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EDITORIAL
Requiem for the slain army officers
It is with a heavy heart and profound grief that we mourn the killings of the valiant sons of Bangladesh who were subjected to ruthless cold-blooded butchery in a scheming genocide at Peelkhana BDR headquarters. Our heart goes out to the deceased in sincerest sympathy. The HOLIDAY joins the patriotic people of our motherland in most respectfully saluting the heroes, our pride. We abhor the despicable Quislings, Mirzafars and schemers who play in the hands of instigators from within and outside and want to brand Bangladesh as a failed state or a banana republic. We know the bereaved families' wails and sobs will rend the air for decades.
The killings of the officers have raised too many questions to be answered. As the military cannot solve political problems so it is not the job of civilian politicians to end mutiny of a disciplined armed force consisting of several thousand fully trained armed soldiers in a garrison where they took up sophisticated weapons to kill only officers and officers alone; none else. See the well-orchestrated plot whose sole and singular objective was to slaughter of 62 future military leaders who were to defend and protect the nation's sovereignty and independence. Indeed the armed forces do symbolise the nation's sovereignty and independence. The schemers' only goal was to devastate, knock down and demolish the country's army and weaken the nation's defence capability. Never before in the history of the world were so many officers killed in peace time.
The series of man-made tragic catastrophe, the bizarre episodes and the Government's naïve and ineffective activities thereof can simply be described as ridiculous in a space of long 36 hours remain a big enigma shrouded in mystery.
The Army Chief spent hours with the Prime Minister discussing the matter; but a former Adjutant General of the Army asserts that as per Army Act action should have followed within minutes -- and no permission from the civil authority was required.
However, some amount of consuming anguish in the bereaved families may be allayed if the fairest possible open, transparent and acceptable trial is held in collaboration with the Opposition leaders represented in Jatiya Sangsad. Probe bodies must take into account all the minute details in a foolproof method. If civil law is inadequate, as some quarters suggest, then the Bangladesh Army Act can be applied.
Former DGs of the BDR, retired senior Generals including previous Army Chief General Ershad unanimously opined that the mutiny could be crushed in15 to 20 minutes. Astonishingly enough, as reported, before the carnage began the DG of BDR, deceased Maj. Gen. Shakil, repeatedly sent SOS messages seeking rescue measures to the Prime Minister, who is concurrently in charge of the Defence Ministry. Alas, instead of instant action there was inordinate, delay in taking decision. Too much time was wasted, deliberately or otherwise. Whilst the DG and other officers were being butchered, the Government procrastinated for some hours, unable to decide what to do. At long last, when carnage and bloodbath were probably completed, it was preciously decided that a male and a female lawmaker would suffice to contain and quell of some thousands of armed rebels. Main accused Towhid, now in custody, and his accomplices were invited to discuss the matter for settlement -- as if CBA leaders bargaining for pay hike with a factory owner!
The grotesque Peelkhana massacres perpetrated by savage brutes have left a never-ending heartache in the widowed wives and the orphaned sons and daughters, most of them minors and a few in their early teens. The wound of their fathers' massacres will hang about numbing their consciousness; their widowed mothers will keep on shedding tears silently. When eyes will dry up, their souls will sob and weep. Tearless heartache will haemorrhage in the core of the minds of the bereaved families. And the whole nation will lament for the departed souls. Their deaths have unquestionably created a great void in our Army hierarchy never to be filled. It has caused an irreparable national loss.
May the Almighty grant the martyrs' soul to rest in peace in paradise.
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JUDGEMENT ON THE FIFTH AMENDMENT
ML rules amending Bangladesh Constitution legal?
Barrister Harun ur Rashid
A most important constitutional case relating to the validity of the Fifth Amendment of the Constitution that saved all Martial Law Proclamations from 15th August to April 9th, 1979 will be heard by the Appellate Division of the Supreme Court.
On August 29 in 2005, , upon a writ petition filed by Masudul Alam challenging the legality of the Martial Law Regulation (MLR) 7 of 1977 and all its illegal act, the High Court Division, in a landmark judgment, held that the Martial Law Proclamations and Orders, saved under the Fifth Amendment of the Constitution were illegal and void ab initio.
The Court also declared the rule of Khandker Mushtaque Ahmed, Justice Abu Sadaat Mohammad Sayem, and Maj General Ziaur Rahman from August 15, 1975 to April 9, 1979 unlawful and not in accordance with the Constitution, the HC ruling stated.
An appeal has been lodged at the Appellate Division of the Supreme Court (the highest court of the land) and on 15th February 2009, the Appellate Division has postponed the hearing of the appeal for four weeks.
