Can We Overlook Inherent Power of 11th Amendment?

30 March1996, Daily Star

BNP’s acceptance of the concept of the caretaker government and its subsequent passing of the 13th Amendment by the controversial 6th Sangsad, of course, whatever interpretation it may have from the opposition, is, in fact, a great victory of people’s democracy. But as ill luck would have it the nation had to pay much for it, which could have been averted long time ago even by applying the implied power of the 11th Amendment.

A decree or a proclamation or an ordinance or a constitutional provision or an amendment on whatever ground or logic it is made, the same can never be stripped of its inherent/implied potentiality that deserves to be used repeatedly under the similar circumstances, if a need arises. This can better be realized with a reference to the fundamentals of inductive logic as follows:

1) Law of Causation implies “nothing comes out of nothing and every occurrence has a number of causes, remote or near’. In fact, the root cause gets founded and matured by the next following cause/causes and the process continues till the finality is arrived at. Every occurrence is the product of not one cause but a number of causes. That’s why when we find an occurrence we should not be too smart to point finger at the immediate past cause as the root of the occurrence, rather for a better understanding, we should go into the depth to detect that caused it to occur.

2) Law of nature means that ‘nature behaves in the same way under the similar circumstances.” Usually nature maintains uniformity of its behavior under the given circumstances. If there is rain or cloud today, there shall again be rain or cloud after a cycle of time provided the weather has the same configuration of elements. So, there is nothing to be worried or excited at such natural a repetition

With this reality and truth in the right perspective, let us have a look at the statement of the then home minister Abdul Matin Chowdhury who on September 27, 1995 told the 5th Sangsad, “We welcome the proposal of JP Acting Chairman Mizanur Rahman Chowdhury about the possibility of the formation of a caretaker government and a solution can be reached through negotiations.” What was Mizan Chowdhury’s proposal that even convinced the BNP government in the wake of continuous hustling between Khaleda Zia and Sheikh Hasina over the locus standi of caretaker government to be incorporated in our constitution is now really a matter of interest?.

In actuality, on September 26, 1995, JP Acting Chairman Mizanur Rahman Chowdhury made a statement to the press floating an idea about the possibility, viability and reality of a caretaker government under existing situation. The veteran parliamentarian said, 11th Amendment by which the caretaker government headed by Chief Justice Shahabuddin Ahmed and his coming to the office of the President of the Republic as Acting President and going back to the office of the Chief Justice were justified and validated, has its inherent power even today to go for a caretaker government as the situation is ripe enough to do so. He asserted “what we- BNP, AL, JP, Jamaat and other parties concerned- need now is that we have to reach a consensus formula upon which the ruling BNP shall resign paving way for the said caretaker government and which shall duly be incorporated into a bill and passed in the first session of the next Sangsad. The JP Chairman specifically pointed out that this formula could be like that the incumbent cabinet led by Khaleda Zia should resign first to the President: secondly, President should ask, as per arrangement, any body of BNP to form the cabinet which shall be declined out rightly and thirdly, President shall then dissolve the Sangsad followed by instant formation of the said caretaker government as per consensus formula reached at beforehand. This is very much pursuant to Article 57 (2) and (3) dealing with the tenure of the office of Prime Minister.

If analyzed in the light of the fundamentals of inductive logic Mizan Chowdhury’s formula is found to have conceived a few deniable truths/propositions such as:

a) If we were in a position to go for a caretaker government even at the absolute absence of any precedence, convention, custom, value and norm, constitutional provision or amendment, or ordinance even either in Bangladesh or anywhere on earth, why not we again be in a position to repeat the same under the similar ripe and demanding circumstances?

b) How can we- politicians, political parties, constitutional experts, political scientists, ADAB, FBCCI, intelligentsia, professionals’ and non-professional’s group of various shades of opinions and affiliation including the donor countries- deny that the 11th Amendment has already been a landmark constitutional precedence not only for Bangladesh but also for others under the same demanding situation?

c) This makes the highly-discussed “presidential reference” unnecessary and redundant and “doctrine of necessity” to be applied by Supreme Court, as demanded by the opposition, could smoothly be applied by the political parties concerned as happened in 1991.

So, instead of wasting time, energy and financial back-up for debate, controversy and outsmarting, everybody should have been, and should be sincere and serious enough to go for the right step at the right opportune moment. But neither BNP, nor AL, nor Jamaat, nor JP made any further attempt to give it a life.

What is more interesting to note that is AL organizing secretary Mohammed Nasim while commenting on the government’s acceptance of or positive attitude to Mizan Chowdhury’s formula reacted stating, “Our leader Sheikh Hasina has already submitted a formula.” He, to speak the truth, just outsmarted the JP acting chairman Mizanur Rahman Chowdhury, whatever weight, value, appeal and reality his formula might had. Did Mizan’s formula actually contradict AL’s stand or Jamaat’s concept? Both in context and content, it definitely did not. And there is nothing to wonder if anybody just now likes to add here to such a proposition that “ The long standing crisis would have been averted otherwise, had Mizan’s formula been allowed to be workable as a possible solution or at least given a chance to be discussed.”

Here a reference can be made to a story of Albert Einstein. The story goes like this: A man basically known to Einstein as a fool who used to visit him from time to time; once came and saw the scientist making a cage. After passing a few minutes, he asked Einstein, “What is the use of the cage?” “It shall be used as an abode for birds”, replied the scientist with an as usual indifference. “Why are you making two doors, one big and the other small?” he questioned curiously. “Because the big one shall be used by the mother while the small one shall be used by the children” the scientist responded quickly with a sense that the fool might stop voluntarily now. “Will mother and children stay in the same room of the cage?” he posed further, of course, very readily. “Yes”, replied the scientist with a sense of great satisfaction. “Well, Sir, if they live in the same room what is wrong to use the big one only?” he asked with a determination/assertion. Looking at the man Einstein just uttered, “That is indeed an excellent idea.”

Here the intrinsic truth is that even a scientist of the great weight like Einstein did not feel ashamed of correcting his mistake detected by an ordinary man whom he so long treated as a fool. But, to our utter surprise, politics in today’s Bangladesh is hardly in a position even to weigh a valuable suggestion like Mizan’s formula.

In fact we should not under any circumstances let us die into oblivion that politics is both a science and an art and hence, it is a compromise of give and take depending on time, space and dimension. Thanks to Anwar Hossain Monju, JP Secretary General, for his strong sounding against what have meanwhile clouded our political firmament- politics of outsmarting, politics of obstinacy, politics of vote-rigging, politics of no-democracy within the party structure and politics of no far reaching welfare oriented program within or without the government

How can we escape the universal appeal of the sayings of the great novelist Leo Tolstoy, who in his famous “Three Questions” approach pointed out very specifically without any ambiguity and doubt that----

a) The most important time in anybody’s life is now; because now is the only time when we have a breath to talk and move; and everybody should utilize the moment to the best of his ability. But as an individual, a group and a nation how are we passing our valuable now?

b) The most important subject is what is around us. Because if anybody moves elsewhere setting aside his surrounding and obligated responsibilities, no progress/advancement can be achieved at all in the end. What are we doing to uphold ourselves being respectful and faithful to the surroundings of now?

c) The most important object/purpose is to ensure the betterment of elements, animate or inanimate, through various ways and means; because if we do not take care of those by chalking out different pragmatic program and embarking upon accommodative initiatives our present and future cannot be guaranteed in any analysis, simple or complex.

We have to, therefore, look forward with a hope of future filled with positivism and realism; there must be a light to pass the dark proclaiming the dawn of conscience and logic.