Into the fifty-fourth year of the Constitution’s commencement, the mood in Bangladesh is less about celebration and more about its forensic post-mortem. We stand in the shadow of the July Uprising of 2024, a seismic event that did not merely topple an autocratic regime but shattered the illusion of constitutional continuity. For over a decade, we witnessed what is termed ‘autocratic legalism’: the weaponisation of the law to dismantle the rule of law. Today, as an interim government navigates the turbulent waters of the ‘July Charter’ and the Supreme Court resurrects the caretaker government system, we must ask a discomforting question: Is the Constitution of 1972 still the supreme law of the Republic, or have the events of the last eighteen months rendered it a ‘zombie’ document: walking, but spiritually dead?
The conventional narrative has always been one of reverence for the Constitution’s ‘founding moment’ of 1972. Yet, the constitutional reality of 2025 perhaps demands we abandon this fetishism. The 1972 text, for all its transformative promise, failed to prevent the authoritarian slide. It was not suspended by martial law this time; it was hollowed out from within, amendment by amendment. Into the fifty-fourth year now, we are witnessing a unique collision between two jurisprudential forces: the restorative impulse of the judiciary and the reconstructive demand of the people.
The recent judicial activism, specifically the Appellate Division’s judgment restoring the Thirteenth Amendment, offers a fascinating case study in ‘judicial repentance’. By reviving the non-party caretaker government system, the Court has arguably attempted to correct the ‘original sin’ of its 2011 judgment, which many argue paved the way for successive uncontested elections. However, this ‘resurrection’ is fraught with peril. In the Anwar Hossain Chowdhury case, the Court famously established the basic structure doctrine to protect the Constitution from legislative vandalism. But for the last decade, this doctrine was dormant when it mattered the most. The sudden revival, while politically popular, raises a profound question of constituent power. Can the judiciary, a constituted power, unilaterally rewrite the political rules to atone for its past silence? This aligns with the theory of ‘unconstitutional constitutional amendments’, but in reverse. We are witnessing a ‘judicial un-amendment’, where the Court strips away the accretions of the authoritarian era. While the outcome, fair elections, is desirable, the process entrenches judicial supremacy over a political sphere still in flux.
The elephant in the room is indeed the ‘July Charter’. This document, born from the 2024 uprising, represents what legal theorists call a ‘constitutional moment’. It is an expression of the residual constituent power- the raw, uncodified sovereignty of the people that emerges when the formal legal order loses legitimacy. The tension between the 1972 Constitution and the July Charter is the defining legal struggle of our time. While the Constitution assumes continuity, the Charter assumes rupture. The recent gazette announcing a referendum on the Charter’s provisions frames this explicitly: it is an exercise of ‘sovereign will and authority’, bypassing the amendment procedures of Article 142. This brings us to the core of the crisis. If we proceed with the referendum and any subsequent ‘re-founding’, we are effectively admitting that the 1972 Constitution has lost its grundnorm status. We are moving from a Kelsenian continuity to a Schmittian decisionism, where the validity of the new order rests not on the old text, but on the political will emanating from July 2024.
Comparing this trajectory with our Commonwealth neighbours is instructive. In India, the Kesavananda Bharati judgment created a firewall that has largely held, despite severe political pressure. The Indian Supreme Court’s robust application of the basic structure doctrine prevented the kind of ‘abusive constitutionalism’ that decimated Bangladesh’s institutions. Conversely, the UK’s uncodified constitution relies on ‘political constitutionalism’, the idea that political checks will correct excesses. Bangladesh, tragically, fell between these two stools. We had neither the robust judicial shield of India nor the political culture of the UK. We had a codified constitution that was manipulated with the ease of a statute. The Commonwealth experience shows that post-authoritarian transitions often fall into the trap of ‘isomorphic mimicry’, mimicking the forms of democracy without addressing the functions of power. If this anniversary serves only to reinstate the mechanisms of 2008 or 1996, we have learned nothing. The ‘residual power’ unleashed in 2024 demands structural innovation, not just archival restoration.
As we look to the future, the Constitution at present stands at a bifurcation point. One path leads to a ‘restored’ 1972 order- a comfortable, nostalgic fiction where we pretend the lack of a sustainable politico-constitutional culture was merely a bad dream. The other path, the harder one, is to accept that the 1972 Constitution, for all its historic weight, was insufficient. This acceptance would require us to formalise the July Charter not as a mere amendment, but as a valid exercise of primary constituent power. It would mean acknowledging that the ‘basic structure’ of 1972 is negotiable if the people, in a moment of revolutionary clarity, decide to renegotiate it. The danger is that we are trying to pour new wine, the revolutionary mandate, into old wineskins. The restoration of the Supreme Judicial Council and the Caretaker Government are valiant attempts to patch the hull, but the ship itself may be obsolete.
Years ago, the Constitution of Bangladesh was born out of a War of independence. It was a document of hope. Today, it is a document of survival. The task for legal scholars, judges, and the citizenry is not to blindly worship the text of 1972, but to interrogate it. If the July Uprising taught us anything, it is that sovereignty does not reside in the Ramna buildings of the Supreme Court or the Sangsad Bhaban; it resides, ultimately and dormant, in the streets. As we mark this day, let us not celebrate the survival of the Constitution, but rather the revival of the constituent power that created it. In this moment, we must confront the paradoxical truth our situation presents: The Constitution is dead; long live the Constitution.
The writer is Assistant Professor of Law and Chair of the Department of Law at ZH Sikder University of Science and Technology.
