—Arafat Hosen Khan, Visiting Senior Fellow, LSE Law School
INTRODUCTION: FROM INTERREGNUM TO POLITICAL CONSOLIDATION
Constitutional moments, by their nature, are not permanent. The heightened political energy, popular mobilisation, and institutional openness that characterise such moments are transient: they either produce durable constitutional settlements or they dissipate, leaving behind a landscape shaped by ordinary political calculation. As Bangladesh transitions from the Yunus-led interim government to a political environment increasingly structured around the Bangladesh Nationalist Party’s (BNP) electoral and institutional ambitions, the constitutional moment generated by the July 2024 uprising is not merely incomplete — it risks becoming definitively foreclosed.
This Part examines three interconnected questions. First, what constitutional inheritance does the emerging political reality leave behind? Second, how does the structural exclusion of the Awami League (AL) and other political formations from the NCC process compound the difficulties of any future constitutional consolidation? Third, and most importantly from a constitutional theory perspective, is there a viable path through which the constituent power necessary for genuine constitutional transformation can still be exercised — or has the opportunity been closed?
THE BNP’S CONSTITUTIONAL INHERITANCE: BETWEEN AMBIGUITY AND CAPTURE
The BNP occupies a constitutionally ambiguous position in the current political landscape. On one hand, it was itself a victim of the AL’s power practices: its leader Khaleda Zia was imprisoned on charges widely regarded as politically motivated, its organisational capacity was systematically degraded, and its supporters were subjected to sustained legal and extrajudicial harassment. In this sense, the BNP has a genuine stake in constitutional reforms that strengthen rule of law, judicial independence, and electoral fairness. As I noted in my ConstitutionNet analysis, the BNP formally supported constitutional reform while insisting that an elected government should be the vehicle for its implementation.
On the other hand, the BNP’s constitutional inheritance is complicated by the nature of the NCC process that preceded its political consolidation. The reforms enacted through the February 2026 referendum were not produced through a process in which the BNP negotiated with the full range of Bangladesh’s political forces. They were produced through a process from which the AL and the Jatiya Party were structurally excluded — a process that the BNP, as the principal opposition party and principal beneficiary of the post-uprising political realignment, had every incentive to allow to proceed without insisting on broader inclusion.
The constitutional danger here is subtle but serious. A political party that inherits a constitutional framework shaped in the absence of its major rivals does not inherit a neutral framework — it inherits a partisan settlement. The temptation to treat that settlement as legitimate and binding is powerful; the temptation to use it as an instrument of continued partisan advantage is perhaps equally powerful. Adem Kassie Abebe’s comparative analysis of constitutional legitimacy and democratic backsliding in Africa documents this pattern with precision: post-authoritarian constitutional settlements that exclude the former ruling party tend to generate either the former ruling party’s unconstitutional return or the new ruling party’s instrumentalisation of the settlement for factional advantage. Bangladesh’s political history — marked by precisely this alternating dynamic of exclusion and counter-exclusion — suggests that neither outcome is far-fetched.
The BNP’s conversion of the Anti-Terrorism (Amendment) Ordinance, 2025 into statute through the Anti-Terrorism (Amendment) Bill, 2026 is the most constitutionally significant act of this transition — and the most revealing. The interim government’s executive order banning the AL and its affiliates was, at minimum, arguable as a temporary emergency measure by a non-elected government operating without a parliamentary mandate. Its conversion into an Act of Parliament by the BNP-led legislature removes that defence entirely. Parliament has now made permanent — through democratic institutional form — the legal prohibition of a political party that commands the loyalty of a substantial portion of the electorate. This is weaponised legalism in its most structurally complete expression: not the ad hoc use of legal instruments to suppress political opponents, as documented in the AL period, but the systematic legislative encoding of political exclusion into the constitutional architecture itself. It is precisely the pattern I identified in earlier work as the defining feature of transitional democracies that fail to break the cycle of authoritarian governance — the conversion of political victory into legal prohibition, so that the transition entrenches exclusion rather than overcoming it.
