The Secularity of Bangladesh Constitution after 15th

Amendment

S. M. Masum Billah

Critics point out that retention of Islam as the ‘state religion’ and restoration of
secularism at the same time can not go together. So, 15 th amendment has been a mess,
they claim. I argue that even retention of Islam under the garb of ‘state religion’ has not
snatched away the secular character of the constitution. It will be proper to mention the
relevant provisions of Article 2A after the 15th Amendment: The State Religion.—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 religion.” This gives rise
to certain questions in mind: Is it necessary at all to retain a state religion in the
constitution? To what extent theocratisation in the constitution may be allowed?

The word ‘equal status’ and ‘equal rights’ deserves concentration. A flexible reading of
Article 2A under the marginal note ‘the state religion’ may be like this: State shall ensure
equal status and equal rights in the practice of religions like Islam, Hinduism, Buddhisim,
Christanity and Other religion. The earlier provision of the constitution on the point may
be cited for better understanding: “The state religion of the Republic is Islam, but other
religions may be practiced in peace and harmony in the Republic.” Such provision
contained a sort of denunciation and a concession for other religions. Can we now regard
the present provision a definite development towards religious equality and secularity?
The mentioning of religions by name and conceding state’s obligation to elevate the same
status [as that of the state religion] better serves the connotation I am trying to fabricate to
the word ‘secularism’. The contextual interpretation of constitution suggests that ‘state
religion’ in Bangladesh is not to be taken “as state’s religion. Nor should it be taken to
mean that the state, albeit an abstract entity, has retained a religion. Rather it is designed
to signify that being majority people’s religion, Islam commands separate mentioning. If
the mass people are secular in thinking and practice (indeed so the Bangladeshi people),
such mentioning does not snatch away the secular polity of the constitution.

Whether ‘state religion’ issue comes in conflict with principle of secularism we need to
mention from the preamble first: “Pledging that the high ideals of nationalism, socialism,
democracy and secularism, which inspired our heroic people to dedicate themselves to,
and our brave martyrs to sacrifice their lives in, the liberation struggle, shall be the
fundamental principles of the constitution.” A careful reading of this preambular pledge
unfolds that Article 2A (State religion) is excluded from being the ‘fundamental
principles of this constitution.’ It seems that these great words used in the preamble gain
somber meaning when we are gripped by a grim crisis because ‘secularism’ as a
cornerstone of the constitution is confused and bigoted both by the right and left body
politic. It is settled law that a constitution is to be understood and interpreted in the lofty
ideals of the preamble, as preamble is said to be the ‘guiding star’ ( Per M. H. Rahman J.
in 8th Amendment Case, 1989) and touchstone of the constitution. The opening five
words ‘We, the People of Bangladesh’ are revolutionary in the sense that it has
recognized the people’s sovereignty on power in a locomotive manner. Indeed, these
social-contract reflective words should be the entire fabric of the secular character of the
constitution. The jurisprudence of secularism in its magnificent panorama should also
embrace the nationalistic ethos and economic synthesis for an exploitation free society.
(New Article 9 and 10)

The extent of meaning of secularism should be understood in the meaning as

Bangabandhu coined and actually used in the constitution. The content of Bangladeshi
secularism has found place in the revived Article 12. As per this Article the word
secularism will mean the followings: i) elimination of communalism ii) Non-granting of
political status to a religion iii) Non-abusing religion for political purpose and iv)
freedom of religion and practice of non-discrimination and non-persecution on religious
grounds. It appears that the essence of secularism is not some thing divorced of religion,
rather it has emphasized on not using religion to vindicate political purpose and religious
freedom. To accentuate this proposition one should further conjunctively read Article 12
along with Article 39 and 41 of the constitution. Article 41 guarantees freedom of
religion subject to law, public order and morality. The revived Article 38 runs as thus,
“Every citizen shall have the right to form associations or unions, subject to any
reasonable restrictions imposed by law in the interests of morality or public order.”
However, there are certain qualification to form and becoming a member of an
association or union. The proviso to Article 38 prohibits association if such is designed to
—i) destroy the religious, social and communal harmony among the citizens; ii) create
discrimination among the citizens, on the ground of religion, race, caste, sex, place of
birth or language iii) organize terrorist acts or militant activities against the State or the
citizens or any other country and iv) thwart the objectives of the constitution. As such, it
seems that the Bangabandhu-professed secularism as reflected in the original constitution
(and now revived constitution except the concept of ‘state religion’) did not exalt
irreligion nor it make secularism itself a religion rather it emphasized on freedom of and
equality among religions discarding its western zeal.

