Shadows of distorted history, disgraced constitutionalism

M. Shahidul Islam

History is not supportive of nations tainting their constitutions with distorted and controversial anecdotes. Every nation- state comes to existence through the combined struggle of the workers, peasants, soldiers, scientists and intellectuals. There are reasons why Plato had envisioned a nation- state with the philosophers at the helm of the affairs, soldiers as its defenders, and, the workers at the bottom wheeling the economy.

Our laws are not tuned to establishing a society based on the Platonic model, but our constitutional odyssey has been bumpy, painful and too divisive so far. Amidst yet another constitutional amendment (the 16th amendment) waiting to pounce on, we can only remind the governing elites that the edifice of history is not made of the pebbles of lies and deceit alone. Nor viable statecraft can be devised by alienating the philosophers, soldiers and the toiling workers.

Unnecessary controversial move
The purported 16th amendment seeks to empower the parliament with the teeth to impeach judges while, in 42 years, no law has been crafted to codify the methods of  appointing judges pursuant to Article 95(2)C of the constitution.  This latest move is unnecessary. It is also fundamentally flawed due to its inability to empower the parliamentarians to impeach any judge or other constitutional appointees unless the party in power has two third majorities in the parliament. Worst still, Article 70 (b) prevents floor crossing to enable likeminded lawmakers from other parties to vote in unison to make such an impeachment possible. In totality, there is no short or long term gains from this amendment except scaring the judges to cower under executive pressure under a virtual one party rule.
Above all, this amendment follows the 15th amendment of 2011 (Act No 14) which has literally mauled the constitution to the point of non-recognition. The supreme laws of the nation have already turned into a bundle of contradictions and distortions of history following the 15th amendment. The devastating ramifications of it on the judiciary notwithstanding, the Sixth Schedule (Article 150(2)) relating to the declaration of the country’s independence is based on a reported occurrence the credibility of which is not backed by conclusive or evident facts. It is immune from repeal pursuant to Article 7B.
The nation has been peppered with claims since 2009 that the March 7, 1971 speech by Sheikh Mujib contained a declaration of independence despite there being not a single word in the entire speech that could be interpreted as having explicitly declared independence. The nearest assertion found in that speech is: “The struggle this time is for emancipation; the struggle this time is for independence.” These words do not convey, ipso facto, the message of a declaration of independence, as did some other formal declarations subsequently. It’s not the same thing to say I will marry, and, I do. The former is an expression of intent while the latter entails irrevocability.

Declaration of independence
Yet, a reported declaration of Sheikh Mujib, which remained unknown to the public perhaps due to its lack of clarity and authenticity, now constitutes an integral structural premise of the constitution, and, it is immune from any repeal or amendment. The Sixth Schedule of the constitution reads:  “SIXTH SCHEDULE OF THE CONSTITUTION [Article 150(2)] DECLARATION OF INDEPENDENCE BY THE FATHER OF THE NATION, BANGABANDHU SHEIKH MUJIBUR RAHMAN SHORTLY AFTER MIDNIGHT OF 25TH  MARCH, i.e. EARLY HOURS OF 26TH MARCH, 1971.  This may be my last message, from today Bangladesh is independent. I call upon the people of Bangladesh wherever you might be and with whatever you have, to resist the army of occupation to the last. Your fight must go on until the last soldier of the Pakistan occupation army is expelled from the soil of Bangladesh and final victory is achieved. Sheikh Mujibur Rahman 26 March 1971”
There is no reason to express much qualms that Mujib might have said something like the above verbally to his confidants or the courtiers before being arrested that night. Yet, in the absence of any indisputable written evidence, such a claim ought not to have found a place in the structural bedrock of the nation’s constitution. Those who decided to make it an inviolable part of the constitution had rather belittled Sheikh Mujib’s other achievements as an undisputed political leader of Bangladesh’s liberation movement. More importantly, this claim never came to light in Mujib’s lifetime and the autobiography of Tajuddin Ahmed emphatically claimed that his (Tajuddin’s) attempt to get a declaration of independence signed by Mujib prior to Mujib’s arrest yielded no positive result.

Declassified U.S. documents
Declassified documents of the US Department of State (USDS) reveal much of the secrets relating to the power play in the run up to our war of independence. They show, following the cancellation on March 1 (1971) by Yahya Khan of the scheduled March 3 legislative assembly meeting, student leaders instantly reacted by creating the Shawadhin Bangla Kendriya Chhatra Sangram Parishad (SBKCSP) whose leaders – Nure Alam Siddiqi, Sahjahan Siraj, A.S.M. Abdur Rob and Abdul Quddus Makhan, et al – resolved to render collective leadership to the struggle for national independence. The words Shawadhin Bangla (independent Bengal) came to symbolize an independent Bangladesh since March 1. Student leaders, not Mujib, made that happen.
That dilemma too turned more protracted amidst unfolding political twists. Mujib, the elected leader of the people of East Pakistan, behaved in a cautious and politically correct manner and waited to ascend the throne of political power by virtue of being the leader of the majority of the parliamentarians (160 seats out 300) in the national assembly. Aware that President Yahya’s hinge of power lay in Washington, he even met on February 28 with the US Ambassador to Pakistan, Joseph Farland, and proposed to form a confederation with West Pakistan rather than seeking independence for Bangladesh.
Ambassador Farland informed Washington the same day about his detailed meeting with Mujib and said: “He (Mujib) had suggested a confederation between East and West Pakistan.”
On March 10, three days after the historic 7th March speech at the Race Course maidan, Mujib sent a secret message to Archor Blood, then US Consul General in Dhaka, and asked if the US would be willing to convey to President Yahya Khan that the Awami League was ready for talks. Under US pressure, Yahya despatched Wali Khan, leader of the NAP, and Mir Ghaus Bakhsh Bizenjo, to Dhaka to talk to Mujib.

