A legal notice has been sent to the interim government, urging the appointment of a new president in line with constitutional principles and legal interpretation.
Supreme Court lawyer Md Mahmudul Hasan issued the notice on Sunday, addressing it to the secretary of the Ministry of Law, Justice and Parliamentary Affairs and the Parliament Secretariat.
The notice states that the former Awami League government was ousted on August 5 through a mass uprising, leading to the formation of an interim government under Dr Muhammad Yunus.
Traditionally, such a revolutionary government would emerge after a popular uprising, but the opposition allegedly hindered the establishment of a fully revolutionary government.
Consequently, the interim government took its oath under the existing constitution.
The notice claims that Bangladesh’s opposition parties sought not a reformist interim government but a caretaker arrangement that would enable early elections in their favour.
This, it argues, could pave the way for these parties to form a “fascist government” that could lead Bangladesh back into corruption.
The notice further alleges an oath violation by the current president and states that most Bangladeshis desire his resignation.
However, appointing a new president faces constitutional challenges, as there is currently no parliament and the former speaker has resigned.
The notice suggests two methods to address this issue, relying on constitutional principles and the doctrine of necessity.
Proposed methods
Method 1:
Under Article 8 of the Constitution, the Supreme Court may interpret the Constitution based on state principles.
Here, the attorney general could apply for a suo moto rule in a High Court motion court with writ jurisdiction, seeking directions on how to elect an interim president in the absence of parliament.
Following this interpretation, the High Court could establish a committee to oversee the presidential election.
In the president’s absence due to illness or travel, the Bangladesh Parliament Secretariat could designate an acting president, as per High Court directives. The interim government would then appoint an interim president based on the court’s guidelines.
Method 2:
If the High Court declines a suo moto ruling, the Ministry of Law, Justice, and Parliamentary Affairs could form a search committee.
This committee would include representatives from all political parties involved in the July-August 2024 coup.
The committee would nominate a qualified presidential candidate, whom the government would appoint.
The appointed president would then petition the Supreme Court's Appellate Division for a reference under Article 106, requesting a ruling on the legitimacy of their appointment in the national interest.
The Appellate Division would then determine if the interim president’s appointment aligns with constitutional principles, public interest, and the doctrine of necessity.
The notice demands that the interim government take steps to appoint a new president within three days of receiving the notice, warning that failure to act may result in a writ petition being filed in the High Court.
