–Ragib Mahtab, SJD Candidate, Central European University
Introduction
On March 12, 2026 the Appellate Division of the Supreme Court of Bangladesh handed down an important judgment concerning the constitutionality of the Caretaker Government System (CTG system). The Court endorsed this CTG system, setting aside the judgment of the same division which in its earlier majority opinion had found it unconstitutional.
By way of background, the CTG system denotes formation of a non-partisan government during election times for the purpose of assisting the Election Commission to conduct free, fair, credible, and impartial national elections. It was introduced following the 1990 mass uprising in Bangladesh to facilitate democratic transition and hand over power to the democratically elected government (see here and here). In 1996, following severe contestations and “crisis of electoral legitimacy”, the system was formally introduced in the Constitution through the 13th amendment (page 46 of the March 2026 Judgment). Three elections were held under this system until it was abolished by the 15th constitutional amendment in 2011 following a decision of the Appellate Division of the Supreme Court that held that the “running of state affairs by unelected persons” was inconsistent with the basic structure of the Bangladesh Constitution, more particularly the republican and democratic characters of the State (page 3 of the March 2026 judgment). In turn, parts of the 15th amendment – including the abolition of the caretaker government -were declared to be unconstitutional in 2024 (see here). In the latest turn of events, the Appellate Division of the Supreme Court has now deemed the CTG system valid, as mentioned in the opening paragraph.
In this post, I argue that this judgment marks a major shift in the Court’s approach to the concept of constituent power, by recognizing its continuous existence in parallel with the constituted order beyond the founding moment, and in highlighting the primacy of political openness over rigid legal/normative formalism. I also suggest that it put forward a moderate account of the exercise of such constituent power, by choosing to understand the basic structure in Bangladesh as an evolutive, as opposed to a rigid legal doctrine.
A shift in the Court’s approach: Locating constituent power beyond the founding moment
The March 2026 judgment emphasizes the people’s will as manifested through historical contestations, relying on E.W. Böckenförde and locating the exercise of constituent power within the political sphere also beyond the constitutional founding moment (page 46 of the March 2026 judgment). In contrast, in the earlier landmark 8th amendment judgment (invalidating the decentralisation of the High Court Division as inconsistent with the unitary structure of the state), the Court had viewed constituent power as a single, one-off, and revolutionary exercise, with identitarian elements that required protection until another revolution would take place (paras 375 and 385 of the 8th amendment judgment). The judicial approach in that 8th amendment judgment was implicitly grounded in the Sieysian logic according to which there exists a distinction between the pouvoir constituent and the pouvoir constitutés, where the former is exercised only in revolutionary/exceptional circumstances and the latter owes its existence to the former and operates within its prescribed framework (See here).
This Sieysian dichotomy was also invoked by the majority in the Court as the justification for the use of the Unconstitutional Constitutional Amendment doctrine in invalidating the 13th constitutional amendment (and in turn, the CTG system), on grounds that this amendment violated the basic structure of the constitution by going beyond dictates of the original constituent power.
It should be clear that according to this interpretation of Sieyes “the exercise of constituent power is condensed into a single event” and the “people” are converted into “an ideational– normative point of imputation for the constitution” (see here). Accordingly, the ever-changing political will becomes disconnected from politics and is subsumed into rigid legal ideals and norms. As the Supreme Court observed in the March 2026 judgment (page 47 and 54), the earlier majority decision revealed a profound disconnect between constitutional reasoning and concrete political realities, thereby absorbing the evolving political aspirations of the people into abstract legal formalism.
Against this backdrop, the March 2026 judgment has in a way reclaimed “the political” by affirming that the people’s constituent power does not dissolve into nothingness after the founding moment, but rather continues to exist alongside the constituted order.
The co-existence of Two People as bridge between fact and law
In this regard, the reliance of the Supreme Court in the March 2026 judgment on E.W. Böckenförde is crucial. Böckenförde was critical of narrowly interpreting the exercise of constituent power as a single moment and claimed that even beyond the founding moment “the people” exists both in the constituent form (as a kind of “disorganized multitude”) and in the constituted form (such as parliament), that is, as “people as sovereign” and “people as an organ”.
This co-existence of two forms of people creates a bridge between the law and political reality. Such co-existence was implicitly acknowledged in the March 2026 judgement when the Supreme Court drew on historical facts to show how the people contested and carried out mass-movements demanding “a neutral election overseer” in the 1990s which was, in the Court’s words, an “exercise of the people’s constituent power” (page 52). Subsequently, the Court observed (page 46), the constituent power was reactivated when the CTG system was formally adopted through the 13th constitutional amendment by a consensus-driven parliament. As such, according to the Court, the people as multitude in non-organized form exercised their constituent power in the political sphere in 1990 which later aligned with the will of people in the constituted form (the parliament), leading to enactment of the 13th constitutional amendment in 1996.
