DHAKA, 31 August 2005 — In a landmark judgment, the High Court in Dhaka declared all past army takeovers of the country illegal, accusing the former military rulers of gross violation of the Constitution, court officials said yesterday.
A two-member bench of the high court found governments in the past formed on the basis of martial law as unconstitutional and declared all actions taken by these military regimes unlawful.
A division bench comprising justice A.B.M. Khairul Huq and A.T.M. Fazle Kabir pronounced the judgment in a dispute over an abandoned property.
The writ challenged the validity of a martial law regulation, incorporated in the 5th Amendment of the Constitution. The Parliament adopted the 5th Amendment to Constitution ratifying all martial law actions taken since Aug. 15, 1975 to 1979.
Making the rule obsolete, the bench made a series of observations in the judgment.
“Taking over the powers of the People’s Republic of Bangladesh with effect from the morning of Aug. 15, 1975 by Khondoker Mushtaque Ahmed, the usurper, placing Bangladesh under martial law and his assumption of the office of the president of Bangladesh by proclamation of 20-8-75 were, in clear violation of the Constitution and as such illegal without lawful authority, and without jurisdiction,” the judges said, adding, “Consequently all his subsequent actions as the president of Bangladesh were illegitimate and void.”
Successive military dictators ruled the overcrowded and poverty-stricken country seeking legitimacy from martial law proclamations violating the constitutional rights of the people, the court said.
If the high court declaration was followed all former military rulers and their deputies were to face charges of high treason, which if proved, could land the retired generals in prison for life.
The declaration was read out by Justice Khairul Haque and Justice Fazle Kabir while disposing of the writ petition late Monday.
All governments in power between 1975 when army rebels murdered founder President Sheikh Mujibur Rahman and 1990 when military ruler H.M. Ershad was toppled have been dubbed illegal in the report.
Meanwhile, the highest court of appeals, the Supreme Court, stayed the operation of the high court’s declaration until today. The stay order was sought by the Islamist coalition government.
A prominent constitutional lawyer said the high court’s observations were time barred.
