Is Bangladesh Constitution autochthonous?

The word autochthony is a Greek word and the combination of two words - 'Autos' which means self and 'chthon' which means earth. 

The word autochthony is rarely found in everyday English but is significantly used in Constitutional Law. Generally, when a constitution is "homegrown" or rooted in native soil, it is called autochthonous. It means this particular constitution does not have any sort of foreign link.

A constitution can be called autochthonous when it fulfils three major criteria. The first criterion is whether all legal continuity with the earlier regime had been broken in the formation of the new constitution. The second is whether all processes for operating constitutional changes were operated locally. The third criterion is whether the people and the court regard the constitution as authoritative because of their own acceptance of it.

Now, focusing on the title, it is a question of whether Bangladesh's constitution fulfils all these criteria. Simply, the answer is 'yes' because the Bangladesh constitution fulfilled all these three criteria. 

Bangladesh has so far created two constitutions. The first is the Proclamation of Independence (POI), and the second is the 1972 constitution. Internationally, the Unilateral Declaration of Independence is called POI, as Bangladesh gained independence through UDI. That's why we celebrate the 26 march as our independence day, as, on that day, UDI was proclaimed. This UDI itself was a formal break with the Pakistan regime and thus, an independent state was formed. That's why POI is called the first constitution of Bangladesh. 

Many of us have the wrong idea that POI is a wartime constitution and that the second constitution is the original constitution of Bangladesh. This is wrong because, firstly, POI was never a wartime constitution, and secondly, POI is the original constitution of Bangladesh. Yes, it was adopted during the time of war. But it remained effective during peacetime as well. 

The Pakistani military surrendered on 16 December 1971 and after that, this constitution lasted for the next 12 months. Even after the enactment of the second constitution (1972 Constitution), the proclamation of independence was effective for making legislation and that legislative function continued to be exercised under the proclamation of independence. 

In 1972, there was no parliament and no chance of issuing an ordinance by the president. So, for any law, one should return to the proclamation of independence. Section 3 of the 4th  schedule of the constitution has really given licence to the 1972 government to make law under the POI.

Moreover, after the enactment of the 1972 constitution, the Provisional Constitution order 1972 was repealed, but not the POI, because POI itself is a constitution. Again if POI is repealed, then schedule 4, section 3 (2) would be repealed. The POI approved the representatives of the 1970's election also. 

The second constitution of Bangladesh was passed on 4 November 1972 and was formally enforced from 16 December that year. Now again, a question arises whether the second constitution of Bangladesh is autochthonous. The answer is yes; it is also autochthonous, like the POI. 

Then another question arises: What can be called an autochthonous constitution? The answer is straightforward, this constitution had no foreign link. This was entirely a product of this soil. 

The people of this country formed this constitution. In the first paragraph of the preamble of our constitution, it has been clearly stated that "we, the people of Bangladesh, having proclaimed our independence on the 26 March 1971 and through (a historical struggle for national liberation) established the independent sovereign People's Republic of Bangladesh."

It means it is a new authority that has adopted this constitution. So this constitution does not have any foreign link or does not have any foreign source and is itself a product of this soil. So, undoubtedly, it is an autochthonous constitution. 

For example, if we focus on the Irish constitution formed in 1922. At that time, there was a debate on whether the Irish constitution could be called an autochthonous constitution. Though the Irish used to believe that their constitution was autochthonous, the British used to believe that they gave the power to form a constitution to the Irish. Developed under Britain's direct influence, it had a foreign link. So it can not be an autochthonous constitution. 

But in 1937, when the Irish again formed a new constitution, that debate was not raised again. But this scenario is not applicable in the case of Bangladesh. 

The court clearly stated in the eighth amendment case that "ours is an autochthonous constitution. Autochthony, its most common acceptance, is the characteristic of a constitution which has been freed from any trace of subordination to any link with the original authority of the parliament of the foreign power that made it. The aim is to give a constitutional instrument the force of law through its native authority. A factual autochthony is generally achieved after a revolution." 

In that case, the court referenced a book named "The Constitutional structure of the Commonwealth" written by KC Wheare (1916). 

In 2010, in Siddique Ahmed VS Bangladesh, the court said, "Our constitution, an autochthonous one, framed in the backdrop of a blood-swamped war of liberation." The court here pointed out rightly; firstly, the constitution's nature is autochthonous, and secondly, liberation has come through blood-swamped war. And this blood-swamped war proved that we cut all relations with the earlier regime. 

In this case, the court gave a very important observation, "so our constitution, an autochthonous one representing the sovereign will of the people, is the supreme entity which alone possesses sovereignty. In this case "will" means the dream of those people who gave their lives in the liberation war. 

Finally, Bangladesh's constitution has fulfilled all the requirements that KC Wheare has mentioned regarding the autochthonous constitution. Because this constitution has come out from a massive revolution and it is a product of this soil. But, between POI and the 1972 constitution, POI is more internationally friendly as it gave consent that it will abide by the United Nations Charter. But, in the 1972 constitution, there was no single clause that said we would follow international law. It just said that as a member of the United Nations, it would abide by all the conditions of the UNO.

From the above discussion, it can be easily said that the Bangladesh Constitution is autochthonous.

Sketch: TBS

Md Mizanur Rahman is an Associate Member of the Institute of Chartered Secretaries of Bangladesh. He can be reached at bds.mizan@gmail.com

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.