Can the July Charter take precedence over the Constitution?

Immediately after the draft of the July Charter was sent to different political parties, it became the talk of the town.

The Charter has a few controversial clauses—such as prioritising the Charter over the constitution or blocking the power to challenge its provisions in the court—that have raised serious questions regarding whether the Charter truly reflects the collective will of the people, democracy and the idea of the republic.

The Business Standard has talked to prominent lawyers, legal experts and judges to delve deeper into this issue.    

The idea that the July Charter should usurp the Constitution is wrong

David Bergman 

British Journalist

This is a dense document and it will take time to digest, but at first glance most of the proposals appear to be common-sense progressive reforms seeking more independent state institutions and a reduction of power in the hands of the prime minister. It includes the kind of reforms that I think most people, interested in constitutional reform, would agree with. 

I notice that there seems to be a useful fudge on the issue of "the fundamental principles of state policy" which currently includes the word "secularism". This term is now under attack from the islamic right wing, now a more potent force in Bangladesh politics.

Para 7 of the  Charter proposes that "The fundamental principles of state policy section of the constitution shall include 'equality, human dignity and social justice, democracy, and religious freedom and harmony'."  

My reading of this provision is that it does not suggest a "repeal" of the section (though some may argue that this is inferred) only that this new wording should be "included". If my reading is correct, this allows the argument about the retention of the word "secularism" to be decided in the future, under an elected government. This would be a good thing.

Although the creation of a second chamber is intended to act as a check on the power of the prime minister etc, and any new government, and it may do just this, it remains unclear how this will play itself out. There is a real question whether the answer to Bangladesh problems includes the need for even more politicians!

In the final section, there appears to be an attempt to make this document supreme, usurping even the current constitution. 

This is justified in a rather convoluted manner by saying (a) the people are the owners of the state (b) in a democratic system, the will of the people is reflected and established through political parties. and (c) the 'July National Charter 2025' as something agreed by political parties is therefore "a clear and supreme expression of the people's will through long discussions."

This Charter may include some positive reforms, which may have received consensus from the political parties, and hopefully this will result in some or most of these reforms happening in the future - but, please, don't pretend that this process is anything more than this. 

The idea that anything agreed by a group of current highly undemocratic political parties, many of them very small, who have not been put to the test in a free and fair election since 2008, or indeed have never taken part in any national election, represents "a clear and supreme expression of the people's will", is simply laughable. And the idea that this Charter should usurp the constitution is wrong.

We must ensure the July Charter gains legal clarity 

Badiul Alam Majumdar

Head of Electoral System Reform Commission 

We believe that the legal experts have put in immense effort, time, and dedicated endeavour to create this National Charter of July. If it does not have a legal foundation and is not implemented, then the entire effort will go in vain. That is why we are trying to seek clarity from legal experts. 

We will need to wait a little longer to gain more clarity on this matter. Experts are looking into it, and we hope that very soon we will have a clear understanding. We need to have some patience.

Furthermore, if in the future any force attempts to annul this Charter through the Appellate Division by force, we must also consider whether any safeguards can be put in place to prevent that. This is a question we are currently seeking answers to. We are consulting with our experts and hope to have an answer soon.

This is a crucial moment for us, with many important tasks at hand. It is essential that this Charter is reflected in reality, and we are doing everything we can to make that happen.

Nobody can pass any law by going beyond the power granted by the Constitution

Shahdeen Malik 

Advocate, Supreme Court of Bangladesh

If the July Charter is passed as a Presidential executive order, unless the next government passes it within 30 working days, it will get null and void automatically. And it has been proposed that it has to be prioritised over the constitution. No country in the world has placed anything above the Constitution. That does not mean that we can not do it; we can invent something new in the legal world. However, the problem is that the constitution is the supreme law. If the constitution is not the supreme law, if the July Charter is placed above it, then the constitution will lose its prestige. If you declare something above the Constitution, then it will not be the constitution anymore. There are countries without constitutions; we will be one too. And it will not follow the grammar of law worldwide. 

Another issue is putting the blame of lapses or deviations from law onto law itself. Suppose there is a law to prevent murder. Yet, murders happen due to various factors. Now, saying that murders occur due to the existing law is not very intelligent. 

And if something is passed by a parliament, then it cannot be repealed by any next parliament—this sort of statement has no legal basis. After the 1972 Constitution, every government has amended the constitution. Any parliament can not curtail the power of the next parliament. Even if it is stated that something passed by this parliament cannot be amended later, it is illegal according to the Constitution.  

And no parliament would pass anything above the constitution. Because they know that it is beyond their power. According to Section 65 of our constitution, the legislative power of the republic is vested in the parliament and is subject to the Constitution. 

So, the parliament can only pass laws that are within their power granted by the Constitution. Even the parliament under the Awami League could not pass laws that would declare Sheikh Hasina as the monarch of the country for life, and after her death, her son or daughter would inherit the throne—because according to the Constitution, Bangladesh is a republic. Nobody can pass any law by going beyond the power granted by the Constitution. 

The future of July Charter depends on building consensus 

Hasnat Quaiyum

Chief Coordinator, Rastro Songskar Andolon

There are two points here. So far, these are only the proposed matters put forward by the commission. They are aspirations. Now, how far these aspirations can be considered lawful is still under discussion. On the one hand, the commission is consulting experts, and on the other hand, it is discussing with the political groups. 

My view is that once there is agreement on a particular matter, the government could adopt it in the form of an ordinance, an LFO, or a Charter, which may then be passed into law or issued as an ordinance.

If doubts remain, or if the commission feels that greater clarity is needed, then the question must be referred back to Article 106. If the Appellate Division confirms that such authority lies with them, only then will the proposal attain full legal standing.

At present, everything is still at the level of discussion. Nor is it the case that all sides have already reached agreement.

I believe further debate will take place. Yet those who led the movement in Bangladesh are likely to agree on certain minimum points. The future of this process depends on building consensus and ensuring that these agreements gain legal form. The outcome may be modest, but something tangible will still be achieved through consensus. 

If this takes the form of a law and is later ratified by Parliament, then it can be repealed. However, the discussions now under way are pointing towards something broader—an elected council or a parliament and constituent assembly working together. If a body of this kind, elected by the people, incorporates the Charter into the Constitution, then no future government would be able to repeal it unilaterally. In that case, it could only be undone through another constituent assembly. That would make it far more durable.

Even if the jurisdiction of court is curtailed, there is provision to review it under existing laws 

Masdar Hossain

Former District and Session Judge; Member of Judiciary Reform Commission

It is written in the draft that the legality, necessity and enforceability of the provisions of the July Charter can not be challenged in any court. However, Section 9 of the Code of Civil Procedure states that even in the instances where the jurisdiction of the court has been curtailed by law, the aggrieved person can go to the court and plead to review whether the verdict was according to the law and whether it violated his/her fundamental rights. 

And in these cases, the civil courts are permitted to do that. So, anyone can go to the court even if the jurisdiction of the court is barred. That is the main spirit of Section 9 of the Code of Civil Procedure.