A unique situation, surely

This is surely a unique situation.

The Jamaat-e-Islami led alliance's MPs elected in the February parliamentary election took two distinct oaths of office. 

On Tuesday, first, they were sworn in as members of parliament according to the provision of the constitution. Second, they took oath as members of the proposed Constitution Reform Council under the provision of the controversial July Charter Implementation Order issued by the interim government to bring much hyped changes to the current constitution.

But things were not as smooth. The Bangladesh Nationalist Party-led alliance that won more than two-third majority in the election took a single oath of office — only as members of parliament in line with the provision of the constitution. The ruling party refused to do anything outside of the ambit of the constitution. 

Meaning, none of the party's MPs took the second oath as members of the proposed Constitution Reform Council.

The result? The new parliament has been constituted with MPs taking oath of office. On the same day, the BNP parliamentarians formed the new government led by the party's Chairman Tarique Rahman. Everything followed the procedure stipulated in the constitution and the Rules of Procedure of the Jatiya Sangsad.  

But formation of the reform council remains incomplete as more than two-thirds of the MPs refused to take the oath in prescribed form by the July Charter Implementation Order. 

The ruling BNP has explained its reasons.  

BNP Standing Committee Member Salahuddin Ahmed, who was made a minister in the new cabinet, said they did not take any oath as members of a reform council as there is no such provision in the constitution. 

"To reflect the will of the people as expressed in the referendum, it is first necessary to enter parliament and carry out the required laws and constitutional reforms," said Salahuddin while talking to journalists at Jatiya Sangsad Bhaban after BNP's parliamentary party's meeting where Tarique was elected as its leader and later in the afternoon took oath as the prime minister.

The July Charter Implementation Order, which claims supremacy over the constitution, has been mired in controversy over its legality since its draft was made public last November. 

Constitutional experts vehemently opposed the order, and are still saying the constitution still in force does not allow the president to issue such an order. 

At present, the constitution allows the president to make laws to meet the urgency through promulgation of ordinance in absence of parliament. But that law-making power is not unfettered; the constitution imposes restraint. An ordinance cannot make any provision which could not lawfully be made by Act of parliament and for altering or repealing any provision of the constitution. 

The July Implementation Charter order has been accused of defying the supremacy of the constitution — supremacy which cannot be altered even by the parliament in exercise of its constituent power under Article 142. 

This has been upheld in several judgments of the Bangladesh Supreme Court. Even in most democracies, except only a few nations including the UK, New Zealand, Finland, and sometimes Norway, the supremacy belongs to the constitution, and parliament is not sovereign in making any law as the constitution imposes some restriction on legislatures. 

Except for the aforementioned exceptional few nations, the apex court of a country can strike down any legislation — including a constitutional amendment — if it violates the supremacy of the constitution itself.

"To reflect the will of the people as expressed in the referendum, it is first necessary to enter parliament and carry out the required legal and constitutional reforms."

Salahuddin Ahmed, Member, BNP Standing Committee

About the supremacy of the constitution, late attorney general Mahmudul Islam, in his authoritative book 'Constitutional Law of Bangladesh' writes "supremacy of the Constitution means that its mandates shall prevail under all circumstances. As it is the course of legitimacy of all actions, legislative, executive or judicial, no action shall be valid unless it conforms with the Constitution both in letter and in spirit."

He states that "supremacy of the Constitution is a basic feature of the Constitution and as such even by an amendment of the Constitution an action in derogation of the supremacy of the Constitution cannot be declared to have been validly taken. Such an amendment is beyond the constituent power of Parliament and must be discarded as a fraud on the Constitution."

But the referendum pathway has raised difficult constitutional questions.

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Take Article 142 as an example, which requires a two-thirds majority of the total membership of Parliament for constitutional amendments. 

But the July Charter Implementation Order authorises the proposed reform council to adopt final constitutional reforms by a simple majority of members present and voting. This provision of the Order undermines Article 142.

"Constitution reform assembly is weird; no legal basis at all, not an iota of legality. Neither is there a necessity. A complete political chaos," former DU law professor Ridwanul Haque recently wrote on his Facebook profile after a confrontation arose between the two rival parliamentary alliances — BNP and Jamaat — over taking oath as members of the Constitution Reform Council.

"The elections were for a parliament, which has all the powers to bring about reforms agreed or beyond those agreed. Political parties did not agree to transform the parliament into a reform assembly. Bangladesh needs political and constitutional reforms that can be achievable," Haque further wrote.

The July Charter has also become a politically contentious issue. The BNP and some of its allies have given notes of dissent to some key constitutional reform proposals. But their notes of dissent were ignored in the final version of the charter which was placed in a referendum held on the same day as the 13th parliamentary election. 

The BNP has strongly criticised the interim government for it and time and again, the party made it clear that it would carry out those proposed reforms they did not give any notes of dissent to. 

Therefore, it was perceived earlier that the BNP MPs might not take oath as members of the reform council. 

On Tuesday, BNP leader Salahuddin Ahmed, who led the party's delegation to the talks with the National Consensus Commission over reforms for months, said his party lawmakers would take the oath of office as per the provision of the constitution.  

As the BNP MPs refused to take the second oath of office, Jamaat-e-Islami and NCP initially announced that their elected MPs would take neither oath. Later, they however took both oaths of the office by setting a "bizarre record", while skipping the cabinet swearing-in ceremony.

The three previous parliaments had also set a bizarre record, albeit in a different manner.

After winning the three consecutive sham elections since 2014, the Sheikh Hasina regime made thrice a "dubious distinction" of newly elected MPs taking their oaths before the dissolution of the then existing parliament. 

This practice had created a situation where two sets of MPs existed simultaneously, a scenario that was unusual in the world of parliamentary democracy. The intention behind her politics was clear. After winning the controversial election each time, she did not want to take any risk by dissolving the then existing parliament during the transitional period. Finally Hasina turned into an autocrat through these sham elections, which ultimately led to her downfall in the July Uprising. 

Yet, despite that blood-soaked uprising and demands for change, it seems Bangladesh has been unable to get out from that state of dubious distinction. 

Wednesday morning indicates a topsy turvy politics over the constitution reform in coming days.