Tuesday, 07 October, 2025
At the meeting of the National Unity Commission held on 5 October, it was reported in the media that political parties have reached a kind of consensus regarding holding a referendum to implement the July Charter. According to media reports, the BNP and NCP want the referendum to be held on the day of the national parliamentary election, while Jamaat-e-Islami wants it before the election. According to the parties, this consensus on the referendum will establish a legal basis for implementing the July Charter. But is it actually possible to hold a referendum under the current constitutional and legal framework?
A referendum is a democratic process through which the people directly express their opinion on a nationally important issue. Instead of the parliament or government, the people themselves get the opportunity to make decisions. Since independence, Bangladesh has held three referendums.
Following the assassination of then-President Sheikh Mujibur Rahman on 15 August 1975, political instability arose in the country. After a series of coups and counter-coups, General Ziaur Rahman took office as president in 1977. To gain political legitimacy and show public confidence in him, he announced a referendum.
The referendum held on 30 May 1977 asked, ‘Do you have confidence in the policy and programme declared by President Ziaur Rahman?’ Voters had two options—‘Yes’ and ‘No’. According to the government announcement, voter turnout was about 88 percent. The ‘Yes’ votes accounted for 98.87 percent, and ‘No’ votes were nearly 1.13 percent.
The second referendum was held on 21 March 1985. At that time, military ruler H.M. Ershad was in power. This referendum aimed to show public confidence in Ershad’s military rule. According to the Election Commission, voter turnout was about 72 percent, and 94.5 percent voted in Ershad’s favour.
On 15 September 1991, a ‘constitutional’ referendum was held in Bangladesh. Voters were asked whether the Constitution (Twelfth Amendment) Bill, 1991 should be approved by the president. The purpose was to reinstate the parliamentary system of government, where the president is the head of state, but the prime minister is the executive head. The Twelfth Amendment also abolished the post of vice president and introduced presidential election by parliament. According to the Election Commission, about 84 percent of voters participated, with 88.5 percent supporting the parliamentary system. This referendum restored Bangladesh’s parliamentary system of government.
Reviewing these three referendums shows that each took place on an issue where a process had already begun. When the 1977 referendum was held to assess confidence in the president, Ziaur Rahman was already in office. Similarly, Ershad was president during the 1985 referendum. The 1991 referendum came after the parliamentary constitutional amendment bill was passed and before presidential consent.
Since the current Constitution contains no provisions for a referendum, what legal authority allows a referendum to be held? And can a political consensus later be given legal or constitutional recognition through a referendum, thereby creating a legal obligation? Or would the proposed referendum simply be a political expression of consensus?
During Sheikh Hasina’s rule, significant changes were made to the constitution through the Fifteenth Amendment. Article 142 of the Constitution, which contained provisions for referendums, was repealed. Before the Fifteenth Amendment, Article 142 provided for referendums on the Constitution’s preamble, Articles 8, 48, 56, and Article 142 itself.
So, the question arises: since the current Constitution contains no provisions for a referendum, what legal authority allows a referendum to be held? And can a political consensus later be given legal or constitutional recognition through a referendum, thereby creating a legal obligation? Or would the proposed referendum simply be a political expression of consensus?
Two matters must be considered here. Challenging the Fifteenth Amendment, a writ petition was filed last year in the Supreme Court’s High Court Division by Sujon editor Badiul Alam Majumdar. Political parties including BNP and Jamaat acted as ‘intervenors’ in the hearing and petitioned for complete annulment of the Fifteenth Amendment.
In a ruling given on 17 December 2024, the High Court spoke among other things about restoring Article 142, which was removed by the Twelfth Amendment. If this ruling is assumed to be immediately enforceable, holding a referendum under Article 142 could be legally valid. However, questions remain as to whether Article 142 will automatically be reinstated in the Constitution following the ruling or if parliamentary amendment based on the court’s ruling will be necessary.
There is precedent in Bangladesh’s constitutional history for the parliament to introduce required amendments following court rulings. Since the current parliament is not in session, constitutional amendment is not currently possible. The next parliament will have to enact it.
Another point to consider is that the High Court ruling on the Fifteenth Amendment is recent and should not yet be considered final. Because there is the legal option to appeal to the Supreme Court’s Appellate Division and later file for review.
At present, the July Charter must be implemented within the existing constitutional and legal framework. However, there is currently no legal provision for the referendum agreed upon by political parties in the Unity Commission. If a referendum is organised under the Referendum Act of 1991 related to the July Charter, it will not be lawful. Because that act only provides for referendums on bills passed by parliament.
In this situation, the 1991 Act could be amended by ordinance to organise a referendum. In that case, the Twelfth Amendment would have to be taken as the constitutional basis, based on the High Court ruling last December. If the decision to hold a referendum is made, the Representation of the People Order, 1972 would also require amendment to implement it. Without these amendments to existing laws, holding a referendum will not be lawful.
(Md. Ruhul Quddus is a senior lawyer of the Supreme Court and former editor of the Supreme Court Bar Association; member of the National Executive Committee, BNP.)
