MonJul242017

Constitutionality, legality, viability and practicality of banning Jammat

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Photo : Washington Post

 

 

Barrister Nazir Ahmed

 

Introduction

Some extreme left oriented political parties and their affiliated professional and cultural organisations have long been demanding for banning the Bangladesh Jammat-e Islami (BJI).  This is not their new demand.  However, they have recently intensified their demand which most of the Bangladeshi media appears to be proactive in highlighting.  Jatiya Somajtantrik Dal (JSD), Bangladesh Workers Party (BWP) and Bangladesh Communist Party (BCP) are vocal on this point.  Some ministers of the current government seem to be echoing this demand, thought the Prime Minister, in a recent cabinet meeting, said that the government had not decided to ban the BJI yet and accordingly she advised the ministers not to make any comment in this matter.  I am not a member of the BJI nor am I advocating for them.  Let me make this clear first.  But, for the greater interest of the nation, I aim to present some data and statistics, put forward the legal and constitutional provisions and analyse some historical facts.  Personally, I am opposed to banning any political party, no matter what it is.  Banning a political party, because one does not like it or his party does not like it or the government does not like, is totally against the democratic norms and principles.  Political parties, no matter how extreme or odd its’ ideologies are, must be dealt with by the law and true democracy. 

 

Analysis of the voting pattern

Let us see and compare the voting patterns/history of the parties that are demanding for banning the BJI.  In 1991 General Election, the BCP, the BWP and the JSD got only 1.2%, 0.2% and 0.2% votes respectively.  In the 1996 General Election, the JSD obtained only 0.2% votes but the BCP and the BWP obtained so insignificant votes that their number did not come into the counting of percentage.  By comparison, the BJI obtained 12.1% votes in the 1991 General Election and 8.6% votes in the 1996 General Election.  It is to be noted that the BJI only contested in whole 300 seats of Parliament in both the 1991 and 1996 General Elections held under the neutral caretaker governments.  In the 2001 and 2008 General Elections, the BJI joined the Alliance with Bangladesh Nationalists Party (BNP) and contested only 75 seats [and obtained 4.28% votes] and 39 seats [and obtained 4.70% votes] respectively. 

 

Therefore, the 1991 and 1996 General Elections should be the determining factors [yard stick] to calculate and assess the BJI’s popularity and support, for in those two elections they fully contested in whole 300 seats.  If we translate 12.1% [obtained in 1991] and 8.6% [obtained in 1996] of the BJI’s votes into 160 (16 crore) million people, their supporter would be 1,93,60,000 [nearly 2 crore] and 1,37,60,000 [nearly 1.5 crore] respectively.  More than dozen countries can be found in the world whose total population cannot be more than 1 crore!  Now, is it wise and prudent to ban a political party with such votes and such number of supporters?  More importantly, is it logical to heed/vow to the demand of those parties, who combinedly [putting all the BCP, BWP and JSD together] could not obtain one fourth of the votes that the BJI obtained in all elections held since 1990s, to ban the BJI?  What do the logic, law and conscious dictate?             

 

Constitutionality and legality of banning a political party

Political rights are part of civil liberties.  Civil liberties are regarded by Dworkin, one of the noted political philosophers, in his book named ‘Taking Right Seriously,’ as ‘internally connected with fundamental concepts of human dignity and the rights of each person to equal respect and concern.’  Constitutionally every citizen of Bangladesh has right to form associations or union and this is guaranteed by Article 38 of the Constitution.  Freedom of thought and conscious and of speech is guaranteed by Article 39 of the Constitution.  Article 37 ensures the right to assemble and to participate in public meetings.  Freedom of movement throughout Bangladesh is guaranteed by Article 36 and freedom of religion is ensured by Article 41.  Each and every citizen of the country has the above fundamental and constitutional rights subject to any reasonable restrictions imposed by law.  Therefore, banning any political party would effectively mean depriving individuals of their natural and constitutional rights and liberties.        

 

Furthermore, Bangladesh is a State party (signatory) to the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR), the two most important international documents.  Article 20 of the UDHR says “(1) Everyone has the right to freedom of peaceful assembly and association, (2) No one may be compelled to belong to an association,” whereas, Article 21 of the ICCPR says “The right of peaceful assembly shall be recognized.  No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”  Article 19 of the UDHR says “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  Similar rights are ensured by Article 22 of the ICCPR.  Freedom of thought, conscience and religion is ensured by Article 18 of both the UDHR and the ICCPR.  Freedom of movement throughout the contracting State is guaranteed by Article 12 and 13 of the ICCPR and the UDHR respectively.  Therefore, depriving individuals, through banning any political party to which they may belong to, the State of Bangladesh would effectively be in violation of its international obligations.   

