'Provisions in referendum gazette unconstitutional, could result in hung parliament'

Professor Muhammad Yunus, Chief Adviser to the interim government, has confirmed that the national parliamentary election and the referendum will be held on the same day. At the same time, the government has published a gazette concerning the referendum, signed by the President.

Barrister Shahdeen Malik, a Supreme Court lawyer, has stated that since most of the provisions published in the gazette are unconstitutional, this creates a constitutional complication. Citing Article 93 of the Constitution, which declares that "the President cannot promulgate any ordinance that is contrary to the Constitution", he suggested that introducing a bicameral parliament could result in a hung parliament.

"Most of the decisions taken in the July Charter, including those in the gazette, are contrary to the current Constitution. Since the Constitution is still in force, the President cannot legally sign this gazette. It would have been acceptable if the Constitution had been annulled or suspended under martial law. Since neither has happened, everything should proceed according to the existing Constitution," he further told TBS.

Most of the decisions taken in the July Charter, including those in the gazette, are contrary to the current Constitution. Since the Constitution is still in force, the President cannot legally sign this gazette. It would have been acceptable if the Constitution had been annulled or suspended under martial law. Since neither has happened, everything should proceed according to the existing Constitution.

According to the gazette, the referendum will be held on four issues. On the day of the referendum, the public will express their opinion by voting 'Yes' or 'No' on a single question covering all four issues.

However, Shahdeen Malik fears that if the referendum and the national election are held simultaneously, most referendum ballot papers will be left blank. 

National polls, referendum on same day: CA Yunus

"The public first needs to understand the issues they are voting 'Yes' or 'No' on. If it is held on the same day as the election, people will be focused on the national vote, and many — unable to make an informed decision on the referendum issues — will leave their ballots blank. Even when held on a separate day, voter turnout for referendums is usually very low," he explained.

The gazette stipulates that the elected Parliament must complete constitutional reform, as outlined in the July National Charter and by the referendum's result, within 180 working days from the date of its first session. 

Malik termed this provision "absurd". He told TBS, "In the case of such laws, setting a specific time limit or discussing the matter later is generally not done. Therefore, there is no benefit in fixing these dates if the Parliament does not take them seriously."

He further stated, "If the elected government votes 'No' on the Charter or the referendum issues during its first session, then there is no point in setting a 180-day limit. If the matter is not passed by Parliament, there is no subsequent obligation for its implementation."

Malik added, "Holding a referendum earlier will also be fruitless if Parliament does not approve it after the election. Normally, Parliament passes a proposal first, and if it is deemed important for the nation, a referendum is held to gauge public opinion. Here, it is the other way round."

The lawyer criticised the current government's decision-making process, citing a lack of transparency and constitutional understanding. He described the 180-day discussion period mentioned in the gazette as "meaningless" and "ridiculous".

He said, "The gazette shows confusion over the type of election [Constituent Assembly, Parliament, or hybrid]. The proposal to introduce a bicameral parliament is an extremely complex and premature step."

He questioned the effectiveness of the proposed electoral system, the relationship between the upper and lower chambers, and the potential mismatch between the percentage of votes and the distribution of seats.

The gazette states that the forthcoming national parliament will be bicameral. An upper chamber consisting of 100 members will be formed based on proportional representation, and constitutional amendments will require the approval of a majority of the members of the upper chamber.

Regarding this, Shahdeen Malik told TBS, "In the history of Bangladesh, there has never been a case where a party has formed a government with 50% of the vote. Various parties have formed governments by winning 170 or 180 seats with only 35–40% of the vote. Now, if a party wins 180 seats and forms a government with 40% of the vote, the opposition parties, which collectively received the remaining 60%, will have to be given seats in the upper chamber. Therefore, whenever a decision is to be made, complications will arise due to this imbalance. If the upper chamber votes against the government's decision, its implementation will no longer be possible."

Citing the examples of the Lok Sabha–Rajya Sabha in India and the Belgian Parliament, he said, "Belgium decided on a bicameral system in 1970 and reviewed it for 20 years. It subsequently introduced a bicameral parliament around 1990. And in Bangladesh, a bicameral system is being introduced straightaway. This reflects the short-sightedness of the government and the reform commission."

He added that if Members of Parliament are "bound" by a previous ordinance, and a new majority party comes to power and annuls it, this could lead to chaos.

The Chief Adviser mentioned in his address that, in line with the commitment to implement the July Charter, arrangements would be made to incorporate the July National Charter into the Constitution. He said these reforms would play a major role in ensuring good governance in the future.

In his speech, the Chief Adviser stated that treating the Charter signed by the political parties as the main document, the interim government approved the July National Charter and Constitution Reform Implementation Order 2025 in Thursday's meeting of the Council of Advisers. This order includes several important provisions for implementing the July Charter, among which is the referendum on constitutional reform.