Dialogue with Yahya
Wali Khan had a meeting with Mujib on March 14. According to available record of the meeting, Bizenjo asked Mujib whether he wanted to make a unilateral declaration of independence. Mujib became emotionally charged and said: “Who is asking whom not to break up Pakistan? You were associated with the Congress and you’re now telling me, who was a hardcore Muslim Leaguer and rendered sacrifices for the creation of Pakistan. What an irony!”
The mission of Khan and Bizenjo having focused on convincing Mujib to meet President Yahya, Mujib agreed. This brought Yahya to Dhaka on March 15 following which the SBKCSP felt disappointed and proclaimed: “Bangladesh was already independent and the Pakistan government had no right to rule.  Bangladesh would only obey orders from its chosen leader, Sheikh Mujibur Rahman.” SBKCSP also invited the citizens of Bangladesh to prepare for armed struggle.
The following day, March 16, Sheikh Mujib embarked upon a series of dialogue with President Yahya Khan, which continued intermittently until March 25. Bhutto arrived to Dhaka and joined the dialogue on March 20. By then, rebellion spread and the East Bengal regiment soldiers refused to fire on protesters.
Fighting between Pakistani and Bengali troops broke out in Gazipur and Joydebpur since March 19 while Mujib informed Bizenjo on March 24 to leave Dhaka, warning that the ‘army crackdown was only two days away.’ This proves Mujib was aware of the inevitable army crackdown although he was slightly wrong. One of the most atrocious military crackdowns of human history on unarmed civilians occurred within 24 hours, minutes past midnight on March 25.
A review of the declassified US documents further reveals that the US administration blamed ZA Bhutto for the disaster. Ironically, it was Bhutto who had released Mujib, unscathed, from captivity in Pakistan on January 8, 1972.

Bhasani and Zia
Meanwhile, three important events occurred on March 9 which further proved that Mujib was not the first to declare independence, for whatever reason. That day, the Chief Justice of the Dhaka High Court refused to administer the oath of office to Tikka Khan as the governor of East Pakistan; The Student League approved a declaration of independence and invited Sheikh Mujib to form a national government, which Mujib refused to comply, and; Maulana Bhashani and Ataur Rahman Khan declared independence at a mass meeting at Paltan Maidan. Bhashani also circulated a signed leaflet that had declared East Pakistan a sovereign nation.
On March 27, Major Ziaur Rahman of the East Bengal Regiment made a broadcast from the Swadhin Bangla Betar kendra at Kalurghat, Chittagong, that read: “I, Major Zia, Provisional Commander-in-Chief of the Bangladesh Liberation Army, hereby proclaim, on behalf of Sheikh Mujibur Rahman, the independence of Bangladesh. I also declare, we have already framed a sovereign, legal government under Sheikh Mujibur Rahman, which pledges to function as per law and the Constitution. The new democratic government is committed to a policy of non-alignment in international relations. It will seek friendship with all nations and strive for international peace. I appeal to all governments to mobilise public opinion in their respective countries against the brutal genocide in Bangladesh. The government under Sheikh Mujibur Rahman is sovereign legal Government of Bangladesh and is entitled to recognition from all democratic nations of the world.”
On March 30, Major Ziaur Rahman appealed once again from the Swadhin Bangla Betar kendra to the world community to come to the aid of the struggling people of Bangladesh and end the genocide that the Pakistani army had unleashed on innocent civilians. He said: “I once again request the United Nations and the big powers to intervene and physically come to our aid. Delay will mean massacre of additional millions.”

Provisional government
Finally, on April 10, the Provisional Government of Bangladesh proclaimed independence with these words: “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 constitute ourselves into a Constituent Assembly, and having held mutual consultations, and in order to ensure for the people of Bangladesh equality, human dignity and social justice, declare and constitute Bangladesh to be sovereign People’s Republic.”
Excepting the reported declaration of independence by Sheikh Mujib on March 26, all other declarations by the student leaders, Moulana Bhasani and Major Zia are well documented and incontrovertible. The induction into the constitution of only Mujib’s reported and controversial declaration had therefore undermined others on one hand, and distorted history on the other. It also had disgraced the constitution by making Mujib more controversial to those who had no pre-warning of the impending genocide from Mujib but had joined the war under his fiery inspiration.

Source: Weekly Holiday

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