Department of Law and Human Rights

The President

The president is the head of the state and of the executive government. He is elected by the members of parliament in accordance with law for a term of five years and he can not be elected for more than two terms, whether or not the terms are consecutive. Notwithstanding the expiration of his term, the president shall continue in his of fice until his successor enters upon office. During the term of office, the president shall not be qualified for election as a member of parliament and if a member of parliament is elected as president, he shall vacate his seat in parliament on the day he enters upon office as president. Before entering the office, the president has to take oath in terms of Article 148 (1):- A person elected or appointed to any office mentioned in the third schedule shall before entering upon the office make and subscribe on oath or affirmation  (in this article referred to as “an oath”) in accordance with that schedule.  From theoretical and constitutional or legal point of view the President is the head of the state; he is also the head of the executive, Because The status of president Article 48(2):- The president shall as head of state take precedence over all other persons in the state and shall exercise the powers and perform the duties conferred and imposed on him by this constitution and by any other law. states that the President, as Head of State, take precedence “over” all other persons in the state. Again,

Article 55(4):- All executive actions of the Government shall be expressed to be taken in the name of the president. This is the theoretical or constitutional status of the President but in reality he is a figure head only ; the real executive power of the state is exercised by the cabinet under the leadership of the Prime Minister. Because firstly Article 48(3) In the exercise of all his functions, save only that of appointing the prime Minister pursuant to clause (3) of article 56 and the chief justice purest shall act in accordance with advice of the prime Minister. provided 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. states that in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice the President shall act in accordance with the advice of the Prime Minister. And secondly, Article 55(2) The executive power of the Republic shall, in accordance with this constitution, be exercised by or on the authority of the prime Minister. provides that the executive power of the Republic shall, in accordance with this constitution, be exercised by or on the authority of the Prime Minister.

Thus like the British Crown the President of Bangladesh reigns but does not govern the country. He is the titular executive and the cabinet is the real executive.

As to the President’s immunity it is stated in Article 5 1 that the President shall not be answerable in any court for anything done or omitted by him in the exercise or purported to exercise of the functions of his office. An aggrieved person may take proceeding against the government of Bangladesh but not directly against the President. Again, during his term of office no criminal proceeding whatsoever shall be instituted or continued against the President.. No court shall issue any process for his arrest or imprisonment.

 The President: Position, Power and Function

Qualifications and Disqualifications of the President j£ Qualifications:

Article 48(4) lays down the qualifications which one must possess for being elected to the office of the President of Bangladesh. These are following:

1.       i.            He must have completed the age of 35 years.
2.    ii.            He must be qualified for election as a member of parliament.
3. He has not been removed from office of President by impeachment under this constitution.
4.  iv.            As it has been conditioned that he must be qualified for election as a member of parliament, he must be a citizen of Bangladesh.

Disqualifications:

1. The President during his term of office shall not be qualified for election as a member of parliament and if a member of parliament is elected as President he shall vacate his seat in parliament on the day on which he enters upon his office as President.

2. The President shall not hold any office, post or position of profit or emolument or take any part whatsoever in the management or conduct of any company or body having profit or gain as its object.

Election of the President

In the original constitution the President was to be elected by members of parliament in a poll by secret ballot as provided for in the Second Schedule of the constitution. But the 12th. Amendment did not restore that Second Schedule. Now after this Amendment as per Article 48 the President is to be elected by the members of parliament in accordance with the law meaning that parliament may by law make provisions for election by open ballot which actually imposes a bar on the exercise of personal freedom of members of parliament in electing the President. A law was accordingly enacted Constitution, Constitutional Law and Politics which provided for that the presidential election was to be done through open ballot.

