Siddique Ahmed vs Bangladesh 65 DLR AD 2013

 

 Analysis of the Fact:

Siddique Ahmed,the petitioner was arrested in 11-4-1985 on the accusation of killing Abu Taher in 12-1-1984. Charge sheet was filed against 3 persons including the writ petitioner under section 302 of the Penal Code. The case was transferred to the Chairman, Special Martial Law Court no.03, zone C, Cantonment Bazar, Chittagong for trial. After conclusion of the trial all the accused persons including the writ petitioner were convicted in absentia under section 302/34 of the Penal Code. Being aggrieved by the conviction and sentence passed by the Martial Law Court filed a writ petition under Article 102 (a) (ii) of the Constitution challenging the legality of section 03 of the Constitution Seventh Amendment Act,1986.

Argument from the petitioner:

It was argued that 

v  Constitution is the supreme Law of Bangladesh. The impugned Martial Law had got no place in our jurisprudence. So, all the Proclamations, rules, orders and notifications promulgated under the Martial Law Proclamation were void ab initio. Therefore all the Martial law courts were not legal and all the proceedings before those courts and tribunals were coram non judice.Consequently the verdicts pronounced by those courts and tribunals were non est in the eye of Law.

v  Since the vires of the Constitution was challenged and there was no alternative and efficacious remedy for the petitioner. So the petition was maintainable.

Submission from the intervener:

Mr. M. Aminul Islam as an intervener submitted that Principle of  Condo nation would be unnecessary and  dangerous in this case. The court can not prempt the ill apprehended chaos in the country and condone all the ill regularities at a time.

Submission from the Amicus Curie:

Mr. Rafiqul Haque as an amicus curie submitted that

v  The condo nation of the past and closed transactions should not ve absolute rather it should be proportional to the necessity according to the doctrine of necessity.

v  The High Court Division rightly inferred in the exercise of its powers in certiorari because Special Martial Law Court was constituted illegally. But the High Court Division should also formulate the questions of law which require interpretation by the Appellate Division because a mere certificate granted under Article 103 (2) (a) is not enough.

v  The theory of efficacious remedy does not arise if the trial was conducted without jurisdiction.

Decision:

Section 03 of the Constitution Seventh Amendment Act, 1986 is declared void. The Trial and Conviction of the Appellant writ petitioner by the Special Martial Law Court is declared illegal and void. The case was ordered to continue from the stage it was transferred from the court of sessions.

Reasoning behind the decision:

The above decision was taken on the following grounds:

v  Constitution can not be violated on any excuse and its violation is the gravest of all the offences and remains illegal for all time to come.

v  Under Article 150 the temporary provisions only for the period from the date of declaration of independence on 26^th March,1971 to 16^th December,1972 are set out in the Fourth Schedule. No other provision can be inserted after the time. So, Paragraph 19 which has illegally added in the Fourth Schedule is declared void and non est.

v  If a valid amendment is made in the Constitution it may find its place in the Constitution but must not be included in the Fourth Schedule.

v  The proclamation of Martial Law is not only in clear violation but also in destruction of the Constitution. So, it is absolutely illegal and void ab initio.

v  The Constitution covenants a democratic People’s Republic of Bangladesh to be governed by a sovereign people through elected Representatives. So, any person who declares Martial Law and ousts an elected Government or attempts to do so he and his associates would be liable for high treason against the Republic of Bangladesh.

v  Usual past acts and conducts are condoned on the maxim SALUS POPULI EST SUPREMA LEX. Salus populi gets supreme lex but not the usurpers and violators of the Constitution. So, no condo nation is allowed for Martial Law proclamations.

v  High Court Division may exercise its extraordinary powers under Article 102 of our Constitution if equally efficacious remedy is not available but bail is not available in certiorari.

Principle:

Supremacy of the Constitution is the first and foremost basic feature of a written Constitution and amendment of the Constitution in a manner not permitted by the Constitution in violation of the basic feature of the Constitution can not be make valid in any manner.

Importance of this case:

This case is popularly known as Constitutional Seventh Amendment Case which bears a significant value in the Constitutional and Democratic journey of Bangladesh. In this case the Constitutional Seventh Amendment Act was declared illegal because it was solely violative of our Constitution. In this case Martial Law was declared unconstitutional.