Shakhawat Liton
The Appellate Division of Supreme Court in a landmark verdict strongly denounced martial law and suspension of the country’s constitution, and recommended meting out suitable punishment to the perpetrators.
Upholding the High Court Division’s historic ruling of 2005 that had declared the fifth amendment to the constitution illegal, the apex court also said it is up to the parliament to enact laws to prevent martial law.
“We are putting on record our total disapproval of martial law and suspension of the constitution or any part thereof in any form,” said the Appellate Division verdict. “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 apex court concluded.
It also said military rule was wrongly justified in the past, and it should not be justified in future on any ground. “Let us bid farewell to all kinds of extra constitutional adventure forever,” it observed. Extra constitutional usurpation of state power happened twice in Bangladesh.
Following the brutal assassination of Bangabandhu Sheikh Mujibur Rahman on August 15, 1975, Khondaker Moshtaque Ahmed assumed the office of president, and placed the whole country under martial law for the first time in independent Bangladesh.
The regime began with overthrowing the government led by Bangabandhu, and on November 6, 1975 it dissolved the first parliament formed through the 1973 election. During the first martial law regime, the constitution was made subordinate to martial law proclamations, regulations, and orders for around four years. During the second martial law regime since March 24 of 1982, the constitution remained totally suspended for around four years.
The first martial law was lifted on April 7, 1979 after a newly formed parliament dominated by the then nascent BNP passed the Fifth Amendment Act the day before, ratifying all preceding martial law proclamations and regulations, and all actions under that regime.
Lt General HM Ershad imposed the second stint of martial law overthrowing the then elected president Justice Abdus Sattar, and issuing the proclamation of March 24, 1982. Ershad is currently the chief of Jatiya Party, a major component of ruling Awami League-led grand alliance. Moshtaque’s proclamation of August 20, 1975 allowed the constitution to remain in force, albeit subject to the martial law proclamation, regulations, orders, etc.
But Ershad’s proclamation suspended the constitution, and he reserved the power to revive the constitution partially in phases, which he did time to time after 1985, until its full revival on November 10, 1986 when the martial law was withdrawn. Like his predecessors, Ershad made the third parliament pass the Seventh Amendment Act. On November 11, 1986, the third elected parliament brought the seventh amendment to the constitution, ratifying Ershad’s martial law proclamation and all orders, regulations, and actions made under that proclamation.
During the martial law regimes, the then Supreme Court judges on various grounds expressed inability to take strong position against the regimes.
Analysing the second martial law regime, former chief justice Mustafa Kamal in his book titled “Bangladesh Constitution: Trends and Issues”, said, “It can be seen that this entire period of Second Martial Law (1982-86) was a period of virtual inaction on constitutional issues, on the part of the Supreme Court.”
About the first martial law regime which was imposed amid a state of emergency that had been in force since December 1974, the former chief justice said during the long period of 5 years till November 1979, the Supreme Court was denied jurisdiction to enforce fundamental rights.
“The law of fundamental rights, therefore, had very little scope to flourish in Bangladesh,” he added. Against such a backdrop, the Appellate Division took the strong position against martial law.
“We are of the view that in the spirit of the Preamble and also Article 7 of the constitution military rule, direct or indirect, is to be shunned once [and] for all,” the verdict said. “Let it be made clear that military rule was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever as the same is against the dignity, honour and glory of the nation that it achieved after great sacrifice,” it added. It stated that military rule is also against the dignity and honour of the people of Bangladesh, who are committed to uphold the sovereignty and integrity of the nation by all means.
The verdict went on to say, “It is also against the honour of each and every soldier of the armed forces who are oath bound to bear true faith and allegiance to Bangladesh and uphold the constitution which embodies the will of the people, honestly and faithfully to serve Bangladesh in their respective services and also see that the constitution is upheld, it is not kept in suspension, abrogated, it is not subverted, it is not mutilated, and to say the least it is not held in abeyance and it is not amended by any authority not competent to do so under the constitution.”
Earlier, the HC had also strongly denounced martial law, and Moshtaque, Justice Sayem, and Gen Ziaur Rahman for imposing such regimes. “We found to our utter astonishment that how a minister in the cabinet [Moshtaque], a chief justice of the Supreme Court [Sayem], the chief of staff of the army [Ziaur Rahman], treated the constitution, the supreme law of this country with so much disgrace that independent Bangladesh was virtually made subservient to a few,” the HC verdict said.
“Khondaker Moshtaque Ahmed seized the office of president and virtually occupied Bangladesh. Justice Sayem dissolved the National Assembly and made the country fully autocratic, without any parliament, even worse than what it was before August, 1947, under the British government. Major General Ziaur Rahman did not even stop there,” the HC verdict added. During the first martial law, Moshtaque assumed the office of president, but did not assume the powers of the chief martial law administrator (CMLA).
Moshtaque handed over the office of president to Justice MA Sayem on November 6, 1975. Two days later Sayem also assumed the powers of CMLA. On November 29, 1976, Sayem relinquished the office of CMLA, and handed it over to Maj Gen Ziaur Rahman. On April 21, 1977, Sayem resigned from the office of president as well, appointing Ziaur Rahman as the president.
Source: The Daily Star, 29 July2010