The hope that flickered with retired chief justice KM Hasan's refusal to take office of the chief adviser to the caretaker government (CTG) dimmed again as President Iajuddin Ahmed in a meeting with the AL general secretary Abdul Jalil and the BNP secretary general Abdul Mannan Bhuiyan in the afternoon of October 28 offered himself as the CTG head without exploring constitutional options available for appointment of the chief adviser to the CTG.

It is mentionable that the president shall hold the office of chief adviser to the CTG in addition to his own duties only when all other options are exhausted. Some sources say that the BNP secretary general Abdul Mannan Bhuiyan at one stage of the meeting urged the president to head the CTG in addition to his own duties and the president expressed his willingness to accept the BNP secretary general's proposal. Anyway, the AL has intimated the president its opposition to president's assumption of the office of chief adviser to the CTG.

Now the question arises as to why the president should not head the CTG in addition to his own duties.

First, Article 58C of our constitution has made it absolutely clear that the president is the last option to head the CTG only when all other options are exhausted. Justice KM Hasan who retired last as the chief justice (CJ) was the first choice to head the CTG. With his refusal to head the CTG, the next choice is retired CJ Mahmudul Amin Chowdhury.

This is because of the fact that retired CJ Mainur Reza Chowdhury, who retired before Justice KM Hasan, has died, and this has made Justice Mahmudul Amin Chowdhury, who retired before Justice Mainur Reza Chowdhury, the next choice.

If Justice Mahmudul Amin Chowdhury is not willing to hold the office of the CTG, then other retired living CJs, if any, not exceeding the age of 72, shall be the choices for office of the CTG, taking into consideration their date of retirement as CJ.

If no retired CJ is available or willing to hold the office of the CTG, the president shall appoint as chief adviser the person who among the retired judges of the Appellate Division retired last. The sequence, as stated in the case of the retired CJs, has to be followed in the case of retired judges of the Appellate Division.

If no retired judge of the Appellate Division is available or willing to hold the office of the CTG, the president shall, after consultation, as far as practicable, with the major political parties, appoint the chief adviser from amongst citizens of Bangladesh who are qualified to be advisers to the CTG.

Without exhausting all the aforesaid options, it is too early for the president to assume the office of the chief adviser to the CTG in addition to his own duties.

Second, the media reports reveal that the president has started discussion with the political parties having representation in the 8th parliament that now stands dissolved, to resolve the crisis.

The point to be noted here is that the question of consultation with the major political parties arises only when no retired CJ or judge of the Appellate Division is available or willing to take the office of the chief adviser.

If the president assumes the office of the chief adviser in addition to his own functions without exploring all the options stated above, that will contradict the provision(s) of the constitution on the appointment of the chief adviser of the CTG.

Third, the CTG shall be collectively responsible to the president. If the president himself heads the CTG, then there will be no checks and balances, and questions will arise about the transparency of the activities of the CTG.

Fourth, although the CTG is scheduled to carry out the routine affairs of the government and assist the Election Commission (EC) for holding the general election freely, fairly and impartially, the ground realities will make it absolutely necessary for the CTG to adopt and execute important policy measures for maintaining law and order and depoliticizing the administration for helping the EC in the holding of general election smoothly and neutrally as well as for effective functioning of the government.

The CTG of 2001 even went for amendments of the Represen-tation of the People Order, 1972. Some advisers to the past CTG have already expressed concerns that the 4th CTG (2006) will have to face more difficulties in maintaining law and order and creating conditions conducive to the holding of the forthcoming general election smoothly and neutrally.

Fifth, the president has recently undergone a major heart surgery abroad. His poor health condition may not permit him to undertake the hard work required to be taken by the chief adviser to the CTG.

Last but not the least, it needs no repetition that Iajuddin Ahmed has so far failed to prove himself as a non-partisan president. His activities in the past four years have proved that he owed his allegiance to the BNP-led alliance government.

For instance, in his speeches to parliament, he has been in full praise of president Ziaur Rahman, the founder of the BNP; but he has not paid due respect to the founding father of the nation, Bangabandhu Sheikh Mujibur Rahman, and equated him with other national leaders. With his assumption of the office of the chief adviser, the CTG may thus lose credibility at home and abroad.

Justice Mahmudul Amin Chowdhury has reportedly told the media that he would not feel embarrassed if he is approached officially to take office of the chief adviser to the CTG. The BNP has reportedly objected to his becoming the chief adviser without stating the reasons. As per constitution, Justice Mahmudul Amin Chowdhury is the next option after Justice KM Hasan's refusal and he cannot be bypassed only because of the BNP's objection.

To conclude, President Iajuddin Ahmed is facing the most important challenge of his life. Time has come to prove that he is the president of the country. By exercising his conscience and judgement in the right direction, he can save the nascent democracy of the country. He must go by the constitution in appointing the chief adviser to the CTG.

M Abdul Latif Mondal is a former Secretary to the Government.