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News Analysis

President could have saved govt's blushes

Shakhawat Liton
President Zillur Rahman could have saved the government from sliding into the ongoing legal controversy over sending two district judges into forced retirement, had he not overlooked the constitutional provision on the issue.
Had he enquired into the legality of the government's move, and followed the constitutional provision, the president could also have saved the judiciary from the executive branch's undue interference, at least on that occasion.
Article 116 of the constitution says the president in consultation with the Supreme Court (SC) shall determine postings, promotions,
grants of leave, and discipline of persons employed in the judicial service, and of the magistrates discharging judicial responsibilities.
But the provision was not complied with in the case of sending Judge Abdul Gafur of Dhaka District and Sessions Judge’s Court, and Judge Mohammad Shahjahan of Gazipur Women and Children Repression Prevention Tribunal into forced retirement on July 30, for their involvement in a demonstration at Bangladesh Secretariat on July 27.
The president consented to the government decision following Prime Minister Sheikh
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Hasina's approval for it. One might argue that the president did the right thing in light of the constitution that says the Dissident will act on advice of he premier, but he will act in his own discretion in matters of appointments of the prime minister and chief justice.
But the process of sending the summary of the forced retirement of the two judges to Bangabhaban -- the president's office and residence -was itself not clear, as it did not follow the due process, wliich triggered the widespread controversy.
The government finally reinstated the two judges in the face of severe criticisms, and to avoid legal complexities, as according to several verdicts of the SC, sending the judges into forced retirement without consulting die apex court was illegal.
Later, the Parliamentary Standing Committee on Law Justice and Parliamentary Affairs Ministry on August 27 decided to probe the roles of Prime Minister's Adviser HT Imam, and the establishment and- law secretaries — in die ^government's move.
The parliamentary body's decision annoyed the premier's adviser who questioned its intendon. HT imam claimed, the judges were sent into retirement according to the Public Servants (Retirement) Act 1974, and it was legal. But the parliamentary committee and legal experts refuted the adviser's claim.
However the incident raised an important question -- whether the president is bound to always act on the prime minister's advice, whatever it may be.
Constitutional experts say the president is not bound to act on the premier's advice if the advice does not conform to the constitution. Both the president and the prime minister take oaths to preserve, protect, and defend the constitution, and none may go beyond his or her oath of office, theyadd.
If the president thinks an ^dvice does not conform to the constitution, he may send it, back to the prime minister, or may seek an explanation before acting on it.
Constitutional expert also former attorney general Mahmudul Islam in his book titled 'Constitutional Law of Bangladesh' explained the significance of the presidential oath of office.
He said the president takes the mandatory oath to preserve. protect, and defend the constitution, which is not just a matter of formality or ritual. The oath obligates the president to preserve, protect, and defend the constitution, he added.
“... It is difficult to deny him necessary authority in discharging the duty of preserving, protecting, and defending the constitution....Thus he will not be bound to act on an advice of the prime minister if such advice is ex facie [on the face of it] unconstitutional," observed the former attorney general.
Talking to The Daily Star on Wednesday, eminent jurist Shahdeen Malik echoed
Mahmudul Islam. He said according to the constitution, the president will act on advice of the prime minister, but that does not include anything illegal.
“The president may send back the file containing the prime minister's advice, or may seek explanation from the premier's office, if he thinks the advice is prima facie (at a first glance] unconstitutional, "he added.
On the controversial issue of sending the two judges into forced retirement, Malik said had the president enquired into the issue, and sought explanation from the prime minister's office, he could have prevented the controversy.
Legal experts also observed that tire prime minister might have not been properly advised on the issue that eventually put the president in a difficult situation.
The office of the president is a ceremonial one, and many people believe the president has noting to do but be advised by the prime minister. The statement is only partially true, according to the legal experts.
The president, if he wants, may play a significant role for the betterment of the country, and for strengthening the democratic process. Constitutional experts believe a man of high stature, integrity, and experience holding the office of the president can exert great influence on the executive branch of the state by way of advice and counselling.
People still expect seasoned politician Zillur Rahman to work for restoring the dignity and integrity of the top constitutional post, which was mired in controversy during the tenure of his predecessor lajuddin Ahmed.
lajuddin just acted as a president on advice of the then prime minister Khaleda Zia, and he was more busy proving his undoubted loyalty to BNP that had elected him president, rather than to the country’s constitution. He did not dare to decline any advice coming from the then prime minister regardless of- its-unconstitutionality or unethicality.
In fact, his inability to act as the president of the country undermined the dignity of the high office.
The onus is on Zillur Rahman to uphold the image of the president, who is the guardian of the country. He is the guardian not only of the executive branch of the state led by Prime Minister Sheikh Hasina, but also of the other two branches -- the judiciary, and the legislature.
As he took the oath, he must treat every person equally according to law, without fear or favour, affection or ill will. And in light of the oath, the president must not unduly favour any of the three branches of the state.
If the three branches are able to perform their respective tasks smoothly, and can complement each other towards establishing the rule of law, then it will pave the way for long desired good governance in the country.