On August 15, 1975, Khondaker Mushtaq Ahmed announced himself as president of Bangladesh after the assassination of the founding President Sheikh Mujibur Rahman and his family. This marked a significant turning point in the country's history. Then, on August 20, 1975, Khondaker Mushtaq took the responsibility of the chief martial law administrator by issuing martial law, after which he declared himself the President.
Khondaker Mushtaq Ahmad was forced to resign from the post of president on November 5 in the face of a military coup. The next day, the then-Chief Justice Abu Sadat Mohammad Sayem was sworn in as the new president at the request of military officials. In 1977, Chief Martial Law Administrator Major General Ziaur Rahman handed over Justice Sayem and resigned, and Ziaur Rahman took the oath as president.
On the other hand, the former military ruler, President Hussain Muhammad Ershad, was forced to leave power in 1990 in the face of a strong mass movement. Then General Ershad appointed Justice Sahabuddin as the Vice President and resigned; Justice Sahabuddin became the temporary president.
Now, a few days after the sudden situation, many leaders of the anti-discrimination student movement want to remove President Md.Sahabuddin from his post by commenting on the resignation letter of former Prime Minister Sheikh Hasina. However, considering the current situation, whether there is a chance to remove him from the post is now a complicated matter to solve through the Constitution. So, there is now fear that removing the president without a clear succession plan could create a constitutional vacuum, leading to uncertainty and potentially destabilizing the country.
But the Constitution has an outlined procedure for presidential removal. Only the Members of Parliament have the authority to elect the President. Article 50(3) of the Constitution says the president can resign by submitting a written resignation addressed to the Speaker. Also, according to Article 54 of the Constitution, the Speaker assumes presidential responsibilities if the president is unable to discharge their duties due to absence, illness, or other reasons until a new president is elected or the incumbent resumes their duties.
With the current political situation, and the recent resignation of the Speaker of the Jatiya Sangsad Shirin Sharmin Chowdhury, questions have arisen regarding the constitutional process for the potential removal of the President. Specifically, it needs to be clarified to whom the President would submit a resignation letter or what alternative procedures might be followed without a speaker.
Also, the Speaker's resignation has created a constitutional dilemma regarding the presidential resignation process. As a pertinent note, Article 74(6) states that the Speaker, or Deputy Speaker, even after resignation, shall remain in office until their successor is appointed. As a result, the Speaker is the only constitutional figure authorized to assume presidential responsibilities, as no alternative procedure is outlined in the Constitution.
If a new president is appointed without parliamentary approval, the legitimacy of their position could be questioned. This could lead to a constitutional crisis, as the appointment would not be governed by the Constitution. Any decision, regardless of the circumstances, must adhere to the Constitution and the law; relying solely on the Doctrine of Necessity without following constitutional procedures could lead to unintended consequences.
As per Article 106, If the president encounters a question of law of significant public importance, they may seek an opinion from the Supreme Court's Appellate Division. After considering the matter, the Appellate Division may provide its opinion to the president. The Supreme Court, as the guardian of the Constitution, plays a crucial role in ensuring that its interpretations uphold constitutional principles and avoid any actions that could lead to a constitutional crisis.
On the other hand, according to the Constitution -- Articles 52, 53, and 54, specifically -- it is said about the removal or resignation of the president that, in that case, the Parliament must remain in force. Only the Members of the Parliament have the power to remove or impeach the president.
None of this is possible at the moment because the absence of a functioning Parliament, including the Speaker position, creates a constitutional impasse regarding the potential removal or resignation of the President. An unconstitutional presidential appointment could paralyze the constitutional framework and undermine the protection of fundamental rights.
Given the current circumstances, removing the president outside the constitutional framework would set a dangerous precedent. An interim government was established after the August 5 Doctrine of Necessity -- however, the Constitution lacks specific provisions for such a government.
There is no chance of canceling the Constitution because the interim government has sworn to abide by it. If they cancel the Constitution, this government will also be accused of breaking the oath. Adhering to constitutional norms and procedures is imperative to avoid a constitutional crisis. Any action to remove the president should be carefully considered, with due regard to the Constitution, the law, and democratic principles.
To maintain good governance, the interim government must prioritize the Constitution and ensure all decisions are made within its framework. Upholding the Constitution is crucial for maintaining the checks and balances that underpin the country's governance and the rule of law.
Atiqur Rahaman is a student of law and human rights at University of Asia Pacific.
