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Martial Law in Bangladesh, 1975-1979: a Legal Analysis

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Martial Law in Bangladesh, 1975-1979: a Legal Analysis MARTIAL LAW IN BANGLADESH, 1975-1979: A LEGAL ANALYSIS by Md. Ershadul Bari A thesis submitted for the Degree of Doctor of Philosophy in the Faculty of Laws, Department of Law, School of Oriental and African Studies, University of London September 1985 ProQuest Number: 11010524 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010524 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT The primary object of this thesis is to offer a legal analysis of Martial Law in Bangladesh, 1975-1979. It is divided into nine chapters. The introductory chapter traces the birth and constitutional and political development of Bangladesh before the proclamation of Martial Law in August 1975. It examines the various uses of the term ’Martial Law1 and the controversies which have arisen as to the basic character of Martial Law. The role of the doctrine of 'necessity' in the promulgation and continuation of Martial Law, and in the justification of all measures taken under Martial Law are examined. The nature of Martial Law courts is considered, and the history of the promulgation of Martial Law in the Indian subcontinent is outlined. Chapter II considers the legality and justification of the Proclamation of Martial Law in Bangladesh in 1975, the legality of the assumption of the office of President by Khandaker Moshtaque Ahmed, the position of the 1972 Constitution and other laws after the declaration of Martial Law. It examines the impact of the various coups upon the discipline of the armed forces, and deals with the structure of the Martial Law administration and the civilianisation of government and the withdrawal of Martial Law. The various Martial Law Regulations creating offences are discussed. Chapter III examines the basic provisions relating to the constitution, powers and jurisdiction, and procedure of Martial Law courts. Chapter IV deals with the establishment and composition of the Martial Law courts. It discloses the number of cases transferred arbitrarily from ordinary courts to Martial Law courts, and from one Martial Law court to another. It then looks into the implications of such transfers, and uncovers the number of persons convicted and acquitted by the Martial Law courts and examines certain cases tried by them. 3 Chapter V deals with the provisions relating to the constitution, power and jurisdiction, and procedure of the Special Martial Law Tribunal and Martial Law Tribunals, and examines the trial of the conspiracy case by the Special Martial Law Tribunal and the functioning of Martial Law tribunals. It attempts to ascertain the number of persons executed in the aftermath of the two abortive coups of 1977. Chapter VI describes the definition and importance of the 'independence of the Judiciary1. It considers the independence of the Judiciary in Bangladesh both before and after the imposition of Martial Law in 1975, and the restrictions imposed on the powers and jurisdiction of the Judiciary by the Martial Law regime, and discusses the nature of the fundamental rights guaranteed by the 1972 Constitution of Bangladesh, including constitutional provisions relating to their enforcement and suspension during a proclamation of emergency. It examines the suspension of the enforcement of most of the fundamental rights under the 1974 Proclamation of Emergency and the removal of the power of the Judiciary to enforce fundamental rights by the Constitution (Fourth) Amendment Act, 1975, before the declaration of Martial Law. The chapter sets forth the subsequent restbration by stages of the judicial power to enforce fundamental rights by the Martial Law government. Chapter VII details the definition and necessity of preventive detention. It portrays the possible abuse of the power of preventive detention and constitutional safeguards in this respect, and also examines the provisions of the Special Powers Act; 1974, and the Emergency Powers Rules, 1975, relating to preventive detention and the incorporation of constitutional safeguards into the Emergency Powers Rules with regard to preventive detention in 1977 by the Martial Law administration. Chapter VIII depicts the operation of the laws relating to preventive detention under the Martial Law regime. It specifies the numbers of 4 detenus released under various general amnesties as well as in accordance with the orders of the Supreme Court, and gives some examples of the arbitrary exercise of the power of preventive detention. The chapter enumerates certain instances of writ petitions and the Supreme Court orders in respect of preventive detention, and also examines the case of a detenu who was released in accordance with the order of the High Court, only to be re-arrested at the prison-gate. The last chapter summarises