Awami League loyalists who have fled and are in hiding, continue to claim that the Yunus government is unelected and illegal, and that they do not even have the authority to declare the date for the forthcoming election.
On the other hand, some intellectuals and many from the more impassioned ranks of the movement, argue that since a revolution has taken place and the current government is the outcome of a collective popular will, it is not only legitimate but is in fact duty-bound to discard the old system entirely and rebuild the country with a new constitution.
Our experience, however, suggests that this government itself does not believe it has the authority to start from scratch or to make any bold decisions. Foreign agencies and investors have sensed this weakness and are refraining from entering into any agreements until an elected government is in place.
Meanwhile, they too understand that an interim government lacks the clear-cut legitimacy to sign binding deals. Even when this government receives proposals from reform commissions it has formed itself, it makes no effort to implement them. Instead, it shelves them for the next government. That indicates it does not consider itself authorised to carry out reforms either.
When Hasina fled, the public was relieved when army chief Wakar-Uz-Zaman stepped in to take control of the situation, because a power vacuum at the heart of the state threatens national stability. Later, when Prof Yunus assumed charge under the stewardship of President Shahabuddin Chuppu, people felt reassured to see a legitimate civilian government in power.
The problem remains that even if a constituent assembly is elected, that alone may not be enough to prevent the return of autocracy, because the elected representatives in that assembly may choose not to prioritise that
The legitimacy of this interim government stemmed from the continuity of the existing constitution. Yet, although that continuity was preserved, the Yunus government’s authority ultimately derived from the uprising itself. And since the uprising was not merely about changing power but about ensuring that autocracy could never return, the Yunus government’s legitimacy lay in its mandate to prevent the restoration of dictatorship.
The question is: what are the limits of this interim government's legitimate authority? Since the interim government was formed within the continuity of the existing constitution, it does not have the authority to amend that constitution. And because it has no legislature or parliament, it also lacks the power to make laws. However, as the executive head of the state, the interim government does have the authority to issue decrees.
The question is, can they use decrees to carry out the necessary reforms to ensure that autocracy does not return? The answer is, no. Without constitutional and legal reforms, they cannot prevent the return of authoritarianism.
To change laws, a parliament is required. Since this government does not have an elected parliament, it can attempt to organise parliamentary elections and, through that elected body, enact the necessary legislation. But changing laws alone will not be enough to prevent a return to dictatorship. Fundamental constitutional reform is required to restore a balance of power.
It is under the current constitution that members of parliament take their oath, and therefore, they do not have the mandate to alter the constitution fundamentally. Their power extends only to amendments. Fundamental reforms to the constitution can only be made by an especially empowered body of elected representatives, what is known as a constituent assembly.
Since it is not drafting an entirely new constitution, we may also refer to this body as a constitutional reform assembly. The purpose of electing a constituent assembly is either to draft a new constitution or to carry out fundamental reforms of the existing one.
That means if the interim government merely holds an election to transfer power, it does not fulfill its full mandate. But if it holds an election for a constituent assembly to reform the constitution, then it sets the path toward fulfilling its responsibility.
However, the problem remains that even if a constituent assembly is elected, that alone may not be enough to prevent the return of autocracy, because the elected representatives in that assembly may choose not to prioritise that goal.
The solution to this problem can be found in the history of our own region. After the fall of Ayub Khan, the need to resolve the constitutional imbalance between West and East Pakistan became urgent. That’s why, when Yahya Khan announced the 1970 election, he issued the Legal Framework Order (LFO), under which the election was intended to form a constituent assembly. The objectives of that constituent assembly were clearly outlined in the LFO.
That means the way for this interim government to fulfill its promise is to formulate a new Legal Framework Order and hold elections for a constituent assembly. Fortunately, the July Charter being drafted by the Consensus Commission reflects a consensus among all political parties.
This charter could serve as today’s Legal Framework Order. A constituent assembly formed on the basis of this charter would be obligated to implement all the reforms outlined in the July Charter. And if that happens, the interim government’s pledge would be fulfilled and it would be able to step down with dignity by transferring power to an elected government under the newly reformed constitution.
* Syed Hasibuddin Hossain is an activist of the Rasthra Sangskar Anodolan
* The views expressed here are the author’s own.