Law alter views
Of 'Struggle' and 'War': A rejoinder
Mohammad Moin Uddin
IT is interesting to find that my view on the first paragraph to the preamble of our constitution, published in an earlier issue of this page, has drawn the attention of M. Jashim Ali Chowdhury, prima donna of Law & Our Rights page in recent past, connoisseur of thousand years' Bangalee Nationalism! He has expressed his alternative views regarding my write-up in 27th March issue of Law and Our Rights. It seems to me that he has not read my write-up with enough open-mindedness and objectivity, rather on preconceived notion of things and with spectacular genuflection sticking to the original preamble he concluded“if amendment is needed, that is the revival of original constitution in toto, nothing else”.
Perhaps he failed to understand the total import of my article. Let me clarify my position as against some of his unfounded allegations:
(1) I did not impliedly support “anti-liberation aggression (a clear demagogy) on the constitutional philosophy”, as he alleges. Rather I expressly disapproved the said amendment, as I framed the hypothesis of my write-up against its propriety. He might have been led to such a comment based on my writing that“If grammatical construction of the first paragraph to the preamble is adopted, which records only that part of the struggle that occurred 'having proclaimed the independence', it makes sense that the change of 1977 was correct insofar as it termed that part of the struggle as war”.
Does above statement mean that I supported that change? I tried to say that the change of 1977 grammatically makes sense as it termed a particular portion of struggle as 'war', given the time frame indicated by the signpost of 26th March. I still persist in my proposition.
Thanks for adding a new disjunctive conjunction to the dictionary, and also for admitting that Bengali text of the relevant portion of the preamble, which is the preferred authentic text, clarifies the basis of my comment on the first paragraph to the original preamble. Doesn't it mean that he thinks a change of at least the Bengali text? Please look at the original and the amended first paragraph of the preamble and compare them.
I wanted to say that after proclamation of independence, we were engaged in concrete 'Liberation war', not in vague 'struggle'. The author misconstrued the historic speech of Bangabandhu delivered on 7th March, 1971. For strategic reasons, Bangabandhu used the word 'struggle' although he was seriously urged by his people to declare independence perforce leading to a war. Once it started, it attracted international law of war, application of international humanitarian law and law of state succession. Identifying history of this period as mere 'struggle' may prove counter-productive, for it would give way to anti-liberation elements of this country who hitherto preferred to term the glorious war as 'internal strife'.
The total import of my article was, of course, to establish the glory of struggle, not war. I advocated for implanting the history of struggle more coherently in the preamble what I found to be lacking in the existing first paragraph, which glorifies the 'war' at the cost of 'struggle'. When I went back to the original preamble in search of the true spirit, I found that spirit was there, but the wording was a bit misplaced.
On the other hand, 1977 amendment, although sounds a bit correct in wording, did snatch away the very spirit (historic struggle for national liberation). Therefore, I suggested a draft that would more appropriately represent the spirit, and at the same time its wording would not be susceptible to any incongruity.
What I did not say perhaps was that 1977 amendment destroyed much than it produced. I was not unconscious of the motive that might have played catalytic in glorifying 'war' in place of 'struggle' in that amendment. That sort of change was neither a top priority of the then government, nor perhaps was it done with a pious motive to correct the apparent incongruity of wording. Certainly total omission of the word 'struggle' was unforgivable, I agree, but my proposition was that revival of the original first paragraph in toto with prevailing wording would leave a gap between the spirit and the language used.
(2) There is no question of 'mildly rebuking' or imputing anything like 'poor drafting skill' to the constitution makers. Dr. Kamal Hossains and Ambedkars are our legends. But what Mr. Chowdhury failed to appreciate is that, with due respect to the towering genius of the constitution-makers, a law student has a valid scope of reviewing and reassessing any part of the constitution in his academic zeal.
(3) His objection to 24 years' history of struggle and stretching it up to thousand years is based on fantasy and fraught with exaggeration. I have no objection to such a visionary zeal, but the question is, was that thousand years' struggle singularly for the cause of Bangalees? We may speak of Battle of Plassey or the Sepoy-mutiny, but they were not fought for Bangalee Nationalism. They were part of a common struggle of all the people in this sub-continent for an independent motherland. In 1947, our people erroneously thought that their efforts were ultimately paid off. Soon they realized the truth, and entered into a new phase of struggle that led to the war of 1971, and finally resulted in achieving a constitution of our own.
History of 1947-1971 is single-most important factor in the making of our constitution. Had there been a just constitution and a fair play of democracy in this period, the history might have been otherwise, maybe for better or the worst.
(4) The most surprising part of his write-up is that in his zeal to uphold 'struggle for national liberation', he does not hesitate to totally wipe-out the 'Liberation war' from our constitutional history. He has come out with some ridiculous and childish propositions. He is not ready to accept my comment that after 26th March what happened was “though struggle in general, was war in particular”, whereas in turn he comments it as“though prima facie a war, it was a struggle in reality”. What is the difference? Again he says“the 1971 war was not a mere armed rebellion, it was a mass upsurge for the fulfillment of a thousand years ….”
He perhaps introduced a neologism for our liberation war. If 1971 war was 'struggle' or 'mass upsurge', we have to invent new words and phraseology like 'struggle-criminal' in place of 'war-criminal', or we have to set up 'Mass Upsurge Crimes Tribunal' in stead of 'War Crimes Tribunal'.
(5) Yes, I deliberately refrained from attracting 'liberation' and 'independence' in my discussion. Because I recognize both in their true contents and maintain prejudice to none. They can be interchangeably used. Say of 'Liberation war' or 'struggle for independence'it adds nothing to the debate. Of course, I would say, the writer confined independence to its external aspect only. Sovereignty achieved through independence should be visualized from both internal and external dimensions.
(6) Finally, the writer has put a question mark about my allegiance! Ridiculous. The writer seems to be sub-consciously obsessed in some allegiance crisis, or he is in the habit of judging an academic analysis always in terms of allegiance. His gesture reminded me the 'EitherOr Doctrine' of President Bush. However, I am happy to answer the question that my allegiance is towards truth and objectivity.
Lastly, let me conclude with a positive note for the writer. I thank him, for he has exposed a true academic concern in favor of a true spirit. I found much consolation by his reference to the second paragraph of the preamble, which did justice to the term 'historic struggle for national liberation'. But by the same token, incongruity in the text of first paragraph in representing the much avowed spirit of struggle is not getting cured. Sustaining the original first paragraph in its existing form and shape may not pose any problem in its understanding for an omniscient pedagogue, but for we the commoners, whose domain is the law, original first paragraph must be suitably amended when it is revived.
The writer is Assistant Professor of Law, Premier University, Chittagong.
