—Md. Imamunur Rahman, Assistant Professor of Law, Department of Law, Z. H. Sikder University of Science and Technology, Bangladesh
In the lexicon of modern constitutionalism, the “unconstitutional constitutional amendment” is a familiar paradox. Courts in India, Colombia, and Kenya have firmly established that a constituted power cannot use its amending authority to destroy the constitution’s core identity. But the recent jurisprudence emerging from Bangladesh forces us to confront a dilemma that is theoretically more acute and practically more insidious: Can a constitutional amendment be declared unconstitutional if it merely seeks to restore the original text of the Constitution as enacted by the founding fathers?
On October 20, 2024, the Appellate Division of the Supreme Court of Bangladesh delivered its review judgment in Bangladesh v. Advocate Asaduzzaman Siddiqui (2024), finalizing the decade-long jurisprudential struggle that pitted the judiciary against Parliament over the mechanism of judicial removal. It finally invalidated the Constitution (Sixteenth Amendment) Act 2014 that restored an original constitutional provision (Article 96), which empowered Parliament to remove judges via a resolution supported by a two-thirds majority. This judgment serves as a watershed moment for comparative constitutional theory. It offers a compelling case study of two emerging phenomena: the political strategy of “Abusive Originalism” and the judicial counter-strategy of “Intra-Judicial Separation of Powers.”
The Constitutional Context: Restoration or Retrogression?
The Sixteenth Amendment was framed by the government as a benign restoration of the founders’ original democratic design. It sought to abolish the Supreme Judicial Council (SJC)—a peer-review disciplinary body for judges—and revert to the original 1972 constitutional provision, which vested the power of judicial removal (impeachment) in the Parliament.
On the surface, this argument is compelling. The 1972 Constitution, drafted under the leadership of Dr. Kamal Hossain, was grounded in the Westminster model, relying on the wisdom of Parliament and the “dignified” restraint of political actors. The SJC, conversely, was created by the Proclamation (Amendment) Order 1977, a martial law instrument. Although the Second Proclamation (Tenth Amendment) Order 1977 later reconfigured the Supreme Court’s structure, it left the SJC’s removal mechanism intact, thereby embedding it into the constitutional framework with a fundamentally non-democratic foundation.
However, the Supreme Court rejected this “restoration” argument. In doing so, it implicitly recognized that the constitutional identity of Bangladesh had migrated from the 1972 text into an evolved basic structure. To theorize the Court’s reasoning, we must first conceptualize the government’s strategy as one of Abusive Originalism.
Abusive Originalism: Weaponizing Nostalgia
Scholars like David Landau and Kim Lane Scheppele have documented how “abusive constitutionalism” and “autocratic legalism” involve the use of novel legal mechanisms to erode democracy. The Bangladeshi case reveals a different strategy: the weaponization of history.
Abusive Originalism is a political strategy whereby a dominant executive selectively restores an original constitutional provision, citing the legitimacy of the founding moment, while ignoring the evolved ecosystem that renders that original provision toxic in the present. It is an act of “hermeneutic gerrymandering”—reviving the textual form of the past to dismantle the functional substance of the present.
The toxicity of restoring the original Article 96 in 2014 stems from a fundamental rupture in the constitutional order. While initiated by the authoritarian Fourth Amendment in 1975, this rupture was constitutionally cemented when the Supreme Court, in the Fifth Amendment Case,[1] declared the Constitution (Fifth Amendment) Act 1979 unconstitutional—yet condoned the SJC mechanism (which that Act had ratified) rather than reverting to the original text—a shift later tacitly ratified by Parliament itself in the Fifteenth Amendment in 2011.
This rupture implies that the 1972 text cannot simply be “revived” because the conditions for its validity no longer exist. The original design presumed a Westminster-style Parliament capable of independent action. This presumption was effectively nullified by the subsequent evolution of Article 70—a rigid anti-defection clause that creates a structural impossibility for MPs to vote against the executive party line.
