The president is above everyone else in the country, according to the constitution. The president is hardly visible, though, and he is hardly ever discussed.
However, over the past few days, the president’s powers have been a topic of discussion due to his initiatives to discuss the formation of a new election commission. Some Awami League leaders, even the prime minister, have said the election commission will be formed as the president wants.
The BNP and other political parties too are looking towards the president regarding the election commission. It is as if he has the powers to form an election commission acceptable to all.
But then there are some quarters who maintain that the president can do nothing whatsoever. He has to go according to the constitution in keeping with the prime minister’s directives. So no matter how pretty the picture may appear of the president’s talks with the political parties, nothing is going to come out of it.
Can he actually do anything or does his role amount to nothing regarding the formation of an election commission? According to Bangladesh’s constitution, how much power does the president actually have?
There is need to analyse the matter so we can adjust our expectations accordingly. We can ascertain the president’s powers when it comes not only to forming the election commission, but concerning other matters too, such as ensuring good governance, resolving political conflict and so on.
Bangladesh’s president is the head of state, not of government. It is like in Britain where everything is done in the name of the queen, but the actual authority is the parliament or the cabinet. It is much like the role of the president in India, and in Bangladesh too.
However, in India there has been much discussion on the power of the president or the constitutional head and the Supreme Court there has given detailed explanation on these powers, such as in the Madhya Pradesh Special Police Establishment Case 2004. This has not been done in Bangladesh. The few cases that were held apparently served to narrow down the president’s powers further, as the Bangladesh versus Mohammed Habibur Rahman case of 1979.
The powers of Bangladesh’s president are less than that of the Indian president. Even so, if the powers that he does hold can be applied, much can be done. For instance, the president can decide who will be the chief justice and make the appointment accordingly. He can actually appoint a well-qualified personality as chief justice. Such a chief justice can actually run the judiciary, particularly the Supreme Court, efficiently and improve the rule of law and human rights situation in the country. Such a judiciary can even question the credibility of an election or the legality of a government. In short, the president can play a tangible role in ridding the country of many wrongdoings simply by applying his good judgement in appointing an ideal chief justice.
According to the constitution, the president can even independently appoint the prime minister. In parliamentary polls, the leader of the party which wins the majority is made prime minister, so this power of the president is a mere formality. When no one wins a majority and the prime minister is to be chosen from multiple parties, the president then can decide. This did occur after the 1991 election and the president had to act on his own accord.
These powers of the president are specifically indicated in Article 48 (3) of the constitution. In clause 5 of the same article, another power of the president is mentioned, something that we do not often discuss. It is said that if the president so requests, the prime minister will submit any particular issue to the cabinet for consideration. This gives the president scope at present to play a significant role in the formation of a new election commission.
The president is now discussing the formation of the election commission with various political parties. He can select the points he finds appropriate from these discussions and ask the prime minister to place these before the cabinet. A draft law for forming the election commission had been drawn up under the former chief election commissioner Shamsul Huda. The president can also tell the prime minister how this law should be, based on his discussions with the political parties.
According to Bangladesh’s constitution, questions cannot even be raised in court about the advice the prime minister gives the president. We see this provision being used to put many things on the president’s shoulders. For example, the president has the power to pardon criminals, but that is actually done at the prime minister’s behest. Some ill-reputed killers have been thus pardoned but we never got to know on what grounds the prime minister asked the president to do so. In fact, the president has to take the flak for such decisions.
In the past, everyone was informed in advance how the president Zillur Rahman wanted the election commission. So it was quite clear that when the search committee was formed, this did not tally one hundred per cent with what the official gazette.
This can happen again now. The president can clearly inform the nation in writing his opinion on how the next election commission or the relevant search committee is to be formed. Then when the cabinet discusses the matter, any discrepancies will be ethically difficult to carry off.
The prime minister or the cabinet is not obliged to follow the president’s directives. The government can form the election commission or relevant search committee not fully according to his views. But if he informs the nation of his views in advance, then if there is any discrepancy, the blame will not fall upon him.
It is also to be seen whether the president can overlook the prime minister’s recommendations for any reason. Our constitution does not allow this. If he does so, he can be impeached. Surprisingly, we have seen once that the president overlooked the prime minister’s advice. This was in 1998 when the prime minister’s office sent a list for the appointment of judges to the Supreme Court.
The president at the time Shahabuddin Ahmed made some changes to the list. In the 1996 elections, Sheikh Hasina became prime minister. It was at her unusual initiative and will that Shahabuddin Ahmed was made president of the Awami League government. Even so, Shahabuddin Ahmed went ahead to overlook some of the prime minister’s advice in keeping with his own judgement. It was also rather amazing that the prime minister did not make a fuss over the matter.
That was the end of the politicians’ tolerance towards the president’s free wielding of authority. After that, Shahabuddin Ahmed was criticised by Awami League for signing the election act as drafted by the election commission. AQM Badruddoza lost the office of president for failing to lay wreaths on president Ziaur Rahman’s grave and was harassed in many ways.
It would not be prudent or constitutionally correct for the president to directly ignore the prime minister’s advice. However, he can in advance make his views clear, thus creating a certain degree of obligations for those views to be taken into consideration. He has this scope if he finds any logical points in the discussion s with the political parties. We hope he will do so if the need arises. This is important if the political parties are to put their trust in the next election commission.
Asif Nazrul is a professor of law at Dhaka University. The piece originally published in Prothom Alo print edition is rewritten in English by Ayesha Kabir