Recent Case Law on Custody and Second Marriage in Bangladesh: A Trend Towards Secularisation of the Legal System? Permanent BengaI: A Study of its of

The first census of colonised Bengal, in 1 872, 'discovered' that "Bengal proper, hitherto considered primarily the domain of the Hindus, was inhabited by an unexpectedly large number of Muslims . , , 2 More importantly, in the eastern divisions 3 of Bengal (Rajshahi , Dacca and Chittagong) Muslims constituted around 60 % of the population . In the same year the second edition of W.W. Hunter's book The Indian Musulmans marked the begin­ ning of a wide dissemination of his contentions that the Indian Muslims were markedly disadvantages by the British rule . He asserted that " [o]ne hundred and fifty years aga it was almost impossible for a weil born Musulman in Bengal to become poor, at present it is almost impossible for hirn to continue to be rich . , , 4 He also cIaimed that the Muslims of India formed a 'homogeneous community, . 5 This 'discovery' of a muslim majority, along with the growing perception of exploitation by the British Raj and Hindu zamindars, and gradual consolidation of the notion of one Muslim nation in India (Iater fostered by M.A. Hinnah's "two nation theory,, 6 ) ultimately led to the creation of an Islamic country, Paki­ stan .

been seen in 1972, has completed a full cirele over a century -from Hindu Bengal to Muslim Bengal to Islamic Pakistan and finally to secular Bangladesh. But now, almost a quarter of a century later, it seems that the cirele, as it were, was never really rounded up.
There is a new arc to the cirele now -an Islamic arc. This essay, metaphorically, is about this arc . It is that the act is still moving, but towards a different cirele, a cirele of secular ism.
Tbe essay is divided into three parts. Tbe first part outlines the origin and problematic of secularism during the 1972-75 period and its collapse in 1988. Tbe second part argues that despite the constitutional 'Islarnic' character of the state, the judiciary, in matters conceming Muslim family law, is applying bourgeois-liberal-egalitarian paradigm and not Islamic norms and principles. Tbe third part suggests that his new trend towards seculari zation of the legal system is indicative of an emerging societal consensus concerning the role of religion in state and polity.

I. Secularism
Art. 8 of the 1972 Constitution was the mainspring of secularism. Secularism, the artiele stated, was one of the four fundamental principles of the state policy. 7 Bangladesh in 1972, unlike the figures revealed by the 1872 census, was an overwhelm ingly muslim majority country. The Muslim population hat increased from less than 60 % in 1872 to 85 % in 1972. However, in 1972 Bangladesh was certainly not the only nor the first muslim-majority country to adopt a policy of secularism. Of the 25 major Muslim majority countries, 9 do not have Islam as their official religion and 6 of these -Gambia, Guinea, Niger, Senegal, Turkey and Yemen -are in fact secular states. 8 Turkey was the first such country to adopt secularism.
Secularism, like many other 'general principles' of governance, is subject to a wide range of interpretation and understanding. Broadly, secularism is the establishment of a separa tion between religious matters and state activities. But a country can be secular even without this formal separation, as in the case of UK. Tbe absence of a formal-legal sepa ration between the church and the state in UK is not indicative of the societal perceptions 7 8 regarding the interconnection between matters religious and matters govemmental. In other words, the state in UK is secular despite the absence of the formal separation between religion and state, and official activities are not normatively influenced by religious dictates or norms . In the USA, on the other hand, despite the longstanding constitutional separation between the church and the state, the political arena is often swayed by the puritan morality of a largely religious people. Similarly, religious percep tion in secular India continue to influence state activities.
Secularism, thus, hardly rests on a clearly delineated boundary between state and religion, or rigid models. More importantly, the establishment of a formal model of separation between religion and govemmental activities, where such a model has been adopted, neet not follow a singular path in all the countries.
