—M A Sayeed, UNSW Sydney, Australia/Jahangirnagar University, Bangladesh, and Lima Aktar, Thomas More Law School, ACU, Melbourne/Jahangirnagar University, Bangladesh[1]
Constitutional crisis may occur for many factors, but when it triggers constitutional transformation, it becomes stasis (Alberto Esu). In Greek, stasis means civil/political unrest, disharmony and, to its most extreme, the breakdown of the constitutional system as a whole (Charles McIlwain). Aristotle, one most ancient theorist of stasis, thus confirms that rather than simply overthrowing a particular regime, stasis leads to the replacement of “one complete constitution” by another (Aristotle, Politics). Since its emergence as independent state in 1971, Bangladesh was caught up with a series of constitutional crisis, culminating in the abrupt collapse of Sheikh Hasina’s authoritarian rule in August 2024 (lasting for sixteenth years from 2009-2024). After Hasina’s fall, and amidst the conservative’s tangled stance for reform and constitutional continuity, a radical demand for a new constitution has been put forward by the vanguard of the July Revolution. This event is unique in many respects, marked by a conflicting skein of adherence to constitutional rules, uncertainty, and disavowal of the constitution. In this analysis, we wish to explain this historically decisive event in terms of whether it placed Bangladesh in the moment of stasis.
This analysis rests on the premise that the moment of stasis occurs not simply when the constitution itself leads to the crisis. More importantly, its threshold is defined by disruptions so deep that the existing constitution is unable to fix them. There is a widely held agreement (even among those who do not support the idea of a new constitution) that the current Constitution is responsible for the deep rooted political crisis. Yet, disagreement is deepening between those who are demanding a new constitution as the only solution and those who argue, on balance, for constitutional continuity. Our analysis responds to this debate by using stasis as a threshold—a critical juncture where the impossibility of constitutional continuity coincides with the possibility of a creative constitutional time (Steven Skultety).
The fall of a ‘fascist’ and the constitutional vacuum?
Sheikh Hasina’s fall was a long-desired event in Bangladesh, not least because many characterised her regime as resembling fascism. After coming into power in 2009, she made some controversial amendments to the 1972 Constitution, most notable of which was the abolition of Non Party Caretaker Government (NCTG). The NCTG was an election-time government to be to be composed of a group of impartial, unelected individuals a fourth branch mechanism that was introduced in 1996 to ensure free and fair elections. The abolition of the NCTG literally closes the door of democratic transformation of power, as was reflected in three subsequent elections, marred with widespread rigging, controversy and resultant lack of legitimacy (Ali Riaz). With almost unbridled power unmoored from democratic support, Hasina was insensitive to political harmony and the issues of social and economic justice. This created the backdrop for the historic July-August ‘revolution’ mostly led by students fighting for anti-discrimination policy in the public service. On August 5, 2024, following a tragic episode of brutal crackdowns that resulted in over 1000 deaths (including those of innocent children) and thousands of injuries, Hasina fled the country without leaving behind any constitutional successor. The President dissolved the parliament, confirming that the Prime Minister had resigned. Against this backdrop, an interim government has been formed, headed by Nobel Laureate Professor Muhammad Younus as the Chief Advisor. Surprisingly, the interim government took an oath from the President under the existing constitution, which does not envision any such government.
Under the existing Constitution, there are two ways in which the government can be changed before the completion of the term: when the Prime Minister resigns voluntarily [article 57(1)] and when the Prime Minister loses the support of the majority in the Parliament [article 57(2)]. In both cases, the President can appoint a new Prime Minister from the existing parliament. If “no other member of Parliament commands the support of the majority of the members of Parliament”, then entire government is dissolved, warranting the holding of a new election. What is interesting in this article is that: the existing Prime Minister shall continue to hold the office until his successor assumes the office. During this time, the government will function as an election-time government, which is still formed by the elected members of the dissolved parliament. The holistic reading of these provisions indicate that the existing constitution does not envision any mechanism for the President to form an ‘interim government’, composed of unelected members (except one/tenth technocrat ministership). Thus, the newly formed interim government does not have any existence under the current constitution, although there is an attempt to argue otherwise (Ekramul Hoque). From this apparent lack of constitutionality, the Supreme Court was sought to give an advisory (non-binding) opinion on the formation of the interim government, which further signals a constitutional void that is yet to be filled.
