Part I

Chapter: Introductory
Liberation and Independence

Preamble: An operative part?

Preamble is not generally considered to be an operative part of the Constitution. It is not considered
enforceable by Court unlike any other substantive provision of the Constitution. The reasons put
forward for this are:

1. If it is excluded from the Constitution no harm will result in the Constitutional fabric.
2. It is not always compulsory to have a preamble. The practice started after the inclusion of
it in the US Constitution of 1787. The Government of India Act 1935 did not contain a
preamble.
3. It is not enacted in the same way as substantive part of the Constitution is enacted. It is
said that the Preamble is neither a source of power, nor a limitation on the enacted
→provisions of a constitution."

In Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 for the first time it was held that
preamble is an operative part of the Constitution. In Bangladesh the Supreme Court in Anwar
Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1 held that the position of the Preamble of the
Constitution of Bangladesh is somewhat different and it should not be linked to the preamble of a
statute. The Preamble is an operative part of our Constitution and can't be amended without a
referendum. In this situation the preamble of the Constitution, in its role, can't be relegated to the
position of a statute.

It must, however, be made clear that what the Courts in India and Bangladesh were emphasizing
was that Preamble has a great interpretative value and, in that sense, it is an operative part of the
Constitution. Otherwise a principle laid down in the Constitution may not be followed and that
action cannot be attacked simply on the ground of violation of Preamble. It comes to aid only when
it is challenged on any other substantive provision of the Constitution.
Historic Struggle for National Liberation

The First paragraph of the preamble re: ids: 'We, the people of Bangladesh, having proclaimed our
Independence on the 26th day of March, 1971 and through historic struggle for national liberation,
established the independent, sovereign People's Republic of Bangladesh. Until recently the
Preamble contained the phrase 'a historic war for national independence. It was changed in that
fashion by the Marital Law Second Proclamation in 1978. Why was it felt necessary? In fact, it
was an unsuccessful attempt to remove from the minds of the people the glorious but painful
history of our liberation struggle and the treacherous betrayal and genocide committed by the
Pakistani hordes and their collaborators of this land in the name of Islam.

'War' and 'Struggle' - The framers of the constitution saw the journey of Bangalee population to
wards 'liberation' through the prisms of historical movements from time immemorial up to 1971.
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. They got recognition in the first line of the constitution as 'historical struggle for national
liberation'. The 1977 amendment, while accepting a 'war' with Pakistani forces completely ignored
these."

'Liberation' and 'Independence' - What does 'independence' mean? Liberation and independence,
though often used interchangeably, carry subtly different connotations. In particular, 'liberation'
signifies vision for economic democracy, which 'independence' doesn't. Independence is equal to
sovereignty meaning freedom from external interference. Liberation is not a mere freedom from
foreign dominance. It means something more freedom from exploitation, poverty and hunger.

This explains 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. 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 fulfilment of a thousand
years' cherished dream a free homeland for Bangalees. It was not a 'war' for mere independence.
Rather it was a 'struggle' for a total emancipation of the people (liberation) from oppression."
Is the 'struggle' continuing after Liberation?

An interesting question arose in Registrar, University of Dhaka v. Dr. Sajjad Hossain 34 DLR (AD)
1. Is the 'struggle for national liberation' continuing till date?

Dr. Sajjad Hossain was the Vice Chancellor of Dhaka University during the war of liberation. He
was charged with the offence of collaboration with the Pakistani army. He issued press statement
supporting the Pakistani army and actively participated in anti liberation war propaganda. Article
5(b) of the Government of Bangladesh (Services Screening) Order, 1972 (President's Order no 67
of the 1972) provided for the creation of Screening Board to examine the allegations of
collaboration with Pakistan and activities directed against the creation of Bangladesh. The Board
show caused Dr. Sajjad and ultimately dismissed him from his job in the University of Dhaka. The
High Court Division quashed the order on the ground that unless the act of collaboration was done
in discharge of the official duties one cannot be brought under the provisions of the P.O. No 67. It
was confirmed by the Appellate Division as well. While quashing the Order of dismissal, BH
Chowdhury I argued that one would be subject to the P.O 67 if his animus towards the liberation
was continuing till the date of inquiry." In response Attorney General argued that such argument
would destroy the purpose of the President's Order 67 itself, because the liberation War was over
on 16 December, 1971. Now B.H. Chowdhury J. argued that it would not be correct to claim that
the 'struggle' for liberation was over on December 16, 1971. The 1971 was but one phase of the
history while the struggle continues towards the realization of a socialist society. Because
fundamental aim of the state is to raise a society in which the rule of law, fundamental human
rights and freedom, equality and justice will be ensured. However, Advocate Mahmudul Islam
argues that the qualifying words 'for national liberation' restricted the expansion of 'historic
struggle' which ended with 'national independence' in 1971 and cannot be comprehended as
continuing after achievement of independence.

Struggle for national liberation restored

It is inspiring to observe that the Judiciary has corrected a grievous wrong done to the spirit of
liberation war by declaring substitution of 'war' and 'independence' void, illegal and non est. The
Court scraped the changes observing that the essence of independence is not only to free a
community from an alien subjugation, but if necessary, also to free itself from the subjugation of
its own people:

The liberation of Bangladesh is a classic example of this kind of independence. The

Bangalees spear headed the independence of Pakistan in 1947 but soon they discovered
that they are being treated as a colony by the dominant West Pakistani Rulers. As such,
the inevitable happened. The ordinary Bangalees fought against the militarily superior
West Pakistani army and jettisoned West Pakistan. Thus, independent Bangladesh came
into being. .... [M]ere political independence of a country is not enough. The concept of
independence or liberty will not be achieved if one person or a group of persons keep the
people of a country under subjugation. The people have a right to refuse such subjugation.

Finally, the 15th Amendment Act of 2011 has restored the original phrases 'Historic struggle for
national liberation.'