Three countries under the sun have written declaration of independence, USA, France and, luckily, our Bangladesh. USA has the Declaration of Independence of 4 July 1776; France has the Declaration of Rights of Man and of the Citizen of 26 August 1789; and Bangladesh has the Proclamation of Independence of 10 April 1971. The event of having written declaration of independence is ‘exceptional’ because out of 228 countries of the world no other country has made such a declaration. But there is a basic difference of our Proclamation from those of USA and France. Those two are merely declarations of Independence, no other characteristics they bear; but our Proclamation of Independence of 10 April is not only a declaration but also a constitution.
A number of 13 American colonies declared at the First Continental Congress in Philadelphia the most glorious and magnificent Declaration of Independence on 4 July 1776 Thursday evening. Thomas Jefferson, the American Rousseau, was the maker of the Declaration that showed legal and philosophical arguments for the separation/secession of the colonies from British imperialism. In the Preamble to the Declaration of Independence of the USA two fundamental principles, at root, are declared for all human beings of the world. The First one is ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and the second one is ‘That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government”. The Declaration of Independence of USA is incorporated in the first portion of the US Constitution.The French revolutionists dethroned their autocratic King in July 1789 and declared the historic Declaration of Rights of Man and of the Citizen on 26 August 1789 that contained those rights of which they had been deprived of during the reign of the autocracy. The draft of the Declaration was made by General the Marquis De Lafayette. He was a friend of American first President George Washington and had to suffer a lot in the war of American independence. The French Declaration declared in Article 1 that men are born free and remain free and equal in rights and in Article 2 that the purposes of every political organization are independence, property, security and protest against wrongful acts. Beside these the Declaration contained provisions on freedom from arbitrary arrest, freedom of religion, freedom of speech and press, and right to property. General Lafayette wrote the French Declaration with the influence of the American Declaration. This is why the French Declaration of Rights of Man and of the Citizen is called the younger sister of the American Declaration. The Declaration of Rights of Man and of the Citizen has been taken into the first part of the French Constitution of 1789. It’s to be mentioned that through the advent of the French Declaration ended the Medieval Age and initiated the Modern Age for it declared ‘the end of divine, heroic and feudal times’.
The third and the latest one in the list is the Proclamation of Independence of 10 April 1971 that was adopted at Baidyanathtola of Meherpur, later known as Mujibnagar after the name of Bangabandhu Sheikh Mujibur Rahman who was the undisputed leader of the Bangalees of Bangladesh. It was drafted by Barrister M Amir-ul-Islam, a great freedom fighter and one of the greatest organizers of the Freedom Fight that took place in 1971 against Pakistan. A number of 403 MNAs (Members of National Assembly) and MPAs (Members of Provincial Assembly) adopted it after they were elected people’s representatives in the first and last General Election of the united Pakistan held in 1970 before our Independence in 1971.
The attachment of the US and French Declarations to the first part of the respective constitutions is rightly done because they are not constitutions themselves. But the Proclamation of Independence of Bangladesh is not attached to the first part of the Constitution of 1972, rather included in the Seventh Schedule to the Constitution as published in 2011, because the Proclamation is itself the Constitution. It is the first Constitution of Bangladesh. But some corners are reported to say that the Proclamation is merely a constitutional instrument or document. This is, actually, a wrong and incomplete description given by them and somewhat ambiguous and underestimating it. Designing it only as a constitutional document cannot, in view of law and practice, satisfy the real demand of knowledge.
Question may arise as to how the Proclamation of Independence of 10.04.1971 was and is the Constitution or the first Constitution of Bangladesh. The answer is: because actually it was the first Constitution of the country. All essential characteristics of a constitution are present in it. In fact, there is no dry and cut formula in the world or legal arena as to the characteristics or the length of a constitution. India has, at present, the largest constitution in the world. The US Constitution is much smaller than that. There is no bound book as constitution of the UK, but it consists of some enactments or social contracts like the Magna Carta of 1215, the Petition of Rights of 1628, the Bill of Rights of 1689, etc. Practically it is sufficient for some rules to be the constitution of a country if under it a country can form and run a government. The Medinah Charter of 622, having forty eight articles, is, according to Professor Reuben Levy of Cambridge University, the first written constitution of modern history, though it is actually a contract amongst the Muslims, Christians or Nasaras, Jews and the idol-worshipers of the then Medinah. It is working not as a constitution now, for there is no state named Medinah.
