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

Climate Change

Loss and damage negotiation at COP 18: Key issues are lost

Md. Shamsuddoha

Negotiations at COP 18 to agree on a mechanism to address loss and damage caused by the impacts of climate change drew immense attention of the country Parties, CSOs and policy think tanks. The continued lack of mitigation ambition and inadequate resources to implement adaptation actions are increasingly causing suffering and significant loss and damage of assets and properties all over the world, especially in the poor and vulnerable countries.

Studies confirm that loss and damage associated with the adverse effects of climate change can no longer be avoided through mitigation or adaptation. Multiple approaches should be undertaken, with some approaches having synergies with adaptation efforts, but with others requiring taking action through new arrangements and stand-alone approaches, which could be referred to as "beyond adaptation" measures.

Following a proposal by the Alliance of Small Island States (AOSIS) in 2008, loss and damage was included on the agenda of the UNFCCC negotiations. The COP 16 in Cancun decided to establish a Work Program to address issues related to loss and damage in developing countries in a more comprehensive and actionable manner, with a mandate for the Subsidiary Body of Implementation (SBI) to do this.

The draft decision adopted by COP 17 takes into account the following thematic areas to enhance understanding of and expertise on loss and damage: (1) assessing the risk of loss and damage associated with the adverse effects of climate change and current knowledge; (2) a range of approaches to address this, including impacts related to extreme weather events and slow onset events; and (c) the role of the Convention in enhancing the implementation of approaches to address loss and damage.

Meantime, four regional workshops under the guidance of SBI have been held to develop an understanding of the issues and challenges to aid the development of the work programme. Loss and damage is a relatively new issue in the UNFCCC negotiations but it has progressed, which raised expectations of achieving some tangible outcome at COP 18. The expected deliverables of COP 18 on loss and damage are: (a) finalisation of work programme and comprehensive response to loss and damage; (b) establishment of a mechanism to assess diverse risks and approaches; (c) consider the concept of a "Multi-Window Mechanism" put forward by AOSIS as a basis for future negotiations. Multi-Window Mechanism consists of three inter-dependent components, namely insurance, rehabilitation/ compensatory payments, and risk management. These play complementary roles and comprise the necessary components of an integrated approach to risk reduction, risk transfer and risk management efforts; and (d) the establishment of a 2nd phase work programme to elaborate the functions and institutional structure of the international mechanism on loss and damage.

The negotiations at COP 18 are being sidetracked towards being limited to knowledge generation and capacity building to collect and analyse data for assessing the risks -- all to be implemented through an invitation to the Parties and relevant institutions outside of the Convention, as the US proposed. However, the key issues of addressing loss and damage, such as the establishment of a compensatory mechanism in the context of the notion of "beyond adaptation" and addressing the "residual losses" caused by both sudden onset and slow onset events, are missing.

In the context of slow progress and protracted discussion on loss and damage it is important to focus on at least three major issues. First, loss and damage resulting from slow onset events will be different from sudden onset events, and will cause more indirect losses over a longer time period. However, the current negotiation text gives little attention to slow onset events.

Second, the approaches discussed so far could be framed under three broad categories; (a) risk reduction by comprehensive disaster risk management and adaptation; (b) risk transfer by introducing insurance mechanisms, and; (c) rehabilitation/compensatory mechanisms for unavoidable loss and damages. The ongoing negotiations at COP 18 seek to identify options and designing and implementing of country-driven risk assessment strategies and approaches, including mechanisms such as insurance, while the approaches under rehabilitation/compensatory are grossly disregarded, especially by the developed country Parties.

Approaches to reduce and address disaster risks are mostly sudden onset disaster-centric, with no approaches for addressing slow onset events like ocean acidification, salinity intrusion, loss of ecosystem services or loss of economic preferences etc. On the other hand, insurance will merely create business opportunities for the insurance companies.

Third, the G77/China pushed "to establish an international mechanism which complements existing arrangements for adaptation actions by developing country Parties." However, the US, while agreeing that "all the impacts of climate change could not be addressed only by adaptation," wants to put all loss and damage-related issues under the Adaptation Committee and National Adaptation Programs. The US also urged to make strong cases of "unavoidable" and residual loss and damage of the impacts of climate change so that a stand-alone mechanism could be established.

This means that a different and stand-alone mechanism will be required, one that will be complementary to the national adaptation actions. But there is still the potential of unavoidable loss and damage, and we need to explore "adaptation plus" mechanisms, institutions and opportunities to address unavoidable loss and damage.

The writer is Chief Executive, Center for Participatory Research and Development.E-mail: m.shamsuddoha@hotmail.com

Orginally appeared in The Daily Star on 15 December 2012; link: http://www.thedailystar.net/newDesign/news-details.php?nid=261187