Can the July Charter override the constitution?
The July Charter has placed Bangladesh in the midst of a constitutional conundrum: can an arrangement born outside the constitution, grounded in political consensus rather than a popular mandate, be said to carry the force of the nation's supreme law? Anchored in Section 22 of the July Declaration, the charter purports to advance core reforms of state institutions through "lawful means." The central issue, however, is what those "lawful means" entail and whether they can be squared with the constitution's own framework of legitimacy.
A group of legal experts has proposed a possible roadmap to resolve the deadlock. They contend that the interim government can enact a Constitutional Order pursuant to Section 22 of the July Declaration, incorporating core reforms from the charter, which would take effect immediately. Subsequently, the constitutional order could be subjected to a referendum, conducted concurrently with the upcoming general election. Finally, should the referendum endorse the order, the reforms would gain retroactive legitimacy from the date of their enactment. According to a report, the National Consensus Commission (NCC) has recently forwarded this suggestion during talks with political parties.
For all latest news, follow The Daily Star's Google News channel. However, this roadmap raises more constitutional questions than it answers.
Political opinions on the legitimisation and implementation of the charter also remain as fractured as before. The Jamaat-e-Islami, for instance, has backed the proposal of a constitutional order but insisted on a referendum before the polls, rather than on election day as suggested by the NCC, while Article 106 of the constitution could provide ancillary support for judicial determination of its validity. The National Citizen Party favours a constituent assembly through which the interim government could start implementing the reforms, which might also function alongside the next parliament.
The BNP has rejected the new proposal, warning that it could create "constitutional disorder." No such change should occur without an elected parliament, it insists, although it has softened its opposition to ordinance-led amendments and now seeks the Supreme Court's view on whether a Special Constitutional Order could serve as the vehicle. The BNP further warns that tying the July Charter to an election-day referendum would reinstate Article 142, reopening the door to constitutional amendments by referendum on core issues.
The prevailing deadlock may prompt judicial scrutiny of the proposed constitutional order. The juxtaposition here is strikingly vivid: the current administration is being expected to elevate a constitutional order above the constitution itself, even as it invokes Article 106 to infuse it with constitutional validity. In other words, those sworn to uphold the Constitution are seeking a means to circumvent it. This scenario is less a matter of constitutional theory than a tangled assemblage of constitutional precepts—an ad hoc construction masquerading as legal necessity.
This scenario inevitably evokes State v Dosso (1958) in which Pakistan's Supreme Court, invoking Hans Kelsen's "revolutionary legality" concept, redescribed martial law as a "new legal order"—a precedent that undermined constitutional supremacy until repudiated in Asma Jilani (1972). Challenging constitutional issues were often ducked by the judiciary, labelling them "political." In Dulichand, the Appellate Division also avoided ruling on the validity of Yahya Khan's martial law, only to denounce him as a usurper later. After independence, Bangladesh also suffered in Dosso's shadow. Post-1975, the Halima Khatun and Joynal Abedin cases upheld martial law proclamations, effectively ousting judicial review and subordinating the constitution to extra-constitutional authority. In Ehtaeshamuddin, the court went further, ruling that the constitution remained subservient even after its revival. In short, legality was not merely suspended; it was surrendered.
The legality of extra-constitutional rule came into sharp focus again in 2005 in Italian Marble Works Ltd. v Government of Bangladesh. In a didactic yet searing tone, the High Court dissected Pakistan's judicial surrender in Dosso. It rebuked political elites, depicting them as complicit in "treachery," "mishaps," and even "acts of treason." The question was finally put to rest in the Fifth and Seventh Amendment cases, which upheld the High Court's ruling and reaffirmed that the constitution—the embodiment of the sovereign will of the people—is the supreme law of the land. Any legislation or action that contravenes it is null and void; furthermore, the legislature, the executive, and the judiciary—three foundational branches of a state—are obligated to function within its parameters.
With the talk of adopting the July Charter and Declaration, the spectre of extra-constitutional legality has re-emerged. For those committed to constitutional democracy, it is exasperating. Bangladesh's judiciary now faces a familiar, wearying choice: repeat Dosso's surrender, or finally uphold constitutional supremacy as affirmed in the Fifth and Seventh Amendment cases.
Authority is being sought through a constitutional order under the July Charter, but Bangladesh's jurisprudence has long rejected such shortcuts to rewriting the fundamental law. Article 7 declares the constitution supreme; anything inconsistent with it is void. Article 142 prescribes the only amendment route—through parliament. Even parliament itself is checked by the basic-structure doctrine. If an elected legislature cannot dismantle the core of the constitution, the notion that an unelected interim body can do so is—to put it plainly—constitutional alchemy of the most dubious sort.
Bangladesh's courts have been here before. In the Fifth Amendment case, the judiciary called itself the "only guardian" of the constitution and struck down martial law decrees. The Seventh Amendment case warned against leaving even the "last traces of extra-constitutional ambition." Articles 7A and 7B were written precisely to prevent history from repeating itself. To legitimise the July Charter through such a process would not only betray precedent; it would render those hard-won safeguards little more than ornamentation.
Constitutionalism transcends mere legal formalities. It mandates that power be bounded, accountable, and anchored in the sovereign will of the people. The defenders of the July Charter may cast its supremacy over the constitution as an expression of the "people's will," deriving its authority from the July uprising. But in a constitutional democracy, the people's will is embodied in the constitution and periodically measured through elections. A constitutional order that asserts the power to amend the constitution through unelected means undermines this principle. And when abrogation of the nation's supreme law is permitted, it does not bring stability; it instead erodes the safeguards the constitution was designed to uphold.
For the judiciary, this situation constitutes a bitter irony: the very bench sworn to uphold the constitution now risks binding itself in subservience to an extra-constitutional command. In deciding the charter, the court would be determining the validity of its own existence. But constitutional supremacy demands confronting that paradox head-on. Legitimacy cannot spring from illegitimacy, and no doctrine of necessity can justify survival at the constitution's expense.
Bangladesh's constitutional framework now stands at a crossroads. The judiciary may choose to cloak the July Charter in the language of "necessity" or "political question," echoing Dosso's surrender. Alternatively, it may adhere to its own precedents in the Fifth and Seventh Amendment cases. To validate the charter this way would risk normalising what the constitution forbids and undoing the safeguards built to prevent repetition of the past. The path the court chooses will decide whether Bangladesh learns from Dosso or repeats it.
Sangita Gazi is a lecturer and research fellow at the Wharton School, University of Pennsylvania.
Views expressed in this article are the author's own.
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