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February 1, 2004

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Ban on Ahmadiyya publications

Constitutionality of the decision

Sheikh Hafizur Rahman Karzon

Democracy is the rule of those who get the highest number of votes cast in an election. In no way democracy is a rule of majority. The four party alliance, now running the administration of Bangladesh, got 48% votes of the total. Rest of the people (52%) did not confide them to run the state affairs. Nevertheless it is the democratic system developed and practised for centuries through which people express their choice and confide a political party, for several years, to run the state apparatus, which gets highest votes in the election, though it does not represent majority. After the election the winning party, democracy desires so, should hear voice of all and execute their demands as far as practicable through balanced sate policy.

Among the political systems hitherto emerged, democracy is the best. It is unique not because it gives equal status to all the citizens in terms of voting rights, but it ensures rights of all the diverse groups and cross-section of people of any given polity. The efficacy of democracy is tested by how far it is able to protect the rights of minority. Functioning of democracy is characterised by expression of dissenting opinion and ventilation of resentment. Tolerance and respect for others belief pertain to the fundamental teaching of democracy without which its continuance will be in jeopardy.

Minority rights in Bangladesh are protected by articles 27, 28, 29, 31, and 41 of the Constitution. There are, broadly, two types of minorities, religious minority and ethnic minority, who constitute almost 15% of the total population. In spite of the constitutional safeguards, minority remains deprived most of the time. Ethnic minorities in Chittagong Hill Districts had organised armed resistance in response to the policy of state earlier on, which they did not accept. The Hindu community has been subjected to threat, persecution, killing, rape etc. in different times. Recently another religious minority, Ahmadiyya Jamaat, has experienced ban on their publications. The government by an order on January 8 proscribed all publications of Ahmadiyya Jamaat igniting severe criticism and protest.

Article 41 of the Constitution guarantees freedom of religion as (a) every citizen has the right to profess, practise or propagate any religion; and (b) every religious community or denomination has the right to establish, maintain and manage its religious institutions. Citizens can enjoy freedom of religion subject to law, public order and morality. 'Subject to law' in no way can be interpreted to take away the right to profess, practise and propagate religion. Legislature can only regulate the manner of how to profess, practise, and propagate religious belief and the functioning of religious institutions. (Jibendra Kishore Vs. East Pakistan, 9 DLR (SC) 21.)

Religion is such an influential institution that it has become inevitable part of human existence. Every religion developed its own ides about human creation, their destiny and gave a code for this mundane life. The uniqueness of religion is that one cannot always explain it by reasons, it is a cluster of beliefs to which most of the human beings take resort. Religions are numerous, their sub-sects and ideas are so diverse that religion should be left at the private sphere of citizens, state has nothing to do with the religions of the citizens. Most of the western countries, taking lesson from their medieval experience, incorporated the principle of secularism, the principle which was successfully imprinted in the original Constitution of Bangladesh. Madina Pact, concluded under the authority of Prophet Muhammad (SM.), is widely cited as a good example of secular practice.

In a modern state religious issues are kept beyond the interference of state, a citizen can believe in a religion, or he/she may be a non-believer. Faith and belief in specific doctrines are very much part of the religion. (Commissioner, HRE Vs Lakshmindra, AIR 1954 SC 282). The freedom of religion includes the right to hold no religious belief at all. The constitutional guarantee for freedom of religion goes so far that it also includes anti-religious programmes. (McGowan Vs. Maryland, 366 US 420).

Let us examine under which law and authority government has proscribed the publications of Ahmadiyya Jamaat. When taking the decision government considered article 41 of the Constitution and section 295A of the Penal Code. Government policy makers argue that government may ban any publication which hurts the religious belief of others and without which peaceful environment of society cannot be maintained.

Government decision does not seem to be correct because the decision is, at the first sight, violative of article 39 and 41 of the Constitution. By this decision government has taken away the right of the Ahmadiyya community to profess, practice and propagate their religious belief guaranteed by article 41 and their freedom of speech, expression and its publication guaranteed by article 39. Though these rights have been given on the condition of law, public order, morality etc, but there is no sign or strong indication that religious belief of Ahmadiyya community and their publication hurt feelings of majority or constituted considerable threat to public order.

There was no referendum or any other credible evidence that majority people demanded ban of Ahmadiyya publication, which government could cite to substantiate their decision. Only some small religious groups, who hold at best 7-8% support of the total population, masterminded the whole issue of banning Ahmadiyya publication. The way some extremist groups organised violent assembly is punishable under the Penal Code. Instead of controlling their violence and penalising them government bow down to their grossly unreasonable demand and rewarded them by banning all the publications of Ahmadiyya community.

Government's decision suffer from a serious contradiction because of its inherent lacuna. The extremists demanded to declare Ahmadiyya community non-Muslim and ban all their publications. Government only banned all the publication of Ahmadiyya community recognising their religious identity valid as government did not declare them non- Muslim. Here lies the basic contradiction of governmental decision. If the government considers the religious identity of Ahmadia Jamaat valid, they must have the constitutional right to profess, practice, and propagate their beliefs and make them published. Government on the one hand let them to practice their religion, on the other proscribes to profess and propagate the same. This basic contradiction indicates that government did not consider the matter judiciously.

Tolerance is the basic lesson of democracy. Ventilation of dissenting view is the safeguard of a vigorous society. Without the protection of minority rights, a democratic polity cannot sustain itself. Its solidarity and progression depend on the recognition of minority groups and peaceful enjoyment of their beliefs and rights. Muhammad (SM), Prophet of Islam, concluded Madina Pact with Christians, Jews and even with infidels, against whom prophet continued his life long struggle. He followed the principle of secularism for ensuring a peaceful environment for all existing communities, the principle which deserves universal utility for any country having many religious and ethnic denominations. Bangladesh is not an exception to it.

Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, University of Dhaka.


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