The Proclamation of Independence: The First Constitution of Bangladesh

 Tanha Tanzia
(LLB 3^rd Year, Faculty of Law, University of Dhaka)

Bangladesh emerged as an independent sovereign state on 26 March 1971. From the date of its birth, Bangladesh was regulated by a Constitution in a legal sense. That Constitution is the Proclamation of Independence and it has had immense significance in constituting Bangladesh as an independent nation in the eyes of international law. This essay will focus on the context and significance of the Proclamation of Independence.

The Proclamation of Independence acted as an interim Constitution before the Constitution of the Peoples Republic of Bangladesh 1972, which was enacted on 4 November 1972 and came into force on 16 December 1972. The Proclamation was enacted by the Constituent Assembly of Bangladesh formed by the elected representatives from the elections held on 7 December 1970 to 17 January 1971. Even though the Proclamation of Independence was adopted on 10 April 1971, it has been given a retrospective effect and hence it came into effect on 26 March 1971 i.e. the date of the emergence of Bangladesh.

Firstly, the significance of the Proclamation of Independence is that it confirmed the declaration of independence made by Bangabandhu Sheikh Mujibur Rahman and constituted Bangladesh as a sovereign People’s Republic. In the eyes of international law, such a declaration is referred to as a unilateral declaration of independence (UDI). This is a well-recognized method for establishing a country as decided by the judgment of the International Court of Justice in determining the legality of the declaration of independence made by Kosovo. It is also to be noted that the Proclamation of Independence specifically mentions that the declaration was made in due fulfillment of the right to self-determination of the people of Bangladesh. The people’s right of self-determination is recognized by the International Bill of Human Rights (consisting of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights) and hence legal in international law. Bangladesh is the first country in the history of the world to exercise this right of self-determination in a non-colonial setup.

Secondly, The Proclamation of Independence provides a political background to the events leading to the declaration of independence in short and concise words. The description highlights the establishment of the Constituent Assembly through a free election and the illegal activities of the Pakistan authority in delaying the Assembly from performing its functions. In addition, it also provides justifications for why this declaration of independence was necessary for protecting the rights of the people of Bangladesh. The justifications mention the unjust and treacherous war which was declared by the Pakistan Authority and how the declaration was a way of self-defense against this war. Moreover, it was necessary for the people of Bangladesh to defend the honor and integrity of Bangladesh as urged by Bangabandhu Sheikh Mujibur Rahman. The Proclamation of Independence also mentioned the horrendous acts of genocide and torture committed by the Pakistan authority against innocent civilians of Bangladesh during the war. It stated that it was impossible for the elected representatives to meet and frame a constitution and so there was no other way. The declaration of Independence was the last resort for the people of Bangladesh to survive this unjust war.

Thirdly, the Proclamation of Bangladesh included provisions that elevated the status of this legal document as the first constitution of Bangladesh. The reasonings are found within the Proclamation where it was stated that the elected representatives formed a Constituent Assembly being honor bound by the mandate given by the people of Bangladesh. So, the Proclamation of Independence was enacted by the representatives authorized to create a constitution. It also established the Constituent Assembly as the first official legal body of Bangladesh. It declared and constituted Bangladesh as a People’s Republic for ensuring equality, human dignity, and social justice for the people of Bangladesh. It cemented the foundation of Bangladesh as an independent nation in the international sphere. The Proclamation of Independence further contained provisions regarding the powers and functions of different organs of the newly founded state in the last few paragraphs. It created a government by announcing Bangabandhu Sheikh Mujibur Rahman as the President and Syed Nazrul Islam as the Vice-President. It appointed the President as the Supreme Commander of the Armed Forces and gave him authority to exercise all executive and legislative powers. He also had powers to appoint Ministers, levy taxes, and do all other things necessary to give the people of Bangladesh an orderly and just Government. Therefore, through all these powers the Proclamation of Independence covered the functions of the three organs of the state, which are the Executive, the Legislation, and the Judiciary.

Lastly, the Proclamation also aimed to uphold the international duties and obligations and abide by the United Nations Charter. So, it can be said with utmost certainty that the Proclamation of Independence is rightfully the first ever Constitution of the People’s Republic of Bangladesh.

However, it is a matter of sorrow that the Proclamation of Independence despite being a document of such legal importance did not receive the recognition it deserves in both the national and international sphere. The status of the Proclamation of Independence as the first Constitution of Bangladesh is unknown to many, even among the legal minds of the nation. In addition, there is some undue political debate regarding the status of the Proclamation as the Constitution for which there has not been enough study on this document of such historical importance.

The Proclamation of Independence has been placed in the present Constitution of Bangladesh in the seventh schedule under Article 150 sub-section 2 where its status has been demeaned by describing it as an “instrument of independence and the struggle of freedom of Bangladesh” and has been deemed as a transitional and temporary provision. The Proclamation of Independence is in its own right a Constitution but due to such scarcity of recognition as well as discussion regarding this; it has remained in the dark.

The Government of Bangladesh should aim to bring the significance as well as the unique status of the Proclamation of Independence into light and find ways to dispel all the misleading views regarding the establishment of Bangladesh through this legal document of grave importance. In addition, the Proclamation of Independence should be brought in all the international law literature which discusses the emergence of Bangladesh as an independent nation.