In discussions with the National Consensus Commission, political parties have agreed to hold a referendum on the implementation of the July Charter. The proposed referendum has now become one of the most talked-about issues in the political arena.
In an interview with Prothom Alo on 21 September, I said that the July Charter should not be placed above the Constitution. The July uprising of 2024 was one of the most significant events in our political history. In the post-uprising period, we are now on a path of democratic transition. In this context, giving the July Charter some form of state recognition would be both rational and justified.
First of all, the July Charter is a major political document founded on political consensus. The proposal by political parties to have it endorsed by the people through a referendum is constitutionally valid. The legal basis lies in Article 7(1) of our Constitution, which declares that all powers of the republic belong to the people.
The question now is: what will be the exact proposition or question for the referendum, and when and how will it be held? The history of referendums around the world is quite old—records show that referendums existed even in ancient Greek city-states. Constitutional scholar and political scientist Mads Qvortrup, in his book On the Referendum and Other Essays on Constitutional Politics, documented the history of referendums from 1400 to 2018. He showed that both democratic and authoritarian regimes have used referendums to serve their own interests—typically to secure political legitimacy or to introduce dramatic constitutional changes.
In Bangladesh, referendums have been held three times so far. The first two were conducted by extra-constitutional military governments seeking legitimacy. The third was held under the constitutional provisions related to the Twelfth Amendment, to gauge public opinion on restoring the parliamentary form of government. To my knowledge, there was no specific law or ordinance on referendums during the first two. However, a law was enacted in August 1991 for the third referendum.
A question has now arisen—will a new law be required to hold the proposed referendum? In my opinion, it is not strictly necessary. A referendum can be conducted even without a specific law. Once the question posed in a referendum is accepted or rejected by the people, it becomes their verdict and grants legitimacy to subsequent actions.
However, to ensure that the process runs smoothly, a supporting law would certainly be helpful. Under the current circumstances, a referendum law could be promulgated through an ordinance. Another option would be to amend the 1991 Referendum Act, which currently applies only to referendums on constitutional amendments. The law could be revised to cover all kinds of referendums.
If a referendum on the July Charter is to be held, it should take place simultaneously with the general election. Holding it beforehand would not be appropriate—economically or politically. The general election is scheduled for February, and organising a referendum before that would be expensive and logistically difficult. Moreover, the Election Commission does not have sufficient time to prepare for such an event.
Holding a referendum on the July Charter is a complex matter. Around the world, referendum questions are generally presented in a simple “Yes” or “No” format—as seen in recent referendums in the United Kingdom and Australia. Since the July Charter contains or will contain many different issues, consensus will also be needed on how these complex elements will be framed as referendum questions. Informing the public about the referendum question is both a moral and legal obligation of the government. As the July Charter has not yet been finalised, this delay could pose a challenge to organising a successful referendum.
The importance of fairness and transparency in the process and content of a referendum can be illustrated through Australia’s 2023 referendum. That referendum sought constitutional recognition for indigenous Australians. In Australia, any constitutional amendment must be approved by referendum. However, the 2023 question was somewhat lengthy and vague, which led to confusion and division among the public, and ultimately, the referendum was rejected.
Therefore, if a referendum is to be held on the July Charter, both the question and the roadmap for its implementation must be carefully and skillfully designed in advance. Public awareness must be built around it. Political parties must also be included in both the design of the referendum question and the process itself—and they must act responsibly in doing so.
* Ridwanul Hoque is a former Professor of Law at the University of Dhaka and a constitutional expert.
* The opinion expressed is the author’s own.