—Kawser Ahmed, Advocate, Supreme Court of Bangladesh; Adjunct Professor, Department of Law, Bangladesh University of Professionals
The Long and the Short
On 05 August 2024, in the face of a massive Anti-Discrimination Student Movement (AdSM) protesting the discriminatory quota system in government jobs – which later escalated into demands for her resignation – the then Prime Minister Sheikh Hasina left the country. In its wake, Parliament was dissolved, and an interim government led by Professor Muhammad Yunus was sworn in. Immediately thereafter, various interest groups began to call for constitutional reforms either through amendments or even rewriting a new Constitution. On October 6, the Professor Yunus-led Interim Government (YIG) appointed a nine-member Constitution Reform Commission (CnRC). Meanwhile, in a surprising turn of events, Bangladesh’s President Mohammed Shahabuddin revealed in an interview published on October 19 that he lacked documentary evidence of Sheikh Hasina’s resignation as prime minister. In an immediate response, top organizers of the AdSM called for his removal as well as repealing and replacing the current Constitution. Later on, the CnRC published its Terms of Reference (ToR) on 31 October 2024 and issued a press briefing note on 3 November 2024, making it clear that it would operate under a broad mandate, including rewriting the Constitution. Finally, the CnRC submitted its report, including the reform proposals, to the government on 15 January 2025.
Against this backdrop, this post portrays Bangladesh’s apolitical approach in its current constitutional reform initiative, despite legal scholarship emphasizing the importance of popular participation in such endeavours through constituent assemblies or other mechanisms. In particular, it points out that the demand for constitutional reform in Bangladesh chiefly emanated from a non-partisan movement, and the continuity of this apolitical origin has persisted through the exclusion of political stakeholders from the CnRC’s decision-making process. This explains disagreement among political parties over the substance and procedure of constitutional reform, which has been reflected in their statements from time to time. Furthermore, the relative absence of a strong and tested political platform to implement such reforms that may be adopted at any point in the future raises concerns about the initiative’s viability. Drawing on parallels with Ayub Khan’s constitution-making project during 1960–1962 in the Pakistan era, as well as lessons learnt from more recent constitution-making efforts such as Chile, South Sudan, Iceland, South Africa, Ireland, and Iraq, this post concludes that the ongoing constitution-reform initiative forebodes an uncertain future. In this post, the expression ‘constitutional reform’, when used in the current context of Bangladesh, refers to either amending or rewriting the Constitution, or both.
An Apolitical Beginning
The AdSM started as an apolitical student movement against a High Court judgment rendered on 5 June 2024 reinstating a discriminatory quota system in government employment that had been abolished by an executive decision in 2018. At the outset, the only demand was the reinstatement of the circular abolishing quotas. As the Movement progressed, it put forward several additional demands on July 7, 19, 20, and 21; however, none of these called for reforming or replacing the Constitution [here]. Eventually, on August 03, the AdSM declared a one-point demand, calling for the resignation of Sheikh Hasina and her cabinet as well as the eradication of fascism.
As can be discerned, from July to August 5, no demand or aspiration for constitutional reform was expressed on the part of the Movement. A review of the AdSM’s doctrinal development, which has largely been shaped and expressed through protesters’ demands over time, shows no manifesto for such change [here, here]. Rather, on July 7, 2024, Nahid Islam—one of the Movement’s top organizers and currently an advisor of YIG—referred to the Constitution to substantiate the demand for quota reform. All this indicates that the Movement’s primary objective was to ensure the enforcement of the 1972 Constitution’s anti-discrimination provisions in government employment.
In the aftermath of August 5, the debate over reforming or replacing the Constitution first came to the forefront in early September, when Abdullahil Aman Azmi, son of former Bangladesh Jamaat-e-Islami Emir Ghulam Azam, called for changing both the Constitution and the national anthem. Mr. Azmi’s proposal met with adverse reactions by and large, and the Bangladesh Jamaat-e-Islami Secretary General clarified that his statements about the national anthem represented his personal views, not the party’s position. Much later, in an interview published in early November, nearly three months after Sheikh Hasina’s fall, Mahfuj Alam, another top AdSM organizer, said that the question of continuing with the 1972 Constitution was effectively settled on the day the ‘one-point demand’ was voiced, as the old political settlement was rejected in favour of a new one. He further added that a new political settlement inherently required a new Constitution.
Considering the foregoing and the events leading up to August 5, the AdSM’s demand for constitutional reform appears to be largely speculative and doctrinal. Undeniably, for any reform in areas as significant as the political system, the form of government, or the Constitution to be viable, it must first be clearly conveyed to society to mobilise public support. The reason is that the viability of any political goals often depends on building consensus and compromises among different sections of society, the bedrock of which is public opinion. However, on the question of constitutional reforms, the AdSM has neither made any major effort to reach out to the people nor taken any major steps to consult political parties and stakeholders to mobilise popular consent. Most likely, this is why no consensus has yet been reached among political parties about the contents and procedure of constitutional reforms.
