Are we headed towards an Islamic republic?
What are the BNP's plans exactly?
In 2023, the Bangladesh Nationalist Party (BNP) announced a 31-point plan for state reforms. After the fall of Sheikh Hasina in 2024, the party has announced its intention to bring about these reforms by implementing the 31-points. If we look at the past, it was the BNP which introduced Islamic elements in the Bangladesh Constitution. If the BNP is re-elected in the next general election with a two third majority, will the party truly adopt a broad-based inclusive consensus for constitutional reform?
In 1977, the Proclamation (Amendment) Order issued by Lieutenant General Ziaur Rahman brought substantial changes to the constitution. From the preamble to articles of national identity to fundamental principles of state policy, Zia shifted the direction of the constitution towards a more Islamic orientation. The martial law changes were validated and approved by the second parliament in the 5th Amendment, which Bangladeshi courts later ruled to be unlawful. The 5th Amendment was overturned by the 15th Amendment, with Cynthia Farid noting that “the Fifth, Seventh and the Eleventh amendments have been erased from the Constitution by the Fifteenth amendment, with the consequence that there is now no constitutional record that these events had ever taken place”.
Proclamation (Amendment) Order 1977
Zia’s proclamation, issued days after he assumed the presidency, introduced the Islamic phrase Bismillah-ar-rahiman-ar-rahim (In the name of Allah, the Beneficent, the Merciful). Zia also added “Absolute Trust and Faith in the Almighty Allah” as one of the fundamental principles in the preamble. He deleted secularism and redefined socialism as “socialism meaning economic and social justice”. As a result, the preamble between 1977 and 2011 read as follows:-
[BISMILLAH-AR-RAHIMAN-AR-RAHIM
(In the name of Allah, the Beneficent,the Merciful)]PREAMBLE
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through [a historic war for national independence], established the independent, sovereign People's Republic of Bangladesh;
[Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;]
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
In the chapter on fundamental principles of state policy, Zia changed Articles 9, 10 and 12. The ninth article on nationalism was replaced with the promotion of local government. The tenth article on socialism was replaced with the participation of women in national life. The twelfth article on secularism was curiously shown as omitted.
Article 25 on Bangladesh’s foreign policy was amended to include the sentence “The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity”.
Fifth Amendment
When the second parliament was elected in 1979, Bangladesh restored multi-party politics and overturned the one party state left over by the Awami League in 1975. The 5th Amendment approved the martial law era changes by Zia, who was by then a civilian president. The 5th Amendment also notably amended Article 6 of the constitution, redefining the citizens of Bangladesh as “Bangladeshis”. Previously, citizens were known as Bengalis.
The Fifteenth Amendment controversially reworded the article and described the nation as Bengali and citizens as Bangladeshi, which was criticized as a slight against the non-Bengali indigenous population of the country. At the Constituent Assembly in 1972, the non-Bengali politician M. N. Larma advocated the term “Bangladeshi” over “Bengali” in order to be inclusive of non-Bengali communities.
Eighth Amendment
In 1988, President H. M. Ershad (who also came to power through a military coup in 1982) instructed the ruling Jatiya Party (translated as National Party) to declare Islam as the State Religion. Article 2A was thus added to the Constitution as part of the 8th Amendment. The State Religion was a natural follow-up step to the declaration of Bismillah added by Ziaur Rahman in 1977. The former Attorney General Mahmudul Islam writes in his treatise on the Constitutional Law of Bangladesh that “When ‘secularism’ remained excluded from the preamble because of amendment of the preamble by martial law proclamation (ratified by the Fifth Amendment), the Eighth Amendment of the Constitution incorporated art.2A to make Islam the State Religion of Bangladesh”.
There are parallels between Article 2A and the Federal Constitution of Malaysia. Like Bangladesh, Malaysia has a written constitution as its supreme law. Article 3 (1) of the Malaysian federal constitution reads as follows:-
Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Article 2A of the 8th Amendment in Bangladesh read as follows:-
The state religion of the Republic is Islam, but other religions may be practiced in peace and harmony in the Republic.
It is noteworthy that most Muslim-majority countries in the world, stretching from Tunisia in North Africa to Malaysia in Southeast Asia, provide a constitutional recognition to Islam. The post-Arab Spring Constitution of Tunisia proclaims the following:-
Tunisia is a free, independent, sovereign state; its religion is Islam, its language Arabic, and its system is republican.
Malaysia’s constitution also guarantees a set of fundamental rights like the Bangladeshi constitution. The state religion has no bearing on the enforcement of these fundamental rights. In Bangladesh, the only significant Islamic legislation is Muslim Personal Law which was originally enacted under British colonial rule.
Several aspects of the 8th Amendment were challenged in the case of Anwar Hossain Chowdhury v. Bangladesh. The judgment in this case is highly significant in Bangladeshi history because it pronounced the Basic Structure Doctrine, which emphasized that the constitution’s basic structure should never be altered. The basic structure is essentially a democratic system of government. Hence, regardless of changes on questions of national identity, the basic structure remains. That being said, the basic structure was severely affected by the 4th Amendment in 1975, which is yet to be scrutinized by the courts for its inconsistency with democratic values.
Fifteenth Amendment
The 15th Amendment essentially restored the secular democratic aspects of the constitution from 1972. But these secular provisions stood in contradiction to the changes made in between, including the Fifth and Eighth Amendments. Mahmudul Islam sums it up quite well in his treatise on the Constitutional Law of Bangladesh:-
As secularism essentially means that the State shall not give any special status to any particular religion art.2A became inconsistent with restoration of the original preamble together with the principle of secularism by the Fifteenth Amendment. To remove the obvious inconsistency, the Fifteenth Amendment reformulated art.2A as follows:
“The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.”
It is submitted that Islam being given the status of State Religion, the consequent inconsistency is not removed by saying that the State shall ensure equal status and equal rights in the practice of other religions.
Future
Will the BNP return to the provisions enacted by Zia in 1977? Will the Constitutional Reforms Commission proposed in the BNP’s 31-points find a way out of this impasse of contradictions in the constitution? Will the commission solicit views from a broad range of political and civil society actors, including the Awami League? Will Islamic provisions be reworded to become more compatible with the fundamental principles of state policy? Will secularism be reworded to be compatible with Islamic provisions? Can the State Religion co-exist with the necessary separation of religion and state in matters of policy like education?
The constitution needs to do away with socialism. A viable alternative can be social justice and pluralism, which is supported by Quranic verses. Article 2A will have to be reworded. It can potentially refer to “equality, human dignity and social justice”, which was mentioned in Bangladesh’s Proclamation of Independence in 1971. It can also refer to fundamental rights. The manner in which Article 2A will be reworded is crucial to the future of secular democracy in Bangladesh.
Proposed reforms
Here are my two cents for rewording Article 2A, with two potential options.
Islam is the religion of the Republic. There shall be freedom of religion in the Republic. This provision shall be enforceable in line with fundamental rights and freedoms.
OR
The Islamic faith, as well as Islamic social justice, are integral values of the Republic. The Islamic heritage of Bangladesh shall be preserved. There shall be freedom of religion in the Republic. This provision shall be enforceable in line with fundamental rights and freedoms.