The term of the Consensus Commission will end on 15 October. From statements made by commission officials, it is clear that they do not wish to extend its tenure. They want to complete the work on the July Charter before that deadline. A meeting between the commission and political parties was scheduled for Tuesday, where it is being said that everything will be finalised.
In the meantime, all political parties have agreed on holding a referendum regarding the July Charter. However, questions remain unresolved about the referendum process—such as when it will be held, whether it will take place on the same day as the national election or before, and more importantly, the constitutional and legal basis for organising such a referendum has been called into question. While the parties agree on holding it, there is still debate about whether a referendum is necessary at all.
On many issues proposed in the July Charter, consensus has been reached, while on others, there are still differences among the political parties. The commission is therefore considering dividing the proposed constitutional amendments into two separate categories for the referendum. But how realistic is this approach?
According to sources within the Consensus Commission, there are nine issues on which political parties have submitted notes of dissent. If all of these issues are grouped into one part of the referendum, how will the public express their views accurately? A voter might agree with some points and disagree with others. What would happen in such cases?
Take for example the issues of state principles, the provision allowing a prime minister to hold multiple offices, the caretaker government system, or proportional representation in the upper house of parliament—there are clear differences among the parties on these topics. A voter might agree with one party’s stance on two of these, but not the others. How will that be reflected in a simple yes-or-no vote?
In Bangladesh’s history, three referendums have taken place. The first was in 1977, when Ziaur Rahman, who took power following the events of 1975, sought to establish his legitimacy as President through public support. The second was in 1985, when military ruler Ershad organised a referendum to legitimise his rule. The last one was in 1991, following a parliamentary decision to move from a presidential to a parliamentary system of government—this referendum was held to see whether the public approved the shift.
A referendum is always based on a single question, and the answer must be either “Yes” or “No.” Bangladesh’s past referendums were also based on one single question each. A referendum does not allow for detailed proposals or multiple-choice responses.
Considering Bangladesh's past three referendums, it seems there is no real need for a referendum on the July Charter. On the issues of constitutional amendment where all political parties are already in agreement, there is no controversy or debate. And for the issues that are still contested, a referendum is also unnecessary—because the positions of the political parties on those matters have already been clearly presented to the public. The people will vote for parties in the national election based on those positions. In that sense, the national election itself functions as a kind of referendum.
To clarify further: for example, the BNP wants the Prime Minister to be allowed to hold multiple positions simultaneously (Prime Minister, Leader of the House, and Party Chief), while Jamaat or the NCP do not support this. A voter will choose their party based on where they stand on that issue. Similarly, each party has clearly stated its stance regarding the fundamental principles of the state. A voter will vote for the party whose declared principles they find acceptable. Therefore, holding a referendum on the issues in the July Charter where parties have submitted “notes of dissent” is essentially meaningless.
However, since a referendum can strengthen the legitimacy of a law passed in parliament or reinforce political consensus, if a referendum is to be held at all, it should take place after the national election. The elected government can then introduce constitutional amendments in parliament—based on both the points of consensus in the July Charter and their party’s dissenting views—and, before sending it to the President for approval, a referendum could be held.
Now that all political parties have agreed in principle to a referendum on the July Charter, it is assumed that one will be held. The question, then, is what form should the referendum take? To reduce costs, it could be held on the same day as the national election. The referendum should focus solely on the points in the July Charter where all parties are in agreement, and it should be based on a single question.
As I mentioned earlier, there appears to be no need for a referendum on the "notes of dissent" submitted by various political parties regarding constitutional amendments. These differing views should be treated as part of each party’s election manifesto, and the public will choose their preferred party based on those positions. The elected party will then move forward with constitutional amendments in line with its own stance. After all, when a party wins an election, it signifies that the public has endorsed its position.
Now, let’s turn to some constitutional and legal questions surrounding the referendum. These questions have actually been raised by others. Although the BNP has agreed to the idea of a referendum, Md Ruhul Quddus—a member of the party’s excecutive committee and former general secretary of the Supreme Court Bar Association—has brought up these issues. His article was published on the online version of Prothom Alo on Monday (titled “What Are the Constitutional and Legal Challenges of a Referendum on the July Charter?”).
During Sheikh Hasina’s tenure, the 15th Amendment removed the provision for referendums from the Constitution. However, in a case challenging that amendment, the High Court, in a ruling on 17 December 2024, reinstated Article 142, which pertains to referendums.
Ruhul Quddus raises the question: Does this High Court ruling automatically reinstate the article in the Constitution, or must Parliament act to reinsert it based on the court’s decision? More importantly, the High Court’s verdict is not final. It was delivered only ten months ago, and the opportunity for appeal and review in the Supreme Court still exists.
He argues that the political parties’ consensus on holding a referendum within the Consensus Commission has no legal basis.
Considering the current legal and political context, Ruhul Quddus suggests that a referendum could be held by bringing necessary amendments to the 1991 Referendum Act. However, he emphasises that the High Court’s December ruling must be considered, and the Twelfth Amendment to the Constitution would need to serve as the legal foundation. Additionally, if a referendum is to take place, the Representation of the People Order (RPO) of 1972 must also be amended accordingly.
So, the question remains: Will the political parties and the Consensus Commission take these issues into account?
#AKM Zakaria is deputy editor at Prothom Alo
akmzakaria@gmail.com
*The views expressed are the author’s own.