๐๐๐๐๐๐๐๐๐๐๐๐ ‘๐๐๐๐๐๐’ ๐๐๐ ๐๐๐ ๐๐๐๐๐๐ ๐๐ ๐๐๐๐๐๐๐๐๐ ๐๐๐-๐๐๐๐๐๐ ๐๐ ๐๐๐๐๐๐๐๐๐๐: ๐ ๐๐๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐
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A recent parliamentary debate has revived a question of considerable constitutional moment: whether the President of Bangladesh is vested with competence to promulgate a legislative ‘Order’ during a period in which Parliament stands dissolved, or whether the Constitution confines such residuary legislative authority exclusively to the instrument of the Ordinance as contemplated by Article 93. This Note examines the issue through the complementary lenses of textual exegesis, purposive constitutional interpretation, structural architecture, historical and transitional constitutional context, and the established canons of constitutional construction. It advances the argument grounded in the strict doctrine of ๐ถ๐ญ๐ต๐ณ๐ข ๐ท๐ช๐ณ๐ฆ๐ด and the principle of constitutional supremacy that the Constitution does not confer upon the President any independent or autonomous authority to promulgate legislative ‘Orders,’ namely เฆเงเฆฒเฆพเฆ เฆเฆพเฆคเงเฆฏเฆผ เฆธเฆจเฆฆ (เฆธเฆเฆฌเฆฟเฆงเฆพเฆจ เฆธเฆเฆธเงเฆเฆพเฆฐ) เฆฌเฆพเฆธเงเฆคเฆฌเฆพเฆฏเฆผเฆจ เฆเฆฆเงเฆถ, เงจเงฆเงจเงซ (เฆเฆฆเงเฆถ เฆจเฆ เงฆเงง, เงจเงฆเงจเงซ), and that the sole constitutionally recognised modality of executive legislation in the absence of a sitting Parliament remains the Ordinance. Any purported exercise of presidential legislative power through the vehicle of an ‘Order’ would be constitutionally void ab initio for want of authorising provision and contrary to the settled doctrine of enumerated executive powers.
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The distribution of legislative competence within a constitutional order is foundational to the preservation of democratic governance, the integrity of the separation of powers doctrine, and the maintenance of constitutional supremacy as the grundnorm of the legal system. Under the Constitution of the People’s Republic of Bangladesh, 1972 (hereinafter ‘the Constitution’), the primary and plenary authority to enact, amend, and repeal legislation is constitutionally vested in Parliament by virtue of Article 65(1), which declares that ‘subject to the provisions of this Constitution, Parliament shall have power to make laws for Bangladesh.’ The Constitution, however, recognises a constitutionally circumscribed and exceptional circumstance in which the executive organ of the state may, in the temporary absence of Parliament, exercise a derivative and subordinate form of legislative authority.
A question recently canvassed in parliamentary deliberations and one which raises issues of the highest constitutional importance concerns whether the President may issue a legislative instrument styled as an ‘Order’ when Parliament stands dissolved. Proponents of such authority invoke the definitional breadth of Article 152, which enumerates ‘Order’ within the constitutional definition of ‘law.’ Those who contest such authority contend, with considerable doctrinal force, that the Constitution confines the executive’s legislative mandate strictly to the promulgation of Ordinances within the terms prescribed by Article 93, and that no residual or parallel power to issue legislative Orders subsists outside that provision.
This Note examines the constitutional foundations and structural logic of the debate. It concludes that the latter interpretation is not only doctrinally and structurally correct but is compelled by the fundamental principle that in a constitutional democracy founded on the rule of law and the sovereignty of Parliament, executive law-making authority must be explicitly granted, narrowly construed, and strictly circumscribed. Ambiguity even if it were to exist must be resolved in favour of the preservation of constitutional boundaries rather than their expansion through executive action.
