Martial Law in Bangladesh
Martial law is the law administered in the courts maintained by military authorities. Martial law is of three kinds
It is the law for the disciplines and control of the army itself and is commonly known as the military law. It affects the army along and never the civil population.
The second kind of martial law is that by which in times of war, the army governs any foreign land in its military occupation. The country is governed by the military commander through the prerogative of the sovereign. The law in this case depends upon the pleasure of the military commanders.
The third kind of martial law is the law by which in times of war, the army governs the redid itself in derogation of the civil law so far as the same is required for public sandy or military necessity. The temporary establishment of military justice can be justified on the ground of necessity. The establishment of a military government and military justice is known as the proclamation of martial law. Courts can not question the validity of the actions a military commander if he had acted honestly.
Martial law is not to be confused with military law. The two are different concepts. While military law is state law, martial law is based on common law. Military law is applicable to soldiers alone and is embodied in the Army Act. Offences under this Act are tribal by the courts martial. As an ordinary citizen, a soldiers as well as civilians in times is governed by the ordinary law of the land. While military is applicable to soldiers alone, martial law is applicable to soldiers as well as civilians in times of war of tumult. Even when there is no war or rebellion, soldiers are governed by military law. Martial law is temporary while military law is permanent law.
According to decay, martial law can not be desorbed even in times of war by the exercise of the prerogative of the crown that prerogative has not been exercise since the rotation of rights of 1628 and has fallen into disuse. However martial law war declared in Jamaica in 1865 and in Ireland in 1920 by an Act.
Historical Development of Martial Law
In international law, Martial law refers to the power of a military commander in war time in enemy territory. The Duke of Wellington said in the Hose of Lords that it is neither more nor less than the will of the general who commands the army. This is distinct from Martial law as machinery for the enforcement of internal order in times of war or internal disorder. The latter is normally brought in by a proclamation issued under becomes impossible for the civil government. Such Martial law is brought in to assist the state in suppressing disorder and does not destroy the civil government or the legal order. What happens if the military commander forcibly takes over the state power and abrogates the constitution? In 1958 persons bound by oath to maintain the supremacy of the constitution imposed martial law and aborted the constitution of Pakistan. The Pakistan Supreme Court found this revolutionary government to be legal holding.
It sometimes happens, however, that a constitution and the national legal order under it are disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order. [State vs. Doss, 11 DLR (sc) 1]
In such a situation, the legality of the revolutionary government is not to be judged by reference to the annulled constitution but by the success of the revolution.
In Uganda, the high court came to the same conclusion when the 1962 constitution of Uganda was abolished by the National Assembly and the constitution adopted in its place, as a result of which the then prime minister was installed as Executive President with power to appoint a vice-President. This, according to the court, was a revolution. Uganda Vs.commp. of prisons, Exp. Mathve , E.A.514.
When the prime minister of Rhodesia made a unilateral declaration of independence, the question of legality of evolutionary government came up for consideration by the Privy Council in the case of Madzimbamto Vs. Lardner. Burke  3 all E.R.561.
The question of revolutionary legality came up before the Pakistan Supreme Court in Asma Jilani Vs. Punjab PLD 1972 sc 139. The court found Yahaya Khan to be a Usurper.
Supremacy of the Constitution
Generally in a written constitution, all laws must conform to the provision of the constitution. If there be no limitation on the power of the legislature in making law and the provisions of the constitution can be amended following the same procedure by which an ordinary law can be enacted or amended, there is supremacy of the legislature in the sense that the court can not question the vires of the laws passed by the legislature. If a law is passed which is inconsistent with the constitution, the constitution will be held potato amended. But if there are entrenched provisions in the constitution limiting the power of the legislature in the enactment of laws and amendment of the provisions of the constitution requires stricter procedure, there is no supremacy of the legislature; it is the constitution which is supreme and to it all actions of the legislature and executive must conform whether or not it is stated in the constitution. In our constitution Art. 7 declares that all powers in the Republic belong to he people, and their exercise on behalf of the people shall be effected only under and by the authority of, the constitution and further that the constitution, as the solemn expression of the will of the people, it the supreme law of the Republic, that other law shall, to the extent of the in consistency, be void. This one inutile fully encompasses the law of the constitution as regards paramonatcy. This article explicitly speaks of (a) sovereignty of the people and republican character of the state and government. (b) supremacy of the constitution as the solemn expression of the with of the people (c) void ability of other laws inconsistent with the supreme law, this ‘constitution’ and implicit in the article are the concept of (d) Limited government with there organs performing functions by and under the authority of the constitution (e) separation of power between the three co-ordinate organs of the state as a corollary of designated functions and (f) enforceability of the supremacy of the constitution by the supreme court.
