International Crimes Tribunal

Strategically Speaking- Justice is truth in action 

By Brig Gen Shahedul Anam Khan ndc, psc (Retd)

The heading of this piece is a quote, chosen because the acute relevance of it has never been more illustrated than in the first verdict of the International Crimes Tribunal 2, delivered on Monday. Truth has prevailed. The accused Abul Kalam Azad alias Bacchu was charged with crimes against humanity and has been sentenced to death. The message has been loud and clear -- crime will not pay. The only regret for us all, perhaps with a few exceptions, is that the trial had to be conducted in absentia, the accused having made his escape just before he was about to be nabbed.

And this is what we must dwell on first before we go further. It seems that he had many well wishers within the administration. Otherwise, how is it that a person who was under intense investigation could give a slip to everybody and disappear into thin air just before he was about to be nabbed? And now there is speculation that he is in Pakistan, trying to escape to one of the Middle-Eastern countries.

It takes quite a doing to cross over one international border illegally; and he managed to cross over two in that manner, both of those heavily fenced, and one of which is the most dangerous border on the planet, and be happily ensconced in a third country…. how very convenient. There is good reason to believe that the accused had truck with the Jihadis and the political extremists, since it is they who venture across the Indo-Pak border regularly risking their life and limbs. And it is perhaps they that helped him to cross over to Pakistan. In spite of what the law minister says, it seems unlikely that the verdict might be carried out any time soon.

The sentence was bound to cause a flurry of comments. Given that the trial has taken place after more than forty years of the crimes being committed, and also the huge amount of money spent to garner international support against the trial, the furore is only to be expected. It must be mentioned that at one point in time, and particularly after the first tribunal was established, it was made to look as if not only putting the 1971 criminals on trial was a grave act of impropriety, calling for their trial was very wrong too.

What is surprising too is the way some western media have venerated the culprit, as a popular cleric. No man who has been found guilty of the kind of charges leveled against him deserves the appellation that preceded his name, because no one that genuinely carries that reverential title could ever have indulged in the acts that the accused has been found guilty of.

It was not surprising to see certain quarters laying red herrings to mislead the public. It was said of the Court that there was nothing "international" about it. Of course there was not, and it was not meant to be so. It was an indigenous tribunal formed under the International Crimes Tribunal Act-1973. And one is not certain as to what is the datum reference of "international standards" and who defines it? As long the international covenants we have acceded to have been upheld in the process, the fairness should not be questioned.

It is said too that the charges leveled against the accused could have been tried under the existing CrPC. I shall leave it to the legal minds to answer this, but those who pose the question perhaps forget the historical context in which the crimes were committed. The crimes were committed to thwart the Liberation War, and that is what lends a different dimension to the crimes.

What, however, is for the tribunal to have ensured and satisfied all the parties concerned is that the accused was given all the chances to defend himself (something that he and his cohorts in the nine-months of mayhem they perpetrated in Bangladesh in 1971, did not give their helpless victims).

However, we could have done without the so-called SKYPE controversy that came to be associated with the trial because of the very injudicious act of the ex-chairman of the tribunal. Discussing trial matters with somebody who was not directly associated with the trial or a member of the tribunal, outside the court, was flagrant violation of his oath. And this is what has given the scope to some commentators to dub the tribunal as "controversial."

If justice has come, albeit late, it comes as solace to the millions who bear the pains of 1971. But hopefully, it is the beginning of the end of the regime of impunity, because more than anything else this has been the biggest impediment in establishing truth, and without truth justice cannot prevail.

We would hope that the BNP would come out clearly on the issue, and articulate their position on the trial and the verdict clearly. Pettifogging will not do, nor will its facilitating Jamaat to oppose the trials by according it the platform to do so. We would also hope that this will not be used to make political hay by the ruling coalition.

The writer is Editor, Op-ed and Strategic Issues, The Daily Star.

Source: The Daily Star, Dhaka, 24 January 2013; link: http://www.thedailystar.net/newDesign/news-details.php?nid=266370

Bangladesh's International Crimes Tribunal

Editorial:Justice at last 

We take pride that process has commenced

The long awaited process of justice has yielded its verdict against Abul Kalam Azad alias Bachchu Razakar. The court awarded him capital punishment under the International Crimes (Tribunals) Act 1973.

This is commendable because of the extraordinary nature of the crimes he committed. On the one hand, he stood against Liberation War and helped the enemy. And on the other, he has been found guilty of perpetrating crimes against humanity.

