Post Event Report 10.04.2021

Proclamation of Independence: Its Significance in Nation-Building

Image: Honourable Chair, Moderator, Keynote Speaker and Designated Discussants of the Lecture sharing the same screen

In celebration of 50 years of Independence of Bangladesh, a series of lecture has been initiated by Bangladesh Institute of Law and International Affairs (BILIA). The second lecture of this series titled “Proclamation of Independence: Its Significance in Nation-Building” was held on April 10, 2021, Saturday at 3:00 p.m. virtually through Zoom video conferencing. Dr. S M Masum Billah, Associate Professor, Department of Law, Jagannath University was present as the keynote speaker. Professor Dr. Abul Barkat, President, Bangladesh Economic Association (BEA) and Mr. Ajay Dasgupta, Eminent Journalist were present as panel discussants of this lecture. This lecture was chaired by Barrister M. Amir-Ul Islam, Chairman, BILIA and conducted by Professor Dr. Mizanur Rahman, Director, BILIA. The lecture started with welcome speech by Dr. Mizanur Rahman. 3

Image: Split image of participants from Zoom Video Conference

Welcome Speech:

Image: Director of BILIA and Moderator of the lecture

In his welcome speech Dr. Mizanur Rahman expressed his heartfelt gratitude to all the distinguished guests and participants for joining the lecture. He also made some remarks 4

regarding the significance of 10th April, 1971, stating it to be the day on which the Proclamation of Independence, the first ever constitution of Bangladesh, was formally adopted and read out. He further added that as a teacher of law he always pronounces a sentence that, ‘even if there remains no Constitution in Bangladesh, we will not have anything to be sad about, as long as we have this two page document (Proclamation of Independence) that is immune to any kind of amendment, addition or refinement and which within its pearl inlaid words upholds the spirits of liberation war’.

Keynote Speech:

Image: Keynote Speaker

As the keynote speaker Dr. S M Masum Billah, Associate Professor of Law, Jagannath University presented a paper titled, “Bangladesh’s Genesis: Regarding the Proclamation of Independence at Its 50” keeping similarity to the theme of the lecture. At the outset of the paper presentation, Dr. Billah, reiterated the wording of the 3rd US President written on the occasion of 50th Anniversary of the Drafting of American Declaration of Independence in June 1826. The keynote presenter uttered his immense astonishment that the prediction of the US President (world community will assume the blessings and security of self-government being encouraged by American Declaration of Independence) exactly reflected in the life of ‘Bengali people’ after some hundred and fifty years later. Dr. Billah then expressed his due honour saying that the exponent of Proclamation of Independence of Bangladesh Barrister M. Amir-Ul Islam is present in this lecture and also dedicated this paper to this finest mind of constitutional jurisprudence.

Mr. Billah in the introduction of paper delves into the discussion of history of forming of de jure government i.e., ‘Mujibnagar Government’ and the adoption of ‘Proclamation of Independence’ 5

of Bangladesh on April 10, 1971 which got retrospective effect from March 26, 1971, the very day on which father of the nation Bangabandhu Sheikh Mujibur Rahman declared the independence of Bangladesh on the face of Pakistani military’s crackdown. He also delineated the significance of this Proclamation as it addressed legitimacy question of Bangladesh’s emergence and shaped the Bangladesh’s constitutional jurisprudence.

While discussing the significance of this instrument i.e., the Proclamation, the keynote speaker adorned his paper in three broad parts and showed that how Bangladesh put its contribution to the development of international law relating to declaration of independence, right to self- determination and state recognition. In the first part of his paper, Mr. Billah discussed the debate in international law over the years relating to the contentious legality issue of the Universal Declaration of Independence (UDI) and substantiated how the Proclamation of Independence as UDI would have passed the legality test if it were challenged by Pakistan. The presenter quoted Professor Rafiqul Islam in this regard that the success of Bangladesh revolution was a parameter of its validity. Mr. Billah found the cession of Kosovo from Serbia analogous to Bangladesh’s UDI. The International Court of Justice while examining the legality of declaration of independence said in its advisory opinion that Kosovo did not violate international law by its declaration and the court in this regard emphasised about the authority of the person declaring independence. By this analogy, the Bangladesh’s proclamation satisfied the test for it was proclaimed by the ‘undisputed leader of 7 million people of Bangladesh’ and approved by the government constituted of people’s elected representatives. Thus, Dr. Billah continued, the Bangladesh’s Proclamation was a trendsetter for the study of UDI law, where a new member of the family of the nations after duly declaring its independence promised to the international community that they will obey the principles of the UN charter.

