July Charter, presidential order and constitutional conundrum

Parliament has once again become the centre of a national politico-legal debate. At issue is the proposed incorporation of the July Charter, along with notes of dissent, into the Constitution, and the procedure through which such changes should be made.

The ruling Bangladesh Nationalist Party (BNP) has made its position clear: any constitutional amendment must follow the procedure laid out in Article 142 of the Constitution.

The Opposition, led by Jamaat-e-Islami, has taken a different stance. On 1 April 2026, its lawmakers boycotted parliament, arguing that all provisions of the July Charter—irrespective of dissenting notes—should be implemented through a Constitution Reform Council, as envisaged in the July National Charter (Constitution Reform) Implementation Order, 2025. They also cite the mandate of the referendum held on 12 February alongside the national elections.

This position, however, raises serious legal concerns.

First, the president does not have the authority to create a constitutional body such as a reform council after the first meeting of the first parliament following the commencement of the constitution on 7 April 1973. Clause 17 of the Fourth Schedule [Article 150(1)]—which deals with transitional and temporary provisions—does not permit such an action beyond that initial phase.

Second, the legitimacy of both the Presidential Order and the Referendum Ordinance is questionable. If these instruments were promulgated on flawed or misleading grounds, their legal standing becomes inherently weak. In such circumstances, neither the doctrine of necessity nor claims of popular legitimacy can cure foundational defects.

The issue of "fraud" in the legal sense is central here. Section 3 of the Implementation Order stated that provisions relating to constitutional reform in the July Charter would be subject to a referendum. Section 4, however, stipulated that the upper house of parliament would be formed through proportional representation (PR).

This creates a contradiction. The July Charter itself envisaged that the composition of the upper house would be determined in line with the winning party's election manifesto. The ruling party's manifesto, in turn, proposed that the upper house be constituted based on the ratio of seats in the lower house—not through PR.

Such inconsistencies raise questions about whether the referendum accurately reflected what was originally proposed. It is a settled principle of law that fraud vitiates everything. If the foundation is compromised, the resulting legal structure cannot stand on firm ground.

The Opposition has also argued that the Constitution does not provide for an interim government or the 2026 parliamentary elections. This claim does not withstand scrutiny.

Articles 123(3)(b) and 72(3) allow for the dissolution of parliament before the expiry of its term under certain circumstances. The dissolution of the 12th Parliament on 6 August 2024, following the ousting of the prime minister a day earlier, can reasonably fall within this scope.

That said, there appears to have been a procedural lapse. Ideally, the next parliamentary election should have been held within six months of dissolution. While this delay is not insignificant, it does not invalidate the dissolution itself. Consequently, the argument that the former prime minister remained in office lacks constitutional basis.

Another concern raised by the Opposition relates to the possible application of the "doctrine of basic structure" by the Supreme Court in reviewing future amendments.

Bangladesh's constitutional history offers useful context. The Fifth and Seventh Amendments—introduced during periods of military rule—were declared unconstitutional decades later. However, actions taken under those amendments were treated as past and closed transactions.

The Supreme Court has intervened in constitutional amendments where they undermined core constitutional principles, particularly judicial independence. In the Eighth Amendment case, for instance, the provision establishing permanent High Court benches outside the capital was struck down on such grounds.

Notably, the BNP itself expressed dissent in the July Charter proposal to establish permanent benches in each division. This weakens the argument that future amendments would necessarily fall foul of the basic structure doctrine. In fact, the proposed Constitution Reform Council could itself raise basic structure concerns, particularly regarding the supremacy of parliament in constitutional amendment.

Ultimately, the Constitution already provides a clear pathway for reform. Amendments under Article 142, followed—if deemed necessary—by a referendum, offer a constitutionally sound route to substantive change.

What is needed now is not confrontation, but deliberation. A debate of this magnitude deserves to be conducted both inside and outside parliament in a measured and constructive manner—rather than through boycotts or street agitation.

Nazmus Sakib is an advocate at Bangladesh Supreme Court. He can be reached at nsakib1971@gmail.com.

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.