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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 162
March 27, 2010

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Reviewing the views

Of 'struggle' and 'war': A humble dissent

M. Jashim Ali Chowdhury

Mohammad Moin Uddin, an Assistant Professor of Law from Premier University Chittagong has come out with something new in our Preamble talk. The gist of his write-up in the last issue of Law and Our Rights, as it appeared to me, is that the substitution of 'war' in place of 'struggle' in the Preamble was right as per the 'grammatical construction' of the relevant phrase. To the author it was the correction of the mistake of 'inappropriate' use of a 'right word in a wrong place'. Bless my soul!

While impliedly supporting the anti-liberation aggression on the constitutional philosophy, he even mildly rebuked the framers of the 'well-thought-out constitution' for their poor drafting skill. The 'hypothesis' of Mr. Moin is that by using 'having proclaimed our Independence on the 26th day of March, 1971' before 'through a historic struggle for national liberation' the framers of constitution delimited the boundary of our liberation history within 9 months of 1971. This being so 'it makes sense that the change of 1977 was correct' because 'what happened after the proclamation of independence was though struggle in general, war in particular.' I'm simply thundered by such a silly outlook towards such a glorious revolution.

Is it only a 24 years' history?
To the author, 'The true spirit of our constitution is the spirit that ran through the minds and souls of our people from 1947 to 1971 in quest for a just constitution.' This, to me, is a poorly conceived idea ignoring the thousands years' search of the Banglaees for a nation state. It was the Baro Bhuiyans of Sonargaon who bought freedom from the Mughals for blood. It was the Bangalees who staged the first revolution against the British in 1760 soon after 1757 Plassey tragedy. Those under-armed but desperately courageous revolutions reached their culmination in 1971. Saying that the 1971 'war' was a result of mere political, economic and constitutional failure Pakistani rulers is a clear negation of the 'struggle' for Secularism, Socialism and Bangalee Nationalism which were not matters of some 24 years. The 1977 amendment for which the author stands did exactly this thing. It, while accepting a 'war' with Pakistani forces, completely changed those guiding principles of the 'struggle' into communalism and so called Bangladeshi nationalism, a complete reversal of the truth.

Did the framers 'inappropriately' use 'struggle'?
If the English text of the Preamble is considered, the 'grammatical construction' proposed by the writer holds no ground at all. In the English version the clause is 'having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation.' Here the presence of 'and' between the proclamation of independence and struggle for national liberation makes it clear that these two parts are separated by the disjunctive conjunction. These being separate, the first part must not affect or qualify the second one. Formal declaration of independence has been mentioned first to refer the 'immediate' justification while the prolonged 'historic struggle for national liberation' has been mentioned as the guiding philosophy behind the whole process.

The Bangla text of the Preamble, however, may provide some literal and prima facie foothold to the author's view. Here the conjunction 'and' is totally missing. So it may readily be claimed that by using 'historic struggle for national liberation' just after 'having proclaimed our independence', the framers of the constitution intended to refer 9 months of 1971. The point becomes stronger on the ground that in case of conflict between Bangla and English text the former shall prevail. Yet I request the writer to wait a bit more.

Intention is not to be deduced readily from a 'grammatical construction'. Doing so will be to forget that 'it is a constitution we are expounding'. 'Interpretation of constitutional principles is a matter of reasoned application of rational precepts to conditions of time and place', to borrow words from Dean Roscoe Pound. Constitution is to be interpreted on the basis of its overall spirit and scheme without caging the interpretation within the confines of the written words taken in isolation (Mahudul Islam, Constitutional Law of Bangladesh, p 29-30). Now leaving aside the English text, even the Bangla text of the Preamble looked upon as a whole will negate the writer's view.

