Bangladesh’s Constitutional Reforms: Caught Between Democratic Hopes and Authoritarian Resilience

Bangladesh stands at a crossroads. In early 2025, the Constitutional Reform Commission (CRC), established by the interim government, submitted proposals for a new democratic constitution. As the country begins considering these reforms, critics have raised concerns about the transparency and legitimacy of the process, citing among other issues the exclusion of key political voices, the introduction of controversial judicial changes, and the potential for a dangerous concentration of power. Drawing on experiences from across the Global South, Arafat Hosen Khan considers the dangers of bypassing legal safeguards in times of political change.

Introduction: Crisis and Fragile Democracy

The political turmoil in Bangladesh in 2024, sparked by widespread protests over quota reforms and the sudden rise of an interim government led by Nobel Laureate Professor Muhammad Yunus, has exposed deep cracks in the country’s democratic structure. In January 2025, the Constitutional Reform Commission (CRC), established by the interim government, submitted its recommendations for a new constitution of Bangladesh. As the country begins considering these proposals, this article examines the constitutional reform process through the lens of constitutional experiences in the Global South—often marked by colonial legacies, institutional fragility, and authoritarian tendencies—and highlights the risks of sidelining legal procedures during periods of political transition.

The reforms proposed by the [Constitutional Reform Commission] present a major crossroads for Bangladesh.

By comparing Bangladesh’s situation to crises in Pakistan, Sri Lanka, Nepal, and South Africa, one can identify an ongoing tension between managing emergencies and staying true to democratic norms. The reforms proposed by the CRC present a major crossroads for Bangladesh. Though they aim to fix long-standing problems like over-centralization of power and weak judicial independence, there are genuine concerns that, without an inclusive and transparent process, the reforms could end up repeating past mistakes.

Constitutional Evolution and the Lessons from the Global South

Bangladesh’s first constitution in 1972 came after a hard-fought Liberation War and was built on ideas of nationalism, socialism, democracy, and secularism. Despite these ambitious foundations, the constitution has often failed to ensure effective checks and balances on the power of the executive. Civilian and military leaders alike have concentrated authority in their hands, most recently during former Prime Minister Sheikh Hasina's 16-year rule. Her time in office brought economic growth and poverty reduction, but also saw democratic institutions weaken.

Bangladesh’s constitutional trajectory has been marked by a fraught relationship with guarantor institutions (...).

Furthermore, Bangladesh’s constitutional trajectory has been marked by a fraught relationship with guarantor institutions—bodies designed to enforce constitutional norms and mediate political conflict. The 1996 13th constitutional amendment, introducing a non-partisan caretaker government (CTG) to oversee the general elections, exemplifies an attempt to institutionalize such guarantees. Modeled loosely after India’s Election Commission, the CTG aimed to neutralize executive interference in elections, acting as a temporary “fourth branch” to safeguard democratic transitions.

Yet, the Supreme Court’s annulment of the CTG in Abdul Mannan Khan v. Bangladesh (2011)—which deemed it a distortion of parliamentary sovereignty—revealed a tension central to Global South constitutionalism: how to balance crisis governance with institutional legitimacy. The ruling echoes India’s landmark Kesavananda Bharati (1973) decision, which established the “basic structure” doctrine, prohibiting constitutional amendments eroding core democratic principles. However, unlike India’s robust Election Commission, Bangladesh failed to replace the CTG with an alternative guarantor institution, creating a vacuum now filled by the extra-constitutional interim government.

Bangladesh’s judiciary (...) has struggled to insulate transitional governance from executive capture.

This gap reflects a broader failure in Bangladesh to institutionalize “constitutional resilience”, namely the capacity of a constitutional order to adapt to crises without sacrificing core norms. Sri Lanka’s experience illustrates how “stealth constitutionalism”—informal adaptations of the constitution by courts and bureaucrats—can fill such voids. There, during periods of political crisis, the judiciary and the Constitutional Council have effectively asserted their independence and curbed executive overreach, thereby reinforcing the rule of law and inter-branch accountability. In contrast, Bangladesh’s judiciary, while invoking basic structure principles in Anwar Hossain Chowdhury (1989), has struggled to insulate transitional governance from executive capture.

