US embassy cable - 05DHAKA4345

UNCLAS DHAKA 004345 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV, BG 
SUBJECT: DEBATE SURFACES OVER MARTIAL LAW LEGITIMACY 
 
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. 
Chammas