The constitution and presidential orders: Law, history and misconceptions

Over the last few days, there has been increasing discussion about the legal standing of presidential "orders". I have been following these exchanges closely, especially those taking place in public spaces such as social media and talk shows.

What stands out is the confusion that seems to shape much of the conversation. Many arguments appear to be based on incomplete information or claims that are not fully accurate. Having observed this situation, I felt it might be useful to share a short note based on some materials I have recently reviewed.

In this context, I am simply presenting a few references that may help clarify the ongoing debate, especially since the issue is likely to continue appearing across different public platforms in the coming days.

One point that seems to be missing from many conversations is a simple historical fact: in Bangladesh's constitutional history, Proclamations and Orders have, at different times, functioned as operative legal instruments. In other words, they were not merely symbolic documents. In several periods of political transition, they played a direct role in shaping constitutional arrangements.

A well-known example is the Proclamations (Amendment) Order, 1977 (Proclamation Order No. I of 1977). Through this order, Paragraph 3A was added to the Fourth Schedule of the Constitution. The purpose was to give legal protection to earlier proclamations issued on 20 August 1975, 8 November 1975, and 29 November 1976, along with related Martial Law Regulations and Orders.

We can also look at the Second Proclamation (Seventh Amendment) Order, 1976, as an important instrument. It introduced a number of changes, especially in the structure of the judiciary and certain procedures of the Supreme Court.

Similarly, the Second Proclamation (Tenth Amendment) Order, 1977, added provisions related to the Supreme Judicial Council. These provisions altered the constitutional framework for the removal of judges of the Supreme Court.

There were also regulations that affected the courts directly. For instance, the Court's Jurisdiction (Restriction) Regulation, 1977 (MLR No. XXXIV of 1977) limited the writ jurisdiction of the High Court Division and made it more difficult to challenge the actions of Martial Law Courts and Tribunals.

Another notable example is the Referendum Order, 1977 (Martial Law Order No. I of 1977). This order created the legal framework for the national referendum that asked voters whether President Ziaur Rahman should continue in office.

These examples make it clear that during the late 1970s, after Ziaur Rahman became President in 1977, a number of proclamations and orders played an important role in shaping constitutional and institutional arrangements.

However, the story does not end there. Many years later, the legality of these instruments became the subject of major constitutional litigation. One particularly significant case is Bangladesh and Others v. Bangladesh Italian Marble Works Ltd. and Others (Civil Review Petition Nos. 17–18 of 2011).

In that decision, the Appellate Division held that the proclamations, Martial Law Regulations, and Martial Law Orders issued between 20 August 1975 and 9 April 1979 were unconstitutional and void ab initio.

Yet the court also recognised a practical problem. If every action taken during that period were immediately invalidated, it could create a serious disruption in the functioning of the state. For that reason, the court allowed certain executive acts and constitutional provisions to remain effective for a limited period. 

These measures were temporarily condoned, largely to give Parliament time to take the necessary legal steps. A careful reading of the judgment shows that this point appears towards the concluding sections of the decision.

As part of this temporary arrangement, the court provisionally condoned certain provisions related to Articles 44, 96, and 102, including elements connected with the Second Proclamation (Seventh Amendment) Order, 1976 and the Second Proclamation (Tenth Amendment) Order, 1977, until 31 December 2012.

This aspect of the judgment is important. It shows that, even while declaring the martial law framework unconstitutional, the Appellate Division acknowledged that some legal consequences of those orders had to be managed carefully for the sake of institutional continuity.

For this reason, the claim that "an order automatically has no legal basis" does not fully reflect the historical reality. Bangladesh's constitutional history shows that, in certain periods, orders and proclamations did operate as instruments with real legal effect—even if their validity was later questioned or reviewed by the courts.

Finally, another point in the current discussion also appears inaccurate. Some commentators have suggested that after April 1973, no President issued any form of order. Historical records, however, indicate otherwise. Several proclamations and orders were indeed issued later, particularly during the political transitions of the mid-to-late 1970s.

Recognising these historical details does not settle the present debate, but it does remind us that constitutional practice is often more complex than the simplified claims circulating across different public platforms.

Saiful Bari is a legal researcher and an SAF scholar, currently working with a New York–based law firm.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.