—Kazi Ayman Awsaf, Teaching Assistant, School of Law, East West University, Bangladesh
Introduction
In December 2024, four months after Sheikh Hasina fled Dhaka in the July mass uprising, Bangladesh’s High Court struck down the entrenchment clause that a previous Parliament had inserted precisely to make itself irreversible. The judges did not write on a blank page created by revolution; they wrote, self-consciously, inside the very provision, Article 7B of the 1972 Constitution, that told them they had no power to touch it.
That scene captures Bangladesh’s defining difficulty since August 2024. The uprising that removed Hasina was extra-constitutional in every sense that matters: it drew its authority from the street, not from any procedure the Constitution recognizes. Yet nearly everything that has followed has been forced back through that same text, ordinances issued under Article 93, litigation decided under Articles 7, 44 and 142, and a referendum whose legal weight nobody quite agrees on. In this post, I argue that this is not incidental friction but the transition’s defining feature: a government born of constituent power has been required, at every turn, to exercise only constituted power, and it is in that gap that Bangladesh’s reform agenda keeps stalling.
The Specific Legal Bottlenecks in Bangladesh
Firstly, Article 7B and the limits of eternity. Article 7B was inserted by the Fifteenth Amendment in 2011 to make the Preamble, Parts I–III and several other provisions unamendable through insertion, modification, repeal or any other means, codifying, and arguably superseding, the judge-made basic structure doctrine first recognized in Anwar Hossain Chowdhury v Bangladesh (1989). On 17 December 2024, the High Court Division struck down Article 7B itself, together with Articles 7A and 44(2) and the repeal of the referendum requirement, as inconsistent with the Constitution’s basic structure; the Appellate Division upheld that judgment on 9 July 2026. The paradox is worth naming plainly: a clause designed to be permanently unamendable was itself held unconstitutional, which is only coherent if some norm above Article 7B survived it. The courts resolved this paradox by treating the pre-2011 basic structure doctrine as never actually displaced.
Secondly, ordinance limits under Article 93. The President may legislate by ordinance only when Parliament is dissolved or out of session, only on matters an Act of Parliament could lawfully address, and never to alter or repeal a constitutional provision; any ordinance lapses thirty days after Parliament reconvenes unless approved. The interim government nonetheless used a Referendum Ordinance and the July National Charter (Constitutional Amendment) Implementation Order, 2025, a Presidential Order gazetted 13 November 2025, to design referendum mechanics and to stipulate that newly elected MPs would sit concurrently as a “Constitution Reform Assembly.” Bangladeshi commentators have argued this exceeded Article 93’s own limits, since inventing a constituent body is hard to characterize as something an ordinary Act could equally do (ALBD, 2026). When the 13th Parliament convened in March 2026, well over a hundred such ordinances faced the thirty-day lapse clock, a reminder that ordinance government is, by design, temporary (CGS, 2026).
And lastly, constituent power versus constituted power. Article 142 vests amendment power in Parliament by a two-thirds majority and, after the 2024–2026 litigation, again requires a referendum for basic-structure changes, but that is constituted power, bounded by the very text it amends. It offers no route to a document that belongs to nobody yet. The Implementation Order tried to bridge that gap by having the same elected body sit as both ordinary Parliament and Constitution Reform Assembly, without ever convening a body chosen for constituent purposes alone. When the BNP won a two-thirds majority in the 12 February 2026 election and referendum, it declined to convene that Assembly and opted to pursue reform, if at all, through ordinary Article 142 amendment resolving the paradox, for now, in favor of constituted power over the Charter’s constituent ambitions (ConstitutionNet, April 2026).
Comparative Constitutional Framing
Hans Kelsen’s account of the Grundnorm explains why Bangladesh chose fiction over rupture: a successful revolution produces a new basic norm, but legal continuity afterward is possible only if officials presuppose the old norm never really broke. Bangladesh’s courts did exactly that, unwinding the ousted regime’s amendments through the 1972 Constitution’s own machinery rather than treating August 2024 as a founding moment. Bruce Ackerman’s “constitutional moments” supplies the missing half: higher lawmaking can occur outside a constitution’s amendment clause where it is preceded by sustained mobilization and cross-party deliberation, then ratified by ordinary institutions. The National Consensus Commission’s talks with more than thirty parties through 2025 look like exactly such a mobilization phase; the trouble is that it was never given its own ratification track, but was routed back through Article 93 ordinances and an Article 142 referendum.
Other post-uprising states built that missing track deliberately. Tunisia did not attempt to amend its 1959 Constitution: a law-decree of 16 December 2011 provisionally organized public powers pending a purpose-built Constituent Assembly, which spent over two years drafting an entirely new 2014 text. South Africa’s 1993 Interim Constitution bound its own Constitutional Assembly to thirty-four Constitutional Principles and subjected the resulting draft to judicial certification; the Constitutional Court actually refused to certify the first text in September 1996, forcing revisions before certifying the amended version that December (First and Second Certification judgments). Nepal’s November 2006 peace accord led to an interim constitution in January 2007 that functioned explicitly as a bridge, pending an elected Constituent Assembly that abolished the monarchy at its first sitting in 2008. In each case, constituent power was given its own instrument and its own body before any ordinary legislature finished the job. Bangladesh tried to compress both stages into one; hence the current impasse.
Path Forward & the Future of Constitutionalism
The July Charter is not empty of content. Signed on 17 October 2025 by the National Consensus Commission and two dozen parties, it packages over eighty reform proposals, nearly fifty of these constitutional in nature, including a ten-year cap on any individual’s tenure as Prime Minister, a bicameral Parliament with a hundred-member proportionally elected upper house, and recommendations from the judicial reform commission on appointments and tribunal independence (The Diplomat, 2025). Voters endorsed that package by a clear majority on 12 February 2026. What it never secured was a legitimate procedural home, not a freestanding transitional instrument like Tunisia’s, not an externally certified text like South Africa’s, but a hybrid of ordinance and referendum grafted onto Articles 93 and 142, vulnerable to exactly the kind of ordinary-majority reversal the new BNP government is now exercising.
Responsibility for what happens next sits with the newly elected Parliament and, should disputes recur, the Appellate Division, a court that has now reversed its own caretaker-government jurisprudence twice in fifteen years, restoring the system only prospectively in November 2025. That volatility is itself the lesson: no single authority in this transition, a charter without binding force, a referendum of contested legal effect, a court capable of overturning its own settled doctrine is durable enough to carry reform alone. Unless Bangladesh builds a genuine constituent channel before its next crisis, each future uprising will confront precisely the paradox this one did: a people asked to remake the state using only the tools the old state left behind.
Suggested citation: Kazi Ayman Awsaf, Amending the Unamendable: Bangladesh’s Constitutional Paradox After the July Uprising, Int’l J. Const. L. Blog, Sept. 10, 2026, at: http://www.iconnectblog.com/amending-the-unamendable-bangladeshs-constitutional-paradox-after-the-july-uprising/