July Charter: The legal uncertainty behind Bangladesh’s referendum push
As Bangladesh edges closer to a potential referendum on the July Charter, political debates reveal deeper divisions over legality, timing, and trust. While parties agree in principle, fundamental disagreements raise questions about whether the referendum can unify or will only deepen the country’s political rifts
A consensus has emerged among political parties regarding the proposal to hold a referendum on the implementation of the July Charter during the meeting of the National Consensus Commission held on 5 October. As reported, the Bangladesh Nationalist Party (BNP) favours holding the referendum on the same day as the national election, while Jamaat-e-Islami prefers it to be held beforehand. The National Consensus Party (NCP) is yet to decide.
As Bangladesh debates a referendum to legalise the July Charter, questions of constitutional validity, logistical feasibility, and political mistrust continue to cast long shadows.
The legality of a referendum
At the heart of the debate lies the question: can a referendum be legally held under the current constitutional framework? The short answer is 'no'.
The legal basis for holding a referendum was repealed by the Fifteenth Amendment, which removed the earlier Clause 1 (A) of Article 142 which provided the constitutional foundation for referendums on specific issues. Article 142 required a referendum to amend the Preamble and Articles 8, 48, 56, and 142 itself.
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Ziaur Rahman introduced Clause 1 (A) of Article 142 on 8 December 1978. And the only constitutional referendum was held in 1991 regarding the transition from a presidential system to a parliamentary system. About 84% of voters participated in this referendum, and 88.5% voted in favour of the parliamentary system.
"If you observe the ongoing debate, it is quite evident that the BNP cannot trust Jamaat, and Jamaat cannot trust the BNP. Ultimately, if no trust-building process takes place, there can be no sustainable political progress. Political parties may later revoke or reject any agreement made today, precisely because these are decisions grounded in political calculation rather than shared conviction."
During Sheikh Hasina's tenure in 2011, the provision for referendums by amending Article 142 was abolished.
So, without any active constitutional clause, under what legal authority can a referendum be held? Can a political consensus be given constitutional legitimacy through such votes?
In 2024, the High Court, responding to a petition challenging the Fifteenth Amendment, reinstated Article 142. If considered immediately effective, this ruling could make a referendum legally valid.
At the meeting on 5 October, BNP Standing Committee member Salahuddin Ahmed proposed a simpler, more democratic route: to amend the Representation of the People Order (RPO) so that the Election Commission is empowered to hold a referendum.
He stated that if a referendum is held on the same day as the national election, there would be no need for a constitutional order or Supreme Court opinion, since the people themselves are supreme.
"In the current circumstances, the implementation of the July Charter must take place within the limits of the existing constitutional and legal framework. However, there is currently no legal provision for a referendum of the kind agreed upon by the political parties in the Consensus Commission. A referendum to implement the July Charter cannot be held lawfully under the Referendum Act, 1991, because that Act allows referendums only on bills already passed by the Parliament."
He added that the interim government does not possess the authority to issue constitutional orders—if it did, it could amend the Constitution unilaterally, bypassing public consultation. According to him, the referendum could be organised simply by amending the Representation of the People Order (RPO) to empower the Election Commission to conduct it.
In contrast, Jamaat-e-Islami's representative, barrister Shishir Monir, argued for a more straightforward approach—issuing an executive order to implement the Charter. He noted that differing opinions could emerge in the process, but such dissent would not be "binding."
Jaamat wants the referendum to be held before the national election. Assistant Secretary General Hamidur Rahman Azad said at the meeting, "The people are not used to referendums. We believe it can be held in November or December without creating any complications for the national election—even before the announcement of the election schedule. Once the referendum is over, there will be no obstacle to holding the election in February. If we proceed in a simple and straightforward manner, without placing the people in a confusing or difficult situation, it will be better for us as well as the nation."
Legal, logistical and administrative challenges
The bone of contention regarding hosting the referendum is not just the timing. It goes beyond that. Jaamat wants to enforce the executive order to make changes in the Constitution and hold the referendum to legalise the July Charter. In that way, a parliament will not be needed, as per our existing constitution.
BNP, on the other hand, wants to wait for the elected parliament to amend the constitution to accommodate the provisions of the July Charter. There is a fundamental difference between the two parties, and it goes beyond just the timing.
Holding a referendum before the general election would require not only a clear legal mandate but also a stable administrative mechanism to ensure credibility. In a political environment still recovering from institutional distrust, such legitimacy cannot be assumed.
Barrister Ruhul Quddus Kazal, senior advocate and a legal expert, said, "In the current circumstances, the implementation of the July Charter must take place within the limits of the existing constitutional and legal framework. However, there is currently no legal provision for a referendum of the kind agreed upon by the political parties in the Consensus Commission. A referendum to implement the July Charter cannot be held lawfully under the Referendum Act, 1991, because that Act allows referendums only on bills already passed by the Parliament."
"The interim government does not possess the authority to issue constitutional orders—if it did, it could amend the Constitution unilaterally, bypassing public consultation. The referendum could be organised simply by amending the Representation of the People Order (RPO) to empower the Election Commission to conduct it."
Even if a referendum was feasible before the national polls, its practical implementation would pose formidable challenges. Barrister Kazal cautions that organising a referendum involves significant logistical challenges—financial constraints, administrative management, and large-scale coordination. It would involve expenditures running into hundreds or even thousands of crores of taka.
Bangladesh's previous experiences with referendums offer little reassurance. Past referendums were marred by allegations of low voter turnout and questionable results. "Despite official claims of overwhelming majorities, there remains widespread public scepticism about the authenticity of those results," Barrister Kazal observed. Holding a referendum on the same day as the general election, he suggested, could improve transparency by ensuring the presence of party agents and observers.
The Election Commission's capacity, also, remains a critical concern. Conducting two major votes in such a short time would test the limits of Bangladesh's electoral infrastructure.
Dr Asif Shahan, Professor at the Department of Development Studies, University of Dhaka, said, "I have followed the recent debates, including the one between Barrister Shishir Monir and Salauddin Ahmed, and both have presented valid arguments. At this point, the consensus commission or the interim government must take certain decisive steps."
"If we can compromise on one or two key issues, I believe the broader problem can be resolved. The fact that an agreement has been reached in the name of the referendum already represents a step forward," he added.
Beyond legal and logistical hurdles, the referendum debate reflects a deeper malaise within Bangladesh's political culture: a pervasive lack of trust among political actors. Dr Asif Shahan said, "The process must be structured in such a way that it reaches a politically acceptable or consensus-based solution."
He added, "Because if you observe the ongoing debate, it is quite evident that the BNP cannot trust Jamaat, and Jamaat cannot trust the BNP. This lack of mutual trust has brought us to the present situation. And in this context, no one can be forced into compliance. Ultimately, if no trust-building process takes place, there can be no sustainable political progress. Political parties may later revoke or reject any agreement made today, precisely because these are decisions grounded in political calculation rather than shared conviction."
This deficit of trust is not new. Bangladesh's political history is replete with examples of rival parties undermining agreements once they lose political advantage. As Dr Shahan observed, "To me, Jamaat's intentions do not appear entirely sincere. Their position on the lower house (PR), for example, raises serious questions. They are yet to explain how they plan to manage the consequences of such a structure. Even while the BNP and NCP are showing flexibility, Jamaat seems to resist progress at every step. Such behaviour, in my view, does not create the impression of a party negotiating in good faith."
"The straightforward path is to issue an implementation order for the July Charter. Differences of opinion may arise in the process, but such dissent will not be binding."
Yet the question remains whether such gestures can translate into real political reconciliation. Jamaat-e-Islami, for instance, continues to introduce new conditions that complicate the process. "From the BNP's perspective, this can understandably cause frustration; they may feel that as the larger party, they have already made considerable concessions," Dr Shahan pointed out.
However, the Consensus Commission's inability to reach agreement on key issues, such as how notes of dissent will be treated, further exposes the fragility of this trust. Salahuddin Ahmed himself admitted that "not all dissenting notes need to be preserved. The more one side shows flexibility, the greater the overall acceptability becomes."
However, he insists that "under no circumstance can a note of dissent be overruled by a majority", describing the process as "a political agreement, not a judicial verdict".
As history shows, decrees and executive orders have often undermined democratic legitimacy in the region—from Pakistan's military rule to Latin America's presidential decrees.
Whether the referendum becomes a bridge to consensus or a new flashpoint of division will depend less on legal ingenuity and more on the willingness of political leaders to build trust in good faith.