Why is it being considered as a landmark judgment of the High Court?
The authority of a Martial law administrator to amend the Constitution is not tenable in law. The basic fabric of the Constitution cannot be changed and any amendment contrary to the spirit and structure of the Constitution cannot be made.
The term "amendment" does not mean the abrogation or destruction of the fundamental character of the Constitution.
The judgment held: "The Martial Law Authorities in imposing Martial Law behaved like an alien force conquering Bangladesh all over again, thereby transforming themselves as usurpers, plain and simple" (The Daily Star: 14th February 2009).
What does it imply?
The Fifth Amendment Act of the Constitution of 6th April, 1979 that validated all Proclamations, and its Orders, Martial Law Orders, all amendments, additions, modifications substitutions, and omissions made in the Constitution and other laws made during the period between the 15th August 1975 and the 9th April, 1979 were illegal, although the Fifth Amendment states that these Proclamations and Orders shall not be called into or before any court on any ground whatsoever.
If the High Court Judgment is upheld by the Appellate Division, then according to legal experts, all Proclamations and Martial Law Orders changing the Constitution during the period of 15th August to April 9 1979 will be considered illegal.
That will mean that all amendments of, substitutions in and omissions from, the Constitution that changed the basic structure of the Constitution will be invalid.
Furthermore it has been reported that the Court held : "Taking over power by Khandaker Mushtaq Ahmed, nomination of Justice Sayem as President, appointment of Ziaur Rahman as Deputy Chief Law Administrator, handing over of the office the Chief Martial Law Administrator to Ziaur Rahman, nomination of Ziaur Rahman as the President and Referendum Order of 1977-were all without lawful authority and in an unlawful manner."
The Court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, history cannot be altered. Many of these illegal acts were done in the public interest. From this perspective, the Court 'condones' some of these actions that could have been done in line with the Constitution for public benefit.
Doctrine of necessity
Doctrine of necessity is a phrase commonly used to refer to a controversial judgment in 1954 by Chief Justice Muhammad Munir to validate Ghulam Mohammad, the Governor General of Pakistan's, use of non-constitutional emergency powers.
In his verdict, Justice Munir declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton's maxim that 'which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.'
The doctrine has been invoked in other Commonwealth jurisdictions. In a 1985 judgment, the Chief Justice of the High Court of Grenada invoked the doctrine of necessity to validate the legal existence of a court then trying for murder the persons who had conducted a coup against former leader Maurice Bishop.
The court had been established under an unconstitutional "People's Law" following the overthrow of the country's constitution, which had subsequently been restored. The defendants argued that the court before which they were being tried had no legal existence under the restored constitution, and they were therefore being deprived of their constitutional right to a trial before a "Court established by law".
The High Court acknowledged that the lower court "had come into existence in an unconstitutional manner", but "the doctrine of necessity validated its acts. On this basis, the murder trials were allowed to proceed.
The High Court Division of Bangladesh dealt with the concept of doctrine of necessity and held: "The Constitution is a law for rulers and people; equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances." Further the Court added that the emergency must be faced through constitutional method not by extra constitutional and so turmoil or crisis in the country is no excuse for any violation of the Constitution.
The High Court also considered the argument that the passage of time validates the Fifth Amendment and rejected it. It held: "No one acquires a vested or protected right in violation of the Constitution by long use even when that span of time covers our entire national existence and indeed predates it."
The beginning words of the Preamble - "We, the people of Bangladesh" - signifies that power is ultimately vested in the hands of the people. It also tells that the Constitution is made by and made for the people of Bangladesh and not given to them by any outside powers.
In 1972, the Preamble delineated the basic structure of the Constitution of Bangladesh that is parliamentary, secular and its bedrock is freedom of religion, speech, assembly and social justice. It states no law can be enacted or amended in a manner that violates the spirit of the preamble.
The Preamble lays down the most important national goals which every citizen and the government must try to achieve-democratic process, rule of law, fundamental human rights and freedom, equality and justice.
The Preamble also asserts that "it is our sacred duty to safeguard, protect and defend the Constitution". The Constitution is the supreme law of the country and can only be amended by invoking the relevant provisions of the Constitution. Until this date, the Constitution has been amended 14 times, last being on 17th May 2004.
The writer is a former Bangladesh Ambassador to the UN, Geneva.
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VIEW POINT
Election manifestoes and ground reality
Dr Azizul Karim
Electoral manifestos are there in most parliamentary democracies. These are formulated by political parties and in these both their strategic direction and outlines of prospective legislation set out provided they win. In recent decades the status of electoral manifestos has reduced somewhat due to an undesirable propensity for winning parties to, following the election, outright reject manifesto policies which were popular with the public.
