Bangladesh Supreme Court banned religious political parties

This query is : Resolved 
 

(Querist)
09 January 2010

I shall be greatful if somebody helps me in fetching a copy of Bangladesh Supreme Court judgment banning religious political parties. I appreciate if you any related matter is provided.
Thanks and regards


Gulshan TanwarOnline (Expert)
27 December 2010

http://www.supremecourt.gov.bd/judgement/C.P.%20Nos.%201044%20&%201045%20of%202009%20%285th%20Amendment%29.pdf

Gulshan TanwarOnline (Expert)
27 December 2010

IN THE SUPREME COURT OF BANGLADESH
Appellate Division
Present
Mr. Justice Md. Tafazzul Islam
Chief Justice
Mr. Justice Mohammad Fazlul Karim
Mr. Justice Md. Abdul Matin
Mr. Justice Bijan Kumar Das
Mr. Justice Md. Muzammel Hossain
Mr. Justice Surendra Kumar Sinha
CIVIL PETITION FOR LEAVE TO APPEAL NOS. 1044 & 1045 OF 2009
(From the judgment and order dated 29TH August, 2005 passed by the High Court
Division in Writ Petition No. 6016 of 2000)
Khondker Delwar Hossain, Secretary,
B.N.P. Party
(in C.P. No. 1044/09)
... Petitioner
Munshi Ahsan Kabir and others
(in C.P. No. 1045/09)
....Petitioners
= Versus =
Bangladesh Italian Marble Works
Ltd., Dhaka and others
(in both the cases)
... Respondents
For the Petitioner
(in C.P. No. 1044/09)
:Mr. T. H. Khan, Senior Advocate, instructed
by Mr. Md. Taufique Hossain, Advocateon-
Record
For the Petitioners
(in C.P. No. 1045/09)
:Mr. Moudud Ahmed, Senior Advocate,(Mr.
Imran A Siddiq with him) instructed by
Mr. Syed Mahbubar Rahman,
Advocate-on-Record
For the Respondent No.1
(in both the cases)
:Mr. Azmalul Hossain, Senior Advocate (Mr.
ABM Siddiqur Rahman Khan, Advocate
appearing with the leave of the Court with
him), instructed by Mvi. Md. Wahidullah,
Advocate-on-Record
For the Respondent No.2
(in both the cases)
:Mr. Towfique Nawaz, Senior
Advocate(Mohshen Rashid, Advocate with
him) instructed by Mvi. Md. Wahidullah,
Advocate-on-Record
For the Respondent Nos.3
and 4
(in both the cases)
:Mr. Mahbubey Alam, Attorney General,
(Mr. A.K.M. Zahirul Hoque, Additional
Attorney General, Mr. Mostafa Zaman
Islam, Deputy Attorney General, Mr.
Tapash Kumar Biswas, Assistant Attorney
2
General, Mr. Khandaker Diliruzzaman,
Assistant Attorney General, Mr. Kashifa
Hussain, Assistant Attorney General, Mr.
Pratikar Chakma, Assistant Attorney
General, Mr. Titas Hillol Rema, Assistant
Attorney General, with him), instructed by
Mr. B. Hossain, Advocate-on-Record
For the Respondent No.5
(in both the cases)
:Mr. M.K. Rahman, Additional Attorney
General (Mr. Motaher Hossain Sazu,
Deputy Attorney General, Mr. Biswajit
Debnath, Deputy Attorney General, Mr. S.
Rashed Jahangir, Assistant Attorney
General and Mr. S.M. Nazumul Haque ,
Assistant Attorney General with him)
instructed by Mrs. Sufia Khatun, Advocateon-
Record
For the Respondent `No.6
(in both the cases)
:Mr. Murad Reza, Additional Attorney
General, (Ms. Fazilatunassa Bappy,
Assistant Attorney General, Ms. Mahfuza
Begum, Assistant Attorney General and Ms.
Khairunnessa, Assistant Attorney General,
instructed by Mr. Giasuddin Ahmed,
Advocate-on-Record
For the Respondent No.7
(in both the cases)
:Mr. Mahmudul Islam, Senior Advocate,
(Mr. AFM Mesbahuddin, Senior Advocate,
Mr. Yusuf Hossain Humayun, Advocate,
Mr. A.M. Amin Uddin, Advocate, Mr.
Abdul Matin Khasru, Advocate, Mr. Sheikh
Fazle Noor Tapash, Advocate, Mr. Nurul
Islam Sujon, Advocate, Mr. Shahidul Karim
Siddiki, Advocate, Mr. S.M. Rezaul Karim,
Advocate and Mr. Momtazuddin Fakir with
him), Advocate instructed by Mrs.
Mahmuda Begum, Advocate-on-Record
Date of hearing
:The 19th, 21st, 26th , 27th and 28th January,
2010 and 1st February, 2010
J U D G M E N T
MD. TAFAZZUL ISLAM, CJ:-
These civil petitions arose out of the judgment and order dated
29.8.2005 passed by the High Court Division in Writ Petition No. 6016 of
2000 making the Rule absolute and declaring the Constitution (Fifth
Amendment) Act, 1979, Act 1 of 1979, hereinafter referred to as the Fifth
3
Amendment, as illegal and void and allowing condonations of some of the
amendments while refusing some others and also directing the Ministry of
Industries, the writ respondent No.1, the proforma respondent No.3 herein, to
handover the physical possession of Moon Cinema Hall, 11 Wiseghat Road,
Police Station: Kotwali, Dhaka, to the writ petitioner No. 1, the respondent
