London, December 30, 2015 (Alochonaa): At 44 years, a normally developed person is supposed to be mature, maybe at the peak of creativity, perhaps just a few years away from a potential midlife crisis, but certainly no longer immature and unsure of his or her visions and aims. As much as for an individual, for a state personality, too, these kinds of developmental expectations may not work out, either. Something may be wrong with the genetic structure, or there are too many competing pushes and pulls, with the potential or actual effect that healthy development is held back. Efforts to divide a nation and turn its people against each other may be identified and need to be addressed. Apart from risking serious harm and much trouble for individuals living in such a state, confusions over visions and the direction of development result in negative impacts on the identity construction of the nation as a whole. If, as we know, individuals may be confused and torn, despite reaching a certain age and physical maturity, the same can be said about states. If a troubled individual may ultimately commit suicide, a troubled nation may erupt in self-destructive violence, creating a climate of fear, mistrust and confusion over visions for the future.
I am convinced that Bangladesh as a nation has a very healthy gene pool and am by no means negative or pessimistic about the country and/or its development. It is not a poor country anymore, on many counts. However, since Bangladesh remains manifestly confused over its identity and hence is deeply troubled in many ways, the main purpose of the present article is to assess various aspects of maturity in the nation-building processes in Bangladesh. The analysis seeks to identify the scope for removing blockages and turbulences that seem to still trouble the country and its development despite more than four decades of self-rule and formal independence.
Concern for the higher national interest is of course never only based on formal legal structures. It remains far too often sidelined by selfish, narrow and reductionist agenda and actions, which continue to generate much mindless violence and destruction. Focusing here on the vision of Bangladesh as an independent nation state and its dreams and hopes for a better future, as indicated, the main purpose is to examine through legal pluralist methodology what problems remain in fulfilling those ambitious aspirations. Before we can assess the four major elements of the Bangladeshi national vision, one by one, we need to acknowledge at once that they are in fact connected in many ways, and that the climate within which we operate is no longer the same as in 1971.
Learning to live together: The four elements of the iccher ghuri
To reiterate, the four key elements of the vision for a golden successful Bangladesh relate to and focus on nationalism, democracy, socialism and secularism. They were written into the Constitution in 1972 under the guidance of the Awami League, and have recently been reiterated by the same party in ways that have led some experienced observers to compose fiercely critical writing.
I have explained elsewhere how the four key elements of the vision may be seen and treated in relation to the four major corners of the kite. The sequence in which they are going to be analysed below does not follow the numbering of the kite corners as it presently exists. Instead it is informed by the sequence in which they appear in the Constitution. As we begin with nationalism, it appears that the discussion also follows a roughly historical development, starting with the independence of Bangladesh in 1971. However, as indicated, all elements are interrelated and none of the four ambitions or agenda can be signed off as completed or fully achieved.
Nationalism as an element mainly of corner 4 of the iccher ghuri
It is evident that the blood-strained birth of the country in 1971 following a virtual war of independence from Pakistan continues to have huge implications today for the kite journey of Bangladesh. Specifically the un-redressed war crimes committed at that time, and the current government’s efforts to make some progress in this regard have led to violent recent reprisals against certain sections of the minority communities, which reportedly brought back memories of what went on in 1971. This has made it clear that perhaps still not everyone agrees that Bangladesh actually has a right to exist as an independent nation, but also confirms grave problems over the other three elements of the iccher ghuri of Bangladesh. Moreover, issues related to nationalism are not exclusively located in one kite corner, anyway.
To be sure, in 1971 it was a worrying new scenario in international law and human rights law that a certain section of a postcolonial nation state should simply be able to declare independence. This strays into debates on self-determination, of course, which are going to resurface further below. Others had tried this route before, Biafra in Nigeria for example, and did not succeed. The costs to Bangladesh, as we know, have been huge, but the country’s independence as a nation was in due course achieved and has been celebrated as a globally pioneering achievement. That the role and rule of Pakistan as a virtual oppressor of what was then East Pakistan became increasingly intolerable is well-established. That the memories from that time are painful and remain difficult to deal with emotionally, that the separation process involved huge costs in every respect and that a separation was inevitable is all quite clear, too. It also seems certain that ‘almost no one believes Bangladesh would have been better off remaining part of Pakistan’.
But lurking fears that the sovereignty of Bangladesh is at risk are cultivated in certain quarters. Typically for South Asian geopolitics, such apprehensions are partly fed by strategic allegations that the overbearing big neighbour, India, will seek to control or dominate Bangladesh unless one remains extremely alert. The arguments here are partly of an economic nature, and they prominently concern water rights. Water is, indeed, going to be an increasingly important issue, not only in this region of the world. But if India had really ever wanted to take over Bangladesh, the ideal moment would have been in 1971, and evidently this simply did not happen. While it has been asserted that ‘the complete story of the Liberation War has not been told’, a military insider has documented how in the aftermath of the war, arguments were raised that ‘[t]he Indian Army should be withdrawn at the earliest from Bangladesh as the Bangladeshis were quite capable of running their own affairs’. Indeed, as confirmed in the same source, the transfer of power to the Bangladesh Government was swift, the Awami League rapidly took control, and Sheikh Mujibur Rahman returned from captivity in Pakistan in early January 1972, immediately declaring Golden Bengal, Sonar Bangla, to be free. The Banglar iccher ghuri was afloat in the air. Now the arduous task of running the new country began.
