Putting the case into legal, political, and historical context
The assassination of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman marked one of the darkest and most trying moments in the history of Bangladesh. The protracted legal process that began 21 years after the August 15, 1975 carnage is a momentous one that every enthusiast of history would like to be acquainted with. This article is set to discuss, in a chronological manner, the legal and political background of the case, proceedings at both trial court and appellate court, and the fate of the suspected perpetrators.
Political background to the case
On August 15, 1975, some unruly Bangladesh Army officials, in a pre-dawn putsch, assassinated Sheikh Mujibur Rahman and 16 other members of his family. Khondaker Mostaq Ahmad, who later grabbed the office of the president and was then the commerce minister, seemed to have been acting discreetly and as a spy in Sheikh Mujibur’s government.
The assassination of the Father of the Nation and dethroning the post-independence Awami League government was indeed a complex political plan that even included countries like the US and Pakistan. This shows that bringing the fugitive perpetrators of the assassination to justice would require cooperation between the involved jurisdictions.
Mostaq Ahmad promulgated the Indemnity Ordinance 1975, just 41 days into the assassination of Bangabandhu, that safeguarded any action against the killers of the Father of the Nation could not be sustained. The worst development towards ensuring justice happened in 1979, when all the ordinances and declarations made in the four years of martial law were legalized into the constitution’s fifth amendment by Ziaur Rahman.
This ensured that all injustices occasioned by authorities could not be questioned in any legal authority. This action made it impossible to bring the perpetrators of the assassination to account. The administrations that came after the assassination all ensured that it was impossible to bring a cause of action against the killers of the Father of the Nation.
On November 14, 1996, the parliament, under the leadership of PM Sheikh Hasina, repealed the Indemnity Ordinance, which ultimately cleared the way to bring the perpetrators of the assassination in a court of justice to face trial. However, two of the assassins filed a motion before the High Court challenging the repeal. In dismissing their motion, the court noted that the Indemnity Ordinance 1975 had been proclaimed without legal authority as mandated by the constitution.
In giving its reasoning, the High Court noted that Mostaq becoming the president was an illegal act; therefore, the ordinance issued by him could not be legitimate either. The court further stated that only the president who is in office in accordance with the constitution could promulgate an ordinance in the absence of parliament. After the death of the Father of the Nation, the next in line to assume the seat of the president was his vice president Syed Nazrul Islam who was still alive until November 3, 1975.
The next in line for the presidency after the death of the vice president would have been Abdul Malek Ukil, the then speaker of the parliament. Therefore, Mostaq had no constitutional right to become the president or proclaim any ordinance. This finding by the court rendered the ordinance illegitimate.
Later, the appeal of the perpetrators of the assassination was lost in appellate court. In rejecting the appeal, on March 2, 1998, the Appellate Division observed that the Indemnity Ordinance was an act issued post-incident and that since Mostaq had not formally revoked the constitution, the rule of law was still in operation during that time and all crimes committed during that period were punishable by law. As such, the Indemnity Ordinance was entirely against the essence of the rule of law.
Commencement of trial at lower court
The delay occasioned by the Indemnity Ordinance to even lodge the FIR dragged on for 21 years. On October 2, 1996, the FIR was lodged. CID police, which took up the case and launched investigation into the Bangabandhu murder, submitted the charge sheet against 20 accused to the chief metropolitan magistrate’s court. The trial began on March 12, 1997, with 14 of the suspects absconding. On April 7, 1997, the court formally accepted the charges after formalities necessary for trial in absentia were completed. The accused persons were charged with conspiracy, murder, and concealing evidence as laid out in Sections 302, 34, 120(b), and 201 of the Penal Code 1860. As laid out in the penal code, the punishment for these crimes could extend to punishment by death.
On April 29, 1997, the trial was adjourned because a defense counsel challenged some procedural issues at the High Court. Later, the trial court resumed proceedings on July 6, 1997, with 19 accused as the High Court relieved Zobaida Rashid of charges.
