‘Those who initiated constitutional reforms might lack understanding of our Constitution’

Sketch: TBS

This excerpt is from 'Notun Shangshad, Notun Sharkar' (New Parliament, New Government), a political talk show hosted by Shakhawat Liton, executive editor of TBS. The guest for this episode was Shahdeen Malik, a senior advocate at the Supreme Court and a constitutional expert. The eminent jurist noted that the controversy over the Constitutional Reform Council stems from a legally flawed Presidential Order that may undermine the supremacy of the Constitution and is likely to face court challenges, adding that political disagreements between parties could have been resolved through dialogue. He also noted that public expectations after the July Uprising are now more focused on stability, economic relief, and democratic practice rather than extensive constitutional reform.

Jamaat-e-Islami and NCP claim that by refusing to take the oath for the Constitutional Reform Council, BNP has disregarded the aspirations of the July Uprising. I would like to know your observations. How has the new parliament and government begun its journey? 

It seemed the journey had started smoothly over the past few days — Prime Minister Tarique Rahman visited the homes of Jamaat's Ameer, NCP leaders, and Khelafat Majlish leaders. There was a cordial atmosphere. After their victory, BNP did not celebrate with festivities; instead, they held prayers on Friday. It appeared to be a smooth beginning. But after today's developments, it seems the journey has stumbled at the very outset. Disagreements are natural, but could this have been handled better?

Disagreements are normal in politics. Not all parties will agree on every issue. But perhaps this could have been resolved through dialogue. It seems that Jamaat-e-Islami and NCP suddenly adopted a hard-line stance — if I may use that term.

We have gone through months of uncertainty — whether elections would happen, what would occur. Ultimately, the election was held peacefully, without significant violence. Over the past weeks, the transition seemed steady. Suddenly today [Tuesday, 17 February], there was an unexpected stumble. 

Instead of beginning constitutional politics, have we started political disputes over the Constitution itself?

You're right. But this was not necessary. Particularly BNP's position — as stated by Salahuddin — that constitutional amendments must first incorporate the reform council into the Constitution, and only then could MPs take that oath. That is the argument.

On the other hand, it is being said that the oath was taken under a "constitutional order" issued by the President. But my concern is that there is no such provision in our law as a "constitutional order" by the President. If Parliament is not in session, the President may issue ordinances under special circumstances. 

But the power to issue ordinances is not absolute; the constitution imposes many restrictions. The core issue is this: Ordinances may be issued, but they cannot conflict with the Constitution. There is no separate legal basis for a "Presidential Order" overriding the Constitution. From a legal and grammatical standpoint, this has become extremely problematic.

One of the fundamental features of our Constitution is its supremacy. Has the July Charter Implementation Order undermined that supremacy? 

Yes, undoubtedly it has. If there was truly a need to establish a Constitutional Reform Council, the first session of Parliament could have passed a constitutional amendment to create it. That would have been procedurally sound.

As it stands, many questions will arise. I am certain this matter will be challenged in court. Whether the President has the authority to issue such an order, and on what basis — these will be examined. Defending this order will be extremely difficult.

The order also states that constitutional amendments proposed by the reform council would pass by simple majority, whereas Article 142 of our Constitution requires a two-thirds majority in parliament. Does this not place the order above the Constitution?

Yes, it does. The Constitution prescribes a method for amendment. This order proposes another method. That is entirely contradictory. If the Constitution had been abolished after 5 August, as happened in Pakistan in 1958 when the 1956 Constitution was annulled, then perhaps a new framework could be introduced. But our Constitution has not been abolished.

Even after Sheikh Hasina was removed on 5 August, actions taken — including ordinances — were framed under constitutional provisions. The interim government took oath under the Constitution, reportedly after consulting the Supreme Court. There may have been minor deviations, but no major constitutional departure. But this Presidential Order has complicated everything. 

If the order itself is flawed, shouldn't the referendum held under its authority also be challenged?

Yes, it may be challenged. BNP MPs have only taken the parliamentary oath. Jamaat and NCP have taken both oaths. Now the question arises: Who will convene the Constitutional Reform Council if the majority party did not take the oath? 

MPs were elected to the National Parliament. Can they, by virtue of that election, assume roles in a separate Constitutional Reform Council? 

These matters are all muddled. There was no need for such confusion. It suggests that those who initiated this may lack a clear understanding of constitutional principles.

Parliament already has the authority to amend the Constitution. It has been amended 18 times. Many of the July Charter proposals — additions, deletions, reforms — could be addressed within the existing constitutional framework, except those contradicting the basic structure.

Will politics then move toward that conflict again?

No, I don't think politics will move toward conflict again. People took to the streets because they wanted change — they unquestionably wanted change. That is why they made sacrifices, gave their lives, shed blood, and ultimately forced an authoritarian government to step down.

Now, we have gradually become open to returning to a calm and peaceful environment, and we all knew that if a good election were held, we would return to normalcy. At present, what people want is a stable and orderly situation. They want prices not to rise, but rather measures to reduce them. They want proper employment opportunities, and improvements in health and education, which are areas where we still have significant shortcomings.

Even if BNP had taken oath in this council, would this parliament actually have the authority to implement the proposals in the July Charter?

There are signs that some proposals conflict with the Constitution's basic structure. Even if passed by a two-thirds majority, such amendments could be struck down by the courts. Parliament's power to amend is not unlimited. It cannot violate the Constitution's basic structure.

For example, if Parliament amended the Constitution to extend its term from five years to 15, even with unanimous support, the courts would likely invalidate it as contrary to the basic structure.

Our Parliament is not like the UK's House of Commons, which operates under parliamentary sovereignty. In Bangladesh, the Constitution is supreme.

Another fundamental misconception is the belief that writing "good words" into the Constitution will automatically ensure democracy. Nigeria and Russia have well-drafted constitutions, yet democracy has struggled there. After the Soviet Union collapsed, Russia adopted a highly praised constitution in 1993, but we know the outcome.

Democracy depends on political culture, accountability, institutional practice — not merely constitutional text.

There has been excessive obsession with constitutional reform over the past year, which actually reflects the fragility of our democratic culture. Many political leaders and members of the Constitutional Reform Commission lacked legal expertise. Yet they were discussing deeply legal concepts like accountability and rule of law without sufficient legal grounding.

Why did the political parties sign the July Charter then?

Political parties likely signed the Charter to expedite elections, prioritising a swift transition. As for the "aspirations of July" — what were they? During the June–July–August 2024 movement, the central demand was Sheikh Hasina's removal. There was no detailed constitutional blueprint. People were facing violence, injuries, and repression. The movement unified around a single-point demand.

The aspiration was for a just, accountable, democratic state — not a detailed reform scheme.

The current Constitution already contains noble principles — equality before law, prohibition of discrimination, rule of law. The issue has been practice, not text.

Public sentiment today is focused on stability — employment, inflation, essential services — not technical constitutional disputes.