5th amendment judgment open the Pandora's Box

The recent judgment of the Supreme Court cancelling the Fifth Amendment to the constitution has opened the door for challenging the legality of the controversial secret trial of Bir Uttam Colonel Abu Taher.

Taher's relatives and the lawyer who moved the petition challenging the trial's legality narrated the background of their coming forward. They said the perspective has changed after the Supreme Court's historic verdict that declared illegal the governments and military rule and martial law regulations between the murder of Bangabandhu Sheikh Mujibur Rahman on August 15, 1975, and April 9, 1979.

Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman led the governments during that period.

"This changed perspective prompted us to correct the historic wrong of executing Teher in a farcical trial under a Martial Law Tribunal," Prof Anwar Hossain, brother of Col Taher, told The Daily Star yesterday at his Dhaka University home.

Taher's trial is controversial. His wife Lutfa Taher not only termed it illegal when she was talking to The Daily Star over the telephone, she also sees it as "the killing of Taher in the name of a secret trial".

Lutfa wanted to seek justice for the last 34 years but she could not as she did not get even a single document of the sedition case against Taher or the proceedings of the trial in the tribunal. The tribunal had awarded Taher, former army officer and, also a sector commander during the Liberation War, death penalty and imprisoned 16 others on different terms.

"As I am sure injustice was done to Taher, I was trying to file a case against this trial but we did not even get a single document from the administration in the last 34 years…that is why I could not challenge it," Lutfa said, adding that cancellation of the fifth amendment has created an opportunity for her to challenge the secret trial and ask for documents of the trial through the court.

Lutfa, Prof Anwar and Fatema Yusuf, wife of Taher's bother Abu Yusuf Khan Bir Bikram who was also sentenced to life imprisonment in the hush-hush trial, are the petitioners of the case filed with the High Court Monday.

Taher was arrested on November 24, 1975. The sedition case was file with Mohammadpur Police Station on June 4, 1976.

On June 14, 1976, the then president Justice Abu Sadat Mohammad Sayem constituted a Martial Law Tribunal and published a gazette notification.

According to the gazette, the chairman of the tribunal was Col Yusuf Haider from the Army and four other members were Wing Commander Mohammad Abdul Rashid from the Air Force, Acting Commander Siddique Ahmed from the Navy, Mohd Abdul Ali, first-class magistrate (Sadar South), Dhaka and Hasan Morshed, first-class magistrate (Sadar North), Dhaka.

The trial was held inside Dhaka Central Jail.

The tribunal took less then a month to complete the camera trial of the sedition case and delivered the verdict on July 17, 1976. In the wee hours of July 21, 1976, Taher was executed within 72 hours of the verdict delivery.

Since Taher's arrest, Lutfa was not allowed to see her husband for even a moment until a few hours before his execution.

Prof Anwar was one of the 16 convicted by this tribunal and sentenced to 10 years' rigorous imprisonment. He said they were produced before the tribunal on June 21, 1976, a week after constitution of the tribunal.

After the first appearance before the tribunal, it adjourned proceedings for a week and resumed on June 28.

"The hearing on the case against Taher and others were completed on July 14 and the tribunal gave its verdict on July 17," Anwar said.

Taher refused to beg mercy from the people in the administration, said Anwar.

Soon after knowing about the verdict, Lutfa through Taher's lawyers had sent a petition to the then president and chief martial law administrator (CMLA) Abu Sadaat Mohammad Sayem, army chief and deputy chief martial law administrator (later CMLA) Maj Gen Ziaur Rahman, and secretaries to home and law ministries with a prayer to reconsider the death penalty.

A day after Lutfa's prayer on July 19, a section officer of the Ministry of Home Affairs sent a letter to Lutfa Taher saying, "The president has not been able to accept your prayer."

Lutfa had also written a letter to the home ministry seeking permission to see Taher as she was not aware of her husband's whereabouts after the arrest.

"But I did not get any reply from the administration," Lutfa said.

"I got a few censored letters from Taher when he was detained and at that time I could know in which prison Taher was in. And then I rushed to that jail but heard that the authorities had moved him to another jail and they declined to tell me the name of that prison," Said Lutfa.

She said many illegal things had been legitimised by the fifth amendment.

Leading jurist Shadeen Malik, counsel for the petitioners, told The Daily Star, "All the martial law regulations were protected by the fifth amendment. As now the Supreme Court has cancelled the legality of the fifth amendment, the martial law regulations are no longer protected by the constitution, and it can be challenged like any other law."

The tribunal that tried Taher and others was constituted under the Martial Law Regulation-16 of 1976.

Shahdeen said they have challenged a few provisions of the Martial law Regulation-16 which contradict with the constitution. Like having a trial in secret, getting people involved with it to take oath of secrecy and having no provision for appeal against the verdict of the tribunal.

"Any provision introduced by any martial law regulation that contradicts with the constitution can be challenged and the cancellation of the fifth amendment opened avenues for challenging all such things." he said.

He also said the cancellation of the fifth amendment paved the way to challenge the legality of the trial of Taher. Otherwise, they had to challenge the fifth amendment first and then the secret trial.

Shahdeen said, "It would be interesting if anyone now claim compensation for their conviction and imprisonment under an unconstitutional law."

The three petitioners, including Taher's wife and brother, did not pray for compensation.

"We are not thinking about compensation, we want justice to free ourselves of the stigma which had been imposed on us through a farcical trial based on a false sedition charges," Anwar said, adding, "Due to the constitutional protection of such wrong actions, the history of that period has not come into the light…now the time has come to tell the new generation the true history."


Shariful Alam