PROBLEMS OF MARTIAL LAW ADMINISTRATION IN JUDICIAL SYSTEM OF BANGLADESH

Chapter I

Preliminary

From historical point of view the origin of the modern concept of martial law traces back to the court of the Constable and Marshal which was a part of Curia Regis or the Supreme Court established in England in the middle age by William, the conqueror.

1.1 Meanings of Martial Law

The term ‘martial law’ may be used in the following four senses:-

Firstly, in earlier times ‘martial law’ was used to mean what we now call military law, the law for the discipline and government of the armed forces. It had this connotation up to the latter part of the eighteenth century. Prior to that period, no distinction was made between the military law and the martial law of the present day as they had a common historical origin in the law that had been administered in medieval England in the court of Constable and the Marshal.

Secondly, the term ‘martial law’ is commonly used in the sense of military government in occupied foreign territory in time of war. Martial law in this sense of military government is quite outside the ambit of municipal or constitutional law; it is rather a subject matter of international law.

Thirdly, martial law is used to mean the development of troops in aid of and under the discretion of the civil authorities to suppress riot, insurrection or other disorders, in the realm without the proclamation of martial law. It is to be noted that the right to enlist the support of the military forces by the civil authority in its effort to restore order is common to the law of every civilized country. This right of the executive cannot be properly called ‘martial law’. It seems that, for the lack of an alternative name the expression ‘martial law’ is used to mean the use of military forces in the aid of the civil authorities in suppression riots or other public disorders.

Fourthly, martial law means that kind of law which is generally promulgated and administered by and through military authorities in an effort to maintain public order in times of insurrection, riot or war when the civil government is unable to function or is inadequate to the preservation of peace, tranquility and enforcement of law and by which the civil authority is either partly or wholly suspended or subjected to the military power. And as soon as peace is restored, the military authority goes back to its barrack handing over power to the civil government. This type of martial law is called martial law in proper sense.

1.2 Philosophical aspects of martial law

The Courts in developing countries have restored the two different doctrines-‘Doctrine of Efficacy’ and the ‘Doctrine of State Necessity’ in respect of Martial Law which are described below:

The ‘Doctrine of Efficacy’ is also called the doctrine of revolutionary legality which based on the positivist theory of the Efficacy of the change or revolution (coup d’etat) expounded by Hans Kelsen. In his book “General Theory of Law and State” Kelsen, under the heading of “the Principles of Legitimacy”, has given a logical explanation on the elements and effects of a revolution. According to Kelsen, a revolution means a successful revolution and a successful revolution must have the following two elements:

(i) The overthrow of existing order and its replacement by a new order.

(ii) The new order begins to be efficacious because the individuals whose behaviour the new order regulates actually behave, by and large in conformity with the new order.

If these two facts are associated with the new order, then the order is considered as valid order and a law creating factor. So the success of a revolution or, in other words, the efficacy of the change would establish its legality.

This Kelsen’s theory of efficacy was first applied in State v. Dosso [PLD 1958 (SC) 533] case by the Supreme Court of Pakistan.  President Major General Iskander Mirza finding himself unable to rally support among the politicians for his re-election, by a Proclamation on the night of 7th October, 1958 abrogated the Constitution of 1956, dismissed the Central and Provincial Governments; dissolved the Central and Provincial Legislatures and declared martial law throughout the Country.

After that ‘the Pakistan judiciary had to face unique situation when it was required to pronounce on the legality of a new regime which usurped power through an unprecedented means hitherto unknown in the constitutional history of the Commonwealth. The martial law imposed by Mirza was not ‘martial law’ as understood by the ordinary connotation of the term. The pre-existing legal order had been overthrown establishing a new one by an extra-ordinary means not contemplated by the Constitution and the question of legitimacy of the new order had come for examination before a court established under the system which had now been replaced”.

While the matter was brought before the Supreme Court for its consideration, the court took resort to the positivist theory of Hans Kelsen and declared the Martial Law and Military Government of Pakistan valid on the basis of the doctrine of efficacy as explained by Kelsen. The substance of the judgment was that since the Constitution was abrogated and its government came to power by imposing martial law and since there was no protest among the people, the coup was a successful one and martial law and military government were legally valid.

The judgment delivered in Dosso’ case had to face a severe criticism on the one hand and on the other hand, it had a great impact, for it gave recognition to an unconstitutional government which became a pattern of ‘change’ in the Commonwealth countries and later on, this decision has been referred to with approval in courts of many countries like Nigeria, Rhodesia, Ghana, Uganda etc.

In Uganda v. Commissioner of Prisoners Exparte Matuvo the Ugandan High Court following the decision of Dosso’s case held that the Constitution of 1966 of Uganda which was made by military government was a product of a revolution and it would be regarded as valid and the supreme law of Uganda. Similar verdict was given in R v. Ndholvu by the Rhodesian High Court and also in Awoornor Williams v. Gbedmah by the Supreme Court of Ghana.

In Asma Jilani v. The Government of Punjab [PLD 1972 SC 139] the same Supreme Court of Pakistan overruled the decision of Dosso’s case and held that the martial law proclaimed by Yahya Khan was illegal and that his assumption of power on 25th March, 1969 was wholly unconstitutional and could not be recognized as valid. As to the doctrine of efficacy the court said: “The principle laid down in Dosso’s case is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or even otherwise.”

In constitutional law martial law finds its justification in the common law doctrine of necessity for its promulgation and continuance; all measures taken in exercise of the power of martial law must be justified by requirements of necessity alone, the necessity to restore law and order. The legality of martial law proclaimed by General Ziaul Haque came up for consideration in Begum Nusrat Bhutto v. The Chief of Army Staff and Federation of Pakistan [PLd 1977 SC 657]. The Supreme Court declared martial law and military coup by Ziaul Haque valid; it overruled the decision of Asma Jilani. But this time the court did not relay on the doctrine of efficacy; rather it restored to the ‘Doctrine of State Necessity’. The Court said:

“… It was in these circumstances that the Armed Forces of Pakistan….intervened to save the country from further chaos and bloodshed to disaster. It was undoubtedly an extra-constitutional step, but obviously dictated by the highest consideration of state necessity and welfare of the people……… The imposition of martial law was impelled by high considerations of state necessity and welfare of the people, the extra-constitutional step taken by the Chief of Army Staff to overthrow the government of Mr. Bhutto, as well as the provincial government and to dissolve the Federal and Provincial legislature stand validated in accordance with the doctrine of necessity.” 

1.3 Research objectives of the study

The objectives of my research work are the followings:

  1. To know the concept and nature of martial law.
  2. To find out the influences of martial law in judicial system of Bangladesh.
  3. To analyse the problems creating by the different martial law proclamations.
  4. To analyse the cases regarding martial law.
  5. To make recommendations in the concerned matter.

 1.4 Research Methodology

Every work is done by a proper method. Without a systematic method the objectives of the research is not gained. There is different method. I have adopted analytical method to do my research work. I have collected the data from secondary sources. As secondary sources I have used different books, Government Publications, and internet and depended on some case studies.

