Article 106 Advisory jurisdiction of the Supreme Court
Advisory jurisdiction of Supreme Court
References are used at moments of constitutional uncertainty. The August 2024 opinion on forming an interim government shows how decisive such advice can be for the whole country.
The President faces a legal question of great public importance, perhaps one the Constitution does not answer clearly. Acting through the government, the President decides that it is wiser to seek the Supreme Court's view before taking any step that could later be challenged.
The question is framed in writing and referred to the Appellate Division, usually through the Law Ministry. The reference sets out the facts and the precise questions on which the President wants the court's opinion.
The Appellate Division holds such hearing as it thinks fit. It may hear the Attorney-General and invite senior lawyers as amici curiae to help it, especially where the question is novel and no earlier case gives a clear answer.
The Division reports its opinion to the President, who then decides how to act. On 8 August 2024 it advised that the President could form an interim government, and the interim government was sworn in that day, as reported.
In plain English
How Article 106 works
Article 106 lets the President ask the Supreme Court for legal advice. If a question of law has arisen, or is likely to arise, and it is so important to the public that the President thinks the Supreme Court's opinion should be obtained, the President may refer it to the Appellate Division. The Division holds whatever hearing it thinks fit and then reports its opinion to the President. This is called a reference. It is not an ordinary case between parties, and the opinion is advice rather than a judgment with winners and losers, although it carries great weight.
In practice
References under Article 106 are rare. The most consequential recent one came on 8 August 2024, after the Prime Minister had resigned and when there was no Parliament. On a reference sent through the Law Ministry, the Appellate Division, led by the then Chief Justice, gave its opinion that the President could form an interim government, and the President swore in the Chief Adviser and advisers. In January 2025 the High Court Division relied on the legitimacy of that arrangement in rejecting a writ, saying there was no scope for controversy. Because an Article 106 opinion is advisory, its legal force in later litigation can itself be debated.
The text
What Article 106 says
106. If at any time it appears to the President that a 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.
English text as published on the official Laws of Bangladesh website. Where a court has changed the position, the status note above explains it.
Landmark cases
How the courts have read it
Appellate Division · 2024
Reference under Article 106 on the formation of the interim government
On 8 August 2024, with no Parliament in being and the Prime Minister having resigned, the Appellate Division advised the President that he could form an interim government, as reported.
Case summaries are short descriptions for orientation, not a substitute for the judgment.
History
Amendments
- Fifteenth Amendment 2011Chapter I of Part VI (Articles 94 to 113) was substituted by section 31 of the Constitution (Fifteenth Amendment) Act, 2011, as noted on bdlaws.
Connected provisions
Related articles
Questions
Article 106: frequently asked questions
What is the advisory jurisdiction of the Supreme Court of Bangladesh?
Under Article 106 the President may refer an important question of law to the Appellate Division for its opinion. The Division hears the matter as it sees fit and reports its opinion to the President. It is advice on a question of law rather than a judgment in a dispute between parties.
Was the 2024 interim government based on an Article 106 opinion?
Yes, as reported. On 8 August 2024 the Appellate Division gave an opinion under Article 106 that, with no Parliament and the Prime Minister having resigned, the President could form an interim government. The President then swore in the Chief Adviser and advisers.
Sources
- Laws of Bangladesh: Constitution, Article 106 (bdlaws section page)
- The Financial Express: Interim government formed on SC nod (10 August 2024)
- Dhaka Tribune: High Court: no scope for controversy over interim government (13 January 2025)
This guide explains the Constitution for general understanding. It is not legal advice. Constitutional reform proposals under discussion in 2026 are described as proposals until enacted.
Constitutional and writ practice
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