BNP questions how July Charter can take precedence over Constitution

The Bangladesh Nationalist Party (BNP) has raised objections to several provisions in the consolidated draft of the July National Charter.

The party has questioned whether any political agreement can be placed above the Constitution, warning that giving the Charter precedence over the Constitution would set a dangerous precedent.

BNP has also opposed the inclusion of a provision barring judicial review of the Charter.

BNP Standing Committee member Salahuddin Ahmed presented the party’s position on the consolidated draft of the July Charter to newspersons on Tuesday.

Salahuddin has been leading BNP’s discussions with the National Consensus Commission on reform proposals.

According to BNP sources, the party’s Standing Committee held a meeting Monday night to discuss the draft. A committee was formed to finalise the BNP’s stance after reviewing it. The party will formally convey its position to the National Consensus Commission.

BNP has said it is willing to make compromises to the extent necessary for the sake of elections.

After coming to power through last year’s mass uprising, the interim government initiated reform processes across various state institutions.

In the first phase, six reform commissions produced 84 proposals, on which political consensus was reached. Those are now being consolidated into the “July National Charter”.

On 29 July, the Commission distributed a draft to the parties. Based on party feedback, a “consolidated draft” was prepared and circulated last Saturday evening.

The first draft stated that once a new government is formed through elections, parties would commit to implementing the reforms within two years. BNP had agreed to this, but Jamaat-e-Islami, the National Citizen’s Party (NCP), and others objected, demanding that the Charter be placed within a legal framework with a defined implementation mechanism.

In response, the consolidated draft revised the commitments. It is to this version that BNP has now raised fresh objections. Broadly, the party has objections to three clauses in the commitment section and to parts of the preamble.

Meanwhile, the mechanism for implementing the Charter and its reform proposals has not yet been finalised. The Consensus Commission is consulting experts and may begin discussions with the parties next week.

Salahuddin Ahmed has questioned whether the Commission even has the authority to determine the implementation process. However, he added that BNP will respond if called to further discussions.

The draft states that the Charter is the “highest expression of the people’s will,” and that its provisions, principles, and decisions will be incorporated into the Constitution. Where the Constitution or any existing law conflicts, the Charter will prevail.

On this, Salahuddin Ahmed asked, “Can any agreement be a supra-constitutional instrument? We must think about how to adopt and implement such an agreement within the legal and constitutional framework.”

He argued that if the draft asserts that all provisions of the Charter will override the Constitution, it would create a dangerous precedent for the future. “It would not be right to set such a precedent for the nation as a whole,” he said.

The draft further states that the authority to make final determinations on the interpretation of any Charter provision will rest with the Appellate Division of the Supreme Court.

Questioning this, Salahuddin said, “Any High Court ruling is appealable to the Appellate Division. Constitutional interpretation also goes there. But this document is neither an ordinance, nor a law, nor a court verdict. On what basis will it go to the Supreme Court? Why should it? Who will take it? What jurisdiction does the Court even have in this matter?”

Another clause says that since every provision, proposal, and recommendation of the Charter will have constitutional and legal force, no question about its validity, necessity, or authority of issuance may be raised in any court.

Does the Constitution grant such authority? Salahuddin asked. If any citizen is harmed in life, property, or otherwise, they have the right to legal remedy, to question it. It is not correct to bar that in the draft. It could be worded differently.

The draft also states that recommendations that are immediately implementable will be carried out before the upcoming national election. On this, Salahuddin noted that the election schedule will be announced in mid-December. Until then, there are a few months left—enough to draft laws and regulations. Ordinances can be issued in a month or so, and executive orders can be implemented. But the phrase ‘before the national election’ should be omitted.

The consolidated draft’s preamble recalls how, after the Liberation War and the 1990 pro-democracy uprising, certain commitments were incorporated into the Constitution. Similarly, it proposes that following the July 2024 uprising, eight commitments be made to uphold democratic values, respect the people’s will, and preserve constitutional convention.

But Salahuddin argued that today’s situation cannot be equated with that of 1971. Back then there was no independent state, no constitution. Today, we have both. Professor Muhammad Yunus has taken oath as Chief Adviser under constitutional process. No constitutional vacuum has been created.

He further said the draft’s claim that July 2024 should be legitimised like the Liberation War was incorrect. “On 26 March 1971, the declaration of independence was made. Shaheed President Ziaur Rahman announced independence, which was later reiterated on behalf of Sheikh Mujibur Rahman. On 10 April, the Proclamation of Independence was adopted by the elected representatives of the people. It provided interim provisions, vested executive and legislative powers in the President, and led to the first law of Bangladesh—the Laws Continuance Enforcement Order 1971—which was later incorporated into the Constitution. Thus, Bangladesh was governed legally and on the basis of that proclamation.”

Salahuddin said BNP will raise these issues in discussions with the Consensus Commission. However, he stressed that the party remains constructive. BNP will sign the Charter. Commitments made on the basis of consensus must be implemented. We believe a legal and constitutional process can be found together.

NCP Joint Convenor Javed Rasin, who represented the party in various Commission meetings, responded to Salahuddin’s remarks.

Speaking to Prothom Alo, he said BNP’s stance could open the way for future disputes over the Charter.

“This could be a tactic to drag the Charter’s proposals into controversy and avoid implementing them,” he said.

Javed Rasin further said, “The Charter is based on everyone’s consensus. If I later challenge my own commitment, what does that mean? Leaving room for challenges gives fallen fascist forces the chance to challenge it as well.”