Interim govt formation held valid, leave to appeal dismissed with observations

The Appellate Division has dismissed, with observations, a leave-to-appeal petition challenging the process of seeking the Supreme Court’s reference and opinion regarding the formation and swearing-in of the interim government.

Earlier, the High Court had summarily rejected the writ petition filed on this issue.

A seven-member bench of the Appellate Division, headed by chief justice Syed Refaat Ahmed, delivered the order today, Thursday.

Following the order, additional attorney general Anik R Haque told Prothom Alo, “The leave-to-appeal petition questioned the formation of the current interim government. The Appellate Division has dismissed the matter with observations. This establishes the validity of the formation of the government and its activities. However, the full details will be known only after receiving the court’s written observations.”

After concluding the hearing on Wednesday, the Appellate Division had fixed Thursday for delivery of the order. At around 9:45 am today, the chief justice pronounced the decision, stating that the petition was dismissed with observations.

After the fall of the Bangladesh Awami League government in the student–publicuprising, the President sought the Supreme Court’s advisory opinion under Article 106 of the Constitution regarding the formation of an interim government.

Based on the Appellate Division’s opinion, an interim government headed by professor Muhammad Yunus was formed and the members of the advisory council were sworn in. Article 106 concerns the Supreme Court’s advisory jurisdiction.

Senior Supreme Court lawyer Mohammad Mohsin Rashid had filed the writ petition in December last year challenging the process of seeking the Supreme Court’s opinion and reference on the formation and swearing-in of the interim government.

After hearing the matter, the High Court summarily rejected the writ on 13 January. Lawyer Mohammad Mohsin Rashid then filed a leave-to-appeal petition against that order.

The hearing on the leave-to-appeal petition began on 2 November. After further hearings on 6 November, the matter was adjourned until 11 November. It was listed again on 12 November, when the court adjourned the hearing until 25 November. Subsequent hearings were held on Tuesday and Wednesday.

Senior lawyer Mohammad Mohsin Rashid himself argued for the petitioner. Writer Firoz Ahmed, a former member of the constitution reform commission, joined as an intervenor; his counsel, senior lawyer Sharif Bhuiyan, made submissions.

Senior lawyers Md Ruhul Quddus, chairman of the Bangladesh Bar Council’s executive committee, and Mohammad Shishir Monir also intervened and took part in the hearing.

Freedom fighter Md Mofazzal Hossain of Naogaon joined as an intervenor, represented by lawyer ASM Shahriar Kabir. Attorney general Md Asaduzzaman and additional attorney general Anik R Haque appeared for the State.

The full High Court order, published last February, noted that the petitioner (lawyer Mohammad Mohsin Rashid) had argued that the current interim government was not supported by any legal instrument.

The court held that, in an exceptional situation, the President had sought an advisory opinion under Article 106 of the Constitution and had acted in accordance with that opinion. Therefore, the process was supported by legal authority and by the will of the people of Bangladesh.

The court further observed that the July–August 2024 mass uprising was part of the nation’s history and would, it hoped, be remembered with care for many years. It dismissed the writ as misconceived, malicious and vexatious.

Article 106 of the Constitution sets out the advisory jurisdiction of the Supreme Court. It provides that if, at any time, a question of law arises or appears to be of such public importance that the President considers it necessary to obtain the Supreme Court’s opinion, he may refer the question to the Appellate Division. Upon holding an appropriate hearing, the Appellate Division may then provide its opinion to the President.

The Bangladesh Awami League government fell on 5 August last year. On 6 August, the president dissolved parliament. On 8 August, an interim government headed by professor Muhammad Yunus was formed.

Before the formation and swearing-in of the interim government, president Md Shahabuddin sought the Supreme Court’s opinion under Article 106 regarding the process.

Acting on Special Reference No. 1/24, a seven-member Appellate Division bench headed by then chief justice Obaidul Hassan delivered its opinion on 8 August last year, after hearing submissions from the attorney general.

The opinion stated that, in order to address a constitutional vacuum, the president could, out of urgent necessity, appoint a chief adviser and other advisers to run the executive functions of the state, and could administer their oaths.