A Constitution in Extraordinary Times

The Constitution is the supreme law of the land, even if most of us rarely think about it in our daily lives. It affects every citizen in one way or another, which is why any change to it can have consequences far beyond the walls of Parliament.

The Special Parliamentary Committee tasked with amending and reforming the Constitution, led by Home Minister Salahuddin Ahmed, said on September 27 that it could change (or, in formal terms, “amend”) some of the Constitution’s basic provisions.

If these parts of the Constitution are changed, the people must vote in a referendum before the President can approve the changes. In other words, the proposed constitutional changes will fi rst be passed as a bill in Parliament, and then the people will vote on them.

This has brought back an old but nagging question: Through what process should Bangladesh change its Constitution?

Who should lead constitutional reform?

Right now, the ruling party is largely in control of the constitutional amendment process. All members of the special committee belong to the ruling party, even though the Opposition has fi ve seats in it.

That is because the Opposition rejected the committee and instead wanted a ‘Constitutional Reform Council’, as proposed in the July National Charter.

The July Charter Implementation Order says that Parliament members (MPs) would also act as members of the Reform Council.

But BNP’s elected MPs refused to join the proposed Council, arguing that the Constitution does not recognise such a body. They took their oath only as Members of Parliament.

This created a bigger debate:

Can the written Constitution be more important than what the people want?

And what exactly counts as “the will of the people”?

The legal challenge to the July Charter Implementation Order

Speaking in Parliament on April 30, Home Minister Salahuddin Ahmed called the July Charter Implementation Order an “illegal order. ” His argument can be broken down into a few key points:

1. The President did not have the power to issue this order The Home Minister questioned whether the President had the authority to issue the July Charter Implementation Order at all. He argued that the President’s power to issue such laws had ended after April 7, 1973. He says this because, after Bangladesh became independent, between 1971 and 1973, the country was still building its new institutions. During this period, the President issued laws and other important orders. But Bangladesh later adopted a parliamentary system, which removed the President’s broad lawmaking powers. Today, Article 93 allows the President to issue ‘ordinances’ only in specific situations—when immediate action is necessary, and Parliament has either been dissolved or is not sitting. So, according to the Home Minister’s argument, the President cannot simply issue an order with the force of law whenever he wants.

2. The July Charter did not properly include political parties’ disagreements The Home Minister also criticised the interim government for leaving out the “notes of dissent” submitted by political parties before the July Charter was presented. These were statements explaining which parts of the Charter the parties disagreed with.

3. The referendum did not properly measure what people wanted He also questioned how the referendum was organised. Voters were asked to answer “Yes” or “No” to four questions covering major constitutional changes. The Home Minister argued that putting several major reforms together does not give voters enough choice. For example, someone might support one reform but oppose another. If they are all placed in one question, that voter cannot express that difference.

4. An interim government should not make permanent decisions The Home Minister also argued that an interim government does not have the authority to make permanent decisions on major national issues.

5. The Constitutional Reform Council itself has no basis in the Constitution Finally, he criticised the Election Commission for administering oaths to members of the proposed Constitutional Reform Council. His argument was simple: if the Constitution does not recognise such a Council, there is no legal basis for people to take an oath as its members. As he put it: “The people voted for us in the parliamentary election as candidates for Parliament. There was no ballot for members of a Constitutional Reform Council.”

So, what is the government’s position?

The government supports the reforms proposed in the July Charter. But it argues that those reforms must be carried out through the existing Constitution and its procedures, rather than through the process created by the July Charter Implementation Order.

It also questions whether the referendum properly represented the “will of the people.”

But the Constitution is more than just words

Many of BNP’s arguments may appear legally valid if we look only at the exact words written in the Constitution.

But a quick look at Bangladesh’s political history makes us question:

Should we understand the Constitution only by looking at its written words, or should we also consider what the Constitution is supposed to protect?

Constitutional rules have often been changed or interpreted in ways that benefited the people who were in power at the time.

For example, Article 7A said that if you criticize the Constitution, it would be considered treason.

Article 33(4) allowed a person to be held in custody, even without being convicted of a crime, potentially for life.

So, just because something is written in the Constitution does not mean it always reflects what the Constitution truly stands for.

