Attempts are being made to cast doubt about the constitutionality of the Prof Yunus-led government by suggesting that Sheikh Hasina has not resigned the office of the prime minister and hence her government is still in existence. This is simply wrong. The constitutionality and the legitimacy of the Prof Yunus-led government do not depend on whether Hasina has tendered a resignation or not.
In the ordinary, as well as in the legal sense, legitimacy is a broader concept than constitutionality. Constitutionality would require adherence to the constitutional norms and principles, whereas legitimacy can be derived from many different sources. This article explains how the present government is both constitutional and legitimate.
Constitutionality
The very fact that the prime minister fled the country, was incommunicado and was not available to discharge her constitutional duties created a constitutional vacuum and crisis. This vacuum and crisis existed since August 5 irrespective of whether the prime minister tendered a resignation or not. There are principles and doctrines that form part of Bangladesh constitutional law for addressing such crisis. Accordingly, the constitutionality of the present government originates from the constitutional crisis; and the crisis was there irrespective of the existence or non-existence of a resignation.
The constitutional law of Bangladesh includes not just the words written in the constitution itself, but also various other principles and doctrines that evolved over time by practice and, perhaps more importantly, by decisions of the Supreme Court. To provide one familiar example, there is a basic structure doctrine.
According to this doctrine, the Constitution has a basic structure and no amendment to the Constitution can be made that alters the basic structure. As many would know, our Supreme Court declared several constitutional amendments illegal on the basis of the basic structure doctrine (even before this concept was introduced in the written Constitution by the 15th amendment in 2011). Thus, the doctrine of basic structure was part of Bangladesh constitutional law, even before it was written into the Constitution.
There is another constitutional doctrine which, although not written into the Constitution, is very much a well-established part of Bangladesh constitutional law. It is known as the “doctrine of necessity.” This doctrine has been recognized by our Supreme Court on many occasions, latest being in the judgments in the 13th amendment case in 2011 and the 16th amendment case in 2017.
The purpose of this doctrine is to prevent catastrophic consequences to the body politic and the social order, which may result among other things from a constitutional crisis. According to this doctrine, acts that are not permitted by the Constitution will still be constitutional if they were necessary and were done in good faith with the intention to preserve the constitution, the people, the state or the society.
The overthrown regime was entirely unconstitutional and illegitimate
The Yunus-led government was formed to address a constitutional crisis of a catastrophic magnitude that Bangladesh never faced since its independence. Accordingly, this government is absolutely constitutional under Bangladesh constitutional law.
The constitutionality of the government can be further defended on the basis of article 7 of the Constitution, which states that “all powers in the Republic belong to the people.” It is beyond question that the Yunus-led government took responsibility on the basis of an overwhelming demand of the people.
Legitimacy
Legitimacy can be derived not just from constitutionality or legality but from a variety of circumstances and factors. In an ordinary sense something can be said to be legitimate if it can be “defended with logic or justification.” Such logic and justification can come not just from law and constitution but from other sources as well.
However, this article will explain the legitimacy of the government from the point of view of constitutionalism. Constitutionalism concerns political accountability of public governance and it is a notion wider than the constitutional law of any particular country.
From a constitutionalism perspective, Yunus-led government is legitimate because it has resulted from a revolution. A government formed through revolution acquires legitimacy as a result of the struggle and sacrifice by and on behalf of the people in getting rid of the old government. There are many instances of such legitimacy. Examples will include governments formed through American and Russian revolutions or, in more recent times, the governments formed following the Arab spring.
Another way in which legitimacy can be derived is the performance of the government, including ensuring orderly function of the society and the body politic. Hasina’s government ceased to exist since August 8 and the whole country was in a chaotic state since that day. The present government was sworn in on August 8. In less than a week there has been a significant improvement in all areas of life. Clearly, the government has already acquired legitimacy through performance.
There is yet another reason for which the government is legitimate. This legitimacy arises from the fact that through successive rigged and unconstitutional elections the previous regime completely deprived the people of any participation in the governance. The overthrown regime was entirely unconstitutional and illegitimate. By contrast, the present government has been formed through a revolution and on the basis of a popular demand making it legitimate.
Dr Sharif Bhuiyan is a lawyer of the Supreme Court. He would like to thank Reduanul Karim for his assistance.