Democracy Must Pause to Prevail
Mokarramus Shaklan : As Bangladesh navigates a contentious political transition, the legality of the current interim government, sworn in on August 8, 2024, under the leadership of Hon’ble Chief Adviser Dr. Muhammad Yunus, hinges on a landmark judicial review of the Thirteenth Amendment Case.
At the heart of this debate lies the dissenting opinion of Justice Muhammad Imman Ali, whose minority judgment in Abdul Mannan Khan v. Government of Bangladesh (64 DLR (AD) 169) offers a constitutional lifeline to the interim administration.
With the Appellate Division set to hear the Review Petition on May 08, 2025, Justice Ali’s jurisprudential reasoning—rooted in democratic pragmatism and constitutional fidelity—could redefine Bangladesh’s governance framework.
The Thirteenth Amendment Saga: A Divided Bench and Judicial Paradox
The institutionalization of the Non-Party Caretaker Government (NPCG) system through the Thirteenth Amendment (1996) became a jurisprudential battleground in 2011 when the Appellate Division, in a 4-3 split verdict, declared it unconstitutional. Led by Chief Justice A.B.M. Khairul Haque, the majority invoked the Latin maxim “Salus Populi Est Suprema Lex” (the welfare of the people is the supreme law) to strike down the amendment, yet paradoxically retained the NPCG for two subsequent elections under the doctrine of “necessitas licitum facit” (necessity renders lawful what is otherwise unlawful)—a judicial contradiction critics decried as creating a constitutional vacuum.
In stark contrast, Justice Muhammad Imman Ali’s dissenting opinion, endorsed by Justices Nazmun Ara Sultana and Muhammad Abdul Wahhab Miah, upheld the amendment’s validity, asserting that “the Thirteenth Amendment neither infringed the basic structure of the Constitution nor destroyed its republican and democratic character.” He reasoned that the NPCG was never a permanent usurpation of parliamentary sovereignty but a transitional mechanism, akin to a constitutional “circuit-breaker,” designed to ensure electoral integrity during interregnums. This schism between judicial pragmatism and textual purism underscores the tension between rigid constitutionalism and the exigencies of democratic governance.
Justice Imman Ali’s Doctrine: Constitutional Flexibility and Popular Sovereignty
Justice Imman Ali’s 38-page dissent, a masterclass in constitutional hermeneutics, wove together jurisprudential rigor and democratic pragmatism to advance three foundational arguments. First, he dismantled the majority’s assertion that the Non-Party Caretaker Government (NPCG) eroded parliamentary democracy, contending instead that the Thirteenth Amendment forged a “neutral interim bridge” between dissolved and successor Parliaments—a mechanism harmonious with the Constitution’s democratic ethos.
He did not mention the famous case of Kesavananda Bharati v. State of India, but he cautioned against ossifying the “basic structure” doctrine, urging instead that the Constitution must evolve to meet societal needs. In his dissent, Justice Imman Ali dismantled the myth of constitutional infallibility, declaring:
The rigidness of the Constitution cannot be allowed to numb the senses of the people nor stifle their will. The people must be allowed to extricate themselves from any exigency by amending provisions of the Constitution, as and when necessary. The very Constitution, made by the people for the people, cannot be allowed to paralyze them.
He invoked the maxim “Salus Populi Est Suprema Lex” (the welfare of the people is the supreme law) to argue that constitutional amendments must be judged by a singular test: “whether they benefit the people or curtail their democratic rights to their detriment.”
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Second, while condemning the 2007 emergency’s “unnatural and unconstitutional” turmoil—sparked by presidential overreach under Article 58C—he attributed the crisis to “abuse of power, not the system itself.” Echoing Cicero’s “Summum jus, summa injuria” (extreme law begets extreme injustice), he rebuked the majority for discarding the NPCG as a disproportionate response to its episodic misuse.
Third, channeling Hans Kelsen’s Grundnorm theory, he elevated popular sovereignty as the linchpin of legitimacy, declaring that “the people’s will, exercised through elected representatives, is the ultimate source of constitutional authority.” To preempt future crises, he advocated rebranding the “Caretaker Government” as a “Neutral Interim Government”—a semantic shift underscoring its transient, apolitical role—while exhorting Parliament to recalibrate the system without jettisoning its core purpose.
