Bangladesh at a Constitutional Crossroads: Reform or Overhaul?

Dr. Ridwanul Hoque*

Introduction

The longest-serving government (2009—24) in Bangladesh fell in early August 2024 following a deadly nation-wide unrest of a scale not seen since Bangladesh’s independence. The mass uprising, led by students who were demonstrating for equal opportunities in public employment since mid-July 2024, compelled the-then prime minister Sheikh Hasina to resign and flee to India on 5 August. Ms Hasina’s resignation was inevitable, albeit surprising, after the killing of over a thousand people including 70 children by the brutal use of force by state agencies. The revolution has since been known as the ‘July Revolution’.

August 2025 ushered in a watershed moment in Bangladesh’ political and constitutional history, with high hopes for a new order. Student leaders of July Revolution demanded that a new constitution be framed to prevent the rise of autocracy in future. The interim government, which was installed on 8 August 2024, appointed a Constitution Reform Commission (CRC) in October 2024 to make recommendations for constitutional reform with a view to establishing a “representative and effective democracy”. The CRC handed over its report to the government on 15 January 2025.

In this short commentary, I will shed critical light on some of the recommendations of CRC, with an analysis of the extent to which they are pragmatic and implementable. As reported below, the Interim Government has established a national consensus commission, with the sole objective of attaining an all-party political consensus for the reforms. I argue that the future of major constitutional reforms is uncertain because political parties are showing their unwillingness to agree on major proposals such as the prime minister’s term limit of two terms.

CRC’s Key Recommendations

The CRC has done a commendable task by completing its report in time, but it recommended some sweeping changes into the constitution such as the introduction of a constitutional council that would see an over-empowered president. Interestingly, however, except for one or two notable exceptions such as Nizam Ahmed and Arafat Khan, the CRC’s report has not attracted much attention, analyses, and commentaries since its publication.[1]  On the other hand, the major political party, the Bangladesh Nationalist Party (BNP), has shown tactful, and sometimes direct, opposition to the recommendations.

I will cover this aspect of practical implications of the CRC report in the latter part of this commentary. First, the key (areas of) recommendations need to be briefly discussed. CRC focused on seven areas: (i) core values of the Constitution (fundamental state principles); (ii) institutional balance of power; (iii) limiting prime minister’s absolute powers; (iv) decentralisation of the judiciary; (v) a strong local government system; (vi) an entrenched interim government system; and (vii) the expansion of the scope of fundamental rights and their constitutional protection. Not all these areas will be covered in this commentary.

A Critique Of The Major Reform Recommendations

Fundamental Constitutional Principles

The CRC recommended “equality, human dignity, social justice, pluralism, and democracy” as fundamental state principles. The current Constitution entrenches four fundamental identity principles — democracy, secularism, socialism, and nationalism—of which the omission of secularism, socialism, and nationalism was recommended. It should be noted that these three principles are the most contested identity principles in Bangladesh. The principles of secularism and nationalism had gone through many revisions. Currently, while secularism (revived in 2011 after it was omitted in 1977) remains a state policy principle, it co-exists with Islam as state religion. In the same way, while nationalism is an existing principle, it remains modified with the notions of collective ‘Bangali’ nationalism and a citizen’s individual identity as a ‘Bangladeshi’. Shortly, the CRC favours the deletion of secularism and wants Islam as state religion to stay. There are, understandably, reasons for this stance. For example, the Islamic political forces and the major right-wing religion-based party, Jamaat-e-Islami want state religion instead of secularism. These reasons apart, the recommendation is susceptible to being accused of discriminatory against other religions and hence anti-democratic. Omission of secularism without a guarantee or religious equality and minority protection is against inclusive constitutionalism and pluralism. And the Constitution cannot effectively protect religious and other minorities if it recognises one religion as a state religion. 

Bi-Cameral Parliament

The Bangladeshi Parliament, ‘the House of the Nation’, is a 350-member unicameral legislature, composed of 300 directly elected members and 50 women members proportionately selected by parties. The CRC has proposed a bi-cameral legislature. It proposed a representative lower house of 400 seats, of which 100 seats would be reserved for women to be elected via direct elections. The upper chamber is to be constituted by 105 seats, of which 100 seats would be elected via a Proportional Representation system (hereafter PRS) and the remainder are to be nominated by the President.

