BNP has achieved a majority by winning the elections for the 13th National Parliament. On 17 February, BNP Chairman Tarique Rahman took oath as the 11th Prime Minister of the country. However, while BNP's elected members have been sworn in as Members of Parliament, they have not taken the oath as members of the Constitutional Reform Committee. Meanwhile, elected members of Jamaat-NCP have taken oaths for both Member of Parliament and as members of the Constitutional Reform Council.
Due to the two types of oath-taking by the government and opposition parties, uncertainty has arisen regarding the Constitutional Reform Council. Because, according to the July National Charter (Constitution Reform) Implementation Order issued by the President, the elected Members of Parliament are supposed to serve as members of the Constitution Reform Council simultaneously. In this regard, Home Minister Salauddin Ahmed told the media, "There is no logical basis for a second oath before constitutional amendments regarding this issue."
His words have logical ground in legal terms; because this order issued by the President has no legal validity. According to Article 93(1) of the Bangladesh Constitution, the President can issue an ordinance only in times of emergency. This article also imposes certain conditions on the validity of these ordinances. It states that no law can be made by ordinance that the Parliament has no power to make.
It is even impossible to amend or repeal any part of the Constitution by ordinance. Therefore, there is no power given to the President in the said article for issuing an order and even though the President has the power to issue ordinances, it does not have the authority to amend the Constitution in any way. Even the smallest amendment to the Constitution is only possible with the approval of two-thirds of the members of the Parliament.
Therefore, it seems that due to the lack of proper adherence to legal procedures, the July Charter Implementation Order and the referendum based on this order are undoubtedly going to face legal complications. Already, a writ has been filed in the High Court challenging the legality of the referendum held on 12 February and seeking cancellation of the results announced on 13 February.
It has been reported that there is a petition with the High Court requesting a declaration that no interim or caretaker government will be able to organise a referendum in the future. A writ was also filed in the High Court on 18 February seeking to suspend activities related to the "July National Charter-2025". Clearly, all ordinances and other policies issued during the tenure of the interim government are going to face legal entanglements.
The question arises, were those directly involved in the entire reform process and the issuance process of the July Charter Implementation Order not aware of these fundamental clauses of the constitution?
The question arises, were those directly involved in the entire reform process and the issuance process of the July Charter Implementation Order not aware of these fundamental clauses of the constitution?
Everyone involved with the July mass uprising believed that the ordinances issued during the tenure of the interim government would ensure their indemnity in various ways even during subsequent governments.
For instance, on 25 January, the interim government issued an ordinance titled "July Mass Uprising (Protection and Indemnity) Ordinance, 2026" granting indemnity to the 2024 mass uprising participants. Essentially, indemnity ordinances were issued to provide legal protection from all criminal offences committed by the protestors during July-August.
Additionally, Section 22 titled ''Indemnity'' in the Referendum Ordinance 2025 states that no civil or criminal lawsuit or other legal proceedings can be filed against any person for any act performed in accordance with any order or instruction under this ordinance. Even though it is known that another ordinance under the title "Interim Government Ordinance 2024" with significant indemnity provisions was set to be finalised, it was not eventually issued. This ordinance was supposed to include provisions stating that no court or authority could later question the legality of any ordinance, rule, or notification applied during the interim government, or declare it void or invalid.
Such provisions of indemnity directly conflict with constitutional fundamental rights. According to Article 46 of the Constitution, only the National Parliament has the authority to exercise the indemnity provisions through law. Moreover, all ordinances must be presented at the first meeting of the current parliamentary session. The Parliament can pass or nullify these if it wishes. If not approved within 30 days of Parliament sitting, these ordinances will automatically become void. [Article 93(1)]
The question arises, why did the interim government feel the need for indemnity repeatedly through various ordinances? Did they know that they had engaged in activities that could be considered unconstitutional and could later face legal consequences for them? And can the interim government genuinely absolve itself of all legal and moral responsibility through such indemnity ordinances? Because after the term of any elected government finishes, the political party has to face consequences for their various acts during their tenure, sometimes through legal processes, at other times through mass uprisings or various social resistances.
After the BNP government ended its rule in 2006, just as they had to face questions for their various mistakes during their time in power, similarly, the Awami League government, which was ousted through the 2024 mass uprising, is also paying for various misdeeds and crimes during their time. How can the interim government take an oath on the constitution and evade the responsibilities of their governance?
During the interim government, many pro-Awami political leaders, activists, journalists, or Baul minstrels, among others, were detained without trial for months, contrary to important fundamental rights like access to legal remedies enshrined in the Constitution.
Why should they not be held accountable for the destruction of over two hundred shrines, attacks on university professors, or mob violence against widely-read media outlets like Prothom Alo and The Daily Star during the interim government? Furthermore, isn't the decline in Bangladesh's rankings in the Global Peace Index and the Corruption Index a responsibility of the interim government? Can't the public expect proper investigations concerning various corruption allegations in different ministries raised by the media at different times?
We need to remember that during the formation of the government, every advisor, including the chief advisor, read during their oath, "I will treat everyone legally, not being influenced by fear or favour, affection or aversion." (Bangladesh Constitution, Third Schedule). Yet, at various times, we have seen that the actions of some advisors have revealed their favouritism or aversion.
Since the new government is placing special emphasis on establishing the rule of law from the beginning, it would be logical to start by taking legal action regarding the indemnity ordinances during the interim government and investigating all crimes and irregularities that occurred during that period. Otherwise, the new government will also have to carry the burden of various acts of the unelected government.
#Umme Wara is an associate professor, Department of Criminology, University of Dhaka
*Opinions are the author's own.
#This article, originally published in Prothom Alo print and online editions, has been rewritten in English by Rabiul Islam.