The prime minister's constitutional power
Article 48(3) of the constitution states: "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 means that the president of Bangladesh shall act on the advice of the prime minister in all matters except appointing the prime minister and the chief justice. As long as the prime minister and his cabinet continue to hold office, article 48 (3) is in operation.
For all latest news, follow The Daily Star's Google News channel. Clause 3 of article 58C states: "The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which the Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such."
That means that the prime minister is in power until the chief adviser of the caretaker government is appointed. During the 15-day period between dissolution of Parliament and appointment of the chief adviser, article 48 (3) of the constitution is valid.
Article 58C(1) states: "Non-Party Care-Taker Government shall consist of the Chief Adviser and not more than ten other Advisors, all of whom shall be appointed by President." But as the prime minister and his cabinet are still in power during this appointment period, the president is obliged to act on the advice of the prime minister according to article 48(3).
Clauses 3 and 4 of article 58C make clear arrangement for appointing the chief adviser. Article 58C (3) states: "The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last  but if such a retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint the Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice."
As per clause 4 of article 58 (C), if no retired chief justice is available or willing to hold the office as the chief adviser, the judge who retired last from the appellate division shall be appointed the chief adviser. If such a retired judge is not available or is not willing to hold the office of the chief adviser, the president shall appoint the person who among the retired judges of the appellate division retired after the judge that retired first.
So if the chief justice or a retired justice of the appellate division is available to hold the office of the chief adviser, the president and the prime minister have an obligation, according to the constitution, to appoint such a person as the chief adviser of the care-taker-government.
But the president will have to consult the prime minister if he has to appoint the chief adviser under the provision of clause 5 of the article 58C: "If no retired Judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint Chief Adviser from among the citizens of Bangladesh who are qualified to be appointed as Advisers."
As according to clause 3 of article 48 the president is obliged to act according to the advice of the prime minister, the constitution renders power to the prime minister of the said period in appointing the chief adviser. In this case, the role of the prime minister as a leader of a major political party and his/her constitutional role as the prime minister in appointing the chief adviser are different and they should not be mixed up.
The constitution of Bangladesh does entrust the outgoing prime minister with the power of appointing the chief adviser under the provision of clause 5 of article 58C. The president is constitutionally obliged to act upon the advice of the prime minister during the fifteen-day period in between the dissolution of parliament and the appointment of the chief adviser under the provision of article 48 (3) and 58C (2). It is, therefore, a wrong perception that the outgoing prime minister does not have any constitutional power to appoint the chief adviser.