DHAKA, May 15: The Appellate Division of the Supreme Court, on Sunday, has declared illegal the Seventh Amendment to the constitution, which had legitimised the autocratic regime of military strongman Hussein Muhammad Ershad.
It also cancelled the trial and conviction of Siddique Ahmed, a resident of Chittagong, upon whose petition, the High Court (HC), on August 26 last year, had declared the Seventh Amendment as illegal. A six-member bench of the Appellate Division, headed by Chief Justice ABM Khairul Haque, passed the order. Barrister Hasan MS Azim, counsel for the appellant, termed the verdict as a historic judgement. "Following the apex court verdict, the door of martial law regimes has been closed forever in the constitution. Martial law regimes will not be able to usurp power in future," he added.
Attorney general Mahbubey Alam told reporters that the Appellate Division is paving the way for challenging the trials that had been held under martial law. "People, who had been tried under martial law, could now file petitions challenging their trials," he said. He added that the trials can be continued in trial courts concerned.
In its brief order, the apex court said the declaration given by the High Court over the Seventh Amendment, is now affirmed. "Paragraph 19 of the Fourth Schedule of the Constitution is hereby declared illegal," it added. "All proclamations, martial law regulations and martial law orders promulgated by Ershad during the period between March 24, 1982, to the date of commencement of the Constitution in 1986, are hereby declared illegal void ab-initio," it continued.
"However, all acts, things, deeds, actions, proceedings taken during the said period, and all transactions of the period, which are past and closed, are provisionally condoned," it said. The verdict also said that all international treaties signed during the period will remain in force.
The apex court declared illegal the trial and conviction of Siddique Ahmed, who had been convicted and sentenced to life imprisonment, in relation to a murder case, by a martial law court in 1986.
It also granted bail to Siddique, who is now in jail, in this case. The Appellate Division, however, said the case against Siddique will be heard in a trial court. "The appeal is allowed in part. The judgment, in detail, would follow," the apex court said.
Following a writ petition, a HC bench, comprising Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain, on August 26 last year delivered the watershed judgment on the Seventh Amendment.
Although the HC had declared the Seventh Amendment as illegal, it neither acquitted Siddique of the murder charge, nor ordered a retrial of the case. The HC, however, asked Siddique, who was then out on bail, to surrender his bail bond to the lower court, and to explore other legal options for his remedy.
In the judgment, the HC also issued a certificate, so that an appeal could be filed directly with the SC against the HC verdict.
Siddique surrendered to a Chittagong court on April 7, in connection with the murder case, as per the HC order. After that, he filed an appeal with the SC. Following Siddique's petition, which had challenged a part of the HC judgement, the highest appeals court selected four senior lawyers as amici curiae.
Of them, Rafique-ul Huq, Mahmudul Islam and M Amir-Ul Islam, gave their opinions to the court, while another jurist, Ajmalul Hossain, could not, as he had been abroad.
Legal experts said that since the High Court declared the rule of Ershad from 1982 to 1986 as illegal and said nothing about his four year rule from November 10, 1986 up to 1990, the second phase is regarded as legal.
After the apex court order, Syed Amirul Islam, another lawyer for Siddique, told reporters that the military regime of Ershad has now become illegal, following the SC verdict. Attorney general Mahbubey Alam said that the apex court declared illegal the military regime of HM Ershad.
Replying to a query he said that in its judgement the High Court the parliament would take decision about the fate of HM Ershad. But, it is not wise to say anything about him without seeing the full judgement of the apex court over the 7th amendment, he added.
The HC in its verdict observed that Ershad or any other people taking over the state powers illegally should be suitably punished and parliament can enact an appropriate law in this regard
The amendment was adopted by the Parliament on November 11, 1986, by ratifying and confirming the promulgation of martial law on March 24, 1982, and all other proclamations under the martial law, martial law orders, martial law instructions, ordinances and all other laws made during the period, chief martial law administrator’s orders and martial law regulations which were in force until November 11, 1983.
The then army chief Lieutenant General (retd) Hussain Mohammad Ershad proclaimed Martial Law on March 24, 1982 overthrowing President Justice Abdus Sattar government.
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