Bangladesh-Nepal

The depth of 5th Constitution Amendment

News Round Up

 By Shakhawat Liton in The Daily Star
Changes made to the Bangladesh constitution in around four years after the August 15, 1975 changeover altered the fundamental principles of state policy, destroyed the secular character of the constitution and allowed politics based on religion. Besides, the changes replaced Bangalee nationalism with Bangladeshi nationalism, and provided political right to anti-liberation forces including Jamaat-e-Islami and war criminals that resulted in an alarming growth of political parties and organisations based on religion.All those amendments, modifications, substitutions, omissions and additions to the constitution were indiscriminately made during the martial law rule that began immediately after the assassination of Bangabandhu Sheikh Mujibur Rahman. And the constitution’s fifth amendment bill passed in the second parliament during the rule of Gen Ziaur Rahman in 1979 ratified all the actions that also made the supreme law of the land subordinate to martial law proclamations, orders and regulations.The August 29, 2005 High Court verdict that declared the fifth amendment illegal also said it undermined the very sovereign character of the republic.The Supreme Court on February 2 this year upheld the landmark HC verdict with ‘modifications’ and ‘observations’. Article 8 of the original constitution, which speaks of the four fundamental principles of state policy–nationalism, socialism, democracy and secularism — was amended to omit secularism and insert the words "absolute trust and faith in Almighty Allah".The amendment omitted article 12, which contained secularism and freedom of religion."These changes were fundamental in nature and changed the very basis of our war for liberation and also defaced the constitution altogether," the HC observed in its watershed verdict. The changes transformed secular Bangladesh into a "theocratic state" and "betrayed one of the dominant causes for the war of liberation of Bangladesh".Trial of war criminals stopped and their political rehabilitation began with the scrapping of Bangladesh Collaborators (Special Tribunal) Order 1972 by Khandaker Mushtaque Ahmed, who assumed presidency and put the country under martial law following the killing of Bangabandhu. By the second proclamation on May 3, 1976, Justice AM Sayem, who became president later, omitted the proviso to Article 38 of the constitution, which banned politics based on religion. In the light of the proviso, the Special Powers Act provides for punishment for use of religion for political purpose. But omission of the proviso radically altered the nature of political activities in the country. It led to the rise of religion-based political parties, which were constitutionally banned immediately after the independence for their anti-liberation role.The constitutional bar on war criminals convicted under Bangladesh Collaborators (Special Tribunal) Order 1972 from becoming voters and contesting parliamentary elections was also lifted during the rule of Gen Zia. During his military rule, Zia brought some fundamental changes to the constitution by a proclamation on April 23, 1977.The preamble to the constitution was preceded by "Bismillah-ar-Rahman-ar-Rahim" (in the name of Allah, the Beneficent, the Merciful).The preamble also underwent two changes–the words "a historic struggle for national liberation" were replaced with "a historic war for national independence", and "nationalism, socialism, democracy and secularism" were replaced with "absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice". http://www.thedailystar.net/newDesign/news-details.php?nid=147758

2.High Court clears way for trial of Salauddin Qader Chowdhury
The High Court (HC) yesterday turned down a writ petition filed by BNP lawmaker Salauddin Quader Chowdhury challenging the filing and proceedings of a money laundering case against him. The Anti-Corruption Commission (ACC) on May 6 this year filed the case with Dhanmondi Police Station accusing the BNP leader of laundering $250,000 and HK$100,000 ($12,864) to buy Beximco Pharmaceuticals’ Global Depository Receipts (GDRs).Following a bail petition by Salauddin, the same HC bench on May 10 this year directed him to surrender before the trial court within eight weeks and asked the government not to arrest or harass him in this case during this period. Later the Appellate Division stayed the HC order. http://www.thedailystar.net/newDesign/news-details.php?nid=147782

