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Bangladesh high court outlaws religious parties

By Dwyer Arce

[JURIST] The Bangladeshi Supreme Court [official website] on Wednesday overturned a constitutional amendment [judgment, PDF] that had allowed religious parties to participate in politics. The court, upholding a lower court decision, held that the Fifth Amendment to the Bangladeshi Constitution [text], which allowed the participation of religious political parties and legitimized military rule, violated the principle of secularism and representative democracy found in the Constitution's preamble. Relying heavily on the US Supreme Court [official website; JURIST news archive] decision of Marbury v. Madison [text] to reinforce the notion of judicial review, the court found that the supremacy of the Constitution over the actions of government officials required them to strike down the amendment for violating the constitutional principles that the "heroic [Bangladeshi] people ... sacrifice[d] their lives [for]." The court explained:

[T]he second paragraph of the Preamble of the original Constitution ... spells out the high ideals of nationalism, socialism, democracy and secularism which was also reflected in Article 8 of the Constitution. [O]ur liberation war was fought on those high ideals and those high ideals inspired our heroic people to dedicate themselves and our brave martyrs to sacrifice their lives in the national liberation struggle and those ideals being the basis of our nationhood shall be the fundamental principles of the Constitution. ... [T]hose fundamental principles shall remain permanently as the guiding principles and as the ever lasting light house for our Republic.

The court also found that the military rule from 1975-1990 was illegal, recommending the prosecution of the leaders of the former military government. Following the decision, Bangladeshi Law Minister Shafiq Ahmed [official profile] stated that future challenges to constitutional amendments that establish Islam as the state religion and incorporate Qur'anic [text] verses would likely be successful as well [AFP report].

The Fifth Amendment was passed in 1979 by the military government. Since this time, religious parties have grown in Bangladesh, numbering at more than two dozen before the court's decision. In 2008, the party of current Prime Minister Sheikh Hasina won in a landslide over the party of former prime minister Khaleda Zia [BBC profiles], which was backed by several Islamist parties. Zia was also backed by the largest Islamist party, Jamaat e Islami (JI) [GlobalSecurity backgrounder]. Bangladesh's International Criminal Tribunal (ICT) issued four arrest warrants [JURIST report] for several of JI's leaders for genocide, murder and torture, allegedly committed during 1971 Bangladesh Liberation War [GlobalSecurity backgrounder]. The ICT was established in March [JURIST report] to try those accused of committing war crimes during the 1971 war, in which Bangladeshi forces succeeded in gaining independence from Pakistan.

Full post as published by JURIST - The Paper Chase on July 29, 2010 (boomark / email).