Chapter II

Martial Law and its impacts on the judicial system

  1. First Phase (1975-1979)

The Constitution of Bangladesh does not envisage the imposition of martial law. Throughout the text of the Constitution, no reference has been made to Martial Law. Although the term ‘martial law’ had duly occurred in Article 196 of the 1956 Constitution of Pakistan and Article 223A of the 1962 Constitution of Pakistan, the Articles which enacted provisions for passing an Act of Indemnity in relation to acts done in connection with Martial Law Administration, it has significantly been omitted from corresponding Article 46 of the Constitution of Bangladesh that empowered Parliament to pass an Act of Indemnity in respect of any act done in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh. This shows that although in Pakistan Articles 196 and 223A of the 1956 and 1962 Constitutions respectively, recognized the possibility that Martial Law might be imposed under the common law ‘Doctrine of Necessity’ for the purpose of ‘the maintenance or restoration of order in any area in Pakistan’, no such recognition was given in Bangladesh where the phrase ‘martial law’ was omitted from the analogues Article 46 of the Constitution of Bangladesh. Therefore, it appears that in the Constitution of Bangladesh there is no provision whatsoever for the imposition of martial law under any circumstances even for the sake of restoration of law and order.

But like some other commonwealth countries martial law was imposed unconstitutionally in Bangladesh twice-first, on the 15th August, 1975 and second, on the 24th March 1982.

After the killing of the then President Shiekh Mujubur Rahman, Khadaker Mostaque Ahmed assumes the power of President and places the whole country under Martial Law on the 15th day of August 1975. Following this on the 20th day of August 1975 he made a Proclamation which makes the Constitution subordinate to martial law. The Proclamation read as follows:

Whereas I, Khandaker Mostaque Ahmed, with the help and mercy of the Almighty Allah and relying upon the blessings of the people, have taken over all and full powers of the Government of the People’s Republic of Bangladesh with effect from the morning of the 15th August, 1975.

And whereas I placed, on the morning of the 15th August, 1975, the whole of Bangladesh under Martial Law by a declaration broadcast from all stations of Radio Bangladesh;

And whereas, with effect from the morning of the 15th August, 1975, I have suspended the provisions of Article 48, in so far as it relates of election of the President of Bangladesh, and Article 55 of the Constitution of the People’s Republic of Bangladesh, and modified the provisions of Article 148 thereof and form I of the Third Schedule thereto to the effect that the oath of office of the President of Bangladesh shall be administered by the Chief Justice of Bangladesh and that the president may enter upon office before he takes the oath;

Now, thereof, I, Khandaker Mostaque Ahmed, in exercise of all powers enabling me in this behalf, do hereby declare that-

(a) I have assumed and entered upon the office of the President of Bangladesh with effect from the morning of the 15th August, 1975;

(b) I may make from time to time, Martial Law Regulations and Orders-

(i) providing for setting up Special Courts or Tribunals for the trial and punishment of any offence under such Regulations or Orders or for contravention thereof, and of offences under any other law;

(ii) prescribing penalties for offences under such Regulations or Orders or for contravention thereof and special penalties for offences under any other law;

(iii) empowering any Court or Tribunal to try and punish any offence under such Regulation or Order or any contravention thereof;

(iv) barring the jurisdiction of any Court or Tribunal from trying any offence specified in such Regulations or Orders;

(c) I may rescind the declaration of Martial Law made on the morning of the 15th August, 1975, at any time, either in respect of the whole of Bangladesh or any part thereof, and may again place the whole part of Bangladesh or any part thereof under Martial Law by a fresh declaration;

(d) this Proclamation and the Martial Law Regulations and Orders made by me in pursuance thereof shall have effect notwithstanding anything contained in the Constitution of the People’s Republic of Bangladesh or in any law for the time being in force;

(e) the Constitution of the People’s Republic of Bangladesh shall, subject to this Proclamation and the Martial Law Regulations and Orders made by me in pursuance thereof, continue to remain in force;

(f) all Acts, Ordinances, President’s Orders and other Orders, Proclamations, Rules, Regulations and other legal instruments in force on the morning of the 15th August, 1975, shall continue to remain in force until repealed, revoked or amended;

(g) no Court, including the Supreme Court, or tribunal or authority shall have any power to call in question in any manner whatsoever or declare illegal or void this Proclamation or any Martial Law Regulation or Order made by me in pursuance thereof, or any declaration made by or under this Proclamation, or mentioned in this Proclamation to have been made, or anything done or any action taken by or under this Proclamation, or mentioned in this Proclamation to have been done or taken, or anything done or any action taken by or under any Martial Law Regulation or Order made by me in pursuance of this Proclamation;

(h) I may, by order notified in the official Gazette, amend this Proclamation.”

Though martial law was imposed, the Constitution was not suspended; it was to remain in force subject to martial law proclamation, regulations, orders, etc. The above mentioned Proclamation made the Constitution subordinate to the said Proclamation. Thus the Constitution losses its supreme character and it functions under the supervision and control of the Martial Law Regulations, Martial Law Orders etc. This martial law continued for three years and seven months. On the 5th April 1979 the Chief Martial Law Administrator and President Lieutenant General Ziaur Rahman got his extra constitutional regime legalized through the Parliament which was elected during the continuance of martial law and on 6th April martial law was withdrawn.

Section (g) of the said Proclamation provides, “no Court, including the Supreme Court, or tribunal or authority shall have any power to call in question in any manner whatsoever or declare illegal or void this Proclamation or any Martial Law Regulation or Order made by me in pursuance thereof, or any declaration made by or under this Proclamation, or mentioned in this Proclamation to have been made, or anything done or any action taken by or under this Proclamation, or mentioned in this Proclamation to have been done or taken, or anything done or any action taken by or under any Martial Law Regulation or Order made by me in pursuance of this Proclamation.” By enacting these words, the ordinary law including the principles as laid down in the Constitution then function as delegated legislations.

On the 6th November, 1975 Khadaker Mostaque Ahmed handed over his power to the then Chief Justice of Bangladesh A S M Sayem. As being President Justice Sayem made another Proclamation on the 8th November, 1975.

The administration of justice in the higher judiciary and judicial system as enumerated in the Constitution of Bangladesh lost its unitary character when the Second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation Order No. IV of 1976) is promulgated in 1976. Article 4 of the said Order inserted Chapters I, IA, IB for Chapter I in Part VI of the Constitution. After these changes the High Court Division is transformed in to a separate High Court and the Appellate Division is amalgamated with the Supreme Court. To represent the government in the High Court, an Advocated General is appointed. The courts beyond the Supreme Court and the High Court were made subordinate to the High Court. Thus the Supreme Court lost its actual power to supervise all subordinate courts. It turned into an appellate forum and advisory body.

On the 9th March 1977 the Court’s Jurisdiction (Restriction) Regulation, 1977 (MLR No. XXXIV of 1977) was promulgated which imposes restrictions on the powers of the High Court to call in question of any proceedings of any Martial Law Courts or Martial Law Tribunals and limited the writ jurisdiction of the High Court. Thus those persons who were committed in the Martial Law Courts or Martial Law Tribunals were deprived of their fundamental rights. It has a great impact on the administration of justice of Bangladesh. After promulgation of the said Regulation, the petitions which was then filed or to be filed before the High Court against any order of Martial Law Courts or Martial Law Tribunals were dismissed and the Supreme Court including the High Court declared the said MLR legal.

On the 23rd April 1977 the Proclamations (Amendment) Order, 1977 (P. O. No. I of 1977) was promulgated which inserted a new paragraph named 3A to the Fourth Schedule to the Constitution to validate the different proclamations of martial law. The paragraph read as follows:

“3A. Validation of certain Proclamations, etc.-(1) The Proclamations of the 20th August, 1975, and 8th November, 1975, and Third Proclamation of the 29th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all Martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any Court or Tribunal on any ground whatsoever.

