Law analysis
In search of a President with power
In search of a President with power
M. Jashim Ali Chowdhury
Published in the Daily Star, Law and Our Rights, August 11, 2007
President is the constitutional head of the People's Republic of Bangladesh. The President takes precedence over all other persons and exercises the powers and performs the duties conferred on him by the Constitution and by any other law. [Article 48(2)] Furthermore, all executive actions of the government are expressed to be taken in the name of the President. [Article 55(4)]
Though theoretically he is above all, but in reality he is a titular head performing ceremonial functions only, and the real executive power of the state is exercised by the cabinet under the leadership of the prime minister. Except for appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President always act in accordance with the advice of the Prime Minister. [Art.48 (3)]
Though theoretically he is above all, but in reality he is a titular head performing ceremonial functions only, and the real executive power of the state is exercised by the cabinet under the leadership of the prime minister. Except for appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President always act in accordance with the advice of the Prime Minister. [Art.48 (3)]
Powers and functions
President's power and functions stem from two sources, i.e., the Constitution and any other law. The generally exercised power of the President can be divided into the following:
Executive power:
Executive power:
The President is the head of the state and all executive actions of the government are expressed to be taken in the name of the President. The President, by rules, specifies the manner in which orders and other instruments made in his name be attested or authenticated. [Article 55(5)] And the validity or any order of instrument so attested or authenticated shall not be questioned in any court on the ground that it was not duly made or executed.
The President makes rules for the allocation and transaction of business of the government [Art. 55(6)]. The President appoints a member of the Jatiya Sangsad as Prime Minister who appears to him to command the support of the majority of the members of the Sangsad [Article 56(2)]. His discretion comes into play when no political party has a clear majority in parliament. He is then to be satisfied as to which combination of the parties can form a government. Besides the Prime Minister, the President appoints other ministers, state ministers and deputy ministers.
In accordance with the advice of the Prime Minister, the President also appoints the attorney general of Bangladesh [Art. 64(1)], the chief justice, judges of the Supreme Court [Art. 95(1)], the Chief Election Commissioner and other Election Commissioners [Art. 118(1)], the Comptroller and Auditor General [Article 127(1)], and the chairman and other members of the Bangladesh Public Service Commission [Article 138(1)].
The supreme command of the defence services of Bangladesh is vested in the President and the exercise thereof is regulated by law and such law shall, during the period of care- taker government is administered by the President [Article 61]. Article 133 says that it shall be competent for the President to make rules regulating the appointment and the conditions of service personnel in the service of the Republic and until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law.
President may regulate the raising and maintaining of the defence services of Bangladesh and of their reserves, the grant of commissions therein, the appointment of Chief of Staff of the defence services, and their salaries and allowances; and the discipline and other matters relating to those services and reserves until these are provided for by the Parliament [Article 62(2)].
Judicial power: the judicial power of the President originates from article 49 of the Constitution. It says that the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
Legislative power:
The President makes rules for the allocation and transaction of business of the government [Art. 55(6)]. The President appoints a member of the Jatiya Sangsad as Prime Minister who appears to him to command the support of the majority of the members of the Sangsad [Article 56(2)]. His discretion comes into play when no political party has a clear majority in parliament. He is then to be satisfied as to which combination of the parties can form a government. Besides the Prime Minister, the President appoints other ministers, state ministers and deputy ministers.
In accordance with the advice of the Prime Minister, the President also appoints the attorney general of Bangladesh [Art. 64(1)], the chief justice, judges of the Supreme Court [Art. 95(1)], the Chief Election Commissioner and other Election Commissioners [Art. 118(1)], the Comptroller and Auditor General [Article 127(1)], and the chairman and other members of the Bangladesh Public Service Commission [Article 138(1)].
The supreme command of the defence services of Bangladesh is vested in the President and the exercise thereof is regulated by law and such law shall, during the period of care- taker government is administered by the President [Article 61]. Article 133 says that it shall be competent for the President to make rules regulating the appointment and the conditions of service personnel in the service of the Republic and until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law.
President may regulate the raising and maintaining of the defence services of Bangladesh and of their reserves, the grant of commissions therein, the appointment of Chief of Staff of the defence services, and their salaries and allowances; and the discipline and other matters relating to those services and reserves until these are provided for by the Parliament [Article 62(2)].
