Law interview
The Proclamation of Independence
Context and multiple purposes
"The Proclamation will remain a sacred parchment in search of our constitutional identity in the history and in emergence as a State for years to come remaining as the eternal spirit of Bangladesh, a beacon to inspire and guide our people to strive for the Peace, freedom and justice", says Barrister Islam.
ON 17 April 1971, the formal Proclamation of Bangladesh's Independence was read out and the Government-in-exile took its oath at Mujibnagar Amrokanon, Meherpur Kushtia. Proclamation of Independence served as the interim Constitution of Bangladesh from 26 March 1971 to 16 December 1972. M. Amir-Ul Islam, Bar-at-law, a noted constitutional jurist of Bangladesh, drafted the Proclamation of Bangladesh Independence, which was later adopted by the Constituent Assembly. Law Desk talks with him on the background and significance of Proclamation of Independence.
Law Desk (LD): How did the idea of giving a formal proclamation of independence come about? And how was it drafted and adopted in April 1971?
Amir-Ul Islam (AI): A constitutional document in the form of Proclamation of Independence was an indispensable follow-up of the declaration made by Bangabandhu Sheikh Mujibur Rahman at the fateful juncture of our history as the clock moved at midnight changing the calendar, with it our destiny embarking upon a new era on 26th March 1971. On this journey chartered with challenging task for our people and for those joining as vanguard, taking to arms to repel the enemy as forewarned by the leader to resist the enemy with whatever they had in response to the clarion call given earlier (7 March) for the supreme sacrifice. At this turning point of history, people needed to express their paramount will through their elected representatives giving expressions supposed to last for all times to come.
Facts and events speaking for themselves as stated in the Proclamation while justifying our cause for freedom and justice, exposed Yahia's army as an occupation force resorting to Genocide, Crime against Peace and humanity causing millions of death, destruction, rape and arson and thus having lost all the legal and moral authority, acting under a command having no semblance of legitimacy (as declared later by Pakistan Supreme Court in Asma Jilani's case).
Secondly, being a party to the armed conflict it was a corollary of the liberation war against the occupation force of Pakistan; we needed a legitimate authority to take responsibility on behalf of the people in conducting the war. Since we were fighting for freeing our country from Yahia's occupation in the midst of a multi polar world involving the question of balance of power, we owed it to the people of the world at large and governments of the respective countries as well as to the International organizations i.e. United nations as to our cause and of our commitments in our “Resolve that we undertake to observe and give effect to all duties and obligations that devolve upon us as a member of the family of nations and under the Charter of United Nations”.
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| From left: Syed Nazrul Islam, Phani Bhushan Majumder, Tajuddin Ahmed and M Amir-Ul Islam in an occasion during the height of independence days 1971. |
The Proclamation not only gave the government the legitimacy as was to be recognised by the world at large but it also gave a momentum to the war of liberation and particularly the “Muktibahini” operating in difficult situation for the objects acknowledged by the Proclamation for which many sacrificed their lives in order to liberate the country. Proclamation thus being based on sound legal and constitutional argument helped the freedom fighters gaining momentum in fighting a legitimate war and to receive such acknowledgment in the international media. This helped building the world opinion. Pakistan's propaganda could not make any dent on our status and the legitimacy of the cause for self determination reinforced by our pledge to abide by the laws at all times 'whether in war or in peace'. The Proclamation thus made out a full proof case for Bangladesh.
In drafting the Proclamation, I was mindful that we not only owe it to our people to explain the reasons of which our people were already aware but we particularly owed it for the world and to our future generations to know what made us to make this ultimate decision.
Thirdly, in order to seek our recognition as a State party from all the governments and international organizations, we had to communicate with other States which we did soon after the government took the oath in Mujibnagar.
As a matter of fact, we felt the need for having such a constitutional instrument with regard to formation of Govt. headed by Bangabandhu Sheikh Mujibur Rahman as president, Tajuddin Ahmed being the Prime Minister, Syed Nazrul Islam to be the Vice President of the Republic, during absence of the President to act as the Acting President. It was simultaneously accompanied with Laws Continuance Enforcement Order both dated 10th April to come into effect since 26th March 1971.
LD: Why a further proclamation was necessary when there was already a declaration on 26 March 1971?
AI: This was the moment for transforming a de facto government into a de jure status. The Proclamation provided it with the constitutional cloak and introducing new identity for our country to be known as “Peoples Republic of Bangladesh”. In the mean while, we have already received the text of Bangabandhu Sheikh Mujibur Rahman's declaration of Independence made at the early hour of 26th March by the transcript of wireless message received at various border posts. We were also under the pressure and demands from our leaders from different parts of the country and from those armed and civilian officers having joined the liberation war for the formation of a government so that they could perform their duties with their allegiance to a legitimate authority so that they can enjoy thereby the status of lawful armed forces. In this background, Proclamation of Independence was not only a necessity but also an imperative, as we owed to our people, freedom fighters and the world at large.
