Rebels who take over government by force of arms always advance altruistic reasons for their reasonable action. The invocation of selfless reasons for taking over power is an attempt by the rebels to pass for reformers (if not ‘liberators’ or ‘messiahs’, at least ‘development dictators’) with a self-appointed mandate to effect sweeping economic, social and political reforms. But behind the altruistic reasons pleaded in justification of the take-over, however, self-interests always loom large.
As the nation grapples with political upheaval, the legitimacy and constitutionality of Bangladesh’s current Muhammad Yunus-led interim government remain shrouded in ambiguity. One group of scholars has swiftly invoked the century-old theory of “revolutionary legality” and the “doctrine of necessity”to validate the interim government’s position. These experts argue that extraordinary circumstances necessitate extraordinary measures, providing a legal basis for the current administration.
Meanwhile, another faction of legal minds wrestles with understanding the nature and extent of the interim government’s mandate within the existing constitutional framework. These scholars caution against hasty conclusions, emphasizing the need to thoroughly examine constitutional provisions and precedents. A third group has turned to a fundamental constitutional principle, asserting that the mass revolution is the source of all power. They argue that popular support could legitimize the interim government, regardless of procedural irregularities.
However, these conflicting assertions have only muddied the waters, failing to prove the government’s legitimacy. Moreover, given that the current interim government has taken the oath under this constitution and, hence, is bound to protect the value of the constitution, this adds further complexity to the mandate of the government. The following will shed a light on why:
In 1920, in his General Theory of Law and State, Henry Kelsen argued that a successful revolution or coup d’état effectively ends the existing legal order and establishes a new one. For Kelsen, the success of a revolution or coup d’état hinges on two critical factors: (i) general acceptance by the people and (ii) obedience to the laws of the new rulers and enforcement by the courts. Kelsen was not particularly concerned whether the rebels had a valid reason for their actions or were motivated by a truly democratic desire. In many politically unstable countries, Kelsen’s theory is commonly used to justify extra-constitutional revolutions and subsequent constitutional changes. Yet, it does not help distinguish between a democratic re-constitution and a coup d’état.
The threshold for what constitutes a “successful revolution” in Kelsenian terms remains prickly. Take, for instance, Bangladesh’s 1975 martial law regime. During the martial law proclamation, the judiciary continued to function within the constraints imposed by the military authorities. Crucially, Supreme Court judges were not required to take new oaths of office - a clear indication that the existing legal order was not entirely dismantled and replaced. The judiciary declared the legitimacy of the martial law regime based on Kelsen’s theory. However, according to the late Professor Ershadul Bari, the events of 15 August 1975 in Bangladesh may not meet Kelsen's strict criteria for a ‘revolution’ since there was no cessation of the old order or establishment of a new order.
Fast-forward to present-day Bangladesh, and we see a similar pattern unfolding. The interim government and the newly appointed Chief Justice by the President have sworn their oaths under the Constitution. Although there were instances where students forced the Chief Justice and other Appellate Division judges to resign, courts continue to operate as usual, and there is clear continuity in the application of law. These factors strongly indicate that the Constitution remains the supreme law of the land, preserving Bangladesh’s status as a constitutional democracy. Therefore, the legitimacy of the administration, which assumed power following student-led mass protests, and the legality of their actions must face scrutiny under the very constitutional framework within which it operates and must be bound by Article 111 of the constitution.
Courts worldwide have vacillated to fully embrace Hans Kelsen’s theory of revolutionary legality, often treading a fine line between acknowledging revolutionary changes and maintaining legal continuity (citing the doctrine of necessity).
Its first notable use came in the 1958 State v Dosso case in Pakistan. This decision infamously paved the way for future military interventions in politics, potentially derailing the country's democratization process. In the Asma Jilani case, the court overruled the Dosso ruling. It held that Kelsen’s theory was not universally accepted, and Kelsen did not attempt to formulate a theory favoring totalitarianism. Rather, he aimed to establish a pure theory of law as a collection of norms. The court emphasized that Kelsen’s theory does not necessitate changes in legal norms for the daily concerns of judges, legal practitioners, or administrators.
