What causes crisis over constitutional reform

During the term of the previous interim government, the issue that sparked the most discussion about reform was constitutional reform. Initiatives such as forming a constitutional reform commission, establishing a national consensus commission for dialogue among political parties, the formal signing of the July National Charter based on extensive discussions and consensus (with some dissenting opinions from various political parties), the issuance of the July National Charter (Constitution Reform) Implementation Order, and the drafting of a referendum ordinance were undertaken.

On 12 February, national parliamentary elections and a referendum were held. Afterward, elected parliament members of the opposition parties, Jamaat and NCP, took two oaths on 17 February—one as members of the 13th National Parliament and another as described in the referendum ordinance for the Constitutional Reform Council. BNP, having elected members with a two-thirds majority, refrained from taking the oath of the Constitutional Reform Council.

Despite at least two rounds of parliamentary discussions on two separate adjournment proposals regarding the formation of the Constitutional Reform Council and the implementation of the July Charter, the government and the opposition could not reach any consensus. BNP's stance is to implement the July National Charter signed with notes of dissent through conventional methods of constitutional amendment. On the other hand, the opposition coalition, consisting of Jamaat-NCP, demands the full implementation of all the main proposals of the July Charter without notes of dissent. They believe there is a need to establish a Constitutional Reform Council for this.

One of the reasons for such opposing stances between the government and the opposition parties is that the notes of dissent provided by political parties, especially the BNP, on the consensus issues of the July Charter were not included in the July National Charter Implementation Order. For example, the issue of forming an upper house in parliament can be mentioned. The July Charter proposed that 100 members of the upper house would be elected through a proportional representation (PR) method based on votes of the lower house.

The BNP had a different opinion on this matter, suggesting that the upper house should be formed based on the proportional representation method of lower house seats. However, in the July Charter Implementation Order, this dissent of the BNP was disregarded, and the question of the referendum was determined.

There are several other examples like this where we find that not only the BNP but also differing opinions of some other political parties were not adequately addressed in the July National Charter Implementation Order.

From the perspective of constitutional law, this order, in reality, lacks any basis. Highlighting this, Home Minister Salahuddin Ahmed stated in Parliament on 5 April, ''The July National Charter Implementation Order is a “colorable legislation” (disguised law). After the first Parliament began on 7 April 1973, the authority to issue presidential orders ceased. It was imposed on them as a document of national deception by force. They were compelled to vote in a referendum through subterfuge.’ (Prothom Alo, 5 April 2026)

Many might remember that during the interim government, there was temporary complexity regarding how to implement the July Charter. At that time, by issuing a presidential order concerning the referendum, a message was given to the public that both BNP and Jamaat were satisfied. Because, as per the BNP’s demand, it was stated in the order that the parliamentary elections and the referendum would be held on the same day. On the other hand, the order gave preference to Jamaat's demand for the PR method in forming the upper house.

Legislating in this way, beyond the July National Charter agreed upon and signed with notes of dissent, was an example of the interim government's short-sighted decision. We must not forget that the legal and political status of the July National Charter agreed upon and signed with notes of dissent is much greater than any presidential order issued without any constitutional basis. Therefore, the demand for forming a constitutional reform council through this constitutionally unsound order is also weak in the eyes of the law.

Jamaat-NCP wants constitutional reform, wants the implementation of the referendum's outcome. BNP has not stated that it doesn’t want these; the BNP has spoken about the constitutional process. It won't be logical to grant legitimacy to constitutional reform or anything else now without regard for rules and regulations just because many things were done previously against the norm.

It is often said that a dictatorial system was established in the country by using a legal framework—it is correct, but not entirely, partially. A system can become dictatorial not only due to the legal framework but also due to various other reasons such as social, cultural, and political factors. An attempt is made to legitimise autocracy and make it firm through a legal framework. If reforms deviate from the basic concepts of law, the likelihood of them being sustainable is low.

In Parliament on 5 April, NCP Member of Parliament Akhtar Hossain stated, there are some proposals in the July Charter that would change the constitution's fundamental structure. If included through amendments, they won't be sustainable. For this reason, they advocated for a Constituent Assembly in the Consensus Commission. BNP suggested amending through the Parliament. (Prothom Alo, 5 April 2026)

Those familiar with the evolution of constitutional law know that the higher court has the power to declare original provisions of a constitution, formulated by a Constituent Assembly, unconstitutional if it wishes to use its interpretative authority. The Supreme Court’s ruling on the 16th amendment to the constitution is noteworthy here. The power of the parliament to remove judges of the higher court, initially included through the Constituent Assembly in the 1972 constitution and later added through the 16th amendment in 2014, was declared unconstitutional by the Supreme Court in 2016 and 2017.

