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Back to founding principles

The Bangladesh Supreme Court has made a progressive and far-reaching contribution to the project of national renewal that Prime Minister Sheikh Hasina Wajed has undertaken since her return to power in December 2008. For much of its nearly four decade-long existence, Bangadesh has had the misfortune of having its national destiny determined not by the secular founding principles of its 1971 liberation struggle, but by military adventurers and — as in Pakistan — their hand-maidens, the religious parties. Under Prime Minister Sheikh Hasina, the daughter of Bangladesh's founding father Sheikh Mujibur Rehman, and herself a participant in the liberation movement, there is a determined mood to reclaim those principles. With a two-thirds majority in Parliament, the ruling Awami League can easily make the required constitutional changes. But it now has a solid legal foundation in the Supreme Court's judgment upholding the annulment of General ZiaurRehman's Fifth Constitution Amendment. The amendment, introduced in 1979, legitimised the regimes that followed Sheikh Mujib's assassination. The Supreme Court has boldly struck down the Zia-era phrase “absolute trust and faith in the Almighty Allah” in the preamble to the Constitution, and ordered the restoration of the original sentence containing the words “secularism, nationalism, democracy and socialism.” The judgment does not cover the 1988 Eighth Amendment introduced by General H.M. Ershad, making Islam the state religion. But by explicitly ordering the restoration of “secularism” in the preamble, the Supreme Court has left the door open for legal challenges to it. The judgment also makes clear its abhorrence of military rule.

The reinstatement of Article 12 — omitted in Zia's rewriting of the Constitution — prohibiting religion-based political mobilisation could have immediate implications for Bangladesh's rightwing Islamic groups, some of which are known to have foreign patrons and links with extremist and militant organisations. The Awami League government must take into account the possible political fallout before seeking to ban religious parties on the basis of the judgment, considering that these parties, including the Jamaat-e-Islami, are aligned with Khaleda Zia's Bangladesh National Party. The atmosphere in Bangladesh is already charged on account of the ongoing trial by an “international war crimes tribunal” of Jamaat leaders accused of collaborating with Pakistan in 1971. The Sheikh Hasina government must be careful not to permit the country's political polarisation to negate the recent positive achievements towards nation-building.

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