After about a year and a half’s proceedings, on November 8, 1998, Judge Kazi Golam Rasul handed down death penalties to 15 accused (and acquitting four others), which occasioned the concurrent death reference and appeal hearing beginning in High Court on August 24, 2000.
Reference and appeal hearing at High Court Division of the Supreme Court
In a High Court division bench, the Senior Justice MM Ruhul Amin convicted and sentenced nine of the accused to death, one to life imprisonment, and acquitted five of them, while the junior Justice ABM Khairul Huq convicted and sentenced to death all 15 accused persons.
Thus, there was a splitting verdict concerning six of the accused, and the matter was referred to a third Justice, Mohammad Fazlul Karim, in 2001. justice Mohammad Fazlul Karim acquitted three of the six and sentenced the other three to death. At long last, 12 of the accused were convicted and sentenced to death, and seven were acquitted out of the 19 charged.
Counsels of the case
Veteran lawyer Serajul Huq commenced the trial, and after his death, his son, Advocate Anisul Huq took up the case as the chief state counsel. There were more than 20 prominent advocates in the prosecution team -- Mahbubey Alam, Abdul Matin Khasru, Yousuf Hossain Humayun, Ajmalul Hossain QC, to name a few. On the other hand, the appellants were represented by advocates Khan Saifur Rahman, bdullah-Al-Mamun, and Abdur Razzaque Khan.
The main issues of the case
The main issues in the case were: Whether the perpetrators were protected by martial law and the Indemnity Ordinance; and whether the entire army took part in the assassination of the Father of the Nation.
The prosecution, in their submissions, argued that considering the constitution was not formally revoked by Mostaq Ahmad, the killers could not then rely on martial law as a defense to their actions. Khan Saifur Rahman, opposing counsel acting for Colonel Farooque, claimed that Major Dalim announced the assassinations by radio.
He further argued that martial law protected their actions and that the assassination was a coordinated action that included the whole army. However, the prosecution was able to convince the court that the assassinations were an action of a few personnel in the military. The prosecution argued that the rule of law in the country does not have exceptions to members of the army, and that ensuring the perpetrators of the assassination faced the rule of law was essential in providing an establishment for respect for the rule of law in the country.
In its argument to have the army officials tried in an ordinary criminal court, the prosecution relied on Article 59(2) of the Army Act 1952, which outlined that an army officer could not be tried under the act if the said officer had retired from active service. The perpetrators had already retired therefore could not be tried under Section 8(1) of the act.
The prosecution further argued that the assassination of the Father of the Nation did not include conspiracy to commit mutiny but rather a criminal conspiracy to kill the president and his family members by a few members of the armed forces and therefore could not be a mutiny.
The Judgment of High Court
The learned justices were convinced by the prosecution’s arguments against the accused persons. The learned justices were keen to note that the evidence adduced and relied upon by the prosecution were satisfactory and admissible. The defense, on the other hand, was not able to prove to the court that the lower court in sentencing them to death committed severe and substantial miscarriage of justice.
Also, the issues on the point of law brought by the appellants did not meet the required threshold to dismiss the decision of the lower court. Therefore, the court held that the martial law and the Indemnity Ordinance did not protect the perpetrators of the assassination of Bangabandhu; and that the entire army did not take part in the assassination, rather it was several army and other government officials.
Verdict of the Appellate Division and execution of the sentences
The final appeal hearing of the case began at the Appellate Division on October 5, 2009. The Appellate Division upheld the death penalty for the 12 convicts in their verdict on November 12, 2009. Syed Farooque Rahman, Mohiuddin Ahmad, Bazlul Huda, AKM Mohiuddin Ahmad, Sultan Shahriar Rashid Khan were executed on January 27, 2010, and Captain Abdul Majed’s execution was carried out at Dhaka Central Jail in Keraniganj on April 11, 2020.