To theorize this rupture, I adapt the concept of “Constitutional Synallagma.” While Giuseppe Martinico has employed this term to describe the reciprocal complexity between the EU and national legal orders, I deploy it here to describe the internal logic of the Constitution itself. Borrowing from civil law, I posit that constitutional provisions exist in a state of reciprocal validity. The 1972 impeachment power was in a synallagmatic contract with the assumption of parliamentary independence. Article 70 breached that contract. Consequently, restoring the 1972 text does not restore a democratic balance; it weaponizes a historical form to give the executive absolute control over the judiciary.
Residual Constituent Power and the “Final Sentinel”
To invalidate the “original” text, the Court had to move beyond the prohibitory logic of the Kesavananda doctrine (which prevents altering the basic structure). Affirming the 2017 verdict, the Siddiqui review decision effectively held that the Court possesses a “Residual Constituent Power.”
This is a bold, potentially controversial assertion that could be criticized as a judicial power grab. Yet, the Court’s logic is better understood as commissarial rather than sovereign. Facing a “pathological” state where the legislature is fused with the executive via Article 70, the Court acted as the Schmittian “Guardian of the Constitution.” It asserted the authority to define the necessary conditions of state survival—specifically, judicial independence—when the political branches were deemed structurally incapable of doing so. This is not a usurpation of the people’s primary constituent power, but a defensive, emergency activation of residual power, invoked solely to prevent the constitutional order from self-annihilation.
Intra-Judicial Separation: A Corrective to “Juristocracy”
Perhaps the most sophisticated contribution of the 2024 review decision is its answer to the critique of “juristocracy.” Ran Hirschl has famously argued that the empowerment of judiciaries often represents a “hegemonic preservation” of elite power. By striking down parliamentary impeachment in favor of the SJC (judges judging judges), the Siddiqui judgment risks appearing as a textbook example of judicial self-dealing.
The Siddiqui review judgment, however, directly addresses this critique by institutionalizing a novel doctrine: “Intra-Judicial Separation of Powers.” In a remarkable act of judicial self-limitation, the Appellate Division struck down its own previous formulation of a judicial “Code of Conduct” (issued in the 2017 Siddiqui decision) as ultra vires. The Review Bench held that the SJC is a constitutionally “distinct and separate” entity from the Supreme Court’s adjudicatory wing. It ruled that the power to prescribe the Code of Conduct belongs exclusively to the SJC, not the Appellate Division.
This fragmentation of judicial power creates an internal check. It suggests a model where judicial independence from the executive is balanced by internal judicial accountability, ensuring that the Supreme Court as an institution cannot monopolize the disciplinary process. The SJC stands as an autonomous “Fourth Branch,” distinct from both the Executive and the Judiciary’s adjudicatory arm.
Conclusion
The Siddiqui saga positions the Supreme Court as a “Final Sentinel” of the constitutional order. It demonstrates that in fragile democracies, the text of the constitution must at times be subservient to its spirit. While this raises enduring questions about the limits of judicial guardianship, the Court’s dual maneuvers offer a globally relevant blueprint. By naming and neutralizing the paradox of Abusive Originalism, and by responding with the self-limiting doctrine of Intra-Judicial Separation, the Court has charted a path for judiciaries to defend the rule of law against the misuse of a nation’s own history, while consciously attempting to check their own power from within.
Suggested citation: Md. Imamunur Rahman, Abusive Originalism and the Paradox of the Unconstitutional Original Provision: The Bangladesh Supreme Court’s Siddiqui Review, Int’l J. Const. L. Blog, Dec. 19, 2025, at: http://www.iconnectblog.com/abusive-originalism-and-the-paradox-of-the-unconstitutional-original-provision-the-bangladesh-supreme-courts-siddiqui-review/
[1] Khondker Delwar Hossain v. Bangladesh Italian Marble Works Ltd. (2010) 62 DLR (AD) 298 (Bangladesh). The Appellate Division subsequently modified this ruling in its review decision, Bangladesh v. Bangladesh Italian Marble Works Ltd. (2011) Civil Review Petition Nos. 17–18 of 2011, declaring the SJC’s authority to be provisional and valid only until 31 December 2012.