Article 58C: Gymnastics of options
Khaled Hamid Ch owdhury
The additional “self” appointment of our President as the Chief Adviser to the Care-taker Government using the “sixth” or the “last option” under article 58C of our Constitution amid violence, uncertainty and controversy paralysing the country has raised more constitutional questions than it has solved. The number of loopholes in the dreaded article should in one sense put its framers to the dock for being aimless, erroneous and shoddy. It has rendered the provision almost devoid of any clarity showing the thumb to all our learned retired Chief Justices and Justices of the Appellate Division, i.e. the prospective Chief Advisers ! The upshot can even be said to be a boomerang for all the “efforts” of the opposition to embarrass the last retiring Chief Justice to avoid his assumption as the Chief Adviser. It was successful indeed but could they foresee or desire the end result ? It will be known on time as someone must be having the last laugh but it is not an easy guess as to who that could be.
Now dealing with the loopholes. Firstly, the 1st and the 2nd options: Arts. 58C(3) and (4) and its provisos require the President to appoint as Chief Adviser the last retired Chief Justice (CJ) of Bangladesh who is also qualified to be appointed as an Adviser under Art. 58(7). If that fails due to his unavailability or unwillingness to hold the office then he should appoint the next retired Chief Justice to that position. Since the first option fell through due to “unwillingness” of Mr. Justice K M Hasan the question came as to who would be deemed to be the next retired former CJ ? As Mr. Justice Mainur Reza Chowdhury died having retired as such CJ, should that mean the options for searching a former CJ was over so that the President should go for 3rd and 4th options or should he have gone on to invite Mr. Mahmudul Amin Chowdhury, the next retired CJ on line having ignored the death of Mr. M R Chowdhury ? The constitutional experts are divided and our President mainly citing the opinion of our learned Attorney General went for the 3rd and 4th option straight. Now could that be the true intent of the legislature at the time Art. 58 was drafted ? The result is, with all due respect, ludicrous. Here we have a retired CJ, available and not even asked and not yet 72 or otherwise not incompetent, yet our President decides to climb down the ladder too fast ! If he has taken into account the objection of BNP (for the reasons best known to its party leaders), then it is submitted that he has acted unconstitutionally as there is no such option in this regard as otherwise one should get rid of all these statutory gymnastics anyway ! Mr. M Amin Chowdhury should have been approached and should have shown his “unwillingness” first. Then how about Mr. Justice Mustafa Kamal, the next ex-CJ on line ? Art. 58(4) reads: “If no retired Chief Justice is available or unwilling ….” then the President should seek the last retiring Judge of the Appellate Division. It does not say “if no such retired Chief Justice..”. Does it not mean that the President must have exhausted the line of former CJs first ? What else could be the intent of the drafters and legislature ? Alternatively one can argue anyway that “unavailability” must relate to someone who is alive and not someone deceased. Again here Mr. M Amin Chowdhury was available. The same arguments could be raised in case of the 3rd and 4th option while searching for a retired Judge of the Appellate Division. The issue of Mr. Justice M A Aziz, the CEC is understandable one but it was sad indeed to see the deceptive way adopted to avoid Mr. Justice Hamidul Haque. One should not try to put words into the mouth of a retired Hon'ble Judge. Look at the era we are living in ! What then of the next retired Judge of the Appellate Division after Mr. Haque ? Again one must note that the Constitution requires the President to go to the 5th option only “If no retired Judge of the Appellate Division is available or unwilling…”
We were also not clearly told as to what happened to the 5th option under Art. 58(5) ? Could the leaders of the political parties who met the President not find a “qualified” citizen in one of the most populous countries ? Such is the division among our politicians that perhaps they readily gave a disclaimer to this !
Hence our President had no “other options” and decided to take up perhaps the most important assignment of his life. This time his own election “thesis” will be scrutinized by perhaps the “deadliest” of the “examination board” imaginable. At 75, he should not otherwise be eligible as an Adviser hence ineligible as the Chief Adviser (Art. 58C(3) and 58C(7)(d) read together) and there is no express exemption from this age bar for the President as the Chief Adviser in the Constitution. Another drafting error perhaps ? It was indeed a very brave oath for our Hon'ble Chief Justice to administer.
As an end note, ironically, one must say that the upshot will ultimately make our Judiciary stronger. The lesson should be learnt. The retired judges now have seen the reality of the political dirtiness where public life and inconvenience is the least that our politicians have in mind. This whole concept of bringing a retired CJ into this role of “Kingmaker” is an affront to the concept of separation of powers unnecessarily creating confusion among the senior judges. Once Mr. Justice Hasan was compulsively made to refuse, the other Judges should have stoutly left the queue. One last question for our President, did it not come to his mind to seek guidance of the Supreme Court under Article 106 on the interpretation of Arts. 58C(3)-(7) when so much is at stake ? It was definitely a question of law of immense public importance. He did have 15 days in hand under Article 58C(2). What was the haste Mr. President ? Should the issue of law and order be an excuse for possible violation of the Constitution ? It exposes the weakness of the executive even more, nothing less !
The writer, a bar-at-law, is an Advocate of the Supreme Court and the Head of Laws, London College of Legal Studies, Panthapath Campus.