Constitution reform council: Why the dispute and what the law says

The tension had been brewing since the day new MPs took their oaths almost a month ago.

BNP lawmakers had refused to take oath as members of the constitution reform council, as mandated by the July National Charter Implementation (Constitution Amendment) Order of 2025, saying such a council did not exist in the constitution, and further that they had been elected as members of parliament.

However, the opposition alliance, Jamaat-e-Islami and its allies, took two oaths.

Since then, there has been a back-and-forth of taunts and threats. The home minister’s jibe that he did not quite understand what it (the implementation order) was, "masculine, feminine or perhaps neuter", was widely quoted as being dismissive of the July charter. The opposition, keen to implement the July charter, threatened street agitation if the ruling government refused.

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Debate

That tension simmered to the surface at the parliament on Sunday, which marked one month since the election results were formally announced. That one month was also the timeline to convene the constitution reform council, as stipulated by the order.

The order states that the council be convened within a month of the formal election results "in a manner similar to that of the parliament". The leader of the opposition, Jamaat leader Shafiqur Rahman, pointed it out and raised his concern about the fate of the reform council.

The home minister, Salahuddin Ahmed, who led BNP’s negotiations at the consensus commission and is presumably the ruling party’s focal point in this matter, responded. He said that while the president had convened a session of the parliament under Article 72 of the constitution, it does not mention anything about a reform council. Hence, the president could not convene it.

“I am not denying anything. The people’s verdict must be respected, but it has to be done constitutionally -- it has to be done legally. There is no place for emotion here. A state does not run on emotion. A state runs on the constitution, on law, on rules,” he said.

Salahuddin went on to point out that the current session would discuss the president’s speech and was already burdened with scrutinising 133 ordinances passed during the interim government tenure and deciding on them within 30 days. There would not be enough time. Furthermore, the next session would be the budget session.

However, he suggested that this matter could very well be debated and discussed at the business advisory committee and then a bill might be placed to amend the constitution in a way that would allow convening the reform council.

What does the implementation order say?

The order stipulates that MPs will play a dual role -- as members of parliament and as members of the constitution reform council. It says that the council be convened in the same manner as the parliament within a month of the formal election result announcement.

The order states the four questions of the referendum and also lays down guidelines for the council. It states that the first session will elect a leader of the council by a simple majority. The council will decide on its rules of procedure. The order sets the council’s quorum at 60 members in attendance. However, constitutional amendments must pass with a simple majority of the entire council. Meaning that while the council may discuss and deliberate on issues with just 60 members present, constitutional amendments will require 151 votes in favour. There is also a 180-day limit within which the council must conclude reforms, presumably undertake constitutional amendments, in light of the July charter.

However, there are no contingencies. In other words, there is no such provision that stipulates any course of action, in case the provisions are not adhered to.

The home minister pointed out that while the president could indeed issue ordinances (when the parliament is not in session) under article 92 of the constitution, these ordinances may not alter the constitution itself. He said it (meaning the implementation order) was neither an ordinance nor a law, but something in between, raising legal concerns over what he described as an imposed order.

MP Najibur Rahman, responding to the home minister’s comment, said Article 152 of the constitution did stipulate that acts, orders, and ordinances were laws. He said there were about 150 orders from 1971 and 1972 (including the Representation of the People’s Order) that are considered laws.

What does the constitution say?

The relevant section of article 93 states that when the parliament is dissolved or not in session, if the president is “satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such ordinances as the circumstances appear to him to require” but they must not be such that “could not lawfully be made under this Constitution by Act of Parliament”, or “for altering or repealing any provision of this Constitution”.

The home minister had referred to this article suggesting that the order was not legally tenable, presumably since the constitution, as it stands, does not provide for a reform council.

MP Najibur Rahman correctly pointed out that orders are indeed laws. Article 152 defines law as “any act, ordinance, order, rule, regulation, by-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh”.

However, what the MP from Pabna did not mention was that customarily an “order” is passed when the constitution does not exist, as was the situation in 1971 and 1972, or has been suspended, as it was under Ziaur Rahman or during 2007-2008.

Neither was the case in 2025, when the order was passed.

Had it been an ordinance, it would be among those that the current parliament is scrutinising for enactment into laws. BNP appears to be keen on leveraging this legal loophole, citing that the instrument is an ‘order’ and not an ‘ordinance’.

Why an order and not an ordinance?

The National Citizen Party, which is the natural heir of the July uprising, insisted on a legal provision that would make the reforms binding on the next government. In fact, they refused to sign the July charter, pending such a provision.

In order to placate July leaders, who held considerable sway over the Yunus administration, the interim government decided to pass the presidential order in an attempt to bring about a semblance of legal compulsion. It was a stopgap solution, which had the potential of future tension even when it was passed.

What happens to reforms now?

Being the ruling party and that too with a supermajority, BNP has not said no to reforms. In fact, it has already offered the position of one deputy speaker to the opposition, which was one of the reform proposals. Understandably it is more symbolic than substantive in terms of reforms. The opposition is yet to accept that offer.

However, the ruling party has complained strongly about the implementation order and the referendum questions. BNP had given a note of dissent, for instance, on the question of an upper house based on proportional representation which would vote on constitutional amendments.

While BNP has stated several times that it is fully willing to implement reforms, the party has yet to explain how it envisions them. The legal course of action, as the BNP has already suggested, would be to discuss and debate the issues at the Business Advisory Committee, which schedules and organises the parliament's agenda and allocates time for debates. The current committee, headed by the speaker, includes the prime minister, leader of the opposition and other leading members of both the treasury and the opposition benches.