Untold Facts

1972 Constitution: Hurdles for Reverting Back to in 2009

The Prime Minister (P.M.) Sheikh Hasina on the 4th November stated that her Government would revert back to the 1972 Constitution subject to being careful about the ‘touchy issue’ (SPORSHOKATOR BISHOY). She did not elaborate the touchy issue. But one lawyer of her own shade has given some elaboration of the issue indicating about religious matters, particularly relevant to Islam, that may be taken as correct. The other renowned lawyer and known to be the main person for framing the Constitution in 1972, Dr Kamal Hossain though stated that it would not be possible to go back to the 1972 Constitution but at the same breath he has stated that the 5th Amendment must be abandoned. That meant in essence the same thing or abandoning Islam’s existing place in the Constitution by virtue of the force of the 5th Amendment. The statement of the P.M. was nothing new but in fact was a reiteration of her intention to do just in the beginning of her second term of office in January 2009, if not before. Albeit, the Government can easily do so as they have over two third brute majority in the current Parliament. But the clue of her being careful about touchy matter raised some other more touchy questions that need be examined through.

The Initial Flaws
The initial flaws had several dimensions. One, the Proclamation of Independence in ‘Mujibnagar’ in mid April 1971 presumed certain facts that did not lawfully exist. The 76 or so members present there earlier elected by the people for the occasion lacked legal legitimacy for they were minority of the all elected members numbering 169, and further that they were elected under the LFO (Legal Framework Order) to frame the Constitution of Pakistan and not for Bangladesh. The declaration so made as well was not drafted by any body of the elected East Pakistan member but actually in Calcutta by some expert of Delhi bureaucracy that was only read by Mr. Yusuf Ali, an elected member. That was as such the clever Chanakyan conspiracy they’re working in high secrecy.

Though the document was given credence to the leader of East Pakistan Sheikh Mujib that in fact remained outside his knowledge, as he was in custody since the 25th March 1971 midnight, according to some, in the pleasant enjoyment of the costly British ‘Erinmore Tobacco’ smoking in his pipe in the Mianwali prison in Pakistan just as in Dhaka his family members had protection and well looked after by Karachi capitalist Haroon’s monthly allowance of Rupees 10,000. His concurrence of the declaration of independence remained thus far fetched. So was also was Dr. Kamal’s Karachi stay during the period enjoying his father in law’s home care, both were elected members of the Pakistan federal parliament.

Flaws in the Constitution Making
The basis of the Constitution presumed four basic principles- Bengali Nationalism, Democracy, Secularism and Socialism. The presumption further took that the war of independence had those four aspirations in view of the people. Were these presumptions beyond question? Were not these four issues imposed from certain corner of vested interests? Was the party Awami League then in power at all a party of the socialists? Were they secularists? Did they at all hold pure Bengali nationalism of all Bengalis? Were all the freedom fighters unanimous on the four principles during the independence war of 1971? Had there been any referendum of the people on those four basic principles? There is hardly any scope to get affirmative answers to these validly crucial questions. The answers are certain to be in the negative.

The 25th March 71 Army Crackdown and the Moral Question of Independence
There was a moral question of proclamation of independence just after the 25th March federal army - crack down on the civilian people. Some of the elected representatives might have taken the issue to go for the proclamation on their own. But in the absence and nothing of nod in the form of UDI (Unilateral Declaration of Independence) of the leader number one the matter remained de jure illegitimate all throughout until in early 1974 when the lawful authority of Pakistan recognized Bangladesh as an independent country de facto seceded from the Federal Pakistan in the aftermath of the 1971 war.

India’s Historic Chanakyan Role
India’s all out help and finally armed intervention in the 1971 war made things easier for independence to come to reality in about nine months. But the misfortune took over Bangladesh through the armed intervention. First, the war took the ultimate shape of India-Pakistan war of December 1971 in the end result that Pakistan Army Eastern Command Chief Lt. General Niazi surrendered to the Indian Eastern Theatre Command General Arora. Though the 16th December surrender document euphemistically stated the name of Bangladesh as well there but none, much less the Chief of the Bangladesh Army, was taken in to sign in the document; not even the Chief General Osmani had been allowed to be present there in the historic ceremony. Thus Bangladesh not only turned into virtually a protectorate of victorious India but also went under the direct administration of Delhi, having had set up here, in fact a puppet government controlled by Indian senior bureaucrats like D P Dhar, P N Haskar etc and also of the Indian Central Intelligence Agency R&AW’s senior persons like General Oban etc.

Misfortunes
It’s true that Indian army was withdrawn from Bangladesh territory in March 1972, some say on Mujib’s insistence but that was a sort of replacement right then with the 25-year treaty of total subservience of Bangladesh to Delhi (Articles 8, 9 and 10) that was in fact again a sort of continuum of Seven Point undertaking given to Delhi by the P.M. of the 1971 Exile Government Tajuddin Ahmad (Oli Ahad, Jatiya Rajniti 1945-75, Dhaka, 1975, p.450) before India came directly to intervene in the war. Persons interested in further truth of history would find that the 12 point treaty had not only exactly the 12 point of undertakings Mir Zafar Ali Khan of Bengal yielded to the East India Company’s Robert Clive in the mid eighteenth century but also that the three articles had essentially what in the Mirzar’s undertaking had in the promise number one, ‘The enemies of the English, be they Indians or others, are my enemies’ (Charles Stuart, History of Bengal, 1912, London, pp.547-48). He did swear in the name of God in the month of Ramadan just few days before the battle of Palassey of 23 June 1757.

