Courtesy: The Daily Star, Dhaka, front page, Friday, August 27, 2010
Ershad's takeover also illegal
HC declares unlawful 7th amendment cover for his military regime
News and photo on the passage of the seventh amendment bill carried by The Bangladesh Observer in its November 11, 1986 issue. File photo
Julfikar Ali Manik and Ashutosh Sarkar
The High Court yesterday declared illegal the constitutional amendment that had legitimised the military rule by Hussain Muhammad Ershad.
The bench of Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain delivered the watershed judgment in response to a writ petition.
Siddique Ahmed of Chittagong filed the petition in January, challenging the legality of the seventh amendment that had ratified the proclamation of martial law and other regulations, orders and instructions by Ershad between March 24, 1982, and November 10, 1986.
The petitioner also contested his murder conviction in 1986 by a martial law court, and sought an order for retrial.
Justice Manik, senior judge of the bench, pronounced the judgment in a jam-packed courtroom.
The court observed the martial law imposed by Ershad was unconstitutional.
It, however, provisionally condoned the acts and deeds the military strongman had done in public interest. It said it did so to make sure the ruling cause no chaos or confusion.
The bench noted, "The proclamation of martial law and its regulations and orders and all actions under this law shall remain illegal until Qayamat (the Judgment Day).
"The martial law was beyond the mandate of the constitution and will be invalid for eternity.
"We cannot be oblivious to the fact [that] a usurper is a usurper…General Ershad also acted as a usurper to grab the state power. He cannot avoid responsibility of a usurper."
The HC also suggested that Ershad be prosecuted and punished in the light of the Supreme Court judgment declaring illegal the fifth amendment.
Earlier in July, the apex court in its verdict on the fifth amendment said, "The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their constitution, their government, established by them with their consent."
The fifth amendment had legitimised the governments and military rule between the killing of Bangabandhu Sheikh Mujibur Rahman on August 15, 1975, and April 9, 1979.
The governments during that period were led by Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Major General Ziaur Rahman.
The HC yesterday also denounced Ziaur Rahman for introducing military rule in the country. It said Ershad had usurped power following the path showed by Zia.
The then chief of army staff Lt General HM Ershad proclaimed martial law on March 24, 1982, suspending the constitution and dissolving parliament. He also ousted elected president Justice Abdus Sattar and his council of ministers from office.
Ershad declared himself the chief martial law administrator (CMLA), seizing powers of the chief executive and head of the government.
He appointed the then chief of naval staff Mahbub Ali Khan and chief of air staff air vice-marshal Sultan Mahmud as deputy chief martial law administrators.
Through the seventh amendment on November 10, 1986, he reinstated the constitution and legitimised all his actions under martial law, regulations and orders.
The HC verdict says, “Not only the petitioner Siddique Ahmed's, all trials under the martial law were illegal and void because the tribunals were the product of martial law and martial law proclamations.”
However, petitioner's counsel Hassan MS Azim was rather unhappy that the court did not order retrial of the case against his client.
The bench asked Siddique, who is now freed on bail, to surrender his bail bond to the lower court from which he had obtained it, and explore other legal options for his remedy.
The High Court yesterday also cancelled the provision introduced by Ziaur Rahman and Ershad in the fourth schedule of the constitution that deals with Article-150 "Transitional and temporary provisions".
The court cancelled section 3(A) to section-19 of the fourth schedule.
It said, "Article-150 of the constitution should be sealed off forever…" since the transitional period is between April 10, 1971, the day independence was proclaimed, and December 16, 1972, the day the constitution was implemented.
The door of Article-150 of the constitution should be closed forever so that no new "adventurist" can inject unlawful and extra-constitutional materials, the court said.
Leading jurist barrister Amir-Ul Islam, Attorney General Mahbubey Alam, Additional Attorney Generals MK Rahman and Murad Reza assisted the court during the delivery of judgment.
SThe High Court observed that Ershad or any other people taking over the state powers illegally should be suitably punished and parliament can enact an appropriate law in this regard.
Ershad had snatched state power from the then president Justice Abdus Sattar by illegal means as Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman had done the same earlier.
Khandker Mushtaque Ahmed had taken over immediately after the gruesome murder of founding father of the nation Bangabandhu Sheikh Mujibur Rahman, who led the entire population to independence and who was the undisputed leader of Bangalees and who had been elected as the greatest Bangalee of all times.
Bangabandhu Sheikh Mujibur Rahman was internationally acclaimed and revered as the maker of history by creating a new country with overwhelming support and creating a secular state from the theological state of Pakistan and had opened a new dimension in the politics of emancipation, the court said.
