What happens to the previous referendum if another referendum is held?

If another referendum is held, what will happen to the verdict given by the people in the referendum held to implement the July Charter? This question has emerged following a new referendum proposal by the special committee on constitutional amendments.

At a time when differences between the government and the opposition alliance over whether the process should be called constitutional reform or amendment have become clear, senior Supreme Court lawyer Dr Sharif Bhuiyan considers the initiative to hold another referendum while disregarding the verdict of the previous referendum to be contradictory. On the other hand, lawyer Mohammad Shishir Monir believes the referendum provision in the current Constitution is not fully operational. As a result, alongside the political dispute over the constitutional amendment process, new complications have emerged over constitutional interpretation.

The dispute between the government and the opposition over whether the process should be called constitutional reform or amendment has now moved beyond Parliament and created a new constitutional debate. Although the verdict in the referendum held to implement the July Charter called for the formation of a Constitutional Reform Council, lawmakers from the ruling BNP did not take an oath as members of the council. On the other hand, lawmakers from the Jamaat led opposition alliance took oaths as both members of Parliament and members of the Constitutional Reform Council. Amid this dispute, the opposition has rejected the activities of the special committee formed in Parliament on constitutional amendments.

Despite the opposition's objections, the special committee is continuing its activities. After meeting with media personalities last Sunday, committee Chairman and Home Minister Salahuddin Ahmed said a constitutional amendment bill could be placed before Parliament in January next year. The bill will propose changes to several important provisions of the Constitution including its preamble. He also said a referendum would be held after the bill is passed by Parliament and before it receives presidential assent.

Questions about the verdict of the previous referendum have emerged following the special committee's proposal. If the people have already expressed their support for constitutional reform through a referendum, why is another referendum necessary? If a new referendum is held, what will be the constitutional status of the decision made in the previous referendum? Legal experts are also questioning how reasonable it would be to initiate a second referendum without implementing the first decision given by the people.

Speaking to Agamir Somoy, senior Supreme Court lawyer Dr Sharif Bhuiyan said a referendum is necessary if the process under Article 142 is followed for amending the Constitution. However, he said holding another referendum while disregarding the verdict given by the people in the referendum on the July Charter would be contradictory.

He said, “A major constitutional change has already taken place in the country.” Against the backdrop of a change of government and a constitutional crisis, the people exercised their constitutional power by participating in the referendum on the July Charter. In that referendum, public opinion was sought not only on the constitutional reform process but also on how the reforms would be carried out.

According to Sharif Bhuiyan, the July Charter Implementation Order approved through the referendum specified the formation of the Constitutional Reform Council, the process for making decisions in the council and the voting procedure. Therefore, he said, bypassing that order and the verdict of the referendum and attempting to amend the Constitution through the old process could be considered disregard for the people's verdict.

He alleged that the BNP is pursuing amendments under Article 142 without taking an oath as members of the Constitutional Reform Council and without following the decision of the referendum. However, he said, under this process Parliament would have to make the final decision and a two thirds majority would be required to pass an amendment. At the same time, a referendum would be mandatory on certain specific matters of the Constitution.

The lawyer does not want to view the Constitution merely as a legal document. In his view, it is also a political document. Therefore, he said, public and political party participation must be ensured when making changes to fundamental matters such as the Constitution. This would further strengthen the legitimacy and public acceptance of such changes.

Referring to past experiences, Sharif Bhuiyan said unilateral constitutional amendments have had a negative impact on the country's democratic structure. Citing the 15th Amendment introduced by the Awami League and the 4th Amendment before it, he said the consequences of changing the Constitution while ignoring public demands and political participation had been seen in the past. He also commented that there had been instances under the BNP where public demands such as the introduction of the caretaker government system were ignored.

However, senior Supreme Court lawyer Mohammad Shishir Monir has questioned the constitutional basis of the referendum itself. He considers the explanation given by Salahuddin Ahmed, chairman of the special committee on constitutional amendments and Home Minister, regarding the need for a referendum to be fabricated and an incorrect interpretation of the Constitution. According to him, the actual constitutional position will become clear if the judgments related to the 5th Amendment and 15th Amendment cases are analyzed together with the 15th Amendment.

Shishir Monir said the Constitution can be amended if there is a two thirds majority in Parliament. However, he said it is not correct to interpret the current constitutional provisions as requiring a referendum. According to him, although Article 142 was restored through a Supreme Court judgment, the referendum provision has not become fully operational. To make it effective, Article 142 would have to be newly incorporated into the Constitution through a separate amendment.

Meanwhile, special committee Chairman Salahuddin Ahmed said Article 142 of the Constitution was revived after the 15th Amendment was annulled in a Supreme Court judgment following the student and public uprising of August 5, 2024. Therefore, he said, any changes to important provisions such as the preamble and Articles 8, 48, 56 and 142 would require the direct opinion of the people before presidential assent.

The provision for a referendum was introduced into the Constitution through the 5th Amendment in 1979. Later, at various stages, the provision allowed for a referendum after a bill was passed by Parliament and before presidential assent when amending the preamble and certain important provisions of the Constitution. However, the referendum provision was removed from the Constitution through the 15th Amendment in 2011. It was later restored through a High Court judgment and the Appellate Division upheld that judgment in July.

Overall, the debate over the amendment process is no longer limited to legal interpretation. It has become a question of the referendum verdict, popular sovereignty and political consensus. On one side, the government wants to move forward with amendments through the existing constitutional framework. On the other side, the opposition alliance wants the reform process approved through the referendum to be implemented. Relevant parties believe that unless the gap between these two positions is narrowed, the proposal for a new referendum could further expand the controversy instead of resolving the constitutional complexities.