Of 'struggle' and 'war': A humble dissent

Reviewing the views

Of 'struggle' and 'war': A humble dissent

M. Jashim Ali Chowdhury

Published in the Law and Our Rights, The Daily Star, March 27, 2010
Online: http://www.thedailystar.net/law/2010/03/04/views.htm

Mohammad Moin Uddin, an Assistant Professor of Law from Premier University Chittagong has come out with something new in our Preamble talk. The gist of his write-up in the last issue of Law and Our Rights, as it appeared to me, is that the substitution of 'war' in place of 'struggle' in the Preamble was right as per the 'grammatical construction' of the relevant phrase. To the author it was the correction of the mistake of 'inappropriate' use of a 'right word in a wrong place'. Bless my soul!

While impliedly supporting the anti-liberation aggression on the constitutional philosophy, he even mildly rebuked the framers of the 'well-thought-out constitution' for their poor drafting skill. The 'hypothesis' of Mr. Moin is that by using 'having proclaimed our Independence on the 26th day of March, 1971' before 'through a historic struggle for national liberation' the framers of constitution delimited the boundary of our liberation history within 9 months of 1971. This being so 'it makes sense that the change of 1977 was correct' because 'what happened after the proclamation of independence was though struggle in general, war in particular.' I'm simply thundered by such a silly outlook towards such a glorious revolution.

Is it only a 24 years' history?
To the author, 'The true spirit of our constitution is the spirit that ran through the minds and souls of our people from 1947 to 1971 in quest for a just constitution.' This, to me, is a poorly conceived idea ignoring the thousands years' search of the Banglaees for a nation state. It was the Baro Bhuiyans of Sonargaon who bought freedom from the Mughals for blood. It was the Bangalees who staged the first revolution against the British in 1760 soon after 1757 Plassey tragedy. Those under-armed but desperately courageous revolutions reached their culmination in 1971. Saying that the 1971 'war' was a result of mere political, economic and constitutional failure Pakistani rulers is a clear negation of the 'struggle' for Secularism, Socialism and Bangalee Nationalism which were not matters of some 24 years. The 1977 amendment for which the author stands did exactly this thing. It, while accepting a 'war' with Pakistani forces, completely changed those guiding principles of the 'struggle' into communalism and so called Bangladeshi nationalism, a complete reversal of the truth.

Did the framers 'inappropriately' use 'struggle'?
If the English text of the Preamble is considered, the 'grammatical construction' proposed by the writer holds no ground at all. In the English version the clause is 'having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation.' Here the presence of 'and' between the proclamation of independence and struggle for national liberation makes it clear that these two parts are separated by the disjunctive conjunction. These being separate, the first part must not affect or qualify the second one. Formal declaration of independence has been mentioned first to refer the 'immediate' justification while the prolonged 'historic struggle for national liberation' has been mentioned as the guiding philosophy behind the whole process.

The Bangla text of the Preamble, however, may provide some literal and prima facie foothold to the author's view. Here the conjunction 'and' is totally missing. So it may readily be claimed that by using 'historic struggle for national liberation' just after 'having proclaimed our independence', the framers of the constitution intended to refer 9 months of 1971. The point becomes stronger on the ground that in case of conflict between Bangla and English text the former shall prevail. Yet I request the writer to wait a bit more.

Intention is not to be deduced readily from a 'grammatical construction'. Doing so will be to forget that 'it is a constitution we are expounding'. 'Interpretation of constitutional principles is a matter of reasoned application of rational precepts to conditions of time and place', to borrow words from Dean Roscoe Pound. Constitution is to be interpreted on the basis of its overall spirit and scheme without caging the interpretation within the confines of the written words taken in isolation (Mahudul Islam, Constitutional Law of Bangladesh, p 29-30). Now leaving aside the English text, even the Bangla text of the Preamble looked upon as a whole will negate the writer's view.

If taken grammatically, the first paragraph of the Preamble would mean that we established the Independent Sovereign People's Republic of Bangladesh by proclaiming our independence and then by waging a nine-month 'war' for national liberation. But would it not strike at the very root of the Proclamation of Independence? Constitutionally speaking, for the establishment of the Independent Sovereign People's Republic of Bangladesh we did not wait for the 'war' to be concluded on December 16, 1971. It was established on the 26 March 1971 immediately upon the declaration of independence which was confirmed retrospectively on April 17, 1971 through a formal proclamation of independence. So it becomes logical that 'historic struggle for national liberation' was used in the first paragraph not merely to refer 9 months' physical war rather to denote the politico- philosophic foundation which supplied validity to the proclamation of independence itself.