So far, all kinds of legal arguments have been presented from BNP's side in Parliament to prove that the government has no legal or constitutional obligation to form the constitutional reform council. Even though serious legal questions about the constitutional basis of the July Charter Implementation Order have been raised by BNP Members of Parliament, the opposition members seem unable to provide any appropriate response or reasoning in legal terms.

Referring to the referendum under the presidency of Ziaur Rahman in 1977, Jamaat-affiliated lawyer Shishir Monir recently asked at a discussion meeting, ''Was there a referendum in the constitution then?'' (Jugantor, 2 April 2026). He said, ''The referendum came into the constitution in 1978. That too through Martial Law Proclamation. Now they instruct us by distorting, post-morteming, tearing, and cutting the constitution by imposing Martial Law. What's constitutional and what's not? These don't suit coming from them. Why would they say these?’ (Jugantor, 2 April 2026)

This lawyer must be well aware that the Martial Law Proclamation was issued while the constitution remained suspended, and later through military decrees, all activities conducted, including the 1977 referendum, were legitimised through the Fifth Amendment of the constitution. Though later the Fifth Amendment faced constitutional legality questions in higher courts.

It is noteworthy that in 2025, when issuing the order concerning the referendum, the constitution was not in a suspended state; instead, the order was issued while the constitution was in effect, and the interim government's decision is largely responsible for creating the current crisis regarding constitutional reform.

While justifying the order concerning the referendum, one of the commission members, lawyer Sharif Bhuiyan, wrote a column in Prothom Alo on 18 December 2025. In that piece titled ‘The Legal Basis of the Referendum and Other Relevant Aspects,’ he mentioned, ‘To understand the constitutional basis of the referendum, one must understand the constitutional basis of the government led by Professor Yunus. Because, the constitutional foundation of both is similar. It's not true to say that the [Yunus] government was based on a written constitution. Nevertheless, [this] government was constitutional and legitimate. After the Prime Minister fled the country, implementing the written constitution became impossible. Because, the constitution was not designed considering such a situation. Hence, the current government’s constitutionality and legitimacy must be sought in principles outside the written constitution [like the “Doctrine of Necessity”].’

Regarding Sharif Bhuiyan’s rationale, it must be said that it is true the government wasn't formed entirely by the constitution; however, not following the constitution without suspending it or following it only partially for convenience cannot be considered a democratic behaviour. It is noteworthy that Sharif Bhuiyan did not mention Article 106 of the constitution anywhere in his entire piece.

Was the formation of the government after August 5, invoking the Supreme Court’s decision under Article 106, a significant event? If so, why is there an attempt to avoid discussing it? This naturally raises questions about the process of obtaining the reference to Article 106 from the Supreme Court.

On the question of reforms, the BNP undoubtedly has a moral responsibility. This topic often arises in the speeches and statements of the opposition party. However, it seems that there is a conceptual difference between the government and the opposition coalition regarding the very issue of reforms. Where for BNP, constitutional reform means amending certain provisions of the prevailing constitution with the force of majority, for Jamaat-NCP, reform means discarding the 1972 constitution and drafting a new one. Some clarification is needed on these issues.

Firstly, there is no longer anything known as the ''72 constitution. The ''72 constitution itself has undergone numerous amendments and currently exists in a completely altered form. Secondly, this crisis has arisen because the Constitutional Reform Commission and subsequently the National Consensus Commission did not address the conceptual issues concerning the reform.

At a meeting of the Constitutional Reform Commission on 26 October 2024, the scope and purpose of the reform were determined. It was stated in the adopted proposal that the reform would include ''a comprehensive amendment, deletion, revision, reorganisation, and rewriting of the constitution reflecting public aspirations, including a review of the current constitution.’

By keeping the scope of reform broad, the commission might have thought that it would be possible to complete constitutional reform based on consensus under a single umbrella embracing all political ideologies. But in reality, this wasn’t feasible; rather, in some instances, the Consensus Commission tried to impose its decisions. Consequently, a crisis over constitutional reform is now evident.

#Imran Azad is a researcher on law, courts, and constitutional matters.

*The opinion is of the author's own.

#This article, originally published in Prothom Alo print and online editions, has been rewritten in English by Rabiul Islam