Constitution, legitimacy, and governance: Addressing the hard questions

There are some serious debates around the constitutionality of Bangladesh's interim government. We have seen attempts to justify it both in terms of Hans Kelsen's Grundnorm theory and the existing Constitution. Kelsen's Grundnorm is a sovereign law-giver and a "purely" political authority, which the law accepts as it is, without questioning its validity, legality, or constitutionality. Understandably, the interim government has effective control over the state, and the August political change has become a ground reality. The Pakistani Supreme Court used the Grundnorm as a judicial doctrine of constitutional validation only once in 1960. It has been widely criticised since and never used again for validation of any extra-constitutional changes either in Pakistan or Bangladesh. Therefore, in this article, we do not intend to enter into the nitty-gritty of the Kelsenian thesis. Rather, we explore whether the attempts to justify the interim government in terms of our existing Constitution are viable. We argue that the existing Constitution-based justifications are self-defeating vis-à-vis the Kelsenian logic. Those are not viable within the framework of the existing Constitution either. We propose that the interim government is best described as residing in a "constitutional emptiness," which might need constitutional validation after a democratic election in the near or distant future.

Bangladesh's current interim government is thriving in a "constitutional emptiness" and will require a retrospective validation either within the existing or in a potentially "new" Constitution in the near or distant future.

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At the very outset, we stress that Chief Justice Munir of the Pakistan Supreme Court, the pioneer who converted Kelsen's theory into a doctrine of constitutional adjudication, perceived the overthrowal of a constitutional regime as an extra-constitutional phenomenon which does not seek to justify itself with reference to the previous constitutional framework. Chief Justice Munir did not attempt to justify Ayub Khan's asssumption of power with reference to any of the provisions of Pakistan's 1956 Constitution. He was content claiming that an effective revolution had occurred, and the 1956 Constitution got dislodged. Ayub gave a new Constitution of his choosing in 1962.

In the 1970s and 80s, Bangladesh Supreme Court took a slightly different approach in several cases, where they argued that, in those types of situations, the existing Constitution, though not dislodged, might have lost its supremacy (State v Haji Joynal Abedin, for example). Accordingly, when elected governments were formed later, they constitutionalised those scenarios through the Fifth and Seventh Amendments, essentially confirming that those regimes were extra-constitutional, to say the least. In 1991, we saw Chief Justice Shahabuddin Ahmed's post-revolution government validated by the Eleventh Amendment, confirming a similar understanding of revolutionary changes. Therefore, it appears rather self-defeating to argue on the one hand that a Kelsenian revolution has overridden an existing constitutional setup and, on the other hand, that the revolutionary government is valid under the same Constitution. This approach is not viable in terms of the existing Constitution either.

Take for example, the argument that the "absence" of the Prime Minister from the country has made the article 57(3) of the Constitution, which stipulates that the Prime Minister holds office until a successor is appointed, "inoperative" or "irrelevant". This argument closely aligns with the Kelsenian logic above. In such situations, the Constitution, in general, comes to a point of irrelevance, making it redundant to find justification therefrom. If we talk within our current Constitutional framework, the Prime Minister's departure from the country is indeed unusual but it does not make Article 57(3) irrelevant or inoperative. This may lead to a further conundrum of interpretation especially when the things to do in the absence of a head of government are well described in the Constitution.

Another argument is that during the absence of the head of government, the President incurs "elevated" responsibilities, potentially allowing him to lead the government himself, or appoint a "successor" who need not be another Prime Minister. This argument deeply contradicts Article 55 of the Constitution, which is currently the only constitutional route to form a government. Moreover, under Article 57(2), the President has a clear constitutional duty to find, instead of "elevating his duties," whether a new Prime Minister who holds the support of the majority of MPs can be appointed. It does not permit the President to dissolve Parliament simply because the Prime Minister has presumably resigned or abdicated the office by absence. More explicitly, Article 72(1) requires the President to dissolve Parliament only on the Prime Minister's written advice. The President cannot dissolve Parliament unilaterally or on the advice of anyone other than the Prime Minister (Mahmud Islam, Constitutional Law of Bangladesh (2012), p. 406). In August's extraordinary situation, the dissolution of Parliament was the call of the student protesters. That was, however, an action of the new Grundnorm, if we say so. The parliament dissolution of August was not conceivable or justifiable within our existing Constitution. Hence, trying to justify it by bringing in an "elevated duty" hypothesis may not be sustainable within the existing constitutional disposition.

It has also been argued that the Prime Minister's departure from Bangladesh was an extraordinary situation requiring the President to seek the opinion of the Supreme Court under Article 106 to move forward. However, the Supreme Court's advisory opinion under Article 106, though an extremely valuable opinion, is by definition not a law with binding constitutional force (Special Reference No. 1 of 2009 (2010)). Moreover, the detailed reasoning of the Supreme Court has not been made publicly available yet. While the Court might have considered either, or any combination of, the doctrines of necessity, efficacy, or revolutionary legality, all those would still lie outside the domain of our existing Constitution.

Considering the above, we argue that Bangladesh's current interim government is thriving in a "constitutional emptiness" and will require a retrospective validation either within the existing or in a potentially "new" Constitution in the near or distant future.

The writers are Lecturer in Law, Faculty of Business, Law and Politics at the University of Hull, United Kingdom, and Assistant Professor and Chair in the Department of Law at Z. H. Sikder University of Science and Technology, Bangladesh, respectively.