Again, to arrive at his 'hypothesis' the writer totally overlooked the second paragraph of the Preamble in the original constitution. Here the framers mentioned the principles of socialism, secularism and nationalism which 'inspired our heroic people to dedicate themselves to…. the struggle for national liberation'. And here you shall not see the qualifying clause 'having proclaimed our independence'. Hence this 'struggle for national liberation' can never be construed to refer only 9 months of 1971. So should we say that the Preamble speaks of two different struggles (one limited and another wider) for national liberation? Only a shallow 'grammatical construction' can afford this.

The 1971 episode of the history: 'War' or 'Struggle'?
Even if for the sake of argument we accept that the struggle mentioned in the first paragraph of the Preamble is a limited one, it does not warrant terming the use of 'struggle' 'inappropriate'. Nor it is correct to claim that the 1971 episode of history 'though struggle in general, was war in particular'. Rather the opposite is pertinent. Though prima facie a war, it was a 'struggle' in reality. The 1971 was not a mere armed rebellion against any ruler. It was not a fight fought between two rival armies. It was a mass upsurge for the fulfillment of a thousands years' cherished dream a free homeland for Bangalees. It was not a 'war' for mere independence. It was a 'struggle' for a total emancipation of the people (liberation) from oppression. That is why the undisputed leader of 75 million people declares, “This time the 'struggle' is for liberation, this time the 'struggle' is for freedom.” That is why we adorn and distribute the credit of 1971 among each and every individual - who fought the 'war' in the field, who starved to feed the freedom fighters with the sole piece of bread available at home, who fled the neighborhood in fear of persecution, who sang in the refugee camps or in the streets of New York, who lobbied in the international plane or even who prayed to the Almighty for the freedom.

Here the writer completely ignored the terms 'liberation' and 'independence'. A struggle for 'liberation' has been changed into a war for 'independence'. What does 'independence' mean? It is the sovereignty meaning freedom from external interference. Liberation is not a mere freedom from foreign dominance; it means freedom from exploitation, poverty and hunger. So doesn't it explain that the term 'struggle' was appropriately used to give a wider dimension to the 1971 efforts for national 'liberation' while 'war' for national 'independence' was used to restrict it from every possible dimensions? Then why does the author consider 'war' to be a right term and hence support such a warrior's approach to 1971? On which side his allegiance lies?

Is the source of validity missing?
The writer professed a sort of arbitration as well. If that is to be complied with, we shall consume the 'war' in its present place and relocate the 'struggle' from its 'wrong place' to a right one by recording it in the first paragraph as 'an antecedent to and raison detre for, having proclaimed our independence'. It shall contain twenty four years' 'struggle' to indicate the source of validity of the constitution which the framers of the constitution 'failed to underscore'. Is Montesquieu looking at the foggy England from his sunny vineyard in Paris? As shown above the 'historic struggle for national liberation' mentioned in the original constitution covered the history of thousands years not of mere twenty four Pakistani years alone. Of course, the historic 'war for national independence' as it stands now unforgivably omits it. And if any one is to blame for this, it is the person causing the pro-Pakistani amendment, not the framers of the constitution.

Consuming the 'war' for national independence and inserting one or two sentences before that to accommodate the 'struggle' for national liberation would be a stance of neutrality over which even a Chief Adviser to the Non Party Caretaker Government would think thrice. If any amendment is needed, that is the revival of the original constitution in toto nothing else.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.

Negotiating Article 142(1A) for the 'Basic Structure'

Law vision

Negotiating Article 142(1A) for the 'Basic Structure'

M. Jashim Ali Chowdhury
Published in the The Star, Law and Our Rights, March 6, 2010 Issue. Available Online:
http://www.thedailystar.net/law/2010/03/01/index.htm

TO borrow words from Justice Mustafa Kamal, some provisions of the constitution are considered to be 'basic' while others may be termed as circumstantial. The constitutional lawyers and judges may discern some fundamental structural designs in a constitution as when an architect views a building. Call it basic structures or structural pillars or by whatever name they are there (Constitution: Trends and Issues, p 14). By now this fascinating doctrine of Basic Structure has become a vibrant tool of judicial activism to protect the constitutional edifice from ruination in hands of the invincible parliamentary super majority. The substance of the claim is that the structural pillars of the constitution cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by famous Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (8th) Amendment Act, 1988 establishing six permanent benches of the High Court Division outside Dhaka on the charge of destroying the unitary character of Republic, a basic structure of the Constitution as it was claimed.