We also commend the government for its single-minded determination to start the process, persist with it, and bring about this first verdict.

By awarding capital punishment to the guilty, the International Tribunal-2 has done justice on two levels. First it has begun meting it out to those who eluded punishment all these years since 1971. It has also repaid debt to those who fell victim to his criminal designs.

As a member of a party that actively opposed and worked against the national war of liberation, he attacked and killed the sympathisers of the liberation war. In addition, he committed crimes against humanity by participating in the genocide of innocent people, particularly members of Hindu community.

The due process of law has been observed. The charges brought against him were established by evidences provided by the living witnesses including relations of the victims. The accused was provided with a defence lawyer to enable him to defend himself against the charges levelled against him by the prosecution. But his prosecutor could not come up with necessary defence as the accused has been absconding. His family members also did not extend any cooperation.

The question of any vengeance or political vendetta does not arise, nor can any political motive be imputed to the trial process.

By conducting the trial against the perpetrators of crimes against humanity in 1971, the nation has demonstrated to the world that in Bangladesh law works and even passage of long time does not make one immune from the application of law and justice. With this historic verdict, Bangladesh has come out of the culture of silence and vindicated itself through carrying forward a much needed trial process.

Source: The Daily Star, Dhaka, 23 January 2013; link: http://www.thedailystar.net/newDesign/news-details.php?nid=266342

 

 

Bangladesh's War Crimes Trial

Commentary: Why should we celebrate this verdict? 

Because it helps us to understand what Bangladesh is supposed to be

Mahfuz Anam

There are millions of reasons why we should celebrate last Monday's verdict, the first against the perpetrators of crimes against humanity in 1971. There are as many reasons to rejoice today as there are martyrs of the period, and as there were instances of rape, torture, burning of villages, looting, arson, arrests, etc. For every freedom fighter killed, maimed, tortured, and women raped there were several members of their families who suffered silently in anger and grief over the last 42 years. For all of them, and for the whole nation that waited for law to catch up with the perpetrators of genocide in 1971, there is an indescribable joy in our heart today and an inexpressible reason to celebrate, the thanks for which must go to the prime minister personally, and to the Awami League government. We have said it before, and have no hesitation in repeating, that no other government would have done it. We commend both Sheikh Hasina and all those who have worked hard to make it happen.

Each of the crimes that Abul Kalam Azad (Bachchu) is accused, and has been found guilty of, are considered most serious crimes even under ordinary laws, applied in peacetime. All of them are punishable with the harshest of sentences. Murder, rape, torture and abduction are of the highest categories of criminal acts and punishment ranging from death sentences to long prison terms are handed out regularly in such cases.

A death sentence is only but natural for the crimes committed. As long as due process of law was followed, and the evidence as presented to the tribunal, which was widely reported in the free and independent media, constituted sufficient evidence the sentence is but a natural culmination. There is of course the appeal process but it can be only availed if the convict surrenders before the law and seeks redress. But such relief is not available to an absconder.

As freedom fighters, and there are hundreds and thousands of us, there is a very special reason to celebrate. There is an irrepressible sense of getting even, for many of our comrades in arms were mercilessly slaughtered by them -- personally. Many of us are witnesses to seeing innumerable bodies floating down a river, not all the handy work of Pakistani soldiers but of people like Bachchu. There are endless stories of their murder, torture and betrayal. The cruellest ones were those where they pretended to help the women and then led them to the Pakistani soldiers quarters to be physically assaulted at will and for as long as they wished, which in many cases turned out to be till the end of the war.

What can be a greater example of their brutality than the killings of intellectuals, many from Dhaka University, just two days before their defeat? They knew that their game was up, yet they killed. This was the work of only collaborators and razakars symbolised by Bachchu, and their like.

Then there were the instigations to kill. I can recall hearing the voices of razakars and prominent collaborators, broadcasting over radio Pakistan, that all freedom fighters were Indian agents and as such traitors, deserving nothing better than death. We were supposed to have strayed away from the path of Islam, and “Hinduised”, and like a bad “infection” should be eliminated before we “spoilt” the rest. They were the early “ethnic cleansers” the fore-runners of those in Serbia and Herzegovina.