This is a mega structural reform proposal, fraught with the risk of failure in a unitary country like Bangladesh. Generally, bicameralism is more common in federal, large and presidential states. By contrast, unicameralism is more common in unitary and small states with a parliamentary system. In France and Italy, which are unitary states, parliaments are bi-cameral. France’s upper house is a large forum of 348 senators, indirectly elected by mainly municipal councillors and members of the lower house. In case of Italy, senators used to be elected earlier directly as well as on a proportional representation basis (along with some appointed by the president). That system has now been changed to direct election.

The PRS system has never been tested in Bangladesh on a wider scale. For ‘reserved women seats’ in parliament, the current system is based on proportional representation on a party line (parties elected in parliament nominating women candidates proportionately). Successive governing parties have abused this system to increase their strength in numbers in parliament, with a view mainly to amending the Constitution to create and augment incumbency advantage to themselves.

The CRC has not clarified which of the differing system of PRS will apply to the election of proposed upper house. The political parties now active in politics have not agreed to any method either. In Bangladesh, the political culture is that of a dominance by the governing party and its leader in the nomination of party candidates. Without direct elections to the upper house or a PRS based on voters’ choice of parties, there is no guarantee that upper chamber members will be fairly elected.

The primary purpose of proposing an upper house is to ensure checks on parliament’s legislative and constitution-amending power (secondary constituent power). It is unclear how the proposed upper house will be able to act as a check and balance on the representative chamber. Bangladesh’s parliamentary problem is one of an overweening executive department with a strong fist over the parliament and the lack of a strong and willing judiciary to exercise constitutional check over the parliament. Indeed, for the balance of power of a unicameral parliament, other good governance institutions such as an independent electoral commission, or robust parliamentary standing committees, or an independent judiciary can be an alternative to an upper chamber. In CRC’s report there is nothing or very little about the judiciary’s agency to exert constitutionally legitimate checks on parliament in particular.

Limiting The Prime Minister’s Power

A major goal of the CRC recommendations was to suggest reforms for a limited and responsible government. In its view, the current constitutional scheme has made prime minister omnipotent, all powers being concentrated in one person. To overcome this problem of imbalance of powers, the CRC, among others, recommended that:

1. a prime minister must not serve for more than two terms; and

2. the prime minister must not be the president of the party or the leader of the house at the same time
   

Other recommendations linked to the above goal of limiting the prime minister’s powers are that (i) the term of parliament be reduced from five to four years, (ii) there will be two deputy speakers in the lower chamber of parliament of which one should be from the opposition, and (iii) chairs of parliamentary standing committee shall be from amongst opposition parties.

While the introduction of a term limit along with the reduced tenure of parliament is a good recommendation, political parties disagree over the number of terms and the parliament’s tenure. However, the recommendation that party leadership and the prime ministership be split is difficult to implement and is against established conventions of parliamentary constitutionalism. It is the call of the governing party, voted to power by people, to decide that their party leader and the head of the government will be two individuals. If the prime minister is not the parliamentary leader, or if the governing party does not have leadership over parliamentary committees, there will potentially be a dysfunctional parliament. Again, it should be the preserve of political parties to agree to chairpersonship of standing committees. Means of checks on parliamentary excesses need to be devised in the light of the long-standing constitutional conventions of a parliamentary democracy.

In order to limit prime minister’s power, the CRC has also proposed measures aimed at a balance between the powers of the president and that of the prime minister. This is a dangerous proposition in a parliamentary democracy. In a parliamentary democracy there is no need of balancing the president’s powers against the prime minister’s powers. That type of balance is required in a semi-presidential system as in France or in the much-discussed Tunisian system. An empowered president in a parliamentary democracy will, in all likelihood, lead to autocracy or presidential coups as has happened in Tunisia over the recent years following their post-revolution constitutional change in December 2010.

I have written elsewhere that one better approach towards constitutionally limiting the power of the prime minister is to require the executive power of the state to be exercised by the cabinet under the leadership of the prime minister, which is not the case under the current constitutional scheme. Currently, that power is exercisable by the prime minister, of course subject to the constitutional provisions. In addition, there must have been an independent judiciary to exert control over executive excesses and overreach.

