It is a well-established fact that the Pakistani military forces launched 'Operation Searchlight' against innocent civilians and unarmed Bengali population in the night of 25 March 1971 to stage one of the most notorious genocides of the nineteenth century. As we know, that genocidal attack eventually resulted in the commission of, among others, murder, rape, destruction and displacement of millions of people from the then East Pakistan, later to become the People's Republic of Bangladesh. Immediately after the 25 March military crackdown, Bangladesh unilaterally declared its independence on 26 March 1971. With the dramatic shift of world interest in the Bangladesh Liberation War of 1971, the country eventually established a political Government-in-exile in Mujibnagar on 17 April in order to legitimately exercise its right to self-determination. Did we have that Mujibnagar Government-in-exile without any Constitution? Can a Government, even during war, function without a Constitution? Perhaps, these questions can be answered if we remember what happened to the country's constitutional order on 10 April 1971.
On this day, Bangladesh adopted the Proclamation of Independence for the purpose of legitimising the Mujibnagar Government, thereby supplying a legal justification required to achieve recognition from the global powers. Distinguishing the lawful Liberation War from any 'legally not acceptable' secession movement, the political leaders clarified in the Proclamation of Independence Bangladesh's entitlement to be a free nation. This necessity led in the adoption of the constituent instrument within just sixteen days after the start of the Liberation War. Importantly, the Proclamation was logically put into a retrospective operation since 26 March 1971. This historic instrument was meant not only to be the formal announcement of Bangladesh's independence, but also to be the State's first ever Constitution. Not to be confused, this 'first Constitution' remained effective till the declaration of the Provisional Constitution of Bangladesh Order of 1972 (declared on 11 January 1972) which was eventually overtaken by the Constitution of the People's Republic of Bangladesh, adopted by the Constituent Assembly on 4 December 1972.
I regard the Proclamation as the country's first constitution mainly for three reasons: firstly, the Proclamation of Independence provided the law to govern the State that came into being on 26 March 1971. Secondly, it was adopted by the elected representatives of the people of Bangladesh who were chosen through the 1970 elections that were held in fact to constitute a Constituent Assembly for making a constitution for the then Pakistan. Since that aim of the elections were made to be futile by the Pakistani rulers, those elected representatives lawfully constituted themselves into a Constituent Assembly of a free nation, Bangladesh. The Proclamation thus emanated from a democratic and constitutionally valid source. Thirdly, keeping in mind the idea of separation powers, those elected representatives divided state authorities and powers among different organs of the newly declared independent State of Bangladesh.
The basis of framing the country's very first Constitution is well reflected in paragraph 10 of the Proclamation which reads as follows, “We the elected representatives of the people of Bangladesh, as honour-bound by the mandate given to us by the people of Bangladesh whose will is supreme, duly constituted ourselves into a Constituent Assembly.”
The indication to “mutual consultations” among the elected Constituent Assembly members evidences that the making of this first Constitution was a participatory one. The instrument legally gave birth to a body-politic and adopted the principles of “equality”, “human dignity” and “social justice” as the bases of governance of Bangladesh. Indeed, these are the constitutional values for which Bangladesh had long struggled against imperialism and Pakistani colonialism.
As a constituent instrument the Proclamation introduces the territory of the then East Pakistan as the “sovereign People's Republic of Bangladesh” to be effective from 26 March when the declaration of independence was made by Bangabandhu Sheikh Mujibur Rahman.
As a matter of separation of state powers, a presidential form of government was chosen until a Constitution was adopted after the end of Liberation War. President's functions were clearly described. The President, for example, was made the Supreme Commander of the Armed Forces and given all executive and legislative powers of the State including the power to grant pardon. In absence of a parliament and given the fact that the Constituent Assembly can only enact the Constitution and cannot make laws for every day governance, it was legal and legitimate that the President was given legislative power on an ad hoc basis. Under the authority of the Proclamation of Independence, the very first legislation titled the Laws Continuance Enforcement Order 1971 and subsequently the Provisional Constitution of Bangladesh Order 1972 were made by the President. To assist the easy functioning of the State, the President was also empowered to appoint a Prime Minister and form a cabinet of Ministers.
Keeping aside the discussion on separation of powers, constitutional law experts must appreciate the global significance of this instrument for its all-out effort to recognise and respect the principles of international law and particularly those of the UN Charter. The global face of this constituent instrument is reflected in its reference to the commission of the international crimes such as genocide by the Pakistani military forces and their collaborators.
One can sensibly imagine that during the early days of ruthless war, nothing more could have been expected from the Proclamation of Independence. Though this instrument of independence seemed to be a provisional constitutional arrangement for the State governance, it actually incorporated the most basic features of a Constitution by which a country could be governed during a war. In several judicial decisions of the Supreme Court of Bangladesh, the constitutional authority and sanctity of the instrument was recognised. For instance, in a case, the War Risk Insurance Ordinance 1969 was held to be not a continuing law of Bangladesh under the Laws Continuance Enforcement Order 1971 as it was found to be inconsistent with the Proclamation of Independence. Undoubtedly, the Proclamation here was treated as a higher constitutional normative order.
Finally, because of the 15th Amendment to the Constitution, the Proclamation of Independence has now found its due place in article 150(2) and Seventh Scheduleof the Constitution of Bangladesh. From being a makeshift Constitution during the Liberation War, the Proclamation has now become a historic constitutional document for the constitutional law enthusiasts who might seek to dig deep into the politico-legal history of Bangladesh. To conclude, the Proclamation of Independence is still worth a name as the first Constitution of Bangladesh.
The writer is Lecturer in Law, Bangladesh University of Professionals (BUP).