July charter and constitutional reform: Will we waste a generational opportunity?

The oppression of citizens under the Sheikh Hasina regime resulted in the July uprising. Through repeated breaches of trust, the regime forfeited its moral authority to govern, while the democratic and republican character of the state was destroyed. The Constitution, having been manipulated and undermined, effectively became inoperative when the head of government fled to India. As sovereignty ultimately belongs to the people, political authority thus devolved to them.

The idea that citizens may alter or abolish a government that betrays their trust is a long-standing doctrine in political thought. One of the most famous expressions of this idea appears in the Declaration of Independence of the United States, which states that whenever a government becomes destructive of unalienable human rights, “it is the right of the people to alter or to abolish it, and to institute new government.”

The interim government of 2024-26 was formed outside the framework of the written Constitution, on the basis of the people’s sovereign authority. Hence, it possessed certain unique competences, including the authority to take tangible steps to reform the state machinery for the restoration of the republic and democracy and for the protection of citizens’ rights. The July National Charter and the July National Charter (Constitution Reform) Implementation Order, 2025 were adopted pursuant to that competence.

While the interim government represented the people’ sovereign authority, the extent and limits of that authority were difficult to define clearly. Therefore, for the implementation of the charter and the order, two further steps were put in place: first, a referendum involving the direct participation of the people; and second, the formation of a Constitution Reform Assembly (CRA) to be composed of their representatives elected through the election. Thus, in the design for implementing constitutional reforms, the people were placed at the centre of the process.

So on February 12, in addition to electing members of the new parliament, citizens cast a separate vote in a referendum. The referendum posed several critically important questions: should the next parliament have a dual role—serving both as a national legislature and as a Constitution Reform Assembly for 180 working days—and should fundamental changes be made to the existing system of checks and balances as envisioned in the July charter? More than seven and a half crore voters participated in the referendum, of whom 61.63 percent voted “Yes.”

However, as of today, it remains unclear whether BNP, the party that won the election with a two-thirds majority, will respect the outcome of the referendum. Concerns have arisen because BNP has raised questions about the legality of the order and has refused to take the oath for the assembly.

BNP’s reason for not taking the oath—that the Constitution does not provide for the assembly or the oath—is constitutionally unfounded. This is because the people are supreme, even above the Constitution itself. Article 7 of the Constitution recognises this principle, stating that all powers in the republic belong to the people. It is therefore not tenable to argue the absence of constitutional provisions for something that the people have overwhelmingly approved in a referendum. Through this approval, the charter and the order became sui generis constitutional documents grounded in popular sovereignty.

Furthermore, if we are to speak of the absence of provisions in the existing Constitution, many actions taken since August 5, 2024—including the election—are not covered by the Constitution per se. BNP does not appear to have any objection to most of those. By refusing to take the oath, the ruling party has disregarded the people’s verdict.

The political significance of a referendum lies in giving citizens a direct voice and agency in shaping democratic outcomes. It is widely accepted that decision-making becomes more democratic when citizens are actively engaged. In an indirect democracy like ours, elections delegate decision-making authority solely to elected representatives, limiting citizens’ opportunity to have their voices heard directly. This is particularly consequential for policies with fundamental implications for governance. As a tool of direct democracy, a referendum can complement representative institutions and is therefore one of the most important mechanisms for implementing constitutional reforms.

Since the 1970s, referendums have become increasingly popular in democratic countries, as greater emphasis has been placed on ensuring direct citizen engagement in the political process. According to one estimate, over the past 50 years, approximately 1,800 to 2,000 referendums have been held globally, of which more than 600 were constitutional referendums conducted to amend or introduce new constitutions.

Referendums have gained popularity for several reasons. First, they enable citizens to participate directly in political and law-making processes. Second, they allow people to exercise their sovereign authority over political outcomes. Third, referendums provide a means for citizens to express their collective will, lending legitimacy to decisions through popular consent. This is especially important in constitutional reform, where the exercise of popular sovereignty forms the foundation of the process and where the legislature cannot disregard people’s will. Finally, as in this case, referendums often serve as a mechanism for dispute resolution: when political parties fail to reach agreement, the decision is made by citizens, who have the sovereign right to determine the outcome.

