M Rafiqul Islam, Emeritus Professor of Law, Macquarie University, Sydney
(Keynote address to a seminar held on 2 February 2026 at the NSW Parliament House, Sydney)
Honourable Chair, distinguished guests, learned commentators, and dear audience, let me begin by providing a brief context for this talk. Bangladesh commenced its journey of good governance under a popular and accountable democratic Constitution in 1972. Since 1975, it has been on a roller-coaster ride from parliamentary, presidential, martial law, military dominated turncoat democracy, a return to parliamentary government, and, most recently, an unelected interim government.
The current interim government is the product of the political uprising in July 2024 which ousted the Sheikh Hasina administration that had been in power since 2008. Against this backdrop, this paper offers an academic lawyer’s opinion and legal analysis based strictly on the hard-core provisions of the Constitution of Bangladesh still in force without any inference and extrapolation. I will endeavour to present this analysis simply, without diluting its legal rigor.
Legal Status of the Interim Government
Following the fall of Sheikh Hasina government, the Prime Minister departed for India. It was initially unclear whether she intented to led a government in exile, as has occurred in other historical contexts, such as the Sihanouk government of Cambodia, which went to China after he was overthrown and ran a government in exile parallel to the Pol Pot regime. No such attempt was made. Instead, a public declaration announced that Sheikh Hasina had resigned, although her resignation letter has never been disclosed despite public demands and a writ petition filed in the High Court Division. Subsequently, the President publicly admitted that he had never received any resignation letter.
This situation created a governance vacuum. To address it, the President invoked Article 106 of the Constitution and sought an advisory opinion from the Appellate Division of the Supreme Court (AD).
The Article 106 empowers the President to seek such advice on matters ‘of such public importance that it is expedient to obtain the opinion’ and the AD ‘may, after such hearing as it thinks fit, report its opinion thereon to the President’. The President apparently received this opinion. Acting upon this purported opinion, formed the current interim government composed of Advisors headed by a Chief Advisor. This advisory opinion of the apex court has thus become the legal basis of the interim government.
The interim government cannot be characterised as revolutionary. For a government to be ‘revolutionary’, it must severe all relations with the pre-existing legal order including abrogating the Constitution, and derive its legitimacy from the success of the revolution itself, not from the annulled Constitution. This is the well-established principle grounded in Kelsenian legal theory of legal validity, that has ben affirmed and applied in multiple authoritative judicial precedents, including State v Dosso 1958 (Pakistan, PLD SC 533), the High Court of Uganda, the Rhodesian Hight Court and Court of Appeal, and the UK Privy Council.
In Bangladesh, however, the July uprising leaders and the interim government did not terminate relations with the pre-existing legal regime and governance structure. The Constitution was not abrogated but remained in force during and after the uprising, and the interim government took oath under the Constitution. The President of the previous Sheikh Hasina government remains functional and has become a part of the interim government. The President continues to make executive orders and ordinances upon the advice of the Chief Advisor of the interim government in the same constitutional way of performing presidential functions upon the advice of the former Prime Minister. All official documents, orders, and ordinances of the interim government use the term “uprising”, not a revolution.Nor was the interim government formed under the doctrine of necessity, either for the simple fact that the President has never asserted as such. Instead, he opted for the constitutional remedy
available under Article 106. Any legal justification that the interim government is ‘revolutionary’ and formed under the doctrine of necessity is not borne out by law and fact.
Though the President acting upon the Appellate Division’s advisory opinion that formed the interim government, there is a controversy surrounding the existence of this opinion. Does this opinion exist in reality? Nobody knows and the interim government is silent. The Appellate Division usually conducts public hearings, and its judgments and opinions are pronounced in open court. But there is no record or evidence revealed yet that the Appellate Division held a public hearing for the Article 106 opinion. So far, the Article 106 opinion is unavailable in the public domain. No public hearing is known to have taken place, no opinion has been published, and no official record has been produced.
During the uprising and after the fall of the Sheikh Hasina government, Bangladesh witnessed rampant mob violence and anarchy with impunity. All Appellate Division judges, being the appointees of the Sheikh Hasina government, went into hiding for fear of retaliatory life-threatening humiliation and degrading treatment. Uncontrolled mobs demonstrated in the Supreme Court premises demanding the resignation of all Appellate Division judges. It is this prevailing disorder then that now casts doubt as to whether there was any court hearing and there exists any Appellate Division opinion. A writ has been filed with the High Court Division requiring the interim government to make the AD opinion public which remains pending. This crucial legal issue involving the constitutional legitimacy of the interim government remains unresolved.
