Law opinoin
"In God We Trust, but don't let God loose!"
Freedom to profess and propagate religion
Barrister Naser Alam
Can the Republic be a democracy, without guaranteeing fundamental human rights and ensuring effective participation by the people through their elected representatives?: No. Can a law subordinate to the constitution be passed to override the Fundamental Principles of State Policy?: No. Can a legislative framework validly exist in contravention of the Fundamental Rights guaranteed under the constitution?: No. Is "equal protection of law" only limited to police and judicial protection?: No. Can a law sustain a call for democracy and constitutionality if a "protection of law" is discrimi-natorily withdrawn or unjustifiably restricted?: No. Can the legislature "gag" the electoral rights of the aspirants of votes and voters on the issue of "religious belief"?: No. Can "freedom of the press" be withdrawn on the ground of "religious propaganda" to enlist voters?: Mostly no. Is propagating "religion" for getting voter's response against securing "the rule of law" pledge under the constitution?: No. With so many negative attributes, a recent demand has been made to "criminalise" religious propaganda in seeking the attention of the electorates.
I am writing on the recent "demand" and "ultimatum" of one key political party with its very minor allies (in terms of polled vote in the last general election) on the reform of the electoral law. Some of the "points" in the demand are dire necessities for the smoothness and transparency of general elections, especially the forthcoming ones, and electing honest representatives (though I strongly feel that a stocktaking would indicate that only a particle of intended honesty among most of the current politicians in the country is achievable). I am sure good sense of the current legislators will prevail in bringing about some of these changes, considering the "people" of the Republic. However, it shocks or at least surprises one's sense of democratic propriety to learn that a demand has been tabled to "make it a criminal offence" any 'election campaigns using religion, and religious propaganda'. I will focus on the constitutionality of such a law, if it is forthcoming.
Our constitution has been premised to guarantee "the" rule of law (as opposed to "a" rule of law), freedom and equality without discrimination. Religious freedom to "profess" (to state openly that one has a belief, feeling etc.), "practise" (to do something as part of one's normal behaviour) or "propagate" (to spread an idea, a belief, knowledge etc more widely) is a constitutional guarantee. Such guarantee has its historical base in religion and not on secularism. This guarantee has been expressed in the constitution in most unequivocal terms than for example right to property or freedom of profession or occupation, or even freedom of speech and expression.
However, if public order and morality necessitates, state can impose "some restrictions of temporary nature", but cannot deny the rights in perpetuity; otherwise it would be equivalent to deleting the effect of Article 41 of the constitution and go against many other provisions. The addition of "Subject to law" in Article 41 has to be understood it its proper spirit. Curiously, Article 41 does not say, "subject to any restrictions imposed by law", as stated in other provisions. Howsoever the higher judiciary and the scholars may interpret the differences inherent in these terms, a minimum standard pledged by the state cannot go to the extent of permanent denial of rights to "profess, practise and propagate any religion". In fact, it is a fundamental spirit of the constitution to strive to achieve a better standard of fundamental rights. Moreover, freedom to profess and propagate religion is a 'protection of law' guaranteed under the constitution. This protection cannot be withdrawn altogether, but limited restrictions can be applied only under the mandate of the constitution. I wonder whether there is a pressing "public order and "morality" need to introduce a perpetual "anti-religious-propaganda law" as demanded recently by some political corners. What is needed, on the contrary, is a practice and consensus denouncing "all" forms of discrimination and inequality, including the recent gross injustice done to a particular religious sect. More fundamentally, shall the constitution, representing the wish of the people, adopt a state policy of discrimination in the process of electing the people's representatives? The answer shall always be in the negative in all cases, not selectively negative!
Our Fundamental Principles of State Policy guarantees fundamental human rights and freedom and "effective participation" by the people. This principle has to be applied by the state in making laws in the republic. I wonder whether the travaux preparatioer of the constitution rejected the possible nexus between freedom of religious propagation and effective participation and engagement of the people through such propagation. An effective participation underscores the need for freedom in participation. Freedom in participation is intrinsic to the freedom of thought and conscience. For example, legal or political conscience building on contemporary jurisprudence on corruption, economy, and warfare has impacted on how people form their electoral opinion, and vote. If such is permissible in a democratic society, what has gone wrong with religious propaganda? A close examination will reveal that "rule of law" is a fundamental aspiration of all religion. If citizens wish to exercise their electoral rights based on a religious call for democratic values, equality and rule of law, a free and democratic mind cannot comprehend the demand for "criminalisation" of such a call.
The current demand, well publicised through the participation of constitutional gurus, falls foul of this fundamental guarantee. It tends to replace the constitutional essentiality with a 'choice of political ideology', which is against the principle of democratic values and practices in a civilised society.
This demand also curiously surfaces the issue of 'constitutional ideologies' in democratic participation, which in turn engages one's mind on "discrimination and equality". In some modern democracies, equality of participation of all beliefs are allowed, be it religious or grounded on environment, and even animal rights. A belief system is not contradictory to the constitutional exercise of electoral rights. All political ideologies, be it secular, religious or other should compete in a modern democracy and it is the people who should in turn decide what they think is more suitable to their needs of governance. This is how modern democracies thrive, and shall be allowed to thrive. In the past people indeed rejected 'theocracies', and gradually established democracies. In some eastern and western countries, religion is at the heart of politics, so as globalisation, and secularism. They do not go hand-in-hand in many aspects, but co-exist. This co-existence is a fundamental democratic value and has become an international norm. One may wonder how far this democratic principle has been prominent in the thinking of the parties who demanded withdrawal of a fundamental constitutional guarantee.
In a country where nearly all of the population, of all faith, practices religion, why should it be so "criminal" to seek vote on religious principles? The recent demand to criminalise such propaganda ponders one to think whether religion is an exception to "morality" and "public order" under Article 41. I did not find it; hope someone can document it, if it exists. Does the demand not entail so many fundamental changes to the constitutional guarantee of equality and freedom of speech and expression? In this context, I wonder where does the Article 39 exceptions engage properly and legitimately.
Ours is a progressive thinking society and a call to impose restrictions on electorate's choice is regressive, an insult on democracy and the sacredness of our cherished constitution. I also strongly feel that multi-culturalism has been seriously undermined by this most egregious demand. Not very long ago, the current Honourable leader of the opposition in the Parliament, stated "Once the Muslim Scholars had kindled the torch of knowledge when the entire world plunged into the darkness of ignorance and superstition", and also called upon the "Ulema-Mashaekhs" (an incomprehensible term for me) to come forward to send messages or shall I say give "dawah" to the people against corruption. I wonder whether that call was a call towards political scoring and in turn to get sympathy votes of some voters! Now, it is totally irreconcilable that a renewed demand has been made against banking on voters based on religious propaganda. The country has been blessed by the religious teachings of other faiths. In such circumstances, two aspects are crucial here; firstly, the inherent inconsistency in the approach towards "freedom of expression", and secondly, the delimitation of the legal scope of religious propaganda. I am not sure how the government will deal with this, but my call would be outright rejection of this "demand" for the sake of constitutional propriety.
The author is a Barrister at law, writes from Paris.
