"Religion-Based Politics in Bangladesh: Reality and a constitutional Dissection

In recent times, one major issue that has drawn our attention in Bangladesh is the controversy surrounding the latest amendment to the constitution enacted by the government. This has led to a significant divide and a crisis of trust between the government and opposition parties. The amendments have focused on the principles of governance, secularism, and religious neutrality, among other fundamental changes.

This ideological divide has given rise to a series of protests and strikes, causing disruptions and challenges to the political landscape. The contentious issues related to the constitutional amendments have fueled a cycle of protests and strikes, leading to a strained political environment in Bangladesh.

While these are opposition parties' democratic rights, the government's response has been perceived as increasingly intolerant. This has created a precarious situation in the country, with the ordinary people likely to suffer the most from the resulting instability.

In a broader context, it appears that the recent constitutional amendments have emboldened the government to take a more aggressive stance against opposition parties, potentially leading to a more passive role for them. This shift in dynamics was first seen with the government's use of the doctrine of necessity to nullify the rule of law.

In the coming days, another contentious issue that the government might bring to the forefront is the potential curbing of the influence of religious-based political parties, either partially or entirely, on their political activities. This issue has already been raised, with demands for the execution of war criminals gaining momentum, stemming from the Shahbagh Movement.

If the government takes any steps to officially restrict religious-based politics, it is likely to further exacerbate the already fragile political situation in the country, which could have adverse consequences, particularly for the weaker political atmosphere in Bangladesh. There is little doubt that such a move would significantly impact the political landscape.

The Constitution of Bangladesh, specifically in Article 41(1)(k), guarantees the right of every citizen to freely practice and propagate their religion, and this is in line with the principles of many other countries' constitutions. However, the Constitution does not provide explicit details or provisions regarding the consequences or restrictions related to exercising this right in the context of political activities.

However, when it comes to participating in political activities where religion becomes a part of the equation, the constitution does not explicitly provide detailed provisions regarding the consequences or restrictions related to exercising this right in the political context. The interpretation and application of these rights in the political arena can be complex, and the specific legal framework or regulations governing the intersection of religion and politics may need to be determined through legal and political discussions, taking into account the broader principles of the constitution and the maintenance of law and order. The acceptance of state power or politics in Islam or any other religion's indivisible part may vary, and even though there are differences of opinion on this matter, at present, in nearly over ninety countries around the world, religious-based parties are engaging in politics, and some of them are also gaining power.

The main thread of discussion regarding the constitutional validity of religious-based politics in Bangladesh emerged following the nullification of the Fifth Amendment by the Supreme Court. The Shahbag movement further fueled this debate. Interestingly, when referring to religious-based parties in Bangladesh, it is often synonymous with Islamic parties because, so far, no other religious-based party has actively participated in Bangladeshi politics.

During the political reforms under the Caretaker Government of January 11, 2008 witnessed extensive debates and controversies regarding religious-based politics in Bangladesh. In this context, some Islamic political parties attempted to register themselves with the Election Commission, and this led to discussions about amending their organizational structures. To better understand the position and constitutional validity of religious-based politics in Bangladesh, there is a need to revisit this issue.

In pre-independence Bangladesh, religious-based political parties actively participated in the country's politics, including the 1971 Liberation War. However, for various social, religious, or political reasons, many of these religious-based parties found themselves on the opposing side during the Liberation War. As a result, they lost their political rights and influence in the newly independent Bangladesh after the war. Article 38 of the 1972 Constitution of Bangladesh addressed the issue of the freedom of association. It stated that the right to form associations or unions for any lawful purpose would be guaranteed to every citizen. However, there was a condition that no person would have the right to form or be a member of an association or union, or to participate in its activities if that organization was formed on the basis of religion or if it pursued any political goal or objective based on religion or religious considerations. This provision aimed to maintain the secular nature of the state and prevent the formation of religious-based political organizations.

After the change in power in 1975 and the subsequent promulgation of martial law by General Ziaur Rahman, Article 38 of the Constitution, which previously restricted the formation of religious-based political parties, was amended in 1978. General Ziaur Rahman's administration abolished the condition mentioned in Article 38 that prevented the formation of political parties based on religion or with religious objectives. This change in constitutional provision paved the way for the formation of political parties like Jamaat-e-Islami, Nezam-e-Islami, and others that had religious affiliations or objectives. This amendment was later further validated through the Fifth Amendment to the Constitution in 1979. So, after the Fifth Amendment, Article 38 states - 'In the interest of public order or public health, the right to form associations or unions shall be guaranteed only to the citizens, and the right to form such associations or unions shall not be denied to any citizen on the grounds of religion, race, caste, sex, place of birth, or any of them.' As a result of this constitutional provision, Islamic parties and other political parties regained their legal status. Gradually, they began to participate in general elections and resumed their political activities.

