Addressing a reception organised by the Supreme Court Bar Association and the office of the attorney general on 8 October, Chief Justice Obaidul Hasan said, "The right to criticise a judge's verdict is a part of freedom of speech." Issuing a word of caution in this statement, he also said, "If anyone abuses this freedom, the long arm of the law is enough to punish them, whether it is the media or a lawyer." Several of his predecessors had also similarly acknowledged that criticism of verdicts was part of freedom of speech. Given that scope, and maintaining due respect of the court, it has become imperative to discuss a certain constitutional question. There is political debate over this issue. But this deliberation is purely on a legal and theoretical angle.
The question was whether it was a violation of the constitution for the members of the 12th Jatiya Sangsad (national parliament) to take oath before the end of the 11th Jatiya Sangsad's term. The question on this issue was taken up in court and the court ruled that this was not a violation of the law. The writ had been taken up back in 2019, challenging the legitimacy of new members of parliament being sworn in while the old parliament was still in place.
In the writ petition known as 'Taherul Islam Tauhid vs. the Speaker, Jatiya Sangsad and others', it was pointed out that the members of the 11th national parliament took oath while the 10th national parliament was still in place. That means, there had been 600 members of parliament at the time, which was not supported by the constitution. Two parliaments cannot exist simultaneously. A bench of the Supreme Court's High Court division heard the arguments for and against the appeal and dismissed the case.
After a gap of around four years, an appeal against that ruling was submitted to the Appellate Division of the Supreme Court, following which an eight-member full bench of the Appellate Division, including the Chief Justice, held a hearing in July last year. On 1 August 2023 the Appellate Division also dismissed that case. The ruling or verdict of the Appellate Division was not available on the Supreme Court website, so it cannot be ascertained if the ruling was unanimous or if any of the judges had difference of opinion.
Sitting judges as a rule refrain from explaining or commenting on any verdict. However, breaking away from the norm, Justice M Enayetur Rahim of the Appellate Division explained this ruling in the newspapers Ittefaq and Samakal. Even after that, the debate did not subside and on Thursday the law minister said, "The matter will be looked into if the policymakers feel the need to clarify the issue."
In his explanation, M Enayetur Rahim wrote, the Appellate Division reviewed Articles 123 (3), 148 (1)(2b)(3), 72 (3) and the Representation of the People Order,1972, when it gave its ruling. He wrote that according to the constitution [Article 123 (3)], there are two reasons why the parliamentary election can be held -- firstly, due to the end of the parliament's term, secondly, if the parliament is dissolved for reasons other than the end of its term. In the case of the term coming to an end, the election has to be held within 90 days before the end of term, and in the case of other reasons, it has to be held within 90 days after the parliament is dissolved.
According to Article 148 (1), "a person elected or appointed to any office mentioned in the Third Schedule shall before entering upon the office make and subscribe an oath or affirmation (in this article referred to as 'oath') in accordance with that Schedule."
Justice Enayetur Rahim contends that the Appellate and High Court Division had resolved the issue of Article 148 (3), that is, whether the members of parliament are automatically bestowed with their responsibilities upon taking oath. In settling this legal issue, the court referred to Article 148 (3): "Where under this Constitution a person is required to make an oath before he enters upon an office he shall be deemed to have entered upon the office immediately after he makes the oath." In other words, the 'deeming' clause is mentioned and in explaining this, the court also used the term 'legal fiction'.
Justice Enayetur Rahim wrote, "In interpreting these two terms, the Appellate Division depended on precedents of its own and or other Supreme Court of the subcontinent as well as former attorney general Mahmudul Islam's book, 'Constitutional Law of Bangladesh.' In legal lingo, 'deem' is used to 1. Treat something as if it were really something else or it has qualities it does not have; 2. To resolve any contentious issue in a legal document with such an explanation that may not have otherwise been put forward.' And the legal meaning of 'legal fiction' is defined as an assertion that is accepted as true for legal purposes, even though it may untrue or unproven.
In the words of Justice M Enayetur Rahim, the members of parliament begin taking oath by saying that "by the duties to be bestowed upon me...", in other words, they do not take on the duties immediately upon taking oath. The duties are to be bestowed upon them, future tense. The term "by the duties to be bestowed upon me...", is absent in the oath of the offices mentioned in the Third Schedule of the constitution, that is of the president, prime minister, chief justice, ministers, judges and other offices.
In Justice Enayetur Rahim's deliberation, according to Article 148 (3) of the constitution, the concerned individuals automatically are bestowed with their duties upon being sworn in and signing the oath. But in the case of members of parliament, Article 123 (3) of the constitution bars them from taking over duties even after taking oath, until the term of the elected members expires.
