Interim govt formation: Writ challenging procedure of reference, opinion rejected

The writ petition challenging the procedure of the reference and opinion sent to the Supreme Court (SC) over the formation of the interim government and their oath after the fall of the Awami League government has been directly rejected by the High Court.

A HC bench of justice Fatema Najib and justice Shikder Mahmudur Razir passed the order today, Monday.

Earlier, senior SC lawyer Mohammad Mohsin Rashid filed the writ last month. He himself argued in favour of the writ in the hearing at the court. He was accompanied by lawyer SM Monirul Alam.

Anik R Haque represented the state in the hearing. Deputy attorney general Akhter Hossain Md Abdul Wahab was with him.

Speaking to Prothom Alo after the hearing, additional attorney general Anik R Haque said people had already accepted the interim government. The writ was rejected due to malicious prosecution. The court order today re-established the legality of the interim government.

The petition states it is not possible to seek reference on a matter which is not in the constitution. The Article 106 of the constitution, the Supreme Court rules must be followed in case of any reference. As per the Appellate Division rules, the attorney general and other relevant officials have to be notified before any such hearing. However, no notice was issued before the hearing.

The reference process was proper, deputy attorney general Akhter Hossain Mohammad Abdul Wahab quoted the High Court as saying.

Speaking to Prothom Alo, he said the attorney general was notified before the hearing. He was present in the court during the hearing

SM Monirul Alam, lawyer representing the writ petitioner, told Prothom Alo that they will move to the SC to appeal against the HC order.

Earlier, on 5 August, former prime minister Sheikh Hasina resigned from her post and left the country for India in the face of a mass uprising of students and people. The process of forming an interim government began following her departure. The president then dissolved the parliament on 6 August.

After that, the interim government headed by Nobel laureate professor Dr. Muhammad Yunus were sworn in on 8 August. Before the oath taking ceremony, president Md Shahabuddin sent a reference to the SC seeking its opinion as per the Article 106 of the constitution.

The Article 106 of the constitution refers to the advisory jurisdiction. It says if “at any time it appears to the President that question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the Division may, after such hearing as it thinks fit, report its opinion thereon to the President.”

Following the special reference from the president, a seven-member Appellate Division led by the then chief justice Obaidul Hasan gave their opinion on 8 August. They also took the opinion of the attorney general.

The Appellate Division said in its opinion that the president can appoint the chief adviser and other advisers to fill the constitutional gaps or in case of an emergency to run the executive works of the government. The president can also administer them the oath.