The legitimacy of the Interim Government, sworn in on 8 August 2024, has sparked debate. Some justify it using the doctrine of necessity or Kelsen’s “Grundnorm” shift, both of which have historically been used to support military takeovers. However, theories that fail to differentiate between a people’s revolution and a military coup are unconvincing. This essay argues that the Interim Government, born from a mass uprising, stands on stronger foundations—those derived from the people, not from abstract legal doctrines.
The Bangladesh Constitution was framed and adopted in 1972 by the Constituent Assembly in exercise of its constituent power. According to Bangladeshi and Indian jurisprudence, this constituent power belonged to the people and was exercised on their behalf by the Constituent Assembly. In the hands of the people, the constituent power comprised the legislative, executive and judicial powers. There was no demarcation between the three powers as the doctrine of separation of powers did not apply to the constituent authority. While adopting the Constitution, the Constituent Assembly distributed the constituent powers held by the people between the three organs of the State. According to Indian jurisprudence, once distributed, the people cannot thereafter exercise the constituent power. This view is supported by the German scholar, Martin Kriele who argues in favour of “silencing” the constituent power after it brings a constitution into effect, to protect the constitution from political unpredictability. According to this theory of constitution-making, once the Constitution is established, no constitutional order can exist that contradicts its provisions. Therefore, by this reasoning, the interim government, along with the positions of advisor and chief advisor, which are not recognized by the Constitution, lack legitimacy.
However, the idea that constituent power ends with the framing of the constitution is a legal fiction and has been described by a former Judge of the Federal Constitution Court of Germany, Ernst-Wolfgang Böckenförde as a “juristic sleight-of-hand”. Ernst-Wolfgang Böckenförde argues that constituent power, as a political force, continues to exist and cannot be dismissed even after the constitution is in place. Böckenförde observes that “it is a peculiar notion that the necessary legitimation of the constitution could be condensed into a single point, its (revolutionary) creation, from which the constitution is then valid in a virtually self- sustaining process, independent of the continued existence of this legitimation.” He argues that constituent power, as a political force, continues to exist and cannot be dismissed even after the constitution is in place. Similarly, the 20th century German legal theorist, Carl Schmitt argued that constituent power can be exercised while a constitution is already in existence. The people’s constituent power remains present alongside and above any established constitutional order. Thus, Schmitt observes “constitution-making power is
not thereby expended or eliminated, because it was exercised once.” Hèctor Lopez Bofill also indicates how scholars view constituent power as a continuous process of reconstruction, not just a one-time event during the initial framing. Therefore, the events of July and August 2024 are best explained in terms of a continuing constituent power. Without the concept of constituent power, the constitutional relevance of the July and August revolution cannot be fully explained and nor can the constitutional changes it has brought about be appreciated. In August 2024 we saw a new constitutional order established not under the existing constitution, but in exercise of the constituent power of the people. It is wrong to look for legitimacy of the Interim Government under the present constitution. Members of the government describe themselves as advisors being led by a chief advisor. None of these posts exist in the constitution or any other law of the land. The posts can be best explained by having been created in exercise of constituent power. The historical-political events of August 2024 led to the exercise of such constituent power by the people to establish a new constitutional order. The exercise of constituent power does not necessarily imply abrogation of the constitution. The existence of the constitution is in no way contrary to the wielding and exercise of constituent power by the people. According to Böckenförde, the constituent power can erode the constitution “piece by piece in individual steps”. Thus, the historical-political processes of July and August 2024 have led to the exercise of constituent powers by the people to establish a new constitutional order which may erode aspects of the existing Constitution. The interim government, made up of advisors and a chief advisor, operates because it was established by the people through the exercise of their constituent power. This as scholars argue is pre-legal power and it is incorrect to look for a legal basis for its exercise in the constitution or any other law. The historical-political processes of 2024 can be argued to have invested the people with the necessary constituent power of framing a new Constitution.
The other two competing doctrines are inappropriate for describing the July Revolution. They have been criticised as legitimising military dictatorships. The doctrine of necessity has been used to justify certain actions that are otherwise illegal or unconstitutional, based on the need to prevent greater harm or preserve public order. It has been invoked in various constitutional crises to legitimize emergency measures or military takeovers. In the Seventh Amendment case, the doctrine was criticised by the Appellate Division as justifying unconstitutional acts and it observed that the doctrine cannot “make an illegal act a legal one.”
Kelsen’s theory of “Grundnorm” shift provides a framework for understanding legal transitions following revolutions or coups. The theory treats military takeovers and people’s revolutions in the same manner. In the Eighth Amendment case, the Appellate Division noted with dismay how the Supreme Court of Pakistan had used this theory to legitimise unconstitutional acts. One Bangladeshi scholar has attempted to go around this problem by describing the Grundnorm as the “will of the people”. But the Grundnorm is not the “will of the people”. According to J W Harris, the Grundnorm is a theoretical construct used to explain legal validity, rather than a reflection of actual societal preferences or decisions. Kelsen’s theory focuses on the logical structure of legal systems rather than popular sovereignty or will of the people.
Thus, it can be concluded that the Interim Government finds its legitimacy not through the current constitutional framework but through the exercise of the people’s constituent power. While competing theories like the doctrine of necessity and Kelsen’s “Grundnorm” shift offer explanations for legal transitions, they fail to distinguish between military coups and people’s revolutions. The mass uprising of 2024 demonstrates that the people’s constituent power remains active, capable of reshaping constitutional orders without necessarily abrogating the Constitution, as noted by scholars like Böckenförde. This people’s mandate creates a new constitutional legitimacy.