While the demand for President Mohammed Shahabuddin’s ouster gets louder with the student leaders issuing an ultimatum, Bangladesh has plunged into a constitutional crisis over the question of who will receive the President’s resignation letter since the Speaker of the 12th Parliament has already resigned, experts say.
President Shahabuddin was sworn in as the 22nd President of the Republic on April 24 last year. After the fall of the Awami League government on August 5, he announced that Prime Minister Sheikh Hasina had tendered her resignation. Subsequently, he dissolved Parliament and administered the oath of office to the Chief Adviser and other advisers.
Amid various steps for reforms undertaken by the government, the President came to the limelight recently when he said in an interview that he had no documentary evidence of Sheikh Hasina’s resignation. Following this, several advisers and leaders of the Anti-Discrimination Student Movement have demanded the President’s removal, with Law Adviser Dr Asif Nazrul accusing him of lying and breaking his oath, and the students terming him a collaborator of what they termed the fascist Awami League regime.
Article 52(1) of the Constitution states that the President may be impeached on a charge of violating this Constitution or of grave misconduct, preferred by a notice of motion signed by a majority of the total number of members of Parliament and delivered to the Speaker, setting out the particulars of the charge, and the motion shall not be debated earlier than fourteen nor later than thirty days after the notice is so delivered; and the Speaker shall forthwith summon Parliament if it is not in session.
As per Article 52(4), if after the consideration of the charge a resolution is passed by Parliament by the votes of not less than two thirds of the total number of members declaring that the charge has been substantiated, the President shall vacate his office on the date on which the resolution is passed.
Meanwhile, Article 53(1) states that the President may be removed from office on the ground of physical or mental incapacity on a motion of which notice, signed by a majority of the total number of members of Parliament, is delivered to the Speaker, setting out particulars of the alleged incapacity.
Talking to Bangla Tribune, senior Supreme Court lawyer Ahsanul Karim said: "If the President wants to resign, he will submit his resignation letter to the Speaker. Since the Speaker (Shirin Sharmin Chaudhury) has resigned, as per Article 74(6) of the Constitution, she shall remain in office notwithstanding her resignation and all the functions of the President shall be vested in the Speaker. Yet two articles of the Constitution are essential—Article 74(6) and Article 54.”
Article 74(6) of Part V of the Constitution, which stipulates the functions of the Parliament, states that notwithstanding the provisions of clause (2), the Speaker or, as the case may be, the Deputy Speaker shall be deemed to continue to hold office until his successor has entered upon office.
As per clause (2), the Speaker or Deputy Speaker shall vacate his office (a) if he ceases to be a member of Parliament; (b) if he becomes a Minister; (c) if Parliament passes a resolution (after not less than fourteen days' notice has been given of the intention to move the resolution) supported by the votes of a majority of all the members thereof, requiring his removal from office; (d) if he resigns his office by writing under his hand delivered to the President; (e) if after a general election another member enters upon that office; or (f) in the case of the Deputy Speaker, if he enters upon the office of Speaker.
On the other hand, Article 54 says 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.
In response to a question about how the President will be appointed, Ahsanul Karim said: "The President is not appointed. The President is elected only through the Members of Parliament.
Article 48(1) of the Constitution states: "There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law."
On the question of whether there is a chance to appoint the Chief Justice as the President, Ahsanul Karim said: "There is no chance because the judiciary is a separate department. There is no opportunity to give the powers of the President to the Chief Justice as per the Constitution of Bangladesh.”
Barrister Ruhul Quddus Kajal said: "There are two ways to say that the resignation letter of the former Prime Minister is not in the hands of the President. Firstly, the President takes oath not only to fulfil his duties under the Constitution but also to protect state secrets. Then I think he could not keep that oath. Secondly, after his interview, after the reaction, in front of various parties and Bangabhaban, he made a statement—it is a settled matter. I think, in this situation, he has deviated from his oath.”
Asked how the new President will take the oath of office, the senior lawyer said: "All situations cannot always be dealt with by law. But our Constitution did not have an interim caretaker government when elections were held in 1991. Based on the consensus of active political parties, the national elections were held under the leadership of then Chief Justice of Bangladesh Shahabuddin Ahmed. He said he would agree to hold the election if, after the election, he could go back to his position (Chief Justice). Based on the consensus of political parties, Shahabuddin Ahmed returned to his position after performing the duties of the President.”
On the recent events, Barrister Kajal said after the August 5 changeover, the Supreme Court gave an advisory opinion under Article 106 of the Constitution, on the basis of which the interim government is working.
"Later, the President issued an Ordinance regarding this government. As a result, it does not matter to whom the President resigns. He can resign on his own. There is no need for anyone to resign when such an unusual situation arises. No one has a chance to say that. The interim government was formed at a time when there was no Parliament or Cabinet. Doctrine of Necessity, i.e., the need of the time, will fulfil everything. Now if the President resigns, the interim government can again seek the advice of the Supreme Court.”
He further said: “Article 106 of the Constitution states that if at any time it appears to the President that any question of law has arisen or is likely to arise, which is of such a nature and of such public importance that it is necessary to take the opinion of the Supreme Court, he may refer the question to the Appellate Division for consideration, and that Division may, in its discretion, after due hearing, communicate its opinion on the question to the President.”
On this issue, Supreme Court lawyer Sayed Ahmed Raza said: "There is a constitutional crisis going on in the country because the legitimacy given to the interim government was not completely correct. It contains errors of law and materiality. And now, if the President resigns, that crisis will be more pronounced.
“Now there is no Speaker, no Parliament. The President is elected by Parliament. But if the President makes a reference to the Supreme Court before resigning, that is a different matter. Then the Supreme Court can also hear written statements of political parties or organisations and students demanding his resignation by appointing amicus curiae (friends of the court). There are still some constitutional experts in the country; you can also take their statements. After hearing the arguments of both sides, the Supreme Court can issue a reference through their order. However, if the President resigns, there will be a crisis over the appointment of a new President. The Supreme Court does not have the jurisdiction to issue a rule in these matters.”
He added: "Many people are talking about the current situation as a Doctrine of Necessity (the principle of special circumstances). But as a lawyer, I do not want to call it a Doctrine of Necessity. I think this is the Doctrine of New Normal. As a result, leaving the legal aspects blank, there will be an opportunity to exclude everything later by law. He also commented that a fresh reference should be brought from the court for everyone's acceptance.”