A RECENT remark in the parliament by the home minister, Mr. Salahuddin Ahmed, has reignited a fundamental constitutional debate. Referring to the July National Charter Implementation Order, he stated: This order is neither an ordinance nor a law — it is something in between.’
That formulation, while perhaps rhetorically convenient, is jurisprudentially problematic. In my parliamentary intervention, I pointed out — by direct reference to Article 152 of the constitution — that a ‘presidential order’ falls within the constitutional definition of ‘law.’ This position has since been critiqued by the newly appointed attorney general, Barrister Ruhul Quddus Kajal, and echoed by journalist David Bergman.
In response, the attorney general wrote in a national daily newspaper: ‘According to Barrister Nazibur Rahman’s parliamentary speech, the president can issue orders. His argument relies on Article 152 of the constitution, where the definition of ‘law’ includes orders alongside ordinances. This interpretation has created confusion… Under the constitution, ‘law’ includes any act, ordinance, order, rule, regulation, by-law, notification… There is no denying that an ‘order’ falls within the definition of law. The real debate is whether the President, within the existing constitutional framework, can issue such an ‘order’. The direct answer — no.’
Similarly, on the same issue, David Bergman wrote in a Facebook post: ‘…Nazibur Rahman is completely missing the point here. Not everything labelled as ‘law’ or ‘order’ becomes law. For something to qualify as ‘law’, it must be created according to the process laid down in the constitution or under an act of the parliament. For example, an ‘Act’ becomes law only when it is passed through the prescribed parliamentary process… The constitution does not grant the President independent authority to issue ‘orders’. Therefore, since this order is not made under the Constitution or any valid legal authority, it cannot be considered a valid legal instrument.’
These critiques, however, conflate two analytically distinct questions — thereby deepening, rather than resolving, the confusion.
The present controversy must be separate into two distinct legal inquiries: (1) does a ‘presidential order’ qualify as ‘law’ under the constitution? And (2) does the president possess the constitutional authority to issue such an order in the present framework?
These are not interchangeable questions. Treating them as such leads to confusion. On the first question, the constitutional text is unequivocal. Article 152 defines ‘law’ to include ‘any act, ordinance, order, rule, regulation, by-law, notification or other legal instrument.’ Even the attorney general concedes this point in his column, acknowledging that an ‘order’ is, indeed, encompassed within the definition of law. The home affairs minister’s assertion that such an order is ‘not law’ is therefore inconsistent with the constitution’s explicit language.
The second question — whether the president had the authority to issue the order — is a separate matter. Here, even if one assumes for the sake of argument that the order was issued ultra vires, it does not automatically lose its legal character or operative effect. Under Article 102, it is the Supreme Court alone that has the jurisdiction to declare a law unconstitutional. Until such judicial determination is made, the doctrine of presumption of constitutionality applies: every law, regardless of alleged defects, is presumed valid and remains operative.
This principle is not merely theoretical; it has concrete implications. Consider the Local Government (City Corporation) (Amendment) Ordinance 2024, under which unelected administrators were appointed to several city corporations. A strong argument exists that this ordinance conflicts with Article 59 of the Constitution, which mandates elected local governance, and is inconsistent with the Appellate Division’s ruling in the Kudrat-e-Elahi Panir case reported in 1992 Dhaka Law Reports.
Yet, despite these constitutional infirmities, the ordinance continues to have legal effect. Any challenge must be brought before the Supreme Court under Article 102. Until then, actions taken under it remain legally valid. Applying the same reasoning, a presidential order — whether validly issued or not — cannot simply be disregarded by executive or political actors. To do so would undermine the rule of law itself.
The more complex issue concerns the source of authority. The attorney general argues that the president’s power to issue such orders derived historically from the Proclamation of Independence and is no longer available under the post-constitutional framework. That is only a partial account.
The Proclamation of Independence itself grounded that authority in the constituent power of the people — the ultimate sovereign authority from which the constitution derives its legitimacy. Article 7(2) reinforces this principle by declaring the constitution to be the supreme expression of the people’s will.
Crucially, the Appellate Division in its recent landmark judgement on the 13th amendment clarified that constituent power is not extinguished upon the adoption of the Constitution. Rather, it remains latent — capable of re-emergence in exceptional circumstances where the constitutional order becomes dysfunctional.
The events of August 5, 2024, created precisely such an exceptional context. The abrupt collapse of the executive and legislative branches produced a constitutional vacuum. The existing constitutional mechanisms were incapable of resolving the crisis — particularly given the requirement that the president act on the advice of a prime minister who was no longer in office.
Although Article 106 permits the president to seek advisory opinions from the chief justice, it does not provide a mechanism for government formation. The subsequent establishment of an interim administration, therefore, cannot be fully explained within the four corners of the existing constitutional text.
Rather, it reflects a reassertion — implicit though it may be — of the people’s constituent power, mediated through political consensus and public mandate. The presidential order in question must be understood within this extraordinary constitutional moment. Its own preamble acknowledges this foundational basis.
This brings us to a critical normative concern. If one asserts that the presidential order is invalid due to lack of authority, consistency demands that other constitutionally questionable steps, including the formation of the interim government and the holding of the elections by such government also be scrutinised as well.
For instance, the dissolution of the 12th parliament without the written advice of the then prime minister raised serious issues under Article 72. If that act is deemed constitutionally suspect, then the legal foundation of the current parliament and government becomes equally open to challenge.
Selective constitutionalism — accepting certain extra-textual acts while rejecting others — erodes institutional credibility. One cannot, metaphorically speaking, throw stones while sitting in a glass house.
Thus two conclusions emerge with clarity:
First, under Article 152, a presidential order indisputably falls within the constitutional definition of ‘law.’ As long as it remains in force and has not been set aside by the Supreme Court, it must be treated as operative law.
Second, the question of the president’s authority to issue such an order is a separate and more complex issue — one that must be analysed in light of both the existing constitutional framework and the doctrine of constituent power as laid down in recent judgement of the Appellate Division.
To conflate these questions is to invite confusion. To ignore the operative status of law without judicial invalidation is to undermine the rule of law itself.
Dr Nazibur Rahman Momen, barrister-at-law, is a member of parliament, for the Pabna 1 constituency.
