Constitutional Analysis
Advisory opinion: Metaphor of PIL?
It is often argued that the Constitution of Bangladesh in its present form has made the President a titular one. It has shrunk the role of the President in such a manner that the President feels isolated in a larger constitutional canvas. But the President is gifted with a very unique power of seeking advisory opinion from the Supreme Court under Article 106, which runs as follows: “If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.” Some elements of this provision are to be noted, firstly; it should appear to the President that a question of law has arisen or is likely to arise, secondly; this may appear to the President “at any time”, thirdly; the question should be of such a nature and of public importance that it is expedient to obtain the opinion of the Supreme Court, and lastly; the Appellate Division would render its opinion “as it thinks fit.” The linguistic vista of this Article is a temptation to unfold the interpretative horizon of the constitution for strengthening the trends of rule of law and constitutionalism in Bangladesh. Under the present political reality, it is assumed that many 'law questions of public importance' are like to arise in the days to come. It is aspired that Article 106 may appear to be very significant to the new president in any probable juncture.
It is often claimed that in case of seeking advisory opinion under Article 106, the President can not swim beyond the wish of the government i.e. the Premier. In the face of any exigency of seeking any Reference to the Supreme Court of Bangladesh, the head of the state, it is said, is not constitutionally free to move on his own under Article 48 (3). Article 106 is said to be read with Article 48(3) which says 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.
Apart from this, it is further argued that under Parliamentary democracy, reintroduced in 1991 through 12th Amendment to the Constitution, the President constitutionally cannot apply Article 106 even if it is unanimous call of the people. The 12th Amendment to the Constitution was passed unanimously by all the Members of Parliament belonging to different political parties in the Fifth Parliament.
Keeping this traditional view aloof, President's power of seeking advisory opinion under the present constitutional set up may be viewed from a different angle. The reasoning put forwarded above, it appears, is based on one-eyed assumption. The language of Article 106 is couched in wide terms which provide that any question of law having public importance may be referred by the President for consideration of the Appellate Division. ATM Afzal J. rightly observed in en masse resignation of Mps Reference in 1995: “The discretion is entirely his [of the President] which can not be doubted or questioned. The expediency, or the motive, political or otherwise, or bonafides of making Reference can not be gone into by the Court. The President's satisfaction that a question of law has arisen, or is likely to arise, and that it is of public importance and that it is expedient to obtain the opinion of the Supreme Court justifies a Reference at all times under the Article.”
Undeniably, government's interest is a factor in choosing the subject matter of Reference. But, till this date, we lack any precedent to the effect that any President of Bangladesh is rebuffed by the Supreme Court on the ground that he has not consulted with the Prime Minister and so on. Even proviso to Article 48(3) has given an indication that whether the President has consulted with the Prime Minister or not and if so, what advise has been tendered, is a matter cannot be brought under judicial scrutiny. This should encourage the President to apply his conscience in case of dire necessity. However, it should not be overlooked that through personal charisma, wisdom the President can always take the Prime Minister into confidence to pay heed to his desire.
At this point, the question of institutionalisation of the post of the President comes into play. In exercising the power of invoking advisory opinion in favour of the prejudiced nation, the statesmanship and official oath (protect, defend and safeguard the constitution) becomes much more important than that of alleged constitutional limitation of the President. It is to be remembered that the marginal note to Article 106 of the Bangladesh Constitution has used the word 'Advisory Jurisdiction' not 'President's Function'. This jurisdictional dimension of the Appellate Division puts the President in an advantageous position to be aggrieved for the cause of the countrymen, thereby extracting the best benefit possible from this mechnasim under Public Interest Litigation (PIL) jurisprudence.
The focal point of statesmanship and the Constitution is the people. So, when the fate of the people is at stake, when the Constitution is at peril, resort to the guardian (the Supreme Court) of the Constitution becomes the most desired option. It is submitted that the Supreme Court has the responsibility of ensuring that a Constitution, however flawed it may be, is given an interpretation that promotes the working of the Constitution in a manner that is consistent with constitutionalism. N.S. Bindra, a leading authority on interpretation emphasises the sui generis character of constitutional interpretation. To quote N. S. Bindra: “A democratic Constitution cannot be interpreted in a narrow and pedantic sense. It is the basic and cardinal principle of interpretation of a democratic Constitution that it is interpreted to foster, develop and enrich democratic institutions. To interpret a democratic Constitution so as to squeeze the democratic institutions of their life giving essence is to deny, to the people or a section thereof the full benefit of the institutions which they have established for their benefit.”
We can easily precede the post of the President amongst all other 'democratic institutions'. So, there is at least an academic scope to argue that President's power under Article 106 should not fall within the purview of Article 48(3) of the Bangladesh Constitution, which has restricted the exercise of the President's function subject to the Prime Minister's consent. It is high time to think whether President's power of invoking advisory opinion can be forged and developed as a technical extension and isomer of Public Interest Litigation. It can be said that seeking advisory opinion of the Appellate Division is somewhat like the President's PIL. Metaphorically, this can be termed as the only original jurisdiction of the Appellate Division of the Supreme Court. In any case, let the content of Article 106 itself be the subject matter of reference where, the constitutional scope of president-prime minister relationship may be explored.
However, it is to be admitted that public opinion is not well formed and convinced about judiciary's capability to play an effective role in dismantling the Constitution from the garb of politics. In such a Bangladeshi polity, president's move for advisory opinion may be seen from a meticulous eye. But given the circumstances, especially evaluating the advisory-opinion-worthy instances that frequently occur in our national life, it would be unwise to deny the court's role in times of juncture. Collective wisdom of the Supreme Court definitely can foster a more dependable constitutional pattern from the shadow of politics.
The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.
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