Our Constitution is the solemn expression of the will of the people of Bangladesh. It is the supreme law of this land. If any law is inconsistent with this Constitution, that other law shall, to the extent of inconsistency, be void. This Constitution is our pride, most beloved and all respected since we achieved this after 9 months blood curdling war of Independence in 1971.

Politics with this Constitution is something not new in Bangladesh. Defamation of Constitution, misuse of Constitutional power, violation of Constitution are very popular means of blame game. Political parties who secures 2/3 majority in the Parliament is entitled to bring any amendment in the Constitution. Such provision is not prima facie dreadful but in a country like ours where politicians lack basic humanitarian attributes such power can be lethal for the nation. If we see that Constitution of the United States went through 27 amendments in 238 years of Independence and no amendment has been brought since the last 22 years and whereas, we already have fifteen amendments in 43 years of Independence. I am not against the frequent rate of amendments but am concerned with the idea to treat our beloved Constitution as a weapon/shield to safeguard one‘s political agenda.

Recently another constructional controversy ignited with the oath-taking ceremony of 292 newly elected Parliament Members. On 09.01.2014 Speaker administrated the oath of newly elected Members of 10th National Parliament. The former Members of 9th National Parliament are also there since the same is not dissolved yet. Therefore right now we have more than 600 MPs in a Parliament of 350 seats. The situation is surprising but true. President Abdul Hamid Advocate invited the parliament leader to form new government on 12.01.2014. BNP is terming such oath-taking ceremony and formation of government as a violation of Constitution and Awami League claims such actions are in consistency with the Constitution.

Before I put my opinion I would like to mention few relevant provisions of the Constitution. Article 123(3) of the Constitution provides “A general election of the members of Parliament shall be held - (a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and (b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution. Provided that the persons elected at a general election under sub-clause (a) shall not assume office as members of Parliament except after the expiration of the term referred to therein”.

Article 148(2A) provides that “if, within three days next after publication through official Gazette of the result of a general election of members of Parliament under clause (3) of article 123, the person specified under the constitution for the purpose or such other person designated by that person for the purpose, is unable to, or does not, administer oath to the newly elected members of Parliament, on any account, the Chief Election Commissioner shall administer such oath within three days next thereafter, as if, he is the person specified under the constitution for the purpose.”

From the plain reading of Article 123 it appears that taking oath and forming government before dissolution of 9th national Parliament i.e. before 25th January 2014 is unconstitutional. On the other hand if we read Article 148 we understand that it is now constitutional obligation to administer oath since the official gazette of election result was published. Therefore I will term this predicament as a “face-off between Constitutional provisions”.

In this particular complex scenario both the Articles of the Constitution are applicable and the same is defiance and compliance of the Constitution at the same time. Now few questions can arise like (1) how this complexity kicked off, (2) who is responsible for this and (3) how it can be cured? The answers to the questions are all inter-related. First of all Election could be held a few days later like just before 24th of January 2014 in order to avoid the confusion or it could have been held under Article 123(3)(b) i.e. within 90 days after dissolution of 9th Parliament. On the other hand Election Commission could have avoided the controversy by publishing the Gazette of the election result after few days as there is no legal bar for them to do that. If the Gazette is published on 23rd or 24th January 2014 and the oath takes place on 25th January 2014 the entire activities would have been in consistency with the Constitution. Without keeping the same in mind the Election Commission hastily published the Gazette and the government is left with no option but to violate an Article of the Constitution to comply with another of the same.

In a concluding remark I would say in one sense taking oath by the newly elected members are legal but it will remain debatable always. The newly elected should refrain from forming cabinet until 25th January 2014 to remedy the present controversy a little. In future both Government and Election Commission should do their home work cautiously on Constitutional provisions regarding the holding of General Election to avoid Constitutional Face Off.