Constitutional reform council swearing-in tomorrow, though uncertainty persists

Representatives elected in the 13th Jatiya Sangsad 9national parliament) election are set to be sworn-in tomorrow (Tuesday) as members of parliament (MP). They are also expected to take a separate oath as members of the constitutional reform council. The Jatiya Sangsad secretariat is making preparations for both oaths.

However, there is some uncertainty as to whether both oaths will finally take place tomorrow to whether the constitutional reform council will be formed right away to implement the constitutional reform proposals contained in the July National Charter.

Multiple sources from the Bangladesh Nationalist Party (BNP) told Prothom Alo that the party believes it would be appropriate to follow the provisions of the existing constitution. The current constitution provides only for the swearing-in of MPs, and does not contain any provision for a constitutional reform council or a similar body.

The issue of such an oath, they argue, could arise only if it were incorporated into the constitution in future. The BNP has also raised questions from the outset regarding the legal basis of the July National Charter Implementation Order.

As the ‘Yes’ vote prevailed in the referendum, the July National Charter (Constitutional Reform) Implementation Order stipulates that a constitutional reform council should now be formed comprising the representatives elected in the 13th parliamentary election.

The swearing-in of MPs will take place tomorrow morning, while the cabinet will be sworn in in the afternoon at the south plaza of the Jatiya Sangsad Bhaban. The secretariat has taken all necessary preparations for that.

After taking the oath, MPs sign the oath register. There is a prescribed format for the oath, which is being prepared specifically by the constituencies. The schedule to the July Charter Implementation Order also includes a separate oath format for members of the constitutional reform council. Preparations are being made for MPs to take this second oath accordingly.

Kaniz Moula, secretary of the Jatiya Sangsad secretariat, told Prothom Alo Sunday night that on 17 February newly elected MPs would take two oaths, one as members of parliament and another as members of the constitutional reform council.

However, BNP sources said Sunday that the party’s 209 elected MPs, along with three from allied parties will take oath as MPs but may decline to take oath as members of the constitutional reform council. If that case, the formation of the council could be left in limbo.

The BNP has expressed reservations about several constitutional reform proposals included in the July National Charter. By contrast, Jamaat-e-Islami and the National Citizen Party (NCP) agree on almost all issues and seek full implementation of the charter.

Speaking to journalists in Kishoreganj Sunday, Jamaat Ameer Shafiqur Rahman said, “A referendum has been held on the reforms. It must be accepted in full. We do not want to see partial implementation.”

Following long discussions between political parties and the former National Consensus Commission, agreement was reached on 84 reform proposals across various sectors. These were incorporated into the July National Charter. Of these, 48 proposals relate to constitutional matters and were subject to referendum, in which the ‘Yes’ vote prevailed.

Implementation of the constitutional proposals involves three stages. Two have already been completed. First, to provide a legal basis, the president issued the July National Charter (Constitutional Reform) Implementation Order on 13 November last year.

The second stage was the referendum held on 12 February. With the ‘Yes’ vote prevailing, the third stage is due to begin. At this stage, the order provides for the formation of a constitutional reform council composed of MPs to implement the constitutional proposals.

Key proposals in the charter include reducing some of the prime minister’s unilateral powers, increasing the president’s authority in certain appointments, establishing a bicameral legislature, and incorporating procedures for appointments to constitutional bodies directly into the constitution.

BNP, however, submitted notes of dissent on several important proposals, including the method of forming the upper house. The party had included its own constitutional reform proposals in its election manifesto.

Under the existing constitution, amendments may be made to the constitution with the support of two-thirds of MPs. However, the July Charter Implementation Order states that constitutional reform will be undertaken not by the regular parliament but by a constitutional reform council.

During discussions with the former National Consensus Commission, Jamaat-e-Islami and the NCP argued that implementing the charter’s constitutional proposals would significantly alter the basic structure of the constitution.

They contended that there could be questions as to whether a regular parliament has the authority to alter the constitution’s basic structure, potentially exposing such amendments to legal challenge. Granting the next parliament special authority for constitutional reform, they argued, would remove scope for challenge. The BNP, however, opined that there was no need to form such a council.

Some parties, including Jamaat-e-Islami and the NCP, proposed issuing an order rather than an ordinance to implement the charter. The BNP opposed this, arguing that there is no scope for issuing such an order and that the president can issue ordinances only.

Later, the National Consensus Commission had also consulted experts on these issues. Finally, the president issued the July National Charter (Constitutional Reform) Implementation Order on 13 November last year. It included the provision for the formation of the constitutional reform council also.

In an immediate reaction following the issuance of the order on 13 November, BNP standing committee member Salahuddin Ahmed told journalists that the order introduces a new idea, the formation of a body called the constitutional reform council.

The president has issued this order. The president has the authority to issue ordinances, but there is no constitutional provision empowering the president to issue such an order though, he had argued that day.

The July National Charter (Constitutional Reform) Implementation Order states that within 30 calendar days of the announcement of parliamentary election results, the first meeting of the council will be convened in the same manner as the first session of the parliament. At its first meeting, members will elect a chair and vice-chair for the council.

The council must complete the constitutional reforms in line with the July National Charter and the outcome of the referendum within 180 working days of its first sitting, after which its activities will conclude. The order does not specify what will happen if reforms are not completed within that timeframe.

The order states that while participating in the proceedings of the constitutional reform council, elected representatives will be designated as ‘council members’. The council will determine its own rules of procedure, including the convening and adjournment of sessions, the process for tabling constitutional reform proposals, the consideration and adoption of such proposals, along with all other related matters.

At least 60 council members must be present to conduct the reform council’s business. Any proposal relating to constitutional reform will be approved by a majority vote of the total membership of the council. In accordance with the pledge to implement the July National Charter, steps will be taken to incorporate the charter into the constitution.

The order states that within 30 working days of the completion of constitutional reform, an upper house of the Jatiya Sangsad (national parliament) will be formed through a proportional representation (PR) system, based on the votes received in elections to the lower house. Its functions will also be determined at that time.

The term of the upper house will run from the date its members take oath until the final day of the lower house’s term. To remove any obstacles to the formation of the upper house, the reform council may enact necessary provisions, and the government may issue the required directives.

Although the BNP agreed in principle to making the legislature bicameral, it differed over the method of formation and the powers of the upper house. The party favours allocating upper house seats in proportion to the seats won in the lower house. It also opposes making approval by the upper house mandatory for constitutional amendments. The model of the upper house preferred by the BNP was included in its election manifesto.

Responding to a related question at a press conference last Saturday, Professor Ali Riaz, special assistant to the chief adviser and former vice-chairman of the National Consensus Commission, said, “Beyond legal considerations, politics requires first and foremost a political judgement. …We are reminding everyone that there has been a public mandate, the ‘Yes’ vote prevailed in the referendum, and political parties have received public support as well. A balance must therefore be struck and that responsibility lies with the politicians.”