Md Abdullah Al Hasan Chowdhury
The nation witnessed the recent heated debate in parliament on issues like referendum, formation of Constitutional Reform Council (CRC) and the Constitutional Order issued by the President to give legal validity to the formation of proposed Reform Council. While BNP Law Makers centred their debate on interpretation of constitutional provisions as to the legal validity of formation of proposed Constitutional Reform Council on the other hand Opposition Law Makers focused on spirit of July Charter and the verdict of referendum. As regards formation of Constitutional Refrom Council and referendum BNP questioned the unconstitutionality of the very order issued by the President providing for formation of Constitutional Refrom Council and holding referendum. According to our present constitition under article 93, President can issue only ordinance when parliament is not in session.
As there is no provision in the constitution of forming such council or holding referendum and no provision of issuing such Constitutional Order for above purpose, BNP took stand not to do anything in violation of constitution. Following the fall of Sheikh Hasina Govt on 5 August, the Interim Govt was sworn in on 8 August under the existing constitution. It was formed on the basis of Supreme Court's opinion obtained through reference under 106 article of the constitution. Interim Govt during its tenure by forming a Consensus Commission and consulting the political parties prepared the July Charter which also incorporated dissents given by political parties on different issues.
It is considered a political document reflecting the expectations of July uprising. So far as it is a political document there is no controversy as during 1990 uprising three alliances also prepared similar political document containing the expectations of people which was popularly known as " tin joter ruprekha". At that time it was left to the political parties for implementation after formation of parliament. But this time to impose compulsion on political parties to implement the July Charter interim Govt undertook initiative to issue an order by the President namely July National Charter(Constitution Reform) Implementation Order 2025 providing formation of a National Refrom Council through holding a referendum.
The debate arose as the present constitution does not permit to issue any Constitutional Order by President. Though before framing constitution in 1972, President issued some constitutional order with the power inherent in the proclamation of Independence issued on 10th April 1971.So if we look at the things through the lense of the present constitution then it must be admitted that there is no scope for President to issue any constitutional order other than issuing ordinance when parliament is not in session under article 93.The Home Minister by subtle interpretation of the constitution put his arguments logically and convincingly. But the opposition focused on spirit of uprising and sovereign will of people as per article seven. And their logic is that people through referendum gave verdict in favour of implementation of July charter through formation of reform council.
As per the Article 7 constitution itself is the solemn expression of the will of people. The 1972 constitution is embodiment of the will and great expectations of people. So our present constitution was born out of the great event of the nation that is the liberation war. This constitution contains the ideal and spirit of liberation war. In the preamble of the constitution spirit and ideals of the liberation war that represent the sovereign will of people and overarching objectives of constitution were stated expressly. This fundamental character of the constitution is unalterable. The constitution itself provides the procedure to bring necessary amendment to it as and when it is necessary in the interest of people. So most of the reform proposals incorporated in the July Charter can be implemented through amendment in the constitution. Why then the formation of Reform Council in absence of constitutional provision for formation of such thing?Home Minister and Law Minister already put strong argument in the parliament that the constitutional order issued by the President did not have any legal validity as constitution did not provide for issuing such order. The opposition based their arguments on July Charter and referendum verdict and also emotion and rather than careful examination of constitutional provision.
So it is now clear and opposition also did not hide their intention that they wanted to rewrite the constitution and abolition of the present constitution framed in 1972 that upheld the spirit of our liberation war. But we must keep in mind that liberation war of 1971, its ideals and spirit that pervades 1972 constitution can never be erased from the collective memory of the people. Nothing can be equated with great event of 1971 that gave birth to a new nation, gave us a new flag. Spirit of 1990 and 2024 uprisings if carefully examined will trace its root in the spirit of our liberation war as democracy and discrimination free Bangladesh represent our liberation war spirit. Moreover as the constitution is in operation and no revolutionary govt was formed there is no scope to cancel the constitution and rewrite a new one. Home Minister and Law Minister made it clear to the house that they were not against July Charter but process of implementation must follow the constitutional provision. So as constitution exists we have to find solution to every problem through constitutional process not by going beyond constitution that may be challenged in the court. The writer is Former DG,BIAM and adjunct faculty, East West University