In Turkey, for example, secularism was established largely by Kamal Ataturk's uncom promising actions. For Kamal Ataturk secularism was invariably linked with his modemi zation goals. In this context Bemard Lewis' summation of Kamal Ataturk's swift and bold process of secularizing Ottoman Turkey is worth recalling: "Ataturk proceeded by one deliberate step after another, beginning with the abolition of the Caliphate in 1924, of the religious order in 1925, of Sharia Courts in 1926, and of Islam as the state religion in 1926.,, 9 Secularism in Turkey was clearly imposed from the top in virtually one sweep 10 and later sustained by continuous govemmental actions. For example, Latin script in place of the Arabic was introduced and the Islamic calendar was also abolished. 11 Ataturk's stringent imposition of secularism, without any scope for dissent, continued for almost a quarter of a century ie., till the abolition of the one party system in 1950.
In India, however, the secularism of the 1950 Constitution was preceded by almost half a century of debate and deliberation. For India, unlike Turkey, seculari sm came after articu lation and discussion. Whereas in Turkey secularism was not predated by a public dispu tation, in India Nehru's writings and speeches firmly placed the secular agenda into public debate already from the 1920s. For Nehru, religion was a "hinderance to the tendency to change and progress inherent in human society ", and "the belief in supernatural agency 9 10 11 Lewis, B. , The Emergence of Modem Turkey, London 1968, cited by Mitra, S. , Desecularizing the State: Religion and Politics in India after Independence, Comparative Studies in Society and History, vol. 33, No. 4 (1991) which ordains everything has led to a certain irresponsibility on social plane, and emotion and sentimentality have taken the place of reasoned thought and inquiry.,, 12 Nehru's shaping influence of the Congress party's policy of secularism was crucial, but the party had already indicated its inclination towards secularism as early as 1886. By the late 1930s the ideology of secularism against the 'communalism' of the Muslim League had 13 become "a mahor battle cry of the Congress" , and after independence the policy of secularism in India was taken for granted.
It is not my suggestion that secularism in Bangladesh ought or must follow one of these two differential models, in one of which (Turkey) secularism was determinedly imposed from the top and sustained by the fu ll power and sometimes force of the state apparatus, or in the other (India) where secularism was both preceded and proceeded by a sustained national debate and articulation in the political arena.
14 Two considerations, however, suggest certain relevance of the experience of these two countries for Bangladesh. Unlike most other muslim-majority countries which are secular, Turkey's secularism is now sustained in a multi-party democratic structure and her modernization goal is not without resonance for Bangladesh. As for India, the fact of geographical proximity and her real or perceived influence (economic, political and hegemonie) over the polity in Bangladesh is not inconsequential.   The ProcIamation Order No. 1 of 1977 also added a novel elaboration of socialism, which, as one of the fundamental principles, now meant "economic and social justice". Art. 10 of the 1972 Constitution which had stated that "a socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society free from exploitation of man by man" was now substituted by a new Art. 10: "steps shall be taken to ensure participation of women in all spheres of national life." 26 Zillur Rahman Khan has written: "In order to ensure that nationalism would bring about secularism, Mujib had added a specific provision to the 1972 Constitution Oe., Art. 12) ... Mujib saw Bengali Nationalism as a composite of Bengali culture, language, folklore, mores and the general Bengali environment from which Bengalis could receive inspiration and be motivated to strive for the uplift of their society.". In: Khan, ZR., Islam and Bengali Nationalism, Asian Survey, vol. 25 no. 8 (1985), p. 834, at p. 846. 27 Arts. 25 and 38 were also amended. pre-independence evolution of constitutional ideals and concepts. For a background to these development, see Huq, A.F., Constitutional Development (1972-1982 Islamic laws, 32 Bangladesh has not only not initiated a process of incorporating rules of Islamic laws into its legal system, 33 but the judiciary is actually moving away from the religious norms. The following part II offers an analysis of this judicial activism.

