THE EVENTS IN EAST PAKISTAN, 1971
 


Preface
Part I:  Introduction
Part II: Outline of Events in East Pakistan
           1-25 March, 1971
           25-March-18 December, 1971
Part III: Legal Position under Pakistan Law
Part IV: Legal Position under International Penal Law
Part V: Right of Self-determination in International Law
Part VI: The Role of the United Nations
Part VII: The Role of India
Summary of Conclusions

(a) 1-25 March, 1971

 

The postponement of the Constituent Assembly came as a shattering disillusionment to the Awami League and their supporters throughout East Pakistan. It was seen as a betrayal and as proof of the determination of the army and of the West Pakistan authorities to deny them the fruits of their electoral victory.

Sheikh Mujibur Rahman's reaction was to call a five-day general strike (hartal) throughout East Pakistan. In a statement on 2 March, he said 'In this critical hour it is the sacred duty of each and every Bengali in every walk of life, including government employees, not to cooperate with anti-people forces and instead to do everything in their power to foil the conspiracy against Bangladesh'. The response was complete. Normal life was paralysed. Transport and communications ceased. All factories, offices and shops were closed. Any who attempted to open them were roughly handled by Awami League vigilantes. The streets were filled with marching, chanting, protesting processions.

At first the army tried to assert their authority and this resulted in Dacca, Khulna, Jessore and elsewhere in a number of clashes between them and demonstrators and looters, in which the army opened fire on unarmed civilians. The Pakistan authorities later stated that a total of 172 persons had been killed in this period, but some of them were killed in intercommunal clashes.

As from March 3, the army were ordered to return to their cantonments and remained there until March 25. The Pakistan authorities say that their purpose was to avoid further clashes during the period of negotiation. Some have suggested that the army were holding their fire until they were ready to strike, but this seems unlikely as few, if any, units were flown into East Pakistan between 4 and 25 March. Whatever the reason for the withdrawal, it had the effect of keeping down the violence in a period of extreme tension.

Apart from some serious riots in Chittagong on and after the night of 3 March, and some less severe incidents on the same day at Jessore and Khulna, there was remarkably little communal violence during the hartal. The events at Chittagong on the night of 3/4 March are described as follow in the Pakistan White Paper:

'At Chittagong, violent mobs led by Awami League storm troopers attacked the Wireless Colony and several other localities, committing wanton acts of loot, arson, killing and rape. In one locality (Ferozeshah Colony), 700 houses were set on fire and their inmates including men, women and children were burnt to death. Those who tried to flee, were either killed or seriously wounded. Apart from those burnt alive, whose bodies were found later, over 300 persons were killed or wounded on 3 and 4 March.'1

According to information received from foreign nationals in Chittagong, which is believed to be reliable, the incident began when Bengali demonstrators passed in procession through Bihari areas in order to make the Biharis keep to the hartal. The demonstrators were fired upon by Biharis, and a serious riot followed in which people were killed on both sides and a substantial number of Bihari houses were burnt. The number killed on both sides may have reached 200. It is to be noted that by giving a joint estimate of 300 for killed and wounded, the White Paper does not give any estimate of the number of deaths. The rioting continued sporadically for a number of days until order was restored by the Awami League on orders from Sheikh Mujibur Rahman.

On March 3, President Yahya Khan invited 121eaders of the main political groups in the newly elected National Assembly to meet at Dacca on 10 March in an effort to solve the crisis. Sheikh Mujibur rejected the invitation the same evening and started issuing a series of instructions or' directives' to implement a' non-violent and non-cooperation movement '. These included an injunction not to pay taxes.

At his press conference on 2 March, Sheikh Mujibur Rahman stated that the Awami League would hold a public meeting at Dacca on 7 March where he would' outline a programme for achieving the right of self-determination for the people of Bengal'.2 This phrase was, of course, an allusion to the principle of self-determination of peoples under the Charter of the United Nations. The general expectation was that he would then declare the independence of Bangladesh. Perhaps to avert this, President Yahya Khan in an address to the nation on 6 March announced that the National Assembly would meet on 25 March. He added the warning:

'Let me make it absolutely clear that no matter what happens, as long as I am in command of the Pakistan Armed Forces and Head of the State, I will ensure complete and absolute integrity of Pakistan. Let there be no mistake on this point. I have a duty towards millions of people of East and West Pakistan to preserve this country. They expect this from me and I shall not fail them.'

