The problem in the presidency

During his absence, the Speaker of Parliament discharged the functions of the President.

The drama began as soon as the President arrived in Bangladesh. President Iajuddin Ahmed did not resume his duties. Instead, he was taken to the Combined Military Hospital for a "check-up." It has not been disclosed by the government house why he needed another check-up by the Bangladeshi physicians after his successful treatment in Singapore. His attending physicians at the Combined Military Hospital opined that he required complete rest for another fortnight and was not as yet fit to resume his functions.

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So, the Speaker continued to discharge the functions of the President.

Various quarters now began to raise various types of curious questions. Some even questioned the constitutionality of having "two presidents" in one country. The main opposition party in Parliament even wanted to discuss the issue of having "two presidents" in one country. Many self-styled legal experts termed the continuance of the Speaker as the "Acting President," while the President himself was present in the country, as illegal. Some have been surmising that the departure of the President from Banga Bhaban was imminent, affording one of many aspirants the opportunity to occupy his place. An eminent Barrister cut a joke that some had started to pack their suitcases for a sojourn to Banga Bhaban.

There are several aspects to the entire episode taking place at the government house.

These aspects have to be examined with reference to the clear provision in the constitution in this respect. The provision is laid down only in one article of the constitution and this article is Article 54 which runs as follows:

"If a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any other cause the Speaker shall discharge those functions until a President is elected or until the President resumes the functions of his office, as the case may be."

The expression, "if a vacancy occurs in the office of President" is related to the expression, "until a President is elected" and these two expression must be read together.

These two expressions read together are clearly disjunctive from the remaining expressions.

Secondly, the expression, "or the President is unable to discharge the functions of his office" is related to the expression "on account of absence, illness or any other cause" and must also be read together.

Thirdly, the expressions, "absence," "illness," or "any other cause" are disjunctive and must be read as such. It means that if, on account of absence or illness or any other cause, the President is unable to discharge the functions of his office the constitutionally designated person, the Speaker, shall discharge the functions of the President for as long as the President remains unable to do so.

In the present case, the office of the President has not fallen vacant due to death or expiry of the term of his office. On the other hand, he is said to be unable to discharge his functions on account of "illness." Consequently, the functions of the office of President are being discharged by the Speaker until the President resumes his duty, and thereby, the Speaker can neither be called President No. 2 nor can he be designated as the Acting President (an expression which is absent in the Constitution except in the side note wherein it is stated "Speaker to act as President during absence, etc.") A side note is not a substantive provision of the constitution..

The Speaker is constitutionally bound to leave the government house and occupy his chair in Parliament as soon as the President appears in his office and expresses his intention to resume his functions. It is for the President, and the President alone, to decide as to when he will resume his functions. The recent arrangement was, therefore, perfectly in conformity with the constitution and is absolutely constitutional. The so-called legal experts and some political leaders were unnecessarily trying to create a storm in a tea cup.

The next question that arises is, who is the deciding authority to determine whether the President is able or is unable to discharge his functions. The simple and the only answer to this question is that it is the President, and the President alone, who will decide whether he is able or is unable to discharge his functions. No other authority is, under the constitution, empowered to take the decision in this matter.

In the present case, however, since the alleged inability is on account of illness, the opinion of the President's attending physicians has to be taken into account. In the present case, the President did not feel it at all necessary to get himself examined by those physicians who were considered to be unsuitable to undertake his treatment and that was precisely why the decision was taken to send him to Singapore for such treatment.

Then, the question is why was he subjected to a check-up by those physicians who had been considered unsuitable to treat him, and more so since the physicians who had successfully treated him in Singapore did not advise him to undergo any such check-up by the local physicians about thirty days after the successful operation on him. Who will answer these questions which are constantly agitating the public mind? It is rumoured that the President may be asked to resign. Constitutionally, no authority can ask him to resign.

If he had been "compelled" to vacate his office by tendering a so-called resignation in view of circumstances deliberately created in order to compel him to do so, the whole process of his relinquishment of office, and the consequent election to fill in the office vacated by him under unconstitutional and compelling circumstances, would have been against the spirit of Article 54 of the constitution and, therefore, a clear violation of the constitution.

In my view, if any person assumes office under an election which is not in conformity with the spirit of the constitution, he cannot get any legitimacy and will be as contemptuously remembered in the constitutional history of Bangladesh as those civilian Presidents who were appointed to that office by the military usurpers in the past.

Would any sensible person, having even the slightest self-respect and conscience, agree to act as a pawn in the political game of chess played by the politicians? There is, many eminent persons believe, no dearth of such persons in Bangladesh.

"What a queer country is this, Seleukos !" Said Alexander to his general Seleukos Nikator after landing in India. Alexander was, however, unaware of Bangladesh.

If the Members of Parliament were convinced that the President had become physically or mentally infirm, why didn't they bring an impeachment motion against him for his removal under Article 53 of the constitution instead of adopting dubious means in what looked suspiciously like an effort to get rid of him?

Justice Naimuddin Ahmed is a former Justice of the Supreme Court.