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Bangladesh is experiencing a history defining moment. Emotion is running high amongst the entire nation. Everyone wants change and total reform in every sector of governance. The newly emerged victorious ‘Generation Z’ wants to ensure that autocracy can never rule again and deprive the people of their basic freedom and liberty. They also want an interim government to be formed with a group of neutral and sound minded patriots.
After the fall of Awami League, it is a necessity to form an interim government to ensure stability and order. Although the interim government’s primary role is to ensure peaceful transition through election, Generation Z is not ready to accept another elected government before overhauling the entire State machinery through an interim government who will have no personal agenda and is motivated to put the country first.
No changes will be long lasting unless the interim government is formed in accordance with the constitutional mandate. Although no one will object to the desire of the students at the moment, it will be at the elected government’s mercy if changes are not made complying with the constitutional order.
After the Supreme Court’s judgment on caretaker government in 13th Amendment Case, under the present constitution, an interim government can be formed as per Art. 57(3) and 58(4) of the Constitution.
These Articles state that after the dissolution of parliament the ousted PM and ministers shall act as an interim government till the newly elected government is in office. Since the ousted PM and many ministers have already fled the country and their holding office itself was through a controversial election, it would be unrealistic to suggest that the constitutional provisions should be followed to the letter.
At the time of crisis, strict observance of the Constitution or other laws may lead to absurdity as machaevelli observes that in case of emergency, ‘a strict observance of the established laws will expose [the country] to ruin’. Likewise, Tomas Jefferson in his The Writings of Thomas Jefferson (1893) stated that “the laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself.’ On the contrary, deviation from the constitution may lead to usurpation by unelected power like the ‘one eleven’ government. Since the Asma Jilani case, doctrine of necessity was argued at the time of constitutional crisis in many countries including Bangladesh. Doctrine of necessity mostly used when power was usurped, typically, by declaring martial law and to condone all acts done during such usurper’s tenure.
Present situation in Bangladesh is completely different as the vacuum is created after the collapse of a political regime through revolution led by obdurate and fearless students. As art.7 of the Constitution categorically stated that all powers in the Republic belong to the people and art.13 of the Constitution gave the ownership of the State to the People, nonadherence to some constitutional provision cannot be a hindrance to resolve the constitutional crisis in the country.
Formation of an interim government will be justified by the ‘Doctrine of Continuity’ which requires that all orders of the State must continue and maintained without any interruption. State is constant no matter what the regime is and how the crisis has evolved. State will prevail and function smoothly despite the void created under the constitution. If any deviation of performance under the Constitution is likely, for greater good of the continuity of the State, such deviation is also enshrined within the Constitution itself as it is the solemn expression of the will of the people under art. 7(2) of the Constitution.
The Constitution cannot be read in isolation. It must be read together and interpreted as per its spirit which has been reiterated in numerous judgments of the Supreme Court of Bangladesh. It is a misconception that the formation of an interim government other than under art. 57(3) and art. 58(4) of the Constitution is not permissible. Rather under art.48(2) of the Constitution the Hon’ble President shall, as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law. Such power is not confined to any specific action only, rather it applies to all kinds of power under the constitution including forming interim government when parliament is dissolved and past office bearers are incapable of functioning as per the constitution and against the will of the people, the true owner of Bangladesh.
Formation of the new interim government should not be done by merely passing an executive order by the Hon’ble President. The Hon’ble President should promulgate an Ordinance under art. 93 of the Constitution which will have legislative force and allow the interim government to function not just as mere executives, but a constitutionally ordained functionary under legislative order. This will legitimize the duration of their governance even if the succeeding political government does not ratify the Ordinance as required under art 93(2) of the Constitution.
Regarding the changes of various State machineries, it is not desirable that an interim government, however popular the agenda may be, should bring any changes that are only possible by amending the Constitution. This will allow either judicial intervention or repealing by the ensuing political government thereby frustrating the purpose. Instead, the interim government may, with consensus of major political parties, propose structural changes by publishing white papers through experts which will be implemented by the ensuing political government.
Experience with Constitutional cases in Bangladesh as well as in the subcontinent shows that many popular interim governments fail to legitimize their regime and action as their initial formation was not in compliance with the Constitution. As we have a rare opportunity to streamline the culture and practices of major State machineries with overwhelming public support and amazingly vigilant ‘Generation Z’, such scope should not be wasted due to technicality and carelessness.
The author of this article Barrister Moyeen Firozee is an Advocate of the Supreme Court of Bangladesh
