Can't B'deshi crusaders against religious obscurantism face Jamaat headlong in stead of leaning on juridical path? It's a genuine question.
Here is an article in The Statesmantoday
On banning the Jamaat
Red Herrings Along The Trail In Bangladesh
By Azmm Moksedul Milon 3 Apr 13 (http://thestatesman.net/index.php?option=com_content&view=article&id=450202&catid=38)
THE conscience of the people of Bangladesh has been stirred after 42 years. Overwhelmingly, they are demanding that those who committed war crimes during the liberation war in 1971 be hanged and that the Jamaat-e-Islami ~ which had opposed the creation of Bangladesh and had abetted the war crimes ~ be banned.
Many believe that the Bangladesh Jamaat-e-Islami might be banned as its constitution does not conform to that of the State. Article 8 (1) of the Constitution of the People's Republic of Bangladesh states that "the principles of nationalism, socialism, democracy and secularism, together with the principles derived from those shall constitute the fundamental principles of State policy." Article 38 also states that "every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order, provided that no person shall have the right to form, or be a member of the said association or union, if its formation and objects are inconsistent with the Constitution".
The Charter of Bangladesh Jamaat-e-Islami, as amended in 2008, ruled out the provision of socialism and secularism and aimed at putting in place the rule of Islam. A writ petition was filed in 2009 against the Election Commission for not scrapping the registration of this unconstitutional party. While the petition is scheduled to be heard in April, the Jamaat claims that the petition has lost its legality as the party amended its charter in 2012, purportedly in accord with the Constitution of Bangladesh. However, the latest version of the party's constitution is not available on its website. According to The Independent, London (4 December 2012), the amended party constitution that was submitted to the Election Commission on 2 December, states that the aims and objectives of the party are "to establish a society based on justice and equality through the democratic process in Bangladesh and to get the contentment of Allah, the Benevolent". The same report also states that "a number of clauses in the Jamaat's charter call for establishing the rule of Islam that are in conflict with the country's Constitution".
The political objectives of the Jamaat can be legitimised only if the country's Constitution is changed, one that will include the amendment of the fundamental principles of the State. But the aims of the party can never be fulfilled constitutionally as Article 7B guarantees that the fundamental principles of the State are not subject to any amendment. However, some prominent legal experts have suggested that the constitutionality of Article 7B, inserted in the Constitution through the Fifteenth Amendment Act 2011, may be challenged in the High Court. They believe that it is the people, and not the Constitution, that should decide what the fundamental policies of the State should be; and the Constitution, as an expression of the will of the people, must be subject to change.
Therefore, a ban on the Jamaat-e-Islami on the ground that it is unconstitutional will run counter to the very spirit of democracy, although the ban will be lawfully justified under the provisions of the present Constitution. Furthermore, many believe that a ban on the party will provoke its followers to go berserk and create a situation similar to what prevails in Pakistan at this juncture. In the net, it will make the life of the people insecure and vulnerable.
It has been argued that the Jamaat can be banned because its activities are not peaceful in terms of Articles 37 and 38 ~ "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order, provided that no person shall have the right to form, or be a member of the said association or union, if it is formed for the purposes of organizing terrorist acts or militant activities against the State or the citizens or any other country".
Recent activities of the Jamaat are doubtless anti-people and anti-State. Notably, the attacks on the police, the demand for the abolition of lawful tribunals, the tearing of the national flag, the destruction of language martyrs' monuments and the houses and temples of the minority communities, and the uniquely notorious cutting of the tendon. The fact is that similar allegations can also be levelled against the mainstream parties. The Awami League and the Bangladesh Nationalist Party can be no less violent than the Jamaat Shibir, most importantly the killing of Biswajit Das by the activists of the student wing of the ruling party on 9 December 2012.
Banning the Jamaat may be justified under the provisions of the present Constitution of Bangladesh, but it will almost certainly be described as 'politically motivated' by the international community. The party can lawfully be banned only if it can be proved in a court of law that it has been involved in crimes against humanity and war crimes during the liberation war. The verdicts on Abul Kalam Azad and Abdul Quader Mollah have already exposed the complicity of the party in the war crimes. Prominent civil society activists have termed the Jamaat-e-Islami as 'a terrorist organization' at a convention at the Bangabandhu International Conference Centre on 16 March. They have demanded that the party be banned.
It remains for the government to decide whether or not it should initiate legal procedures to ban the party. A ban will have a profound impact on party politics; the Jamaat's members might form a new entity, one that is free of the charges of war crimes and crimes against humanity. Moreover, its major force, the Islami Chatro Shibir, which was established on 6 February 1977, will be totally unaffected as neither the organization nor its present members were involved in war crimes. Its power base will not be affected. And without the tag of "crimes against humanity" it will be able to attract more supporters and is likely to emerge as a major political force within a few decades.
A ban on the Jamaat may well lead to a born-again entity. Perhaps the government wants to leave the matter to the people, hoping that the party will be rejected by the people in the next parliamentary election. This is a relatively safe option for the Awami League, the present ruling party.
Some may even wonder how the Jamaat can indoctrinate the BNP, the largest party of the 18-party alliance. The BNP does not want to split its alliance with the Jamaat because it is only through the Jamaat that it can protest against the trial of its detained leaders who have been accused of crimes against humanity. Contrary to popular belief, it is the BNP that is indoctrinating and using the Jamaat to serve its purpose. It is acutely aware that if the Jamaat is banned, there will be no organised group to protest against the tribunals. This is, perhaps, the only reason why the BNP does not want to antagonise the Jamaat and has not overtly demanded that the party be banned.
If the Jamaat is banned, its leaders will not form a new party before the next election; in other words, the BNP will not let them do so. Rather most of the current leaders of the Jamaat will stealthily join the BNP. Thus the 18-party alliance will lose nothing, though it will be reduced to a 17-party conglomerate. At another remove, it is very, very unlikely that the Awami League will ban the Jamaat ahead of the parliamentary elections. It won't risk it.
The writer is Lecturer in English, Presidency University, Dhaka. He can be contacted at azmmm_milon@yahoo.com
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