Everything about Bengali culture was supposed to be of Hindu origin and as such needed to be “purified” to bring us back to the right path. Exhortations resounded from their continuous haranguing over the radio to eliminate us the moment we could be seen. They even quoted from religious texts as to what an act of “true Muslim” it would be if they either handed us to the Pakistani butchers or killed us themselves. Bachchu did just that.

We celebrate the verdict because it starts a process of accountability that will eventually lead to a greater understanding what our Liberation War stood for and the various types of forces we had to defeat to win our independence.

We celebrate the verdict because it helps to restore our ownership of history. (Though many of us have serious problems with Awami League's present version of it, which is over personalised, pays lip service to the role of ordinary freedom fighters, eliminates the contribution of local leaders, and all but ignores contribution of those who played seminal roles like Tajuddin Ahmed and other leaders of our government in exile. But still it is a far closer version to truth than that propagated by BNP).

We recall with shame, and it is our collective shame (that we allowed it to happen and also tolerated it for many years), that after the murder of Bangabandhu Sheikh Mujibur Rahman, a well planned state level effort was set afoot to distort our history. Just so that the contribution of the political leadership of the day, and that of Sheikh Mujib could be gradually eliminated from people's mind, the true significance and extent of our free struggle was systematically played down. We had the absurd period when we couldn't name the country and the army that perpetrated the genocide and had to refer to them as “Hanadar Bahini” (the marauding force).

The whole struggle from 1947 to 1971 was reduced to a few paragraphs of deprivation, never mentioning by whom, with the sudden crescendo of everybody joining the war after hearing Maj Zia's call to fight for independence. The cultural aspect of our struggle never occupied any thinking of the post-Bangabandhu regimes.

This all too brief narrative is relevant because BNP's distortion of our history provided the opening for the re-entry of opponents of our freedom struggle into our political space, with the “salt” in our wound being provided by Khaleda Zia's last government awarding ministerial posts to those well known for their genocidal role during 1971. The BNP chief just didn't seem to care that there is a tremendous pent up resentment among the public against those who were well known for their role against our independence. It was truly “rubbing the nose on the ground” of those who took pride in their being freedom fighters.

We know politics makes strange bedfellows. However, to be so oblivious to the history of independence and to be so accommodative about those who opposed it required an arrogant dismissal of what our struggle stood for or meant to the rest of us. Khaleda Zia never seems to have truly internalised the sufferings, the sacrifice, the pain, the joy and most importantly the pride that the events of 1971 symbolised to the nation, though her husband was an integral part of it. The truth, however ironic, is that her husband himself started the process.

We celebrate the verdict because we love our freedom. We celebrate the verdict because we are proud to have an independent country. We celebrate the verdict because it correctly, irrevocably, legally and historically sets out the role of those who opposed our war, committed genocide against our people and crimes against humanity that not only we, the Bangladeshis, but the freedom loving and justice seeking world needs to recognise and applaud us for. 

The writer is Editor and Publisher, The Daily Star.

Source: The Daily Star, Dhaka, 23 January 2013; link:  http://www.thedailystar.net/newDesign/news-details.php?nid=266329
 The Daily Star

 

International Crimes Tribunal in Bangladesh: DEATH for Bachchu Razakar

Declares war crimes tribunal in its first verdict; fugitive convict gets 30 days for appeal with SC

 By Julfikar Ali Manik and Tuhin Shubhra Adhikary 

The international crimes tribunal made history yesterday by sentencing Abul Kalam Azad to death, in its maiden judgment, for genocide and crimes against humanity during the Liberation War.
The 65-year-old fugitive, also known as Bachchu Razakar, was found guilty of killing 14 Hindus, raping two women, torturing two other persons and setting homes ablaze in Faridpur, his birthplace.

The judgment turns the spotlight on the nine-month war in which the Pakistani army along with its collaborators had killed three million Bangalees and violated more than a quarter of a million women.

The nation yesterday saw the first sentencing of a war criminal through a trial, a demand that had remained pending since the country was liberated in 1971.

“We should not forget the millions of victims who deserve that their tormentors are held accountable,” Justice Obaidul Hassan and two fellow judges said in written summary of the judgment. “The passage of time does not diminish the guilt. Justice delayed is no longer justice denied.”

The long-cherished International Crimes Tribunal-1 was formed in March 2010, but it was the Tribunal-2, formed only in March 2012, that delivered the first verdict.

The tribunals formed to prosecute, try and punish the perpetrators of crimes are seen by many as a courageous endeavour to come out of the culture of impunity in Bangladesh.

