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Third Amendment of the Constitution of Bangladesh: The first attack on its’ sovereignty from within

Written By: NazirAhmed
03/06/2013 0:47

-- Barrister Nazir Ahmed --

Some of the common jargons, accusations and rhetorical words in Bangladeshi politics are: anti-liberation force, pro-liberation force, patriots and traitors, sadists, pro-independence, anti-independence, for and enemy of the spirit of mukti juddo etc.  But the questions are: who are the real patriots?  Who are the real enemies or traitors of Bangladesh?  No doubt, those who genuinely love the country, fight for the country and are prepared to sacrifice their life for the country are true patriots.  Similarly, those who are involved with anti-state activities are, no doubt, traitors and sadists.  But what about those who had compromised the sovereignty of the country?  More specifically, what about those who had handed some land of our country over to another country, but, in return, received nothing?  We frequently hear many political rhetoric from politicians in the following terms: “we will fight for each and every inch of our beloved country till our last breath,” “we will protect each and every inch of our country even with the last drop of our blood.”  Do they really mean what they say?     
Bangladesh became independent on 16 December 1971.  Many groups, individuals and elements (i.e. Santi Bahini in Chittagong Hill Track, Bonga Sena in North Bengal and attack on the border by some individuals immediately after 15 August 1975 etc.) attacked our independent country and its sovereignty.  But, diplomatically and constitutionally the first attack on our sovereignty came on 1974 from within Bangladesh when part of Bangladesh, the southern half of South Berubari, was given to another country, India, without receiving anything.  In this article, we will strive to analyse why and how this has been so.   
In May 1974, Prime Minister Sheikh Mujibur Rahman and Prime Minister Indira Gandhi signed an Agreement “bearing in mind the friendly relations existing between the two countries” and “desiring to define more accurately at certain points and to complete the demarcation of the land boundary between Bangladesh and India,” (Preamble of the Agreement).  One of the several clauses deals with Berubari and Angarpota-Dahagram enclaves in the following terms: “Clause 14. Berubari – India will retain the southern half of South Berubari Union No. 12 and the adjacent enclaves, measuring an area of 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves.  India will lease in perpetuity to Bangladesh an area of 178 metres x 85 metres ‘Tin Bigha’ to connect Dahagram with Panbari Mouza (P.S) Patgram) of Bangladesh.”
In November 1974 Bangladesh ratified the Agreement in Parliament.  Not only this, Bangladesh hastily went further.  Article 2(a) of the Constitution was amended by the Constitution (Third Amendment) Act 1974.  The Agreement, by a Schedule, was made part of our Constitution.  Before the amendment, Article 2(a) reads as follows: “2. The territories of the Republic shall comprise – (a) The territories which immediately before the proclamation of independence on the 26th March, 1971 constituted East Pakistan.”  After the amendment, new Article 2(a) reads as follows: “2. The territories of the Republic shall comprise – (a) The territories which immediately before the proclamation of independence on the 26th March, 1971 constituted East Pakistan and the territories referred to as included territories in the Constitution (Third Amendment) Act, 1974, but excluding the territories referred to as excluded territories in that Act.”  The Third Amendment Act did not specifically define the “Excluded” and the “Included” territories.  But it appears from the Agreement that the “Excluded” territories mean southern half of South Berubari and the “Included” territories mean Angarpota and Dahagram.
Although Bangladesh ratified the Agreement in Parliament, amended the Constitution and handed the southern half of South Berubari over to India, India neither ratified the Agreement in their Parliament nor granted lease in perpetuity to Bangladesh the ‘Tin Bigha Corridor,’ let alone amending their Constitution.  Why did Bangladesh do all these acts in a hasty mood, whereas India did nothing?  It is interesting to note that the Agreement itself was subject to ratification by the Government of Bangladesh and India and instruments of the ratification were to be exchanged soon, as Article 5 of the Agreement says “This Agreement shall be subject to ratification by the Government of Bangladesh and India and Instruments of Ratification shall be exchanged as early as possible.  This Agreement shall take effect from the exchange of the Instruments of Ratification.”
The Agreement was signed on 16 May 1974 and Bangladesh government amended the Constitution on 28 November 1974.  After signing the Agreement, Bangladesh could move slowly in ratifying the Agreement, amending the Constitution and handing over by observing the maneuvours of India.  Why did Bangladesh amend the Constitution within seven months where India did nothing from their part?  Why did Bangladesh hand over the southern half of South Berubari to India, where India had neither ratified the Agreement nor handed over the lease in perpetuity to Bangladesh?  Where was the equality of bargaining power gone?  These are million dollar questions.  Was it the sign of prudent politics and wise diplomacy?  Wasn’t it the subservient nature of Bangladesh government’s diplomacy?  Wasn’t it amount to compromising national interest and scarifying national sovereignty?
If the government really served the national interest and genuinely protected the country’s territorial integrity, they would not have acted unilaterally for the sole benefit and interest of India.  They could argue with India that as the Agreement, according to Article 5, ‘shall take effect from the date of the exchange of the Instruments of Ratification’ and since India had not yet ratified the Agreement, it had not yet become effective.  By doing this the government could have avoided the ratification of the Act, amendment of the Constitution and hand over of the southern half of South Berubari to India.  That would have put Bangladesh in a position of ‘equal footing’ and ‘equal bargaining power.’