The risk of ratification?
Looking ahead, possible constitutional reforms are being considered to give validity to this interim government. One contentious move, which has already been invoked (by filing a petition), is to use the Supreme Court to confer revolutionary legality on the interim government, where the court is projected to rely either on the narrower ambit of the doctrine of necessity or on a more theoretically grounded application of Kelsen’s groundnorm. The danger of going down this path cannot be underestimated, given that the court historically used these doctrines to legitimize a coup d’etat in Bangladesh, characterized by an oscillation of judicial endorsement and repudiation. Thus, any such move will not only relegate the status of the interim government to a coup d’etat but also will run the risk of future invalidation.
However, what is more likely is that the political actors will go for ratifying the interim government through constitutional amendment. It may be attempted in either of the two ways: ratifying the interim government as a Non-Party Caretaker Government (NCTG), or ratifying it without restoring the NCTG. Both options will require that the court strike down the Constitution (Fifteenth Amendment) Act, 2011 (which is already underway) that placed significant limits on the amending power, making constitutional changes exceptionally difficult (Lima Aktar). As well, the Supreme Court is reviewing its previous decision to restore the NCTG, which signals the political actors’ preference for ratifying the interim government as NCTG. If restored, the NCTG will function only proscriptively rather than retrospectively. Given that, the constitutionality of transitional actions of the current interim government would require ex post facto ratification. On this point, many may consider invoking article 150 and Fourth Schedule of the Constitution which deal with validating the transitional constitutional actions and events.
As a matter of ‘wrong’ precedent, these provisions were used in 1991 to give constitutional effect to an interim government that was thought to fill up a constitutional vacuum. Following the fall of Ershad regime in 1990, the political parties adopted a “joint declaration” proposing a concrete plan for smooth transformation of constitutional power, while setting up a roadmap for a free and fair election within 3 months. Constitutionally, there were two mechanisms through which the head of the government could be changed: either holding a new election, or the Vice President taking over the position of President. The second option was the most convenient for the political actors. Accordingly, they proposed, as part of the political consensus, that the-then Chief Justice Shahabuddin Ahmed to take over the position of President. In order to create this path, the sitting Vice-President resigned, and upon his resignation, Justice Shahabuddin Ahmed first assumed the office of Vice President. Subsequently, with Ershad’s resignation, Justice Ahmed ascended to the office of the President. This was a clear case of maintaining the chain of legality, at least in the process in which the Shahbuddin government was formed. Unfortunately, there is no such chain of legality that can be attributed to the formation of the current interim government headed by Muhammad Younus, as had been the case for the Shahabuddin interregnum. Also, this is where the current interim government comes to be different from Ranil Wickremesinghe’s government in Sri Lanka, even though both share an important similarity among many: they are both the result of the sudden collapse of an unpopular regime.
More importantly, the Shahabuddin regime was ratified subsequently by a separate constitutional amendment that includes the ratification clause in the Fourth Schedule of the constitution. Interesting, the scope of the Fourth Schedule has later been subject to serious judicial challenge. In the Fifth Amendment Case, the High Court Division defined the meaning of the word, ‘transition’ as temporary, and stated that “the purpose of Article 150 is limited apparently only for that period and for a specific purpose.” (Fifth Amendment Case). The court further clarified the exact timeline, and created a strict bar on the possibility of “enlarge[ing] the Fourth Schedule by adding any provision which…ended with the enactment and commencement of the Constitution on December 16, 1972.” Therefore, to the court, the future applicability of that article is normatively closed. Although this finding and observation were later expunged by the Appellate Court, latter the AD modified its view to give effect to the HCD’s interpretation of article 150 [Siddique Ahmed v. Bangladesh and Others (2011)]. This was reflected in the parliament’s endorsement of the HCD’s view in the Fifteenth Amendment that put clear temporal restriction on the application of the Fourth Schedule. Therefore, the option of ratifying the IG as transitional is, in our view, not only vulnerable to judicial invalidation but also constitutionally unavailable.
