FOR MILLIONS of people in impoverished Bangladesh, it seems to have ushered a political blessing. The nation which fought a bloody war of independence in 1971 against Pakistan to establish secularism and democracy was obliterated by military juntas and autocratic governments.
Bangladesh's first constitution included secularism, democracy, socialism and nationalism as key political philosophy which reflects the spirit of independence war, when the eastern province severed from Pakistan in 1971.
After the assassination of the "founding father" Sheikh Mujibur Rahman in a military putsch in 1975, the military-backed government of General Zia-ur Rahman doctored the constitution's guiding principle and scribbled "Bismillah'ir Rahman'ir Rahim (Faith in Allah)" in 1979.
In an election strategy Mujib's daughter Sheikh Hasina led Awami League swept to power in 2008. Her party's electoral promises were restoration of secularism and trial of war criminals.
The Supreme Court in its landmark verdict forbids political parties which advocates Islamic philosophy. The apex court also asked to reinstate the four key principles in the constitution which existed 38 years ago.
Law Minister Shafique Ahmed claimed that there is no hindrance to reinstate "secularism in the constitution" as advised in the Supreme Court's ruling. "The amendments that were enforced by military orders during the four years of misrule have been declared illegal and repealed by the Supreme Court."
In two separate voluminous judgements in July and August, the court pulled down the Fifth Amendment of 1979 and Seventh Amendment of 1986, including provisions that allowed religious based politics, which was legitimized by tyrannical rules of military generals during the period of August 15, 1975 to April 9, 1979 and March 24, 1982, and November 10, 1986 respectively.
Another military junta leader General Husain Muhammad Ershad dared to rewrite the constitution which determines "Islam as state religion" of once secular Bangladesh.
The court in a latest ruling said seventh amendment retroactively legitimized the very acts that successfully engineered the coup spearheaded by then Chief of Army staff Lt. Gen. H.M. Ershad after over-throwing an elected president Justice Abdus Sattar in March 1982.
The higher court judges noted, "The proclamation of martial law and its regulations and orders and all actions under this law shall remain illegal until Qayamat (the Judgment Day).
"The martial law was beyond the mandate of the constitution and will be invalid for eternity," and said "a usurper is a usurper." It is deemed that the judgement squarely blamed both the Generals have acted as a usurper to grab the state power.
Earlier in July, the apex court in its verdict on the Fifth Amendment said, "The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their constitution, their government, established by them with their consent."
The court recommends "suitable punishment" to "extra constitutional adventurers", the predators of democracy who ushered military regimes and sanctioned martial laws.
General Zia was assassinated in a military coup d'état in 1982 and General Ershad overthrown in 1990 after bloody pro-democracy revolution. He served prison sentence for corruption but is key ally coalition of the ruling party.
Ershad promptly accepted the verdict, but confidently said there is no law to try an usurper.
Excited Shahriar Kabir, a secularist writer and staunch advocate for the trial of the war criminals said the people's mandate in the last general election for restoration of secularism and trial of perpetrators responsible for crime against humanity in 1971.
"Religious based politics was banned after brutal birth of Bangladesh. We have seen youths belonging to Jamaat-e-Islami were engaged as henchmen of marauding Pakistan military. They raised Al-Badr, a death squad to kidnap and murder hundreds of intellectuals who could not escape for their safety and security," he explained.
The journalist and film-maker Kabir said General Zia, after the assassination of President Mujibur Rahman in a bid to gain political support for his legitimacy of usurping power to the surprise of all, withdrew the ban on religious politics and allowed Islamic parties to regain grounds.
Most of his hand-picked cabinet ministers were drawn from Muslim League, Maoist and other rogue Islamic groups including those politically and physically opposed the birth of Bangladesh. Kabir said, incidentally most were blamed for their alleged involvement in crime against humanity.
General Zia despite being a Mukti Bahini (guerrilla force) commanding officer and took military assistance from India to liberate the country from the repressive rule of Pakistan, he did not hesitate to restore two-nation theory of independent Islamic states in Indian sub-continent. He also got rid of secularism and inserted Bismillah'ir Rahman'ir Rahim (Faith in Allah) in the constitution.
When a Bangladesh government official told Sultana Arjuman Banu she was an "uncultured prostitute" for not wearing a burqa (veil), the outraged headmistress took him to court.
The court ruled that people cannot be forced to wear skull caps, veils or other religious clothing that covers the entire body except the eyes and hands, in workplaces, schools and colleges. It ruled that "attempts to coerce or impose a dress code on women clearly amount to a form of sexual harassment."
The verdict established women's rights and also ruled that women cannot be prevented from taking part in sports or cultural activities.
The judges said infliction of brutal punishment including caning, whipping and beating in local salish or informal village dispute resolution by persons devoid of judicial authority constitutes violation of the constitutional rights. The U.S. Commission for International Religious Freedom annual reports, "Sometimes this resulted in extra-judicial punishments, often against women, for perceived moral transgressions."
The Bangladesh Nationalists Party founded by assassinated President General Zia, led by his widow, Begum Khaleda Zia appealed the apex court's first ruling on the Fifth Amendment in last January and apparently lost her legal battle in a crucial political path of her party, which was in power three times.
The judgment which did not come as a surprise is a major threat to Islamic parties. The Islamic parties which propagates strict Sharia law to be executed for 158 million secular and moderate Muslim majority nation.
According to independent Bangladesh Election Commission there are eleven registered Islamic parties. Chief Election Commissioner Dr. ATM Shamsul Huda made it clear that the Election Commission is not authorized to ban any political party and that the authority lies with the government only.
More than a half a dozen senior leaders of the Islamist party Jamaat-e-Islami were arrested and are waiting to stand trials for crime against humanity at the International War Crimes Tribunal. The special court has been set up, as an election pledge by the present government.
In the wake of judgment, Bangladesh Jamaat-e-Islami accused the government of conspiracy to push the country into anarchy by reverting to 1972 constitution.
"People want to move the country forward. The government stand against the people is an impediment to the country's progress and development," Acting Amir (chief) Makbul Ahmad of Islamist party.
The Islamist leader called upon all Islamic, patriotic parties and the Muslims to stand against what it described the government's anti-Islam mindset.
Though Bangladesh is a Muslim-majority nation, most people practice a moderate version of Islam. In the long run, the country's politicians want the country to transform into a secular democracy rather than an Islamic republic.
Whether the Islamic parties will be banned or restricted is still not clear. At the Jatiya Sangsad (parliament) Prime Minister Shiekh Hasina remarks frustrated many political observers and her party's secular advocates.
She said that Islamic parties will not be banned, while "Bismillah'ir Rahman'ir Rahim" and state religion Islam will remain in the constitution. Possibly her government does not wish to jeopardise Awami League and allies for another term in the election scheduled in three years.
Social justice activist Kabir is upset. He said the prime minister's statement in parliament has confused the nation and it somewhat contradicts the verdict of the superior court. It seems that the war criminals and their defenders have nothing to fear anymore. The Islamic parties would continue to function and overtly campaign against the war crimes trial. #
First published in Southasia magazine, Karachi, Pakistan, October 2010 issue
Saleem Samad is a journalist, elected Ashoka Fellow for journalism and recipient of Hellman-Hammet Award. He has recently returned to Bangladesh from exile in Canada.