Democracy dealt havoc

HC castigates military regimes of Ershad, Zia in 7th amendment verdict; says military rulers, accomplices must be punished

The High Court came down heavily on martial law and both military regimes in the country in its judgment on the Seventh Amendment and said all military rulers and their accomplices must be punished.

“Not only General Ershad but all his accomplices as well as such perpetrators of 1975 martial law, who may still be alive, must face the wrath of ultimate justice,” said the HC in its historic judgment.

The court judgment said: “Two military regimes, the first being with effect from 15th August, 1975, and the second one being between 24th March 1982, and 10th November 1986, put the country miles backward. Both the martial laws devastated the democratic fabric, as well as the patriotic aspiration of the country.”

The HC released the full text (136 pages) of its judgment yesterday, after four months of pronouncing the verdict in the historic Seventh Amendment case on August 26.

The verdict came following a petition filed by Siddique Ahmed of Chittagong in January challenging legality of the Seventh Amendment to the Constitution.

The petitioner also contested his murder conviction in 1986 by a martial law court and sought an order for retrial. Though the HC declared the martial law court illegal, it did not pass any order regarding the criminal case against him and rather said “he must surrender to his bail”.

Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain yesterday signed the text of the judgment. Earlier, the judges declared illegal the country’s second military takeover by Lt Gen Hussein Muhammad Ershad and the Seventh Amendment.

The Seventh Amendment ratified the proclamation of martial law and other regulations, orders and instructions by Ershad between March 24, 1982, and November 10, 1986.

Narrating the black part of the country’s political history, the court said Khandaker Mushtaque Ahmed, self-declared president after the assassination of Bangabandhu Sheikh Mujibur Rahman, proclaimed the first martial law on August 20, 1975 with retrospective effect from August 15, 1975.

The then chief justice Abu Sadat Md Sayem became the president also the chief martial law administrator (CMLA) in the end of 1975, and after a year Ziaur Rahman became the CMLA and then the president.

Ershad also first became the CMLA and then the president in the 1980s.

Vehemently denouncing military rule and suspension of the Constitution through martial law, the HC said, “It is about time that the relics left behind by martial law perpetrators be completely swept away for good.”

The judgment narrated how the martial laws devastated the democratic fabric as well as the patriotic aspiration of the country.

It said, “During Ziaur Rahman’s martial law, the slogan of the Liberation War, ‘Joy Bangla’ was hacked to death. Many other Bengali words such as Bangladesh Betar, Bangladesh Biman were also erased from our vocabulary. Suhrawardi Udyan, which stands as a relic of Pakistani troops’ surrender, was converted into a children’s park.”

“Top Pakistani collaborator Shah Azizur Rahman was given the second highest political post of the Republic, while other condemned collaborators like Col Mustafiz, Suleiman, etc were installed in Zia’s cabinet.”

“Many collaborators, who fled the country towards the end of the Liberation War, were allowed, not only to return to Bangladesh, but were also blessed with safe haven, were deployed in important national positions.”

“Self-confessed killers of Bangabandhu were given immunity from indictment through a notorious piece of purported legislation. They were also assigned with important diplomatic jobs abroad.”

“The original constitution of the Republic of 1972 was mercilessly ravaged by General Ziaur Rahman who erased from it, one of the basic features, ‘Secularism’ and allowed communal politics, proscribed by Bangabandhu, to stage a comeback.”

The judges termed the military rulers “disgruntled people” and have found the concept of martial law as alien to the Constitution as it is to the English system. The judges also saw the military takeover as a seditious offence.

The legal system of Bangladesh is inherently based upon the English legal system.

The summary of the judgment said, “Martial law is totally alien a concept to our Constitution and hence, what Dicey commented about it, is squarely applicable to us as well.”

Albert Venn Dicey was a British jurist and constitutional theorist, who wrote “An Introduction to the Study of the Law of the Constitution” in 1885.

When they discussed elaborately in the section of the judgment titled “Does martial law have a place in our Constitution” the judges observed, “We have noted Dicey’s irrefutable statement that martial law, by which assumption of state power by usurping the constitutional government by use of the barrel of guns is referred to, is not known to English law.”

Earlier this year, the Appellate Division of the Supreme Court gave another historic verdict declaring illegal the country’s first martial law and the subsequent Fifth Amendment to the Constitution.

