The interim government has moved to promulgate an ordinance to grant indemnity and legal protection to the “July warriors”. The Ministry of Law has been requested to prepare a draft of the ordinance. The decision was taken at a meeting of the advisory council committee on law and order on 5 January.
Here is an explainer, in a question-and-answer format, outlining the various dimensions of indemnity.
Question: What is indemnity?
Answer: Under normal circumstances, many acts are considered criminal in the eyes of the law. However, in situations such as war or mass uprisings, certain acts may not be treated as crimes. When the state enacts a special law granting specific individuals or groups protection from prosecution or legal proceedings for past actions, this is known as indemnity. As a result, no case can be filed and no punishment imposed for those acts.
Indemnity laws are generally enacted in the name of safeguarding national interests, maintaining or restoring public order, or reflecting the will of a broader section of the population. Typically, the issue of indemnity arises in the aftermath of wars or civil conflicts. In many cases, however, the scope of indemnity has also been misused.
Question: How did the issue of indemnity arise in this context?
Answer: There has long been a demand for indemnity for incidents that occurred during the July mass uprising. In October last year, the interim government issued an order through the Ministry of Home Affairs stating that no cases would be filed, no arrests made, and no harassment carried out in connection with events related to the July–August uprising. The directive specifically covered incidents linked to the mass uprising that took place between 15 July and 8 August.
In addition, the July Declaration issued on 5 August last year stated: “The people of Bangladesh declare the martyrs of the July mass uprising as national heroes and express their intent to provide all necessary legal protection to the families of the martyrs, the injured fighters, and the protesting students and members of the public.”
The issue of granting indemnity and legal protection to the July fighters resurfaced following two recent incidents. Tahrima Jannat Surovi, who identified herself as a July fighter, was arrested on 25 December, while Mahdi Hasan, general secretary of the anti-discrimination student movement in Habiganj, was arrested on 3 January. Mahdi was released on bail a day after his arrest, and Surovi after 11 days.
Against this backdrop, the anti-discrimination student movement placed three demands on 4 January. One of these was that an ordinance granting indemnity for all actions carried out between 1 July and 8 August 2024 by students, workers and members of the public who participated in the July mass uprising be issued within 24 hours.
Question: Does the Constitution of Bangladesh allow for indemnity?
Answer: Article 46 of the Constitution provides that, notwithstanding any recognition of fundamental rights, parliament may enact laws granting indemnity for acts carried out in connection with the national liberation struggle of 1971, or for the purpose of maintaining or restoring order in any area within the territory of the state.
According to government sources, it is based on the underlying spirit of this constitutional provision that the interim government intends to enact an indemnity law for the July warriors.
Question: How was indemnity granted for the period of the Liberation War?
Answer: On 28 February 1973, during the first parliament of independent Bangladesh, the then president Bangabandhu Sheikh Mujibur Rahman promulgated a presidential order. It stipulated that no case, criminal proceeding or other legal action could be initiated in any court against any person for any act connected with the national liberation struggle between 1 March and 16 December 1971, or for any act carried out up to 28 February 1972 for the purpose of maintaining or restoring law and order.
Question: Are there examples of indemnity other than the Liberation War?
Answer: Yes. On 15 August 1975, president Sheikh Mujibur Rahman and most members of his family were assassinated by a group of army officers. On 26 September, the then president Khondaker Mostaq Ahmad promulgated the indemnity ordinance, effectively blocking any judicial process relating to the killings.
The ordinance stated that, in view of the “historic changes” that occurred in the early hours of 15 August 1975 and the imposition of martial law, it was deemed expedient to restrict legal or other proceedings relating to actions connected with, or preparatory to, the planning and execution of those events.
During the tenure of president Ziaur Rahman, this ordinance was validated in 1979 through the 5th amendment to the constitution. After the Awami League came to power in 1996, the law was repealed and the trial process for the 1975 assassinations was initiated. Many of Bangabandhu’s killers were subsequently executed.
After the BNP and Jamaat alliance assumed power in 2001, the armed forces were deployed to maintain law and order through counter-terrorism and illegal arms recovery operations. Between 16 October 2002 and 9 January 2003, allegations of extrajudicial killings and human rights violations were raised against the joint forces during “Operation Clean Heart”. To prevent prosecution for these incidents, the Joint Drive Indemnity Act was passed in 2003.
However, following a public interest litigation filed by lawyer ZI Khan Panna, the High Court declared the law unconstitutional in 2015. During Operation Clean Heart, around 58 people reportedly died of “heart attacks” or were killed during joint operations, and many others were injured.
Question: What was the issue of indemnity in the power sector?
Answer: In 2010, the then Awami League government enacted the Speedy Supply of Power and Energy (Special Provisions) Act, allowing contracts to be awarded without competitive tenders. Because the law barred judicial challenges to decisions taken under it, it became widely known as an indemnity law.
In August last year, Supreme Court lawyers Shahdeen Malik and Md Tayyib-ul-Islam filed a writ petition challenging the law. Subsequently, on 18 August, the interim government announced the suspension of the Act, stating that procurement activities under it would remain halted for the time being.
Following the writ petition, the court delivered a verdict on 14 November striking down the law. On 30 November, the interim government formally repealed the indemnity law in the power and energy sector through a gazette notification.
Question: Are there examples of indemnity in other countries?
Answer: There are numerous international examples of indemnity. After the end of the American Civil War in 1865, one of the United States’ main challenges was reintegrating the southern states into the Union. To that end, the Amnesty Act of 1872 was enacted, restoring political rights to a large number of former soldiers and officials. This move has also been criticised.
After the end of Lebanon’s 15-year civil war, the country passed a general amnesty law in 1991. Its objective was to disarm all armed groups and form a national government. Under this law, all parties were pardoned for political crimes committed during the civil war. As a result, ordinary citizens who lost relatives or were subjected to abuse never received legal justice.
During the Second World War, Allied forces carried out bombing campaigns on various German cities, resulting in the deaths of many civilians. Atomic bombings of Hiroshima and Nagasaki killed between 200,000 and 300,000 people. Despite these civilian casualties, no indemnity laws were enacted, nor were the Allied forces subjected to prosecution. Instead, Nazi leaders were tried at the Nuremberg Tribunal and Japanese leaders at the Tokyo Tribunal.
Many scholars refer to this as “victors’ justice”, as the post-war world order was shaped under the leadership of the Allied powers.