The author, later, discussed the objections from the international community which questions the legality of self-determination by Bangladesh. There were mainly two objections: 1) the Bengalis did not fulfil the criteria of being ‘people’ in the eye of international law; and 2) as the law of self-determination only applicable to people under a colonial setting, Bangladesh cannot justify its claim in this regard as it was not in ‘colonial’ situation. In Dr. Billah’s opinion the Proclamation of Independence of Bangladesh responded to those objections by highlighting the compelling reasons of Bangladesh i.e., claim to ‘freely determine its political status’ and ‘pursue its economic, social, and cultural development’. Besides, the subsequent study by Subrata Roy Chowdhury in his book “The Genesis of Bangladesh” and other jurists’ studies have substantiated that the ‘Pakistani regime’ was akin to ‘colonial rule’ for the Bengali people. At the end of first part of his paper, the keynote presenter also described elaborately with references the contribution of Proclamation along with Tajuddin’s statement toward world community on 17th April 1971 and India’s balancing approach in recognizing Bangladesh, which helped in acceleration of worldwide recognition to Bangladesh as a sovereign state.

In the 2nd part of the paper, Dr. Masum Billah successfully substantiated the nexus between the Constitutional law of Bangladesh and the Proclamation of Independence as well as its 6

significance in shaping domestic polity in two ways, namely- a) its role in shaping our constitutional image; and b) its importance as a source of inspiration and historical rejuvenation. He mentioned that having the status of our first Constitution, it served the need of national life for the war period as well as the period soon after the independence until our present Constitution came into force on December 16, 1972. By referring a number cases [such as Fazlul Hoque and others v State (1973), Suranjit Gupta v Election Tribunal Sylhet (1981), Mullick Brothers v Income Tax Officer and Another (1979), Dhulichand Omraolal v Bangladesh (1981), Anwar Hossain Chowdhury v Bangladesh (1989) etc.], the keynote presenter of this paper showed that the Proclamation was used by the higher judiciary even after 16th December, 1972 to settle some important transitory law questions. In Anwar Hossain v Bangladesh (1989) [popularly known as 8th Amendment case] where the constitutionality of 8th Amendment relating to splitting the HCD into six parts was raised before the Court, Barrister M. Amir-Ul Islam heavily argued the interpretive horizon of the Proclamation and drew attention of the Court to the fundamental norms of Government (unitary character of the state, equality, social justice, humanity, sovereignty) in the light of the Proclamation and submitted that these are the “birth- jacket” of the Constitution. BH Chowdhury CJ among others had endorsed the submission by Barrister M. Amir-Ul Islam and held that the Proclamation was the genesis of Bangladesh Constitution. However, after a close reading of some leading cases, Mr. Billah thinks that Bangladesh judiciary is yet to develop a concerted approach in interpreting the Constitution with reference to the Proclamation of Independence.

In the last part of his presentation, Dr. Billah delineated the relevance of the Proclamation in re- invigorating the spirit of the Liberation War of Bangladesh and its significance in Nation- building. In his view, Nation-building though theorised as a structural process largely related to industrialisation, urbanisation and social mobilisation at its face, however it implies the construction of national identity at its core. From that end, the main significance of the proclamation is its unifying force in bringing our nation under the ideological teachings of our liberation war. In order to uphold our Bengali identity, establish social harmony, respect cultural diversity, the Proclamation will always have transcendental appeal. The second meaning of the Proclamation, according to Dr. Billah, is to dispel the distorted and decayed part of our constitutional journey that is- martial law administrators’ regime. In order to vindicate political objectives by the martial law administrators, this document was even kept out of our constitutional framework for long time. Mr. Billah also emphasised on the educative value of the Proclamation of Independence and said that its value did not cease by adoption of the present Constitution, rather it has been a part of the Constitution in a “living tree” way to indicate our persistent growth and continuity. In this regard, the keynote presenter quoted Dr. Mizanur Rahman who had said once in a summer school session that even if there is no Constitution for us from tomorrow, the Proclamation shall stand there to show us the path of light the way it did to the nation in 1971. 7