Term of Office of the President

1. Article 50 says that the President shall hold office for a term of five years from the date on which he enters upon his office.
2. Even after the expiry of his term the President shall continue to hold office until his successor enters upon his office .
3. The President shall not hold office as President for more than two terms, whether or not the terms are consecutive.
4. Before the expiration of his term the President may resign his office by writing under his hand addressed to the Speaker.
5. 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 .
6. In the case of vacancy in the office of the President occurring by reason of the expiration of his term of office an election to fill the vacancy shall be held within the period of ninety to sixty days prior to the date of expiration of the term .
7. In the case of vacancy in the office of the President occurring by reason of the death, resignation or removal of the President, an election to fill the vacancy shall be held within the period of ninety days after the occurrence of the vacancy.

Removal of the President

Before the expiry of his term the President may be removed from his office by parliament. Such removal has two aspects.

 A. Impeachment of the President; and

B. Removal of President on grounds of incapacity.

A. Impeachment¹ of the President

According to Article 52 of the Constitution the President may be impeached on two grounds:

i)                  On a charge of violating the Constitution; or

ii)               On a charge of grave misconduct.

Procedure:

1. The impeachment charge against the President must be preferred by a notice of motion signed by a majority of the total number of members of parliament. The notice must be delivered to the Speaker. The notice must set out the particulars of the charge.
2. The motion shall not be debated earlier than fourteen not later than thirty days after the notice has been delivered to the Speaker,
3. Having received the notice the Speaker shall forthwith summon parliament if it is not in session.
4.  The President shall have the right to appear and to be represented during the consideration of the charge.
5. 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.

B. Removal on the Ground of Incapacity

Under Article 53 the President may be removed on the ground of two types of incapacity: i) physical incapacity; and ii) mental incapacity.

Procedure:

1.  A notice of a motion may be given to the effect that the President has been physically or mentally incapacitated.
2. The notice of motion must be signed by a majority of the total number of members of parliament.
3. The notice must be delivered to the Speaker setting out the particulars of the alleged incapacity.
4.  On receipt of the notice the Speaker shall forthwith summon parliament if it is not in session and shall call for a resolution constituting a Medical Board.
5.  As soon as medical board is constituted a copy of notice thereto shall be transmitted to the President together with a request signed by the Speaker that the President submit himself within a period often days from the date of the request to an examination by the Board.
6. If the President submits himself to an examination by the Board, the Board shall submit its report within seven days of the examination.
7. If after consideration by the parliament of the motion and of the report of the Board the motion is passed by votes of not less than two-thirds of the total number of members of parliament, the President shall vacate his office on the date on which the resolution is passed.
8. If the President has not submitted himself to an examination by the Board before motion is made in parliament, the motion may be put to the vote, and if it is passed by the votes of not less than two-thirds of the total number of members of parliament, the President shall vacate his office on the date on which the motion is passed.
9.  The President shall have the right to appear and to be represented during the consideration of the motion.

Powers and Functions of the President

According to Article 48(2) the sources of the power of the President are two—the Constitution and any other law. The Constitutional powers of the President may be of following five types

A. Executive power;

B. Legislative Power;

C. Financial Power;

D. Judicial Power; and

E. Miscellaneous Power.

Executive Power of the President

1. The President is the Head of state [Article 48(2)]. And all executive actions of the government shall be expressed to be taken in the name of the president [Article 55(8)].
2. The President shall by rules specify the manner in which orders and other instruments made in his name shall be attested or authenticated [Article 55(5)],
3. The President shall make rules for the allocation and transaction of the business of the government [Article 55(6)].
4. The President shall appoint as Prime Minister the member of parliament who appears to him to command the support of the majority of the members of parliament [Article 56(3)].
5. The President shall appoint the Prime Minister, other ministers and of the Ministers of State and Deputy Ministers [Article 56(2)].
6. In accordance with the advice of the Prime Minister the President shall appoint the Attorney General of Bangladesh, judges of the Supreme Court, the Chief Election Commissioner and other Election Commissioners, the Comptroller and Auditor-General, the Chairman and other Members of the Public Service Commission (Articles 64, 95, 118, 127138).
7. The President shall appoint the Chief Justice (Article 95).
8. The President is the supreme commandeer of the defense services of Bangladesh (Article 62).