GM Quader, is the Lalmonirhat-3 member of parliament in the 11th national parliament. But in the 12th national parliament, he has taken oath as member of parliament of Rangpur-2. So now will he look after the interests of the Lalmonirhat constituency or of the Rangpur-2 constituency?
He goes on to write that according to Article 148 (2a) of the constitution, the elected members must take oath within three days of the parliament election results being published in official gazette. Since it is compulsory for the elected members of parliament to take oath within three days of the gazette being published, there is constitutionally no scope to wait for more than three days or from the term of the previous members of parliament to expire.
According to Justice Enayetur, the Appellate Division opined that this oath was for the formation of the new government. The president summons the person in whom the majority members put their trust to form the government, and that is how the government is formed. The continuity of government must certainly be maintained, there can be no gap or vacuum in the continuity of government. That is why it is imperative for the newly elected members of parliament to take oath.
His words imply that the Supreme Court's final opinion about the newly elected members of parliament taking oath before the expiration of the present parliament's term, is that though the newly election members are considered members of parliament by virtue of being sworn in, reality is different. Their term of office will come into effect from when the first session commences. 'Legal fiction' is that no matter what the facts are, while the newly elected members of parliament have taken oath, the legal fact is that they have not taken over duties as yet.
It is the authority solely of the Supreme Court to interpret the law according to the constitution and we must accept that as final. It is clear from the court's opinion that whatever the court deems as legal facts on the basis or legal fiction, is not the actual facts. But what is the resolution to the logical questions that arise due to denying the actual facts?
The ruling of the Appellate Division states it is essential for the newly elected members to take oath in order to maintain the continuity of government because the president calls upon the person in whom the majority of members place their confidence, to form the government. In order, it is for the members of parliament to perform their duty of electing the Leader of the House and so it was essential for them to take oath. As we are acknowledging the new government as the outcome of the results of the 12th Jatiya Sangsad election, then if the members or parliament have still not taken up their duty of office, does that not mean the government's legitimacy falls into question?
Every one of the majority party took oath together, but after that has the membership to the 12th national parliament only come into effect for the ministers? For the members who were reelected and became members of the cabinet, how did their membership to the 11th Jatiya Sangsad expire? Had they resigned from the 11th national parliament? Otherwise are they representing two parliaments? How can that be possible? Unless they resign or violate Article 70 of the constitution, there is no scope in the law for their membership to the parliament to expire.
The scope introduced by the fifteenth amendment to keep the parliament in place while the election is held, has created a new circumstance not just for ministers, but for the members of parliament too. As the constitution states that the members have to take oath within three days of the election results being published in gazette form, that means there are certain members of parliament who will represent two constituencies at the same time for up till three weeks.
The deputy leader of the opposition in the 11th national parliament, GM Quader, is the Lalmonirhat-3 member of parliament in the 11th national parliament. But in the 12th national parliament, he has taken oath as member of parliament of Rangpur-2. So now will he look after the interests of the Lalmonirhat constituency or of the Rangpur-2 constituency? Will the voters have a tug-of-war over him till 29 January? The same applies to Workers' Party leader Rashed Khan Menon.
There is much debate over legal fiction the world over, and while there is plenty of precedence in the past, its application has decreased significantly in contemporary times. There is detailed research published on the matter too. Here we may make mention of the book 'New Legal Fiction' by constitutional law professor of George Washington University, Peter G Smith, published in 2007.
The author of 'Legal Fiction in Private Law', Cambridge University's Wolfson College fellow Liron Shmilovits, in deliberating of the problems in using legal fictions, said, "they make the law a patchwork of ad-hoc solutions devoid of principle or theoretical clarity." He said, "They make the law less clear to laypeople and thus less reliable. It has also been argued that fictions don’t solve the fundamental problems but only treat the symptoms." The hint made by the law minister about possible clarification is perhaps an acknowledgement of this reality.
In no parliamentary democracy is there any precedence of the previous parliament remaining intact while the new parliament has been elected. Our prime minister in the past has spoken several times about the Westminster system of government. Many of the ruling party also bring up this example. They invariably bring up the example of Britain when rejecting the demand for a caretaker government. But the bottom line is, Britain does not hold elections without dissolving the parliament at first.
Even if there are early elections, the parliament is dissolved at first. And if a parliament fulfills its full five-year term, it is dissolved and elections held within 25 days. Within hours after the results are declared on the day of the election, we get to see a new government.
* Kamal Ahmed is a senior journalist
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir