Proposed referendum is like putting the cart before the horse: Professor Ridwanul Haque

Professor Ridwanul Haque. Sketch: TBS

This excerpt is from Road to Election, a political talk show hosted by Shakhawat Liton, executive editor of The Business Standard. In this episode the guest is Ridwanul Haque, former Professor of Law at the University of Dhaka. Professor Haque has studied and conducted research at the University of Cambridge and the University of London. 

Speaking on the programme, Professor Hoque said that the rise of authoritarianism cannot be attributed to the Constitution alone. Moreover, any auto change of constitution has no precedent in the world. 

The proposed July Charter Reform Implementation Order in Bangladesh says that if the next Parliament does not adopt the approved reforms within 270 days, they will automatically become part of the Constitution. How can constitutional amendments take effect automatically, and is there any global precedent for adding provisions without a formal legislative act?

There is no precedent anywhere in the world for constitutional provisions being incorporated automatically. When the commission drafted this proposal, I am unaware whether they drew on any existing constitutional model or specific provision from another jurisdiction to justify it. In any case, no such example exists. The process being proposed — passing a constitutional reform order first, then submitting the entire order to a referendum as an addendum — is, in effect, putting the cart before the horse.

Under Article 93 of the Constitution, when Parliament is dissolved or not in session, the President may promulgate ordinances to enact new laws or amend existing ones. Yet the claim here is that such an order must be issued by the government. Does the government even have the authority to do so?

The government does not have the authority to issue an order of this nature. This is a constitutionally legitimate government, whose legal basis stems from Article 7, which vests all powers of the Republic in the people. The July uprising was a popular revolution, and it is through the people's mandate that this government derives its legitimacy. Upon assuming office, however, the government accepted constitutional responsibility and immediately declared that its priorities were restoring order, ensuring justice, and guiding the country towards democratic transition.

My question is this: for the past 12–13 months, the country has already been operating under an altered constitutional and legal framework. I also believe that, given the scale and significance of the July movement, the July Charter merits formal recognition — but such recognition can be granted through other means. The government simply does not have the authority to legislate in this manner.

For the sake of argument, let us assume that an order or presidential ordinance is issued. Even then, its fate would depend entirely on the next Parliament, as ordinances are, by definition, temporary. Can an ordinance, or an executive order of this nature, truly dictate what a future Parliament may or may not do?

No — neither an ordinance nor such an order has the authority to bind a future Parliament or future generations. In constitutional law, this is known as dead-hand constitutionalism, where one generation seeks to limit the legislative freedom of the next. This directly contradicts the principle of popular sovereignty enshrined in Article 7, which declares that the people are the sovereign and the ultimate source of power.

Unlike in the UK, our Parliament is not sovereign. Although politicians may rhetorically refer to a "sovereign Parliament" or "sacred House" in speeches, that is political language, not constitutional reality. Under our Constitution, neither Parliament, the judiciary, nor the executive is sovereign. Sovereignty rests solely with the people.

Therefore, any attempt to predetermine or restrict the actions of a future Parliament would have no legal standing. It would not withstand judicial scrutiny and would remain invalid, even if incorporated through a constitutional amendment.

Let us turn to the issue of the referendum. The government's briefing stated that the major political parties must reach a consensus within seven days. If they fail, the government will decide unilaterally. How should this be viewed?

That is the language of autocracy, not democracy. A government cannot simply declare that political parties must submit their decision within seven days on how the referendum will be conducted or what its question should be. A more democratic approach would have been to say: "We will consult with you over the next seven days," or, "You hold discussions among yourselves and we will act as facilitators" — not impose a deadline backed by the threat of unilateral action. Dictating terms in this manner is not democratic conduct.

As I have said before, this is an extremely critical moment. This government emerged from a movement against authoritarianism — a movement fuelled by the absence of democracy. 

The government's current approach — attempting to impose decisions within a rigid timeframe — is excessively inflexible. I do not believe it will lead to a political solution.

Assuming the referendum is held alongside the election, presenting 48 constitutional reforms as a single bill places an immense burden on citizens. Can the average voter realistically read, understand, and evaluate all 48 amendments before voting?

Realistically, no — that is not possible. Why is the referendum being presented as a single bill? From what I have seen in the newspapers, even the commission itself seems uncertain, offering two possible options. This reflects a lack of clarity and the absence of concrete constitutional or legal guidance. Proper consultation appears either lacking or extremely limited.

Looking at Bangladesh's history of referendums, there have been three. The first two — under Ziaur Rahman and Hussain Muhammad Ershad — were aimed at legitimising their unconstitutional seizures of power. The third, and most recent, is highly significant and closely relevant to the current context.

In 1991, ahead of the Twelfth Amendment to the Constitution, the BNP, the Awami League, and all other political parties reached a consensus. The agreement had two key components: Bangladesh would return from a presidential system to a parliamentary system — the form of governance under which the country began its journey — and any constitutional amendment affecting the Preamble or the core foundational principles would require both a two-thirds parliamentary majority and public endorsement through a referendum.

Importantly, the referendum question was clearly defined. It was not presented as: "Here is a bill — read it and vote." Instead, the question was:

"Should the President assent to the Constitution (Twelfth Amendment) Bill, 1991 of the People's Republic of Bangladesh?"

If the answer was Yes, the bill would become law and the Constitution amended. If the answer was No, the amendment would fail. The public was not asked to scrutinise an extensive bill; they were presented with a simple, direct question.

As you mentioned, this uprising opposed authoritarian rule. But was the Constitution alone to blame, or were factors like political culture, weak internal party democracy, and systemic flaws equally responsible?

Our Constitution does have certain structural weaknesses. For example, the office of the Prime Minister has been vested with considerable power — and this is not a recent development; it has existed since 1972, when the Constitution was adopted. Tomorrow, 4 November, marks Constitution Day.

While the Prime Minister is the head of the executive, it is also clearly stated that these powers must be exercised under, and in accordance with, the Constitution. There are certainly other weaknesses — several, in fact — but to argue that these alone gave rise to authoritarianism would be incorrect. They may be contributing factors, but they are neither the sole nor the decisive cause.