By some accounts, every possible mistake was made by the first administration, but that relates more to the other iccher ghuri agenda than nationalism. The heroic ‘Father of the Nation’ image that the current administration still seeks to bank on, and desires to cement, is there for all to see. That this celebrated father of the nation was soon murdered did not endanger the national sovereignty of Bangladesh, it was an internal matter. What the country seems to struggle with now, however, is how to handle its various internal diversities, which means that the nature of the turbulences experienced relates today more to corner 1 of the kite and identity issues rather than to corner 4 and the international and human rights dimensions, which are of course, as noted earlier, also present in all other kite corners.
Democracy as a key element of corner 3 of the iccher ghuri
Given that all kite corners contain elements of the other corners, it is almost redundant to reiterate here that democracy connects rather closely to nationalism but also impacts on matters related to socialism and secularism. The previous section established that as long as the vision of nationalism retains a hybrid and plural character, there can be no challenge to the claims of minority members of the nation to have an equally legitimate voice in democratic decision making processes as claimed by the Muslim majority. Some Bangladeshis, however, still do not accept that members of minority communities belong to the body politic and the country’s society. The resulting view is that they should not have a voice, in fact they should be excluded. I do not think one can directly blame a government for such individual deficiencies of plurality-consciousness. But if the government of a plural nation itself subscribes to such an exclusionary vision, there will be deep trouble for millions of Bangladeshis also in terms of democratic participation. We saw that, by the way, in Europe and elsewhere during years of BNP rule when many members of minorities were forced to seek international protection abroad.
Regrettably, both major parties in Bangladesh have strategically engaged in playing bad chess games with democracy, and this is not only an issue of the proverbial ‘Battle of the Begums’. In relation to democratic structures and processes, actually, memory of colonial pasts and especially of electioneering atrocities in 1970/71 should have had a therapeutic effect in independent Bangladesh. It should have inspired a sense of responsibility and a commitment not to repeat such grave mistakes of disregarding basic democratic principles. But historical lessons have not been learnt.
Activist and alert judges as highly skillful legal kite flyers, rather than military intervention, will thus in my hope-inspired prediction allow the iccher ghuri of Bangladesh to fly safely in relation to democratic freedom of expression. That this will be hard work and will require very subtle balancing, as stifling justified criticism and too rigidly curtailing freedom of the press is also an infringement of democratic rights, goes without saying.
Socialism and corner 2 of the iccher ghuri of Bangladesh
The initial rhetoric of Bangladeshi socialism, originally following China and Russia rather than the US model, raised of course many alarm bells. Novak shows, moreover, that Sheikh Mujibur was not a good implementer of these ideas. It was all rhetoric and a lot of personal grandeur that led to loss of control and his ultimate assassination. More recently, the nation’s concern has become more focused on economics and development, and hence also more equitable distribution of economic benefits, including questions of gender and empowerment that engaged us in the recent Dhaka Workshop. There appears to be no major difference between AL and BNP policies here, except that people from minority communities will probably not get the economic opportunities that they currently enjoy. Here, again, we see how kite elements from different corners influence the management of particular iccher ghuri policies. As noted, Bangladesh is not a poor country any more. While constant risks of an environmental nature will inevitably remain prominent, the major challenge is to avoid famines and to secure more equal distribution of economic benefits and resources. Nationally, development indicators are to some extent measured against global Millennium Goals, and Bangladesh is actually doing amazingly well in some respects and is outshining its South Asian neighbours. Especially export promotion of garments and fisheries products are a main focus, and positive developments here depend again to some extent on corner 4 of the kite, namely international trade relations and conditionalities, and also related human rights debates over child labour and sustainable production techniques. This brief treatment does not suggest that all challenges have been addressed. But there are no major differences between the two major political parties and a quite capitalist, production-focused approach appears to safeguard the nation’s food security and the physical survival of its people.
Secularism and corner 1 of the iccher ghuri of Bangladesh
This element of the iccher ghuri poses arguably one of the biggest challenges for the nation, as it involves a direct clash between AL and BNP policies. While both major parties are of course Muslim-dominated, given the demographic ground realities of Bangladesh, the markedly adversarial approach that prevails has never ceased to amaze me. To make a potentially extremely long and complex story short and digestible, it must suffice here to state up-front that evidently Bangladesh does not understand the various meanings of secularism. As a result the country has been subject to vicious controversies that are not only leading to precariousness for non-Muslim minorities and non-mainstream Muslims, but to intolerable acts of terror on the part of those who feel entitled to ‘protect’ a particular religious and political ideology. However, even in terms of Qur’an and sunna, a good Muslim is by definition necessarily a pluralist. Bangladeshis as locally hybrid Muslims know this very well, but have been led astray by many kinds of competing political and other rhetorics, to be seriously confused.