In 1975 the Usurper did not abrogate the constitution, but allowed the constitution to operate subject to the proclamation and Martial Law Regulations and orders and shortly thereafter by another proclamation set a time limit for holding election for full restoration of the disturbed constitutional order. It could not be said that the legal order established by the constitution was dead. Dicter Conrad in his article made a distinction between the two types of Usurpation.
Briefly, the typical tow situation and their essential differences may be described thus; one where the revolutionary power attempts to change the basic constitutional structure and to introduce a new order; the other, where extra-constitutional action may overvieutly be characterized by drawing on a distinction from German doctrinal discussion, namely of commercial and sovereign dictatorship…. The difference is that the commissarial dictator is ultimately bound to, though not presently restricted by, the existing constitution, while the sovereign dictator justifying his actions from the future order is not measured by any precise constitutional yardstick (though by the requirement of either a mandate or a final ratification) and usually reserves power to sudge on the appropriate required.
The question of the application of principle of revolutionary legality arises in the Case of a sovereign dictatorship; if the regime is found to be legal because of the effective control of the sovereign dictator and the death of old legal order, that is the end of the matter. The declaration of Independence of East Pakistan was an at of rebellion so-far as the constitutional and legal order of Pakistan was concerned, but the destruction of that legal order in East Pakistan was so complete and the acceptance of eh new legal order was so indisputable that there could not be any doubt about the lawful right of the emerging Government of Bangladesh to govern the territory. If the court finds that the taking over of power in a manner not contemplated by the constitution was illegal and can not be legitimized by application of the principle of revolutionary legality, the question would then arise as to whether, and which of, the acts of the sovereign dictator will have to be found legal on principle of necessity. In the case of commissarial dictatorship there is no claim of death of the old legal order and as such the question of application of he principle of revolutionary legality does not arise. It is straightaway a question of the application of the principle of necessity to legalise the actions Usurper, which the court considers to be a temporary constitutional deviation rather than Usurpation, till the constitutional order is restored.
Marital Law in Bangladesh:
The government of SK Mujibur Rahman was toppled by an army coup defeat on 15 August 1975. Khandoker Mustaque Ahmed assumed the office of president and imposed Martial law in the country. On 20 August 1975, he issued a proclamation providing that the constitution would, subject to the proclamation and Martial Law Regulations and Order made by him, continue to remain enforces, but no court including the supreme court or any tribunal or authority would have any power to all in question or declare void and proclamation or any Martial law Regulation or order made by him. On 6 November 1975 by the proclamation (Second amendment) order, 1975 Khandoker Mustaque Ahmed assumed power to hand over the office of the president to any person and he handed over the office of the president to A. M. Sayem CS. Justice Sayem issued the proclamation of 8 November 1975 in his capacity as the president and chief Martial law Administrator modifying the proclamation of 20 August 1975. Part VIA which provided for the done party system, was omitted from the constitution. Thereafter by successive proclamation order amendments were made in the constitution. By the Second Proclamation (Seventh Amendment) order, 1976 the president and chief Martial law Administrator amended art. 44, inserted a new art. 64A and substituted part VI of the constitution, bifurcating the supreme court into supreme court and High Court, replacing the term. Supreme Court by the term “High Court” in Art. 44 and creating the office of Advocate General. This amendment restored the power of the High Court Division (then called high court) to enforce the fundamental rights. By third proclamation of 29 November 1976 president appointed Ziaur Rahman as the chief Martial Law Administrator in 1977 Ziaur Rahman as president and chief. Martial law Administrator issued proclamation order no. 1 of 1977 adding the expression “Bismillah-hir-Rahman-Ar-Rahim; before the preamble.
The country was placed under martial law from 15.08.1975 by Mr. Khandker Mostaque Ahmed under a proclamation dated 20th August, 1975. He assumed the office of the president but did not designated himself as the martial law Administrator as well though he reserved all powers to make Martial law Regulations and order. He made over the office of the president to Mr. Justice A. M. Sayem on 6th November 1975, assumed the powers of chief Martial law Administrator also. It was specifically provided that these tow proclamation should be read together as the one and same proclamation. The president again made another proclamation The Third Proclamation, on 29th November, 1976 under which he relinquished the office of the chief Martail Law Administrator and appointed Major General Ziaur Rahman as the chief Martial Law Administrator. On 21st April, 1977, President A. M. Sayem resigned from the office of the president after appointing Major General Ziaur Rahman as the president and since then both these offices merged in one person again. But though the country was placed under Martial law the constitution of Bangladesh, 1972 was not abrogated but it was provided that “it shall remain in force subject to this proclamation and Martial law regulations and orders and the other orders made pursuance of the proclamation and that proclamation. Martial law regulations and orders and other orders shall have effect (d) & (e) of the proclamation dated 20.08.1975 relevant in the case sultan Ahmed Vs. election commissioners.
