New Delhi: Bangladesh’s interim government led by Nobel laureate Muhammad Yunus is set to be sworn in Dhaka around 8pm Thursday. However, it is unclear if the country may see a repeat of the 2006–08 political crisis in which an “interim” government, indirectly run by the military, remained in power far beyond the constitutionally mandated three-month period.
According to Article 123 (3) of Bangladesh’s constitution, elections must be held within 90 days of dissolution of parliament. But since parliament was dissolved Tuesday under abnormal circumstances, the ‘Doctrine of Necessity’ may come into play, said Nitai Roy Chowdhury, state minister of law in the Hussain Muhammad Ershad administration (1983-1990).
“Parliament has not expired under normal circumstances. In an ‘extraordinary situation’ like the current times, the ‘Doctrine of Necessity’ (as mentioned) in various interpretations of Supreme Court judgments, says elections must be held as soon as possible but no exact time frame is given. The new interim government will have to first bring order to the country and then examine this doctrine,” Chowdhury told ThePrint.
The doctrine of necessity, coined by 13th-century English jurist Henry de Bracton, states that administrative acts that are otherwise not lawful are made lawful by ‘necessity’. In the case of present Bangladesh, this may refer to the necessity to restore law and order amid violent protests. The doctrine of necessity and other “implied principles” have featured in verdicts by various courts in Bangladesh and Pakistan in the past.
The Bangladesh constitution mandates that fresh elections have to be held latest by mid-November, since parliament was dissolved on 6 August. But academics and journalists in Bangladesh ThePrint spoke to said they had their doubts.
“The new government doesn’t need to follow the constitution. It’s a quasi military coup,” said a journalist in Dhaka, who did not wish to be named.
This was a reference to how former prime minister Sheikh Hasina in a dramatic turn of events fled her country Monday, after which Bangladesh Army chief General Waker-Uz-Zaman announced the formation of an interim government led by Muhammad Yunus.
“Yunus will likely become a full-time prime minister. I expect they will be in power far beyond the 90-day period as mandated by the constitution,” said a Dhaka-based academic, who did not wish to be named.
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What does the constitution say
According to Article 123 (3) (b), a general election of legislators must be held within 90 days of dissolution of parliament.
It states: “A general election of the members of Parliament shall be held; (a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and (b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution.”
The constitution, though, also has an “act of God” caveat.
“In a case where, in the opinion of the Chief Election Commissioner, it is not possible, for reasons of an act of God, to hold such election within the period specified in this clause, such election shall be held within ninety days following next after the last day of such period,” reads the provision.
This means the constitution allows a maximum of 180 days for the next election to be held, in exceptional circumstances. In such a situation, parliament must meet within 30 days of the declaration of results.
The 2006-08 crisis
The Bangladesh political crisis from 2006-08 saw the military, led by Army Chief Moeen Uddin Ahmed, intervene to support a caretaker government after a state of emergency was declared in the country. This government served for two years, far beyond the constitutional three-month period.
In the past, a neutral caretaker government (NCG) was viewed as a necessary buffer prior to every national election in Bangladesh to ensure a peaceful transfer of power. The NCG consisted of non-partisan individuals tasked with conducting and supervising polls in a free and fair manner.
This mechanism was first introduced in 1996 when the Bangladesh Nationalist Party (BNP)-led government was in power. Khaleda Zia, the then-prime minister, and her government introduced the Thirteenth Amendment which provided for an unelected eleven-member NCG, headed by a former chief judge of the Supreme Court.
But in 2004, the Khaleda Zia-led government introduced another amendment which raised the retirement age limit for Supreme Court judges. This was viewed as a way to manipulate the elections to ensure a particular former chief justice would become the chief advisor of the NCG.
It triggered a political crisis with protests led by Hasina’s Awami League, demanding an alternate chief advisor to the NCG. Riots and violence spilled onto the streets. The NCG later proposed new elections to be held in 2007, but the Awami League chose to boycott it. And in January 2007, Army Chief Moeen Uddin Ahmed intervened to support the NCG.
It would take two more years until fresh elections were held in Bangladesh, far beyond the constitutionally mandated three-month period. Hasina’s Awami League won the 2008 polls and came into power in 2009, putting an end to three years of indirect military rule in Bangladesh.
But in June 2011, the NCG mechanism came to an end.
The Hasina-led government introduced the 15th amendment which abolished the mechanism. A 15-member special parliamentary committee had earlier advised against abolishing the NCG and said it must continue for the next two elections. But the committee later changed their recommendation after talks with the Awami League government.
The amendment and the way it was ushered in, drew sharp criticism from not just the opposition but constitutional law experts and academics.
Professor Maimul Ahsan Khan, former Chair of the Department of Law at Dhaka University, notes how frequent changes to the Bangladesh constitution, either by Zia or Hasina, diluted its supremacy.
“The Bangladesh Constitution is rigid; it was not supposed to be changed so quickly and easily. It does matter how many times Bangladesh changes its constitution so dramatically, diminishing characteristics of the supreme law of the land,” he wrote in a 2014 research paper for the Asian Human Rights Commission.
(Edited by Amrtansh Arora)
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