The CTG’s annulment also underscores a paradox in South Asian constitutional design: guarantor institutions often emerge from crisis, not foresight. While bodies like Nepal’s Constitutional Council or South Africa’s “Chapter 9 institutions” (e.g., the Public Protector) gained legitimacy through incremental judicial and civic validation, Bangladesh’s CTG, lacking such organic roots, became politically weaponized, leading to its judicial excision. Yet, its removal left no mechanism to check executive overreach during transitions—a flaw starkly exposed in 2024.

The effectiveness and legitimacy of interim governance arrangements depend on their inclusivity, transparency, and genuine commitment to facilitating a return to constitutional order (...).

The current crisis, where an interim government operates without explicit constitutional authority, highlights the inherent fragility of transitional arrangements in post-conflict or fragile settings. Unlike Sri Lanka’s 2018–2019 constitutional crisis, where President Sirisena’s attempt to dissolve parliament and install a new prime minister was widely condemned as an unconstitutional power grab and was ultimately reversed by the Supreme Court, Bangladesh’s interim government has publicly committed to organizing elections and returning power to a democratically elected administration. This distinction is crucial: while both situations test the resilience of democratic institutions, the intent and trajectory of Bangladesh interim government differ from Sri Lanka’s episode of attempted state capture. Nevertheless, both cases illustrate a broader dilemma faced by countries in the Global South: when formal institutions are weakened or in flux, informal actors, such as the military, judiciary, or ad hoc coalitions, often step in to fill the governance vacuum, sometimes at the expense of democratic norms. The effectiveness and legitimacy of interim governance arrangements depend on their inclusivity, transparency, and genuine commitment to facilitating a return to constitutional order, rather than consolidating power for any faction.

In an attempt to steer the country out of a political crisis, Bangladesh’ Supreme Court justified the interim government formation under the “doctrine of necessity”—a controversial legal principle often invoked during emergencies and infamously applied in Pakistan’s Maulvi Tamizuddin Khan case (1955). The Court argued that such a step was essential to prevent a complete institutional collapse. However, this reasoning raises difficult constitutional questions. In fact, the doctrine of necessity has been used in countries like Pakistan to legitimize extra-legal actions that ultimately weakened democratic accountability.

In Bangladesh’s case, the formation of the interim government bypassed Articles 141A and 141B of the Constitution, which require parliamentary approval to issue emergency measures. In addition, the Supreme Court relied on its advisory power under Article 106 of the Constitution without convening a full panel of judges (known as a full bench), thereby undermining the principle of judicial collegiality—the idea that important legal decisions should be made collectively by the entire court—as upheld in the case of Madzimbamuto v. Lardner-Burke (1969).

The interim government’s reliance on the doctrine of necessity highlights a recurring dilemma in the Global South: the use of crisis rhetoric to justify exceptional measures that risk undermining democratic norms. In the current context, this does not mean that the interim government is inherently authoritarian. However, it raises concerns given that, in historical cases such as Pakistan and Egypt, similar doctrines have been used to legitimize authoritarian overreach and erode judicial independence. For example, in Pakistan, the judiciary used the doctrine to validate the dissolution of its Constituent Assembly, a decision widely criticized as a blow to constitutional democracy. In Egypt, the post-2013 regime under President el-Sisi invoked similar emergency narratives to consolidate power and restrict institutional checks. In Bangladesh, the failure to establish a guarantor institution similar to the CTG following its abolition through the 15th amendment has removed a key constitutional safeguard, increasing the risk of executive unilateralism during transitional periods.

(...) [T]he current reform process presents a chance to strengthen the country’s democratic institutions.

However, the current reform process presents a chance to strengthen the country’s democratic institutions. To do so, the CRC’s proposals should be grounded in wide consensus and lessons learned from international experiences, otherwise they may unintentionally recreate the very problems they aim to solve.

