Opinion
Constitution will be no obstacle if there’s political consensus
The previous dictatorial government attempted to quash the student movement by armed means in July and August. Hundreds lost their lives, and thousands were injured. Former Prime Minister Sheikh Hasina fled the country on 5 August in the face of the student-led mass uprising. At that time, the president informed the nation that the prime minister had resigned, and he accepted this resignation.
The president then sent a reference to the Supreme Court under Article 106 of the Constitution, seeking constitutional clarification on the formation of a new government. In this reference, he stated that the prime minister had resigned and sought guidance from the Supreme Court on how to proceed in this situation.
The Supreme Court rendered opinion that, since the prime minister had resigned, there was no option but to form an interim government under the circumstances. Consequently, the government was sworn in under the leadership of the Chief Adviser.
The president’s remarks that he did not receive the prime minister's resignation letter—made two and a half months after the formation of the government—are being widely discussed. His statements have sparked angry reactions from both the interim government and the student agitators, who are now protesting and demanding his resignation. This raises the question: what is the constitutional or legal process for the removal or resignation of the president?
The solution is that the order from the current interim government should be validated by the next elected parliament. I believe that not only the removal of the president but also all actions taken by the government will need to be ratified by the new parliament
According to the Constitution, the president can be impeached (removed) by parliament while it is in session. However, there is currently no parliament in place, which means there is no possibility of impeachment according to the constitution.
If the president breaks his oath or becomes unfit for office, he can resign on his own. But what happens if he does not take that step?
It should be noted that a special situation is prevailing in the country at present. Following the popular uprising, an interim government has taken over the administration. When a popular uprising succeeds, it creates its own legitimacy, rendering the existing constitution, customs, or laws ineffective.
In such cases, new methods can be employed instead of adhering to old ones. Those in power may choose to accept or reject the existing constitution, either in whole or in part. It is under this framework that the interim government has been established and is functioning.
The same applies to the removal or resignation of the president. If he does not resign voluntarily, the interim government has the authority to issue an order dismissing him.
Whether any questions arise regarding the legal validity of ordering the resignation of the president is a matter for consideration. In this case, the solution is that the order from the current interim government should be validated by the next elected parliament. I believe that not only the removal of the president but also all actions taken by the government will need to be ratified by the new parliament.
For this reason, the government will have to negotiate with political parties, and a political consensus will be necessary. If there is a political consensus, the constitution or the law will not pose a hindrance or obstacle to any actions taken. There are historical examples of such incidents in Bangladesh. This is how the 11th and 12th Amendments to the Constitution were enacted.
* MA Matin is a retired justice of the Appellate Division of the Supreme Court