The Constitution of Bangladesh—since its adoption by the "controversial" and virtually "one-party" Constituent Assembly of Bangladesh in 1972 has repeatedly come under criticism for its failure to build institutionalism in governance and politics, safeguard human rights, and ensure the independence of the judiciary and the legislature from the executive. Many denounced the Constitution for facilitating autocracy and labelled it as a "fascist constitution." The Fundamental Principles of State Policy in Part II are often dismissed as empty rhetoric due to their unjusticiability, while Fundamental Rights in Part III are constrained by extensive, imposable restrictions. The elevation of ideological principles above civil rights is commonly viewed as a defining trait of fascism. The Constitution's ideological alignment with “Mujibism”—embodying nationalism, socialism, democracy and secularism as its four foundational pillars—has also led some to label it the “Mujibist Constitution.”
Part IV vests executive power in the prime minister-led Cabinet; however, as it does not permit the removal of the prime minister, it results in a concentration of power in the prime minister's hands. This power is further reinforced by their dominant position within the Cabinet and control over MPs through party discipline and Article 70’s enforcement of slavish obedience to the party leader. Part IV further solidifies the prime minister’s power by granting them authority over Cabinet affairs, overshadowing other ministers and centralizing executive decisions.Rahaman, MM. Parliament and Good Governance: A Bangladeshi Perspective. Japanese Journal of Political Science. 2008;9(1):39–62.
Critics argued that the Constitution, due to poorly-defined fundamental rights, has enabled the continued enforcement of the repressive sections of British colonial laws such as the Penal Code of 1860 and the Code of Criminal Procedure of 1898, and facilitated the enactment of post-independence repressive laws such as the Special Powers Act of 1974, and the Cyber Security Act of 2023. Given the prime minister's extensive powers and citizen's limited civil rights, Badruddin Umar has famously termed the Constitution "A Constitution for Perpetual Emergency."
Several organizations and political parties, including the Rastro Sangskar Andolon and the Gonoparishad Andolon, have long campaigned to convene a constituent assembly for the reform or drafting of a new constitution.
After the July Uprising in 2024, the Students Against Discrimination and the Jatiya Nagorik Committee put forward a five-point demand, including the abolishment of the 1972 Constitution. The interim government of Bangladesh, led by Muhammad Yunus, has already established a Constitutional Reform Commission and National Consensus Commission in 2024 with the aim of reforming or drafting a new inclusive, democratic constitution through an elected constituent assembly.
Loopholes in rights provisions Most of the constitutional fundamental rights are subject to extensive, imposable restrictions and these restrictions are not well-defined, creating constitutional ambiguity, which often enabled the government to enact repressive laws like the Special Power Acts of 1974, the Joint Drive Indemnity Act of 2003, the Digital Security Act of 2018, etc. +Classification of fundamental rights based on imposable restrictionRights subject to reasonable restrictionsRights subject to any restrictionsMiscellaneousArticle 36: Freedom of movementArticle 40: Freedom of profession or occupationArticle 46: Power to provide indemnityArticle 37: Freedom of assemblyArticle 41: Freedom of religionArticle 47: Saving for certain lawsArticle 38: Freedom of associationArticle 42: Rights to propertyArticle 47A: Inapplicability certain articlesArticle 39: Freedom of thought and conscience, and of speechArticle 45: Modification of rights in respect of disciplinary lawArticle 43: Protection of home and correspondence
Article 33 and preventive detention The Constitution allows for laws enabling preventive detention, as specified under Article 33. Although such provisions are intended for national security, they have been criticized for being used to detain political opponents, activists, and journalists without trial. This provision, which allowed the enactment of laws like the Special Powers Act of 1974, is viewed as giving the state significant power to suppress dissent, which is a common trait of authoritarian regimes. Article 33 also does not provide explicit avenues for detainees, especially under preventive detention, to seek judicial redress if their rights are violated under this Article. Without robust procedural safeguards or judicial recourse, preventive detention powers are often used to target dissenting voices or political opponents, potentially undermining democratic principles and freedom of expression.
