What is Bangladesh’s 15th Amendment which added 'secular' to Constitution? Why is it being challenged?

A top Bangladeshi official has called for dropping the word secular from the country’s constitution.

Attorney-General Mohammad Asazzaman, the top law official in Bangladesh, made the argument during a hearing in the country’s high court.

The court was hearing a writ petition filed by a number of citizens challenging the Bangladesh Constitution’s 15th Amendment.

But what do we know about the 15th Amendment which made its constitution secular?

Let’s take a closer look

A brief look at secularism in Bangladesh’s Constitution

First let’s briefly examine the history of secularism in Bangladesh’s Constitution.

As per TandFonline.com, the original 1972 constitution incorporated secularism as a fundamental principle.

It was one of the four fundamental principles of state – alongside nationalism, socialism and democracy.

However, secularism was removed from the constitution following the 1975 military coup by General Ziaur Rahman.

This occurred after the assassination of Bangladesh’s founding father Sheikh Mujibur Rahman.

In 1988, Islam was declared as Bangladesh’s official religion via the 8th Amendment**.**  

In 2005, the Supreme Court ruled that the removal of secularism from the constitution was illegal.

That ruling was then upheld by the Appellate Division.

Then, in 2011, the Awami League government of Sheikh Hasina – the daughter of Mujibur – passed the 15th Amendment.

The 15th Amendment

As per Indianpublications.com, the 15th Amendment defined secularism as:

The principles of secularism shall be realised by the elimination of

• Communalism in all its forms;

• The granting by the State of political status in favour of any religion;

• The abuse of religion for political purposes;

• Any discrimination against, or persecution of, persons practicing a particular religion

The Awami League government thus restored secularism as one of the four fundamental principles of the state.

However, that’s not all the 15th Amendment did.

Though it maintained that Islam is the official state religion, it removed “the full faith and confidence in Allah” the Constitution.

It also retained the phrase “Bismillah-ArRahman-Ar- Rahim” [In the name of Allah, the Beneficent, the Merciful] above the Preamble.

It also designated several articles which comprised the Constitution’s fundamental provisions as “non-amendable.”

It essentially set that certain basic structures of the Constitution “shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.”

It inserted Article 7A which criminalises any attempt to repeal, suspend, or subvert the Constitution through force or unconstitutional means – and designates such acts sedition which are punishable by the death penalty.

It also gave the President of Bangladesh ultimate command over the armed forces – albeit with legal restrictions.

The amendment also stated that the president would appoint the Chief Justice of Bangladesh . The president was also given powers to appoint other judges in consultation with the Chief Justice.

The amendment also increased the number of reserved seats for women in parliament from 45 to 50 as well as reinstated religious freedom in the constitution.

The amendment also abolished the caretaker government system and recognised Sheikh Mujibur Rahman as the Father of the Nation.

It also mandated that Mujibur’s portrait be kept at the offices of the President, Prime Minister, Speaker, Chief Justice, and head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, and Bangladeshi embassies and missions overseas.

It also mentioned in the constitution the March 7, 1971, speech by Mujibur, the April 10, 1971 proclamation of independence in Mujibnagar, and the March 25 proclamation of independence by Mujibur after midnight.

The amendment also spelled out the duty of the state to care for the environment and wildlife.

“The State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects, and communities,” it read.

Criticism of 15th Amendment

The amendment has been the subject of much controversy since it passed.

It has received flak from some quarters.

As a piece by Professor Maimul Ahsan Khan, former chair, Department of Law, University of Dhaka on the website Humanrights.Asia noted, “The 15th amendment of our constitution has created way too many controversies, too many for a Supreme Law of a modern State. Not only has it attempted to change many age- old and universally accepted formulas of jurisprudence and constitutionalism, it has created too many ambiguities for a sound legal document.”