In light of the decisive result of the February 12 referendum, there can be no doubt about the expression of the people’s collective will. Clearly, politicians, who are expected to uphold democratic norms and values, cannot prioritise their own version of reforms over those endorsed by the citizens. To do so would constitute a direct violation of democratic principles.

It is true that the referendum questions were not easy. However, studies show that this is far from the first time that complex questions have been posed in a referendum. While a lack of clarity in framing questions can sometimes affect the likelihood of their approval, that was clearly not the case here. The argument that citizens did not understand the questions, and therefore their opinions do not matter, is elitist. Over seven crore people voted—surely, they did so based on their understanding of the issues—and to question their judgment on the basis of some supposed superior knowledge is simply outrageous. One might even ask: could the ego and preferences of certain politicians and experts result in the loss of a generational opportunity?

Several surveys conducted before the election indicated that citizens generally held favourable opinions about the referendum questions and were interested in bringing changes to the structure of political governance. Clearly, the outcomes of the election and the referendum reflect their will: most of them wanted BNP as the governing party, and they also expected it to implement the key provisions of the July charter through the Constitution Reform Assembly. By approving the referendum, citizens conferred legitimacy on the key provisions of the charter, the implementation order, and the assembly. It is also noteworthy that, prior to the election, BNP had endorsed the referendum, urging citizens to vote in favour.

Despite its formal wording and legalistic narrative, the July charter’s central message is clear: traditional liberal democratic checks and balances intended to constrain the executive have hardly worked in the country since its independence. Such accountability failures have also led to many tragic outcomes. The reasons for this are well known: historically contingent patterns of strong personalistic, overtly centralised, and dynastic rule have, over the decades, fostered perverse forms of political and social orders characterised by patron-clientelism, a weakened civil society, and a totalised form of party-archal governance in which dominant political parties have, de facto, monopolised and controlled nearly all institutions and actors of the state. This perversity has rendered existing checks and balances largely dysfunctional and, more critically, prevented the growth of effective citizens’ countervailing power, which is essential for genuine democratic practice.

The July charter has crafted solutions intended to overcome the limitations and failures of these dysfunctional checks and balances by introducing multiple, complex accountability mechanisms aimed at constraining the executive (especially the prime minister) in a robust manner. One may hope that the implementation of these mechanisms will disperse power and neutralise the de jure and de facto dominance of the prime minister.

The few weeks of the new regime’s tenure have already shown how critical it is to have robust checks and balances. Consider the following: the improper dismissal of the central bank governor, the deregulation of otherwise stringent loan-rescheduling rules, the removal of the MD of Dhaka metro rail, and the “voluntary” resignation of the commissioners of the Anti-Corruption Commission. Could the government have accomplished these actions at such dizzying speed if robust checks and balances involving multiple stakeholders, as proposed in the charter, had been in place?

If the Constitution Reform Assembly is not formed, constitutional reforms would need to proceed through amendments under Article 142, which confers on parliament the power to amend the Constitution. However, parliament cannot alter the fundamental features of the Constitution under Article 142 due to the basic structure doctrine. According to this doctrine, legislative power is derived from—and constrained by—the Constitution, whereas constituent power, the authority to create or fundamentally change a constitution, resides with the people, who exercised it in the February 12 referendum. Past attempts to amend the Constitution through parliamentary amendments, such as the Eighth and Thirteenth Amendments, were later struck down for violating the basic structure. Therefore, implementing the charter’s fundamental reforms through Article 142 may not be sustainable. A resolution remains possible if BNP takes the oath for the reform assembly.

Justice M. A. Matin is a former judge of the Appellate Division of the Supreme Court. 

Dr Mirza M. Hassan is a social scientist. 

Dr Sharif Bhuiyan is a senior advocate of the Supreme Court.

Dr Asif M. Shahan is a professor at the Department of Development Studies, University of Dhaka.

Views expressed in this article are the author's own. 

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