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OP-ED: The darkest law in the history of Bangladesh

  • Published at 12:10 am August 26th, 2020
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Photo: BIGSTOCK

How Bangabandhu’s killers escaped justice for so long

The assassination of the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman, and his family marked the beginning of a black chapter in the history of Bangladesh. After the assassination of Bangabandhu Sheikh Mujibur Rahman and his 17 family members on August 15, 1975, self-proclaimed President Khondaker Mostaq Ahmad, who was a member of Bangabandhu’s cabinet, issued an ordinance to protect the killers of Bangabandhu. That ordinance was also validated by Major General Ziaur Rahman, who was appointed as the chief of army at the time. 

The ordinance was known as the Indemnity Ordinance 1975, which was issued on September 26, 1975. This ordinance granted immunity from prosecution to the assassins of Mujib and his family. As the parliament of Bangladesh was not in session, the law was promulgated on September 26, 1975, in the form of an ordinance by President Khondaker Mostaq Ahmad. 

Major General Ziaur Rahman transformed it into legislation by the Fifth Amendment to the constitution on July 9, 1979. Thus, the Indemnity Act became enshrined in the constitution of Bangladesh. 

The ordinance was divided into two parts. The first part of the infamous Indemnity Ordinance 1975 stated that no suit, prosecution, or other proceedings, legal or disciplinary, shall lie, or be taken in before or by any court, including the Supreme Court and court martial, or other authority in respect to certain acts or things done in connection with, in preparation of, or execution of any plan for, or steps necessitating, the incident of August 15, 1975 and the proclamation of martial law on the morning of August 15, 1975. 

In the second part, it was mentioned that those named by the president as people related to the assassination were indemnified. Initially, the legislation gave immunity to the persons involved in the assassination of Sheikh Mujibur Rahman, but later Ziaur Rahman and Hussain Muhammad Eshad further amended the law to legalize the military coups, martial law decrees and orders, and other political events and decrees promulgated under their rule. 

On February 18, 1979 the second parliamentary election was held under martial law. In that election, Ziaur Rahman’s party BNP won with a two-third majority. All ordinance and declarations made under the four years of martial law, including the Indemnity Ordinance, were legalized through the Fifth Amendment of the constitution. 

The amendment was passed on April 9, 1979. The amendment legalized the Indemnity Ordinance and indemnified the perpetrators of the August 15 massacre. If the Indemnity Ordinance issued by Mostaq had not been validated during the rule of Ziaur Rahman, legal proceedings could have been initiated against the murderers with the repeal of martial law on April 9, 1979. 

The Indemnity Act was repealed after the Awami League formed a government with Sheikh Hasina as the prime minister of Bangladesh. The parliament repealed the Indemnity Act on November 12, 1996. This paved the way to bring the killers of Sheikh Mujib and his family members to justice. 

Two out of the twelve killers filed a writ petition with the High Court challenging the Indemnity Repeal Act. The High Court dismissed their petition on Jan 28, 1997. The Indemnity Repeal Act was passed legitimately. The High Court observed that the Indemnity Repeal Act was not in conflict with the constitution. 

The Indemnity Ordinance 1975 has been declared void-ab-initio being ultra vires of the constitution. In the light of the decision reported in A.I.R. 1956 (All) 684, the High Court Division held that an unconstitutional act is not a law. It is, in legal contemplation, as inoperative as if it had never been passed. 

A full bench of the Appellate Division heard an appeal by the killers and gave the verdict against them. They filed a review petition but it was rejected. In the verdict, the Appellate Division said that such an ordinance could not remain in place to judge any criminal offense -- the Indemnity Ordinance was not supported by the constitution. 

Therefore, the regular power of the parliament to repeal a law was never hindered. On November 19, 2009, the Appellate Division of the Supreme Court upheld the death penalty of 12 convicted former army officials for the assassination of Bangabandhu and his family members. Five assassins were executed on January 27, 2010. 

They are Syed Faruk Rahman, Mohiuddin Ahmed, Bazlul Huda, AKM Mohiuddin Ahmed, and Sultan Shahriar Rashid Khan. One of the twelve convicts, who absconded to Zimbabwe, met natural death. On April 12, 2020, the seventh killer, Abdul Majed, was hanged. 

The government of Bangladesh is trying to bring back the five remaining self- confessed killers -- who absconded abroad -- for the execution of the death sentences awarded by the apex court. They are Khandaker Abdur Rashid, Shariful Haque Dalim, Noor Chowdhury, Rashed Chowdhury, and Risaldar Moslehuddin. 

To remember August 15, 1975 is to evoke the period wherein Bangladesh entered its darkest, bloodiest chapter. No case needs to be argued. Just naming the date is enough.

Miti Sanjana is an Advocate of the Supreme Court of Bangladesh, partner of Legal Counsel, and an activist.

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