In his explanation, M Inayatur Rahman wrote, the Appellate Division reviewed Articles 123 (3), 148 (1)(2B)(3), 72 (3) and the Representation of the People Order, 1972, when it delivered its judgement. He has written this in accordance with the Constitution [Article 123 (3)]There are two reasons for holding parliamentary elections – first, because of the expiry of the term of the Parliament, second, if the Parliament is dissolved for reasons other than the expiry of its term. In case of expiry of the tenure, the election has to be held within 90 days of the end of the term and in case of other reasons, the election has to be held within 90 days of the dissolution of the Parliament.
According to Article 148(1), “A person elected or appointed to any office mentioned in the Third Schedule shall, before entering upon that office, make and subscribe an oath or affirmation (in this article called the ‘oath’) accordingly and Must be signed.” Schedule.”
Justice Inayatur Rahim argues that the Appellate and High Court Division has resolved the issue of Article 148(3), i.e. whether Members of Parliament are automatically assigned their responsibilities upon taking the oath. In dealing with this legal issue, the court referred to Article 148(3): “Where under this Constitution any person is required to take an oath before entering upon any office, he shall be required to do so immediately after his entry into office. will be deemed to have been done.” Oath.” In other words, the ‘deeming’ clause has been mentioned and the court has also used the term ‘legal fiction’ in explaining it.
Justice Inayatur Rahman wrote, “In interpreting these two terms, the Appellate Division relied on its own or other Supreme Court precedents of the subcontinent as well as former Attorney General Mahmudul Islam’s book, ‘Constitutional Law of Bangladesh.’ ‘ In legal language, ‘deem’ is used to 1. treat something as if it were something else or as if it had properties that it does not; 2. to address any controversial issue in a legal document To solve it with an explanation that could not otherwise be put forward.’ And the legal meaning of ‘legal fiction’ is defined as a claim that is accepted as true for legal purposes, even if untrue or disproved.
In the words of Justice M Inayatur Rahman, members of Parliament begin taking oath by saying “By the duties assigned to me…”, in other words, they do not perform the duties immediately after taking the oath. Duties are to be assigned to them, future tense. The words “by the duties assigned to me…” are absent in the oath of office of the President, Prime Minister, Chief Justice, Ministers, Judges and others mentioned in the Third Schedule of the Constitution. Office.
In Justice Inayatur Rahman’s deliberations, as per Article 148(3) of the Constitution, upon taking the oath and signing the oath, the persons concerned are automatically conferred with their duties. But in the case of Members of Parliament, Article 123 (3) of the Constitution prevents them from assuming office even after taking the oath, until the term of the elected members expires.