On November 4, 1972, the members of the Constituent Assembly while signing the Constitution of Bangladesh fixed a milestone in the history of Bangladesh towards democracy and rule of law. The struggle that started with the proclamation of Six Points in 1966 came to its fruition. On December 16, 1972, on the first anniversary of Bangladesh's victory over Pakistan in the liberation war, the new Constitution came into effect as citizens of the new-born country looked ahead to a new dawn of hope after years of terror and oppression they had suffered under the military dictatorship of Pakistan.
While the Pakistan Armed Forces cracked down with bestiality in the midnight of March 25, 1971, the elected representatives of the people of Bangladesh crossed the border and on April 10, 1971, they on the mandate given by Bangabandhu Sheikh Mujibur Rahman, proclaimed independence of Bangladesh in which the objectives of equality, human rights and social justice were mentioned.
On July 10, 1972, Bangabandhu returned home as president of Bangladesh. In a meeting next day Provisional Constitutional Order was proclaimed providing for parliamentary system of government. Bangabandhu stepped down as president and assumed the office of Prime Minister.
Now that the war was over, the country faced all the problems of peacetime. The state had to decide on the form of the government to be established, enforce law and order, collect taxes, regulate trade, build infrastructure and above all, decide who we were to become as a nation and a society. “My opinion was clearly for a parliamentary form of government headed by a prime minister. This had been part of the six point programme,” says Dr Kamal Hossain. “It would also be in the long term interest of the country to provide for executive authority to be exercised by a Cabinet, led by a prime minister, who would be accountable to Parliament. It would help to develop the concept of collective responsibility, as well as the capabilities of a team who would, in the future, be able to provide leadership.” Dr Kamal Hossain, lawyer, statesman and politician, was one of the main architects of the Constitution.
On January 11, 1972, Justice Abu Sayeed Chowdhury, Dr Kamal Hossain and Amirul Islam were asked to go to the prime minister's residence on Hare Road. A cabinet meeting was in progress. After the meeting, Bangabandhu told them that it had been decided that a parliamentary form of government should be introduced pending the framing of the constitution. Dr Kamal says, “He asked if a provisional constitutional instrument could be prepared immediately, to enable a Cabinet to be sworn in the following day? Could a draft be placed before the Cabinet within the next hour?”
A draft was prepared, approved by the Cabinet and sent to the government press for publication in the Gazette. Justice Chowdhury was to be sworn in as the president and Bangabandhu the prime minister. But who was to administer the oaths of office? The old provincial High Court had become defunct. A provisional High Court needed to be constituted and a chief justice appointed. The first choice was senior lawyer Kamruddin Ahmed who had been in active politics in the fifties and had lost a son, a freedom fighter, in the war. Given his mental and physical state, he declined. Abu Sadat Mohammad Sayem became the chief justice. A new cabinet was sworn in with Bangabandhu as the prime minister.
Dr Kamal Hossain was entrusted with the responsibility to steer the process of writing the Constitution and thus given the Law portfolio. With very limited resources and very little time, a Law ministry had to be established immediately. He persuaded Dr Munim, a sitting judge to accept the position of Law Secretary. The Constitution was to be written in Bangla. Dr Anisuzzaman of the Bangla Department at Chittagong University joined the team responsible for the preparatory work on the Constitution. The Constituent Assembly of Bangladesh Order was promulgated on January 11, 1972, and the first meeting of the Assembly was convened on April 10, 1972. “The first meeting was charged with deep emotion,” recalls Dr Kamal. “It was a moment of communion with the souls of the martyrs who had paid with their lives to vindicate the rights of the people to make a constitution for a sovereign and independent People's Republic of Bangladesh.”
A Constitution Drafting Committee comprising of 34 members and chaired by Dr Kamal was formed. Members included Syed Nazrul Islam, Tajuddin Ahmad, Mansur Ali, Kamruzzaman, Khandhaker Mushtaque Ahmed, Amirul Islam and others. It also included Suranjit Sengupta, a member of the opposition and Razia Banu, a woman member. Dr Kamal says, “Guidance on general principles provided by the resolution of the Assembly, declared that the high ideals of nationalism, socialism, democracy, and secularism, which had inspired the brave martyrs to lay down their lives in the national liberation struggle, would be the fundamental principles of the Constitution. These principles had been articulated through popular historic movements in the period between 1947 and 1971.”