These executive powers of the President of Bangladesh are more or less similar to those exercised by the heads of other countries of the world. The US President exercises also the same power but his appointing powers have to be approved by the senate; otherwise appointments become illegal. This is because there is the principle of checks and balances in the US Constitution. But in parliamentary, system no such approval from the legislature is required. The executive powers exercised by the President of Bangladesh are similar to those exercised by the British Crown. Like the President of Bangladesh the British Crown exercises its executive powers in accordance with the advice of the Prime Minister and in some cases of the Lord Chancellor.

B. Legislative Powers of the President

1. In accordance with the written advice of the Prime Minister the President summons, prorogues and dissolves parliament (Article 72).
2. The President has right to address parliament and may send message thereto (Article 73).
3. The President assent to every Bill passed by the parliament. Without his assent no Bill comes into law. After a Bill is passed by the parliament it is presented to the President for his assent. Within 1 5 days after a Bill is so presented, the President shall assent to it. However,, the President can return the bill to the parliament for reconsideration after it is presented to him for his assent. But if the Bill is again passed by the parliament with or without amendment by the votes of a majority of the total number of the members of the parliament and it is presented to the President, the President has to assent within seven days failing which the Bill automatically becomes a law’.
4. When parliament 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 Parliament (Article    93).    The   President   cannot   exercise   this   power independently; he has to act in accordance with the advice of the Prime Minister (Article 48(3).

Financial Power.

1. No Money Bill or any Bill which involves expenditure form public moneys, shall be introduced into parliament except on the recommendation of the President (Article 82).
2. No demand for a grant shall be made except on the recommendation of the President (Article 89(3).
3. The President has the power to authorize expenditure from the Consolidated Fund for supplementary or excess grants (Article 91).
4. If parliament 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).

As to these financial powers of the President the last one as provided in Article 92(3) is undemocratic and against the concept of rule of law. Because this power of the President has curtailed the power of parliament in financial matter. No such provision exists in India, Britain or USA, for in a true democratic system not a single penny from the public purse can be spent by the executive without the prior approval of the parliament.

Judicial Power of the President

The judicial power of the President is provided for in Article 49 of the Constitution. It says that the President shall have power to grant pardons, reprieves and respites and to remit, suspend of commute any sentence passed by any court, tribunal or other authority. This power is also called the pardoning power or the prerogative of mercy. The object of conferring this judicial power on the President is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections¹. Taft, C.J. remarked that executive clemency exists to afford relief from undue harshness or evident mistake in the operation of criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. The power to pardon is, therefore, a check entrusted to the executive for special purposes such as to ameliorate or avoid a particular criminal judgment.² This power of pardoning exercised by the President of Bangladesh is practically similar to that in America or England or in any other country. Like in all other countries the President of Bangladesh exercises this pardoning power in accordance with the advice of the Prime Minister. A short explanation of some legal terms used in article 49 has been given below for better understanding of the advanced students.

Miscellaneous Powers of the President

Besides above mentioned powers the President has to perform some other functions like administration of some oaths. The oath of the Chief Justice, the Prime Minister, Minister, Deputy Ministers, Speaker and Deputy Speaker etc. are administered by the President under the Third Schedule of the Constitution. Likewise as the Head of the state, the President sends and receives Ambassadors and other diplomatic representatives. All treaties with foreign countries, annual reports of the Public Service Commission, of the Auditor-General are submitted to the President who causes them to be laid before parliament. (Articles MSA, 141,132).

The Power of the President in a Caretaker Government

Article 58C of the Constitution gives some special power to the President with regard to appointment of the Chief Adviser of the Caretaker Government. Recently this power and his assumption of the post of the Chief Adviser to the Caretaker Government have come under huge criticism.