Demand for ‘Provisional Constitutional Order’: Precedent or misplaced parallel?

Bangladesh's political landscape is again entering a delicate phase as the Jamaat-e-Islami has announced fresh demonstrations in Dhaka and several districts to press home five demands, including a national election based on the July Charter, the adoption of proportional representation in parliament, and even a ban on the activities of the Jatiyo Party and members of the 14-party alliance. At the centre of this agenda lies Jamaat's most ambitious proposal: the issuance of a "Provisional Constitutional Order" (PCO) to give the July Charter legal authority. 

For Jamaat, this is not a mere political slogan. Party leaders argue that without a constitutional order, the consensus reached under the July Charter cannot translate into binding law. As Jamaat's Assistant Secretary General Hamidur Rahman Azad put it on 14 September while speaking at a meeting of the National Consensus Commission: "We have proposed that the July Charter be granted legal legitimacy through Constitutional Order, and if a referendum is held on it, it will become even stronger. This way, no one will be able to challenge it later." 

Azad and his colleagues cite historical precedents. The 1970 Legal Framework Order (LFO) issued under General Yahya Khan, the referendum under Ziaur Rahman, and constitutional changes following the 1991 uprising are invoked as proof that such measures have earlier secured democratic transitions. 

"By giving the July Charter a legal foundation, all future elections will have to be held on its basis. This will make elections festive and acceptable," Azad argued. 

But the legal question is whether such precedents hold water in today's Bangladesh, as Bangladesh is neither under military rule nor has the constitution been suspended yet. 

Jamaat's argument: A "special constitutional order"

At the National Consensus Commission, Jamaat's legal representative, Advocate Mohammad Shishir Manir, clarified the party's rationale: "The proposal we have specifically put forward is the issuance of a Special Constitutional Order. In other words, the matters on which the Consensus Commission has reached agreement—those which conflict with the Constitution—would, through a Special Constitutional Order, be given primacy over the Constitution, but only in those particular cases. In all other respects, the Constitution would remain as it is." 

Manir added that this was not an unprecedented innovation but an expression of the people's will under Article 7 of the Constitution: "The Constituent Assembly reflects the will of the people, as was expressed on the fifth. It is for the implementation of this will that all these discussions are taking place… This ultimate expression of the people's will, if prioritised through a Special Constitutional Order, would ensure that the forthcoming election could be held without any legal irregularity." 

For Jamaat, the legal reasoning is clear: constitutional amendments are vulnerable to challenge, whereas a provisional constitutional order endorsed by referendum would be immune.

If anyone believes that the way Pakistan's military rulers managed the state in the 1960s—without constitutional processes, relying solely on decrees—can be considered a model to follow, they are of course free to hold that opinion. However, I do not believe such measures could ever be regarded as a model worth emulating.

DR SHAHDEEN MALIK, ADVOCATE, SUPREME COURT OF BANGLADESH

Historical precedents: The LFO of 1970

The strongest precedent Jamaat relies on is the 1970 Legal Framework Order. Issued by Pakistan's then Chief Martial Law Administrator, General Yahya Khan, it provided the legal basis for the first general election in united Pakistan.

As Dr Borhan Uddin Khan, professor in the Department of Law, University of Dhaka, explained, "The 1970 election was held under a legal framework because at that time there was no constitution in the country. Yahya Khan declared martial law, and under that martial law the Martial Law Administrator formulated a law called the Legal Framework Order. It was within that Legal Framework Order that the matter of elections was laid out. All political parties took part in the election under this Legal Framework Order." 

But Dr Borhan stressed that this context cannot be equated with today's Bangladesh: "Now, however, we have a constitution. The current framework is a constitutional framework, meaning the Constitution itself. Our present President holds office in accordance with the Constitution. Yahya Khan, on the other hand, was Chief Martial Law Administrator—he was not a President under the Constitution, since the 1962 Constitution had already been abolished." 

In other words, the LFO was a product of military rule and constitutional vacuum. Today, neither of these conditions applies. 

Bangladesh's judiciary has already addressed the validity of regimes established under martial law. In landmark judgments, the Supreme Court struck down both the 5th and 7th Amendments, declaring that constitutional changes imposed by extra-constitutional means were void.

These rulings underscore a principle: Bangladesh's constitutional order cannot be suspended or redefined through martial proclamations. As Dr Shahdeen Malik observed, "During Pakistan's military rule, the Chief Martial Law Administrator governed through directives and orders. To think that, almost sixty years later, such a system could serve as a model for us is, in my view, misplaced." 

Dr Borhan, while acknowledging Bangladesh's history of "irregular legitimisations", cautioned against conflating past necessity with present conditions: "Therefore, the irregularities now taking place—if we legitimise them—would be the fifth such instance. Previously we legitimised four. This practice of providing constitutional legitimacy to certain deviations has effectively become a form of constitutional convention for us. I am not saying that this is a good practice, but it is something that has been done repeatedly. Still, the current context is not identical to those earlier circumstances." 

Dr Malik went further, highlighting the risks of undermining constitutional continuity: "If anyone believes that the way Pakistan's military rulers managed the state in the 1960s—without constitutional processes, relying solely on decrees—can be considered a model to follow, they are of course free to hold that opinion. However, I do not believe such measures could ever be regarded as a model worth emulating. And the other instances of such precedence were done under martial law. Last time I checked, we are not living under martial law."

From Jamaat's perspective, a constitutional order is not an attempt to suspend the Constitution but to give the July Charter primacy within it. As Hamidur Rahman Azad reiterated, "We want a constitutional order, not a constitutional amendment. Constitutional amendments can be challenged. A constitutional order, on the other hand, is much stronger. If it is further endorsed by a referendum, it will become even more solid. That is the proposal we have made."

Yet, constitutional experts remain sceptical. They argue that once the Constitution provides mechanisms for amendment and reform, creating parallel instruments undermines the supremacy of the document itself. Moreover, the Supreme Court's past verdicts suggest that courts are unlikely to endorse any measure resembling martial law decrees.

For Jamaat, the PCO is not only a legal question but also a political strategy. By insisting that all parties sign the July Charter and take oaths before participating in elections, the party seeks to lock in its terms of engagement. Critics argue that this risks narrowing, rather than broadening, Bangladesh's democratic field.

The Consensus Commission itself appears cautious. Reports suggest that instead of giving the Charter precedence over the Constitution, the Commission may recommend attaching it as a schedule, thereby incorporating reforms within the existing constitutional framework. 

The debate ultimately reflects two visions: one that seeks to anchor change through extraordinary measures, and another that insists on working within the ordinary procedures of constitutional democracy.