Legal Reasoning
From a scrutiny of the published case reports, we find that the logic, reasoning and under lying assumptions of recent judicial pronouncements clearly indicate a trend towards secularisation of the legal system of Bangladesh, despite the ostensible Islamization of the Constitution.
Marriage and social relations that are derivative of marriage, ie., divorce, custody of children, legitimacy and inheritance, are govemed by Muslim law. Wakf, pre-emption and gift are the other major non-mari tal or non-personal arena of social relations still regulated by Muslim law.
Our examination of the recently published cases on marriage related issues indicates that their underlying legal postulates are permeated primarily by notions of formal equality of sexes, perceptions of the welfare state, and concems for natural justice. In other words, even in matters that are govemed by traditional Muslim law, increasingly, the evolving 32 33 Whether islamization of laws through legislative or executive enactments is itself Islamic is an issue which, though occasionally raised, has not been convincingly resolved. h d 34 re IglOus ort 0 oxy.
In the legislative arena a number of laws were enacted in the 80s to ameliorate the sub jugated conditions of women. The recent cases, along with these laws, signify the shift towards a legal culture which is more sympathetic as weil as symptomatic of formal equality between the sexes. There is also a growing reluctance on the part of the judiciary to adhere to the notions of the pre-determined roles 35 designated to different segments of the society by the religious orthodoxy? 6 It is not argued that a pronounced trend towards equality of sexes is, per se, a move away from Islamic principles. Our suggestion is that the reasoning of the case law reveals a growing incorporation of those arguments which can more easily be traced to liberal enlightenment origins, and are premised more on non religious considerations, rather than the principles and doctrines of a strict Islamic legal culture.
To validate such an assessment of the recent development of the legal regime of personal Haeri, S. , Divorce in Contemporary Iran: Male Prerogative in Self-Will", in: Mallat, C. / Connors, J. (eds.), Islamic Family Law, London 1990, pp. 55-69, has argued that the legal determinism ("nikah is a contract for ownership, tamlik of the use of the vagina" quoting Iranian scholars -at p. 57), biologi cal determinism ("Women psychologically and physically want to put themselves under man's protec tion" -at p. 59), and divine determinism (divinely ordained right of man to divorce his wife without cause -at p. 62) determine mutual rights and obligations of the spouses in Shi'i Islam.
As a typical example of traditional popular perception of the duties and responsibilities of women in BengaI, the fo llowing dictates from the pages of a late nineteenth century fundamentalist text are sufficiently illustrative: "The Lord has given man higher status: women must follow the orders of their husbands. A woman has no rest so long as she is alive. She has to serve her husband and thus worship

Custody
The Muslim law in the Indian subcontinent has generally entrusted the mother with the custody of her daughter until puberty, and of her son until the attainment of 7 years of age. the Court stated that the mother's guardianship is "lost by operation of law as soon as she marries another person who is not related to the minor girl within the prohibited degree.', 41 But the mother's forfeiture of her right of custody on attainment of a predetermined age (for sons) or physical condition (for daughters) is not treated with the circumspection of an inviolable norm. This and other related rules, it has been accepted, is subject to judicial discretion. For example, a forceful assertion of the scope for such discretion in interpreta- was the natural guardian (being the paternal grandfather) under the Muslim law, the mother in the fact and circumstances of the case was entitled to be appointed as the guardian.,, 43 The "fact and circumstances" in wh ich the mother is awarded the custody is revealing: " ... the mother of the minors was not treated properly at the house of her in laws even during the life time of her late husband.,, 44 The fact that the mother was ill treated by her in-Iaws, arguably, is not related to the situation or condition of the children, unless one assumes that the anticipated treatment of the mother as daughter-in-Iaw is, by itself, a clear indication of the treatment to be meted out to the children as grandchildren.
The Court, however, does not speil out any such assumption, nor does it indicate any inherent connection between the in-Iaws' attitudes towards the mother and her children.
There is neither any clear finding by the Court nor any inference to the purport that the ill treatment of the mother was or is likely to be repeated towards the children.
