'People are above everything. They are above the Constitution'

Please explain the constitutional basis for the referendum. On what legal basis is it being conducted, and will it be open to challenge?

To understand the constitutional basis of the referendum, one will also have to understand the constitutional basis of the Professor Yunus-led government -- because both of them have the same constitutional basis.

When Sheikh Hasina fled from Bangladesh, we didn't have a prime minister, and it created a constitutional vacuum of catastrophic magnitude that Bangladesh had never encountered before.

It is difficult to argue that this government was formed on the basis of the written constitution, yet, it is still both constitutional and legitimate.

Once the Prime Minister fled the country, it became impossible to apply the written constitution because the constitution simply did not contemplate such a situation. Therefore, one would have to find the basis of the constitutionality and legitimacy of the government in principles outside the written constitution.

One of the principles that can be relied on is known as the principle of necessity. To avoid the country becoming a failed state, the constitutional principle of necessity required putting in place a government  --  and it is not a general idea of necessity, it is a constitutional principle of necessity.

At a post-revolutionary time, when the Constitution doesn’t work, revolutionary constitutionalism can take the place of the written constitution. Put simply, revolutionary constitutionalis mconcerns public accountability of a post revolution government, which derives its authority from the revolution and from the sacrifice of the revolution.

I think I might be the first person in Bangladesh to put the idea of revolutionary constitutionalism on the table in the context of the July revolution.

On August 5, all branches of the government, the executive, including the presidency, the legislature, and the Supreme Court became dysfunctional -- as none of the branches could function in accordance with the written constitution, having their members fled the country, taken refuge or for otherwise being unavailable to discharge their constitutional roles.

So how are they now operating then? They're operating because of the doctrine of necessity, and because of the explicit or tacit consent of the people in a post revolution context which prompted the installation of an interim government led by a chief advisor to oversee this transition. This is people exercising power directly.

People are above everything. They are above the constitution. A recognition of this can be found in Article 7 of the constitution, which states that all powers in the Republic belong to the people.

On the basis of the peoples’ consent all branches of the government are now following the written constitution to the extent possible under the circumstances. As an example, Article 93 of the Constitution can be referred to, which says that if there is no parliament in session, then the President can pass ordinances, and the President has promulgated many ordinances during the past year.

The current constitutional situation, therefore, can be described as a kind of a glass half full or half empty situation. One can either focus on the empty part to say, literally, the written constitution is not operating. Alternatively, one can focus on the full part to say, on the basis of people’s consent we are following the written constitution as far as possible.

Since the authority of the current government arises from a revolution, the nature of their authority is rather different from the nature of the authority of a regularly elected government, and that authority would encompass the authority to at least do some tangible things for the reform of the state machinery.

Surely, this government cannot, by itself, adopt a constitution or amend the constitution. Anyone would be crazy to say that, but you'd have to accept that they have some authority to at least start the change. They have the authority to hold the referendum for the change.

If you consider the reform order that was issued on November 13, the referendum provided for in that order, is aimed to gauge people's perspectives and views on the reform agenda.

Of course, one can commence legal proceedings to challenge this.  But as a counsel, I think we would have very strong arguments to say that the challenge should be rejected by the court.

Do you think that holding the referendum on the same day as the general election was the correct decision? What difficulties might have arisen if the referendum had been held earlier?

Referendums are essential to get people's opinion. As I mentioned already, the government has some authority, but doesn't have the authority to impose a constitution.

That's why you need the people's consent. Referendum is neededfor getting the people's consent The referendum is important for a reform of this nature at this time, in an extraordinary constitutional situation.

For the government and the Election Commission, the pressure of carrying out two elections in two months may not be practical or feasible. Taking into consideration that the government and the EC are involved significant election related work, perhaps they thought doing both elections together would be easier.

One argument to do it beforehand is that then people can study the suggested reforms before going into the next parliamentary election. The argument against doing it before is the practical difficulties.

An argument for doing it along with the parliamentary election is that it's easier. However, if they are done together, maybe some people would just vote for their candidate and not cast the other vote.