This allowed for more specific directions regarding sectarian or religious interests and political objectives after the Fifth Amendment, and it enabled the approval of constitutional legitimacy. It has allowed political parties with communal or religious purposes, which were once banned, to gain popular support and participate in politics.

As they gradually took part in five consecutive parliamentary elections and after 31 years, when the verdict on the Fifth Amendment was nullified in 2010 by the court, questions began to arise about the legality of religious-based parties' participation in politics from various perspectives.As per the latest amendment, Article 38 states, "Every citizen shall have the right to form associations or unions in the interest of public order or public health, but the exercise of this right may be regulated by law in the interest of morality or public order." However, it is subject to certain conditions:

1. Such associations or unions cannot be formed if their purpose is to undermine religious, social, or communal harmony among citizens.
2. They cannot create discrimination among citizens based on religion, race, caste, sex, place of birth, or language.
3. They cannot be organized to conduct activities against the state or against any other country.
4.  Its formation and objectives are contrary to the principles of this Constitution."

This means that even though it may not be explicitly stated, within the scope of this article, the government can impose restrictions on Islamic parties in Bangladesh because the country's constitution, through multiple amendments including the Fifteenth Amendment, is in conflict with their organizational structure and activities, and this conflict is a contentious issue in Bangladesh's politics.

The constitutional definition of secularism and religious freedom is found in Article 12 of the 1972 Constitution of Bangladesh, which was nullified through the Fifth Amendment and reinstated with modifications through the Fifteenth Amendment. It states, "In the interest of the realization of the objectives of this Part, - (1) there shall be no discrimination against any citizen on grounds only of religion, (2) no religious community or denomination shall be granted any special privilege in the matter of access to public institutions or in the matter of government patronage or assistance or in any other matter involving public interest, (3) no person attending any educational institution shall be required to receive religious instruction, or to take part in or attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own, (4) in respect of any religious institution, there shall be no discrimination against any citizen on the ground only of religion." 

Here, an important point to note is that it is stated that no religion shall be given the status of the state religion by the state, but the state religion of Islam and other religions shall be given equal status. While this may not be contradictory, the third condition of the article, which is to 'prevent the abuse of religion for political purposes,' can be a significant reason for Islamic parties to be concerned. Because the term 'abuse of religion' is not clearly defined, and there are no specific statements about how it occurs or to what extent, the government can, if it wishes, define it as it sees fit and use it against Islamic parties. Furthermore, the replacement of the phrase 'complete faith and trust in the Almighty Allah' with 'secularism' in Article 8 of the Constitution is seen by many as a negative sign for Islamic parties, as these core principles can have implications when interpreting and implementing any law.In summary, the lack of a clear definition of 'abuse of religion' and the changes in the core policy of the state can be a cause for concern and a point of contention for Islamic parties when it comes to the interpretation and application of laws.

However, some people believe that political parties will not fall within the scope of Article 38. This is because Article 38 refers to associations and organizations, while Article 152 defines a political party as a group or combination of persons. The Representation of the People Order, 1972 (RPO 1972) has indeed adopted the definition provided in Article 152(1) of the Constitution. Therefore, according to their interpretation, political parties would not fall under the purview of that article. Instead, non-political religious organizations, such as the Khilafat-e Nabuwat Movement, Hefazat-e Islam, Ulama Mashayekh Parishad, or Hindu-Christian-Buddhist Unity Council, would be included within its scope.

From an international perspective, several countries like Germany, Algeria, Portugal, South Africa, Spain, Argentina, and others have provided "the right to association" in their constitutions alongside separately outlining "the right to form political parties." In the Turkish constitution, there is a detailed discussion of the conditions for forming political parties. Therefore, the perspective of these researchers is that interference in religion-based politics cannot be restricted under Article 38, but it can be addressed under Article 12. However, it should be noted that like Bangladesh, many other countries, including India and Pakistan, also include political parties within the definition of "association" in their constitutions. In a case in the United States (National Association for the Advancement of Colored People v. Alabama), it was even recognized as such. In Pakistan, in another case (Progressive of Pakistan Ltd v. Registrar, Joint Stock Companies, 1958), the term "association" in the constitution is broad enough to include not only political parties but also business firms and companies.So, if the government deems it necessary, it can take any measures under Article 38.

