Date: 13/11/2025
Statement No: CW/11/25/S/T/5
We condemn the current demands for the interim government to hold a national referendum before the forthcoming general election
The recent proliferation of calls for a national referendum on the non-binding “July National Charter,” to be conducted by the interim government, presents a profound challenge to the constitutional architecture of the People’s Republic of Bangladesh. We condemn the current demands for the interim government to hold a national referendum on the “July National Charter” before the forthcoming general election. This institutional position is rooted in the firm commitment to maintaining the supremacy of the Constitution and the sanctity of the prescribed legal processes for constitutional amendment. Such a demand represents a fundamental attempt to execute an extra-constitutional action, which we must resist to safeguard the future democratic legitimacy of the Republic.
I. The Defined Scope and Revival of the Referendum Provision
The argument that there is no constitutional possibility for a referendum is factually nuanced and must be corrected. While the Constitution (Fifteenth Amendment) Act, 2011, initially sought to abolish the referendum mechanism entirely, the subsequent, high-impact judgment of the High Court Division (HCD) of the Supreme Court of Bangladesh on December 17, 2024, delivered a crucial corrective. The HCD, applying the ‘basic structure doctrine,’ declared the provision repealing the referendum system under Article 142(1A) to be void and unconstitutional. This ruling effectively restored the constitutional safeguard of a national referendum for any proposed amendment affecting the fundamental structural provisions, specifically the Preamble and Articles 8, 48, 56, 58, 80, 92, and 142. The existence of the Referendum Act, 1991, which outlines the procedure for such a plebiscite, further solidifies its mechanism in our law.
II. The Illegality of the Current Demand: An Extra-Constitutional Encroachment
Crucially, the restored referendum power is not a roving commission for direct democracy on every political proposal. It is a procedural safeguard strictly and exclusively tied to the legislative process: specifically, to allow the electorate to assent to or reject a Bill for constitutional amendment that has already been duly passed by a two-thirds majority in the Jatiya Sangsad (Parliament), as mandated by Article 142. The current demand, however, seeks a national vote on the political, non-legislative “July National Charter,” prior to the formation of a sovereign sanctioned, elected Parliament. This demand is legally fatal on two grounds. First, the interim government operates under the limited principle of necessity—its sole constitutional mandate is to facilitate a free and fair election. Second, it has no authority to usurp the legislative function by initiating or executing a referendum on a new constitutional text, an action reserved for an elected Parliament.
III. Protecting Parliamentary Sovereignty and Constitutional Integrity
To allow the interim government, a temporary, non-elected body, to conduct a national referendum on a charter that is fundamentally intended to alter the constitutional fabric would represent an extra-constitutional delegation of power and a direct subversion of Constitutional Supremacy, the very cornerstone of our Republic under Article 7. The ultimate legal authority to amend the Constitution, including its fundamental articles, must flow from the people through their elected representatives in Parliament. To bypass the two-thirds majority requirement in the Sangsad, which acts as a crucial check on hasty constitutional change, and delegate it to a caretaker administration, would establish a perilous precedent. This act would not be an exercise of ‘popular sovereignty’ but rather an unlawful encroachment that risks destabilizing the procedural integrity of the supreme law of the land. Our legal duty is to insist that constitutional reform adheres strictly to the constitutional process, thereby preserving the integrity of the state and ensuring the enduring legitimacy of any future change.
Statement Issued By
Md. Ibrahim Khalilullah
President
Constitution Watchdog (CW)
