A mass movement led by students has ushered in a new dawn in Bangladesh. What began as a claim for reform of the quota system transformed into a national movement to oust Bangladesh’s long-standing autocrat from office after 15 years. In the aftermath of Sheikh Hasina’s fall, the question on everyone’s mind has been where to go from here. An interim government has been formed under Professor Muhammad Yunus, with a cabinet of advisors including a handful of technocratic experts, two students from the movement and a selection of lawyers, NGO leaders and activists, and a representative of one of the mainstream Islamist parties, the Hefazati Islam. Key tasks ahead of this government will be to restore law and order, steer the bureaucracy and state apparatus, and prepare for electoral transition. This commentary examines some of these issues.
A mass movement has ushered in a new dawn in Bangladesh. 15 years of authoritarian rule defined by grotesque human rights abuses unraveled in a matter of weeks with unprecedented bloodshed. The movement has been led by university students. What began as a claim for reform of the quota system transformed into a national movement to oust Bangladesh’s longstanding autocrat from office. The quota system for the civil service jobs had previously been reserved at 30 percent for war veterans, their children and grandchildren, and a further 26 percent cumulatively allocated for women, residents of specific districts, persons with disabilities, etc. After some initial agitation demanding reform of this system, the government completely abolished it by executive order in 2018. Subsequently, in response to a writ petition, the High Court Division of the Supreme Court of Bangladesh declared unconstitutional the quota cancellation for war veterans in June 2024. This ruling galvanized further protest through July 2024. Although the Appellate Division of the Supreme Court then sought to intervene (on appeal by the state) by fixing a 7 percent quota for different groups including veterans and their children but excluding grandchildren—a task that should have been left to the government as a matter of policy—the Rubicon had been crossed.
Sheikh Hasina’s departure was nothing short of stunning, both because of the incredible mass mobilization that forced it and the swiftness with which it occurred. The iron lady was assumed to have had a tight grip on politics, speech, thought, imagination, and tragically, life and limb. Information continues to unfold about a reign of terror, which for many, had no ostensible end in sight. Hasina’s term began in 2009 in an election largely held to be free and fair. Yet, a constitutionally formed government subsequently became the Frankenstein that history will likely associate the Awami League (“AL”) (the liberation party of Bangladesh) with for a long time to come. Discontent against the regime was brewing and the quota movement became the ultimate litmus test for the regime, laying bare both the hubris of the government and the complicity of so many institutions that secured its monopoly on violence. Police brutality, enforced disappearances, and extrajudicial killings have been hallmarks of this regime, more so than any past government. Once the opposition was neutralized, it was only a matter of time before civilians became the target of such violence—unleashing a particular kind of evil as the state targeted its youth—the future of the nation.
In the aftermath of Sheikh Hasina’s fall, the question on everyone’s mind has been where to go from here. Since August 6, police stations in Dhaka have been empty in fear of mob reprisal, though efforts have been under way to recall the police with a new Inspector General appointed. At the time of writing, courts around the country are gradually returning to their regular sessions. The army has intermittently intervened to address lawlessness, which is technically not its mandate since no emergency has been declared. An interim government has been formed under Professor Muhammad Yunus, with a cabinet of advisors including a handful of technocratic experts, and a selection of lawyers, NGO leaders and activists, and a representative of one of the mainstream Islamist parties, the Hefazati Islam. Interestingly, two student coordinators of the movement have also been selected as advisors. Key tasks ahead of this government will be to restore law and order, steer the bureaucracy and state apparatus, and prepare for electoral transition. Present public mood seems to suggest that Bangladesh has secured a second independence, and perhaps this government is expected to do more than what previous interim governments had done. This commentary offers some cautionary considerations around some of these issues.
- The Constitutional Question: Legal Status of the Interim Government
The President dissolved the Parliament shortly after the Prime Minister’s departure in early August. The usual course of action under such circumstances would have required triggering the process under Article 57 (2) of the Constitution. It allows the President to either appoint as Prime Minister a Member of Parliament who commands the support of the majority members, or in the event that no such person can be found, dissolve the Parliament. During a transitional period i.e., after parliament is dissolved and before the next election, the President may also recall members of the immediate past parliament to execute the Article 57 process. However, given the circumstances of Sheikh Hasina’s unceremonious exit, the impossibility of recalling any members of the previous parliament, and since the President dissolved the parliament without triggering Article 57, these options were inapplicable. Therefore, a veritable constitutional vacuum existed regarding incorporation of the interim government within the constitutional framework.
Reportedly, the President sought a reference from the Supreme Court as provided for under Article 106 of the Constitution, in which the Court held that the interim process of forming a government was legal. Though the opinion is not publicly available, for now it has facilitated some legitimacy to the interim government. Fortunately, Bangladesh has several precedents which it might draw from. The first of such transitional provisions was the Provisional Constitutional Order, 1972, which operated during the period between the declaration of independence on April 10, 1971, and the adoption of the Constitution in 1972. It was included in the Fourth schedule of the Constitution. Subsequently, governments that operated during extra-constitutional periods of military takeover under President Ziaur Rahman and President H.M. Ershad, had introduced the Fifth (1979) and the Seventh (1986) constitutional amendments respectively, to retrospectively validate their actions. During the democratic transition in 1991, a caretaker government was formed, during which the Chief Justice temporarily left his post to lead it. The Eleventh amendment adopted transitional provisions to accommodate the Chief Justice. Transitional provisions that were initially designed to retrospectively accommodate certain legal instruments and government actions before December 1972, now extended to the Fifth, Seventh and Eleventh amendment, and were collectively included in the Fourth Schedule.
Subsequently, the Supreme Court reviewed the Seventh constitutional amendment. It held that no other provision made after 16 December 1972 may be included in the Fourth Schedule, and if a valid amendment is made, it may be placed either in the Constitution or separately (presumably) as an appendix or schedule. Consequently, the Fifth, Seventh and the Eleventh amendments have been erased from the Constitution by the Fifteenth amendment, with the consequence that there is now no constitutional record that these events had ever taken place. These instances of retrospective amendments to accommodate exceptional circumstances appear to have become a permanent feature of Bangladeshi constitutional politics. Such a machination of retrospective validation will no doubt conjure itself if and when an elected government is put in place. Politics after all should not operate untethered from legality, if for no other reason than to ensure continuity and stability.
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Cynthia Farid is a Global Academic Fellow at the Faculty of Law, University of Hong Kong.
Author’s Note: I am grateful to Professor Rohit De, Dr. Shahana Siddiqui, Dr. Morshed Mannan, Rezaur Rahman Lenin and Shakhawat Liton for reading earlier drafts of this commentary.
Ed Note: This article has been edited by Sukrut Khandekar and published by Abhishek Sanjay from the Student Editorial Board.
