Full Research

Fifth Amendment of the Constitution: Its Impact and Influence
Chapter One
Introduction
Bangladesh is a pre-dominantly Muslim country in Southeast Asia. It gained Independence on December 16th, 1971 after a long and bitter liberation war waged against Pakistan. Shortly thereafter, a democratic government and a liberal constitution were adopted and a general election was held the following year. However, democratic progress was quickly curtailed when a trend towards authoritarianism began with one party rule in 1975 and endured for 16 years. Eventually this regime was toppled in 1991, but the road to democracy and media freedom has been long and hard fought. The 1990s marked a new era of media freedom as granted in the Constitution. Despite these freedoms, the media face many challenges in performing their functions. Thus, while the media are a large sector and free in Bangladesh, members of the press and media routinely face violence or restrictions making it difficult to practice journalism or carry out media activities in a free manner. However, trends towards privatization of broadcasting and advertising have given the media greater independence than ever before.
After the Government decided to withdraw the appeal in respect of the decision regarding the Fifth Amendment to the Constitution, some people are saying that "Bismillah" will disappear and "secularism" will reappear. Others are saying that "Bismillah" will remain but "secularism" will reappear. Yet others presume that there will be "discontinuity" (whatever that means) and chaos.
The Constitution of a country is not a bedtime story book; it is of immense importance and significance. If it makes good reading and enshrines lofty ideals and modern humanitarian principles, it does not mean that it is suitable for every country. To be workable a constitution must relate its provisions to the reality prevailing in the country concerned. The history and traditions of the country have also to be taken into consideration. At the end of 1972 the so-called '16th Division' was still at large roaming with an unaccounted number of arms and ammunition; political extremists of both the left and the right were wantonly killing each other in the countryside and thugs and extortionists of all degrees and dimensions were active everywhere. Since the Government had called the army 'in aid to civil power', I would say that the Government recognized the fact.
1972 Constitution: No emergency provision Unlike the preceding constitutions of the sub-continent, the Constitution of 1972 did not even have the provision of preventive detention nor did it empower the Government to declare an emergency. But in 1974 emergency was declared according to the Second Amendment Act which had made provisions for it. The Constitution in its original form would perhaps work in the land created by Begum Rokeya in her Sultana's Dream. I do not blame the framers of the Constitution because the euphoria of our liberation had made all of us so optimistic that we lost sight of reality.1 4 amendments in 25 months The framers of the Constitution decided to amend it thrice (including the introduction of the provision of declaring emergency) before making their fourth and final "amendment" only within 25 months of its adoption. I have put the word amendment within quotation marks because of the remarks of Justice Shahabuddin: "... The Constitution Fourth Amendment Act, dated 25 January 1975, changed the Constitution beyond recognition in many aspects ... The change was so drastic and sudden; Friends were bewildered, Enemies of Liberation had their revenge and the critic said with glee that it is all the same whether damage to democracy is caused by democratically elected persons or by undemocratic means like military coup." (Anwar Hossain Chowdhury Vs Bangladesh).2
Chapter Two
1
mydearBangladesh, website
41DLR (AD) 165
Main characteristic of Fifth Amendment

Fifth Amendment: On 6th April 1979 Fifth Amendment was passed in the national assembly. This Act amended the Fourth Schedule of the constitution by adding a new paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The changes in between 15th August 1975 to 9th April 1979 changed the secular characteristics of Bangladesh constitution. Among the changes, in the preamble of our constitution, the addition of Bismillahir Rahmanur Rahim was one. A historic war for national independence was replaced by the words a historic war for national independence. In the same proclamation order, idea of secularism was axed from the constitution and according to the article 8 of our constitution: [(1) The principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy. (1A). Absolute trust and faith in the Almighty Allah shall be the basis of all actions.] had become our national norm. Before passing this order, all the citizens of Bangladesh were known as Bengali but now according to article 6 of our constitution (2) [The citizens of Bangladesh shall be known as Bangladeshis.] Article 12 of the constitution was omitted altogether and that omitted article was to implement the principle of the secularism, a) b) c) d) Every form of communalism Granting any religion political status by the State Abuse of religion with political ill-intent Any oppression over a person of a particular religion will be uprooted
Article 38 of Fundamental rights of people was modified and but on the condition that no person will have the right to participate in any activities of or to become member of any communal institution or association or any institution or association that has set up the process of forming political parties based on religious identity or of such association or institution that holds any symbolic or literal resemblance to any religion in its name or title. was deleted from the constitution by the second proclamation order III of 1976. What about the reaction of Government on Fifth Amendment? The implication of returning to the constitution of 1972 will retain in the constitution the abolished Article 12 and the original form of the amended Article 38. The implication will also extend to the undertaking of effective measures as to the political abuse of religion and to the reconsideration of the existing scenario where the state supports a particular religion and promotes the said religion in its foundations. But Prime minister Sheikh Hasina said: The words Bismillah-Ar-Rahman-Ar-Rahim in the preamble to the constitution and declaration of Islam as state religion will remain as they are, since they reflect the beliefs of the people Government is trying to establish the spirit of the constitution of 1972 and as well as keeping intact the amendment that are directly opposing the secular spirit of that same constitution. So, this is the truth. We, the people of Bangladesh, respect the religious leader; therefore, why not, as a token of this respect, change the name of our country? Say for example, instead of calling it Bangladesh, why dont we call it as Dewanbagidesh, or any thing like this? Awami League never moved away from its roots: On 23 June 1949, Bengali nationalists from East Bengal broke away from the Muslim League, Pakistans dominant political party, and established the All Pakistan Awami Muslim League. Awami League, as a political party, claims it upholds secularism, and most of the Awami inclined intellectuals simply wants Awami league to follow this secular path.1 All the intellectuals of Bangladesh wish and want Awami league to become a party that leads the fraction of Bangladesh population which supports secularist view; but, in essence, this particular party never moved further away from its roots and always in practice has nurtured the Muslim sentiments as its party policy.
Awami League website, www.al.bd.org
In fact, Awami League has never really overcome their religious roots. In practice, it uses the religious sentiments of people to stay in power. And, this is precisely the point where it looses its idiosyncrasy from Jamaat e Islami and other non-secular parties. Actually the spirit of 1972s constitution was to establish a secular state which would have no state-religion, which aimed for the state not to patronize any religion and should not use religious sentiment of people politically. But Awami League is failing to follow that course of secularism and using the religious sentiment of people to justify its misdeeds. Instead of being called Awami League, we should at least recognize their effort of Islamizing this country by renaming it as Allama Awami League and also to respect the believes of our countrymen start a political movement of having an Islamic name of our country.
In 2005, a High Court bench led by Justice Khairul Huq declared the Fifth Amendment to the Constitution of Bangladesh illegal. The full judgment is available at Unheard Voice. It is a fascinating read. Justice Khairul Huqs portion is slightly longer than Justice A. T. M. Fazle Kabirs. Page 336-337 contains the reasons that the Fifth Amendment was found to be invalid. This case is worth thinking about, because it does not deal with legal technicality, or arcane judicial procedure. This case is about the design, the blueprint if you will, of the State of Bangladesh. It is also about whether we, the people of Bangladesh, tell our government what to do, or whether they turn around and tell us what to do. Who gets the last word, the people or the government? The Constitution of Bangladesh is the supreme law of Bangladesh. The First Parliament of independent Bangladesh, as elected representatives of a sovereign people, approved it. This constitution is a written contract between us, the people of Bangladesh, and the government, whom we allow the exercise of state power on our behalf. This contract is binding upon all organs of this government: the parliament, the president, the Supreme Court and all lower courts, the military, the police, and our local representatives, all must abide by it.1 How do we ensure that all our laws abide by this constitution? By dividing up the job. Our Members of Parliament get to make the laws. However, our Supreme Court measures those laws against the Constitution and lets us know if the parliament is acting correctly. If the Supreme Court thinks that a law made by the parliament is not within our constitution, it says so and declares that law unconstitution. This power of the Supreme Court is called judicial review.
Syed Badrul Ahsan is Editor, Current Affairs, The Daily Star
If you stop and think about it, judicial review is a really big deal. The Appellate Division, which is the higher part of the Supreme Court (above the High Court), and the final court of judgment in Bangladesh, has eleven members, and is headed by the Chief Justice of Bangladesh. Most important matters, including the decision about the constitutionality of a law passed by parliament, is decided by six members of this eleven-member panel. This means that six government servants, who have never won an election, and will never have to face an election, and thus never have to be accountable to the people of Bangladesh directly, can undo a law that is passed by a majority of the countrys elected representatives. And they use this power quite frequently. Here is the latest example. That seems slightly paradoxical, doesnt it? We live in democracy; our constitution clearly says All powers in the Republic belong to the people, then how can the will of the people potentially be thwarted by six unelected government servants? And the answer is, it cant. Because even though the Supreme Court can say that a law passed by parliament is unconstitutional, the parliament can, through a two-third majority, change the Constitution itself. And the Constitution of Bangladesh is the playbook the Supreme Court has to follow. If the parliament changed our constitution tomorrow to require that all judges of the Supreme Court wear bright blue robes to court, and only write their judgments in rhyme, the Supreme Court would be bound to follow it. They probably wouldnt like it, but they would still have to follow it. There is a very important and practical reason for the Supreme Court, and all judges, to adhere to the law extremely strictly, much more strictly than any other government servants or elected representatives (although, its generally a good idea for them to follow the law as well). As judicial review makes clear, we give our courts a great deal of power. However, the court does not have its own police or army to enforce its judgment. When a judge orders a person to be jailed, or to be released from jail, he or she can only write that order in a piece of paper, hand it over to the relevant government ministry, in this case the Home Ministry, and hope that that order will be followed. The courts biggest asset, and most valuable asset, is the confidence which the common people and other branches of governemnt have on the courts. As long as they have this confidence, courts are effective is describing the law to us. Once this confidence is lost, their job becomes impossible to perform with any effectiveness. And the only way for the Court to preserve this confidence is to adhere, strictly and unswervingly, to the law. Not second-guess why it was enacted, nor cherrypick which laws to adhere to and which ones not to, but to adhere to the law. And now, we get to the reason why this verdict is such a big deal. The High Court held that a change to the Constitution itself is invalid. And the Appellate Division agreed with them, to the extent that it did not even allow those who disagreed with the High Court to appeal and get a full hearing in front of the Appellate Division (the petitions it dismissed were leave to appeal petitions: petitions that ask for the Appellate Divisions permission to discuss the verdict given by the lower court and see if the Appellate Court changes its mind). Its the judicial equivalent of hanging up on a salesperson even before they have started telling you why you should buy the wonderful product they are trying to
sell to you. Except that the salesperson they were hanging up on was Bangladeshs Second Parliament. To recap, the parliament makes the constitution, the Supreme Court forces the parliament to stay within the boundaries of the constitution, but the parliament, reflecting the supremacy of the will of the people over all organs of government, can change the constituion itself, and adjust those boundaries. Except that now, the court is telling us it also gets to decide the validity of the constituional amendments itself. So six government officials again get the final word over the will of the people as expressed through parliament. This is worrisome in principal, no matter which six government officials may have that power, or whichever government may have appointed them, or be in power now. To put this into numbers, a constitutional amendment requires a two-third majority in parliament. Assume about one hundred twenty millions Bangladeshis were alive when the Fifth Amendment was passed in 1979. That would mean that it had the support of two-third of those population: eighty million people supported this Amendment (although of course, our first-past-the-post electoral model means that this is not true). Its legitimacy was further bolstered by a popular referendum. But the wishes of six unelected government officials are enough to overcome the will of eighty million ordinary Bangladeshis. Is this really the country we want for ourselves? Why would the court do such a thing? We wont know the Appellate Divisions ruling until it gives us the full text of the judgment. But let us see what Justice Khairul Huq said. His arguments can be boiled down to three essential points. He says the Fifth Amendment is invalid because: a) It gives legality a series of declarations and promulgations that are themselves invalid. b) It deviates from the original spirit of the Constitution, as expressed in the preamble of the original version. c) It is like the Eighth Amendment, which was also declared unconstituional, two decades ago, by the Supreme Court.1 There are some other reaons given, with the most entertaining one being that the Fifth Amendment was unconstituional because Justice Huq simlply did not like the long title of the Amendment. However, let us parse the three mentioned above. Justice Khairul Huq takes great umbrage at the fact that an amendment may seek to ratify a series of executive orders and ordinances, many of them clearly unconstituional in nature, and none of them passed by an elected parliament. What he conveniently forgets is the fact that a duly-elected parliament, the Second Parliament, did ratify those orders, and considered them important enough to ratify them through enshrining them in the Constituion. Should we necessarily support all the orders ratified through the Fifth
1
Choudhury, Dilara, Ibid, P.61
Amendment, especially the ones containing the shenanigans of Khandker Moshtaque Ahmed? Certainly not. However, the Supreme Court is not the appropriate vehicle to get at the underlying orders that were ratified by the Fifth Amendment. It was passed by the parliament. It is only appropriate that another parliament, maybe the current one, pass another amendment expressly rejecting those orders. What was done by parliament is thus fittingly undone by parliament. For the Supreme Court to opine on this matter, and to cast down a constitutional amendment to do so, is extremely unseemly. To put this into perspective, our original constituion, passed by our First Parliament in 1972, broadly enshrined the reason for our War of Liberation in 1971. However, before we won that war and had the election that elected the 1972 parliament that formulated the Constitution, those reasons were only grievances, grievances that a majority of the population had against a military government, but for legal purposes, mere grievances none the less. It was our victory, by force of arms (suck on that, Pakis), that allowed the formation of a nation and the codification of a constituional basis for ensuring that those grievances were addressed. Justice Khairul Huq is illadvised to second-guess the reason behind a constitutional amendment, just as he, or any other jurist, would be ill-advised to second-guess the reason for fighting that War of Liberation in the first place. It is the constitution, or in this case, the constitutional amendment, that should bind his judicial decision. Justice Huqs second point is that this amendment deviates from the original spirit of the constituion, as expressed in the preamble of the constitution. He sets up this discussion by quoting many learned and eclectic sources about the importance of the preamble to any law. He is forced to do this, because the preamble to a law is not law. Its that simple. The preamble to a law is not law; if it were, it would not be the preamble, it would be in the law itself. Having tried to convince us of the importance of the preamble, the High Court judgment then goes to say how the original characteristic of the Constitution could be found in the preamble, and how this Fifth Amendment destroyed this original characteristic. There are two points to note here. Firstly, Justice Huq makes a big deal about the oath he takes as a member of the higher judiciary to preserve, protect, and defend the constitution. We are of one mind with him that this oath is important, and would like to point out that he is tasked with protecting the Constitution, not a version of the Constitution, and certainly not the spirit (mythical or otherwise) of a Constitution. Secondly, the Constitution itself, in Section 142, outlines the process through which the constitution may be amended. This section is titled, rather helpfully, Power to amend any provision of the Constitution. Not the power to amend certain part of the Constitution, or the power to amend only those parts of the Constitution that are politically unpopular at the moment. The Constitution is set up so all parts of it, after following due process, can be amended. For any legal professional to claim otherwise (we are looking at you, Barrister Shafiq Ahmed) is intellectual dishonesty of the most blatant variety.1
1
Hasanuzzamman, Search for a New Dimention, P.19
The fact that there is a precedent for the overturning of the Fifth Amendment, the overturning of the Eighth Amendment by the Supreme Court, is the strongest legal argument in favor of this verdict. Anything the Court has done once, it can do so again, with much less trepidation. Thus, the decision overturning of the Eighth Amendment deserves close inspection. Then, the Court said that there were certain characteristics of the Constitution that even the Parliament could not change. Any attempt for the parliament to try and change one of these basic characteristics would be ultra vires, which legalspeak for beyond the power of the parliament. Setting up this sort of meta-constitution (all provisions are equal, but some are more equal than others?) is an extremely troubling legal fiction. It is also plainly unconstitutional, since there is nothing in the Constitution itself that even remotely hints at this system of prioritization.1 The Supreme Court would do well to consider reversing itself (yes, the Supreme Court can, on extremely rare occasions, overturn one of its own decisions) the next time this question presents itself in front of the Court. A secondary aspect that deserves close scrutiny is the question of ultra vires. Bangladesh is not the United States, which has a federal goverment of enumerated and finite powers. Bangladesh is not India, with two houses of parliament and governance divided between the Union government and the state governments. Bangladesh is a unitary republic with a unicameral parliament which possesses plenary power. There are only two organs of the state who exercise sovereign power on behalf of the people: the president, who has the sole discretion of appointing the Chief Justice, and the Parliament, which does everything else. When these two organs act together, they exercise, in sum, the full power f the sovereign people of Bangladesh. Thus, to suggest that certain matters, even with the will of the parliament and the assent of the president, are untouchable, is to again suggest that complete sovereignty does not rest with the people of Bangladesh. It is up to the Supreme Court to decide if this is indeed the message it wants to propagate. Bangladeshs higher judiciary has long been a source of pride to all of us who advocate good governance and a system of checks and balances. The Supreme Court has heroically stood up to both the totalitarian tendencies of democratic governments and nondemocratic governments alike. It is for this reason that the Court should ensure that it can continue to enjoy the high regards of those who see it as the defender of our Constitution. There is no higher duty, and no stricter one.2
1 2
Choudhury, Dilara, Ibid, P.130 mydearBangladesh, website
Chapter Three
Conflict between Fifth Amendment and 1972 Constitution

