Justice Hasan expressed his solidarity with the people of the country, and said that he felt it was better to stand aside than to become a hurdle in the political process, and thus to help bring a peaceful political atmosphere for the nation. He further said that some would be happy and some would not be, but he asserted that he did keep all in mind when he took the decision.

He kept in mind the people of his beloved country. He had a very tough time taking the decision. We know, Justice Hasan, that you faced a very embarrassing situation, and had a hard time taking this decision. We thank you very much, and express our gratitude for your decision.

Some people are saying that if Justice Hasan had conveyed his inability to take over the charge of the caretaker government earlier, the bloodshed and the loss of lives could have been avoided. Some are saying that he was expecting a solution out of the dialogue of the two major political parties, and he waited for that, and so cannot be faulted on this count.

Since Justice Hasan is now in the past we shall not enter into fruitless arguments, counter-arguments, and debate about him and his role. We must move forward.

Indeed, now that we have President Iajuddin Ahmed as chief adviser, this is really the only issue worth discussing.

But, in this context, let us concentrate our attention for a moment on what the president, the outgoing prime minister, and the outgoing leader of the opposition said, and how they played with the situation, so to speak, with the formation of the caretaker government.

We have seen in yesterday's newspapers what the three said on Saturday:

The president himself offered to be the chief adviser to the caretaker government.

Khaleda Zia, the outgoing prime minister, said that the BNP would accept whatever the president decides, and urged others to accept it also.

Sheikh Hasina, the outgoing leader of the opposition, said that the president should follow the constitution.

All along, Khaleda Zia was saying that the caretaker government would be formed according to the constitution, but this is the first time she said that she would accept the president's decision, whatever it might be. This came only after the decision of Justice Hasan to not accept the post of chief advisor of the caretaker government.

So, in my opinion, it wouldn't be entirely unjustified to say that after Justice Hasan, President Iajuddin is the next reliable and dependable person who BNP believe could help it to sail through the election smoothly. So we have every reason to believe that it is the BNP who has advised the president to offer his candidature to become the chief adviser to the caretaker government.

We have no reason to believe that Prof Iajuddin, being a university teacher, is ignorant about the constitutional provisions for the caretaker government. Since he is the guardian of the constitution we would have urged him to follow, protect, and uphold the constitution.

The constitution of the country has not empowered anyone to break it, or to violate any of its provisions. Not for the honourable president, but for the common readers, I am extracting below the relevant provisions of the constitution regarding the caretaker government:

Article 58C. (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 the 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."

We know that before Justice KM Hasan, Justice Moinur Reza Chowdhury retired as chief justice, and that before Justice Moinur Reza Chowdhury, Justice Mahmudul Amin Chowdhury retired as chief justice.

Justice Moinur Reza Chowdhury has passed away. He is no longer in this world. Thus, the above article cannot apply to him, and since Justice Hasan has graciously declined the post, the appointment should move to "the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice." In other words, Justice Mahmudul Amin Chowdhury. Obviously, the clause does not contemplate any of the deceased previous chief justices, only the ones who are alive.

We should look for the next available chief justice, as per the constitution. I believe that the provisions of the constitution about the caretaker government are written in a very simple language, and we do not need any lawyer or legal expert for its interpretation or clarification. Educated people can easily understand it.

Let us look at clause (4): "If no retired Chief Justice is available or willing to hold the office of the 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 the 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."

Thus, constitutionally, it seems clear that if, and only if, all the retired chief justices decline to be chief adviser, as Justice Hasan has done so, can the president constitutionally look to the clause (4) for appointing a chief adviser.

Let us now look at clause (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."

Again, constitutionally, it seems clear that if, and only if, all the retired judges of the Appellate Division decline to be chief adviser, can the president then constitutionally look to the clause (5) for appointing a chief adviser.

Now, let us look at the clause (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 Care-taker Government in addition to his own functions under this Constitution."

Once again, it seems clear that the president was obligated to fully explore this option with all the major political parties before resorting to clause (6). It is not apparent that this was done. No information has been released as to which names had been proposed by the political parties, and whether any consensus name might have emerged through discussion.

Indeed, the political parties were all summoned to speak with the president separately, rather than together, which would seem to make reaching consensus rather difficult. It does not seem as though this option was fully exhausted.

Thus, it seems clear that there are a number of constitutionally mandated steps that the president was obligated to run through before appointing himself chief adviser, that were not followed.

It would have been preferable had the honourable president tried all options provided in the constitution to appoint the chief adviser before selecting himself, and only if the provisions of clauses (3), (4) and (5) could not be given effect to, to have then applied clause (6). It is the duty of the president to protect and uphold the constitution and eschew any controversial decision or move.

Harun-ur-Rashid is a retired government officer.