The prosecution had stacked eight charges against the expelled Jamaat-e-Islami leader for crimes he committed four decades ago in Faridpur.

But Tribunal-2 Chairman Justice Obaidul Hassan and members Justice Md Mozibur Rahman Miah and Judge M Shahinur Islam unanimously held Azad guilty in six charges related to crimes against humanity and one for genocide.

The only charge, which the prosecution failed to prove, was based on the abduction, torture and confining of freedom fighter Abu Yusuf Pakhi in Faridpur.

“In dealing with the charges we have found that the accused Abul Kalam Azad alias Bachchu himself had physically participated being accompanied by his armed accomplices to the commission of crimes and as such he held criminally responsible for the direct commission of crimes proved,” the judges said in the verdict.

Azad was sentenced to death for four of the charges, although found "guilty beyond doubt" in seven.

The tribunal noted that he deserved imprisonment for the other three offences but the court decided not to award separate sentences as he had already received the death sentence.

For the four offences, he will be sentenced to death and be “hanged by the neck till he is dead” under the International Crimes (Tribunals) Act 1973, the tribunal said.

“Since the convicted accused has been absconding the 'sentence of death' as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier."

Azad went into hiding seven hours before Tribunal-2 issued an arrest warrant against him on April 3, 2012. His trial was held in his absence and a tribunal-appointed lawyer moved for him.

Since the tribunals enjoy the status of High Court, a convict has the right to file an appeal only with the Appellate Division of the Supreme Court within 30 days of the judgment delivery by the tribunal.

Azad will not have the right to appeal unless he surrenders or is arrested within 30 days, as a convict cannot appeal in absentia, some legal experts said.

But other experts believe that if he is arrested or he surrenders after the 30 days and seeks the permission of the Appellate Division to file an appeal, the apex court has the discretionary power to consider it.

“The accused [Azad] cannot be considered merely as an absentee accused. He is an absconded accused," said the Tribunal-2. “Evading trial for the offences of which he has been charged with signifies his culpability too. The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability."

"Therefore, the fact of absconding of the accused can also be taken as an adverse and material incriminating circumstance to reinforce the evidence and circumstances available in the case," the judges said in the judgment.

According to an official at Detective Branch of Police, Azad fled to India, crossing the border in Dinajpur illegally -- without a passport or a visa.

Some sources suggest that he is now in Karachi of Pakistan.

A red alert will be issued through the Interpol to have Azad detained and brought back home, Law Minister Shafique Ahmed said yesterday.

Several hundred lawyers, journalists and observers gathered at the tribunal to witness the maiden judgment delivery yesterday. Many could not get in and had to wait outside. In parts of the country, people from a wider spectrum of society took out celebratory processions.

A three-tier security measure was in place in and around the old high court building where the tribunals are situated.

After the verdict, many were seen unable to control happy tears.

Considering the huge gathering and the tiny size of its courtroom, the Tribunal-2 judges sat in the larger courtroom of Traibunal-1 to deliver the judgment.

Justice Obaidul Hassan, chief of Tribunal-2, started reading out a 24-page summery of the verdict around 10:45am. It took him an hour to finish.

The full judgment comes in 336 paragraphs on 112 pages.

"It has been proved from testimony of witnesses that the accused had directly participated to the commission of crimes as an armed member of the Razakar force,” the tribunal said in its conclusion.

"Besides, we have found that for the reason of his atrocious acts in the locality, the accused was widely known as 'Razakar'."

As per the law, the tribunal said, "An individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly."

On November 4, 2012, the tribunal indicted Azad, who used to regularly preach on a couple of private TV channels.

Since November 26, a total of 22 prosecution witnesses, including victims and family members of victims, and the investigation officer of the case, testified against him.

The tribunal-appointed defence counsel failed to produce any witnesses due to “non-cooperation” of Azad's family members.

Sahidur Rahman, conducting prosecutor of the case, expressed his satisfaction over the verdict.

Defence counsel Abdus Shukur Khan said the accused did not get justice.

"The accused will be benefited if he goes to the apex court against the verdict," he said, adding that the tribunal-appointed counsel does not have authority to file an appeal against the verdict.

Azad was charged with the killing of Chitta Ranjan Das in Faridpur in 1971. In an instant reaction to The Daily Star, his son Gopal Das said: "My father's soul will now rest in peace."

He thanked the government for holding the trial.