Critical Issues in the Proposed Reforms

Parliamentary System: Risks of Power Concentration

The CRC’s report proposes a bicameral legislature, where legislative authority is divided between two chambers. The CRC model suggests an upper house whose members are selected through a “secondary mandate” system. In this system, upper house seats are allocated in proportion to the votes received by parties in the lower house election, rather than through separate direct elections. While this approach may promote proportionality and reduce the risk of majoritarian dominance, it also raises concerns: if both chambers are composed based on the same electoral outcome, a single political wave could allow one party to dominate both houses, especially if safeguards such as staggered terms are absent. This design flaw could undermine the upper house’s intended role in representing diverse interests and providing a check on executive power, instead entrenching the ruling party’s control. Careful attention to the composition and powers of both chambers is therefore essential to avoid replicating the risks of power concentration that the reform seeks to address.

Judicial Reforms: A Mixed Bag

The CRC proposed to decentralize Bangladesh’s judiciary by establishing permanent High Court benches in divisional cities and shifting lower court administration to provinces, aiming to improve access and efficiency. However, this raises significant governance and coordination challenges. Decentralization may improve court access, but it also risks inconsistent application of legal standards across regions.

The CRC also recommended the establishment of an independent body for judicial appointments. This proposal was reflected in a Supreme Judicial Appointment Ordinance promulgated by the interim government, which establishes a seven-member Supreme Judicial Appointment Council chaired by the Chief Justice. The Council is tasked with selecting and recommending qualified candidates for judicial positions, to reduce direct executive control over judicial appointments. However, the provisions of the ordinance raise concerns over lingering centralization of power in the executive branch and the absence of safeguards against political influence.

(...) Bangladesh’s proposed reforms lack safeguards against politicization, risking capture by local elites and undermining judicial independence.

Sri Lanka's 2018 crisis highlighted the importance of a unified judiciary in upholding constitutional order, something Bangladesh risks compromising if judicial decentralization invites local political interference. During the crisis, the Supreme Court and Court of Appeal acted cohesively to check unconstitutional actions by the executive, ultimately ruling the president’s dissolution of parliament as illegal and reinstating the lawful prime minister. Unlike South Africa's transparent, merit-based, appointment system, Bangladesh’s proposed reforms lack safeguards against politicization, risking capture by local elites and undermining judicial independence.

Exclusion of Key Political Voices

(...) [T]he CRC’s approach has drawn criticism for its lack of broad-based participation. Major parties (...) were excluded from the drafting process, while key minority groups were not meaningfully involved.

While it is true that Bangladesh’s current reform process differs from the exclusionary, politically driven constitution-making processes observed in Sri Lanka and Myanmar, concerns remain about its legitimacy and inclusion. In Sri Lanka (1972) and Myanmar (2008), constitutional reforms were led by ruling political actors who deliberately sidelined minority and opposition groups, resulting in long-term instability and lack of public trust. In contrast, Bangladesh’s CRC is a technical committee appointed by the interim government to draft recommendations, which will then be considered by the next parliament. Still, the CRC’s approach has drawn criticism for its lack of broad-based participation. Major parties such as the Bangladesh Nationalist Party, Awami League and Jatiya Party were excluded from the drafting process, while key minority groups were not meaningfully involved. This raises important questions about whether a technically driven process can achieve democratic legitimacy without stakeholder engagement. As Elkins, Ginsburg, and Melton argue, constitutions built on broad consensus, like South Africa’s, are more stable, while elite-driven or exclusionary approaches risk future rejection or reversal. Ultimately, for reforms to endure, the process must move beyond technical expertise and ensure genuine inclusion of all major political and social groups.

Guarantor Institutions: The Need for Constitutional Safeguards

South Africa’s post-apartheid constitution is known for its efforts to create robust, independent guarantor institutions—such as the Public Protector and Human Rights Commission—that serve as critical checks on government power. While Bangladesh’s current reform proposals are taking notable steps in that direction, they have yet to entrench the institutional independence seen in South Africa. The CRC recommends granting constitutional status to key oversight bodies like the Anti-Corruption Commission (ACC) and the Human Rights Commission (HRC), and crucially proposes the establishment of a National Constitutional Council (NCC) to oversee appointments to these institutions. The NCC’s multipartisan composition—drawing members from the executive, opposition, judiciary, and both houses of parliament—is designed to minimize political domination and enhance transparency and accountability in the selection process.

(...) Bangladesh’s proposed reforms face risks of executive or parliamentary dominance if robust safeguards are not codified.

