Cablegate: Debate Surfaces Over Martial Law Legitimacy

This record is a partial extract of the original cable. The full text of the original cable is not available.




E.O. 12958: N/A

1. (SBU) Summary: On August 31, the appellate panel of the
Supreme Court stayed for two months the August 29 High Court
judgment that had nullified the fifth amendment to the
constitution. The fifth amendment validated promulgation of
martial law after the 1975 assassination of President Sheikh
Mujibur Rahman and actions by the subsequent governments,
redefined socialism, replaced secularism with conviction to
faith in God, and restored multi-party democracy, press
freedom and the partial independence of the judiciary. The
government is preparing to file appeals against the High
Court verdict. End Summary

2. (U) On August 29, a 2-member High Court panel declared
the fifth amendment to the Bangladesh Constitution void.
This verdict rendered illegal the assumption of office by
three presidents -- Khandker Mushtaque Ahmed, Justice Abu
Sadaat Moahmmad Sayem, and Major general Ziaur Rahman -- and
actions taken by their governments under martial law between
the August 15, 1975 coup d'etat and the enactment of the
amendment in April 1979. The High Court bench, however,
observed that the "welfare activities" carried out by the
martial law regimes were pardonable. The "welfare"
activities might include introduction of the Kuranic words
"Bismillahir Rahmanir Rahim" at the beginning of the
preamble of the constitution, restoration of multi-party
democracy, and press freedom. The full verdict is yet to be
made public.

3. (SBU) Alarmed by the High Court verdict, which would put
the image of her slain husband and BNP founder Ziaur Rahman
in jeopardy, PM Zia asked Attorney General Mohammad Ali to
secure a stay by midnight. Ali went to a chamber judge's
home and secured the stay shortly before midnight on August
29 until hearing of the petition by the regular appellate
panel on August 31. The panel extended the stay order by two
months and asked the government to file leave to appeal
within this time.

4. (SBU) Ali told Embassy that the High Court order was an
unexpected development, as the petitioner's main intention
was to regain a movie theater taken over by the Mujib
government as an abandoned property. A martial law order had
negated a High Court order to hand over the movie theater to
its original owner. Ali said Justice A.B.M. Khairul Haque,
who presided over the bench that nullified the Fifth
Amendment, is known for his bias in favor of the opposition
Awami League (AL) and he took advantage of this case to
embarrass the government by declaring BNP founder Ziaur
Rahman"s government illegal at a time when AL was trying to
oust the government and the pro-AL attorneys were out to
create chaos in the society. He said Haque has violated
"judicial discipline" by opening a closed matter and
referred to earlier High Court and Appellate panel
observations that the fifth amendment had become part of the
constitution by long acquiescence of the people and should
no longer be a matter of judicial debate. He termed the High
Court verdict "mischievous."

5. (U) In press interviews, prominent attorneys gave mixed
reactions to the verdict. Some of them appreciated the
judgment as "historic" and "bold" as this was the first
judgment declaring martial law illegal. Others criticized
the judgment for its "vagueness" as to its observations that
the "welfare" activities were pardonable. One prominent pro-
BNP attorney said the judgment would contribute to
instability and chaos in the society. Law Minister Ahmed
said the verdict had no value from the perspective of the
state, government, and continuation of the constitution. The
verdict has created a temporary sensation and has no effect
now that the appellate panel has stayed it, he said, adding
that the government would appeal it and give its views from
the constitutional perspectives.

6. (SBU) Comment: The sharp government reaction to the High
Court verdict nullifying the fifth amendment indicates PM
Zia's high level of sensitivity to the question of
legitimacy of her slain husband's regime and her party's
dependence on the popular image he left behind. The unusual
verdict given by a panel led by a pro-AL judge and the
Attorney General's immediate reading of it in political
terms exposes the waning integrity of a politicized
judiciary. The controversy, however, may die down for the
time being as the appellate panel has stayed the verdict and
may take it up for review. End comment.

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