The Fifth Amendment Crisis in Bangladesh
An approaching constitutional quagmire in Bangladesh has escaped international attention but threatens the Country’s political, constitutional and social order.
At the center of the domestic political upheaval is the 5th Amendment to the Constitution of Bangladesh. In April 1979 the Legislature in Bangladesh ratified the 5th Amendment which provided that all amendments, additions, modifications made in the Constitution during the period between August 15, 1975 and April 9, 1979 were valid and would not be called in question before any judicial body of the country. In simple terms all the acts and decisions of the martial law period were legalized and insulated from any judicial inquiry. The martial law administrator during this period, Zia-ur Rehman, had sought to constitutionally validate his coup in which he had usurped power from Sheikh Mujibur Rahman. In August 2005 in a landmark ruling the High Court had held the 5th Amendment as illegal and unconstitutional. The Central Government, comprising of Bangladesh Nationalist Party (BNP) and the Islamist Jamaat-i-Islami moved a petition in the Country’s Supreme Court challenging the Court ruling. The Court order was stayed and discussions on the 5th amendment rescinded to the political backburner. In early May this year the Awami League (AL) Government has cancelled the petition for staying the 2005 Court ruling thereby paving way for Constitutional chaos in the country.
The AL move, prompted by political considerations, could have far-reaching repercussions for Bangladesh. The P.M. of Bangladesh and AL leader Sheikh Hasina is the daughter of Sheikh Mujibur Rahman who was removed from office in the 1975 coup. The BNP and opposition leader is Khaleda Zia, widow Zia –ur Rahman. Thus the AL action can be viewed merely as a continuation of the long political and personal rivalry between the two most prominent political figures of Bangladesh. Though the people of Bangladesh despise this rivalry between Zia and Hasina, the majority has become used to such acts of political vendetta. A shopkeeper in Dhaka once commented that Bangladesh experiences floods and cyclones in which many people die but Zia and Hasina were a worst disaster.
As expected the BNP has opposed the Government’s action and is gathering popular and political support for its cause. The Supreme Court has given the BNP four weeks for filling a petition against the Government’s move and the political stability in Bangladesh will rest on the ensuing Court ruling. If the BNP’s appellate petition is rejected the military rule between 1975 and 1979 and official decisions during this period would be declared illegal. �
Unfortunately the struggle over the validity of the 5th Amendment is not confined to the dynastic enmity of the Bangladeshi political elites. What makes this act of political vendetta critical is its larger impact on the constitutional and social landscape of Bangladesh.
During the political upheaval leading to the creation of Bangladesh, the Islamic groups in East Pakistan did not support the independence movement and sided with the Pakistani Army. After the creation of Bangladesh in 1971, Sheik Mujubir rehman further marginalized the Muslim religious forces from mainstream Bangladeshi politics by introducing a secular democratic order in the country. However the coup of 1975 reopened the doors of influence to the Islamist forces in Bangladeshi politics. Zia-ur Rehman did away with the constitutional provisions prohibiting the formation of communal parties and associations. A series of constitutional amendments were introduced to elevate the influence of Islam on Bangladeshi politics and society. The words ‘Bismillahir rahmanir rahim’ were incorporated as the opening words of the constitution specifically through the 5th amendment. Thus Bengali nationalism was replaced by Islamic allegiance largely through the 5th and the subsequent amendments to the Constitution. Will not the annulment of the 5th amendment constitutionally delegitimize the role of Islam as a social and political force? Bangladesh Law Minister Shafique Ahmed has subtly hinted at this possibility by stating that scrapping the 5th amendment would re-establish the reign of secular, socialist democracy in Bangladesh. The BNP is gathering popular support by playing on popular fears that the words ‘Bismillahir rahmanir rahim’ will be deleted from the Constitution following the Government’s decision to annul the 5th amendment.
Though the AL government is attempting to address popular concerns by committing to the continuation of ‘Bismillahir rahmanir rahim’ as an integral part of the Constitution, the common people of Bangladesh are confused and uncertain about the arguments from both sides. �
Some analysts are of the view that discarding the 5th Amendment will have a domino effect on the other Constitutional amendments and the country could encounter politico-constitutional anarchy. Even if the Government insulates the other amendments by some logic (which is difficult to achieve) all decisions made by the Government of Bangladesh between August 1979 and April 1979 will be annulled. This would include all foreign treaties and acts of political appointees and diplomatic functionaries as well. In simple words the state of Bangladesh will absurdly exist without any political decision, domestic and international, for the period between august 1975 and April 1979.
In a month’s time the Supreme Court will deicide on the constitutional validity of the 5th Amendment and the future of Bangladesh. The Zia-Hasina tug of war needless to say will continue, oblivious to its damming effects on the polity and society of Bangladesh.
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Thank you very much Dr Madhavi Bhasin. You have indeed drawn our attention to a very significant development in the neighbourhood which had escaped many of our eyes. I think from a comparative perspective it becomes especially noteworthy as the Supreme Court in India has also in recent times undertaken such responsibilities of ‘protecting’ the Constitution. South Asian domestic politics scholars have a lot on their hands!!
How can the Awami League and its supporters call themselves Muslim and at the same time renounce Islam from politics and society? If Allah is indeed sovereign aren’t His laws and normative values superior to man. Its time that the hypocrites in Bangladeshi government and society either renounce Islam or be more brave against foreign conspiracies.
The AL Govt. should work for meeting the crying need like regularity of water and power supply, bringing the prices within the buying capacity of the commoners, economic recession and maintaining discipline in the social sector, etc. But unfortunately the present Govt. is wasting their time doing some unnecessary works like cancellation of 5th Amendment and Leasehold house of Kahleda Zia.
