Opinion
What could be the consequences of an indemnity ordinance?
Enactment of laws and issuance of ordinances to ensure indemnity is not unprecedented in Bangladesh. However, the question remains whether such laws and ordinances have, in reality, been able to guarantee immunity.
Despite the explicit constitutional validity of indemnity laws under Article 46 of the Constitution, various indemnity ordinances and laws issued at different times have subsequently been declared unlawful by the courts.
In order to avoid future legal challenges, certain provisions of the indemnity ordinance relating to the July uprising should have been revised or refined before it was converted into law.
At the first sitting of the first session of the 13th Jatiya Sangsad (national parliament) on 12 March, a total of 133 ordinances promulgated during the tenure of the interim government were placed before Parliament. A special committee comprising members of both the ruling and opposition parties was formed to scrutinise these ordinances and submit a report. On 2 April, the committee recommended that 98 of these ordinances be presented to Parliament as bills in their original form.
Among these 98 ordinances is the July Mass Uprising (Protection and Determination of Liability) Ordinance, 2026, which concerns protection for participants in the July uprising. If enacted into law, it would result in the withdrawal of all civil and criminal cases filed against those who took part in the July mass uprising. Moreover, no new lawsuits or complaints could be initiated against them. In effect, even if criminal offences were committed by participants during July–August (in 2024), they would be granted legal protection under this law.
This is not the first instance of granting of indemnity through legislation or ordinances in Bangladesh. However, the question remains: have such laws, enacted in different contexts, truly ensured long-term immunity for those concerned? How effective have indemnity laws been historically, particularly in the face of political transitions?
2.
In independent Bangladesh, indemnity was first granted through The Bangladesh National Liberation Struggle (Indemnity) Order, issued on 28 February 1973. Its primary objective was to provide legal protection for the actions of freedom fighters and others involved on behalf of Bangladesh during the 1971 Liberation War. The order stipulated that no legal proceedings could be initiated against any individual for actions taken between 1 March and 16 December 1971, and up to 28 February 1972 for the purposes of maintaining or restoring stability.
However, this extended period of indemnity also covered various actions undertaken after the victory, achieved on 16 December. For instance, in the last week of December, Sheikh Fazlul Haque Moni seized the office and press of the Urdu daily Pasban in Motijheel and later began publishing Banglar Bani from there—without legal consequence. (Mohiuddin Ahmad, Prothom Alo, 18 October, 2024)
During his time in power, Sheikh Mujibur Rahman granted indemnity for a second time through the Jatiya Rakkhi Bahini Ordinance, 1972, which established a paramilitary force for maintaining law and order. In his book Bangladesh: A Legacy of Blood (1986), Anthony Mascarenhas said that politically motivated killings had exceeded 2,000 by the end of 1973. (page 37)
Amid growing criticism of the Rakkhi Bahini, an amendment to the ordinance was issued on 7 February 1974, granting the force the authority to arrest any suspect without a warrant and declaring all its actions lawful.
Following the assassination of Sheikh Mujibur Rahman and his family members on 15 August 1975, the Rakkhi Bahini was dissolved and absorbed into the army under the Jatiya Rakkhi Bahini (Absorption into Armed Forces) Ordinance, 1975.
Shortly before this, on 26 September 1975, the Indemnity Ordinance, 1975 was issued—granting immunity to those involved in the change of government and the declaration of martial law on 15 August. This ordinance was later enacted into law on 9 July 1979 during the presidency of Ziaur Rahman.
Earlier that year, on 9 April 1979, the Fifth Amendment to the Constitution validated all proclamations and ordinances made under martial law between 15 August 1975 and 9 April 1979. However, in 2010, the Supreme Court declared this amendment unconstitutional in the Bangladesh Italian Marble Works Ltd. case.
After 21 years, when the Awami League returned to power in 1996, the indemnity law of 1975 was repealed. Subsequently, trials began against those involved in the assassination of Sheikh Mujibur Rahman, culminating in the Supreme Court’s verdict of death sentences for 11 individuals in November 2009.