(2) All orders made, act and things done, and actions and proceedings taken, or purported to have been made, done or taken, by the President or the Chief Martial Law Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from any of the said Proclamations or any Martial Law Regulation or Martial Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any Court or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any Court, or Tribunal on any ground whatsoever.

(3) No suit, prosecution or other legal proceeding shall lie in any Court or Tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceeding taken whether in the exercise or purported exercise of the powers referred to in sub-paragraph (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(4) All amendments, additions, modifications, substitutions and omissions made in this Constitution by the said Proclamations shall have effect as if such amendments, additions, modifications, substitutions and omissions were made in accordance with, and in compliance with the requirements of this Constitution.

(5) Upon the revocation of the said Proclamations and the withdrawal of Martial Law this Constitution shall, subject to amendments, additions, modifications, substitutions and omissions as aforesaid, have effect and operate as if it had been in continuous operation.

(6) The revocation of the said Proclamations and the withdrawal of Martial Law shall not review or restore any right or privilege which was not existing at the time of such revocation and withdrawal.

(7) All laws in force immediately before the revocation of the said Proclamations and withdrawal of Martial Law shall, subject to the Proclamation revoking the said Proclamation an withdrawing the Martial Law, continue in force until altered, amended or repealed by the competent authority.

(8) The General Clauses Act, 1897, shall apply to the revocation of the said Proclamations and the withdrawal of Martial Law and the repeal of the Martial Law Regulations and Martial Law Orders made during the said period as it applies to the repeal of an Act of Parliament as if the said Proclamations and the Proclamation revoking them and withdrawing the Martial Law and the Marital Law Regulations and Martial Law Orders were all Acts of Parliament.

(9) In this paragraph, ‘law’ includes Ordinances, rules, regulations, bye-law, orders, notifications and other instruments having the force of law.”

By the said Order I of 1977, all proceedings before any martial law court or tribunal and decisions given by any martial law authority was given indemnity enacting the words “No suit, prosecution or other legal proceeding shall lie in any Court or Tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceeding taken whether in the exercise or purported exercise of the powers…………..”. This safeguard to the military administration is declared illegal as has been described later.

On the 1st May 1977 the Referendum Order, 1977 was promulgated for arranging a referendum to give validity to the assumption of office of President by the CMLA Ziaur Rahman which has later held unconstitutional by the Supreme Court in famous Fifth Amendment case.

On 27th November, 1977 the Judiciary is given its unitary character as it has, before the changes made in 1976 by the Second Proclamation (Tenth Amendment) Order, 1977 (S.P.O. No. I of 1977). Article 96 inserted to the Constitution by the said Order makes a new provision relating to the constitution of a ‘Supreme Judicial Council’ for the removal of judges of Supreme Court. The impeachment of Judges thus vested to the said Council instead of Parliament. It was an undemocratic step. If we see back in 1962 such a Council was provided in the Constitution of then Pakistan by the military government of Ayub Khan. Before the amendment made by the SPO No I of 1977, judiciary was liable to the people for its work through the representative seated in Parliament. But after the said amendment judiciary made subordinate to the President as well as to the military administration. On the other hand, a retired judge of High Court Division was given right to practice before the Appellate Division by the said amendment Order after the insertion of Article 99 to the Constitution. All the changes made in the Constitution during the period of 1975 to 1976 are ratified by the Constitution (Fifth Amendment) Act, 1979 (Act I of 1979). The said Act inserted a new paragraph 18 in the Fourth Schedule to the Constitution which is as follows:

“All Proclamations, Proclamation Orders, Marital Law Regulations, Martial Law Orders and other laws made during the period between the 15th August, 1975, and the 9th April, 1979 (both days inclusive), all amendments, additions, modifications, substitutions and omissions made in this Constitution during the said period by any such Proclamation, all orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by any person or authority during the said period in exercise of the powers derived or purported to have been derived from any such Proclamation, Martial Law Regulation, Marital Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, are hereby ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.”.

  1. Second phase (1982-1986)

For the second time martial law was imposed by the then Chief of Army Lieutenant General Hussain Muhammad Ershad ousting the civil government of Justice Abdus Sattar on the 24th day of March, 1982. The Proclamation is as follows,-

WHEREAS a situation has arisen in the country in which the economic life has come to a position of collapse, the civil administration has become unable to effectively function, wanton corruption at all levels has become permissible part of life causing unbearable sufferings to the people, law and order situation has deteriorated to an alarming state seriously threatening peace, tranquility, stability and life with dignity and bickering for power among the members of the ruling party ignoring the duty to the state jeopardizing national security and sovereignty.

         AND WHEREAS the people of the country have been plunged into a state of extreme frustration, despair and uncertainty.

         AND WHEREAS in the greater national interest and also in the interest of national security it has become necessary to place our hard earned country under Martial Law and the responsibility has fallen for the same upon the Armed Forces of the country as a part of their obligation towards the people and the country.

         NOW, THEREFORE, I, Lieutenant General Hussain Muhammad Ershad, with the help and mercy of Almighty Allah and blessings of our great patriotic, people, do hereby take over and assume all and full powers of the Government of the People’s Republic of Bangladesh with immediate effect from Wednesday, 24th March, 1982 as Chief Martial Law Administrator of the People’s Republic of Bangladesh and do hereby declare that the whole of Bangladesh shall be under Martial Law with immediate effect. Along with assumption of powers of Chief Martial Law Administrator I do hereby assume the full command and control of all the Armed Forces of Bangladesh.

In exercise of all powers enabling me in this behalf, I, Lieutenant General Hussain Muhammad Ershad do hereby further declare that:-

  1. I have assumed and entered upon the office of the Chief Martial Law Administrator with effect from Wednesday, 24th March, 1982.
  2. I may nominate any person as President of the country at any time and who shall enter upon the office of the President after taking oath before the Chief Justice of Bangladesh or any Judge of the Supreme Court designated by me. I may rescind or cancel such nomination from time to time and nominate another person as the President of Bangladesh. The President so nominated by me shall be head of the state and act on and in accordance with my advice as Chief Martial Law Administrator and perform such functions as assigned to him by me.
  3. I may make, from time to time, Martial Law Regulation, Orders and Instructions among others;

(1) Providing for setting up Special Military Courts, Tribunals and Summary Military Courts for the trial and punishment of any offence under Martial Law Regulation or Orders or for contravention thereof and of offence under any other law;

(2) Prescribing penalties for offences under such Regulations or Orders or contravention thereof and special penalties for offences under any other law;

(3) Empowering any Court or Tribunal to try and punish any offence under such Regulation or Order or contravention thereof;

(4) Barring the jurisdiction of any Court or Tribunal from trying any offence specified in such Martial Law Regulations or Orders; and

(5) On any other subject or in respect of any other matter including any subject or matter specified in or regulated by or provided in any other law.

