Constitutional Amendments through Referendums and Parliamentary Procedures: A Comparative Study of Global Practices and the Bangladesh Context


What truly safeguards democracy — the voice of the people directly in a referendum or the deliberations of elected representatives in parliament? Can blending both approaches strengthen constitutional reform and prevent authoritarian backslides? 

Introduction

Constitutions are the supreme legal frameworks that define governance, citizen rights, and the balance of power within a nation. However, as societies evolve, constitutions require amendments to reflect new realities and aspirations. The process of amending a constitution varies widely—some countries empower their citizens directly through referendums, while others rely on their elected legislatures for amendments. Many combine these methods.

This post delves into the two primary pathways for constitutional amendments—referendums and parliamentary procedures—analyzing their strengths, weaknesses, and global applications. It then contextualizes the discussion for Bangladesh, a country grappling with political volatility and demands for democratic reform.

1. Understanding Constitutional Amendments: Referendums vs. Parliamentary Procedures

1.1 Parliamentary Procedure

Most democracies entrust their parliament (or legislature) with the authority to amend the constitution. Typically, this requires a special majority (e.g., two-thirds or three-fourths) to ensure broad consensus.

Advantages:

Ensures detailed debate among elected representatives who (ideally) understand the legal and political nuances.

Enables checks and balances through multiple readings, committees, and stakeholder consultations.

Provides stability by preventing frequent or frivolous amendments.

Challenges:

Risk of dominance by ruling parties, especially where political pluralism is weak.

Minority or opposition voices may be marginalized.

Potential to enable authoritarian changes if parliament is captured by autocratic forces.

1.2 Referendums (Direct Public Vote)

A referendum or plebiscite allows the electorate to directly approve or reject constitutional amendments.

Advantages:

Empowers citizens by giving them a direct say in foundational legal changes.

Enhances legitimacy and public buy-in for the amendment.

Can serve as a check against authoritarianism by requiring popular consent.

Challenges:

Complex constitutional issues may be difficult for the average voter to fully grasp.

Susceptible to misinformation campaigns, populism, or emotional decision-making.

Can lead to instability if frequent or contentious referendums are held.

2. Global Practices: How Countries Amend Their Constitutions

2.1 Countries Relying Primarily on Parliamentary Amendments

India:

The Indian Constitution has been amended over 100 times, primarily through the parliament requiring a two-thirds majority. While the process is legislative, it also involves state legislatures for certain amendments. No referendums are held.

Germany:

The Basic Law (constitution) can be amended by a two-thirds majority in both Bundestag and Bundesrat. Certain fundamental principles (like human dignity) are protected by an "eternity clause," which cannot be amended. Referendums are rare and usually limited to state-level issues.

South Africa:

Constitutional amendments are passed by a supermajority in the parliament. There are elaborate procedures, including possible input from provincial legislatures. Direct referendums are not common.

2.2 Countries Utilizing Referendums for Constitutional Amendments

Ireland:

Any constitutional amendment must be approved by a majority in a public referendum after parliamentary approval. This two-step process ensures both legislative scrutiny and popular consent.

Switzerland:

Known for its system of direct democracy, Switzerland frequently uses referendums for constitutional changes and important laws, giving citizens extensive power to shape governance.

Chile:

The country has recently (2020) used referendums to initiate a complete rewrite of its constitution, reflecting widespread demands for democratic reform after mass protests.

Australia:

Amendments require a double majority—approval by a majority of voters nationwide and a majority in a majority of states—via referendum, after parliamentary passage.

2.3 Countries with Mixed Systems

Many countries combine parliamentary approvals with referendums, especially for major constitutional changes. For instance:

Italy:

Amendments passed by parliament may be subjected to a confirmatory referendum if requested by a certain percentage of parliamentarians or citizens.

Chile & Ireland:

Parliament drafts or approves, and the public gives final assent.

3. Referendum vs. Parliamentary Procedure: Effectiveness in Preventing Authoritarianism

Parliamentary Procedure Risks

When political power is centralized or one-party dominance prevails, parliaments can become vehicles for authoritarian constitutional changes (e.g., India’s Emergency amendments in the 1970s, Bangladesh’s 15th amendment controversy).

Without broad political consensus, parliamentary amendments risk alienating minorities or opposition

Referendum Benefits and Risks

Referendums can serve as a democratic safeguard by requiring popular approval, thus limiting unilateral elite decisions.

However, if democratic institutions and media are weak, referendums can be manipulated or co-opted by powerful interests (as in Thailand's military-backed referendum).

Populism or misinformation can sway outcomes unpredictably

Hybrid Approach as a Best Practice

Most modern democracies utilize a hybrid approach—amendments require parliamentary approval followed by a referendum or vice versa—to balance expertise, representation, and popular legitimacy. This model is seen as a safeguard against authoritarianism and ensures inclusiveness.

4. The Bangladesh Context: Challenges and Opportunities

4.1 Current Constitutional Amendment Process

Bangladesh relies exclusively on its parliamentary process for constitutional amendments, requiring a two-thirds majority.

There is no provision for referendums in the current legal framework.

Amendments have historically been politically charged, with allegations of partisanship and insufficient public consultation.

4.2 Challenges

Dominance by the ruling party in parliament risks bypassing opposition concerns.

Lack of direct citizen involvement reduces public legitimacy and trust.

Political polarization hampers inclusive constitutional reform

4.3 Opportunities for Reform

Introducing referendum provisions could allow Bangladesh to enhance democratic participation and legitimacy in constitutional reforms.

A hybrid amendment system, where parliament drafts and the public ratifies, could reduce elite domination and foster national consensus.

Strengthening electoral institutions, media freedom, and civic education are prerequisites for effective referendums.

5. Case Studies: Bangladesh and Beyond

Bangladesh’s Experience

The 15th Amendment (2011) revoked the caretaker government system, passed solely by parliament, causing widespread controversy.

No referendum was held, leading to allegations of partisan manipulation and diminished public trust.

Previous military-backed amendments during periods of authoritarian rule further complicate the landscape.

Comparative Insights

Ireland’s Model: 

Parliament drafts amendments, followed by mandatory referendums ensuring direct citizen approval.

Chile’s Recent Rewrite: 

After public protests, a referendum mandated a new constitution draft, enhancing political legitimacy.

Thailand: 

A military-backed referendum approved a controversial constitution, illustrating risks of manipulation without democratic safeguards.

6. Recommendations for Bangladesh

Legal reforms to incorporate referendums as an option for major constitutional amendments.

Adoption of a hybrid process combining parliamentary deliberation and direct public ratification.

Ensuring free, fair, and informed referendums through strong electoral commissions and independent media.

Civic education campaigns to enhance public understanding of constitutional matters.

Political consensus-building mechanisms to reduce polarization.

Conclusion

Constitutional amendments are pivotal for democratic evolution. Whether via parliamentary procedures or referendums, the process must safeguard against authoritarian excesses, promote inclusiveness, and ensure legitimacy.

Bangladesh, with its vibrant but polarized political landscape, stands to gain from adopting a balanced hybrid model that combines parliamentary expertise with direct citizen participation. Learning from global practices, this approach can strengthen democracy, foster national unity, and prevent the recurrence of authoritarianism.




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