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Replacing Article 58(3), (4), (5) and (6) and amending others

Dr. Sinha M. A. Sayeed There is no denying the fact that the country is faced with a very frustrating political landscape emanating from the resultant feedbacks of the exercises of gymnastics of the clauses (3), (4), (5) and (6) of Article 58B in particular that deal with the appointment in sequence from last past chief justice to next last past Chief Justice to last retired Judge to next last retired Judge of the Appellate Division of the Supreme Court of Bangladesh to the office of the Chief Adviser of Non-party, Neutral Care-Taker Government and therefore, more important is that without a delay these have to be addressed with a great attention, caution and priority upholding vision and mission of the Constitution(Thirteenth Amendment) Act, 1991 before the re-visit and operation of next Non-Party CTG in 2014.Therefore, to suit the very purposes and having in mind the ongoing dialogues initiated by Parliamentary special committee for constitutional amendment suggestions as follows may be taken into due weights and considerations. Notwithstanding any logic or emotion perceived or held by any shade of opinions, political or otherwise, it is better to plunge the sub-clauses (3), (4), (5) and (6) of Article 58B from the Constitution, In fact, increase of age 65 to 67of the Judges of Supreme Court has put the clause (3) in a very unfortunate political controversy as a result of which Chief Justice KM Hasan had to decline to take over in the face of the serious opposition from AL and others in October, 2006 [atten. to my article 'Hasan Dilemma: Constitutional or Political?' ,Daily Star October 07, 2006 ], clause (4) has been made controversial with conflicting interpretations largely practiced, and being practiced by the jurists from two major political parties [atten. to my article 'Whose Court the Ball lies', 23 October 2006, Daily Star ] while clause(6) has been an object of criticism since its coming into operation and continuance from 29 October 2006 to 11 January 2007 setting aside constitutionally, inter alia, the very spirit of the CTG[atten. to my write-up 'Article 58B [6]: Aladdin's Lamp?', Daily Star, November 25, 2006] making useless markedly Articles58B (1), 58C (3) read with 58C (7)and 61 with a further extra-constitutional proliferation to army-backed Fakruddin-led CTG from 12 January to 29 December 2008. Even during the dialogues with the Parliamentary special committee for constitutional amendment most of the past chief justices, legal experts, lawmakers and political leaders recommended not to appoint retired Chief Justice or retired Judge of the Appellate Judge of the Supreme Court of Bangladesh as Chief Adviser of CTG. Pro-BNP leaders of the Supreme Court Bar Association echoed the same at a press on May 1, 2001[Cancel system of appointing last retired CJ as chief adviser, May 2, 2011, Daily Star] Another convincing point in support of scraping the clause(6) is that it shall give birth to a very perplexing political landscape if Article 54 becomes operative during the period of the operation and continuance of CTG as the article reads: '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'. It is a further negative scene in our parliamentary democracy that since 1972 no speaker from Malek Ukil to the incumbent Advocate Abdul Hamid---because of the common allegation by the oppositions that speaker fails to establish his impartial image for his maintaining strong link, covert or overt, with the majority party/coalition in Parliament that nominated and voted him to the office-- -has been able to enjoy the confidence of the opposition in Parliament [Atten. to my article 'What if Article 54 becomes operative?', Daily Star, November 18, 2006]. So, a new political crisis is sure to be born here. It is best for all to stop here at the outset. One may even argue in favor of retention of yet to be tested sub-clause (5) but reality here in Bangladesh speaks very rough and tough. Because such novel clause (5) stating- If no retired Judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint a citizen of Bangladesh who is qualified to be appointed as Adviser--- cannot under the prevailing diagonally opposed political stands of two leading parties--- Awami League and Bangladesh Nationalist Party along with their alliances---have any mere chance to see the light of the day, It was seen in 2006 how President Iajuddin having been locked in a circular polemics and debates of the two parties on the determination of a constitutional choice as Chief Adviser jumped to clause (6) before the application of clause (5). There may on it be a series of focuses entailing talks, debates, writings and researches both at constitutional and non-constitutional levels; nonetheless, reality is reality that requires to be judged realistically on a balance of theory and practice. During the meeting with parliamentary special committee for constitutional amendment on 27 April 2011 in Jatiya Sangsad Bhaban Prime Minister Sheikh Hasina also President of ruling AL,, who led a 12-member delegation to the talks, made few proposals and, later, at a media briefing in Gonobhaban, the official residence of the premier, she disclosed the details. One of the AL's proposals as alternatives to former CJ-headed CTG under clause (3) and (4) is to introduce a system of forming a 10-member advisory council to an interim government-five from the treasury bench and five from the opposition bench of the parliament. And these 1ten members will select a chief adviser consensually from among themselves. It further sa