Date : Friday, 31 December 2010
Author : Julfikar Ali Manik
Published at (city) : Dhaka
Country concerned : Bangladesh
Keywords : 7th amendment, constitution, Constitutional Issues, Daily Star
Language : English
Entry Type : News, Uncategorized
Source : http://www.thedailystar.net/newDesign/news-details.php?nid=168182
The landmark High Court judgment cancelling the Seventh Amendment to the Constitution came following sixty-four-year-old Siddique Ahmed’s writ but it didn’t deliver any personal remedy for the petitioner.
The petitioner was not relieved by the judgment as the judges of the case preferred not to interfere with his conviction and sentence despite his expectation to that end.
Though the HC judgment declared illegal HM Ershad’s military regime (1982-1986) and all martial law courts and trials, Siddique’s conviction in such a tribunal prevails.
He also wanted an order from the HC for retrial of the case in an existing court set up constitutionally. But he was not given that privilege in the watershed judgment, full text of which was released on Wednesday.
Siddique was convicted for life term in a martial law court in 1986. The seventh amendment was made to legitimise the martial law proclamation and orders during Ershad’s military regime, under which many trials were held in martial law courts.
In January this year Siddique filed a writ with the HC through his lawyer Barrister Hassan MS Azim challenging legality of the seventh amendment.
He also wanted an order from the HC cancelling the trail and conviction in the martial law court and retrial of the murder case against him.
The HC granted him bail and after furnishing the bail bond in a Dhaka court he has been released from jail.
The historic verdict delivered by Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain declared illegal the trial of Siddique in a martial law court but did not give any clear judgment cancelling his conviction.
Barrister Azim, who is now abroad, told The Daily Star over phone yesterday that he read the full text of the judgment on net. As his client did not get full remedy he would appeal to the Supreme Court, he added.
“I am partially happy as my client [Siddique] has got partial remedy. But now I will go to the Supreme Court for the rest of the remedy we wanted after getting the certified copy of the judgment,” Azim said.
He added, “We wanted cancellation of trial in the martial law court which we have obtained. But we also wanted an order from the High Court to set aside the conviction by the martial law court and send the case to a trial court.”
On the martial law courts, the judgment said, “…particularly in the light of the finding that martial law courts were bereft of authority as the martial law itself was. This would, a fortiori, entail that convictions passed by such purported courts are of no effect in the eye of law.”
But discussing some other complicated issues the judgment added, “His [Siddique] sentence still being executory, he can be compartmentalised within the ‘past and closed’ criteria. But the petitioner’s sentence is still executory.”
On Siddique’s conviction, the judgment said, “…it is our well meditated view that the petitioner must, if he is so advised, seek relief from a different forum, not from us.”
The judges discussed another issue in the judgment under a section styled “Is a Criminal Matter Judicially Reviewable?” and drew their conclusion not to pass any order regarding cancellation of conviction and sentence.
The judges said their refusal to intervene also means cessation of the petitioner’s bail privilege and directed Siddique to surrender his bail.
Legal experts say the petitioner now will have to surrender his bail before a trial court meaning the court will send him to jail.
Besides, Siddique’s counsel will have to look for a “different forum” for his client’s remedy.
Barrister Azim said though the judgment did not mention specifically about the “different forum” he thinks it is likely to be another HC bench with power to cancel such conviction and sentence under section 561 of the Criminal Procedure Code (CrPC).
He added, “I didn’t seek to get the murder case against my client quashed and wanted direction of cancellation of conviction by the martial law court and retrial in a court set up under proper law.”
NO MOVE FROM GOVERNMENT
Though the judgment also directed the law ministry “to reflect this judgment by reprinting the Constitution”, Law Minister Shafique Ahmed said the government has nothing to do with it right now as the Supreme Court will scrutinise the judgment.
As the HC issued a certificate the appeal will be filed with the Appellate Division automatically and the SC will give the final judgment over the petitioner’s case.
Shafique said now everything related to the seventh amendment case is with the Appellate Division and the government would do its task after the matter is finalised by the apex court.
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