Taking the oath is a sine qua non for the Members of Parliament (MPs) to assume office. No MP can assume office without taking oath in the manner prescribed by the Constitution. The question, therefore, arises: who is to administer the oath to the newly elected MPs?
The answer is provided by the Constitution of Bangladesh, particularly Article 148 and the Third Schedule. According to the Third Schedule of the Constitution, the oath of the newly elected Members of Parliament shall be administered by the Speaker of Parliament.
The oath can also be administered by such other person as may be designated by the Speaker under Article 148 of the Constitution. As regards the timeframe of the oath, Article 148 of the Constitution provides that the oath shall be administered 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.
Furthermore, if the person specified for administering the oath is unable to or does not administer so on any account, the Chief Election Commissioner (CEC) shall administer the oath within three days after the lapse of that three-day period.
These are the provisions of the Constitution regarding the oath of the newly elected Members of Parliament (MPs). We may now turn to the present situation in Bangladesh.
At this moment, the Speaker is missing and the Deputy Speaker is in jail. Consequently, the option of designating another person to administer the oath is not available, because such designation can only be made by the Speaker (or by the Deputy Speaker when acting in the place of the Speaker).
The Law Adviser of the Interim Government has stated: “We have two options before us: a person nominated by the President, or the CEC if the three-day period lapses.”
He further explained that waiting for the CEC would require waiting three days, which the government does not wish to do. He also suggested that on the advice of the Chief Adviser, the President could nominate a person—such as the Chief Justice to administer the oath.
With respect, this view is legally incorrect. There is no provision in the Constitution authorising the President, whether on the advice of the Chief Adviser or otherwise, to nominate a person to administer the oath of MPs.
The President simply does not possess this power under the Constitution. Only the Speaker, or the Deputy Speaker acting in the Speaker’s place, has the authority to designate another person for this purpose.
Since the Speaker is missing and the Deputy Speaker is in jail, there remains only one constitutional route for administering the oath: the Chief Election Commissioner (CEC) must administer it.
However, the problem here is that the Law Adviser has said that they do not want to wait for three days. The CEC cannot do so within the initial three days following the publication of the election results in the official Gazette.
The Constitution requires that there must first be a lapse of three days. Only after that lapse, does the duty to administer the oath devolve on the Chief Election Commissioner.
At this moment, it is the only constitutional way to administer the oath to new MPs. Administering the oath otherwise would be questioned as to its constitutionality. Some may think that the President can promulgate an Ordinance nominating the Chief Justice to administer the oath.
It would be wrong as no law can be passed violating the Constitution because of the supremacy of the Constitution.
Accordingly, the only lawful solution is to allow a voluntary lapse of three days after the publication of the election results in the official Gazette, after which the Chief Election Commissioner may constitutionally administer the oath to the new MPs.
