The 13th Amendment case and the legitimacy of the July charter implementation order

The current controversy surrounding the July National Charter (Constitutional Reform) Implementation Order, 2025 stems largely from its nomenclature. Much of the debate has focused on whether the constitution empowers the president to issue a “president’s order.” Critics argue that such orders were permissible only during the immediate post-independence transition, up to the first sitting of parliament in April 1973, and that the present constitution contains no provision authorising an instrument of this kind. While this argument is not without basis, it ultimately misses the point.

The label attached to the instrument is of little legal consequence. Whether it is called an “order” or otherwise is not determinative of its validity. The real question is not one of form but of substance: does the implementation order derive from a lawful source of authority? If it does, its nomenclature becomes irrelevant.

Critics insist that such authority must be found within the four corners of the 1972 constitution. But this assumption fails to engage with a deeper constitutional reality, one that has been clearly articulated in the recently released full judgment of the Appellate Division in the 13th Amendment case. The judgment affirms that the people, as the ultimate sovereign, retain constituent power, and this power is not extinguished upon the adoption of the constitution but continues to inhere in them. This is not merely a theoretical proposition; it provides the legal foundation for understanding moments of constitutional transformation—moments when authority flows not from the constitutional text but from the people themselves.

The July charter implementation order must be understood in this context. It was not the product of an ordinary exercise of constitutional power. It emerged from what can properly be described as a “constitutional moment” marked by widespread public engagement, mass mobilisation, and a fundamental reassessment of the existing constitutional order. The events of July-August 2024 represented a rupture that reactivated popular sovereignty in its most direct form. To evaluate the implementation order solely against the provisions of the 1972 constitution is, therefore, to apply the standards of ordinary governance to an extraordinary constitutional transformation.

Critics may likely object that the constituent power of the people cannot be invoked once the constitution has been enacted, and that following enactment of the constitution, all powers must be traceable to the provisions of the constitution. However, this issue has now been addressed by the Appellate Division in the 13th Amendment judgment. The Appellate Division, while endorsing “modern constitutional scholarship (e.g. Böckenförde, Rubinelli),” has held that “the constituent power does not expire after the Constitution’s adoption but remains dormant within the people.” The Appellate Division observed that the caretaker government provisions were enacted in exercise of the people’s constituent power, which was triggered following mass mobilisations in the backdrop of a “crisis of electoral legitimacy,” and that such an exercise of authority originate from a source “superior to the text” of the constitution itself. In such cases, where an act reflects the direct sovereign will of the people, it may stand beyond the scope of ordinary constitutional limitations.

This principle is directly relevant to the present context. In August 2024, following the collapse of an authoritarian regime, the people of Bangladesh reactivated their constituent power. The establishment of the interim government and the subsequent reform process were not ordinary political developments but were expressions of this deeper constitutional authority. The implementation order forms part of that process, and its legitimacy is further reinforced by the overwhelming public endorsement it received in the referendum of February 12, 2026.

The continued existence of the 1972 constitution does not undermine this conclusion. It is sometimes suggested that unless the constitution is formally abrogated or suspended, all authority must remain subordinate to it. This argument overlooks a critical point: constituent power does not cease to operate simply because the constitution remains in force. As the Appellate Division recognised, the people retain powers as “the final arbiter of the quality of governance and of the resultant change in the instrument and mode of governance.” The constitution itself is a product of this authority, and in moments of transformation, that authority may reassert itself without undermining or negating the existing text.

The 13th Amendment judgment further conceptualises the constitution as a form of social contract, with the people as its ultimate authors. In times of crisis, the people may renegotiate that contract. The court pointed to the mass movement of 1990 and the demand for a neutral caretaker government as an example of such renegotiation, describing them not as ordinary amendments but as expressions of constituent power reshaping the constitutional order. The events of 2024 must be understood in similar terms. The mass uprising triggered a process through which the people sought to redefine the structure and functioning of the state, a process reflected in the establishment of various reform commissions and the broader constitutional reform agenda.

In this light, the search for a specific constitutional provision authorising the implementation order is fundamentally misplaced. No such provision exists, and none is required. The authority for the order lies not in Article 93 or any other provision of the constitution, but in the sovereign will of the people expressed during a constitutional moment. To insist on textual authorisation is, in effect, to deny the legal significance of that moment altogether.

The implementation order is thus best understood as an instrument of transitional constitutionalism. It does not displace the constitution but places it within a broader framework in which the people’s sovereign prevails in moments of transformation. By providing for a referendum and a Constitution Reform Assembly, it channels that will into a structured and deliberative process.

The democratic legitimacy of this process is clear. The order was issued well before the referendum and understood by voters, who knew their representatives would serve both legislative and constituent roles. All major political parties campaigned in favour of the “Yes” vote in the referendum. The referendum, approved by a substantial majority, constitutes a direct expression of popular sovereignty. As the 13th Amendment judgment recognises, constitutional change may rest on broad popular consensus, a condition which has been clearly met here. The implementation order is thus not an anomaly but an expression of a foundational principle—that sovereignty resides in the people, and when exercised in their constituent capacity, their will has legal force. To deny its validity is to reduce popular sovereignty to a mere abstraction, an outcome that the 13th Amendment judgment firmly rejects.

Barrister Imran A Siddiq is a senior advocate. He has served as a member of the Constitution Reform Commission (2024-2025) and a member of the expert legal panel of the National Consensus Commission (2025).

Views expressed in this article are the author's own. 

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