The New Nation - Internet Edition

Dr. ABM Mahbubul Islam

Dean, Faculty of Law, Bangladesh Islami University

Recently a demand has been raised as to the banning of Jama`ati Islami Bangladesh (JIB) from various corners. The demand is nothing new but it has been going on for last 36 years, right from the year of independence that is 1971, specially during the month of December, as it is the month of independence. But the issue of this year seems to be different or to say serious than any point of the past. But who and why the demand augmented in this year? They are mostly the secularists & socialist and ultra nationalists based political parties and individuals who have been demanding for said banning. They demand for two things, that is the trial of people belonging to JIB as war criminals and banning of JIB and disqualifying it from Contesting in any elections including parliamentary one. Both issues require a lengthy discussion. But in this article at focus will be made on the issue of banning of polities of JIB only. How far this demand is based on facts and laws or how far the demand is legal are to be discussed here briefly.

Positions of Islamic parties in Post Independence Bangladesh.: Jama`ati Islami was born in 1941 in British India. In 1947 it started working as Jama`ati Islami Pakistan and Jama`ati Islami Hind and in Bangladesh in 1979. Upon the creation of Bangladesh, the post independence government of Sheikh Mujibur Rahman banned all political parties that had Islamic names and activities thereof. Some of the parties banned were Muslim League, Pakistan Democratic Party (PDP), Islami Democratic Party, Nezami Islam Party, Jama`ati Islami and so on. Some of the prominent leaders & their parties respectfully are Mr. Nurul Amin, Mawlana Abdul Mannan Mawlana Athar Ali & Prof. Gholam Azam.

Constitutional position of banning: shape with the promulgation of constitution of Bangladesh in 1972. As Article 12 (Which was repealed in 1977 by proclamation order No 1 of 1977) provided that, "The principle of secularism shall be realized by the elimination of a) Communalism in its all forms; (b) the granting by the state of political states in any religion; (c) The abuse of religion for Political purposes; (d) any discrimination against or persecution of particular religion.

The same was the case with the proviso of Art. 38 of the Constitution which was more or less like the Art. 12 as well which permitted banning of religion based politics. That proviso was also repealed from constitution.

Islamic Politics-Free Bangladesh for six Years: There was no political parties in the name of Islam & Muslim in Bangladesh from 1971 (16th December) to 1977. It was due to two reasons. Firstly due to banning of existing Islamic Parties then and secondly, due to the existence of Art. 12 and provision of Art 38 of the Constitution of Peoples' Republic of Bangladesh. These constitution provisional prohibited from forming of a religion based parties that had political agenda. However, this provision did not cause any affect to religious groups other than Islam. Because, it is only the Islam which has all types of program ranging from ritual, personal, social, political, financial, judicial, educational, cultural, moral, spiritual etc. It makes Islam the complete philosophy or the complete way of life. The prohibitory provisions were actively implemented and observed by the post independence government which tried to make the country as pure secular one. For doing so not only all Islamic political parties were banned but also actions were taken against their leaders.

By virtue of the 4th amendment Sheikh Mujib, the president then, was given absolute power to form a national party at the exclusion of all other existing parties and that he did in 1975. The new party emerged as Bangladesh Krishak Sramik Awami League (BAKSAL). The appearance of which automatically banished all existing political parties by virtue of part VIA of 5the amendment of 1974, 25the January. As 117 A (2) says, when an order is made (national party is formed), all political parties in the state shall stand dissolved and the president (Sheikh Mujib) shall take all steps necessary for the formation of the National party.

The formation of BAKSAL, automatically dissolved all existing parties, such as NAP, communist parties (CPB), JSD including Awamy League. Upon the killing of Sheikh Mujibur Rahman by the military and with counter revolution Ziaur Rahman became Chief Marshal Law Administration. He promulgatedPolitical Parties Ordinance 1978 (PPO, 1978) and abolished article 12 and provision of article 38 from the constitution. The PPO, 1978 permits the formation of political parties irrespective of religious or non religious character which is locally known as multi political democracy. Based on that late Ziaur Rahman formed Bangladesh Nationalist party (BNP), and Abdul Malik Okil formed or to say revived Awamy League, and all banned political parties such as NAP, JSD and Jama`ti -Islami reemerged. However, Jama`ati Islami amended its name as Jama`ati Islami Bangladesh and started its activities.

All Islamic parties including JIB are the constitutionally authorized legal parties. It means the activities of all Islamic parties are within the preview of the law of the land that is the constitutional law - the supreme law of the country. It means any challenge for its operation shall be based on the provision or authorization of the supreme law of the country that is the constitution of Bangladesh nothing more nothing less. Recently some one referred Art 20 of Special Power Act, (SPA) 1974 to justify the banning of religion based politics that affects JIB. The said sect, 20 provides that, "No person shall form, or be a member of or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or purpose, a political one. Where as the government satisfied ttt the association or union concerned shall stand dissolved and all its properties and funds shall be forfeited to Government. The violation of the law shall be punishable with imprisonment for a term which may extend to three years or with fine or both". (Section 20 (1), (2) (3) of SPA, 1974).