 

Some political and social complexities

Since the independence and when they were capable of participating the election, the BJI has had representation at each and every Parliament.  Each and every democratic movement affecting or concerning the country, the BJI has actively participated, often being at front line.  A significant number of the BJI’s candidates have won in the local elections, both the Upazilla and Union Council, in the past.  

 

Practically, wherever in Bangladesh the Bangladesh Awami League (BAL) and the BNP have a branch, the BJI has a branch there too.  In many places, the BJI is dominant over and has stronger branches/Units than the BAL and the BNP.  Not only this, the BJI’s student wing, Islami Chhatra Shibir (BCS), has a strong footing in educational institutions in Bangladesh.  If someone went on to a college in a remote rural area and comes across the Bangladesh Chhatra League (BCL), the student wing of the BAL and the Bangladesh Chhatra Dal (BCD), the student wing of the BNP, he would of course come across the BCS.  In many educational institutions the BCS is dominant over other students’ organisations.  In each and every sector of the State, be it discipled forces, service sector, government, private or voluntary sector, like the BAL and the BNP, the BJI has supporters and well-wishers, albeit comparatively low proportionate.  These have enabled the BJI and the BCS to consolidate their positions and to have deep rooted into the society over the last few decades.  This is proved by the fact that in thousands of families it can be found that the father is either the BAL or the BNP supporter, the mother is either Sayeede/the BJI or the BNP supporter, one son is the BCD or the BCL supporter and another son is the BCS supporter, or vice versa.  Within many families of 4/5 siblings, 2/3 could be of the BNP or the BAL supporters and 1/2 could be of the BJI supporters or vice versa.   In countless business ventures, the owners and Board of Directors consist of people from the background of the BAL, the BNP and the BJI.  The BJI along with their like minded Islamic forces, directly or indirectly, controls around 20%-25% of the country’s economy.  Apart from this, the BAL, the BNP and the BJI are interlinked in many families through cross marital and family relationship.  Considering all these complex scenarios, banning the BJI would probably cause severe social tension and outcry in the country.  It could shake the social stability and threaten already fragile economy of the country.   

 

Jammat - an important factor in Bangladeshi politics

No one can deny that the BJI has become one of the important factors in Bangladeshi politics.  The BJI is probably the most organised and disciplined political force in the politics of Bangladesh.  Their organisational structure and strength, however, do not reflect on the popular votes they obtain in the election.  This is why the BJI may not be able to go into power alone in the foreseeable future.  However, it has, by now, made it known to the political arena that though it cannot be a King, but it certainly can make a King or at best it can be a part of the King’s vast empire!  1991 and 2001 are the best examples.  In any meaningful movement and notable political change of Bangladesh, the BJI has been a factor in the past and would certainly remain so for the foreseeable future.  The current governing party has itself shown this in the past: one in 1991 when the BAL’s the then President candidate personally went to the then BJI’s Ameer to seek BJI’s support and the other one in 1996 when the BAL and the BJI did the fierce/agitational movement together standing shoulder to shoulder against the BNP for the demand of caretaker government system.  Many analysts and commentators believe that the BAL would not have achieved what they had achieved through movement [i.e. installing caretaker system in the Constitution and going to power through election under that caretaker system] had they not found the BJI with them against the BNP government.  

 

The BNP also did more or less the same thing.  The four party alliance led by the BNP came to power in 2001 with a landslide victory having achieved more than two-third majority in Parliament.  The BJI was the second important and influential component of the four parties’ alliance.  Political analysts believe that the BNP would not be able to get the two-third majority had they not found the BJI with them as their close ally.  Not only separately, the BNP and the BAL along with the left five parties’ alliance fought taking the BJI on their side, through liaison committee, against military dictator in the 1980s for eight years.  These have enabled the BJI to consolidate their position and gradually emerge as one of the important factors in the contemporary Bangladeshi politics.

 

Who will be benefited from banning the Jammat?

