For centuries, parliamentary democracies have wrestled with a constitutional paradox of how can a head of state be insulated from prosecution long enough to preserve the dignity and independence of the office without placing its occupant permanently above the law?
Bangladesh is now confronting that question for the first time in its own constitutional history.
The debate erupted after [former] president Mohammed Shahabuddin stepped down from office and several political groups demanded his arrest over actions taken during the extraordinary constitutional transition following the July-August 2024 uprising.
Article 51 of Bangladesh’s Constitution which states the president "shall not be answerable to any court for the exercise and performance of the powers and duties of his office" is one of the least litigated but most consequential provisions. It essentially bars criminal proceedings against a sitting president and prohibits his arrest or imprisonment during his tenure.
The Constitution, however, becomes remarkably quiet once a president leaves Bangabhaban.
Nowhere does it explicitly state whether immunity survives retirement, whether it expires immediately upon demitting office or whether it continues only for official constitutional acts. That constitutional silence has produced competing interpretations among lawyers and academics.
One school argues that Article 51 provides only procedural immunity. According to this view, the Constitution merely postpones legal proceedings while a president remains in office to ensure that the head of state can perform constitutional responsibilities without judicial interference.
Once the office is vacated, they argue, the individual stands on the same legal footing as any other citizen and may be prosecuted if sufficient evidence exists.
The opposing view reaches a different conclusion. Its proponents contend that while personal criminal conduct may become prosecutable after leaving office, official acts performed in the constitutional discharge of presidential responsibilities remain protected indefinitely.
Otherwise, they argue, every president who navigates a national emergency could later face politically motivated criminal proceedings for constitutional decisions taken in good faith.
Neither interpretation has ever been tested before Bangladesh's highest court.
That is hardly surprising. Since independence, Bangladesh has never prosecuted a former president for actions performed while occupying the office.
Presidents from Justice Abu Sadat Mohammad Sayem and Justice Abdus Sattar to Hussain Muhammad Ershad, Badruddoza Chowdhury, Iajuddin Ahmed, Zillur Rahman and Abdul Hamid all left office under different political circumstances.
Some resigned, some completed their terms, while Ershad himself later became an opposition leader after his military rule ended. Yet none faced criminal proceedings arising from official presidential decisions.
The absence of precedent is striking because Bangladesh's constitutional history has otherwise been shaped by repeated judicial intervention. Courts have interpreted constitutional amendments, caretaker governments, emergency powers and executive authority on numerous occasions. On presidential immunity, however, the jurisprudence is almost entirely blank.
The framers of Bangladesh's 1972 Constitution borrowed heavily from India's Westminster-inspired constitutional model, including the provisions governing the presidency.
Like India, Bangladesh envisioned the president as the constitutional head of state while executive authority would ordinarily rest with the prime minister and cabinet. Although Bangladesh briefly experimented with an executive presidency after the Fourth Amendment in 1975, the restoration of parliamentary democracy through the Twelfth Amendment in 1991 returned the presidency to a largely ceremonial constitutional office.
That institutional history matters because parliamentary democracies generally distinguish sharply between ceremonial heads of state and executive governments.
The origins of presidential immunity itself lie much deeper in constitutional history. Under Britain's unwritten constitution, the doctrine that "the King can do no wrong" meant that the sovereign could not personally be sued or prosecuted.
But the principle was never intended to create personal privilege. Rather, it reflected the constitutional fiction that ministers, not the monarch, exercised executive power and therefore bore political responsibility.
Modern parliamentary republics adapted that doctrine rather than abandoning it. Instead of protecting hereditary monarchs, constitutions granted temporary immunity to elected ceremonial presidents so that they could discharge constitutional duties free from litigation, political harassment or criminal proceedings while in office.
The emphasis was on protecting the institution, not necessarily the individual who occupied it.
India offers Bangladesh's closest constitutional comparison.
Article 361 of the Indian Constitution provides immunity almost identical to Bangladesh's Article 51. Criminal proceedings cannot be instituted against the president during tenure, and no arrest or imprisonment is permitted while in office.
Yet the Constitution is similarly silent about permanent immunity after retirement. Constitutional scholars have generally interpreted the protection as lasting only during the presidential term, although India has never had occasion to prosecute a former president. The question therefore remains largely theoretical.
Pakistan's Constitution follows a similar approach under Article 248, protecting an incumbent president from criminal proceedings but saying little about post-presidential liability. No former Pakistani president has been prosecuted solely for constitutional decisions taken while serving as ceremonial head of state.
Sri Lanka, which long operated a powerful executive presidency, historically granted even broader constitutional immunity. But successive constitutional reforms have gradually narrowed those protections, reflecting an international trend towards greater accountability of public office holders.
Elsewhere, former heads of state have increasingly found themselves before criminal courts, though usually for personal criminal conduct rather than constitutional decision-making.
Israel offers perhaps the clearest example. Former president Moshe Katsav resigned before the completion of his term, was prosecuted for rape and other sexual offences, convicted and sentenced to seven years in prison.
The prosecution reinforced a constitutional principle shared by many democracies: immunity protects the office during tenure but does not permanently shield the individual after leaving it.
France reached a similar milestone when former president Jacques Chirac became the country's first former head of state convicted of corruption in 2011 over offences committed before his presidency.
South Korea, though operating under a presidential rather than parliamentary system, has prosecuted multiple former presidents, including Chun Doo-hwan, Roh Tae-woo, Lee Myung-bak and Park Geun-hye, illustrating the global decline of the idea that former heads of state enjoy lifelong legal protection.
Yet none of those cases perfectly mirrors Bangladesh's present dilemma because Shahabuddin is not accused of private criminal conduct. The controversy instead centres on decisions taken while exercising constitutional authority during one of the country's most turbulent political transitions.
Following Sheikh Hasina's departure from Bangladesh in August 2024 amid a mass uprising, Shahabuddin dissolved Parliament and administered the oath to the interim administration headed by Muhammad Yunus.
Supporters describe those actions as necessary to prevent a constitutional vacuum. Critics argue that some decisions exceeded constitutional limits.
The legal significance of that distinction cannot be overstated.
Virtually every constitutional democracy distinguishes between personal criminal acts and official constitutional functions. A former president accused of bribery or sexual assault occupies a very different legal position from one whose liability stems from decisions taken while exercising constitutional powers.
Courts are generally far more reluctant to criminalise the latter because doing so risks inviting retrospective political retribution against future heads of state.
Home Minister Salahuddin Ahmed has already stated that the government has found no legal grounds to proceed against Shahabuddin, arguing that the former president acted within his constitutional responsibilities and enjoyed constitutional protection. That position, however, remains an executive opinion rather than a judicial determination.
Ultimately, neither politicians nor governments will settle the constitutional question.
If any attempt is made to prosecute a former president for official acts performed in office, the issue would almost certainly reach the Appellate Division of the Supreme Court. Judges would then be required to answer a question the Constitution itself leaves unresolved…whether Article 51 creates temporary immunity, permanent immunity for official acts or merely protects actions that remain within constitutional authority.
Whatever answer the court eventually gives will extend far beyond Mohammed Shahabuddin.
It will determine how future presidents exercise constitutional discretion during national emergencies, how far Bangladesh's parliamentary system protects the neutrality of its ceremonial head of state and, ultimately, where the country chooses to draw the line between constitutional accountability and constitutional stability.
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