In the absence of any argument linking the two obviously separate issues of treatment of daughter-in-Iaw and grandchildren, the Court's reliance on the ill-treatment of the mother as the ground for awarding her the custody of the child can be appre�iated only if we look at it, first, as an overt attempt to reach a particular result, and secondly, as a bid to broaden the grounds on which a decision in favour of a mother may be justified and rationalized. The law awards the hizanat of minor, to begin with primarily to its mother: it is taken away from her after the child attains a particular age." In: supra, note 39, p. 163. 47 38 DLR (1980) AD 106, at p. 111.
48 An important hizanat -related issue is whether the mother can remove the child to a place where the father can not exercise supervision and control over the child. The earlier interpretations, as Mulla indicates, proscribes the mother from removing the child to a place which is distant from the father, even during the period when she is entitled to custody: "and if she does so, she losses her right to custody of the child", in: Mulla, supra note 38, p. 333. For such an understanding of Muslim Law Mulla (in the 17th ed., published in 1972) cites the cases of AU Akbar v Kaniz Maryam 1956 PLD Lahore 484, and Muhammad Bashir v Ghulam Fatima 1953 PLD Lahore 73, both decided by lustice B.Z. Kaikaus. But such an interpretation of the custody rights of the mother was explicitly overruled by the Pakistan Supreme Court in Rahimullah Chowdhury v Helali Begum 20 DLR (1968) SC 1. The Supreme Court mied: "However, if it was intended to lay down in Ali Akbar v Mst Kaniz Begum that if such a right be forfeited then the minor must be retumed into the custody of the father ipso facto as was done in the case of Mst Mahmoda Khatun v Sayed Zainul Hossain Rezvi without detennining whether it will be for the welfare of the minor or not to do so, we find it difficult to subcribe to this view." Ibid. , at p. 16. In this Chowdhury case the estranged mother had moved her two sons from the residence of their father. The detennining question was "whether under Muslim Law a mother 100ses the hizanait of her children of tender age of she removes them from the ordinary residence of the father" (p. 3). The Court opted, as indicated, for a negative detennination of the question. However, "a mother may ... be deprived of the custody of the children of tender age only if the paramount consideration their welfare so demand" (p. 17). The welfare argument, it is evident, was asserted as the detennining one rather than the mle of the orthodox hizanat as wrongly suggested by Mulla. The significance of the criterion of "welfare of the minor" in deciding the issue of custody is also recognized in s. 17 of the Guardian and Wards Act. It seems that aIthough the concept of welfare does not occupy a central position in the scheme of the personal law, yet it has become the goveming principle in a range of decisions. Consequently, the issue of custody is more often decided with reference to welfare of the child rather than to dictates of Muslim law.
The determining importance of the welfare criterion has been reiterated by te Supreme Court in Siddique. The Court cited relevant precedents, it seems, not only to confirm that in these cases the "welfare of the minor child" was of paramount importance, 51 and there fore it should be so in similar cases, but also to restate the import of the same in more forceful and unambiguous language: "Indeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of minor child as stated in the Hanafi Schoo!) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the chi/d's we/fare.,, 52 It is, thus, evident that these recent cases have increasingly reIied on the criterion of welfare of the child to the impairment of the traditional personal law, and we take this as one important indication of the secularisation of laws in Bangladesh. It needs mentioning that the validity of the Hanafi rule that the custody right of the mother is lost when she (re)marries someone not within the prohibited degree of relationship has not been tested in any court. But given the tenor of the recent decisions and the constant reiteration of the paramountcy of the welfare of minors, an appropriate factual situation where the mother's remarriage could be shown to be helpful or otherwise beneficial for the welfare of the minor and, conversely, a transfer of custody to the father or his representatives would be shown to be harmful, could provide the courts with an opportunity to reinterpret this (remarriage) aspect of the custody law to reflect the new trend.

