Bangladesh’s Constitutional Crossroads: The Imperative of a New Charter

The seismic events of July-August 2024 plunged Bangladesh into a profound crisis far exceeding a mere political leadership change. The nation stands at a critical juncture with a fractured legal order, compelling the question: has the existing constitutional framework irrevocably broken down, making a new constitution essential for national healing and stable governance? Sheikh Hasina's departure, the President's constitutionally questionable unilateral dissolution of Parliament, and the subsequent extra-constitutional interim government signal a deeper constitutional rupture, placing the judiciary in an unprecedented, precarious position. While the Constitution's text remains, its selective dismemberment and an alternative authority's de facto operation create legal duality, obliterate legal certainty, and corrode the rule of law. Thus, an outsider might ask: Is there a dual legal system within a single state? This reality demands a courageous solution: creating a new constitution.

To understand this constitutional moment's gravity, legal philosopher Hans Kelsen offers insight. Kelsen argued a legal system's coherence and legitimacy derive from norms validated by a fundamental norm—the Grundnorm. This Grundnorm is not a formal law but the foundational presupposition of legality, the ultimate validity source for the legal edifice. If this Grundnorm is displaced or challenged, the system it underpins risks disintegration. Importantly, invoking Kelsen here is not to legitimise any specific 2024 political outcome. Rather, Kelsenian theory is a diagnostic tool, revealing the legal fragmentation and acute rule of law crisis from the effective collapse of the Grundnorm that once validated Bangladesh's constitutional order.

For decades, Bangladesh's legal and political life was nominally structured by its Constitution. This Constitution drew authority from the Grundnorm—the presupposed commitment to its supremacy and obedience. This provided the architecture for legal coherence. However, 2024's tumultuous events shattered its practical authority. The President's dissolution of Parliament and the installation of an interim government explicitly outside existing constitutional mechanisms signify a definitive break from the established legal order. These are not mere deviations but acts creating a new, nascent source of governing authority. The critical question is how to escape the ensuing chaos and forge a new, unified, legitimate legal foundation. The existing Constitution has proven incapable of managing such a profound crisis, highlighting its inadequacy.

The implications of this constitutional vacuum are dire, especially for the Supreme Court, the Constitution's designated guardian. It is now caught in an untenable position, navigating a landscape where the traditional legal authority, the existing Constitution, is largely moribund in practice, while a new, extra-constitutional authority issues directives. This is not a sustainable duality but a symptom of a broken system. The judiciary cannot function as the rule of law's bulwark when law itself lacks a single, undisputed legitimacy fountainhead.

The immediate casualty of this collapsed Grundnorm is legal certainty. A functioning rule of law, Kelsen underscores, needs a stable Grundnorm. When this shatters, predictability vanishes. Citizens, businesses, and institutions face uncertainty about governing legal standards, as legal validity's basis is contested. This breeds instability and undermines progress.

Furthermore, the institutional integrity of the judiciary is gravely threatened. Judges, sworn to uphold the Constitution whose foundational Grundnorm is no longer operative in critical spheres, face an impossible dilemma. Attempting to reconcile the directives of an extra-constitutional interim government with the letter of a largely ignored constitution creates a judicial schizophrenia. This can lead to inconsistent rulings, erode public trust in the judiciary, and open the door to arbitrary governance.

More fundamentally, the principle of constitutionalism—the bedrock of modern democratic governance—is in peril. Constitutionalism posits the supremacy of a constitution as the embodiment of the people's will and the ultimate source of state power, a hierarchy validated by the Grundnorm. When an extra-constitutional body effectively governs, this hierarchy collapses, paving the way for a system where power may not be adequately constrained by law. The current situation is not merely one of 'selective non-adherence' to the existing Constitution; it represents a comprehensive failure of that constitution to serve as the nation's guiding legal and political compact.

Therefore, the challenge confronting Bangladesh is not merely to 'restore' a fractured legal system or to find ingenious ways for the Supreme Court to navigate an impossible situation. The challenge is to acknowledge that the old Grundnorm has lost its efficacy and that the existing Constitution, as a living document, has ceased to function as the ultimate source of legal and political authority. The urgent, overriding imperative is the establishment of a new constitution.

Why a new constitution? It is imperative for several critical reasons. First, it would establish a fresh and legitimate Grundnorm based on popular will, ensuring a stable and unified legal order. Second, it would definitively end the current legal duality by creating a single, coherent framework, superseding outdated and ad-hoc arrangements. Third, reflecting the people's demand for change, it would embed core principles like accountability and justice, addressing the root causes of the recent national crisis. Fourth, its creation process can foster national dialogue and rebuild trust, contributing to social cohesion. Fifth, it would grant state institutions, including the Supreme Court, a clear and accepted mandate, restoring their effective authority.

Attempting to merely amend or selectively apply the Constitution in the current context is akin to performing surgery on a patient who requires resuscitation and a complete systemic overhaul. The 'selective non-adherence' observed is not a temporary illness but a fatal symptom indicating the demise of the old order's legitimacy.

Bangladesh is at a precipice. The current untenable situation—a partially inoperative Constitution alongside an extra-constitutional governing body—creates a damaging dual legal reality, breeding uncertainty, chaos, and potential arbitrary rule. The courageous, necessary, and ultimately most stabilising path forward is to embark on the journey of crafting a new constitution. This is not merely a legalistic exercise; it is a fundamental step towards national reconciliation, democratic renewal, and the establishment of a just and durable rule of law that can truly serve the aspirations of all Bangladeshis. The time for incrementalism is over. Bangladesh must now embrace foundational renewal through a new constitutional compact.

The writer is Assistant Professor and Chair in the Department of Law at Z.H. Sikder University of Science and Technology.