In April 1979 the Bangladesh parliament ratified the 5th Constitution Amendment which provided that all amendments, additions and modifications made in the Constitution during the period between August 15, 1975 (the day Mujibur Rahman was assassinated) and April 9, 1979 (when military ruler Gen Ziaur Rahman became President) were valid and would not be called in question before any judicial body of the country. In other words, all the acts and decisions of the martial law government were legalized and insulated from judicial inquiry. The martial law administrator, Gen Ziaur Rahman, had through this amendment sought to constitutionally validate his coup.

Six years later, in Aug 2005, when Gen Zia’s wife Khaleda Zia was the Prime Minister, the Bangladesh High Court held the 5th Amendment illegal and unconstitutional. The Khaleda government of BNP-JEI alliance moved the Supreme Court challenging the High Court ruling. Consequently, the High Court order was stayed. But the situation under went a sea change with the return to office in Jan 2009 of Awami League (AL)-led Government of Prime Minister Sheikh Hasina.

To put the issue in context, it is necessary to recall that the Islamic groups in the erstwhile East Pakistan did not support the independence movement and sided with the Pakistani Army. After the creation of Bangladesh in 1971, Mujib marginalized the Islamic religious forces from the mainstream Bangladeshi politics; he banned religious parties and introduced a secular democratic order in the country.

But August 15, 1975 coup reopened the doors for rehabilitation of the pro-Pak Islamist forces in Bangladeshi politics. Gen Zia-ur-Rahman did away with the constitutional provisions prohibiting the formation of communal parties and associations. A series of amendments were introduced to elevate the influence of Islam on Bangladeshi politics and society. The words ‘Bismillah’ir Rahman’ir Rahim (Faith in Allah)’ were incorporated as the opening words of the constitution specifically through the 5th amendment.

Bengali nationalism was replaced with ‘Bangladeshi nationalism’. As a result, all pro-Pak elements assumed the role of champions of Bangladeshi nationalism; secular and progressive forces came to be branded as Indian agents.

Now, the annulment of the 5th amendment will automatically delegitimize the role of Islam as a social and political force. Bangladesh Law Minister Shafique Ahmed has stated that scrapping the 5th amendment would re-establish the reign of secular, socialist democracy in Bangladesh.

DAMAGE UNDONE

The Fifth Amendment deleted some of the basic principles enshrined in the 1972 constitution, such as Secularism and Bengali nationalism. 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 the scrapping of Bangladesh Collaborators (Special Tribunal) Order 1972 signaled their political rehabilitation. What was the need for these changes? Gen Ziaur Rahman felt convinced that in order to perpetuate his rule he would have to keep the Awami League, which had fought for liberating the country from Pakistani yoke, at bay, and the best way was close ranks with the Islamist and pro-Pak forces and restoring to them the place denied by Mujibur Rehman, the founder of Awami League and the first prime minister of independent Bangladesh, who later on became the President of the country.

The Supreme Court judgment has now undone that mischief by upholding High Court verdict on the 5th amendment. The nation, which had fought a bloody war against Islamic Pakistan to establish secularism and democracy, was obliterated by military juntas and autocratic governments. Bangladesh’s first constitution included secularism, democracy, socialism and nationalism as key principles which reflected the spirit of independence war.

After assassination of Mujibur Rahman in a military putsch in 1975, the government of the coup leader Ziaur Rahman introduced in the constitution “Bismillah’ir Rahman’ir Rahim (Faith in Allah)” in 1979. Another military ruler Gen HM Ershad had made Islam the state religion.

The Supreme Court in its landmark verdict has forbid political parties which advocate Islamic philosophy. And also asked for reinstatement of the four key principles in the constitution which existed 38 years ago.  Law Minister Shafique Ahmed feels there is no hindrance to reinstate “secularism in the constitution” as advised in the Supreme Court’s ruling. “The amendments that were enforced by military orders during the four years of misrule have been declared illegal and repealed by the Supreme Court.”  Shafique Ahmed a key however opines that the Ershad amendment is not affected by the court verdict. Any how the former army chief and military ruler is presently an ally of the ruling alliance.

