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  #1  
Old February 6, 2010, 05:24 PM
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Default 5th Amendment Declared Illegal by the SC

I haven't seen much discussion of the recent Supreme Court decision upholding the High Court verdict ruling the 5th Amendment (the one which attempted to make all amendments, additions, modifications, substitutions and omissions made in the constitution during the 1975-1979 Martial Law administration binding) illegal, albeit with some modifications. In general, I agree with the decision, and it will be particularly gratifying for me to see the omitted Article 12 (Secularism and Freedom of Religion) reinstated. As for effectively declaring the 1975-1979 Martial Law administrations and the actions taken illegal, I don't think anyone, other than those who go out of their way to see it as a slap in the face of Zia, will be bothered (note that Zia's administration after the February 1979 General Election is considered legal). And the Indemnity Act is now moot anyway.

Not suprisingly, the original HC verdict appeared to have left in the provisions of the 5th Amendment which deleted the provisions of the 4th Amendment (the one by Mujib in 1975 by which a presidential form of government was introduced in place of the parliamentary system, a one-party system was introduced in place of a multi-party system, the powers of the Parliament were curtailed, the Judiciary lost much of its independence, and the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights).

This decision will, I think, bring back the four basic principles of the 1972 Constitution: Bangali (Bengali) nationalism, Democracy, Socialism, and Secularism. I don't think the Socialism clause is anything to worry about -- I mean, the Chinese and Indians are essentially capitalist in how they function, despite having "socialism" enshrined in their constitution. My only little concern with Bengali nationalism is in how it might affect our non-Bengali citizens (the Chakmas, Saotals, Monipuris, Garos, Murangs, etc.), and whether it might have a tendency to render them second-class citizens; I personally prefer a Bengali cultural identity overlapping with Bangladeshi nationalism.

I have already mentioned how glad I am to see secularism and freedom of religion back. I hope, however, that it will not be taken as carte blanche by our current administration to ban political groups with religion-based platforms (yes, I am talking about Jamaat, and to a lesser extent, the Muslim League) from running in our elections. Make no mistake, I have no love for these groups; but outlawing them runs the risk of having them go underground, putting on injured airs and gaining sympathy, and inciting terrorist activities. Given their abysmal record in winning seats in the elections, I would much rather have them out in public where we can keep an eye on them. But, by all means, prosecute the collaborators and rajakars. I suspect this decision opens the door once again to finding them and trying them.

Caveat: I am not a lawyer, and my interpretations are what I could make out by reading the relevant news items; I might well be quite mistaken.

Some links of interest:
The Constitution
Amendments
HC Verdict Summary
Constitution to get back on '72 track
After 5th Amendment, Constitution lost basic character
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Last edited by shaad; February 6, 2010 at 05:42 PM..
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  #2  
Old February 6, 2010, 05:37 PM
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Totally, I agree with you Shaad bhai, pretty much every points you made regarding this.
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  #3  
Old February 7, 2010, 12:04 AM
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I do not agree with Bangalee nationalism. We are Bangladeshi. Bangalees are those who speak Bangla e.g. all Bangladeshi and All indian bangla speaking people.

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Old February 7, 2010, 01:58 PM
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I agree with Shaad bhai especially about Bengali nationalism which should rather be Bangladeshi nationalism. I have always been a supporter of secularism and glad to see it being restored...just hope it is implemented.
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Old February 7, 2010, 03:04 PM
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Secularism and Nationalism- two of the most sensitive issues in BD. AL better take the safe route by not touching those issues in the constitution. Going back to Bengali nationalism and restoring secularism might cost them votes next election.
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Old February 7, 2010, 03:31 PM
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Quote:
Originally Posted by rafi_mc69
I do not agree with Bangalee nationalism. We are Bangladeshi. Bangalees are those who speak Bangla e.g. all Bangladeshi and All indian bangla speaking people.

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Well stated. I think SC should amend this clause as well.
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  #7  
Old February 7, 2010, 09:51 PM
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Quote:
Originally Posted by BD-Shardul
Secularism and Nationalism- two of the most sensitive issues in BD. AL better take the safe route by not touching those issues in the constitution. Going back to Bengali nationalism and restoring secularism might cost them votes next election.
It was one of their election pledge if anyone ever bothered to read it.
I am a big supporter of secularism and want that to be implemented at any cost. About banning islamic parties, I guess brother Shaad is right when he says that these groups can resort to terrorism but I believe our security agency is strong enough to dismantle them just like JMB(unless ofcourse elements inside the government decide to fund them), hence it is better to suffer short term pain for long term gain. Only wish the short term pain dont result in civilian lives.
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Old February 7, 2010, 11:41 PM
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Quote:
Originally Posted by BD-Shardul
Secularism and Nationalism- two of the most sensitive issues in BD. AL better take the safe route by not touching those issues in the constitution. Going back to Bengali nationalism and restoring secularism might cost them votes next election.
yes they are the most sensitive but not the most important issues of the verdict. AL would skip those issues.