๐๐๐ ๐๐๐ ๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐ ๐๐ ‘๐๐๐’ ๐๐๐๐๐ ๐๐๐๐๐๐๐ ๐๐๐: ๐ ๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐๐๐
The primary textual foundation advanced in support of a presidential authority to promulgate legislative ‘Orders’ rests upon Article 152 of the Constitution, which furnishes the following inclusive definition: ‘any Act, Ordinance, Order, rule, regulation, bye-law, notification or other legal instrument, and includes any custom or usage having the force of law in Bangladesh.’ยน
On its face, this provision ostensibly appears to recognise ‘Orders’ as a constitutionally cognisable form of ‘law.’ However, a careful and principled reading of the provision one faithful to the canons of constitutional interpretation reveals that Article 152 is purely definitional and interpretive in character. It serves as a lexical guide to the meaning of terms employed throughout the Constitution; it does not confer, create, or expand legislative authority upon any organ of the state. The critical distinction is between a provision that defines what constitutes ‘law’ and one that confers the authority to make such law.
This distinction is well established in constitutional jurisprudence. Definitional clauses identify the characteristics of a legal category; they do not operate as grants of power. A provision that defines ‘law’ to include ‘Orders’ no more authorises the creation of such Orders by the President than a provision defining ‘property’ would authorise its compulsory acquisition without further legislative warrant. The definitional function is inherently taxonomic, not constitutive.ยฒ
This interpretive approach accords with the foundational principle, authoritatively stated by Viscount Simonds in the House of Lords, that constitutional and statutory provisions are to be construed as parts of an integrated whole, such that no provision may be read in isolation from the structural scheme of the instrument of which it forms a part.ยณ The inclusion of ‘Order’ within the definition of ‘law’ in Article 152 takes its meaning from the pre-existing legal landscape including instruments promulgated during the transitional phase of 1971โ1972 and reflects the Constitution’s recognition of such instruments as having legal force, not its authorisation of their continued creation by the executive organ.
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The Constitution expressly and unambiguously addresses the question of executive legislation in Article 93. Under Article 93(1), when Parliament stands dissolved and the President is satisfied that circumstances exist that render it necessary to take immediate action, the President is empowered to promulgate an Ordinance which shall have the same force and effect as an Act of Parliament.โด Article 93 thus provides the exclusive constitutional mechanism through which the executive may exercise temporary legislative authority.
This provision is constitutionally significant for two related reasons. First, it gives constitutional recognition to the compelling practical necessity that may arise for executive action in the legislative sphere during an interregnum. Second and of decisive importance it specifies with precision the constitutional instrument through which such authority is to be exercised. The Constitution expressly identifies the Ordinance as the sole vehicle of executive legislation. This is not a legislative oversight; it is a deliberate constitutional choice.
The interpretive maxim ๐ฆ๐น๐ฑ๐ณ๐ฆ๐ด๐ด๐ช๐ฐ ๐ถ๐ฏ๐ช๐ถ๐ด ๐ฆ๐ด๐ต ๐ฆ๐น๐ค๐ญ๐ถ๐ด๐ช๐ฐ ๐ข๐ญ๐ต๐ฆ๐ณ๐ช๐ถ๐ด the express mention of one matter implies the exclusion of all others applies with particular force in the constitutional context.โต Where a constitutional instrument explicitly and exhaustively prescribes the mechanism for the exercise of a power, the necessary implication is that alternative mechanisms are precluded. As Lord Blackburn affirmed in the House of Lords, where a legislative instrument confers particular authority, what it does not expressly or impliedly authorise is to be taken as prohibited.โถ Where the framers have spoken through a specific mechanism, their silence on alternatives is to be understood as deliberate exclusion rather than inadvertent omission.
Applied to Article 93, this canon of construction compels the conclusion that since the Constitution has explicitly authorised the promulgation of Ordinances as the modality of executive legislation, it does not by necessary implication contemplate any concurrent, parallel, or supplementary authority to issue legislative ‘Orders.’ The constitutional architecture is clear: executive legislative power is the exception, not the rule; it is carefully delimited and structurally contained within the four corners of Article 93.