3. War crimes tribunal starts probe: The Independent, July 22
The prosecutors of the International Crimes Tribunal (ICT) have formally begun investigating the case filed against Bangladesh Jamaat-e-Islami Nayeb-e-Amir Delwar Hossain Sayeedi who is facing war crimes charges.Chief Prosecutor of the ICT Golam Arif Tipu yesterday said that that they have begun the proceedings for the first case under the tribunal. A team of investigators along with prosecutors will visit next week the area of Pirojpur district where the Jamaat leader had been accused of committing crimes against humanity during the war of liberation in 1971, the sources said.The case filed against Sayeedi would be handed over to the International Crimes Tribunal very soon, they said.After completing the investigation of the case the investigation team will go to other places across the country, where other Jamaat leaders, including its chief Matiur Rahman Nizami and Kamaruzzaman had been accused of committing crimes against humanity A tribunal source said they had already begun the process bringing all the war crimes cases to the tribunal. About 20 cases of genocide and related crimes have been filed across the country.On July 18 last, the International Crimes Tribunal announced its rules of procedure. According to the Tribunal the rules are effective from March 25, the day the government formed the tribunal. Registrar of the tribunal Shahinur Rahman told reporters that the investigators were given the power to arrest anyone accused of genocide, crimes against humanity and war crimes in 1971.According to the rules, the tribunal formed under International Crimes (Tribunals) Act 1973 can try a person in his presence or absence.Home ministry sources said that the government had prepared a primary list of 54 war criminals and asked the concerned authorities to prepare a comprehensive list of war criminals.
Of the 54 war criminals, Matiur Rahman Nizami, M Kamruzzaman, Abdul Alim, Mohammad Ayen Uddin, Delwar Hossain Sayedi, Abdul Kader Mollah, ASM Solaiman, Moulana Abdus Sobhan, Moulana AKM Yousuf, Ali Ahsan Muhammad Muzahid, ABM Khaleq Majumder, AQM Shafiqul Islam, Mahmud Ali, Abdul Zabbar Khaddar, Siddiq Ahmad, Abul Kashem, Moulana Syed Mohammad Masum, Abdul Matin, ASM Solaiman, AK Rafiqul Hossain, Nuruzzaman, Ataul Haq Khan, Toaha Bin Habib, Afsar Uddin, Dewan Warasat Ali and Hakim Irtezaur Rahman Khan are alleged to have played a key role in planning as well as committing war crimes.  http://www.theindependent-bd.com/archive.details.php?nd=2010-07-22&nid=183351

