The drama of Moon Cinema continues - The HC verdict of 2005

The High Court on August 29, 2005 declared the fifth amendment to the constitution illegal, meaning the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.

The verdict came upon a decades-old writ petition that challenged the Martial Law Regulation (MLR) 7 of 1977, issued to legalise all illegal acts of the martial law government prior to that time.

The HC observed that martial law as a whole is illegal and unconstitutional and all the actions, laws, and rules made under martial law are illegal. The changes of governments between August 15, 1975 and the national elections of 1991 were not carried out constitutionally.

The HC bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir also said the constitution does not permit anyone to assume power by any means other than the ones mentioned in it. If anyone does so, it will amount to sedition.

The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered. Many of these illegal acts were done in the public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution.

The bench said Khandker Mushtaque Ahmed's assuming power with effect from the morning of 15th August, 1975 placing Bangladesh under martial law and his taking of office of the president of the country by the Proclamation of August 20, 1975 were in clear violation of the constitution and done without lawful authority.

"All his subsequent actions as the president were illegitimate and void," it observed.

Justice Abu Sadaat Mohammad Sayem's taking over office of the president on November 6, 1975 and his assumption of the powers of chief martial law administrator (CMLA) and appointing deputy CMLA (Ziaur Rahman) and the Proclamation of November 8, 1975 were all in violation of the constitution, which means all his functions and actions as the president or CMLA were illegitimate, the court observed in the verdict.

"Being beyond the ambit of the constitution, the handing over of the martial law authority's office to Maj Gen Ziaur Rahman by Abu Sadaat Mohammad Sayem by Third Proclamation on November 29, 1976, enabling the latter to exercise the powers of CMLA, was illegal and done without lawful authority. And it means subsequent functions and actions as CMLA were illegal and illegitimate," the bench announced.

Ziaur Rahman's becoming president on April 21, 1977 was also illegal, it added.

After passing of the court order petitioner's counsel ABM Siddiqur Rahman Khan said, "Some of the areas that the court condones are closed-transactions. For instance, incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the fifth amendment do not fall under the purview of illegality since the court feels that these could also have been done constitutionally."

With the pronouncement of the verdict, paragraph 3(a)1 of the fourth schedule of the constitution became illegal. The paragraph says, "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."

Paragraph 18 of the fourth schedule too became illegal. It says, "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."

The verdict came in response to the writ petition filed by Masudul Alam on behalf of Bangladesh Italian Marble Works Company (BIMWC) to reclaim a cinema hall at Waizghat in Dhaka that the company lost during the military rule.

The BIMWC owned the Moon Cinema Hall at Waizghat. But after the independence, the cinema hall was declared abandoned and the government handed it over to the Muktijoddha Kalyan Trust. The marble company filed a writ petition in 1976, staking its claim on the theatre. In 1977, the HC asked the government to hand over the hall to the company. However, the MLR 7 negated the HC order, making the cinema hall continue to be an abandoned property.

In 1994, the BIMWC again filed a writ petition. But the HC and later the Appellate Division said that since the fifth amendment has validated the MLR 7, the company cannot claim ownership of the property.

In 2000, the BIMWC moved against the validity of MLR 7. The implications of the petition have turned out to be far-reaching as it hits a wide area of unconstitutional and undemocratic power transfers during the volatile mid-'70s.

While passing the judgment, the HC made a number of observations. It said actions, such as military law and military proclamation by anyone who has come to power unconstitutionally, would be considered illegal as unconstitutional actions can never be validated.

The constitution must take precedence over everything under any circumstances as it reflects the will of the people. Parliament, judiciary, administration, defence and everything else must remain accountable to the constitution.

In another observation, the HC bench said if the state declares a state of emergency, it must follow the constitution. Only the president can declare emergency in accordance with the constitutional provisions.

Monday, May 4, 2009
The Daily Star