass of legal contradictions and puzzles, and is against the basics of the concept of NPCTG. Under 58C (8) advisers are to be appointed by the president on the advice of the Chief Adviser. Now, the Chief Adviser would be advising himself as the President to appoint the advisers, or under clause (9), should such need arise, the Chief Adviser would be submitting resignation to himself. Most notoriously, the Chief Adviser as part of NPCTG would be responsible to himself as the president! Balance of power is totally gone. In fact, inclusion of the provision of the possibility of a party president assuming the functions of the Chief Adviser in the Amendment is unfortunate and a legal blunder. List of persons under clause (3) and (4) may be exhausted, but list of persons under clause (5) i.e. qualified citizens for the purpose of the appointment of the Chief Adviser cannot be exhausted. So, there is absolutely no scope for the creation of legal vacuum on the non-availability of persons qualified to become Chief Adviser.
Whatever may be the violation of the Constitution and setting of a bad precedent, assumption of the Chief Adviser's functions by the President has seemingly become a fait accompli, unless the process is stopped by intervention from the Supreme Court, the possibility of which under prevailing circumstances in the country is quite remote. Now the only option open to the President in view of his assuming Chief Adviser's functions, not in the best of manners (I refrain from using the word 'usurpation'), is to acquire political and social legitimacy by his neutrality beyond reasonable doubt. Only this would accord validity to his rule to hold free and fair elections.
The author is Professor of Law presently working with Stamford University Bangladesh.