  1. I may rescind the declaration of Martial Law made by this Proclamation, at any time either in respect of whole of Bangladesh or any part thereof and may again place the whole part of Bangladesh or any part thereof under Martial Law by a fresh declaration.
  2. This Proclamation and the Martial Law Regulations and Orders and other Orders and Instructions made by me in pursuance thereof shall have effect notwithstanding anything contained in the in any law for the time being in force.
  3. The Constitution of the People’s Republic of Bangladesh shall stand suspended with immediate effect.
  4. All Acts, Ordinances, President’s Orders and other Orders, Proclamations, Rules, Regulations, By-laws, Notifications and other legal instruments in force on the morning of Wednesday, 24th March, 1982 shall continue to remain in force until repealed, revoked or amended. The Judges of the Supreme Court including the Chief Justice, Attorney General, Chief Election Commissioner, Election Commissioner or Commissioners, Chairman and Members of the Public Service Commission, the Comptroller and Auditor General and others in the service of the Republic will continue to function. All proceedings arising out of and in connection with Writ petitions under Article 102 of the suspended Constitution shall abate.
  5. No Court, including the Supreme Court, or Tribunal or authority shall have any power to call in question in any manner whatsoever or declare illegal or void this proclamation or any Martial Law Regulation or Order or other Order made by me in pursuance thereof, or any declaration made by or under this Proclamation, or mentioned in this Proclamation in to have been made, or anything done or any action taken by or under this Proclamation, or mentioned in this Proclamation to have been done or taken, or anything done or any action taken by or under any Martial Law Regulation or Order made by me in pursuance of this Proclamation.
  6. Subject to the provision aforesaid all Courts, including Supreme Court, in existence immediately before this proclamation shall continue to function but subject to the provisions of Martial Law Regulation, Orders or other Orders made by me.
  7. Martial Law Regulations and Orders and other Orders and Instructions shall be made by the Chief Martial Law Administrator.
  8. There shall be a Council of Advisers/Council of Ministers to aid and advise the Chief Martial Law Administrator in the exercise of his functions. The advisers shall be appointed by the Chief Martial Law Administrator and they shall hold the office during his pleasure. An Adviser may resign his office under his hand and addressed to the Chief Martial Law Administrator. The Chief Martial Law Administrator shall be the Chief Executive and head of the Government.
  9. The persons holding office as President, Vice-President, Prime Minister, Deputy Prime Minister, Ministers, Ministers of State, Deputy Ministers, Speaker, Deputy Speaker, Chief Whip and whips, immediately before this Proclamation, shall be deemed to have been ceased to hold office with immediate effect. The Council of Ministers and the Parliament which existed before this Proclamation shall stand dissolved with immediate effect.

         ***********************************

This Proclamation, Martial Law Regulations, Orders and other Orders/Instructions made by me, during their continuance shall be the supreme law of the country and if any other law is inconsistent with them that other law shall to the extent of inconsistency be void.

I may by order notified in the official Gazette amend this Proclamation.”

From the above Proclamation it is noted that in the time when the Proclamation was promulgated, the Constitution was suspended. No court including the Supreme Court had the power to call in question the legality of the Proclamation or any action taken under the Proclamation. Thus the Supreme Court with all subordinate court continued to exercise their limited power under the provisions of the Proclamation or any Order, Regulation, Instruction made under the said Proclamation but not the Constitution. The martial law imposed on the 24th day of March, 1982 was kept in force for four years and seven months. On the 10th November, 1986 H M Ershad legalized his regime through a parliament which was elected during the continuance of martial law and on the next day martial law was withdrawn.

The Proclamation (Fist Amendment) Order, 1982 (Proclamation Order No. I of 1982 provides,-

3. (1) The Chief Justice and other Judges of the Supreme Court shall be appointed by the Chief Martial Law Administrator from among the Advocates of the Supreme Court or Judicial Officers.

(2) The Chief Martial Law Administrator may appoint Acting Chief Justice and Additional Judges or ad hoc Judges to a Division of the Supreme Court, whenever necessary, for a specified period.

  1. (1) The High Court Division of the Supreme Court shall have such jurisdiction as is or may be conferred on it by law.

(2) The Appellate Division of the Supreme Court shall have such jurisdiction as it had immediately before this Proclamation.

(3) In respect of issue and execution of processes, review of judgments or orders, making of rules, punishment for contempt of courts, superintendence and control over subordinate courts, transfer of cases and appointment of staff the Supreme Court or its Divisions shall have the same powers as it or they had immediately before this Proclamation.

(4) The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division shall be binding on all courts, other than Martial Law Tribunals or Courts or Administrative Tribunals.

(5) All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.

(6) The Supreme Court shall, in addition to the public holidays declared by the Government, enjoy vacation for thirty days only in a year and the date of commencement of such vacation shall be determined by it.

(7) The Supreme Court shall sit for judicial work from Mondays to Saturdays, and the actual time for its sitting shall be determined by it.

(8) In January ever year the Supreme Court shall submit to the Chief Martial Law Administrator an annual statement showing the number of cases instituted or filed in, and disposed of, by each Division of the Court during the preceding year and the number of cases, specifying the years of their institution or filing, pending at the end of that year Chapter XV”

By the Proclamation (Fist Amendment) Order, 1982 as stated above the CMLA was authorized to appoint Chief Justice and other Judges of the Supreme Court. The Appellate Division had given the powers as it had before the enforcement of the Proclamation but the jurisdiction of the High Court Division was curtailed and the said jurisdiction was subject to the approval of the CMLA. Thus the High Court Division lost its writ jurisdiction. Ultimately the Supreme Court as constituted by the CMLA was neither a constitutional court in the true sense nor the apex court as existed now under the Constitution. So how the constitutional validity of the decisions given then Supreme Court form 1982 to 1986? The Constitution was abrogated and all actions done in the said period under the authority of the Proclamation of 24th March 1982.

On the 13th May 1982 the Higher Judiciary lost its unitary character when the Benches of the High Court Divisions were divided as permanent Benches under the provisions of the Proclamation Order No. I of 1982. Article 2 of the Proclamation (Fist Amendment) Order, 1982 (Proclamation Order No. I of 1982) provides,-

“4A. (1) The Chief Martial Law Administrator may, by notification in the official Gazette, establish permanent Benches of the High Court Division with seats at such places and for such areas as may be specified therein.

(2) A permanent Bench of the High Court Division shall consist of such number of Judges as may be fixed by the Chief Martial Law Administrator from time to time.

(3) A permanent Bench of the High Court Division shall, in relation to the area for which it is established, have all the powers and jurisdiction of that Division, except that the Admiralty jurisdiction of the High Court Division and the original jurisdiction of that Division in respect of company matters shall be with the permanent Bench having its seat at Dacca.

(4) When a Bench of the High Court Division is established for any area, all appeals and petitions from or in respect of any judgment, decree, order or sentence of any Court within such area pending in the High Court Division, immediately before establishment of such Bench, shall stand transferred to, and be deemed to be pending in, that Bench and shall be heard and disposed of by it.

(5) The Chief Martial Law Administrator may transfer a Judge of the High Court Division to any of its permanent Benches and from one permanent Bench to another permanent Bench.”.

Thus the Chief Martial Law Administrator was empowered to determine the number of judges of the said Benches. Thus the power of the Chief Justice over the High Court Division was limited and such constituted Benches were fully executive motivated. Independence of Judiciary was hampered after this step. But its effect was not so bad because permanent Benches constituted at different places were functioning smoothly to ensure justice through the common people. It is very difficult for a needy man to come to Dhaka for seeking justice before the High Court Division. But when the Court is gone to his door it may be a better option for him.

