Law vision
Of 'struggle' and 'war'
Mohammad Moin Uddin
Constitution' is defined by many thinkers in their own majestic ways. Out of those definitions, I am fond of referring to Aristotle, who defined it as“the way of life the state has chosen for itself”. How can state choose its way of life being an abstract entity and having no brain of its own to think with? Can it make an informed and decisive choice for itself? Actually, 'state' means, inter alia, its people and the choice is, in fact, done by the people.
The question is, when and how did the part of the globe now known as Bangladesh make its plan of life it is following now? Was it the case that people of Bangladesh suddenly started to think of a constitution after that black night of 25th March 1971 when West Pakistanis imposed a treacherous war upon the armless civilians of Bangladesh? No. It was not the case historically.
Think of history. It is of essence, particularly when history of a constitution is intertwined with the tragic birth of a historically oppressed nation. I said to my students that history of our constitution is, in fact, history of 'struggle' for a just constitution that our people were engaged in from 1947 to 1971. That it was the failure of or, rather appropriate to say, unwillingness of Pakistani rulers to frame a constitution guaranteeing the just and equitable rights of our people (of the then East Bengal, later on East Pakistan and now Bangladesh) that compelled them to engage in a 'historic struggle for national liberation'. Deliberate political, economic, and other infra-structural and attitudinal disparities maintained by West Pakistani rulers, and absence of constitutional safeguards at the hands of our people as against those odds, plus failure to win an equilibrium in different aspects of life through repeated constitutional attempts at different stages of development of the historic struggle led to the extreme stage of war. 'War' was an important part of that struggle, of course the most obvious part of it; but war alone cannot explain the raison d'être and basis of our constitution in modern times. It was not an isolated phenomenon; War of 1971 was an epilogue of a sad drama, the last link of a long-drawn chain of oppression. Nor was it the sole story behind our constitution; we have more glorious history of struggle, which, if focused in its true and the then prevailing unavoidable context, would justify both the war itself and the incumbent constitution.
Whereas we know that one of the purposes of the preamble of a constitution is to indicate the source of its validity, unfortunately preamble of our constitution failed to underscore the history of our struggle from 1947 to 1971 as the source of validity of our constitution. As a justification of framing our constitution, the first paragraph of the preamble traced the history as back as the proclamation of independence on 26th March, 1971 and then recorded the ensuing liberation war. My hypothesis is that it is not enough.
Some people would argue that in the original preamble, the struggle was focused by using the phrase “a historic struggle for national liberation”-- the same being later on replaced by the phrase “a historic war for national independence” by the Proclamations (Amendment) Order, 1977. But a careful reading of the original first paragraph would reveal that the use of the word 'struggle' was inappropriate, because what happened after proclamation of independence (having proclaimed our independence) was, though struggle in general, war in particular. So if grammatical construction of the original first paragraph 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 in so far as it termed that part of the struggle as 'war'. But if the spirit of using the word 'struggle' is taken into account, which seems to be deliberate, we would say that the framers of original constitution used a right word in a wrong place.
In my view, If the history of 'struggle' could be recorded in the first paragraph as an antecedent to, and the raison d'être for, the proclamation of independence, and then if the matter of war could be presented as the post hoc, it would more coherently serve the purpose of both the history and the law (Preamble).
This is what, I would say, framers of the Proclamation of Independence, 1971 could ably accomplish in drafting the preamble to the first ever constitution of Bangladesh. I mean, the proclamation graphically described the rationale of the birth of a new country and legitimacy of framing its constitution. Whereas preamble of the Proclamation traced the history back to the election of 1970 as an immediate justification, a well-thought-out constitution in the independent Bangladesh could record in its preamble the gist of what unease, inequality, disparity, injustices, oppression and so on we were put through, resulting in the later development of political crises further leading to an unequal war. That could be a true appraisal of the validity of its constitution to the scores of upcoming generation. This would also protect us from distortion of our true historyglorious, tortuous and pathetic past.
Bangladesh Constitution is the epitome of a constitution emerging from a true revolution. Its constitutional history is akin to that of the USA and the USSR. Preamble to such a constitution cannot but record the history of revolution in it. Whereas the true spirit of our preamble cannot be changed after the 8th Amendment Case, wording of the preamble can be changed in a way that would more appropriately present the true history and represent the true spirit. 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.
The writer is Assistant Professor, Department of Law, Premier University, Chittagong.
