Major General (Retd) Syed Muhammad Ibrahim Bir Protik :
The country has been going through unsettled times. The safety and security of the people and the economy is under serious threat. This is not the first time though, that we have had bad times.
Recall the time, December of 1970 to the 25th of March 1971. President of Pakistan, General Aga Mohammad Yahya Khan and Pakistani military junta had one important matter to decide. Whether to honor the results of the popular vote which gave the Awami League enough majority to form the national government of Pakistan; or not to honor? The safety and security of the people and the state of Pakistan at that time depended on the decision of the President or the junta. The military junta had decided that using military force was the best way to ensure safety of the people and the country. Their decision proved to be disastrous. Bangladesh was born. The war was painful one. Pakistan was torn apart; all because of wrong decision.
The Chief of the Bangladesh Army, three star General, Hussain Muhammad Ershad had declared Martial Law. Following nine years, saw the military General struggling to retain the power. Political agitation gradually fumed-up so much that the Bangladesh Military quietly declared it was no more behind Ershad. When he had taken over, General Ershad had declared that he was doing so only to ensure to safety and security of the people of the country. When he was tactfully abdicating power in the first week of December 1990, then also Ershad said, he was doing it for the safety and security of the people and the country. 24 years and three months down the lane of political history, in February 2015, former President Hussain Muhammad Ershad continues to hammer on a point: “only few people had died, I had decided to resign so that people do not have to die for me; now hundreds are dying but the government is totally insensitive.”
Two months after Ershad’s resignation, fresh elections to the parliament of Bangladesh was held, in February 1991. But the supervisory arrangement was very innovative. Political agitation in the country, through out the decade of Eighties, was under three different political cluster or alliance. While all had the common objective of unseating the military General converted to civilian President, all were also unanimous to confess that they did not trust each other. They did not trust the election commission from the days of the General. All political parties unanimously agreed to an innovation. They agreed to a form a government called Care Taker Government. As the very name indicates, it was a transitional or temporary arrangement. In December 1990, the Chief Justice of the Supreme Court of Bangladesh was called in to be the acting President of the country and ensure congenial environment for a free and fair election to the parliament. Justice Shahabuddin, with the help of the Bangladesh Military, achieved wonders. By the first week March 1991 new government had taken over.
In the following five years, the-then opposition party in the parliament, Awami League launched massive anti-government agitation. Awami League demanded a system of care taker government for the next parliamentary election. Good sense prevailed and the BNP government amended the constitution of Bangladesh to incorporate system of care taker government. The system worked in June 1996, as well as in October 2001. The system faulted in October-November 2006. The system got a jolt and finally worked well in December 2008. The Awami League came back to power in 2008. However, here is the irony; the milk-man decided to slaughter the milk-giving cow! The Awami League government, using their parliamentary majority and misinterpreting a short verdict of the Appellate Division of the Supreme Court, threw away the care taker government system into the dustbin.
Somebody had gone to the court, challenging the thirteenth amendment of Bangladesh constitution (the care taker government). It took some years for the High Court Division of Bangladesh Supreme Court to give a verdict; they ruled that, it was not against the spirit of the constitution. The government of Bangladesh appealed to the Appellate Division of the Supreme Court. The court devoted time in late 2010 and early 2011 to the subject. They delivered the now-famous judgment on the subject on 10th of May 2011. On behalf of the panel or Bench, the Chief Justice of Bangladesh Mr. Justice ABM Khairul Haque read out the short judgment. Instead of summarizing, I am quoting the said short judgment in full. QUOTE. “It is hereby declared: (1) The appeal is allowed by majority without any order as to costs. (2) The Constitution (Thirteenth amendment) Act, 1996 (Act I of 1996) is prospectively declard void and ultra vires the Constitution. (3) The election of the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the age-old principles, namely, quod alias non est liciitum, necessitas licitum facit (That which otherwise is not lawful, necessity makes lawful), salus populi suprema lex (safety of the people is the supreme law) and salus republicae est suprema lex (safety of the State is the supreme law).
The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions of making the former Chief Justice of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government.
The Judgment in detail would follow. The connected Civil Petition for leave to appeal No. 596 of 2005 is accordingly, disposed of.” UNQUOTE.