At the center of the domestic political upheaval is the 5th Amendment to the Constitution of Bangladesh. In April 1979 the Legislature in Bangladesh ratified the 5th Amendment which provided that all amendments, additions, modifications made in the Constitution during the period between August 15, 1975 and April 9, 1979 were valid and would not be called in question before any judicial body of the country. In simple terms all the acts and decisions of the martial law period were legalized and insulated from any judicial inquiry. The martial law administrator during this period, Zia-ur Rehman, had sought to constitutionally validate his coup in which he had usurped power from Sheikh Mujibur Rahman.1 In August 2005 in a landmark ruling the High Court had held the 5th Amendment as illegal and unconstitutional. The Central Government, comprising of Bangladesh Nationalist Party (BNP) and the Islamist Jamaat-i-Islami moved a petition in the Countrys Supreme Court challenging the Court ruling. The Court order was stayed and discussions on the 5th amendment rescinded to the political backburner. In early May this year the Awami League (AL) Government has cancelled the petition for staying the 2005 Court ruling thereby paving way for Constitutional chaos in the country. The AL move, prompted by political considerations, could have far-reaching repercussions for Bangladesh. The P.M. of Bangladesh and AL leader Sheikh Hasina is the daughter of Sheikh Mujibur Rahman who was removed from office in the 1975 coup. The BNP and opposition leader is Khaleda Zia, widow Zia ur Rahman. Thus the AL action can be viewed merely as a continuation of the long political and personal rivalry between the two most prominent political figures of Bangladesh. Though the people of Bangladesh despise this rivalry between Zia and Hasina, the majority has become used to such acts of political vendetta. A shopkeeper in Dhaka once commented that Bangladesh experiences floods and cyclones in which many people die but Zia and Hasina were a worst disaster.As expected the BNP has opposed the Governments action and is gathering popular and political support for its cause. The Supreme Court has given the BNP four weeks for filling a petition against the Governments move and the political stability in Bangladesh will rest on the ensuing Court ruling. If the BNPs appellate petition is rejected the military rule between 1975 and 1979 and official decisions during this period would be declared illegal. Unfortunately the struggle over the validity of the 5th Amendment is not confined to the dynastic enmity of the Bangladeshi political elites. What makes this act of political vendetta critical is its larger impact on the constitutional and social landscape of Bangladesh. During the political upheaval leading to the creation of Bangladesh, the Islamic groups in East Pakistan did not support the independence movement and sided with the Pakistani Army. After the creation of Bangladesh in 1971, Sheik Mujubir rehman further marginalized the Muslim religious forces from mainstream Bangladeshi politics by introducing a secular democratic order in the country. However the coup of 1975 reopened the doors of influence to the Islamist forces in Bangladeshi politics. Zia-ur Rehman did away with the constitutional provisions prohibiting the formation of communal parties and associations. A series of constitutional amendments
1
Ahmed, Moudud, Ibid, P.154
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were introduced to elevate the influence of Islam on Bangladeshi politics and society. The words Bismillahir rahmanir rahim were incorporated as the opening words of the constitution specifically through the 5th amendment. Thus Bengali nationalism was replaced by Islamic allegiance largely through the 5th and the subsequent amendments to the Constitution. Will not the annulment of the 5th amendment constitutionally delegitimize the role of Islam as a social and political force? Bangladesh Law Minister Shafique Ahmed has subtly hinted at this possibility by stating that scrapping the 5th amendment would re-establish the reign of secular, socialist democracy in Bangladesh. The BNP is gathering popular support by playing on popular fears that the words Bismillahir rahmanir rahim will be deleted from the Constitution following the Governments decision to annul the 5th amendment.1 Though the AL government is attempting to address popular concerns by committing to the continuation of Bismillahir rahmanir rahim as an integral part of the Constitution, the common people of Bangladesh are confused and uncertain about the arguments from both sides. Some analysts are of the view that discarding the 5th Amendment will have a domino effect on the other Constitutional amendments and the country could encounter politicoconstitutional anarchy. Even if the Government insulates the other amendments by some logic (which is difficult to achieve) all decisions made by the Government of Bangladesh between August 1979 and April 1979 will be annulled. This would include all foreign treaties and acts of political appointees and diplomatic functionaries as well. 2 In simple words the state of Bangladesh will absurdly exist without any political decision, domestic and international, for the period between august 1975 and April 1979. In a months time the Supreme Court will deicide on the constitutional validity of the 5th Amendment and the future of Bangladesh. The Zia-Hasina tug of war needless to say will continue, oblivious to its damming effects on the polity and society of Bangladesh.
1 2
Ahmed, Moudud, Ibid, P.262 Hakim, Muhammad A, Ibid, P.56
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Chapter Four
Goal of the Fifth Amendment

Abstract: Bangladesh, the world's third largest Muslim-majority nation, is facing challenges from violent Islamist groups. The government is cracking down on radical groups and emphasizing the democratic principles of the country's founding, but radical Islamism still threatens to undermine stability in Bangladesh. Radicalization and terrorism are directly linked to government corruption and a lack of trust in the representative political process. To build trust in the political process, Bangladesh needs to strengthen its democratic institutions and develop a culture of transparency in the government that fosters accountability and restrains corruption.1 The restoration of democratic government in Bangladesh, the world's third largest Muslim-majority nation, has helped to counter the immediate threat from Islamist extremists. Three years ago, when elections were postponed due to escalating political violence, observers warned that Bangladesh's traditional culture of tolerance and moderation was threatened by the political clashes as well as by rising Islamist militancy. Since the December 2008 election, the new government led by Sheikh Hasina, leader of the Awami League, has taken steps to stem Islamist extremism in Bangladesh by cracking down on radical groups and emphasizing the democratic principles of the country's founding. However, like many nations in the "Muslim world," Bangladesh continues to struggle to define the role of Islam in society and governance. A robust civil society, vibrant communities of nongovernmental organizations, an independent judiciary, and active participation of women in the social and economic sectors have thus far contributed to denying extremists a foothold in the country. Yet Washington needs to remain closely engaged with Dhaka and continue to encourage democratic trends and steady development of the country's economy. Until millions of Bangladeshis are raised out of poverty, governing institutions are strengthened further, and corruption is controlled, Bangladesh will face a threat from Islamist extremists seeking to undermine the country's democratic institutions and tolerant traditions. Preventing Bangladesh--a nation with 140 million Muslims--from falling prey to a volatile mix of radicalization and political unrest should be a top priority for Western policymakers. The U.S. should seek new ways to partner with the Bangladeshi government to stem the influence of Islamists so that they do not become an urgent threat to the country.
Published on March 15, 2010 by Maneeza Hossain and Lisa Curtis
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A Return to Democracy More than a year has passed since the elections that put Bangladesh back on the democratic path. On January 11, 2007, the Bangladeshi military intervened in a precarious democratic process, effectively removing Bangladesh from the list of recognized democracies. One more Muslim-majority nation seemed to be heading toward prolonged autocratic rule. In December 2008, however, Bangladeshi democracy received another lease on life with elections that international observers deemed credible. The return of democracy to Bangladesh is a welcome development, but the country continues to face challenges from groups that support Islamist ideologies as well as from groups that violently oppose the state. Without concerted action by government authorities and increased awareness among the Bangladeshi public about the agendas of these groups, the political center of gravity in Bangladesh could shift increasingly toward Islamism. While moderation and religious tolerance continue to be defining features of Bangladeshi politics, the secular discourse and ideals upon which Bangladesh was founded in 1971 have been diluted. Arguably, the process of integrating Islam more fully into the political sphere began as early as 1975, after General Ziaur Rahman assumed the presidency. He removed the reference to "secularism," a fundamental principle of Bangladeshi nationhood, from the preamble of the Bangladeshi constitution and replaced it with a new clause asserting that "absolute trust and faith in the Almighty Allah" should be "the basis of all actions." Zia also lifted the ban on religious political parties, thus allowing Islamists a role within the political realm. Furthermore, to prove his own Islamic credentials, General Hussain Ershad, Zia's successor, declared Islam the state religion in 1988.These military regimes, which took power through coups in 1975 and 1982, respectively, generally pursued policies of Islamization to gain political legitimacy. Islamist ideas have thus become more prevalent in the country's political discourse, a process spurred by the rising fortunes of the Jamaat-e-Islami (JI), the predominant Islamist political party. The two major political parties, the Bangladesh National Party (BNP) and the Awami League, have found it politically expedient to create space for political Islam in their own campaign rhetoric and to form short-term and long-term alliances with Islamist political parties.1 When the BNP ruled the country from 2001 to 2006, it formed an alliance with the JI, allowing JI members to hold cabinet positions for the first time. Although the JI has captured only about 6 percent to 8 percent of the vote in the past four elections, it is considered a kingmaker in Bangladeshi politics. Just before the 2007 election, the Awami League, which trumpets its secular credentials, found it politically expedient to reach out to the Islami Okiyo Jote, a smaller and more radical Islamist party. The emergence of violent Islamist groups in Bangladesh over the past decade is another worrisome trend, although the Bangladeshi authorities have demonstrated a willingness to deal firmly with the threat. A handful of transnational terrorist groups, some with
1
Munim, F.K.M.A, Ibid, P.41-43
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connections to Pakistan-based groups, stepped up attacks against the state in 2004-2005. On August 17, 2005, Jamaat-ul-Mujahideen Bangladesh (JMB) conducted the most spectacular of these attacks, a coordinated series of bombings throughout the country. On November 29, 2005, at least nine people were killed in another series of attacks on Bangladeshi courts, which further demonstrated that Islamist groups were seeking to weaken the state. The bombings served as a wake-up call to the Bangladeshi government about the need to control Islamist terrorist groups. In March 2007, the military-backed caretaker government tried and executed six JMB leaders for their involvement in the August 2005 bombings. While violent groups increased their attacks against the state, Islamist political parties initiated a campaign against the Ahmadiyya community in Bangladesh and demanded that the government declare them non-Muslims. In 2004, the Bangladeshi government, then led by the BNP, banned the publication, sale, distribution, and preservation of all books and booklets on Islam published by the Ahmadiyya in Bangladesh. In June 2005, Islamists set fire to an Ahmadiyya mosque in Brahmanbaria and detonated more than two dozen bombs, injuring two people. As Bangladesh scholar Dr. Ali Riaz noted in 2004, "The accommodation of political Islam [in Bangladesh]...has created a context within which political radicalism and social intolerance are increasing and soon may become the mainstay of politics." However, the U.S. State Department reported in its 2008 Country Reports on Human Rights Practices that the Bangladesh government has improved its protection of religious minorities, including the Ahmadiyyas. The report also noted that the Bangladesh High Court stayed the government ban on publishing Ahmadiyya literature, effectively allowing Ahmadiyyas to publish. The current Awami League government led by Prime Minister Sheikh Hasina has demonstrated its determination to deal firmly with violent Islamist groups and to roll back Islamist trends within the country's politics. The Hasina government's October 23rd banning of the Islamist extremist group Hizbut Tahrir is one indicator that the Bangladesh government is taking a tough stance toward extremism and is committed to ensuring the country remains on a democratic and peaceful path. The Appellate Division of Bangladesh's Supreme Court also recently upheld the 2005 High Court decision to reinstate the ban on religious political parties, which was lifted in 1979 by the Fifth Amendment to the Constitution. The Appellate Division dismissed two petitions challenging the High Court ruling, which had found the Fifth Amendment "illegal and unconstitutional." It is unclear whether the decision will lead to the official banning of religion-based parties.1
Evolution of Bangladeshi Identity