๐๐ก๐ ๐๐ฅ๐ญ๐ซ๐ ๐๐ข๐ซ๐๐ฌ ๐๐จ๐๐ญ๐ซ๐ข๐ง๐ ๐๐ง๐ ๐ข๐ญ๐ฌ ๐๐ฉ๐ฉ๐ฅ๐ข๐๐๐ญ๐ข๐จ๐ง
It is a foundational principle of constitutional law that all exercises of public power must be authorised by law. The doctrine of ๐ถ๐ญ๐ต๐ณ๐ข ๐ท๐ช๐ณ๐ฆ๐ด a cornerstone of the rule of law holds that any act of a public body or constitutional officer which is not within the scope of the authority conferred by the enabling instrument is void and of no legal effect. In the constitutional context, this translates to the requirement that every exercise of executive power, including any purported executive legislative authority, must trace its lineage to an express or necessarily implied constitutional grant.โท
Where no such grant exists as is the case with presidential ‘Orders’ any purported exercise of such power is constitutionally ๐ท๐ฐ๐ช๐ฅ ๐ข๐ฃ ๐ช๐ฏ๐ช๐ต๐ช๐ฐ. This is not merely a matter of procedural irregularity; it strikes at the substantive validity of the instrument and renders it incapable of creating legally enforceable obligations or rights. Citizens and institutions subject to such an Order would have compelling grounds to challenge its validity before the Supreme Court of Bangladesh under Article 102 of the Constitution, which vests the High Court Division with supervisory jurisdiction over questions of constitutional validity.
๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐๐๐ ๐๐ ๐๐๐๐๐๐๐๐๐๐๐๐ ‘๐๐๐๐๐๐’: ๐๐๐ ๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐
Those who advocate for the existence of a continuing presidential authority to issue legislative ‘Orders’ frequently cite as precedent instruments promulgated during the founding years of Bangladesh’s independent statehood most notably, the Representation of the People Order, 1972. These instruments did indeed take the form of presidential ‘Orders,’ and their legal efficacy at the time of promulgation is not in dispute. However, their constitutional provenance and the conditions under which they were issued must be understood with precision.
Following the liberation of Bangladesh in December 1971, the nascent state operated under a provisional and transitional constitutional framework that conferred broad executive legislative authority on the government of the day. The exigencies of post-independence governance including the urgent need to establish institutions, regulate elections, and reconstitute the legal and administrative order necessitated the issuance of various legal instruments. These instruments were products of a ๐ด๐ถ๐ช ๐จ๐ฆ๐ฏ๐ฆ๐ณ๐ช๐ด transitional legal order, not of the permanent constitutional architecture that subsequently came into force.โธ
When the Constitution was adopted on 4 November 1972 and brought into force, the framers provided expressly for the legal continuity of pre-constitutional instruments. Transitional laws were preserved through the Fourth Schedule to the Constitution and accorded continuing legal effect under Article 150.โน These provisions served the essential constitutional function of ensuring continuity in the legal system during the transition from provisional to constitutional governance. However, and this is the point of decisive constitutional importance they did not create, perpetuate, or constitutionally entrench any ongoing authority in the executive to continue promulgating legislative ‘Orders’ under the constitutional order established in 1972.
The historical existence of such instruments, therefore, cannot as a matter of constitutional logic be construed as evidence of a continuing or inherent executive power. The transitional provisions are exhaustive of their purpose: they validate specific pre-constitutional instruments; they do not establish a source of post-constitutional executive legislative authority. To derive such authority from these transitional arrangements would be to commit the elementary interpretive error of conflating transitional validation with prospective empowerment.
