Oath-taking of Constitutional Reform Council unconstitutional

Although the members of the BNP and its allies took their oaths as members of the 13th National Parliament on Tuesday, they did not take the oath as members of the Constitution Reform Council on the same day.

Six independent MPs chose to abstain from taking the oath. In contrast, the members of the Jamaat-NCP alliance did take the oath as members of the Constitution Reform Council after their oaths as MPs. Chief Election Commissioner AMM Nasir Uddin administered both types of oaths to the members of the National Parliament and the members of the Reform Council on Tuesday.

However, legal experts have remarked that this initiative to take the oath as members of the Constitution Reform Council is unconstitutional. They argue that the existing constitution does not provide for an oath for members of such a council.

Consequently, organizing such an oath outside the constitutional framework is deemed unconstitutional.

Furthermore, the constitutional responsibilities of the Chief Election Commissioner are primarily confined to conducting elections and administering oaths to members of parliament. It is beyond his jurisdiction to administer the oath for any additional council.


Legal experts’ opinion:
Constitutional expert and senior lawyer of the Supreme Court, Barrister Badruddoza Badal, told Views Bangladesh, ‘The country’s constitution clearly stipulates the oath of members of parliament. But the existence of any constitutional body called the Constitution Reform Council or the provision for the oath of members is not in the current structure.’

He said, ‘Article 148 of the constitution stipulates the oath of various constitutional positions including the President, Prime Minister, Ministers, Speaker, Judges and members of parliament. According to this provision, if the Speaker does not administer the oath of the members of parliament within three days of the publication of the gazette of the newly elected MPs, the Chief Election Commissioner can administer this oath.

However, the Chief Election Commissioner does not have the power to administer any additional oath beyond this.

Constitutional expert Dr. Shahdin Malik told Views Bangladesh, ‘Taking oath as a member of a council that is not mentioned in the constitution is questionable from a constitutional point of view. Parliament can form an advisory council if it wants through legislation, but to declare it as a constitutional council, an amendment to the constitution is necessary.’

The jurist also raised questions about the administration of both oaths by Chief Election Commissioner AMM Nasir Uddin.

According to him, ‘The constitutional responsibility of the Chief Election Commissioner is mainly limited to conducting elections and administering the oath of parliamentarians. Administering the oath of any additional council does not fall within his jurisdiction.’

Senior Supreme Court lawyer Manzil Murshid told Views Bangladesh, ‘The National Parliament has the power to amend the constitution. However, to do that, it has to follow the prescribed procedure of the constitution, a two-thirds majority and a bill has to be passed in accordance with the specified process.’

According to them, if a special committee or commission is formed to reform the constitution, it can be within the administrative or legal framework. But if a constitutional oath is organized for the members of that committee, it is in conflict with the existing constitutional system.

He also said, ‘The members of parliament have already taken an oath to protect and uphold the constitution. It is legally unnecessary and confusing to administer the oath to the same person separately in the name of the Constitutional Reform Council.’

Supreme Court lawyer and newly elected BNP MP Barrister Muhammad Nowshad Zamir told Views Bangladesh, ‘We have no objection to constitutional reform; however, the process must be transparent and constitutionally valid. Before that, the structure, jurisdiction and scope of any council must be clarified in the parliament.’

BNP Standing Committee Member Amir Khasru Mahmud Chowdhury said that there is no legal opportunity to take oath as a member of the ‘Constitutional Reform Council’ before the necessary changes and reforms to the constitution are completed.

He made this comment in a response to journalists after taking the oath as a member of parliament at the Jatiya Sangsad Bhaban on Tuesday morning.

Amir Khasru clarified that ‘the governance of the state and parliamentary activities must be conducted in accordance with the current constitution. As there is no provision for the oath of the Reform Council in the current structure of the constitution, it is not possible to take any such step at the moment.

However, a leader of the Jamaat-NCP alliance said that the need for constitutional reform is undeniable and the council has been formed for that purpose.

He claimed that this is part of a political and moral commitment. The next step will be taken only after following the constitutional process.

No official explanation was received from the Election Commission in this regard.

However, an official concerned said that all the oaths on Tuesday were organized as per the decision of the interim government.

What may happen in the future

According to analysts, the matter may ultimately depend on the interpretation of the court. If someone files a writ petition, the Supreme Court can determine the validity and constitutional status of this oath. All in all, the event of taking oath as a member of the Constitution Reform Council may give rise to a new constitutional debate. Legal experts have commented that such an initiative without clear provisions of the constitution may create complications in the future.

It is worth noting that although the newly elected BNP MPs took oath as members of parliament on Tuesday, they did not take oath as members of the Constitutional Reform Council on the same day.

Six independent MPs also abstained from taking the oath. In addition, Nurul Haque Noor and Zonayed Saki, although they took oath as members of parliament, did not take the oath as members of the Constitutional Reform Council.

However, the Jamaat-NCP alliance MPs took the oath as members of the Constitutional Reform Council on the same day.