As their takeovers and regimes were illegal and unconstitutional as per the Supreme Court judgement on the constitution's fifth amendment, Ershad's takeover was also illegal and unconstitutional, it said.
Ershad had claimed that he had taken over the power for the nation's need but the people had not given him the mandate, the court said, adding that Ershad had issued military law and martial law proclamations by suspending the constitution and the fundamental rights of people.
The High Court bench observed that Ershad had undermined the constitution and made it subordinate to the martial law by issuing the martial law regulations, which is illegal and unconstitutional.
It is impossible to accept any law that can undermine the constitution, which is the supreme law of Bangladesh, the court said, adding that no other law can be superior to the constitution.
Even, parliaments of Bangladesh as well as of other countries in the world cannot pass any law which contravenes the constitution, it said.
It said Ershad constituted military courts under the military law, which were all illegal and unconstitutional.
The martial law and its rules and regulations are not laws in the eyes of the existing laws or the constitution, the court commented.
The court agreed with the argument of Attorney General Mahbubey Alam, jurists M Amir-Ul Islam and Abdul Matin Khasru that the government and parliament should decide whether to take any action against Ershad for usurping state power.
Parliament can make law to stop further extra-constitutional usurpation of state power and bids to grab state power in that way so that the capture of state power in such a way is stopped forever, the court said.
Ershad is a usurper of the state power but the government of the day, which has information about him, can decide on his fate, the court said.
Ershad grabbed state power because Ziaur Rahman had showed the path to do so. Had Zia not done that, it was unlikely that Ershad would have done it, it said.
Zia ravaged the constitution, whereas Ershad during his martial law period did not make any amendments to the constitution, and from this point of view, Zia's criminality is far worse than that of Ershad, the court said.
"We cannot be oblivious to the fact that Ershad was an usurper nevertheless and he cannot therefore absolve his liabilities as an usurper," the bench said.
All these evidence tamed to show that Ziaur Rahman was determined to destroy the concept of Bangalee nationalism based on secular principle, it said.
The court said Ziaur Rahman had executed many freedom fighters including Col Abu Taher after trial at kangaroo court.
Soon after assuming the state power, Zia wiped out the fundamental state principles--secularism and Bengali nationalism--that were the main spirit of the Liberation War, it said.
The court said he (Zia) had rewarded the killers of Bangabandhu by giving them respectable diplomatic jobs in Bangladesh missions.
Even Khandker Mosharraf Hossain, who subsequently became Zia's close associate, castigated Ziaur Rahman for rehabilitating Pakistani collaborators, the court said, adding that Zia had protected the killers of Bangabandhu by promulgating indemnity ordinance.
Zia had presented a pistol he used against Indian soldiers during the 1965 war at Khemkarem sector to his unit rather than the pistol he used during the Liberation War of Bangladesh, the court commented.
Zia had also wiped out Joy Bangla, the slogan of the Liberation War, for reasons best known to him, it said.
The court observed that he (Zia) also changed the Bangla name of Bangladesh Betar and Bangladesh Biman.
To wipe out the memory of Pakistan army's surrender, he (Zia) converted Suhrawardi Udyan to Shishu Park.
Ziaur Rahman had rehabilitated the local collaborators of Pakistan's auxiliary forces, including Shah Azizur Rahman, Col Mustafizur Rahman, Maulana Abdul Mannan and ASM Solaiman and many others, the High Court said.
Zia had released the anti-Liberation War forces that committed crimes like murder, rape, and arson during the Liberation War in 1971 by repealing the Dalal Ain, the court said.
It said Ziaur Rahman had introduced religion-based communal politics by replacing secularism.
Ershad had maintained the continuity of Ziaur Rahman's deeds by protecting the collaborators and the killers of Bangabandhu, which are crimes against humanity, the High Court bench commented.
The High Court yesterday declared illegal the trial of the military court against the petitioner and his conviction.
The court, however, told the petitioner that he can go to any other forum (normal court) for his redress as the trial of the murder case against him is still pending.
Deputy attorneys general Nazrul Islam Talukder, Motahar Hossain Sazu and Mostafa Zaman Islam also appeared for the state, while Hassan SM Azim, Mirza-Al Mahmud and advocate Kamal Hossain stood for the petitioner.
As the bench issued certificate following the prayer of the petitioner's counsel, Attorney General Mahbubey Alam said regular appeal will be filed with the Supreme Court Appellate Division automatically and the Supreme Court will give the final judgment over the petitioner Siddique's case.
But the government will not contest the judgment on the seventh amendment, he said.Petitioner's lawyer Hassan SM Azim told reporters that the court declared the trial of his client at the military court illegal but did not order the government to arrange for his retrial.