Is there a need for a provisional legal framework?

Looking at the history of transitional instruments

There are questions swirling around regarding the constitutionality and legality of the interim government led by Nobel laureate Muhammad Yunus. Some of these questions ask if the sanctity of the Constitution is facing a twilight. Others point out the doctrine of necessity, which has often been applied in Pakistan and Bangladesh.

The exceptional nature of the interim government needs to be taken into account. This is not a military government nor a caretaker government in the conventional sense. It is a post-revolutionary ad hoc government established out of necessity, due to the fact that there was no conventional transfer of power by the former Prime Minister of Bangladesh, thereby creating a constitutional vacuum and necessitating the creation of an interim, transitional administration with support from the armed forces, bureaucracy and all law enforcement agencies.

The leadership of the government is styled in the same manner as the previous caretaker system, with the titles of Chief Adviser and Adviser. Like the Prime Minister, the Chief Adviser gives policy and legal directions to the President who has to act in accordance with the advice given by the government as per the Constitution. The sanctity of the Constitution has been maintained.

Cynthia Farid has eluded to transitional ordinances like the Provisional Constitution of Bangladesh Order 1972, which established the parliamentary system in the country. In 1970, Yahya Khan had to rule under a Legal Framework Order. During the British parliamentary debate on the Bangladesh Liberation War in May 1971, many British parliamentarians eluded to the Awami League’s support for the Legal Framework Order as a basis for creating a constitution for Pakistan.

In the absence of constitutional provisions on a caretaker government, Bangladesh may consider the equivalent of a legal framework continuance order. The first such provision in Pakistan and Bangladesh can be traced back to Section 8 of the Indian Independence Act 1947. Under Section 8 of the Indian Independence Act 1947, the Act itself, as well as the Government of India Act 1935, would be the interim constitutional documents until a new constitution was enacted. Thus, the Indian Independence Act 1947 and the Government of India Act 1935 both served as the constitutional documents of Pakistan in the 1950s.

This history was noted by the Bangladesh Supreme Court in the case of Terab Ali & others Vs. Syed Ullah & others 17 SCOB [2023] AD 34, which stated that “As per the section 8(1) of the Indian Independence Act, 1947, the combination of the Government of India Act, 1935 and the Indian Independence Act, 1947, the two constitutional instruments, served as an interim constitutional order for Pakistan until its Constituent Assembly adopted its own constitution [in] 1956 and Article 292-293 of the Government of India Act 1935 served the comparable purposes of continuance of existing laws in our jurisdiction then.”

When Pakistan’s constitutional order faced serious questions of legitimacy in the 1960s, lawyers harked back to the Government of India Act, 1935. This is because the Lahore Resolution envisioned a federation with truly independent and sovereign units. There is a reference to the Government of India Act, 1935 in Dr. Kamal Hossain’s book Bangladesh: Quest for Freedom and Justice.

During the Liberation War in 1971, the Acting President appointed under the Proclamation of Independence issued a Laws Continuance Enforcement Order, which directed that “all laws that were in force in Bangladesh on 25th March, 1971, shall subject to the Proclamation aforesaid, continue to be force with such consequential changes as may be necessary on account of the creation of the sovereign independent State of Bangladesh formed by the will of the people of Bangladesh”.

Fortunately, Bangladesh does not have to rely on colonial instruments anymore. It has its own, widely respected Constitution. Bottlenecks in the Constitution, such as those imposed by the 15th amendment, can be remedied with transitional provisions and later fixed by a democratically elected parliament.

I have argued in the Dhaka Tribune in support of a referendum, which has been advocated by lawyers, politicians and citizens. A referendum can be the most democratic and credible seal of approval for the interim government. The exceptional nature of the circumstances further reinforces the need for a referendum to validate the actions of the interim period.

Given the similarities in style and titles with the caretaker system, the government can adopt a Provisional Order based on the scope left by the 13th amendment case to hold at least two elections under a caretaker government. Eventually, the 13th amendment verdict will have to be reviewed and potentially overturned. If and when the caretaker system is codified again in the Constitution, it will have to be a better and more sustainable system than the one which was discarded.

A provisional order can be adopted embodying Part IV Chapter IIA, which is currently shown as “omitted” from the Constitution. I would suggest that there be a provision concerning the appointment of a Chief Adviser for future caretaker governments, with appointments based on the written and agreed consensus of the Leader of the House and the Leader of the Opposition.

For all this to happen, it would be good for the main political parties to enter into a legally binding agreement like a Bangladeshi equivalent of the Good Friday Agreement. The consensus of the political parties for the transitional period can be reflected in such an agreement, while the caretaker system can be restored once a parliament is elected through a free and fair election.

But is a provisional legal framework really necessary? The existing sources of constitutional law in Bangladesh should be sufficient to support the interim government. The lawyer Dr. Sharif Bhuiyan has pointed out the abundance of constitutional case law which can reinforce any legal opinion on the constitutionality, legality and legitimacy of the interim government.