A workable path to enforce the July Charter
What is the July Charter, constitutionally speaking? It is a political compact—ambitious in purpose, but not yet a law—drafted by the National Consensus Commission following last year's student-people uprising and subsequent dissolution of the parliament. The interim government situates the charter within a roadmap to the next general election, not as a self‑executing legal instrument. The commission has finalised a draft after two rounds of discussion with political parties, identifying 84 consensus items with notes of dissent on at least 11 points, while the law ministry maps which recommendations are "immediately implementable."
Yet the final draft claims far more: it says the charter will take precedence over any inconsistent law or even the constitution, that its provisions will be "beyond judicial challenge," and that the Appellate Division alone will interpret it. These are sweeping assertions. They collide with bedrock clauses of the constitution, including Article 7's supremacy and Article 26's rule that laws inconsistent with fundamental rights are void. A political document cannot displace the constitution in force. Recent party feedback also underscores the problem—BNP rejects charter precedence and opposes barring court challenges; CPB and others concur; Jamaat backs precedence—illustrating why any "supra‑constitutional" claim would be divisive and legally frail.
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The July Charter's attempt to oust judicial review is not legally sustainable. The High Court Division's writ jurisdiction under Article 102 is part of the constitution's basic structure; the Appellate Division's "complete justice" power in Article 104 and the binding force of its decisions under Article 111 entrench the Court's role, not curtail it. Bangladesh's superior courts have repeatedly rejected "ouster clauses" that seek to immunise state action from review. And the basic‑structure line of cases—from Anwar Hossain Chowdhury (Eighth Amendment) to the Fifth and 16th Amendment decisions—confirm that neither parliament nor anyone else may abolish judicial review or independence.
Nor can the interim government make the charter "constitutional" by ordinance. The constitution permits presidential ordinances only when parliament is dissolved or not in session—but with a bright‑line limit: an ordinance cannot alter or repeal any provision of this constitution (Article 93(1)). Ordinances can, however, carry the force of law temporarily and authorise urgent expenditure from the Consolidated Fund under Article 93(3). In short, absent a sitting Jatiya Sangsad, the charter cannot be constitutionalised by executive fiat; only a future parliament can amend the constitution under Article 142.
So what can be done now, before the elections, to make core commitments in the charter enforceable afterwards?
First, use ordinary law. The Representation of the People Order, 1972 already ties party participation in elections to registration conditions. Under Article 90B (conditions for registration) and Article 90H (cancellation), the Election Commission can require parties to meet substantive standards and even cancel registration for breach. By ordinance, the interim government can amend the RPO to require parties to file sworn undertakings to implement specified charter items—transparent nominations, internal democracy, campaign‑finance discipline, human‑rights pledges—with clear, reviewable sanctions for non‑compliance, including suspension or cancellation of registration. Courts have scrutinised party constitutions and EC decisions under these provisions before.
Second, use ordinance to create a statutory Implementation Commission with defined investigative and reporting powers to monitor compliance by state agencies and political parties, issue reasoned determinations, and refer non‑compliance to the EC or the courts. Its orders would remain subject to judicial review—consistent with Article 102—ensuring due process and legitimacy.
Third, ask the Appellate Division for an advisory opinion under Article 106 on contested legal questions around the charter's implementation—e.g., the permissible scope of RPO conditions, the contours of party undertakings, or how far administrative rules may go without legislation. While advisory opinions are not judgments, they carry authoritative weight. Such guidance would materially narrow litigation risks.
Fourth, anchor political promises in legal undertakings to the Court. Parties can file affidavits of commitment in pending public‑interest writs or fresh petitions. If a governing party later repudiates those undertakings, the Supreme Court's status as a court of record with power to punish for contempt under Article 108 provides a credible compliance backstop; all authorities are constitutionally bound to act in aid of the Court under Article 112. Of course, contempt is not a substitute for legislation, but it can deter wilful defiance of solemn commitments.
Fifth, a "Charter Finance Ordinance" can be narrowly tailored to allocate interim funds for urgent, consensus items—say, victim compensation, election‑integrity infrastructure, or witness protection—under Article 93(3), with public reporting and sunset clauses. Without amending the constitution, an expressly permitted emergency tool to implement uncontroversial charter planks pending the return of parliament can be deployed.
What if the next elected government simply shrugs and walks away? Properly drafted RPO conditions would make that costly. Beyond election law, statutory mandates enacted now will remain in force until repealed—creating legal inertia that raises the political price of reversal. And when the parliament returns, constitutional amendment under Article 142 can make the settlement durable. For foundational questions, the referendum device is again live law: the High Court's December 17, 2024 judgment restored the referendum provision under Article 142, with the full text released in July 2025 and finality pending before the Appellate Division. However, it is advisable to hold any referendum on charter‑level reforms on the same day as the election to reduce delay and political friction. It is administratively efficient and politically legible.
Finally, two controversial clauses deserve revision. A blanket ouster of court jurisdiction will not survive; Bangladesh's courts have treated such provisions with scepticism, and the basic‑structure doctrine places judicial review beyond ordinary amendment, let alone political declaration. Likewise, reallocating interpretive authority to the Appellate Division cannot be done by charter or ordinary law at the expense of the High Court Division's writ power in Article 102. If a specialised, expedited forum is desired, the Supreme Court can consider practice directions or a designated bench; what it cannot do is permit the executive or parties to curtail constitutionally conferred jurisdiction.
The solution, then, is layered. Use ordinances now to translate consensus into binding, reviewable obligations within existing constitutional limits; lean on the Election Commission's registration powers to make party commitments enforceable; seek the Appellate Division's advisory guidance to minimise downstream litigation; and, once a new parliament convenes, entrench the settlement through formal amendment—and, where appropriate, referendum—rather than wishful declarations about supremacy and ouster. Do that, and the July Uprising will yield not just catharsis but constitutional architecture.
Barrister Khan Khalid Adnan is an advocate at the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates.
Views expressed in this article are the author's own.
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