Opinion
President is not as symbolic as being perceived
A sense of perception prevails in the minds of all class of peoplepoliticians, businessmen, media persons, bureaucrats, intelligentsia and working class of various nature and also foreignersin the country about the office of the President of the Republic that he even during a non-party neutral caretaker government pursuant to the thirteenth amendment to the constitution has noting much to do but to attend to formal functions/receptions, etc.
But such perception is not only wrong but also misleading in full sense of the term.
The Constitution (Thirteenth Amendment) Act, 1996 contains an unambiguous allocation of power while dealing with the President, head of state, and the Chief Adviser, head of government, to the non-party, neutral caretaker government.
Article 58C (11) states: "The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister, and an adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister". This is a confirmation to the proposition that the non-party, neutral CTG was modeled on the spirit of parliamentary system of government.
But power and functions of the non-party, neutral caretaker government are well defined and demarcated in Article 58B (3) that reads: "The executive power of the Republic shall during the period mentioned in clause (1) be exercised, subject to the provisions of article 58 D(1) in accordance with the constitution, by or on the authority of the Chief Adviser, in accordance with the advice of the non-party caretaker government".
On the question of the range and limit of such power and functions, article 58D (1) goes on stating: The non-party caretaker government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decisions.
Therefore, non-party, neutral CTG cannot go beyond the 'routine functions', which specifies the day to day routine functions of the government. It can deal with a policy matter only if it is a necessity. Hence, the possibility of clash between Chief Adviser and the President on the interpretation of routine functions may not be a marginal one for all the time, although the decision of the president shall prevail over that of the chief adviser in almost all the cases indeed.
Article 58E reads: "Notwithstanding anything contained in articles 48 (3), 141A (1) and 141C (1) of the constitution, during the period the non-party caretaker government is functioning, provision in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter signature shall be ineffective".
More important is that the article 58B (2) contains: The non-party caretaker government shall be collectively responsible to the President". A careful attention must be given to the fact that in absence of a Parliament, the President is the only elected personality who has been elected by the majority members of the immediate past Parliament and to whom CTG's remaining responsible collectively means keeping the supremacy of electoral politics and process alive and ongoing. It is also very much logical that President should constitutionally enjoy such an 'implied power' so that he may even dismiss a CTG and appoint a new one, if he feels/thinks it a necessity to do so. Ground(s) may be a single one or many, which shall be decided by the President.
This power is not unfettered at all anyhow. Only a definite, particular circumstance may be the determining factor(s) with a due respect to the public opinion also. This acts as a kind of check and balance between President and Chief Adviser.
In case of a necessity, CTG is also authorized to touch upon a policy matter. Therefore, a simple question may arise: who is the authority to determine "such necessity"? Because determination of such necessity by the Chief Adviser has a risk of being set aside by the President with a different interpretation that ultimately may generate a deadlock in the administration.
Here President's role is very important as a guardian of the Constitution and the decision of the President shall also be overriding.
Article 58E as read above, makes the President more powerful than the Chief Adviser, which cannot be thought of during the operation of article 48 (3) with a Prime Minister as head of government in a parliamentary system of government.
Under the amended Article 61, 'the supreme command of the defense services shall vest in the President and the exercise thereof shall be regulated by law (and such law shall, during the period in which there is a non-party CTG under article 58B, be administered by the President)'. It is also found that President has been given, "an exclusive jurisdiction" to deal with the matters related to defense and it was seen how President Abdur Rahman Biswas in 1996 without having a consultation with the Chief Adviser Justice Habibur Rahman exclusively handled the military crisis in his own way by applying this very article during the functioning of the first non-party, neutral CTG after the 13th amendment came into being.
One may argue, logically and pragmatically, that the present government is not a mere non-party, neutral care-taker government, rather it is a crisis government baked by the defense forces of the land. This type of government has no reference and relevance to political science and political studies any where in the world. It is a new form within the range of the support of the people. It is neither set on the constitutional provisions of the thirteenth amendment to the Constitution nor is it resting on the parliamentary model introduced by the twelfth amendment to the Constitution. It is what it is, no more no less.
Notwithstanding anything it does, the constitutional standing of the President of the Republic still remains supreme from the point of view of power at least because of CTG's official accountability to him which is just not thinkable during the operation of a Parliamentary form of government.
It is my understanding that because of his unique simplicity, generosity and non-pugnacious nature that he earned and practiced as a teacher as well as professional over the past forty years, President Professor Dr. Iajuddin Ahmed himself is also responsible, more or less, for giving birth to and continuance of the perception that he has nothing to do but to comply with the decisions of non-party, neutral CTG as he did during the previous party-run democratic government. From an orderly to top brasses in the office of the President all seem to have become habituated to treat the office as a non-pro-active in its entirety. The sooner the true realization comes the better it is not only for the office of the president but also for us all.
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