This inability or unwillingness to define and operate secularism for the good of the nation and its people in Bangladesh is quite remarkable. Even (and maybe it would be more appropriate to say, especially) the intellectual elite remains mentally imprisoned by Western concepts that clearly do not work well in South Asian conditions. Prominent among the misconceptions is the alleged possibility that secularism means something anti-religious. In a Muslim-dominated nation, that is obviously haram and thus quite intolerable for the overwhelming majority, not only of BNP followers. While indeed the French model of laïcité suggests the theoretical possibility of separating law and religion, or State and Church, and this has influenced the dominant US approach of non-involvement of the state in matters of religion, it is evident that such a theoretical model could not work and/or be acceptable in Asian conditions. It also, readers should note, contradicts the basic structure of the kite model of law, where all elements of the four corners are intrinsically connected. Thus the more productive and realistic approach is to address religious pluralism as well as the connections of religion with politics, society, economics and of course psychology and philosophy, and to put all of this on the table for debate and management. In other words, the way forward is to engage in connectivity, not in separation. This is precisely what the 15th Amendment in Bangladesh has now finally done. It is also evident that the AL as a so-called secular party has been very concerned to present its Islamic credentials by re-introducing an explicit identity commitment for this Islamic majority nation to Islam into the Preamble of the Constitution. Of course this changes the nation’s identity chemistry, but it also proves that the allegations that AL is anti-Islamic are merely fake political rhetoric.
Novak explains persuasively how Bangladesh got itself into this kind of confusion in the first place. He relates this back to governance failures in the early days of Bangladesh, when rabid socialist rhetoric created the impression that AL ideology was anti-Islamic. Realising finally that separation of law and religion is an unsuitable strategy, Bangladesh now follows India, again, in seeking to manage a policy of secularism as equidistance. Of course this happens from a starting point of Muslim domination. That both countries’ policies in this regard will be misrepresented and misunderstood by those who simply do not like – or for whatever reason fear – religion, or still believe that any one religion may be dominant in any one state.
Bangladesh in 2015 is again faced with extremely difficult challenges of governance and management of its national identity, but the picture is by no means as bleak as some commentators make it appear. This article has demonstrated that plurality-conscious management of existing, culture-specific diversities in an important Asian nation state throws up huge challenges for whoever is in power, since there will be never be complete agreement over the direction in which the country’s vision ought to develop. Recent policy interventions in Bangladesh confirm that methodologies of connectivity have now been chosen by those in power rather than traditional adversarial, division-centred approaches. Given the hybrid identity of Bangladesh and its people, it is clear that this is the correct policy approach to implement the high ideals of the wish kite for Bangladesh.
 I shall take up and discuss in particular Maimul Ahsan Khan (2014) ‘Constitutional disaster and “legal impunity”: Constitutional amendments in perspectives’, Counsel Law Journal, 2(1) (June), pp. 30-82 and Md. Abdul Halim (2014) ‘The Fifteenth Amendment to the Constitution: Concerns and perils of constitutionalism in Bangladesh’, Counsel Law Journal, 2(1) (June), pp. 83-136.
 J. Novak (1994) Bangladesh. Reflections on the water. Dhaka: The University Press Ltd.
 Ibid., p. 84.
 They are less connected to trade dependency, as it is becoming clearer now that China’s position is on the rise, while India’s is declining. See Pravakar Sahoo (2013) ‘Economic relations with Bangladesh: China’s ascent and India’s decline’, South Asia Research 33(2) (July), pp. 123-139.
 Notably, similar assertions of such intolerable agenda are strategically raised in Pakistan, there often to justify large military spending.
 Novak (1994), as note 4, p. 167.
 Lt. Gen. J.F.R. Jacob (2001) Surrender at Dacca. Birth of a nation. 6th reprint, New Delhi: Manohar, p. 149.
 Novak (1994), as note 4, p. 169.
 Novak (1994), as note 4, pp. 168-174.
 There is of course a huge literature on secularism. But as in the case of ‘law’, there is no globally agreed definition of what this term actually means and implies, and there are clearly various competing approaches.
 Menski (2006), as note 1, chapter 5, specifically p. 281.
 Novak (1994), as note 4, pp. 170-174.
*Werner Menski, MA PhD is Emeritus Professor of South Asian Laws at SOAS, University of London, where he worked for 34 years after starting his academic career in Germany. He has written books and many articles on Hindu and Muslim law, and on South Asian laws, and has produced a much-used textbook on comparative law. See W. Menski (2006) Comparative law in a global context. The legal systems of Asia and Africa. Second ed. Cambridge: Cambridge University Press. E-mail contact remains firstname.lastname@example.org. SSRN author page is at http://ssrn.com/author=887362, webpage with publications is under http://www.wernermenski.co.uk.
** This is an abridged version of an article published in the Journal of Law and Policy of the Asia Pacific University in Dhaka. Vol. 1 issue 1. Alochonaa Editorial board has worked in conjunction with Professor Menski to turn it an article for popular domain.
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