THE LEGALITY OF A STATE RELIGION IN A SECULAR NATION.

• Published date: 01 January 2018
• Author: Huq, Eusef Robin
• Date: 01 January 2018

INTRODUCTION

In June of 1988, the Bangladesh Parliament passed the eighth amendment to its Constitution. (1) The Constitution (Eighth Amendment) Act, 1988 specified amendments to various articles of the Constitution. (2) Section 2, in particular, set forth the insertion of Article 2A, declaring Islam the official religion of the previously secular State. (3) Several groups promptly launched protests subsequent to the bill's passing. (4) One group in particular, calling itself the Committee for Resistance against Autocracy and Communalism, (5) filed a writ petition contesting the amendment's lawfulness. (6) Nearly three decades later, amidst troubling extremist activity in the country, (7) the twenty-eight-year-old petition finally went before the Bangladesh High Court (8) on March 28, 2016. (9) Without reaching the merits, the Court summarily dismissed the case for lack of standing. (10) Political groups and people favoring Islam as the state religion hailed the decision as a victory. (11) Opposing factions, meanwhile, lamented the preemptive ruling. (12)

This note examines the Court's dismissal and discusses the substance of the petition before ultimately proffering a prediction of how the Court will rule upon the merits of the complaint, should the case proceed on appeal. (13) As the young nation suffers growing pains during this critical time (14) in its development, (15) the constitutional challenge discussed herein underscores fundamental parts of Bangladesh's identity as well as the judiciary's function to interpret the law despite political and religious disputes. (16)

To establish a foundation for the substance of this note, Part I provides a brief history of secularism in the region of Bengal and the events that led to Bangladesh's birth as a secular nation. Part II explains how Islam became the state religion, thereby supplanting the principle of secularism. It then discusses the development of Writ Petition No. 1434 of 1988, which went before the High Court Division in March of 2016, and the Court's dismissal of the case. Part III examines the inconsistency of the High Court's ruling with prior judicial interpretations and addresses the viability of an appeal. It then explores the merits of the writ petition and analyzes the legal arguments of its position.

PART I: SECULARISM IN BANGLADESH

"Bangladesh is a new country with an ancient civilization and culture
                As its mighty rivers flow down[,] one can hear, in their murmurs, the
                music that was heard thousands of years ago. The enchanting beauty of
                its vast green fields spreading to the distant horizon and its azure
                blue sky still reveal the beauty witnessed since the dawn of
                civilization. The people inhabiting the land are well known for
                emotion, a strong sense of values, hospitality, friendliness, a
                capacity to face challenges, endure sufferings, bear losses calmly
                meet the demands of the occasion, and retain firm faith in God." (17)
                

A. PRE-MODERN

The nation of Bangladesh encompasses an area formerly known, and sometimes still referred to, as East Bengal. (18) Bengal, as a region, represents one of history's early melting pots, (19) and it is a place whose people have long appreciated different beliefs and adopted various aspects of differing cultures. (20)

Bengali people descended from Indo-Aryans (21) who settled in the region between three and four thousand years ago. (22) While today most Bangladeshi people are Bengalis, (23) indigenous tribes mostly populated pre-modern Bengal until the early Vedic Period (24) when the Indo-Aryans began arriving from the northwestern Indian subcontinent. (25) As the newcomers settled in the northwest portion of Bengal, their "Brahmanical socio-cultural beliefs" (26) and "strong social hierarchies" (27) as well as "collections of Sanskrit literature... and additional knowledge of agriculture" (28) served to exert both cultural and economic influence over the area's indigenous population. (29)

In 1204 A.D., Mohammad Bakhtiyar's (30) conquest of Bengal "marked the onset of a new phase of identity formation in Bengal" (31) whereby Islamic values increasingly spread among people in the east delta. (32) Both the Brahmanical-based Hindu culture and Islamic culture promoted organization of family and farming systems, making Brahmans (33) and Mullahs (34) "instrumental in teaching new methods of agriculture." (35)

Because of a well-established tolerance among the region's people, Bengali society and culture developed an emphasis on religious inclusion. (36) Thus, both religious identities permeated the society, creating a Bengali culture of "co-existence between old and new religious practices." (37)

