News Analysis
Martial law is no law
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
