Law vision
Pitting 'Liberation' against 'Independence'
S. M. Masum Billah
The significance of the very first line of the constitution of Bangladesh does not often receive our full attention. It runs like this: “We, the people of Bangladesh, having proclaimed our independence, on the 26th day of March 1971 and through [a historic war for national independence], established the independent, sovereign People's Republic of Bangladesh”. The expressions put in the bracket 'historic war for national independence' was placed instead of original constitution's expressions 'historical struggle for national liberation' by martial law 2nd proclamation in 1978.
Bangladesh constitution has undergone massive changes since its adoption. But perhaps the greatest charade to the sagacity of the framers of the constitution is done by altering the very first line of the constitution and that is also under the dictum of a martial law administrator. Ironically, after the alteration, by another martial law proclamation the amendment to the preamble along with some other complementary provisions of the constitution was made unamendable except by a referendum.
Upon this distorted preamble it has been forcefully settled in Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (AD) spl 1, preamble is the pole star of the constitution and forms the basic structure of it, and hence it cannot be amended at all. In the mean time many waters have flown in the river Ganga-Jamuna. Nonetheless, mention of 'progressive aspirations and hopes of people' are there. So we talk about this, though in vain. Because martial law does not become satisfied by dispersing the letter of the law, it dries away the spirit of the liberty itself. So has happened to us. It is contended that preamble is not a rhetoric flourish. The people's desire behind establishing the Bangladesh state is sacredly embodied in the preamble. Hence it is unalterable either from historical perspective or from legal point of view. The hopes and aspirations of the people seeking emancipation narrated in the preamble can be altered is a notion based on nullity and illusion.
Rabbani J. in a recent work has termed it 'a deceptive alteration' while commenting on the amendment to the first line of the constitution. Justice Rabbani sees, and indeed the framers of the constitution did see, the journey of Bangalee population towards 'liberation' through prisms of historical movements from 1757 up to 1971. That was the underlying philosophy of using the words 'historical struggle for national liberation' as used in the original constitution. The armed resistance and war of 1971 for independence was the final outcome of those struggles, revolutions and movements which got recognition in the first line of the constitution as 'historical struggle for national liberation'.
The change by 1978 martial law proclamation has negated the historical continuation of struggle for emancipation. Well, 'independence' is certainly a leitmotif of 'liberation'. If that is so, what's wrong with the change from 'historic struggle for national liberation' to 'historic war for national independence'? There are a few points of concern, firstly; application of the word 'struggle' and 'liberation' in the original constitution also significantly includes the war of independence, secondly; liberation and independence though often used interchangeably they carry subtly different connotations, in particular liberation signifies vision for economic democracy, independence doesn't, and thirdly; to borrow the words from Justice Rabbani (pardon my translation from Bangla commentary); mere mentioning of 'war' in the expressions disunites the two hundred years' thirst for emancipation and a historic continuation of the revolutions becomes oblivious.
The issue came up before the Appellate Division in Registrar, University of Dhaka v. Dr. Syed Sajjad Hussain 34 DLR (AD) (1982) 12 at 18. Justice Chowdhury considered the expression 'historic struggle for national liberation' in interpreting the purpose of the constitution and commencement of a law providing for purging the land from persons having belongingness to Pakistani atrocities or zeal before or after liberation. Justice Chowdhury seems to have not questioned the validity of the impugned change in the preamble. He considered cumulatively the effect of 'liberation' and 'independence'. He observed, the 'historic struggle for national liberation' is not only eulogized but in optative manner it was raised to the level of 'historic war for national independence'.
Nineteen seventy one was one phase but the struggle continues because the state is to realise a society in which the rule of law, fundamental human rights and freedom, equality and justice shall be ensured for all. Per Justice B. H. Chowdhury, “Revolutions are locomotives of history and the national liberation struggle is a phase in democratic revolution for achieving an egalitarian society where class contractions are eliminated and socialist means of productions and distribution is achieved. Our heroic war of liberation was launched in that spirit and the nation was baptised in blood.” Such interpretative analogy was deduced from socialist political philosophy.
Mahmudul Islam in his Bangladesh Constitution has argued that this interpretation is not well founded on rule of interpretation. Islam's contention is that the qualifying words 'for national liberation' restricted the expansion of 'historic struggle' which ended with 'national independence' and cannot be comprehended as continuing after achievement of independence. Islam submits that the constitution of Bangladesh clearly envisages a traditional democratic process and its language cannot be construed with reference to radically different political philosophy merely because of the use of the words 'socialist society' in the preamble. The submission of Mahmudul Islam has substantiality from two standpoints; firstly, it rejects the impression that the original constitution took a socialist dimension by using the words 'struggle', 'liberation', 'socialist society' and the like. Secondly; it proves the hollowness of impugned change in the opening paragraph of the constitution. The using of the words 'through democratic process' as means of achieving 'socialist society' is a testimony to this.
However, my contention is not in favour of reinstating the original wording. However, the discussion and concern on the point is important. For, there is also an emphatic interest in reverting back to 1972 Constitution. The discussion will explore how 'liberation' turning into liberty, 'independence' turning into emancipation, perhaps more accurately to say economic emancipation, 'social justice' turning into pursuit of happiness of a population become a vacuum thing in absence of predominance of constitutional spirit. Amidst the strident clamour of martialism and resultant distortion of constitution the dream for emancipation vanishes away. Then 'liberty' of liberation disappears from the heart of a nation. When it happens, the dead letters of the constitution hardly matter.
The writer is Assistant Professor, Department of Law, Northern University Bangladesh.