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At the meeting of the National Unity Commission held on 5 October, it was reported in the media that political parties have reached a kind of consensus regarding holding a referendum to implement the July Charter. According to media reports, the BNP and NCP want the referendum to be held on the day of the national parliamentary election, while Jamaat-e-Islami wants it before the election. According to the parties, this consensus on the referendum will establish a legal basis for implementing the July Charter. But is it actually possible to hold a referendum under the current constitutional and legal framework?
A referendum is a democratic process through which the people directly express their opinion on a nationally important issue. Instead of the parliament or government, the people themselves get the opportunity to make decisions. Since independence, Bangladesh has held three referendums.
Following the assassination of then-President Sheikh Mujibur Rahman on 15 August 1975, political instability arose in the country. After a series of coups and counter-coups, General Ziaur Rahman took office as president in 1977. To gain political legitimacy and show public confidence in him, he announced a referendum.
The referendum held on 30 May 1977 asked, ‘Do you have confidence in the policy and programme declared by President Ziaur Rahman?’ Voters had two options—‘Yes’ and ‘No’. According to the government announcement, voter turnout was about 88 percent. The ‘Yes’ votes accounted for 98.87 percent, and ‘No’ votes were nearly 1.13 percent.
The second referendum was held on 21 March 1985. At that time, military ruler H.M. Ershad was in power. This referendum aimed to show public confidence in Ershad’s military rule. According to the Election Commission, voter turnout was about 72 percent, and 94.5 percent voted in Ershad’s favour.
On 15 September 1991, a ‘constitutional’ referendum was held in Bangladesh. Voters were asked whether the Constitution (Twelfth Amendment) Bill, 1991 should be approved by the president. The purpose was to reinstate the parliamentary system of government, where the president is the head of state, but the prime minister is the executive head. The Twelfth Amendment also abolished the post of vice president and introduced presidential election by parliament. According to the Election Commission, about 84 percent of voters participated, with 88.5 percent supporting the parliamentary system. This referendum restored Bangladesh’s parliamentary system of government.
Reviewing these three referendums shows that each took place on an issue where a process had already begun. When the 1977 referendum was held to assess confidence in the president, Ziaur Rahman was already in office. Similarly, Ershad was president during the 1985 referendum. The 1991 referendum came after the parliamentary constitutional amendment bill was passed and before presidential consent.
Since the current Constitution contains no provisions for a referendum, what legal authority allows a referendum to be held? And can a political consensus later be given legal or constitutional recognition through a referendum, thereby creating a legal obligation? Or would the proposed referendum simply be a political expression of consensus?
During Sheikh Hasina’s rule, significant changes were made to the constitution through the Fifteenth Amendment. Article 142 of the Constitution, which contained provisions for referendums, was repealed. Before the Fifteenth Amendment, Article 142 provided for referendums on the Constitution’s preamble, Articles 8, 48, 56, and Article 142 itself.
So, the question arises: since the current Constitution contains no provisions for a referendum, what legal authority allows a referendum to be held? And can a political consensus later be given legal or constitutional recognition through a referendum, thereby creating a legal obligation? Or would the proposed referendum simply be a political expression of consensus?
Two matters must be considered here. Challenging the Fifteenth Amendment, a writ petition was filed last year in the Supreme Court’s High Court Division by Sujon editor Badiul Alam Majumdar. Political parties including BNP and Jamaat acted as ‘intervenors’ in the hearing and petitioned for complete annulment of the Fifteenth Amendment.
In a ruling given on 17 December 2024, the High Court spoke among other things about restoring Article 142, which was removed by the Twelfth Amendment. If this ruling is assumed to be immediately enforceable, holding a referendum under Article 142 could be legally valid. However, questions remain as to whether Article 142 will automatically be reinstated in the Constitution following the ruling or if parliamentary amendment based on the court’s ruling will be necessary.
There is precedent in Bangladesh’s constitutional history for the parliament to introduce required amendments following court rulings. Since the current parliament is not in session, constitutional amendment is not currently possible. The next parliament will have to enact it.
Another point to consider is that the High Court ruling on the Fifteenth Amendment is recent and should not yet be considered final. Because there is the legal option to appeal to the Supreme Court’s Appellate Division and later file for review.
At present, the July Charter must be implemented within the existing constitutional and legal framework. However, there is currently no legal provision for the referendum agreed upon by political parties in the Unity Commission. If a referendum is organised under the Referendum Act of 1991 related to the July Charter, it will not be lawful. Because that act only provides for referendums on bills passed by parliament.
In this situation, the 1991 Act could be amended by ordinance to organise a referendum. In that case, the Twelfth Amendment would have to be taken as the constitutional basis, based on the High Court ruling last December. If the decision to hold a referendum is made, the Representation of the People Order, 1972 would also require amendment to implement it. Without these amendments to existing laws, holding a referendum will not be lawful.
(Md. Ruhul Quddus is a senior lawyer of the Supreme Court and former editor of the Supreme Court Bar Association; member of the National Executive Committee, BNP.)
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