1
Islam, M. Amir-Ul, The Evolution of Parliamentary Democracy and the Constituion in Bamgladesh, 1997
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Bangladesh (previously East Pakistan) was born in 1971 as a reaction to perceived exploitation and repression by the country's leaders located in West Pakistan (now Pakistan). Two main elements of identity have shaped the people in this land: the Islamic faith and Bengali culture. The cultural element gained prominence immediately after the War of Liberation. Both the United States and the Soviet Union viewed this local conflict as another manifestation of their proxy confrontation, and Bangladesh became a battlefield for competing regional and international interests, with Pakistan supporting local forces to counter India's influence. An ally of India and the Soviet Union, Sheikh Mujibur Rahman, the charismatic figure at the founding of the Bangladesh nation, incorporated secularism and socialism as national ideals enshrined in the Constitution. However, in its early years, the Bangladesh government failed in its nation-building tasks, and Sheikh Mujib even resorted to the one-party rule. Bangladesh became a sustained democratic system only in 1991, with the election of Begum Khaleda Zia of the Bangladesh National Party (BNP). The two subsequent elections were bitterly contested, but the results were still accepted. Regrettably, democratic government further amplified corruption, which was an endemic problem that predated the democratic era. The economic opportunities of the globalizing world of the 1990s also brought a modest prosperity to some Bangladeshis. The democratic era thus became a breeding ground for the vicious circle of corruption, patronage, and popular resentment. In the context of democracy's eroding credibility, support for Islamist ideas began to grow in Bangladesh. The fading memory of the War of Liberation diluted the importance of nationalism in the political identity of Bangladesh and allowed the Islamic element of this identity to gain ascendancy. Globalization also enhanced Middle Eastern influences, both through the influx of funds from Islamic charitable organizations seeking to foster new Islamic learning and social services institutions and through migrant workers who returned from Gulf States with new ideas about the relationship between state and religion. Impact of the Caretaker Government (2007-2008) The army takeover of January 11, 2007, was carried out in the name of cleansing the political process of both corruption and terrorism. Most Bangladeshis initially supported the Bangladesh Army's action as the only option to save the country from political disaster and a potential bloodbath. Three years later, however, the army appears to have failed to root out corruption. Indeed, Bangladeshi media has reported some cases of corruption by the military-backed civilian rulers. On the issue of terrorism, the military-backed government of 2007-2008 made notable progress, arresting and executing Islamist activists involved in terrorism. The militarybacked government also commissioned a report on effective ways to address the terrorism issue. As such, the government's main thrust in handling the terrorism problem was to view it as a criminal phenomenon. This tendency has influenced the approach subsequently adopted by the Hasina government. 1 5
A less helpful legacy of the military-backed government is the precedent that it set by suspending the democratic process. This plays into one of the ideological underpinnings of extremism and terrorism, the political proposition that questions the validity of democracy and the legitimacy of popular sovereignty. Although the Bangladeshi people initially viewed the state of emergency as necessary given the rising political tensions in the country, they nevertheless welcomed the 2008 elections and the return to democracy. The imposition of military-backed rule for 18 months has increased doubts of many Bangladeshis about civilian authority over the army. Rumors of an impending coup flourish in the country, and faith in Hasina's leadership fluctuates accordingly. Mutiny Challenges Hasina Government Sheikh Hasina faced the most severe challenge to her leadership in February 2009 when a mutiny in the Bangladesh Rifles (BDR), one corps of the armed forces, degenerated into a massacre. The government's handling of events had the potential to create a confrontation with the military. However, it managed the crisis deftly and averted a catastrophe. The exact circumstances that led to the mutiny on February 25-26, 2009, have not yet been fully uncovered. The BDR is a border guard force of about 67,000, led by Bangladeshi army officers. While government and military investigations have explored the events at length, many questions remain unanswered, and competing narratives are circulating in different segments of the Bangladeshi political spectrum. What is known is that BDR elements took over a portion of the Dhaka Cantonment, the main concentration of military offices and residences in the country, and made public demands for parity with the Army on benefits and promotions. By the second day, the unrest had spread to at least 12 other towns. The mutiny ended with the mutineers surrendering their arms and releasing their hostages after negotiations with the government. No solid evidence yet indicates exactly who instigated the mutiny or whether the purpose of the mutiny went beyond the stated demands of the mutineers for higher pay and better employment benefits. The intensity of the atrocities--including the massacre of dozens of high-ranking military officers, disfiguration and dismemberment of army personnel, and rape of female family members of the officers--was clearly disproportionate to the mutineers' demands. Several questions remain: Were the atrocities the results of miscalculations and uncontrollable excesses, or were they part of a deliberate attempt to weaken the army? If it was an attempt to weaken the army, who is behind the conspiracy? One member of Hasina's cabinet has called the mutiny a "deep-rooted conspiracy" by people intent on destabilizing the country. Islamism as an Existential Threat
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The largely socialist and secular background of today's Bangladeshi cultural elite contrasts with broader society, which is growing more conservative in religious practices and mores. The reasons behind this trend are numerous. Locally, the emergence of distinct social classes and the identification of some segments of the elite with a Western way of life have triggered a reaction toward a more conservative outlook. Contributing factors include the abundance of satellite television channels that preach more dogmatic forms of the religion and the large number of Bangladeshi migrant workers returning home from Gulf States where they acquired different values. Islamists have injected themselves into this environment of greater religious conservatism, adding components of activism and intolerance. This sociocultural dynamic is significant and needs to be monitored. Islamists do not generally state a political vision at the outset, but the socioeconomic needs of the people provide the Islamists with an opening to begin influencing the grassroots of society. Islamists engage in a bait-and-switch process, entering through a social question and then eventually promoting a political formula. In reality, their political formula is negation of the existing system. They argue that the current order is illegitimate and needs to be changed and that Islam is the solution, but leave the specifics of this solution unexplained. Still, in their relentless rejection of the current order, Islamists capitalize on and amplify the resentment toward the ruling elite. They also undermine the legitimacy of the state and question the foundations of democracy. Bangladesh is grounded in a tradition of pluralism and its aspiration for sound democratic governance. Furthermore, indications are that Bangladeshis have become increasingly devout in their religious practices, but are uncomfortable with any notion of increased state engagement in religious affairs. However, there are some signs that Bangladeshi confidence in democratic values has receded. Islamists are actively seeking to uproot these values further, and the trend may be toward losing the pluralistic values of liberal society, unless proactive steps are taken. Radical Islamism should be treated as an existential threat to the country. Three Types of Islamism Islamism as a political ideology, which aims at redefining sovereignty in Islamic terms, has coalesced into three main approaches globally. These approaches can be described as evolutionary, revolutionary, and opportunistic. Evolutionary Islamism. The evolutionary model is represented in Bangladesh and the rest of South Asia by the Jamaat-e-Islami. The JI seeks to turn Bangladesh into an Islamic state, in which the people and the parliament no longer have sovereignty, but JI seeks to achieve this goal by working within the existing laws and conventions of the country.The JI Islamist project proceeds incrementally from individual to family to society to state through a process of Islamization that seeks to reshape everyday life according to the Islamists' understanding of Islam.
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Evolutionary Islamism is accommodating of existing systems and institutions, but operates with the underlying belief that these structures will naturally dissolve as the project moves forward. JI is willing to contest elections and assume responsibilities of government--behaving as any other political party--with the implicit conviction that this is merely a temporary framework until the Islamist ideal is realized. The Muslim Brotherhood in Egypt is another evolutionary Islamist group. Revolutionary Islamism. In the revolutionary model, Islamists reject the temporary compromise on principal or simply make no space to accommodate it. Instead, they choose to openly confront the existing system. The Jamaat-ul-Mujahideen Bangladesh follows this model. Opportunistic Islamism. The opportunistic model, which is less prominent in global Islamism, also rejects any legitimacy outside the Islamic framework. Opportunistic Islamists do not seek an immediate open confrontation with the existing order, but instead are inclined to seed state institutions, particularly the military, with their own activists to usher in a momentous transformation when the time is right. The Hizbut Tahrir can be called opportunistic Islamists. Any effort to counter the effects of these groups in Bangladesh needs to be informed by their global ideological context, but the idiosyncratic histories of these groups in Bangladesh may also be important in devising ways to contain them. Jamaat-e-Islami Jamaat-e-Islami is by far the oldest, largest, and most deeply rooted Islamist organization in Bangladesh. It has maintained a constant presence in the Bangladeshi National Parliament since the restoration of democracy in 1991, although it secured only two seats in parliament in the December 2008 elections. Its youth organization has branches nationwide and is an effective recruitment arm for the political party. Its network of social services offers impoverished constituents basic health and an invitation to political patronage. The JI has faced two main handicaps in the past few years: the revival of political interest in reexamining its role in the 1971 War of Liberation and its long-term association with the Bangladesh National Party (BNP), a political party that faced a serious setback in the most recent elections. While it can be argued that any liberation war is also a civil war, the cultural consensus in Bangladesh is to draw a clear line between those who sought independence and those who supported the Pakistani Army's repression of the independence movement. In 1971, supporters of Pakistan as the Muslim state of the Indian subcontinent argued that the independence movement in East Pakistan was a secessionist action instigated by India to undermine the integrity and power of the Islamic state. The JI's role in supporting West Pakistan and the repressive measures of its army has since been recast by political opponents as collaboration in genocide. The JI leadership, largely due to political circumstances and military rule, has so far largely escaped being stigmatized by this accepted version of history. However, the constant threat of being tarred by these 1 8
accusations indirectly helps to prevent the JI from overtly undermining democracy in Bangladesh. From the point of view of the Awami League and its allies, the JI's active participation in the BNP government from 2001-2006 justified the invocation of the anti-JI weapon of raising the issue of the 1971 war crimes. In an attempt to court the Awami League and the left-leaning part of the political spectrum, the 2007-2008 military-backed government reintroduced the question of a special tribunal for the war criminals of 1971. Over the past few decades, the military's apparent oscillation on questions relating to the JI and the targeting of Islamists likely reflects internal divergences within the military. On the other hand, the interactions between the military and JI demonstrate the army leadership's ability to balance and manipulate the political system. During two years of militarybacked rule, the army leadership seemed to explore various approaches in managing the diverse political forces, finally choosing to endorse much of the Awami League's program. Today, having inherited the war crimes issue from the military-backed caretaker government, the Awami League finds it advantageous to raise the issue in its quest to dismantle the BNP, its opposition. Prosecution of the 1971 war crimes has limited support in some segments of Bangladeshi society, but it is widely seen as a political issue aimed primarily at discrediting the JI, rather than as a societal issue to be resolved in the interest of national reconciliation. Supporters of holding trials view them as a means to curtail the JI's influence and as a potentially fatal blow to the organization. However, seeking to counter the JI only through the courts would be misguided. The JI, as an evolutionary Islamist group, is engaged in a generational quest to change Bangladeshi society and government. Court actions may distract it, but they are unlikely to derail its long-term project. It is noteworthy that JI's leaders consider the December 2008 elections a victory, even though its representation in parliament dwindled to just two seats. Jamaat-e-Islami representatives instead highlight the fact that JI candidates received more votes in 2008 than they did in 2001. These votes may not have translated into parliamentary seats, but they demonstrate that the party is making incremental gains in the electorate. Jamaat-ul-Mujahideen Bangladesh On August 17, 2005, the Jamaat-ul-Mujahideen Bangladesh staged a spectacular series of coordinated bombings across the nation, detonating approximately 400 devices within the space of 45 minutes in 63 of the country's 64 districts, but killing only three people. The JMB apparently believed that this dramatic action would usher in the rise of a revolutionary Islamist insurgency. Sporadic terrorist operations followed the August bombings, further demonstrating the JMB's goals in the country. The language that the JMB used to justify its attacks was sharp, unyielding, and consistent with global jihadist discourse. The JMB argued that the Bangladesh government was corrupt and that its democratic system should be rejected.
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The military-backed government of 2007-2008 tried the JMB ringleaders in court and eventually executed them without taking special legal measures. Vigorous enforcement against the JMB seems to have largely curtailed the group's operations, although Bangladeshi authorities discovered a JMB-connected bomb factory in an Islamic school in the Bhola district in the spring of 2009. Local villagers had noticed suspicious activity at the school and alerted the authorities. The JMB has thus far shown little ability to penetrate social environments in Bangladesh that could be tapped to sustain an insurgency. Yet the JMB's possible revival into a renewed threat to the Bangladeshi state and society cannot be ruled out, especially with international players seeking a foothold in murky Bangladeshi politics. The spectacular character of the JMB's "baptism of fire," the series of coordinated bombings, seems also to have created a well-known brand name for the group among international extremist networks, as evidenced by the group's technologically savvy presence on the Internet. Sources in the Bangladesh government have indicated that many operational aspects of the synchronized bombings were outsourced to other insurgent groups, such as a hardline communist insurgency that operates in Bangladeshi rural areas. However, this should be viewed as strength, not a weakness, of the JMB. In fact, the JMB has demonstrated sophistication in its Web presence, elusive networks, and associations with unlikely partners. Harakat-ul-Jihad-i-Islami/Bangladesh The Harakat-ul-Jihad-i-Islami/Bangladesh (HuJI-B) is an offshoot of the Pakistan-based Harakat-ul-Jihad-i-Islami (HuJI), a pan-Islamist terrorist group that has the stated goal of combating worldwide oppression of Muslims. The HuJI originally formed to fight the Soviets in Afghanistan in the 1980s. It then focused its militant activities against India in Jammu and Kashmir throughout the 1990s, and it now fights alongside the Taliban and al-Qaeda against coalition forces in Afghanistan. Pakistan-based HuJI leader Ilyas Kashmiri has been targeted by U.S. drone missile strikes in Pakistan's tribal areas and was recently named by the FBI as co-conspirator in plots to attack India and Denmark. The HuJI-B was formed under the leadership of Shafiqur Rehman in 1992 by Bangladeshi veterans of the 1980s war in Afghanistan, and it likely maintains close connections with the Pakistan-based HuJI. The U.S. State Department designated HuJI-B as a foreign terrorist organization in March 2008. In late January 2010, Indian authorities reportedly arrested a HuJI-B operative who had planned to attack Hyderabad, India, on Indian Republic Day. Hizbut Tahrir Between JI's temporary acceptance of the democratic process and the JMB and HuJI-B's unequivocal rejection is qualified coexistence with the system, as practiced by the Hizbut Tahrir (HUT). This group presents itself globally as the party of the restoration of the Caliphate, the universal Islamic state that transcends nationalities and political borders. Hizbut Tahrir seeks to achieve its goal through de facto acceptance of established order in 2 0
Muslim majority societies, while aggressively questioning the legitimacy of any system other than the universal Islamic state. Globally, Hizbut Tahrir has only rarely been implicated in violent or terrorist actions, but it has been banned in Germany, Russia, Kazakhstan, and a handful of other countries. The Bangladesh government banned HUT's Bangladesh chapter after an unidentified group bombed a ruling party parliamentarian on October 21, 2009. The government said it would not punish HUT activists for past offenses, but warned them not to continue "anti-state" activities. Mohiuddin Ahmed, the HUT chief coordinator in Bangladesh and a professor at Dhaka University, was put on "forced leave indefinitely." HUT is the fifth militant organization to be outlawed in Bangladesh since 2001. Previously, it was suggested that leaders in the Bangladeshi Armed Forces viewed HUT in its discipline and professional outlook as a counterproposition to the revolutionary Islamism of the JMB and similar groups. However, this view ignored the potent radicalization effect of HUT. As described by former HUT members in the United Kingdom, the organization instills in its youthful recruits a sense of alienation and isolation from the wider society. HUT leads its members on a path to radicalization and rejection of the established order. It is unclear whether HUT engaged directly in terrorism in Bangladesh, but it has staged intimidating demonstrations that apparently provoked people to violence. HUT originally drew the attention of the Bangladeshi authorities after a grenade attack on British High Commissioner to Bangladesh Anwar Choudhury in May 2004. Bangladeshi press reported that, two days before the incident, HUT supporters had posted anti-British and anti-U.S. posters at the shrine where Choudhury was later attacked. Although HUT may not be a force of insurgency, it is a major driver of radicalization.
What the U.S. Should Do As Bangladesh seeks to limit the influence of radical Islamists and to prevent extremist ideologies from taking root in the country, the U.S. should:
Assist Bangladesh in improving its democratic process. Bangladesh is an imperfect democracy. Radicalization and terrorism are directly linked to corruption and a lack of trust in the representative political process. Thus, it is important for the U.S. to help Bangladesh to engage in a long-term reform of its democratic practices and to address endemic problems, such as strong-arm politics and the perpetual rejection of electoral defeat. The Hasina government can help this process by focusing on developing a common civic sense that places nation and state ahead of party and dynastic politics. Urge the Bangladesh government to develop a culture of transparency that fosters accountability and restrains corruption. One way to encourage greater transparency is to require all government agencies and departments to issue 2
periodic reports detailing their activities and disbursements of funds. Disclosure should become the norm, and withholding information should require justification. The current administrative culture of Bangladesh remains afflicted by both secrecy and ad hoc reporting. Transitioning to a more predictable, more transparent relationship with the citizenry is essential to establishing good governance. Support Bangladesh in strengthening and streamlining its judicial system. In Bangladesh there is a critical vacuum in the law and order system. Even secular liberal democrats do not trust the legal system. The legitimacy of the political process has largely relied on charismatic leadership, rather than strong and enduring institutions. The evolution of Bangladeshi democracy into a reliable system based on consistent laws and individual accountability remains a major challenge. Support Bangladesh in developing a comprehensive approach to countering extremism and terrorism. Dhaka needs to resist the temptation to view terrorism as solely a criminal issue or an imported ideology. It is a combination of the two. Bangladesh needs to recognize the importance of addressing the radicalization as more than a criminal issue. For example, the main leaders of the JMB were prosecuted and executed, but the organization continues to exist and evolve. In addition to decapitating the organization, the government needs to pursue the JMB's ideological links to other organizations and individuals and work to prevent the spread of extremist ideas. The Hasina government is starting to grasp the complexity of the terrorism issue. Washington should support the Bangladesh government in adopting a comprehensive approach to dealing with the challenges posed by extremist ideologies. Support Bangladesh in working with other Muslim states and societies that are countering radicalism. Initiatives to counter radicalism are best conceived and implemented at the nongovernmental level, with local civil society actors assuming the primary role. While radical Islam has a global narrative, the most efficient responses to it are formulated at the local level, with regional and international counterradicalism networks providing support and sharing ideas. Bangladesh can also contribute to building up international networks to counter radicalism by sharing its own experiences of fusing local culture with Islam in a way that upholds democratic values, supports religious tolerance and pluralism, and serves as a bulwark against violent groups seeking to weaken the state. Support the Bangladesh government in developing a reintegration program for migrant workers returning to Bangladeshi society. Bangladeshi religious leaders should take a role in ensuring that Bangladeshi laborers returning from the Gulf region understand that there is no dichotomy between Bengali culture and the religion of Islam. Returning migrant workers from the Gulf have often been exposed to new ideas about the relationship between state and religion and/or have been influenced into thinking that Islam as practiced in Saudi Arabia is somehow superior to Islam as traditionally practiced in Bangladesh. Insistence on the validity of Bengali Islam can counter the destructive impulse of reductionist Islamist ideas, the seeds of which can be planted in Bangladeshi laborers during extended stays in the Gulf. 2
Encourage Bangladesh to build on the strength of its culture to offer women relative freedom and choice in both the public and the private spheres. Since independence, women, regardless of social class, have assumed important roles in Bangladeshi society and have been active participants in socioeconomic life. Confronting Islamism in the social sphere should focus on the empowerment of women as individual, productive, and full members of society, not on the type of clothing they wear. The success of microfinance programs in Bangladesh that primarily lend to women demonstrates the benefits of women's active involvement in economic life. Bangladesh should build on this success. Support the depoliticization of the debate surrounding radical Islam. The issue of radicalization should not be politicized for short-term gains against political opponents. Trials of the 1971 war crimes, in particular, could easily be misused for narrow political purposes, undermining a process of recovery and national reconciliation that is still lagging. The U.S. government should encourage Bangladesh to openly debate issues of national import, but discourage the parties from exploiting such issues for narrow political purposes.
While Bangladesh has so far met the challenges from creeping Islamist radicalization, the situation inside the country remains somewhat precarious. The local challenges in Bangladesh have been amplified by the injection of an internationally minded radicalization process. However, the assets that Bangladesh has accumulated over the past four decades remain a solid base for a potential recovery and reversal of Islamist radicalization. The U.S. should stand ready to support local Bangladeshi actors, while recognizing that a free Bangladeshi society and democratic government must take the lead role and responsibility in meeting these challenges.
Background In the year 2000, the owners of a cinema hall called Moon Cinema Hall filed a writ petition under Article 102 of the Constitution claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful and sought a direction upon the government to hand over the physical possession of the premises known as Moon Cinema Hall in Dhaka to their original owners. In that writ petition, the petitioners challenged the constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 1979.1 By a Judgment and Order dated 29th August 2005, the High Court declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
Barrister Abdur Razzaq, Written by him
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Islamic Character of the Constitution In April 1979, the Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution. It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the Constitution an Islamic character, the Preamble of the Constitution was changed in the following manner: Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fundamental principle of the Constitution. By operation of the original Article 38, no citizen had the right to form or take part in the activities of any organisation which has been formed on the basis of religion with a view to pursuing a political purpose. The High Court, by declaring the Fifth Amendment unlawful, has revived the old Article 38. For clear and better understanding, we are quoting below the original Article 38 and the amended one (amended by the Fifth Amendment): Original Article 38 Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.
Amended Article 38 Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health. It may be mentioned that the Islami character to the Constitution was given in 1976 by the Second Proclamation (6th Amendment Order, 1976), which was later ratified by Parliament in 1979. Court Procedures On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Awami League came to power in January 2009 and on an application made by the new Government on 3rd January 2010, the Governments appeal was withdrawn and the stay granted has been vacated. Realising that the new Government would withdraw its appeal, earlier on two applications were filed: one by the Secretary General of BNP, and another by three advocates of the Supreme Court of Bangladesh, which sought to challenge the judgment passed by the High Court declaring the Fifth Amendment void. These two applications will come up in the list of the Supreme Court on 18th January 2010 for hearing. If these two applications are rejected on the 18th of 2
January or anytime thereafter, then various provisions of the 1972 Constitution will be revived and Bangladesh Constitution will lose its Islamic character. In that event, no further amendment to the Constitution would be necessary to give effect to the judgment of the High Court. Parliament need not to pass any further legislation. The implementation would be automatic. The High Court has also done away with the provision of referendum to change certain provisions of the Constitution. Therefore, no referendum will be necessary either. Effect of Reverting Back to the 1972 Constitution The concept of secularism, being contrary to the history of the region and its people, references to secularism in the Constitution were removed and in its place, Absolute trust and faith in Almighty Allah were inserted. As such, in the 38 years since the framing of the Constitution, the citizens of the country have expressed their absolute trust and faith in Almighty Allah for over 34 years. This position was changed by the High Court judgment. Moreover, the present Court judgment has also taken away the fundamental right of citizens to form associations for a religious purpose. Citizens of Bangladesh have enjoyed such a fundamental right for 34 years since 1976. Although originally under Article 38 of the Constitution it was a fundamental right of all citizens to form associations, there was no fundamental right to form associations for religious purpose. However, in 1976, amendments were introduced in Article 38 of the Constitution and the fundamental right to form associations was extended to associations formed for religious purposes. Now no citizen will have the right to form or be a member of a union or association based on religion. Although the Constitution does not prohibit the formation of such association, however, by virtue of section 20(2) of the Special Powers Act, 1974, the Government has the power to dissolve all or any religious political party. On 4th January 2010, the Minister for Law, Justice and Parliamentary Affairs has expressed the Governments intention to dissolve all associations based on religion. Later on, the Prime Minister also expressed similar opinion. If, on the strength of the Courts decision, the Government decides to dissolve religious political parties, Bangladesh Jamaat-e-Islami, together with a dozen other small religious parties can also be dissolved. This might create a tension in the society. Jamaat-e-Islami, and other Islamic political parties, have been operating under the framework of the Constitution. Their objective is to establish, only through democratic process, a just society based on Islamic principles. When the doors of change through democratic process will be closed, this will strengthen the hands of the extremists who have been functioning outside the democratic process and accusing the Jamaat-e-Islami in particular of compromising the principles of Islam by functioning under the democratic process. Interference in International Relations By declaring the Fifth Amendment unlawful, the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25(2) of the Constitution provided as follows: The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity. 2
For the last 33 years, this was the Constitutional basis for the Government of Bangladesh upon which its relations with the Muslim countries were established. The Fifth Amendment Case has deleted this provision. This may indirectly affect the relationship of Bangladesh (which is the home of almost 10% of the entire Muslim population of the world, with the rest of the Islamic world).1 Change in Citizenship Finally, an anomaly which was present in the original Constitution of 1972 has been re-introduced. Under Article 6 of the unamended Constitution, the citizens of the Bangladesh were known as Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The Bangalees are one such ethnic group. As such the term Bangalee as used in the Constitution had the undesired effect of prima facie excluding other ethnic groups from Bangladeshi citizenship. The Constitution (Fifth Amendment) Act, 1979 having described/defined citizens of Bangladesh as Bangladeshis and not as Bangalees does not exclude other ethnic groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division. The Courts judgment has created a sea of uncertainty in Bangladesh politics. Moon Cinema Hall could have been handed over back to its original owners by the High Court without knocking down the Fifth Amendment to the Constitution. By closing the doors of Constitutional politics for Islamic political parties, Bangladesh may become more unstable, more volatile and consequently more unpredictable.
Chapter Five
Decision of Supreme Court on Fifth Amendment

