July Charter implementation: Special constitutional order mulled

The National Consensus Commission is preparing to recommend that the constitutional reform proposals of the July National Charter be implemented through a special constitutional order by the President.

Other reform proposals would be carried out through ordinances and executive orders of the government.

At the same time, the entire charter would be incorporated into the Constitution, either as a schedule or in some other form.

According to multiple sources, this preliminary decision was reached yesterday, Sunday, at a meeting of the Commission with constitutional experts.

The experts were requested to draft a model of such a “special constitutional order.”

Whether this would indeed be called a ‘Special Constitutional Order of the President,’ what its structure or format would be, and how it could be made practically workable—these questions are to be addressed in the draft, which the experts are expected to submit today, Monday.

The method of implementation itself will not be part of the July Charter. The commission will provide this to the government as a recommendation or advice for implementing the charter.

The reform proposals on which the BNP and other parties have dissenting opinions (notes of dissent) will also be included in the charter. However, no specific procedure for implementing these is being mentioned, according to commission sources.

The draft of the July Charter has been finalised, with only minor language changes pending. The Commission expects to send two documents-- the final July Charter, and  recommendations on implementation mechanism-- to the political parties and the government by tomorrow, Tuesday.

Earlier, through two rounds of dialogue with political parties, the Commission secured agreement on 84 reform proposals, which now form the basis of the July Charter. The Charter will have three parts. The first part will contain a background section, the second part 84 reform proposals, and third part will consist of a seven-point pledge of implementation.

Some proposals require changes in laws and regulations, some can be enforced through government orders, and some through presidential ordinances and executive orders. The most complex are those involving constitutional amendments. If carried out through a special constitutional order, these reforms could be implemented before the next general election.

Political parties remain divided over how to implement the Charter. The BNP has argued that constitutional proposals should be implemented within two years of the formation of the next parliament.

In contrast, Jamaat-e-Islami, the National Citizen Party (NCP), and some others want full implementation before the upcoming election.

Jamaat favours presidential proclamation or referendum, while the NCP has suggested forming a Constituent Assembly. At least 10 other parties have recommended seeking a Supreme Court reference under Article 106 of the Constitution.

Yesterday afternoon, the Commission held a three-hour detailed discussion at the Foreign Service Academy with legal and constitutional experts. Participants included retired Justice MA Matin of the Appellate Division, DU Law Faculty Dean Mohammad Ekramul Haque, and senior lawyers Sharif Bhuiyan and Imran Siddique.

From the Commission, Vice Chairman Professor Ali Riaz, members Badiul Alam Majumdar, retired Justice Md Emdadul Haque, Iftekharuzzaman, Safar Raj Hossain, and Md Aiyub Mia attended. Chief Advisor’s Special Assistant Monir Haider also joined the meeting.

Multiple sources related to the meeting stated that detailed discussions were held on the advice of the political parties. Earlier, there had also been discussions on a Special Constitutional Order.

However, regarding certain decisions on which some parties had different opinions (notes of dissent), including the election process of the upper house, the Consensus Commission had considered the idea of holding a referendum.

In yesterday’s discussion, the positive and negative aspects of this were discussed. Taking into account the legal and political aspects of a referendum, the opinion was in favour of not recommending this method.

Relevant sources stated that the experts also gave negative opinions on the issue of taking a Supreme Court reference.

After discussions on multiple alternatives, a preliminary decision was reached in favour of implementing reforms through the issuance of a Special Constitutional Order.

In addition, the reform proposals that can be implemented through ordinances or presidential orders were separately raised in the meeting. The experts reviewed those as well. The meeting also discussed the ‘Pledge of the Charter.’ On this matter, the experts advised bringing some linguistic changes. The Consensus Commission will again hold a meeting among themselves this afternoon, Monday.

Professor Ali Riaz told Prothom Alo that the Commission had given very serious consideration to the advice of each party. In every case, the legal and political aspects, were examined. The Commission wants its recommendations to be legally, constitutionally, and politically acceptable. He said that if they receive the draft from the experts, then tomorrow, Tuesday, they expect to be able to deliver the July Charter and the recommendations on methods of implementation to the political parties.

According to related sources, the Commission has finalised the draft of the July Charter. The proposal to give the July National Charter precedence over the Constitution is being dropped. Instead, the Commission will recommend attaching this Charter to the Constitution as a schedule or in some other way. Based on the opinions of political parties, further changes are being brought to the Pledge of Implementation of the Charter.

On 29 July, the National Consensus Commission had provided the political parties with the initial draft of the July Charter. Based on the parties’ opinions, the initial draft was revised and on 16 August the “Integrated Draft” was sent to the parties.

In the Integrated Draft, eight commitments were mentioned, including giving the July Charter precedence over the Constitution; providing that no court could question the validity of the Charter; and assigning the Supreme Court the responsibility of interpreting the Charter. However, the BNP had strong objections to these three points. In the final draft, changes are being made in all three areas.

According to relevant sources, instead of granting the July Charter precedence over the Constitution, the final draft states that the will of the people is the supreme law.

In a democratic system, the will of the people is reflected through political parties. On the basis of long discussions and deliberations, political parties and alliances are jointly formulating the July National Charter as the clear expression of the people’s will. Therefore, this Charter will be attached to the Constitution as a schedule.

It has been learned that this matter was also discussed in yesterday’s meeting. There was discussion on whether it would be appropriate to keep such a large Charter in the Constitution as a schedule. However, everyone agreed on incorporating the Charter into the Constitution. Whether it will be included as a schedule or in some other way may be finalised within today or tomorrow.

The Integrated Draft had stated that the validity of the Charter could not be questioned in any court. This has been changed. The final draft states that the parties will not question the validity and necessity of the Charter in any court. At each stage of implementation of the Charter, the parties will ensure legal and constitutional safeguards. The provision of assigning the Supreme Court the responsibility of interpreting the Charter has been dropped in the final draft.

The final draft states that reform proposals that are immediately implementable will be fully implemented without any delay, through the issuance of executive orders and ordinances by the interim government and other relevant authorities. Constitution-related decisions will be incorporated into the Constitution through appropriate procedures.

The July National Charter will be fully implemented as a new document of political consensus adopted on the basis of unanimity.

For the implementation of the Charter, necessary amendments, additions, and revisions will be made to the Constitution; necessary amendments, changes, revisions, or new laws will be enacted to existing laws; necessary rules will be framed or existing rules and regulations will be changed or amended.

The uninterrupted struggle of 16 years and in particular the historical significance of the 2024 mass uprising will be given constitutional and state recognition.

Justice will be ensured for those subjected to enforced disappearances, killings, and torture in the 16 years of anti-fascist democratic struggle prior to the mass uprising, as well as for all killings during the July–August 2024 mass uprising.

State honours will be given to the martyrs, appropriate support will be provided to the families of martyrs, and proper treatment and rehabilitation will be ensured for the injured.

Political parties will sign the July Charter with pledges on these seven issues.

In the Integrated Draft, there had been a preamble in the Pledge of Implementation section. The BNP had objections to it. The NCP also had objections to some parts of it. It has been learned that in the final draft this preamble has been removed.