In 1985, Article 102 of the Constitution was revived partly by the Constitution (Partial Revival) (Second) Order, 1985 which are as follows:-

“(b) the High Court Division shall have jurisdiction, and may give any direction or order, under clause (1) of article 102 of the Constitution only for the enforcement of any of the fundamental rights conferred by articles 28, 29, 30, 34, 40 and 41 of the Constitution and for no other purpose;

(c) nothing in article 102 of the Constitution shall empower the High Court Division to make any order or declaration or give any direction or issue any writ or process in respect of-

(i) any act or thing done or omitted to be done or any action or proceeding taken by the Government or by any person or authority, including any person performing any function in connection with the affairs of the Republic or of a local authority, at any time before the commencement of this Order;

(ii) a person in custody or purported to be in custody under any Martial Law Regulation or Order;

(iii) any matter relating to elections to Parliament or to the office of President.”

The power to issue writ under article 102 by the High Court Division was revived by the above mentioned Order was limited. The HCD might take proceedings only on the matters relating to articles 28, 29, 30, 34, 40 and 41 not any matters relating to ‘any act or thing done or omitted to be done or any action or proceeding taken by the Government, a person in custody or purported to be in custody under any Martial Law Regulation or Order and elections to Parliament or to the office of President’. So the writ power as conferred by the said order was limited in its application. But it was an important step to turn form martial law administration to democracy.

On the other hand, for the revival of Article 100 of the Constitution, the permanent Benches of the HCD were named into circuit Benches. The Chief Justice regained the power to constitute Benches of the High Court Division which would exercised by the Chief Martial Law Administrator. Article 2(iv) of the Proclamation (Third Amendment) Order, 1986 (Proclamation Order No. III of 1986) provides that-

“4A. (1) Sessions of the High Court Division may be held at such places outside Dhaka as the Chief Justice may, with the approval of the President, appoint from time to time.

(2) Such sessions of the High Court Division shall be called Circuit Benches.

(3) The permanent Benches of the High Court Division established at Rangpur, Jessore, Barisal, Chittagong, Comilla and Sylhet before the commencement of the Proclamation (Third Amendment) Order, 1986 (Proclamation Order No. III of 1986), shall, on such commencement, be deemed to be Circuit Benches constituted under this paragraph for the areas for which the permanent Benches were established and shall function as such and all the provisions of this paragraph shall accordingly apply to them.

(4) Subject to any rules made by the Supreme Court under sub-paragraph (9), the Chief Justice shall determine which Judges of the High Court Division are to constitute any Circuit Bench and which Judges of such Bench are to sit for any purpose.

(5) At least one Judge, to be nominated by the Chief Justice, shall sit in each Circuit Bench on a regular basis.

(6) The Chief Justice may, as and when necessary, nominate a Judge sitting in any Bench at Dhaka to sit in any Circuit Bench or a Judge sitting in any Circuit Bench to sit in any Bench at Dhaka or in any other Circuit Bench.

(7) Subject to any rules made by the Supreme Court under sub-paragraph (9), each Circuit Bench shall exercise such Jurisdiction and power for the time being vested in the High Court Division in respect of cases and appeals arising within the area for which the Bench is constituted as the Chief Justice may determine.

(8) The Chief Justice may, in his discretion, order that any case or appeal or class of cases or appeals meant for hearing or disposal by any Circuit Bench shall be heard and disposed of by any Bench of the High Court Division at Dhaka or by any other Circuit Bench.

(9) The Supreme Court may make rules for regulating the practice and procedure of the Circuit Benches.

(10) When article 100 of the Constitution is revived, the Circuit Benches shall be deemed to be sessions of the High Court Division outside Dhaka under that article and all the rules and orders made by the Supreme Court or the Chief Justice relating to practice and procedure of the of the Circuit Benches or their constitution, jurisdiction and power shall be deemed to have been made for the purposes of that article.”;

On the 10th November 1986 the Martial Law was withdrawn after the holding of General Elections of Parliament and to the office of President. The Proclamation of the 10th November 1986 is as follows:-

WHEREAS in the greater national interest the whole of Bangladesh was placed under Martial Law on the 24th March, 1982;

           AND WHEREAS I, Lieutenant General (Retd.) Hussain Muhammad Ershad, Chief Martial Law Administrator, promised to withdraw Martial Law after the holding of elections to Parliament and to the office of President;

           AND WHEREAS elections to Parliament and to the office of President have already been held;

          AND WHEREAS the newly elected Parliament has started functioning and I, having been as President of Bangladesh, have entered upon the office of President;

          AND WHEREAS further continuance of Martial Law is no longer necessary in the national interest and it may now be withdrawn;

         NOW, THEREFORE, in pursuance of the Proclamation of the 24th March, 1982, and in exercise of all powers enabling me in that behalf, I, Lieutenant General (Retd.) Hussain Muhammad Ershad, Chief Martial Law Administrator, do hereby make the following Proclamation:-

  1. The Proclamation of the 24th March, 1982, hereinafter referred to as the said Proclamation, is hereby revoked and Martial Law imposed by the said Proclamation is hereby withdrawn.
  2. All Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders and Martial Law Instructions made in pursuance of the said Proclamation, and in force immediately before the commencement of this Proclamation, are hereby repealed.
  3. All sentences passed in any case by a special Martial Law Tribunal or a Martial Law Court or a Summary Martial Law Court or by the authority reviewing the proceedings of the case in respect of which no warrant for such commencement, but he put into execution under the warrant of the Sessions Judge of the area in which the person under sentence may be found, as if the sentences were passed by him.
  4. Every investigation of an offence punishable under any Martial Law Regulation or Martial Law Order shall, after the commencement of this Proclamation, be instituted or carried on under the ordinary law and the trial, if any, of such offence after such investigation shall be held by the Criminal Court which would have jurisdiction to try the offence constituted by the facts of the case under the ordinary law in accordance with the procedure applicable to the trial of such a case under such law.
  5. The President may, for the purpose of removing any difficulty that may arise in giving effect to any provision of this Proclamation, make, by order, such provisions as he deems necessary or expedient and every such order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force.”

From the provisions of the above Proclamation we see that the sentences passed by the special Martial Law Tribunal or Martial Law Court or Summary Martial Law Court were continued its operation. So the effectiveness of Martial Law do not come an end.

Unlike his precursor, Ershad did not during his authoritarian rule, dig any perennial trench into the Constitution through Martial Law instruments, although he retained and acted upon the changes Mustaque-Zia twin impregnated into the sacred Constitution. The Constitution, hence, returned to force with the same shape as it was on the 23rd March 1982, when the façade of suspension was eventually removed. During the de facto martial law period, however, martial law instruments were given purported supremacy  over all other laws, and all courts, inclusive the Supreme Court, albeit allowed to function, were made amenable to martial law edicts.

All the acts done from 1982 to 1986 is given constitutional validity by insertion paragraph 19 in the Fourth Schedule of the Constitution by the Constitution (Seventh Amendment) Act, 1986 (Act I of 1986). The referred provision is as follows:-

19. Ratification and confirmation of the Proclamation of the 24th March, 1982, etc.- (1) The Proclamation of the 24th March, 1982 hereinafter in this paragraph referred to as the said Proclamation, and all other Proclamations, Proclamation Order, Chief Marital Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, Ordinances and all other laws made during the period between the 24th March, 1982, and the date of commencement of the Constitution (Seventh Amendment) Act, 1986 (Act 1 of 1986) (both days inclusive), hereinafter in this paragraph referred to as the said period, are hereby ratified and confirmed and declared to have been validly made and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.

