The New Nation - Internet Edition

Syed Mujtaba Quader

The Doctrine of Necessity is explained by Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', and by the Roman law maxim, 'the well being of the people is the supreme law'. It has become an indispensable element of democratic governance in recent times in Bangladesh. The Doctrine of Necessity can be invoked in cases where it can prevent a greater harm. As opposed to it, the Doctrine of Free Will theorises that man is not an animal of mere necessity and should apply choice or free will to solve its predicaments, and therefore necessity alone cannot be the grounds for any deviation from the established status quo. Common sense dictates that both doctrines have a place in philosophy and law and in our lives and both must be respected to arrive at a peaceful method of discourse to run our lives.

Organised human behaviour in society is governed by law. The needs of society change continuously and therefore the laws of that society must also change to give direction to that society. Justice is not stagnant but is dynamic and it responds to the needs of the times. In democratic societies laws are modified and changed by the Legislative branch of government i.e. the parliament. It is only when parliament cannot give shape to the needs of the society that the society has to fall back on the Doctrine of Necessity as has happened so many times in Pakistan, Bangladesh and other countries. In important issues that are mainly concerned with interpretations of the laws and not the making of the law the higher courts take up the responsibility of giving new meaning to law. For example in the US Supreme Court there are nine justices who vote on contentious issues and the majority vote wins. This is true in almost all democratic judiciaries. This proves that justice is not written in stone but is a dynamic system that moves with the needs and aspirations of the times.

It is not always that the Doctrine of Necessity is invoked by the power that be. It can be invoked by the people and the political parties as well. The conceptualisation and existence of the present Caretaker Government can be attributed to the Doctrine of Necessity as it did not exist as a concept anywhere in the world prior to its conception in 1990. Another very useful innovation recently that can be attributed to it is the formation of the RAB along with its pseudo-legal strategies and methods that cannot be tolerated in more ideological societies. It is not always that attempts to bring about change through the Doctrine of Necessity become successful. The example in Myanmar is a painful example of this.

In our home front, two distinct groups have emerged inside the BNP in the last few months both jostling for relevance and supremacy - the old guard which may be called the ' conservatives' led by Khaleda Zia the former Prime Minster, from inside the jail, and the 'reformists' led by a group of leaders mainly led by Saifur Rahman the former Finance Minster. Both sides have their supporters inside the party and outside of it. The ostensible split in the party has obviously been brought about by the political events of the last 12 months and does not represent any fundamental change in the party policy; rather, it only reflects BNP's reaction to the changed political realities of recent times. Although the changes inside the party have still not taken a definite concrete shape with both sides claiming loyalty to Khaleda Zia, we may safely assume that this schism shall continue for some time until a way can be found to unite the two once again. The old guard who see their political survival by clinging to the persona of the Begum are doing exactly that, i.e. to hang on to Khaleda Zia at all costs. The reformists are veteran politicians who can smell change in the political air and want to adapt to that change for political survival. However, they are still not very certain of the implications of the changes and so do not want to disassociate with the Zia image so early as this may result in their political suicide.

It is with this background that the Election Commission has decided to call the 'reformist' faction to talks scheduled for the 22nd of this month based on what they are calling the Doctrine of Necessity and with this step has put their weight behind the 'reformist' faction and has intentionally or unintentionally increased their political relevance and standing. This has ignited sharp reaction in the other camp causing them to threaten court action. It appears that the BNP constitution has many flaws and inadequacies and moreover the BNP party hierarchy has habitually violated or neglected many of its provisions over the years. Article 70 of the Bangladesh Constitution has made it certain that elected MPs must support the party chief in order to keep his seat in parliament. In this way the people of the country along with all the other political and non-political institutions have been forced to take political sides openly for years ensuring the political polarisation of the country along party lines. The BNP party for all practical purposes therefore has become a national institution where the general public should have a say in party matters also.

In this situation the imperfectly drafted BNP party constitution cannot be the guiding document that guides the destiny of this nation. The desires and needs of the general public who depend so much on the sound functioning of this party must be given heed by any adjudicating authority. Therefore the benefit of doubt if any cannot be allowed to be decided by 'the letter of the law' and the EC may have been quite correct to have decided upon this issue by the Doctrine of Necessity.

The Awami League is also probably watching the developments inside the BNP with quiet curiosity and consternation. Because if the 'reformist' camp gets the upper hand in the party this would mean the eventual demise of family based politics in the BNP which would have consequences inside the AL as well. The AL has lagged behind the BNP in progressive thinking in the recent past with no attempts at reorganising or reforming the party but instead has relied heavily on the image of its leader Sheikh Hasina.

In fact, at a time when this nation is embroiled in self analysis and introspection, the Doctrine of Necessity may be the only tool left to correct some of the wrongs and inadequacies of the past that still haunt us today. The nation, before it can go full steam ahead in development must come to terms with sticking issues like the war criminals of 1971 and the writing of the proper history of our independence struggle. The time may have arrived when we can face up to the actual facts pertaining to the period that led to our becoming independent instead of having to re-write history each time a new government comes to power. For this we need to increase the width of our vision and study the events of history with a neutral mind.

A channel in this direction would be to examine the struggle of independence that brought about the birth of Pakistan for which many of our brethren had fought for and sacrificed. It should be noted here that East Pakistan existed for only 24 years. Prior to that the major political force in British India that brought about the birth of Pakistan from the colonialism of the British was the Muslim League. Many in this country possibly do not know that the Muslim League was formed in Dhaka in the year 1906. The leadership for the birth of Pakistan was given to a large extent by towering personalities like Sher-e-Bangla Fazlul Haque and Shaheed Suhrawardy and scores of other notable Bangladeshis.

Not being able to connect our independence struggle that started a long time ago, some say, way back in 1857 through the Sepoy Mutiny, to the struggle of independence in 1971 that brought about the birth of Bangladesh is the reason why so many dichotomies exist in our society today. To be completely ignorant about an independence struggle that we participated in and which lasted for about 100 years denies us the fruits of that labour. The Doctrine of Necessity would be well utilised if a fair assessment could be made in this regard and put into our history books once and for all.

Until the time that we have a properly functioning parliament which can make time relevant laws and fulfil the promise of independence this country will have to live with the Doctrine of Necessity from time to time. This is true for all, the government, the political parties and the people in general. So let us make most use of it without demur.