In essence, Justice Ali’s doctrine harmonized constitutional fidelity with adaptive governance, framing democracy not as a rigid edifice but as a living covenant between the state and its citizens. Echoing Senior Advocate Mahmudul Islam’s trenchant observation—“Democracy must sometimes be suspended briefly for its ultimate survival”—Justice Ali acknowledged the fragility of Bangladesh’s democratic experiment:
Ours is a fragile democracy. The interim period between Parliaments is its Achilles’ heel. No law can be inscribed in stone; society exists not in inertia but in flux. The Constitution must evolve to serve the people, not ensnare them.
The 2024 Interim Government: A Case for Constitutional Validation
The current interim regime, styled as the “Interim Government” in the gazette published on 08.08.2024 where advisers appointed by the President, embodies Justice Imman Ali’s vision of a neutral transitional authority. While critics allege its formation sidesteps the defunct NPCG framework—rendering it de facto but contested de jure—Justice Ali’s dissent furnishes a robust legal scaffold for its validation.
Textually, the adoption of “Chief Adviser” and “Advisers” over the historically charged “Caretaker” nomenclature aligns with his call for a “neutral interim” lexicon, consciously distancing the regime from the tainted legacy of 2007.
Procedurally, the administration’s operation under the doctrine of “state necessity” finds implicit endorsement in Justice Ali’s prioritization of “popular acceptability over procedural rigidity,” particularly amid a constitutional interregnum marked by a dissolved Parliament and impending elections.
Philosophically, the regime’s mandate to ensure free and fair elections resonates with his invocation of Lockean social contract theory, which posits that governance systems—though imperfect—must ultimately serve the people’s democratic rights.
By harmonizing textual precision, procedural exigency, and democratic ethos, the interim government of 2024 not only mirrors Justice Ali’s doctrinal blueprint but also navigates the fraught terrain between constitutional legitimacy and pragmatic statecraft.
The Review Petition: A Confluence of Law and Politics
Should the Appellate Division resurrect Justice Imman Ali’s dissent in its review of the Thirteenth Amendment verdict, the ramifications would reverberate across Bangladesh’s constitutional architecture. Foremost, adopting his reasoning would restore constitutional parity by harmonizing the amendment’s original intent—to safeguard electoral integrity during transitional vacuums—with the basic structure doctrine, affirming that time-bound, people-centric mechanisms need not fracture constitutional orthodoxy.
Secondly, a favorable ruling would transmute the incumbent interim government from a de facto entity into a de jure authority, shielding it from challenges under Article 7 (sovereignty) and Article 142 (amendment powers) by anchoring its legitimacy in Justice Ali’s doctrine of “popular acceptability over procedural rigidity.”
Finally, by endorsing his dissent, the Court would recalibrate its institutional legacy, replacing the 2011 majority’s judicial activism—which paradoxically invalidated the Thirteenth Amendment yet retained its framework—with a posture of restraint that defers to parliamentary sovereignty and evolving democratic norms.
In this jurisprudential pivot, the judiciary would not merely adjudicate law but steward Bangladesh’s fragile democracy toward a Kelsenian equilibrium, where the Grundnorm of popular will transcends the shackles of legal formalism. The Review Petition thus emerges as a litmus test—not just for the interim regime’s survival, but for the Court’s fidelity to the Constitution’s living spirit over its letter.
End Note: Toward a Durable Constitutional Settlement
Bangladesh stands at a jurisprudential crossroads. Upholding Justice Imman Ali’s dissenting opinion would not only validate the interim government but also reaffirm a cardinal principle: the Constitution is a living document, adaptable to the people’s evolving aspirations.
As the Review Hearing approaches, the Appellate Division must weigh legal technicalities against the *raison d’état*—the state’s survival. In Justice Ali’s words, *No system is foolproof, but durability lies in the people’s acceptance.
For citizens in their village huts and urban homes, the stakes transcend legalism—they yearn for stability, democracy, and a government of the people, by the people, for the people. The Court must ensure the Constitution delivers nothing less. And if survival demands it, then let it be said—Democracy must pause to prevail.
Written By Mokarramus Shaklan, Advocate, Supreme Court of Bangladesh. Email. m_shaklan@yahoo.com
