Bangladesh’s reform plan is trapped in a legal design of its own making

Bangladesh’s current reform deadlock is rooted in how a set of legal instruments including the July Charter, the referendum ordinance and related constitutional mechanisms were constructed by the country’s erstwhile interim administration to depend on one another.

The July Charter was drafted by a Consensus Commission established in the aftermath of political unrest and mass mobilisation, when the interim government led by Mohammed Yunus attempted to convert demands for institutional reform into a binding framework following the fall of Sheikh Hasina’s 15-year autocratic rule in August 2024.

After more than ten months of negotiations involving political parties, civil society, and legal experts, the Charter was finalised, signed, and published. It was officially unveiled in Dhaka in mid-October.

The document proposed several major reforms, including limiting any prime minister to two terms, converting Bangladesh’s unicameral legislature into a bicameral one, and strengthening judicial independence through the creation of a separate secretariat, among other changes.

Instead of proceeding directly through constitutional amendments, as there was no active parliament during the interim period, the process relied heavily on executive ordinance issued by the president of Bangladesh and a referendum mechanism to generate legitimacy. That design choice now defines the crisis.

The July Charter is not a standalone declaration. Its implementation order requires a referendum to validate core reform points. That requirement led to the referendum ordinance, issued by Yunus in November, which codified a list of 30 agreed reform items and embedded them into referendum questions.

Those questions were then aligned with the electoral timetable of the country’s Election Commission. The result is a closed loop: the Charter mandates the referendum; the referendum operationalises the Charter; and both are tied to the election process that is supposed to institutionalise the outcome.

The national election was held on February 12, alongside the referendum on the same day. The Bangladesh Nationalist Party secured a two-thirds majority in parliament, giving it the authority to amend the constitution through its legislative mandate.

At the same time, the referendum produced a “yes” outcome, which – under the referendum Ordinance – established a Constitutional Reform Council tasked with overseeing constitutional amendments. This body is designed to include representatives from both the treasury benches and the opposition.

Members from the opposition bloc, composed of Jamaat-e-Islami and Nationalist Citizen Party took oath as both lawmakers and members of the Constitutional Reform Council while Bangladesh Nationalist Party lawmakers only took oath as the members of parliament.

Bangladesh Nationalist Party MPs, explaining why they took only one oath, argued that constitutional reform should be carried out exclusively through parliament. Home Minister Salahuddin Ahmed said the existing constitution already outlines clear procedures for making amendments. Any body empowered to undertake constitutional reform would itself need to be established through parliamentary legislation, he contended.

This position reflects both legal and political calculations. With a two-thirds majority, the Bangladesh Nationalist Party already possesses sufficient authority to amend the constitution under current provisions. Keeping the reform process within parliament enables the ruling party to retain direct control over both the pace and scope of institutional change.

However, the opposition bloc argued that a temporary, parliament-backed council, such as a Constitutional Reform Council, could create a platform to consider broader structural reforms without immediately confronting constitutional limitations.

They believe such a body would operate like a constituent assembly, enabling political stakeholders to negotiate institutional changes before formally embedding them in the constitutional framework.

Shishir Manir, a senior advocate of the Bangladesh Supreme Court who contested the last election with a Jamaat ticket, stated that without establishing a Constitutional Reform Council, there is no clear path forward for the reform process. He noted that the council is mandated by the July Charter, which is connected to the July Charter Ordinance and, in turn, linked to both the referendum and the referendum ordinance.

This interdependence is central to the legal problem. The framework was built as a chain, instead of separate instruments. As one legal argument puts it, these components function as “inseparable” parts of a single structure.

If the referendum ordinance is allowed to lapse by the current parliament, the Charter’s implementation mechanism disappears. If that mechanism collapses, the referendum questions lose legal grounding. If those questions are undermined, the electoral timetable linked to them becomes exposed. The framework does not allow for clean separation.

That is why the current proposal by the treasury bench to treat the referendum ordinance as infructuous creates a contradiction. If it is allowed to lapse, Manir argued, this will be equivalent to invalidating the legal basis of a referendum while continuing to rely on its results. The inconsistency is difficult to sustain in law. If the instrument is void, its outputs are open to challenge. If the outputs are valid, the instrument cannot be treated as irrelevant.

