Inside the Indemnity Ordinance that protected the killers of Bangabandhu

It is the responsibility of a state to ensure justice for any murder that takes place in it, but Bangladesh could not hold the trial of the killers of its founding father and much of his family.

Mehedi Hasan Pias Staff Correspondentbdnews24.com
Published : 15 August 2020, 09:43 PM
Updated : 15 August 2020, 10:11 PM

After the assassination of Bangabandhu Sheikh Mujibur Rahman on Aug 15, 1975, self-proclaimed President Khandakar Mushtaque Ahmed issued an ordinance to protect the killers.

When in power, Ziaur Rahman amended the constitution in a bid to protect the assassins permanently.

After the Awami League came to power in 1996, it scrapped the Indemnity Ordinance paving the way for justice for the killing of Bangabandhu. As of now, six of the convicted killers in the Bangabandhu murder case have been executed, while five others sentenced to death are fugitives.

THE INDEMNITY ORDINANCE

Backed by a group of army personnel, Khandakar Mushtaque, a member of Bangabandhu’s cabinet, rose to power after the gruesome massacre. Within one and a half months, the Indemnity Ordinance was issued on Sept 26.

The ordinance -- “The Bangladesh Gazette Published by Authority” -- was signed by Mushtaque and parliament secretary MH Rahman.

The ordinance had two parts. The first said that no case can be filed in any court or legal action can be taken over the incident that took place on Aug 15, 1975, even if it was against the law. In the second part, those named by the president as people related to the carnage, are indemnified.

ZIA AFTER MUSHTAQUE

Ziaur Rahman, who was just appointed the chief of army staff at that time, was said to be the mastermind behind the ordinance.

Zia turned the ordinance into law after he became president on Apr 21, 1977 through a series of military coups and counter-coups. His party won the election on Feb 18, 1979 with a two-third majority.

The Fifth Amendment to the Constitution was passed on Apr 9 the same year. The amendment indemnified all actions from Aug 15, 1975 to Apr 9, 1979 and also legalised all ordinances and announcements under the four years of martial law.

The Constitution (Fifth Amendment) Act 1979 declared legal all orders, military orders or other acts passed between Aug 15, 1975 and Apr 9, 1979, and activities of the authorities or individual officials done during the period; no question can be raised against them in any court, tribunal or authorities under any circumstances.

As the Indemnity Ordinance was legalised through the constitutional amendment, all criminals related to the assassination of Bangabandhu were indemnified “for good”.

When the martial law was withdrawn on Apr 9, 1979, the Indemnity Ordinance issued by Mushtaque in 1975 became obsolete. No legal hindrance existed at that time to take action against the killers of Bangabandhu.

“The ordinance was definitely against the rule of law,” former law minister Shafique Ahmed said.

HOW THE ORDINANCE WAS REPEALED

Before the Awami League came to power in 1996, no one took any legal or political initiative to scrap the ordinance for 21 years.“This is because the ordinance was issued to protect them (killers). And the governments in those 21 years were none other than their patrons,” said Ahmed.

In 1996, the Awami League government formed a committee led by the then law secretary Amin Ullah to scrutinise the legal side of scrapping the Indemnity Ordinance. The committee decided that no constitutional amendment was needed to scrap the ordinance. The Indemnity Ordinance could be scrapped by a majority vote in parliament, the same way through which the 16 laws or acts of the amendment were scrapped, the committee said.

The Law Commission led by former chief justice Fazle Kaderi Mohammad Abdul Munim backed the committee’s report.

The then law minister Abdul Matin Khasru tabled the ‘Indemnity Repeal Bill 1996,’ which was passed on Nov 12 that year paving the way to get justice for Bangabandhu.

Mushtaque becoming the president was an illegal act itself, believed Matin Khasru. Therefore, any ordinance issued by him cannot be legal.

The president can issue an ordinance if needed in the absence of parliament, he told bdnews24.com. But the Indemnity Ordinance was not issued by the president.

“The martial law imposed by Zia and Mushtaque never affected the constitution. According to the constitution, vice president Syed Nazrul Islam was in line to become president after the death of Bangabandhu. Syed Nazrul Islam was alive until Nov 3. After he was killed in the jailhouse, speaker Abdul Malek Ukil was supposed to be the president.”

“But defying all the constitutional possibilities, Mushtaque became a self-proclaimed president. He was the commerce minister in Bangabandhu’s cabinet and had no authority to become the president or to issue an ordinance. He issued the ordinance by force,” said Matin Khasru.

“This is illegal, unconstitutional and has no existence in the law. Therefore, the ordinance had no existence. It was never a part of the constitution. The court later announced the fifth amendment illegal. Therefore the Indemnity Ordinance was illegal from the very beginning. We could have held the trial of Bangabandhu murder with the ordinance remaining as it was; it wouldn’t be an issue,” he said. The government repealed the ordinance only to remove confusion.

KILLERS MOVED HIGH COURT

After the indemnity was repealed, Syed Faruque Rahman and Sultan Shahriar Rashid Khan filed a writ petition with the High Court challenging the Indemnity Repeal Act. They were both convicted and executed later after the High Court dismissed their petition on Jan 28, 1997.

The Indemnity Repeal Act was passed legitimately and never in conflict with the constitution, the High Court observed.

A full bench of the Appellate Division heard an appeal by the killers and gave the verdict against them. They lost the legal battle after seeking a review as well.

The Indemnity Ordinance was an act issued post-incident, which defied the constitution. Therefore, such an ordinance cannot remain in place to judge any criminal offence, the Appellate Division said in the verdict.

The Indemnity Ordinance was a normal act, not a part of the constitution. It was not supported by the constitution. It was not a constitutional law. This is because all ordinances and orders issued during that period were asked to be considered as legal laws. Therefore, the regular power of the parliament to repeal a law was never hampered, said the court.

In another case, the High Court said that to get indemnity, one has to provide a satisfying explanation that their action was unintentional. This is the basic idea of indemnity. There is no other legal way to be indemnified.