Awami League President Sheikh Hasina announced her party's election manifesto called "Charter of Change" pledging to bring down food prices, achieve self-sufficiency in food, increasing energy production and curbing corruption.
Amidst repeated cheers and clapping from the party supporters, she declared the 23-point broader election pledges to make Bangladesh a prosperous nation free from hunger, poverty and illiteracy. With five priority agenda, the manifesto contains two parts -Programmatic Commitment for next five years and Vision 2021. Sheikh Hasina's priority agenda include lowering prices of essentials, avoiding economic depression, curbing corruption, raising production of power and energy, eradication of poverty and ensuring good governance.
BNP chief Begum Khaleda Zia promised that all sorts of cooperation would be provided to opposition party to make the parliament effective. "If BNP is voted to power, the decision on various issues specially relating to national interest will be finalised after consultation with all concerned in and out of the parliament. On the basis of national consensus, the decision will be taken in this regard," she added.."To make the lawmakers accountable and transparent, they will have to submit their wealth and property statements within 30 days of their swearing-in. Soon after taking oath of the Speaker and Deputy Speaker of the national parliament, they must resign from their respective political parties cutting off all kinds of relations. The post of Deputy Speaker will be offered to the opposition party", Khaleda said in her statement. Like the Awami League (AL), BNP gave prominence to economic issues. Both the major parties gave economic issues much more value than previous occasions. Both the AL and the BNP demonstrated a serious concern about improving governance and expressed their willingness to offer the position of deputy speaker to the opposition.
There were lots of promises and attractive words in the election manifestoes of AL and BNP. In fact major parties do not fulfil their pledges.
Similar assurances were given but were not executed by rulers of successive regimes during the past 38 years. Only conscious journalists can stop these. I have seen lots of "fair elections" starting from Ayub Khan's government in 1964. A candidate like Justice Badrul Haider Chowdhury was defeated by low calibre Rahimullah Chowdhury.
So before appearing on TV channels and newspapers both leaders and activists have to know about the content of their manifestoes. We don't need any certificate from Mortiary, McCain or Pinak or any other diplomat. We have seen lots of Goebels and Machiavellis. They are not interested in our real national and financial independence. If the US or Western diplomats praise some countries economiy or agriculture, one should be sure that they are not in their right track and vice versa.
Look at Mahathir's Malayasia, Iran or China. US criticised them harshly simply because they were competing in the same pace in world market. So please be careful about foreign envoys' praise, testimonials and sermons before these are scrutinised by patriotic and knowledgeable journalists of Bangladesh. I have not seen Mr Moriatty talking about environmental disaster in Bangladesh and its solution. He is more interested in geopolitical interest of US in Bangladesh.
We are suspicious because we know about US foreign policy and food policy respectively in 1971 and 1974. Bring your ledger book please. Please stop blackmailing our politicians, defence forces and beaurocrats. We should have friendly relations with China, India and the US. The patriotic journalists of Bangladesh, please recall the ideals of conscientious journalists Enayetullah Khan.
Finally I hope politicians will always recall their pledges and act accordingly.
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LETTERS
Shortage of English, Math teachers
Dear Editor:
At the moment there is huge shortage of English and Math teachers in rural secondary schools and Madrasas. As a result in almost all the rural schools, English and Mathematics are being taught by school teachers who did not study Math and English at degree level. Teachers themselves do not know English and Math, so how can they teach their students.
It is learnt that in developed countries like England, the Government is giving special facilities to students who are study Math or science at degree level to produce Math and Science teachers in their secondary schools.
In view of this the Government can provide stipend to students who will study English or Math at degree level in rural colleges only. Besides, stipendshould be continued if they take these subjects in their B.Ed. course at Government Teachers' Training Colleges.
Mawduda Hasnin,
Rajshahi.
Bangla in foreign forums
Dear Editor:
During the last holy Haj, the Saudi Authority announced directives to the respected Hajis to make the pilgrimage comfortable and smooth for the Hajis. We thank the Saudi Authority for its efficient management. One of the directives was about 'standing or sitting on the ways to Mukkah A1-Mukarramah'. This was announced in many universally recognised languages of the world for better understanding of the respected Hajis.
The Saudi Authority was prudent and kind enough to include our national language Bangla while announcing the above mentioned directive. But to our utter disappointment and discontent, the man who was given the responsibility to announce the directive, used Chittagong's colloquial language, an unfamiliar colloquial language even to people of other districts in Bangladesh. The announcement was like this -'Annera Pothor Modhoy Na Thion, Na Bayun' (means you should not stand, should not sit on road). No Bangladeshi except a few from Noakhali, Sylhet and Comilla could understand the said difficult colloquial language.
