Message of the 11th amendment to Constitution.

20 June 2000, Daily Star

The concept of a non-party, neutral caretaker government (CTG), newest in the realm of politics and government, mainly based on a consensus formula propounded by tri-partite alliance comprising the fronts led by AL, BNP and Left political parties in particular and later on accepted by the then President and JP Chairman H. M. Ershad, was put into operation on 6 December 1990 even before it had been passed in Parliament. It was justified and validated by the 11th amendment to the constitution at the first sitting of the opening session of the fifth parliament

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Truly speaking, it became an auto-electoral pledge of all the political parties which contested in the polls to the fifth parliament and that’s why no ‘referendum’ was required after it has been passed unanimously by the three hundred and thirty members of parliament with a note of dissent on a different point by barrister Moudud Ahmed, Leader of the JP Parliamentary Party.

It is on record in history that a decree or a proclamation 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 under:

a. 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 enlightened and matured by the next immediate cause and the process continues till the finality is reached. 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 to conclusion abide say that immediate past cause is the root of the occurrence; rather for a better understanding of things, we should go deep into the issues to find the causes that helped mature the happening. When a bomb is exploded, it appeared it was so because it was made to happen that way.

b. 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 even after seven days or a year provided the same weather condition prevails. So, there is nothing surprising about repetitions which occur as a matter of course.

From this point of view, the 11th amendment has become a land mark also in setting an example as to who shall be appointed to the office of the head of a non-party, neutral caretaker government can be made available and ensured even with a continuation of keeping a ruling party in power.

BNP lawmakers in the sixth parliament, widely branded as voter less parliament, instead of applying this inherent power of the 11th amendment devised something new, perhaps, out of their instant political romanticism, which has been manifested glaringly in the article 58C(2) that reads:

"The Chief Adviser and other Advisers shall be appointed within 15 days after parliament is dissolved or stands dissolved, and during the period between the date on which parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his/her cabinet who were in office immediately before parliament was dissolved or stood dissolved shall continue to hold office as such."

Therefore it is found that the said article provides two types of Interim Governments in serial, which are:

a) A party-run, non-elected interim government with Prime Minister and Council of Ministers who were in office immediately before dissolution of Parliament with a view to giving the President 15 days time to make a person available for the office of the Chief Adviser pursuant to article 58C (3), (4), (5) and (6) successively; and

b) A non-party, neutral and non-elected interim government known as non-party, neutral caretaker government with a Chief Adviser and 10 ministers aimed at ensuring a congenial atmosphere for holding free and fair elections to parliament conducted by the Election Commission independently.

So, the questions are:

1). When it is constitutionally decided as to who shall be Chief Adviser of non-party, neutral CTG pursuant to article 58C(3), (4), (5) and (6) in succession then what encouraged or motivated the BNP lawmakers to go for a "stopover" party-run interim government? Why the 15 out of 90 days' timeframe shall be wasted as such? Isn't it redundant?

2). It is also not clear how many days or how much time out of the 15-day timeframe President shall use for each sub-clause?

Therefore, recommendations are:

I. There shall be a constitutional provision to the effect that President shall take initiative 15 days before the dissolution of Parliament to find out a constitutional choice for the office of the Chief Adviser to the non-party, neutral CTG pursuant to Article 58C (3), (4), (5) and (6) accordingly.

2. The 15-day timeframe shall be reallocated in the following manner: 3 days for Article 58C (3); 4 days for Article 58C(4); 7 days for Article 58C(5) and 1 day for article 58C(6) provided that before switching over from one sub-clause to another, there shall be regular press briefings at Bangabhaban or at least a press release from Bangabhaban so that the nation may be apprised of the latest situation coming out of the President's initiative.

3. Sub-clause (6) should be dropped or replaced by the sitting Chief Justice of Bangladesh following 11th amendment to the constitution; because it is not becoming that President should at the same time also be the head of the CTG and such circumstances will make the things more complicated and questionable if the President himself is a political personality which outright stands opposed to Article 58C (7) (b).

4. If a ruling party ever opts for a mid-term poll to Parliament, in that case, Prime Minister, giving President 15 days time limit, shall ask the President in writing to dissolve Parliament which shall be effective from the date of the appointment of a Chief Adviser following Article 58C (3) or (4) or (5) or (6) (replaced by sitting Chief Justice).

We must not forget that 13th amendment has been made with a definite purpose to ensure neutrality and fairness of the persons who shall be running the non-party, neutral CTG at the same time also making the process easy and convincing while giving birth to such government.