Joy: Hilarious constitutional expert on the block

When the prime minister flees the country and all the cabinet members and MPs disappear from public life only to avert public wrath, the president is bound by his oath to fill the constitutional vacuum to preserve, protect and uphold the constitution

The latest claim, made by ousted prime minister Hasina’s son and her ICT adviser Sajeeb Wajed Joy that his mother who fled the country escaping public wrath on 5 August for long misrule by her government is still the premier of Bangladesh, sounds hilarious.  

He claimed, in defence, that his mother did not officially resign. “She had planned to make a statement and submit her resignation. But then the protesters started marching to the prime minister’s residence. And there was no time. My mother wasn’t even packed. As far as the constitution goes, she is still the prime minister of Bangladesh,” Joy told Reuters from Washington.

He said though the president had dissolved parliament after consulting with military chiefs and opposition politicians, the formation of a caretaker government without the prime minister actually formally resigning “can be challenged in court.”

A report by NDTV said Joy terms the newly formed interim government “unconstitutional.”

Staying in the United States, Hasina’s son made many comments in the last few days and has become the lone voice of the Awami League. Some of his comments were funny, some were rational.

But his latest claim that his mother is still the prime minister exposes his ignorance of the reality on the ground in post-Hasina Bangladesh. And his interpretation of the constitutional provisions does not hold any ground.   

People in Bangladesh have been experiencing utter chaos, insecurity and lawlessness as Hasina fled the country for India leaving the country in a dangerous constitutional vacuum.

Every institution from the judiciary to the police to civil administration fell along with Hasina.

Police abandoned stations, and none of them were on duty. A sense of insecurity gripped the country’s people.

Incidents of robbery took place in some areas in the city prompting people to build social resistance against miscreants. They spend sleepless nights guarding the localities. Students who took to the streets against the Hasina government are still in the streets to control traffic movement in the absence of police.

As former attorney general Mahmudul Islam writes in his book “Constitutional Law of Bangladesh” the president has taken a mandatory oath. “The oath creates an obligation of duty for the president to act to preserve, protect and defend the constitution.”

This is an extraordinary situation Bangladesh has never seen before.

After Hasina fled, what the country needed first and fast was a government to restore order by enforcing the laws.

Amid such a situation, the president used his discretionary powers under the constitution to dissolve the parliament paving the way for the formation of an interim government. And, in a peaceful situation, the president requires the advice of the prime minister to dissolve the parliament.

But when the prime minister flees the country and all the cabinet members and MPs disappear from public life only to avert public wrath, the president is bound by his oath to fill the constitutional vacuum to preserve, protect and uphold the constitution.

President Muhammed Shahabuddin performed his constitutional duty in an extraordinary situation to save the country.

The office of the president is largely known as a ceremonial post in parliamentary democracy. And except for the appointment of the prime minister and chief justice, he performs all of his duties on the advice of the prime minister.

But imagine the situation prevailed after the ouster of the Hasina government. Who will act to save the constitution and country as well? The responsibility lies with the president.

As former attorney general Mahmudul Islam writes in his book “Constitutional Law of Bangladesh” the president has taken a mandatory oath in terms of Article 148 “to preserve, protect and defend the constitution is not just a matter of formality or rituals.”

“The oath creates an obligation of duty for the president to act to preserve, protect and defend the constitution,” writes the widely acclaimed constitutional expert.

Take another example.

The president cannot promulgate an Ordinance without being advised by the prime minister. The former attorney general writes, “But the situation may arise where promulgation of an Ordinance becomes a necessity for the preservation of the constitution and the continuity of the constitutional process. The president may promulgate such Ordinance without being so advised by the prime minister and the doctrine of necessity will render such Ordinance valid.”

In the afternoon of 5 August, Chief of Army Staff General Wakar-uz-Zaman announced her resignation and formation of an interim government within the shortest possible time.

The day Hasina resigned, the parliament was still alive with almost all MPs belonging to Awami League. None of them was able to claim that Hasina resigned as PM so let’s form a new government.

But all AL MPs disappeared, let alone emerging as a group of 151 members required to form a government and making one of them their leader asking the president to appoint him as the new prime minister.

The president dissolved parliament the next day afternoon only to pave the way for the formation of a new makeshift government. Now the fact is the parliament formed through the stage-managed January election no longer exists. Its life ended.

In a parliamentary democracy, parliament can form and end a government. But when parliament itself does not exist it has neither power.

When a parliament stands dissolved, a prime minister elected by that parliament survives for a brief period only to see his/her successor assume the office.

Hasina might have watched Dr Yunus and his advisers swearing in as chief advisers and advisers of the interim government to fill the constitutional vacuum and to save the country from grave danger on television; possibly from a ‘secret place’ in Delhi.

Now it matters nothing whether Hasina formally resigned or not.

The president has, however, taken a prudent move on 8 August by seeking an advisory opinion of the Supreme Court under Article 106 of the constitution on what he needs to do in such an unprecedented constitutional crisis.

The full bench of the Appellate Division led by the chief justice in a virtual meeting opined that the president can appoint a chief adviser and other advisers as part of the interim arrangement in the urgent need to run the state affairs to fill in the constitutional vacuum in the state.

On the advice of the apex court, the president formed the interim government by appointing the chief adviser and other advisers and administered the oath to them. The advisory opinion of the apex court confirmed the legality of the stopgap administration.

As jurist Shahdeen Malik said the Dr Yunus-led interim government is legal as it has been formed on the advice of the apex court.

Now the simple and easy way to bury Joy’s latest claim that his mother did not resign as prime minister is to make her resignation letter public.