The weaponised legalism that characterised the AL’s suppression of political opposition under the Digital Security Act and its successors did not vanish with the change of government. As I have documented with Yusuph Choudhury in The Diplomat, the interim period itself saw the continuation of press suppression through legal instruments, suggesting that the structural conditions enabling legal weaponisation persist regardless of which party holds power. A constitutional settlement that does not address these structural conditions — and that was not itself produced through a process capable of generating cross-party commitment to addressing them — is unlikely to provide meaningful constraint on their future exercise.
CONSTITUENT POWER AND THE LOGIC OF INCLUSION: WHY EXCLUSION HAS CONSTITUTIONAL COSTS THAT SURVIVE THE EXCLUDED PARTY
Constitutional theory has long recognised that the costs of exclusion in constitution-making are not borne solely by the excluded party. They are borne by the constitutional order itself. The reason is not sentimental but structural: a constitutional framework is a coordination device among political actors. Its effectiveness depends on the degree to which all major actors have reason to regard it as legitimate — not merely as a factual constraint to be navigated or overcome, but as a normatively binding framework deserving of compliance even when compliance is costly.
Velasco-Rivera and Colón-Ríos’s work on permanent constituent power is directly relevant here. They argue that in constitutional systems where constituent power is conceived as permanent and inalienable — where the people retain at all times the authority to revise or remake their constitutional order — the exclusion of significant popular constituencies from a given constitutional settlement does not terminate those constituencies’ constituent authority. The excluded parties retain, in principle, the constituent authority to challenge and revise a settlement made without them. The practical implication is that an exclusionary constitutional settlement creates a permanent instability: the excluded group’s constituent power remains latent, available for mobilisation when political conditions permit.
Bangladesh’s AL, however discredited it may be at this political moment, represents a constituency of this kind. Its exclusion from the NCC process did not extinguish the constituent power of its supporters. It deferred its exercise. And when that deferred constituent power is eventually mobilised — whether through electoral success, popular mobilisation, or institutional pressure — it will confront a constitutional framework that it had no part in shaping and no reason to regard as legitimate. The likely result is either renewed constitutional instability or a constitutional counter-settlement accomplished, once again, without inclusive deliberation.
Sethi’s equitable elite bargaining framework illuminates the path not taken. Sethi argues that durable constitutional settlements in divided societies are achieved not through the triumph of one elite over another, but through a process of structured bargaining in which each significant elite group has sufficient stake in the outcome to prefer constitutional compliance to constitutional challenge. The key word is “equitable”: not merely formal inclusion but bargaining that gives each party a genuine capacity to protect its core interests within the constitutional framework. Bangladesh’s NCC process offered nothing of this kind to the AL or the Jatiya Party. Their exclusion was not equitable bargaining — it was constitutional marginalisation. And the consequences of constitutional marginalisation, as Sethi’s framework predicts, are constitutional instability.
The anti-terrorism ban on the AL and its affiliates creates a specific and acute version of this problem. Sethi’s framework of equitable elite bargaining presupposes that excluded elites retain the capacity, at minimum, to threaten non-compliance — that their exclusion imposes costs on the constitutional framework through their refusal to accord it legitimacy. The anti-terrorism ban attempts to foreclose this capacity by criminalising organised political activity. But the ban cannot criminalise the constituent power of the AL’s electoral constituency, which remains latent regardless of the party’s legal status. What it achieves, instead, is to sever the ordinary democratic channels through which that constituent power would normally be expressed — the party organisation, the public campaign, the electoral candidacy. The result is precisely what Velasco-Rivera and Colón-Ríos‘s framework predicts in the most dangerous case: constituent power that cannot be expressed through constitutional channels but has not been extinguished. The comparative record of party bans in transitional contexts — most instructively the post-war German framework, which prohibited parties only where they actively threatened the free democratic basic order through specific institutional criteria, not organisational association alone — suggests that blanket party bans unconnected to specific judicial findings of violent conduct consistently generate more instability than they prevent.