(2) All orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by the President or the Chief Martial Law Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from the said Proclamation or from any other Proclamation, Proclamation Order, Chief martial Law Administrator’s Order, Martial Law Regulation, Martial Law Order, Martial Law Instruction, Ordinance or any other Law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.

(3) No suit, prosecution or other legal proceedings shall lie in any court or tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceedings taken whether in the exercise or purported exercise of the powers referred to in sub-paragraph (2) or in exercise or purported exercise or such powers.

(4) All appointments made during the said period to any office mentioned in the Third Schedule shall be deemed to have been validly made and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever, and any person appointed under this said Proclamation to any such office during the said period and holding such office immediately before the date of commencement of the Constitution (Seventh Amendment) Act, 1986 (Act I of 1986), hereinafter in this paragraph referred to as the said Act shall, as from that date hold such office as if appointed to that office under this Constitution; and shall, as soon as practicable after that date, make and subscribe before the appropriate person and oath or affirmation in the form set out in the Third Schedule.

(5) All appointments made by the Chief Martial law Administrator during the said period to any office or post which is continuing after the date of commencement of the said Act shall, as from that date, be deemed to be appointments made by the President.

(6) All Ordinances and other laws in force immediately before the date of commencement of the said Act shall, subject to the Proclamation revoking the said Proclamation and withdrawing the Martial Law, continue in force until altered, amended or repealed by competent authority.

(7) Upon the revocation of the said Proclamation and withdrawal of martial Law, this Constitution shall stand fully revived and restored and shall, subject to the provisions of this paragraph, have effect and operate as if it had never been suspended.

(8) The revocation of the said Proclamation and withdrawal of Martial Law shall not revive or restore any right or privilege which was not existing at the time of such revocation and withdrawal.

(9) The General Clauses Act, 1987, shall apply to the said Proclamation, and all other Proclamations, Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law orders and Martial Law instructions made during the said period and also to the revocation of the said Proclamation and other Proclamations and the repeal of the said Proclamation Orders, Chief Martial Law Administrator’s Order, Martial Law Regulations, Martial Law Orders and Martial Law Instructions as it applies to, and to the repeal of, an Act of Parliament as if the said Proclamation, and other Proclamations, Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders and Martial Law Instructions and the Proclamation revoking the said Proclamation were all Acts of Parliament.

(10) In this paragraph, “law” includes rules, regulations, bye-laws, orders, notifications and other instruments having the force of law.”

Section 7 of the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988) substitutes Article 100 of the Constitution by the following Article which was earlier introduced by the Proclamation (Fist Amendment) Order, 1982,-

100. Seat of Supreme Court.- (1) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.

(2) The High Court Division and the Judges thereof shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.

(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.

(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Bench.

(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the High Court Division sitting at the permanent seat of the Supreme Court Shall have such jurisdictions, powers and functions.

(6) The Chief Justice shall make rules to provide for all incidental, supplemental or consequential matters relating to the permanent Benches.”.

III. Martial Law and its Problems (Supreme Court’s Observations)

It is pertinent to note here that unlike the case of Dosso and Asma Jilani (the cases in which legality of imposition of martial law in Pakistan was examined) in Bangladesh the legality of the declaration of martial law was not discussed by the Supreme Court in any case either during the continuance of martial law. But some fringe questions relating to martial law came up for consideration before the courts and the courts declared that martial law proclamation regulation etc. were supreme law and the Constitution lost its character as the supreme law.

The case of Halima Khatun v. Bangladesh and others, [30 DLR (SC) 207], was the maiden one where the Appellate Division had to adjudicate upon an issue that obliquely involved the question of the validity of martial law. The apex court headed by Fazle Munim CJ, in addressing the question as to whether the writ petition abated because the decision challenged was taken on the strength of a martial law regulation, displayed a Dosso style obsequious retreat and accorded unqualified recognition to the army autocrat’s proclamation, that the Constitution of the Republic had been placed to a status of subordination to that of the proclamation and martial law instruments, whereby the concept of the supremacy of the constitution has been derogated. The Appellate Division even far enough to ordain that though Article 7(2) of the Constitution, which proclaimed that the Constitution, as the solemn expression of the will of the people, the supreme law of the republic, it must be taken to have lost some of it’s importance and efficacy, and that no Constitutional provision can claim to be sacrosanct and immutable.

The ratio in the case State v. Haji Joynal Abedin [32 DLR (AD) 110] yielded no dissimilar harvest. In that case, again, the question of the validity of martial law itself was not put on the scale. The question, as ignited by the petition was, almost identical to the one the instant petitioner has raised before us, viz, whether an order of conviction passed by a special martial law court was ornamented with legal authority. While the High Court Division declined to accord legality to the order of the so called special martial law court, the Appellate Division found no exorcism to eject the ghost of Halima Khatun decision, and instead, replicated Halima Khatun ratio even with greater emphasis. Ruhul Islam J expressed, “I find it difficult to accept the argument advanced in support of the view that the Constitution as such is still in force as the supreme law of the country, untrammeled by martial law regulations………The moment the country is put under martial law the……. Constitutional provisions along with other civil laws of the country lose its superior position”.

The case of Kh. Ehteshamuddin Ahmed v. Bangaldesh [33 DLR (AD) 154] sprang to provide yet another opportunity to our Apex court to take an unambiguous stand on the question of validity of martial law. In that case also the question of validity of martial law proclamation or that of the Constitution (Fifth Amendment) Act, 1979, by which all martial law instruments were attempted to be validated on the eve of martial law’s departure, was not directly put forward for exploration, although that question was intrinsically glued with the issue raised. Here again the legality of an order of conviction passed by a special martial law court was brought under review. The Apex Court, once more, missed the boat and held that the supremacy of the Constitution can not; by any means compete with the proclamation issued by the chief martial law administrator. Ruhul Amin J proceeded to express, ‘The High Court being creature under the Constitution, with the proclamation of martial law and the constitution allowed to remain operative subject to proclamation and martial law regulations, it loses it’s superior power to issue writ against the martial law authority or martial law courts.’

His Lordship underscored that as neither the authority of the person who proclaimed martial law nor the vires of martial law was or could be challenged, no reason existed to make any reference to Asma Jilani case, supra, which was relied on by petitioner.

The above cited decisions depict a rather pathetic scenario of judicial disavower by the Appellate Division at that time. Instead of rising to the occasion, which was the desperate cry of the day, which could have turned the events of the history to a diversely different, and, no doubt, benevolent dimension, the Appellate Division again allowed martial law proclamation to have precedence over the Constitution.

The ratio of the decision in the case of Kh. Ehteshamuddin Ahmed has it that even after the cessation of martial law, it’s provisions would remain supreme.

