For those of us, who learned about our liberation war of 1971 through history books or from our parents, the 2013’s Shahbag has a different, unique and important meaning. Don’t get me wrong, nothing can be compared with ’71, nothing at all. But the Shahbag movement has reignited the power of emotion, allowed us to show our deep love for the country and expressed our anger to those who collaborated with the Pakistani army.
by Asif Shahan
In effect, the Shahbag movement has done much more – our search for identity as a true citizen of Bangladesh is finally on the right track (I must say, despite some pathetic efforts by the political leaders), our password for citizenship “Joy Bangla” is back (much to the despair of those who were eager to term this as a “partisan” slogan) and all of a sudden, we have realized how unified we are in expressing our desire, how strong our love for the country is and how passionate we are in expressing our hatred for the butchers of 1971. At the same time, the youth of this country has forced the government to amend the International Crimes Tribunal Act and yes, they have created the path for bringing an entire organization – Jamaat-e-Islami Bangladesh (JIB)- to justice. The Shahbag has spoken and it has expressed its desire that the government should ban the JIB and the government told us that it would do so. But, in my opinion, the implementation of this ban will be tricky and there are few issues that need to be considered and the government should be ready to respond to the criticisms of the so-called developed democratic countries. In fact, the political game has started. Just look at the statement made by the Senior Minister of State of Foreign Affairs of UK, Baroness Warsi. This is what she said, “I fundamentally believe that you don’t get rid of things by banning them. You defeat views by challenging them, by defeating them through ballot box…There are always parties in all countries whose views we may not like, whose views people may not like and the way you defeat those views is through the ballot box” (For details see: http://bdnews24.com/bangladesh/2013/02/20/ballots-not-ban-is-the-answer). My guess is, this is just the beginning and of course, there is more to come. For us, the question is – are we ready to answer to these questions?
First of all, let us try to identify the issue at hand. probably the most important criticism that can be directed towards the government (if it starts the procedure of banning JIB), is something like this – freedoms of speech, expression, assembly and association are key ingredients of democracy and if the state decides to infringe these freedoms, the overall legitimacy of the democratic state may be jeopardized. As the Baroness expressed, there will always be parties with opinions/ideologies that we may not like but that is not the justification of banning these. This is undoubtedly a strong argument but sadly misleading for three reasons. First, this argument relies on the false assumption that every political party or ideology has the same goal or the same respect for the democratic principles. Unfortunately, as history has taught us, this is not necessarily case. I like the argument developed by Novat,
“But viewing the political rights to vote and to be elected as ‘absolute rights’ may well endanger the democratic system in its entirety. Political freedoms could be exploited to challenge the political order, sometimes to the degree of putting it in serious danger. For example, a party that negates democratic principles can attain power precisely by exploiting these absolute political rights. Upon attaining political power it might well suspend, or even totally abrogate, the democratic character of the state, including those very same rights that brought it to power.”
Therefore, if the state has sufficient reasons to come to a conclusion that a particular political party will not adhere to the democratic norms, there is nothing wrong in taking action against that party.
Second, this so called strong argument ignores the ability or intention of the state to protect its democratic status. What the proponents of this argument fail to state is the fact that the democratic state not only opens its gates to different opinion but also preserves an “implied power” of “self-defense” against all “subversive attempts designed to destroy it”. This is not a question of liberal, illiberal or hybrid regimes as even the states close to the principles of liberal democracy can decide to “exclude groups” whose aims and actions may endanger the state or harm the national consensus. Of course, the way a democracy decides to exclude these groups tells us a lot about the nature of the democracy – if it follows a “militant” strategy, i.e. when faced with extremist challenge decides to ban political groups even at the cost of jeopardizing basic democratic norms, the state shows the symptoms of an illiberal democracy. On the other hand, the democracy can always follow a much liberal tone, i.e. “It reflects democracies, which adopt liberal ideas, and thus adhere to the rule of law concept. However, when under attack, such regimes might consider flexing the boundaries of the rule of law to enable a proper response to the challenges. Democracies of this sort may exclude political parties from taking part in elections as long as there is a constitutional or legal authorization to do so” (Pedahzur, 2001). Now, this presents an interesting scenario as it shows that a democratic state can ban political parties “when under attack” and it will not violate the rule of law (in the absolute sense) as long as it is allowed to do so through constitutional or legal authorizations.