These values and principles have their roots in the issue-centric, value based politics of the fifties and sixties and of course, the language movement.
“Secularism stands for the rejection of communalism in all its forms, and the abuse of religion for political purpose,” says Dr Kamal Hossain. “We had seen the worst crimes committed in the name of Islam. The principle of secularism that was embodied in the Constitution was very carefully worded so as to make clear that it did not stand for hostility to the religion. The constitution-makers were fully conscious that the majority of the Bangali people were practicing Muslims. The principle of secularism, as spelt out in the Constitution, was to maintain a separation between the state and religion and to create an environment in which all religious communities could coexist in harmony, free from discrimination and religious intolerance.”
Socialism reflected the commitment to create a just and egalitarian society. The Constitution also divided the government into national and local spheres in order to ensure active participation of people in the making and implementation of plans for social and economic development. The Constitution made provision for an independent and impartial judicial system. And it obliged the civil service to be broadly representative and to conduct itself in a transparent and accountable manner.
Long and detailed discussions had taken place within the Constitution Drafting Committee that worked long days and nights for months to finish the task they were entrusted with. A large number of amendments were proposed for the draft Constitution Bill, and over fifty of the amendments proposed by the members were incorporated. Bangla was declared to be the state language of the Republic. Amar Shonar Bangla, Ami Tomai Bhalobashi… was adopted as the national anthem. Within seven months, the task of drafting the Constitution was completed. The speed with which it was done received a great deal of appreciation at home and abroad. Bangladesh was established as a nation state and the national identity of its people would no longer be questioned. However, smaller ethnic communities felt excluded by it. Mahendra Narayan Larma, an elected member, expressed his concerns at the Parliament.
Justice Albie Sachs, one of the architects of the Constitution of the new South Africa once wrote that Constitution is 'the autobiography of a nation' because it reflects the historical experience of a nation. Dr Kamal says, “It is a 'living document' intended to enable succeeding generations to realize the goals of freedom and justice for which people had struggled for decades. The national unity which had brought us victory in 1971 was founded on shared values and a shared vision of the kind of state and society, we, the people, aspired for.” Article 7 of the Constitution affirmed that all powers in the Republic belong to the people, and that their exercise, on behalf of the people, would be effected only under, and by, the authority of the Constitution. Dr Kamal says, “The Constitution confers on the majority of those elected the right to form the government, but does not thereby confer on it arbitrary and unfettered power, but only power subject to the obligations laid down in the Constitution. The oath of office makes it clear that those who are assuming power are oath-bound to respect the Constitution, and the fundamental rights of citizens, guaranteed by the Constitution.”
The 1972 Constitution established a system of government that allowed the newly independent Bangladesh to become one of the world's leading democracies. “The true spirit of the 1972 Constitution is reflected in the Preamble to the Constitution, says Mahmudul Islam, senior advocate, Supreme Court of Bangladesh, in his book Constitutional Law of Bangladesh. “It clearly states the fundamental principles on which the Constitution stands, acknowledges those who fought for the country and aspires to prosper in freedom and contribute toward international peace and cooperation.”
This Constitution is, indeed, the icon of Bangladesh's miracle, for it was the product of a people's struggle for their identity. It represented the discovery of a nation. It was, therefore, the soul of the nation. People expected transparency, accountability and the rule of law in an independent Bangladesh. The Bangladesh we live in now seems to be far from it. The Constitution has seen better days. Sounding the call for the Constitution to be used as a continuing instrument of liberation, over 100 freedom fighters last week sat in a three-day hunger strike and demanded scrapping of the current Constitution and framing of a fresh one through a constituent assembly to restore peace in the country. Major (retd.) Syed Munibur Rahman, freedom fighter, took part in the hunger strike. He says, “We wanted to see and fought for a Bangladesh that is democratic and secular and where rule of law exists. We want a constitution that reflects the true spirit of the Liberation War.”
So how much have we deviated from the guiding principles of the Constitution laid down by the founding fathers?
“The question ought to be: how much have we been able to achieve as envisioned by the Constitution?” Mahmudul Islam looks askance.
The article was originally published in the Star Weekend Magazine in 2013