The Supreme Court of Bangladesh has issued a rule asking why the Referendum Ordinance, 2025, and the July National Charter (Constitution Amendment) Implementation Order, 2025, should not be declared illegal.

The decision came after two separate writ petitions challenged the legality of these frameworks on the grounds that the Constitution of Bangladesh provides for neither the Gonovote (referendum) nor the July National Charter. 

This compels me to ask: after nearly 70% of citizens voted ‘Yes’ in a democratic country, can their choice be discarded so readily?

Bangladesh witnessed a revolution in July 2024. Some may object to the term and describe it simply as a ‘protest’, but the previous autocratic regime did not end through a peaceful transfer of power or an election.

Historically, a government fleeing the country amid widespread protests and bloodshed, resulting in regime change, fits the definition of a revolution. In my opinion, Bangladesh witnessed a revolution that changed its political landscape.

The fall of the autocratic regime gave way to an interim government appointed in accordance with the wishes of the citizens. Since the Constitution is silent on the legitimacy of such a government in a post-revolution scenario, scrapping it and drafting a new one under a revolutionary government would have provided a more complete legal foundation. 

That did not happen, and with no alternative available, the Supreme Court affirmed the validity of the government operating under the existing Constitution.

The interim government, led by Muhammad Yunus, was tasked with drafting the July Charter, a document intended to address the constitutional void and introduce reforms. The document would also validate the government and its orders. During its 18-month tenure, the interim government established common ground among political parties with competing agendas and published the July National Charter. 

The charter emerged from a consensus among 24 registered political parties, all sharing one objective: reforming the state and preventing another autocratic regime from taking power. It proposed a referendum alongside the national election to give the reforms democratic legitimacy through the people's mandate.

On February 12, 2026, the people's choice was reflected in the nearly 70% ‘Yes’ vote in favour of implementing the reforms. These were the citizens who had taken to the streets to force the previous government from power. Yet, as the country gradually returns to normality, their choices risk being overlooked on grounds of unconstitutionality.

As a democracy, Bangladesh is governed by its citizens' mandate. The Constitution is its supreme law and declares any law inconsistent with its void. Our Constitution does not permit alterations to its basic structure, but it also establishes that all powers of the republic belong to the people. 

Article 7(2) states that the Constitution is the solemn expression of the will of the people, recognising its origins in the wishes of the citizens. Those same citizens chose to remove an autocratic regime and demanded reforms after 16 years of oppression. The July Charter and the referendum emerged from that demand.

The July Charter is a standalone document reflecting the will of the people. It should not be treated as an alternative to the Constitution or placed in competition with it. Neither should be pitted against the other to establish supremacy. The July Charter is supplementary to the Constitution, since incorporating its principles into the existing constitutional framework would require substantial amendments by a valid parliament, which did not exist when the charter was drafted.

This is why the writ petitions challenged the constitutionality of the charter and the referendum. But it can be argued that, because public support for the reforms originated with the citizens and the Constitution could not accommodate them within its existing provisions, the process should be considered ‘supra-constitutional’.

Supra-constitutional refers to principles or norms considered to hold a higher status than a country's formal constitution, such as fundamental human rights or international legal standards. Bangladesh's Constitution has undergone numerous amendments since independence, often shaped by successive governments to serve their interests. 

A constitution is a living instrument, but repeated amendments made for political convenience can weaken its authority. Despite these changes, no provision was introduced to address a situation in which an entire government fled the country, parliament dissolved without warning and law and order collapsed.

The Constitution envisages war, external aggression and internal disturbance, but not a revolution.

Bangladesh witnessed the rise of an autocratic regime that maintained its legitimacy within the constitutional framework. The possibility of another such regime emerging cannot be ruled out. In such circumstances, the principle of supra-constitutionality can serve as a safeguard for citizens' rights where the Constitution itself proves inadequate. 

The July Charter and the Gonovote reflect the will of the citizens and can serve as safeguards that supplement the Constitution, helping prevent a recurrence of such events.

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Barrister Aiman R Khan is a lawyer of Supreme Court 

The article was originally published in Barrister Aiman R Khan’s personal website. It is republished here with stylistic changes