The Proclamation of Independence of 10.04.1971, having retrospective effect from the very day of our Independence 26 March 1971, was, accordingly, the Constitution of Bangladesh for the following reasons: (i) The Proclamation of Independence was adopted by the Constituent Assembly consisting of the MPAs and the MNAs (total 403 in number) who were the people’s representatives of the country, elected in the 1970 polls. (ii) Under the Proclamation the President of the newly emerged country Bangladesh was Bangabandhu Sheikh Mujibur Rahman and the Vice-President was Syed Nazrul Islam. (iii) Under the Proclamation the first Government of Bangladesh was formed that took oath on 17th of April 1971 whereupon the Prime Minister was Tajuddin Ahmed and the Ministry was formed. (iv) Under the Government so formed the Liberation war of 1971 was conducted and directed and the final victory achieved on 16 December 1971. (v) It remained in force as the Constitution till before 11 January 1972. (vi) The President, under the Proclamation, was the Supreme Commander of all the Armed Forces of the Republic. (vii) The President, under the Proclamation, exercised all the Executive and Legislative powers of the Republic including the power (a) to grant pardon, (b) to levy taxes and expend monies, and (c) to summon and adjourn the Constituent Assembly, and finally, (viii) The President, under the Proclamation, had the power to do all other things necessary to give to the people of Bangladesh an orderly and just Government and so on. What more conditions or characteristics may be needed for a document to be a constitution in the modern day of civilization?
Bangabandhu returned home, after our War of Liberation, on 10 January 1972. The next day i.e. on 11 January 1972 he, being the President of the Republic, replaced the Proclamation of Independence by the Provisional Constitution of Bangladesh (PCB) Order that started working as the second Constitution of the country until a new one was adopted on 4 November 1972 that came into force on 16 December 1972 and is working till date. It is interesting to note that the very Constituent Assembly that adopted the Proclamation, adopted the 1972 Constitution.It may be remarked that the then President Sheikh Mujibur Rahman didn’t repeal the Proclamation rather replaced it by the second one. He had the authority to do it by means of an ‘Order’ for he was the President of the Republic at that time; and it is more interesting that he became the first President of the country by dint of the very Proclamation of Independence. So if the Proclamation is not recognized as the first Constitution of the state of Bangladesh, the presidency of Sheikh Mujibur Rahman as well as the legal basis of the first government of Bangladesh and the validity of the present Constitution adopted in 1972 becomes questionable. Such non-recognition may also create a legal vacuum in between the Proclamation of Independence, the PCB Order and the present Constitution of 1972. Does any citizen or a lawyer or a specialist on constitution expect to see any such vacuum that may make the emergence and existence of Bangladesh on and from 26.03.1971 questionable? Probably not.
It is well known that in Bangladesh we observe our Independence Day on 26 March, and Victory Day on 16 December. We also respectfully remember 21 February as the International Mother Language Day, 15 August as the National Mourning Day on which the Father of the Nation Bangabandhu Sheikh Mujibur Rahman was assassinated by the enemies, and many other historic days to sharpen our memory and keep our spirit fresh that leads us forward to development. It is due to the fact that right history can lead people to the right way. History is that which actually has happened and nothing concocted. There goes a wise saying, no scholar is born where a scholar is not honoured. Accordingly, nothing can give good output if it is not precisely recognized. In the same tune it may be said that if the Proclamation of Independence of Bangladesh is not designed and recognized as the first constitution of the country, rather it remains merely as a constitutional document as done by the misled and wrong corners, it may create political, constitutional and legal vacuum that may bring destruction to the lot of the nation. Such destruction has to a along extent been done by BNP, a popular political party of Bangladesh, by means of claiming its founder Major Ziaur Rahman as the declarer of Independence, which is completely untrue and has divided the Bangalee nation into two parts, true and false; for the actual declarer of our Independence was and is Bangabandhu Sheikh Mujibur Rahman who declared Independence of 26 March 1971.
If the present Government led by Awami League under the prudent and scholarly leadership of Sheikh Hasina, the daughter of Bangabandhu, or at least the largest political party of the country Awami League would have taken necessary step to propagate properly that the Proclamation of Independence of 10 April 1971 is the first Constitution of Bangladesh, no undue opportunity BNP would have gained to tell the lie that the declarer of Independence is someone other than Bangabandhu, for it is precisely and unequivocally stated in the Proclamation that….. in the facts and circumstances of such treacherous conduct Bangabandhu Sheikh Mujibur Rahman, the undisputed leader of 75 million of people of Bangladesh, in due fulfilment of the legitimate right of self-determination of the people of Bangladesh, duly made a declaration of independence at Dacca on March 26, 1971, and urged the people of Bangladesh to defend the honour and integrity of Bangladesh.
The Proclamation also confirms the Declaration with the wordings…..We the elected representatives of the people of Bangladesh…..declare and constitute Bangladesh to be a sovereign People’s Republic and thereby confirm the declaration of independence already made by Bangabandhu Sheikh Mujibur Rahman…..
The denial of the Proclamation of Independence as the Constitution supposes to deny the emergence, establishment and existence of the country Bangladesh. It is therefore hoped that the Government should recognize and propagate the Proclamation of Independence as the first Constitution of Bangladesh and that the very day 10 April is the Constitution Day of the country and the nation Bangalee. Thereby we can observe the Constitution Day with due respect and devoutly remember the thirty lakh (3 million) freedom fighters and two lakh mothers and sisters who sacrificed modesty and everything of their life in the freedom fight run under the first Constitution of Bangladesh, the Proclamation of Independence.
The writer is a Professor and Ex-Chairman of the Department of Law, Former Dean of the Faculty of Law, Islamic University, Kushtia and Member, Central Board of Directors, Bangabandhu Parishad, Bangladesh. Email: [email protected]