If we look beyond the borders of our country, we would be amazed to see the activities of religious-based political parties on a global scale. In almost eighty-one countries, various Christian-based parties are actively involved in politics. Parties like the Christian Democratic Party or the Christian Socialist Party operate in different countries. In Germany, under the leadership of Angela Merkel, the Christian Democratic Party is currently in power.In addition to the Netherlands and Argentina, there are various other countries around the world where such parties hold power. These parties also exist as strong opposition parties in different countries. Even though they bear the name "Christian" parties, in most cases, they adhere to their national constitutional policies, and in many instances, this means secularism (which implies that Christianity does not have a specific role in politics or state affairs). On the other hand, in Muslim-majority countries, the situation with religious-based parties may be different. In approximately 30 countries, there are around 79 Islamic parties currently engaging in political activities under democratic systems. However, among Muslim-majority countries, religious-based politics is constitutionally prohibited in four main countries: Egypt, Turkey, Algeria, and Tunisia. Additionally, in some former French colonial territories in West Africa, religious-based politics is also constitutionally prohibited (since France prohibits religious-based politics). Nevertheless, in most countries, even if the constitution doesn't explicitly address the issue, the legality of political parties is typically determined based on prevailing laws, national interests, and other considerations.

In Bangladesh, the Election and Political Parties Act, 1972, is the law followed for the management of elections and political parties. However, in pursuit of a comprehensive reformation of the country's politics, the immediate past government, led by President Iajuddin Ahmed, issued the Representation of the People (Amendment) Ordinance, 2008, on August 19, 2008. This ordinance brought about some fundamental changes in the law, making it mandatory for political parties to register with the Election Commission, a requirement that was optional under the previous law of 1972. Under Section 90(G) of this ordinance, new conditions are introduced for the registration of political parties. These conditions state that a political party will not be registered if:

1. The objectives and purposes of the party conflict with the constitution.
2. The party promotes discrimination based on religion, ethnicity, language, race, etc.
3. The party's name, flag, symbol, or any other activities have the potential to disrupt communal harmony or undermine the sovereignty of the country.
4. The party has branches or committees outside of Bangladesh.

Notably, this ordinance required Islamic parties to make significant changes to their constitutions in 2008 to be eligible for registration. These changes included increasing female representation, ensuring representation of people from other religions, and, in particular, changing the party's name. However, while the first condition under Section 90(G) did not have any direct impact on the organizational structure of political parties until then, it has become a significant issue in the context of the current amended secular constitution. In addition, Section 90(J) of the ordinance mentions some conditions for the cancellation of the registration of political parties, and one of the reasons listed under 1(K) is being declared banned by the government.

The fundamental ideology of the organizational structure of Bangladesh Jamaat-e-Islami, one of the most influential Islamic parties in Bangladesh, can be found on their website. According to their website, until October 2008, they believed in a fundamental organizational structure outlined in Section 2(5), which states:

"Man shall not accept anyone as sovereign, king, emperor, or absolute ruler except Allah. Man shall not consider anyone as having the right to issue commands and prohibitions independently, nor shall he consider as acceptable any loyalty other than loyalty to Allah, or any law other than Allah's law for governing his life."

This ideology reflects their belief in the sovereignty of Allah and the adherence to Allah's law as the basis for governance, rejecting any other form of authority or loyalty beyond Allah's. It's important to note that this ideology is specific to Bangladesh Jamaat-e-Islami and may not represent the views of all Islamic parties or organizations.In Section 3(3) of Bangladesh Jamaat-e-Islami's organizational structure, they outline their objectives and goals as follows:

1. Having complete faith and trust in the Almighty Allah.
2. Upholding the ideals of democracy, economic and social justice, and preserving religious, racial, and communal freedom without discrimination.
3. Ensuring the fundamental human rights and freedoms of all people without distinction of religion, race, or caste, and ensuring the safety of life, property, and honor.
4. Promoting equitable distribution of wealth, national income, and production.
5. Striving for the establishment of a prosperous Bangladesh free from exploitation, corruption, and terrorism through the improvement of people's living standards.

In Section 3(4), they express their commitment to fostering brotherhood among Muslims worldwide and maintaining friendly relations with all nations based on justice and fairness.These objectives and goals reflect the organization's core principles and values as outlined in their organizational structure.(Please note that this information is specific to Bangladesh Jamaat-e-Islami and may not represent the views or objectives of all Islamic parties or organizations.)

