Referendum, Constitution, Power, and Neutrality: A Democratic Promise or a Critical Test for the State

Md. Kamal Uddin    |    ০৩:১৮ পিএম, ২০২৬-০১-২২

By Md. Kamal Uddin

A referendum—or a simple “Yes–No” vote—is an important instrument of democracy through which citizens can directly express their will. However, this process becomes credible and legitimate only when it is conducted in a neutral environment, free from any partisan use of state power. In a parliamentary democracy like Bangladesh, it is therefore essential to closely examine three interlinked issues: the role of the government, the legal boundaries governing a referendum, and the responsibilities of the Election Commission. In democratic practice, a government, as a policymaking institution, has the political right to express its position either for or against a referendum. It may present arguments in support of its proposal, provide policy explanations, and raise public awareness about the issue at stake. Such engagement is a normal part of political discourse. However, when this advocacy crosses into the misuse of state power—such as deploying public funds, the civil administration, law enforcement agencies, or state facilities to influence voters—it ceases to be democratic campaigning and instead undermines the fairness and legitimacy of the referendum. Bangladesh does not yet have a separate and comprehensive law governing referendums. Nevertheless, existing electoral laws—particularly the Representation of the People Order, the Election Commission Act, and policies regulating the use of public resources—offer important guidance. The underlying philosophy of these laws is to ensure equal opportunity, a neutral environment, and freedom of expression. Accordingly, if a referendum is conducted under the supervision of the Election Commission, the core principles of the election code of conduct should apply. From this perspective, if public office-holders participate in referendum campaigning, it must be clearly identified as a personal or political stance—not as an exercise of state authority. Throughout the referendum process, the role of the Election Commission is paramount. Its responsibility is not limited to organizing the vote; it must also ensure a free, fair, and impartial environment. The Commission must guarantee that all stakeholders—government, political parties, and civil society—enjoy equal opportunities to express their views. If government campaigning exceeds acceptable limits or creates the risk of one-sided influence, it becomes the Commission’s duty to regulate such activities and, if necessary, impose directives or restrictions. In addition, the formulation of the referendum question, the language used on the ballot paper, and the methods of disseminating information to voters must all be transparent and easily understandable. The use of the administration and law enforcement agencies must be strictly neutral and must not favor any side. Otherwise, there is a real danger that a referendum will turn into an extension of the ruling authority’s campaign rather than a genuinely democratic process. International experience shows that in many democratic countries, while governments clearly state their positions in referendums, election commissions or equivalent bodies play a balancing role. Governments present arguments, but control of the process remains in the hands of independent and neutral institutions—this is the internationally accepted democratic standard. In conclusion, government campaigning in a referendum is not entirely prohibited, but it must remain within strict legal and ethical limits. The government should act as an interpreter of policy, the Election Commission as the neutral guardian of the process, and the people as the ultimate decision-makers. Failure to maintain this balance may cause a referendum to generate controversy and distrust instead of strengthening democracy. The success of a referendum therefore depends on how restrained the government is in its campaigning and how firmly the Election Commission fulfills its constitutional responsibilities.  The fundamental philosophy of democracy is that the people are the true sovereign. One way to directly ascertain the people’s will is through a referendum or “Yes–No” vote. In many countries, this mechanism is regarded as a complementary democratic tool for obtaining direct public consent on major state decisions, laws, or constitutional questions. The critical question, however, is where referendums stand within Bangladesh’s constitutional and legal framework. Are they constitutionally valid, or are they confined to the realm of political promises? The Constitution of Bangladesh does not explicitly mention the term “referendum.” The state system is primarily based on parliamentary democracy, where the National Parliament is the sole legitimate authority for lawmaking and state decision-making. Articles 56 to 65 of the Constitution clearly define the powers and authority of Parliament. As a result, public opinion does not directly translate into law or policy; it must pass through parliamentary processes to acquire legal force. At the same time, Article 7 of the Constitution declares that “all powers in the Republic belong to the people.” This principle provides strong moral and philosophical support for the idea of a referendum. While the people are the ultimate source of state power, the constitutional path for exercising that power is defined through representative institutions. Thus, referendums are not prohibited, but they are not automatically binding either. In practice, Bangladesh can organize referendums as political or policy initiatives to seek public opinion on matters of national importance. However, the outcome of such a referendum gains constitutional validity only when Parliament accepts and implements it through legislation or constitutional amendment. Otherwise, the referendum remains consultative or advisory in nature. If a referendum is intended to be binding—meaning that no decision can be taken without a public “Yes” or “No”—the existing constitutional framework is insufficient. In that case, a constitutional amendment under Article 142 would be required, which demands a two-thirds majority in Parliament. Additionally, a separate referendum law would need to be enacted, clearly outlining procedures, authorities, voter lists, and the binding nature of the results. Internationally, the constitutional status of referendums varies. In Switzerland, referendums are mandatory and decisive. In France, referendums called by the President have constitutional force. In the United Kingdom, referendums are not legally binding but are politically difficult to ignore—the Brexit vote being a prime example. Bangladesh’s position, in practice, is closer to the UK model. The stance of Bangladesh’s higher judiciary is also clear: the Constitution is the supreme law. Any referendum that contradicts the basic structure of the Constitution is subject to invalidation. Public opinion is important, but it cannot become a final decision outside the legal framework. Ultimately, referendums are not prohibited under Bangladesh’s Constitution, but they have not yet become an integral part of the constitutional order. Direct public participation can undoubtedly strengthen democracy, but to make it effective and sustainable, clear laws, constitutional reforms, and political goodwill are essential. Otherwise, referendums risk remaining emotional slogans rather than functional tools of state governance. Since independence, Bangladesh has held three referendums—two administrative and one constitutional. A referendum is a process through which citizens directly express their opinion on a specific issue by casting a “Yes” or “No” vote. It is a significant method for gauging public opinion in a democratic system.

