HC asks why referendum ordinance, July Charter order should not be declared illegal
The petitioners argued that the Constitution of Bangladesh does not provide for either a referendum or the July National Charter framework and asked the court to declare the measures illegal and unconstitutional
Highlights
- Two writ petitions say the Constitution does not allow such measures
- Charter proposes 84 reforms, including constitutional amendments
- Key changes: a 10-year cap on serving as prime minister and stronger presidential powers
- Approved in 12 February referendum.
The High Court has issued a rule asking why the Referendum Ordinance, 2025, and the July National Charter (Constitution Amendment) Implementation Order, 2025, should not be declared illegal.
The rule was issued today (3 March) by a High Court bench comprising Justice Razik-Al-Jalil and Justice Md Anowarul Islam Shahin.
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Earlier, the same bench heard two writ petitions challenging the legality of the recent referendum and the July National Charter introduced by the interim government following last year's mass uprising.
The petitions were filed as public interest litigation by Supreme Court lawyers Gazi Md Mahbub Alam and Chowdhury Md Redwan E Khuda, seeking judicial review of the Referendum Ordinance, 2025 and the July National Charter (Constitution Amendment) Implementation Order, 2025.
The petitioners argued that the Constitution of Bangladesh does not provide for either a referendum or the July National Charter framework and asked the court to declare the measures illegal and unconstitutional. They also sought an order restraining the authorities from implementing any actions stemming from the Referendum Ordinance.
The July National Charter 2025 was unveiled as a reform package after the July–August 2024 mass movement that led to a political transition. Signed by more than 20 political parties on 17 October last year, the charter proposes 84 reforms, including 47 requiring constitutional amendments.
Among the key proposals are a 10-year cap on the prime minister's tenure and expanded executive powers for the president, described by supporters as part of a move towards a "Second Republic". The reforms also aim to strengthen judicial independence, overhaul the electoral system, expand women's representation, and reinforce fundamental rights protections.
The package was endorsed in a referendum held alongside the parliamentary elections on 12 February, where the "Yes" vote secured victory with a reported turnout of 60.26%.
During the hearing, senior lawyers, including Ahsanul Karim, Syed Mamun Mahbub, Jyotirmoy Barua, Gazi Kamrul Islam Sajal, Gazi Touhidul Islam, and Md Nazmus Sakib argued in favour of the petitions.
Mohammod Hossain Lipu and Mohammad Shishir Manir opposed the pleas on behalf of the National Citizen Party and Bangladesh Jamaat-e-Islami, respectively.
Acting Attorney General Md Arshadur Rouf and Additional Attorney General Aneek R Haque represented the state.
The July Charter Implementation Order, which claims supremacy over the constitution, has been mired in controversy over its legality since its draft was made public last November.
Constitutional experts vehemently opposed the order, and are still saying the constitution still in force does not allow the president to issue such an order.
At present, the constitution allows the president to make laws to meet the urgency through promulgation of ordinance in absence of parliament. But that law-making power is not unfettered; the constitution imposes restraint. An ordinance cannot make any provision which could not lawfully be made by Act of parliament and for altering or repealing any provision of the constitution.
The July Implementation Charter order has been accused of defying the supremacy of the constitution — supremacy which cannot be altered even by the parliament in exercise of its constituent power under Article 142.
This has been upheld in several judgments of the Bangladesh Supreme Court. Even in most democracies, except only a few nations including the UK, New Zealand, Finland, and sometimes Norway, the supremacy belongs to the constitution, and parliament is not sovereign in making any law as the constitution imposes some restriction on legislatures.
Except for the aforementioned exceptional few nations, the apex court of a country can strike down any legislation — including a constitutional amendment — if it violates the supremacy of the constitution itself.
About the supremacy of the constitution, late attorney general Mahmudul Islam, in his authoritative book 'Constitutional Law of Bangladesh' writes "supremacy of the Constitution means that its mandates shall prevail under all circumstances. As it is the course of legitimacy of all actions, legislative, executive or judicial, no action shall be valid unless it conforms with the Constitution both in letter and in spirit."
He states that "supremacy of the Constitution is a basic feature of the Constitution and as such even by an amendment of the Constitution an action in derogation of the supremacy of the Constitution cannot be declared to have been validly taken. Such an amendment is beyond the constituent power of Parliament and must be discarded as a fraud on the Constitution."
But the referendum pathway has raised difficult constitutional questions.
Take Article 142 as an example, which requires a two-thirds majority of the total membership of Parliament for constitutional amendments.
But the July Charter Implementation Order authorises the proposed reform council to adopt final constitutional reforms by a simple majority of members present and voting. This provision of the Order undermines Article 142.
"Constitution reform assembly is weird; no legal basis at all, not an iota of legality. Neither is there a necessity. A complete political chaos," former DU law professor Ridwanul Haque recently wrote on his Facebook profile after a confrontation arose between the two rival parliamentary alliances — BNP and Jamaat — over taking oath as members of the Constitution Reform Council.
"The elections were for a parliament, which has all the powers to bring about reforms agreed or beyond those agreed. Political parties did not agree to transform the parliament into a reform assembly. Bangladesh needs political and constitutional reforms that can be achievable," Haque further wrote.