After much Bangladesh government’s relatively weak diplomacy, India, instead of handing over sovereignty or lease in perpetuity, in 2011, proposed to lease the ‘Tin Bigha Corridor’ to Bangladesh for certain time.  Later from September 2011 India opened the ‘Tin Bigha Corridor’ allowing 24 hour access of Bangladeshi nationals to Angarpota-Dohogram enclaves retaining its full sovereignty over the Corridor.  Surprisingly, this was celebrated widely by the current government and its supporters.  Ironically, they forgot that Bangladesh deserved lease in perpetuity (endless lease) instead of mere allowing access, as per the 1974 Agreement.  Although India allowed access in 2011 for 24 hour, the question should have been raised as to why India deprived Bangladesh for 37 years.  Instead of granting lease in perpetuity, India allowed access for 24 hour which they could stop at any time without any notice.  There is no guarantee clause in the 2011 agreement.  India can do whatever it wishes.  It should be noted that the ‘Tin Bigha Corridor’ remained closed until 1992.  It was kept open for six hours a day from 1992 to 1996 following an agreement between Bangladesh and India.  Later, the time period was extended by another six hours during the previous Awami League government’s tenure resulting in the Corridor being kept open for 12 hours.  Furthermore, the sovereignty with the ‘Tin Bigha Corridor’ will continue to lay with India, as Indian Embassy issued a press release saying “Tin Bigha Area will continue to be manned efficiently by Indian personnel, as per the agreement between the two countries,” (UNB dated 19 October 2011).      
Let us briefly compare and see the intensity of diplomacy between Pakistan and India despite having their bitter relationship.  The Agreement between Firuz Khan Noon and Jawaharlal Nehru (known as Noon-Nehru Agreement) was signed in 1958.  Despite a lot of hostility between India and Pakistan and the continuous hot dispute over Kashmir, India, in 1960, amended its Constitution (Ninth Amendment) in order to transfer Berubari to Pakistan.  What had prevented India for decades from making even an attempt to ratify the 1974 Agreement by placing it before the Indian Parliament?  Had the court got really any power to prevent the Indian Parliament from ratifying the Agreement?  The Indian Constitution does not suggest so.  If anyone suggesting so, he would effectively be misleading the public of both countries.  By Article 105 of its Constitution, India has a sovereign Parliament like that of Westminster.  The power of amendment given to Parliament under Article 368 is unfettered in so far as Article 1 is concerned which deals with its Union territories and which would need to be amended.                    
“We are going to go back to the 1972 Constitution,” “We have mandate to implement the 1972 Constitution.” “The 1972 Constitution came through muktijuddo and we have no alternative but to go to the 1972 Constitution.”  These are the rhetorics the nation has been hearing almost every week/every month from the Ministers including the Prime Minister since the current government came into power.  The question is: how is it possible?  Are the Ministers serious on what they are saying?  Under the Third Amendment, Berubari was given to India.  Although Berubari was given to India, we have not got full control/ownership, in return, of Dahagram and Angorpota yet due to the lease in perpetuity of the ‘Tin Bigha Corridor’ not being granted to us by India.  Can the Berubari be brought back?  If the Berubari cannot be brought back and if the Third Amendment cannot be repealed, how can the government tell the nation that they want to go back to the 1972 Constitution?  This is a self defeating assertion.  The nation is not so fool that it cannot realise this.
Separated by the ‘Tin Bigha Corridor’ of the Indian Territory, Angarpota-Dahagram has no link with mainland Bangladesh, though Bangladesh retains so called sovereignty over the land.  During even Pakistan days there was an East Pakistan Rifles (EPR) Camp in the enclaves.  People could go in and out freely.  Law enforcing personnel were allowed regular passage.  This was no longer the case in independent Bangladesh.  The enclaves are under the Patrgam Police Station but Police now cannot go there freely, for they have to go there over Indian territories which India retains full sovereignty of.  There has been no mechanism to persue or arrest criminals there.  Angarpota-Dahagram, therefore, sometimes served as a safe haven for the criminals.  As a result, the people of Angarpota and Dahagram have been leading a sub-human and horrible life.  Article 13 of the United Nations Declaration of Human Rights (UNDHR) to which India is also a signatory guarantees every one the right to freedom of movement and residence within the borders of each state and the right to leave any country including his own and to return to his country.  But the people of Angarpota-Dahagram have not been able to enjoy those rights.  Article 36 of the Constitution of Bangladesh says “.....every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.”  The people of Angarpota-Dahagram did not historically have freedom of movement within their own country – Bangladesh.  They might have been born free but they have no longer been free citizens of a free state.
Hasty decisions, inadvertent politics and incompetent (to some extent subservient) diplomacy had put Bangladesh in general and Angarpota-Dahagram in particular in an awkward position.  Berubari became excluded from Bangladesh before the ink of the Third Amendment became dry, whereas Bangladesh for decades received nothing and what it has recently received from India (allowing Bangladeshis having mere access to the enclaves while retaining full control of India) was far from what it supposed to have received (lease in perpetuity).  Therefore, it can safely be said that the Third Amendment of the Constitution of Bangladesh was the first attack on the country’s sovereignty.  Ironically, the attacker was the very first government of independent Bangladesh, the party of which often claims to have been in the frontline (some of them even claim to be the sole agent) of mukti juddo, the freedom struggle of the country.    
Barrister Nazir Ahmed is an UK based legal expert, analyst, writer and author.

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About NazirAhmed

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  • Name: Barrister Nazir Ahmed
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    Nazir Ahmed is a UK qualified solicitor with many years of experience of advising and training the public sector on all aspects of immigration and nationality Law, civil litigation, constitutional law welfare rights law and environmental health and safety law.
    He is a director of Policyy Review Centre(PRC), London and a consultant with Lincolns Chambers Solicitors. He has conducted training sessions for many national organisations as well as local authorities. His notable clients include various government departments. 
    Apart from his legal profession he is a prolific writer, authored few books and analyst on socio political issues.
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