Even if someone wants to start a business, he should make a market study, and consider the positive and negative factors that might affect his business.  Similarly, the government should consider what it would achieve by banning the BJI.  Banning the BJI could cause one of three things:

 

Firstly: the banning would drive the BJI into underground.  They could be extremely violent and ferocious, as happened to various underground organisations in different parts of the world.  Alternatively, they could actively anticipate on socio-economic programmes instead of party politics and gradually emerge into the political arena with different name and clean image leaders.  With the passage of time [even in couple of decades] they could go into power exactly what the Muslim brotherhood did in Egypt.  With the current position with acute perception problems for 1971 issues and hostile media, the BJI may not be able to do any significant or dramatic impact on the current electoral system of the ‘First Past the Post System’ (FPPS).  Had Bangladesh had Proportional Representation (PR) instead of the FPPS, the BJI, because of 12.1% votes, would have obtained more than 36 seats in 1991 General Election and more than 25 seats, because of 8.6% votes, in 1996 General Election. 

 

Secondly:  the banning would drive and compel the BJI’s supporters, vote banks and field level workforce to join in the like minded or similar level or at least comparatively closer ideological parties Like the BNP.  Ideologically, they are unlikely to join the BAL and its grand alliance. 

 

Thirdly: without a truly national consensus which is unlikely to happen as the BNP – one of the largest political parties representing at least more than 33% population of the country [2001 it obtained 41.40% votes and in 2008 it obtained 33.20% votes] - would not agree, the banning would not be sustainable.  With the change of the government, the banning will be lifted.  The BAL banned all Islamic parties including the BJI in the past but could not sustain that banning for even a decade!  If the BJI was banned at the last period of the current government’s tenure through executive order, the BJI could wait a little while and the banning would be lifted upon the change of the government.  Alternatively, the banning could be challenged in the High Court.  The BJI might not get favourable ruling from the High Court during the time of the current government for obvious reason, for according to Barrister Rafiq-Ul Huq, an eminent jurist of the country “Higher Court gives the judgement having seen the wind of the time.”  But on the change of the government, there would be a strong possibility for the banning to be declared illegal and unconstitutional.  

 

In any of the above three scenarios, the government would not achieve anything from banning the BJI.  The BNP would be benefitted in the short term and the BJI would be benefitted in the long run.  The left politicians would be benefitted in the sense that their arch rival strong ideological Islamic force would be out of political scene.  The BAL, who supposes to represent the centre and centre-left arena of Bangladeshi politics, would not be benefitted at all from banning the BJI.  No hard core or documentary evidence could be given but the history would prove this fact.             

 

Conclusion

Bangladesh is supposed to be a pluralist state in which people can enjoy freedom of expression, assembly, movement and religion.  This is envisaged by the Constitution.  In a democracy, people can join pressure groups and political parties at their free will.  They will try to influence the government through strikes, demonstration or publicity campaign.  In fact, party politics is one of the main characteristics of the democracy.  Tolerant political culture of a democracy should be, as Voltaire said, “I do not agree with what you say, but I will defend to my death your right to say.” 

 

There is no barometer by which extremism or militancy can be measured.  A Party may seem to be extreme today, but may not remain so tomorrow.  For example, the African National Congress (ANC) in South Africa which was considered as terrorist organisation and its leader a terrorist.  With the passage of time that party came to power and its leader, Mr Nelson Mandela, became the President of United South Africa.  Furthermore, the activities of a party may seem to be extreme to many people but at the same time they might be considered heroes by many people.  An example of the Irish Republican Army (IRA) can be given.  Vast majority people of the UK consider the IRA as terrorists yet many people in the Ireland, some even in the UK, consider them heroes.  There is a proverb that ‘one man’s meat is another man’s poison.’  In Bangladeshi context, the government and its grand alliance may probably consider the BJI as extreme and terrorist organisation but this is not shared and agreed by the BNP and its 18 party alliance representing at least 40%-50% people of the country.  The most influential county in the earth, the US, still considers the BJI as moderate Islamic party, contrary to the Bangladeshi government’s contention.     

 

Finally, the government should think very carefully whether to ban the BJI at all.  It should not act on emotion and superficial demand of some left oriented political parties who seem to have very little base on the mass people.  Hurried and emotional action could, often, be counterproductive.  Political problems and political parties should be dealt with and fought with politically and political ideologies.  Unilateral action, without a national consensus, could bring a catastrophe for the country.  The government must think before action, not after action.  The manual clock can be turned back, but the time and the history that will decide the responsibility and liability cannot be turned back.      

 

 

Barrister Nazir Ahmed: UK based Legal expert, analyst, writer and author

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