Without reforms, the country could return to its old crisis

Ali Riaz: The principal goal of the Constitutional Reform Commission, along with several other reform commissions, was to reform the state system in a way that would help build a democratic and accountable state structure. More specifically, the objectives of the Constitutional Reform Commission included ending the concentration of power in the executive branch, particularly the excessive concentration of authority in the hands of the prime minister; ensuring the independence of constitutional and certain statutory institutions such as the Election Commission, the Public Service Commission, the Comptroller and Auditor General, and the Anti-Corruption Commission; creating a framework to guarantee judicial independence; establishing a balance of power between the prime minister and the president; creating a permanent mechanism for appointing a caretaker government; ensuring proper representation of women; reducing the dominance of a single party in the process of constitutional amendments; and expanding citizens’ fundamental rights.

Beyond these proposals of the Constitutional Reform Commission, the Consensus Commission also set objectives based on recommendations drawn from other commissions. For example, one such objective was strengthening local government institutions.

Ali Riaz: The Consensus Commission was not responsible for implementing the reforms. Its objective was to create an agenda for reform and to build a degree of consensus among political parties. Therefore, there was no attempt to carry out constitutional reforms during the tenure of the interim government; only some laws were amended. Those amendments were made through discussions with political parties, and they gave their consent. But we should not forget that the pledge of the July mass uprising was structural reform, and the interim government had a responsibility in that regard.

There is no doubt that major structural reforms require time. That is why the Consensus Commission proposed the formation of a “Constitutional Reform Council,” which later received public approval through a referendum. Reforms would then be carried out through that council and the elected parliament. Still, it is true that it would have been better if there had been more time for discussions on structural reforms; other countries have allocated much more time for such processes.

However, you surely remember that while the Consensus Commission process was underway, political parties were pressuring the government to hold elections. There was even propaganda claiming that the interim government wanted to remain in power for a long time “under the pretext of reforms.” During the second phase of discussions with the Consensus Commission, many political parties showed more urgency about elections than about shaping a reform framework and agenda, and the commission had to take that reality into account. Some parties were also inadequately prepared on reform issues. Even so, a clear agenda for state reform was ultimately developed.

Ali Riaz: Neither the Consensus Commission nor the interim government tried to impose anything. During commission meetings and in discussions with the media, I repeatedly said that the commission did not want to force anything upon anyone. There are many examples proving that the commission did not try to impose its views. At the beginning of the discussions, there were 166 issues on the table. In the first phase, consensus was reached on 64 of them, and 20 constitutional issues were discussed in the second phase. This clearly shows that the commission removed 82 issues from the agenda after considering political parties’ opinions, as well as practical constraints and time limitations.

In fact, although some issues were brought back in revised form during the second phase of discussions, 25 proposals were dropped entirely. Moreover, during the second phase, several proposals were revised multiple times in response to discussions. One only needs to look at the debate over the proposed National Constitutional Council (NCC). Although most parties agreed with the proposal, it had to be dropped in the face of strong objections from the BNP and several other parties, in the interest of moving the discussions forward.

Similarly, after five days of discussions on women’s representation, what was ultimately adopted was nowhere near the commission’s original proposal or aspirations. Do these examples not demonstrate that nothing was imposed?

Ali Riaz: When decisions are made collectively through discussion and deliberation, any objections from participants are recorded as notes of dissent. Such disagreements may concern procedure, or they may relate to the substance of the decision itself. During discussions on the July National Charter, there were notes of dissent on several issues. However, decisions were ultimately made when a significant majority of participants agreed on a proposal.

In matters of state reform, merely having a majority among political parties — even a two-thirds majority — is not enough. One must also consider whether the people actually want it and whether it aligns with the core objectives. That is why public opinion is necessary to determine whether these matters should be implemented. In this case, that opinion was sought through a referendum. Suppose one party disagrees on an issue, but the majority of citizens say they want to see that decision implemented; then it becomes the responsibility of the ruling party to take steps toward implementation.

Ali Riaz: No, it was not the commission’s position, which is why it was written separately in brackets alongside the note of dissent. It was an explanation attached to the note of dissent. Similar explanations were included with other notes of dissent as well. The commission agreed to it because, at that time, no decision had yet been made regarding the mechanism for implementing the charter.

There were also two additional reasons. First, some parties had objected to signing the charter unless such a statement was included. Second, we believed that even if a party submitted a note of dissent, this wording would still allow that party to change its position later if it chose to do so.

Ali Riaz: Our considerations — that is, the considerations of the Consensus Commission — were stated in the recommendations submitted to the government, and they were also mentioned in the preamble of the order itself. At the same time, if you recall the second phase of discussions between the Consensus Commission and the political parties, you will see that the underlying consideration was that the interim government had the authority to take steps to implement the aspirations expressed by the people through the 2024 mass uprising.

Although there was no provision for an interim government within the existing constitution, an interim government was nevertheless established; the country was governed under its leadership, laws were enacted, and budgets were passed. The same legal basis that justified those actions also served as the basis for issuing this order.