National Constitutional Council

The CRC recommended the establishment of a nine-member National Constitutional Council (NCC) to ensure accountability and transparency in state functions and to balance powers among different branches of government. The NCC, to be constituted by President, Prime Minister, Chief Justice, leader of the opposition, and politicians, is to ensure transparent appointment of certain commissions and constitutional office bearers such as the Attorney-General.

In South Asia, Nepal and Sri Lanka have similar national councils, tasked with maintaining independence and accountability of fourth-branch democratic institutions/commissions such as the electoral commissions. However, unlike in Nepal and Sri Lanka, Bangladesh’s NCC is to be chaired by the President and, in their absence, by the Chief Justice. Exclusion of the prime minister from NCC’s leadership when the president is absent is motivated by the same flawed approach to limiting the prime minister’s powers as discussed above.

The CRC has proposed that the NCC is to be downsized during the time of interim government in the election time. At that time, the NCC is to be composed of the President, the Chief Advisor, Chief Justice, and two Advisors recommended by the Chief Advisor as members. There is no representation from the citizenry on the NCC. Composition of election time NCC is problematic, because the NCC has the responsibility to select Chief Advisor of the Interim Government.

One further important responsibility recommended for the NCC is to endorse the declaration of a state emergency. This is an appreciable improvement over the current system according to which the President can declare state emergency on the advice of the Prime Minister. In practice, however, the Prime Minister has the power to declare an emergency as in any parliamentary democracy.

The Interim Government System

Bangladesh’s constitution once had provisions for a Non-party Caretaker Government (NPCTG), tasked to hold and oversee free and fair national elections within ninety days of the dissolution of parliament. The NPCTG was constitutionalised via the 13th Amendment to the Constitution in 1996. Ms Hasina’s party, Awami League, won elections in June 1996 and December 2008, which were held under the auspices of the NPCTG. It was the Awami League as the opposition that was the driving force for the internalisation of election-time caretaker government. However, the same party unilaterally de-constitutionalised the NPCTG system via the 15th Amendment to Constitution in 2011. The Awami League government at the time justified the omission of the NPCTG system by referring to a 4 to 3 Supreme Court’s decision in 2010 invalidating the 13th Amendment. In a controversial ruling, the majority court reasoned that any unelected government for whatever short period it might be in power is undemocratic and hence unconstitutional, ignoring the very fact that the NPCTG was a constitutional device adopted by major political parties through a consensus to consolidate democracy.[2]

The omission of the NPCTG system in 2011 sowed the seeds of a protracted political crisis in Bangladesh. Not surprisingly, the major opposition parties boycotted the next general election held in 2014. Awami League formed the government with no real opposition in parliament.[3] The next two national elections in 2018 and 2024[4] were massively rigged. This is how Ms Hasina ruled the country for three consecutive terms. During her long tenure, she quite visibly graduated the country from a democracy to an autocracy. Lately she has been accused of several thousand forced disappearances and a deplorable account of human rights violations as well as mammoth corruption.

The CRC has recommended the revival of the NPCTG system, although in the name of ‘interim government’.  In the meantime, disposing of a post-July-Revolution challenge to the 15th Amendment, the High Court Division of the Supreme Court on 17 December 2024 reinstated the non-party caretaker government. An appeal against this ruling is currently pending before the Appellate Division. It is not surprising, therefore, that the CRC recommended the revival of NPCTG. What’s new in the CRC’s recommendations and not in the Court-restored system of NPCTG is the selection of the Chief Advisor of the ‘Interim Government’. Under the previous NPCTG system, the last retired Chief Justice was to be the first choice for Chief Advisor. That provision led to an over-politicisation of the judiciary. Disagreement between the major parties about the ‘last-retired’ Chief Justice for the office of Chief Advisor in late 2006 ended up in a de facto military coup in January 2007, a military-backed caretaker government was installed that remained in power for two years instead of constitutionally mandated 90 days.    

The CRC recommends that the Chief Advisor of the Interim Government is to be chosen by NCC from among citizens (first choice[5]) by a vote of 7 members of the NCC. This is a welcome suggestion and is conducive to the independence of the judiciary. The leading party at the moment, the BNP, is generally supportive of the idea of constitutional Interim Government. However, the exact from of the Interim Government system will depend on the level of agreement among political parties in the coming days.  

