The Bangladesh Supreme Court Ruling

Written by Anees Jillani  •  Analysis  •  September 2012 PDF Print E-mail
We all must be tired of coming across the expression that ‘Pakistan is going through a traumatic and sensitive time in its history.’ It has been 65 years since independence and the trauma instead of leaving us is somehow on the rise.

There are a number of explanations for this sad state of affairs but one reason is the confusion regarding the basis of Pakistan, often called the Ideology of Pakistan, and resultantly the system that Pakistan should imbibe. You will not hear the term `ideology’ used to explain the basis of any other country; for instance, it would be surprising to hear the term `Ideology of Thailand’ or `Ideology of Germany.’ However, we continue to be stuck with it and even find references to it in our Constitution.

The irony is that the founder of the country was secular in his outlook. But the conflict between the secularists and the theocratists started in his life time when his August 11 speech was tempered with and not reported in most of the Pakistani media.

Pakistan needs to settle the issue of establishing secularism if it has to progress. In this regard, it may take clues from the February 3, 2010 judgment of the Bangladesh Supreme Court wherein it barred the use of religion in politics. It restored the original 1972 Constitution. After the verdict, the Election Commission of Bangladesh on January 26, 2010 asked the three Islamic parties, Jamaat- e-Islami, Bangladesh Khelafat Andolan and Tarikat Federation to amend their charters as they were coming into conflict with the Constitution.

The Supreme Court in this landmark ruling held that the Fifth Amendment to the Constitution, which legitimized governments that were in power from the time of the August 15, 1975, coup in which Mujibur Rehman was killed along with most of his family members, through April 9, 1979, were illegal. The ruling was in response to two writ petitions, one by the Bangladesh National Party, led by Ziaur Rehman’s widow, Khalida Zia, and the other by Jamaat-e-Islami, that challenged an August 2005 High Court decision declaring the Fifth Amendment illegal. The Court had earlier granted a stay order that was ultimately vacated on January 3, 2010. Resultantly, the original Article 38 of the Constitution, which protected secularism, became operative barring the use of religion or communal connotations in politics.

Such decisions always have long-term impacts on the social and political fabric of a country, as shown by the subsequent Dhaka High Court decision in which it held that nobody can be forced to wear burqa, cap, or dhoti. The Court held that Bangladesh is now a secular state since the original constitution of 1972 has been automatically restored following the Supreme Court judgment. It said that ‘in this secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires.’ Similarly, it stated that ‘nobody could be prohibited from wearing religious attires if he or she wishes to wear those.’ The Court also directed the authorities to immediately issue a circular asking all educational institutions not to compel students to wear religious clothes.

The Supreme Court ruling by the six-member full bench headed by former Chief Justice Mohammad Tafazzul Islam, has laid the foundation for a process of reviving the secular spirit in Bangladesh. Secularism is looked down upon and associated with ladeeniat in Pakistan when all it stands for is negation of State level involvement in religious matters. It stands for separation of clergy from running of state affairs, which may not be such a bad thing to suggest for present-day Pakistan.

Anees Jillani is an advocate of the Supreme Court of Pakistan and a member of the Washington, DC Bar. He has been writing for various publications for more than 20 years and has authored several books. 

Anees Jillani is an advocate of the Supreme Court of Pakistan and a member of the Washington, DC Bar. He has been writing for various publications for more than 20 years and has authored several books.

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