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Abstract

The primary object of this thesis is to offer a legal analysis of Martial Law in Bangladesh, 1975-1979. It is divided into nine chapters. The introductory chapter traces the birth and constitutional and political development of Bangladesh before the proclamation of Martial Law in August 1975. It examines the various uses of the term 'Martial Law' and the controversies which have arisen as to the basic character of Martial Law. The role of the doctrine of 'necessity' in the promulgation and continuation of Martial Law, and in the justification of all measures taken under Martial Law are examined. The nature of Martial Law courts is considered, and the history of the promulgation of Martial Law in the Indian subcontinent is outlined. Chapter II considers the legality and justification of the Proclamation of Martial Law in Bangladesh in 1975, the legality of the assumption of the office of President by Khandaker Moshtaque Ahmed, the position of the 1972 Constitution and other laws after the declaration of Martial Law. It examines the impact of the various coups upon the discipline of the armed forces, and deals with the structure of the Martial Law administration and the civilianisation of government and the withdrawal of Martial Law. The various Martial Law Regulations creating offences are discussed. Chapter III examines the basic provisions relating to the constitution, powers and jurisdiction, and procedure of Martial Law courts. Chapter IV deals with the establishment and composition of the Martial Law courts. It discloses the number of cases transferred arbitrarily from ordinary courts to Martial Law courts, and from one Martial Law court to another. It then looks into the implications of such transfers, and uncovers the number of persons convicted and acquitted by the Martial Law courts and examines certain cases tried by them. Chapter V deals with the provisions relating to the constitution, power and jurisdiction, and procedure of the Special Martial Law Tribunal and Martial Law Tribunals, and examines the trial of the conspiracy case by the Special Martial Law Tribunal and the functioning of Martial Law tribunals. It attempts to ascertain the number of persons executed in the aftermath of the two abortive coups of 1977. Chapter VI describes the definition and importance of the 'independence of the Judiciary'. It considers the independence of the Judiciary in Bangladesh both before and after the imposition of Martial Law in 1975, and the restrictions imposed on the powers and jurisdiction of the Judiciary by the Martial Law regime, and discusses the nature of the fundamental rights guaranteed by the 1972 Constitution of Bangladesh, including constitutional provisions relating to their enforcement and suspension during a proclamation of emergency. It examines the suspension of the enforcement of most of the fundamental rights under the 1974 Proclamation of Emergency and the removal of the power of the Judiciary to enforce fundamental rights by the Constitution (Fourth) Amendment Act, 1975, before the declaration of Martial Law. The chapter sets forth the subsequent restoration by stages of the judicial power to enforce fundamental rights by the Martial Law government. Chapter VII details the definition and necessity of preventive detention. It portrays the possible abuse of the power of preventive detention and constitutional safeguards in this respect, and also examines the provisions of the Special Powers Act, 1974, and the Emergency Powers Rules, 1975, relating to preventive detention and the incorporation of constitutional safeguards into the Emergency Powers Rules with regard to preventive detention in 1977 by the Martial Law administration. Chapter VIII depicts the operation of the laws relating to preventive detention under the Martial Law regime. It specifies the numbers of detenus released under various general amnesties as well as in accordance with the orders of the Supreme Court, and gives some examples of the arbitrary exercise of the power of preventive detention. The chapter enumerates certain instances of writ petitions and the Supreme Court orders in respect of preventive detention, and also examines the case of a detenu who was released in accordance with the order of the High Court, only to be re-arrested at the prison-gate. The last chapter summarises general conclusions. An overall assessment of Martial Law administration is attempted, and some suggestions offered for the prevention of the abuse of the power by Martial Law regimes in future by means of constitutional and legal provisions in respect of the promulgation and administration of Martial Law.