Of course, concerns about breaking constitutional rules are legitimate. Because if constitutional procedures are weakened or ignored, it could create uncertainty and instability in the future.

However, the situation surrounding the current reform process is not an ordinary situation.

The July Uprising created an extraordinary political moment. It resulted in what many people describe as a ‘constitutional vacuum’, a situation where the normal constitutional rules do not fully explain what should happen.

So as they say, "desperate times call for desperate measures."

Yes, the current Constitution does not give the President a general power to issue “President’s Orders.”

The President’s Orders issued during 1972–73 were created during the early years of Bangladesh, when the institutions of the new country were still being built.

The argument in favour of the July Charter Implementation Order follows a similar idea.

After the July Uprising, Bangladesh again entered an unusual constitutional situation. The existing constitutional system could not fully deal with the political transition that had taken place.

This is also the reasoning behind the creation of the interim government itself.

The current Constitution does not contain specific rules explaining how such an interim arrangement should work. Yet the interim government was created because an extraordinary situation had developed.

It is worth noting that giving power to the interim government did not violate the Constitution. The Preamble and Article 7 clearly state that the Constitution represents the supreme will of the people, and that all power in the Republic ultimately belongs to them.

If the interim government was accepted because of the people’s support during an extraordinary situation, then why shouldn’t the referendum and the July Charter Implementation Order be treated the same way?

After all, both arguments ultimately come from the same source: the will of the people.

Was the referendum properly carried out?

Two questions are at the heart of this debate:

First, was it proper to ask voters to approve several reform proposals through one “Yes” or “No” question?

Second, does the voter turnout of 60.26% tell us whether a referendum truly represents the “will of the people”?

Looking at Bangladesh’s previous referendums can help put both questions into context.

Bangladesh’s first referendum

Bangladesh held its first national referendum on May 30, 1977, during the presidency of Major General Ziaur Rahman.

Before the vote, Ziaur Rahman announced a 19-point programme covering issues such as protecting Bangladesh’s independence and sovereignty and promoting the four constitutional principles.

So, the referendum was not about one isolated issue. It also asked voters to support a broader political programme.

The referendum officially recorded around 88.05% turnout, with 98.88% voting ‘Yes’.

But according to a Daily Star report , Muhammad Yeahia Akhter, a former Vice Chancellor of Chittagong University, wrote in his book Electoral Corruption in Bangladesh that although the official figures showed extremely high turnout, the referendum was only “partially successful.”

He noted that opposition groups claimed the o ffi cial fi gures had been exaggerated.

Bangladesh’s second referendum

A similar approach was taken during the presidency of Hossain Muhammad Ershad.

On March 21, 1985, voters were asked whether they had con fi dence in Ershad’s policies and programmes and supported his remaining President until elections could be held while the Constitution remained suspended.

Ershad had also announced an 18-point programme before the referendum.

Again, voters were being asked about a broader set of political issues rather than one single reform.

The referendum officially recorded 72.44% turnout, with 94.11% voting in favour, but its credibility was also questioned, including by The Times of London, which described the referendum as fraudulent.

Bangladesh’s third referendum

Bangladesh’s third referendum was held on September 15, 1991. This was the fi rst referendum directly linked to a constitutional amendment.

Voters were asked whether the President should give assent to the Constitution (Twelfth Amendment) Bill, 1991.

Turnout was only around 35.2%, but among those who voted, 83.6% voted in favour.

Despite the low turnout and the fact that the entire amendment bill was put to voters as a single question, the result was accepted as part of the constitutional process.

What happens in other countries?

Voter turnout also varies widely in referendums around the world:

There is no universal turnout level that automatically determines whether a referendum represents the “will of the people.”

Conclusion

The conflict between constitutional legitimacy and the will of the people is not simple.

Bangladesh itself was not created by following Pakistan’s existing constitutional system. And overthrowing a government through a mass uprising is not something written into the Constitution.

Yet history shows that, in extraordinary moments, political legitimacy can come from the people themselves, not only from existing legal procedures.

That means the future of the July Charter will depend on more than legal arguments.

It will also depend on political commitment, responsible institutions, and whether those in power genuinely re fl ect the public mandate that created this moment.