Historic Judgment, The High Court of Bangladesh
1975 Bangladesh coup illegal: court
DHAKA: In a historic judgment, the High Court of Bangladesh has declared the tenures of three unconstitutional rulers — Khondoker Moshtaque Ahmed, Justice Abu Sadat M. Sayem and Major General Ziaur Rahman — illegal and void.
The Court also declared the Fifth Amendment to the Constitution, which ratified all martial law ordinances and orders, including the legalisation of the assassination of the country's founding father Sheikh Mujibur Rahman in 1975, illegal. The High Court Bench comprising Justices ABM Khairul Haq and ATM Fazle Kabir, however, noted that although all government activities between August 1975 and 1979 had been declared illegal, history could not be altered.
It said Khandker Mushtaque Ahmed's assumption of power on August 15, 1975 after the assassination of Sheikh Mujibur Rahman, placing the country under martial law, and taking the office of President by the Proclamation of August 20, 1975 were "in clear violation of the constitution and was done without lawful authority."
"Consequently, all his subsequent actions as President of Bangladesh were illegitimate and void," it observed. "Being beyond the ambit of the constitution, the handing over of the Martial Law Authority's office to Maj. Gen. Ziaur Rahman, by Abu Sadaat Mohammad Sayem by the Third Proclamation on November 29, 1976, enabling the latter to exercise the powers of Chief Martial Law Administrator, was illegal and done without lawful authority," it added. The judges also referred to the assumption of power by Gen. Zia, husband of Prime Minister Khaleda Zia and founder of the ruling Bangladesh Nationalist Party (BNP), on April 21, 1977, and observed that it was also "beyond the ambit of the Constitution and as such illegal."
About the Referendum of 1977 on Gen. Zia's Presidency during the Martial Law, the High Court termed it was "unknown to the Constitution." The court, however, observed that due to the necessity of the state, "such a legal wrong can be condoned in certain circumstances" invoking the Doctrine of Necessity.
The landmark judgment was over a writ filed by Muksudul Alam, managing director of Moon Cinema of old Dhaka, who wanted the cinema hall back. It was declared "abandoned property" in 1973, following independence in 1971. However, various constitutional experts said the judgment has "come too late." Eminent jurist M. Zahir has termed the judgment "admirable." The former Law Minister, Abdul Matin Khasru, said, "Though too late, it's a bold judgment. We hope the Appellate Division will uphold it, for they are bound by oath to protect the Constitution." The judgment was, however, stayed by a chamber judge of the Appellate Division on Monday night. It will now be heard by the full bench of the Appellate Division.
DHAKA: In a historic judgment, the High Court of Bangladesh has declared the tenures of three unconstitutional rulers — Khondoker Moshtaque Ahmed, Justice Abu Sadat M. Sayem and Major General Ziaur Rahman — illegal and void.
The Court also declared the Fifth Amendment to the Constitution, which ratified all martial law ordinances and orders, including the legalisation of the assassination of the country's founding father Sheikh Mujibur Rahman in 1975, illegal. The High Court Bench comprising Justices ABM Khairul Haq and ATM Fazle Kabir, however, noted that although all government activities between August 1975 and 1979 had been declared illegal, history could not be altered.
It said Khandker Mushtaque Ahmed's assumption of power on August 15, 1975 after the assassination of Sheikh Mujibur Rahman, placing the country under martial law, and taking the office of President by the Proclamation of August 20, 1975 were "in clear violation of the constitution and was done without lawful authority."
"Consequently, all his subsequent actions as President of Bangladesh were illegitimate and void," it observed. "Being beyond the ambit of the constitution, the handing over of the Martial Law Authority's office to Maj. Gen. Ziaur Rahman, by Abu Sadaat Mohammad Sayem by the Third Proclamation on November 29, 1976, enabling the latter to exercise the powers of Chief Martial Law Administrator, was illegal and done without lawful authority," it added. The judges also referred to the assumption of power by Gen. Zia, husband of Prime Minister Khaleda Zia and founder of the ruling Bangladesh Nationalist Party (BNP), on April 21, 1977, and observed that it was also "beyond the ambit of the Constitution and as such illegal."
About the Referendum of 1977 on Gen. Zia's Presidency during the Martial Law, the High Court termed it was "unknown to the Constitution." The court, however, observed that due to the necessity of the state, "such a legal wrong can be condoned in certain circumstances" invoking the Doctrine of Necessity.
The landmark judgment was over a writ filed by Muksudul Alam, managing director of Moon Cinema of old Dhaka, who wanted the cinema hall back. It was declared "abandoned property" in 1973, following independence in 1971. However, various constitutional experts said the judgment has "come too late." Eminent jurist M. Zahir has termed the judgment "admirable." The former Law Minister, Abdul Matin Khasru, said, "Though too late, it's a bold judgment. We hope the Appellate Division will uphold it, for they are bound by oath to protect the Constitution." The judgment was, however, stayed by a chamber judge of the Appellate Division on Monday night. It will now be heard by the full bench of the Appellate Division.
