Bangladesh News

In case of a dialogue on the electoral reforms taking place, the 14-party opposition combine might propose the name of former chief justice Mahmudul Amin Chowdhury as the chief of the next caretaker government.

Sources said if the government really wants to settle the ongoing political dispute through talks and in the process, Justice Mahmudul Amin Chowdhury’s name comes up as an alternative to Justice KM Hasan, the opposition might accept it.

The opposition parties have already decided to go for an intense non-cooperation movement in the form of an indefinite hartal from the day Justice KM Hasan would take the charge of the caretaker government.

They have also announced that they will not participate in, rather resist any election with Justice Hasan at the helm.

Senior opposition leaders said they would now seek to find by consensus ‘a person acceptable to all’ as the chief adviser in line with the article 58C (5) of the constitution. They will however accept the ex-chief justice, who retired next before the last retired top judge.

“We have reservations about Justice KM Hasan as he had been involved with the BNP and is still loyal to the party. But we have confidence in the judges who are not controversial and have no political affiliation whatsoever,” a senior Awami League (AL) leader told The Daily Star.

“Everything depends on the government’s sincerity in efforts to break the deadlock amicably. We hope they will have no objection to Justice Mahmudul Amin Chowdhury as he has always kept aloof from controversy,” added the opposition leader.

Another leader said, “Our demand is very much conforming to the constitution. We want a non-partisan person as the chief of the caretaker government, as prescribed by the constitution.”

He noted, “Yes, we are now at the number five option of the constitution regarding appointment of the chief adviser, but we may still get back to the second option.”

As per article 58C (3), the president will appoint the immediate past chief justice as the chief adviser, taking it as the first option. But if such retired top judge is not available or not willing to hold the office, the president will appoint as chief adviser the person who among the retired chief justices retired next before the last one.

Of the retired chief justices, Justice Mainur Reza Chowdhury was the one to have retired immediately before Justice KM Hasan. But as he [Mainur Reza] died in June 2004, Justice Mahmudul Amin Chowdhury turns up as the next immediate past chief justice.

The opposition has been complaining about KM Hasan since the government raised the retirement ages of the Supreme Court judges apparently to pave the way for him to be appointed as the chief of the non-party interim government.

The 14-party alliance believes that the coalition government had extended the age limit of the judges precisely to have Hasan as the chief adviser.

“This would not have been an issue, had the government not raised the retirement age,” said a top legal expert.

He said if the retirement ages were not extended, the incumbent Chief Justice Syed JR Mudassir Husain would be the chief of the next caretaker government.

According to the previous rules of retirement, Justice Mudassir was supposed to go into retirement on March 1, 2005, he added.

Justice Mahmudul Amin Choudhury took oath as the chief justice in March 2001 and his tenure ended in June 2002. Then justice Mainur Reza Chowdhury retired in June 2003 and the immediate past chief justice, KM Hasan, on January 2004.

A senior lawyer said Justice Hasan will have to decline to take the post [chief adviser] at first, and only then it will be possible if the major political parties agree on an alternative.

The jurist, however, pointed to the constitution and said finding Justice Mahmudul Amin Chowdhury as the chief adviser might be complicated, as the constitution does not clarify whether he (Justice Mahmudul Amin Chowdhury) should be considered or not.

The second option in this regard is not clear as well, he added.

Citing article 58C(3) of the constitution, he said that if the last retired chief justice is not available or is not willing to hold the office of chief adviser, the president will appoint as chief adviser the person who among the former chief justices retired next before the last one.

“Here, it is not clear whether the president will consider appointing from the other former chief justices if the second immediate past chief justice is not found or is unwilling to accept the job,” he said.

“It depends on either side’s sincerity in discussion to work out a solution. Besides, the constitutional provisions should be interpreted positively, not to create chaos,” the lawyer suggested.

The next option enshrined in the constitution said if no retired chief justice is available or willing to hold the office of chief adviser, the president shall appoint to the post the person who among the retired judges of the Appellate Division retired last. Chief Election Commissioner Justice MA Aziz is the last retired judge of the Appellate Division.

Provided that if such retired judge is not available or is not willing to hold the office, the president will appoint as chief adviser the one who among the retired judges of the Appellate Division retired next before the last such retired judge. Justice Hamidul Huq is the Appellate Division judge who retired next.