IT is noted that the president is empowered to call emergency under Article 141A of the Constitution and also, as he is in charge of the defense portfolio, entitled to call out the army for reasons he deems fit.

The president has thought it fit to call the army to join ranks with the other law enforcement agencies in "maintaining law and order" to ensure a fair election. On December 10, the president stated in a nation-wide address that in the past the army had been called out in aid of the civil administration to curb terrorism, tackle disasters, control traffic, distribute VGF cards, and manage water supply in the Dhaka city. This means that calling out the army to assist the civil administration is not something extraordinary.

It is correct that the army had been deployed in the past to assist and aid the civil administration, and the decision to do that was made by the government led by the elected prime minister.

During the caretaker government, the executive power of the country is exercised not by the

president but by the chief adviser, who shall act in accordance with the advice of the non-party caretaker government (Article 58B.3). A distinction is to be made between the powers of the president and the chief adviser under the Constitution, and it is important.

The distinction I again make is that the powers exercised by the elected prime minister are not the same as those of the un-elected chief adviser. The scope of the powers of the un-elected chief adviser is very limited compared with that of the elected prime minister.

The first question that arises in this connection is whether the decision to call out the army was in his capacity as the president or as the chief adviser in charge of home affairs.

I raise this issue because both the high offices are currently held by the same person, and it is often confusing to people whether he is exercising his powers as the president or the chief adviser.

It is widely reported in the media that it is routine for the home affairs ministry to call out the army in aid of civil administration. Therefore, it is reasonable to

assume that the chief adviser, who is in charge of the home affairs portfolio (among others), has decided to call out army.

The second question is, since the calling out of army on the streets is made out to be a decision of the chief adviser, not of the president, can the chief adviser do it alone, disregarding the opinion of the advisers?

This question essentially boils down to the issue about the powers of the chief adviser of the nonparty caretaker government under the terms of the constitution, which the chief adviser is oath bound "to preserve, protect and defend." The non-party caretaker government is interpreted as the council of advisers led by the chief adviser (first among the equals).

It has been reported that at least four advisers do not consider that the current situation in the country calls for army deployment. It is significant to note that one of the advisers is the last army chief. These four advisors have, in fact, now resigned from the caretaker government in protest at the president's unilateral decision making.

In the light of this background, many legal experts argue that the chief adviser alone cannot take a decision, such as the calling out the army, disregarding the opinion of the advisers, even though the chief adviser in this case happens to be in charge of home affairs. Such a decision arguably contravenes the provision of the working of the non-party caretaker government under the Constitution.

It is noted that in terms of the Constitution, the non-party caretaker government is collectively responsible to the president (Article 58B 2.)

In the past it has often been the experience that the president did not endorse some of the proposed actions of the chief adviser. In such a situation the chief adviser, together with the advisers, had no unfettered power to take decisions.

For instance, in 2001 the chief adviser, after the approval of the council of advisers, wanted to amend the Criminal Penal Code (Amendment) ordinance but the president did not agree. Since the same person occupies both the high offices, there appears to be no second opinion on any pro-

posed action.

The third question is related to the purpose of calling out the army in a situation that has produced mixed reaction among the public and civil society.

Many perceive that the army should not be called out in a situation where the political parties are in confrontation in their attitudes and views as to how to ensure a fair, free and credible election. Mass civil and peaceful demonstrations are often carried out against any unpopular decision, or commission or omission, of the government, and they are the legitimate methods of democratic society.

Calling out the army is not a light matter. There must be considerable justifiable reasons for doing so. There should not be differing views on deployment of army. If their presence becomes controversial, the army personnel may become demoralized.

Many argue that there could be four, among others, implications arising out of the deployment of army in a situation where some core issues need to resolved by the caretaker government in consultation with political parties to create an environment for free, fair and credible election.

First, the army is to defend the sovereignty and territorial integrity of the country. The army has been essentially trained to fight with an enemy during a war, and brutality in wars is commonplace. That is why people fear the army. They are not trained to maintain law and order.

Second, history provides ample examples when authori-

ties, to suppress public protest and demonstrations, called the army. Army personnel may not be able to handle the situation, and their deployment becomes counter-productive. The army personnel carry lethal weapons, and if there is a confrontation between a group of demonstrators and the army, the situation may go totally out of control.

Third, most people fear the army, but if the soldiers become a part of the normal scenario for some weeks, people will not fear them any more. This is psychological, because if people become familiar with the army personnel, they will treat them (the army) as part of them. This works reciprocally in that the army personnel often appreciate the people's grievances and reasons for their protests.

Fourth and finally, Article 21 (2) of the Constitution provides that "every person in the service of the Republic has a duty to strive at all times to serve the people." The phrase "service of the Republic" includes any service, whether in a civil or military capacity (Article 152 of the Constitution). Many argue that any suppressive action by the army against a group of demonstrators contravenes Article 21 that is "to serve the people at all times."

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.