The second point actually indicates the third weakness of the “strong” argument. This weakness can be best explained if we attempt to answer two questions – first, have the developed democracies ever attempted to ban political parties? If so, though which means? And second, are there necessary and sufficient legal and constitutional provisions in the case of JIB? Regarding the first question, Wikipedia shows an interesting result. In May 1940, the British Union of Fascists was banned by the then – surprise! Surprise! – UK government as it considers the activities of the BUF subversive to the existence of the state. So looks like, not all decisions are made through Ballot after all (for details see: http://en.wikipedia.org/wiki/British_Union_of_Fascists).
All right that was back in 1940, part of the history lesson and let’s face it, it was during the Second World War. What about the post-2000 period? Here are three examples-
a. According to the article 21.2 of the Basic Law of Germany, political parties can be banned if they “by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic”. In 2001, the Government of Germany, based on this Act took the first attempt to ban NDP. The government argued its case before the Federal Constitutional Court. However, it failed to do so. In 2012, “the interior ministers of Germany’s 16 states unanimously recommended pursuing a new ban of the National Democratic Party on allegations it promotes a racist, xenophobic, and anti-Semitic agenda in violation of the country’s constitution”. The Federal Constitutional Court has not decided yet. (For details see: http://www.3news.co.nz/Germany-seeks-to-ban-far-right-party/tabid/417/articleID/279402/Default.aspx#ixzz2Lc2IRkAY)
b. According to Article 9 of the Amended Party Law of Spain, if the political parties violate human rights and democratic principles, they will be declared illegal. According to this, if a political party repeatedly “encourage or enable violence to be used as a means to achieve political ends or as a means to undermine the conditions that make political pluralism possible” and/or “assist and give political support to terrorist organizations with the aim of subverting the constitutional order”, that party can be banned. In fact, in 2003, a Spanish Political Party Batasuna was banned for engaging in these kinds of activities. However, it should be pointed out that the action of the Spanish Court drew criticism but it was criticized not for banning the party but for the process through which it was done. For instance, the Economist argued that in case of Batasuna, its involvement in the anti-democratic activities was not proved beyond reasonable doubt but here is the most important part, the Economist suggests, “In principle, democracies—especially those as young as Spain’s—should ban political parties only for outright anti-democratic activity” (for details see: http://www.economist.com/node/1301865). In a nutshell, the so-called champion of freedom of expression indicates that political party can indeed be banned if a proper procedure is followed.
c. Finally, “in November 2004, the Belgian Court of Cassation upheld a decision of a lower court that effectively (if not technically) banned the far-right VlaamsBlok, a significant party in Dutch-speaking Flanders”.
So banning political party is neither a unique phenomenon nor a reflection of undemocratic rule rather if the party plays an active role in jeopardizing the human rights, democratic practices or democratic values, for the sake of survival, a democratic state should ban the political parties. Probably it can be best explained through article 11 of the European Convention on Human Rights, which states that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others”, however, these rights can be “restricted as long as such restrictions are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.
When I was writing this note, I was thinking about examples of activities conducted by the JIB that threaten the democratic future of our country. I did not have to wait long and what JIB did today is good enough to reflect their “commitment” towards democracy. This is what the organization did today and probably is still doing:
a. The mosques have been used by this organization to further its political goal.
b. It has declared (wrongfully) that the activists of the Shahbag square are atheists and made efforts to march towards Shahbag. Clearly religion has been used for creating mayhem in the whole country.
c. They violently attacked the law enforcing force and showed their disrespect towards rule of law.
d. It has attacked the media and showed its disrespect to the freedom speech
e. It has showed disrespect to the flag of Bangladesh
f. It has destroyed Shahid Minar- the symbol of our language movement that started our journey of creating a new identity.
g. Finally, religion has been used for dividing the country
A couple of issues are important here – first of all, these activities are carried out not by just a group of Jamaat activists, and these are in effect sponsored by the JIB. These activities are supported by the organization and the JIB has from the very beginning attempted to make the Shahbag movement an anti-religious one. Second, all of these activities are subversive to the existence of a democratic state and a number of these challenge the very principles upon which the democratic state is established. Third, religion has been used by the organization to further its political goals. Now, as my discussion above suggests that if the organization’s activities can indeed be proved to be subversive to the state or civil rights, its activities can be banned given that there are adequate legal and constitutions provisions in place and these provisions are practiced effectively. So, what about Bangladesh? Does the country have these provisions in place?