Second Marriage
The right of a Muslim male to have up to four wives is commonly recognized. All schools agree that a Muslim man does not, as summed up by David Pearl: 51 52 114 "require a permission to enable hirn to contract a second or subsequent marriage up to a maximum of four. The requirement in Sura IV verse 3 (to treat the two or more "The concept of the welfare of the minor child, whether below or above the age limits, seems to have been ofpararnount importance", supra note 44, at p. 113. lbid. , at p. 117, emphasis added. wives equally) is construed again by all Schools as a requirement to be decided upon by the husband himself. It is his responsibility and he has no need to submit himself to examination by any person or institution in advance of the final decision to contract a second or subsequent marriage. Again, the moral injunction -for such it is -to treat four wives equally relates to na/aga (support and maintenance) and not to equal impossible task. The rights of several wives to equal and impartial treatment arise after the marriage.,, 53 This orthodox position, needless to say, has undergone tremendous change in most of the Muslim countries in recent years. Saudi Arabia is among the very few countries in the Middle East where recent 1egislation has not imposed any restrictions on the right of a Muslim man to two or more wives. But Turkey and Tunisia have completely abolished the right to contract a second marriage. In between these two opposite poles lies a host of other countries such as Jordan, Syria, Iraq and Morocco who have restricted this . 54 capacIty.
The Muslim Family Laws Ordinance 1961 (hereafter MFLO) of Pakistan 55 can, on a conservative interpretation, be easily classified as a legislative attempt to erect a few procedural barriers for contracting a second or subsequent marriage. The procedure for contracting a second and subsequent marriage is contained in s. 6 of the Ordinance. The primary requirements for the husband for contracting a second marriage consists inobtain ing a written permission from the Arbitration Council. Such permiddion is granted on the basis of an application by the husband stating his grounds for the proposed second (of subsequent) marriage. The application must also state "whether the consent of the existing wife or wives has been obtained" . 56 The Arbitration Council, comprising the Chairman of the local body and a representative each of the husband and wife or wives, may grant such permission "if satisfied that the proposed marriage is necessary and just". 57 Any marriage contracted without such permission is not void, but subjects the husband to "simple imprisonment which may extend to one year, or with fine which may extend to ten thou  This above detail of the procedural nature in appointment and empowerment of a Chair man to form an Arbitration Council is offered with a view to emphasize that the substan tive right to a second or subesequent marriage may easily be subsumed under procedural technicalities. Procedural impediments were the primary justification in Farooque Miah v Ta hera Begum 68 for the HCD and in Ta hera Begum v Farukh Miah 69 for the AD to refuse to penalize the husband for his second-marriage without the requisite written permission. The opposite inference of the Court in Ayesha was also premised on another technical-procedural Notification. In reaching their conclusion on procedural grounds, the Courts in all these cases avoided the substantive issue of the parameters of a husband's right to contract a second marriage. In fact, depending upon whether the issue of second marriage is framed purely in narrow procedural terms or posited as a matter of substantive rights, as was done in the later case of Abul Basher v Nurun Nab? O , the larger issue can be subjected to judicial scrutiny. The High Court Divion in Abul Basher referred the case back to the trial judge for determining if the husband had obtained the requisite written permission from the Arbitration Council before contracting the second marriage. But going beyond this purely procedural aspect of the MFLO, the Court also offered some comments on the larger issue of polygamy, noting that "it seems that the legislative intent of section 6 of the Muslim Family Law Ordinance, 1961 is to restriet the practice 0/ polygamy and to permit it only in cases where it appears reasonable to the Arbitration Council.,, 71 This comment touches on one of the most important aspects of s. 6 of the MFLO, whether the Ordinance purported only to streamline the right to contract more than one marriage during the subsistence of previous marriage(s) by ensuring that a certain formal procedure is followed, or the right was deliberately curtailed and restricted by imposing limitations The Court in Abul Bashar neither offered any enumeration of the grounds which it would consider as reasonable for permitting a second marriage nor did it indicate its readiness to scrutinize the reasonableness of grounds if any were placed before it.
