After a nearly month-long mass revolution triggered by 16 years of oppression, the Awami League regime in Bangladesh came to an end. On 8 August 2024, an interim government was formed after the parliament was dissolved.
The current constitution of Bangladesh needs to account for such extraordinary circumstances, indicating that the establishment of this interim government relies on legal ambiguities, with hopes of obtaining retrospective constitutional legitimacy. However, the people are eager to establish a new constitutional order to completely reform the existing governance system and its underlying legal principles. This call for reform is not merely a reaction to current events; it represents an opportunity to redefine the governance structure fundamentally.
Amendment or Abolishment of the Existing Constitution
One possible approach is to amend the existing constitution to reflect the goals of the mass student revolution. However, this has significant limitations. A fundamental constitutional principle in Bangladesh is that its “basic structure” cannot be altered by Parliament or referendum. In the case, Anwar Hussain Chowdhury vs. Bangladesh, commonly known as the 8th Amendment case, the Supreme Court ruled that Parliament lacks the authority to amend the constitution in a way that abolishes its basic structure, also known as the doctrine of basic structure. Article 7B of the Constitution of Bangladesh prohibits any amendments to the constitutional provisions identified as essential features.
There is a legitimate concern that amendments driven by revolutionary zeal might clash with the ‘basic structure’ of the Constitution, risking invalidation by subsequent judicial review.
In contrast, abolishing a constitution entirely represents an extreme shift and is likely to result from a mass revolution. However, the constitution of Bangladesh does not permit its abolishment, involving a complex legal process.
In establishing a new constitutional order, “the Doctrine of Necessity” might be applied, allowing validation of acts taken during extraordinary situations, even if those acts deviate from existing laws. However, reliance on the doctrine of necessity imposes the risk of creating distrust in the rule of law, potentially threatening the legitimacy of the new constitutional order.
Establishing a Revolutionary Government
Revolutions often create unique opportunities for citizens to participate directly in governance. To achieve true reforms and solidify its authority, the interim government could declare itself a revolutionary government, establishing a new grundnorm, which is the source of the validity of all other norms in the legal system, as articulated by Hans Kelsen. This government’s legitimacy stems from the spirit of the revolution.
As the interim government operates under the existing constitution, seeking retrospective validity within the same framework may stall the transformation of the political landscape. They may lack the authority of ‘direct participation,’ meaning they don’t have the active involvement of the people in the governance, as defined by Bruce Ackerman.
To overcome these challenges, the revolutionary government could proclaim a ‘provisional constitutional framework,’ a temporary legal, constitutional framework to provide order and governance during a transition period.
This provisional constitutional framework would provide the interim government with the sovereign authority, as defined by Carl Schmitt, to lay down the new constitutional order. According to Schmitt, true sovereignty lies not merely in enacting laws but in acting decisively when the political order is threatened. In this context, the interim government, through this framework, would gain the legal authority to act independently and decisively in creating a new constitutional order.
Furthermore, to establish legitimacy, the revolutionary governments must address past injustices by implementing truth commissions and reparations programs to handle human rights abuses during the fascist regime. How the government addresses past human rights abuses significantly impacts the country’s transition and the legitimacy of the new political system.
Way Forward for a New Constitutional Order
To establish the authority of “direct participation,” the new constitutional order must be allowed to evolve through continuous public engagement. A constitution created through adaptive constitutionalism will strengthen the revolutionary government’s legitimacy by reflecting the people’s collective will. Once the new constitutional framework is drafted, a public referendum should be held to allow citizens to vote on its approval. This reinforces democratic legitimacy by challenging the notion that sovereignty must always be concentrated in a single entity, advocating for a governance that embraces active participation. By engaging the national public in political discourse, referendums give citizens a voice in the governance, increasing support for the political shift. To further enhance accountability, an independent monitoring board consisting of legal experts, human rights advocates, and representatives from civil society should be established to oversee the government’s administrative actions in implementing the new constitutional order, promoting transparency and reinforcing the government’s legitimacy.
Additionally, it is vital to incorporate provisions from international human rights treaties like UDHR and CEDAW into the new constitutional framework. Governments that align with these standards are more likely to gain global engagement. Non-compliance may lead to civil unrest, challenging the government’s authority.
An ICJ report stated that most human rights violations occur during a state of emergency when those in power think their authority is being threatened. In our constitution, the vagueness of terms like “ internal disturbance” allowed the provision of emergency to perpetuate the power of the previous ruling parties. The new constitutional order must aim to rectify these loopholes that facilitated the destruction of democracy.
In 1971, to give legal validity to the provisional government during the liberation war, Bangladesh adopted an ad hoc Constitution under the Proclamation of Independence Order, later declared Provisional Constitution of Bangladesh Order of 1972.
Similarly, the end of the apartheid system in South Africa culminated in the passage of a provisional constitution, which was later replaced by the final constitution of 1996, solidifying the legal foundations of the new democratic order.
In conclusion, Bangladesh’s current political environment presents challenges and opportunities for constitutional reform. The interim government can align its actions with the revolutionary ideals that prompted the mass movement by establishing a new constitutional order through a provisional constitutional framework. This approach would reinforce the government’s legitimacy by setting the stage fors a more participatory governance structure.
About the author:
Eshika Zarin Islam is a LLB student at the Department of Law, Premier University, Chittagong. Her areas of interest include international law, maritime law, and human rights.