Judicial power: the judicial power of the President originates from article 49 of the Constitution. It says that the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
Legislative power:
In accordance with the written advice of the Prime Minister, the President summons, prorogues and dissolves Jatiya Sangsad [Article 72(1)]. The President has right to address the Sangsad and may send message thereto [Article 73(1)]. The President is required to give assent to every bill passed by the Sangsad to make it a law [Article 80(2)]. When Sangsad stands dissolved or is not in session the President may make law by promulgating ordinances and such ordinances have the same force and validity as an Act of Sangsad [Article 93].
Financial power:
Financial power:
No money bill or any bill that involves expenditure from public money can be placed before the Sangsad except on the recommendation of the President [Article 82]. No demand for a grant can be made except on the recommendation of the President [Article 89(3)]. The President has the power to authorise expenditure from the consolidated fund as supplementary or excess grants. If the Sangsad in any financial year fails to make any grant the President, upon the advice of the Prime Minister, would have power to draw from the consolidated fund, the necessary funds for a period not exceeding 60 days, stipulated in the annual financial statement for that year. [Article 92(3)(b)]
Miscellaneous powers:
Miscellaneous powers:
The president has to perform some other functions like administration of oaths. The oath of the Chief Justice, the Prime Minister, other ministers, and state ministers, deputy ministers, Speaker and deputy speaker are to be administered by the President under the Third Schedule of the Constitution [Article 148]. Likewise, as the head of the state, the President sends and receives ambassadors and other diplomatic representatives.
All contracts and deeds made in exercise of the executive authority of the Republic are expressed to be made by the President and executed on behalf of the President and these are submitted to the President who causes them to be laid before Sangsad. [Article 145A] The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies are determined by or under act of parliament, but until they are so determined they may be determined by order made by the President [Article 147(1) (b)].
Is the President always subordinate to PM's will?
All contracts and deeds made in exercise of the executive authority of the Republic are expressed to be made by the President and executed on behalf of the President and these are submitted to the President who causes them to be laid before Sangsad. [Article 145A] The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies are determined by or under act of parliament, but until they are so determined they may be determined by order made by the President [Article 147(1) (b)].
Is the President always subordinate to PM's will?
Though Article 55(2) expressly vests all executive power on the PM, it cannot be said that the framers of the Constitution did not intend to give any further discretion. [Constitutional Law of Bangladesh, Mahmudul Islam] Besides the President is oath bound under Article 148. He is oath bound to protect, preserve and safeguard the Constitution which implies some discretionary power on the President [Shamser Shing v. Punjab, AIR 1974 SC 2192]. An important area of discretionary power resides in Article 57(2). If the Prime Minister ceases to retain the support of a majority of the members of Parliament and advises the President to dissolve the Parliament, he may dissolve the Parliament accordingly if he is satisfied that no other Member of Parliament commands the support of the majority of the members of Parliament.
He will not be bound to act on the advice of the PM if it is ex facie unconstitutional. Thus where a PM has lost support of the majority of Parliament members and thus refuses to advice the President to summon Parliament even after 60 days of its prorogation the President may require the PM to submit a written advice in this regard. If the PM denies doing so, he may summon Parliament even without the advice of the PM.
Proviso added to article 48(3) says that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court. Because of this provision there can be no remedy in court if a President chooses to act without or against the advice of the PM. Even prima facie unconstitutional advice of PM is also not covered within judicial scrutiny. However if the government produces the advice showing the advice tendered, it may come under judicial scrutiny. [India v. Jyoti Prokash, AIR 1971 SC 1093]
The President is entitled to be informed by the PM or Ministers of domestic affairs and foreign relationship [Article 48(5)]. He may request the Prime Minister to submit any proposal for consideration in the Cabinet. On paper this may not appear to be a power at all. But having regard to the stature of the post this may have a great influence on the over all state mechanism especially in the context of turmoil between the opposing and rival political parties as we face here in Bangladesh.
Strengthening the role of President
He will not be bound to act on the advice of the PM if it is ex facie unconstitutional. Thus where a PM has lost support of the majority of Parliament members and thus refuses to advice the President to summon Parliament even after 60 days of its prorogation the President may require the PM to submit a written advice in this regard. If the PM denies doing so, he may summon Parliament even without the advice of the PM.