In adjudicating upon the question as to whether, in the back drop of the Constitution (Fifth Amendment) Act 1979, it was open to the High Court Division to examine the validity of the proceeding of a special martial law court, at a time when martial law was no longer in the vogue. Ruhul Islam J, insisted that it would be in-apt to say that with cessation of martial law and the proclamation, the embargo put on the High Court Division’s jurisdiction to examine proceedings that took place in martial law courts, during the martial law period, also waned. The Appellate Division continued by expressing that paragraph 18 of the Fourth Schedule to the Constitution and clause (h) of the Proclamation of 6th April 1979, leaves no scope for airing the view that the withdrawal of martial law and the lifting of the proclamations of 20th August, 1975 and 8th November, 1975 and the third proclamation of 29th November, 1976, together with all other proclamations and orders, amending or supplementing them, would enable anyone now to challenge, by invoking with jurisdiction, the order of the chief martial law administrator, or the proceedings in the martial law courts or the orders of the review authority.

Pitiably enough, the Apex Court, at that time, remained inclined to accept the constitution’s inferiority, even after the phantom of the extra constitutional regime had quitted, and remained inclined to grant fiat of superiority to the military dictators’ commandments even after their reigm went into obsolescence.

The case of Nasiruddin v. Government of the People’s Republic of Bangladesh [32 DLR (AD) 216], was another one that was decided after the 1st martial law was revoked. Like it’s above discussed predecessors, validity of martial law itself was not directly challenged in that case either. Like that in Halima Khatun, it was concerned with a property declared as an abandoned one, but unlike the question involved in Halima Khatun, the issue here was whether the phrase ‘purported exercise’ in the validating impunity from judicial reviewability. On this occasion, the Appellate Division, headed by Kamaluddin Hossain, CJ, came out with some kind of a revised, progressive version, stating that the said phrase cannot accord immunity from challenge to an act which is manifestly without jurisdiction, or in case of a judicial or quasi judicial act which is coram non judice, or if the act is malafide, provided malafide is specifically pleaded. The Appellate Division, however, did not fully deviate from its previous stand as to the superior status of martial law proclamation.

Now, what is axiomatic from the decisions cited above, is that although the Courts refrained from disturbing the validity of the orders, actions issued or taken under martial law instruments, the validity of the martial law proclamation itself or any instrument thereunder, was not directly or specifically challenged in any of them.

Behind the curtain of the decisions discussed above, a judicial revolution was quietly, but steadily, in the offing. It did eventually found a charade to permeate into our jurisdiction through the universally revered case of BIMW Ltd. v. Bangladesh and others [14 BLT (HCD) (Special Issue) 2006]. The judgment of this case brought an end to the previously pervasive stalemate on a topical question, it can quite congruously be equated with that of Marbury v. Madison, in its own arena, as Marbury also liquidated a state of flux on a topical constitutional impasse. In plunging extra-constitutional rules to nihility, this decision went far ahead of what Hamoodur Rahman CJ, proclaimed in Asma Jilani. The Appellate Division, with minor modifications, affirmed, the intrepid decision this Division handed in. In the aforementioned case, both the Divisions of the Supreme Court, for the first time, availed the long awaited opportunity of reviewing the question of legality and the constitutionality of martial law, and of course that of the Constitution (Fifth Amendment) Act 1979, and then unambiguously ordained that both were thoroughly vacuous of legal authority, ultra vires the constitution and, is hence, non est through the vision of law.

The petitioner of the Fifth Amendment case asked for a direction upon the respondent to hand over to it the physical possession of a cinema hall named Moon Cinema, engaging the grounds, amongst others, that the martial law regulation upon which the authorities relied to justify their action of seizing the cinema was ultra vires the Constitution and, was hence, of no effect.

After a protracted hearing, the Bench of HCD made the Rule absolute holding:

  • Bangladesh is a sovereign democratic republic, governed by the government of laws, not of men.
  • The Constitution of Bangladesh being the embodiment of the will of the sovereign people of the republic is the supreme law of the republic, and all other laws, action pr proceeding, in whatever form and manner, if made in violation of the constitution, is void and non est.
  • The Legislature, the Executive and the Judiciary are the three pillars of the republic, created by the Constitution, as such are bound by its provisions. The Legislature make laws, the Executive runs the government and the Judiciary ensures the enforcement of the provisions of the Constitution.
  • All functionaries of the republic and all services owe their existence to the Constitution.
  • State of Emergency can only be declared by the President on the advice of the Prime Minister, in case of imminent danger to the security or economic life of the republic.
  • The Constitution stipulates a democratic republic, run by the elected representatives of the people and any attempt by any person or group of persons, how high so ever, to usurp an elected government, shall render themselves liable for high treason.
  • A proclamation can only be issued to declare an existing law under the Constitution, not for promulgating law or offence or for any other purpose.
  • There is no such law in Bangladesh as martial law and no such authority as martial law authority, as such if any person declares martial law; he will be liable for high treason against the republic. Obedience to superior order is no defence.
  • The taking over of power with effect from 15th August 1975 by Khandakar Mushtaque Ahmed, a usurper, placing the republic under martial law and his assumption of office of the President of the republic, were in clear violation of the Constitution, as such illegal without lawful authority and without jurisdiction.
  • The nomination of Justice Abu Sadat Mohammed Sayem, as the President of Bangladesh on 6th November 1975 and his taking over the Presidency and his assumption of the power of the chief martial law administrator and his appointment of the deputy chief martial law administrator, by proclamation of 8th November 1975 were all in violation of the constitution.
  • The handing over of the office of martial law administrator to Major General Ziaur Rahman through the third Proclamation dated 29th November 1976 was beyond the ambit of the Constitution.
  • The nomination of Major General Ziaur Rahman to become the President of Bangladesh by Justice Sayem and Major General Ziaur Rahman’s assumption of the office of the President of the Republic were without lawful authority and without jurisdiction.
  • The Referendum Order, 1977 (Martial Law Order No. I of 1977), published in the Bangladesh Gazette on 1 May, 1977, is unknown to the Constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, major General Ziaur Rahman, B.U.
  • All proclamations, martial law regulations, and martial law orders made during the period from 15th August 1975 and 9th April 1979 were illegal, void and non est because:
  1. Those were made by persons without lawful authority, as such, without jurisdiction.
  2. The Constitution was made subordinate and subservient to those proclamation, martial law regulations and martial law orders.
  • Those provisions disgraced the Constitution, which is the embodiment of the will of the people of Bangladesh, as such disgraced the people of Bangladesh also.
  1. That during the period between 15th August 1975 and 7th April 1979, Bangladesh was ruled not by the representatives of the people but by usurpers and dictators whereby the country lost it’s sovereign republic character and was under subjugation of the dictators.
  2. From November 1975 to March 1979 Bangladesh was without Parliament and was ruled by dictators and as such lost its democratic character for the said period.
  3. The proclamation etc destroyed the basic character of the Constitution, such as change of the Secular character, negation of Bangalee nationalism, negation of rule of law, ouster of jurisdiction of court, denial of those constitute the seditious offence.
  • Paragraph 3A was illegal, firstly because it sought to validate the Proclamations, MLRs and MLOs which were illegal, and secondly, paragraph 3A, made by the Proclamation Orders, as such, itself was void.
  • The Parliament may enact any law but subject to the Constitution (Fifth Amendment) Act, 1979 is ultra vires, because:

Firstly, Section 2 of the Constitution (Fifth Amendment) Act, 1979, enacted Paragraph 18, for its insertion in the Fourth Schedule to the Constitution, in order to ratify, confirm and validate the Proclamations, MLRs and MLOs etc. during the period from August 15, 1975 to April 9, 1979. Since those proclamations, MLRs and MLOs etc., were illegal and void, there were nothing for the Parliament to ratify, confirm and validate.

