Dhaka, Aug 26 (bdnews24.com)—In a landmark verdict, the High Court has declared illegal the Seventh Amendment to the constitution that had legimatised the autocratic regime of military strongman Hussein Muhammad Ershad.
The bench of justices A H M Shamsuddin Chowdhury and Sheikh Mohammad Zakir Hossain handed down its ruling on Thursday.
At the hearing on Wednesday, Anwar S Azim argued for the petitioner while additional attorneys general MK Rahman and Murad Reza represented the state.
After the hearing, MK Rahman told journalists: "The constitution has no provisions for martial law or military rule. The then army chief HM Ershad illegally took over power."
He continued, "His [Ershad's] instatement of martial law, decrees, orders and rule over the country was illegal according to the constitution. He should be prosecuted for usurping power illegally and unconstitutionally."
On Apr 5, the High Court asked the government to explain why the Seventh Amendment which legalised the takeover of power by Ershad along with the martial law instructions made between 1982 and 1986 was not illegal.
The ruling came in response to a petition filed by Siddique Ahmed, a resident of Chittagong, who was convicted of murder during Ershad's martial law period.
The bench of justices Md Momtazuddin Ahmed and Naima Haider had also granted Ahmed a six-month bail.
The court in its verdict said the military rule imposed by Ershad on Mar 24, 1982, all the military ordinances passed since then to Nov 11, 1986, chief military law administrator's orders, martial law order and directions were illegal.
The HC, though, pardoned the activities of Ershad that may come under the verdict on the Fifth Amendment to avoid chaos.
It, however, let off those decisions that were taken in people's interest. The verdict added that, in future, the parliament can fix the punishment for the power usurpers.
The court stated Ershad also illegally ruled the country just like Khondker Moshtaq Ahmed, Abu Sa'adat Mohammad Sayem and Ziaur Rahman and so, none of them can be pardoned. Ershad cannot get away from the consequences for what he had done.
They can be suitably punished in line with an earlier verdict on the Fifth Amendment. However, the parliament can also pass a new law on this issue, the verdict added.
*It also said, Zia, using martial law, had illegally penalised a number of freedom fighters including Col Abu Taher in military court and tribunals."
Attorney general Mahbubey Alam, after the verdict, told the journalists, "The High Court has ruled the Seventh Amendment to the constitution illegal."
Earlier, it had ruled the Fifth Amendment illegal also, he said.
But it has pardoned the activities of Ershad just like the verdict on Fifth Amendment, he added.
The court in its verdict has said Zia did not stop at illegally taking over power; he had suspended the constitution and brought basic changes to it, the attorney general went on.
Ershad, however, had only adjourned the constitution, he did not change it. He broke the law, but Zia had done it on higher degree, the court added.
Replying to whether he had any observation regarding Ershad's punishment, Alam said, as like the verdict on Fifth Amendment, the court has said the parliament has the power to formulate laws to punish illegal rulers.
Ershad and Zia had taken advantage of Section 150 of the constitution; the court in the verdict has closed that section, he said.
Regarding trial and punishment of Siddique, he said, the verdict states that the petitioner had not endured punishment until now; he should surrender to the trial court and would be eligible to seek resolution under the criminal laws.
The court has granted him permission to appeal under Section 103 of the constitution; from now it will be considered as appeal and the Appellate Division may revise the verdict after hearing, he observed.
Hasan MA Azim argued for Siddique while Alam, assistant attorneys general MK Rahman and Murad Reza represented the state in the hearing.
Azim told the journalists, "it is a historical verdict; the High Court has declared the Seventh Amendment which legitimised Ershad's rule illegal."
But the court has pardoned his activities during that period, he said.
"It has advised the petitioner to solve the case in appropriate court," he added.
On Feb 2, the Appellate Division dismissed an appeal challenging the Aug 29, 2005 High Court verdict that had declared the Fifth Amendment illegal. It also had declared illegal the regimes of Moshtaq, Sayem and Zia between Aug 15, 1975 and 1979.
The BNP-led coalition government had appealed for a stay order on the verdict. However, the ruling Awami League-led government withdrew the appeal.
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