As a starting point, there is no provision in the written Constitution on the basis of which the tenure of the government can be fixed at a precise number of days, months, or years. However, it is possible to resort to certain constitutional law principles that may provide useful guidance on what may be an acceptable tenure from the perspective of constitutionality and legitimacy.
My article published in this newspaper on August 14 discussed the constitutionality and legitimacy of the current government. In doing so, the article explained that the constitutionality of the government needs to be understood not only by reference to the words written in the Constitution itself, but also in light of principles or doctrines that evolved over time by practice and by decisions of our Supreme Court. These principles and doctrines, although not written in the constitution, form an integral part of our constitutional law.
The doctrine that is relevant is the “doctrine of necessity.” According to this doctrine a government formed to address a constitutional crisis is constitutional. The constitutionality of the current government can also be founded on Article 7 of the constitution, which states “all powers in the Republic belong to the people.”
The earlier article further explained that the current government is legitimate on the basis of principles derived from the broader concept of “constitutionalism.” For example, the government is legitimate because it came into being by a revolution and thereby acquired legitimacy out of the struggle and sacrifice by the people for the revolution.
The government also draws legitimacy through performance and because it replaced a regime that completely lost its constitutionality and legitimacy due to rigged elections, its ruthless totalitarian character, and eventually by carrying out a mass killing of its own population.
Like the constitutionality and legitimacy, the tenure of the present government would also need to be determined not merely by the written text of the constitution, rather on the basis of the constitutional law principles and the wider concept of constitutionalism.
But first it may be useful to explain why it is not possible to find an answer to the question in the written text of the constitution.
The present government is not formed through the parliament -- none exists right now. Accordingly, the tenure of the government cannot be determined by the five-year tenure of the parliament or the 90-day period between two parliaments. Likewise, the tenure of the government cannot be determined by reference to article 57(2) of the Constitution whereby a government’s tenure ends when the head of the government ceases to retain the support of the majority members of the parliament.
These principles and doctrines, although not written in the constitution, form an integral part of our constitutional law
The non-party care-taker government system that was introduced by the 13th amendment to the Constitution is also not relevant, since that system was declared unconstitutional by the Supreme Court and was abolished by the 15th amendment. More importantly, and let there be no confusion that the present government is not formed under the now non-existent 13th amendment.
This is even though the designations of the members of the government -- Chief Adviser and Adviser -- are derived from the 13th amendment and the government took oath of office on terms similar to those introduced by the 13th amendment.
Clearly, it is not possible to fix the tenure of the government from the written provisions of the constitution. Hence constitutional law principles and legitimacy arising from the concept of constitutionalism are relevant.
On the basis of the doctrine of necessity, it can be said that the interim government can have a tenure as long as there is a necessity for the government to be in charge. This necessity will exist as long as there is a need for reform -- legal, constitutional, judicial, administrative, financial, institutional, electoral, and so on. Similarly, on the basis of Article 7, the government will be entitled to a tenure as long as the people -- to whom all powers in the republic belong -- intend the government to be in charge.
This position also corresponds with the position taken by the Chief Adviser in his address to the nation on August 25, where he indicated that his government would remain in charge as long as the people of Bangladesh consider them necessary.
Now turning to legitimacy, as explained in the August 14 article, legitimacy can arise from a variety of circumstances and factors. However, to focus on legitimacy from the point of view of constitutionalism, it can be said that the government will remain legitimate, first, as long as it continues to carry out the mandate given to it by the revolution and second, as long as it remains effective in the performance of its duties to the nation.
Having noted the principles that would determine the tenure of the current government, the question that needs to be addressed is whether it is possible to come up with an indication of a time frame for the government in accordance with those principles. Of course, the time frame may vary depending on various factors as well as perspectives. It may also change over time depending on how the government is performing and how it is fulfilling the mandate given to it.
Again, this resonates with the view expressed by Prof Yunus in his address that it is necessary for the citizens to give the current government an idea of things that the government needs to complete and things that the government needs to start but perhaps may not need to complete.
From this perspective, a continuous dialogue between the government and all sections of the citizens and political parties is critical. Initially it is needed to set the agenda and mandate for the government; and afterwards it is required to ensure that the constitutionality arising out of the necessity of carrying out that agenda and mandate continues to exist.
As long as the government remains on course in performing the tasks assigned to it through such dialogue with due diligence and promptness, it can be said that the tenure of the government is constitutional.
From a revolutionary constitutionalism perspective, a revolutionary government remains legitimate as long as it is delivering the objectives of the revolution. These objectives for the current government are rather extensive and far-reaching.
In contrast to the current government, the 2007 government of Bangladesh had serious legitimacy issues. That government did not result from a revolution, nor was it expected to carry out a reformation and reconstruction of the entire state
In Bangladesh there was an interim government established in 2007 that lasted for two years. In contrast to the current government, the 2007 government of Bangladesh had serious legitimacy issues. That government did not result from a revolution, nor was it expected to carry out a reformation and reconstruction of the entire state as is expected of the current government. It can also be safely said that the people of Bangladesh expect from the current government much more than what happened in 2007.
In light of the above, a tenure of at least three years for the current government seems perfectly reasonable for carrying out its revolutionary objectives. On this basis, a road map and mandate should be worked out through dialogue between the government and all sections of the citizens and political parties.
To err on the side of conservatism, to begin with, this can be for a three-year tenure, subject to periodic reviews by both the government and the governed. On the basis of these reviews, the tenure can be adjusted by reduction or extension, as necessary. If during this process a continuous dialogue is maintained, the government will not run out of its constitutionality and legitimacy.
Dr Sharif Bhuiyan is a lawyer of the Supreme Court. He would like to thank Reduanul Karim for his assistance.