However, details regarding the NCC’s procedures and the constitutional guarantees for the independence of the ACC and HRC remain to be specified in the final constitutional text. Unlike South Africa’s Chapter 9 institutions, whose autonomy, impartiality, and protection from political interference are explicitly entrenched in the constitution (Section 181), Bangladesh’s proposed reforms face risks of executive or parliamentary dominance if robust safeguards are not codified. For example, while the NCC aims for balanced representation, the potential for ruling-party alignment among members could undermine its intended independence unless carefully designed appointment and voting procedures are  constitutionally entrenched to prevent deadlock and ensure genuine multiparty consensus.

Stakeholders’ Views

(...) [T]he government’s fast-paced, technocratic approach has drawn criticism for sidelining public debate and transparency.

The interim government has identified constitutional reform as its top priority. By establishing the CRC, it aims to create a constituent assembly tasked with drafting a new democratic constitution grounded in the principles of equality, justice, and pluralism. However, the government’s fast-paced, technocratic approach has drawn criticism for sidelining public debate and transparency. Egypt’s rushed constitutional reforms after the 2011 revolution serve as a warning: rapid legal changes without public engagement can lead to authoritarian relapse.

Opposition parties have questioned both the process and the substance of the reforms. While the Bangladesh Nationalist Party supports substantial constitutional reforms, it warned that such changes should not delay the upcoming elections and insisted that an elected government be responsible for enacting these reforms to ensure legitimacy and public trust. Religious groups like Jamaat-e-Islami have also pushed back against the inclusion of pluralism among the constitutional principles, calling for more explicit Islamic language. These debates reflect the broader challenge of balancing secular democracy with religious identity.

Finally, while human rights groups cautiously support the idea of reform, some worry about weak enforcement. Citing Tunisia's post-Arab Spring experience, they note that a progressive constitution means little without strong institutions to uphold it. Provisions like gender quotas and minority rights are welcome, but Bangladesh’s recent decision to eliminate the 10% quota for women in public service shows how fragile such gains can be without strong legal safeguards.

Implementation and the Road Ahead

The way reforms are adopted is as important as their content. Pakistan's recent constitutional amendment was pushed through in rushed parliamentary sessions, drawing criticism. Bangladesh must avoid a similar top-down approach. There is much to be carefully considered in fleshing out the proposals for the CRC and broad political consensus and popular support will be critical – thus a well-thought-out deliberation and ratification process will go a long way toward giving the new constitution lasting credibility.

In addition, while international support to the reform can help, it must not come at the cost of legitimacy. Bangladesh has a mixed record with foreign aid—while it helped fuel economic growth, it often failed to improve governance. External actors should focus on encouraging inclusive reform, not just stability.

Finally, sustainable constitutionalism goes beyond legal amendments. It requires strong institutions and civic culture. A transformative constitutional approach, as seen in Kenya and South Africa, demands greater judicial engagement and institutional dedication to rights protection.

Bangladesh stands at a critical point. The 2025 proposal for reforms could lead to a more inclusive democracy, or they could become another chapter in a long story of centralization and exclusion. The key lies not just in the content of the constitution, but in the process of creating it. Learning from other countries, especially those in the Global South, Bangladesh must aim at reforms that are inclusive, transparent, and grounded in real democratic values.

Arafat Hosen Khan is a legal scholar, advocate for justice and democracy, and an expert in constitutional law, politics, and human rights. He currently works as a CARA Visiting Senior Fellow at the London School of Economics and Political Science (LSE) Law School in London, United Kingdom. He is the author of ‘The Constitution of Bangladesh: People, Politics, and Judicial Intervention’, and is a qualified English Barrister and Advocate of the Supreme Court of Bangladesh with extensive experience in constitutional and human rights law and policy development. Prior to that, he was serving as a Senior Lecturer and Head of the Department of Law at North South University.

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Suggested citation: Arafat Hosen Khan, ‘Bangladesh’s Constitutional Reforms: Caught Between Democratic Hopes and Authoritarian Resilience’, ConstitutionNet, International IDEA, 16 May 2025, https://constitutionnet.org/news/voices/bangladeshs-constitutional-reforms-caught-between-democratic-hopes-and-authoritarian

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