From ABC News ; "Bangladeshi President Iajuddin Ahmed has been sworn in as the head of the interim administration that will oversee national elections in January, in a ceremony broadcast live on television" . As we discussed last week , the Bangladeshi Constitution covers the appointment process for the Chief Adviser position in the care-taker government.

The constitutional requirement for the position of Chief Advisor is in Section 58C(3) of the Bangladeshi Constitution ;

(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

(5) 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 the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.

For the President to take the Chief Advisor position it would require no judge, or no citizen of Bangladesh with suitable qualifications wanting to do it.

Drishtipat, an expat Bangladeshi site has comments on the issue as does Nazim Farhan Choudhury ;

So the President can be the head of the CTG. BUT and this is a big but, he can only do so if "provisions of clauses (3), (4) and (5) cannot be given effect to".

Clause (3) talks of all the Chief Justices. Clause (4) talks of all the Judges of the Appelate Court. Clause (5) talks of a consensus candidate.

So without asking the next in line (ie Mahmudul Amin Choudhury) and those after him, the President cannot jump to Clauses (5) or (6).

The horse has bolted, but I bet the Constitution writers are now wishing they could repeal 58C(6) and make the Chief Adviser position go right through Bangladesh's provincial and local courts for suitable candidates first.

Nazim has a comment on Drishtipat with the points in Iajuddin's acceptance(?) or self-appointment speech;

1. I am addressing you at a grave time.
2. You know a caretaker government is to be announced.
3. As per constitution, KM Hassan refused. Monirul Reza Choudhury is dead.
4. Appealate division's MA Aziz is unqualified as he is CEC.
5. Hamidul Haque refused if there is not consensus between all party.
6. According to Article 58 (5) I had discussions with all parties to find a compromise candidate. While I earnestly hoped that all party will be able to agree to a person. Unfortunately this has not happened.
7. Hence I have to take over as the Chief Caretaker.
8. Law and order has broken down over the last few days and therefore there was no alternative than for me to take over as CTG head.
9. Whatever needs to be done to protect our rigths must be done.
10 I hope everyone including all parties will support me.
11. I am seeking advice of all parties to help me nominate 10 advisers who will help in putting together the Army.
12. I hope there is be peace and within the stipulated time we can hold electons.
13. Allah Hafez and Bangladesh Zindabad.

It should also be noted that the Bangladeshi Constitution excludes the Caretaker Government [CTG] from making policy. From 58D(1);

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.

The Bangladeshi President is a ceremonial role, the fear is that with the President becoming the Chief Adviser to the caretaker government, the President's role will go from ceremonial to controlling executive and legislative functions. Section 58D(1) is supposed to stop this, but given the President's willingness to place themselves in this position of greater power it does not bode well for Bangladesh.

This also acts as a warning for Constitution writers, never leave a clause in which can give one person control of more than one branch of government - ceremonial or not. I have my fingers crossed for the Bangladeshis; liberal democracy has managed to survive past violence and destructive politics there, hopefully this is nothing more than a bump.

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The Washington Post is carrying a letter to the editor from Sheikh Mohammed Belal, a minister at the embassy in Washington DC. It contains several falsehoods.

We have covered the Bangladeshi non-party caretaker government in detail as it is a constitutional innovation that has fallen prey to the unconstitutional behaviour of the Bangladeshi President, Iajuddin Ahmed.

The letter starts:

The Jan. 25 news story "Bangladesh Military Accused of Stalling on Elections" contained broad judgments that are a trifle unfair.

What really happened leading up to Jan. 11 was that the political turmoil had reached the point that it had brought civic life to a standstill. It had devastated the socioeconomic fabric of Bangladesh. Chaos was reigning. Conditions were ripe for the country to become a breeding ground of extremism and terrorism. The world could not afford an ungovernable entity of the size of Bangladesh (145 million people), with all the negative implications.

The Jan. 11 emergency proclamation pulled the country back from the brink of disaster. The declaration was within the framework of Bangladesh's constitution. Subsequent governmental actions have been on a constitutional track. The proclamation has had overwhelming support from the armed forces, a business community battered by continuous strikes and from Bangladeshi civil society.

That is a standard state of emergency claim, only an Aristotlean 'best man' or Cincinnatus could overcome the chaos by adopting emergency powers and saving the constitution by burning it.

It should be noted that the Chief Advisor in the caretaker government is supposed to be a judge. Not the president. Ahmed skipped judges in order to make himself the Chief Advisor and then justified it by claiming it was a state of emergency, forcing him to act in this manner. I think it is fair to say he acted unconstitutionally. Since then he has appointed a former banker into the role but a state of emergency still exists across Bangladesh.

The letter continues:

It is understood that the caretaker government that assumed office after Jan. 11 has a responsibility different from others before it. Unless it can successfully undertake reforms, some of which are structural, it will not be able to create the level playing field that is a prerequisite for holding a free, fair and credible election with the participation of candidates from all major political parties.

The whole point of caretaker governments is that they do not enact policy, they have no legitimacy because an election has been called, and the government that is formed after the election - with popular backing - is the only succesor government that has the popular will and legitimacy to enact policy.

The Bangladeshi constitution is very explicit about this. Belal is arguing that this caretaker government is not a caretaker but an 'emergency government' and has full governmental powers. The constitution contains in section 58(1):

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.

So the caretaker government is acting unconstitutionally by implementing policy, and arguably this includes operating under a legal state of emergency. Certainly, several political leaders from the two major parties were rounded up under that emergency and imprisoned.

This whole process has not been good and has smacked of Ahmed being willing to ignore the constitution, placing doubts on his political honesty as a ceremonial president, as well as the political motives of the caretaker government.

The purpose of a the non-party caretaker government was that it would take politics out of elections and stop interfering in the electoral process by political parties willing to influence the outcome by tampering or coercion. Instead it has been a method for the President to insert himself into politics, though, he had to ignore the constitution to do so.