No.1 herein, within 60 (sixty) days.
Facts, in brief, are that the respondent No.1, hereinafter referred to as
the company, along with its Managing Director, filed the above writ petition
stating, inter alia, that the company was registered with the Joint Stock
Companies of the erstwhile East Pakistan as a private limited company in the
name and style of Pak Italian Marble Work Limited and in the year 1962 it
became the owner of the above Holding No.11, Wise Ghat Road, Dhaka and
in the year 1964, it constructed a cinema hall known as Moon Cinema Hall;
after liberation of Bangladesh, in or around the last week of December, 1971,
some people taking advantage of poor law and order situation prevailing at
that time, took over forcible possession of the above Moon Cinema Hall from
the staffs of the company and subsequently, by notification being No.186-SI
dated December 31, 1971, the management of the Moon Cinema Hall was
taken over by the proforma respondent No.3 and the same was handed over to
the Management Board purportedly in pursuance of the Acting President’s
Order No. Sec XI/IM/35/71/17 dated December 30, 1971; then in terms of the
order passed by the Department of Trade and Commerce, by an order dated
28.11.1972 passed by the Registrar Joint Stock Companies, Bangladesh, the
name of the company was changed to Bangladesh Italian Marble Works Ltd.;
then by Notification No. IM-XV-36/72/531 dated 15.12.1972 the respondent
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No.3, in exercise of the powers under Article 5 of the President’s Order No.
16 of 1972, placed the Moon Cinema Hall under the disposal of Bangladesh
(Freedom Fighters) Welfare Trust, the writ respondent No.3, the proforma
respondent No.5 herein.
Then on April 28, 1972, the company filed an application praying for
release of the Moon Cinema Hall whereupon the Sub-Divisional Officer
(South), Dhaka, by his order dated 1.12.1972, directed an enquiry and the
directors of the company personally appeared before the Officer-in-Charge of
the Abandoned Property Cell on 22.10.1973 and after enquiry the authority
concerned filed an enquiry report dated 11.9.1974 with the finding that the
Moon Cinema Hall was not an abandoned property and thereafter the Sub-
Divisional Officer (South) Dhaka, after examining the documents, by his
order dated 18.12.1974 placed the matter before the Deputy Commissioner,
Dhaka and in due course the Additional Deputy Commissioner, Dhaka by his
Memo dated 6.1.1975 recommended release of the said property. But by
Memo dated 27.06.1975 the respondent No.3 informed the company that the
Moon Cinema Hall is an abandoned property and as such cannot be released.
The Company then filed an application on 17.12.1975, before the Member,
Advisory Council, in-charge, Ministry of Planning and Industries, praying for
release of Moon Cinema Hall but without any result. Then finding no other
alternative, the company filed Writ Petition No. 67 of 1976 praying for
declaration that the notification dated 31.12.1971 issued by the proforma
respondent No.3 taking over Moon Cinema Hall as abandoned property under
the Acting President’s Order No.1 of 1971 and its subsequent Order dated
27.6.1975 refusing to release Moon Cinema Hall are illegal and without
5
lawful authority. Only the respondent Nos. 3 and the Secretary, Ministry of
Industries, the writ respondent No.2, the respondent No.4 herein, contested
the Rule by filing an affidavit-in-opposition. The proforma respondent No.5
neither opposed the Rule nor filed an affidavit-in-opposition. After hearing
the High Court Division, by judgment and order dated 15.6.1977, declared the
impugned notification dated 31.12.1971 as illegal and directed the proforma
respondent Nos. 3 and 4 to hand over the possession of Moon Cinema Hall to
the company at once.
Then in compliance of the above judgment of the High Court Division,
the respondent No.3, by Notification No. ND/(N-1)/4(2)/72/11 Dacca dated
24.8.1977, deleted Moon Cinema Hall from the list published in the
Notification dated 31.12.1971 and formally released Moon Cinema Hall in
favour of the company with a direction to the respondent No.4 to hand over
the physical possession of the same to the representative of the company. In
due course, a Magistrate was also deputed to hand over possession of Moon