On 7 March. Sheikh Mujibur replied by putting forward four demands which had to be accepted before the Awami League would consider attending the National Assembly. These were:

(I) immediate withdrawal of martial law;

(2) immediate withdrawal of alllnilitary personnel to their barracks ;

(3) an official enquiry into army killings in East Pakistan;

(4) immediate transfer of power to the elected representatives of the people (i.e. before the National Assembly met).

A fifth demand was added later that reinforcements of army units from West Pakistan must cease.

The first four demands were in effect a demand that President Yahya Khan should accept the then status quo. According to the Awami League representatives these demands were never in terms rejected. It was clear, however, that for President Yahya Khan to have implemented formally the first and fourth demands would have amounted to a complete surrender. The second was already in force and the third was accepted in principle, though agreement was never reached on the form of the enquiry. The fifth demand, of course, was not accepted.

As from 7 March, the general strike was replaced by a 'return to normal. under what amounted in fact, though not in name, to a provisional government by the Awami League. The civil service, police. even the judges acknowledged the authority of their' directives'. The new governor, General Tikka Khan was unable at that time to find anyone prepared to swear him into office. Gradually the shops, banks and offices began to open again. Some acts of violence did of course occur but, contrary to the contention of the Pakistan Government in their White Paper3, the Awami League leaders were in general successful in maintaining the non-violent character of the resistance. Indeed, even in the White Paper the only killings alleged to have occurred between 6 and 24 March were:

(a)     the killing of a demonstrator by a shopkeeper whose shop was being attacked at Khulna on 6 March;

(b)     the killing of two escaping prisoners by police at Comilla on 12 March, and

the killing of 3 people by the army when barricades were formed at Joydevpur on 19 March. (At the time, Bengali police estimated that about 15 civilians were killed by the army in this incident.4)

Not a single person is alleged to have been killed by mobs or by supporters of the Awami League between those dates.5

The Awami League leaders were determined to maintain the policy of non-violence. Several incidents bear witness to this. It is reported that order was restored in Chittagong at the beginning of March by a Commission sent from Dacca. In mid-March some young Awami League supporters set up check-points on the approaches to Dacca airport in order to search fugitives to West Pakistan to see that they were not taking large sums of money or jewelry with them. This led to one case of violence with the victim being taken to hospital. The check-points were dismantled on personal orders from Sheikh Mujibur Rahman. The Awami League leaders knew they had nothing to gain and everything to lose from violence, as it could only lead to severe repression by the army. There is no doubt that they were remarkably successful in this. The Anglican Bishop of Dacca gives the following description, which tallies with many other similar reports: 

'I left Dacca by road at 5.30 a.m. on March I, and travelled safely and uneventfully to Khulna. That evening I learnt on the wireless that there had been some hooliganism in Dacca and several non-Bengali shops had been looted, but that Sheikh Mujibur Rahman had used his personal influence to stop the trouble. I also heard that on Monday there was to be a 'hartal' in Dacca, and on Tuesday there was to be a three day 'hartal' throughout the province. On the Monday I travelled some 70 miles safely and uneventfully. During the 'hartal' my car was taken back to Dacca with two Scottish visitors, and took two days for the journey, because the 'hartal' only stopped at 2.00 p.m. each day. They arrived in Dacca safely and uneventfully. Thereafter up till the 17th March I was travelling by train, road and river, passing through six districts, and I travelled in the utmost peace and security. None of the people whom I spoke to on my way seemed to have any anxiety about the situation.

There was, it is true, a non-cooperation movement going on at the time. ...It could be said that the de facto government of the country was then in the hands of Sheikh Mujibur. But to speak of a break-down of law and order is a great exaggeration. There was both law and order. The non-cooperation, apart from the one incident in Dacca mentioned above, was being strictly non-violent. ...' 

