Long shadow of indemnity

JUST forty-one days into the assassination of Bangabandhu Sheikh Mujibur Rahman, an Indemnity Ordinance was promulgated by Khandaker Moshtaque Ahmed, who grabbed state power immediately after the killing by putting the country under martial law.
The only aim of the ordinance issued on September 26, 1975 was to block any legal or other proceedings against the killers and those who were involved in proclaiming the martial law on the morning of August 15, 1975.
The culture of indemnification, which began by legalisation of the killing of Bangabandhu, ended in distortion of the sprit of the liberation war, destruction of the basic structure of the country's constitution and veering away from secularism.
The beneficiaries of the bloody changeover on August 15 immediately got tickets to the corridors of power as well, giving rise to the culture of violence in politics that was to dog the country for many years to come.
After grabbing power, erstwhile AL leader and then Cabinet Minister Moshtaque, who opposed secularism, launched an attack on the secular face of the state as well by invoking religion to proclaim the martial law.
In the Proclamation of Martial Law issued on August 20, 1975, Moshtaque announced that "with the help and mercy of the Almighty Allah," he had taken over full power of the government on the morning of August 15.
The constitution -- the supreme law of newly born Bangladesh -- was made subservient to the August 20 martial law proclamation, which was the basis of all actions and activities of subsequent unconstitutional rulers till April 9, 1979.
Moshtaque proclaimed the Indemnity Ordinance, although he had no constitutional authority to promulgate any ordinance by exercising the president's power. He did so to save the August 15 killers and to protect his own presidency.
After 37 days of the promulgation of the ordinance, in an effort to eliminate the entire top echelon of the then political leadership, four national leaders, who had led the liberation war in absence of Bangabandhu -- Syed Nazrul Islam, Tajuddin Ahmed, Muhammad Mansur Ali, and AHM Qamaruzzaman -- were also killed on November 3, 1975 inside Dhaka Central Jail.
Mocking the state and the constitution, Mushtaque then handed over the presidency to the then chief justice Abu Sadat Mohammad Sayem who also made himself the chief martial law administrator, violating the constitution and betraying his oath of office which stipulated that he would protect, preserve, and defend the constitution.
Sayem then handed over the office of chief martial law administrator to Maj Gen Ziaur Rahman through another proclamation on November 26, 1976 for "national interest," and later also handed over the presidency to Zia.
Grabbing the absolute power of the president and chief martial law administrator, Ziaur Rahman started issuing martial law proclamations and regulations. Through the proclamations, Zia deleted secularism from the country's constitution, which was one of the basic spirits of the historic liberation war.
In the constitution, Zia replaced secularism with "absolute trust and faith in the Almighty Allah," as one of the principles of state policy. Through this process, Bangalee nationalism was also replaced in the constitution with Bangladeshi nationalism.
The High Court, in its verdict that declared illegal the fifth amendment to the constitution, termed the deletion of Bangalee nationalism as a betrayal to the freedom fighters and three million martyrs of the liberation war, and an insult to the nationhood of the country's people.
Through a proclamation under martial law, Sayem had already lifted the constitutional ban on religion-based politics, allowing Jamaat-e-Islami and other theocratic parties to resume their political activities, some of whom later turned into today's Islamist militants threatening national security.
To consolidate his political base, Zia also did not hesitate to induct some of the anti-liberation leaders into his cabinet and his party BNP.
Gen Zia indemnified his unconstitutional takeover of power and all other events between the August 15, 1975 killings and April 9, 1979 by passing the Constitution Fifth Amendment Act in the second parliament, which was dominated by his newly formed party's lawmakers.
Citing Moshtaque's, Sayem's, and Zia's oaths of offices and duties to the country, the High Court in the fifth amendment case observed that the three had betrayed the trust vested on them, by not only disobeying but also by disfiguring the constitution.
After Zia's assassination, Gen H.M. Ershad took over power "with the help and mercy of Almighty Allah" and declared martial law again on March 24, 1982 to "protect national security and sovereignty."
He issued a Proclamation of Martial Law and suspended the constitution, a step further compared to what Moshtaque, Sayem and Zia had done since they had not suspended the constitution entirely.
Ershad, however, followed the same path as Zia in ruling the country. He passed the Constitution Seventh Amendment Act in 1986 to indemnify, ratify, confirm, and validate his unconstitutional takeover of power and all subsequent activities.
After reviving the constitution, Ershad pushed the state further into the path of Islamisation by making Islam the state religion through the eighth amendment to the constitution.
One of the self-confessed killers of Bangabandhu, in an interview with a foreign newspaper in 1979, claimed that the objective of the August 15, 1975 bloody changeover was to transform Bangladesh into an Islamic state.
With the fall of Ershad in 1990, a military autocratic regime came to an end, leaving a long legacy of negative impacts on the state, civil administration, and the society as a whole.
Democracy was restored in 1991. Awami League (AL) came back to power in 1996 and scrapped the Indemnity Ordinance in November that year, paving the way for the trial of Bangabanhdu's killers.
But due to a sharp political division, BNP and Jamaat did not support the AL in passing the bill in the parliament that scrapped the Indemnity Ordinance, rather the lawmakers of the two parties that were beneficiaries of the August 1975 changeover remained absent from the parliament during the passage of the bill.
And then the trial of the heinous killing was begun. Overcoming all hurdles, the verdict got finality following the Appellate Division's order on Thursday, rejecting the appeal of five killers.
With the completion of the trial, the influence of the first indemnity ordinance on the country's political, judicial, and governmental psyche will finally come to an end.
Meanwhile, the High Court, in a landmark verdict in 2005, declared illegal the fifth amendment to the constitution. Legal experts say the fate of the seventh amendment that indemnified Gen Ershad's military regime now depends on the finality of the High Court verdict in the fifth amendment case, currently pending in the Appellate Division of the Supreme Court. The long shadow of indemnity will remain until the two black constitutional amendment acts are declared illegal.

Shakhawat Liton is Senior Reporter, The Daily Star.