Yahya conceded 4. The remaining three merely demanded judicial recognition of (he de facto situation in Bangla Desh. The troops were in barracks, power was with the elected representatives, and Martial Law orders were not being enforced.
Yahya in fact conceded all demands in principle at an early stage. It was the knowledge of Yahya's concession which provoked Mr. Bhutto to demand a separate transfer of power in East and West Pakistan; and in so doing he articulated the concept of two nations by denying Mujib the right to speak for Pakistan. As the dominant force in the west he insisted on a paramount position in that region. This was strongly opposed by the Pathans and Baluchis, who argued that since West Pakistan had ceased to exist as one unit Bhutto could speak only for Punjab and Sind.
Faced with these contrary demands, Mujib was confronted by the prospect of coalition at the centre. While a coalition was acceptable to him in principle he was not willing to concede parity where his party held 167 seats to the PPP's 87. Deadlock was avoided by consensus on the idea that power be transferred in the provinces to the majority party, with Yahya, in the interim phase, staying on in the centre. There was some suggestion that the parties nominate advisers to assist Yahya.
Legal Technicalities
On the question of lifting Martial Law, Justice Cornelius, who had been called in to advise on the legal aspects, first raised the suggestion that Martial Law must remain as the legal cover for the agreement or there would be a constitutional vacuum. This was seen by Mujib as mere legalism, and he pointed out to Cornelius that since Yahya and he had come to a prior political decision to withdraw Martial Law it was not for Cornelius to impose legal obstacles, but to provide the legal mechanism to give effect to the political decision. The escape clause was in fact provided by Mr. A. K. Brohi, Pakistan's leading lawyer, who had invited himself to Dacca and produced his own ex gratia solution to the problem after, presumably, discussing it with both parties. He suggested use of the precedent of the Indian Independence Act under which power was transferred by the Crown to the two sovereign states of India and Pakistan by an Act of Proclamation. This proclamation provided legal cover to all legislative Acts until each state had framed its own constitution. Brohi argued that in the same way, Yahya could transfer power by proclamation and this would provide the cover till the Constituent Assembly had framed a constitution.
This point was accepted by Yahya and Cornelius, and it disappeared from the dialogues at an early stage. Since then it has emerged that Daultana of the Muslim League, and Mahmud Ali Qasuri of the People's Party, again raised the question of a legal vacuum and suggested that the Assembly would have to meet to give legal effect to the proclamation and assume sovereignty from Martial Law. When Daultana posed this to Mujib it was dismissed first because the issue had already been resolved and secondly because any move to put the proclamation to the Assembly would merely prolong Martial Law. At a time when tension was mounting daily the time taken to assemble members and then debate the proclamation was seen as more than the nation could at that stage bear.
