Siddique Ahmed VS. Bangladesh (7th Amendment Case)

 

Fact:

Md. Kala Miah was killed on 12 January 1984. Siddique Ahmed, the writ-petitioner along with others was arrested on 11 April 1985 in connection with the Case. On his application, the learned Session Judge of Chittagong grants him bail. In the meantime, the records of the said Session Case had transferred to the Chairman, Special Martial Law Court Chittagong for trial.

Here it was numbered as Martial Law Case number 12 of 1986 and the charge was framed under sections 302/34 and the trial proceeded against the accused persons including the writ-petitioner in absence.

After finishing the trial, all the accused persons including the writ petitioner were sentenced to suffer imprisonment for life and also to pay a fine of one thousand taka. Otherwise, suffer imprisonment for a further period of one year. The sentence was confirmed in review by the Chief Martial Law Administrator.

2 August 2006, the writ-petitioner was arrested by the police and produced before the Chittagong Metropolitan Magistrate Court. Magistrate sent him to jail and forwarded the relevant records relating to that case to the Court of Sessions, Chittagong. The learned Session Judge by his order issued the warrant of conviction against the writ-petitioner.

Filing of the Writ-Petition:

Siddique Ahmed filed a writ petition before the High Court Division against the conviction and sentence passed by martial law court challenging the  legality  of  the  Seventh  Amendment of The Constitution and praying for a  direction  for  retrial of  that case and  pending hearing of the rule to grant him bail.

Opinion:

1. The proclamation of Martial Law on 24 March 1982 by Lieutenant General Hussain Muhammed  Ershad was a nullity and the consequence of all Martial Law Regulations, Orders are all illegal and without lawful authority.

2. Establishing Martial Law Courts and Tribunals providing for the trial of offences are without lawful authority and of no legal effect.

3. Seventh Amendment of the Constitution is ultra vires The Constitution since the same was passed illegally and without lawful authority.

Judgement:

1. Seventh Amendment of The Constitution is declared void.

2. The trial and conviction of the appellant writ petitioner by the Special Martial Law Court is declared illegal and void. However, the trial of the Case would continue in the concerned Court of Additional Sessions Judge of Chittagong from the stage it was transferred to the Special Martial Law Court.

3. The privilege of bail is not available on a petition in the nature of certiorari. But in this appeal the prayer for bail of the appellant is allowed as an exception under the inherent jurisdiction of this Court till the commencement of the trial to the satisfaction of the concerned trial Court.

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