Two epoch-making verdicts

Bangladesh's founding father Sheikh Mujibur Rahman. File photo  

The people of Bangladesh, formerly East Pakistan, had a dream: that the new-born nation should not be revisited by military rule and the suspension of the Constitution by unconstitutional rulers. But this did not quite come true. The vices revisited it only three and a half years after its independence in 1971. Its founding father, Sheikh Mujibur Rahman, was assassinated and military rule reappeared.

During the killings of 1975, four key leaders of the independence movement were gunned down inside jails. The bloodbath changed the course of Bangladesh's history. Following the path of Pakistan, the legacy of which Bangladesh had sought to discard, over-ambitious Generals grabbed power, changed the Constitution at will, even amended it with retrospective effect. The country saw killing and counter-killing, including that of Colonel Abu Taher: the national hero had lost a leg in the liberation war and was honoured with the highest gallantry award of Bir Uttam. The victims of the post-1975 killing spree were mostly freedom fighters who took part in the national war against Pakistan.

After over three decades, the ominous cycle of unconstitutionality that left deep scars on the country's democratic life has started changing. A gentle breeze of constitutionality began to blow, paving the way for a civilised democratic future. In the last few months, the country has seen two momentous developments that have restored the core national values enshrined in the Constitution, adopted on November 4, 1972, and its sanctity.

After the recent landmark verdict of the appellate division of the Supreme Court that nullified the 5th Amendment to the Constitution and thus declared the military rule of the first dictator, General Ziaur Rahman, illegal, the country that saw two usurpers in the last three decades got another occasion to rejoice over the recent High Court verdict that nullified the 7th Amendment to the Constitution. The 7th Amendment had legalised the military rule under General H.M. Ershad.

The August 26 High Court verdict is, in essence, similar to the one passed by the Appellate Division on July 28, upholding with modifications the August 29, 2005 verdict of the High Court that declared illegal the 5th Amendment to the Constitution brought about through martial law proclamations after the August 15, 1975 changeover.

These are two epoch-making verdicts through which the supreme judiciary has re-emphasised that martial law has no place in a civilised country that has a Constitution. These have upheld the sovereignty of the people, and not of guns. The verdicts, which have the potential to lead the country on a safe constitutional path, have invalidated the ordinances and rules issued by the two military rulers to justify their usurpation of state power through extra-constitutional means.

Bangladesh has welcomed the two verdicts. Simply put, the judgments nullifying the 5th and 7th Amendments have re-established as paramount the people's will, and not the will and the whims of military strongmen. As the first military ruler, General Zia, who ruled for nearly five years, had done, General Ershad, who usurped power on March 24, 1982, suspended the Constitution and validated all the military orders and proclamations by means of the 7th Amendment. General Ershad did not remove the fundamental principles of the country's Constitution, as General Zia had done.

General Ershad, who ruled for nearly nine years, followed the footsteps of General Zia, who had reversed the country's quest for secular democracy and rehabilitated ‘anti-liberation' forces in politics. General Zia, who later founded the right-wing Bangladesh Nationalist Party, also brought forward the infamous Indemnity Act, which gave constitutional protection to the ‘killers' of the founding father.

General Zia was fortunate enough to run his regime without any major political disturbances as the Awami League was yet to reorganise itself after Mujib's assassination. But, despite enjoying a longer tenure in power, General Ershad faced serious political turmoil, and finally faced a disgraceful ouster in December 1990. The currently ruling Awami League led by Sheikh Hasina and the main Opposition, the Bangladesh Nationalist Party led by Khaleda Zia, waged a joint struggle to ensure General Ershad's fall.

The two landmark judgments of the apex court have paved the way, after 34 long years, to the discarding of an unacceptable political culture that was introduced by means of the assassination of Mujibur Rahman. The 1975 assassination of the ‘Bangabandhu' was not just an act of murder; it was a national tragedy that paved the way for the rise of an era of killing, military rule and resurgence of religious militancy.

The apex court has thus brought the curtain down on an era of unconstitutional seizure of power, contributing to significant democratic advancement ahead. A number of politicians, civil servants and judges had collaborated with the military rulers. The regimes of General Zia and General Ershad, which saw the most shameful chapters in the nation's history, are now in the dustbin of history. Naturally, it may be thought that the doors are firmly shut on anyone who may aspire for illegal power in the future.

But how much Bangladesh will benefit from these two important verdicts depends on how the future of the country is shaped, and what lessons the politicians and military bosses learn. The verdicts have made it clear that the will of the people as reflected in an election outcome is what will be final and supreme — not the supremacy of guns. There is the possibility that as per the rulings, the Constitution will soon provide for rigorous punishment to anyone who tries to usurp power in future.

The two military regimes polluted Bangladesh's polity. They reintroduced military rule that the people of Bangladesh had discarded decisively. They moved the country away from the ideals of its liberation war, and the dream of a democratic Bangladesh.

Now the vital question is: will the verdicts alone safeguard democracy and ensure the supremacy of the Constitution? In order to honour the two landmark verdicts, national democratic institutions including Parliament must be strengthened. The judiciary, which has played its role now, must continue to play it with courage and conviction. The media must be made free, vibrant and independent. The Election Commission, the Anti-Corruption Commission, the Human Rights Commission and other constitutional bodies and civil society movements must be strengthened to discharge their duties freely and fairly. The deep distrust that exists between the government and the parliamentary opposition must end. Unless these important conditions are fulfilled, the judgments that have set forth hopes for a better future may not have their desired effect.

Bangladesh's tragedy is the deep divide in its political system. The political parties are not in agreement on any single fundamental and important issue. Although the ‘pro-' and ‘anti-' liberation streams of politics are widening the national divide, the fact is that the ‘anti-' liberation forces are gaining strength in the guise of ‘pro-religious' campaigns. There is another factor that may have the potential to weaken the democracy: the rise of religious fundamentalism, which has foreign backers.

The philosophical and political nuances of the two verdicts will certainly be debated for days to come. However, both judgments are precise and leave hardly any room for ambiguity on one point: that extra-constitutional takeover of power by any quarter is nothing less than usurpation of state power and that the perpetrators should be “suitably punished and condemned” so that in future no adventurist, no usurper, would dare to defy the people, their Constitution, and a government established by them. The judiciary recognises that such a legal provision can only be made by Parliament.

It is mere coincidence that the two judgments were delivered during the Awami League-led Mohajote government led by Prime Minister Sheikh Hasina as it prepares to bring forward a major constitutional amendment since it has more than the required two-thirds majority in Parliament to do so. While General Zia was killed in 1982 during a mutiny, the lone surviving usurper, General Ershad, is still active in politics. His Jatiya Party, with 29 MPs, is a component of the ruling alliance. Nearing 80, he quickly welcomed the court verdict as ‘historic' but remains sceptical of the future, particularly when demands for his trial in line with the court judgments are getting more strident. Once an ally of Khaleda Zia and now with Sheikh Hasina, he is clearly in some difficulty.

It will be interesting to watch how the politics of Bangladesh pans out now.

(The author could be reached at hh1971@gmail.com)

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Printable version | Jan 28, 2022 9:01:35 PM | https://www.thehindu.com/opinion/lead/Two-epoch-making-verdicts/article15908772.ece

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