Opinion: Powerless president now all-powerful?

All of a sudden the ruling Awami League leaders seem to have made President Abdul Hamid all-powerful for the formation of the new Election Commission by appointing the chief election commissioner and other election commissioners.

Two AL leaders—General Secretary Obaidul Quader and Joint General Secretary Mahbubul Alam Hanif--in separate programmes yesterday claimed that it was the jurisdiction of the president to form the new EC, according to media reports.

Quader also said the president would form the new EC the way the president had formed it in 2012 through a search committee according to the constitution.  

They made the claim to reject the BNP's demand for holding discussion with BNP and other political parties over the formation of the new EC in next February. Formation of new EC appears important as it will conduct the next parliamentary election.

Their claim however is misleading. There are some serious anomalies between their claim and the provisions of the constitution.

If one reads only the Article 118 of the constitution, they may get an impression of the president's jurisdiction over the formation of the EC as according to this article, the CEC and other election commissioners will be appointed by the president.

But Article 118 cannot be read in isolation from the constitution's article 48 (3) that clearly says: "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 pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister."

Even in these two cases, his discretionary power is very nominal. Because he has no option but to appoint the leader of the majority party in parliament as the prime minister.

And in case of the appointment of chief justice, the president is expected to appoint the senior most judge of the Appellate Division.

When Article 118 is read along with Article 48 (3), it becomes clear that the president's jurisdiction over the formation of the CEC and other EC members is misconstrued.

As the president must act on advice of the prime minister his powers are in real sense exercised by the prime minister. The presidency is a ceremonial office with no effective power.    

The remarks regarding the search committee is also not correct. There is no constitutional provision over the formation of a search committee.

In December 2011, the then president held discussion with political parties seeking their opinions over the formation of new EC. He later formed a search committee asking it to propose names of individuals to be appointed as the CEC and election commissioners. But finally, the then president had to make the appointments on advice of the prime minister.

This time, the president must make the appointments on advice of Prime Minister Sheikh Hasina. According to the constitution, he will just follow the advice. He has no authority to do anything on his own. This means he will appoint those as CEC and election commissioners who will be picked by the premier for the appointment. 

Therefore, the powerless president may be made powerful in political rhetoric for gaining some political mileage. But this does not give him any authority to exercise. This will only be creating confusion about the president's real powers.