Bangladesh’s Referendum: A Constitutional Crisis in the Making

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.

Article 119 of the Constitution grants the Election Commission authority over elections to the office of President and to Parliament. Under 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. Article 142 lays out strict procedures for constitutional amendments.

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 recognized 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.

Government would be unlimited. Citizens would have no protection from governmental abuse. On February 12, citizens will face four questions framed as reforms. The first would lock the selection of caretaker governments, the Election Commission, and constitutional bodies under July Charter procedures. The second would create a 100-member upper house, turning Parliament from unicameral to bicameral so that constitutional amendments must pass both chambers.

The third would legally bind all future governments to implement thirty specific commitments from the July Charter. The fourth would require that the remaining July Charter reforms be enacted through all eighty-four measures -- forty-seven constitutional amendments and thirty-seven laws and administrative reforms.

They cannot pick and choose. Instead, they must accept 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. Article 39 guarantees citizens the right to express political views without state pressure. Yet with government pushing yes votes and barring the Awami League by an executive order, many citizens cannot freely voice opinions. If legal experts struggle to understand all eighty-four complex measures, ordinary citizens cannot make truly informed decisions.

Informed consent collapses when voters cannot understand what they are approving. Most critically, among these eighty-four measures are modifications to Articles 7A and 7B, the constitutional safeguards protecting Bangladesh against Unconstitutional takeover.

These provisions exist for a reason: Pakistan’s history shows what happens when such safeguards are weak, allowing 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 criminalizes 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 be completed 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 uncertainty invites challenges -- government decisions, contracts, and laws could all be questioned as unconstitutional.

Normally, national votes see strong turnout when all major parties can participate. Here, the government has barred a major political party, the Awami League by an executive order, from running, which is likely to sharply reduce participation. If only a fraction of voters support the proposals, a very small segment of citizens would end up deciding on sweeping constitutional changes. No democratic standard would consider such a restricted vote truly representative.

Around the world, low-turnout referendums are closely scrutinized for legitimacy. Under these conditions, it is hard to argue that the results reflect the will of the country, making the referendum legally and democratically questionable.

Bangladesh’s citizens face a crucial choice: Will they allow the state to bypass constitutional limits, pressure institutions, and control the vote, or will they insist that the Constitution not the government remains the ultimate authority?

The state has abandoned neutrality, acting as a competitor in the ballot box. By bundling eighty-four complex measures into a single vote, the referendum makes informed consent impossible. Every citizen must ask: Do I fully understand all these 84 reforms in their details? And their before-and-after effects? Can I truly approve all of this? Does the outcome genuinely reflect the people’s will?

To ask the question is to answer it.

Kollol Kibria is an Advocate, Human Rights Activist, and Political Analyst.

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