Law, Length and Legitimacy of interim government: Let people decide interim govt’s role

Md. Mamonor Rashid: Aftereffects of the student-public uprising, Sheikh Hasina’s government fell and fled on August 5, 2024. Law and order, social security, rule of law, independence of Judiciary, human rights, reform of electoral system, reform of political parties, drafting a new constitution, extortion, combating corruption, commodity prices – many such expectations have been expressed by different voices. No doubt, these are all legitimate expectations. Citizens did not get these in the last decade and a half. With such undeniable expectations of the students-people the chief adviser Nobel laureate Muhammad Yunus and advisers of the interim government took oath and the responsibility of managing the country on August 8. The question now is the legitimacy and objectives of the interim government, though the Supreme Court has given legitimacy to this government in the light of Article 106 of the constitution.

The Constitution of Bangladesh once had a provision for an interim or caretaker government, introduced in 1996, but the system was abolished in 2011 through the 15th Amendment citing major flaws, including the politicization of the judiciary, which undermined public confidence over the judiciary &the Supreme Court.

As this system of interim government is not in the constitution and the constitution was not amended or suspended, we have to consider the legitimacy of this government on the Doctrine of Necessity and Doctrine of Continuity. This doctrine of necessity is based on the idea that in extreme situations where the normal functioning of society or government is at risk, it may be necessary to set aside certain legal principles temporarily in order to prevent greater harm or to ensure the continuation of essential functions. In the case of Borough of Fanwood v. Rocco (1960) USA, the Court imposed some requirements that there must be the presence of an important public issue in order to apply the doctrine of necessity. Further, Doctrine of Continuity articulates that all orders of the State must continue and maintained without any interruption. State will prevail and function smoothly despite the void created under the constitution. Hence the interim government will be legitimate and justified under the ‘Doctrine of Continuity’.

Above and beyond the public desire reflected in the student/public uprising must be taken into consideration. “Law for people, not people for law.” As Article 7 of the Constitution firmly affirmed that all powers in the Republic fit in to the people and Article 13 of the Constitution bestowed the rights & ownership of the State to the People. In light of the foregoing we might yell that the interim Government has the legitimacy and also got the International recognition which is crucial in today’s globalized world.

Duration of Interim government

The Question asked by everyone is how long the Interim Government will stay in office? Several political parties, including BNP, have demanded that the 13th parliamentary elections be held as soon as possible, preferably within three to six months. This political stance is nothing to be amazed about.  Yet, the Constitution does not contain any provision or duration for the formation of this type of government. This is a constitutional void that has glinted major confusion and debate in some circles about the Interim Government’s tenure and its constitutional legitimacy.

Hence, determining the tenure of Interim Government’s is particularly critical as it was formed through a revolution. Therefore, materializing the revolution’s mission and vision significantly depends on the public perception and demand on the Interim Government’s role and functions.

If the Interim Government in good faith carried out well and stays long the Hon’ble President may also promulgate an Ordinance under article 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 article 93(2) of the Constitution.

Will the interim government thrive?

Now it is only a month and a few days of the interim government. It would be premature to say which way it is going. Reforms are needed in every sector, thus it will be a very difficult task.

There are so many aspects of democracy; interim government will not be able to contemplate about them all. So when it comes to reform or democratization in all aspects of the country, I don’t think it is possible for anyone to do that without a political representative government. There is considerable doubt as to how much the interim government will be able to reform or democratize institutions in the face of pressure from political parties to hold early elections. But if the interim government can start this journey of reform, democratization and put an end to corruption, the whole nation will shore up and accept them unconditionally and will be grateful to them as well.

It is evident that the Global leaders have announced strong support for the new Bangladesh government led by Prof Yunus, emphasizing that they stand ready to help in any way they can to support the efforts of Bangladesh.

Early major diplomatic hit in the first month of his administration Prof Yunus was able to convince President of the United Arab Emirates (UAE) to pardon the 57 Bangladeshi nationals who were jailed over uttering harmony with the recent student-public uprising.

As promised the interim government on August 29 signed the instrument of accession to the International Convention for the Protection of All Persons from Enforced Disappearance, signifying its assurance to explore each and every case of enforced disappearances. Herewith; Bangladesh is now party to all nine core human rights treaties, demonstrating people’s hope to advocate freedom, fairness and justice for everyone.

It is people’s believe that the interim government, led by prof. Younus will be like Nelson Mandela, will play a pivotal role in setting the stage for the free-fair democratic elections and help to create a new constitution, establish true independence of judiciary, establish a truth and reconciliation Commission to address past injustices, will undertake robust and far-reaching economic reforms to restore macroeconomic stability and sustained growth, with priority attached to good governance and combating corruption and mismanagement and to set the foundation for a peaceful and unified future for the nation.

Moreover, some activities like mob justice, forcing heads of several institutions to resign, beating and driving them away, attacking arrested people on court premises, vandalism, anarchy, destroying the stability of the country and, in some cases, killings through beatings and hacking recently happened in DU & JU. The students who led the mass uprising are partly to blame in some cases, while in other cases, overzealous people have created these discarded occurrences. These circumstances may tear down the noteworthy attainment of the student-public movement. If the interim government does not take speedy and visible action against the above discarded occurrences, a massacre will come about and the standing of the interim government will at risk.

The writer is an advocate, Supreme Court of Bangladesh & partner of Law firm-LEX SQUARE