When a country stays afloat in a political vacuum with lawlessness raging like a wildfire in every corner, it seeks its redemption through the doctrine of necessity. The doctrine, in turn, makes the formation of an interim government lawful despite having no bona fide constitutional validity. Such was seen in the case of Bangladesh after the monsoon revolution of 2024. Without a public mandate, however, such an appointment of a temporary government breaches democratic principles. But then again, if we take Bangladesh as an example, extraordinary circumstances have led to such extraordinary appointments, and the government did receive constitutional validity on the basis of the doctrine of necessity via an independent judicial verdict. At the heart of democracy lies the will of the people, and even if a public mandate cannot be provided officially in the absence of an electorate, it can be perceived well as having popular support. Nonetheless, the absence of constitutional legitimacy, even after two months of the July uprising, now and then causes fingers to be pointed at the interim government, particularly at its intentions and power.
The intentions of such a government lie lucid within its very definition, that is, to hold a temporary governmental footing upon which a destabilised nation leans before it regains its stability. From a democratic standing, an interim government that delineates the transition from authoritarianism to democracy has no set rules to have themselves directed; they are pushed to design guidelines from scratch as they go on governing. As long as they do not possess the mandate that comes from winning free and fair elections, democratic legitimacy remains elusive. Although interim administrations led by opposition parties, incumbents, or a mix of the two may assert that they are representing the people, such claims are vulnerable to challenge in the absence of a clear and decisive electoral victory. However, transitional governments are supplemental to uphold democracy, providing an unsettled nation the roadmap to find its way back to it as they reconstruct a nation’s collapsed frameworks to arrange elections with a transparent mandate to restore constitutional order and state institutions.
So with the democratic aspect tackled, from where does the interim government derive its power when its very existence is not defined in any provisions of our constitution? The answer revolves around what we have come to call a constitutional lacuna. However, what we tend to overlook is that within the constitutional fabric of Bangladesh, the concept of interim government has always remained embedded, with the year 1996 becoming pivotal in legitimising such an idea for the nation’s betterment. The genesis of the 13th constitutional amendment lies in the history of Bangladesh standing susceptible to political turmoil and administrative instability post the 1990’s mass uprising. The 13th amendment thus introduced the provisions for a caretaker government that is only brought into existence by a national consensus to reinstate democracy whenever it is in unprecedented jeopardy and only act as the nation’s mediator until sovereignty is steered back at the helm through free and fair elections. As Dr. Kamal Hossain, one of the amici curiae to the case, had opined, the amendment has not in any way impaired the democracy but rather was a persevering step to reinforce the Republican spirit of Bangladesh in the face of national crises. In 2011, however, the provisions were deemed unconstitutional and revoked via the 15th constitutional amendment, and as the fifteen-year regime of the fascist government held the reins of Bangladesh, the notion of interim government to safeguard democracy became antiquated – up until 2024. Enduring against this constitutional lacuna, the 2024’s interim government of Bangladesh derived its power from the will of the people as prescribed by the preamble of our constitution. Not only that, with the best benefit extracted from Article 106 as the presidential prerogative collaborated with the judiciary in the face of the aftermath of such a tremendous revolution, further legitimised the interim government, making it one that is recognised by the law, i.e de jure.
Last but not least, as we arrive at the practical aspect, the nation’s reality also served as a source for the legality of the interim government, making it one that is in fact, i.e., de facto. The July’s mass uprising, pioneered by the students and eventually becoming a movement of the mass of its own volition, is a patent shift in the will of the people, the very will that is at the heart of both democracy and our constitution. This public endorsement permitted the interim government to exercise its power in practice, the practicality of which was fortified by the doctrine of necessity, making it a crucial force at play behind the government’s legality. As the Parliament was dissolved under unforeseen circumstances, the existence of an interim government was made lawful by necessity when the constitution proved to be inadequate, however, not at the expense of the people’s will. Thus, upholding the supremacy of our constitution, which is the solemn expression of the will of the people.
About the author :
Tabassum Hasnat is a sophomore law student at BRAC University and a Bangladeshi freelance content and creative writer specializing in short-form fictitious genres. She maintains a personal blog on Storymirror Pvt Ltd and has co-authored multiple anthologies and book compilations, with her works featured on international platforms such as Amazon, Kindle, Google Books, Kobo, Barnes & Noble, and Notion Press. Her previous experience includes working for Quirky – a youth magazine, and serving as a Creative Intern for the creative department of Moshal Mental Health. Currently, she is the Head of Content and Creative for Esscre, an arts organization, and a middle and high school teaching professional. Additionally, she contributes as a News Editor to her university’s independent publication.