We do not suggest that there were no other acts of violence during this period. There is evidence to show that attacks were made on non-Bengalis in Rangpur during the week ending March 13, and at Saidpur on March 24, during which shops and properties were burnt and a number of people killed. But considering the state of tension which prevailed, the extent of the violence was surprisingly restricted. Students and Awami League supporters were, however, preparing themselves for an eventual armed conflict. Many accounts have been given on the Pakistani side of looting of arms and ammunition and preparation of petrol and hand-made bombs manufactured from stolen chemicals. While the army remained in their cantonments, they were subjected to a blockade by Awami League supporters, so that fresh rations and other civilian supplies were prevented from reaching them. This action added to the fury of the army attack when it came.

On March 15 President Yahya Khan flew again to Dacca to hold constitutional talks with Sheikh Mujibur Rahman. Leaders of various West Pakistan parties arrived later in Dacca to join ill the talks. The Pakistan Government's version of these talks is given in their White Paper.6

The Bangladesh Government have not yet published an official account of the negotiations. The fullest account has been given by Mr. Rehman Sobhan, an adviser to Sheikh Mujibur Rahman on constitutional and economic policy.7

According to the Pakistan White Paper, by 20 March President Yahya Khan had provisionally agreed to make a proclamation providing for an interim constitution until a new constitution had been drawn up by the National Assembly. Under the interim constitution, Yahya Khan was to continue as President and Head of State under the 1962 Constitution with a Cabinet of Ministers selected from representatives of the political parties of East and West Pakistan; the powers of the central legislature were to be as provided in the 1962 Constitution save for' certain limitations and modifications to be agreed upon with respect to the Province of East Pakistan' ; Provincial Governors were to be appointed by the President and Provisional Cabinets appointed from the members of the Provincial or National Assemblies to aid and advise the Governors; martial law was to be revoked as from the day the Provincial Cabinets took office, but if ever it appeared to the President that a situation had arisen in which the government of a province could not be carried on, the President was to be able to assume to himself the executive government of the province. All this was to be subject to the agreement of other political leaders and to the 'all-important question of legal validity '. This referred to an objection raised by President Yahya Khan's advisers that if martial law was revoked, the instrument establishing the Central and Provisional Government would have no legal validity; 'a constitutional vacuum would therefore be created in the country '. Considering the number of constitutional irregularities which had already occurred in the short history of the state of Pakistan8, this objection showed a surprising degree of constitutional sensitivity. Mujibur Rahman's legal expert, Dr. Kamal Hossein,9 was convinced that there was no validity in the objection. He suggested, and it was agreed, that the opinion should be sought of the leading Pakistan constitutional lawyer, Mr. A. K. Brohi10. Mr. Brohi's opinion supported the view of the Awami League that the objection was invalid. He advised that a precedent was to be found in the method of transferring power from the British Government at the time of Independence. According to the Awami League representatives, this opinion was accepted by President Yahya Khan and his legal adviser, ex-Chief Justice Cornelius, 'and it disappeared from the dialogues at an early stage.'11

The unexpected degree of progress which had been made in the talks led President Yahya Khan to call Mr. Bhutto to Dacca, where he arrived with his aides on 21 March. It was soon evident that there was no area of agreement between him and Sheikh Mujibur Rahman. He insisted that martial law should be retained until the new constitution was in force, and, in order to prevent the exercise by the Awami League of what he termed their 'brute majority', he maintained that no law or constitution should be able to be presented in the National Assembly unless approved by a majority of the members of each wing, and any constitution approved by the National Assembly should still be subject to the Presidential veto under the Legal Framework Order.2 It may be assumed that Mr. Bhutto's objection was to ensure that there was no lawful way in which East Bengal could obtain their economic independence, still less their political independence.