B. BRITISH RULE

Despite the history of religious tolerance in the region, (38) British meddling helped fuel the rise of communal violence among Bengalis. (39) Though European trade in Bengal began with the Portuguese in the sixteenth century, the British East India Company significantly expanded its interests in the region over the next two hundred years. (40) By the early eighteenth century, the Company enjoyed lucrative economic privileges (41) and had become the region's foremost commercial outfit. (42)

The British employed a divide and conquer strategy which routinely put Hindus and Muslims at odds. (43) Communal violence became frequent during this era, and following two substantial military victories, the British East India Company had achieved decisive rule over Bengal by 1764. (44) During the following century, the British government replaced the Company and established the Crown's control of Bengal. (45) Meanwhile, India had already begun its ninety-year struggle for independence from the British Monarchy. (46)

Over the course of several decades in the early twentieth century, the British acknowledged the Indian independence movement and attempted to establish a native government that would be subordinate to the British Empire. (47) Bengali people joined the pursuit of independence under British rule and "acquired considerable political consciousness" (48) as they "became fully aware of their legitimate rights and privileges." (49)

Following the Second World War, the British government was eager to relinquish power to the sub-continent and in 1947 enacted the Indian Independence Act. (50) On August 15, 1947, the British abdicated control of the Indian subcontinent, (51) leaving the former British India carved along religious lines. (52) Pakistan, including a divided Bengal, (53) would be occupied by a majority of Muslims, (54) while India remained home to a majority of Hindus. (55) Pakistan comprised West Pakistan and East Pakistan (now Bangladesh). (56)

C. POST-PARTITION (1947)

Soon after Partition, several issues alienated East Pakistan from West Pakistan. (57) There was an obvious "cultural divide between Bengali Muslims and West Pakistani Muslims," (58) and language was a driving factor. (59) It was not long before linguistic differences resulted in violence. (60)

There was demand in West Pakistan to establish "Urdu as the national language of Pakistan." (61) Pakistan's Governor-General Muhammad Ali Jinnah supported this demand. (62) Bengali speaking East Pakistanis, however, who outnumbered the Urdu-speaking West Pakistanis, "could not accept that their language was not to be given equal status." (63) On February 21, 1952, a demonstration involving students ended in open conflict after demonstrators and police clashed, (64) resulting in police opening fire on the protesters and killing several students. (65)

The tragedy swayed the language debate in Pakistan's Constituent Assembly. (66) In September 1954, the Assembly reached the decision that '"Urdu and Bengali and such other languages as may be declared' would be 'the official languages of the Republic.'" (67)

Pakistan's government was, for the most part, controlled by "[m]ilitary officers and retired civil servants," (68) but East Pakistanis were determined to gain power through the democratic process. (69) The first ever general election was scheduled in Pakistan in 1970. (70) The Awami League, an East Pakistan Bengali political party led by Sheikh Mujibur Rahman, participated in the election. (71) Despite victories confined to East Pakistan, the Awami League managed to win the majority of National Assembly seats. (72) Accordingly, Mujibur Rahman, as leader of the majority, would be "the logical of head of government." (73) West Pakistani leaders, however, found Mujibur Rahman unacceptable because his campaign had emphasized East Pakistani autonomy, (74) espousing secularism (75) and Bengali language and culture. (76)

The new National Assembly, which included the recently elected members of the Awami League, failed to convene. (77) In fact, "strikes and riots in East Pakistan" resulted from the inability to reach any sort of comprise. (78)

D. LIBERATION

Political negotiations failed, and Pakistan, on March 25, 1971, "used [its] military might... to crack down on those... described as rebels in East Pakistan." (79) The Pakistani government arrested Mujibur Rahman, and the Pakistani military proceeded to kill many Bengalis. (80) Still, many managed to escape and "carry on the ensuing civil war." (81) India provided aid to the East Bengali rebels (82) and later directly intervened in late November 1971, (83) bringing about the end of the war on December 16, 1971 when "Dhaka fell to the invading Indians." (84) Bangladesh was at last free. (85)

PART II: POST LIBERATION

With India's constitution to serve as a model, drafting Bangladesh's constitution proved to be a straightforward task. (86) The document was adopted on November 4, 1972. (87) Of special importance here is that the Bangladesh Constitution preserved principles essential to the nation's governance. (88) Later known as the "tenets of Mujibism (or Mujibbad)," (89) the enshrined principles included four structural (90) pillars: "nationalism, socialism, secularism, and democracy." (91) On December...