Untold Facts

Restoring the 1972 Constitution of Bangladesh

Bangladesh had its first written Constitution in late 1972. Since then it had 14 other amendments. Of them four were brought in before mid 1975. The rest followed until the 14th made in early 1996. Of all these, the 5th Amendment enacted in April 1979 is a critical, crucial and possibly historic one for the fact that this amendment changed and replaced the basic principles of the 1972 Constitution and so also the basic assumptions of the State of Bangladesh.

The 1972 Constitution was framed no doubt by the peoples representatives but having a lacuna that the representatives who framed it had doubtful authority to do the job as they had been elected under the LFO (Legal Framework Order) of Pakistan to frame the 3rd Constitution of Pakistan and not for independent Bangladesh. Other issues of concern were the four principles -Bengali Nationalism, Democracy, Socialism and Secularism that the framers had presumed to be rightly adopted as bases having though no clear cut mandate of the people in these fundamental subjects. On top of all these matters, the Constitution was being flouted in almost every issue by the party government that made a real mockery of adherence to the constitutional principles. The crudest of the mockeries was the Fourth Amendment made in January 1975 through replacement of the multi-party democracy to one party dictatorship, again having no mandate sought much less obtained from the sovereign people.

Playing down with the sovereign rights of the people that the government inflicted huge sufferings of the common people in life and living, they were toppled in a successful army coup in mid August 1975. As further follow up of counter-coups, and the army-people revolution on the 7th November, things settled down as the lone party mode of the 4th amendment was rescinded and multi-party system restored. The country once again restored to the path of multi-party democratic system. The election of the Parliament followed and democratic national assembly re-instituted.

The pre-1975 lacunas and many hotchpotches were duly addressed and settled in the Parliament in the due process of the parliamentary procedures. The Fifth Amendment was one of the outcomes.

The Fifth Amendment rightly sought to put logical and reasonable end to conflicts and contradictions that made the 1972 Constitution weak and vulnerable in regard to the basic principles and assumptions so far as it viewed in terms of common aspirations of the people.

Bengali Nationalism though had been a highly sentimental and so powerful slogan to fight against the non-Bengali men, administration and the law enforcing agencies, army in particular, it turned meaningless in post 1971 independent Bangladesh, because, they were nowhere and nothing as foes as they had been before. The sentiment lost it weight also for the fact that many Bengali speaking people stayed outside Bangladesh territory having allegiance to other nationalities. In addition, not all people of Bangladesh happened to be pure Bengali but belonged to many other ethnic, racial and linguistic origin and legacy. Thus the Fifth Amendment has very much logically, rightly and reasonably decided for the Bangladeshi Nationalism incorporating all people of various languages and races living as lawful citizens. Similarly, the term Socialism having had much appeal for decades until 1970s both at outside and in the country, the ruling party government had by mid 1975 inflicted so much huge injuries that it lost its appeal in about four years of the party rule. The Fifth Amendment specified instead attainment of social justice among all citizens. The people, as well, did not relish the secularism the party government practiced that alienated the people of various faiths, particularly, the Muslims forming overwhelming majority to the tune of about 85% of the 80 million people that the Fifth Amendment replaced with belief in the Almighty Creator.

Thus the changes made were nothing done arbitrarily but by the parliament. Even so, there are some who argue that secularism has to be incorporated in the Constitution for getting rid off ‘religious communalism’. Here they should not only specifically identify ‘communalism’ but also explain secularism in clear terms.

Secularism does not represent single meaning. It is a term confusing issues at practical levels in societies. European countries are said to be ‘secular’. But their Constitutions are hardly secular. The United States of America wished to make their Constitution adopted nearly 225 years ago a secular document. But the first amendment enacted a few years latter as the Bill of Rights that granted religious rights to the citizens. Britain has no written constitution. The country is run and governed by conventions and usages deeply embedded into Christianity. The Crown or the King/ Queen is the head of the country both of temporal and spiritual matters. Other European countries are also labeled secular, but their modes of practicing secularism differ, and yet the society and the country have common allegiance to Christianity, if not in everything but very much deep in the Christian value system.

Muslim countries like Turkey, for example, had been having secularism for the last eight decades that Kamal Pasha harshly attempted to impose upon the Muslim people, how far that was all on his own belief or on the prompting of the alien masters is still hard to conclusively say, but the struggle of the people against Pasha’s unrealistic dream is now so clear that others can see in Turkey at this point of time at the beginning of the 21st century.
Should the 9th parliament of Bangladesh seek to make changes in these basic principles, and as the party in power has the required two-third majority, they can certainly do these changes and replacement of the three issues taken in 1972 and abandoned in 1979. But should the parliament alone venture to finish the job, it may not sustain long should the next government of the opposite belief and program come to power with two-third majority; they may well turn such things down. Referendum may, however, be an alternative mode to decide for sustenance.

In Bangladesh, secularism is not only misunderstood by sections in society, but there is no unanimity among the overwhelming majority people that there is no place of secularism in Islam. Muslims can not be secular but tolerant and respectful to all other religions as the model State of Medina had shown the examples of tolerance to non-believers in Islam. The modern concept of secularism that the West developed recently for oppressive measures of the churches had no such place of intolerance in Islam. In India Muslims ruled for about one thousand years (711-1857), but there was no example of intolerance except in some jealous bad eyes.

Unfortunately some term the Muslims as communal who tend to practice Islamic modes of life. This is unfortunate for those who really may not be religious at heart but do so for show up only. Despite such presence of some in society, there is no alternative to spiritualism for each and every soul. Even as the former President of India, renowned nuclear scientist Abdul Kalam, has advised the youths of India to pursue the path of ‘spiritualism’ to make the notion of ‘Indian secularism’ a success (See, Ignited Minds, 2006, p.114). Let us recall that India, strictly speaking, is not constitutionally a secular State as there is no article in the Indian Constitution confirming the principle to strictly follow, but as a casual mention just in the Preamble only. That India is not a secular country is well manifested in everyday ill treatment of all the minorities, Christians, Muslims, Dalits, Harijans, OBCs, etc. The Bangladeshi ‘communals’ or even the Pakistanis hardly fare with the RSS, VHP, Bajrang Dal. Neither these so-called communals have had ever demolished historic institutions of other religions like Hindu extremist did to the Muslims Babri Masjid of India. It is amazing to see that the Indian ‘secular’ government though banned the Muslim students’ organization SIMI there; they did not even touch those other Indian extremist organizations. The Indian reputed writer Arundhati Roy soon after the 26/11 Mumbai terrorist attack expressed her dismay at one-eyed policy of the Indian Government against the suspected Muslim terrorists and not touching the Hindu terrorists. Should not one ponder about that the judiciary of India gave a nod to erect Hindu Mandir at the demolished site of the Muslims’ Babri Masjid of four hundred years old!

Let not the Muslims follow examples of meanness of people of other religions. But how could they be driven away from spiritualism that almost all Muslim scholars maintain in being secular. Even so, should the government and the Parliament decide to re-incorporate the concept of secularism in the Constitution as a matter of mandatory issue, the matter must be referred to the competent Muftis and Ulamas to decide if that could be done at all?

– Dr. M.T. Hussain