A referendum is supposed to be a conversation between the state and its people. The state asks a question. Citizens answer. That simple exchange is the heartbeat of democracy. But it only works if the state stays neutral. The state cannot campaign for a particular answer. It must create space for citizens to decide freely. Yet Bangladesh’s referendum has completely undermined this principle. The state is no longer an impartial facilitator; it asks questions while loudly proclaiming the answers it wants. Government officials, through every available channel, are pushing for ‘yes’ votes. The Election Commission has issued formal directives citing Section 21 of the Referendum Ordinance, 2025 and Article 86 of the Representation of the People Order, 1972 which explicitly bar officials from campaigning.
The fundamental constitutional problem begins with a simple fact: Bangladesh’s Constitution does not mention referendums at all. That means the government has no constitutional authority to hold one. This is the doctrine of ‘enumerated powers’ the government can only exercise powers the Constitution explicitly grants. This principle protects citizens from unlimited state power in every constitutional democracy. Yet the interim government claims it can proceed with a referendum through an executive order: the July National Charter (Constitution Reform) Implementation Order, 2025. The government argues this executive order creates the legal power to conduct a referendum. But here is the incontrovertible constitutional problem: An executive order cannot create constitutional power. An executive order is subordinate to the Constitution. It must be based on constitutional authority that already exists.
This is a principle of constitutional law recognised in every constitutional democracy in the world. Why? Because if executive orders could create constitutional powers, then every executive could simply issue orders expanding its authority. The President could issue an order claiming it now has legislative power. Parliament could issue an order claiming it now has executive power. The military could issue an order claiming it now has constitutional authority. The Constitution would become meaningless. Constitutional limits would be illusory. Government would be unlimited. Citizens would have no protection from governmental abuse.
On February 12, citizens will face four questions framed as simple reform choices. Yet this apparent simplicity is deceptive. Behind these four questions lie eighty-four distinct measures: forty-seven constitutional amendments and thirty-seven laws and administrative reforms. Citizens cannot vote on them individually. They cannot express nuanced preferences. Instead, they face an impossible all-or-nothing choice: approve everything or reject everything. A voter may support caretaker government reform but oppose the creation of an upper chamber. Farmers may support land regulations but object to administrative restructuring. Each confronts the same structural trap. Controversial provisions ride alongside popular reforms, forcing citizens to accept what they oppose to get what they support. This is not democratic choice; it is a political instrument engineered to produce predetermined outcomes.
The four proposals reveal government strategy. The first binds caretaker governments, the Election Commission, and constitutional bodies to July Charter procedures, locking how future interim governments will be selected and preventing any future government from altering caretaker selection procedures. The second creates a 100-member upper house based on proportional representation, converting Parliament from unicameral to bicameral and fundamentally changing legislative dynamics constitutional amendments now require dual approval from both chambers. The third proposal legally binds all future governments to implement thirty specific commitments from the July Charter, eliminating all discretion. No future government can refuse these thirty proposals regardless of circumstances. The fourth proposal enforces implementation of remaining reforms based on party commitments. Collectively, these four proposals embed the interim government’s vision into permanent constitutional structures, making future modification extraordinarily difficult.
Most critically, among these eighty-four measures are modifications to Articles 7A and 7B, the constitutional safeguards protecting Bangladesh against Unconstitutional takeover. These provisions are so fundamentally important they deserve their own separate referendum, not bundling with eighty-two other provisions. Pakistan’s experience illustrates why. Pakistan’s Constitution historically lacked strong safeguards preventing military takeover. This constitutional weakness enabled repeated military interventions. Bangladesh learned from Pakistan’s fate. Articles 7A and 7B were deliberately crafted to prevent this pattern. Article 7A asserts the Constitution’s supremacy, declaring any extra-constitutional seizure of power illegal. Article 7B criminalises attempts to usurp authority outside constitutional procedures. These form the legal framework preventing unconstitutional intervention and protecting civilian rule. Yet the referendum proposes altering these crucial safeguards through a process lacking clear legal authority. By demonstrating that constitutional safeguards can be bypassed, the referendum weakens Articles 7A and 7B before they are altered. Future military actors can argue that constitutional procedures need not be followed because the interim government bypassed them during the referendum. Bangladesh risks repeating Pakistan’s fate.
The Constitutional Reform Council creates legal chaos. For 180 working days, Parliament acts as Constituent Assembly while simultaneously continuing legislative duties. MPs face an impossible legal situation they must govern daily affairs while rewriting the entire constitutional framework. Forty-seven constitutional amendments and thirty-seven administrative reforms must complete within six months. This compressed timeline creates a legal void. Parliament’s normal legislative function is legally suspended. The old Constitution technically remains but is being rewritten. The new Constitution is being drafted but does not yet exist. Constitutional authority becomes legally uncertain. Which Constitution governs during this period? The old one being rewritten? The new one not yet existing? This legal ambiguity invites challenge. Contracts entered during this period could be challenged as unconstitutional. Government decisions could be challenged as lacking legal authority.
The legal foundation of the referendum itself is fundamentally flawed and void. Bangladesh’s Constitution contains no provision authorising referendums. This is not minor omission. This is constitutional silence with legal meaning. Article 119 of the constitution grants the Election Commission authority over “elections to the office of President and to Parliament.” These words are legally precise. The Constitution does not mention referendums. In constitutional law, silence equals prohibition. This principle is recognised worldwide. Government has only those powers the Constitution explicitly grants.
Thirty binding proposals create serious legal contradictions. Future governments would be legally required to implement them under any circumstances. Governments elected to oppose certain measures would still have to carry them out. Those facing economic crises would have to spend resources on these provisions despite fiscal emergencies. Governments confronting security threats would be forced to act despite national danger. This sets up a direct conflict between the constitutional duty to act in the national interest and the legal obligation to implement specific measures. The result: the government becomes immobilised by conflicting legal obligations, and their chance to challenge in future in Constitutional court.
Article 39 guarantees citizens the right to express their political views without state pressure. Yet when the government pushes for ‘yes’ votes, that freedom becomes meaningless. The Election Commission is meant to protect this right, but it has done little to prevent violations. And informed consent? It falls apart entirely if even legal experts struggle to make sense of all eighty-four complex measures, ordinary citizens cannot possibly give a truly informed vote.
Normally, a national vote sees turnout around 65–70 percent when all major Political party participate. Here, the government has barred a major political party Bangladesh Awami League from running by executive order, which is likely to drop participation to 40–50 percent. If only 40–45 percent of those voters support the proposals, it means barely 20 percent of eligible citizens are deciding on sweeping constitutional changes. No democratic standard considers such a small, restricted turnout truly representative. Internationally, countries like Italy, France, and Denmark legally scrutinise low-turnout votes. Bangladesh cannot claim that 20 percent of voters represents the will of 170 million citizens, making the referendum legally and democratically questionable.
Bangladesh’s citizens face a critical choice: will they allow the state to bypass constitutional limits, pressure institutions, and shape the vote, or will they demand that the Constitution not the government remains ultimate authority? The state has entered uncharted territory, abandoning neutrality and stepping into the ballot box as competitor. By bundling eighty-four complex measures into a single vote, the referendum denies voters the ability to give true, informed consent. Every citizen must ask: can citizen genuinely consent under these conditions? Does the result truly reflect the people’s will, or has the government rendered participation meaningless? The answer on February 12 will decide whether the Constitution governs the state or the state governs above the law.
The writer is an Advocate, Human Rights activist, and Political analyst. He can be reached at: [email protected]
