Why proposed July charter implementation order draws concerns?
The Business Standard speaks to prominent legal and constitution experts on the recommendations posed by the consensus commission and their implications
The next parliament is set to double as a Constitutional Reform Council, tasked with completing long-awaited constitutional reforms within 270 days in line with the July National Charter.
According to recommendations in the July National Charter (Constitutional Reform) Implementation Order, 205, by the National Consensus Commission, the reforms — if not enacted within this period — will automatically take effect as approved in the upcoming referendum, which is likely to be held alongside the national election. The Business Standard speaks to prominent legal and constitution experts on the recommendations posed by the consensus commission and their implications.
'If outcome is predetermined, what is the purpose of discussion?'
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Shahdeen Malik, Legal Expert
The commission outlined two options for parliament to carry out implementing the July National Charter. It must be completed within 270 days, or, if a referendum approves the proposed bill but the council fails to implement it within that timeframe, the bill would automatically come into effect after 270 days.
This raises a fundamental question: if the outcome is predetermined, what is the purpose of 270 days of discussion? In essence, parliament would be given 270 days to agree to the proposal, and if it fails to do so, the bill would automatically become part of the constitution after that period. Such an arrangement renders the discussions meaningless, turning them into little more than a formality. What, then, is the value or purpose of such deliberations?
In effect, this approach amounts to a form of coercion, stripping the process of any genuine deliberative character. Moreover, there is no provision for a "no" vote or for expressing a note of dissent in the referendum. Once approved, no one — neither citizens nor political parties — would be able to raise questions about the provisions included. This makes the proposal both confrontational and impractical.
It is said that the document contains 84 provisions, 48 of which relate directly to the constitution. This raises another question: if such a large and complex document is put to a referendum, how can ordinary citizens be expected to understand it and make an informed decision?
Perhaps not even 5% of the population would fully comprehend its content. Spanning roughly 25 pages, the document is so intricate that even educated individuals would need significant time and concentration to form an informed opinion. In practice, therefore, implementing such a proposal would be nearly impossible.
This means that neither the public nor political parties would have any real space for dissent. Furthermore, if the referendum were to be held before the next election, a separate ordinance would have to be issued to make it legally valid.
The Referendum Act of 1991 was repealed, and there is currently no existing law in Bangladesh to govern the conduct of referendums. Hence, a new ordinance would need to be enacted before any such vote could take place.
TBS' Saqlain Rizve spoke to Shahdeen Malik over the phone.
'Legal framework for referendums is outdated'
Jasmine Tuli, Member, Electoral Reform Commission
If both the national election and the referendum are held simultaneously, it would be beneficial in the sense that it would save a significant amount of money. Holding them separately, even a few days apart, would almost double the budget and raise costs substantially.
Moreover, organising two major events within such a short time frame would be quite challenging — that's one issue.
Another point is that if both elections are held together, the Constituent Assembly and the Members of Parliament will begin working simultaneously. "Held together" here means that the same individuals would be elected for both roles. They would then have 270 days to complete the constitutional tasks.
However, the part that seems somewhat unclear is the clause stating that if these reforms are not completed, they will take effect "automatically". What exactly does "automatically" mean in this context? Since this involves constitutional amendments, the term suggests that if the referendum passes, it would be considered an expression of public consent — and thus, automatically incorporated into the constitution.
It appears that the emphasis on the word "automatic" is meant to imply that once the referendum passes with a 'yes' vote, parliamentary approval would no longer be necessary. There is, in fact, precedent for this: when a bill is sent to the president, if it is not returned within the stipulated time, it is automatically considered approved. So, this isn't an entirely new concept either.
There are also multiple notes of dissent regarding the July Charter. Not all issues have unanimous agreement among political parties. Some are constitutional, some legislative, and others administrative.
For this reason, clear communication with the public — including people in the most marginalised communities — will be crucial. Farmers and ordinary villagers will also cast their votes. But if they are not properly informed, they may end up casting a mere 'yes' or 'no' vote without understanding what they are voting on.
The last referendum was held in 1991, but that law is no longer applicable. The legal framework for referendums is outdated. The laws from 1977 were specific to that time, those of 1985 to that period, and the 1991 referendum had its own framework. None of these can be applied in the present context.
TBS' Shadique Mahbub Islam spoke to Jasmine Tuli over the phone.
'Option still there for political parties to negotiate and reach understanding'
Asif Shahan, Professor, Development Studies, Dhaka University
Regarding the note of dissent, Clause 8(D) states that the matters passed through the referendum will remain under consideration. Essentially, this means that if any modifications are necessary, they can still be made.
Within the 270-day timeframe, many issues will need to be clarified. For instance, in the section about the appointment process of the Election Commission, it mentions that appointments must be made by consensus.
However, it does not specify what happens if such consensus cannot be reached. This means that if political parties fail to agree on the appointment of the next Election Commission, it could potentially trigger another political crisis — something that will need a clear solution.
Secondly, even if we agree to establish an Upper House, possibly under a proportional representation system, questions remain about how its sessions will be structured. The distribution of vacant seats, for example, depends on the percentage of representation — and these details have yet to be finalised. These are issues that must be resolved.
So, in essence, while the proposal suggests excluding the note of dissent, there still remains an avenue for political parties to negotiate and reach an understanding.
As for the timing of the referendum, I personally believe it should be held alongside the election. If held separately in November, voter turnout could be significantly lower. With less time for campaigning and voter awareness, the outcome might not reflect broad public participation. And assuming that the majority will automatically vote 'yes' would be premature — as we saw during Brexit, public sentiment can turn out quite differently from expectations.
TBS' Shadique Mahbub Islam spoke to Asif Shahan over the phone.
'270-day automatic approval clause not constitutionally valid'
Ahsanul Karim, Constitutional Expert and Supreme Court Lawyer
According to the commission's recommendation, the next parliament would serve a dual role — acting both as a constitutional reform council, with constituent powers, and as the national parliament responsible for implementing the July National Charter.
The commission proposed two options for parliament to implement its recommendation: either the process must be completed within 270 days, or, if a referendum approves the related bill but the council fails to implement it within that timeframe, the bill would automatically come into effect after 270 days.
However, (what Dr Ali Riaz said), "if not completed within 270 days, it will automatically take effect" is not constitutionally valid. Such a provision cannot be included in a parliamentary or constitutional system. This is because any amendment or addition to the constitution must follow specific procedures — it requires a two-thirds majority in parliament. After that, the approved bill is sent to the president, who may, if necessary, refer it to a national referendum.
If the referendum results in a "yes" vote, then the change is implemented. But it cannot happen automatically — a commission cannot simply set a rule that something becomes part of the constitution after 270 days. The constitution does not permit such an automatic process.
As for the referendum itself, it may take place before or on the same day as the national election. However, once a national election is held, the effectiveness of a referendum becomes questionable. The point of a referendum arises only after parliament, with a two-thirds majority, approves a constitutional amendment and sends it to the president.
The president may then decide to hold a referendum. But there is no provision for holding a referendum before that process begins. Even if one were held, the matter would ultimately have to return to parliament for final approval.
Moreover, not all provisions can be added to the constitution. Many clauses of the July Charter are not laws, nor are they eligible for constitutional amendment. Those that are not subject to amendment cannot be incorporated into the constitution at all.
TBS' Saqlain Rizve spoke to Ahsanul Karim over the phone.
