Implementing any provision equivalent to a constitutional amendment through an ordinance would be contrary to the Constitution, Law Minister Asaduzzaman said on Monday.
He said the government therefore chose to issue a “July Charter Implementation Order” rather than an ordinance to give effect to the July Charter, although questions remain about the legal status of the order.
The minister made the remarks at a dialogue titled “Post-election Bangladesh: Political commitments and reality”, organised by the Centre for Governance Studies (CGS) at the CIRDAP auditorium in Dhaka.
Asaduzzaman said the president no longer had the authority to enact new laws through presidential orders after the Constitution came into force in 1972.
Presidential orders issued before the Constitution took effect retained legal validity, he said. Since then, the authority to enact laws has rested with parliament, while the president can promulgate ordinances under specific circumstances when parliament is not in session.
The minister urged people not to give misleading explanations about the implementation of the July Charter.
He said the BNP had clearly stated that it wanted to move forward with the charter.
Reforms to be based on 1972 Constitution
The 1972 Constitution should remain the foundation of any reform process, Asaduzzaman said.
He said proposed constitutional reforms or amendments would have to pass the test of the “basic structure theory”.
Referring to the Kesavananda Bharati case, he said India’s Supreme Court established the doctrine in 1972. The principle has also been recognised in several judgments concerning Bangladesh’s Constitution, particularly the case involving the Eighth Amendment.
According to the minister, 33 political parties signed the July Charter, whose relevant provisions envisage implementing reforms through constitutional amendments.
Therefore, he said, the reform process should be pursued while keeping the 1972 Constitution as the basis.
He said the proposal to discard the 1972 Constitution and write an entirely new one was a separate matter.
BNP differs on upper house
The July Charter proposes a 100-member upper house, with seats allocated according to the proportion of votes secured by political parties.
However, the minister said an alternative proposal could be considered if a political party opposed the arrangement, presented an alternative in its election manifesto and subsequently won the election.
He said the BNP had proposed a proportional, or “pro-rata”, system for selecting members of the upper house. The party had also submitted a note of dissent and outlined its position in its election manifesto.
Minister explains Enforced Disappearance Law
Asaduzzaman also spoke about the Human Rights Commission Act and the Enforced Disappearance Remedy and Prevention Act.
He said both laws were initially issued as ordinances during the interim government, with plans to have them scrutinised by parliament and amended where necessary.
There had been confusion over judicial jurisdiction under the enforced disappearance law, he said.
Cases involving widespread and systematic enforced disappearances would be dealt with by the International Crimes Tribunal, while individual cases would go before regular criminal courts, according to the minister.
He said the Human Rights Commission would retain its investigative powers but should not be considered a criminal investigation agency.
“No law is permanent,” Asaduzzaman said, adding that laws should be amended when problems emerge during implementation.
At the same time, he said safeguards should be in place to ensure that innocent people do not become victims in the name of accountability.
Political parties have right to criticise govt
On political rallies and programmes, the law minister said political parties that have not been banned have the right to hold rallies and other programmes.
He said criticising the government is also a constitutional right of political parties, and it is the government’s responsibility to ensure that right.
“Criticism helps the government avoid mistakes,” the minister said, adding that political parties should also remain mindful of the language and tone they use while criticising the government.
Supreme Court Secretariat order under review
On the ordinance concerning the Supreme Court Secretariat, the minister said the government had not decided against implementing it.
Rather, the matter would be reviewed before a final decision is taken, he said.
The Law Ministry does not have the authority to directly transfer an assistant judge, Asaduzzaman said. It can only recommend a transfer, while the final decision rests with the Supreme Court.
He also explained why some judges had been served show-cause notices.
According to the minister, several judges were asked to explain their involvement in advertisements for coaching centres, while others were issued notices over statements on social media allegedly violating the judicial code of conduct.
After receiving their responses, the matters were processed and sent to the Supreme Court, he said.
‘We don’t want to return to politics of killings’
Asaduzzaman said the country should not return to a political culture marked by enforced disappearances, killings, political murders and politically motivated harassment cases.
He claimed there had been changes in the handling of political cases and extrajudicial killings compared with the past, while investigations into allegations of enforced disappearances were continuing.
The minister acknowledged that the government had weaknesses but said it did not deny them.
He said the government wanted to move ahead with reforms while taking the country’s realities into account.
He also rejected the perception that the government had followed a negative course in every area since taking office.
CGS President Zillur Rahman moderated the discussion, which was attended by representatives of political parties and civil society organisations.