The 23rd March was 'Pakistan Day', and was provocatively declared in Dacca to be 'Resistance Day'. Sheikh Mujibur Rahman took the salute at an armed march past from his residence, from which the new Bangladesh flag was unfurled. This flag was flown from hundreds of public and private buildings all over the country. Sheikh Mujibur Rahman issued a 'declaration of emancipation'.

On the same day his representatives produced to the President's advisers a draft proclamation going well beyond the proposals which appeared to have been provisionally agreed three days earlier and, in one important respect beyond even the Six Points. The Awami League draft, which is set out in full as an appendix to the White Paper 13 provided for:

1.       martial law to stand revoked in a province from the day when the Provincial Governor (who was to be irremovable) took office, and in any event within seven days of the proclamation;

2.       members of the National Assembly from' the State of Bangladesh , were to sit as a separate Constituent Convention to frame a constitution for the State of Bangladesh within 45 days, and members from the States of West Pakistan (Punjab, Sind, North-West Frontier Province and Balukistan) were to do likewise for a constitution for the States of West Pakistan;

3.     the National Assembly was then to 'sit together as a sovereign body for the purpose of framing a constitution for the Confederation of Pakistan' (not, as in the Six Points, a Federation), and the President was to be deprived of the power of veto which he had reserved for himself under the Legal Framework Order;

4.       the provincial government and legislature of East Pakistan were to have substantially increased powers during the interim period, including foreign trade and aid, control of finance and taxation and control of their own state bank.

On the face of them, these provisions would have ensured complete freedom for East Pakistan to determine its own destiny, and also complete control over the central constitution-making process and the central government. In view of the use which was subsequently made of this draft in justification of the army's action, the Awami League's account of how this document came to be prepared is of importance.

When by March 20 a fair amount of agreement seemed to have been reached on an interim constitution, the Awami League representatives urged President Yahya Khan to bring over a statutory draftsman to draw up the necessary proclamation. President Yahya Khan kept pressing the Awami League to produce their own draft. Unwisely perhaps, they eventually agreed to do so. In the circumstances, and with no agreement secured from Mr. Bhutto, the Awami League could hardly have been expected to draft a compromise proposal. Their draft (which appears to have been based on their draft constitution prepared for submission to the Constituent Assembly) expresses their negotiating position. They claim that they put it forward, not in the belief that it would be accepted in full, but expecting it to lead to more specific negotiations. Moreover, they contend that at no stage were their proposals rejected by President Yahya Khan, who kept referring matters for discussion by the expert advisers on both sides. The Awami League representatives are now convinced that President Yahya Khan never had any intention of reaching an agreement with the Awami League, and was merely playing for time.

Others believe that President Yahya Khan would, for his part, have been ready to accept an accommodation with the Awami League but that agreement could not be achieved with Mr. Bhutto. For example, the Times correspondent, Mr. Peter Hazelhurst has written:

'It was Bhutto who finally brought the President to take the decision which set East Bengal on fire. When the President put the Sheikh's proposal to the West Pakistan leaders, Bhutto pointed out that if the Martial Law was withdrawn, Pakistan would be broken up into five sovereign States, the moment the President restored the power to the Provinces. He expressed the fear that Sheikh Mujibur Rahman was trying to liquidate the Central Government, because when the President withdrew the Martial Law, he had no sanction to carryon as Head of the State. Half-convinced, the President went back to Sheikh Mujibur Rahman and expressed these fears. He promised Mujib that he would withdraw the Martial Law the moment the National Assembly met and gave the Central Government some form of validity. Sheikh Mujib reiterated his demand for the immediate withdrawal of the Martial Law.'14

According to the White Paper, the talks broke down because the Awarni League representatives were not prepared to compromise on the essential features of their proposed proclamation15, and because their proposals were unacceptable to Mr. Bhutto or to the other party leaders from West Pakistan, or to President Yahya Khan and the army.16

It is impossible to reconcile the accounts given by the two sides. Wherever the truth lies, it can be said that the Awami League believed that the election results, coupled with the complete support they had received from the people and all organs of government in East Pakistan since 2 March, entitled them to the degree of autonomy which they had claimed in the Six Points. When that was finally refused to them, they considered that they were entitled to claim the independence of Bangladesh in accordance with the principle of the right of self-determination. The justification for this claim in international law will be considered later.17 To President Yahya Khan and to the other army leaders, the claim to autonomy and the conduct of the Awami League appeared as treason. By 25 March the President had evidently concluded that no negotiated settlement was possible. There was no need to protract the fruitless constitutional negotiations any further. The army's contingency plans were brought into force. It struck, and struck with terrifying brutality.