This section is almost a replica of Art. 12 (repealed) and proviso of Art. 38 of the constitution which barred forming of religion based parties that had political agenda. This provision of SPA would not give any effect for banning of any religion-based political parties on the ground that it is inferior to the supreme law of the country that is constitution, secondly it was promulgated in 1974 after the introduction of the constitution. Thirdly, it contradicts the Art. 7(2) and Art 26, 27 & 28 of the constitution. As Art. 7 (2) says, "tthe constitution is t the supreme law of the Republic and if any law is inconsistent with this Constitution to that extent of this inconsistency is void. Art 26(1) provides, "al existing laws inconsistent with the provisions of this part shall, to the extent of such inconsistency, become void on the commencement of this constitution". Fourthly, due to the existence of Art. 27 and 28 whichs provides for equality of all citizen and non discrimination of the citizen on the basis of religion. Art. 27 says, "All citizen are equal before law and entitled for equal protection of law. Art. 28 says, "The state shall not discriminate against any citizen on grounds of only religion, race, caste, sex or place of birth. Jama`at and other Islamic parties must have the protection of the above laws like all other citizen of the republic. If not it will be a violation of the law of the land the supreme law.

As such, sect 20 of SPA 1974 contradicts the constitutionally guaranteed formation of political parties by all. The SPA was promulgated after the promulgation of the constitution in 1972. In the hierarchical dimension the constitution is the older and supersedes the SPA as it is subsequent comer to the arena and Art. 7(2) of the constitution provides very clearly that any law promulgated after the operation of this constitution that after 1972, shall be void automatically if it contradicts the constitution. In this case sect. 20 contradicts the constitution. It is ultra vires to the constitution. Therefore, section 20 of SPA 1974 could not be pleaded in this regard for banning or even taking any action whatsoever against JIB or any Islamic parties even any non-Islamic party. Any insistence on this regard would tantamount to the willful disregard of the supreme of the republic of Bangladesh. As such, under no existing law any of the Islamic parties including JIB be banned. If so it will be against the supreme law of the country that would cause a havoc to the nation.

The JIB is not a secret or an out lawed organization. It has been functioning for last 66 years in Asian sub-continent and almost 30 years in Bangladesh. It has its own constitution, election manifestoes, work policy and it has been an allied with all prominent parties like BNP and AL and it had a share in the government for a five years term from 2001 -2006. Nothing barred them from having alliance with BNP and Awamy League and forming of government as a partner of an alliance with immediate past government, and contenting in all level of polls to represent the people of this country for last 30 years. Then what would be the pleading for its banning now? If it has done any wrong under existing law or even any law of the past, then why did the all governments including the government of Sheikh Mujib, Shekh Hasina, Ziaur Rahman and Ershad not take any action against them during their reign for last 36 years. In fact there is no existing domestic or international law to take any lawful action against a constitutionally granted parties whichaver they may be. There is no existing law in Bangladesh even not at anywhere in the world to ban the JIB other than the law of jungle. The existence of Islamic political parties are not only in Bangladesh but all over the Muslim world including Palestine, Iraq, Afghanistan, Turkey, Malaysia, Indonesia, Pakistan and all middle east and west Asian countries. If they could exist with Islamic color why not in Bangladesh despite being a constitutionally guaranteed lawful parties? An illegal man can only take illegal actions not the man of wisdom and prudence! There is only way of banning is that: the government or judiciary has to prove that the appearance of Islamic parties was illegal, they violate their own constitution or the constitution of the Republic, or they are acting in the interest of foreign force etc. can these be proved. If there is proof that may be true with regards to those who are opposing the Islamic polities

There is a proverb that small mind speaks about individual, average mind speaks about society and sound mind speaks about ideas. Present controversy has nothing to do with ideas that is legal points. Being a Muslim, every body should have professed, practiced and propagated Islam. The objectionists should have done the same as they are not free of doing so (being Muslims). Moreover, they should apologetic for not doing so and appreciative to all Islamic parties for representing the cause of Islam and Muslims. It is to be noted that, Islam is not a mere religion of rituals like any other religions. Islam is the complete way of life. It means, it has not only the system of belief and rituals but it has socio-political, financial, cultural, educational, legal, judicial, legislative systems unlike any other religions of the world. To be a Muslim means to accept Islam as a full package holistically not partially. There is no way of partial compliance and observance of Islam. The people who oppose the role and existence of Islam and Islamic political parties are doing so either due to ignorance of Islam or by knowing, due to devilic inspiration. It is not the action of a sensible man to act against the supreme law of the country. Such stand is nothing new but as ancient as the history of devilic inspired people are in this world. It is hoped that for the cause of peace, security and sound development of the nation every concerned body should act peacefully, legally, wisely and prudently. Requirement of a peaceful land is conditionedal to observance of legal framework of the country.

It is to be noted that, there is no law to hinder the taking action against offenders, criminal of whatsoever, but all should be done within the framework of existing law. The government in power must observe law of the land the supreme law that is the constitution and must not bow down to any demand of any one, more importantly the one who speaks against the supreme law of the country and takes laws in their own hands for self aggrandizement.