Citing the SC judgment on the Fifth Amendment case, the HC judgment on the Seventh Amendment said, “The Appellate Division, in the Fifth Amendment case, has quite discernibly expressed that the government and the parliament should come up with infallible legislation to ensure appropriate punishment for such disgruntled people, and we are in no doubt, in order to protect the Constitution from future vultures, which must be the prime obligation of the government as well as of the representatives of the people, such move shall be forthcoming.”

“The government may also explore whether there are sufficient evidence to indict the perpetrator(s) under any existing provision of the Penal Code, particularly section 121A and section 124 and section 124 (A), or under any provision of any other special law,” said the judgment.

These three sections of the Penal Code describe the provisions of punishing people who committed seditious offences.

The judgment added, “Our memory must not betray us in reminiscing that usurpers like Suharto, Pinochet, Gortiary, Idi Amin had to face the harsh music of law, whereas destiny steered Ayub, Yahya, Ziaul Haque and Pervez Musharraf to dire eventualities. There exists no reason why those who dared to play with the fate and the destiny of our people should not face same obnoxious consequences — no crime should go unpunished.”

Discussing the measures taken in Argentina and Mexico in order to insulate their constitution, the HC judgment said, “This would definitely be a commendable action on the part of our legislators to follow such move.”

“Pakistan has also taken similar steps. After all, nobody wants to see anymore martial law. This outlaw and abhorrent must find a perpetual exit from our land.”

In a section of the judgment titled “How to Take Ershad and other Perpetrator(s) to Task?” the court emphasised on ensuring punishment of military rulers differently.

“… it should be left with the government as to how they will take the perpetrators to task. We subscribe to the overriding view that booking the perpetrators will act as a deterrent for future adventurers,” the judgment observed.

It added, “Now, how about the perpetrator, General Ershad, who dared to brandish illegal and outrageous encroachment on our Sacrosanct entity, our hard earned Constitution? Can he be allowed to go scot-free, after committing the most heinous felony of putting the Constitution at abeyance for a few years, to the grave predicament of the people? History will impeach us should we come out with a negative reply.”

The judgment continued, “A fortiori, usurpation of power by General Muhammad Ershad, flexing his arms, was void ab-initio, as was the autocratic rule by Mushtaque-Zia duo, before Ershad, and shall remain so through eternity. All martial law instruments were void ab-initio.”

“As a corollary, action purportedly shedding validity through the Constitution (Seventh Amendment) Act, 1986 was a stale, moribund attempt, having no effect through the vision of law, and must be cremated without delay,” the court said in the judgment.

It added, “During General Ershad’s martial law also democracy suffered devastating havoc. The Constitution was kept in abeyance. Doors of communal politics, wide opened by General Zia, were remained so during his period. Substitution of Bengali Nationalism by communally oriented concept of Bangladeshi Nationalism was also allowed longevity during Ershad’s martial law.”

However, citing the Supreme Court’s observation in the Fifth Amendment case about the question of restoring Bangalee nationalism, the HC judges have given their views.

The judgment said, “It was viewed by the Appellate Division that return to ‘Bangalee Nationalism’, now, would involve huge expenditure and changes have to be recorded in all the passports and other official documents, home and abroad.”

“There is no doubt, and keeping in mind the question of expenses as viewed by the Appellate Division, we can nevertheless gradually, proceed to eventually bring back ‘Bangalee Nationalism’ in our Constitution, which was the commitment of the historic War of Liberation and the cherished desire of the people and Bangabandhu himself.”

By the judgment in the Fifth Amendment case, all the misdeeds perpetrated by Mushtaque-Zia duo have been eradicated and the Constitution has been restored to its original position as it was, when promulgated in 1972.

The HC judgment also said, “During the autocratic rule of Khandaker Mushtaque and General Ziaur Rahman, every effort was made to erase the memory of the Liberation War against Pakistan.”

“The killing of the Father of the Nation, which was followed by successive military rules, with a few years of intermission, was not an spontaneous act — it resulted from a well intrigued plot, harboured over a long period of time which was aimed not only to kill the Father of the Nation and his family, but also to wipe out the principles on which the Liberation War was fought,” the judgment said.

The HC judgment also said the paragraph 19 of the fourth schedule to the constitution, which was included for ratification and confirmation of the proclamation of martial law of the 24th March 1982, must be wiped out immediately.

The HC directed the law ministry to reflect this judgment by re-printing the Constitution.

The HC in its judgment issued certificate which means regular appeal will be filed with the Appellate Division automatically, and the SC will give the final judgment over petitioner Siddique’s case

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