In conclusion, Dr. Masum Billah said that most international law literatures relating to Bangladesh’s independence discuss the issues without properly referring to the Proclamation of Independence. He further opined that its international study can bring to light new implications for the law of UDI, self-determination and statehood. The Proclamation, in his view, offers useful clues in understanding the constitutional principles as far as our constitutional development is concerned.

Comments by the Designated Discussants:

Mr. Ajay Dasgupta, Ekushey Padak awardee eminent journalist as one of the panel discussants of the lecture made some valuable comments on the keynote paper and he thanked Dr. Billah for preparing such an informative and brilliant paper. Mr. Dasgupta also shared his thoughts on the proclamation of independence with the listeners by saying, “50 Years back on this day (10 April, 1971) by adopting this very constitution the first ever government of Bangladesh was formed giving life to our dreams and expectations of hundreds years.” He further added, he believes that more research works should be conducted on these matters as this will help to represent to the whole world the contributions of the Bangali people especially of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman, our 71’s Liberation War and also this Proclamation of Independence. He also encouraged young Bangladeshi researchers to work on different important topics related to our war of independence and suggested funding and facilitating research works at world ranked universities on similar topics by Bangladeshi government and organisations, to produce world class research papers by engaging research scholars from home and abroad, marking the fifty years of Independence of Bangladesh as well as the birth centenary of Bangabandu. 8

Mr. Dasgupta shared his real life experience during 1971 Liberation War as a young freedom fighter. He also took the pride of witnessing the historic events that lead to creation of the first Constitution and of the first government of the Independent Bangladesh. He agreed with the keynote speaker that there was no doubt as to the legality of the first government of Bangladesh as it was supported by majority members of the National Assembly of Pakistan but he also pointed out that legality, was not the only thing required to form a government. Effective control, unified force, well thought planning and strong leadership were must. From the 1st March to 25th March effective control was exercised under the strong leadership of Bangabandhu. Every administrative division, every member the of law enforcement agencies were working according to the direction given from the house no 677 of Dhanmondi 32 till the arrest of Bangabandhu at midnight on March 25, 1971. Though genocide could not be prevented due to lack of arms, we managed to overcome that lacking within a short period of time. Later on Mr. Tajuddin Ahmed and Barrister Amir-Ul Islam manage to travel to Delhi and gain the support of the Government of India being Bangabandhu’s close aide. And all these helped the leaders to successfully form a government within this short period despite the obstacles like mass killings, destruction and unrest that continued from 25th to 27th March even after enforcement of curfew on 27th march, 1971. Moreover, the creation of an internationally recognised legal instrument like Proclamation of Independence bears the evidence of how strong willed the leaders and the war heroes were at that time. He further added, a fully fledged and advanced radio station like “Shadhin Bangla Betar Kendro” was established within two months only. Even the draft of the Planning Commission was made during the continuance of the liberation war. The 10th April government from the very start of the year trained and armed thousands of freedom fighters and sent them to Bangladesh and by this we became able to fight and defeat the Pakistani invading forces. Mr. Dasgupta concluded his discussion by referring to a statement made by Lieutenant General J.F.R Jacob who played a significant role during the liberation war of Bangladesh. General Jacob once said, during training of the freedom fighters when they were asked what courage is? They used 82-eর বাংলােদশ to strongly reply “ ” (71’s Bangladesh). 9