Now, let me elaborate the matter from yet another viewpoint of constitutional
interpretation. Article 12 squarely falls within the part of Fundamental Principles of State
Policy (Part II from Article 8-25) of the constitution. A constitutional lawyer knows the
significance of Fundamental Principles of State Policy (FPSP). It has been enshrined in
Article 8 that FPSP (with the essence of nationalism, socialism, democracy and
secularism) shall be i) fundamental to the governance of Bangladesh, ii) applied by the
State in the making of laws iii) a guide to the interpretation of the Constitution and of the
other laws of Bangladesh, and iv) form the basis of the work of the State and of its
citizens. So the entire rubric of constitutional canvas should be taken in the light of these
philosophical postulates. A harmonious construction of Article 2A, 8, 9, 10 and 12,
therefore, discards any contradiction between the concept of ‘state religion as used’ and
the concept of ‘secularism’ as envisaged. The secular think tank of Bangladesh has
always argued that ‘secularism’ in Bangladesh does not mean ‘dhormoheenota’. Contrast
between Article 2A and 12 is only possible when secularism is taken in this
‘dhormoheenota’ sense. Otherwise, a harmonious interpretation is very much within the
constitutional contemplation. Some people say that FPSPs are ‘not judicially
enforceable’. This interpretation is obsolete now and constitutional and human rights
jurisprudence has taken a new strategic approach to enforce the FPSPs in the form of
socio-economic rights. With the mellowness of ‘universality, inalienability, indivisibility’
of human rights concept, the non-justiciability of state principles does not sustain at all.
Bangladeshi secularism, without borrowing from western rationalism or Marxian
materialism must go to its roots of comity and peaceful co-existence of the religions.

Many people have also raised the issue that by using some religious words in the opening
have tainted the provision of secularism. The opening with the Islaimic words ‘bimillah-
ar-rahman-ar rahim’ is now suffixed with its Bangla translation and an addition of a
purely common connotation like ‘Creator’ and ‘Merciful’. This ‘commonality’ also gives
the fuller meaning of secularism concept as the constitution in the present format is trying
to convey. Even it may be submitted that starting with the creator’s name has been so
customary in our democratic fabric that it conveys not only a religious sense but also
populized wisdom. Above more, a constitutional law student understands that the
opening paragraph of the constitution starts with ‘We, the people of Bangladesh (amra
Bangladesh-er jonogon)’ connoting paramount prominence of people’s sovereignty and
secularity of our democratic polity. In a ‘People’s Republic’, the mentioning of the name
of the religions should be treated a mere constitutional courtesy. In 5th Amendment Case,
the Appellate Division has established that (also confirmed by the 15 th Amendment of the
Constitution) is basic structure of the constitution.

To reiterate, principle of secularism has forbidden the state to allow any body to use
religion for achieving political ends. The provisions gives the full freedom of exercising
one’s own religion and refrain people to exploit religion for vindicating personal gain. To
my understanding retention of secularism and state religion in a passionate form has
glorified our constitution a great deal. The more and speedy we would understand it, the
more welfare can stem out from it. Under the present form on the point, when
Bangladesh would be said to be a secular state it would mean that we do not reject the
reality of an unseen spirit or the relevance of religion in life. It would not mean that we
acclaim irreligion. It would not mean that secularism itself would become a positive
religion or the state assumes divine prerogatives. It should mean we would hold religious
impartiality or comprehension or forbearance. The state religion in its present form is an
admission that religion has a prophetic role to play within the national and international
life.

In religions there are wide options, in traditions there are ample flexibility. Each
generation can choose for emphasis the elements that appeal to it most. Religion thus
becomes a reservoir, a source of strength for social cohesion and change. It is really
tough to reject by a reformer the role of religion in making our polity because of some
‘assumed theology’ of secularism. To try to put our understanding of secularism into the
western zeal would unreal escapism or impulsive rashness. Truth of religions should not
be made irreconcilable with social and humanitarian ethos of our times. Nor would it be
irreconcilable with reason. It should represent a pattern of institutional framework for a
true synthesis of reason and compassion, spirit of tolerance and freedom of faiths. The
observation of Indian Supreme Court in Atheist Society of India v. Govt. of AP
(1992),may be relevant here, “Secularism is at once an ideal and an inspiration, a goal as
well as a striving, a product as well as a process. It is made of aggregation rather than
segregation, of synthesis rather than separation, of pluralism rather than dominance” (Per
J E Prasad J.).

A society should have the readiness to absorb a foreign concept. It’s better to grasp it in
its own societal concept. Which is the best constitution practicable for this or that set of
circumstances and what are the best ways of preserving existing constitutions? The father
of comparative constitutionalism Aristotle in his the Politics has responded to this
question in this way: “[P]olitics has to consider which sort of constitution suits which sort
of civic body. The attainment of the best constitution is likely to be impossible for the
general run of the states; and the good law giver and the true statesman must therefore
have their eyes open not only what is the absolute best, but also to what is the best in
relation to actual conditions.”