Judicial Independence

The Commission made several broad-based recommendations for the independence of the judiciary. It recommended for the establishment of a seven-member Judicial Appointments Commission (JAC) for appointments to the higher judiciary. Of the seven members, five are judges of the Supreme Court including the Chief Justice, one is a citizens’ representative and the other member is the Attorney-General. For this recommendation, the Commission relied on the recommendations of the Judicial Reforms Commission (JRC) that was established to propose reform of the judiciary. Based on the advice of JRC, the Interim Government has in the meantime promulgated an Ordinance, establishing a seven-member ‘Supreme Judicial Appointments Council,’ where a retired Appellate Division judge is included.

In the already formed Supreme Judicial Appointments Council (SJAC) as well as the CRC-recommended JAC, there is a conspicuous lack of representation of citizens and politicians (peoples’ representatives). Nor is there a system of public hearing of the candidates. That the judges in the SJAC/JAC form a majority is fully commensurate with the notion of judicial independence. However, in JAC non-judicial representation is almost absent, which deprives citizens from participation in public decision-making concerning their judiciary. In this regard, a quick comparison can be made with the Pakistani scheme. The current Judicial Commission of Pakistan (JCP), first introduced in 2010,[6] has the law minister and few members of parliament on board, which makes the JCP more democratic. Pakistan’s 26th Constitutional Amendment of 2024, however, reduced the number of judges in the JCP. Now, out of 13 members, 5 members are judges. Making the judges a minority in the JCP is seen to be an affront to judicial independence. Political history shows that this change was indeed made with a clear objective of exerting political influence over the judiciary. As the Internal Commission of Jurists’ Secretary General said, “[t]hese changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration”. These changes in the Pakistani system, however, can serve as an important reminder that elected politicians are an important stakeholder in the judicial appointment process, and exclusion of them altogether is not conducive to constitutional politics.

For the appointment of Chief Justice, the CRC recommended that the most senior judge in the Appellate Division be appointed the Chief Justice of Bangladesh. This is a praise-worthy suggestion in the context of the unwholesome politics in the appointment of Chief Justices by ignoring the seniority principle.[7] The seniority principle ought to be recommended for the elevation of High Court Division judges to the Appellate Division. The current Chief Justice of Bangladesh extra-curially  wrote recently that compliance with the seniority principle “would have deterred arbitrary and controversial selection of candidates (from among High Court division judges) for elevation to the Appellate Division at the whim of the executive acting through the chief justice”.

Constitutional Amendments

CRC recommended that a constitutional amendment should require two-thirds majority in each chamber of parliament, followed by an approval in referendum. The logic behind this has been that the governing party should not have a free hand in amending the constitution for their own electoral gains. These concerns are valid, but the proposal, if implemented, might potentially make the Bangladeshi Constitution an unamendable constitution. It is a wrong idea to require a referendum for every amendment to the Constitution. This type of rigidity is rare in global constitutionalism, which is the case with the Australian Constitution.[8] Amending a national constitution is a generational privilege of the people of a country, which cannot be withered away by a rigid amendment clause. In 2011, Bangladesh introduced an eternity clause, article 7B, making the large part of the Constitution unamendable. The Commission, appreciably, recommended the omission of this bewildering eternity clause (art 7B), which I earlier critiqued as unconstitutional. Interestingly, however, the CRC’s approach to constitutional amendment is inconsistent. By proposing a compulsory referendum for constitutional amendment, it rendered the constitution un-amendable whilst the recommendation for the omission of the current eternity clause promotes the idea of a flexible constitution. The CRC would have done better by recommending a compulsory referendum for amendments to designated basic features of the Constitution.

Conclusions: Implementational Challenges

The Interim Government has not made it clear how it would implement the CRC’s recommendations. Unlike recommendations of most other commissions the government established, the recommendations of CRC will require constitutional amendment. The post-July-Revolution politics has witnessed a heated debate on the replacement of the 1972 Constitution with a new one.

