& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

Ordinance making power of President: Some points to discuss

ABU SADAT MD. SAYEM ALI PATHAN
It is said that the Ordinance making power of the President is not justifiable. But these comments may become the subject of a discussion. If we go through the following discussion, we may get a different thing.
It is said in art.51 of the Constitution of the Bangladesh, while giving immunity to the President of Bangladesh, that, " but this clause shall not prejudice the right of any person
to take proceedings against the Government." And according to art.102 (2)(a)(ii), the High Court Division may make an order declaring that the proceeding taken by a person performing functions which has been done or taken without lawful authority in connection with the affairs of the Republic or of a local authority, has no legal effect.
Here, 'without lawful authority' should include the meaning that an act has been done without maintaining the authority of Constitution.
In the case of Dr. Mohiuddin Faruque v. Bangladesh, [49 DLR (AD) 1.], B. B. Roy, J. said in paragraph 97 that- " the
expression 'aggrieved person' means not only any person who is personally aggrieved but also one whose heart bleed for his less fortunate fellow beings for a wrong done by the Government or a local authority is not fulfilling its constitutional or statutory obligations."
Article 48(2) provides that, "the President shall, as Head of State " and according to article 152, 'State' includes the Government. So, we may say that the President is the head of the Government.
Article 93(1) provides that, the President can make and promulgate Ordinance when he is satisfied that the existing circumstances deserve immediate action. It is obviously a constitutional obligation. And when he makes and promulgates an Ordinance in such a situation that immediate action is not necessary then it becomes a constitutional wrong.
In the case of Anwar Hossain v. Bangladesh (1989), B.H. Chowdhury said, " Then who will consider the validity or otherwise the law? obviously the judiciary." According to art.152, law also means Ordinance.
Thus, we may say that if the President makes and promulgates an Ordinance, the Ordinance may become justifiable on the application of any aggrieved person in the High Court Division on the ground that art.93 is not followed by the President in regard to make and promulgate an Ordinance.
Ordinance making power of President and a gap in the theory
It is said that, Constitution is the solemn expression of the will of the people. Thus, all the power conferred by the Constitution is conferred according to the will of the people. So, the Ordinance making power of President is a power, which is conferred according to the will of the people. The Ordinance must be passed by the parliamentarians [art.93].
However, parliamentarians are the representatives of the people and the wish of the people is expressed through the parliamentarians. Thus, when the parliamentarians disapprove an Ordinance it is to be seemed that the people also disapprove the Ordinance. So, when the representatives of the people disapprove an Ordinance then how does the Ordinance making power of President become the expression of the will of the people?
So, there is a gap. But it should be pointed out that, 1) the Ordinance making power is conferred by the Constitution according to the will of the people upon the President in order to
make and promulgate such a type of Ordinances which reflect the will of the people according to the provisions of the Constitution.
2) President in order to make and promulgate the Ordinances must deserves the consent of the cabinet. Thus, when an Ordinance is made and promulgated, it is seemed that the Ordinance has got the consent of the cabinet as well as the consent of the people as the ministers are the representatives of the people.
3) it is seemed that the President as the head of the State should be a man of conscience, good qualities, educated and these things must be reflected through the acts of the President. When the President makes and promulgates any Ordinance, it is seemed that it will be such a nature which will able to be passed by the parliamentarians.
4) When any power or duty is conferred then it is thought that it will be done honestly.
So, there is no gap at all. The nature and result of power and duty is depended upon the way of application of the power and perform of duty. The Ordinance making power of President is conferred by the Constitution so that it will be practiced honestly. But does it hamper the concept of popular sovereignty:
It is said that by using the Ordinance making power, the President moves aside the Parliament.
The parliamentarians are the representatives of the people and through them the will of the people is expressed. So, when an Ordinance is made and promulgated it moves aside the will of the people. Thus, it is said that the Ordinance making power of President hampers the concept of popular sovereignty.
But it can be said that the power does not hamper the concept totally, because of the reasons mentioned above.
Art.48 (2) says that, "The President shall, as the Head of State..." that is the president is the head of the State.
Art.152 says, "State includes the Parliament, the Government and statutory public authorities."
Thus, is the President the head of the Parliament, the Government and statutory public authorities?
The author is studying LLB (Hons.)at Dhaka University.