"Like me, thousands of sons, daughters and family members of martyrs are waiting to see other war criminals walking the gallows," Gopal said.

Some journalists rushed to Azad's home in Dhaka after the verdict but his wife refused to open the door or talk to them. She, however, did say that according to her knowledge, her husband was not involved in any crime and that she does not know Azad's whereabouts.

PROVED CHARGES IN BRIEF
During the first week of June 1971, Azad and his accomplices apprehended Ranjit Kumar Nath alias Babu Nath from Khabashpur in Faridpur town and took him to the Pakistani army camp at Faridpur Circuit House.

After discussion with Pakistani Major Akram Koraishi and Ali Ahsan Mohammad Mojaheed, Ranjit was taken to a house at Bihari Colony, kept confined to a room there and tortured with the intent to kill, but he somehow escaped. Mojaheed, now secretary general of Jamaat-e-Islami facing war crimes charges, was a top leader of Islami Chhatra Sangha, the then student wing of the Islamist party.

On May 14, 1971, Azad accompanied by 10-12 armed Razakars attacked the village of Kolaran of Boalmari in Faridpur. There, he shot landlord Sudhangshu Mohan Roy and injured his son Monimoy Roy.

On May 16, 1971, Azad accompanied by 10-12 armed Razakars captured Madhab Chandra Biswas of Purura Namapara village of Nagarkanda in Faridpur, about 300 yards from his house. He shot Madhab to death.

On June 8, 1971, Azad along with 10-12 armed Razakars attacked Natibodia village in Boalmari of Faridpur and took away two females from the house. He along with four to five of his accomplices raped them.

On June 3, 1971, Azad along with 10-12 armed Razakars launched a planned attack on the Hindu-dominated village Fulbaria of Nagarkanda in Faridpur and looted houses.

Accompanied by seven-eight accomplices, Azad dragged out Chitta Ranjan Das from his house and shot him dead.

On May 17, 1971, Azad accompanied by 30-35 armed Razakars launched a planned attack on the Hindu-dominated Hasamdia village of Boalmari in Faridpur. They looted and burnt houses of Hindu civilians and shot nine Hindus to death.

On May 18, 1971, Azad along with seven-eight armed Razakars attacked the house of Guru Das of Ujirpur Bazarpara of Saltha in Faridpur and abducted his daughter and tortured her keeping her locked up for seven to eight days.

The girl was released, but she committed suicide when the accomplices of Azad tried to take her again. 

Click Here to See Summary of ICT Verdict in Abul Kalam Azad Case
Click Here to See Full Text of the Judgment
Click Here to See Charges in Full 

Source: The Daily Star, Dhaka, 22 January 2013; link: http://www.thedailystar.net/newDesign/news-details.php?nid=266151

Related Report:Verdict answers some questions

Bangladesh: Declaration of Martial Law and act of high treason

Editorial- 

Declaration of ML and act of high treason
We heartily welcome the Judgement

We most heartily welcome the Supreme Court (SC) judgment declaring Martial Law (ML) as illegal and promulgation of ML as an act of High treason. The recently released full verdict of the Supreme Court on the historic Seventh Amendment to the Constitution has ruled that the violation of the Constitution is the gravest of all offences and shall remain illegitimate for all time to come.

We are glad that the highest court has put its seal on an issue that has been coming to the fore of public discourse from time to time. And it has been the demand of the people that political power cannot and must not ever be usurped by an extra-constitutional authority. And now, finally, the SC has invalidated appropriation of power by the military. We note with satisfaction that the present government has already amended the Constitution towards the end.

One must admit that Bangladesh has matured over the last two decades and so has its military. Since the departure of Ershad, military behaved as it should in a democracy. The military leadership too, we believe, have no inclination to power either. Unlike Pakistan, our military totally accepts the civilian leaders as their masters. If 1/11 happened in Bangladesh, putting the blame entirely in the military for that would be acknowledging half the truth. After all, there was the issue of potential subversion of election, of an inflated voter list, of an election commission tutored to run a convoluted poll, to make the result go BNP's way by hook or by crook.

On the other side, we want to stress that democracy does not mean holding an election every five years and winning an election by means fair or foul. Winning elections is only but a part of democracy with many more things, particularly ensuring good governance and implementing the rule of law rather than rule of men. Making democracy flourish entails allowing the institutions to run independently. Election victory, or a brute majority, does not give one the license to be an elected autocracy. It means taking the opposition into confidence and exercising intra-party democracy and allowing new leadership to grow, too. Only when we are able to differentiate between majority and majoritarian rule can we expect democracy to thrive fully.

