SC suggests punishment to "martial laws" perpetrators

Dhaka, July 28 ( Total News Bangladesh):

The Supreme Court has upheld the High Court verdict that scrapped the 5th Amendment of the Constitution suggesting "suitable punishment" to perpetrators of martial laws.

The August 2005 High Court judgment had rendered illegal the regimes of martial dictators Ziaur Rahman, Khandaker Moshtaque Ahmed and Abu Sadaat Mohammad Sayem between August 15, 1975 and April 9, 1979.

The Supreme Court in its observations and modifications also upheld the basic principles of the 1972 (original) Constitution including Bangali nationalism and socialism but also recognized citizens of Bangladesh as Bangladeshis.

"While dismissing the leave petitions we are putting on record our total disapproval of Martial Law . . . The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their Constitution, their Government, established by them with their consent," the judgment read.

It added, "Let us bid farewell to all kinds of extra constitutional adventure for ever." The judgment, however, said it was the Parliament which could make a law regarding punitive actions against the "perpetrators"

The Supreme Court issued the full text of the 184-page judgment five months after the apex court pronounced the main "order portion" of the verdict rejecting two leave-to-appeal petitions and upholding a 2005 High Court order but with some "modifications".

The then Chief Justice Mohammad Tafazzul Islam pronounced the order portion as a six-member bench of the highest court reached a consensus decision after six days of hearing on the petitions by main opposition BNP secretary general Khondker Delwar Hossain and three lawyers of their crucial ally Jamaat-e-Islami, challenging the High Court verdict.

The 2005 HC judgment had declared illegal the Fifth Amendment to the constitution in 1979 that had legitimized the post 1975 military regimes after the August 15, 1975 putsch toppling Father of the Nation Bangabandhu Sheikh Mujibur Rahman's post independence government, killing him along with most of his family members.

The Appellate division judgment, however, termed valid the "Bangladeshi nationalism" which was incorporated in the constitution replacing the words "Bengali Nationalism".

It also upheld the High Court observations passed along with its judgment but with some "modifications" justifying or condoning several actions taken during the 1975-1979 period.

These included the "past and closed" executive acts, things and deeds done and actions taken during that four-year period, the actions not derogatory to the rights of the citizens, acts which tended for peoples welfare and routine works done during the period "which even the lawful government could have done" .

The Fifth Amendment had legitimised the governments that had been in power following the August 15, 1975 putsch when the then deputy army chief general Ziaur Rahman subsequently emerged as the strongman of Bangladesh, ascended to presidency and later floated the BNP as a political party while his regime scrapped an earlier constitutional ban on religion-based politics.

The modified judgment of the six-member Appellate Division paved the way for restoration of the Preamble and Articles 8, 9, 10, 12, 25, 38 and 142 of the 1972 Constitution.

On August 29 in 2005, the High Court in a historic verdict declared illegal the 5th amendment to the constitution, meaning that the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, and Maj General Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.

In the first paragraph of the Preamble, it will now be read as “a historic struggle for national liberation” instead of “a historic war for national independence.”

The verdict also restored in the 2nd paragraph of the Preamble of the original Constitution the words “Pledging that the high ideals of nationalism, socialism, democracy and secularism” which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution.

It replaces the words “Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the war of national independence, shall be the fundamental principles of the Constitution.

The Article 8 (1) of the 1972 Constitution will revive the words “The principles of nationalism, socialism, democracy and secularism, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy.”

It replaces the words inserted through the 5th amendment by the words “The principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice,” together with the principles derived as set out in this Part, shall constitute the fundamental principles of state policy.”

The Appellate Division verdict deleted the Clause (1A) of Article 8 saying that absolute trust and faith in the Almighty Allah shall be the basis of all actions”.

The verdict restores Article 9 of the 1972 Constitution that says “the unity and solidarity of the Bangalee nation, which, deriving its identity from its language and culture, attained sovereign and independent Bangladesh through a united and determined struggle in the war of independence, shall be the basis of Bangalee nationalism.”

It also restores Article 10 that says ‘A socialistic economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man’.

The verdict paves the way for restoration of Article 12 of the original Constitution that says: The principle of secularism shall be realized by the elimination of - (a) communalism in all its forms; (b) the granting by the State if political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or prosecution of persons practising a particular religion.

The verdict makes way for dropping clause (2) of Article 25 that says the State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.

Following the verdict, Article 38 with proviso will be restored. Article 38 says “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order:

“Provided that no persons shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has or its object, or pursues, a political purpose.”

In their observations the Appellate Division judges put on record their total disapproval of Martial Law and suspension of the Constitution or any part thereof in any form.

“The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their Constitution, their Government, established by them with their consent,” the verdict said.

The Appellate Division, however, said: It is the Parliament which can make law in this regard. Let us bid farewell to all kinds of extra constitutional adventure for ever.

It said: “We are of the view that in the spirit of the Preamble and also Article 7 of the Constitution the Military Rule, direct or indirect, is to be shunned once for all.”

“Let it be made clear that Military Rule was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever as the same is against the dignity, honour and glory of the nation that it achieved after great sacrifice; it is against the dignity and honour of the people of Bangladesh who are committed to uphold the sovereignty and integrity of the nation by all means.”

The verdict said the military rule is also against the honour of each and every soldier of the Armed Forces who are oath bound to bear true faith and allegiance to Bangladesh and uphold the Constitution which embodies the will of the people, honestly and faithfully to serve Bangladesh in their respective services and also see that the Constitution is upheld, it is not kept in suspension, abrogated, it is not subverted, it is not mutilated, and to say the least it is not held in abeyance and it is not amended by any authority not competent to do so under the Constitution.

The verdict said the judgment of the High Court Division is approved subject to the following modifications: All the findings and observations in respect of Article 150 and the Fourth Schedule in the judgment of the High Court Division are hereby expunged, and the validation of Article 95 is not approved.

In respect of condonation made by the High Court Division, the following modification is made and condonations are made as under:

(a) All executive acts, things and deeds done and actions taken during the period from 15th August 1975 to 9th April, 1979 which are past and closed;

(b) The actions not derogatory to the rights of the citizens;

(c) All acts during that period which tend to advance or promote the welfare of the people;

(d) All routine works done during the above period which even the lawful government could have done.

(e) (i) the Proclamation dated 8th November, 1975 so far it relates to omitting Part VIA of the Constitution; (ii) the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) relating to Article 6 of the Constitution; (iii) the Second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation Order No. IV of 1976) and the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to amendment of English text of Article 44 of the Constitution; (iv) the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No. IV of 1978) so far it relates to substituting Bengali text of Article 44; (v) The Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to Supreme Judicial Council and also clause (1) of Article 102 of the Constitution, and (f) all acts and legislative measures which are in accordance with, or could have been made under the original Constitution.