Constitutionality of the Interim Government
The term ‘interim’ presupposes an ad hoc measure between the past and future, a temporary arrangement pending restoration of constitutional normalcy. In Bangladesh, an ‘interim’ government was installed on 8 August 2024. The purpose of the formation of an interim government pursuant to Article 106 to fill up the governance vacuum to continue governmental functions until a regular government is elected may be intuitively justified. But this justified end does not justify any prohibited means to achieve the said end. This is because the Constitution expressly prohibits all unconstitutional access to governmental power (Art. 7A). The Constitution requires a parliamentary form of democratic government in which the people are entitled to be governed by a popularly elected government (Art. 11). All members, including the President, of the interim government are selected. Members of the interim government enjoy all powers and privileges of the elected Prime Minister and Ministers without being directly elected by the people and as such they are not accountable to the people. Their accountability lies to those who appointed them. This anomaly is a major contradiction to the unamendable basic structure of the Constitution (Art. 7B).
Appillate Division’s opinion has become the sole source of legitimacy
The Article 106 opinion entails paramount legal significance because the Constitution provides no provision for the formation of an interim government. As such, the AD opinion has become the sole source of legitimacy for the interim government. As long as this AD opinion, if exists, remains beyond the public domain, public doubts as to the legitimacy of the interim government will persist unabatedly. It is incumbent upon the interim government to justify its legitimacy under Article 106, failing which its legitimacy will precariously hang in the balance. Should this failure eventuate, the interim government will suffer from a legitimacy crisis that would result in all its activities as ordained by an unlawful authority and therefore void.
The Constitutionality of Major Acts of the Interim Government
The Supreme Court held that the basic structure of the Constitution is unamendable to preserve its core values and originality. The Court declared the second part of the Eighth Amendment (decentralisation of the judiciary) even by Parliament as null and void because that part effectively amended the basic structure of the Constitution (Anwar Hossain Chowdhury v Bangladesh 1989 BLD Spl. 1, inter alia).
Amendments of acts of Parliament by any authority other than Parliament are prohibited in the
Constitution (Art. 142). Despite this constitutional restriction, the interim government has engaged in
several ambitious legal and constitutional amendments by executive orders and ordinances. For example, the International Crimes Tribunal Act 1973 is a duly enacted act of Parliament. The interim government has made multiple amendments to this Act by its executive orders to fit the trial and punishment of members of the deposed government. Sheikh Hasina has been given death sentence. Without commenting on this trial, it is sufficient to mention that Toby Cadman, a British lawyer and the chief advisor to the Chief Prosecutor of this trial has resigned from this vendetta-driven sham trial, a victor’s justice with no pretence of fair trials.
Additionally, the interim government has also granted indemnity for the participants, leaders and activists of the July uprising by promulgating the July Mass Uprising (Protection and Liability Determination) Ordinance (No. 18) 2026 with retrospective effect from 1 July to 31 August 2024 (Bangladesh Gazette, 25 January 2026). They will not be subjected to any civil or criminal action before any court.
All activities of July uprising participants are treated as necessary for political resistance and the restoration of public order . If a case is filed against them, the government may apply to the relevant court. The court will then halt all proceedings and grant immediate acquittal to the accused.
This immunity covers crimes that include publicly self-confessed police killing and hanging, jail breaking, weapons looting, and wanton destruction and looting of public property. Such property includes the liberation war museum, and the residences of the Prime Minister and the Chief Justice. It also includes rape, blackmail for ransom, revenge killings and the destruction by arson of houses and businesses belonging to toppled Awami League members, their supporters and minorities.
The presidential power to promulgate ordinance under Article 93 of the Constitution is limited by its
constitutionality. It expressly prevents the President from making any ordinance on matters ‘which could not lawfully be made … by Act of Parliament (Art. 93:1i). The ordinance exonerates the perpetrators of the above crimes by blanket indemnity without any investigation whatsoever, which goes beyond this ordinance-making power of the President. No elected Parliament in Bangladesh can or will enact such an Act of acquittal of criminal responsibility. In case of crimes committed by creating public disorder, such as mob, the 2026 Indemnity Ordinance allows the victims to lodge petition with the National Human Rights Commission.
If the Commission, upon investigation, finds the alleged accused coming under the scope of immunity, no case will be filed, though the victim may seek compensation. The aggrieved has no right to resort to judicial remedy directly. It treats the undefined July uprising participants more equal than other citizens. This discriminatory treatment breaches the constitutionally guaranteed fundamental right of every citizen to be treated equally before law with available legal protection (Art. 27 and 31). It is difficult to fathom how an executive ordinance can decriminalise the above hardcore crimes punishable under the Bangladesh criminal and penal codes and indemnify their perpetrators of criminal responsibilities. The trials of these crimes are not barred by time limitation. The future elected Parliament may reject this impunity ordinance and pave the way for their trial as had happened to the indemnity afforded in 1975
to the killers of Bangabandhu Sheikh Mujibur Rahman.
The Constitutionality of the July National Charter (Sanad) and Referendum 2025
The interim government formulated the July National Charter on 17 October 2025 to radically alter the Constitution and governance structure of Bangladesh. The July National Charter of 2025 proposes sweeping constitutional and legal reforms through a referendum scheduled for February 2026.
