Javed Rasin and Sarwar Tusher
The interim government and the political parties of Bangladesh were able to formulate the July Charter after nearly a year-long discussion within the National Consensus Commission. Only time will tell how successful this Charter is in abolishing the autocratic foundation of the state and bringing about a democratic transformation. However, the fact that all active political parties sat together for an extended discussion and played a role in formulating the constitutional, administrative, and legal framework of the state is of no small value in Bangladesh’s political culture.
The main debate now is how the July Charter will be implemented. It appears there is considerable confusion regarding this. In this article, we will analyze the role and necessity of a referendum in implementing the July Charter.
One view suggests that the provision for a referendum was abolished through an amendment to Article 142 of the Constitution. If the current Constitution does not have a provision for a referendum, then how, and through what legal process, can a referendum be organized?
It is important to note that the proposed referendum for the implementation of the July Charter and the referendum required for constitutional amendment as mentioned in the Constitution of Bangladesh are not the same. The provision for a referendum in constitutional amendments was abolished through the Fifteenth Amendment. Even if this amendment were judged unconstitutional and the referendum was reinstated, it has not yet been made effective, and will be effective in the subsequent parliament. A referendum is required for changes to the fundamental structure, including certain special articles of the Constitution.
Since the Constitution is a document of the people’s will and intention, no change to it should be made without verifying the direct opinion of the people through a referendum. However, there are precedents in various countries around the world where a referendum is also resorted to when establishing a new constitutional system. In such cases, the referendum is considered a direct manifestation of the people’s sovereign power. This referendum is regarded as the people’s constituent power (the power to formulate, abolish, and fundamentally change the constitution). Even when such a provision does not exist in the current constitution, a referendum is introduced as an expression of popular sovereignty to establish a new constitutional system or to fundamentally change the existing one.
Implementation of the July Charter through direct participation of the people is the most urgent state responsibility of the present time. To this end, the government can issue a “July Charter Implementation Order” through the President, which will clearly determine the constitutional and political basis for the implementation of the July Charter.
Order or Ordinance?
It is important to mention that an Order and an Ordinance are not the same thing. The jurisdiction and authority of an Ordinance are limited; it cannot provide for constitutional changes. This is because the Constitution is the supreme law of the state, whereas the power of an Ordinance is equivalent to that of an ordinary law (primary law). It is unconstitutional to make decisions about the supreme law through an ordinary law.
It should also be noted that the President can issue an Order even while the Constitution is in force. There are multiple precedents for this in the history of Bangladesh. Therefore, the idea that issuing an Order automatically means the Constitution is abolished has no basis.
July Charter Implementation Order
The President, on the advice of the Chief Adviser, will issue an order called the “July Charter Implementation Order,” which will explicitly state that the people will directly vote in favor of the implementation of the July Charter through a referendum before the general election.
The body of people’s representatives formed through the subsequent election will have the full constituent power to incorporate the fundamental constitutional reforms brought by the July Charter and approved by the referendum into the Constitution.
Dual Role
The said elected body will simultaneously possess the constituent power for the fundamental reform of the constitution and the necessary legislative power for the purpose of governing. Once the fundamental reforms brought by the July Charter are incorporated into the Constitution, the constituent power, or the role as a Constituent Assembly, of that elected body will automatically cease.
Setting a Time Limit
The Order will specifically mention the time frame within which the said elected body must incorporate the July Charter into the Constitution, so that the reform process is not indefinitely delayed. For example: ninety days or the first session.
Approval of the Popular Verdict
If the people vote in favor of the July Charter in the referendum, the July Charter will be considered effective immediately. The subsequent elected body will then complete the addition and reform of the Charter’s provisions into the Constitution according to its constitutionally approved authority. Reforms brought about through this process will pave the way for sustainable, long-lasting, inclusive, and people-based constitutional reform.
Therefore, all political parties, civil society, and the national intellectual community are urged to reach a consensus on this framework for the implementation of the July Charter, so that the popular will becomes the new direction of the state.
What about the Note of Dissent?
There is no restriction in the Constitution that prohibits a referendum on nationally important issues. Therefore, there is no constitutional barrier to holding a referendum on an issue as historic and publicly important as the implementation of the July Charter.
However, the resolution of the Note of Dissent is urgent in this case. The people will vote on the July Charter. In that scenario, there is no alternative but to consider the Note of Dissent as agreement with a difference of opinion.
Furthermore, the referendum as a method of implementing the July Charter was not under discussion when the Note of Dissent was given. But once the referendum is adopted as the method of implementation for the July Charter, the party-based Note of Dissent can no longer take precedence. Since the decision is made on the basis of majority, adherence to the Note of Dissent is not mandatory. A Note of Dissent essentially means accepting the majority decision despite having a different opinion. The referendum will be on the July Charter. The will of the people is far above the differing opinion of one or two parties. The subsequent parliament will be obliged to implement the reforms according to the result of the referendum.
Fundamental Structure Cannot be Changed Only by Parliament
The BNP once said that Parliament is the only place for constitutional reform. We have repeatedly argued that Parliament only has the power of amendment. Even an amendment introduced with a two-thirds majority can later be annulled by the court if it alters the Basic Structure or Fundamental Structure of the Constitution.
The July Charter recommends many constitutional changes that alter the fundamental structure of the existing Constitution. Changes such as the decentralization of the High Court, a bicameral parliament, term limits for the Prime Minister, and changes to the fundamental principles are being introduced, which are outside the jurisdiction of a Parliament formed under the existing Constitution. For this reason, these changes must be implemented based on the constituent power of the people. The court will make judicial decisions in the light of the new fundamental structure based on the changed popular will.
If the July Charter is approved through a referendum, the subsequent parliament will play a dual role for a period of time (until the first session). The Constituent Assembly, with the constituent jurisdiction to incorporate the referendum’s verdict into the Constitution, will complete its work and then play the role of a legislative assembly for the remainder of its term for the purpose of enacting ordinary laws.
By following this process, Bangladesh will become a more stable and effective democratic state.
Sarwar Tusher
Joint Convenor and Head, Reform Coordination Committee, NCP
Javed Rasin
Joint Convenor and Member, Reform Coordination Committee, NCP
