Constitution and the president

Under the parliamentary system of government that we have, the President is a ceremonial head of state and the Prime Minister occupies the central position. The President acts in accordance with the advice of the Prime Minister. The Prime Minister heads the cabinet. The ministers hold office during her pleasure. As the chief executive, she controls the entire administrative machinery. She advises the President for appointing judges in the Supreme Court. As the leader of the House, she exercises enormous influence on the functioning of parliament. To sum up, the entire constitutional machinery revolves round the Prime Minister and she wields great power, influence and prestige. This has given rise to the question as to whether the President has any role to play in the affairs of the state.

It is a fact that constitutions of the countries that have parliamentary system of government provide for elected president or hereditary monarch as the ceremonial head of state. But the most significant feature of the constitution of Bangladesh regarding the President is that in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister [Article 48(3)].

Further, some powers enjoyed by the President of India and the King (or Queen) of Britain have not been given to the President of Bangladesh. For instance, the Indian constitution envisages a parliamentary system of government, but it has not written in emphatic terms that in the exercise of all his functions the President shall act in accordance with the advice of the Prime Minister.

The Indian constitution has even gone to the extent of vesting the executive power in the President. The council of ministers with the Prime Minister as its head aids and advises the President and he, in the exercise of his functions, acts in accordance with such advice. The President may require the council of ministers to reconsider such advice, either generally or otherwise, and the President shall act according to the advice tendered after such reconsideration. The parliament of India consists of the President, the Council of States, and the House of the People.

In Britain, which is known as the birthplace of parliamentary democracy, the Crown (the Crown is an institution which never dies, and the King or the Queen is the individual who holds the institution) is the supreme executive authority and its powers are exercised by the Queen (or King) as advised by the ministers. The British parliament consists of the Queen (or King), the House of Lords, and the House of Commons. The Queen (or King) very often acts as a mediator and uses her prestige to settle political conflicts or diminish the violence of the opposition.

The President of Bangladesh, unlike his counterpart in India, is not the chief executive of the republic. Decisions of the cabinet meetings are sent to the President for perusal. Unlike his Indian counterpart, he cannot ask the cabinet to reconsider any of its advice or decisions. Unlike the Indian President or the British monarch, he is not a part of the parliament. It is not clear as to why these powers were not given to the President.

The following paragraphs discuss how the President can play his due role in the affairs of the state with whatever power he has.

First, according to Article 56(3) of the constitution, the President appoints as Prime Minister the member of parliament (MP) who appears to him to command the support of the majority of MPs. Article 57(2) provides that if the Prime Minister ceases to retain the support of a majority of the MPs, he shall either resign his office or advise the President in writing to dissolve parliament, and if he so advises, the President shall, if he is satisfied that no other MP commands the support of the majority of the MPs, dissolve parliament. Here the President enjoys discretion. If he is satisfied that some other MP can command the necessary support, he will appoint that MP as the Prime Minister instead of dissolving parliament. The President has thus an important role to play in such a critical situation.

Second, the President does not require the advice of the Prime Minister in appointing the Chief Justice. Although the constitutional provision to consult the Chief Justice for appointing judges in the Supreme Court was omitted by the Constitution (Fourth Amendment) Act, 1975, there exists the practice of consultation with the Chief Justice for such appointments. The recommendation(s) of the Chief Justice receives due consideration of the executive. The President's choice to appoint a suitable person as the Chief Justice can immensely benefit the judicature.

Third, Article 48(5) provides that the Prime Minister shall keep the President informed on matters of domestic and foreign policy, and submit for the consideration of the cabinet any matter which the President may request him to refer to it. This enables the President to express his views on various important issues and thereby influence the decisions and policies of the government. In India, the President often writes to the Prime Minister and expresses his views on various matters.

Fourth, the President takes an oath to preserve, protect, and defend the constitution. If it comes to the notice of the President that a certain provision of the constitution is being violated, he has to take necessary action to protect it.

Fifth, every bill passed by parliament has to be presented to the President for his assent. Although the President has no power to veto a bill passed by parliament, he may return a bill to parliament with a message requesting that the bill or any particular provisions thereof be reconsidered and that any amendments specified by him in the message be considered. If the President so returns a bill, parliament shall consider it together with the President's message, and if the bill is again passed by parliament with or without amendments it shall be presented to the President for his assent, whereupon the President shall assent to the bill. This means that if the President offers cogent reasons in favour of his proposal(s), it might be accepted by parliament. The President thus can contribute to the process of making of law even if he is not a part of parliament.

Last but not the least, during the period the non-party caretaker government functions, the President wields enormous power. The caretaker government remains collectively responsible to the President. His guidance can greatly help the caretaker government in the discharge of its functions and responsibilities, particularly for holding the general election of MPs peacefully, fairly, and impartially.

To conclude, the Presidency is what its occupant makes of it. The President must have a dynamic personality, political wisdom and independence of mind and intellect. His influence will be strictly in proportion to the quality of his personality and character. His activities must prove that he is non-partisan. The scope is there for the President to play his due role with the limited power he has.

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