general conclusions. An overall assessment of Martial Law administration is attempted, and some suggestions offered for the prevention of the abuse of the power by Martial Law regimes in future by means of constitutional and legal provisions in respect of the promulgation and administration of Martial Law. ACKNOWLEDGEMENTS I owe debts of gratitude to many for their help in completing my thesis. The greatest is to my supervisor, Professor James S. Read, under whose able guidance the thesis took its final shape. He was endlessly helpful with many comments, suggestions and fruitful ideas at every state of the thesis. Whatever merit the thesis may have is owed to him. I am grateful to the Commonwealth Scholarship Commission in the United Kingdom for awarding me a Commonwealth Academic Staff Scholarship which enabled me to come to London to undertake research work, and I am further indebted to the Commission for continuing the Scholarship for nearly eight weeks while I was on fieldwork in Bangladesh. Originally, my intention was to carry out research on "Fundamental Human rights as Guaranteed by the 1972 Constitution of Bangladesh", but this subject was fraught with many difficulties, and at the suggestion and stimulation of my first supervisor, Dr. R.H. Hickling, I selected the present topic for my thesis. I am indebted to him for his helpful advice. I also wish to thank my second supervisor, Mr. R.H. Tristram, whose recommendations and support enabled me to obtain grants from the SOAS Scholarships Committee and the University of London Central Research Fund to meet the cost of travel to and from Bangladesh. My thanks are also due to the SOAS Scholarships Committee and the University of London Central Research Fund for their grants, which obviously made it possible for me to visit Bangladesh to collect materials and carry out field work consisting of many interviews and discussions with those who were very closely involved with the 1975 Martial Law administration of Bangladesh. During my fieldwork in Bangladesh, I was immensely helped by my father- in-law, Professor M.A. Bari, Chairman, University Grants Commission, who was 6 tireless in his efforts to arrange interviews with many important people, such as ex-President Khandaker Moshtaque Ahmed, ex-President A.M. Sayem, \ former Law Secretary, A.R. Chowdhury, and certain members of tlie Special Martial Law Tribunal. Without his help, many of the interviews would not have been possible. I owe him a profound debt of gratitude for this, as well as for sending me some essential books and photocopies of important materials. I wish to express my appreciation to all those who gave me interviews. These interviews constituted essential materials without which the completion of at least two of the chapters of this thesis would not have been possible. Some of the information needed was of the most sensitive kind, and it was not an easy task to obtain it from those who possessed it, for they were reluctant to divulge such information, either for fear of victimisation or for unspecified reasons. Some of those who I interviewed also chose to remain anonymous. My younger brother, Advocate M. Faizul Bari, was generous with his time and help. He assisted me not only in collecting materials in Bangladesh, but also sent relevant materials from time to time after I had returned to London. I also wish to thank Mr. S. Sujatullah, Advocate Ayenuddin and Dr. M.A. Jalil, Senior Instructor, National Institute of Public Administration, for their co-operation and assistance. The Library staffs of SOAS, Senate House and the Institute of Advanced Legal Studies were very helpful and courteous, and I would like to express my appreciation to the University of Rajshahi, Bangladesh, for kindly granting me study leave for three years. Lastly, I owe special thanks to my wife, Tina, who was a constant source of inspiration and encouragement throughout my stay in London. Moreover, during my fieldwork in Bangladesh for nearly eight weeks, she cheerfully agreed to stay in London on her own with our little baby son and face the inconvenience this entailed. 7 TABLE OF CONTENTS Page ABSTRACT 2 ACKNOWLEDGEMENTS 5 CHAPTER I : Introduction 16 I. The Birth and Constitutional and Political 16 Development of Bangladesh before the Proclamation of Martial Law, 1975-1979 i) General Features of Bangladesh 16 ii) The Birth of Bangladesh 17 iii) Salient Features of the 1972 Constitution 19 iv) The First General Elections in Bangladesh 23 v) Overall Situation of the Country after 24 the General Elections of 1973 vi) The Constitution (Second Amendment) Act, 1973 26 vii) The Proclamation of Emergency, 1974 27 viii) The Constitution (Fourth Amendment) Act, 1975 29 ix) The Declaration of Bangladesh as a One- 32 party State x) The Resentment of the Military Forces 33 Towards the Mujib Regime xi) The Declaration of Martial Law in August 1975 35 II.
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