Article 142(1A): The patent ills
Clause (1A) was inserted in Article 142 by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order no IV of 1978). It provided that the renovated and express mandate of the people through Referendum shall be required along side the 2/3 majority in the House to amend some designated provisions of the Constitution. Looking at the list of provisions specially designated therein (Preamble, Articles 8, 48, 56, 58, 80 or 92A) it prima facie appears that General Zia couldn't have trust enough on the servile Parliament to be 'established' through the Second Parliamentary Election. To perpetuate the already settled omnipotent presidency along with the philosophical distortion in the Preamble, he needed something like clause (1A). Hence, Advocate Mahmudul Islam put a sharp question mark over the legality of this clause being an extra-constitutional insertion (Constitutional Law of Bangladesh, p 394). Then it was Honorable Justice ABM Khairul Huq who unveiled the secrets:

“Addition of clause (1A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People's Republic of Bangladesh according to his own whims and caprices by his order…….... but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process” (The 5th Amendment Case 14 BLT (Spl) p199).

Article 142(1A): The latent cure
In spite of the patent ills in Clause 1(A), looked upon from a different angle, it may reveal a latent cure. Just consider the 4th Amendment to the Constitution. Many of us, including me, firmly believe that it was a right but much belated step. Yet this 4th Amendment has blemished Bangabandhu's glorious patriotism and devotion towards the cause of his countrymen to a considerable extent, we may like it or not. It provided a ready tool in the hands of the anti-liberation force to propagate against the Patriot. It was a Parliament elected in a multi-party-democracy that attempted to introduce a one party system. Theoretically it is always a good question to ask. Had the people mandated the parliament to destroy the very system under which it took birth? In 1975 there was no parliamentary supremacy in Bangladesh. Given the situation it might have been the wisest on the part of Bangabandhu to seek a fresh mandate from the people on his new political standing before starting the second revolution. I'm sure the people of this country would never turn back on him.

Now come to Article 142(1A). By requiring Referendum in certain cases, didn't it subconsciously put a clog on a parliamentary super-majority acting in an unaccountable fashion? We should not forget that this is a country where the winners habitually tend to do everything they wish until they are de-elected in the next election!

Article 142(1A) healing the dilemmas of 'Basic Structure'
The Basic Structure carries with it some inborn fogginess and controversies. In Golak Nath v. State of Punjab AIR 1967 SC 1643 the Indian Supreme Court candidly conceived the idea that there is a distinction between plenary legislative power and constituent power of parliament. Parliament's plenary legislative power is subject to judicial review while the constituent power is not. Hence the Court may invalidate a law but not a constitutional amendment. This again has been sharply rejected in Kehsavananda Bharati v. State of Kerala (1973) in India and Anwar Hossain Chowdhury v. Bangladesh (1989) in Bangladesh. Now the Court, the guardian of the Constitution, is not ready to leave the constitutional edifice vulnerable at the hands of the Parliament.

But should it not mean that some principles would be so permanently fixed to allow the dead rule the world from the grave? Do the ideologies of one generation bind the later? Then where to accommodate the supremacy of the people? What to do in case the people overwhelmingly support an amendment violating the basic structure? So many people in Bangladesh still believe that decentralization of the Supreme Court in 1988 was a right step! Here the judiciary not only trumps over the 'general will of the people' expressed through an elected legislature, but also over the 'absolute will of the people' on a particular issue. Moreover the Judiciary gets a free hand in defining 'basic structure' making the concept a fluctuating one and hence bad. The Judiciary may come out with new 'basic structures' whenever convenient. It is indeed the case in India.

Article 142(1A) nicely answers those dilemmas. In one sense Article 142(1A) provides a sort of constitutional recognition to the judicial claim of 'basic structure'. By this the Constitution itself recognizes that there are something which are 'basic' (B.H Chowdhury J in Anwar Hossain Case, Para 256) and these need higher protection than the bulk so that Parliament may not manipulate them in its whim and caprices. In the other sense, it cures the iron fist immutability of 'basic structures' by saying that basic structures are particularly hard to be amended but not un-amendable. Now inter-generational adaptation is reconciled with the need for stability. Again, the basic structures are concretized by specification in the Constitution itself.

Article 142 (1A) be reconsidered not camouflaged
No doubt Article 142(1A) is an illegal inclusion in the Constitution by an illegal authority through an illegal exercise of power. After the Appellate Division ruling on the 5th Amendment case it is now almost at the vanishing point. The Government is bound to re-print the Constitution deleting this, if Appellate Division so directs. But whatever motive the then military 'President' had in his mind, the Clause as it stands now may serve a very useful purpose of safeguarding constitutional fabric from the fanaticism of a winner-takes-all politics. The government is planning to consult the Law Commission on 5th Amendment issue. The Commission may seriously consider recommending adapted re-insertion of the gist of Article 142(1A) de novo by the incumbent Parliament.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.