Cinema Hall to the company but the possession could not be handedover
because the proforma respondent No.5 refused to give up possession of Moon
Cinema Hall to the company on the ground that they, against the above
judgment of the High Court Division, has filed Civil Petition No. 291 of 1977
before this Division and obtained an order of stay. In the meantime
Abandoned Properties (Supplementary Provisions) Regulation, 1977,
hereinafter referred to as Martial Law Regulation No. VII of 1977, having
been promulgated on 7.10.1977 prodiving, amongst others, annulment of the
above judgement and order of the High Court Division dated 15. 6. 1977.
Then the above civil petition was dismissed as not being pressed.
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Thereafter the company made several representations to the respondent
Nos.3 and 4 requesting them to hand over of the possession of the Moon
Cinema Hall in their favour but the same was refused on the plea that in view
of promulgation of MLR VII of 1977 the judgment and order of the High
Court Division dated 15.6.1977 passed in Writ Petition No. 67 of 1976 stood
annulled and so the said judgment was no longer binding upon them and the
said Cinema Hall having vested in the Government, they were not legally
bound to deliver the possession of the same to the Company. In the contempt
proceedings, which in the meantime commenced at the instance of the
company, the proforma respondents having taken similar stand, the company
did not press those and those were accordingly discharged.
However, after the withdrawal of Martial Law the company filed Writ
Petition No. 802 of 1994 before the High Court Division praying for issuing a
Rule Nisi upon the respondent Nos. 3-4 and the proforma respondent No.5
calling upon them to show cause as to why, pursuant to the Gazette
Notification No. IND(M-1)/4(2)/72/11 dated 24.8.1977 issued by the
respondent No.3 for releasing Moon Cinema Hall and also directing the
respondent No.4 to hand over the possession of the same to the company, the
respondent Nos. 3-4 and the proforma respondent No.5 should not be directed
to make over possession of the Moon Cinema Hall in favour of the company.
However, the High Court Division by order dated 7.6.94 rejected the above
writ petition summarily holding that the company did not challenge the vires
of the Fifth Amendment and further there being inordinate delay of about 15
years it is too late to challenge the vires of the Fifth Amendment specifically
in view of the judgment passed in the case of Anwar Hossain Vs. Bangladesh
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BLD (Suppl.)1 = 41 DLR (AD)165. Being aggrieved the company filed Civil
Appeal No. 15 of 1997 but the same was also dismissed by this Division by
judgment and order dated 14.7.1999 holding, amongst others, that the
publication of the Gazette Notification dated 24.8.77 was not an actual and
effective restoration or transfer of the possession of the Moon Cinema Hall by
way of delivery of possession to the company or by means similar to delivery
of possession and therefore the High Court Division did not commit any
illegality in not extending the protection of sub-paragraph (2) of paragraph 6
of Martial Law Regulation No. VII of 1977 to the company and the High
Court Division also did not misinterpret the law as laid down in the case of
Nasiruddin Vs. Government 32 DLR (AD) (1980) 216 and merely
summarized the points stated therein and that with regard to the case of
Ehteshamuddin Vs. Bangladesh 33 DLR (AD) (1981) 154 the High Court
Division merely considered the effect of the lifting of Martial Law on April 6,
1979 by the Fifth Amendment and only quoted one paragraph from the said
judgment and that the above cases also have no relevance with the facts and
circumstances of the appeal and further the Fifth Amendment has also not
been challenged in the appeal. In the above circumstances, the company, for
relief, had to file the above writ petition challenging the vires of the Fifth
Amendment.
In the writ petition it was further stated that Khandaker Moshtaque
Ahmed by a Proclamation dated August 20, 1975 took over the full powers of
the Government and suspended the Constitution with effect from August 15,
1975 and made the Constitution subservient to the above Proclamation and
after 82 days he handed over the office of the President of Bangladesh to
