The fifteenth constitutional amendment abolished referendums in 2011 by replacing Article 142. On December 17, 2024, a court struck down that clause, restoring the referendum provision. The ruling, however, raises questions over whether the provision revives automatically, as Section 6 of the General Clauses Act 1897 requires any repealed law to be re-enacted by parliament.
A report by the interim government’s Electoral Reform Commission highlights these points in its chapter on referendums. It also recommends that the provision be presented and passed in the next parliament.
Legal and constitutional experts consulted on the matter share a consistent view: courts may declare a law void or illegal, but reviving or restoring a statute requires its passage by the national parliament. The referendum provision will therefore need to be passed by the parliament formed after the forthcoming national election. They maintain that, regardless of the court’s decision, the elected legislature retains supreme authority.
Shahdeen Malik, a senior Supreme Court lawyer and constitutional expert, told Bonik Barta: “A verdict cannot restore an old (repealed) law. This is a highly technical matter. Legally, the Supreme Court can strike down a law or declare it illegal. But it cannot revive one.”
Bangladesh’s original 1972 Constitution had no provision for a referendum. The mechanism was introduced via the Fifth Amendment in 1979 under President Ziaur Rahman. A new subsection (1A) was added to Article 142, stipulating that bills passed by parliament to amend the constitution’s preamble or Articles 8, 48, 56, 58, 80, and 90A must be put to a national referendum by the president. Several other subsections — (1B), (1C) and (1D)— were also added to Article 142.
When parliamentary democracy was restored in 1991 through the Twelfth Amendment, subsection (1A) was modified. The mandatory referendum requirement was removed for amendments to Articles 58, 80 and 90A, thereby narrowing the provision’s scope. From then on, a referendum was compulsory only for bills seeking to amend the preamble or Articles 8, 48 and 56.
Subsequently, on June 30, 2011, the Awami League government passed the fifteenth constitutional amendment. It replaced the entirety of Article 142, scrapping the referendum provision entirely. Following the Awami League’s ouster in a student-led mass uprising, a court ruling on December 17, 2024, in a case concerning the fifteenth amendment struck down that alteration to Article 142 and reinstated the referendum provision.
This development has prompted questions in various quarters over whether the provision revives automatically. Section 6 of the General Clauses Act 1897 states that any repealed law must be formally re-passed by parliament to be revived. The interim government’s Electoral Reform Commission report addressed this precise point, recommending that the referendum provision be presented and passed in the next parliament.
Asked about the matter, Professor Ali Riaz, the chief adviser’s special assistant and principal coordinator for public awareness campaigns on the 13th parliamentary election and a simultaneous referendum, told Bonik Barta: “The interim government, established at such great cost in blood and lives, has reform as its primary objective. Under this agenda, the July National Charter was created, and all political parties have agreed on one point — that there will be a referendum on these matters. All parties have agreed to hold a referendum based on a legal position.”
At a discussion titled “Peaceful Elections and Prevention of Violence: In Light of Field-level Experience” in the capital on January 28, Professor Riaz said: “From the very first day after being elected, the parliament will conduct its normal course — forming a government, running the state and formulating the budget. However, fundamental changes are needed to steer the Constitution away from the path of fascism. For that, the elected members will take a separate oath and complete the reform process within 180 days.” His remarks sparked debate on social media, where many suggested that, if the referendum returned a “yes” vote, the interim government would transfer power after six months.
On Thursday night, the Chief Adviser’s Press Wing issued a statement via the “CA Press Wing Facts” account, clarifying that Professor Riaz did not say the current interim government would act as a constituent assembly for 180 days. The press wing claimed that he had indicated that the elected parliament members themselves would assume that responsibility.
Last year, the National Consensus Commission held 74 meetings with political parties over an extended period to discuss proposals from reform commissions on the Constitution, elections and the judiciary. Following the signing of the July National Charter (Constitutional Reform) Implementation Order, 2025, by political parties and the interim government, the Consensus Commission recommended the immediate issuance of an official order to implement it and to organise a referendum.
Bangladesh has held three national referendums since independence — in 1977, 1985 and 1991. The first, on May 30, 1977, saw President Ziaur Rahman seek public endorsement for his policies and programmes. The second, on March 21, 1985, under President Hussain Muhammad Ershad, gauged public confidence in his leadership and sought mass consent for him to remain in office until elections could be held under a suspended Constitution.
The third referendum, on September 15, 1991, was conducted under Article 142(1A). It posed a single question to voters: “Should the President give his assent to the Constitution (Twelfth Amendment) Bill, 1991 of the People’s Republic of Bangladesh?” This effectively placed the choice of the future system of government — presidential or parliamentary — in the hands of the public. Nearly all political parties campaigned for a “Yes” vote; only the Freedom Party opposed it. The Referendum Act 1991 and the Referendum Rules 1991 governed the process.
Badiul Alam Majumdar, former head of the Electoral Reform Commission and secretary of the SHUJAN (Shushashoner Jonno Nagorik), told Bonik Barta: “If the public endorses the proposals in a referendum, future parliamentarians will act not only as legislators but also as members of a constitutional reform assembly. Implementation of referendum-approved measures wouldn’t depend on parliament’s discretion; they would be bound to enact them. This clarifies a principled position that parliament is not omnipotent, and sovereignty resides with the people. The practical question, however, is what legal remedy exists if parliament fails to fulfil this commitment. No clear enforcement mechanism is specified, meaning implementation relies on political will and the moral force of the public verdict.”
Many lawyers, however, reject this view. They consider the issues and recommendations in the “referendum” chapter of the Electoral Reform Commission’s report correct: the referendum provision must be formally passed by the parliament formed after the forthcoming national election.
On this, Barrister Jyotirmoy Barua told Bonik Barta: “The matter remains ambiguous and shrouded in uncertainty. The referendum ordinance itself will be passed in parliament and will decide the fate of whether the referendum provision remains. That’s why it should have been left to the elected parliament to decide.”