Referendum as the last resort and the limits of referendum?
Now, let’s see another possibility. One may argue that, since there is a risk of using transitional provisions, the interim government can be legitimised through a referendum, which would afford a higher level of legitimacy. However, the key question is whether the referendum can be arranged under the current Constitution at all. In fact, the idea of a referendum was unknown to the 1972 Constitution. The requirement of referendum was introduced by the Constitution (Fifth Amendment) Act 1979, which has been invalidated by the Supreme Court, and further the Fifteenth Amendment removed the requirement of referendum for constitutional amendment. Therefore, as a matter of fact, the referendum option is not available under the current Constitution. Counterfactually, however, had the referendum existed in its original form, it could not have been used for ratifying the interim government, given its limited applicability to amend specific provisions that includes Preamble, articles 8, 48, 56 and 142. Given this gridlock, political actors may consider holding an “extra-constitutional referendum”. The 1962 French referendum is one such example where De Gaulle circumvented the constitutional text to make a ‘pro-democratic’ change to the constitution. (Richard Albert and Richard Stacey). Gaulle’s constitutional reconstruction was not without controversy, although the court approved it as an expression of the peoples’ sovereign will.
In Bangladesh, there is, of course, a strong politico-legal imperative to surmount the constitutional text and hold an extra-constitutional referendum. The status of extra-constitutional referendum will depend on what purpose it seeks to achieve. This is because, aside from the need to legalize the interim government, there are consensus that the constitution is badly broken and in the need of substantial reconstruction (as The Constitution Reform Commission is considering such possible reforms). So, the question remains whether any ‘reconstructive’ measure undertaken through referendum would amount to reopening the constituent power. This question is pertinent, particularly because any fundamental change causing ‘dismemberment’ of the original constitution would require withstanding the test of the basic structure doctrine, one that disallows the exercise of constituent power by the ordinary parliament (M A Sayeed and Lima Aktar). The implication of any extra-constitutional referendum may thus be explained through 3 propositions:
The first possibility is that the referendum can be held solely to provide democratic legitimacy to the interim government without enacting any constitutional change. Our contention is that this option is not worth the cost of illegality, as it would leave the constitutionality of the interim government still in limbo. If, on the other hand, the referendum seeks to bring any constitutional change (either for ratifying the interim government or for any fundamental change or for both), then the implications will be as follows: a) if the referendum falls short of expressing the constituent power, then it will remain a mere amendment, bound by the basic structure doctrine; b) if the referendum is held as an expression of the constituent power, then its status and effect cannot be equated with that of a mere amendment. Rather, any fundamental change legitimised through such extra-constitutional referendum will amount to a new constituent moment.
The combined effect of all three possibilities signals that Bangladesh has entered into the moment of stasis in which the fractured foundations of the constitution have collapsed to the point of being no longer operative. So, any attempt to correct it by means of amendment risks producing a palimpsest constitution, plunging us yet again into a Kafkaesque constitutional moment. Needless to say, the moment of stasis will persist until a new constitution—redefined both in form and substance—is brought into being. This is why Hannah Arendt (as well as Aristotle) distinguishes stasis from ‘revolution’ (Arendt, On Revolution). For her, stasis is just the crisis, while revolution is the transformation of it into a new constitutional order. Hasina’s fall has placed us in the hiatus between stasis and revolution—the breakdown of the existing system and the coming of a new constitution.
Suggested citation: M A Sayeed and Lima Aktar, Bangladesh in Stasis: No Way Out Without a New Constitution? Int’l J. Const. L. Blog, Nov. 7, 2024, at: http://www.iconnectblog.com/bangladesh-in-stasis-no-way-out-without-a-new-constitution/
[1] M A Sayeed, is an Assistant Professor of Law at Jahangirnagar University, Bangladesh. He is currently a Teaching Fellow and PhD Student (Constitutional Theory) at UNSW. He can be reached at m.sayeed@unsw.edu.au. Lima Aktar is a Lecturer in Law at Jahangirnagar University, Bangladesh. She is currently a Sessional Academic and PhD Student (Constitutional Law) at Thomas More Law School, ACU. She can be reached at lima.aktar@myacu.edu.au.
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