No Law Was Passed, Yet a ‘Trial Under the Law’! Writes a Shameful Chapter…

Opinion

Many shameful chapters have been written in Bangladesh. The assassination of Bangabandhu on August 15, 1975, the murder of four national leaders in prison on November 3, the assassination of President Ziaur Rahman and the failure to prosecute him, the issuance of an indemnity ordinance to protect Bangabandhu’s killers, the demolition of Bangabandhu’s historic house in Dhanmondi with state support, the issuance of an indemnity to prevent the prosecution of the police killings that took place in August 2024, these are shameful chapters in the history of Bangladesh.

The new scandalous chapter that is being written now is the trial of the law without making the law. Look, the trial of crimes related to the July massacre and the alleged disappearances during the Awami League government is underway at the International Crimes Tribunal. The verdict of the ongoing trial against Honorable Prime Minister Sheikh Hasina has been set for November 17.

The question is, has any special law been enacted to try crimes related to the July killings and disappearances? The International Crimes Tribunal Act, 1973 is a special law. Can the trial of army officers on charges of disappearances and the trial of Sheikh Hasina and other Awami League leaders on charges of the July killings be conducted under the International Crimes Tribunal Act, 1973? Not at all. Because this law does not contain any provision for trying the matter in question.

However, fifteen members of the army are currently in jail due to the continuation of judicial proceedings under this law and the date for the announcement of the verdict has been fixed after the hearing and continuation of the proceedings in the murder case against Sheikh Hasina. However, no section of the International Criminal Tribunal Act, 1973 mentions the provision for trial on charges of the crime in question and the meaning of this law is also against such a trial. This trial cannot be held under this law, the speed and interpretation of the law do not support it.

Moreover, no law has been enacted to amend the law and prosecute the July murders and disappearances. Only the parliament has the power to legislate, and currently the parliament in Bangladesh is ineffective. So the question is, how is the trial going on? There is no law. Yet the trial is going on! But how?

An ordinance has been issued amending the law. The trial is underway in light of the ordinance.

Now the question is, is an ordinance a law?

Not at all. It is a judicial act, like a law, but not a law. It is an executive order for a limited period of time. The difference between a law and an ordinance is like night and day. Crimes related to murder and disappearance cannot be tried by an ordinance or executive order. Because an executive order or ordinance cannot become a law. If an executive order or ordinance does not become a law, then the ordinance will be abolished after a certain period of time. If the ordinance does not become a law and is abolished after a certain period of time, then what will the nation say about this trial? That is why I am saying that this is the writing of a scandalous chapter.

What does the Constitution say about issuing ordinances?

The power to make ordinances is dealt with in Article 93 of the Constitution. Article 93(1) states, “If the President is satisfied that circumstances exist which require immediate action, or if Parliament is not in session, he may make and promulgate such ordinances as he considers necessary in the circumstances, and any ordinance so made shall, from the time of promulgation, have the force of an Act of Parliament;

Article 93(2) states, “Any Ordinance made under clause (1) of this Article shall be laid before Parliament at the first sitting of Parliament held after its promulgation and, unless it has been repealed earlier, shall cease to have effect on the expiry of thirty days after the Ordinance was so laid or if a resolution approving it is passed in Parliament before the expiry of such period.”

Therefore, it is evident from Article 93(2) of the Constitution that although the Ordinance has the force of law under Article 93(1), it is valid for a fixed period, that is, up to thirty days before the sitting of Parliament. It can be repealed even before the sitting of Parliament. If it is not repealed before the sitting of Parliament, it shall be brought within the first thirty days of the sitting of Parliament, and if it is passed by Parliament, it shall become a full law. If it is not passed, it shall be deemed to be void, and if it is not brought, it shall also be deemed to be void.

In such a situation, if the next Parliament does not approve the amendment to the International Crimes Tribunal Act, 1973 by issuing an ordinance under Article 93(1) of the Constitution and conducts the trial, what will be the consequences of the alleged trial? That is why I say that the trial of the crimes of murder and disappearance through a piecemeal law through an ordinance is a shameful chapter in history. The trial should have been conducted under the existing Penal Code.

Moreover, if the interim government had decided to try the cases under the 1973 International Crimes Tribunal Act, it would have been appropriate to hold early elections and enact a law through parliament. But, the future of what is happening now is uncertain. The so-called trial in the International Crimes Tribunal under a system that is like law or law but not law is an unprecedented and shameful chapter in the history of Bangladesh. Hopefully, by drawing everyone’s attention to my arguments, the ongoing trial process through the International Crimes Tribunal ordinance will be stopped for the glory of the country.

-Golam Hossain
Lawyer
November 16, 2025