Proviso added to article 48(3) says that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court. Because of this provision there can be no remedy in court if a President chooses to act without or against the advice of the PM. Even prima facie unconstitutional advice of PM is also not covered within judicial scrutiny. However if the government produces the advice showing the advice tendered, it may come under judicial scrutiny. [India v. Jyoti Prokash, AIR 1971 SC 1093]
The President is entitled to be informed by the PM or Ministers of domestic affairs and foreign relationship [Article 48(5)]. He may request the Prime Minister to submit any proposal for consideration in the Cabinet. On paper this may not appear to be a power at all. But having regard to the stature of the post this may have a great influence on the over all state mechanism especially in the context of turmoil between the opposing and rival political parties as we face here in Bangladesh.
Strengthening the role of President
There is wide and deep-rooted belief in the mass people that the prestigious institution of Presidency should not enjoy a mere subsistence. The powers and functions of the President should be increased and the secretariat of the President should be strengthened. Many suggestions and recommendations are already made in this regard. Shujan, a civil society initiative [http://www.shujan.org/] came with some proposals which include the following:* The President should be elected by an extended electoral college which may comprise the members of the Parliament and all elected members of the local elective bodies (like Municipal corporations, Pourashava, Zilla Parishad, Upazila Parishad, Union Parishad) and for that purpose Art 48 (1) may be revised as: 'There shall be a President of Bangladesh who shall be elected by the Members of the Parliament and by the elected Members of the local elective bodies (like Municipal Corporations, Pourashavas, Zilla Parishad, Upazila Parishad, Union Parishad) in accordance with Article 59 of the Constitution.'This proposal seems to stabilise the local government by making its existence as a precondition to the Presidential election. It is unconceivable that there shall not be a President of Bangladesh. Now the non-existence of local government also becomes unconceivable. It will also give the institution a non-partisan fibre.
* President's obligation to abide by the PM's advice may be reduced by amending Art 48 (3) as the following. 'In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause 3 of article 56, the Chief Justice pursuant to clause 1 of article 95, and Chairmen and Members of all constitutional bodies (the Election Commission, Anti-Corruption Commission, Public Service Commission, and Comptroller and Auditor General).'
This will ensure neutrality and status of the constitutional posts and these strong democratic institutions are sure to consolidate the democracy.
* The President may be a solution to the politicisation of universities. He should be assigned a guardian's role in this regard. A new sub article as 48(4) should be added:
'The President as Chancellor of the Universities shall meet the Vice-Chancellors every month and advise them on academic and administrative matters. The University Grants Commission shall serve as the President's secretariat for this purpose.'
Some other proposals in this regard are * There should be an additional requirement of securing at least 50 per cent vote of the members of the opposition in the Presidential poll.
* The requirement of not belonging to any political party or its affiliate association should be introduced for a presidential candidate.
This may seem unreasonable to some as it will disqualify a member of parliament to be a President. Some may argue that already there is a provision in the Constitution requiring the newly elected President to discontinue all his party allegiance by resigning from parliament membership [Article 50(4)]. But it is undeniable that there is difference between pre-requirement and post-requirement of neutrality. Physical allegiance may be abandoned theoretically but it is almost impossible to abandon psychological allegiance which has been badly demonstrated by our contemporary experience.
The writer is a Lecturer at the Department of Law and Justice in Metropolitan University.
* President's obligation to abide by the PM's advice may be reduced by amending Art 48 (3) as the following. 'In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause 3 of article 56, the Chief Justice pursuant to clause 1 of article 95, and Chairmen and Members of all constitutional bodies (the Election Commission, Anti-Corruption Commission, Public Service Commission, and Comptroller and Auditor General).'
This will ensure neutrality and status of the constitutional posts and these strong democratic institutions are sure to consolidate the democracy.
* The President may be a solution to the politicisation of universities. He should be assigned a guardian's role in this regard. A new sub article as 48(4) should be added:
'The President as Chancellor of the Universities shall meet the Vice-Chancellors every month and advise them on academic and administrative matters. The University Grants Commission shall serve as the President's secretariat for this purpose.'
Some other proposals in this regard are * There should be an additional requirement of securing at least 50 per cent vote of the members of the opposition in the Presidential poll.
* The requirement of not belonging to any political party or its affiliate association should be introduced for a presidential candidate.
This may seem unreasonable to some as it will disqualify a member of parliament to be a President. Some may argue that already there is a provision in the Constitution requiring the newly elected President to discontinue all his party allegiance by resigning from parliament membership [Article 50(4)]. But it is undeniable that there is difference between pre-requirement and post-requirement of neutrality. Physical allegiance may be abandoned theoretically but it is almost impossible to abandon psychological allegiance which has been badly demonstrated by our contemporary experience.
The writer is a Lecturer at the Department of Law and Justice in Metropolitan University.
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