However, one indication of the grounds which are deemed sufficient or reasonable for granting a permission for contrating a second or subsequent marriage is contained in Rule 14 of the MFLO Rules. This Rule provides that for determining whether a proposed marriage is just and necessary, the Arbitration Council shall "have regard to such circum stances as the following amongst others: sterility, physical infirmity, physical unfitness for conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, or insanity on the part of the existing wife". The enumeration of grounds in this rule is to exhaustive and therefore it does not precIude granting of the requisite permission on other grounds.
But the tenor of the Rule c1early restricts the right to a second marriage to grounds of physical and mental infirmity only.
This rule was referred to in Makbul AU & Others v Munwara Begum 72 , where it was iterated that the MFLO "did not prohibit polygamy altogether but allowed it under certain conditions,, ? 3 More importantly, the Court re-enumerated the grounds for permission of the Rule, stating cIearly that: "in deciding wh ether it is proper and just to allow the application the Council shall have regard to such circumstances such as sterility, physical infirmity, physical unfit ness for conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, physical unfitness for any conjugal rights, or insanity on the part of an existing wife ... ,, 74 One reading of this aspect of the Court's pronouncement can surely be that it considered a second marraige permissible if it is "proper and just" and it can be so only on the grounds contained int he above mentioned Rule. On such a reading of the Court's intention, a second marriage is no longer a matter of right, but of permission and discretion. Thus, if the right to contract a second marriage is conditional upon permissions granted in strictly defined situations of physical or mental infirmity, the case law in Bangladesh can cIearly be seen to have gone a lang way in restricting the prerogatives of man in his mari tal rela tions. The substantive right to contract a second marriage is not denied by the court, but by subjecting the exercise of this right to the requirement of strictly defined notions of "proper and just", the court is evidently interjecting concepts of public policy and equity in an arena which is unusually considered the bastion of muslim male's prerogative. From this case it can, thus, be argued that the conditions under which the permission for a second marriage is granted may not be substantially satisfied by merely following the formality of applying for and obtaining the written permission. A restrictive interpretation of the Rule 14 grounds can easily restrict the right to a second marriage to a very few situations of physical and mental infirmity, therefore making second marriage permissible only of proper and just in each and every given situation. 75

Other lssues
Unlike India, the issue of maintenance of divorced Muslim wives beyond the Iddat period Ibid. , at p. 225.
Karim v Mosammat Ta slima Begum 78 , one of the two published cases on this Act, 79 the Court in explaining the meaning of "demand for dowry" concluded that "demanding money or other valuable security from the wife or her relations by the husband after she is married for giving her the status of a wije, namely maintaining her as a wife, protecting her as a wife and giving her a shelter would amount to demanding money in consideration for the marriage. ,, 80 Such an understanding of the role of the Act, the concept of marriage, and the expansion of the meaning of "in consideration for marriage", again, clearly fosters the position of married women and is in harmony with the trend of secularizing case law. In this case the wife left her husband's residence on grounds of cruelty, and claimed maintenance for herself and her children for the period when she was staying with her parents. The trial court (Family Court) allowed her claim for mainte nance, but the first Appeal Court disagreed and sent the case back for a re-trial. On appeal, the High Court Division rebuked the court below as it stated that "the Court of Appeal below, it appears, was guided by the archaie concept of absolute dominion of the husband over the wife and children" and by using expression such " ... even under the Muslim law several rights have been recognised to the wife", 88 the Court clearly indicated its appraisal of Muslim law in less than sacrosanct terms and the consequent readiness to deviate from such law. This becomes less a matter of conjecture when we find the Court stating that " ... in the well-to-do-family of the parties compelling the wife to do domestic work is also physical and mental torture,, 89 -to iterate its readiness to take sodal reality into account to understand the meaning of torture in marital relationship.