1
Khan, Ataur Rahman, Two Years Of Chief Ministership, P.179-180
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The amendments to the 1972 Constitution are necessary for upholding democracy and for blocking the way for usurpation of state power through imposition of martial laws in future. Boycotted by Opposition parties, the Jatiya Sangsad (Parliament) on Wednesday approved the formation of a 15-member parliamentary committee that would review the Constitution. The Daily Star added: Changes made to the constitution in around four years after the August 15, 1975 changeover altered the fundamental principles of state policy, destroyed the secular character of the constitution and allowed politics based on religion. Besides, the changes replaced Bangalee nationalism with Bangladeshi nationalism, and provided political right to anti-liberation forces including Jamaat-e-Islami and war criminals that resulted in an alarming growth of political parties and organizations based on religion. All those amendments, modifications, substitutions, omissions and additions to the constitution were indiscriminately made during the martial law rule that began immediately after the assassination of Bangabandhu Sheikh Mujibur Rahman. And the constitution's Fifth Amendment bill passed in the second parliament during the rule of Ziaur Rahman in 1979 ratified all the actions that also made the supreme law of the land subordinate to martial law proclamations, orders and regulations. The August 29, 2005 High Court verdict that declared the Fifth Amendment illegal also said it undermined the very sovereign character of the republic. The Supreme Court on February 2 this year upheld the landmark HC verdict with 'modifications' and 'observations'. Copy of the apex court judgment might be released soon. Article 8 of the original constitution, which speaks of the four fundamental principles of state policy--nationalism, socialism, democracy and secularism --, was amended to omit secularism and insert the words "absolute trust and faith in Almighty Allah". The principle of socialism was also given a new explanation, saying, "Socialism would mean economic and social justice". Socialism and freedom from exploitation in articles 9 and 10 were substituted by the concepts of promotion of local government institutions and participation of women in national life. The amendment omitted article 12, which contained secularism and freedom of religion.
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"These changes were fundamental in nature and changed the very basis of our war for liberation and also defaced the constitution altogether," the HC observed in its watershed verdict. The changes transformed secular Bangladesh into a "theocratic state" and "betrayed one of the dominant causes for the war of liberation of Bangladesh". Trial of war criminals stopped and their political rehabilitation began with the scrapping of Bangladesh Collaborators (Special Tribunal) Order 1972 by Khandaker Mushtaque Ahmed, who assumed presidency and put the country under martial law following the killing of Bangabandhu. By the second proclamation on May 3, 1976, Justice AM Sayem, who became president later, omitted the proviso to Article 38 of the constitution, which banned politics based on religion. In the light of the proviso, the Special Powers Act provides for punishment for use of religion for political purpose. But omission of the proviso radically altered the nature of political activities in the country. It led to the rise of religion-based political parties, which were constitutionally banned immediately after the independence for their anti-liberation role. The constitutional bar on war criminals convicted under Bangladesh Collaborators (Special Tribunal) Order 1972 from becoming voters and contesting parliamentary elections was also lifted during the rule of Zia. During his military rule, Zia brought some fundamental changes to the constitution by a proclamation on April 23, 1977.The preamble to the constitution was preceded by "Bismillah-ar-Rahman-ar-Rahim" (in the name of Allah, the Beneficent, the Merciful).The preamble also underwent two changes--the words "a historic struggle for national liberation" were replaced with "a historic war for national independence", and "nationalism, socialism, democracy and secularism" were replaced with "absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice".1 Prime Minister Sheikh Hasina at an Awami League Parliamentary Party meeting at Jatiya Sangsad Bhaban on Thursday,22 July said Bismillahir Rahmanir Rahim would not be excluded from the constitution through amendment, as her government would not allow anyone do politics using religion as a tool. On continuation of Jamaat and other Islamist political parties, the premier said her government has no intention to ban politics of any party. Not disclosing his identity, a political analyst says, it is an appeasement policy not to disturb the right wing international axis. Bangladesh has been quite successful in achieving three objectives. Firstly, Bangladesh has been gradually denuded of its Hindu population. At the time of country's partition, the Hindu population in East Pakistan was
1
Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibur Rahman, P.105
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11.4 million or 29.17 percent of the total population. It has decreased alarmingly over the last few years and stood at 15.6 million in 2001. In other words it has come down to 12 per cent of Bangladesh's total population of 130 million. The Hindu population however, should have been 44.4 million in Bangladesh in 2001 as per the normal annual growth rate of 2.5 per cent and had been no migration of Hindus. In this connection, relevant Part is quoted here from a report titled "The Missing Population" dated January 7, 1994 from Holiday-a prestigious weekly of Dhaka: "The Missing population was about 1.22 million during the period of 1974-81, about 1.73 million during the last inter-censual period of 1981-1991. As many as 475 Hindus are disappearing every day from the soil of Bangladesh on an average since 1974". Hope and aspiration of the minority communities will be evaporated as these amendments to the Constitution will not change their desired aspiration; moreover it will deteriorate the condition of persecution and equal rights as citizens. Although the EPA/VPA was repealed by the Hasina Government in April 2001, it is yet to be implemented by the present Awami League Government by restoring the grabbed property to the owners of the Hindus. It needs to be mentioned here that a large number of the land grabbers are leaders of most of the political parties including the Awami League of Bangladesh. It is, therefore, doubtful whether the Hindus would get back their grabbed properties at all. Many believed that the agony of the Hindus would be over and they would regain their lost honour with the liberation of Bangladesh in December 1971. It was entirely a mistaken notion. By and large, the successive Governments in liberated Bangladesh have followed the same policy as was pursued and practised by Pakistan towards her Hindu and other minorities. The Hindus, however, lived in relative peace and safety during the Mujib and Hasina regimes compared to the military and BNP regimes. Nevertheless, the Hindu property was grabbed even when Mujib and Hasina ruled Bangladesh. Unless the Constitutional provision of ensuring minority rights political, social, economic and religious, it would be a futile exercise to keep the old wine in anew bottle. The Minority Hindus, as they have no political option, will remain in a guaranteed position under Awami League rule as second class citizens of the so called Bismillah based secular Bangladesh. Meanwhile, the parliamentary special committee for constitutional amendment declared a six-point aim and objective .Flanked by a number of committee members at a media briefing in the parliament's media centre, committee chief Syeda Sajeda Chowdhury said the aims and objectives reports The Daily Star of the review and amendment are: restoration of the people's sovereign power; upholding and preservation of the spirit of liberation war; implementation of ruling Awami League-led grand alliance's electoral pledges; realisation of the people's mandate expressed in the last parliamentary election; implementation of the apex court's verdict that declared the fifth amendment illegal; and blocking the way for illegal capturing of state power.Formed by the parliament on Wednesday, the 15-member committee led by the House deputy leader, will have its first meeting on July 29 at Jatiya Sangsad Bhaban to formulate its rules of procedure. 2 9
After the briefing, committee co-chair Suranjit Sengupta, and member Fazle Rabbi Mia told The Daily Star that the body was given a wide range of power to review the constitution and to propose amendments. Bangladesh Supreme Court will decide in less than 15 days, as to whether religion based politics including Islamist politics and political parties can continue in the country. The court will decide on the fate of the 5th Amendment in the Article 38 of Bangladeshi Constitution. If the 1972-constitution of the country will be replaced by the present amended constitution and its Article 38, religion based politics, including Islamist political parties will be banned in the country. On April 1979, Bangladeshi Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution. It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the Constitution an Islamic character, the Preamble of the Constitution was changed in: "Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fundamental principle of the Constitution." It may be mentioned that the Islamic character to Bangladeshi Constitution was given in 1976 by the Second Proclamation [6th Amendment Order, 1976], which was later ratified by Parliament in 1979. By operation of the original Article 38 [of 1972], no citizen had the right to form or take part in the activities of any organisation which has been formed on the basis of religion with a view to pursuing a political purpose. On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Bangladesh Awami League, which came in power in January 2009 and on an application submitted by the new Government on 3rd January 2010, the previous Government's appeal was withdrawn and the stay granted has been vacated. In the 1972 constitution of Bangladesh it is clearly mentioned that, formation of any religion based political party or organization or group will not be allowed in this country. If the 1972 constitution will be restored, Islamist and religion based political parties and groups like Jamaat-e-Islami, Nezame Islami, Islamic Oikya Jote [Islamic Unity Front], Khelafat Majlish, Khelafat Andolan, Hizbut Towhid, Khatmey Nabuat Andolan, Muslim League, Bangladesh Hindu League, Bangladesh Hindu Grand Alliance, etc will automatically become ineligible in continuing activities in Bangladesh. It may be mentioned here that, Hizbut Towhid has already been listed as one of the Islamist terror outfits in the country. Ruling secularist Awami League government in Bangladesh on April 2009 blacklisted 12 Islamist militant groups. These are: Harkatul Jihad Islami [Huji], Jamaatul Mujahedin 3 0
Bangladesh [JMB], Jagrata Muslim Janata Bangladesh [JMJB], Shahadat-e-Hiqma [SHE], Hizb-Ut-Towhid [HuT], Islami Samaj, Ulema Anjuman At Baiyinaat, Hizb-UtTahrir, Islamic Democratic Party [IDP], Touhid Trust, Tamir Ud Deen and Allah's Dal. Of these groups, JMJB, Huji, SHE, and JMB were banned during the previous BNPJamaat Coalition government in Bangladesh. Sheikh Hasina's government, which came in power in January 2009 so far, banned Hizb-Ut Tahrir only. Banning other notorious Islamist groups such as Hizb-Ut-Towhid is being delayed as it was already alleged that, some of the influential figures in the government were actively trying to save this group from being banned. Both Hizb-Ut-Tahrir and Hizb-Ut-Towhid are fanatic ultra Islamist, anti-Semitic and anti-West outfits in Bangladesh with huge number of militants as members. Good news is, by declaring the Fifth Amendment unlawful, the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25[2] of the Constitution provided as follows: "The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity." In such case, Bangladesh may not anymore incline in expressing undue solidarity towards Palestine and Jihadists like Hamas. Naturally this will turn Bangladesh as more acceptable ally for the West, especially those nations combating Islamist militancy. According to constitution experts, once the Supreme Court verdict will be declared, religion based parties and groups will not be allowed to continue activities in the country. Furthermore, there will also be some changes in the constitution of Bangladesh. Presently, in the amended version of the constitution, it is clearly written that, "Bangladesh will have full trust and dependence on Allah". The verdict will also decide the main ideology of the country. It may be mentioned here that, Bangladesh was created under secularist ideology. Former military dictator Hussain Muhammed Ershad, who leads a political party named Jatiyo Party in Bangladesh, and now one of the prominent partners of the present coalition government, established Islam as the State religion of the country, when he was in power [1982-1990]. In the electoral manifesto, Ershad declared to establish Sharia law in Bangladesh. It is not clear as to whether the ruling party will ignore such electoral pledges of its coalition partner, while enforcing the Supreme Court verdict. The ruling Bangladesh Awami League also signed a treaty with ultra Islamist party named Bangladesh Khelafat Majlish in 2006 for establishment of Sharia law in the country, once it is elected in power. This treaty was later scrapped by Awami League at massive reaction of intellectuals and secularist forces as well as strong criticism by some local newspapers, led by our newspaper, Weekly Blitz. Commenting on the possible replacement of the present constitutional provisions in Bangladesh, leader of religious minority group in Bangladesh, Govinda Chandra Paramanik said, "We fought the war of liberation in 1971 with the hope of seeing a secular Bangladesh, freed from the grips of Pakistani occupation regime. But, our 3 1
aspiration and hope had never turned true. Since independence of the country, we are greatly deprived of various rights. Till date, no government took real initiatives in scrapping the Vested Property Act, thus returning properties of Hindus in Bangladesh. Abduction and forceful conversion of Hindus are continuing, while even during the present government, our temples and deities are being attacked and demolished by the thugs belonging to the ruling party.1 We really want to see that, Bangladesh is completely freed from the grips of Islamist and fanatic religious notions." Though, personally I don't want to be over optimistic on the possible implementation of the much awaited verdict of the Supreme Court, but, truly it is aspired that, Sheikh Hasina, who now leads the government, will possibly, uphold the principles and ideologies of her father, Bangabandhu Sheikh Mujibur Rahman. During his entire life, till being brutally assassinated by some derailed army officers in 1975, Bangabandhu Sheikh Mujibur Rahman fought against Islamists and religious fanatics. For such heroic role of this man, he rightly deserves appreciation and admiration of Bangladeshis as well as people in the world. While we shall have to wait for few more days for this historic verdict from Bangladesh Supreme Court, here is a small piece of good news! The current government in Bangladesh is going to launch Bangabandhu Sheikh Mujibur Rahman International Peace Prize, which will be equally prestigious as various international prizes such as Nobel Prize, Gandhi Prize etc. This prize will also consider several figures in the world, who are contributing in establishing peace as well combating religious extremism. No doubt, this prize itself shows a positive sign for many. Hopefully, Sheikh Hasina's government will adopt policies in strong-handedly dealing the Islamists and religious fanatics in Bangladesh.
WRIT PETITION NO. 6016 OF 2000 IN THE MATTER OF : An application under Article 102 of the Constitution of the Peoples Republic Bangladesh; -A N DIN THE MATTER OF : Bangladesh Italian Marble Works Limited ...Petitioner
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Hakim, Muhammad A, Bangladesh Politics: The Sahabuddin Interregnum, P.30
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-VersusGovernment of Bangladesh and others ...Respondents. Mr. Ajmalul Hossain with Mr. A.B.M. Siddiqur Rahman Khan and Ms. Nighat Sultana Nabi, Advocates ... For the Petitioner Mr. Fida M. Kamal, Additional Attorney General and Mr. A.H.M. Mushfiqur Rahman, Deputy Attorney General. ... For the Respondent No.1 None For the Respondent No. 2. Mr. Akhter Imam with Mr. Syed Mamun Mahbub and Mr. Jinnat Ali, Advocates ....For the Respondent No.3 Dr. Rafiqur Rahman, Advocate Amicus Curiae
Heard on: The 4th, 27th April, 23rd May, 17th,18th, 23rd and 24th July, 2005.
Judgment on: The 29th August, 2005. Present: Mr. Justice A.B.M. Khairul Haque And Mr. Justice A.T.M. Fazle Kabir
A.B.M. Khairul Haque,J.PART I: Back-ground History: This case has a long and a chequered history. One Pak Italian Marble Works Limited, a private limited company, registered with the Joint Stock Companies of the erstwhile East Pakistan, became owner of the premises at holding No. 11, Wise Ghat, Police Station, Kotwali, Dhaka, in 1962.The said company, on taking loans from Industrial Development Bank, constructed a cinema hall known as Moon Cinema Hall in 1964. After liberation of Bangladesh, some people taking advantage of poor law and order situation prevailing at that time, took forcible possession of the said cinema hall in or about the last week of December, 1971, from the staff of the company. Subsequently, by a notification being Notification No. 186-SI dated December 31, 1971, published in Bangladesh Gazette Extra-Ordinary on January 3, 1972, the management of the Moon Cinema House was taken over with effect from the said date of notification, by the Ministry of Industries and it was made over to the Management Board, purportedly in pursuance of the Acting Presidents Order No. Sec XI/1M/35/71/17 dated December 30, 1971 (Annexure-E). In the meantime, under order of the Department of Trade and Commerce , Government of Bangladesh, the name of the company was changed to Bangladesh Italian Marble Works Ltd. by an order dated 28.11.1972, passed by the Registrar, Joint Stock Companies, Bangladesh 3 3
(Annexure-A). This company is the petitioner no.1, while the Petitioner no. 2 is its Managing Director. The Moon Cinema hall is an asset of the petitioner-company.1
Supremacy of the Constitution:

In commensurate with the noble visions spelt out in the preamble, Article 7 proclaims that all powers in the Republic belong to the people of Bangladesh and the Constitution being the solemn expression of their will, is the supreme law of the Republic. Article 7 reads as follows: 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of this Constitution. (2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. Article 7(1) emphatically proclaims that all powers of the Republic belong to the people and their exercise on their behalf shall be effected only under and by the authority of this Constitution. Article, 7(2) is equally significant. It proclaimed that the Constitution is the Supreme Law of the Republic being the solemn expression of the will of the people that any other law which is inconsistent with the Constitution that other law shall, to that extent of the inconsistency, be void. Article-7 is an unique one and is not found in any other Constitution. It emphatically without any ambiguity, declares the supremacy of the Constitution in no uncertain terms. In the case of Md. Shoib V. Government of Bangladesh 27 DLR(1975) 315, this concept has been noticed. D.C. Bhattacharya, J. held at para-20, page-325 : In a country run under a written Constitution, the Constitution is the source of all powers of the executive organs, of the State as well as of the other organs, the Constitution having manifested the sovereign will of the people. As it has been made clear in article 7 of the Constitution of the Peoples Republic of Bangladesh that the Constitution being the solemn expression of the will of the people, is the Supreme law of the Republic and all powers of the Republic and their exercise shall be effected only under, and by the authority of, the Constitution. This is a basic concept on which the modern states have been built up. (The underlinings are mine ). This Article-7 is the touch-stone in the construction of the Constitution which provides for undoubted supremacy of the Constitution. In the case of Anwar Hossain Chowdhury etc. V. Bangladesh (1989) BLD (Spl) 1, B.H. Chowdhury J. (as his Lordship then was) analysed Article 7 in this manner at para-52, page-60:
1
WRIT PETITION NO. 6016 OF 2000
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On analysis the Article reveals the following: (a) All powers in the Republic belong to the people. This is the concept of sovereignty of the people. This echoes the words of the proclamation by the mandate given to us by the people of Bangladesh whose will is supreme. (b) This exercise on behalf of the people shall be effected only under, and by the authority of this Constitution. Limited government with three organ performing designated functions is envisaged. In the Proclamation it was said the President shall exercise all the Executive and Legislative powers of the Republic till such time as Constitution is framed and he will do all other things that may be necessary to give to the people of Bangladesh an orderly and just Governement. Hence separation of Powers emerges as a necessary corollary of designated functions; (c) Supreme Law of the Republic. That points to supremacy of the Constitution because; (d) Any law is void to the extent of inconsistency with the Supreme Law (i.e. the Constitution) which therefore contemplates judiciary; (e) Supreme Court with plenary judicial power for maintenance of the supremacy of the Constitution. His Lordship further held at para-149-150, page-84 : 149. Our Article 7 has reflected the wisdom of the past and the learning of the history. Therefore it has said categorically: (1) All powers in the Republic belong to the peoplethis is a concept of sovereignty of the people. Sovereignty lies with the people not with executive, legislature or judiciaryall these three are creations of the Constitution itself. (2) They are exercised on behalf of the people shall be an effected only, under,and by the authority of the Constitution. This is the concept of limited Government based on theory of separation of powers and then Article 7(2)says significantly that this Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic - This is the supreme law not in theory because it says if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. 150. Law as defined in Article 152 means any Act, ordinance, orders rule and regulations bye-law notification or other legal instruments and any custom or usage having the forces in law in Bangladesh. Article 7 says that if any law is inconsistent with the Constitution that law shall to the extent of inconsistency be void. When Article 26 says about the inconsistency of any law with the fundamental right to be void, Article 7 operates in the whole jurisdiction to say that any law and that law includes also any amendment of the Constitution itself because Article 142 says that amendment can be made by Act of Parliament. Therefore if any amendment which is an Act of Parliament contravenes any express provision of the Constitution that amendment act is liable to be declared, void. So says Article 7. But by whom this declaration is to be made? It is the executive which initiates the proposal for law. It is the legislature that passes the law. Then who will consider the validity or otherwise of the law-obviously the judiciary. His Lordship further approved the contention of Mr. Syed Ishtiaq Ahmed, at para-198, page-97, that Article 7 stands like a statue of liberty. Mustafa Kamal, J. (as his Lordship then was) in Kudrat-E-Elahi Panir V. Bangladesh 44 DLR AD (1992) 319, in acknowledging its importance held at para-72, that Article 7(1) says that all powers in the Republic belong to the people. In this manner Article 7 declares the supremacy of the Constitution as
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stated in the fourth paragraph of the Preamble. The second paragraph of the Preamble in the original Constitution, spells out the high ideals of the Republic. This paragraph reads as follows: Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution; Our liberation war was fought on these high ideals of nationalism, socialism, democracy and secularism. These high ideals inspired our heroic people to dedicate themselves and our brave martyrs to sacrifice their lives in the national liberation struggle.
The Proclamation on August 20, 1975:

Let us then first consider the Proclamation dated August 20, 1975. It reads as follows :PROCLAMATION The 20th August, 1975. Whereas I, Khandaker Moshtaque Ahmed, with the help and mercy of the Almighty Allah and relying upon the blessings of the people, have taken over all and full powers of the Government of the Peoples Republic of Bangladesh with effect from the morning of the 15th August, 1975. And whereas I placed, on the morning of the 15th August, 1975 , the whole of Bangladesh under Martial Law by a declaration broadcast from all stations of Radio Bangladesh; And whereas, with effect from the morning of the 15 th August, 1975, I have suspended the provisions of article 48, in so far as it relates of election of the President of Bangladesh, and article 55 of the Constitution of the Peoples Republic of Bangladesh, and modified the provisions of article 148 thereof and form I of the Third Schedule thereto to the effect that the oath of office of the President of Bangladesh shall be administered by the Chief Justice of Bangladesh and that the president may enter upon office before he takes the oath; Now, thereof, I, Khandaker Moshtaque Ahmed, in exercise of all powers enabling me in this behalf, do hereby declare that(a) I have assumed and entered upon the office of the President of Bangladesh with effect from the morning of the 15th August, 1975; (b) I may make, from time to time, Martial Law Regulations and Orders(i)providing for setting up Special Courts or Tribunals for the trial and punishment of any offence under such Regulations or Orders or for contravention thereof, and of offences under any other law; (ii)prescribing penalties for offences under such Regulations or Orders or for contravention thereof and special penalties for offences under any other law; (iii)empowering any Court or Tribunal to try and punish any offence under such Regulation or Order or the contravention thereof; (iv) barring the jurisdiction of any Court or Tribunal from trying any offence specified in such Regulations or Orders; (c) I may rescind the declaration of Martial Law made on the morning of the 15 th August, 1975, at any time, either in respect of the whole of Bangladesh or any part thereof, and
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may again place the whole of Bangladesh or any part thereof under Martial Law by a fresh declaration; (d) this Proclamation and the Martial Law Regulations and Orders made by me in pursuance thereof shall have effect notwithstanding anything contained in the Constitution of the Peoples Republic of Bangladesh or in any law for the time being in force; (e) the Constitution of the Peoples Republic of Bangladesh shall, subject to this Proclamation and the Martial Law Regulations and Orders made by me in pursuance thereof, continue to remain in force; (f) all Acts, Ordinance, Presidents Orders and other Orders, Proclamations rules, regulations, bye-laws, notifications and other legal instruments in force on the morning of the 15th August, 1975, shall continue to remain in force until repealed, revoked or amended ; (g) no Court, including the Supreme Court, or tribunal or authority shall have any power to call in question in any manner whatsoever or declare illegal or void this Proclamation or any Martial Law Regulation or Order made by me in pursuance thereof, or any declaration made by or under this Proclamation, or mentioned in this Proclamation to have been made, or anything done or any action taken by or under this Proclamation, or mentioned in this Proclamation to have been done or taken, or anything done or any action taken by or under any Martial Law Regulation or Order made by me in pursuance of this Proclamation ; (h) I may, by order notified in the official Gazette, amend this Proclamation. (The underlinings are mine) It appears that on the 15th August, 1975. Khandaker Moshtaque Ahmed, seized all and full powers of the Government of Bangladesh and assumed and entered upon the office of the President of Bangladesh. We shall first consider the legal position in this respect.1
The Rule of Law:

The next question is whether the Constitution (Fifth Amendment) Act, 1979, violates the principle of rule of law. We have already held that the Martial Law Proclamations etc, were all illegal and were issued without lawful authority. This question has become pertinent because by this amendment no new right or obligation, either of the State or its citizens has been created, rather, this amendment ratified, confirmed and validated the preceding Martial Law Proclamations, MLRs and MLOs and the actions taken thereon.
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Bangladesh Constitution
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In this connection, it should be noted that Rule of Law means, supremacy of law. It means all are treated equally under the law in accordance with the same yardstick of standard as opposed to arbitrary exercise of power. It means, from the highest in the country to the lowliest, all must submit to law and law alone. It means that there cannot be any divergence of approach in dispensing justice but must be on equal footing in all respect. Above all, it implies the notion of liberty. Besides, so far the Executive is concerned, it must also be a Government under the law. A. V. Dicey in his An Introduction to the Study of the Law of the Constitution, 10th Edition (1959), explained the meaning of the Rule of Law which has profound influence on the thoughts in this branch of discipline in Constitutional Law. Dicey summed up at pages-202-3: That rule of law, then, which forms a fundamental principle of the constitution, has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals. The rule of law, lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land. But Stanley de Smith viewed the ideas of Dicey as only his idiosyncracy. His notion of rule of law is as follows : ..One can at least say that the concept is usually intended to imply (i) that the powers exercised by politicians and officials must have a legitimate foundation; they must be based on authority conferred by law; and (ii) that the law should conform to certain minimum standards of justice, both substantive and procedural. (Qoted from the Constitutional And Administrative Law By Stanley de Smith and Rodney Brazier, Eighth Edition at page-17). But the obligation to obey law was shown long ago in 399 B. C by Socrates. We learn from the writings of Plato that Anytus and Meletus and other democratic leaders of Athens charged Socrates that he was an atheist because he believed in one God instead of many and that he was corrupting the minds of youths of Athens who were his pupils. The crowd of Athens decreed that he should drink the hemlock. His friends offered him an easy escape but he refused, rather, accepted the verdict in obedience to the law of Athens although he knew that he was not wrong, but preferred death than giving up his right to free thought. This English principle of rule of law or the American concept of due process law was first found place in the Magna Carta. The Great Charter of the Barons was accepted by the King John of England in June 15, 1215 at Runnymede. Clause 39 and 40 are : 39. No free man shall be taken 3 8
or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. 40. To no one will we sell, to no one will we deny or delay right or justice.(Quoted from 1215 The year of Magna Carta by Danny Danziger & John Gillingham, 2003). In the Thirteenth Century, Henry de Bracton was a Judge during the reign of King Henry III. He had the courage to write in his Treatise : Quod Rex non debet esse sub homine, Sed Sub Deo et Lege (That the King should not be under man, but under God and the law). At that time and thereafter on the divine right to rule asserted by the Kings of England, Bracton was quoted time and again to the their annoyance who took it not only as an affront but as a treason specially by the Stuart King James I. Earlier, during the reign of Edward III, men were arbitrarily imprisoned without legal process, as such, in those early years of the Parliament in England in enacting a provision in 1354, debarring such arbitrary action, used the words due process of law: that no man, of what estate or condition that he be, should be put out of his lands or tenements, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law: (Quoted from Select Documents of English Constitutional History, 1910,
Edited by George Burton Adams and H. Morse Stephens, from clause IV of The Petition of Right, at page-340). (The underlinings are mine). This provision was enacted long before
the enactment of the Fifth Amendment of the U.S. Federal Constitution in 1791. James I, on coming to the English throne, initially tried to assert his divine right to be the King but on the remonstrance of the Commons, Lord Salisbury reported to the House of Lords that the King had acknowledged that, although he derived his title from his ancestors, yet the law did set the crown upon his head, and that he was a king by the common law of the land. (1610) (Quoted from English Constitutional History By Thomas Pitt Taswell Langmead, Tenth Edition, 1946, Page- 384 n.p.). At about this time, Moghal Emperor Jahangir, after his ascension to the throne in 1605, hung a great golden chain with sixty bells in his palace so that any man of however humble calling, could pull it in order to draw his attention, so that the Emperor could readily redress his grievance and grant relief to his sufferings. The purpose was obviously to see that even handed justice is dispensed with. In Ashby V. White (1703), White, the Tory mayor and other returning officers refused to accept the vote of Ashby, a whig in the election for Aylesburg. The plaintiffs action for damages failed in the Kings Bench. But the dissenting views of Holt C.J., which was upheld by the House of Lords, was as follows : If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.(Quoted from Administrative Law By H. W. R. Wade, Fifth Edition, 1982 at page-670). But long before that when Hajrat Umar Farooq (R.A), was elected as the Caliph in 633 A.D, he not only appointed Qadis for every district but issued the following instructions : Praise to God. Verily Justice is an important obligation to God and man. You have been charged with this responsibility. Discharge the responsibility so that you may win the approbation of God and the goodwill of the people. Treat the people equally in your presence, in your company, and in your decisions, so that the weak despair not of justice, and the highplaced have no hope of your favour. The onus of proof lies on the plaintiff. He who denies must do so on oath. Compromise is permissible, provided it does not turn the unlawful into lawful, and the lawful into unlawful. (Quoted from Prof. Masud-ul- Hasan on Hadrat Umar Farooq, Second Edition, 2001, at page-167-8). 3 9
This shows that the spirit of Rule of Law was present so long ago in Arabian Peninsula on the advent of Islam. The American verson of the rule of law was contained in the Fifth Amendment of Federal Constitution. This amendment was proposed by Madison and was ratified in 1791 along with nine other amendments which together are known as the Bill of Rights. The said Fifth Amendment reads as follows : No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in case arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness ageist himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Now let us test the constitutionality of the Constitution (Fifth Amendment) Act, 1979. This amendment Act sought to legalise the following among others: i) The seizure of office of President of Bangladesh by Khondaker Moshtaque Ahmed on August 15, 1975, ii) Change of Article 48, 55 and 142 of the Constitution by Khondaker Moshtaque Ahmed, iii) Proclamation of Martial Law, iv) Made the Constitution subordinate and subservient to the Proclamation of Martial Law, v) Ousted the jurisdiction of Court including the Supreme Court, vi) Nomination of Justice Abusadat Mohammad Sayem as President of Bangladesh on November 6, 1975; vii) Proclamation issued on November 8, 1975, and assumption of the powers of Chief Martial Law Administrator, viii) Dissolution of the National Asembly, ix) Omission of The Bangladesh Collaborators (Special Tribunal) Order, 1972, x) Deletion of proviso to Article 38 of the Constitution, xi) Deletion of the amendments made by the Fourth Amendment of the Constitution, save and except the provisions in respect of the office of the President, the control and discipline of Subordinate Courts and also Article 116A. xii) Proclamation dated November, 1976, appointing Major General Ziaur Rahman B.U., psc., the Chief of Army Staff, as the Chief Martial Law Administrator, xiii) Various Proclamation Orders, Martial Law Regulations and Martial Law Orders, xiv) Nomination of Major General Ziaur Rahman B.U., psc., as the President of Bangladesh by an Order dated April 21, 1977. xv) Change of the Preamble and Article 6, 8, 9, 10, 11, 25, 42, 93 and 142 of the Constitution and addition of Article 92A therein. xvi) Paragraph 3A to the Fourth Schedule to the Constitution, legalising all Proclamations, MLRs and MLOs and the actions taken thereon, which were kept out side the jurisdiction of the Court, xvii) The Referendum Order, 1977 (Martial Law Order No. 1 of 1977) dated May 1, 1977 and various other Proclamations, MLRs, MLOs etc. including Martial Law 4 0
Regulation No. VII of 1977 and the actions taken thereon, till the lifting of the Martial Law on April 7, 1979. The election of the Second Parliament was conducted in February, 1979, during Martial Law. At that time, Lieutenant General Ziaur Rahman, B.U., psc., was the President and the Chief Martial Law Administrator. The Constitution (Fifth Amendment) Act, 1979, was passed on April 6, 1979, legalizing all the Proclamations, Martial Law Regulations, Martial Law Orders and the actions taken thereon, some of which are mentioned above.
The Proclamations (Amendment) Order, 1977 (Proclamations Order No. 1 of 1977) (Annexure-L-1 to the writ petition), replaced many of the paragraphs in the Preamble and in various provisions of the Constitution. The Proclamation was published in Bangladesh Gazette Extraordinary on April 23, 1977. This Proclamation made the following changes in the Constitution, amongst others:1 Original Constitution 1. First Paragraph of the Preamble: We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March 1971 and, through a historic struggle for national liberation, established the independent, sovereign Peoples Republic of Bangladesh; Proclamations (Amendment) Order, 1977 1. First Paragraph of the Preamble: We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through [a historic war for national independence], established the independent, sovereign Peoples Republic of Bangladesh; Original Constitution 2. Second Paragraph of the Preamble: Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the constitution; Proclamations (Amendment) Order, 1977 2. Second Paragraph of the Preamble: Pledging that the high ideals of absolute trust and faith in the almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicated themselves to, and our brave martyrs to sacrifice their lives in, the war for national independence, shall be the fundamental principles of the Constitution; Original Constitution 3. Article-6: Citizenship of Bangladesh shall be determined and regulated by law; citizens of Bangladeshshall be known as Bangalees. Proclamations (Amendment) Order, 1977
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WRIT PETITION NO. 6016 OF 2000
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3. Article-6: (1) The citizenship of Bangladesh shall be determined and regulated by law. (2) The citizens of Bangladesh shall be known as Bangladeshis. Original Constitution 4. Article-8: (1) The principles of nationalism, socialism, democracy and secularism, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy. (2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable. Proclamations (Amendment) Order, 1977 4. Article-8: [(1) The principles of absolute trust and faith in the almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy. (1A) Absolute trust and faith in the Almighty Allah shall be the basis of all actions.] (2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable. Original Constitution 5. Article-9: The unity and solidarity of the Bangalee nation, which, deriving its identity from its language and culture, attained sovereign and independent Bangladesh through a united and determined struggle in the war of independence, shall be the basis of Banglaee nationalism. Proclamations (Amendment) Order, 1977 5. Article-9: The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.
Original Constitution 6. Article-10: A socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man. Proclamations (Amendment) Order, 1977 6. Article-10: Steps shall be taken to ensure participation of women in all spheres of national life. Original Constitution 4 2
7. Article-12: The principle of secularism shall be realized by the examination of(a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; any discrimination against, or persecution of, persons practicing a particular religion. Proclamations (Amendment) Order, 1977 7. Article-12 was deleted. Original Constitution 8. Clause 2 of Article-25 was not there. Proclamations (Amendment) Order, 1977 8. Article-25: [(2) The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidatiry.] Original Constitution 9. Article: 38: Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: Provide that no person shall have the right to form, or be a member or otherwise taken part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose. Proclamations (Amendment) Order, 1977 9. Article: 38: Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health. Original Constitution 10. Article-42: (2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with or without compensation, and in a case where it provides for compensation shall fix the amount or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that it does not provide for compensation or that any provision in respect of such compensation is not adequate. Proclamations (Amendment) Order, 1977 10. Article-42: (2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.
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Chapter Six
Political aim of Fifth Amendment
Bangladesh Supreme Court will decide in less than 15 days, as to whether religion based politics including Islamist politics and political parties can continue in the country. The court will decide on the fate of the 5th Amendment in the Article 38 of Bangladeshi Constitution. If the 1972-constitution of the country will be replaced by the present amended constitution and its Article 38, religion based politics, including Islamist political parties will be banned in the country.1 On April 1979, Bangladeshi Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution. It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the Constitution an Islamic character, the Preamble of the Constitution was changed in: "Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fundamental principle of the Constitution." It may be mentioned that the Islamic character to Bangladeshi Constitution was given in 1976 by the Second Proclamation [6th Amendment Order, 1976], which was later ratified by Parliament in 1979. By operation of the original Article 38 [of 1972], no citizen had the right to form or take part in the activities of any organisation which has been formed on the basis of religion with a view to pursuing a political purpose. On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Bangladesh Awami League, which came in power in January 2009 and on an application submitted by the new Government on 3rd January 2010, the previous Government's appeal was withdrawn and the stay granted has been vacated. In the 1972 constitution of Bangladesh it is clearly mentioned that, formation of any religion based political party or organization or group will not be allowed in this country. If the 1972 constitution will be restored, Islamist and religion based political parties and groups like Jamaat-e-Islami, Nezame Islami, Islamic Oikya Jote [Islamic Unity Front], Khelafat Majlish, Khelafat Andolan, Hizbut Towhid, Khatmey Nabuat Andolan, Muslim
1
Bangladesh banning Islamist politics,by Salah Uddin Shoaib Choudhury July 14, 2010
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League, Bangladesh Hindu League, Bangladesh Hindu Grand Alliance, etc will automatically become ineligible in continuing activities in Bangladesh. It may be mentioned here that, Hizbut Towhid has already been listed as one of the Islamist terror outfits in the country. Ruling secularist Awami League government in Bangladesh on April 2009 blacklisted 12 Islamist militant groups. These are: Harkatul Jihad Islami [Huji], Jamaatul Mujahedin Bangladesh [JMB], Jagrata Muslim Janata Bangladesh [JMJB], Shahadat-e-Hiqma [SHE], Hizb-Ut-Towhid [HuT], Islami Samaj, Ulema Anjuman At Baiyinaat, Hizb-UtTahrir, Islamic Democratic Party [IDP], Touhid Trust, Tamir Ud Deen and Allah's Dal. Of these groups, JMJB, Huji, SHE, and JMB were banned during the previous BNPJamaat Coalition government in Bangladesh. Sheikh Hasina's government, which came in power in January 2009 so far, banned Hizb-Ut Tahrir only. Banning other notorious Islamist groups such as Hizb-Ut-Towhid is being delayed as it was already alleged that, some of the influential figures in the government were actively trying to save this group from being banned. Both Hizb-Ut-Tahrir and Hizb-Ut-Towhid are fanatic ultra Islamist, anti-Semitic and anti-West outfits in Bangladesh with huge number of militants as members. Good news is, by declaring the Fifth Amendment unlawful; the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25[2] of the Constitution provided as follows: "The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity." In such case, Bangladesh may not anymore incline in expressing undue solidarity towards Palestine and Jihadists like Hamas. Naturally this will turn Bangladesh as more acceptable ally for the West, especially those nations combating Islamist militancy. According to constitution experts, once the Supreme Court verdict will be declared, religion based parties and groups will not be allowed to continue activities in the country. Furthermore, there will also be some changes in the constitution of Bangladesh. Presently, in the amended version of the constitution, it is clearly written that, "Bangladesh will have full trust and dependence on Allah". The verdict will also decide the main ideology of the country. It may be mentioned here that, Bangladesh was created under secularist ideology. Former military dictator Hussain Muhammed Ershad, who leads a political party named Jatiyo Party in Bangladesh, and now one of the prominent partners of the present coalition government, established Islam as the State religion of the country, when he was in power [1982-1990]. In the electoral manifesto, Ershad declared to establish Sharia law in Bangladesh. It is not clear as to whether the ruling party will ignore such electoral pledges of its coalition partner, while enforcing the Supreme Court verdict. The ruling Bangladesh Awami League also signed a treaty with ultra Islamist party named Bangladesh Khelafat Majlish in 2006 for establishment of Sharia law in the country, once it is elected in power. This treaty was later scrapped by Awami League at massive 4 5
reaction of intellectuals and secularist forces as well as strong criticism by some local newspapers, led by our newspaper, Weekly Blitz. Commenting on the possible replacement of the present constitutional provisions in Bangladesh, leader of religious minority group in Bangladesh, Govinda Chandra Paramanik said, "We fought the war of liberation in 1971 with the hope of seeing a secular Bangladesh, freed from the grips of Pakistani occupation regime. But, our aspiration and hope had never turned true. Since independence of the country, we are greatly deprived of various rights. Till date, no government took real initiatives in scrapping the Vested Property Act, thus returning properties of Hindus in Bangladesh. Abduction and forceful conversion of Hindus are continuing, while even during the present government, our temples and deities are being attacked and demolished by the thugs belonging to the ruling party. We really want to see that, Bangladesh is completely freed from the grips of Islamist and fanatic religious notions." Though, personally I don't want to be over optimistic on the possible implementation of the much awaited verdict of the Supreme Court, but, truly it is aspired that, Sheikh Hasina, who now leads the government, will possibly, uphold the principles and ideologies of her father, Bangabandhu Sheikh Mujibur Rahman. During his entire life, till being brutally assassinated by some derailed army officers in 1975, Bangabandhu Sheikh Mujibur Rahman fought against Islamists and religious fanatics. For such heroic role of this man, he rightly deserves appreciation and admiration of Bangladeshis as well as people in the world. While we shall have to wait for few more days for this historic verdict from Bangladesh Supreme Court, here is a small piece of good news! The current government in Bangladesh is going to launch Bangabandhu Sheikh Mujibur Rahman International Peace Prize, which will be equally prestigious as various international prizes such as Nobel Prize, Gandhi Prize etc. This prize will also consider several figures in the world, who are contributing in establishing peace as well combating religious extremism. No doubt, this prize itself shows a positive sign for many. Hopefully, Sheikh Hasina's government will adopt policies in strong-handedly dealing the Islamists and religious fanatics in Bangladesh. Changes made to the constitution in around four years after the August 15, 1975 changeover altered the fundamental principles of state policy, destroyed the secular character of the constitution and allowed politics based on religion. Besides, the changes replaced Bangalee nationalism with Bangladeshi nationalism, and provided political right to anti-liberation forces including Jamaat-e-Islami and war criminals that resulted in an alarming growth of political parties and organizations based on religion.
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All those amendments, modifications, substitutions, omissions and additions to the constitution were indiscriminately made during the martial law rule that began immediately after the assassination of Bangabandhu Sheikh Mujibur Rahman. And the constitution's Fifth Amendment bill passed in the second parliament during the rule of Ziaur Rahman in 1979 ratified all the actions that also made the supreme law of the land subordinate to martial law proclamations, orders and regulations. The August 29, 2005 High Court verdict that declared the Fifth Amendment illegal also said it undermined the very sovereign character of the republic. The Supreme Court on February 2 this year upheld the landmark HC verdict with 'modifications' and 'observations'. Copy of the apex court judgement might be released soon. Article 8 of the original constitution, which speaks of the four fundamental principles of state policy--nationalism, socialism, democracy and secularism -- was amended to omit secularism and insert the words "absolute trust and faith in Almighty Allah". The principle of socialism was also given a new explanation, saying, "socialism would mean economic and social justice". Socialism and freedom from exploitation in articles 9 and 10 were substituted by the concepts of promotion of local government institutions and participation of women in national life. The amendment omitted article 12, which contained secularism and freedom of religion. "These changes were fundamental in nature and changed the very basis of our war for liberation and also defaced the constitution altogether," the HC observed in its watershed verdict. The changes transformed secular Bangladesh into a "theocratic state" and "betrayed one of the dominant causes for the war of liberation of Bangladesh". Trial of war criminals stopped and their political rehabilitation began with the scrapping of Bangladesh Collaborators (Special Tribunal) Order 1972 by Khandaker Mushtaque Ahmed, who assumed presidency and put the country under martial law following the killing of Bangabandhu. By the second proclamation on May 3, 1976, Justice AM Sayem, who became president later, omitted the proviso to Article 38 of the constitution, which banned politics based on religion. In the light of the proviso, the Special Powers Act provides for punishment for use of religion for political purpose.
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But omission of the proviso radically altered the nature of political activities in the country. It led to the rise of religion-based political parties, which were constitutionally banned immediately after the independence for their anti-liberation role.1 The constitutional bar on war criminals convicted under Bangladesh Collaborators (Special Tribunal) Order 1972 from becoming voters and contesting parliamentary elections was also lifted during the rule of Zia. During his military rule, Zia brought some fundamental changes to the constitution by a proclamation on April 23, 1977. The preamble to the constitution was preceded by "Bismillah-ar-Rahman-ar-Rahim" (in the name of Allah, the Beneficent, and the Merciful). The preamble also underwent two changes--the words "a historic struggle for national liberation" were replaced with "a historic war for national independence", and "nationalism, socialism, democracy and secularism" were replaced with "absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice".
Chapter Seven
Bangladesh and 1972 Constitution