We wonder what prompted the announcer, definitely a Chittagonian, to use his colloquial language in an international forum. Learned and patriotic Chittagonian would never choose Chittagong's colloquial language for announcement in such a huge gathering attended by over five million Hajis. Rather he would take advantage of this rare opportunity to establish the acquaintance of our beloved language Bangla to the world community.
We are astonished as to why the Bangladesh mission could not stop or interfere in such unwanted affair. During the last holy Haj the Bangladesh mission delivered substantial services to the respected Hajis, so far as we knew. But their failure in this regard shocked us.
We ought to remember that Chittagong's colloquial language is not our national language. We would request our mission abroad to be very careful and alert about such gross mistakes for the sake of our national dignity and image.
We hope the Government, especially the Ministry of Foreign Affairs, would issue necessary directive to all Bangladesh missions abroad to avert lapses, incapability and inattentiveness on the above mentioned matter/s. Nobody, whatever may be his/her position, is dearer to us than our country. Everybody must be punished for neglecting the interest of the country.
Golam Mostafa,
Adabar,Dhaka.
Is South Asia being colonised?
Dear Editor:
As an elder Bangladeshi citizen, born and educated in the former Bengal of British India, I get the intuitive feeling that I won't be surprised if the Western colonialist powers are secretly planning to turn South Asia into a colony once again; for its self-survival; after the betrayal of the US dollar; and mega misbehaviour of the rich cartels.
There are reasons behind the anticipated move: the wave of prosperity [materialistic consumptive society, disguised as democratic culture is shifting from the West to the East [deep economic recession, as irreversible one-way traffic].
Now the grass in S Asia appears greener, with abundance of natural resources; to compete with giant China up North (population above one billion). In Japan and South Korea, the sun is setting. Africa is rising slowly and the Middle East is in turmoil. The monarchs in that region cannot be trusted. New pastures are being sought; politely and technically.
What is the trial model? Replicate the European Union? The question arises: why the EU failed? A philosophical question arises: what is the half-life of rich consumer societies? The bowels of the Earth have been looted by the mercenaries. The sun never set in the former British Empire; but the Americans might not last even for three centuries. There are no holds barred for one's own self-defence; therefore be on the lookout for desperate measures, in the expedition to the third world.
A. H.
Dhaka.
Joynal Hazari
Dear Editor:
Former Awami League lawmaker from Feni Joynal Hazari at last returned home on February 14 after remaining fugitive for a long period in neighbouring India.
He surrendered before the court. A lot of allegations including murder, theft, illegal arms possession etcetera were lodged against Hazari.
A man with power can do good things freely, but in our country it is hardly seen. These days, those who have power and wealth engage themselves in violent activities. Hazari too went on this wrong path.
Everybody needs to give a thought to this matter and work for the welfares of our beloved country. Because, none will be for ever in this world!
Habibur Rashid Ismail,
Chittagong
habibur.rashid.ismail@gmail.com
DCC performance should improve
Dear Editor:
The successive regimes in Dhaka are aware of the catastrophic effects of the high urban migration rate in Bangladesh. Governance, management and administration in the city corporations have to be modernised and computerisation must be introduced to check systems losses [and corrupt practices].
At the present time the day-to-day activities are politically oriented; and technical professionals are not allowed a free hand in the technical options available. The Tender Culture has to be made fool-proof.
The presence of Coordination Cells in the CCs and the Government Secretariat is not visible. Various public institutions and offices have to coordinate with the CCs in the planning and execution of a large umber of projects annually. The additional expenditure on expansion and modernisation could be met if the systems losses are reduced. Only then the quality of project works can improve.
Now the new regime is changing the senior executives in some independent Commissions. The continuity has to be maintained after each regime change. But political rivalry gets a higher priority; including local leverage.
The voters would watch the performance during the first three to six months of the new regime. The tendency to enter entrenched grooves should not be tolerated-the public think tanks should note it and point out.
A Mahasen, Dhaka.
Digital invasion
Dear Editor:
New political slogan mongering: "Digital Bangladesh)". Speak 100 per cent Bangla; as 100 per cent English (when needed). We have to create awareness on digital invasions through the satellite TV channels. Political monitoring of ethics is poor! Our big neighbour is trying to be 101 per cent Western. Let us not ape!
Before our political masters could help, they have to cleanse themselves from inside. We are good in slogan mongering - showing one side of the coin. Demands, demands, and demands; we like to sit in the gallery and watch, and not participate in cleaning.
Cyni Ali,
Dhaka.
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