Constitutional Twilight - Fighting Constitutional Limitations Over The Interim Government

On August 5, through a historic student-led anti-discrimination movement, the Awami League government led by Sheikh Hasina, which ruled Bangladesh for the past 15 years, collapsed. The Bangladesh Army Chief notified us of an interim government (that was yet to be formed at the time of this writing) by the president upon consultation with all the political parties (except Awami League).

As the parliament is dissolved and the interim government is to be in charge soon, there are some constitutional pitfalls, which must be tackled to give legitimacy to the new government.

The problem is posed by Article 93 of the Constitution, which states that at any time when parliament stands dissolved, if the president is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such ordinances as the circumstances appear to him to require, and any such ordinance upon its promulgation shall have the force of law like an act of parliament.

But there is, among others, a limitation to this ordinance making power of the president. Proviso (ii) to Article 93 states that an ordinance by the president cannot be passed that has the effect of altering or repealing any provision of the Constitution.

Until an alternative is found

There are three relevant articles in the Constitution which will be impacted once the interim government is formed. These are Articles 56(4), 57(3), and 58(4).

Article 56(4) allows for continuation of the existing PM and the ministers between a dissolution of Parliament and the next following general election of members of parliament.

Also, Article 57(3) states that PM can hold office until his successor has entered upon office and Article 58(4) states that if the PM resigns from or ceases to hold office, then each of the other ministers (including state and deputy minister) shall be deemed also to have resigned from office but shall ... continue to hold office until his successor has entered upon office.

In other words, Articles 57(3) and 58(4) allow the PM and existing ministers to continue holding the office until the successor has entered upon office despite the actual resignation of the PM and deemed resignation of the ministers.

Due to several deep constitutional and judicial interjections over the past 15 years, there is no interim government system present in the current version of the Constitution. Thus, it can be argued that if an ordinance is passed by the president, introducing the interim government now, it will have the effect of altering or repealing Articles 56(4), 57(3), and 58(4).

Furthermore, the problems stated above with respect to Article 93 remain even during a period of emergency (if declared by the president). It is to be noted that any period of emergency must end with an election within 120 days.

Workaround

There is a way to go around the Article 93 problem. I venture the following propositions:

1. An ordinance of the president can be introduced to formulate a referendum, setting out the mechanics to form the interim government, who will hold an election. It could be argued (although contrary arguments exist) that initiating a referendum from the people is not altering or repealing any provision of this Constitution under the proviso (ii) to Article 93(1), but adding something to the Constitution.
   In other words, introducing a referendum is not altering or repealing any provision regarding election in the Constitution but it merely adds something new (that is, the referendum) to the Constitution which does not exist now and is different from the election. However, this line of argument may become weak if the tenure of the interim government is beyond 120 days during a period of emergency (if the president declares).
   There is also the risk of this ordinance being challenged in a writ being unconstitutional unless the president declares emergency under Article 141A of the Constitution and suspends fundamental rights by triggering Article 141C.
2. To counter the above provisions and problems (referendum on interim government and its tenure for beyond 120 days), it is suggested that once the draft ordinance is formulated, the president can quickly seek an advisory opinion on the draft ordinance's validity from the appellate division of the supreme court of Bangladesh under Article 106.
   The threshold requirement for an advisory opinion from the appellate division is the rise of a question of law that has public importance. In my view, this issue certainly raises questions of law that have immense public importance.
3. If the draft ordinance is certified to be legitimate by the Appellate Division, then it can be given effect by the Election Commission under Article 119(2) of the Constitution.

It must be remembered that any constitutional exercise must withstand the test of time and history will judge the people who are currently involved in the constitutional process. It is therefore extremely important that the interim government is formed in a way that it remains beyond reproach.

Originally published by Dhaka Tribune, 9 August 2024.

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