Empowering the President

The Constitution of Bangladesh, as amended from time to time, provides for a parliamentary system of government. In this system, the Prime Minister occupies the central position. The executive power of the Republic is vested in the Prime Minister. In the exercise of his functions, the President acts in accordance with the advice of the Prime Minister. The Prime Minister heads the Cabinet. The Ministers hold office during the pleasure of the Prime Minister in the sense that he/she may at any time request a Minister to resign, and if such Minister fails to comply with the request, may advise the President to terminate the appointment of such Minister. With the executive power vested in the Prime Minister, he / she controls the entire administrative machinery of the government. As the leader of the House, he / she exercises enormous influence on the functioning of Parliament. He /she advises the President for appointing judges of the Supreme Court. To sum up, the entire constitutional machinery revolves round the Prime Minister and he / she wields great power, influence and prestige.

In the parliamentary system of government that we have, the President is mere a constitutional head of state. In the exercise and discharge of powers and duties the President has to act according to Article 48(3) of the Constitution which provides that " in the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister." It may be noted that even in these two cases the President is left with very little choice to act independently. The President has to appoint as Prime Minister the member of Parliament (MP) who is elected as their leader by the MPs of the major party in Parliament. Similarly, the President has to normally go by the suggestion made by the Ministry of Law, Justice and Parliamentary Affairs in the appointment of the Chief Justice, and it needs no explanation that the ministry makes such suggestion only after consultation with the Prime Minister.

Now, we may have a look into the British Constitution and the Indian Constitution. Britain is known as the birthplace of parliamentary democracy. Though in form the British Constitution is a monarchy yet in fact it is democratic. This democratic characteristic of the British Constitution is the outcome of the growth of conventions. In the British Constitution 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 King or the Queen as advised by the Ministers. The Crown has the right to be kept informed of the political situation at home as well as abroad. Its signature is necessary for all statutes and many official documents. It can raise objections, offer suggestions, although it cannot obstruct the course of administration. We know that India has a long tradition of parliamentary system of government. The Constitution of India has vested the executive power of the Union in the President (Article 53). The Council of Ministers with the Prime Minister at its head aids and advises the President and he, in the exercise of his functions, acts in accordance with such advice. But the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration (Article 74).

But the Constitution of Bangladesh has not given any power to the President to ask the Cabinet to reconsider its any advice or decision. Mahmudul Islam, a former Attorney-General for Bangladesh, in his Constitutional Law of Bangladesh thus says, " In the form of government that we have, the President is normally vested with the executive power of the State which, in fact, is to be exercised by the Council of Ministers and the President is to act on the advice of the Ministers." It thus appears that there is room for vesting the executive authority of the Republic in the President in our parliamentary system of government.

Parliament is one of the three basic pillars of Bangladesh, the other two being executive and judiciary. Legislative power is vested in Parliament. The President is not a part of Parliament although he enjoys the privilege of addressing Parliament at the commencement of the first session after a general election and at the commencement of the first session of each year. The Cabinet-approved speech that the President delivers to Parliament is primarily an elaboration of the achievements of the government in power. In the greater national interest the President, as the head of state, should have the authority to speak his mind in Parliament. Further, Parliament of India consists of the President and two Houses known respectively as the Council of States and the House of People (Article 79). In the British Constitution, Parliament consists of the King (or Queen), the House of Lords and the House of Commons. Making the President of Bangladesh a part of Parliament will thus be in conformity with the practice followed in other countries having a long tradition of parliamentary system of government.

The framers of our Constitution were conscious of the need of the independence of the judicature in the country and to this end incorporated an Article that provides for the separation of the judiciary from the executive organs of the State (Article 22).

But this constitutional obligation is yet to be implemented. The Constitution, as originally framed, contained a provision requiring the President to consult the Chief Justice in the matter of appointment of the Judges in the High Court Division and the Appellate Division of the Supreme Court. But this provision was omitted by the Constitution (Fourth amendment) Act, 1975. Although there is a convention of consultation with the Chief Justice, but such a consultation may not be a formal one and the recommendation, if any, of the Chief Justice is not binding on the executive. As a result, during the last three decades or so, there has been continuous allegation of politicisation of appointments in the higher judiciary. Not that the allegation is totally baseless.

The Indian Constitution provides that in the case of appointment of a Judge to a High Court and to the Supreme Court, the Chief Justice of India shall always be consulted. If any question arises as to the age of a Judge of a High Court, the question is decided by the President after consultation with the Chief Justice of India and the decision of the President is final (Articles 124 and 217). In our case, revival of the provision of the original Constitution requiring consultation with the Chief Justice for appointing Judges of both the divisions of the Supreme Court has become a dire necessity. Revival of the provision and empowerment of the President to appoint Additional Judges and other Judges in both the divisions of the Supreme Court in consultation only with the Chief Justice, and remove a Judge as per opinion of the Supreme Judicial Council only, will help reduce to the maximum extent the politicisation of the higher judiciary. This will require amendment(s) in clause (3) of Article 48 in 'Part IV- The Executive' of the Constitution. It has also to be examined whether this will require amendment(s) in any Article(s) in 'Part VI- The Judiciary' of the Constitution.

Let me now discuss the second suggestion regarding election of the President. The Constitution of Bangladesh adopted on 4 November, 1972 provided for election of the President by members of Parliament (MPs) in the manner prescribed in the second schedule of the Constitution. The second schedule, inter alia, provided for election of the President by the MPs by secret ballot. The Constitution (Fourth Amend-ment) Act, 1975, among others, omitted the second schedule and provided for direct election of the President. By Act No. 27 of 1991, provisions have been made for election of the President through the MPs by open ballot.

I am not aware whether in any country practising a parliamentary system of government the President is elected by an electoral college consisting of representatives of local government bodies. The President of India is elected by the members of an electoral college consisting of (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. The voting takes place by secret ballot.(Articles 54 and 55).

The suggestions made in the aforesaid seminar on the election of the President of Bangladesh reminds us of the Basic Democracies introduced in 1959 by Field Marshal Mohammad Ayub Khan, the President and Chief Martial Law Administrator of Pakistan. Under the 1962 Constitution, which provided for a presidential system of government, the elected members of the union councils formed an electoral college to elect the President, the national assembly, and the provincial assemblies. In the election of 2 January, 1965 for the presidency of Pakistan, the 80,000 basic democrats acted as the electoral college.

In the parliamentary form of government, the Cabinet headed by the Prime Minister is collectively responsible to Parliament. Presently, Zila Parishad (district council) and Upazila Parishad (sub-district council) at the zila level and upazila level, the two important tiers of local government are not functional. Even if BNP-led alliance government revives these two bodies as per BNP's election pledge of 2001, yet it may not be feasible to elect the President by an electoral college comprising representatives of local government bodies under parliamentary form of government. It may be mentioned that even when Bangladesh had a presidential system of government such an idea was not conceived of.

It appears from the above discussion that there is scope for empowering the President of Bangladesh in the existing parliamentary system of government. Implementation requires a strong political will, particularly of the political party / alliance in power. On the other hand, election of the President by an electoral college comprising representatives of local government bodies instead of the current system of election by lawmakers does not appear to be an implementable proposition in parliamentary system of government.

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