I think by any means We should be back to the 1972 constitution to restore a secular democratic order. Because Its destroying our Independence war theories.
But I do agree with Mr. Shahjahan too AL Govt should work on some major issues too.
Big victory means big expectations and large scale of responsibilities which AL govt should not forget
In my opinion the AL government should be concerned to upgrade the fundamental needs of the common people rather than whant they are doing regarding 5th amendment of the constitution and khaleda’s house,
Bravo! Supreme court of Bangladesh deserve congratulations.In one stroke they have done away with old practice of giving protection to all sorts of ugly works done by Dictators and also thrown out chances for parties like Jammate Islami to create theocratic states.There is a lot of difference between between Islam brought by the Holy Prophet PBUH and the ideas projected by people like Mudodi Sahib
The 5th amendment to the BD Constitution has finally been done away with. This historic step, away from theocracy and towards true freedom, is indeed commendable. As long as religion remains involved in politics, sins are committed in the name of Islam and crimes are carried out in the name of God. Politicians use religion as an umbrella beneath which corrupt practices flourish. Secularism is a great service to both the cause of Religion as well as the cause of the State.
Congratulations Bangla Desh !
Arif
ALLAH IS ALMIGHTY AND THE MASTERMIND OF THIS UNIVERSE. When a person knows about Islam he/she will see that the so called Islamic parties are the worst cheater of the time now. 5th ammendment is just the output of playing with the peoples immotion who do not have the ability to unmask the real face of the enimies of Islam-the Moonafek!in favour of a number of peoples (like Zia and his fellows)ill political intention. In the same book that leads to a compilatin of anti ISLAMIC LAWS!like, Appreciating the acts of executing massacre or genocides or awarding the murderers how should we place the word of Bismillah with others that entails a bulk of Kkufor rules including the former? So for upholding the concept of fair politics we should goback to the constitution of 72 and thus help the true muslims pave the way to practising Rasululla’s Islam that had gained world wide victory through honest and sacrificing appraoch of the teachings of the holy Quran to the humanity appreciably and greatly done by the best team of the massenger of Allah.
So it is the high time to restore the dignity of our holy book by being honest in our constitutiional decleration!
Let us stop the cheaters (Neezami and Mujahid’s) trend to indignifing our holy beliefs.
The Secular form of government is the most Islamic form of government. The basic and most essential principle laid down by the Holy Quran is : “LAA IKRAAHA FIDDEEN” meaning ‘there is no compulsion in Religion’. With a State Religion in place, compulsion becomes a probability. Members of the clergy, representing that particular religion are aroused into decision-making and fatwa-issuing. These clergy members begin to play an active role and all other citizens automatically assume the passive role. Citizens who do not subscribe to the State Religion are compelled to take an even more passive role in society.
Therefore, it is only a Secular system that can truly guarantee an atmosphere in which there is no religious compulsion for even a single citizen of the state, thereby fulfilling the requirement of “LAA IKRAAHA FIDDEEN”.
The intentional violation of the four Basic Principles of the Constitution is no good tradition once set by the then military ruler. Besides, the replacement of the word ’struggle’ by ‘war’ implicitly denies the mass people’s contribution for the independence of the country.
May be the amendment initiative was supported by doctrine of necessity but it is not clear that how much it was necessary to bring about change even in the preamble. Actually, military rulers tend to believe that their contribution is the highest in defending Bangladesh. But from who? Our biggest neighbor can, if they want, lead an aggression and reach the capital within a few hours. So, what is the base of which our military rulers boast on?
May be they have heard that people hate politicians and therefore they will be praised to be in power for long. So, anything can be done,even with the constitution so far. Very strange thinking !!
The remedy is simple to say, difficult to enact.
The next postsecular, nontribalistic amendment must be made by a civilian government.
How creative, able and futuristic will nonsecular responses to this 5th amendment be?
And anyway, do we really live in the names of God?
Hasina probably wont tough this element because it has high emotional content and who would want to be the one who removes two of gods names from official stationary.
The 5th amendment of the constitution of Bangladesh must be annulled to ensure democratic and secular government. It will also keep the country free from military intervention and influence.
Starting a document with Bismillah does not necessarily defy the principles of Secularism, neither does it open the doors to Theocracy. Having a State Religion, however does expose the state to this risk. The risk begins when religion gets entangled with legislation. That’s when the clergy starts trumpeting and that should most certainly be avoided.
Anything repugnant to the Qur’an and the Sunnah is a clear rebellion against the Creator of the Universe and His Sharia’h (Devine Law).
Let the intrinsic nature of the great people of Bangladesh decide themselves with whom they would like to be identified with, in this life, and the hereafter. It’s a clear and open challenge between Islam and a Non-Islamic social and economic philosophy and order.
Among all the nations of South Asia, Bangla Desh has shown the most impressive signs of pragmatism. Militant Mullaism is on the rise in Pakistan with suicide bombings on a daily basis. Shiv Sena and rightist BJP in India are eating away secularism like termites. Bangla Desh started off with Secularism, got temporarily derailed, but then was quick in correcting itself, and has now reoriented itself towards a secular outlook. India and Pakistan can learn a lot from Bangla Desh.
@Abdullah Abdul Karim
The ‘great people of Bangla Desh’ comprise of humans, not angels. Even if the nation comprised of angels, a Secular State would still have been the recommended course. As far as the ‘intrinsic nature’ of humans is concerned, it is the intrinsic nature of all humans not to approve of state-imposed compulsion in matters of religion