The Chilean experience offers a cautionary parallel. Samuel Issacharoff and Sergio Verdugo have analysed the failure of Chile’s constitutional process not merely as a procedural failure but as a failure to achieve the kind of cross-ideological legitimacy that durable constitutional change requires. Chile’s Convention, despite its formal inclusiveness, failed to generate the cross-partisan consensus that would have anchored the resulting text against majoritarian rejection. Bangladesh’s NCC, which achieved far lower levels of formal inclusiveness than Chile’s Convention, was correspondingly more exposed to the legitimacy failure that eventually claimed the Chilean reform.
THE DENIAL OF PROCESS: SARA HOSSAIN’S CRITIQUE AND ITS CONSTITUTIONAL IMPLICATIONS
Sara Hossain’s observations at the SHUJAN roundtable deserve to be engaged not merely as political commentary but as constitutional analysis. Her observation that the NCC was a selective process where a few people made decisions without democratic legitimacy identifies what constitutional theorists have called the “input legitimacy” deficit of the NCC: the legitimacy derived not from the quality of outcomes but from the quality of the process generating them.
Her second observation — that no women were included on the NCC, and no female lawyers or judges on the Judicial Reform Commission — identifies a dimension of exclusion that goes beyond party politics. Constitutional processes that systematically exclude women do not merely fail to represent half the population; they fail to incorporate the distinctive constitutional perspectives, priorities, and experiences that gender-inclusive deliberation would generate. Bangladesh’s July uprising was notably characterised by significant female participation; the exclusion of women from the NCC reproduced precisely the institutional gender blindness that progressive constitutionalism aims to overcome. As Ornit Shani’s work on India’s constituent assembly demonstrates, the inclusion of women in constitution-making is not merely symbolic but substantively consequential — it shapes the drafting of provisions relating to rights, equality, and social protection in ways that all-male processes systematically fail to capture.
Hossain’s third observation — that citizens voting in the referendum could not articulate the thirty proposals they were endorsing — raises a fundamental question about the nature of the popular mandate claimed by the referendum result. Joanne Wallis’s work on constitution-making during state building documents analogous problems in East Timor, where minimal participation was substituted for genuine popular engagement, producing a constitution with formal democratic credentials but limited organic connection to the population it governed. The parallel to Bangladesh’s referendum is uncomfortable but accurate: a referendum conducted without adequate public education, on questions whose complexity was not rendered accessible to voters, cannot produce the kind of popular constitutional ownership that genuine constituent authority requires.
THE WAY FORWARD: RECOVERING THE CONSTITUTIONAL MOMENT
Is the constitutional moment definitively foreclosed? This question does not admit of certainty, but it does admit of analytical precision. Constitutional moments, once partially activated, leave residues: institutional reforms partially enacted, political mobilisation partially channelled into constitutional consciousness, a public whose expectations of constitutional governance have been raised even if not fully met. Bangladesh’s July uprising created such residues. The CRC’s proposals, whatever the defects of the NCC process, contain provisions — term limits, judicial independence mechanisms, the National Constitutional Council — that represent genuine advances over the prior constitutional order. These residues create openings for future constitutional consolidation if political conditions can be aligned.
The precondition for recovering the constitutional moment is inclusion. As I have argued throughout this commentary, the fundamental flaw of the NCC process was not its ambition but its selectivity. Recovering from that flaw requires, at minimum, three things.
First, a structured dialogue mechanism of the kind I proposed in my IACL blog analysis — a National Dialogue Forum that brings together the BNP, the AL (including any successor formations), the Jatiya Party, civil society, women’s organisations, minority communities, and youth representatives in a deliberative process that is genuinely open to revision of the current constitutional settlement. Such a forum need not start from scratch; it can work with the CRC’s proposals as a basis. But it must be genuinely open to revision, not merely consultative on a pre-determined text.