A piece in Daily Star by Dr Badiul Alam Majumdar, secretary of SHUJAN: Citizens for Good Governance_,_ in February 2023 described its passage as unilateral and said it was done by the Awami League government in a ‘majoritarian manner’ which weaponised the constitution.

The piece contended that the constitution represents the will of Bangladesh people and should therefore not be altered, without the consent of the governed.

It thus argued that the 15th Amendment is neither legitimate nor constitutional, as no referendum was held before its passage.

“No serious deliberations took place on the 15th Amendment before its passage either. Even though the BNP was asked to propose a name for the special parliamentary committee, it refused to do so, and it was also absent during the amendment’s passage. Thus, the 15th Amendment did not have the support of the major opposition,” the piece argued.

What did the A-G argue?

Asazzaman on Wednesday sought to remove “secularism” and “socialism” as two of the four principles of the Constitution.

As per UNB, Asazzaman said the words socialism and secularism “do not reflect the realities of a nation where 90 per cent of the population are Muslim.”

The attorney general criticised Article 7A saying that this restriction limits democratic change and disregards the recent mass uprising that deposed the Awami League government and demanded the restoration of the caretaker government system.

“The (provisions of the 15th) amendment betrays the sacrifices of martyrs like Abu Sayed and Mugdho,” said Asaduzzaman, referring to two students who were shot dead during the July-August mass protests.

He called the amendment a “direct assault on democracy and the rule of law.”

He described the abolition of the caretaker system as a “stab in the heart of democracy.”

He accused the amendment of prolonging authoritarian rule and violating constitutional supremacy. He added that the amendment perpetuates division among citizens and disrupts the country’s political stability.

As per UNB, the Attorney General also criticised Article 6, which defines national identity through language, claiming it has fostered unnecessary divisions among citizens. He argued that no other country uses language as a basis for national identity, making this provision unique and problematic.

Speaking about other parts of the constitution, he also took issue with Articles 7(ka) and 7(kha), claiming they undermine democracy and serve authoritarian purposes. Calling for their repeal, he asserted these articles were enacted with ill intent to stifle democratic institutions, UNB reported.

Asaduzzaman urged the reinstatement of referendum provisions under Article 142, arguing it was essential for restoring democratic accountability. He criticised the amendment for enabling MPs elected through “election engineering” to unilaterally eliminate this critical democratic mechanism.

He also asked the court to remove the designation of Mujibur as the Father of the Nation. Sheikh Mujibur Rahman was the undisputed leader of Bangladesh but the Awami League politicised him in the party’s interest, Asazzaman said, referring to the founding leader of Bangladesh who is popularly known as Bangabandhu.

He advocated for reinstating the original phrasing, which emphasised unwavering faith in Allah. He also questioned the relevance of Bengali nationalism in Article 9, calling it inconsistent with modern democratic principles, UNB reported.

Asaduzzaman argued that these changes would align the constitution with the country’s democratic and historical ethos.

He also made a call to reinstate provisions for a referendum, which was abolished under the 15th Amendment.

The writ petition challenged the validity of the Constitution’s 15th amendment made by the now-ousted Awami League regime of deposed prime minister Sheikh Hasina in 2011 while a two-judge High Court bench issued a rule asking the interim government to come up with its stance on the matter.

“As a whole, we do not want that (HC) rule to be scrapped,” the attorney general said, clarifying the government’s stance on the writ petition while talking to newsmen at his office.

Several people, mostly lawyers, emerged as interveners in the writ petition, some supporting the plea and some opposing it.

In his concluding arguments, Asaduzzaman told the court that the interim government wanted to declare the 15th amendment to the Constitution largely unconstitutional, retaining only select provisions.

Asaduzzaman was appointed as the attorney general days after the ouster of the past regime and the resignation of his predecessor.

The Awami League regime was toppled on August 5 in the face of a mass upsurge originating from a quota reform campaign by the Anti-Discrimination Students Movement. Three days later Nobel laureate Muhammad assumed office as the chief adviser of the interim government.

With inputs from agencies