Bangladesh stands at a crucial juncture in its constitutional evolution, with a pressing need for reforms to address longstanding issues of executive dominance and weak accountability. A recent article by Justice M. A. Matin, Dr Mirza M. Hassan, Dr Sharif Bhuiyan, and Dr Asif M. Shahan rightly points out the opportunity for meaningful change that could restore trust in state institutions.
While the call for reform is valid, the justification behind it is just as crucial as the reform itself. The argument put forth in the article, which emphasizes the authority granted by the February 12 referendum to implement the July National Charter through a Constitution Reform Assembly (CRA), warrants closer examination.
The authors assert that the referendum provided a mandate for the implementation of the National Charter, suggesting that any opposition undermines the will of the people. However, the key issue lies in the interpretation of the referendum’s scope and the extent of the authority it conferred.
The authors argue that the fall of the previous regime rendered the constitution void, returning sovereignty directly to the people. While this viewpoint aligns with the idea of popular sovereignty, it blurs the distinction between political legitimacy and the collapse of the constitutional order.
The events following the regime change did not lead to a complete constitutional overhaul but rather saw the formation of an interim government within the existing institutional framework. This raises questions about the claim that the constitutional order had disintegrated and that constituent power had returned to the people.
The referendum, while a significant act of authorization, did not serve as a moment of constitutional foundation. It operated within predefined parameters and did not signify a complete replacement of the existing order. As such, the mandate derived from the referendum is not open-ended but constrained by the framework within which it was carried out.
Furthermore, the ambiguity in the wording of the referendum question adds another layer of complexity to the interpretation of the mandate. The lack of clarity in distinguishing between approval of reforms and approval of implementation mechanisms leaves room for multiple interpretations, undermining the precision of the mandate.
In a constitutional democracy, the supremacy of the people must be exercised within the established legal framework. Bypassing constitutional procedures in the name of popular will weakens democratic legitimacy rather than strengthening it.
While the need for reforms in Bangladesh is evident, the process must be guided by constitutional precision and restraint. The mandate granted by the referendum should not be seen as a carte blanche for unchecked interpretation, but rather as a call for disciplined and specific reform measures.
Dr Kazi A S M Nurul Huda, an associate professor of philosophy at the University of Dhaka and Zuzana Simoniova Cmelikova Visiting International Scholar in Leadership and Ethics at the University of Richmond’s Jepson School of Leadership Studies, emphasizes the importance of interpreting the people’s voice with care and deliberation in this critical constitutional moment.
