The July Order Cannot Live Outside the Constitution
There is a sensible way out, and it lies inside the Constitution, not outside it. If the new government wants to preserve the Reform Council model, it should table a constitutional amendment under Article 142 defining the Council’s status, powers, voting threshold, relation to Parliament, and oath.
The current parliamentary debate over the July National Charter (Constitutional Reform) Implementation Order, 2025 has exposed a familiar Bangladeshi weakness: Both camps are overstating their case. One side now calls the Order void from birth. The other treats it as a referendum blessed constitutional command. Neither position is convincing.
The Order is neither ordinary law nor mere political rhetoric. It is an extra-constitutional transitional instrument that carries undeniable political force, but still lacks a settled legal home.
The Implementation Order is self-revealing. It does not claim authority from a specific constitutional article. It says the President acts “under the authority of the sovereign will expressed by the people” and on the advice of the Interim Government. Sections 3 and 4 then submit the Order itself, together with bundled constitutional reform proposals, to a single referendum.
Sections 7, 8, 10 and 14 go further still. They create the Constitutional Reform Council out of elected MPs, require a second oath, allow constitutional reform to be adopted by a majority of the Council, and declare the result final without further approval. There is also a revealing circularity here.
The Order defines a referendum as one held under its own authority, while Section 6 says legislation will later be enacted to let the Election Commission conduct it. The procedure may have been supplied by the Referendum Ordinance, but the legal premise of the vote still depended on the very Order whose validity is now under attack.
Under orthodox constitutional law, that is where the difficulty begins. The present Constitution expressly recognises ordinance making power in Article 93 and constitutional amendment power in Article 142. It does not obviously recognise a third route by which the President may, by “Order”, create a new body with full authority to refashion the Constitution. Moreover, an ordinance cannot include any provision that amends or repeals the Constitution. (Article 93(1)(ii)).
To say that the President could not do this by ordinance, but could somehow do it by a differently labelled instrument, is not constitutional reasoning. It is constitutional evasion.
On this point, BNP’s legal objection is serious, even if its political incentives are open to question. A government with a commanding majority will always prefer reform on its own terms, but that does not make every objection to the Order insincere.
Yet the opposing camp is right about one crucial thing. The referendum did happen on February 12, and the Yes side won clearly. That result is not legally meaningless. It is a democratic fact, and in a constitutional order founded on popular sovereignty it cannot simply be waved away. But a referendum mandate is not the same as self-executing constitutional change.
The vote may authorize reform politically, but it cannot by itself replace constitutional procedure. A people can confer pressure, direction, and legitimacy. Whether they can automatically constitutionalise an otherwise shaky legal instrument is a different question altogether.
This is why the newly published 13th Amendment review judgment matters so much. The Appellate Division drew a striking distinction between Parliament’s derivative amendment power under Article 142 and the constituent power of the people. At pages 44 to 46, the Court says Article 142 is a fiduciary and limited power, and that mechanisms protecting core constitutional features may themselves acquire constitutional sanctity.
At pages 52 to 55, it goes further and describes the Constitution as a social contract rooted in continuing popular sovereignty, not a dead text that exhausted the people’s agency in 1972. Those passages plainly strengthen the claim that popular will matters at a deeper level than routine amendment procedure. They give Jamaat and NCP a serious jurisprudential argument, not a slogan.
But the same judgment also contains the caution that current polemics keep omitting. It does not say that whenever the executive invokes “the people,” constitutional form may be bypassed. Quite the opposite. At pages 62 to 64, the Court translates its theory of popular sovereignty into a tightly managed legal result, making restoration prospective and dormant in order to avoid institutional collision.
That is the missing lesson. Constituent power may explain why reform is necessary. It does not abolish the need for constitutional translation. Popular will still has to be channelled through law, either by judicial validation or by constitutional incorporation. Executive improvisation alone is not enough.
That leaves the July Order in a precarious middle ground. It has political legitimacy, referendum endorsement, and continuing argumentative force. But as a source of binding constitutional authority, it remains unsettled and sub-judice. The High Court has already issued rules questioning the legality of the Order, the oath administered to Council members, and the Referendum Ordinance.
Meanwhile, treasury bench leaders are openly arguing that the ordinance can now be allowed to lapse because the referendum has already taken place. That only deepens the contradiction. If the legal instrument may lapse without consequence, how can the constitutional consequences supposedly survive untouched? The better view is that the vote remains politically important, but its legal effect cannot exceed the stability of the framework beneath it.
There is a sensible way out, and it lies inside the Constitution, not outside it. If the new government wants to preserve the Reform Council model, it should table a constitutional amendment under Article 142 defining the Council’s status, powers, voting threshold, relation to Parliament, and oath.
If it does not want the Council, it should still treat the referendum as a real political mandate and bring the July Charter’s reform package to Parliament through bills, clause by clause or in coherent blocks, instead of pretending the vote never happened.
Letting the Referendum Ordinance lapse may extinguish one instrument, but it cannot erase the political fact of the vote. Nor can that vote, by itself, cure a defect in constitutional form.
The July Charter deserved a constitutional bridge. The interim government built a constitutional shortcut. That shortcut may have produced a referendum, but it also created a legal trap. Bangladesh now needs neither executive improvization dressed up as constituent power nor parliamentary majoritarianism dressed up as constitutional fidelity.
It needs a settlement that respects both the people’s mandate and the Constitution’s architecture. The July Order should either be constitutionalized, or be allowed to lapse while its reform commitments return, properly, to the Constitution.
Khan Khalid Adnan is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Barrister in England and Wales, and an Advocate of the Supreme Court of Bangladesh.
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Khan Khalid Adnan
Khan Khalid Adnan is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Barrister in England and Wales, and an Advocate of the Supreme Court of Bangladesh. Recently, he completed his LLM in Litigation and Dispute Resolution from UCL with distinction, and currently, he serves as the Head of the Chamber at Khan Saifur Rahman & Associates, Dhaka, Bangladesh