Prof Abul Barkat, President, Bangladesh Economic Association (BEA), as another panel discussant, started his discourse by thanking BILIA for organising the lecture. He also thanked the keynote speaker for his article. Prof. Barkat in his comments raised few questions showing the disparity between the 71’s Bangladesh and the present Bangladesh. He asked if the then Bangladesh was another name of courage so what about now? He also raised question on the political culture normalising war criminals becoming part of government during different times in the political history. He also pointed out conflicts of information provided in different documents and books that are often considered authentic source of Bangladesh’s history. He shared a brief analysis on the Proclamation of Independence saying it consists of nine “Whereas” which signifies reasons and a single, “In order to” which signifies the aim and that is freedom. Equality, human dignity and social justice are the main components of freedom. And our next constitution was adopted on basis of the same belief. He addressed this two page document as an unparallel instrument. He believes it to be on different level from all other highly referred constitutional documents such as the Magna-Carta and the Constitution of Athens. He also claimed the Proclamation of Independence of Bangladesh to be more appropriate than United State’s Declaration of Independence showing the difference between the terms “Declaration” and “Proclamation” from linguistic point of view. He further added that US’s constitution though aimed to end slavery, brought capitalism instead. He addressed our first ever constitution to be most unique and referred Barrister Amir-Ul Islam as the creator of this uniqueness who drafted it under the instruction of Bangabandhu. After its formation constituent assembly was given four responsibilities, i.e. drafting Proclamation of Independence, forming a government on its basis, conducting liberation war and enactment of constitution. For the purpose of comparison, James Madison and Aristotle faced same problem, they both wanted democracy, but they believed that if democracy is given all the state properties would be owned by common people. The solutions reached by them were different. Aristotle thought of creating middle class section. On the other 10

hand Madison rather chose to create the rich class and introduced the concept of protecting private ownership. Prof. Barkat supported Aristotle’s decision here and said if Madison-Aristotle and Amir-Ul Islam-Bangabandhu are compared, among them Amir-Ul Islam-Bangabandhu was right as they chose to keep socialism. Though they added democracy to it, as Prof. Barkat beliefs socialism doesn’t need democracy. They further added secularism and that Prof. Barkat thinks it to be a right decision as Pakistan was created on the basis of religion and we followed the opposite ideology. According to Prof. Barkat adding Nationalism was not a good decision as there are many other nationals than Bangalees in Bangladesh. Prof. Barkat concluded his discussion by suggesting bringing these few but necessary changes to our existing Constitution.

Open Floor Discussion:

Kazi Arifuzzaman, Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs greeted all the participants and the organisers and expressed his heartfelt gratitude to the Keynote speaker Dr. S M Masum Billah for presenting such an informative paper. Mr. Arifuzzaman made some important remarks and appreciated the approach of Mr. Billah for rightly bringing up national and International legal norms showing the significance of Proclamation of Independence, historical incidents, concepts of self determination, formation of government, and other crucial and relevant matters in his presentation. Mr. Arifuzzaman concluded his discussion by saying the Proclamation of Independence is the genesis of the Constitution and the Mujib Nagar Government was not a government in exile, it was in fact the first government of Bangladesh. He also expressed his respect to the martyrs of the liberation war as well as the national leaders who dedicated themselves for the liberation of Bangladesh. 11

Barrister Tania Amir at first thanked Prof. Dr. Mizanur Rahman, the honorable chair Barrister Amir-Ul Islam and special guests. Ms. Amir highlighted few points from the overall discussion held. First point was, though it was mentioned in many publications that Mr. Rehman Sobhan helped in drafting the Proclamation of Independence, Ms. Amir thinks it to be wrong as Mr. Sobhan himself denied such claim. Second point was, there was no formal brief or instruction to be followed when Mr. Tajuddin Ahmed and Barrister Amir-Ul Islam left Dhanmondi 32 and they were unsure of what to do they were informed that Bangabandhu would not be coming to underground and escape. When Mr, Tajuddin Ahmed asked how they would form government? Barrsister Amir replied as they already had the support of seven crore people and a de jure government existing from March 1, 1971, under the leadership of Bangabandhu and four national leaders, consisting of the elected representatives. So it was not only a de jure government, it was a de facto government as well; rather, Pakistani military force was the illegitimate one. As there was already a de-facto, de-jure and a legitimate government, no new government required to be formed; the existing would continue. On that point when they reached Kushtia, message was sent to border, and in reply they received permission but demanded they would not cross borders as refugees but as representatives of an Independent State’s government and thus they must be given protocol and guard of honour as required. As this question was formulated the answer was given by Prime Minister Indira Gandhi. After reaching India few things were made clear. Firstly, the war would be Bangladesh’s liberation war only, not Indo-Pak war. Secondly, India would support Bangladesh as co-equals. Thirdly, Indira Gandhi would not interfere into the internal matters of Pakistan. Being agreed upon these points, decision was made that a Proclamation of Independence must be drafted and Shrimati Gandhi would hold the counterpart. Ms. Amir further added that there are four significance of the Proclamation of Independence, firstly it is the birth certificate of Bangladesh, secondly, it was the first constitution of Bangladesh, thirdly, by this the first government of Bangladesh was formed which continued till the next general election on 1973, and finally, it was the first legal instrument, unlike a constitution that is subject to changes. Ms. Amir concluded her remarks by claiming that, Bangladesh is a very unique state, as we are the only people on this planet that 12