Let us first look at the constitution:
As per Article 12 of the constitution, the state will make effort to eliminate use of religion for political purposes. At the same time, even though Article 38 ensures the right of every citizen to form associations or unions, this right has to be exercised “subject to any reasonable restrictions imposed by law in the interests of morality or public order” and these reasonable restrictions include – “no person shall have the right to form, or be a member of the said association or union, if – (a) it is formed for the purposes of destroying the religious, social and communal harmony among the citizens; (b) it is formed for the purposes of creating discrimination among the citizens, on the ground of religion, race, caste, sex, place of birth or language; (c) it is formed for the purposes of organizing terrorist acts or militant activities against the State or the citizens or any other country; (d) its formation and objects are inconsistent with the Constitution”. So, the constitution of the republic has made it very clear that political parties can be banned if it aims at destroying social or religious harmony, encourages discrimination engages into terrorist or militant activities.
I have argued earlier that the democracy does not need to be an illiberal one or does not need to exercise militant policies to ban political parties, if it has already established flexibility within the rule of law. Therefore, given the constitutional provisions, how can the GoB ensure that a proper procedure is followed in banning Jamaat? Even though I am not a legal scholar, in my opinion there are the following ways of doing that –
First, as the constitution has already laid down the basic principles for banning political parties, all the government needs to do is to explore whether these constitutional provisions are indeed violated by the political party, i.e. JIB. Even though my opinion is the part has done that especially after today’s performances (!), the government needs to check it out in a transparent way. It can either form a special standing committee as stipulated in the constitution, allows it to submit a report and then enact legislation or ban the political party through executive order. At the same time, the government can also form an independent commission to deal with this.
Second, I am not sure and may be someone with legal background can help me out. My guess is the Election Commission cannot ban the JIB. It can only de-register the party and this can be done only when the party is banned by the government.
Third, seeking the help of Supreme Court is of course another option. As far as I know, there is already a case pending before the court. The Government can of course expedite the process and if the Court decided to ban JIB (based on the constitutional provisions), it can be done.
Fourth, the Amended ICT Act also offers an opportunity. If a case is quickly lodged against the JIB (as now the law allows the conviction of an organization) due to its activities in 1971, the process will start. Again, I am not a lawyer, but given that the last two judgments of the ICT has already identified JIB as an organization to be involved in atrocities during our liberation war, we can hope for a guilty verdict and based on that verdict, action can be taken by against the JIB.
Fifth, there is another option (in my opinion) and it’s surprising that no one is talking about that. The Special Power Act of 1974 has some interesting provisions. For instance –
20. (1) No person shall form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.
(2) Where the Government is satisfied that an association or union has been formed or is operating in contravention of the provisions of sub-section (1), it may, after hearing the person or persons concerned, declare, by notification in the official Gazette, that the association or union has been formed or is operating in contravention of the provisions of sub-section (1), and upon such declaration, the association or union concerned shall stand dissolved and all its properties and funds shall be forfeited to Government.
Now I have found this thing really interesting and I am actually curious to know whether the current government can start taking action based on this act. Because it is probably the easiest thing to do and it will not take that much time.
The time has come to respond aggressively to the criticisms posed by the so-called developed democracies. If the question is – should the political parties be banned? The answer is yes and in some certain circumstances banning is necessary. Of course the burden of proof lies with the government but if it can perform its job effectively there is no question that a political party which stands against the basic principles upon which a country is built, a political party that fought aggressively against the independence of Bangladesh, a political party that has no respect for the constitution or the democratic values should never be allowed to participate in political activities. In fact, the developed democracies have done that and they have shown us to do that in a democratic way. Given that we have a legal and constitutional provision in place, there is no doubt that we can ban JIB if we wish.