Quoted below: ii (d) this proclamation and the Martial law Regulations and orders and other orders made by me inpursuanec there of shall have effect not with standing anything contained in the constitution of the people’s Republic of Bangladesh or in any law for the time being enforce; (d) The constitution of the people’s republic of Bangladesh shall subject this proclamation and the Martial Law Regulations and orders and other orders made by me in pursuance there of continue to remain in force.
As to the provisions of the constitution relating to election to the office of the president these were suspended by the proclamation. The relevant parts there of are para (3) of the preamble of the proclamation dated 20.08.1975 and clause (f) of the proclamation dated 08.11.1975 and they are, as they stand after many amendments quoted below:
Preamble, Para (3)
“Anduhereas, with effect from the morning of the 15th August, 1975, I have suspended the provisions of Article 48 of the constitution of the people’s Republic of Bangladesh.”
“The provisions of the constitution in so far as it relates the election of the president of Bangladesh shall remain suspended until a date on or before which such election should be held as specified by the chief Martial Law Administrator by a no notification in the official Gazette.”
On plain reading of these provisions of proclamation it is as clear as anything the Martial Law is the Supreme Law of the land and that though the constitution has been abrogated it has been made subordinate to the Martial Law and that the constitution will continue in force subject to the Martial Law, it will have effect thing it does not come in conflict with the Martial Law.
Mr. Khandoker Mostaque Ahmed who form the president of Bangladesh assumed the power of the government and by clauses (d) and (e) of the proclamation made the constitution of Bangladesh which was allowed to remain in force, subordinate to the proclamation and any Regulation or order as may be made by the president in pursuance there of under the proclamation……… the constitution has lost its character as the supreme law of the country.
“The moment the country is put under marital law, the constitutional provision along with other civil laws of the country loses its superior position.
Invant Abedin Vs. Bangladesh
Halima Khatun Vs Bangladesh
Thus is the situation in Bangladesh. the counts were not required to decide on the application. The principle of revolutionary legality. In Halima khatun vs Bangladesh 30DLR (AD) 207 the petitioner field a writ petition challenging an order of the government treating certain property as abandoned property. The writ petition was dismissed on the ground that the petition involved disputed question of fact. The petitioner filed a leave. petition, but before the petition could be have, martial law order No. VII of 1977 was promulgated abating the pending proceedings relating to properties treated as abandoned properties by the government. At the hearing, a preliminary objection was raised that in view of Martial Law Order the leave petition banded. From the petitioners side it was pointed out that the constitution has not been abrogated and as such a martial law order can not be passed ousting the constitutional Jurisdiction of the supreme court and furthermore the proclamation under the authority of which the Martial Law Order was passed could not and, in fact, did not oust the constitutional Jurisdiction of the supreme court. The appellate division, while dismissing the leave petition, did not take into consideration the fact that the dosso situating did not prevail in the present case and that the constitution having not been abrogated the question of a now legal order replacing the existing legal order could not arise. If the constitution is allowed to operate and the court is operating under the constitution, there is no principle of state necessity, which can be restored to
Find the action of the Usurper justified and legal. But the principle of necessity, even if applicable, can not normally extended to the ouster of the court jurisdiction. Such—– of the counts jurisdiction does not really pars the tests of state necessity bid dean by the counts and the superior counts continue to have the power of judicial peview to judye the validity of any act or action of the Armed forces, of challenged, in the light of the principles underlying the law of state necessity. It may be —- that without going into the byal issues the Appellate Division should not have accepted the position, as a matter of law, that when any person takes over power in a manner not con template by the constitution and proclaims that the constitution will be subordinate to his proclamations, the constitution is delegated from its position as the supreme law and is to operate subject to the proclamations and orders passed by the usurper. In joynal Abeding V. Bangladesh [30 DLR 371] a conviction by Martial law court was challenged in writ Jurisdiction and the point was squarely raised that the proclamation of Martial law can not take away the constitutional jurisdiction of supreme court —- the constitution remains operative. The High court division hoted the fact that the constitution was — and was allowed to operate, though subordinate to the martial law proclamations Regulations and Orders, and found that the instant martial law was merely a constitutional deviation and not one of Wellington Ian style and not with standing the provisions of the probation and Martial Law Relations, the Jurisdiction of the supreme court in respect of martial Law court wads not ousted . On appeal the Appellate division by a majority decision, reversed the High court loyal status of the Martial law and simply holding , the moment the country is put under Martial law, the above noted constitutional provision along with other evil laws of the country loses its superior position. In the subsequent case of khandker Fhteshamuddin V. Bangladesh the appellate Division follwing Halima Khatun and joynal Abedin held, it is true that —— 7(2) declares the constitution as the supreme law of the Republic and if ay laws incomsis that with the constitution that other law shall to the extent of the inconsistent be void but the supremacy of the constitution can not by any means compare with the proclamation issued by the chief Martial law Administrator It appears that the court could not come out of the influence of the holding in Dosso even though the situation in that case was different from the the situation in dosso. The appellate Division refemed to the decision in asma lilani V puajab [ PLD 1972 se 139], state V Zia or Rahman [PLD 1973 se 40] Pakifan V saeed Ahmed [PLD 1974 sc 151] but the impenetrate decision of the —- supreme court in Begum Nusrat Bhuto V chief of Army staff does not appear to have been cited from the Bar.