Eminent journalist and human rights activist, Shahriar Kabir, who also staunchly advocates the trial of war criminals, has an interesting take. He says the people have given their mandate in the last general election in favour of restoring secularism and trial of the 1971 crimes against humanity.

Hasina led Awami League swept to power in December 2008. Her party’s poll plank was restoration of secularism and trial of war criminals.

“We have seen the youth belonging to Jamaat-e-Islami (JEI) were engaged as henchmen of marauding Pakistan’s occupational forces. They raised Al-Badr, Al Shams and Razakar to kidnap and murder hundreds of intellectuals who could not escape for safety and security,” says Kabir and adds: “Religion based politics was banned after the brutal birth of Bangladesh”

After the assassination of President Mujibur Rahman, Gen Zia, hand-picked most of his cabinet ministers Muslim League and other pro-Pak Islamic groups that had vehemently opposed the liberation war. Most of the Zia ministers and henchmen were involved in crimes against humanity. Though he himself was a freedom fighter –army officer, Gen Zia joined hands with the pro-Pak elements for his political survival, Kabir remarks. And notes that Gen Zia-ur-Rahman became a staunch advocate of Jinnah’s two nation theory in order to prolong his army rule with the help of communal and pro-Pak elements.

BAN OR NO BAN

The High court has recommended “suitable punishment” to “extra constitutional adventurers,” who had ushered in military regimes and sanctioned the martial laws. The Bangladesh Nationalists Party (BNP) founded by President Zia and now being led by his widow, Khaleda Zia, has fought for the Fifth Amendment, and the loss in the legal battle comes at a crucial time to her party.

Noted jurist, Dr. Kamal Hossain, is not surprised at the judicial pronouncement. But it is seen as a threat by the Islamic parties which propagate strict Sharia law for the Muslims of Bangladesh, who are secular and moderate at their core even during the days of Pakistan rule. The Islamic radicals advocate Quran and Sunnah to over-ride the people’s constitution. They are targeting women to subjugate them and to force them to wear purdah (veil).

Tormented by Fatwas (Islamic edicts) and confrontation with Mullahs, the rural women entrepreneurs, who are engaged in micro-credit with support of Grameen Bank, micro-finance institutions and NGOs, have rejected the Islamic parties. These women and the 20 million new registered voters had played a crucial role in the landslide victory for Awami League and its allies in the last general election.

According to Bangladesh Election Commission there are eleven registered Islamic parties. Election Commission has no plan to ban them. Chief Election Commissioner Dr. ATM Shamsul Huda made it clear that the poll body is not authorised to ban any political party. “That the authority rests with the government. If the government bans any registered political party, the Commission would cancel the registration as per The Representation of the People Order (RPO) Act”, he said.

The Jamaat-e-Islami is, however, critical of Hasina government and accuses it of a conspiracy to push Bangladesh into anarchy by reverting to the 1972 constitution. “People want to move the country forward. But this government stand against the people is an impediment to the country’s progress and development,” JEI Acting Amir (chief) Makbul Ahmed said. He called upon all Islamic parties and the Muslims to stand united against what he terms as government’s anti-Islamic conspiracies.

It is too early to say whether the Islamic parties will be banned or some restrictions will be imposed on their activities. Picture will become clear after the constitutional amendments are brought before Jatiya Sangsad (parliament). Intervening in a parliamentary debate, Prime Minister Hasina indicated that Islamic parties will not be banned. She also said she will not disturb the reference in the constitution to “Bismillah’ir Rahman’ir Rahim” and to Islam as the state religion of Bangladesh.

Journalist Kabir avers that the prime minister’s remarks have confused the nation, and are against the spirit of the apex court verdict. While he has a point, Hasina probably doesn’t want to cause too many ripples in the political waters, which are already in floods. Right now her hands are full; and a fresh election beckons her in another three years. Her guarded approach to the issue is also apparent from the diktat to her ministers not to be loose canon balls on matters related to constitutional changes. She has set up a 15-member Special Parliamentary Committee on statute changes. And her advice is let us wait for its recommendations.

So, for the present, the Islamic parties of Bangladesh have no cause for worry. They have time to put their act together.