Ridwanul Hoque is a former professor of law at Dhaka University. He studied and conducted research at the University of Cambridge and the University of London. His authored and edited books on constitutions, constitutional law, and judicial activism in Bangladesh and other South Asian countries have been published by renowned international publishers. He spoke with Prothom Alo on constitutional reform, the July Charter, judicial independence, and proportional representation. Monzurul Islam conducted the interview.
Prothom Alo :
After the 2024 mass uprising, the constitution has become one of the most debated political issues. Many argue that the existing constitution served as the foundation for authoritarian rule. Others blame our political culture. In this case, where does the greater responsibility lie?
Ridwanul Hoque: There is no denying that our constitution has weaknesses or limitations, but I don’t think those weaknesses alone caused the rise of authoritarianism. Authoritarian leaders or governments have recently emerged even in countries with democratic constitutions. In Bangladesh, after Awami League came to power in 2009, democracy began to regress—what we call “democratic backsliding.” Eventually, it turned into outright authoritarian rule.
So, I would hold our political culture more responsible than the constitution. Our political culture lacks democratic practices; it cultivates cult worship and concentrates absolute power in a single leader. These elements, rather than the constitution, played the bigger role in Sheikh Hasina’s authoritarian transformation.
Prothom Alo :
After the fall of Sheikh Hasina’s authoritarian government, the interim government took oath under the existing constitution. Some intellectuals and theorists supportive of the mass uprising have described this as a “constitutional counter-revolution.” How do you see it?
Ridwanul Hoque: How one interprets the constitution largely depends on the perspective from which one views political change in a particular context. The constitution is not just black-and-white letters in a book—it is more than that.
I do not think there is any basis to call the interim government’s swearing-in a constitutional counter-revolution. Let me explain. First, it is not entirely accurate that the interim government took oath strictly under the constitution. At that time, the constitution did not provide for an interim government. Even the caretaker system had been abolished by the 15th Amendment under the Awami League government. So, after the fall of the Hasina government on 5 August, a constitutional vacuum arose, and the country was without a government for three days.
To fill this vacuum, the interim government had to take oath outside the formalities of the constitution. There was no alternative. This can be called an unwritten constitutional amendment through the sovereign will of the people. The advisers of the interim government took oath in the same manner as prime ministers and ministers. In that sense, they did comply with the constitution. Later, they did not disregard or annul the constitution. Therefore, the interim government is constitutional and legitimate—its foundation lies in the sovereign will of the people, the true owners of the state.
Those who speak of a constitutional counter-revolution perhaps want to suggest that a revolution took place, and that its outcome should have been a revolutionary government where the constitution ceased to function. Such a view is baseless, and had that been the case, it would have caused serious damage to constitutional stability.
Moreover, those who argue about a counter-revolution are overlooking some issues. In today’s world, elections and constitutional changes involve direct roles for the international community. The United Nations, for example, has guidelines on how new constitutions should be framed in democratic states. The foremost priority is ensuring state stability and creating an environment for the new government to function.
Take the example of 1971. When Bangladesh emerged through the Liberation War, we did not start everything from scratch—particularly in constitutional and legal matters. Continuity was essential to run the state amidst such vast changes.
After independence was declared, the provisional constitution was issued through the Proclamation of Independence. In 2024, during the mass uprising, our constitution was still in force. So, I don’t think the uprising annulled the constitution, nor could it have. Annulment would require elections and a constituent assembly.
Prothom Alo :
A commission was formed to recommend constitutional reforms. It has submitted its report to the government. Later, a Consensus Commission was formed, which is now holding discussions with political parties. Yet no consensus has been reached on the constitution. Why this deadlock?
Ridwanul Hoque: The process of forming the Constitutional Reform Commission itself is partly to blame. It was created through a “top-down model.” Had it been bottom-up—meaning with active participation of political parties as representatives of the people—the outcome might have been different, and many of the current complications could have been avoided.
If you look at the commission’s Terms of Reference, it was tasked with making recommendations but not with clarifying how reforms would be implemented. Later, both the government and the Consensus Commission said reforms would be based on political consensus over the report. But the actual process remains unclear.
The main obstacle now is the sharp disagreements among political parties. Some demand an entirely new constitution, while others want to keep the existing one with amendments. Several proposals are on the table, and some parties remain rigid.
We must remember that the constitution is the crystallisation of politics. Reform requires at least a minimum level of political consensus. The lack of such consensus is now evident.
Prothom Alo :
The Consensus Commission is working with political parties to finalise the July Charter. Some parties are demanding that it be given legal basis; others want it placed above the constitution. How do you see this?
Ridwanul Hoque: I’ve seen the draft of the July Charter. I know discussions with political parties are ongoing, and the draft is being revised. That means it’s not final yet. But what has become a focal issue is whether the Charter should be given legal standing or placed above the constitution.
I believe the July Charter should in no way be placed above the constitution. We must understand that the July Charter is not a law—it is a political charter, a compact among political parties. So, there is no need to place it above the constitution.