Bangladesh’s constitution does not provide a clear way out. The country operates under a parliamentary system where the legislature is empowered to pass laws and approve or reject ordinances, while courts retain the authority to review them.

But the current reform framework sits in an ambiguous space between ordinary legislation and constitutional change. The referendum mechanism itself is a source of confusion. It was once part of the constitutional structure but was removed through later amendments.

Its reappearance through an ordinance – rather than a constitutional amendment – creates a gray zone: a quasi-constitutional process without explicit constitutional grounding.

Salahuddin Ahmed, the Bangladesh Nationalist Party lawmaker, argued in parliament that since 1973, no major decision – such as holding a referendum – has been carried out through a presidential ordinance while the country has been under a parliamentary system.

Bangladesh has experienced three distinct political phases: a parliamentary system from 1972 to 1975, a presidential or quasi-presidential system from 1975 to 1990, and a return to parliamentary democracy from 1991 onward.

However, historical precedent adds to the ambiguity rather than resolving it. A referendum law introduced in the early 1990s continued to exist even after constitutional provisions for referendums were altered, suggesting that statutory tools can outlive their original constitutional context.

But that precedent does not answer the central question now: whether a referendum conducted under an ordinance can bind future legislative or constitutional decisions. The current framework assumes that it can; the constitution does not explicitly confirm it.

This uncertainty is where the ruling Bangladesh Nationalist has positioned itself. Its formal argument is procedural and, on its face, consistent with constitutional orthodoxy: reforms must be anchored in the constitution, not in temporary ordinances.

In practice, however, this position aligns with allowing key reform ordinances to lapse or be rewritten. These include measures affecting judicial appointments, anti-corruption oversight and human rights enforcement – areas widely seen, both domestically and internationally, as central to institutional reform.

Opposition groups and reform advocates interpret this stance differently. Their argument is that the Bangladesh Nationalist Party is using constitutional ambiguity to avoid committing to substantive change.

They point to a pattern that less consequential ordinances are accepted or left untouched by the treasury bench, while those that redistribute power or constrain executive influence are targeted by them [treasury bench] for removal.

From this perspective, the issue is not legal consistency but political intent. The charge is that the ruling party supports procedural legitimacy while resisting structural reform.

The legal structure itself reinforces this political divide. Several of the contested ordinances, particularly those issued during the 2007-2008 caretaker period, were later placed before parliament and enacted into law, leading courts to accept them despite questions over their origin.

At the same time, the judiciary has drawn firm limits on executive overreach. In Abdul Mannan Khan v. Government of Bangladesh the appellate division ruled that repeated re-promulgation of ordinances without parliamentary approval amounted to a “fraud on the constitution”, underscoring that such powers cannot substitute for legislative authority.

The Charter, the referendum ordinance and the election schedule are cross-referenced and mutually dependent. Removing one element risks undermining the logic of the others. The framework was designed to lock reforms together; it now resists partial dismantling.

There is also a consistency gap in the current approach. Some legal authorities have suggested that actions taken under certain ordinances – such as appointments or institutional changes – can be preserved even if the ordinances themselves are repealed.

That creates a disjunct between legal authority and legal outcome. If the authority is removed, the status of the outcomes becomes contestable. This will be like preserving administrative decisions while discarding the law that authorised them.

The broader issue is that the reform process has not reached a stable legal endpoint. It began as a political response to public pressure, was translated into ordinances and partially validated through a referendum. But it has not been fully integrated into the constitutional framework. Until that integration occurs, every component remains vulnerable – to legislative reversal, judicial challenge, as well as political reinterpretation.

This is the core of the deadlock. The government cannot easily dismantle the framework without destabilising its legal coherence. The opposition bloc cannot fully endorse it without accepting a process that stretches constitutional boundaries. Parliament retains formal authority but operates within a system where each decision has cascading legal consequences.

The core debate is therefore not only about whether reform should proceed, but whether the legal architecture built to deliver it can withstand selective change.

Faisal Mahmud is a journalist and analyst.

Source: Scroll
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