๐๐๐ ๐๐๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐๐๐๐๐๐ ๐๐ ๐๐๐๐ ๐๐๐ ๐๐๐๐ ๐๐๐๐๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐๐๐๐๐
The constitutional order contemplated by the Constitution of 1972 became fully and definitively operational with the convening of the first session of the National Parliament on 7 April 1973 following the national elections held in March of that year. From that constitutional moment, the plenary legislative authority of the state was firmly, exclusively, and irrevocably vested in Parliament. The executive’s role in the legislative process was thereafter confined to the promulgation of Ordinances under Article 93 in the specific circumstances envisaged by that provision. Of considerable interpretive significance is the fact that constitutional practice in Bangladesh since 1973 has consistently and uniformly reflected this understanding. Presidential legislation in the absence of Parliament has invariably taken the form of Ordinances, promulgated under Article 93 with all the procedural requirements attendant upon that power including the obligation to lay the Ordinance before Parliament upon its re-assembly, and the statutory limitation on the Ordinance’s duration. No sustained, systematic, or uncontested practice of issuing presidential legislative ‘Orders’ under a general executive authority has developed during the constitutional period.
Constitutional practice, while not independently dispositive of questions of constitutional validity for practice cannot cure a constitutional deficiency is nonetheless recognised in constitutional theory as a valuable interpretive aid in ascertaining the practical meaning and operative scope of constitutional provisions.ยนโฐ The consistent post-1973 practice of utilising Ordinances rather than ‘Orders’ as the instrument of executive legislation provides strong confirmatory evidence that the constitutional framework has been understood, by successive governments and constitutional actors, as limiting executive legislative authority to the Ordinance power under Article 93.
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Any controversy arising from the issuance of a presidential ‘Order’ purporting to have legislative effect in contemporary Bangladesh must be assessed within the constitutional framework delineated above. If as this Note contends the President’s legislative authority in the absence of Parliament is exhausted by and limited to the Ordinance-making power conferred by Article 93, then the issuance of a legislative ‘Order’ represents not merely a terminological irregularity but a substantive constitutional transgression.
Such an act would raise profound concerns that implicate the constitutional architecture at multiple levels. At the doctrinal level, it would constitute an exercise of power for which no constitutional authorisation exists a quintessential act ๐ถ๐ญ๐ต๐ณ๐ข ๐ท๐ช๐ณ๐ฆ๐ด the Constitution. At the structural level, it would bypass the procedural safeguards and temporal constraints that Article 93 imposes on executive legislation safeguards that exist precisely to prevent the unfettered exercise of legislative power by the executive organ and to ensure parliamentary accountability upon the reassembly of Parliament. At the normative level, it would undermine the foundational principle of constitutional democracy that the exercise of state power is bounded by constitutional authority.
The constitutional concerns are further deepened by the nature of any legislative instrument that purports to alter the rights and obligations of citizens without parliamentary sanction. In a constitutional order premised upon the rule of law, the legitimacy of such alterations depends upon their derivation from a constitutionally valid source of authority. The absence of such authority is not a technical defect capable of administrative cure; it is a nullity in law that courts of competent jurisdiction are not merely empowered but constitutionally obliged to pronounce upon.
๐๐ฎ๐๐ข๐๐ข๐๐ฅ ๐๐๐ฏ๐ข๐๐ฐ ๐๐ง๐ ๐๐จ๐ง๐ฌ๐ญ๐ข๐ญ๐ฎ๐ญ๐ข๐จ๐ง๐๐ฅ ๐๐๐ฆ๐๐๐ฒ
Any person aggrieved by a presidential ‘Order’ of purported legislative effect would possess standing under Article 102 of the Constitution to invoke the supervisory jurisdiction of the High Court Division of the Supreme Court of Bangladesh. The Court, exercising its powers of constitutional review, would be required to examine whether the impugned instrument is supported by constitutional authority, and, finding it to be otherwise, to declare it ๐ถ๐ญ๐ต๐ณ๐ข ๐ท๐ช๐ณ๐ฆ๐ด ๐ข๐ฏ๐ฅ ๐ท๐ฐ๐ช๐ฅ. The availability of this remedy underscores the seriousness of the constitutional question and the importance of acting within constitutionally prescribed limits.