Kh. Ehteshamudin Vs. Bangladesh case shows that chief Martial law Administrator empowered to transfer a case firm a criminal court of Martial law Court.
According to martial law regulation 3(2) chief Martial law administrator may transfer a case from one Martial law court to another Martial Law court or from a criminal court or special tribunal to a martial law court of from special Martial Law tribunal to a special Martial law court.
It is true that article 7(1) declares the constitution as the supreme law of the republic. but supreme of the constitution can not by any means compete with the proclamation headed by the chief martial law administration supremacy of the constitution from this aspect as was examined in Halima Khatun’s case and it was boiled as follows:
Ironically enough , this Article, though still exists, must be taken to have lost some of its importance and efficacy it view of elapses (d), (e) ond (g) of the proclamation the supreme of the constitution as declared in that article is no longer unqualified. In spite of this Article no constitutional provision can claim to be sacrosanct and immutable. The present constitutional provision may however, claim superiority to any law other than a Regulation or order made under the proclamation.
The position of the constitution vis-a-vis the proclamation and martial law regulation was considered by this Division in Hiji Joynal Abedins care, to which myself was a party. After examining the question from Vapiom aspect this division express the view which will appear from the observation, some of which are quoted below:
“From a consideration of the features noted above it leaves no room for doubt that the constitution though not abrogated, was reduced to a position subordinate to the proclamation. In as much as the unamended and unsuspended constitutional provisions ware kept in force and allowed to constitution subject to the proclamation and martial law regulation or orders and other and the constitution was amended from timetotima by issuing proclamation.
In this case of Abedin’s also observed that clauses (7) and (8) of regulation 4 of Martial Law Regulation no. 1 of 1975 provide immunity to the proceeding of a martial law court being made the subject matter for examination under article 102 of the constitution, in consultation of the “Ouster” of High Court Contradiction by the above noted provision of martial law, this division in Haji Joynal Abedin’s case coclaunded as follows:
in view of the provisions of above it leads to the conchiosn that heither vives of (2) of Regulation No. 3 of Martial Law Regulation No.-1 of 1975 non passed within transferring a case to a special Martial Law Court can be challenged by court to law. The wait Jurisdection of High Court Division concern under article 102 of he constitution to be exercised subject to the proclamation and the Martial Law Regulations.
Transfer in the case of Haji Joynal Abedin it was done by the chief Martial Law Administrator, where as, in the case of haji Joynal Abedin it was done by the Government as the law stood then thevfovse the question of supplying quideline to the execution aohipased some importance in view of the argument that basis for arbitrary exercise of power has been laid by such a wide conferment of power without supplying any quide-line. In the present case the chief martial law administrator himself has transferred the case and since this power has been conferred upon him the quotation of quide-line would not be relevant. He himse if has parced the law and than acted under it no exception can be taken to such an order because the order is not in exess of the power. Whether such power of transfer may operate in discriminatory manner need not be decided in this case and that will be decided in an appropriate case.
Lastly, as far the mercy petition under section 401 and 402 of the CrPC it is convicted that this is the prerogative of the Govt. under section 402 A this peon ahs also been conferred much wider form upon the president Art. 57 of the constitution empower president to grant pardon in any case, court has nothing to do in this sphere. In the result therefore, that appeal should be dismissed.