Constitutional Analysis
Revisiting the four fundamental principles of the Constitution
Barrister Md. Abdul Halim
The Preamble of the 1972 Constitution of Bangladesh envisaged and emphasised the core ideals for which Bangladesh as a nation struggled for national liberation. These core lofty ideals were nationalism, socialism, democracy and secularism- known as four basic principles of the Constitution. These four principles are also called poll stars, goal or ideology of the state and “these goals should not be deviated at any event” as has been aptly opined by the apex court. We have seen to our dismay that these ideologies of the nation have been turned into silly matters of pull and haul by the military dictators in the abysmal constitutional discourse of the country. It is claimed that the 15th Amendment has restored these four principles in the Constitution. However, this write up evaluates that this claim is marred by the contradictions in changes with hindsight.
Apparently the 15th Amendment has restored in the preamble the four principles of nationalism, socialism, democracy and secularism. However, this restoration is to be examined in view of other changes in the preamble and Part-II of the Constitution.
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Photo: blogikraninc |
First, while secularism has been restored as a state policy, insertion of “Bismillah-ar-Rahman-ar-Rahim”, retaining 'Islam' as state religion and granting indirectly a fundamental right to association on the basis of religion in article 38 will have bewildering effect on secularism. Secularism and state religion are self-contradictory and these two concepts cannot go hand in hand. However, the reality is that our Republic has lost its secular character; it is now with a hybrid polity- a fusion of Islam and secularism- an ideological hotchpotch which is hardly based on any democratic principle.
Second, by the 15th Amendment 'Islam'- based politics has been given a new lease of life. Article 2A and 12 are contradictory both in terms and philosophy, although both the concepts have been given the status of basic structure of the Constitution. The irony is that this 'internal contradiction of the Constitution' between secularism and 'Islam' as state religion has been maintained by a traditionally secular party Awami League. It is likely that this will open a floodgate for recognition of 'Islamist' parties in the political discourse of the country.
Third, in fact secularism received so far three upside down setbacks: first, “absolute trust and faith in the Almighty Allah” was substituted for secularism by General Ziaur Rahman; second, further blow to secularism was received when General Ershad inserted 'Islam' as State religion in the Constitution; and third, the 15th Amendment has now given another death blow to secularism by reviving it and at the same time retaining 'Islam' as state religion and putting “Bismillah-ar-Rahman-ar-Rahim” in the beginning of the preamble.
History dictates that our political leaders have miserably failed to steer the nation in accordance with these four ideologies. Nationalism coined with “Bangalees” has since its adoption in the original Constitution been one of fundamental points of difference and divergence between mainstream political forces in the country. This sensitive politics of nationalism has entered into its third chameleonic phase (the first phase being 'Bangalee nationalism' (1972-1975); second phase being 'Bangladeshi nationalism' (1975-2011)) with “Bangalee-Bangladeshi” hybrid nationalism by the 15th Amendment despite the apex court's ruling on reviving the original provision of secularism. Thus 'Nationalism' as a fundamental principle in the Constitution has lost its character and instead of being an ideal goal for the nation, it has now been turned into a silly political matter of pull and haul at the hand of political parties for their vested interest.
Likewise, socialism received a setback with the political change over in 1975. Socialism was amended by General Ziaur Rahman with qualification to mean 'social and economic justice'.
In the same way, democracy as an ideology did not have any opportunity to flourish because of weak leadership. The first blow to democracy was hit by the 4th Amendment with one party dictatorship introduced by the very party which pioneered national freedom and the Constitution making. The second blow was stricken by General Ziaur Rahman and then by General Ershad through imposition of Martial law and putting the Constitution, the supreme law of the country, in subordination of martial law. Democracy had a fresh lease of life after 12th Amendment in 1991 but again it was pushed to the ground by the then BNP Government and the President of the Republic in 2007 followed by emergency and military intervention for two and half years. Struggle always followed to restore democracy by the opposition parties and once democracy or democratic environment piped through the widow of the Republic, it was again destroyed by the party in power for the party interest or power expectation. It was the Awami League which pioneered movement for free and fair election under CTG and ultimately it was achieved with huge enthusiasm. Ironically it is now Awami League which gave, by 15th Amendment, the death-blow to CTG, an instrument of free and fair election- one of key components of democracy.
The changes that have been brought into the preamble raises one important question from constitutional jurisprudence: Does the insertion of “Bismillah-ar-Rahman-ar-Rahim” in the preamble amount to destroying basic structure of the Constitution? It remains to be seen how the judiciary reconcile this distorted secularism in view of the judgment in the 8th Amendment and also of the 5th Amendment cases in which the apex court held categorically that the preamble is not only a part of the Constitution, it now stands as an entrenched provision that cannot be amended by the Parliament alone. Ironically the parliament has not only made this distortion but also made all the provisions of the preamble 'eternal clause'. We will have to patiently wait how the apex court comes forward with its judicial activism.
The writer is an Advocate of the Supreme Court.