"While it may be inevitable in the eyes of this Islamic party for all these provisions to serve the interests of an Islamic party, when viewed from a constitutional perspective, these provisions violate the current constitution of Bangladesh (the Fourth Amendment) and the fundamental principles of state governance. Furthermore, the conditions stated in Jamaat's objectives and purposes were consistent with Article 8(1), 8(1)(k), and 25(2) of the constitution until a few days ago, but they have now been altered through the Fifteenth Amendment (replacing absolute faith and trust in Almighty Allah with secularism and abolishing the provision for establishing fraternal relations with Muslim countries). Therefore, these provisions can also be seen as conflicting with the current secular constitution. Similar conditions are found in the constitutions of other Islamic parties, so the government can identify and control or prohibit religious-based politics in this regard."

In our country, there are currently 39 registered political parties, out of which 11 are Islamic parties. Among them, Bangladesh Jamaat-e-Islami was the first registered Islamic party, which was registered with the Election Commission in November 2008. When we look at their participation in national elections, Jamaat-e-Islami was unable to participate in the first election in 1973 due to the prohibition of religious-based parties. In the 1978 elections, they started participating and won ten seats. In the 1991 elections, they secured 18 seats, and by 1996, they had won three seats. After gaining 18 seats in the 2001 elections, Jamaat-e-Islami managed to secure only two seats in the latest election in 2008. Other Islamic parties have not been as prominent in elections, and their participation has not been closely monitored.

If we look at the registration and operation of political parties from an international perspective, we can observe some variations in different countries:

1. Myanmar: In Myanmar, there is a military-drafted constitution that prohibits political parties from using religion for political purposes. This means that political parties cannot be organized or operate based on religious principles.

2. India: In India, the Representation of the People Act, 1951, under Section 29A(k), requires every political party to include in its constitution a specific clause stating that the party shall bear true faith and allegiance to the Constitution of India and uphold the principles of socialism, secularism, and democracy.

3. England: In the United Kingdom (England), the registration of political parties focuses more on organizational strength and financial transparency rather than imposing restrictions based on religious or ideological grounds.

4. Ireland: Similar to England, Ireland's registration of political parties emphasizes organizational and financial aspects rather than religious or ideological criteria.

5. Pakistan: In Pakistan, political parties operate within the framework of the Constitution and must adhere to democratic principles. While religion plays a significant role in Pakistani politics, there is no separate legal provision that directly restricts religious-based political parties.

6. Sri Lanka: Sri Lanka does not have explicit legal restrictions on religious-based political parties. However, religion and ethnicity have been influential factors in the country's politics.

7. Australia: Australia does not have specific legal provisions restricting religious-based political parties. Political parties in Australia are generally required to adhere to democratic principles and financial transparency.

It's essential to understand that the legal framework surrounding political party registration and operation varies from one country to another and is often influenced by historical, cultural, and political factors. While some countries may have specific restrictions on religious-based parties, others focus on democratic and organizational criteria. Each country's approach to regulating political parties reflects its unique political and social context.

A comprehensive discussion of religion-based politics in the current unstable socio-political landscape of Bangladesh can further exacerbate the situation. During the rule of the caretaker government in 2007-2008, some intellectuals and members of civil society had appealed to the Election Commission regarding this issue. However, at that time, the Election Commission did not impose any additional restrictions or regulations on religion-based political parties. In a country where about ninety percent of the population is Muslim, there is often a presence of intense religious fervor and sectarianism, and these religiously-oriented parties enjoy support among a significant portion of the population. If the government were to impose any direct or indirect control over these parties through the constitution or secularism-related policies, it could potentially create a volatile situation and even aid extremist or militant elements, both domestically and internationally, by providing opportunities for destabilization.

The dreams and aspirations of millions of people in the country, combined with the enthusiasm and potential of the youth, create boundless possibilities for the future of this nation. However, the emergence of a situation like this, which is not desirable for anyone, is a real challenge. If the government attempts to take any such action, it should strive to combat it through regular democratic means, engage in dialogue with the intellectual community of religion-based political parties to find alternative solutions, or reach a compromise. We are hopeful that by moving away from extremism, narrow-mindedness, and the politics of vengeance, and by embracing a more inclusive and tolerant democratic path, the country can build an effective parliament based on the participation of the people, which will open the door to an enlightened future for the nation.