David Bergman - As Bangladesh court reaffirms Islam as state religion, secularism hangs on to a contradiction
NB: This issue relates to
the centuries-old debate about civil religion, a matter dealt with extensively
by Ronald Beiner in his excellent book Civil Religion: a Dialogue in the History of Political Philosophy. After 1789, nationalism emerged as an
alternative civic religion and patriotism became a political form of prayer. So
zealotry could ally even with atheism. But to compare nationalism with religion
is not the same as identifying it with this or that religion. French nationalism,
for example, began with atheistic rejection of religiosity.
Ronald
Beiner on Civil Religion - YouTube
Communalised ideals of the nation, whether
Hindu or Muslim, were attempts to enforce a civil religion. This led to
a legitimation crisis of colossal proportions. Whereas many western nations have
adopted one or other version of Christianity as a civil religion (and yet can claim
with some fairness to be secular), it is not possible to establish a stable
polity in South Asia based on a ‘national’ religion. Pakistan’s experiment with civil
religion was a massive and continuing failure, as the definition of ‘true’
Islam is a never-ending contest. In 1970-71 Bangladeshi Muslims were derided as 'impure' by the Pakistani establishment. Given what the people of Bangladesh
suffered at the altar of ‘pure Islam’, it is ironical that the religious fanatics there still
have the upper hand.
The issue in South Asia is not the
separation of religion from politics, but from nationalism. Communal ideologies
ground the concept of the nation on the presumption of an endangered community.
This is a politics of a permanent emergency. The concept of Hindutva is similar
to the Japanese civil faith known as State Shinto – and represents a project seeking
to impose a civil religion upon India, defined by the RSS. The spokesmen of communal nationalism are not
interested in the truth of religion, but its use – and they use it for
political mobilisation. Nation-worship is a manifestation of right-wing
atheism, an identitarian numbers-game, wherein all truth is reduced to a philosophy
of number. I have written more about nation-worship as the new atheism
here - DS
************
Bangladesh’s avowedly
secular Awami League government, the Islamist party Jamaat-e-Islami and the
fundamentalist group Hefazat-e-Islam have almost nothing in common. Yet, the
drama this week over a High Court hearing pertaining to a legal writ, which
seeks to challenge a provision in the constitution that deems Islam as
Bangladesh’s state religion, shows that these three parties agree on at least
one thing – the need to retain this provision.
A few days before
Monday’s hearing, the Hefazat organised protests across the country. “We will
save our religion even at the price of our blood,” chanted the group’s supporters. A Hefazat leader was
quoted as saying: “If Islam gets scrapped as our official religion, we will
unleash an all-out movement even if blood has to be shed.” Hefazat-e-Islam
attained prominence in April 2013 for its ultra-fundamentalist list of 13 demands, which included passing a law that
would hand down capital punishment to those who malign Islam.
On the day of the
hearing, the Jamaat-e-Islami called a one-day nationwidestrike protesting the “deep-rooted conspiracy to rid
the country of religion by removing Islam as the state religion”. Many key
leaders of the Jamaat have in recent years been convicted in connection with
war crimes committed in 1971.
Swift dismissal: Ideology is clearly behind the demands of the
Hefazat and the Jamaat. As for the Awami League government, its position on the
constitutional provision, which it was due to support in court, seems anchored
in practical politics – not wanting to risk provoking domestic fundamentalist
forces and losing political support. According to Professor Anisuzzaman, who
translated the official Bengali version of the constitution, the government is
simply concerned that “those who are in favour of state religion do not vote
against the government”.
As it turned out,
however, none of these disparate groupings had anything to worry about. On
Monday, it only took a few minutes for the three judges to dispose of the
challenge on technical grounds. The petitioner’s lawyers did not even get the
chance to argue before the judges ruled that the Committee against Autocracy and
Communalism – the organisation which had filed the writ – did not have the
locus standi, or the right to be heard in the court.
The court’s reasoning
was not clear to those present. However, additional attorney general Murad Reza claimed: “It was rejected on the ground that the committee
under which the petition was filed in 1988 had no legitimacy as it was not a
registered body… [T]his committee was never registered with the government. The
citizens filed the petition under this committee’s banner; they did not sign it
individually.”
