Fixing the foundation

Two years after the convulsion of "36 July," Bangladesh finds itself suspended at a constitutional juncture. A mass movement swept away a regime, but the ultimate meaning of that upheaval remains hotly contested. 

Was the uprising merely an explosive device designed to clear an oppressive government from office, or was it a mandate to fundamentally overhaul the Bangladeshi state? If the ambition is genuinely transformative, the nation must confront a troubling question: can the lofty aspirations of a popular revolution be satisfied by tinkering with a few constitutional clauses, or do they demand the deliberate drafting of an entirely new constitutional order?

For sixteen years before the fall, the boundary separating the ruling party from the apparatus of the state grew steadily more microscopic. Opponents, journalists, and civic activists found themselves targeted by an increasingly intolerant executive. When an authoritarian regime treats dissent as treason, state neutrality vanishes. 

The atrophy of critical institutions—the courts, the civil service, and above all the election commission—gradually sealed off all legitimate avenues for the peaceful transfer of power. History itself was weaponized. The sacred memory of the 1971 Liberation War was deployed to stigmatize political adversaries rather than unite the populace.

The July movement was born out of this total institutional decay. Citizens demanded more than a fresh set of faces in cabinet rooms; they sought a system immune to future tyranny. The core expectations were unambiguous: an independent judiciary, a neutral electoral authority, a professional civil service, and a binding framework of checks and balances. 

Crucially, the public demanded impartial accountability for past abuses—justice anchored in due process rather than the raw impulse of partisan vengeance.

This brings the country to its core legal dilemma. Article 7 of the Constitution asserts that all power resides in the people. Reformers argue that the July Charter of 2026, forged through broad political consensus, represents a fresh expression of popular sovereignty that supersedes the old order. 

Conversely, traditionalists contend that any necessary adjustments can be accommodated through the standard amendment procedures laid out in Article 142.

Yet the traditional route is fraught with systemic legal hazards. Parliament’s authority to alter the text is explicitly constrained by the basic structure doctrine, established in the landmark Fifth Amendment case (Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh) and further refined in the Eighth Amendment ruling (Anwar Hossain Chowdhury v. Bangladesh). 

Under this doctrine, any amendment that alters or damages the fundamental pillars of the constitutional system—such as the independence or architecture of the judiciary—can be struck down by the Supreme Court.

This is no academic distraction. History offers a stern warning in the saga of the Fifth Amendment. Passed during the presidency of Ziaur Rahman, those sweeping changes governed the state for decades, only to be invalidated by the judiciary years later. That sudden annulment tossed fundamental legal questions back into the political vortex. 

The lesson is sharp: political consensus or temporary momentum cannot substitute for legal durability. Any reform enacted without an unassailable foundation remains perpetually vulnerable to future judicial undoing.

If Bangladesh attempts to construct regional constitutional courts, radically redistribute powers between the president and prime minister, or insulate constitutional bodies from executive overreach through piecemeal amendments under Article 142, it invites endless litigation. 

A constitution functions as an interconnected ecosystem; expanding the oversight of one commission alters the delicate equilibrium of every other organ of state. Fragmented amendments risk introducing structural contradictions, leaving the state legally fragile and politically volatile.

International precedent suggests that moments of profound political rupture require comprehensive renewal rather than superficial repair. Post-apartheid South Africa adopted an interim text to bridge the transition to a permanent constitution rooted in extensive public consultation. 

Kenya’s 2010 referendum established a decentralized system with enhanced judicial protections, replacing an outdated framework. Even Chile’s protracted constitutional journey demonstrates that placing direct popular participation at the center of the process is essential for long-term legitimacy.

Bangladesh faces a stark choice. It can opt for minor textual adjustments under Article 142, offering brief respite while leaving the structural machinery of authoritarianism essentially intact. Alternatively, it can embrace a comprehensive, consensual, and legally watertight constitutional process that honors the true spirit of the July movement.

Revolutions rarely offer a second chance to fix the foundations. To secure lasting democracy, Bangladesh must draft a settlement that does not merely manage the present, but permanently safeguards liberty for the generations ahead.

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Barrister Najibur Rahman Momen is a Member of Parliament from the Pabna-1 constituency