Secondly, the Proclamations etc., being illegal and constituting offence, its ratification, confirmation and validation, by the Parliament were against common right and reason.

Thirdly, the Constitution was made subordinate and subservient to the Proclamations etc.

Fourthly, those Proclamations etc. destroyed its basic features.

Fifthly, ratification, confirmation and validation do not come within the ambit of ‘amendment’ in Article 142 of the Constitution.

Sixthly, lack of long title which is mandatory condition for amendment, made the amendment void. Seventhly, the Fifth Amendment was made for a collateral purpose which constituted a fraud upon people of Bangladesh and its Constitution.

  • The Fourth Schedule as envisaged under Article 150 is meant for transitional and temporary provisions, since paragraph 3A and 18, were neither transitional nor temporary, the insertion of those paragraphs in the Fourth Schedule are beyond the ambit of Article 150 of the Constitution.
  • The turmoil or crisis in the country is no excuse for any violation of the Constitution or its deviation on any pretext. Such turmoil or crisis must be faced and quelled within the ambit of the Constitution and the laws made thereunder, by the concerned authorities, established under the law for such purpose.
  • Violation of the Constitution is a grave legal wrong and remains so for all time to come. It cannot be legitimized and shall remain illegitimate for ever, however, on the necessity of the State only, such legal wrongs can be condoned in certain circumstances, invoking the maxims, Id quod Alias Non Est Licitum, Necessitas Licitum Facit, salus populi est suprema lex and salus republicae est suprema lex.
  • As such, all acts and things done and actions and proceedings taken during the period from August 15, 1975 to April 9, 1979, and condoned as past and closed transactions, but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate ad void forever.
  • Condonations of provisions were made, among others, in respect of provisions, deleting the various provisions of the Fourth Amendment but no condonation of the provisions was allowed in respect of omission of any provision enshrined in the original Constitution. The Preamble, Article 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of change of any of these provisions of the Constitution. Besides, Article 95, as amended by the Second Proclamation Order No. IV of 1976 is declared valid and retained.”

The High Court Division’s judgment was taken to the Appellate Division where the full Bench, after exhaustive hearing, declined to issue leave to appeal, though their Lordships in the Appellate Division made some inroads into it by way of some modification. The ratio and most of the observation expressed by this Division remained unwrapped.

The Appellate Division, while rejecting the application for leave to appeal, made the following observation:

“……While dismissing the leave petitions we are putting on record our total disapproval of Martial Law and suspension of the Constitution or any part thereof in any forms….”.

So the above discussions it if finalized that the proclamation of martial law is void and illegal and all acts done or actions taken in that period are void ab initio except the past and closed transactions.

The legality of the said past and closed transactions were come into question before the High Court Division in 2010 in the writ petition of Dr. Anwar Hossain v. State where the trial of Colonel (Retd.) Md. Taher, B.U. at martial law tribunal in 1976 was challenged. Adjudicating the petition the HCD said that though the proclamation of martial law in 1975 was illegal, so the trial of Colonel Taher was also illegal.

In 2010 the Constitution (Seventh Amendment) Act, 1986 is challenged by Writ Petition No. 696 of 2010 by Siddique Ahmed an aggrieved person who was sentenced by a Martial Law Tribunal. The HCD held that the declaration of Martial Law is illegal and void ab initio. ‘On the 14th May 2011 the Appellate Division approved the judgment of the HCD given in the Siddique Ahmed v. Bangaldesh by granting leave. The sentence passed against Mr. Siddique Ahmed given by martial law court is declared void by the Appellate Division’. The Appellate Division also said that Transitional Provision as stated in Article 150 means the period from March 26, 1971 to December 16, 1972. Thus all paragraphs that have been inserted in the Fourth Schedule to the Constitution is illegal.

After these decision given by the Supreme Court, all proceedings of the military courts functioned in the two regimes of martial law have come to question. Also all constitutional amendments with the said two regimes have no legal effect. It is a great defect in the judicial system of Bangladesh.

Chapter III

  1. Findings and Problems
  2. Martial law was proclaimed for usurping the power not for any state necessity.
  3. For removal of judges a ‘Supreme Judicial Council’ was introduced by repealing the jurisdiction of Parliament by the Second Proclamation (Tenth Amendment) Order, 1977.
  4. All appointments in the judiciary from August 15, 1975 to April 7, 1979 and March 24, 1982 to November 10, 1986 have ambiguity because they were appointed by the martial law administration not the government of law.
  5. Martial Law Administration is unknown to our constitution. So the effectiveness of the decisions given by the said authority is subject to question as their effectiveness is not finished yet.

Conclusion

Though martial law is unknown to our Constitution and it has been declared by the Supreme Court void and illegal in several cases. But its impacts on the judiciary are not totally bad. In 1976 a ‘Law Reforms Committee’ headed by Justice Kemaluddin Hossain was formed. The Law Reform Ordinance, 1978 was promulgated to implement the recommendations of the said committee regarding the reformation of criminal laws of this land. Metropolitan magistracy was set up during the first martial law regime. In 1982 a ‘Criminal Law Reform Committee’ was formed to prepare recommendations for reformations of criminal justice systems by then CMLA Lt. Gen. H.M. Ershad. During these two periods many experiments had been conducted on the administration of justice. Many questions may come regarding the objects of the martial law administration. But in this paper it is found that during two periods (1975-1979, 1982-1986) many important changes were made and it has a great influences on the judicial system of Bangladesh.

Recommendations

  1. Definite provision should be inserted in the Constitution to punish the usurpers and protect the Martial Law Administrators.
  2. Power of Supreme Judicial Council may be vested to the Parliament as were conferred by Article 96 of the Constitution of 1972 to fulfill the meaning of Article 7 of the Constitution.
  3. The Ordinances with other legal instruments that had been promulgated during the periods of two martial law regimes can be ratified by the Parliament.
  4. All legal proceedings conducted by the Courts other than the martial law courts should be given indemnity if they are not inconsistent with the provisions of the Constitution.
  5. All decisions given by the Supreme Court in the periods of two martial law regimes should be reviewed by the Appellate Division of the Supreme Court.
  6. Political consciousness should be raised to resist the unconstitutional works.

 

 

 

                                                                                               

[1] Bari, Dr M Ershadul, The Imposition of Martial Law in Bangladesh, 1975: A Legal Study, The Dhaka University Studies, Part-F, Vol.1(1), (1990), P.1(footnote).

[2] Kelsen, Hans, General Theory of Law and State. (New York: Russell and Russell, 1961), pp.117-119.

[3] Patwari, ABM Mafizul Islam, Protection of the Constitution and Fundamental  Rights under the Martial Law in Pakistan, p. 3.

[4] Bari, Dr M Ershadul, ibid, p. 67.

[5] Sultan Ahmed v. Chief Election Commissioner 30 DLR (HCD) 291.

Haji Jaynal Abedin v. State 30 DLR (HCD) 371.

Khandakar Mostaque Ahmed v. Bangladesh 34 DLR (AD) 222.

Khandker Ehtesamuddin Ahmed v. Bangladesh 30 DLR (AD) 154.

Bangladesh v. Mahbubur Rashid  1981 BLD (AD) 300.

[6] For any further information please visit http://www.supremecourt.gov.bd

[7] Emphasized form the report of  ‘Dainik Prothom Alo’, dated 15-05-2011, p.1.