Bangladesh Through the Prism of Doctrine

Bangladesh is currently experiencing a political and constitutional vacuum as a result of Prime Minister Sheikh Hasina’s abrupt resignation after fifteen years in office. To re-establish order and steer the country towards fresh elections, the military declared the establishment of an interim administration, which includes lawyers, professors, former government officials, human rights activists, student leaders, and other prominent members of Bangladeshs civil society in the ensuing power vacuum. But this temporary administration is enshrouded with legal conundrums.

Any interim or caretaker administration formed after 2011 was deemed unconstitutional by the 15th Amendment, which was controversially passed by Hasina’s government without the backing of many political parties or a referendum. This amendment destroyed a system essential to guaranteeing free and fair elections and peaceful handovers of power in Bangladesh. Now that the constitution has declared the interim government’s very existence to be unlawful, the nation faces a difficult decision. Debates erupted questioning the legality of the interim government given its absence in the constitution.

The circumstances highlight the critical role that legal doctrines can play in resolving these kinds of issues since they offer the means to balance the needs of the temporary administration with the overturned constitutional order. Constitutional integrity is protected by legal doctrines, particularly during periods of political unrest. Reviewing these legal theories is essential since Bangladesh is on the verge of another possible political catastrophe. Legal doctrines offer an organized method for evaluating conformity with fundamental legal concepts. They can help to assess whether the temporary administration in Bangladesh is functioning in accordance with accepted legal standards and guidelines, guaranteeing that its actions are legitimate and intended to preserve democratic continuity. This post examines how legal doctrines can support the provisional administration and thereby stabilize Bangladesh’s democratic system.

The will of the people

The doctrine of constitutional supremacy places the constitution at the vertex of all the sources of law. Pursuant to this doctrine, the constitution trumps any other norm in case of conflict or inconsistencies. This hierarchal doctrine enshrines the constitution with all-powerfulness.

It is pertinent to mention that the constitution should be interpreted as a whole. The preamble of Bangladesh’s constitution declares constitutional supremacy. This is further mentioned in Article 7 of the Constitution. The Article states that all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under and by the authority of the constitution. Article 7(2) qualifies the constitution as the solemn expression of the will of the people and even labels it as the supreme law of the Republic.

The preamble of the constitution begins with “We, the People of Bangladesh.” These words reflect the collective mind of the people of the nation. “Will of the people” as mentioned in Article 7, is not mere fiction. It provides a critical lens enunciating the supremacy of the constitution intertwined with “the solemn expression of the will of the people.”

Hasina’s government became increasingly disconnected from the very people it was supposed to serve. The protests, which began as calls for more equitable access to public employment, swiftly turned into a widespread movement opposing Hasina’s autocratic leadership. The student-led mass movement echoed the demand for justice, accountability, and a return to democratic principles.

The formation of the interim government might seem illegal if gauged solely from a textual perspective. However, an intentionalist interpretation reflects the direct manifestation of the will of the people. The primary mandate of the interim government is a peaceful transition to democracy by holding free and fair elections. The formation of an interim government was not the result of partisanship. Rather, it was the collective expression of the leaders of the student-led mass uprising, representatives of the major political parties, and key members of the civil society. It is reminiscent of the Roman law maxim urged by Ivor Jennings that “the well-being of the people is the supreme law”.

The Doctrine of Necessity

This doctrine emanates from a maxim propounded by the medieval English jurist Henry de Bracton who stated “that which is otherwise not lawful is made lawful by necessity”. It is used to provide legitimacy to actions which would not otherwise be so. The doctrine of necessity comes into play when there is no other resort. It has traditionally been used (or misused) to provide legitimacy to military interventions. Deviating from this approach, its application can be traced to the establishment of the current interim government in Bangladesh.

Following the flight of Prime Minister Sheikh Hasina, President Shahabuddin dissolved the Parliament. Hence, there was no room to form a government from the opposition (whose representation was a mere courtesy in the former Parliament). Articles 57 (3) and 58 (4) of the Constitution allow the Prime Minister to remain in office after resignation until a successor takes office. Since Hasina fled the country, her holding office was no longer an option. This created a historically unprecedented situation which does not fall within the periphery of Constitutional Law in Bangladesh. The Appellate Division of the Supreme Court of Bangladesh, exercising its advisory jurisdiction, held that the formation of an interim government was legal under the circumstances, given the constitutional vacuum.

South Africa, Nepal, Libya, Tunisia, and Iraq formed interim governments going outside the edge of their respective constitutions. The current scenario in Bangladesh is not in tandem with the mentioned countries. However, the formation of interim governments outside the textual constitutional provisions in the face of extraordinary situations is not a new phenomenon.

Guaranteeing a smooth transition

The doctrine of transitional justice highlights the fact that in dire circumstances, drastic measures – such as the installation of transitional governments – are required to avert further instability and violence. In line with the doctrine, the principal duties of the interim administration are to bring charges against perpetrators of human rights violations, to carry out institutional changes, to prevent such violations in the future and to establish a constitutional order. Its legitimacy stems from its obligation to ensure justice and restore the rule of law throughout the transition period, even though the departing regime may consider the interim administration as illegitimate. Shortly after taking office, the interim administration of Bangladesh proved its commitment to redressing the historical injustices associated with the ‘Aynaghar’ detention facilities by signing the UN Convention on Enforced Disappearances.

Furthermore, the intervention of Sheikh Mohamed bin Zayed, President of the UAE, in pardoning 57 Bangladeshi nationals imprisoned for protesting demonstrates the international recognition and support for the interim government, thereby enhancing its legitimacy. Taken together, these measures show how the Doctrine of Transitional Justice supports a stable and lawful handover to an interim government in Bangladesh.

By fostering peaceful societies, guaranteeing justice for all and creating accountable institutions, transitional justice and constitutional order jointly advance UN SDG 16. Both, the political elite’s approval and widespread popular acceptance, are necessary for transitional justice and constitution-building following authoritarianism or violence, as seen in Bangladesh. Given Sheikh Hasina’s authoritarian practices, which included extrajudicial killings and the repression of dissent, the interim administration can use transitional justice to address these issues.

The Doctrine of Popular Sovereignty

In the context of Bangladesh, the doctrine of  popular sovereignty  is pivotal as it proclaims that legitimate authority derives from the will of the people. In order to properly implement this theory, transitional or interim administrations must ensure that, through open and inclusive procedures, their decisions represent this will. To ratify new political arrangements, electoral bodies should supervise free and fair elections or referendums, and civil society should campaign to represent a range of viewpoints.

By promising free and fair elections and acknowledging public aspirations for a just administration, Bangladesh’s interim government asserts legitimacy under the doctrine. The new administration was required since Sheikh Hasina’s authority lost credibility as a result of repression and a disdain for popular opinion. Furthermore, the doctrine is also based on the innate right of the people to govern themselves. The legitimacy of the current interim administration in Bangladesh is derived from the widespread protests that exemplify this right. Restoring it will respond to Hasina’s denial of the people’s ability to influence their government democratically.

The judiciary should apply the people’s will to the interpretation of laws and constitutional requirements as well; the coming month will reveal if this is truly put into practice.

A transformative path to stabilizing Bangladesh can be provided by utilizing the doctrines mentioned above. This can ensure a return to the rule of law and renewed confidence in democratic institutions for lasting peace and stability.