Misleading claims in the name of president?

Law Minister Anisul Huq now has put the president on his line of defence against Chief Justice Surendra Kumar Sinha's statement about existence of "dual rule" in the judiciary.

The chief justice on Monday blamed "dual rule" for hampering the judicial work and for increasing the litigants' sufferings and sought restoration of the Supreme Court's full control over the lower courts to bring an end to the present situation.

The original article 116 of the 1972 constitution had given the SC power over the lower courts to control their judges and judicial magistrates' postings, promotions and grant of leave.

But over the years, article 116 was amended several times, curtailing the SC's powers. Currently, the powers over controlling and disciplining the lower courts are vested in the president, who exercises those in consultation with the SC.

But Article 109 still says the High Court, a division of the SC, will have superintendence and control over the lower judiciary. 

The chief justice termed the prevailing situation "dual rule." In doing so, he just echoed the views of many legal experts who have already termed the present system "dual rule" in the judiciary.

Speaking at a press conference yesterday, the law minister, however, contradicted the statement of the chief justice. In his views, there is no "dual rule" in the judiciary.

He strongly supported the present constitutional provision that empowers the president to have authority over controlling and disciplining the lower judiciary.  

In his opinion this is appropriate and he does not find any necessity to reinstate the original article 116 to allow the SC to have full control over the lower courts as, he claimed, the power has been given to the number one person of the state for judicious exercise.

This is, he claimed, necessary for the independence of the judiciary as the president exercises the powers in consultation with the SC, adding that the law ministry works as the bridge between the president and the apex court.

His arguments and claims, however, are not based on substance, as the reality says something opposite to his views.

In the original constitution of 1972, it was the country's apex court that could decide on its own about postings and promotions of lower courts' judges and judicial officials and take disciplinary actions against them.

Currently, the SC is just consulted. But the proposals for posting, promotion and disciplinary actions are initiated by the government. There is a huge gap between the original article 116 and the current one. This is why the SC in several judgements has also spoken for reinstating the original article 116 for an effective separation of the judiciary.

Here, the more crucial question is-- who actually exercises the president's power over controlling and disciplining the subordinate courts-- President Abdul Hamid or the executive branch of the government led by Prime Minister Sheikh Hasina.

If one reads only the Article 116 of the constitution, they may get an impression that the president himself exercises the powers.

But Article 116 cannot be read in isolation from the constitution's article 48 (3) that clearly says: "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."

Even in these two cases, his discretionary power is very nominal. Because he has no option but to appoint the leader of the majority party in parliament as the prime minister.

And in case of the appointment of the chief justice, the president is expected to appoint the senior most judge of the Appellate Division.

When Article 116 is read along with Article 48 (3), it becomes clear that the president on his own can not exercise his powers over controlling and disciplining the lower courts. 

As the president must act on advice of the prime minister, his powers are in real sense exercised by the prime minister.

And the law, justice and parliamentary affairs ministry plays the pivotal role, not as a mere bridge between the president and the SC, in preparing opinion for the prime minister to advice the president.

Therefore, his denial of existence of "dual rule" in the judiciary is not based on substance.

And whatever he spoke regarding the powers of the president will not make the president powerful in real sense. One may term his efforts-- making president powerful-- as a bid to hide the truth that the government still effectively retains the power over the lower judiciary.

Before him, Roads Transport and Bridges Minister Obaidul Quader and ruling Awami League leader Mahbubul Alam Hanif on Sunday portrayed President Abdul Hamid all-powerful for the formation of the new Election Commission.

Quader, also AL general Secretary, and Hanif claimed that it was the jurisdiction of the president to form the new EC, according to media reports.

They made the claim to reject BNP's demand for holding discussion with BNP and other political parties over the formation of the new EC in next February. Formation of new EC appears important as it will conduct the next parliamentary election.

Their claim was also misleading as the president, on advice of the prime minister, exercises the power to appoint Chief Election Commissioner and election commissioners. This means, the government will decide who will be appointed as the CEC and ECs and the president will just appoint them on advice of the prime minister.

If one reads only Article 55 (4) of the constitution that reads: "All executive actions of the Government shall be expressed to be taken in the name of the President," s/he may again get an impression that the president is really powerful.  

But in real sense the presidency is a ceremonial office with no effective power, as according to article 55 (2) the executive power of the country is exercised by or on the authority of the prime minister.

So, portraying the powerless president as powerful in line of defence by the ministers against their opponents is only misleading.

None should do this in the name of president.