The fourth instance of indemnity came in 2003, when the BNP-led four-party alliance government passed the Joint Operation Indemnity Act, 2003 to protect members of the joint forces involved in “Operation Clean Heart”. During this anti-terror operation, more than 40 individuals reportedly died in custody.
In 2012, prominent lawyer ZI Khan Panna filed a writ petition challenging the legality of this indemnity law. Twelve years after its enactment, in 2015, the High Court declared the law illegal. The Court observed that Parliament must refrain from enacting laws that contradict the spirit of the Constitution and cannot grant immunity for arbitrary killings.
The judgment further noted that “this is clear from the case documents and paper clippings that there had been no such breakdown in law and order during the relevant period to justify indemnity. Therefore, the indemnity granted under the Joint Operation Indemnity Act, 2003 for deaths caused by law enforcement agencies is inconsistent with the provisions of Articles 31, 32, 46, 47(3) and 47A of the Constitution. The Act was not enacted in conformity with constitutional provisions. Accordingly, the Act is declared void and unconstitutional.” (DW Bangla, 3 January 2017)
This opened an avenue for the victims of that operation of joint forces and their families to pursue legal remedies.
The fifth instance occurred in 2010, when the Awami League government enacted the Quick Enhancement of Electricity and Energy Supply (Special Provisions) Act, which essentially created the opportunity to award contracts in the electricity and energy sectors without any tendering process or legal scrutiny. One of its most controversial features was the indemnity clause, which barred courts from questioning any actions taken under the law. The Act’s tenure was extended four times, most recently in 2021 for five years.
However, in November 2024, the High Court declared the indemnity provision (Section 9) unconstitutional, and the Ministry of Law subsequently issued a gazette notification in that month repealing the Act.
These examples demonstrate that despite the explicit constitutional validity of indemnity laws under Article 46 of the Constitution, many such laws have later been declared invalid by the courts. That means, there always remains a scope to raise questions about the legality of any indemnity law in the future. In practice, in the history of Bangladesh, political transitions have often led to the repeal or overturning of indemnity provisions. Therefore, to avoid future legal challenges, it would have been prudent to revise certain provisions of the July uprising indemnity ordinance before enacting it into law.
3.
The July Mass Uprising (Protection and Determination of Liability) Ordinance, 2026 defines the indemnity period as 1 July to 31 August. However, the most intense phase of the movement occurred between the last 15 days of July and 5 August. Extending indemnity beyond this period may invite legal complications.
While proponents may cite precedents such as the 1973 indemnity order, relying on historical examples to justify extended immunity is unlikely to eliminate legal ambiguities.
Furthermore, Section 2(a) defines a “participant in the uprising” as any person who supported the movement. This definition is overly broad and problematic, as it lacks clear criteria. It could allow virtually anyone to claim immunity for offences committed during that period.
Another concern arises from Section 2(d), which defines “criminal misuse of disorder” as killings carried out for personal or narrow interests rather than political resistance. Assigning investigative authority over such cases to the National Human Rights Commission, without amending the Criminal Procedure Code, may raise legal questions about the validity of the process.
Historically, indemnity laws in Bangladesh have been enacted in varying political contexts. Indemnity for the Rakkhi Bahini in 1974, for the assassins of Sheikh Mujibur Rahman in 1975, and for joint forces in 2003 largely served to legitimise state actions and the use of force.
In contrast, indemnity for freedom fighters in 1971 or participants in the 2024 uprising stems from popular resistance against authoritarian rule. However, even in such contexts, it is essential to consider whether indemnity might inadvertently shield criminal acts.
For instance, while students-public played a crucial social role in maintaining order during the absence of law enforcement after the July uprising, there were also incidents of serious crimes, including the killing of police personnel. These cannot simply be overlooked.
On 30 March, during a parliamentary session, the Home Minister remarked regarding the killing of police officers after the uprising that “the matter has been settled on the battlefield”. But can such unresolved chapters of history truly be settled in this manner? The passage of time, and the course of political change, may ultimately provide the answer.
* Umme Wara is an Associate Professor in the Department of Criminology at Dhaka University.
* The views expressed are the author’s own.