The leaders of the July Revolution have recently formed a political party, National Citizens Party (NCP). The NCP has demanded that the next general elections should be for a constituent assembly so that a new constitution can be adopted. I have written elsewhere that the new constituent people after the July Revolution have the authority to adopt a new constitution only through a constituent assembly, but doing that would not be pragmatic. Provided that a consensus is achieved among major political parties and a pre-election contract can be reached, any agreed reforms can be materialised via an amendment to the Constitution. If the all-party consensus is reached, even a new constitution can be enacted.   

Achieving a political consensus on constitutional reforms, however, is the most challenging task in the current environment. The Interim Government recently formed a National Consensus Commission under the leadership of Chief Advisor to reach a minimum consensus on the reforms that can be done in the short and long term.

While the process of national consensus is continuing with the object of a July Charter of agreed reforms by all stakeholders, senior leaders of the BNP have expressed the party’s unwillingness to adopt a new constitution or to implement the recommendations of the CRC. The BNP leaders have reiterated that any reforms implementation is the job of an elected government, and they demand that the next general elections be held as soon as possible. The Secretary-General of BNP in particular has bashed the CRC’s recommendations for its proposals aimed at weakening the elected branches of the state, the parliament and the executive, critiquing specifically the innovation of national constitutional council. On the other hand, Jamaat-e-Islami, the largest religion-based right-wing party has demanded that ‘pluralism’ as a core principle of state policy be dropped from the Constitution, which is a serious objection to democratic values and religious or legal equality. The party has also demanded the inclusion of Islam into the Constitution.

There is opposition to the recommendations of other reform commissions as well. Relevant for this commentary are the observations of the Election Commission vis-à-vis electoral reforms. The Election Commission of Bangladesh has objected to certain recommendations regarding the delimitation of constituencies, which demands that the power to determine delimitation of constituencies should belong the Election Commission alone, not to any other commission.

On the other hand, the Chief Justice of Bangladesh has commented that the “long-term sustainability” of the reform initiatives undertaken by the Interim Government “is largely dependent on the independence of the judiciary.” The Chief Justice emphasised that “a truly independent judiciary can only function effectively once its institutional autonomy is secured through the establishment of a separate Supreme Court secretariat.” The CRC did not flag the significance of such a Court Secretariat, which the judiciary has been demanding for a while.

The future of major constitutional reforms is uncertain. Nevertheless, the CRC report has opened up a discourse of constitutional reforms. Whether implemented or not, those recommendations will work as a constant reminder of genetic and engineered defects in the 1972 Constitution of Bangladesh, which has been amended seventeen times so far, mostly for the incumbency advantage of the successive governing parties. The CRC’s report unearthed sources of those incumbency advantages as well as the unaccountability of the prime minister and the government.

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*Dr. Ridwanul Hoque is former Professor of Law, Dhaka University. His areas of interest are comparative constitutionalism, judicial activism and politics, migration law, human rights of vulnerable groups, and law and society. He is the author of Judicial Activism in Bangladesh: A Golden Mean Approach (2011) and co-editor of the volume — Constitutional Foundings in South Asia (2021)

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[1] For a short commentary, see Nizam Ahmed, “Parliamentary Democracy or the Restoration of ‘Basic Democracy’”, Daily Prothom Alo, Dhaka, 12 March 2025.

[2]See Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 1. For a critique of this decision, see Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Politics of Unconstitutional Amendments in Asia (Routledge 2022) 228.

[3] The Jatiya Party that was given the status of the opposition party was indeed an ally of the governing party. Moreover, the Jatiya Party joined the 2014 cabinet.

[4] Although the BNP joined the 2018 elections to avoid deregistration of their party, they were ‘given’ only 7 seats out of 300 contested seats. The BNP boycotted the 2024 elections.

[5] Under the earlier system (now restored by the Court), the first choice is the last retired chief justice of Bangladesh, which formula is controversial and in conflict with the independence of the judiciary.

[6] See the 18th Constitutional Amendment to the Pakistani Constitution. Following a legal challenge, Judicial Commission of Pakistan was later reconstituted via the 19th Amendment.

[7] On the principle of seniority, see the Pakistani case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.

[8] Because of this rigidity, a proposed amendment to the Australian Constitution to recognise Indigenous nations and their autonomy failed in the 2023 referendum.