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  #9  
Old February 8, 2010, 03:29 AM
PoorFan PoorFan is offline
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Ex justice of supreme court Golam Rabbani on 5th amendment.
Prothom Alo

Well known law and justice journalist Mizanur Rahman Khan on 5th amendment. I am a fan of his writings especially his constructive criticism and analysis on law and justice.
Prothom Alo

And here see what Nizami of JI says in the name of religion ... "Supporting Shibir is everyone's Iimani responsibility. will be held accountable to Allah if not done so".
Prothom Alo

Now imagine if our country in a state like Pakistan, Afghanistan, Iran or Iraq etc., ... these people will never hesitate to make anything or everything religiously mandatory whatever they see through the religion prism as politics. In fact they already used / using religion as a tool for whatever political interest, and in time of crisis bound to meet the doom having no way of exit [since religion is absolute believe, and obviously some sect will remain even after majority or some decide to retract]. Bloodshed of religious politics in those countries, and in old history says a lot if we care enough to look at, and Nizami above is an example why secular democratic governing system is better than religion based governing system IMO.
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  #10  
Old February 8, 2010, 09:31 AM
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shaad shaad is offline
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Quote:
Originally Posted by HereWeGo
It was one of their election pledge if anyone ever bothered to read it.
I am a big supporter of secularism and want that to be implemented at any cost. About banning islamic parties, I guess brother Shaad is right when he says that these groups can resort to terrorism but I believe our security agency is strong enough to dismantle them just like JMB(unless ofcourse elements inside the government decide to fund them), hence it is better to suffer short term pain for long term gain. Only wish the short term pain dont result in civilian lives.
HereWeGo, there are basically two reasons why I would not want them banned (despite sharing your distaste for them), one pragmatic, the other a tad more idealistic. The pragmatic one I have already talked about -- we are a nation where the majority are Muslims, and banning these parties (which find it difficult to win even a handful of seats in elections) will finally provide them a lever with which they can manipulate emotions and garner sympathy and support.

The more idealistic one is that even though I am a strong secularist, I believe both in freedom of expression and a non-paternalistic attitude towards our citizens. I think that it is quite possible to keep church and state (mosque/mandir and state?) separate when it comes to passing legislation (that is, after all, one of the reasons for our Supreme Court -- determining the constitutionality of our legislation), without necessarily dictating the ideological makeup of the political parties. I believe that, if we are a democracy, we have to have faith in our citizens making the correct decisions, and not make them high-handedly from above. Banning political parties based on our disliking their ideology is, in my opinion, beginning down a slippery slope reminiscent of fascism; I think we have have already had our fill of it -- both with BAKSAL one-party rule and the Martial Law regimes.

Note, however, that my interpretation of the SC decision (essentially declaring all the acts of the 1975-1979 Martial Law regime null and void) makes it perfectly feasible for us to arrest and prosecute those individuals in these parties who collaborated with the Pakistani regime during our Liberation War and/or are guilty of war crimes. I believe this avenue should be pursued. A well-publicized trial airing their crimes would also prevent such individuals from gaining any public sympathy.

Quote:
Originally Posted by PoorFan
Now imagine if our country in a state like Pakistan, Afghanistan, Iran or Iraq etc., ... these people will never hesitate to make anything or everything religiously mandatory whatever they see through the religion prism as politics. In fact they already used / using religion as a tool for whatever political interest, and in time of crisis bound to meet the doom having no way of exit [since religion is absolute believe, and obviously some sect will remain even after majority or some decide to retract]. Bloodshed of religious politics in those countries, and in old history says a lot if we care enough to look at, and Nizami above is an example why secular democratic governing system is better than religion based governing system IMO.
PoorFan, while I sympathize with your views, I think we are considerably different from nations like Afghanistan or Pakistan. Those are countries which do not have a common cultural identity, being comprised of many different ethnic groups, with their own squabbling cultural identities and languages, with Islam being the only common link. I mean, seriously, what is Pakistan's national identity? A homeland for subcontinental Muslims laced with a heavy dollop of dislike for India -- that is really not enough to base a stable nation on. Note also that the heavy handed fundamentalism in Pakistan came about during a fascist dictatorial regime, that of Ziaul Haque. And the only reason the Taliban came to power in Afghanistan was that there was a power vacuum after the Russians left, and the Taliban (effectively the successors of the US and Saudi-backed mujahedeen) were best-equipped (in terms of organization and arms) to seize power.

