Appellate Division upholds HC order confirming validity of interim govt

The Appellate Division today upheld a High Court verdict that had validated the formation and swearing-in of the current interim government.

With this order, the Appellate Division dismissed a leave-to-appeal petition challenging the High Court judgement.

"Dismissed with observation," said the Appellate Division full bench, headed by Chief Justice Syed Refaat Ahmed. 

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 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 SM Shahriar Kabir presented arguments.

Senior lawyers have commented that there will no longer be any questions regarding the legitimacy of the current government's various activities – especially the three mandates related to elections, justice, and reforms.

After the order, Attorney General Md Asaduzzaman said, "Today the Appellate Division unanimously stated that they did not find any error, mistake, or illegality in the High Court's judgment. Therefore, they dismissed the leave-to-appeal petition along with its observations. We have not yet received the written copy of those observations."

Senior lawyer Ruhul Quddus Kazal said, "As a result of the order, the writ challenging the legitimacy of the interim government no longer has any substance. In effect, it has now been established that the interim government is being run based on the consensus of public opinion."

Senior lawyer Mohammad Shishir Manir said, "Today, the Appellate Division delivered its order on the leave-to-appeal filed against the High Court order regarding the legitimacy of the current government. This decision was unanimous. Through this order, it has been established that the current government is formed on the basis of the sovereign will of the people—the 'will of the people.' The activities this government is conducting are essentially an expression of the people's sovereign authority."

He added, "Our higher court has once again reiterated this fundamental principle of the Constitution. As a result of this order, there will no longer be any questions regarding the legitimacy of the current government's various activities—particularly those related to the three mandates of elections, justice, and reforms."

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.

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.

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.