July Charter: Government partiality and complex design raise questions

Preparations for the referendum on a set of questions related to constitutional reforms are now in full swing. Yet one of the first things raising many an eyebrow is the interim government's own campaign in favour of a Yes vote.

Since the referendum asks voters to choose either "Yes" or "No", one would reasonably expect the interim government to maintain an impartial position rather than adopt an openly partisan role — especially when doing so involves spending a considerable amount of public money.

When the government spends money campaigning for a "Yes" vote, it is effectively using tax revenue — paid directly or indirectly by potential "No" voters — to finance a campaign for the "Yes" side. Ironically, this is precisely the kind of abuse of public funds that these reforms were meant to eradicate.

Or perhaps the government believes there are no "No" voters in the land, and therefore sees nothing unethical in using everyone's money to fund a "Yes" campaign? Does this mean the outcome of the referendum is a foregone conclusion? Is the government endowed with such mind-reading powers that it can already foresee the voting intentions of 127,695,183 citizens?

The answer to all three questions is, of course, no. Yet the government's brazen partiality in a referendum can justifiably raise doubts about the integrity of the process.

As the government is actively and publicly campaigning for one side, what is there to prevent officials from "ensuring" the desired outcome? It would not be the first time officials in Bangladesh have done the government's bidding and delivered a particular result in a poll.

No legal obstacle

The government, for its part, does not see any conflict of interest. Its spokespeople point out that there is no legal prohibition preventing the interim regime from spending public money to campaign for one side of the referendum.

Campaigning for ‘Yes’ vote ahead of 12 Feb referendum not a legal offence: Ali Riaz

"There is no legal or constitutional obstacle to campaigning for the referendum," Chief Adviser's Special Assistant Ali Riaz said while addressing a gathering in Chattogram on Thursday. "We have spoken to justices and constitutional experts. Experts have said that the order under which this is being implemented does not say that I cannot speak in favour of a Yes vote."

What Ali Riaz says may well be true — but is it the whole truth? The central issue here is not whether the government's actions are explicitly illegal. It is a question of norms, which shape the political culture of a country.

For decades, Bangladeshi political culture has been marked by authoritarianism, where governments have not hesitated to use power arbitrarily. The failure of the political class to adhere to basic democratic norms and practices has created this toxic environment — one that the current reform process claims it wants to address.

One of the gravest mistakes committed by former prime minister Sheikh Hasina was the abolition of constitutional provisions for elections under a neutral caretaker government. She, too, consulted experts, and justices backed her position.

Mysterious interim

What that move did, however, was destroy the norm that governments must not interfere when the people are asked to make a choice, whether that choice concerns their MP or any other fundamental political decision. This reform process, and the interim government in its final month, were expected to adhere to such basic norms in order to foster a new political culture.

There would be nothing wrong with individual ministers, special assistants or other officials expressing their personal views in favour of either a "Yes" or a "No" vote. Indeed, the interim government could have publicly affirmed this freedom in order to underline its own impartiality.

It is therefore puzzling that the government chose not simply to run a neutral awareness campaign — explaining the questions being asked and encouraging participation — while leaving the decision entirely to the voters. Instead, by spending public money on a "Yes" campaign, the government has conveyed the impression that presenting a fait accompli to the elected parliament is part of its agenda.

It is unlikely that issues related to the referendum will be challenged in court in the immediate future. However, it would be unwise to dismiss the possibility that the entire process may be legally tested at some later stage — particularly when those benefiting from the referendum are no longer in power.

The issues surrounding the referendum are not limited to the government's declared lack of impartiality and its use of public funds. The design of the referendum itself is deeply problematic.

Four questions, one answer

The referendum consists of four questions, yet voters are not allowed four separate "Yes" or "No" responses. They may cast only a single vote — one Yes or one No — and that vote applies to all four questions.

A single "Yes" means consenting to every proposal; a single "No" means rejecting them all. There is no option to say, "I support the proposal in the first question, but I oppose what is suggested in the third." Voters must either accept the entire package or reject it wholesale.

How this arrangement makes sense is known only to the men who designed the referendum—just men, because hardly any women were involved in this reform process.

Then there are the proposals themselves. In brief, they are as follows: The first proposes that the election-time caretaker government, the Election Commission and "other constitutional institutions" will be formed in line with the July Charter.

The second proposes the creation of an upper house consisting of 100 members.

The third suggests that parties winning the next election will have an "obligation" to carry out 30 constitutional amendments — ranging from increasing presidential powers to limiting the prime minister's terms in office and increasing women's representation.

The fourth proposes that "other reforms" outlined in the July Charter will be implemented by parties in accordance with their election promises.

In effect, a "Yes" vote would bind the elected parliament to enact a predetermined set of constitutional amendments. Since this would be an "obligation", parliament would, in this instance, function little more than as a rubber stamp.

Constitutional knowledge

The referendum itself effectively turns the country's constitution — still the supreme law of the land — on its head. The constitution contains no provision for amendments being enacted through a referendum. All constitutional amendments are meant to be tabled in parliament, debated, and adopted by a two-thirds majority.

In recent decades, only the 12th Amendment required a referendum, and that was held after it had already passed in parliament.

The sheer volume of proposals being bundled into a single "Yes" or "No" vote creates further controversy. Referendums are typically held on specific, clearly defined issues — such as the 1991 referendum on a single constitutional amendment, or more recent cases in the UK, including whether to leave the European Union or whether Scotland should remain part of the UK.

The February 12 referendum demands an extraordinary level of constitutional knowledge and familiarity with the July Charter from the average voter. How many voters will truly understand these proposals, let alone be able to make an informed decision? What proportion will even manage to read and comprehend the questions?

This is precisely why legislative bodies such as parliaments and senates play a central role in democratic systems. The general public neither has the time nor the specialised expertise to engage with complex constitutional matters. Such issues are entrusted to elected representatives, whose role is to debate, refine and pass laws.

The February 12 referendum risks usurping parliament's essential function and setting an unhelpful precedent for the future.

Sabir Mustafa is a former Head, BBC Bangla and former Managing Editor, VOA Bangla. The writer can be contacted at: sabir.mustafa@gmail.com. Follow on X: @Sabir59

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.