Major political parties, such as the Bangladesh Nationalist Party (BNP) and Bangladesh Jamaat-E-Islam (Jamaat-E-Islam) as well as smaller parties like the Bangladesh Communist Party, Revolutionary Workers Party of Bangladesh (RWPB), Bangladesh Khelafat Majlis, Gono Odhikar Parishad, and others, are divided over the question of constitutional reform. For instance, BNP and Jamaat-E-Islam opposed the notion of rewriting the Constitution entirely. On the other hand, both BNP and RWPB maintained that only an elected Parliament possessed the authority to introduce constitutional amendments, with a constitutional reform commission serving only an advisory function in suggesting potential reforms. By contrast, other political parties, except for BNP and RWPB, indicated that the YIG could bring in only some necessary constitutional amendments. Regarding the mandate of the CnRC, the Jatiya Party, another significant political party, did not issue any public statement, although it submitted several reform proposals to the Commission. Notably, only two smaller political parties, the Bangladesh Muslim League, and AB Party, have explicitly called for rewriting the Constitution.
If compared, the difference between the current constitution-making efforts in Bangladesh and that of 1972, particularly regarding the mobilization of popular consent, becomes apparent. Awami League’s Six-Point Programme of 1966, advocating full regional autonomy for East Pakistan (Bangladesh), gained widespread public support and formed the basis of its decisive electoral mandate in 1970. The Liberation War of 1971 further solidified this support, with peasants, workers, and students mobilising en masse under Awami League leadership. Therefore, when the constitution-making process began in 1972 in newly independent Bangladesh, there was already a broad public consensus on the fundamental issues [here].
From a global perspective, the success of the South African Constitution (1996) is often attributed to large-scale public consultation that contributed to its legitimacy and durability. Conversely, the failure of Chile’s constitution-making endeavour during 2015–2017, as scholars have pointed out, is attributable to, among other factors, the exclusion of political parties from meaningful participation in the earlier stages of the process.
Non-Inclusion of Political Actors in the CnRC’s Decision-Making Process
A Constitution, being both a political agreement and a juridical norm, should have the support of as many political forces as possible, so it requires an inclusive and skilled drafting process. Turning to Bangladesh’s recent constitutional reform initiatives, the methodology adopted by the CnRC does not try to counteract the foregoing lack of assessment of public opinion. Moreover, the composition of the CnRC and its working procedures might suffer from the non-inclusion of social and political actors, as well as a brief timeframe to complete its functions. Examining the CnRC’s Terms of Reference (ToR) will substantiate this observation.
The CnRC, as per its ToR dated 31 October 2024, had the mandate to conduct a comprehensive review of the Constitution currently in force, including recommendations to amend, add, delete, modify, reorganize, or even rewrite it to reflect the people’s aspirations. In the press briefing note dated 3 November 2024, the CnRC outlined the methodology of its work, stating that it would solicit written opinions and proposals from political parties but would not engage with them directly (emphasis added). In addition, it would request reform proposals from constitutional scholars, legal practitioners, civil society representatives, members of professional bodies, young intellectuals, and representatives of cultural organizations. However, there was a caveat that the CnRC would not accept opinions or suggestions from individuals who have been actively involved in killings, or who have directly or indirectly supported acts of violence and torture during the anti-discrimination movement. This effectively ruled out any consultation with the ousted Awami League or its intellectual support base, which was still a major political stakeholder in Bangladesh. On 25 November 2024, the CnRC reported that it had received 47,097 submissions through its dedicated website on constitutional reform and exchanged views in this regard with representatives from 28 organizations, 23 members of civil society, 5 constitutional experts, and 10 young thinkers. However, the CnRC has not made it clear what method it followed in vetting and adopting the reform proposals received.
In retrospect, the 1962 Constitution of Pakistan serves as a glaring example of how the non-inclusion of political actors in the constitution-making process undermines the viability and endurance of the resultant Constitution. In 1958, General Iskander Mirza imposed Martial Law in Pakistan, abrogated the 1956 Constitution, assumed the office of President, and dissolved all political parties nationwide [here]. Within three weeks, however, Iskander Mirza was ousted by General Ayub Khan, who declared himself President. Ayub Khan was well known for his distrust of politics, politicians, political parties, and even public opinion. While the ban on political activities, including the formation of political parties, was still in force, he appointed an eleven-member Constitution Commission in 1960 to draft a new Constitution. Eventually, a new Constitution of Pakistan was promulgated on 01 March 1962. Despite his initial pledge to submit the draft Constitution to a referendum, President Ayub promulgated it under his own authority [here].