Therefore, in referring to secular constitution we should simply mean: a polity where

there exists a genuine commitment to religious freedom what is manifest in the legal and
political safeguards put in place to enforce that commitment. There are two alternative
dimensions of secularity. First is the consequential dimension of religiosity which
signifies that whether religion is deemed important by the people who practice it. It also
pleads the religion’s explanatory power in apprehending the structural configuration of a
given society which also captures the anthropological concept of a cultural ‘way of life’
in which a religious systems of beliefs, symbols and values becomes ingrained in the
basic structure of the society and ultimately sets the parameters within which vital
societal relations occur. There is no reason why Bangladesh should think itself an
exception.

The second dimension is the official cognizance of a religion. In such a dimension it is to

be seen how far a state is decisively identified with any particular religious group. The
essence of such an approach is the government’s neutrality to religion where formal
identification of a state with a particular religion does not in itself remove the state from
the category of secular regimes. Sweden, for example, has had an established Church, but
the legal designation hardly disqualifies that country from asserting its secular
credentials. We can accommodate Bangladesh even within this dimension. The
constitutional promise of state neutrality toward religious groups is corollary of the
transformational agenda of Bangalee nationalism (Article 9), a cardinal objective of
which the democratization of a social order inhabited by a thickly constituted religious
presence.

T. N. Madan, a famous Indian sociologist delivered a controversial and influential

address to the Association of Asian Studies in Boston in 1989, wherein he argued: “In the
prevailing circumstances secularism in South Asia as a generally shared credo of life is
impossible, as a basis for state action, impracticable; and as a blueprint for the forseeable
future, impotent.” Madan had his own reasons for reaching such a conclusion. But there
are at least two basic reasons why western concept of secularism should not find its
recognition in Bangladesh constitutional culture and morality. Firstly, the western
concept of secularism does not naturally flow from many religions and secondly, religion
zealots often use religion to mobilize the masses to advance their own agendas. Apart
from that three important aspects of threat for a successful secular polity can be traced in
modern times. First, the rise of human rights in international law has given religious
freedom a superimposed legality on the national and municipal landscape. In other words,
the right to profess or propagate one’s religion is no longer dependent on whether or not
the constitution recognizes such a right. Second, widespread migration in different
countries has brought the necessity to respect religion under the garb of legal protection.
In the third place, population of many countries has rejected the secularism divorced of
religion as soulless and morally bankrupt. And to this, scheming and unscrupulous
politicians who use religion to win votes are even more problematic.

‘Islam’ as the ‘state religion’ in a sweeping language was inserted in 1989 by the 10 th
Amendment. When secular character of the constitution was restored firstly by the apex
court of Bangladesh by nullifying the 5th Amendment and secondly through 15th
Amendment by the parliament, the ‘state religion’ provision was not attracted. It was a
question for the parliament whether Islam as a state language should be deleted or not.
The religious zealots and politics having religious fervor appeared as barrier having its
emphasis on ‘delete Islam’. So, it was wise for parliament to accommodate some avenue
for the ‘secularism’ even recognizing the presence of religion in Bangladeshi body
politic. The readers perhaps would see that in the face of religious concern even a women
policy providing equal access to property had to be defended by the Prime Minister
herself with the civil society’s voice unheard! Attaining the objectives of a secular state
by giving it a somber meaning is better than to put fanatics in the streets all the year
round leaving constitutionalism itself in jeopardy. Therefore, secularization does not lie
merely in constitutional deliberation or adjudication but in the building of a strong civic
culture and traditions where respect, tolerance and accommodation are second nature. It
requires that the people believe in the value of human life, liberty and human dignity.
That’s why it is argued that we want to establish a workable secular state keeping religion
somewhere in the background. With some positive recognition of religions, the principle
of secularism is thus anchored in our constitution. The recognition of religions under the
state’s garb can at best be a constitutional courtesy, which may not imply any deviance
from the paramountcy of secularity as the warp and woof of the constitutional fabric.
Now it is up to us what kind of secularism we would develop in the days to come. To
finish let me quote Justice VR Krsihna Iyer: “Secularism is a goal as well as a process.
As an ideology and as a bundle of working norms, it is conditioned by the past legacies
and the prevailing realities. It also shapes the course of social evolution and the thought
processes.”

S M Masum Billah is Assistant Professor, Department of Law, Jagannath

University, Dhaka. E-mail: billah002@gmail.com