Of its total 84 sections, 47 sections deal with constitutional amendments, and 37 sections for the change of law and execution of executive orders and ordinances. The Charter and its implementation order seek to insulate these reforms from judicial scrutiny and compel future parliamentary approval within strict timelines. It provides for a referendum, which is scheduled to be held on 12 February 2026, requiring voters to say ‘yes’ or ‘no’ to this Charter, now reduced to 4 referendum questions (Charter ss 4-6). The President on 13 November 2025, acting on the advice of the interim government issued the July National Charter (Constitutional Reform) Implementation Order 2025 with a pledge of commitment to its ‘complete and faithful implementation’ (para 1).
None, under any circumstances, can raise any question before any court regarding the validity and necessity of the Charter and its ‘full legal and constitutional protection at every stage of its implementation’ must be ensured (para 3). If ‘yes’ vote wins, which appears to be a foregone conclusion, the next Parliament will act as a Constitutional Reform Council to implement the reforms according to the Charter and the referendum outcome, and the Charter must be incorporated into the Constitution within a maximum of 180 working days from the commencement of the first parliamentary session (Charter s 12).
What would happen after the expiry of 180 days? Would the Charter be incorporated in the Constitution automatically or collapse for want of parliamentary approval? Nobody knows and the Charter Implementation Order 2025 is silent.
The Charter is inconsistent with Articles 7, 93, and 142 of the Constitution and breaches the “sacred duty” imposed on all state organs and citizens to uphold constitutional supremacy. Consequently, both the Charter and the proposed referendum are unconstitutional.
According to the Constitution, Parliament must approve the presidential ordinance within 30 days from the date of the commencement of its first session, otherwise such ordinance will be invalid (Art. 93:2). Directing an elected Parliament to pass within 180 days the constitutional amendments drafted and adopted by an unelected interim government interferes with the independent law-making competence of Parliament. It is an attempt to usurp the inherent law-making power of Parliament by the executive that defies the separation of power between the government organs so deeply entrenched in the basic structure of the Constitution.
The interim government has prioritised the July Charter to be the organic law superseding the Constitution. The absolute legal protection to the Charter erodes the supremacy of the Constitution, ‘the supreme law of the Republic’ and if any other law is inconsistent with this Constitution that other law … shall be void’ (Constitution Art. 7). The constitutional provision read together with its constitutional preamble unequivocally imposes a ‘sacred duty’ on all organs, public and private alike, and all citizens of Bangladesh ‘to safeguard, protect and defend this Constitution and to maintain its supremacy’ (preamble para 4). Amendments of the Constitution by any authority other than Parliament are prohibited in the Constitution (Art. 142).
The July Charter is not only inconsistent with, but also repugnant to, the Constitution. The President is expressly prevented from making any order or ordinance ‘for altering or repealing
any provision of this Constitution’ (Art. 93:1ii). By formulating and endorsing this unconstitutional Charter, the interim government has failed to perform its ‘sacred duty’ to uphold the Constitution, the solemn pledge they had assumed in their oath. Being an integral part of this unconstitutional Charter, the referendum is unconstitutional. The publicly funded campaign by the interim government in favour of ‘yes’ vote subverts every aspect of a neutral and fair referendum. By meticulously designing the July Charter, referendum, and campaign for ‘yes’ vote, the interim government has violated the Constitution and its oath to protect and act according to the Constitution. Any citizen voting ‘yes’ in this unconstitutional referendum will be in breach of his/her ‘sacred duties to safeguard, protect and defend’ the Constitution as the supreme law of the Republic.
Concluding observations
The Constitution of Bangladesh has received several amendments undermining its basic structure by incumbents, both civilian and military alike. The July Charter is yet another addition to this list. A state with a constitution in force, no political authority can function as its lawful government without deriving legitimacy from the existing constitution. The interim government is obliged to demonstrate its legitimacy which cannot be invented or plucked from trees. Its legitimacy must come from only one source, called the Constitution of Bangladesh. Notwithstanding its unelected and precarious constitutional status, the interim government is acting like a ‘touch stone’ as if anything it touches and incorporates into the Constitution becomes inviolable law. Its two documents in particular, the July Charter and its referendum, fall far short of their constitutionality. They are ill-conceived and short-sighted rickety political conundrums at their best with ample potential for fierce political confrontations at their worst. These documents, once enacted, will radically amend the unamendable basic structure of the Constitution, which the interim government has pledged to uphold in its oath. Such amendment will certainly hamstring the functioning of the normal parliamentary form of government with a figure head President. This amendment may well be a ploy to camouflage the selfish sectarian interest of the incumbent. After over 50 years, the question is: How long more can Bangladesh afford to allow its sacred Constitution being used as a convenient legal tool to cover up the self-serving political agenda of incumbents? Thank you.
M Rafiqul Islam is currently Emeritus Professor of Law at Macquarie University, Sydney, Australia. He has retired at the end of 2020 after actively serving 30 years as a law academic and researcher since February 1991.