Supreme Court upholds HC order rejecting writ challenging interim govt's validity

The Appellate Division of the Supreme Court has upheld a High Court order dismissing a writ that challenged the legality of the oath-taking of the interim government with a reference from the Appellate Division of the Supreme Court under Article 106 of the Constitution.  

A seven-member bench of the Appellate Division, headed by Chief Justice Syed Refaat Ahmed, delivered the verdict today (4 December) after hearing a leave to appeal in this regard.

A day earlier, yesterday, the Appellate Division concluded the hearing on a petition seeking leave to appeal against the High Court order and set today for announcing the judgment.

The Appellate Division said in its order that the High Court's decision to dismiss the writ challenging the oath and formation process of the interim government led by Dr Muhammad Yunus was correct and appropriate. Therefore, the Appellate Division found no reason to interfere with the High Court's ruling. All seven judges of the Appellate Division issued the order unanimously.

Appearing for the state were Attorney General Md Asaduzzaman and Additional Attorney General Barrister Aneek R Haque. Advocate Mohsin Rashid argued on behalf of the writ petitioners. As intervenors, Barrister Ruhul Quddus Kajal, Advocate Mohammad Shishir Monir, Dr Sharif Bhuiyan, and Barrister S M Shahriar Kabir presented arguments.

Following the verdict, lawyer Mohammad Shishir Monir said the Appellate Division's order has now removed any scope for raising questions over the formation process or activities of the interim government.

According to a statement from the petitioner, a reference cannot be sought on a matter (interim government or caretaker government system) that is not in the Constitution.  

"According to Article 106 of the Constitution, the rules of the Supreme Court must be followed in the case of reference. According to this rule of the Appellate Division, a hearing must be held by giving notice to the attorney general and others. No notice was given for the hearing," it added.  

Deputy Attorney General Akhtar Hossain Md Abdul Wahab, earlier said the High Court has stated that the reference process was correct.  

He said the attorney general had been given notice regarding the reference and he had participated in the hearing.  

Earlier, on 1 December, lawyer Mohsin Rashid filed the writ petition, challenging the oath-taking of the interim government under Article 106 of the Constitution.  

On 8 August, the opinion of the Appellate Division was sought before the formation of the interim government led by Nobel laureate Professor Muhammad Yunus, days after prime minister Sheikh Hasina had resigned and fled to India in the face of a mass uprising.  

That day, the then chief justice Obaidul Hassan and seven other Appellate Division judges provided a special reference in favour of forming an interim government. After receiving the opinion and legitimacy, the president administered the oath to the interim government.  

In the special reference, the seven Appellate Division judges stated, "Given the current situation in the country, where the prime minister has resigned, and the president dissolved the 12th parliament on 6 August 2024, it is not possible for the president to act on the advice of the prime minister under Article 48(3) of the Constitution."  

"Under these circumstances, to address the constitutional vacuum, a letter issued on 8 August 2024 by the Law and Justice Division sought the opinion of the Appellate Division under Article 106 of the Constitution on this significant public matter."  

After hearing the statement of Bangladesh's Attorney General Md Asaduzzaman, the Appellate Division, exercising its advisory jurisdiction under Article 106 of the Constitution, had provided the following opinion.   

"Given the lack of provisions in the Constitution of Bangladesh for forming an interim government, the president, in an emergency situation, may appoint a chief adviser and other advisers as an interim measure to manage the executive functions of the state."

"The president may also administer the oath to the Chief Advisor and other advisors appointed in this manner.