April 10, 1971, is one of the most significant days in the history of Bangladesh. On that day, Bangladesh adopted the “proclamation of independence” (POI). This document single-handedly turned the war of liberation from a secessionist movement to a lawful claim for self-declaration.
Interestingly, there are few states in the world with a proclamation or declaration of independence. The USA, France, and Bangladesh are some notable ones. However, the difference between Bangladesh’s POI and the declaration of USA or France is that those two were just mere declarations of independence, whereas our POI was not only a mere declaration but also the first constitution of Bangladesh.
Now there often remain some questions regarding this document. Firstly, whether POI is a legal document under international law or not. Secondly, whether this document can be called as the “first constitution” of Bangladesh or not.
A bit of history
On March 26, 1971, Bangabandhu Sheikh Mujibur Rahman declared the independence of Bangladesh. Later on April 10 of the same year, the provisional government of Bangladesh or the “Mujibnagar government” which comprised the top leaders of Awami League, issued a proclamation on the basis of the declaration previously made by Bangabandhu. The document was drafted by Barrister M Amir-Ul-Islam.
The POI functioned retroactively and it was said to be in effect from March 26, 1971. With this proclamation a new country, the “People’s Republic of Bangladesh” was born. This document bears many significant features but the most important is addressing the question over the legitimacy of Bangladesh’s independence. In this regard, the document clearly portrays the legitimacy of our independence.
Under international law
Now the question comes whether a POI is a legally valid document under international law or not. To answer this question, the landmark opinion given by the International Court of Justice (ICJ) on the issue of declaration of independence by Kosovo in the exercise of self-determination is worth mentioning. Kosovo was also questioned over the legality of its declaration of independence. ICJ opined that Kosovo didn’t violate any international law by declaring independence. The court reasoned that as the declaration was issued by “proper government” it is legal. Bangladesh’s proclamation also satisfies this opinion. It was proclaimed by the undisputed leaders of that time. It was also endorsed by the elected Bengali members from Pakistan National Assembly and East Pakistan Provincial Assembly.
Moreover, according to Dr SM Masum Billah, the proclamation is justified for at least four other significant reasons. First, it demonstrated the occurrence of international crimes by the Pakistani military. Second, it launched the legal personality of Bangladesh. Third, it created a legitimate government to conduct the war. And finally, it showed Bangladesh’s willingness to comply with UN obligations.
It created the entire legal framework for operating in the war and the functions of the state
Not only this, in common article 1, “ICPR” and “ICESCR” also have given validity to the right to self-determination. As the declaration or proclamation occurs in exercise of right to self-determination, these two international instruments can be said to accept proclamations of independence as well. Therefore, from these arguments we can say that POI is a legal document under international law.
The function of a document
Many people claim that this document is just a mere declaration; some say that this document is just an ordinary law and not a constitution. To this end, the first thing to be understood is, to become an official constitution of a state, a document need not to bear the word “constitution” in it.
The Proclamation of Bangladesh can be regarded as the Constitution of Bangladesh for many reasons. The main function of a constitution is to run the state. More precisely, the function of a constitution is to run the organs of the state. Now, if we carefully look at our POI it gives a very clear instruction on how the organs of the state would be operated. The role of president and legislative bodies were very well laid out in this document.
This document was also endorsed by the elected Bengali representatives from the national and provincial assembly of Pakistan. Therefore, this POI was an expression of the people’s will. If we go through paragraph 10 of the proclamation, we can see the lines, “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 constituted ourselves into a constituent assembly.” These lines clearly demonstrate that the document endorsed by these representatives by the will of the people is none other than the supreme law of the state. And so it worked as a substitute tool for the constitution as well.
It is clear that the “Proclamation of Independence” is a very significant document and a major part of our nation’s history. It helped to create international recognition for the Liberation War of Bangladesh. It created the entire legal framework for operating in the war and the functions of the state. So now the conclusion can be drawn that the POI is a valid document under international law and it is indeed the first ever constitution of Bangladesh.
Paramita Bhattacharyya is a student of law & justice, Jahangirnagar University.