LD: What is the historical and constitutional significance of the proclamation?
AI: It is important to put on record that on 1st of March, 1971, there was a meeting of the Awami League Parliamentary party having overwhelming majority in the Constituent Assembly for the approval of the draft Constitution of Pakistan on the basis of 6 and 11 points. I being the elected whip, working closely with Bangabandhu, was given responsibility for organizing a meeting to conduct the session scheduled to be held at Hotel Purbani. Accordingly all the arrangements were made while Yahia's declaration came over the radio that the session of parliament scheduled to be held on 3rd March was postponed indefinitely. Threats were held out from the Cantonment upon the management over repeated telephone calls that the hotel would be raised to the ground by the army tanks rolling out of Cantonment soon. In the meanwhile, hundreds of thousands of people encircled the hotel. People from nearby shops and offices came out on the street. All offices, shops and other activities including the Cricket match came to a halt. People around the Paltan, stadium, Gulisthan and Motijheel around the hotel made into one solid mass. A stream of human mobilization was spread into one human chain all around the entire city (No tank could however roll out but the threat remained hanging for Yahia's treacherous move “Operation Search Light” on 25th March, as he left Dhaka that night leaving the darkest spot in human history). I drafted a resolution for the meeting at Purbani conferring and empowering Bangabandhu Sheikh Mujibur Rahman with all the powers to be exercised by him on behalf of all the elected members as well as on behalf of the people of Bangladesh to take such decisions, make pronouncement and declaration as he would deem fit and necessary. As I proposed, it was unanimously passed and approved by acclamation. It was logical therefore that at the first available opportunity, the elected representatives would meet which they did and confirmed the declaration followed by the speech of Mr. Tajuddin Ahmed dated 10th April. Accordingly followed the Proclamation, read out and made public for the entire world in the oath taking ceremony of the government on 17th April at the place, since named as Mujibnagar.
The present and future readers of the Proclamation would no doubt realize by reading the document itself as to it's historical and constitutional significance more than what I would ever be able to tell and this would continue to be expounded as has been already done in the making of the Constitution and will remain a sacred parchment in search of our constitutional identity in the history and in emergence as a State for years to come remaining as the eternal spirit of Bangladesh, a beacon to inspire and guide our people to strive for the Peace, freedom and justice.
While drafting the Proclamation, a rare privilege, greater than any work I could have ever done, the awareness, alertness and articulations as flow from it, cannot be an expression of an individual. This could only can stem from the collective oneness of mind of a nation sharing together for realization of a dream inherited from our past generations and their experience culminated over centuries in to an urge to become the master of their own destiny; and that is the rare moment of history when individuals overcome their barriers and limitations otherwise inherent in physical existence distinct from the rest merging into a single entity becoming part of the process in the making of a Nation, a Country-a State in the family of nations “So that we may prosper in freedom and may make our full contribution towards International peace and co-operation in keeping with the progressive aspirations of mankind”.
The Proclamation of Independence has already received the status of 'genesis of Bangladesh Constitution' as pronounced by our Supreme Court in the Judgment of 8th Amendment case and further elaborated in the Judgments of Mr. J. Khairul Haque.
Having had the privilege as member of the institute of International law and Comparative Studies and an active member of movement for colonial freedom in UK in early part of sixties headed by Lord Fenner Brockway and participating in active deliberation towards the need for two Covenants (ICCPR and ICESCR) while they were at conceptual/consultative/drafting stage for providing teeth to the 1948 UDHR, I carried those memories and experiences actively in my mind as well as those visions of understanding the right to self determination and human rights germinated since those days, helped me in drafting the Proclamation of Independence for our dream country to be named as People's Republic of Bangladesh.
LD: It seems that the new generation is not well aware of the proclamation of independence. How can we overcome this vacuum?
AI: Regarding the gap about the awareness on Proclamation of Independence, I firmly believe in the destiny of our people that it is bound to be removed due to the crying need and the quest that has already generated in search of one's identity among the new generation. As witnessed in America that the history of Independence, American Declaration of Independence and their Bill of rights are taught even in their schools as well as in colleges and Universities before the text of the Constitution is introduced in the class. I am sure that this is going to happen also in Bangladesh.
LD: Thank you for giving us time to comment on our questions.
AI: You are welcome.
