Jamaat's charter in clash with country's constitution
Jamaat-e-Islami Bangladesh will have to bring fundamental changes to its constitution to get registered with the Election Commission (EC) so that it qualifies for participating in parliamentary polls. If the party changes its constitution to conform to the registration criteria, it will definitely lose its characteristics as an Islamic political party.
Among the registration criteria laid down in the revised Representation of the People Order (RPO), two conditions infuriated Jamaat leadership as those put the party's very existence as a hardline Islamic party at stake.
One of the significant criteria for registration says that a political party shall not be qualified for registration if the objectives laid down in its constitution are contradictory to the constitution of the People's Republic of Bangladesh.
Jamaat's constitution clearly contradicts the objectives laid down in the country's constitution, the supreme law of the land. All other laws, actions and proceedings must conform to the Bangladesh constitution and any law, action and proceedings, in whatever form and manner, is void if made in violation to the constitution.
The preamble to the constitution reads: "…. it shall be a fundamental aim of the state to realise through the democratic process a socialist society, free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social will be secured for all citizens."
But the aims and objectives laid down in Jamaat-e-Islami's constitution are to establish rule of Islam through all out efforts and for establishing peace all over the world and welfare of mankind.
The party constitution also urges to end all types of repressions, injustice by establishing rule of Allah and rule of honest people through organised efforts.
In its preamble, Jamaat's constitution says that Allah has sent mankind with the responsibility to establish Khelafat (Islamic rule) and made mankind responsible for following and practising Allah-directed life style without following and practising man-made ideology.
The Jamaat constitution disagrees with the aims and objectives laid down in the Bangladesh constitution and it also rejected the country's constitution saying "it was man made". There are many other provisions in Jamaat's constitution that contradicts with the country's constitution.
Article 7 (1) of country's constitution says all powers in the republic belong to the people and their exercise on behalf of the people shall be effective only under and by the authority of the constitution.
To get registered with the EC, the Jamaat will have to change its aims and objectives, laid down in its constitution, in line with the objectives laid down in the preamble of the country's constitution.
Another significant registration criterion says that a political party shall not be qualified for registration if any discrimination regarding religion, race, caste, language or sex is apparent in its constitution. The text of the criterion was taken from Article 28 (1) of the country's constitution.
According to the constitution of Jamaat, only religious Muslims can join the organisation and be members or leaders of the party.
To join Jamaat one will have to swear in as member or leader of the party expressing total allegiance to Allah and his prophet (sm) and promising to give topmost priority to abide by the order of Allah and his prophet.
This means none but religious Muslims are eligible for being a member or leader of Jamaat-e-Islami.
Legal experts say that this is absolutely discriminatory and contradictory to the Article 28 (1) of the country's constitution.
They said if any organisation wants to discriminate based on religion and claim such discrimination as its rights, the constitutional guarantee against non-discrimination will obviously have to be thrown away.
If Jamaat now wants to get registered with the EC meeting the criteria, it will have to change its constitution allowing non-Muslims to join Jamaat.
Jamaat also opposed the criterion that says that a political party willing to get registration shall have a specific provision in its constitution fixing the goal of reserving at least 33 percent of all committee positions for women including central committee and successively achieving this goal by the year 2020.
After the new provisions in the RPO were incorporated in an ordinance promulgated on August 19, Jamaat's Secretary General Ali Ahsan Mohammad Mojahid filed a writ petition with the High Court (HC) challenging the three provisions.
In the writ Jamaat claimed that the provisions are unconstitutional.
Following the writ, the HC issued a rule up on the government and the EC on August 28 asking them to explain within two weeks as to why the three sections of the RPO, 2008 should not be declared illegal.
The rule remains pending while the EC's timeframe for applying to it for registration is running out. Political parties must apply to the EC by October 15 for registration.
In this situation, Jamaat, a key partner of BNP-led electoral alliance, now wants cancellation of the registration process and it has also successfully made the BNP to back its stance. BNP, however, does not have any such problem and it can easily bring changes to its constitution and apply for registration.
Interestingly, the Special Powers Act (SPA), 1974 does not allow Jamaat and other Islamic political parties to run their activities in the name of or on the basis of religion. The parties have been going on with their activities for the last three decades due to non-enforcement of the laws.
The 1972 constitution banned formation and functioning of any association or union or political party based on religion. Jamaat, which opposed the country's birth in 1971, was automatically banned by the constitution. The provision for ban was later repealed during the rule of Ziaur Rahman allowing Jamaat to resume its activities.
However, the SPA, 1974 is still in force and calls for ban and punishment for violation of the provision.
All successive governments since August, 1975 changeover used the SPA to suppress opponents but turned a blind eye to banning political activities in the name of or based on religion.