Another condemned killer, Aziz Pasha, who sought refuge in Zimbabwe, met a natural death in June 2001. The other five killers who are on the run and sought refuge in other countries are sacked Lt Col Khandaker Abdur Rashid, SHBM Noor Chowdhury, Shariful Haque Dalim, Rashed Chowdhury, and Risaldar Moslehuddin; there are in different parts of the world -- Libya, Pakistan, Canada, and the US.
The government is still making an effort to ensure the remaining convicts are brought back to the country to face justice and hoping that Interpol and concerned jurisdictions would assist in this regard.
August 15, 1975: Bangabandhu is assassinated along with 16 members o his family.
September 26, 1975: Indemnity Ordinance is issued by Khondker Mostaq Ahmed who unconstitutionally grabbed the office of the president after Bangabandhu’s assassination.
September 4, 1979: Ziaur Rahman indemnifies his unconstitutional takeover of power and all other events between the August 15, 1975 and April 4, 1979, by enacting the Constitution Fifth Amendment Act in the second parliament, which was dominated by his newly formed party’s lawmakers.
June 23, 1996: Awami League returns to government under the leadership of Sheikh Hasina.
August 14, 1996: Three major accused, Syed Farooque Rahman, Sultan Shahriar Rashid Khan, and Taheruddin Thakur, are arrested.
October 2, 1996: FIR is lodged against 24 suspects by AFM Mohitul Islam, PA of Bangabandhu, at Dhanmondi Police Station.
October 3, 1996: CID of DMP takes up the case and launches investigation into the Bangabandhu murder
November 14, 1996: Parliament repeals the Indemnity Ordinance clearing routes to bring the killers to justice.
January 15, 1997: CID submits charge sheet against 20 accused to CMM’s court as four suspects were already dead.
March 12, 1997: Trial starts with six arrested accused and trial in absentia for other absconding accused.
April 2, 1997: Trial court arraigns the accused after hearing charges.
April 29, 1997: Trial is adjourned as one defense counsel challenges at the High Court about some procedural issues.
July 6, 1997: Trial resumes with 19 accused as High Court relieves Zobaida Rashid of charges.
March 2, 1998: Appellate Division of the Supreme Court rejects appeal against the repealing of the Indemnity Ordinance.
July 21, 1998: Hearing of the 74 prosecution witnesses ends.
October 13, 1998: The trial process ends with closing arguments of counsels.
November 8, 1998: Judge Kazi Golam Rasul hands down death penalties to 15 accused and acquitted four accused.
August 24, 2000: Concurrent death reference and appeal hearing initiates in High Court Division.
December 14, 2000: High Court bench delivers split judgment. Senior justice M Ruhul Amin upholds death penalties of 10 of the 15 and the other Justice ABM Khairul Haque confirms the capital punishment for all the 15
February 12, 2001: The concurrent death reference and appeal hearing begins with another High Court justice as the split judgment requires the case to be referred to a third justice in a second bench.
April 30, 2001: Third Justice Mohammad Fazlul Karim confirms death sentences of 12 of the 15 accused.
August 29, 2005: High Court, in a landmark verdict, in Bangladesh Italian Marble Works Ltd v Government of Bangladesh, declares illegal the Fifth Amendment to the constitution. (This verdict was upheld by Appellate Division on February 2, 2010.)
October 4, 2009: Justice MM Ruhul Amin constitutes a five-member bench at the Appellate Division for the appeal hearing comprising Justice M Tafazzal Islam, Justice M Abdul Aziz, Justice BK Das, Justice M Mozammel Hossain, and Justice SK Sinha.
October 5, 2009: Final appeal hearing of the case begins at the Appellate Division.
November 12, 2009: Final appeal hearing ends and the court fixes November 19 for pronouncing the verdict.
November 19, 2009: The Appellate Division upholds the death penalty for the 12 convicts.
Sayed-Ul-Haque Dinar is Advocate, Supreme Court of Bangladesh.