Second, meaningful engagement with the AL as a political formation — which necessarily requires revisiting the anti-terrorism ban. The conversion of the 2025 Ordinance into the Anti-Terrorism (Amendment) Act, 2026 has placed Bangladesh in the constitutionally untenable position of attempting to hold elections and consolidate democratic governance while a major political party and all its affiliates remain legally prohibited from participation. The path forward cannot bypass this. Transitional accountability for specific acts — the July killings, systematic electoral manipulation, institutional capture — is legitimate, necessary, and should be pursued through appropriate judicial processes. But accountability through the criminal law is categorically distinct from the political prohibition of a party’s entire organisational existence. As I and co-authors have argued across several platforms, the use of broadly framed security legislation against political activity is the hallmark of weaponised legalism regardless of which government employs it. The BNP’s conversion of the AL ban into statute does not make this use of anti-terrorism law more constitutionally sound — it makes it more constitutionally entrenched, and therefore more urgently requiring of review by either the courts or through legislative revision.
Third, the kind of commitment to procedural integrity — including gender inclusion, transparency, public education about constitutional proposals, and genuine deliberation rather than mere endorsement — that would allow a future constitutional settlement to claim the quality of popular authorship that the February 2026 referendum could not.
As Maartje De Visser and Ngoc Son Bui have argued in their analysis of constitution-making in Asia, the most successful processes are those that achieve what they call “glocalisation” — the embedding of internationally recognised constitutional norms within processes that are genuinely rooted in local political conditions and accountable to local constituencies. Bangladesh’s constitutional reform process, in both its CRC and NCC phases, attempted an externally informed transformation without achieving local constitutional ownership. Recovering the constitutional moment means reversing this dynamic: starting from the political reality of Bangladesh’s divided but plural society, and building upward toward a constitutional framework that all major forces have reason to accept.
CONCLUSION: THE PROMISE MUST STILL BE KEPT
The Yunus-led interim government promised constitutional transformation. The NCC process failed to deliver it on terms that could withstand constitutional scrutiny. Sara Hossain’s withering assessment — that what was produced cannot be called a democratic process in any way — captures not merely a procedural deficiency but a constitutional failure of the first order. The exclusion of the AL, the Jatiya Party, and other significant political forces from the deliberative process; the absence of women from the NCC; the informational inadequacy of the referendum — these are not marginal deficiencies. They are structural failures that go to the root of the constitutional moment’s claim to constituent authority.
The transition to BNP-dominated political reality does not resolve these failures. It inherits them. A constitutional framework produced through selective deliberation will remain selectively legitimate — effective as an instrument for those who designed it, contested by those who were excluded from its making. Bangladesh’s constitutional history has already demonstrated, across five decades, the costs of this cycle. Breaking it requires the courage to include those with whom one disagrees in the fundamental decisions about how the polity will be governed.
The constitutional moment generated by the July 2024 uprising has not yet been fully squandered. But it is at serious risk. The promise of constitutional transformation — the promise for which hundreds gave their lives — has not yet been kept. Keeping it now requires acknowledging what the NCC process could not bring itself to acknowledge: that no constitutional settlement is legitimate unless it is one that all of Bangladesh’s major political forces, including those most recently discredited, have had a genuine opportunity to shape.
The alternative is another iteration of Bangladesh’s constitutional cycle: a settlement made by the powerful, challenged by the excluded, and ultimately overturned — leaving behind nothing more durable than the one that came before.
Suggested citation: Arafat Hosen Khan, Bangladesh’s Broken Constitutional Moment Part II: The BNP’s Inheritance and the Foreclosed Constitutional Moment – Can Reform be Salvaged? Int’l J. Const. L. Blog, May 9, 2026, at: http://www.iconnectblog.com/bangladeshs-broken-constitutional-moment-part-ii-the-bnps-inheritance-and-the-foreclosed-constitutional-moment-can-reform-be-salvaged/