Which Charter Reforms Are You Voting For? No One Knows.
The wording in the referendum question, set out in the four separate categories of reforms, only clearly match with 20 of the 47 numbered proposals set out in the July Charter
If there is one thing that appears virtually certain about the February 12 referendum, it is that the “yes” vote -- endorsing a package of constitutional reforms -- will prevail.
All major political parties support a “yes” vote, albeit with varying degrees of enthusiasm, and there is no organized campaign advocating for a “no.”
In such circumstances, approval seems inevitable.
However, an important question remains: by voting “yes,” which specific charter reforms are actually being endorsed?
One might assume this would be straightforward. In reality, it is not.
What has not been fully recognized is that the wording in the referendum question, setting out in four separate categories the reforms a person is voting on, only clearly matches with 20 of the 47 numbered proposals set out in the July Charter.
It is not clear which of the other 27 July Charter reforms would be mandated by a “yes” vote.
The Charter
The July Charter as a whole contains 84 reforms. These are divided into two broad groups: 47 reforms requiring constitutional amendment, and 37 requiring changes to ordinary legislation. The referendum concerns only the first category -- the 47 constitutional reforms.
The referendum question groups the reforms into four broad categories, and a “yes” vote signifies approval of all four collectively, rather than allowing voters to endorse or reject individual elements.
It is therefore necessary to examine each of these four categories in turn to determine which of the 47 constitutional reform proposals they clearly correspond to -- and which remain ambiguous.
First Category: Constitutional Bodies
The first category of reforms proposed in the referendum is as follows: “During the election periods, Caretaker Government, Election Commission, and other constitutional bodies will be formed in accordance with the procedures outlined in the July Charter.”
This category clearly corresponds to reforms numbered 16 and 38 of the July Charter, which address the Caretaker Government and the Election Commission respectively.
The reference to “other constitutional bodies” would also appear to encompass reforms numbered 39, 40, and 41, which concern the Ombudsman, the Public Service Commission, and the Comptroller and Auditor General.
However, it is less clear whether this reference to “other constitutional bodies” includes the reform numbered 42 of the July Charter, which relates to the Anti-Corruption Commission (ACC).
At present, the ACC is not a constitutional body; the July Charter proposes to elevate it to constitutional status.
The ambiguity lies in whether the referendum wording refers only to bodies that are already constitutional in nature, or also to those that would become constitutional under the proposed reforms.
For the purposes of this article, however, we will proceed on the assumption that paragraph 42 -- concerning the ACC -- is also intended to be covered by this first referendum category.
Second Category: Bicameral Parliament
The second category concerns the establishment of a bicameral parliament, including the creation of a 100-member upper house whose composition would reflect the proportion of votes each party receives in the national election.
This proposal corresponds clearly to July Charter reforms numbered 17, 18, 19, and 20, which set out the structure, composition, and functioning of the proposed upper chamber.
Taken together, the first two categories in the referendum question can therefore be directly linked to 10 of the 47 constitutional reforms contained in the July Charter.
This leaves 37 constitutional reforms whose status under a “yes” vote are presumably intended to be dealt with in the remaining categories set out in the referendum
The Third and Fourth Categories
The third referendum category concerns “30 reform proposals included in the July Charter” over which “the political parties have reached a consensus.”
It spells out eight specific reforms included in this category as examples.
These are: increasing women's representation in parliament; electing the deputy speaker; parliamentary committee chairs from the opposition; limiting the prime minister's tenure; enhancing the president's powers, expanding fundamental rights; ensuring judicial independence; and strengthening local government.
These examples link to the July Charter reforms numbered 21, 23, 24, 14, 13, 33, 44, 45, 46, and 47.
This amounts to a total of 10 additional July Charter reforms.
Combined with those already identified under the first two referendum categories, this brings the total number of clearly linked July Charter reforms to 20 -- leaving 27 constitutional reforms whose status remains unclear.
However, the third category refers not to ten but to “30 reform proposals.”
This raises an obvious question: which 20 of the remaining 27 constitutional reforms are included in this group?
Political party “consensus” is the only criterion provided in the referendum text for determining which July Charter reforms fall within this category.
But what does “consensus” mean in this context?
Does it require unanimous agreement among all political parties, with no recorded notes of dissent or disagreement? Or is a reform considered to have been adopted “by consensus” if it commands broad -- though not universal -- support, even where one or more parties have formally expressed reservations?
The preamble to the July Charter appears to characterise all the reforms contained in the document as “consensus-based,” even where particular proposals are accompanied by notes of dissent or disagreement.
That this broader understanding of “consensus” is intended is reinforced by the fact that several of the reforms explicitly cited in the referendum text under this “consensus” category are themselves among those in the July Charter that include recorded objections.
Consensus Commission member Dr. Badiul Alam Majumdar has also confirmed that this is the intended meaning of “consensus.”
In addition, it should be noted that if the term “consenus” was instead interpreted to mean “unanimity,” it would apply to only six of the remaining 27 July Charter reforms.
This being the case, it is not therefore clear which 20 of the 27 remaining July Charter constitutional reforms are intended to fall within this third category -- as the criteria of “consensus” does not allow one to distinguish one reform from another.
This uncertainty is compounded by the relationship between the third and fourth categories.
But how is one to distinguish between the 20 unspecified reforms in the third category and the remaining 7 reforms that presumably fall into the fourth?
Because the referendum question does not specify exactly which 20 constitutional reforms are included in the third category, it is impossible to determine with precision which reforms fall into the third and which fall into the fourth category.
This distinction is significant. The third category appears to mandate binding constitutional change, whereas the fourth category merely signals political commitment.
As a result, without greater clarity, voters cannot know with certainty which 20 out of 27 remaining reforms a “yes” vote is formally endorsing as constitutional obligations, and which remain matters of future political discretion.
This ambiguity may prove inconsequential if, after the election, the party or parties in power choose to implement all 47 constitutional reforms set out in the charter.
However, if they do not, significant disagreement could arise over which July Charter reforms were mandated under the third category in the referendum, and which fall within the more discretionary framework of the fourth.
In that scenario, the lack of clarity in the referendum wording may become a source of legal and political contention after the election.
Attempts were made to obtain a response to the analysis contained in this article from Ali Riaz, the Special Assistant to the Chief Adviser and the Head of the Constitutional Reform Commission, as well as from the press spokesmen of the Chief Adviser.
No response has been provided.
David Bergman is a journalist who has written widely on Bangladesh. He can be contacted on twitter @TheDavidBergman.
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