The White Paper asserts that reports had become available of Awami League plans to launch an armed rebellion in the early hours of 26 March, and puts this forward as the explanation and justification of the army's action.18 According to the White Paper the operational plan was as follows:

  • East Bengali Regiment troops would occupy Dacca and Chittagong to prevent the landing of Pakistan Army reinforcements by air or sea;
     

  • the remaining East Bengali troops with the help of the East Pakistan Rifles and the police would move to eliminate the Armed Forces at various cantonments and stations;
     

  • the East Pakistan Regiment would occupy border posts to keep it open for aid, arms and ammunition from India;
     

  • Indian troops would come to the assistance of the Awami League once the latter succeeded in occupying the key centres and paralysing the Pakistani army.

The source of this information is not given, but it seems inherently probable, as well as being consistent with subsequent events, that there would have been a contingency plan of this nature. It must have been evident to all concerned that if the political talks broke down, the army would leave their cantonments and use force to restore the authority of the martial law regime and bring the' non-cooperation movement' to an end. The only alternative to surrender would then be armed resistance. Reports that the talks were foundering was common knowledge by the evening of March 24 and this resulted in outbreaks of violence in a number of centres on 25 March.

We do not feel able to accept that the army's action was caused by a discovery of an Awami League plan to launch an armed rebellion. Rather, it was caused by President Yahya Khan's decision to break off further negotiations and reassert his authority. The nature of the action taken was, however, influenced by the knowledge that it would convert the hitherto passive resistance into an armed resistance by defecting East Bengali troops and police and by those Awami League supporters and students who had succeeded in collecting arms.

The White Paper also asserts that' the action of the Federal Government on 25 March, 1971, was designed to restore law and order, which had broken down completely during the period of the Awami League's 'non-violent, non-cooperation' movement'.19 As has been seen, the charge that there had been a complete breakdown of law and order is not justified, at least up to 24 March. The break-down in law and order which then occurred was a consequence of the breakdown in talks, of the decision to reassert the authority of the army and of the armed resistance to that decision.


Footnotes:

1The Crisis in East Pakistan, Government of Pakistan, 5 August, 1971, p. 31.

2Washington Post, 3 March 1971.

3Op. cit., p. 15.

4Martin Adeney, Venture, Vol. 23, No.5, p. 9, Fabian Society. London.

5Op. cit., pp. 32-38.

6Op. cit., pp. 16-27.

7Negotiating for Bangladesh: A Participant's View. Sobhan, R. July 1971, South Asian Review, Vol. 4, No.4, p. 315.

8See Part III below.

9Now Minister for Law in the Bangladesh Cabinet.

10Mr. Brohi later defended Sheikh Mujibur Rahman at his secret trial before a military tribunal after his arrest.

11Sobhan, R., op. cit., p. 323.

12The Crisis in East Pakistan, op. cit., p. 21.

13Op. cit., pp. 47-59.

14Peter Hazelhurst The Times, London, June 4, 1971.

15Op. cit., pp. 25 and 26.

16The Awami League representatives assert that this was not suggested to them, even at this late stage. It now seems clear that the decision to break off the negotiations and to start the army 'crack-down' must have been taken at the latest on March 24. However, at a further meeting on the evening of that day, President Yahya Khan's advisers did not reject the proposals and agreed to telephone Dr. Kamal Hossein next morning with a view to arranging a further meeting on the next day to discuss its terms. This was the telephone call which never came.'

17See Part V below.

18Op. cit., p. 27. The alleged operational plan is set out on p. 40.

19Op. cit., Introduction.


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