DHAKA: The High Court declared illegal the seventh constitutional amendment that had legalized former army chief HM Ershad`s takeover and his military rule, moving further forward the current work on rewriting the national constitution.

An HC bench of Justice Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain delivered the crucial judgment, with comprehensive observations on all military takeovers, in response to a writ petition filed on January 24 this year challenging the seventh amendment.

“From the very beginning, all martial laws are illegal,” the High Court said while delivering the verdict that also gave its opinion on the contentions centering the historical event of proclamation of independence.

The High Court verdict made a mention of MA Hannan, an Awami League leader, as the proclaimer of independence, instead of Ziaur Rahman.

The court rulings on this crucial case came hot on the heels of the Supreme Court judgment declaring void the constitution fifth amendment that had legitimized military regimes since the August 15, 1975 coup, including the takeover by slain president general Ziaur Rahman later in that year.

The 7th amendment ratified the proclamation of martial law and other regulations, orders and instructions by Ershad between March 24, 1982 and November 10, 1986, the time when transition to civilian rule began through parliament elections.

General Ershad, the then chief of army staff, declared himself chief martial law administrator (CMLA) imposing martial law on March 24, 1982, overthrowing the BNP government led by stand-in president Justice Abdus Sattar after the assassination of president Ziaur Rahman.

“But the actions under the laws which were not detrimental to public interest are condoned,” says the HC bench in pronouncing the verdict.

"These included the past and closed executive acts, things and deeds done and actions taken in-between March 24, 1982 and November 11, 1986, the actions not derogatory to the rights of the citizens, acts which tended for people`s welfare and routine works done during the period which even the lawful government could have done," the verdict added.

About the role of HM Ershad, the chief perpetrator of proclaiming the martial law, the court said, "He cannot avoid the liability as being an usurper, but the government holds the authority for awarding any suitable punishment for his acts."  

The verdict says that Parliament could enact any new law or amended the penal code to prevent “any ambitious person from
capturing state power illegally”.

"Ershad is also a usurper like Khandaker Mostaque, Abu Sadat
Mohammad Sayem and Ziaur Rahman," the court continued taking a trip deep down the baroque political course of the country.

Regarding the August 15, 1975 tragedy, the verdict said Khandaker Mostaque declared himself country`s president illegally though he was not the vice-president of Bangabandhu`s government.

As per the judgment, "Ziaur Rahman captured power illegally from Khandaker Mostaque, and after assuming power, he erased the fundamental principles of the country`s Liberation War from the constitution."

It said Zia “rehabilitated the killers of Bangabandhu by giving them appointment to Bangladesh missions abroad and also paved the way for introducing religion-based politics in the country.”

Earlier on Wednesday, Additional attorney-general MK Rahman pleaded that Ershad, whose party is now in the ruling grand alliance, should be tried under the conventional penal code.

During earlier hearing, the state counsel had sought opinion of the additional attorney-general on the legality of the former military ruler’s seizure of power by force as it was legalized by parliament later through the seventh amendment.

The additional attorney-general replied: according to the constitution, declaring military rule is not legal in the country and so martial law cannot be ratified in the parliament.

“But Ershad violated all the rules and seized power, which makes his forming government illegal and punishable,” said the government attorney in his opinion.

A case of death of some Abu Taher in Chittagong on December 24, 2008 gradually headed towards the filing of the writ petition with the High Court challenging the impugned 7th amendment.

On April 5 this year, an HC bench comprising Justice Momtazuddin Ahmed and Justice Naima Haider issued a rule asking why the 7th amendment to the constitution ‘should not be declared illegal and anti-constitutional’.

BDST: 1400 HRS. AUG 26, 2010