The First Referendum (1977):
The first referendum took place on 30 May 1977, to seek public approval of the governance, policies, and programs of the late President Ziaur Rahman. The referendum was announced on 22 April 1977, and voting was held at 21,685 centers nationwide. At the time, there were approximately 38.4 million registered voters. The turnout was 88.1 percent, with 98.9 percent voting “Yes” and 1.1 percent voting “No.”The second referendum was held on 21 March 1985, to validate the policies and programs of then President and Chief Martial Law Administrator Hussain Muhammad Ershad. Voters were instructed to cast a “Yes” vote in favor of Ershad’s leadership and a “No” vote if they opposed it. According to the Election Commission, voter turnout was 72.2 percent, with 94.5 percent voting “Yes” and 5.5 percent voting “No.”Following a mass uprising, Hussain Muhammad Ershad resigned on 6 December 1990. After the Fifth Parliamentary Election, the BNP came to power. To restore the parliamentary system after 16 years of presidential rule, Parliament passed the Twelfth Constitutional Amendment Bill on 6 August 1991. A referendum was held on 15 September 1991 to determine whether the President would give consent to the amendment. Voter turnout was 35.2 percent, with 84.38 percent voting “Yes” in favor of the parliamentary republic and 15.62 percent voting “No.” After the fall of the Awami League government following the student–public uprising in 2024, an interim government assumed office and initiated reform efforts. In this context, the issue of a referendum resurfaced. The National Consensus Commission proposed a referendum to legitimize constitutional reforms based on the July Charter. On Tuesday, the Commission submitted its recommendations for implementing the “July National Charter” to Chief Adviser Dr. Muhammad Yunus. The draft July National Charter (Constitutional Reform) Implementation Order, 2025 states that a referendum will be held on the constitutional reforms included in the Charter. The Election Commission will be mandated to take necessary steps through enabling legislation. The ballot question will ask voters whether they approve the July National Charter (Constitutional Reform) Implementation Order, 2025, and the constitutional reform proposals included in its Schedule 1. Voters will respond by casting a “Yes” or “No” vote. Schedule 1 includes 48 constitutional amendment proposals discussed by the Commission. Although various political parties attached notes of dissent to the July Charter signed on 17 October, these were not included in the final schedule. After the issuance of the implementation order, a new National Parliament will be formed following general elections, alongside the creation of a Constitutional Reform Council with constituent powers. If the referendum yields a positive result, the constitutional reform bill approved by the referendum will guide the Council in carrying out its mandate. If the Council fails to complete reforms within 270 calendar days from its first sitting, the approved reforms will automatically be incorporated into the Constitution. Notably, the referendum will not allow separate voting on individual amendment proposals; all 48 amendments will be subject to a single “Yes” or “No” decision. Based on long-term research and observation of Bangladesh’s electoral and political processes, I have reached a clear conclusion: referendums have never evolved into a regular democratic practice in our political history. Instead, they have been used at critical political moments—when questions of legitimacy, structural change, or major reforms arise. Thus, referendums in Bangladesh cannot be viewed merely as “Yes–No” votes; they have consistently tested the complex relationship between power, popular sovereignty, and the Constitution. The referendums of 1977 and 1985 were primarily efforts to legitimize ruling authority. Despite overwhelming “Yes” votes, questions remain about voter participation, political conditions, and the space for dissent. These experiences teach us that numerical majorities do not always guarantee democratic legitimacy. The 1991 referendum stands apart. It was held with a clear constitutional objective—to restore parliamentary democracy—and, despite low turnout, its political and constitutional acceptance was firmly established. This demonstrates that referendums are meaningful only when aligned with constitutional processes and political consensus. The proposed referendum on the July National Charter and constitutional reform introduces a new and sensitive chapter in Bangladesh’s constitutional history by treating the referendum not just as a tool of public consultation, but as a source of constituent power. This raises serious questions, especially when multiple—48—constitutional amendments are bundled into a single “Yes–No” vote, potentially limiting nuanced public opinion.In my view, referendums are powerful symbols of popular sovereignty, but history shows that they strengthen democracy only when exercised within clear legal frameworks, transparent processes, and political restraint. Otherwise, they risk becoming tools for legitimizing power rather than enhancing democratic governance.

Author:
Deputy Editor, The Tourist
Executive Editor, Chattrol Chitra