The 1962 Constitution of Pakistan, which Ayub Khan unilaterally imposed, failed to reflect the people’s aspirations. Gradually, discontent grew within society, sparking widespread political movements, particularly in East Pakistan. Unsurprisingly, the 1962 Constitution was ultimately discarded as President Ayub resigned from power in 1969. Ayub Khan’s constitution-making project, undertaken without any popular mandate or genuine participatory process, gave birth to a failed Constitution that gave rise to subsequent political crises, causing the disintegration of Pakistan in 1971, i.e., the emergence of East Pakistan as independent Bangladesh.
By comparison, Chile’s constitution-making endeavours, despite being far more representative than Ayub Khan’s model, failed during both the 2015-2017 and 2019-2022 periods and was criticised for excluding political parties from the drafting process. Another noteworthy example is Iceland’s experience (2010–2013), which illustrates how excluding mainstream political parties can result in the failure of the constitution-making processes.
Lack of Strong Political Platforms for Reform Implementation
Although the AdSM’s demand for constitutional reforms marks a significant shift in the country’s legal and political structures, the problem is it was not born as a formal political platform at the outset. Past experience suggests that for such reform to be sustained, the driving force behind any major political cause must consolidate into formal political power. As previously noted, while broad-based societal support is essential for constitutional reform, the role of political parties becomes crucial during the post-adoption phase. This observation makes perfect sense in the current context of Bangladesh—especially with Parliament being dissolved and a lack of political consensus among established parties over constitutional reform.
Against this backdrop, the AdSM organizers finally established the National Citizens Party (NCP) on 28 February 2025. Nahid Islam, the convener of the NCP, stated that the party’s core mission was to dismantle constitutional autocracy and establish a robust democratic framework. Accordingly, the NCP called for the next national election to be held for convening a Constituent Assembly to draft a new constitution. Of note, the call for a Constituent Assembly election elicited strong reactions from BNP Standing Committee member Salahuddin Ahmed, who described it as a conspiracy to extend the prevailing undemocratic governance in the country.
Despite the formation of the NCP, uncertainty remains regarding the successful implementation of the proposed constitutional reform, as the popularity of the newly formed party has not yet been tested through any electoral process. Consequently, there is the possibility that any constitutional reform, even if agreed upon in principle, may remain unimplemented and be reconsidered by future governments if the NCP fails to secure an absolute majority in Parliament. To give a few examples, after gaining independence, South Sudan adopted a transitional Constitution that promised federal governance and democratic reforms. However, without any strong political institutions or platforms to oversee implementation, these reforms faltered, exacerbating political instability and conflict. The reasons why most of the recommendations of the Irish Convention (2012) and the Irish Citizens’ Assembly (2016) have not yet been implemented are plausibly linked with party interests [here]. Similarly, the lack of political cooperation among Iraq’s ethno-sectarian factions has fundamentally impeded the implementation of key provisions of the 2005 Constitution in the post-adoption period.
Conclusion
In recent developments, several reform commissions, including the CnRC submitted their reports to the YIG between January and February of 2025. Shortly afterward, a seven-member National Consensus Commission was formed to engage political parties and stakeholders in building consensus about the reform proposals [here, here]. At its first meeting on 15 February 2025, leaders from all active political parties expressed differing views on the scope and timing of the proposed reforms.
As is widely recognized, Constitutions are supposed to reflect fundamental pacts accepted by all relevant stakeholders in society. Considering contemporary examples of constitution-making in various jurisdictions, the critical role of an inclusive approach that reflects both popular aspirations and political will is evident for achieving viable constitutional reforms [here, here]. By contrast, Bangladesh’s apolitical constitutional reform initiative presents a not-so-common perspective in the field of comparative constitutional law. Strikingly, this approach resembles a regressive trend, similar to the one followed by President Ayub Khan in implementing his 1962 constitution-making project – which differs from Bangladesh’s own foundational experience in 1972 and the contemporary emphasis on participatory constitution-making as seen in many democracies. Notably, the 1972 Constitution was drafted by an elected Constituent Assembly and was deeply rooted in popular representation. Whereas the CnRC evokes memories of colonial-era legal reforms led by imperial commissions, such as the Simon Commission, whose report paved the way for the enactment of the much-criticized Government of India Act of 1935.
As is perhaps predictable from the foregoing discussion, the lack of consensus on constitutional reform among political stakeholders, both before and after August 5, and their absence from the CNRC’s decision-making process signify that Bangladesh’s ongoing constitutional reform initiative through the Commission portends an uncertain future.
Suggested citation: Kawser Ahmed, Bagladesh’s Apolitical Constitution-making Initiative: Silver Lining or Slippery Slope? Int’l J. Const. L. Blog, Apr. 20, 2025, at: http://www.iconnectblog.com/bangladeshs-apolitical-constitution-making-initiative-silver-lining-or-slippery-slope/
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