Hence, you can argue for and against in respect of both approaches. Legally, the timing has no bearing on the referendum’s legal consequences.

Do you not think the format of the referendum, with four questions but a single yes no option, is unnecessarily complicated? Could there not have been a simpler approach?

I don't think it's unnecessarily complicated, because if you look at the questions, they have been formulated quite simply.

The reform agenda itself is very broad. The four reform questions offer coverage for all that has been discussed by the political parties.

Of course, one can still argue whether ordinary people would understand them. I would say that it is the responsibility of the political parties and also the government to inform the people about this. Our people are very conscious political beings who can be easily informed about the matter.

We Bangladeshis love politics. Politics is not talked about so much in many other countries as it is in Bangladesh.

Our people do understand things. Our people are conscious political citizens, and it is, I think, completely inappropriate to say that they would not understand.

What should a voter do if they are in favour of two of the items and against the other two?

It is the responsibility of the government and the political parties to inform the people about the scope of the referendum, and fundamentally it is about reform. It is about changing the systems, as we do not want to go on as we have been, so that we can have a different country, more humane, more people-oriented, more democratic, more rights-oriented, rule-based and a country governed by the rule of law and not by dictators.

If you look at the four questions or the July charter itself, their purpose, overall, is to make the government accountable. It's to empower the people.

Yet, it  can be normal to have people who possibly will disagree with the entire reform agenda covered in the four questions.

With regard to the question of how to vote by Yes or No, I can say that those who do not support all four questions will have at least three choices.

The first choice for such people would be that although they dislike some reforms the broader agenda is acceptable to them and hence may still decide to vote yes. The second choice would be to vote no because although they agree to the overall reform they have such strong opinions against a few matters that they think they would prefer to vote no, The third choice for them would be to refrain from voting because they are undecided.

Still, apart from those who are faced with this dilemma, from the other people who participate and vote, it would be possible to have a very solid public feedback about what the citizens of the country are thinking about these reforms.

Do you think the voters will understand what they are voting for? how many will actually have read the July Charter that is referred to throughout?

Everyone doesn't need to read the charter word for word, if one can understand what it is all about that should be fine. As I said, it is about reform and making the country better.

It is the responsibility of the government and the political parties to explain to the people, so that one doesn't have to read the charter in its entirety. What is important is for people to broadly understand what it is all about.

The long charter has been reduced to four very simple questions. One is if you want an upper house. The second is whether you want some constitutional bodies, such as the Election Commission to be appointed by independent people.

Someone who is for instance a farmer or a worker, would be able to understand that we did not have good elections because our Election Commission used to listen only to what the Prime Minister said. So, if you ask them the question whether they want the Election Commission to be independent, they would understand something that simple.

The Prime Minister should not be able to put his or her people in the election commission. I'm sure every simple person will understand that. I think all of this talk about people not understanding, is kind of showing disrespect to our people, and the questions, as they have been formulated in the charter, are easy enough for people to understand. One doesn't need to read the July Charter to understand them. Whatever awareness needs to be created can be created by the government and the political parties.

Will the incoming Parliament be bound by the terms of the referendum, or can they ignore some of its provisions?

As I said, the interim government has the authority to conduct the referendum, to get people's opinion, but they don't have the authority to impose something on the people. That's why the last part of the reform would have to go through the people's representative, the Parliament, which, for this purpose, would work as the Constitution reform assembly.

There is no legal means to compel them to carry out the intention of the referendum. It is a moral, ethical, and political obligation. If the incoming parliament disregards the people's will, the political party or parties concerned would have to pay the price in political terms, maybe they would perform badly in the next election and may suffer some political setback.

Then again, they may not suffer any political setback -- people may be perfectly fine with the parliament disregarding the referendum.

People may also not be fine. It is likely that the demand for reform would remain there until it is satisfied.

The consequence would also depend on what the other actors do. If the other actors can make it a significant political factor, those who oppose the reform may pay a political price or may not -- we simply do not know the future at this point. But there would be no legal consequence.

The views expressed are those of the interviewee.

Michella Chowdhury is Senior Editorial Assistant, Counterpoint.