4. Historic journey begins:  by Mamun-or-Rashid in the Janakantha, July 27
The historic journey has begun. After 40 years, the killers of 1971 have at last been put to trial on charges of crimes against humanity. The much awaited trial has generated optimism in the mind of people of the country who were feeling frustrated and dejected as no visible attempts were made earlier to put the Pak collaborators to trial during the long 40 years. Now with commencement of trial process, the people have heaved a sigh of relief.
After coming to power for the second term the Sk Hasina led administration initiated measures to hold trial of the war crimes of 1971. In the first session of the 9th parliament, a resolution was unanimously adopted in this regard. Thereafter a special tribunal was formed. Appointment of judge, prosecutor and investigating officers was announced. Top war criminals were arrested. The trial process has now been initiated against them under special tribunal on charges of war crimes. People of the country have hailed this move as the beginning of a new historic journey. Jamaat’s all efforts to subvert the war crimes trial, through money power, muscle power and propaganda / campaigning, both within the country and abroad, have failed miserably on the face of dogged determination of the Sk Hasina led administration to build a conspiracy-free Bangladesh imbibed in the spirit of liberation war.  The people of the country have enthusiastically extended their unqualified support and backing to make the move a success.
The Bangabandhu killers had enjoyed state patronage and protection for 35 years after committing heinous crimes. 11,200 war criminals were freed from jail on December 31, 1975 and rehabilitated through Martial Law proclamations. Ironically, these criminals were made partners in state power. From the stage where the killers of 1971 became a constituent of the ruling clique, bringing them to a stage where they would be facing trial for war crimes was by no means an easy task. The ruling administration has to overcome many difficulties and obstacles to reach that stage. Three decade long continued movement launched by Ghatak Dalal Nirmul Committee has at last started bearing fruits. Relentless efforts of Late Jahanara Imam and Sector Commanders Forum have now started paying dividends after a long period.
Nuremberg trial for crimes against humanity has commenced although 65 years have passed after the Second World War. In Cambodia, trial of five top officials including former President, Army Chief and Speaker, on charges of perpetrating genocide, is taking place after 30 years. Similarly, in Bangladesh, the killers of 1971 including Razakar, Al Badar and Al Shams would now face trial for heinous crimes against humanity after about 40 years.
War records show Jamaat formed Razakar, Al-Badr and Al Shams forces to counter the freedom fighters in 1971. Razakar was established by former Jamaat secretary general Moulana Abul Kalam Mohammad Yousuf while Al-Badr included the members of Islami Chhatra Sangha. Study of history also shows Matiur Rahman Nizami, incumbent Amir of Jamaat, was the then president of Islami Chhatra Sangha. He was quoted as saying on September 15, 1971 by Jamaat’s mouthpiece the Daily Sangram: "Everyone of us should assume the role of a Muslim soldier of an Islamic state and through cooperation to the oppressed and by winning their confidence we must kill those who are conspiring against Pakistan and Islam." Nizami’s speech is evident in the September 8, 1971 issue of the Daily Sangram that carried a report headlined "Chhatra Sangha activists will protect every inch of Pakistan’s land".
In 1971, Mujahid directed his party workers to build Al-Badr to resist freedom fighters, according to a "Fortnightly Secret Report on the Situation in East Pakistan". In line with an official procedure, the report had regularly been dispatched by the then East Pakistan home ministry to General Yahya Khan, the head of the government.
Many researches, academic studies, accounts of both victims and collaborators, and publications including newspapers revealed that Mujahid, who headed the Al-Badr force in Dhaka at the time, allegedly led those who had been involved in killing intellectuals on December 14, 1971, two days before the victory of Bangladesh.
Muhammad Kamaruzzaman has a tainted past with Islami Chhatra Sangha and is blamed for his close link with Al-Badr. "Islami Chhatra Sangha of Mymensingh district was converted into the Al-Badr force and provided with military training. The man responsible for organising the Chhatra Sangha into the militia force was Kamaruzzaman, the then chief of Mymensingh District Islami Chhatra Sangha," a book titled Genocide ’71 says.
In the early 1990s, People’s Inquiry Commission was formed to investigate the activities of the war criminals and collaborators of Pakistan. Abdul Quader Molla was known as "butcher" to Bangladeshis in the Dhaka suburb of Mirpur in 1971, according to the report of the commission headed by the late poet Begum Sufia Kamal.

5. Pakistani intellectuals support war crimes trial in Bangladesh
Two high-profile Pakistani intellectuals welcomed Bangladesh’s move to expose the perpetrators of 1971 crimes against humanity, as a special tribunal earlier this week in its maiden order issued arrest warrants against four main suspects. “I appreciate and support any move against anyone responsible for the killing of innocent civilians in 1971.Genocide is a crime against humanity and every sensitive human being must support a move to put the criminals on trial in a court of law,” leading Pakistani journalist Hamid Mir told BSS. In an interview over phone from Islamabad, Mir, who earned a professional repute for his in-depth journalistic study of militancy in Pakistan and voice for human rights in his country, said “I will (also) support any move against any Pakistani army officer who is responsible for violating law in 1971 or 1977 or 1999 or 2010 anywhere”. “War criminals are our joint enemies. They killed Bangalees in Dhaka and other cities and gave a bad name to people of Karachi, Lahore, Quetta and Peshawar who were not aware of what was going on in former East Pakistan,” he said. Another leading Pakistani human rights activist Begum Nasim Akhtar Malik, who had witnessed part of the March 25, 1971 genocide in Dhaka, told BSS over phone, “The 1971 war criminals must be exposed to trial”. “Otherwise, the next generation will learn nothing about the history and from the history,” Malik said over phone from London, where she is currently staying.  She, however, suggested Bangladesh to carry out a massive campaign for building public opinion regarding the trial for the sake of justice so that the perpetrators of the crime do not get a chance to hatch “fresh plots” in the name of religion “as they did in 1971”. Their comments came as the International Crimes Tribunal on Monday issued first arrest warrants against Jamaat Ameer Matiur Rahman Nizami, Secretary General Ali Ahsan Muhammad Mujahid and senior assistant secretaries general Muhammad Kamaruzzaman and Abdul Quader Molla. The four, however, are already in jail to face several other charges including sedition and murder cases while the tribunal order came on a special prosecution panel petition seeking orders so that the four arrested Jamaat bigwigs could be kept in confinement “in the interest of smooth investigation” of charges of 1971 crimes against them. While throwing his weight also for the trial of Pakistani war criminals as asked about the trial of particularly 195 Pakistani officers who were listed as “war criminals” soon after Bangladesh’s independence, Mir said “Pakistan army committed atrocities not only against Bangalees in (erstwhile) united Pakistan, they (also) killed a lot of innocent people in Baluchistan from 1958 to 1969 during the Martial Law regime of Gen Ayub Khan." “Another dictator Gen Yahya Khan was responsible for the genocide of Bangalees in 1971,” he said. Asked for his comments about Bangladesh’s protracted demand for an official Pakistani apology for the atrocities committed by its soldiers against unarmed, innocent Bangalees in 1971, the leading Pakistani journalist said Islamabad should apologise to strengthen the ties. “Former Prime Minister Nawaz Sharif and former dictator Musharraf expressed soft regrets in the past but never issued an official apology. I have demanded and supported official apology many times,” he said. “I think this apology will strengthen relations between the two countries,” Mir added. “Today or tomorrow, Pakistan will have to seek the apology”, Nasim Akhtar said, adding that the progressive leaders of her country and the ordinary Pakistanis believe that Islamabad must seek apology. http://www.thedailystar.net/newDesign/news-details.php?nid=148808

