Ban
on Ahmadiyya publications
Constitutionality
of the decision
Sheikh
Hafizur Rahman Karzon
Democracy
is the rule of those who get the highest number of votes cast in an
election. In no way democracy is a rule of majority. The four party
alliance, now running the administration of Bangladesh, got 48% votes
of the total. Rest of the people (52%) did not confide them to run the
state affairs. Nevertheless it is the democratic system developed and
practised for centuries through which people express their choice and
confide a political party, for several years, to run the state apparatus,
which gets highest votes in the election, though it does not represent
majority. After the election the winning party, democracy desires so,
should hear voice of all and execute their demands as far as practicable
through balanced sate policy.
Among the political
systems hitherto emerged, democracy is the best. It is unique not because
it gives equal status to all the citizens in terms of voting rights,
but it ensures rights of all the diverse groups and cross-section of
people of any given polity. The efficacy of democracy is tested by how
far it is able to protect the rights of minority. Functioning of democracy
is characterised by expression of dissenting opinion and ventilation
of resentment. Tolerance and respect for others belief pertain to the
fundamental teaching of democracy without which its continuance will
be in jeopardy.
Minority
rights in Bangladesh are protected by articles 27, 28, 29, 31, and 41
of the Constitution. There are, broadly, two types of minorities, religious
minority and ethnic minority, who constitute almost 15% of the total
population. In spite of the constitutional safeguards, minority remains
deprived most of the time. Ethnic minorities in Chittagong Hill Districts
had organised armed resistance in response to the policy of state earlier
on, which they did not accept. The Hindu community has been subjected
to threat, persecution, killing, rape etc. in different times. Recently
another religious minority, Ahmadiyya Jamaat, has experienced ban on
their publications. The government by an order on January 8 proscribed
all publications of Ahmadiyya Jamaat igniting severe criticism and protest.
Article 41 of the
Constitution guarantees freedom of religion as (a) every citizen has
the right to profess, practise or propagate any religion; and (b) every
religious community or denomination has the right to establish, maintain
and manage its religious institutions. Citizens can enjoy freedom of
religion subject to law, public order and morality. 'Subject to law'
in no way can be interpreted to take away the right to profess, practise
and propagate religion. Legislature can only regulate the manner of
how to profess, practise, and propagate religious belief and the functioning
of religious institutions. (Jibendra Kishore Vs. East Pakistan, 9 DLR
(SC) 21.)
Religion is such
an influential institution that it has become inevitable part of human
existence. Every religion developed its own ides about human creation,
their destiny and gave a code for this mundane life. The uniqueness
of religion is that one cannot always explain it by reasons, it is a
cluster of beliefs to which most of the human beings take resort. Religions
are numerous, their sub-sects and ideas are so diverse that religion
should be left at the private sphere of citizens, state has nothing
to do with the religions of the citizens. Most of the western countries,
taking lesson from their medieval experience, incorporated the principle
of secularism, the principle which was successfully imprinted in the
original Constitution of Bangladesh. Madina Pact, concluded under the
authority of Prophet Muhammad (SM.), is widely cited as a good example
of secular practice.
In a modern state
religious issues are kept beyond the interference of state, a citizen
can believe in a religion, or he/she may be a non-believer. Faith and
belief in specific doctrines are very much part of the religion. (Commissioner,
HRE Vs Lakshmindra, AIR 1954 SC 282). The freedom of religion includes
the right to hold no religious belief at all. The constitutional guarantee
for freedom of religion goes so far that it also includes anti-religious
programmes. (McGowan Vs. Maryland, 366 US 420).
Let us examine under
which law and authority government has proscribed the publications of
Ahmadiyya Jamaat. When taking the decision government considered article
41 of the Constitution and section 295A of the Penal Code. Government
policy makers argue that government may ban any publication which hurts
the religious belief of others and without which peaceful environment
of society cannot be maintained.
Government decision
does not seem to be correct because the decision is, at the first sight,
violative of article 39 and 41 of the Constitution. By this decision
government has taken away the right of the Ahmadiyya community to profess,
practice and propagate their religious belief guaranteed by article
41 and their freedom of speech, expression and its publication guaranteed
by article 39. Though these rights have been given on the condition
of law, public order, morality etc, but there is no sign or strong indication
that religious belief of Ahmadiyya community and their publication hurt
feelings of majority or constituted considerable threat to public order.
There was no referendum
or any other credible evidence that majority people demanded ban of
Ahmadiyya publication, which government could cite to substantiate their
decision. Only some small religious groups, who hold at best 7-8% support
of the total population, masterminded the whole issue of banning Ahmadiyya
publication. The way some extremist groups organised violent assembly
is punishable under the Penal Code. Instead of controlling their violence
and penalising them government bow down to their grossly unreasonable
demand and rewarded them by banning all the publications of Ahmadiyya
community.
Government's decision
suffer from a serious contradiction because of its inherent lacuna.
The extremists demanded to declare Ahmadiyya community non-Muslim and
ban all their publications. Government only banned all the publication
of Ahmadiyya community recognising their religious identity valid as
government did not declare them non- Muslim. Here lies the basic contradiction
of governmental decision. If the government considers the religious
identity of Ahmadia Jamaat valid, they must have the constitutional
right to profess, practice, and propagate their beliefs and make them
published. Government on the one hand let them to practice their religion,
on the other proscribes to profess and propagate the same. This basic
contradiction indicates that government did not consider the matter
judiciously.
Tolerance is the
basic lesson of democracy. Ventilation of dissenting view is the safeguard
of a vigorous society. Without the protection of minority rights, a
democratic polity cannot sustain itself. Its solidarity and progression
depend on the recognition of minority groups and peaceful enjoyment
of their beliefs and rights. Muhammad (SM), Prophet of Islam, concluded
Madina Pact with Christians, Jews and even with infidels, against whom
prophet continued his life long struggle. He followed the principle
of secularism for ensuring a peaceful environment for all existing communities,
the principle which deserves universal utility for any country having
many religious and ethnic denominations. Bangladesh is not an exception
to it.
Sheikh
Hafizur Rahman Karzon is a Lecturer, Department of Law, University of
Dhaka.