This skepticism was further reinforced in the landmark case of Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan (1977). The court was not convinced that military intervention was inherently legal just because it was accepted and became effective. Even if the old Constitution is destroyed, it doesn’t mean all legal and moral concepts have been destroyed just because they're not mentioned in the new legal order.
Turning back to Bangladesh
Since the first proclamation of martial law in 1975, several Supreme Court cases have discussed Kelsen’s theory to justify the seizure of power by extra-constitutional forces, the suspension of the Constitution, and the abrogation of the judiciary's power to uphold constitutional democracy.
From time to time, the judiciary echoed the conflicting interests between guaranteeing constitutional democracy and the extra-constitutional usurpation of power. Finally, the 2010 Appellate Division rulings in the Fifth and Seventh Amendment cases further solidified Bangladesh’s identity as a “democratic Republic” governed by “elected representatives”. Notably, the court declared that ‘any attempt by any person or group of persons, how high so ever, to usurp an elected government, shall render themselves liable for high treason.’
These judicial pronouncements catalyzed the Fifteenth Constitutional Amendment, introducing Articles 7A and 7B. Article 7A criminalizes any attempt to abrogate, repeal, suspend, or subvert the Constitution through force or unconstitutional means as sedition. Article 7B enshrines the immutability of the Constitution’s basic structure.
Previously, in landmark cases like Kudrat Elahi Panir and Anowar Hossain Chowdhury, Article 7 of the Constitution has been established as one of the basic pillars of the Constitution, which represents the “solemn expression of the will of the people” and “[i]t emphatically, without ambiguity, declares the supremacy of the Constitution.” (Kudrat-E-Elahi Panir v Bangladesh, para 72).
The legality of Bangladesh’s interim government stands on shaky ground following the repeal of the Thirteenth Constitutional Amendment. While the doctrine of necessity may offer a partial justification, this administration’s unelected nature raises significant legitimacy questions about its mandate and duration.
Moreover, Bangladesh has historically been a parliamentary democracy, and the election represents the people’s will. At the heart of our constitutional framework lies Article 7, a pillar of its basic structure, which mandates that the exercise of people’s power must comply with constitutional provisions -- a mandate that can only be fulfilled through free and fair elections. This principle is not merely a guideline; it is the very essence of our democracy. The Constitution also provides a timeline for holding an election if the parliament is dissolved. According to article 123(3), a general election shall be held within 90 days ofthe dissolution of the parliament.
There is also a little murmuring about constitutional reform,which is deeply concerning for the future of democracy in Bangladesh. Traditionally, the authority to create or modify the constitution lies with the democratically elected representatives, in line with the principles established during the 18th-century American and French revolutions. Thomas Young, an influential figure in the American Revolution, articulated this concept in 1777, stating that “the people... are the supreme constituent power and therefore, their immediate [r]epresentatives are the supreme [d]elegate power.” In a constitutional democracy, the power to adopt and amend a constitution can only be delegated according to the provisions outlined in the constitution.
Bangladesh’s constitution, a testament to our nation’s democratic foundations, was crafted by 469 elected representatives who signed the Declaration of Independence following the 1970 general elections. The constitution pledges the “high ideals of nationalism, socialism, democracy, and secularism.” The constitution’s architects wisely included safeguards against hasty or ill-considered changes. Article 142 stipulates that any constitutional amendment requires a two-thirds majority in Parliament - a high bar deliberately set to ensure broad consensus for such fundamental alterations. In addition, our Supreme Court holds the responsibility to ensure any amendments passed by the Parliament do not violate the fundamental structure of the Constitution.
In light of these established principles, any attempt to suspend, revoke, or modify the Constitution without the involvement of elected representatives undermines our democratic values and aspirations. If undertaken by an unelected interim government or any group, such actions would not only violate the letter of the law but also betray the spirit of what our constitution represents.
The path forward is clear: Bangladesh must restore its democratic traditions and constitutional values by holding timely elections. Only through this can we ensure that the people’s voice remains at the heart of our nation’s governance.
Sangita F Gazi is a Post-Doctoral Scholar at the Wharton Business School, University of Pennsylvania