successfully exercised the right of self-determination and we are Muslim majority people giving our self a constitution based on secular democracy and human dignity which is unheard of.

Barrister Amir-Ul Islam also shared some of his thoughts and experiences during the open floor discussion session. He explained how the thought of drafting the Proclamation crossed his mind. He said when he and Tajuddin Ahmed returned from Delhi and meet with other young leaders like Sheikh Fazlul Haque Mani, question was raised on the rationality of forming of a government when the nation is on the verge of war. Barrister Amir then replied, as we are working and negotiating with Indian government we need a government, as it is a government that can talk with another government rather than a revolutionary council having no constitutional basis and recognition. He further added that international covenants also support the formation of government by elected people. By this he became able to get support of the senior leaders and thus all leaders reached to an agreement. And after that he started drafting the Proclamation by arranging all the events that took place chronologically without resorting to any convention or legal instrument. Regarding the conflict of information in various published documents on Mr. Rehman Sobhan’s participation in the drafting of the Proclamation Barrister Amir cleared up the confusion saying it was the speech that was prepared to be delivered by Mr. Tajuddin Ahmed as the prime minister on March 17, 1971 in front of the journalists from all over the world, that Mr. Rehman Sobhan helped to draft not the Proclamation of Independence. The Proclamation of Independence was drafted single handedly within a single night by Barrister Amir-Ul Islam.

Concluding Speech:

The Chair of the lecture Barrister Amir-Ul Islam, Senior Advocate, Bangladesh Supreme Court and the Chairman, Bangladesh Institute of Law and International Affairs made his concluding remarks by thanking friends and academics who have been working with BILIA and said BILIA takes pride for taking initiative and organising a programme on such an important topic. Barrsiter Amir also thanked the keynote speaker for making a comparative analysis between Bangladesh’s Proclamation of Independence and United States’ Declaration of Independence and highlighting the unique aspects of the Proclamation of Independents. He also mentioned another positive side of the lecture and that is it helped to bring up many significant historical incidents from the Pakistan era which would help the participants to unfold some rarely discussed yet striking events from history. Barrister Amir also encouraged young researchers to do elaborate research and write papers on these topics. He concluded by congratulating Director of BILIA, Prof. Dr. Mizanur Rahman, for organising such a wonderful programme and hoped that more lectures like this will be continued to be organised by BILIA in future.

Appreciation:

Professor Dr. Mizanur Rahman, Director, Bangladesh Institute of Law and International Affairs (BILIA) expressed his wholehearted gratefulness to the Keynote Speaker Dr. S M Masum Billah and the designated discusants Ajay Dasgupta and Prof. Dr. Abul Barkat. He also announced that BILIA will organise lectures as a part of a series every month celebrating the 50 years of independence and he hoped to get similar response from the participants on the upcoming events as well.

Distinguished Guests and Participants:

The lecture was made lively by the active participation of the students, academicians, lawyers and jurists, government stake-holders, diplomats and media persons. Many honorable guests also attended the lecture including Mr. Md. Tauhid Hossain, Former Secretary, Ministry of Foreign Affairs, Prof Dr. Lailufar Yasmin, Prof. Dr. Md. Rahmat Ullah and Prof. Dr. Ridwanul Haque. In total around 118 people attended the lecture virtually from around the World.

The event is covered by Muhammad Zubair and Sumaiya Sarwat, both working as Research Assistant (Law) at BILIA.