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HC rejects writ on state religion

  • Published at 07:26 pm March 28th, 2016

The High Court yesterday rejected the much talked about writ that challenged the legality of a constitutional provision recognising Islam as the state religion of Bangladesh.

The bench of Justice Naima Haider, Justice Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal summarily rejected the 28-year-old petition, saying the petitioners have no jurisdiction to move such a petition.

“It was rejected on the ground that the committee under which the petition was filed in 1988 had no legitimacy as it was not a registered body,” said Murad Reza, an additional attorney general who opposed the petition on behalf of the government.

The decision means Islam will stay as the state religion in the nation’s charter, which also speaks of equal rights for other religious groups, Murad Reza said.

“The writ petition was filed by the Autocracy and Communalism Resistance Committee, but this committee was never registered with the government. The citizens filed the petition under this committee’s banner, they did not sign it individually. So I think the rejection was rightly done,” Murad Reza said after the court gave its ruling.

However, petitioners' counsel Subrata Chowdhury said they had no clear idea why it was rejected. “Let the full observation of the court be released,” he said.

Earlier during the hearing, Murad Reza told the court that they needed more time for preparation as the matter was old and had a long course of legal battle.

The court said it would hear from the petitioners' lawyer first and also asked a number of lawyers, who prayed to the court to be

a party against the writ petition, to wait.

The court then asked Subrata Chowdhury if he had studied on whether Autocracy and Communalism Resistance Committee had any jurisdiction to file the writ petition.

The counsel replied that the writ was filed on behalf of the committee and also all of the petitioners had prayed separately.

“But all of us have studied and found that the petition was filed on behalf of the organisation,” said Justice Naima Haider.

The lawyer said that they would give detailed explanations during hearing and would try to provide satisfactory answers.

The court said: “That organisation has no Locus standi [a Latin phrase referring to whether someone has the right to be heard in court]. The writ is summarily rejected, ruling discharged.”

Jamaat-e-Islami, which called a nationwide dawn-to-dusk hartal yesterday, withdrew its strike shortly after the court delivered the order in the afternoon.

Case history

On June 9, 1988, the then government led by military ruler HM Ershad inserted a section in the eighth amendment to the constitution, making Islam the state religion.

The same year, 15 eminent citizens, including former judges and academicians, filed the petition challenging the amendment.

The writ petitioners were Begum Sufia Kamal, former chief justice Kemal Uddin Hossain, Khan Sarwar Murshid, Prof Kabir Chowdhury, Prof Dr Mosharraf Hossain, Maj Gen (retd) Chitta Ranjan Datta (Bir Uttam), Prof Serajul Islam Choudhury, Badaruddin Umar, journalist Faiz Ahmed, Dr Borhan Uddin Khan Jahangir, Prof Anisuzzaman, Justice Devesh Chandra Bhattacharjee, Justice KM Sobhan, Syed Istiaq Ahmed, and Kalim Sharafi. Many of the petitioners are now dead.

After 23 years, the High Court on June 11, 2011, issued a ruling upon the government asking why the part of the eighth amendment to the constitution that had made Islam state religion should not be declared illegal. Twelve amici curiae were invited for opinions.

However, the government did not respond to the June 11 ruling, and on June 30 that year passed the constitution’s 15th amendment bill in the parliament retaining Islam’s status as state religion. It also restored secularism as one of the four fundamental principles of the state.

Following an application filed by the writ petitioners, the High Court in December 2011 issued a supplementary rule asking the government to explain why the part of the 15th amendment to the constitution that gave Islam the status of state religion should not be declared illegal.

The matter was absent from discussion tables until August 1 last year when Supreme Court lawyer Somendra Nath Goswami filed another petition with the High Court challenging the state religion provision as it was against the basic secular structure of the state.

He also sought justification of retaining the clause even though the government had restored secularism through the 15th Amendment to the Constitution in 2011. The petition was heard on August 30 and rejected by the court on September 7 last year.

On February 29, Chief Justice Surendra Kumar Sinha formed a new three-member bench to hear the 1988 petition following a prayer submitted on behalf of the petitioners. The new bench led by Justice Naima Haider also withdrew a previous order to hear opinions from over a dozen amici curiae.