Source: The Daily Star, Dhaka, 21 December 2012; link: http://www.thedailystar.net/newDesign/news-details.php?nid=261900

Bangladesh: SC lambasts judges in past cases

Full Verdict on 7th Amendment
SC lambasts judges in past cases
Terms some of their observations seditious

Julfikar Ali Manik and Ashutosh Sarkar

In its judgment in the historic seventh amendment case, the Supreme Court blasted and overruled some of the apex court's earlier verdicts and observations on martial law in late 70s and 80s.

The judgment also termed "seditious" some of the observations of the judges in those past cases.

Martial law was first declared in the country on August 20, 1975. It was made effective from August 15, 1975 when the father of the nation Bangabandhu Sheikh Mujibur Rahman, along with most of his family members, was assassinated.

A case known as "Halima Khatun vs Bangladesh" was one of the first lawsuits to reach the SC requiring interpretation of martial law and martial law regulations, after Halima filed a writ petition with the High Court.

The verdict in the case was delivered on January 4, 1978 when the country was under martial law.

The then SC judges held that martial law proclamation or a martial law regulation or a martial law order subordinated the country's constitution.

Referring to the judgment in Halima's case that said martial law proclamation, regulation and order subordinated the constitution, the SC verdict on the seventh amendment case says, "With great respect for the learned Judges of the Supreme Court of the day, it must be held that their Lordships were absolutely wrong."

The then Chief Justice Syed AB Mahmud Hossain, Justice Kemaluddin Hossain and Justice Fazle Munim gave the judgment in Halima's case.

"The Supremacy of the Constitution as declared in Article 7 [of the constitution] was no longer unqualified," said an observation of the then judges in Halima's case.

But the latest SC judgement says, "These observations are preposterous. Let it be unquestionably declared that the supremacy of the constitution was unqualified, it is unqualified and it shall remain unqualified for all time to come."

The SC judges in Halima's case made further observations that "no constitutional provision can claim to be sacrosanct and immutable" and "the present constitutional provision may, however, claim superiority to any law other than a Regulation or Order made under the Proclamation".

The latest SC verdict says that these observations were "seditious".

"Let it be unhesitatingly declared that the Constitution being the solemn expression of the will of the sovereign people of Bangladesh is sacrosanct and immutable and all organs of the Republic owe its existence to the Constitution. It is supreme in all respect. The Martial Law Proclamations, Regulations and Orders are non est before it," reads the SC judgment in the seventh amendment case.

The verdict on the seventh amendment case was delivered by the Appellate Division bench of Justice ABM Khairul Haque, Justice Md Muzammel Hossain, Justice SK Sinha, Justice Nazmun Ara Sultana, Justice Syed Mahmud Hossain and Justice Muhammad Imman Ali.

Khairul Haque, the author judge of the verdict, was the chief justice when the verdict was delivered, and has been succeeded by Justice Md Muzammel Hossain.

The judgment that declared the seventh amendment to the constitution illegal was delivered on May 15 last year.

Several legal experts told The Daily Star yesterday that it is common in many other countries that the apex court overrules its earlier judgment if it finds the past verdict in essence wrong.

However, this is rare in the history of Bangladesh judiciary, especially when it involves constitutional matters, they said.

The seventh amendment ratified the proclamation of martial law and other regulations, orders and instructions by Lt Gen HM Ershad and his taking over the state power as the chief martial law administrator in March 1982.

On the SC's jurisdiction, the apex court judges in Halima's case said the SC had no power to call in question or declare illegal or void the proclamation or any regulation or order.

Referring to it, the judgment in seventh amendment case says, "The whole approach was reprehensibly wrong. No authority in Bangladesh can oust the jurisdiction, powers and functions of the Supreme Court granted under the Constitution.

“The law as declared by the Supreme Court in Halima Khatun case is not only alien to the Constitution, but gave legitimacy to Martial Law Proclamations etc., as such, with great respect for the learned Judges, we are constrained to overrule it and hold that the statements of law as contained in the said decision are wrong."

The SC judges elaborately discussed and criticised the observations in the past cases known as “State vs Haji Joynal Abedin and others,” “KH Ehteshamuddin Ahmed vs Bangladesh,” “Nasiruddin vs Government” and the eighth amendment case.