6. Political parties using religion face ban
Political parties and other organisations using religion as their guidelines now stand banned with cancellation of the fifth amendment to the constitution, says the law minister.Their activities are now punishable offence, Law Minister Shafique Ahmed told The Daily Star.Following the Appellate Division’s decision upholding the High Court’s landmark verdict that declared the constitution’s fifth amendment illegal, restrictions on formation of organisations based on religion were restored. The existing article 38 of the constitution allows every citizen to form associations or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order. But during the first martial law regime began after brutal assassination of Bangabandhu Sheikh Mujibur Rahman, the proviso of article 38 was omitted opening the door again for political parties based on religion. The proviso said no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose. The law minister said this proviso was restored in the constitution following the Appellate Division’s decision. He said article 12 of the original constitution of 1972, which was omitted during the first martial law, was also restored. Article 12 deals with the principle of secularism. It says the principle of secularism shall be realised by examination of — (a) communalism in all its forms (b) the granting by the state of political status in favour of any religion (c) the abuse of religion for political purpose; any discrimination against, or persecution of, persons practising a particular religion. "Carrying out activities of any political party based on religion is now punishable offence under the special powers act," the law minister told The Daily Star. Islamic political parties and organisations have mushroomed in the country since the constitutional ban on them was repealed during the first martial law. The intelligence agencies’ records show existence and activities of about 100 Islamic political parties and organisations since repeal of the ban and many of them emerged as militant outfits. http://www.thedailystar.net/newDesign/news-details.php?nid=148538

7. Those in favor of banning Islamic parties criticized
Islami Oikya Jote (IOJ)Chairman Maulana Fazlul Haque Amini said those trying to impose ban on Islamic politics would be destroyed and declared ‘murtad’ (apostate)."We branded two Supreme Court judges ‘apostate’ earlier as they delivered a verdict banning ‘fatwa’. Those who will take such initiatives in future will be called ‘apostate," he warned while addressing a discussion titled ‘Politics of Hafezji Huzur and Current Perspective’ at the National Press Club in Dhaka on July31 last. He said, "All those who want to ban Islamic politics will be destroyed. We won’t let it be banned. Six lakh people are ready to accept martyrdom to save Islam and Islamic Politics."He said conspiracy against Islamic politics and the right to issue ‘fatwa’ was going on using the Parliament and the Supreme Court. Criticising the government’s move towards banning of Islamic politics, he said, "Those who don’t abide by the rules of Allah are Kafir (atheists)."He further said the ruling party was opposing the laws of Islam and had been failing to rule the country. The Allah-fearing Muslims of our country would never accept the initiative to ban Islamic politics, he added. He also said that the country had already turned into a jail due to government’s extreme repression and unlawful detention of the opposition leaders. http://nation.ittefaq.com/issues/2010/08/01/news0047.htm

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