Consensus reached on declaration of emergency and appointment of CJ

Political parties have reached on a consensus on the process of declaration of state of emergency and appointment of Chief Justice during the dialogue of National Consensus Commission with political parties on Sunday. Constitution would be amended to incorporate the changes in these issues.

As per the consensus, President will declare emergency taking approval from the cabinet. Leader of the opposition, or deputy leader will take part the cabinet meeting. Guidelines have also been taken on under which circumstance the emergency can be announced. A consensus has also reached that certain fundamental rights cannot be curbed even during emergency.

Regarding the appointment of the Chief Justice, it was decided that the President will appoint the most senior judge of the Appellate Division as Chief Justice. However, if a political party includes in its election manifesto that the Chief Justice will be appointed from among the two most senior judges, that party may amend the Constitution accordingly upon coming to power.

Additionally, a consolidated proposal on the outline of the caretaker government was submitted yesterday by the Consensus Commission. BNP Standing Committee member Salahuddin Ahmed also presented a new proposal. These proposals were not discussed in detail. Other parties wishing to submit proposals regarding the caretaker government’s outline have been asked to inform the Commission in writing by 10:00am today, Monday. A detailed discussion on the issue is scheduled for tomorrow, Tuesday.

The second round of discussions between political parties and the National Consensus Commission continues over about 20 key reform proposals that failed to reach agreement in the first phase. This thematic dialogue, held at the Foreign Service Academy, involves 30 political parties. Yesterday marked the twelfth day of discussions. So far in this phase, consensus has been reached on eight issues.

The current Constitution states that the President may declare a state of emergency, but announcement’s validity requires the prior countersignature of the Prime Minister. The Constitution also outlines the circumstances under which an emergency can be declared.

Earlier discussions had reached a consensus on changing this provision, but there was disagreement about what the new provisions should include. The Consensus Commission proposed that the President would declare an emergency with the approval of the Cabinet. However, even during a state of emergency, certain fundamental rights would remain protected.

Parties such as Jamaat-e-Islami and the National Citizen Party (NCP) objected to the idea of Cabinet approval, arguing that the Cabinet and the Prime Minister are effectively the same. They proposed instead that the President declare a state of emergency based on the advice of an all-party parliamentary committee.

During yesterday’s discussion, Jamaat’s Nayeb-e-Ameer Syed Abdullah Mohammad Taher proposed including the Leader of the Opposition in the Cabinet meeting where the emergency would be discussed. NCP supported this. Ashraf Ali Akon, a presidium member of Islami Andolon Bangladesh, suggested including the Deputy Leader if the Opposition Leader is unavailable.

Ultimately, a compromise was reached combining these suggestions. In a media briefing afterward, Commission Vice Chairman Professor Ali Riaz said it was agreed to amend Article 141(a) of the Constitution by replacing the term "internal disturbance" with "threat to national independence, sovereignty, territorial integrity, pandemic, or natural disaster."

It was also agreed that the emergency would require approval from Cabinet, and the Leader of the Opposition, or in case of absence the Deputy Leader. Furthermore, it was agreed that during an emergency, the right to life and protections under Article 35 concerning judicial process and punishment cannot be suspended, subject to Article 47(a) of the Constitution.

The Judicial Reform Commission had proposed that the President appoint the most senior judge of the Appellate Division as Chief Justice. During earlier rounds of talks political parties remained split. Jamaat e Islami, the NCP and several others backed the senior-most formula, while the BNP and a few allies wanted the Chief Justice chosen from either of the two most senior judges.

Yesterday two separate sessions were held on the issue. Jamaat’s assistant secretary general Rafiqul Islam Khan argued that multiple options create complications. NCP joint convenor Javed Rasin echoed same saying there can be no alternatives.

At one point AB Party’s Sani Abdul Haq floated an alternative that the President could pick one of the two most senior judges for a certain period. That proposal, too, failed to reach consensus.

Finally BNP representative Salahuddin Ahmed tabled a fresh formula that the President will appoint the most senior Appellate Division judge as Chief Justice. However, if a party states in its election manifesto that the Chief Justice should be selected from the top two senior judges, and later wins power, it may amend the Constitution accordingly.

Jamaat, which initially opposed any change, eventually accepted this compromise.

Afterwards Commission vice chair Ali Riaz told reporters that parties have agreed to add some explicit wording into Article 95 of the Constitution that the President shall appoint the most senior judge of the Appellate Division as Chief Justice. A party or coalition may later amend the Constitution so that the President may choose either of the two most senior judges if comes to power in popular vote, subject to clear announcement in its manifesto. The consensus also adds that no judge under investigation for “misconduct or incapacity” under Article 96 may be elevated to Chief Justice.

Originally the Constitutional Reform Commission suggested appointing the Chief Adviser of a caretaker government through a National Constitutional Council (NCC), but subsequent dialogue dropped the NCC idea, voiding that outline.

On 2 July the Consensus Commission revisited caretaker models, debating the former Thirteenth Amendment scheme and a few new suggestions. Most parties objected to involving either the judiciary or the President directly.

Last Thursday the Commission proposed two fresh outlines; yesterday it merged them into a single draft. During discussion BNP’s Salahuddin Ahmed introduced yet another proposal containing five fallback stages for selecting the Chief Adviser.

1. The President, after consulting all parliamentary parties, appoints a qualified non partisan figure.
2. Failing consensus, a committee of the Prime Minister, Opposition Leader, Speaker and Deputy Speaker recommends a name; the President chairs without a vote.
3. If still deadlocked, the third largest party in parliament adds a representative; the President now votes.
4. Next, every opposition party with at least 5 per cent of the vote gets a seat (excluding the main opposition already represented); the President keeps a vote.
5. If all these alternatives fail, revert to the old Thirteenth Amendment caretaker formula. In that case all parties agree keeping the President out. However, it can be considered that if President can be kept in the equation as last resort.

After the discussion, printed copies of the BNP’s draft were circulated, but Jamaat opposed. The party’s delegate Hamidur Rahman Azad objected that previous submissions—including Jamaat’s own—had not been addressed before this new text appeared, and said the proposal contained “obvious flaws” and Jamaat would not take part in further debate on it. Azad contends that as per the proposal, the President will be the appointing authority, yet he is also being made the head of the search committee. How can someone be both the appointing authority and the head of the committee tasked with selecting candidates, he asked.

Commission vice chair Ali Riaz concluded by inviting any additional written proposals from parties by 10am today.

Commission members Badiul Alam Majumdar, Md Emdadul Haq, Iftekharuzzaman, Safar Raj Hossain, Md Ayub Miah and the Chief Adviser’s special assistant Monir Hayder attended Sunday’s session.