The Consensus Commission had said that the “government” would issue the order. At the time, the BNP Secretary General stated in a written press briefing: “The government has no authority to issue such an order. According to the definition in Article 152 of the Constitution, an ‘order’ has the status of law. Therefore, issuing it falls within the authority of the president.”

Our argument was that political parties themselves had maintained that after the mass uprising, solutions could not be sought solely within the framework of the constitution. The 2024 mass uprising did not take place merely to preserve or restore the provisions of the constitution as they existed.

Ali Riaz: The order explained which issues had achieved consensus and where major differences remained. It also referred to the charter, where those matters were explained in detail. The purpose of the order was to define the path toward implementation. The central issue there was seeking public approval; the order itself did not attempt to implement any constitutional provisions directly. Political parties were free to express their objections, and there was no restriction on that.

Moreover, to my knowledge, no referendum ordinance or ballot anywhere in the world has ever included notes of dissent.

Ali Riaz: First of all, there were not four separate questions. There was only one question — whether voters supported the various recommendations of the charter, which had been divided into four categories.

Second, holding a referendum on the basis of a single question is an internationally established practice. A few examples may clarify this. In Turkey, under Erdoğan’s government in 2017, a referendum was held on 18 constitutional changes. Those 18 matters included the personalization of executive power, reducing the authority of the legislature, and weakening judicial powers — all highly significant issues.

The ballot essentially listed all 18 matters together and asked voters to give a single “Yes” or “No” response. In many countries, entire constitutions have been put to referendum through a single question. In Tunisia in 2002, a referendum was held on a new constitution containing 140 articles. In Kenya in 2010, a referendum was held on a constitution containing 260 articles.

Third, the constitutional reform proposals that were presented were interconnected. Implementing them separately would not produce meaningful reform; comprehensive reform was only possible if they were implemented together. That is why the question was framed in this way.

Ali Riaz: The failure to approve the Referendum Ordinance has two dimensions — political and legal. Politically, it is uncomfortable because the proposal for the referendum itself originally came from the BNP, yet now that the BNP is in power, it is refusing to recognize it. That is certainly not a positive development.

From a legal standpoint, however, the expiration of the ordinance does not invalidate the referendum. There is a distinction between the continued existence of a law and the validity of actions taken under that law while it was in force. Once the specified time expired, the ordinance ceased to remain effective. But while it was active, it was still a valid law.

The referendum was conducted under that valid legal framework. The ordinance related to the process itself. Once the process had been completed, the ordinance had effectively fulfilled its purpose. Therefore, its later expiration does not undermine the legality of actions already taken under it.

Ali Riaz: I would respectfully disagree with the Home Minister’s comment. The doctrine of factum valet generally refers to validating an act that has some legal defect but is nevertheless treated as valid because it has already been completed. But there was no defect in the Referendum Ordinance. The referendum was conducted under a valid ordinance. Therefore, I do not agree with describing it as factum valet.

Ali Riaz: We proposed the Constitutional Reform Council because, during the Consensus Commission’s discussions with political parties, there was extensive debate over implementation, constitutional amendments, and reform. It was repeatedly argued that a parliament only possesses amending power, not constituent power. Unless the people explicitly grant parliament that constituent authority beforehand, any fundamental structural changes could be challenged in court and would likely be struck down. That has repeatedly happened in Bangladesh’s past.

As a result, political parties themselves raised the question of how reforms could be protected once implemented. Beyond ensuring such protection, the proposal also sought to recognize that the 13th National Parliament was different from previous parliaments because it had been elected in the context of a historic mass uprising.

Ali Riaz: I would not frame these matters as “our objectives” in a personal sense, nor would I evaluate them solely in terms of whether our goals were fulfilled. Whether you refer to the Constitutional Reform Commission or the National Consensus Commission, the goals we identified were based on longstanding flaws and distortions within Bangladesh’s state system. These issues had already been discussed, to varying degrees, by many people.

This reform agenda emerged through five decades of experience with governance in Bangladesh, along with public debate and participation by political parties and citizens. Take the Constitutional Reform Commission as an example.

In preparing its recommendations, the commission consulted 47 civil society organizations, 20 professional organizations, nearly 70 citizens, and 7 constitutional experts. Thirty-four political parties and alliances submitted written opinions. More than 50,000 people shared their views through the commission’s website, and surveys were conducted in over 45,000 households. Other commissions followed similar processes. After that, discussions were held with 30 political parties and alliances.

If all of this is ignored and reforms are shaped solely according to the preferences of one political party, then the chances of achieving meaningful structural change will be extremely limited. In that case, the opportunity for genuine state reform would be lost, and the country could once again move toward the same old crises in a cyclical pattern.

Ali Riaz: Both crisis and opportunity are possible. The situation could turn into a crisis if the government’s actions on reform do not align with the aspirations of the people. It is the responsibility of the ruling party to take prompt steps on this issue. The question is whether the ruling party truly wants structural change. Everyone must be brought together in pursuing structural state reform, promises that were made must be honored, and attempts to dismiss publicly made commitments through transparent processes as mere political tactics are unlikely to be acceptable to the people.

If these realities are kept in mind, then the situation can instead be transformed into an opportunity. I also believe that without political and structural reform, even urgently needed economic reforms cannot be properly carried out.