Having read the judgment, most intelligent or learned men may agree on the following implications or elaboration. First point. The care taker government system was declared unconstitutional prospectively, that is to say, from sometime in the future. Second point. The date would be decided by the parliament of Bangladesh. Third point. Although the care taker government system was unconstitutional yet election of the 10th and the 11th parliament may be held under the provisions of the same system, because of the following three age-old principles of law. The first principle is: even if something is apparently unlawful, because of necessity it can be considered lawful. The second principle is: whatever law is needed to ensure the safety of the people needs to be made or approved or practiced because the safety of the people is of supreme consideration. The third principle is: whatever law is needed to ensure the safety of the State of Bangladesh, needs to be made or approved or practiced because the safety of the country is of supreme consideration. However, the honorable judges of the Supreme Court also said that the parliament of Bangladesh had the liberty to bring necessary amendments in the law or the system so as to guaranty that neither the former Chief Justices nor former Judges of the Appellate Division are involved the care taker government.
Something more, very interesting and important, remain to be discussed. Let me remind that the Appellate Division had nominated eight Amicus Curiae (meaning-friends of the court). The short judgment was delivered on 10th of May 2011. The Chief Justice Mr. Khairul Haque went on retirement on 18th of May 2011. After due drafting and finalization, the long written judgment was delivered nearly 16 months later. Critics say there are anomalies between the short and the long judgment. In this column I am not highlighting those anomalies. Instead I am quoting in English language what, the Chief Justice wrote in paragraph number: 1185 and 1186 of the long judgment in Bangla language.QUOTE. “All Amicus Curiae are senior advocates of this court. Their deep knowledge, wisdom, experience and responsibility to the country is beyond question. Majority of the Amicus Curiae opined in favor of keeping or maintaining the care taker government system in some form or the other. They apprehended that, if the care taker government system-in some form or the other-is not maintained then, chaos and indiscipline may be created in the country, during parliamentary elections. All Amicus Curiae are responsible persons. We can not neglect their apprehensions. Therefore, although the care taker government system as invoked by the 13th amendment is against the spirit of the constitution, yet we are compelled to rely upon three Latin Maxim dating back to thousand or more years…..” UNQUOTE. For the readers of this column, the three Maxim have been quoted in the previous paragraph of this column. In paragraph 1186 of the long written judgment it is said: QUOTE. “In the light of the above Maxims or Principles, only the parliament of Bangladesh can take the decision whether the care taker government system would be temporarily kept for the following two elections or not kept.” UNQUOTE.
Unfortunately, the parliament of Bangladesh had taken its decision 14 months before the long judgment was delivered. The parliament had decided not to wait for the long written judgment. The parliament had decided to do away with the care taker government system. The apprehensions of the Amicus Curiae, acknowledged by the Chief Justice, were neglected in full by the parliament. It is therefore a common query in the minds of people, whether the parliament of Bangladesh in mid-2011 acted in the best interest of the security and safety of the people of Bangladesh and the state of Bangladesh, at all. The political agitation in 2012 and 2013 is a confirmation of the apprehensions of the court. The loss of life and property in the days immediately preceding the 5th January election and on the day itself, is a confirmation of the apprehensions of the court. Months of January, February and March of 2015 are also witness to violence and high handedness. The least one could say is the life and property and the people of Bangladesh is not safe now. The state of Bangladesh is clouded by un-safety. If the parliament had heeded to the apprehensions of the court or honored their recommendation in mid 2011, the situation would not have been so bad now. To rectify, harder work is needed.
The best course of action to overcome the present political crisis, is for the parliament of Bangladesh to realize, that they made a mistake in mid 2011. The core spirit of the realization has to be, the safety of the people and the country were neglected with a view to help the political party in power. Mistakes are made by men; they can be rectified by men. Whether the realization will be articulated loudly or quietly, is a matter of political tact.
(Major General Syed Muhammad Ibrahim Bir Protik retired in June 1996. While in service, he was a graduate of The Royal Staff College Camberley England as well as of the US Army War College. He is a popular columnist in Bengali and English. He is also a popular participant in television talk-shows. He leads a political party by the name of ‘Bangladesh Kallyan Party’.)
