Mostafa Kamal Majumder
At least four prominent news items published Friday (February 15) in national dailies of Dhaka unmistakably pointed to the concern already expressed by conscientious people from different strata of the society that the judiciary in Bangladesh is under trial. But nobody knows what would be the verdict and the consequences of the trial being staged on a number of counts.
Two largely circulated dailies, boasting to be the most read ones, gave lead treatment to a news item about the snatching of four accused from a Bogra court room after they were refused bail in a case filed by their political opponents. The headlines assigned to the item by the papers would give a reader the impression that the some dangerous developments have taken place and irreparable damages done.
A third largely circulated daily which used to be the number one newspaper in the country for over three decades, however gave the news item a single-column treatment on the back page assigning a complete and responsible headline that the accused snatched from court surrendered within hours.
Another news item was on the Cabinet’s adoption in principle of a resolution to enact a law to restore the ordinances promulgated under martial law regimes in the seventies and the eighties. Those ordinances turned null and void because of pronouncement of the 5th and 7th Amendments untra vires of the Constitution. The verdicts on the constitutional amendments had come from the High Court Division of the Supreme Curt and later confirmed in the Appellate Division.
The laws framed during the two periods became null and void as consequences of the verdicts coming from the Apex Court. A High Court Division Bench comprising Justice ABM Khairul Haque (who later became Chief Justice of Bangladesh) and Justice Mr. ATM Fazle Kabir declared the 5th Amendment as a total violation of the Constitution and law and so it was illegal. Apart from declaring the Amendment illegal and ineffective, the judgment also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979.
The Appellate Division in its judgment text released on July 27 2010, dismissed the leave petitions preferred by BNP leaders and approved the judgment of the High Court Division with modifications. It is to be noted that the modifications made by the Appellate Division in response to the appeal did save the country from a Constitutional vacuum, because had the provision for the multiparty system not retained by their lordships, legally the country would have returned to the one-party system that existed before the passage of the 5th Amendment Act. Fortunately that huge lapse was remedied.
The move to restore the laws promulgated under martial law rules would apparently remedy the remaining lapses. This is because as the country moves forward there should not remain legal vacuums between different periods of history.
The courts continue to remain under a severe pressure since the pronouncement by the International Crimes Tribunal – II of the verdict of life imprisonment in the crimes against humanity case against Bangladesh Jamaat- e -Islami leader Abdul Quader Mollah, in the form of the protest demonstration at Shahbagh square for the 12th consecutive day by today demanding change of the order to death by hanging.
In line with the demand aired by the demonstrators, Parliament has initiated a legislation to further amend the ICT law of 1973 which was amended in 2009 to facilitate trial of cimes against humanity committed during the 1971 War of Liberation. The International Crimes (Tribunal) Act 1973 was amended in 2009 and the International Crimes Tribunal Rules of Procedure and Evidence were put in place by 2010. Six leaders of the Jamaat and one of the BNP and another who held ministerial position under a previous BNP government are under the said trial.
The Jamaat is challenging the legality of the trial and the neutrality of the ICT process. Clashes between Jamaat activists and police were reported from Rajshahi and Cox’s Bazar during the last two days. The BNP has said it is not against the trial but wants the same to be conducted neutrally upholding the due processes of law. BNP’s view is that the government’s move was to gag the opposition.
A Supreme Court judge has in the meanwhile commented that courts should always decide cases on their merit not on extraneous pressures. Earlier, one ICT judge resigned in the wake of a much criticised skype conversation scandal on the proceedings of International Crimes Tribunal – I.
On Thursday in the Additional Judicial Magistrate’s Court, Bogra, six of 42 BNP-supported Juba Dal and Swechhasebak Dal leaders and activists accused in a case filed by AL-supported BCL activists were refused bail after their surrender. The 42 accused had earlier obtained ad-interim bail from the higher court. After the surrender seeking bail, 36 were enlarged, and six were refused bail. Those refused bail included Bakhtiar, president and Arafatur Rahman, general secretary of Bogra district Jubadal; Shah Mehedi Hasan, the president district Swechhasebak Dal, Juba Dal town unit joint secretary Afil Sahariar Gorky, assistant secretary Moharam Ali Tofin and activist Shah Alam. The case against them was filed following a chase and counter-chase at Bogra town during the December 13 hartal (general strike) called by the BNP.
Refusal of bail was followed by hue and cry in the courtroom that was reported to have been vandalised by Juba Dal and Swechhasebak Dal activists. BNP leaders later, reportedly on persuasion by the police, sent the six accused back to the court. Responsible indeed. The court however sent them to jail remaining steadfast on its decision.