This dual conception of “the people” also aids in a perception of the political domain as an “open gap of indeterminacy” where, as Loughlin observes, the constituent constantly “irritates” the constituted in a dialectical manner to reshape the political order in accordance with “the principle and practice of right ordering of the regime”. The Bangladesh Supreme Court seems to have considered the mass movement in 1990 as such an “irritation” and with a view of the design of the CTG as part of “the right ordering of the regime”. Eventually, under the 13th constitutional amendment this innovative design evolved from what Loughlin calls the “open and provisional” sphere of politics into a concrete legal provision. Thus, the corollary of the Court’s position is that like the “open and provisional gap” of the political, the Bangladesh Constitution in the normative sphere must also remain open, continuous, non-static, and adaptable. In a way, this captures a cyclic phenomenon: while the political will/decision emphatically conditions the normative domain, the normative sphere provides the form (such as the constitutional design of the amendment) that regulates the process of its conditioning.
Still a moderate account of the exercise of constituent power?
The conception of a permanent presence of the constituent power is, as Arendt observes, often associated with an “arbitrary and unstable” constitutional order that romanticizes “permanent revolutions”, continuous contestations, and challenges. Such contestations against the established order may involve the radical invocation of populist narratives under the guise of exercising constituent power (see here).
In the case of the March 2026 judgment, the Bangladesh Supreme Court’s emphasis on the people’s will over legal norms, with the former constantly conditioning the latter, underscores the salience of the Arendtian anxieties. However, these are mitigated due to the Court’s holding that the CTG design is a “basic feature of the Constitution’s structure” and hence, immutable. In this way, the Court strikes a balance between the popular will and the legal norm.
At this point, however, recognizing the CTG design as a basic feature seems to be inconsistent with the “open and provisional quality” of the political that the Court seems to conceptualize through the idea of the continuous presence of the constituent power in parallel with the constituted order. In the March 2026 judgment, the Court however takes an innovative approach to the doctrine of basic structure itself. It observed that “the structural components of basic structure, amongst which the sustenance of a substantive democratic order is one of the most noteworthy […] suffer from wear and tear over time and demand periodic reinforcements and retrofitting” (page 42). This need for retrofitting—in this case characterized by the CTG system—the Court opines, deserve the same status of immutability as does “democracy” (pages 42 and 54).
With this assertion, the very concept of “basic structure” becomes dynamic and traceable beyond the founding moment. It implies that the components that make up the basic structure(s) of a constitution can and will evolve over time. But through what process? To answer this, the Court emphasized the Attorney General’s submission that the CTG design enjoys historical and functional legitimacy and gained salience through “consistent practice and public acceptance” and evolved into a constitutional convention (page 57).
This clarified the process through which basic structure(s) of the constitution can evolve, i.e. through practices and conventions grounded in the unique sociological, historical, and political reality of a given polity at a given time. Thus, although the CTG system was not part of the text of the 1972 Bangladesh Constitution, it incrementally became a basic feature of this Constitution.
In fact, tying the exercise of constituent power to the doctrine of basic structure also showcases the Court’s intention to tether the former reflexively to the overarching constitutional order, thereby implying that the exercise of constituent power is still not unrestrained. This reflexivity, read with incrementalism, may also be a response to on-going contestations in Bangladesh between political forces striving to dismantle the existing constitutional order (see here) and those seeking changes while ensuring constitutional continuity (and here). In the March 2026 judgment, the Supreme Court appears to reconcile the aspiration of change with constitutional continuity by providing a moderate account of the exercise of constituent power which is permanent but at the same time circumscribed by the core values (basic structure) of the constitutional order, which can evolve over time within the unique factual and socio-political matrix of the polity and ideas regarding the right ordering that ensue from the “ethical-political will” present within the active people of a given time.
More importantly, by declaring the CTG design as a basic feature of the constitution’s structure and conferring it immutable status, the Court also seemingly reserved for itself the authority to filter decisions emanating from the political, including the power to intervene when such decisions seek to sidestep the core values of the overarching constitutional order (e.g., democracy) and features that over time become part of it (e.g., the CTG system).
Conclusion: The unsolved riddles
In the March 2026 judgment, the Bangladesh Supreme Court provides a moderate account of the constituent power that can reconcile both continuity and change. It posits the 13th amendment above other amendments considering it to be a product of the constituent power (and not derivative therefrom) as expressed through constituted form (parliament). As discussed, the Court used historical contestation and mass-movement to elevate the status of an amendment as manifesting the exercise of constituent power. This raises several questions: How can one determine whether any subsequent amendment similarly involves the exercise of constituent power? How can one prevent its prospective application by way of possible political co-option? Should this always be a descriptive and retrospective exercise, performed by the Court as was done in the March 2026 judgment? Should there not be any procedures for determining and channelling the exercise of the constituent power through the constituted form? Because as Kelsen would ask, how can the political will be discerned in vacuum without any pre-existing procedure to capture such will? These questions and their answers may further be contested in the rapidly evolving constitutional landscape of Bangladesh.
Suggested citation: Ragib Mahtab, A Moderate Account of Constituent Power: The 13th Amendment Review Judgment in Bangladesh, Int’l J. Const. L. Blog, Apr. 28, 2026, at: http://www.iconnectblog.com/a-moderate-account-of-constituent-power-the-13th-amendment-review-judgment-in-bangladesh/