There are some very significant reasons why we should be going back to the Constitution as it was drafted, deliberated upon and adopted in 1972. It matters little what its
1
Hasanuzzaman, Search for a New Dimension, P.20
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detractors happen to be saying about it. There are some who think that Bangladesh will never go back to 1972. You tend to wonder why they should be saying that. Such men have always been vociferous defenders of the infamous Fifth Amendment, a piece of paper that will always be remembered for all the notoriety it brought into Bangladesh's politics between August 1975 and April 1979, and even beyond that. When you place that amendment in juxtaposition to the 1972 Constitution, you know what your preference ought to be. The 1972 Constitution is by far the best and most eloquent instance of our self-expression as a nation. And it is because you have within it all those principles that went into the forging of Bengali nationhood, into an espousal of the four ideals which governed our thoughts as we waged war against the state of Pakistan in 1971. For those of us who were witness, either on the fields of battle or in internal exile in occupied Bangladesh, to the villainy that could be committed by an army and by the very state it spoke for in the name of national integrity and in defence of what was clearly fake religiosity, thoughts of nationalism, democracy, secularism and socialism were patently the new and needed underpinning of our collective life as a nation. And yet, when you examine the historical parameters of Bengali heritage, you realise only too well that these four principles had always been at work among Bengalis. What occurred in 1947, when we decided to be part of Pakistan, was but an aberration. And no matter how some people might inform you that Partition was inevitable, that the two-nation theory was the dominant reality of the time, you know in your heart and in your soul that it was anything but the truth. And we paid grievously for it. As a matter of fact, the communalism that was inaugurated in the 1940s lingers, in diverse ways, all across the subcontinent. The battle for Bangladesh in 1971 was, from the historical as well as philosophical perspective, a necessity in order for communalism, for an unnatural course of politics, to be set aside. That we were first of all secular Bengalis and not communal East Pakistanis was what increasingly came to be reasserted in the 1950s (think of the Jukto Front and, before that, the language movement) and reinforced through the 1960s. The War of Liberation simply formalised, through the supreme sacrifices of three million Bengalis, that secular Bengali spirit. The Constitution of 1972 was but a moral and legal adoption of that spirit. In the 1972 Constitution lay embedded the highest ideals of political liberalism. That the state of Bangladesh was the abode of everyone who inhabited it, everyone across the frontiers of faith, was the point the Constitution drove home. Religion, having regularly been an excuse for Pakistan's rulers to explain away their political misconduct and their racial prejudices (what was done to East Pakistan was
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political and economic exploitation resting on deep-seated racism on the part of West Pakistan), was restored by the 1972 Constitution to its proper, noble place. That is the good bit in the story. The bad came in with the Fourth Amendment to the 1972 Constitution. It was a bad move, an ominous one. And those who advised Bangabandhu to go for it did not quite realise the risks the country was being put to, even if a single-party state made sure that the four state principles remained intact. The Fourth Amendment, you can say in hindsight, was the perfect opportunity old Pakistan enthusiasts needed to destabilise Bangladesh. General Ziaur Rahman saw that opportunity through to reality. He had no business tampering with the Constitution. But since it has been the rule with dictators to play God, Zia thought he could do a bit of tinkering with 1972. And the moment he did that, through giving the Constitution a dash of the communal, he opened the floodgates to disaster. Had Bangladesh been a proper democracy constituted of a politically enlightened citizenry, the general and those who humiliated the country thus would have been held guilty of sedition. If Zia hurled the first blow at the 1972 Constitution, General Hussein Muhammad Ershad followed with the next. He thought, in the infinity of his wisdom, that the state of Bangladesh was in dire need of a religion. People need religion. But Ershad told us Bangladesh needed a religion. Now the fallen dictator would like us to know that Bismillah and the state religion should not be tampered with. But that is not our concern, is it? Our worry has more to do with the fact that two military dictators have tampered with the 1972 Constitution. It is that constitution we must go back to if we mean to have secular democracy flourish in our land. Ah, but democracy must touch the lives of all citizens. Which is why the 1972 Constitution, in its restored, retouched and rejuvenated form, must enshrine within it the political and historical rights of all the tribes, all the sub-cultures who have inhabited this territory for ages. They are the Chakmas, Marmas, Mros, Santals and so many others. Do not sacrifice them only because Bengalis happen to be the bulk of the population.
Chapter Eight
New Constitution for present situation of Bangladesh

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The spirit of democracy cannot be imposed from without. It has to come from within. The spirit of democracy is not a mechanical thing to be adjusted by abolition of forms. It requires change of the heart. Mahatma Gandhi The political landscape of Bangladesh has gone through dramatic changes during the last few years. After 15 years of continuous rule by elected governments since 1991, the democratic system collapsed: an army-backed Caretaker Government (CTG) took over; a state of emergency declared, and the Parliamentary elections scheduled to be held on January 22, 2007 were postponed. After nearly two years of rule by a non-elected government, the elections to the 9th Parliament were finally held on December 29, 2008. The elections, considered to be free and fair by major national and international observers, led to a democratic transition. However, a democratic transition does not necessarily guarantee democratic consolidation, although such consolidation must be the priority for Bangladesh for the coming years. At the biennial conference of the World Forum for Democratization in Asia (WFDA) held in Manila in September 2007, a Framework for Action was adopted which focused on global participation, regional strategies and country-specific priority areas, including for Bangladesh. The purpose of this paper is to identify all the reforms and changes, including changes in priority areas, made over the last couple of years. The paper also identifies the major priorities that must be pursued to consolidate the democratic transition set in motion by the national elections of last December, and which must be our top future priority.
Challenges for Bangladesh Identified

The Framework of Action, 2007-09 identified the following challenges and possible actions for Bangladesh for the last two years: 1a. Strategic and practical issues of addressing the democratic deficit in the constitution and the constitution-making processes in order to integrate various international covenants and declaration related to human rights and democratic polity as well as institutional issues related to Election Commission, Anti-Corruption Commission, Human Rights Commission, etc. b. Reversing the militarization and anti-constitutional processes that have been set off by the events of January 11, 2007 plus the consequent political pitfalls. c. Engaging with development partners to review their perceptions, analysis and role in Bangladesh and their increasing gap with the democratic aspiration of the people. d. Prompting a stakeholders dialogue among political parties and popular organizations promoting human rights. Therefore, WFDA will: 11.1 Campaign against human rights violation and request the government to follow strict judicial process and rule of law in the trials of political leaders. 5 1
1.2 Campaign against extra-judicial killings and intensify observations and reporting to UN Human Rights Commission. 1.3 Take initiative for a stakeholder dialogue involving human rights organizations, popular mass organizations, political parties, government, army, business communities, womens organizations, local government representatives and other state and non-state actors before the situation in Bangladesh become further polarized. 11.4 Initiate research on constitutional issues in order to address democratic deficits as well as appropriate processes to be undertaken to involve all sections of the population aspiring to democracy. Immediate focus will be strengthening the Election Commission, supporting an Independent Judiciary that can deliver justice, particularly to the poor and the disadvantaged, and strengthening anti-corruption mechanism and institutions.1
Summary of Priorities for 2009-11 As shown above, significant changes and reforms have taken place in Bangladesh over the last two years. In many cases, the changes made under the Caretaker Government went far beyond the priorities set forth in the Framework for Action laid out two years ago although some the advances were reversed by the newly elected government in December 2008. Nevertheless, it must be noted that serious deficits continue to plague our democratic system. If we are now to overcome the deficits and achieve a consolidation of our democratic system, the progress already made must be built upon and, in the coming years, new initiatives must be pursued in previously neglected areas. The priorities thus identified may be summarized as follows: 1 Review and revise constitutional provisions in order to do away with imperial premiership, a state of affairs inconsistent with a democratic system characterized by adequate checks and balances. Elevate the position and prestige of the presidency by making it more than ceremonial. A larger electorate consisting of both Parliament members and elected local representatives is needed to determine the presidency. 2 Ensure a total democratic polity by creating a system of vibrant local democracy through elected local government bodies at each administrative level and by freeing those bodies from the controlling authority of MPs. These local government bodies must, of
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Professor Badiul Alam Majumdar, Secretary, SHUJAN Citizens for good Governance (13/9/09)
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course, be autonomous as well as transparent, responsive, inclusive and accountable to the people. Needless to say, promoting local democracy will be consistent with a system of decentralized governance, which must also be a top priority for Bangladesh in the coming years. Formulate an all-encompassing systemic and institutional reform agenda so that the Caretaker Government system could be removed before the election of the 11th Parliament, and the elected government, after expiry of its term, could be set up to play the caretaker role during elections. Ensure the effectiveness of Parliament by focusing the energies of MPs on legislative matters and oversight functions and by requiring the neutrality of the speaker. Enhance legislative skills of the MPs and the quality of the deliberations in the Parliament so that important policy issues are truly addressed and the Parliament becomes more than a rubber-stamping body. 1 Amend Article 70 of the Constitution, which prevents MPs from voting their conscience. Formulate a code of conduct for MPs requiring them to identify their areas of conflicts of interest; enforce the code through a Parliamentary Ethics Committee; ensure the declaration wealth by MPs; and severely penalize parliamentary boycotts. Create a citizen watchdog body to monitor the performance of the Parliament. Ensure that only those who are genuinely interested in public service are nominated to be elected to the Parliament in the future. Initiate judicial reform to enhance peoples confidence in the institution. To achieve such a goal: remove any partisan and incompetent judges; stamp out corruption from the system; ensure the use of due diligence in future appointments of judges, and provide the poor and the disadvantaged with access to justice. Initiate administrative reforms to make the bureaucracy non-partisan, effective and efficient, to infuse the spirit of public service, and to do away with clientalism. Police reform must also be part of this reform agenda. Strengthen the Election Commission by giving it the necessary power and authority to initiate the required electoral reforms for holding free and fair elections; reduce the influence of money on elections; enforce the disclosure requirement laws, and take action against candidates and parties for flouting the laws, rules and the codes of conduct. Political parties are the engines of democracy and hence genuine efforts must be made to make the parties democratic, inclusive, financially transparent and also accountable to their members. Political parties must respect the requirements of their registration and abide by the conditions both in terms of letters and spirit. They must not act like syndicates. Governance of political parties must be professionalized and internal discipline strictly enforced. Dialogue among political parties must also be promoted.
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Corruption poses one of the biggest threats to democratic consolidation, and hence high priority must be given to combating the problem. Government must show its seriousness by allowing the ACC to function independently and by providing support to its work. Information technology should be used as a tool in this effort. Ombudsmen should be employed in all government departments to address citizens grievances, including against wrongdoing by functionaries. Human rights violations, especially violations of the rights of the poor, minorities, and the disadvantaged and political opponents must be stopped. Campaigns against extrajudicial killings must be intensified. Poverty is, of course, the biggest affront to human rights and human dignity, and must be addressed by creating opportunities for the poor and giving them their due share of the national resources. Right to Information Act must be used as a tool to empower citizens to hold the government to account. Information campaigns must be carried out to make people aware of the RTI provision so that it can inspire a movement. Because of the extreme partisan behavior and patronage distribution of the government, civil society is in a state of serious decline in Bangladesh, which creates a genuine threat to democratic consolidation. Intimidation of civil society groups must be stopped and space must be given for its meaningful functioning. Initiatives must also be taken to build civil society from ground up by mobilizing all sectors of the society. Achieving the above priorities, although absolutely necessary for democracy to take deep roots in Bangladesh, will be a daunting task. It will require ironclad political commitment on the part of the government in power as well as from other political entities. It will also require citizen engagement and activism. The civil society and the media must, of course, play pivotal roles to create public awareness by mobilizing the people and instilling in them the concept of citizenship: the realization that they too have rights and responsibilities as well as the urgent obligation to get engaged.
Changes of Bangladesh Constitution: What the government is up to?