Other misfortunes followed in the Education Commission led by Dr. Khuda, a lifelong Congressite, being lackey of Delhi just as shuttling between Delhi and Dhaka in the same way of Dr. Kamal did for the Constitution. There were others for deliberately making Supplementary and the Complementary the economic planning between the two countries nothing but only to be destined to be absorbed ultimately into the bigger economy of India having 4,200 porous and vulnerable border turned immediately after 16th December ‘most friendly’ for the smugglers belonging about 95% of the party men in power. To secure those anti-independent goals, the national army was looked down upon and set to be lost in oblivion by replacing them with the unconstitutional so called Jatiya Rakhsi Bahini that again was planned and so controlled from Delhi by their most powerful Intelligence Agency, the R&AW.

Mujib’s Vacillations
A person of below average caliber and Sohrawardy’s ‘Illiterate Graduate’ (M.T. Hussain, Patriot- Traitor Question: Bangladesh Syndrome, Dhaka, 2006, pp. 18-26) demagogue moved more by heart than by head, Mujib though at times took to some opportunism but vacillated on critical issues between Bangladesh and India. Before his release from the custody in West Pakistan he promised to Pakistan President Bhutto for a ‘Confederation’ (Stanley Wolpert, Zulfi Bhutto of Pakistan, 1993, OUP, Delhi, p. 175) relation with that country that could be taken in conformity with his previous idea and hope as was well known that the Pakistan Army President Yahya Khan declared in public the Sheikh as the ‘Future Prime Minister of Pakistan’. Passing time as went on, he forgot about the earlier illusion and also gradually turned unhappy with Delhi. The evidence was found in his 30th October 1974 meeting with US Secretary of Henry Kissinger in Dhaka. He urged Kissinger not to make things for Bangladesh tied to India. Further than that he mentioned the 1971 war in Bangladesh as ‘Civil War’ (The Weekly Holiday, Dhaka, 6 March 2009) and not as anything else many use at liberty. At the same breath he also accused India for occupation of Bangladesh in 1971 terming the army as the ‘Occupation Force’ (Ibid). Why?
One may find some clue of the mind of Mujib in some other facts. According to the 1987 September 25 copy of the London based monthly Impact International, Mujib offered to his chief lawyer Brohi for giving him scope in the Pakistan media to speak to the people of East Pakistan in the early stage of the December war to resist the ‘Indian armed aggression’.

Historical Continuity
The aspirations of the people of Bangladesh/ East Pakistan/ East Bengal have to be rightly viewed in continuum of historical perspective that the four principles did fail to appreciate. The appreciation came about after the 1975 change of August by the patriots, committed and well-equipped freedom fighters as they finally won on the 7th November. That victory was practically materialized in the 5th Amendment of the Constitution adopted duly in the Parliament freely elected by the people and without undue Indian interference.

Quality of Constitution
The media friendly lawyer has suggested that the 1972 Constitution was the best one for Bangladesh. He further suggested that the present government implying possibly its brute majority could be harsh or stiff enough to re introduce that constitution. At what cost?

Unpleasant
The operation of the Constitution for three years (1972-74) had not been at all pleasant one for the people of Bangladesh but of oppression of the rulers unleashed on the common people except possibly for the few loyal cadres and opportunists of the king’s party. The self-made king as well abandoned the same so far as its democratic provisions were concerned and introduced instead one party BAKSAL’s dictatorship in January 1975.

Unwritten yet Efficient
The British model of parliamentary democracy Bangladesh and other sub-continental countries follow does not have any written constitution but only conventions, norms and usages based on Christian values and some other important acts like the Magna Charta, etc. Even so, the British democracy is still known to be the best so far as the citizen’s welfare is concerned. The main reason is that through centuries of uninterrupted practice the citizens are used to democratic culture ingrained in psychology. The social welfare for each and every common citizen ensured through equitable distribution of wealth and properties that the well-managed economy with imperial control has also contributed to efficient functioning of the democratic order.

Misfit
The 1972 Constitution was hardly been popular so far as the secular and socialist goals were concerned. Socialism though was a bit popular in early 1970’s; it faced almost natural death by the end of last century. The secularism as a way of life is in the air but nowhere in practice in any society, not even in the advanced West. They are all committed to Christian values. Britain’s Crown is in no way secular but essentially Anglican Christian. The society is based on Christian norms, conventions and usages underpinning the statecraft and so runs as there is no written constitution. In the USA apparently there is separation of church and state, but the society is so much Christian that 95% people believe in spiritualism (Barack Obama, Audacity of Hope, 2006, p.198). In Muslim psyche the goal for secularism is rather an anathema.

Bengali Nationalism Unfulfilled
The other goal of Bengali nationalism of the 1970s has also remained unmet in the last four decades of Bangladesh’s existence for the 40% or now nearly 80 million of the Bengali people residing around Bangladesh’s geographical border are citizens of India, another sovereign country, and they are unwilling to severe from Delhi and join Bangladesh with its nearly 150 million citizens though Bangladesh would love to have them as fellow citizens severed from Delhi’s sovereign control.

Better One
The existing Bangladesh constitution particularly embodying the Fifth Amendment and in operation for the last three decades that kept up high the values based on the belief of the 90% Muslim people, nothing in prejudice of other religious people, is certainly the better one than the 1972 Constitution that one High Court judge suggested in somewhat relevance as a matter better be considered ‘Past and Closed’.

Author: M.T. Hussain