Preservation of Democracy and Logical Exclusion of a Party: Context Bangladesh

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Introduction:

“We the people are the rightful masters of both congress and the courts, not to overthrow the constitution but to overthrow the men who pervert the constitution”[i] -the declaration about the supremacy of the constitution proved the possession of Constitution overall and above and no one has the right to deny its superiority. From this concept the Constitution Bangladesh has protected its great essence and sanctity of Secularism through providing restriction against the participation of Jamaat-e-Islam in the parliamentary election affairs and other activities.

The Controversial Position of Jamaat-e-Islam in Bangladesh:

Jamaat is a well-known largest Islamist Organization started its journey through the leadership of Syed Ablur Ale Moududi in the subcontinent in 1941. It was banned in 1964 for opposing the Muslim Family Act. As it was formulated on religion basis the hatred against other religious people is observed through their massive atrocities in 1971 with collaboration with Pakistani Army.[ii] They are dictated as war criminal and conviction was given by them as a part of punishment to protect Constitutionalism. Their several activities which they used as a shield of religion was totally illegal and bound the government to declare their activities unconstitutional. Their act of terrorism and violence made them as a Criminal Anti Liberation Organization.[iii]

The Legal Issues of Banning Jamaat from Constitutional Perspective:

The anti-liberation movement of Jamaat is not only the legal reason to banish them rather the total concept of the party has created contradictory situation according to constitution as well as other Human Rights conventions. As Jamaat based on Islamic ideology, it affects Article-2(A) of Constitution, 1972 where there is an identification to respect other religion and Jaamat did not do that.[iv] The idea of fundamental principles under Article-8 is vitiated as the idea of Secularism is totally absent in their political perspective. Even their vision is not a social as well as democratic according to their previous act.[v] As they are dictated as the anti-liberation force who were the opponent of independence of our nation, Nationalism under Article-9 is also vitiated here.[vi] Even they never expect a state free from exploitation.[vii] Through their aggressive attitude towards other religion, they violated human rights provision that ensures right for all.[viii] Basically, Article-12 of Constitution was being questioned through their illegal movement. Freedom of religion and secularism was vitiated by their nasty religious ideology.[ix] Where the constitution ensures equal right for all to participate in every sphere of state on equal footing, this equality is endangered when the right of participation in Election was given to them. It hinders others and question raised about legality.[x] Even their activities also violated several provision of human rights convention and treaties besides Constitutional provision.[xi]

No activities can be done against state and other religious people to justify one’s religious view and religion can never be shield to commit crime and terrorism.[xii] From different dimensional view the position of Jamaat is being question and it raised the question of their participation in the election as a party which is not socialist, secular as well as democratic.

From the view of preventive action it can be said that-‘Be your own guard before you suffer, for it is a rash to allow dangers to come upon you and then to repent of it, when you might have anticipated them’.[xiii] To ensure democracy and to protect secularism our country has taken this initiative in 2013 against Jamaat-e-Islami and banned them. Challenging the position of jamaat and the reason of disqualification showed by Tarikat Federation, four points were discussed[xiv]– (1) The Principle of jamaat does not recognize people as the all source of power. (2) The acts and beliefs of jamaat showed them as a communal party. (3) The restriction of participation of women and other religion in a registered political party proved their natured discriminatory, unconstitutional and contradictory to the supremacy of the constitution.[xv] (4) It is a foreign organization and has units all over the world.

On that basis former Election Commissioner Mohammed Shah Newaz respected the court order by saying the order was absolute and Hain said jamaat as Military organization not political party.[xvi]

The Preservation of Democracy by other State and the position of Bangladesh:

As the protector of Constitution, state must be pragmatic as well as systematic to prevent the abusive nature and demoralize acts by terrorist groups. According to Karl Lowestein the concept of militant democracy came as a reformation and last option to protect the security and citizen of a state when political party became undemocratic, illegal and anti-constitutionalist.[xvii]

Germany:

In the case of Civil Servants Loyalty (1975), the guidelines barred the civil servants and they claimed it the violation of equality principle and questioned about legality of the act. The constitutional court rejected their claim and dictated the expression of political opinion must be compatible with the political loyalty.[xviii]

However, in a situation of 1978 in Germany, denial of broadcasting of campaign against three radical left wing parties and showed them as rule violator was rejected by the constitutional court under article-21 of basic Democratic Order and section-2 of Political Parties Act.[xix]

Turkey:

In a situation of Turkey their repression was found unconstitutional and a violation of self-determination against the Kudos people and their right to participation could not be curtailed declared by the court.[xx]

Bangladesh:

In our context our country has taken the initiative of exiling Jamaat is a new dimension to protect democracy and the welfare of the state. As it is said, Jihad or war of Islam can be done for the sake of good aim like- education, social change or preaching Islam, Jamaat had totally abused the term it as terrorism.[xxi] Even the question raised of injustice but determining the constitutional provision their aggression against secularism and democracy forbid their right to freedom of association, movement, liberty etc.[xxii] So it is bitter truth that- ‘Great danger and violence can never build a nation’.[xxiii]

Conclusion:

“Fight in the name of Allah who fight you and do not transgress limits: for Allah does not love transgressors (1:190)”[xxiv] -Even Almighty has forbid unnecessary repression which is also being violated by Jamaat. If they acted through the view of Islamic Sariah law their disobedience to Quran had shown a great sin as well as illegal by Quranic Concept. Considering all that views of Quran, Constitution as well as other conventions, the activities of Jamaat is totally act of aggression, repression and violation. Banning them from political party can never be the violation of human rights rather it’s a new dimension to protect democracy, security and secularism of state which is essential to establish a new violence free democratic society.

Writer: Tamanna-E-Nur, LL.B (Hon’s), LL.M, Jahangirnagar University.

N.B. This essay had been submitted for the Essay Competition under the event ” Celebrating Constitution Day: Stepping into 50 ” organised by NILS Jahangirnagar University Chapter with the support of NILS Bangladesh in partnership with JUBAER AHMED AND ASSOCIATES and secured Second Position in the competition.