Interim Government and the Constitution of Bangladesh

The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, Sedition Law in India, New Report from the Law Library of Congress On The Regulation of Hemp Around the World, and FALQ posts on Proposals to Reform Pakistan’s Blasphemy Laws, Article 370 and the Removal of Jammu and Kashmir’s Special Status, and The Controversy Over Marriage and Anti-Conversion Laws in India.

In the last few months, Bangladesh has been embroiled in a political crisis that culminated in the resignation and forced departure of Prime Minister Sheikh Hasina and the establishment of an interim government. The country faced university student protests in much of July 2024 that were triggered by a June decision of the High Court Division of the Supreme Court of Bangladesh, which reinstated a 30% quota system for civil service/government jobs for descendants of veterans of the 1971 Bangladesh War of Independence. In the face of an economic crisis and rising inflation, protestors have argued that “such quota appointments are discriminatory and that the appointments should be merit-based.” This quota system was partly abolished (for grades ninth to thirteenth – formerly known as Class I and Class II jobs) in 2018 by the Hasina government via a circular. On July 10, the Appellate Division of the Supreme Court suspended the reinstated quotas for one month and on July 21, overturned the High Court decision and drastically curtailed the quotas to 5% for “children of freedom fighters” with 93% of government jobs being merit-based.

The protests led to a harsh crackdown by authorities that led to the deaths of around 300 people with thousands injured. Despite the Appellate Court decision in the protestors’ favor, the demands continued for the resignation of the prime minister and accountability for the deaths. On August 5, 2024, the prime minister fled the country to India in a helicopter as protesters stormed the Ganabhaban, the official residence of the prime minister.

On the same day of her departure and resignation, army chief General Waker-Uz-Zaman announced that an interim government would be formed to run Bangladesh. The next day, parliament was dissolved by the President and on August 8, Nobel laureate Muhammad Yunus was sworn in as Bangladesh’s interim prime minister.

What does the Constitution of Bangladesh say about forming interim governments?

Article 123(3)(b) stipulates that if parliament is dissolved for any other reason before the end of its term, general elections must be held “within ninety days after such dissolution.” Moreover, articles 58(4) & 57(3) provide that the prime minister [and existing ministers] continue to “hold office until his [or her] successor has entered upon office” if he or she resigns or ceases to hold office. However, there are no provisions that regulate the formation and running of an interim or caretaker government.

According to a research fellow at the Institute of South Asian Studies (ISAS) at the National University of Singapore (NUS), “[h]istorically, neutral caretaker governments were mandated to oversee general elections intended for every five years.” In 1996, the 13th Amendment was introduced to provide for a non-partisan caretaker system under the added Chapter IIA: Non-Party Caretaker Government which regulates the appointment, qualifications, and functions of the caretaker government. The government was composed of advisors headed by a retired chief justice and appointed by the President. The caretaker government was responsible with the Election Commission to oversee general elections and “carry on the routine functions of such government” in the interregnum period. Elections were held in 1996, 2001, and 2009 under this system. In May 2011, the Appellate Division of the Supreme Court declared the 13th Amendment “void and ultra vires” of the Constitution as it was undemocratic and contravened the independence of the judiciary. However, the Court allowed the caretaker system to be in place for the next two elections under the doctrines of necessity and state safety. Nevertheless, the Awami League government in June 2011 abolished the caretaker system under the 15th Amendment by omitting Chapter IIA.

What law applies to the formation of an interim government and what authorities does it have?

The absence of provisions for an interim government appears to have created a “legal complexity” in the minds of many legal commentators. One Supreme Court lawyer describes the situation as an “extraordinary government” that has been formed in Bangladesh under “extraordinary circumstances.” There is an ongoing debate about whether this is a revolutionary moment and the extent to which this government is bound to the current constitution. There is also discussion that a constitutional amendment may be needed to legitimize the interim setup. However, it was reported on August 8, that before the interim government took its oath of office, the President, through the Ministry of Law, Justice, and Parliamentary Affairs, sought a legal opinion from the Supreme Court according to article 106 “asking whether an interim government could be formed under the circumstances.”  A full bench of the Appellate Division on the same day issued a ruling “in favour of the formation of the interim government,” stating that “an interim government can be formed with a chief advisor and a few other advisors in the absence of parliament.”

There is also speculation that it is unlikely that general elections will be able to be held within the constitutional window and that the “doctrine of necessity” may be invoked to extend the period of the interim government allowing it to implement political and constitutional reforms before an election can be held. However, others warn how politically and constitutionally fraught it can be for an unelected interim government to implement major constitutional reforms without democratic legitimacy.

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