The 2024 mass uprising is a major event in our history. Many sacrificed their lives, many were injured, and many risked everything. Through that uprising, we overthrew long-standing authoritarian rule and resumed a democratic transition. Because of this, the July Charter deserves state recognition, and such recognition is justified. But it must not be conflated with law or the constitution.
One possible solution is recognition through a government gazette. Later, during constitutional reform by an elected parliament, it can be referenced in a constitutional schedule. But in no way can the July Charter be placed above the constitution or treated as law. Recently, the Consensus Commission has suggested implementing it through a constitutional order under Article 22 of the July Declaration. I think that is unacceptable, because it implies making the July Declaration a “constitution above the constitution.”
Let’s move slightly away from the Constitution and talk about the judiciary. Recently, the High Court gave a verdict concerning Article 116 of the Constitution. The ruling calls for a return to the original version of Article 116 as it was in the 1972 Constitution. As a result, many are hopeful that lower courts will now come under the authority of the Supreme Court and be free from the control of the law ministry or the executive branch. Can this be considered progress toward judicial independence?
Ridwanul Hoque: I’ve seen reports in the newspapers about the court’s verdict on Article 116. I’ll be able to comment in more detail once the full judgment is published. However, it’s worth making a few general observations. In the original 1972 Constitution, control over lower court judges was vested in the Supreme Court. At that time, Bangladesh followed a parliamentary system of government.
In 1975, during Sheikh Mujibur Rahman’s rule, the Fourth Amendment transferred this authority to the President. This effectively destroyed the independence of the judiciary. Later, under Ziaur Rahman, some changes were introduced, but the power remained with the President. However, a provision was added stating that the President would act on the advice of the Supreme Court. In practice, though, this did not bring about much change.
It is noteworthy that when the 15th amendment was passed, the previous Awami League government claimed it intended to return to the 1972 Constitution. But in many aspects, including Article 116, it did not follow through. Their aim was to retain control over the judiciary. In reality, no government in Bangladesh has ever been truly willing to relinquish its control over the judiciary. This is the political reality in our country, and the recent verdict on Article 116 came within that context. I welcome the ruling. If we can implement it properly, it would be a positive step.
However, I have one observation: all the initiatives related to judicial independence in our country have come through the courts. That’s a weakness. There are virtually no examples of any government or executive branch taking such initiatives based on political consensus. If such a political initiative were taken, it would be more conducive to establishing sustainable judicial independence. One thing we must remember is that a court’s ruling can only be truly effective when the government implements it properly.
And the concept of judicial independence is not something that can be explained in simple terms. It carries many dimensions and includes various aspects—judges’ integrity, impartiality, independent mindset, professionalism, accountability, and transparency—all of which are part of the judicial culture. Unfortunately, that culture is not widely practiced here. Therefore, simply changing a constitutional article, amending a few legal provisions, or even passing new legislation does not automatically make the judiciary independent. It does not guarantee that judges will deliver judgments independently—or that they’ll even be in a position to do so.
Prothom Alo: Let’s talk a bit about the upcoming election. The interim government has announced that the election will be held in February. However, there is disagreement among political parties about the method by which the election should be conducted. Some support the previous system, some are advocating for proportional representation (PR) in the upper house, and others want PR in both the upper and lower houses. What is your opinion on this?
Ridwanul Hoque: Bangladesh has never held elections under a proportional representation (PR) system before. The country’s constitutional and legal framework, as well as the public’s experience with elections, do not align well with the PR system. That said, PR could be introduced in the upper house. However, holding elections under the PR system in the main parliament, that is, the lower house, would not be a good decision. It would create various complexities and delay the democratic transition in the current political climate. For these reasons, I strongly oppose the use of the PR system for elections to the lower house.
Some are suggesting that, to ensure the implementation of the July Charter, an election should be held under a Legal Framework Order, similar to the one used in the 1970 election. What is your view on this?
Ridwanul Hoque: The reality of 1970 is completely different from the reality today. The 1970 election was held under military rule; there was no functioning constitutional framework at that time. That’s why a Constituent Assembly was necessary to draft a new constitution, and the election was held under a Legal Framework Order. The current situation in Bangladesh is not comparable to that. We could hold an election for a Constituent Assembly or even a referendum, but that would require clear political consensus.
For some time now, the army has been deployed with magistracy powers. There has been a lot of discussion both for and against this. What is your stance?
Ridwanul Hoque: A key issue in the upcoming election is the maintenance of law and order. The military will have to play an important role in ensuring a free and fair election by helping to maintain security. This means the military now has a stake in Bangladesh’s democratic transition. Moreover, in the current geopolitical context, the military has a role to play in preserving the state’s stability. I choose to view their role in a positive light. Our expectation is that the military will carry out the responsibilities entrusted to them with integrity.
Thank you for your time.
Ridwanul Hoque: Thank you as well.