Such an expansive use of the concept of torture to negate the husband's claim for restitu tion of conjugal rights and ordering hirn to pay maintenance is another indication of the gradual secularization of the understanding of the terms of mari tal relationship by the Courts in recent years.
Arguably none of these cases has attempted as far reaching a restructuring of Muslim  impetus behind this trend is the growing acceptance of secular and rationalistic concepts, concems, and notions of equality on this one hand, and diminishing sway of orthodox precepts on the other hand.

Islam in Bangladesh Polity
We have indicated, at the beginning of this essay, the contentions between secular and religious trends in Bangladesh politics. This friction is not without long standing historical roots and in many ways this divergence is being reflected in judicial pronouncements and legislative acts as already submitted. Going beyond the present tussle between these trends, it is not without relevance to note that Islam in Bangladesh, as elsewhere, is not devoid of local influences. It is now recognized that this local influence here is more pronounced than in many other parts of the world. 92 The seminal work on this regard is, of course, that of Asim Roy. 93 His two main arguments are, firstly, that the prominent role of Sufis, Pirs and cultural mediators in propagating Islam imbued Bengal Islam with esoteric, liberal and local cultural elements and secondly, this local influence along with the asraflatraf 94 dichotomy periodically subjected the people to the pressures of orthodoxy in the shape of various revivalist and purificatory movements. The role of cultural media tors during the early phase of spread of Islam prevailed upon the belief structure, rituals, and precepts of Bengali Muslims. These local factors, particularly since the mid-nine century 96 accentuated the divide between the indigenous and perceived "pure" Islam.
Invariably, these currents have compounded the issue of national loyalty and identity. 97 While the fact of diverging loyalties has been amply analyzed, the search for a dominant trend, particularly in the weil established instrumentalist I primordialist paradigm remains somewhat illusive. In broad terms: "The primordialist argues that every person carries with hirn through life 'attachtments' derived from place of birth, kinship relationships, religion, language, and special practices that are 'natural' for hirn, 'spiritual' in character, and that provide a basis for an easy 'affinity' with other peoples from the same background ... while the instrumen talist refers to a perspective that emphasizes the uses to which cultural symbols are put by elites seeking instrumental advantage for themselves or the groups they claim 98 to represent." In the subcontinental context the debate between primordialists and instrumentalists has revolved around the question wh ether the movement for Muslim Pakistan was rooted in the 'primordial' attachments of the Muslims of India an, therefore, inevitably led to a demand for a separate state once political mobilization was under way, or the creation of three levels of inner-administrative review: the ombudsperson's office (xinfangchu), the Administrative Supervision and the Administrative Reconsideration organisations.
The Administration Litigation Law, enacted in 1989, expressly states that abstract administrative actions cannot be accepted by the courts for review. But Chinese legal scholars are intensively debating the way the courts will still be considering administra tive regulations and to what extent they are bound by them.
The prospect that judicial review will soon be used in China as a checking device is rather low. Separation of powers is not part of the Chinese govemmental structure and one-party rule makes an independent judiciary, a precondition for judicial review as weIl as publidy available law, a myth. Several suggestions are put forward how to implement changes in the review system which could lead to judicial review in the long run.

Recent Case Law on Custody and Second Marriage in Bangladesh: A Trend
Towards Secularisation ofthe Legal System?

By Shahdeen Malik
Bangladesh, in its recent history, has gone through several periods of changing influence of Islamic principles and norms on the one hand and secularism on the other hand with respect to its constitution, legal system and society. The artide discusses the nature of these influences with a comparative view to other Islamic and Christi an countries. It argues that despite the constitutional Islamic character of the state, according to a respec tive constitutional amendment in 1988, recent case law in matters of Muslim family law is applying liberal-egalitarian paradigm instead of Islamic norms. This trend towards a secularization of the legal system seems to point to an emerging societal consensus conceming the role of religion in state and polity.