Glimpses on Pre-constitutional Documents
S.M. Mohsin Ali
Many of us haven’t known about the first constitution
of Bangladesh. “The Proclamation of Independence “is the first constitution of
Bangladesh. During the continuance of liberation war, on tenth April, 1971,
this constitution was written and drafted. Although the person who was made
president and given all the powers including legislative and executive
authority was not present due to an illegal capture by the then Pakistani
government.
The first
constitution was given a force of Law through its own native authority.[1] Thus there is no
question as the validity of this document. Besides this, since the elected
representatives of 70’s election made the Proclamation; it reflected the will
of the people.[2]
One may think that how this Proclamation got international recognition. Actually, there is a provision in an international Treaty which says “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[3] And how did the people of Bangladesh recognize the Proclamation? We have said it earlier. [2nd Para last line]
The Features of “The Proclamation of
Independence “
The first work of the proclamation of Independence was
to confirm the declaration already made by Bangabandhu Sheikh Mujibur Rahman to declare and
constitute Bangladesh as a sovereign people’s republic.[4]
The Proclamation then made Bangabandhu Sheikh Mujibur Rahman President and Syed
Nazrul Islam as vice-president of the republic.[5]
The proclamation also declared that the president
shall be the supreme commander of all the armed forces of the republic [6]and
have all the executive and legislative powers of the republic[7]. Furthermore The president was also given the
authority to appoint a prime-minister and such other ministers as he considers
necessary [8], levy taxes and expend monies[9], summon and adjourn the constituent assembly[10]
and do all other things that may be necessary to give the people of
Bangladesh an orderly and just
government.[11]
In the event of there being no president, or president
unable to perform his duty for any reason whatsoever, the vice-president shall
have and exercise all the powers, duties and responsibilities conferred on the
president.[12]
The proclamation also abided by the rules of The
charter of the United Nations.[13]
Though the proclamation was made on 10th
April, 1971, it gave a retrospective effect and for the effect it would be
deemed to have come into effect from 26th day of March, 1971.[14]
From the above discussion, We have clearly understood
that the first constitution of our country vested all the powers including
legislative and executive power to the president Bangabandhu Sheikh Mujibur Rahman. And the first
government was a presidential form of government system.
Meanwhile, the Laws continuance enforcement order 1971
was passed by the acting president on 10th April, 1971. It also gave
retrospective effect and provided that “ all laws that were in force in
Bangladesh on 25th march, 1971, shall subject to the Proclamation
aforesaid continue to be so in force with such consequential changes as may be
necessary on account of the creation of the sovereign Independent state of
Bangladesh formed by the will of the people of Bangladesh.”
“ The president Bangabandhu Sheikh Mujibur Rahman arrived Dhaka after the Liberation War on 10th
January, 1971 and in the next day he promulgated “ The provisional
constitution of Bangladesh order,
The president’s legislative process was beyond the
scrutiny of any authority including parliament from the 16th
December 1971 till the constitution came into force on the 16th
December 1972. [16]
As Justice Mustafa Kamal said about it,
“Thus a bulk of Laws with
which the country is being governed today wasn’t made by parliament.” [17]
The president’s power wasn’t beyond question when he
turned the government into parliamentary form from presidential form by the
Provisional constitution of Bangladesh order, 1972. In the case of A.K.M
Fazlul Hoque vs. State 26 DLR (SC) 11, it was a crucial issue,” whether the
proclamation had invested the president designated by it with the power to make
a legislation affecting the system of government.”[18]
The issue was just answered in the way that “obviously,
the expression ‘ legislative
powers of the republic’ is of the widest amplitude and admits of no limitation.
The proclamation in our view empowered the president designated by it to make
any law or legal provisions, even of a constitutional nature.”[19]
Thus the learned judges found no contention in which
they could rely themselves on the matter of non-legal aspect of changing the
government form by the president.
However there were several other issues regarding laws
continuance enforcement order 1971. In The case of Dulichand Omaraolal vs
Bangladesh 33 DLR (AD) 30, The issue was whether the enemy property
(continuance of emergency provisions) ordinance 1969 was included into our
legal system by Laws continuance enforcement order 1971. The learned court
found no illegality in the law as a valid piece of legislation.
But if the laws were promulgated by the regulation of
martial Law administrator of Pakistan between 26-3-21 and 16-12-72 , those laws
can not be treated as an existing law of Bangladesh in the light of the
Proclamation of Independence, Laws continuance enforcement order and Paragraph
3(1) of the fourth schedule to the constitution
of Bangladesh.[20]
No comments
Post a Comment