STATE VS HAJI JOYNAL ABEDIN AND OTHERS
In this case, Joynal Abedin and other appellants were convicted by a special martial law court and were given capital punishment. Following a writ petition, the HC cancelled the martial law court's sentence saying it was illegal and directed fresh trial by a competent court.

The government appealed with the SC against the HC verdict.

The SC delivered its judgment on December 20, 1978 when the country was under martial law. The then judges of the Appellate Division gave a split verdict.

The SC bench of the then Chief Justice Kemaluddin Hossain, Justice Fazle Munim, Justice Ruhul Islam and Justice KM Subhan delivered the verdict.

Majority of them said the constitution was reduced to a position subordinate to the martial law proclamation. So the martial law courts had the authority to try any offence and its proceedings had been made immune from being challenged before a court, including the SC.

Justice KM Subhan had given a dissenting opinion.

The SC verdict in the seventh amendment case says this observation was "not only gravely wrong but also seditious".

The judgment says it is apparent that the decision of the Appellate Division in Abedin's case was made in violation of the constitution.

"With great respect for the learned Judges we are constrained to overrule it," reads the recent judgment.

KH EHTESHAMUDDIN AHMED VS BANGLADESH
This case was also about conviction and capital punishment by a special martial law court.

The appeal against the conviction was decided in the SC in March 1980. The country was not under the martial law at that time.

But a day before withdrawing martial law, the second parliament on April 6, 1979 gave legitimacy to the country's first martial law by the fifth amendment to the constitution [it was also declared illegal by the SC in 2010].

The then chief justice Kemaluddin Hossain, Justice Fazle Munim, Justice Ruhul Islam and Justice Badrul Haider Choudhury delivered verdict in this case.

On some observations of that verdict, the recent SC judgment says, "Since the legal position of the Constitution and the Supreme Court, as postulated by the Appellate Division in the case of Ehteshamuddin was subversive of the Constitution, with great respect for the learned Judges, we are constrained to overrule it."

NASIRUDDIN VS GOVERNMENT
This case involved abandoned property and was decided by the SC on April 14, 1980.

Discussing a part of the judgment of this case, the SC judges in the verdict in the seventh amendment case said the constitution is the supreme law of the country and the apex court is empowered by the constitution to look into any illegality or irregularity of any authority.

The latest judgment says, "The views of the Appellate Division [in April 1980] in this case, upholding the vain supremacy of the Martial Law Proclamations, etc and the Martial Law Courts were erroneous and inconsistent with the Constitution, as such, with greatest respect for the learned Judges, we are constrained to overrule it."

The then chief justice Kemaluddin Hossain, Justice Ruhul Islam, Justice Badrul Haider Choudhury and Justice Shahabuddin Ahmed delivered the verdict in this case.

EIGHTH AMENDMENT CASE
Nearly a decade later in 1989, the SC upheld the absolute supremacy of the constitution and its basic structures in Anwar Hossain Chowdhury vs Bangladesh case, popularly known as the eighth amendment case.

In his observations in the judgment, Justice Shahabuddin Ahmed, then judge of the SC, said, "In spite of these vital changes from 1975 by destroying some of the basic structures of the Constitution, nobody challenged them in court after revival of the Constitution; consequently, they were accepted by the people, and by their acquiescence have become part of the Constitution.”

On Justice Shahabuddin's observation, the latest SC judgment says, "The observation that 'the past amendments which were not challenged have become part of the Constitution by general acquiescence', with respect, was misconceived."

“The Constitution is the Supreme law and its any violation is void and illegal and remains so for all time to come.

"The plea of waiver or acquiescence is not available in respect of violation of any law. If it is violated, the Court is bound to say so, no matter when it is raised. There is no period of limitation, no waiver, no acquiescence…," says the latest SC judgment.

The Appellate Division bench of Justice Badrul Haider Choudhury, Justice Shahabuddin Ahmed, Justice MH Rahman and Justice ATM Afzal delivered the verdict in the eighth amendment case.

Justice ATM Afzal gave a dissenting opinion.

Source: The Daily Star, Dhaka, 21 December 2012; link: http://www.thedailystar.net/newDesign/news-details.php?nid=261956

Bangladesh: Martial Law is no Law

News Analysis
Martial law is no law

Syed Badrul Ahsan

The Supreme Court's full judgment on the seventh amendment to the constitution comes at a time when efforts towards strengthening democracy are well underway, given especially the long fallout of military rule in the country.

