Tuesday, August 30 2005 19:44 Hrs (IST) - World Time -

Dhaka: Hours after Bangladesh High Court declared 'illegal' and 'void' the 1975 military takeover that killed the country's first President Sheikh Mujibur Rahman, the Supreme Court has stayed the landmark judgement and would hear the matter tomorrow, court sources said today (Aug 30, 2005).

Attorney General Mohammad Ali filed a leave to appeal at midnight last night to Chmaber Judge, Amirul Kabir, who stayed the High Court judgement, the official BSS news agency reported quoting the court sources.

A full bench of the Appelate Division would hear the matter tomorrow, it said.

High Court judges A B M Khairul Huq and ATM Fazle Kabir pronounced the judgment yesterday in a dispute over an abandoned property in a writ challenging the validity of a martial regulation, incorporated in the country's fifth Constitutional amendment ratifying all Martial Law actions taken between August 15, 1975 and 1979.

"Taking over the powers of the Peoples Republic of Bangladesh with effect from the morning of 15th August 1975 by Khondoker Moshtaque Ahmed, the usurper, placing Bangladesh under Martial Law and his assumption of the office of the President of Bangladesh by Proclamation of 20-8-75 were, in clear violation of the Constitution and as such without lawful authority, and without jurisdiction," the judges said.

"Consequently all his subsequent actions as the President of Bangladesh were illegitimate and void," they added.

The 1975 takeover ousted the Awami League government of Rahman, Bangladesh's founder, who was assassinated along with most of his family members.

Referring to the takeover of the presidency by General Ziaur Rahman, who later founded the current ruling Bangladesh Nationalist Party (BNP), on April 21, 1977, the High Court judges observed that it was also 'beyond the ambit of the Constitution and as such illegal.'

About the referendum of 1977 on General Zia's presidency during the Martial Law, the High Court bench termed it as 'unknown to the Constitution.'

The judges said "The violation of the Constitution was a grave legal wrong and remains so for all time to come. It cannot be legitimised."

However, the court observed that due to the necessity of the state, "Such a legal wrong can be condoned in certain circumstances" invoking the Doctrine of Necessity.

The judgement was made over a writ filed by Muksudul Alam, Managing Director of Moon Cinema of Dhaka, who claimed his cinema hall back. It was declared 'abandoned property' in 1973.

Eminent jurists said the judgement was a landmark one and admirable as well as bold.

Gen Zia's wife, Prime Minister Khaleda Zia, now heads BNP and the party leads coalition government in Bangladesh. Gen Zia was assassinated in a coup in May 1981.