Through the specs of law, language and others | The Daily Star
12:00 AM, February 20, 2018 / LAST MODIFIED: 12:00 AM, February 20, 2018

Law Watch

Through the specs of law, language and others

In the post World War I era, self-determination emerged as a purely political concept and not as a norm of international law. Eventually, it evolved into a 'right' of colonial self determination- the right of seceding from a colonial State. After decolonisation virtually (!) ended, it became unclear as to what will be the content of self- determination and whether the same can be exercised 'externally' - by seceding from the parent sovereign state and altering its original boundary. With the bliss of a newly-born decolonised world, the tension between self-determination and territorial integrity of State(s) arose.

The UN Charter recognised the right of self-determination; however in practice the same was limited to colonial situation(s) only. If seen through the specs of the post-modern contemporary world and the two human rights convention of the UN, self-determination would manifest itself in the right of people of an existing State to choose their own political system freely and to pursue own economic, social and cultural developments. Hence, the principle of self determination does not include a general right of groups to secede from the State of which they form a part and the buzzword in the post-colonial era therefore, was (arguably is) 'self-governance' and not separation.

Immediately before the birth of Bangladesh, in the Namibia opinion (1970) International Court of Justice affirmed the firm establishment of the right of self-determination in international law. However, Namibia situation, too, concerned a colonial territory. In 1971, Bangladesh exercised its right to external self-determination and seceded from West Pakistan. Under international law, the people of East Pakistan did never have the 'general' right to secede since international law has always been (and still is) neutral on the question of secession. It was possible because of the extranuating circumstances present at that particular time. The secession happened at a time when the scholars didn't even start unanimously sympathising, in principle, with the concept of secession. Bangladesh situation thus widened a new horizon for the future development of remedial secession as a 'right' in extraordinary circumstances when the parent State violates or lacks the will or  power to protect the human dignity and the most basic human rights. A reflection thereof can be seen in the Quebec case (1998) in which the court, while declaring that the principle of self-determination has acquired a status beyond 'convention', also admitted the possibility of 'secession' as a 'remedy' in extraordinary situations.

From 1947 onward, Bangladesh has gone through a number of phases and finally underwent remedial secession. The seed of remedial secession was sown in the language movement of 1952. In the nation-building of State, language has always been seen as an essential homogenising element.  Language is central for the cultural and ethnic identity of all groups, regardless of whether they are aware of it or not.  In my understanding, for Bangladesh, language as a homogenising element in 1952, right after four years of partition, superseded religion as another homogenising element, working in the pre-partition period. The validity of the West Pakistani people's own definition of own group and their status as such, had language as the basis. And as a homogenising element, Bangla as a language became an important means for counter-hegemonies and for creating a pretext for demanding and exercising the right to self-determination at several levels: mass psychology, education and politics.

The formation of United Front in 1954 had in itself the essence of internal self-determination or to put it without jargons, the essence of self-governance. In the election, The United Front got 223 seats out of 237 seats and thus the people of East Pakistan implicitly expressed their support for autonomy. Bangla language subsequently received constitutional recognition as one of the state languages in the first constitution of Pakistan framed in 1956. This recognition strengthened the homogeneity of the Bangla speaking people and created the bedrock for the remedial secession in 1971. One might argue that considering this recognition as the bedrock for the secession would be far-fetched. However, upon that bedrock, stood the actual demand for autonomy and the ultimate exercise of external self-determination followed by remedial secession. The essence of self-governance finally flourished as a demand in the 'charter of freedom' of 1966 when Bangabandhu placed his historic Six-Point formula at a political conference in Lahore which called for a federal state structure for Pakistan and full autonomy for Bangladesh with a parliamentary democratic system.

1966 was followed by the mass upsurge of 1969 and the general election of 1970. The success of the then Awami League both in the provincial assembly and the national assembly, in my understanding, weakened the persistent demand for autonomy. Because the success opened the door for co-existence between the East and the West with the East having a good or to some extent, a better position because of the healthy majority it got. The first couple of months in the post-election period finally paved the way for remedial secession, the only remedy to put an end to the tyrannical holdover. The right to external self determination, against all odds, was exercised through the Unilateral Declaration of Independence given on 26th of March, 1971 by the father of the nation and the then elected prime minister of the whole of Pakistan.

From 1948 till 1971, legally speaking, Bangladesh has had multifaceted experience(s). The war lasted for long nine months; however, the struggle lasted for years, starting with the demand for Bangla as a state language and ending with the desired separation.

The writer works at Law Desk, The Daily Star.

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