Article 38 and limits of freedom of association Article 38 guarantees the right to form associations and unions, subject to reasonable restrictions in the interest of morality or public order. The government has, at times, suppressed labor rights movements under the guise of maintaining public order, thereby limiting workers' ability to collectively bargain for better wages and working conditions.
The government has often invoked public order and security concerns to restrict the activities of political parties and their ability to hold peaceful assemblies. Such practices limit political pluralism and the ability of citizens to organize for political purposes, diminishing democratic freedoms.
Article 39 and constitutional ambiguity on free speech Article 39 guarantees freedom of speech, expression, and the press, subject to reasonable restrictions for reasons including public order, decency, morality, the sovereignty of the state, "contempt of court, defamation or incitement" and even "friendly relations with foreign states." The term "reasonable restrictions" has not been clearly defined, allowing successive governments to interpret and expand its scope. Laws like the Digital Security Act of 2018, the Cyber Security Act operates within this constitutional ambiguity and was justified under the pretext of maintaining public order or state security, but it led to widespread suppression of dissent and critical journalism through arbitrary arrests of journalists and activists.
The judiciary's interpretation of what constitutes “reasonable” also vary significantly, resulting in inconsistent protection of free speech. Courts have at times upheld restrictions on speech deemed critical of the government or “anti-state,” leading to self-censorship and a chilling effect on public discourse.
"Friendly relations with foreign states" is a unique and broad phrase in the history of global constitutional law as it lacks precise definition, making it possible for authorities to interpret it in a way that could suppress legitimate criticism of international and global issues. For instance, criticism of foreign governments or multinational corporations could be restricted under this provision if deemed to harm diplomatic ties.
Article 44 and limited accessibility of remedies for rights violation Article 44 gives citizens the right to approach the High Court for the enforcement of fundamental rights through writ petitions. However, there are several practical and procedural barriers that limit the effectiveness of this remedy. The legal process for filing writ petitions is often prohibitively expensive and complex, especially for marginalized and economically disadvantaged citizens. This makes access to constitutional remedies inequitable, restricting effective protection of fundamental rights to those who can afford legal representation. Bangladesh's judiciary suffers from significant backlogs and delays in adjudicating cases, including writ petitions. This delay undermines the timely enforcement of fundamental rights, leaving many citizens without effective relief from violations.
Article 46 and power to provide indemnity Article 46 grants the Jatiya Sangsad the authority to indemnify individuals involved in human rights violations, effectively shielding them from legal consequences. This power, unchecked by sufficient oversight, weakens accountability, undermines human rights protections, and threatens judicial independence. The Joint Drive Indemnity Act of 2003 exemplifies the potential misuse of Article 46, enabling Parliament to protect state actors from accountability for serious abuses. Enacted to grant immunity to security forces involved in “Operation Clean Heart,” this law has been widely criticized due to reports of human rights violations during the operation, including torture, extrajudicial killings of 57 people, and arbitrary detentions. Indemnity provisions like these not only prevent victims from seeking justice but also allow systemic abuses to persist under the pretext of maintaining order.
Criticism of executive dominance Executive dominance in the Bangladeshi government is underscored by key constitutional provisions that concentrate power in the office of the prime minister, thereby undermining the separation of powers among the executive, legislative, and judiciary.
Prime minister’s extensive power The Constitution vests the executive power of the Republic in the prime minister-led Cabinet, which is accountable to Parliament. This structure seems democratic but, in practice, results in a concentration of authority in the hands of the prime minister due to the dominant position within the Cabinet and the control over MPs through party discipline. The constitution further solidifies the prime minister's control by granting them authority over Cabinet affairs, overshadowing other ministers and centralizing executive decisions.
Article 70: Anti-defection provision
Article 70 prohibits MPs from voting against their party in Parliament, effectively granting the prime minister significant control over the legislative branch. Since MPs risk losing their seats if they oppose party lines, this article ensures that the ruling party's directives—often determined by the prime minister—are adhered to strictly. This provision essentially weakens parliamentary checks on the executive, as MPs cannot freely challenge or scrutinize executive actions, especially when the ruling party holds a majority. That is why Article 70 is often treated as a constitution impediment to parliamentary democracy.
Criticism of the drafting process