The legality of Bangladesh's interim government: De jure, de facto and the Doctrine of Necessity

Imagine a nation teetering on the brink. Perhaps a leader has stepped down, a revolution has swept through, or a natural disaster has left the government in disarray. What happens next? Who takes control? This is where the fascinating concept of an interim government steps onto the stage.

An interim government is essentially a temporary administration, a bridge between a collapsing old regime and a newly established one. It serves as a caretaker, the 'hold-the-fort' crew, tasked with guiding the nation through a period of transition. Think of it as the intermission between acts in a play, a pause to reset the stage for the next grand performance.

The purpose of an interim government is threefold. First, it provides immediate stability to a nation in crisis. Consider it a calm hand on the tiller, steering the boat through choppy waters. It ensures that essential services continue running, law and order is maintained, and the wheels of governance do not come off entirely.

Second, the interim government lays the groundwork for a more permanent solution. This could involve organising elections, drafting a new constitution, or initiating key reforms. Most importantly, an interim government can help heal the wounds of a fractured nation, aiming to rebuild trust, promote dialogue, and pave the way for a more unified future.

For example, take the transition in South Africa after the end of apartheid in 1994. The interim government, led by Nelson Mandela, played a pivotal role in setting the stage for the first democratic elections. It helped create a new constitution, establish a Truth and Reconciliation Commission to address past injustices, and set the foundation for a peaceful and unified future for the nation.

The term "interim government" gained modern significance during the revolutions of 1848 in Europe. Many of these revolutionary governments were labelled as "provisional", as they aimed to establish new political orders and prepare for future elections.

In Bangladesh, the concept of interim or caretaker governments has evolved through various constitutional amendments and political crises. The Constitution of Bangladesh once had a provision for a caretaker government, introduced in 1996, but the system was abolished in 2011 through the 15th Amendment. However, recent political developments have effectively placed the country under the hands of such an interim government again, despite the constitutional change.

Broadly speaking, a nation's constitution serves as its foundational legal framework, outlining the structure of government and the rights and duties of the people. As the supreme law, the constitution dictates how a government and its cabinet are to be formed. Since an interim government essentially plays the same role as a full government, it too must be established in accordance with the constitution.

But how can something that can be considered somewhat unconstitutional come into effect, one might ask, since there is no higher law than the Constitution?

Here's an explanation. In international law, 'de jure' and 'de facto' describe different aspects of government authority. 'De jure' signifies a government's legitimacy as recognised by a nation's legal framework. By taking an oath officially administered by the president, the current interim government ensures its legal status.

'De facto' refers to actual, practical control. An interim government's effective management of state functions demonstrates de facto control, implying public support and a tangible exercise of power. Although not necessarily formally sanctioned, this control reflects the reality of governance and the interim government's ability to function.

International recognition is also crucial in today's globalised world. When entities like the United Nations or other nations acknowledge and engage with a new authority, it further solidifies that government's legitimacy. In the modern global arena, international acknowledgement plays a critical role in reinforcing legitimacy.

Another relevant principle is the Doctrine of Necessity, which applies to exceptional circumstances where the state's functioning is hindered by sudden institutional abnormalities or political discontinuity. In such cases, applying constitutional principles flexibly is essential to maintaining the rule of law and ensuring justice. Although constitutional principles are a substantial part of the legal structure, elasticity is sometimes needed to safeguard citizens' fundamental rights.

Furthermore, this doctrine suggests that rather than an overly idealistic approach, a pragmatic one is crucial. Given the country's critical moment, flexibility and adaptability are essential for the greater good of the people.

Article 7(2) of the constitution asserts that it serves as the solemn expression of the people's will. However, Article 57(3) states that the prime minister holds office until a successor takes over. This provision became impractical when the prime minister resigned and left the country, making the process of appointing a successor unfeasible.

The 13th Amendment to the Constitution, passed in 1996, provided for a non-party caretaker government to assist the Election Commission in holding peaceful, fair, and impartial general elections. The caretaker government, collectively responsible to the president, would be dissolved when the new prime minister took office. However, the 15th Amendment in 2011 abolished the caretaker government system, citing major flaws, including the politicisation of the judiciary, which undermined public confidence in the Supreme Court.

The Appellate Division of the Supreme Court suggested a legislature-led government during elections, complementing the empowerment of the Election Commission. However, no alternative mechanism for an all-party interim government was introduced after the caretaker government's abolition.

The current interim government, despite being viewed as unconstitutional by some, has the people's mandate and a primary duty: to restore peace and security while ensuring the smooth operation of governance. 

Its secondary responsibility is to create a safe and unbiased environment for conducting free and fair elections, and establishing a clear timeline for a general election. The interim government must act with integrity, holding the interval period responsibly, and ensuring a peaceful transition to a democratically elected government.

Susmita Banik is an LLM student at Jagannath University, currently working as an intern at the Supreme Court Legal Aid Office under the USAID Ain Shohayota Activity project.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard