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SC judges were disloyal to charter

The then chief justice Sayem became president, CMLA; Mahmud and others upheld martial law regulations

Shakhawat Liton
The constitution had empowered the Speaker to administer the oath of office to the president. But the disgruntled army officers who assassinated Bangabandhu Sheikh Mujibur Rahman on August 15, 1975 might have had less confidence in Abdul Malek Ukil.
They turned to the acting chief justice, Syed ABM Mahmud Hossain.
Justice Hossain, who was bound by an oath to defend the constitution, did not frustrate the killers. He administered the presidential oath to Khondokar Moshtaque Ahmed on the afternoon of August 15,1975.
Five days later, Moshtaque issued a martial law proclamation on August 20 and amended the constitution to authorise the chief justice to administer the presidential oath.
He also suspended the provision which asked for electing new president through direct polls if the post fell vacant. As per the provision, vice-president was to act as the president in the absence of the latter. If the vice-president was unable, the Speaker will assume the role.
When Moshtaque amended and suspended the constitutional provisions, parliament still existed. And none but parliament had the authority to make any change in the charter.
Chief Justice ASM Sayem was not in the country. On his return home, he rushed to the Bangabhaban on August 22 to meet Moshtaque.
Speaker Abdul Malek did the same. He met Moshtaque at the presidential residence and extended his support
Justice Abu Sayeed Chowdhury, two-time president of the Bangabandhu government, did not hesitate to join the illegitimate regime as the foreign minister on August 15.
Justice SM Morshed, a former chief justice of East Pakistan High Court, met Moshtaque on August 24. A few days later, he led a delegation of Moshtaque government to join an international conference.
Meanwhile, the situation in the army turned volatile.
A counter coup led by Brig Gen Khaled Mosharraf and Col Shafayet Jamil took place on November 3 to remove Moshtaque from the presidency and Gen Ziaur Rahman from the post of army chief.
The coup opened a window of opportunity for Justice Sayem. He agreed to become the president, nominated by Gen Khaled Mosharraf. He also became the chief martial law administrator in an unprecedented manner.
His address to the nation after his installation as president was more interesting.
"Some retired and serving army officers assassinated the president [Sheikh Mujib] and most of his family members. Khondokar Moshtaque Ahmed assumed the office of the president and declared the martial law. In fact, the military forceshad no link with it," he said in his November 6 speech.
Since the morning of August 15, killers of Bangabandhu launched
the campaign through the state-run media that the armed forces had taken over by ousting the Mujib government.
But the November 7 coup changed the situation. Gen Khaled Mosharraf and his aides lost the game while Gen Zia assumed the office of the army chief of staff and appeared as a more powerful man in the force.
The counter coup by Zia's followers made uncertain the fate of Justice Sayem as the president. But Zia allowed Sayem to continue in the post. Within 24 hours, Justice Sayem emerged in new colours suited for Zia and Moshtaque.
In his address to the nation on November 7, Justice Sayem lauded Moshtaque as much as possible. He said he had agreed to continue as the president at the request of Moshtaque.
Moshtaque set a rare example by handing over the presidency despite a spontaneous demand for his installation, Justice Sayem claimed.
Justice Abdus Sattar was appointed special assistant to the president in 1975 by Justice Sayem. He now took the charge of the law and parliamentary affairs ministry.
At the end of November 1975, Justice Sattar helped Gen Ziaur Rahman to grab the post of chief martial law administrator.
"Brother! Since he [Zia] wants to be MLA, let him have it," Sattar told Sayem when Zia flanked by some senior army generals was mounting pressure on Sayem to relinquish the postofCMLA.
Sayem, who initially refused, succumbed to the pressure. Zia grabbed the presidency in April 1977 and appointed Sattar vice-president in June.
Justice Mahmud Hossain, who was the acting chief justice while
administering Moshtaque's oath, was the chief justice during Zia's extra-constitutional takeover. He swore in Zia on April 21,1977.
The next year, Chief Justice Hossain and his colleagues Justice Kamaluddin Hossain and Justice Fazle Munim at the Appellate Division in a verdict said that martial law proclamation, regulation or order subordinated the constitution.
The country was under martial law when they delivered the verdict on January 4, 1978. It was in a case known as "Halima Khatun Vs Bangladesh".
Those days are gone now. Judges in recent years strongly denounced the martial law and military rulers. The Supreme Court has already declared the constitution's fifth and seventh amendments illegal and void. The two amendments legalised the two martial law regimes from August 15, 1979 to April 9, 1979 and March 24, 1982 to November 11,1986.
Former chief justice ABM Khairul Haque, who declared the fifth amendment illegal when he was a H igh Court judge, said:' It can not be believed that Moshtaque, Justice Sayem, Gen Zia did not know that under article 48 of the constitution, they were not eligible to become the president, still all of them in defiance and violation of the constitution, seized the office of president by force, thereby apparently all of them committed the offence of sedition. “
Referring to the judgment that said the martial law proclamation subordinated the constitution, the 2011 Supreme Court verdict on the seventh amendment says, "With great respect for the learned Judges of the Supreme Court of the day, it must be held that their Lordships were absolutely wrong."