Challenge to
secularism: To understand the
current state of affairs, one needs to go back to the original constitution
adopted in 1972, which stated both in its preamble and in Article 8 that
“nationalism, socialism, democracy and secularism” shall be the “fundamental
principles” of the constitution. “The founding fathers of the country wanted to
have a secular nation,” said Professor Anisuzzaman. “And all of us during our
liberation war subscribed to that and Bangladesh was founded on that basis.”
However, things
changed after the assassination of independence leader Sheikh Mujibur Rahman in
1975. Four years later, while General Ziaur Rahman was in power, parliament
passed an amendment to the constitution that radically altered the position of
secularism. Right at the beginning of the constitution, even before the
preamble, the amendment added the text “In the name of Allah, the beneficent,
the merciful”. And in the preamble, the amendment replaced the word
“secularism” with the words “absolute faith and trust in almighty Allah”.
In addition, the
amendment of Article 8 removed the word “secularism” as a fundamental
principle, replacing it with “absolute faith and trust in almighty Allah shall
be the basis of all actions.”
Another amendment: Ziaur Rahman was assassinated in 1981. A year
later, Lieutenant General Hussain Muhammad Ershad came to power. In 1988, in an
apparent attempt to shore up his waning authority, an Ershad-controlled
parliament passed the eighth amendment which introduced Section 2A to the
constitution. It stated: “The state religion of the republic is Islam, but
other religions may be practiced in peace and harmony in the Republic.”
Almost immediately, a
writ challenging the constitutionality of Article 2A was filed by the Committee
against Autocracy and Communalism, represented by 15 eminent academics and
civil society leaders. “Our liberation was for a democratic secular country,
not for an Islamic one,” said Subrata Chowdhury, the lawyer for the
petitioners.
The writ argued that
the Article was “violative of the indissoluble character and basic structure of
the Republic of Bangladesh as proclaimed in the constitution” and was therefore
“ultra vires of the Parliament and is null and void and of legal effect”. The
petition, however, did not proceed further as lawyers at that time were focused
on another legal challenge to a separate provision of the amended constitution,
which had sought to break up the high court.
“The state religion
case was not taken up then as senior lawyers said that this was not the time
for this case and felt that the courts were not ready to interfere in this
matter,’ said Subrata Chowdhury. The case collected dust.
Two decades on: Fast forward to 2010, when in an entirely
separate case, the country’s appellate division upheld a ruling of the high
court that the fifth amendment of the constitution – the one passed in 1979
when Ziaur Rahman was in power – was illegal.
Given the
circumstances, the lawyers who had filed a case against General Ershad’s 1988
amendment, which introduced the new provision about Islam as the state
religion, thought that the political and legal climate was now more conducive
to a successful challenge. They dusted off their petition from 1988 and
returned to court.
In June 2011, the high
court passed an order asking the government to explain why the 1988 amendment
should not be declared to be “ultra vires the constitution and without lawful
authority”. However, before the court could take up the case, another
constitutional amendment – the 15th – was passed by the Awami League
government.
Passed at the end of
June that year, it could have provided a perfect opportunity for the government
to remove the provision labelling Islam as a state religion. However, although
the government brought back into the constitution the original four fundamental
principles including secularism, and emphasised the equal status of religions,
it added a new provision which retained the wording on state religion.
As a result, in
December 2011, the lawyers had to return to the high court, and obtain a
supplementary order asking the government why this new provision, brought in by
an Awami League government, was not unconstitutional. It was these orders which came before the
high court on Monday – where the court took a very different view on the locus
standi of the petitioner than the court had five years earlier, resulting in
the case being summarily dismissed.
What next?: Not all is lost for those committed to challenging the state religion
provision within the constitution. The petitioner’s lawyers can seek to appeal
the decision on locus standi to the appellate division. However, perhaps more
significantly, because the case was not dismissed on the merit of the
arguments, a new writ could be filed by those whose locus standi is
irrefutable.
Since 2011, there
remains an apparent contradiction within the country’s current constitution –
which states that whilst one of its fundamental principles is secularism, Islam
is nonetheless the state religion. At some point, this
contradiction within the constitution will need to be resolved. However, for
now, it acts as a metaphor for the strongly conflicting views held within the
country on the relationship between the state and religion.
see also
The Broken Middle (on the 30th anniversary of 1984)
