Protecting Secularism in Bangladesh:
A Critique of the Constitutional Unamendability
Approach
Dr M Jashim Ali Chowdhury*
Md Abdullah Al Mamun**
Md. Jahedul Islam***
Published in:
Rajshahi University Law Journal, Vol 11 (2023), 108-131
Full text available at:
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Abstract
Bangladesh’s
struggle with religious fundamentalism is persistent. The liberal political
force that spearheaded the country’s liberation war in 1971 tried to adopt a
hard secularist policy by banning the religion-based political parties.
However, the newly independent nation soon faced conservative and Islamist
upsurge. In late 1970s, secularism was omitted from the constitution, and Islam
was officially endorsed as the State Religion. In 2011, the current secularist
regime revived Secularism. It, however, failed to remove the State Religion
clause. The ban on religion-based political parties also could not be revived
to its original extent. Still, they tried to entrench and better protect the
compromised version of Secularism by inserting an ‘eternity clause’ in the
Constitution. The eternity clause inserted through the Fifteenth Amendment Act
2011 made a large part of the Constitution, including the principle of
Secularism, totally unamendable by any future parliament. This paper examines
whether this ultimately saves the future of Secularism. It argues that textual
entrenchment in the form of total unamendability may not prevent what the
American constitutional experts call the ‘informal’, ‘off text’ or ‘stealth’
amendments. It further argues that the judicial protection through the implicit
unamendability of ‘basic structures’ may also not be adequate to safeguard the
Secularism against any its future dismemberment.
Keywords:
Secularism,
Constitutional Unamendability, Unconstitutional Constitutional Amendment, Basic
Structure Doctrine, Judicial Review, Informal Constitutional Amendment, State Religion,
Religion-based Politics.
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