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: 

https://www.academia.edu/113587820/Protecting_Secularism_in_Bangladesh_A_Critique_of_the_Constitutional_Unamendability_Approach 

 

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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* Lecturer, Law School, University of Hull, United Kingdom; Email: J.Chowdhury@hull.ac.uk

** Associate Professor, Department of Law, University of Chittagong; Email: mamunlaw1977@yahoo.com

*** Lecturer, Department of Law, Southern University Bangladesh; Email: mdjahedulislam59@gmail.com