When 'Amendment' serves, 'Reform' becomes redundant

Amendments are not timid marginal notes but the careful illumination of a living constitutional text, refining without rupture and preserving continuity over reckless reinvention. Where sweeping reform risks institutional amnesia, amendment reflects juridical prudence by cultivating endurance, tending roots rather than uprooting the entire edifice, and advancing change through disciplined, incremental calibration rather than theatrical disruption. 

To encompass the recent debate on 'amendment vs reform', I rely on two questions whether the Jamaat-NCP's desired transformations can be achieved through amendment and whether any legal, procedural, or theoretical basis exists for wholesale reform. In 55 years, Bangladesh's Constitution has been amended 17 times, and except for two or three cases, most served prevailing political objectives. The present government appears willing to accept opposition demands within the procedural framework but not beyond its foundational structure, while the opposition, burdened by accumulated grievance and emotion, remains adamant to move beyond rhetoric, privileging rupture over constitutional reform.

To excavate the constitutional genesis of Bangladesh is to return to April 10, 1972, when the Constituent Assembly commenced its sovereign mandate. The Constitution Bill was adopted on November 4 and came into force on December 16, 1972, consecrated by the nation's first Victory Day. Yet this foundational charter, though normatively conceived, has recurrently been instrumentalized through amendments to serve ruling interests, at times engendering authoritarian consolidation, curtailment of human rights, and even mass uprisings. Of the 17 amendments, most were politically expedient rather than jurisprudentially principled.

Subsequent amendments followed similar trajectories of political utility. The Sixth facilitating Justice Abdus Sattar's presidency. The Seventh legitimizing General Ershad's regime. The Eighth declaring Islam as the state religion. The Ninth limiting presidential tenure and formalizing the vice presidency. The Tenth mandating elections within 180 days. The Eleventh validating Justice Shahabuddin Ahmed's interim presidency. The Thirteenth introducing and the Fifteenth abolishing the caretaker government. The Sixteenth restoring parliamentary authority over judicial removal.

Given this historically entrenched pattern of purposive amendment, it is both plausible and procedurally appropriate to accommodate the Jamaat-NCP block's demands including the July Charter's 48 clauses within the existing constitutional framework through amendment. These proposals have already been tabled in Parliament and upon securing a two-thirds majority may be incorporated into the Constitution. Thus whether denominated as reform or amendment becomes a matter of semantics rather than substance.

Since, no government or parliament can bind its successor, as each legislature derives authority from the sovereign people and remains constitutionally coequal in supremacy. Hence, if the BNP does not raise the July Charter in Parliament, the opposition has no enforceable constitutional remedy, even if the ruling party professes full commitment to its implementation.

The issue of constitutional reform then turns on competence and legality, both of which are doubtful under the present framework of Bangladesh. First, the July Charter Implementation Order lacks a clear constitutional foundation. BNP leader and former law minister Salahuddin Ahmed termed it 'void ab initio', arguing that the presidential order is neither an ordinance under Article 93 nor a law with independent authority. Without constitutional grounding it cannot attain legal force, and questions also arise over the dual oath taken by MPs as members of the Constitutional Reform Council.

Second, representational legitimacy is contested. Though over 50 parties registered with the Election Comission, only about 30 were included in the so called consensus commission, many of those unregistered, weakening its claim to national consensus. Within it, most parties including the BNP submitted 'note of dissent' on many issues, yet these were omitted in the final July Charter, prompting allegations of misrepresentation while the government sought to project it as 'a national document'.

Third, Article 12 of the Implementation Order requires incorporation of the Charter into the Constitution, raising the question of whether an interim government can impose binding directives on Parliament or a reform council. If constitutional incorporation is ultimately parliamentary, a parallel council becomes legally redundant, as amendment authority lies solely with the Parliament.

Fourth, as Andaleeve Rahman Partho noted, genuine revolutionary change would have required a 'transitional revolutionary government' to rewrite the Constitution rather than operating under the existing one while simultaneously attempting to replace it. The interim government instead took oath under the Constitution, issued orders within it, and later sought to override it, creating an internal contradiction.

Fifth, there was no separate electoral mandate for a Constitutional Reform Council beyond parliamentary elections and referendum, limiting its legitimacy. Sixth, no gazette notification confirmed council membership oaths, raising questions about legal validity. Seventh, after the February 12 elections and referendum, Parliament was convened but no reform council session was called, as no constitutional provision authorizes it.

Eighth, Article 71(1) of the constitution bars dual parliamentary representation while Article 11 of the Implementation Order equates council members with MPs, creating a legal contradiction by treating Parliament and the council as parallel constitutional bodies despite their distinct status, making dual membership constitutionally untenable.

My second justification is the need for reform. Jammat-NCP actually mean rewriting by reform. Here lies the problem. Why do they want this rewriting? When looking for the answer to this question, two things come to the fore. One is a historical and ideological continuity of contestation against the 1972 constitutional settlement. Sections of the current opposition did not support independence in 1971 and have repeatedly delegitimized the Constitution through shifting labels, initially calling it 'imposed by India', later describing it as 'Mujibist', 'fascist's constitution', or 'Hasina's constitution', thereby persistently challenging its foundational legitimacy and sovereignty framework.

The other is dissatisfaction with representation in proposed amendment mechanisms. BNP leader Salahuddin Ahmed suggested a parliamentary committee for 'amendment' with government and opposition members, initially opposition leader and Jamaat Amir Shafiqur Rahman agreed with it and demanded for equal representation. But when BNP later proposed proportional representation based on parliamentary seats, they changed their mind and warned for occupying street for 'reform council'!

So, what is the underlying point here? The political double-standard of Jamaat and the NCP evokes the well known anecdote of 'Sona Mia and Lal Mia' by former BNP leader Salahuddin Quader Chowdhury, who was executed following conviction in a war crimes tribunal under the Awami League government. Constitutional oaths are accepted as valid under the existing framework, presidential ordinances are invoked as legitimate instruments of authority, yet the same constitution is simultaneously deemed deficient and in need of wholesale reform. Seleucus indeed!