There have been ongoing controversies and debates on some aspects of the current Bangladesh Constitution, especially since the BAL government came to power in January 2009. No specific and written proposal has yet been published by the government; so we 5 4
are still in the dark about what Amendments (if any) are intended. The following discussions, therefore, are mainly academic and based on various comments made by the ruling party leaders on different occasions. The purpose is to enlighten the general public to Constitutional issues and stimulate constructive debates on a very serious national issue.1 Before going into any discussion, it is perhaps necessary to give a short account of the Amendments made to Bangladesh Constitution since its adoption after in 1972. The Fourteen Amendments made so far are as follows. First Amendment: In 1973, the Constitution (First Amendment) Act 1973 was passed inserting sub-art (3) in Article 47 whereby any law providing for the detention and trial of war criminals was kept out of the purview of the provision of Part III relating to fundamental rights. Second Amendment: The original Constitution did not have any provision for proclamation of state of emergency and preventive detention. By the Constitution (Second Amendment) Act 1973, Article 33 was amended providing for preventive detention and Part IXA was inserted conferring power on Parliament and the Executive to deal with emergency situations and providing for suspension of enforcement of the fundamental rights during the period of emergency. Third Amendment: The Constitution (Third Amendment) Act 1974 was passed to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota. Fourth Amendment: The Constitution (Fourth Amendment) Act 1975 made major changes into the Constitution. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the Parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. This Act (i) amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the Constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the Constitution; (iii) amended Part III of the Constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the President and its incumbent; (vii) inserted a new part, i.e. part VIA in the Constitution and (viii) inserted Articles 73A and 116A in the Constitution. Fifth Amendment: The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 thereto, which provided that all amendments, additions,
1
Written by Dr K M A Malik
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modifications, substitutions and omissions made in the Constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The expression Bismillah ar-Rahman ar-Rahim was added before the Preamble of the Constitution. The expression historic struggle for national liberation in the Preamble was replaced by a historic war for national independence. One party system was replaced by multiparty parliamentary system. Fundamental principles of state policy were made as absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice. Sixth Amendment: The Constitution (Sixth Amendment) 1981 was passed providing, inter alia, that if the Vice President is elected as President, he shall be deemed to have vacated his office on the date on which he enters upon the office of President. Seventh Amendment: The Constitution (Seventh Amendment) Act 1986 was passed ratifying all the Proclamations and Proclamation Orders and the amendments made in the Constitution by such Proclamations and Proclamations Orders and all actions of the Martial law authorities and declaring those to have been validly made and done. By the same Act the retiring age of the Judges of the Supreme Court was fixed at 65 in place of Eighth Amendment: The Constitution (Eighth Amendment) Act 1988 was passed amending Article 100 of the Constitution and thereby setting up six permanent Benches of the High Court Division outside the capital and authorising the President to fix by notification the territorial jurisdiction of the permanent Benches. By the same Act, Islam was made the state religion of Bangladesh. This Act also amended (i) the word 'Bengali' into 'Bangla' and 'Dacca' into 'Dhaka' in Article 5 of the Constitution, (ii) Article 30 of the Constitution by prohibiting acceptance of any title, honours, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the President. Ninth Amendment: The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for the direct election of the Vice-President; it restricted a person in holding the office of the President for two consecutive terms of five years each; it also provided that a Vice-President might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad. Tenth Amendment: The Constitution (Tenth Amendment) Act 1990 amended, among others, Article 65 of the Constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad. Eleventh Amendment: The Constitution (Eleventh Amendment) Act 1991 ratified all actions taken by the caretaker government headed by Justice Shahabiuddin Ahmed. It also ratified the appointment of Chief Justice Shahabuddin Ahmed as the Vice President who later became Acting President upon Ershads resignation. In addition, the Act also 5 6
confirmed and made possible the return of Acting President Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh. Twelfth Amendment: The Constitution (Twelfth Amendment) Act 1991 re-introduced the parliamentary form of government; the President became the constitutional Head of the State; the Prime Minister became the executive Head; the cabinet headed by the Prime Minister became responsible to the Jatiya Sangsad; the post of the Vice-President was abolished; the President was required to be elected by the members of the Jatiya Sangsad.
Thirteenth Amendment: The Constitution (Thirteenth Amendment) Act 1996 provided for a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and impartially. The caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the President and would stand dissolved on the date on which the Prime Minister entered upon his office after the Constitution of the new Sangsad.1 Fourteenth Amendment: The Constitutional (fourteenth Amendment) Act 1994 was passed providing, among others, the following provisions: reservation of 45 seats for women on a proportional representation basis for the next 10 years; increase in the retirement age of Supreme Court Judges from 65 to 67 years; and displaying of portraits of the President and the Prime Minister in all government, semi-government and autonomous offices and diplomatic missions abroad.
Choudhury, Dilara, Ibid, P.71
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Chapter Ten
Recommendations
It is observed from the above Research, that a few Amendments made at one time under certain compelling circumstances were subsequently removed by another Amendment, and also that several of these had a broad nationwide consensus. But a few of the Amendments were enacted without proper debates and thorough discussions involving all the stake holders including people adhering to different, sometime opposing, ideological or political views. Amendments that were the result of one-dimensional thought, lack of respect for democratic practices or expediency have obviously come under severe criticisms, sometimes for valid reasons and sometimes for sectarian political purposes. The BAL leaders want to amend the present Constitution, because according to them, the Constitution was made Communal by introducing the words Bismillah ar-Rahman arRahim in the preamble and by making Islam the state religion at the expense of the principle of Secularism. This brought about fundamental changes to Constitution, which is true in my opinion, but I am not sure whether this made Bangladesh more Islamic or communal than before. It is noted that equal rights, including freedom to practice all religions, are guaranteed in the Constitution. There may be some ambiguity and it is true that some fringe groups have been agitating for introduction of Sharia Law. This, of course, is scaring the religious minorities for the potential loss of their religious rights and freedom under an Islamic Republic in the style of Pakistan or Afghanistan under Taliban rule. Majority Muslims of Bangladesh are also concerned since such arrangements may encourage the extremist groups to adopt violent and terrorist methods for a change of the government and the system. The BAL leaders and their die-hard supporters allege that the Fifth Amendment is the root of all evils in Bangladesh, and that all mischief, corruption, intolerance, politics of conspiracy, Islamic Extremism and militancy, etc., started only after the overthrow of the BKSAL regime in 1975. But they remain conspicuously silent on the Fourth Amendment enacted by a civilian government which established a one-party (BKSAL) dictatorial system or even the Third Amendment which ceded Bangladesh territory to a different country. It is also alleged that the Fifth Amendment destroyed the values and spirit of the liberation war and so this should be cancelled. They argue that the original state principles (nationalism, democracy, socialism and secularism) as incorporated as fundamental state principles in the 1972 Constitution should be restored, to establish the Rule of Law and prevent Islamic Terrorism. The Fifth Amendment was enacted by a military government in the aftermath of a series of murderous coups, counter-coups and regime change. The period was very painful, uncertain and critical for the sovereign existence of Bangladesh as it faced hosts of political, economic and security challenges from both within and outside. One may have reservations about some aspects of this or any other Amendment but it is important also to consider the overall situation prevailing at the time. And it is wrong, in my view, to
condemn any or all the Amendments if the existing circumstances demanded it, but we have a right, in fact obligations, to look at them critically and reassess the situation. The most controversial part of the Amendment was the Indemnity for the killings in the aftermath of the August 15, 1975 coup that overthrew the BKSAL regime. The ousted government was led by civilian politicians but it was undisputedly a dictatorial regime with unlimited powers in the hands of the President who could be elected for as many terms as possible (most people took this for a President-for Life arrangement).1 Of course, there are deficiencies, in some cases contradictions, in the Constitution as it has evolved during the last 37 years and these should be rectified in the light of aspirations and practical needs of a modern democratic and civilised society. The Constitution should serve the people, all the people, irrespective of creed, caste, gender and ethnicity. Constitutional provisions must guarantee equal rights, privileges as well as responsibilities for all citizens of the state; none should feel marginalised and discriminated by any provision of the Constitution. And, no act of treason or murder, whether committed by individual or any state organ, should be condoned or indemnified by any Constitutional provision. The 1972 Constitution had four basic principles: Nationalism (Bangalee), Democracy, Socialism and Secularism. Three of these principles (Democracy, Socialism and Secularism) were perhaps taken from Indian Constitution. The Constitution was adopted immediately after the birth of Bangladesh, and those were the days when Bangladesh was strongly allied with India and Soviet Russia, and still lacked formal recognition from Pakistan, China and most of the Arab and Muslim countries. Those were also the days of Vietnam and the slogan of Socialism inspired millions of young activists throughout the third world including Bangladesh. It is also a fact that the Bangladeshi students and youths were in the forefront of our independence struggle. Senior political leaders including Sheikh Mujibur Rahman (who had been procapitalist and pro-western throughout his political career) had to accommodate the wishes and zeal of this vast youth force. But the irony is that BAL had no real understanding or genuine commitment to Socialism as opposed to Capitalism. Socialism was only a convenient slogan to nationalize the Banks and other financial institutions from the hands of their former owners (mainly from West Pakistan or Muslim expatriates from India ). The USA and pro-western elements thought that this was a disastrous step and there was another potential red republic in the making. The word Socialism was not omitted altogether from the Constitution by the subsequent amendments but redefined by saying that it meant economic and social justice. This assured the West and pro-capitalist elements that Bangladeshi Socialism is not socialism in the real sense; it was not the socialism as it was then practiced in China or Soviet Russia, and that there is no reason to be panicked. In the light of the major changes in the
1
Hasanuzzaman, Awami League and BAKSAL, 1972-75, (Dhaka: Bangladesh Publication, 1980)
world economic and power relations over the last decades (specially since the collapse of Soviet model, end of Cold war, revisions in the Chinese model), debates on this revisionist socialism in the Constitution is rather muted. Some of our former Socialist revolutionary leaders are happily co-habiting with semi-feudal, pro-capitalist parties. The debate on Nationalism (Bangalee vs Bangladeshi) seems to be driven by emotion. Personally, I feel quite comfortable being known as a Bangladeshi national with Bangalee cultural and linguistic heritage and with a Muslim faith. Citizens who are not Bangalee but of other ethnic and cultural roots and profess any of the non-Muslim faiths should feel quite comfortable if their nationality is Bangladeshi. I find no contradiction in this kind of arrangement. But it is wrong to define all the citizens of Bangladesh as Bangalee; they would not feel comfortable with is this definition. Those who raise controversies and unnecessary debates on this issue are not helping Bangladesh to establish its distinct national identity. The issue of Secularism is more sensitive as it is supposed to be more progressive and all embracing as opposed to the word Islam or Muslim in the Constitution. Whether the present BAL government really wants to delete the words Bismillah ar-Rahman arRahim from the preamble and Islam is the state religion from the Constitution to reinstate the word Secularism, remain to be seen. Still we may make a few comments for general discussion.1 In my opinion, it would be very controversial and difficult to remove the words from the preamble. Whether it was right or wrong at the time of its addition to the Constitution is another question. But doing this now would send a wrong signal to the vast majority of Muslims about the intention of the BAL government. The fact remains that in many secular western countries, belief in the Almighty God (Allah) remains a cardinal principle. These countries have Christian majority populations, and Christian traditions, rituals and culture dominate the social and cultural life of most people, although legitimate rights of people practicing other religious faiths, as well as those of atheists or agnostics, are acknowledged, respected, and legally guaranteed. There are extremists and fanatics also within these secular Christian societies, but the legal system is strong enough to contain their activities that advocate hatred, racism and violence. The societies are economically, socially and politically more advanced and mature with a high degree of tolerance for different religions, culture and opposing views. Bangladesh society is relatively backward in economy, political and social culture compared with the European societies and what is acceptable in Europe may not be acceptable in Bangladesh. Does religion clash with secularism? According to many people, it does so when religion and only religion is the guiding force for all political and social activities within a state. We have witnessed this in Afghanistan, Sudan or Somalia, Kashmir, Chechnya or even in
1
Hasanuzzaman, Awami League and BAKSAL, 1972-75, (Dhaka: Bangladesh Publication, 1980)
Iran to some extent. But the matter is more complex that it appears on the surface. There are dozens of other reasons for the instability, turmoil, and conflicts in most of these societies. The question of religion (Islam) is often invoked by certain quarters (both at home and abroad), but the underlying unresolved national questions (right of self determination as guaranteed by the UN Charter), foreign aggressions and occupation associated with extreme violations of basic human rights to life, property and dignity are often ignored. Blaming Islam for all the ills of the world is clearly one-sided and wrong. We are dismayed to see that many people condemn Pakistan, for example, for branding itself as an Islamic country but they have no problem in supporting the purely Jewish nature of Israel, a settler colonial, racist state that is acting as an advanced outpost of the militarist imperialists and bent on destroying the Palestinian people and subjugating other Middle Eastern Muslim states. Despite anti-Islam, anti-Bangladesh propaganda by some R&AW inspired elements, independent Bangladesh has not witnessed any serious communal riots or systematic repression of religious minorities, whereas in India, which has a secular label, repression of religious and ethnic minorities, communal riots, caste and class violence happen more or less regularly. The main point is not what you profess but what you do. Personally, I do not support that the idea that politics and state structure of a modern country should be based exclusively on a very rigid interpretation of holy books, although I have no problem in accepting the basic teachings of honesty, tolerance, fellowship and humanity which are the core values of all religions. Unfortunately, some people who themselves are devoid of any moral values dominate our politics and exploit the name of religion to fool the common people. One such person is he who staged a coup to overthrow a democratically elected government in 1982 and amended the Constitution to make Islam the State Religion. Many people believe that this was done not for the love of Islam but for his own political agenda. He was the worst type of political manipulator, financially and ethically corrupt, and he did everything that goes against the basic teachings of Islam. The irony is that the same person is now a partner in the current BAL government. What would he say if and when the government amends the Constitution to remove Islam and incorporates Secularism in its place? Would that be acceptable to the majority Muslim population? Honestly, I do not know. But I have a feeling that it will arouse intense emotional feelings to cause greater dissension and destabilisation. There is every chance of the issue or intention of the government being misinterpreted. Can the government handle the situation, even with its more than two-thirds majority in the parliament? We can write many good words and sentences in the Constitution, but this by itself does not guarantee a system of democracy and good governance, unless the rule of law and justice providing equal opportunity for all religious and ethnic communities are practised. Secularism was a part of the Constitution until the Fifth Amendment, but was the sociopolitical situation better then? The answer is a clear No. We are still alive to tell the
story of mismanagement, nepotism, corruption, grabbing of enemy properties and industries, one-party dictatorship, mad made famine, factional fighting and state sponsored killings by Rakkhi Bahini and other killer groups. What led to the coups and counter-coups in 1975, only after a few years of the countrys independence? We should give up emotion and half-truths and do an objective analysis based on facts. Blaming only this person or that person, this country or that country, for all ills of the countrys failure to establish a genuine democratic order and just society is not good enough. We must do some soul-searching and work together to analyse the problems and find the best possible solution. In conclusion, we have no objections in enacting another Amendment by the present or future governments, but if and when this is done, there must be full debates and participation by all the political parties, intelligentsia and concerned citizens.
Bibliography
Ahmed, Moudud, Bangladesh: The Era of Sheikh Mujibur Rahman, (Dhaka: UPL, 1983) Ahmed, Moudud, Bangladesh: Democracy and the Challenge of Development, Dhaka: UPL, 1995) Chowdhury, A.K, The Independence of East Pakistan, (Dhaka: Jatiya Grantha Kendra, 1984) Chowdhury, Dr. Najma, The Mirrage of Parliamentary Democracy, (The Daily Star, June, 1996) Hakim, Muhammad, A, Bangladesh: The Sahabuddin Iterregnum, (Dhaka: UPL, 1993) Hasanuzzaman, Search for a New Dimension, 1992 Hasanuzzaman, Awami League and BAKSAL, 1972-75, (Dhaka: Bangladesh Publication, 1980) Islam, M. Amir-Ul, The Evolution of Parliamentary Democracy and the Constituion in Bamgladesh, 1997

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Fifth Amendment of the Constitution: Its Impact and Influence

Fifth Amendment of the Constitution: Its Impact and Influence

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