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The Constitution of Bangladesh establishes a clear, deliberate, and internally coherent hierarchy in the creation of law. Parliament is the supreme legislative authority of the state. The executive’s legislative role is not only constitutionally exceptional but is confined to narrowly defined circumstances and constitutionally prescribed mechanisms. Any departure from that framework is not merely procedurally irregular it is constitutionally void.
Article 152 recognises ‘Orders’ as a form of legal instrument within the definitional lexicon of the Constitution, but it emphatically does not operate as a grant of authority to the President to promulgate such instruments as acts of executive legislation. The sole constitutionally recognised modality of executive legislation in the absence of Parliament is the Ordinance as provided for under Article 93. Historical practice, transitional constitutional provisions, the doctrines of ๐ถ๐ญ๐ต๐ณ๐ข ๐ท๐ช๐ณ๐ฆ๐ด ๐ข๐ฏ๐ฅ ๐ฆ๐น๐ฑ๐ณ๐ฆ๐ด๐ด๐ช๐ฐ ๐ถ๐ฏ๐ช๐ถ๐ด, and established principles of constitutional interpretation all converge in support of this conclusion.
The present controversy therefore underscores a matter of the highest constitutional principle: that in a constitutional democracy, executive power particularly the exceptional and inherently dangerous power of executive legislation must be grounded in unambiguous constitutional authority, exercised through constitutionally prescribed mechanisms, and subjected to the full scrutiny of constitutional review. The integrity of the constitutional order depends upon the fidelity of all constitutional actors, including the executive, to these foundational precepts.
Authorย แดแดแดแดสสแดแดแด๊ฑ ๊ฑสแดแดสแดษด is an Advocate at Supreme Court of Bangladesh
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1. Constitution of the People’s Republic of Bangladesh, 1972, Art. 152 (definition of ‘law’).
2. H.W.R. Wade & C.F. Forsyth, Administrative Law (11th edn, Oxford University Press, 2014), distinguishing between power-conferring provisions and definitional clauses in constitutional instruments; see also A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, 1959).
3. Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (HL), 461 (Viscount Simonds), holding that words cannot be read in isolation their colour and content are derived from their context and that a statute must be construed as a whole. This holistic interpretive principle applies with equal force to constitutional instruments.
4. Constitution of Bangladesh, Art. 93(1): ‘At any time when Parliament stands dissolved, if the President is satisfied that circumstances exist which render immediate action necessary, he may promulgate such Ordinances as the circumstances appear to him to require.’
5. Daniel Greenberg (ed), Craies on Legislation (12th edn, Sweet & Maxwell, November 2020), explaining the interpretive maxim expressio unius est exclusio alterius and its application to legislative and constitutional texts.
6. Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 (HL), per Lord Blackburn, affirming that where an Act of Parliament creates authority for particular purposes, what it does not expressly or impliedly authorise is to be taken to be prohibited; see also Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (HL) (Viscount Simonds), on the principle that express provision implies the exclusion of alternative mechanisms not provided for.
7. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL), articulating the ultra vires doctrine in the context of executive power; see also R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 (HL).
8. Kamal Hossain, Bangladesh: Quest for Freedom and Justice (University Press Limited, Dhaka, 2013), describing the provisional governance arrangements and executive legislative authority in force between 1971 and 1972.
9. Constitution of Bangladesh, Art. 150 and the Fourth Schedule, preserving the legal effect of laws made before the first sitting of Parliament following the commencement of the Constitution.
10. Sir Ivor Jennings, The Law and the Constitution (5th edn, University of London Press, 1959), on constitutional conventions and the interpretive significance of consistent constitutional practice; see also Colin Munro, Studies in Constitutional Law (2nd edn, Butterworths, 1999).