If taken grammatically, the first paragraph of the Preamble would mean that we established the Independent Sovereign People's Republic of Bangladesh by proclaiming our independence and then by waging a nine-month 'war' for national liberation. But would it not strike at the very root of the Proclamation of Independence? Constitutionally speaking, for the establishment of the Independent Sovereign People's Republic of Bangladesh we did not wait for the 'war' to be concluded on December 16, 1971. It was established on the 26 March 1971 immediately upon the declaration of independence which was confirmed retrospectively on April 17, 1971 through a formal proclamation of independence. So it becomes logical that 'historic struggle for national liberation' was used in the first paragraph not merely to refer 9 months' physical war rather to denote the politico- philosophic foundation which supplied validity to the proclamation of independence itself.

Again, to arrive at his 'hypothesis' the writer totally overlooked the second paragraph of the Preamble in the original constitution. Here the framers mentioned the principles of socialism, secularism and nationalism which 'inspired our heroic people to dedicate themselves to…. the struggle for national liberation'. And here you shall not see the qualifying clause 'having proclaimed our independence'. Hence this 'struggle for national liberation' can never be construed to refer only 9 months of 1971. So should we say that the Preamble speaks of two different struggles (one limited and another wider) for national liberation? Only a shallow 'grammatical construction' can afford this.

The 1971 episode of the history: 'War' or 'Struggle'?
Even if for the sake of argument we accept that the struggle mentioned in the first paragraph of the Preamble is a limited one, it does not warrant terming the use of 'struggle' 'inappropriate'. Nor it is correct to claim that the 1971 episode of history 'though struggle in general, was war in particular'. Rather the opposite is pertinent. Though prima facie a war, it was a 'struggle' in reality. The 1971 was not a mere armed rebellion against any ruler. It was not a fight fought between two rival armies. It was a mass upsurge for the fulfillment of a thousands years' cherished dream a free homeland for Bangalees. It was not a 'war' for mere independence. It was a 'struggle' for a total emancipation of the people (liberation) from oppression. That is why the undisputed leader of 75 million people declares, “This time the 'struggle' is for liberation, this time the 'struggle' is for freedom.” That is why we adorn and distribute the credit of 1971 among each and every individual - who fought the 'war' in the field, who starved to feed the freedom fighters with the sole piece of bread available at home, who fled the neighborhood in fear of persecution, who sang in the refugee camps or in the streets of New York, who lobbied in the international plane or even who prayed to the Almighty for the freedom.

Here the writer completely ignored the terms 'liberation' and 'independence'. A struggle for 'liberation' has been changed into a war for 'independence'. What does 'independence' mean? It is the sovereignty meaning freedom from external interference. Liberation is not a mere freedom from foreign dominance; it means freedom from exploitation, poverty and hunger. So doesn't it explain that the term 'struggle' was appropriately used to give a wider dimension to the 1971 efforts for national 'liberation' while 'war' for national 'independence' was used to restrict it from every possible dimensions? Then why does the author consider 'war' to be a right term and hence support such a warrior's approach to 1971? On which side his allegiance lies?

Is the source of validity missing?
The writer professed a sort of arbitration as well. If that is to be complied with, we shall consume the 'war' in its present place and relocate the 'struggle' from its 'wrong place' to a right one by recording it in the first paragraph as 'an antecedent to and raison detre for, having proclaimed our independence'. It shall contain twenty four years' 'struggle' to indicate the source of validity of the constitution which the framers of the constitution 'failed to underscore'. Is Montesquieu looking at the foggy England from his sunny vineyard in Paris? As shown above the 'historic struggle for national liberation' mentioned in the original constitution covered the history of thousands years not of mere twenty four Pakistani years alone. Of course, the historic 'war for national independence' as it stands now unforgivably omits it. And if any one is to blame for this, it is the person causing the pro-Pakistani amendment, not the framers of the constitution.

Consuming the 'war' for national independence and inserting one or two sentences before that to accommodate the 'struggle' for national liberation would be a stance of neutrality over which even a Chief Adviser to the Non Party Caretaker Government would think thrice. If any amendment is needed, that is the revival of the original constitution in toto nothing else.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.




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