In its judgment given in May last year, the text of which has recently been released, the apex court declared the imposition of martial law an act of high treason.

It has been sheer tragedy for the people of Bangladesh to witness their independent republic, born out of a twilight struggle against Pakistan, a state vulnerable to coups d'etat, in 1971, falling into a similar trap of extra-constitutional rule in August 1975. On August 15 of that year, a civilian elected government led by Bangabandhu Sheikh Mujibur Rahman was violently overthrown in a coup led by Khondokar Moshtaque, who on August 20 placed the country under retrospective martial law.

The damage done by such a violent seizure of power was not only that constitutional government had been undermined but also that within weeks of the coup, an indemnity ordinance preventing any court of law from questioning the action taken on August 15 was decreed by the usurper regime. The ordinance was subsequently to be enshrined in the fifth amendment to the constitution during the time of the first military ruler, General Ziaur Rahman. It remains a matter of collective shame that military rule in the country ensured that the assassins of August 15 and, later, of November 3 (when four national leaders were murdered in Dhaka Central Jail) would not be brought to justice.

Those who imposed martial law in Bangladesh clearly had learnt a lesson or two from the legacy of military rule in Pakistan. General Ayub Khan's martial law in October 1958 served as the beginning of a dangerous new trend in Pakistan in that it placed clamps on democracy, through pushing leading politicians into prison and giving the regime the opportunity to impose its own brand of politics, Basic Democracy, on the country. In March 1969, Ayub's system subverted itself when it transferred authority not to the speaker of the national assembly but to the commander-in-chief of the army, General Yahya Khan, under a second martial law.

Martial law is a misnomer in that it is no law but rule based on arbitrary behaviour exercised by military officers successful in seizing power. Martial law stultifies democracy and, as General Zia once famously declared, makes politics difficult. The Zia period of martial law, camouflaged as the sepoy-janata revolution of November 7, 1975, successfully undermined the rule of law and had state institutions operate at the mercy of the regime.

More dangerously, the Zia martial law brazenly played havoc with the four fundamental principles of the state -- democracy, socialism, nationalism and secularism -- through prising out two of them from the constitution (socialism and secularism) and turning another (nationalism) into a farce. Worse was to follow. In the name of returning the country to democracy, the Zia martial law regime opened the door to political activities for rightwing politicians who had patently opposed, by word and action, the War of Liberation in 1971.

Since martial law respects no law, no institution and no individual, in April 1977, Zia removed President ASM Sayem, a former chief justice then holding, as well, the title of chief martial law administrator, from office and occupied it himself. He then had a questionable referendum confirming his assumption of the presidency. Zia's martial law dishonoured the state through sending the assassins of August-November 1975 out on diplomatic assignments at Bangladesh missions abroad. It made no inquiries into the murder of General Khaled Musharraf and his lieutenants, who had attempted, between November 3 and 6, 1975, to restore the country to sanity and the army to a normal chain of command.

Spells of martial law often leave a class of politicians weakened in spirit and courage, to a point where they are afraid to say no to the demands made by ambitious soldiers. When army chief General HM Ershad demanded, at the end of 1981 and in early 1982, that a national security council be constituted comprising the chiefs of the armed services, newly elected President Abdus Sattar failed to take action against Ershad. The coup of March 24, 1982 against an elected government was to have bad consequences for the country. As with any martial law, parliament and the constitution were suspended and politics put on hold. Soon Ershad would move to undermine the judiciary by breaking up the High Court and removing from service four judges who had the gall to oppose his action.

Martial law weakens the state and its institutions. It forces democratic parties and politicians constantly into a struggle for restoration of pluralistic order. In the absence of politics, it presides over the emergence of a civil-military bureaucratic complex which seeks to keep normal politics at bay. In the end, it creates a class of political opportunists, sycophants, toadies and hangers-on who, even after their military mentors are long gone, try to prolong the legacy of darkness handed down to them by those who once seized the state power by an unashamed use of force.

There should be deterrents against future extra-constitutional acts against the state. One of them could be to round up those (still alive) who, in military service in 1975 and 1982, helped conspire against elected governments and eventually succeeded in overthrowing them.

Source: The Daily Star, Dhaka, 21 December 2012; link: http://www.thedailystar.net/newDesign/news-details.php?nid=261977

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