BNP Senior Vice Chairman Tarique Rahman is not the first person to have questioned the legality of the assumption of prime ministerial office by Bangabandhu Sheikh Mujibur Rahman in newly independent Bangladesh.
Before him, two individuals facing trial on charges of collaborating with Pakistan occupation army during Bangladesh's Liberation War in 1971 had done it on extensive grounds by launching a legal battle with the Supreme Court more than four decades ago.
In their move, they had questioned, among others, the legality of introduction of the parliamentary form of government under which Bangabandhu was sworn in as premier in 1972.
Four decades on, Tarique Rahman, who has been living for more than five years now in exile in the UK, on Tuesday claimed that Sheikh Mujib had become prime minister "illegally" in 1972 following the switchover to the parliamentary form of government from the presidential one.
In support of his argument, he quoted the Proclamation of Independence and said according to it Sheikh Mujib was to remain president and Syed Nazrul Islam vice-president until a constitution was adopted.
Tarique also questioned the legality of introduction of the parliamentary form of government by stating that Sheikh Mujib returned to the country on January 10, 1972 and became prime minister on January 12 when there was no constitution in the country.
In fact, his claim that there was no constitution is simply not true.
He overlooked the Provisional Constitution Order, 1972, through which the parliamentary form of government was introduced. Or Tarique might not have understood the significance of the Provisional Constitution Order when he termed Bangabandhu as an "illegal'' prime minister.
The truth is that the Provisional Constitution order also empowered the president to appoint a prime minister from among members of the Constituent Assembly, an individual who commanded confidence of the majority members of the assembly.
And, accordingly, President Abu Sayeed Chowdhury appointed Bangabandhu prime minister as Mujib was the undisputed leader of the majority party, the Awami League, which had won a landslide victory in the Pakistan national and provincial assembly elections held between December 1970 and January 1971.
Counsels of the two individuals facing charges of collaborating with Pakistan army, however, had not made the mistake which Tarique has.
They had challenged the Provisional Constitution Order issued by then president Bangabandhu Sheikh Mujibur Rahman on January 11, 1972, introduction of the parliamentary form of government and making Justice Chowdhury president after Bangabandhu stepped down from the presidency to become prime minister.
Also, they challenged the legality of assumption of the presidency by Justice Chowdhury as he, on advice of the prime minister, promulgated on January 24, 1972 the Bangladesh Collaborators (Special Tribunals) Order under which their clients were being tried.
They had first filed a petition with the High Court to this effect.
In response, the HC in July 1973 dismissed the petition. Then the petitioners moved to the Supreme Court against the HC verdict.
The SC, led by Justice AM Sayem, in a judgement on August 22, 1973, upheld the HC verdict, styled "AKM Fazlul Hoque and others versus State". It rejected the petition as it had not found any merit in it.
Analysing the significance of the proclamation of independence promulgated by elected representatives in April 1971, the apex court said it could not be disputed that the proclamation of independence had clothed the president designated by itself with all the powers of the state.
It stated the Provisional Constitution Order, on the other hand, sought to shift the focus of power to the prime minister from the president. Thus it had brought about a change in the system of government, observed the apex court.
The court said in addition to conferring on the president all other powers, including executive powers, the proclamation after having taken note of the prevailing circumstances invested him with all the legislative powers of the Republic.
"Obviously, the expression 'legislative power of the Republic' is of the widest amplitude and admits of no limitation. The Proclamation, in our view, empowered the President designated by it to make any law or legal provision, even of a constitutional nature. We looked for but found no indication in the Proclamation to the contrary," announced the apex court.
"The President promulgated the Provisional Constitution Order in exercise of his plenary legislative powers, which we have held included the power to make interim constitutional provision.
"So, the appointment of the second president, [Justice Abu Sayed Chowdhury] under the Provisional Constitution order, cannot be disputed."
The SC announced that the Provisional Constitution Order envisaged a cabinet form of government and therefore all orders passed by President Justice Chowdhury in pursuance of the interim constitution were valid, including the Bangladesh Collaborators Order.