Dr Shahjahan Mondol
The Independence Day of Bangladesh is 26 March 1971. Bangabandhu Sheikh Mujibur Rahman, the undisputed leader of the people, precisely declared the glorified and cherished Independence after the midnight of 25 March i.e. on the early hours of 26 March 1971 in Dhaka. The present Constitution of Bangladesh, printed in October 2011, contains the magnificent Declaration of Independence of Bangabandhu in page No. 78. It says: "This may be my last message, from today Bangladesh is independent. I call upon the people of Bangladesh wherever you might be and with whatever you have, to resist the army of occupation to the last. Your fight must go on until the last soldier of the Pakistan occupation army is expelled from the soil of Bangladesh and final victory is achieved."
Despite the constitutional provision as well as factual existence of the declaration of the Independence of Bangladesh by Bangabandhu Sheikh Mujibur Rahman some corner led by Bangladesh Nationalist Party (BNP) claims something different. They resort to the untrue propaganda that Ziaur Rahman declared the Independence. This is nothing but misleading the people as well as an infringement of the Constitution of Bangladesh. In this regard it may be kept in mind that the Constitution of Bangladesh is the supreme law of the land.
The activists of BNP have, after BNP came into existence, always been forcefully subverting the confidence, belief or reliance of the citizens of the country as to the constitutional provision of the Declaration of Independence of Bangladesh by Bangabandhu. We the common people of Bangladesh have been digesting the untrue information created by the BNP activists including its Chairperson Begum Khaleda Zia; but she being the former Prime Minister of Bangladesh should come to the true point and leave any concocted statement. People of the country expect so. People also desire she shouldn't commit any crime under penal law.
Question may arise as to why the BNP activists' propaganda is untrue. The followings may help us here. The first Constitution of the country, the proclamation of Independence of 10 April 1971, that has retrospective effect from the Day of Independence, provides in article No. 6 and confirms in article No. 13 that the Independence was declared by Bangabandhu Sheikh Mujibur Rahman. This document is now available in pages 79-80 of the present Constitution. Begum Zia may, if she wants to search, go through the Constitution. Her advisers may also help her in this regard.
Why this proclamation of Independence of April 10, 1971 is called the first Constitution? Well, 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 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, the Act of Settlement of 1701 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 Medina Charter of 622, having forty eight articles, is, according to Professor Reuben Levy of Cambridge University, the first constitution of modern history, though it is a contract amongst the Muslims, Christians, Jews, Nasaras, and the idol-worshipers of the then Medina.
Our proclamation of Independence of 10 April 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 406 in number) who were the people's representatives of the country, elected in the 1970 Polls,
(ii) Under the proclamation the first Government of Bangladesh was formed that took oath on 17th of April 1971,
(iii) Under the proclamation the President of the newly emerged country Bangladesh was Bangabandhu Sheikh Mujibur Rahman, the Vice- President was Syed Nazrul Islam, 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 was 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, (c) to summon and adjourn the Constituent Assembly, and
(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.
This first Constitution of Bangladesh i.e. the proclamation of Independence of 10 April 1971 says, "? 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 fulfillment 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?."
Sometimes the proclamation is called a constitutional instrument by some corners. But it is not sufficient, for it is itself the very first Constitution of the country. If this proclamation of Independence is denied as the Constitution it supposes to deny the emergence, establishment and existence of the country Bangladesh which, in the long run, means treason or sedition or anti-state activity punishable under penal laws.
The framer of the above-mentioned first Constitution, consisted in only two pages, Barrister Amir-ul-Islam said the Law teachers of Islamic University Law Department, including me, at Kushtia, a couple of years ago that he is one of the three witnesses of the event of Declaration of our Independence by Bangabandhu on the very early hours of 26 March 1971 as well as sending of it that night to the then EPR Headquarter at Pilkhana for transmitting it to Swadhin Bangla Betar Kendra Chittagong. Barrister Amir-ul-Islam is the direct witness of the glorious event of the Declaration of Independence by Bangabandhu. The Evidence Act of 1872 always entertains and recognizes such type of direct oral evidence i.e. the best evidence of an event under section 60 thereof.
The untrue propaganda by the activists of BNP or others is not only misleading but also disappointing as well as a crime of sedition which should be stopped for it's punishable with life imprisonment under section 124A of the Penal Code of 1860. Article 7 of the Constitution provides that such subversion of the belief of the citizens regarding the Constitution is nothing but treason, and he who commits this offence deserve the highest punishment life imprisonment.
We would like to make request to the deviators from the right track to be reasonable and to leave the untrue propaganda regarding the declarer of Independence of Bangladesh. All the people should say, believe, publicize and receive the true information that Bangabandhu Sheikh Mujibur Rahman is the declarer of the Independence of Bangladesh. If still Begum Zia continues the said propaganda and action, we the people want the Prime Minister Sheikh Hasina should take necessary legal and Constitutional action in this regard.
Dr Shahjahan Mondol is Professor of Law, Kushtia Islamic University, Bangladesh. E-mail:[email protected]