We, on the other hand, are a different breed altogether -- religion is not the only bond that holds us together. We are fortunate to be a nation where the majority by far are Bengalis (people of the same ethnic, cultural, and linguistic heritage). And yes, we are also a nation where the majority are Muslim. However, I believe, that these two components of our cultural identity coexist in harmony without one swamping the other. I think that for most of our people, this shared Bengali component of our cultural identity, a common ethno-cultural-linguistic heritage that the Pakistanis and Afghanis lack, will prevent fundamentalist Islam of the Talibanesque variety from ever taking over. That is not to say that we should not be vigilant against such radical fundamentalists or their nefarious attempts; simply that we should have confidence in our Bengali/Bangladeshi-ness and not be pre-emptively cowed by fear of what happened in say, Pakistan or Afghanistan. I mean, could you those two countries, or any other Muslim country, for that matter, having a national anthem composed by a Hindu poet?

As I mentioned above, I too agree with you that a secular governing system is better than a religion-based governing system. But I think the way to do that is to use our independent judiciary to remove religion-based legislation passed by Parliament on constitutional grounds, rather than ban Islamic political parties altogether.
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Old February 8, 2010, 04:40 PM
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for i minute there i thought we would now be forced to incriminate ourselves!
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  #12  
Old February 9, 2010, 04:02 AM
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Shaad, Yes, we do have advantage in cultural, ethnic, socio and geographical difference, but that just an advantage and thats just it [quite big though]. Yet we have same potential danger such as dictatorial regime [army or not], power vacuum, and foreign super-power influence that those countries have. In fact we did experienced military rules like Pakistan, we did experienced power vacuum at '75 and last 1/11, US and Saudi does have great influence in our politics, though has no intention to seize power. So all these are common symptom for which religious fundamentalism grown in Pakistan, and we saw the rise of mushroom like religious parties in BD too, with few heavy handed fundamentalist like HUJI, JMB etc., and for the rest, we see how extreme and radical their views are [even though not heavy handed yet].

In that sense as I said ... in the time of crisis [not at the extent of Pakistan or Afghan] we also may go through struggle for decades for whatever reason, and with those religious politics and their ideology if left grow wide and open [by controversial clause of constitution], and in next generation new breed bound to emerge who may see no more value in Bengali culture and its heritage [from their own religious point of view]. How can we forget so easy that these same people once called/labeled Bengali as Non-Muslim?! Enemy of Ummah?! Once they did it and we paid the price, obviously will do the same as long as religion based politics is their only way to power and lifeline.

So I think we better protect our secular governing system by constitution passed by parliament that directly has peoples mandate [probably quite opposite what you have suggested]. Besides, in my limited knowledge judiciary can not amend / remove / alter any law or constitution other than legal explanation of existing law or constitution, or order govt. for explanation. Because judiciary does not have peoples mandate to amend / remove/ alter law or constitution.
( I am sure you know much better than me on this regard )

And if somehow we allow judiciary to do such thing ... this will again lead to destruction of judicial system, as well as constitution itself, and its legitimacy to say the least. We should leave such constitutional issues on to the parliament and parliament only, any other way only make endless unnecessary controversy and unrest in society and politics.
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  #13  
Old February 9, 2010, 06:52 AM
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Let us wait for the details of the SC verdict and eventual gazette notification by the ministry of law. Government is not going to act irresponsibly that may produce unwelcome consequences . Government is keen to handle the issue of religious political parties in such a way that no official ban will be necessary. After all , this is a democratically elected government which sincerely believes in democratic values. All religious political parties will be put out of business without being banned at all
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Old February 9, 2010, 12:10 PM
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Those rajakar parties ( Jamat, Muslim League) should just shut down and change their names if they should exist. Just as a formality and as a respect to Bangladesh's existence.

Quote:
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Let us wait for the details of the SC verdict and eventual gazette notification by the ministry of law. Government is not going to act irresponsibly that may produce unwelcome consequences . Government is keen to handle the issue of religious political parties in such a way that no official ban will be necessary. After all , this is a democratically elected government which sincerely believes in democratic values. All religious political parties will be put out of business without being banned at all
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Old February 9, 2010, 12:29 PM
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Quote:
Originally Posted by uss01
Those rajakar parties ( Jamat, Muslim League) should just shut down and change their names if they should exist. Just as a formality and as a respect to Bangladesh's existence.
i dont think there will be any direction in final verdict which will force religious political party to ban. In 1972's constitution religious politics was not banned.

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Old February 9, 2010, 12:34 PM
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Quote:
Originally Posted by uss01
Those rajakar parties ( Jamat, Muslim League) should just shut down and change their names if they should exist. Just as a formality and as a respect to Bangladesh's existence.
That is going to happen , in fact. I don't believe Jamat to be the biggest religious party in Bangladesh. The biggest communal and anti liberation party has it's name in modern English accronym and the challenge will be to deal with them. My post was removed from this thread just because I used the 'Rajakar' word in general which allegedly offended some people.
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