Bangladesh: Martial Law stays illegal for good

Full Verdict on 7th Amendment Released

Martial Law stays illegal for good

SC terms declaration of it an act of high treason

Julfikar Ali Manik and Ashutosh Sarkar

Declaration of martial law is an act of high treason against the state, says the Supreme Court in its full verdict in the historic case on the seventh amendment to the constitution.

The SC has recently released the 125-page full text of its judgment, 19 months after pronouncing the verdict in the case on May 15 last year.

"Any person who declares Martial Law and ousts an elected government or attempts to do so, he and his associates would be liable for high treason against the Republic of Bangladesh," says the judgment.

Terming it a clear violation of the constitution, the apex court said, "No condonation is allowed for those who violate the Constitution which is the worst kind of offence that may be committed against the Republic and its people."

The SC said, "There is no such law as Martial Law or no such authority as Martial Law Authority in Bangladesh.

"Constitution cannot be violated on any excuse. Its violation, if any, is the gravest of all offences and shall remain illegitimate for all time to come."

The SC upheld a verdict given by the High Court in 2010 that had declared illegal the country's second military takeover by Lt Gen Hussain Muhammad Ershad and the seventh amendment to the constitution.

The seventh amendment ratified the proclamation of martial law and all regulations, orders and instructions by Ershad between March 24, 1982 and November 10, 1986.

The SC judgment says the proclamation of martial law, every other proclamation, Chief Martial Law Administrator's (CMLA) orders, regulations, instructions and ordinances made by Ershad and takeover of the powers of the government as the CMLA and all his subsequent acts, actions and functions till November 10, 1986 are totally unlawful.

"All were made not only in clear violation but in destruction of the Constitution, as such, are absolutely illegal and void ab initio [invalid from onset]," reads the judgment.

In the context of declaring the martial law regime illegal, the apex court has, however, made some exceptions regarding international treaties, contracts and transactions.

Apart from these exceptions, all orders, acts, actions, proceedings and trial taken place between March 24, 1982 and November 10, 1986, which are past and closed, are provisionally condoned on the age-old maxim "salus populi est suprema lex" [safety of the people is the supreme law].

The country's highest court has also issued warnings, saying: "However, even this kind of indulgence of condonation may not be available in future. There shall be no condonation in respect of Martial Law Proclamations, Proclamation Orders, Chief Martial Law Administrator's Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, Ordinances, etc."

The SC said the supreme law for the safety of the people is not for the usurpers and violators of the constitution.

"The Constitution covenants a democratic People's Republic of Bangladesh to be governed by the sovereign people through their elected representatives," the judgement says.

Earlier, the HC announced the judgment on the seventh amendment following a petition that was filed by Siddique Ahmed from Chittagong in January 2010 challenging the legality of the amendment.

Barrister Hassan MS Azim, counsel for the petitioner, told The Daily Star yesterday that the government has already dropped the provisions that had been included in the constitution through the seventh amendment.

Since the Supreme Court has published its full verdict, the government should go through the full judgment to see whether any void provision is still there in the constitution, and delete it if there is any. The government should then reprint the constitution, said Azim.

He said the government should also compensate those who were affected due to the proclamation of martial law.

The verdict that upheld the HC judgment was delivered by the Appellate Division bench of Justice ABM Khairul Haque, Justice Md Muzammel Hossain, Justice S K Sinha, Justice Nazmun Ara Sultana, Justice Syed Mahmud Hossain and Justice Muhammad Imman Ali. Of them, Khairul Haque was the chief justice when the verdict was delivered and has been succeeded by Justice Md Muzammel Hossain.

The judges have also made a 14-point declaration in their verdict.

In some points, the judges said that people rule through the constitution, which has created three organs of the state -- the legislature, the executive and the judiciary. The constitution also creates all functionaries and services of the state and those owe their existence to it.

"Any law, any act, any conduct, which is inconsistent with the Constitution is void," observed the apex court.

The SC judgment says paragraph 19 of the fourth schedule to the constitution was included illegally for ratification and confirmation of the proclamation of martial law of March 24, 1982.

Cancelling this paragraph, the judgment says it ceases to exist in the constitution.

The SC said under article 150 of the constitution, the transitional and temporary provisions only for the period from the date of declaration of Bangladesh's independence on March 26, 1971 to the date of commencement of the constitution on December 16, 1972 are set out in the fourth schedule to the constitution.

"No other provision made after December 16, 1972 can be included in the Fourth Schedule," said the apex court.

In the verdict, the SC discussed various decisions of the supreme courts of Bangladesh, England, India, Pakistan and the USA.

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 and also the chief martial law administrator in the end of 1975. After one year, Ziaur Rahman became the CMLA and then president.

Following their path, Ershad also became the CMLA and then president in the 1980s.

In February 2010, the SC revoked the fifth amendment to the constitution that had legitimised all the governments, including that of Ziaur Rahman, which had been in power till April 9, 1979 after the coup of August 15, 1975.

Source: The Daily Star, Dhaka, 20 December 2012; link: http://www.thedailystar.net/newDesign/news-details.php?nid=261819