8
Justice Abu Sadat Mohammad Sayem, the then Chief Justice of Bangladesh,
who upon entering the said office of President on November 6, 1975,
assumed the powers of Chief Martial Law Administrator and then he, by the
Second Proclamation dated November 8, 1975, made certain amendments in
the Proclamation dated August 20, 1975 and then by the Third Proclamation
dated November 29, 1976 he handed over the office of Chief Martial Law
Administrator to Major General Ziaur Rahman B.U and then on 5.10.1977
Major General Ziaur Rahman promulgated Martial Law Regulation No. VII
of 1977, and on April 23, 1977 also promulgated Proclamations
(Amendment) Order, 1977, i.e., the Proclamations Order No.1 of 1977, which
amongst others, inserted paragraph 3A in the Fourth Schedule to the
Constitution purporting to validate the above Proclamations dated August 20,
November 8 and 29 of 1975 and also all the Martial Law Regulations, Orders
etc made during the period between August 15, 1975 and April 9, 1979, i.e
the date of withdrawal of Martial Law and thereafter, by section 2 of the Fifth
Amendment, Paragraph 18 was inserted in the Fourth Schedule to the
Constitution under the heading ‘Ratification and Confirmation’ and thus on
seizing powers, the Chief Martial Law Administrators purportedly issued
decrees known as Proclamations ‘subordinating’ or ‘suspending’ the
Constitution of the Republic including all those articles of the Constitution
which protected the rights of the individuals and provided the guarantees
necessary for the maintenance of the rule of law etc. and that the Chief
Martial law Administrator had no authority to nullify the Constitution by
issuing the above proclamations etc. and that under the Constitution, even in
case of grave public danger, it is only the President of the Republic who, in
9
case of his satisfaction and subject to Article 141A, could have suspended
only some constitutional guarantees but the Chief Martial Law
Administrators, under the above Proclamations, went even further than what
the President and /or the Parliament was entitled to do under the Constitution
and further the Chief Martial Law Administrators purportedly subordinated or
suspended the very Constitution itself to the Martial Law Proclamtions,
Regulaions and Orders which cannot be done either by the President or the
Parliament even in grave emergency and further the Parliament under Article
142 of the Constitution has / had no authority / power to “ratify” and
“confirm” the act of “subordination’ or “suspension” of the Constitution and
nullifying all those Articles which provided Supremacy of the Constitution,
Rule of Law. Independence of Judiciary and its power of Judicial review and
thus destroying the basic structures of the Constitution.
Then the High Court Division on 11.12.2000 issued Rule on the
following terms:
“Let a Rule Nisi be issued calling upon the respondents
to show cause as to why taking over the management
of ‘M/s. Moon Cinema’ 11, Wiseghat, Dhaka by /
under Notification No. 186-51 dated 31st December,
1971 published in the Bangladesh Gazette,
Extraordinary dated 3rd January, 1972 and its placement
with respondent No.3 for management by Notification
No. IM-XV-36/72/531 dated 15th December, 1972
published in the Bangladesh Gazette Extraordinary
dated 4th January, 1973 and all subsequent actions,
10
deeds and documents relating thereto should not be
declared to have been made without lawful authority
and is of no legal effect and to further show cause as to
why purported ‘ratification and confirmation’ of the
Abandoned Properties (Supplementary Provisions)
Regulations, 1977 (Martial Law Regulations No. VII of
1977 and Proclamations (Amendment) Order, 1977
(Proclamation Order No.1 of 1977) with regard to
insertion of paragraph 3A to the Fourth Schedule of the
Constitution by paragraph 18 of the Fourth schedule of
the Constitution of the People’s Republic of
Bangladesh added by the Constitution (Fifth
Amendment) Act, 1979 (Act 1 of 1979) should not be
declared to have been made without lawful authority
and is of no legal effect and as to why the respondents
should not be directed to hand over ‘Moon Cinema’,
11, Wiseghat Road, Dhaka with its assets and
management to the petitioners or such other or further
order or orders passed as to this Court may seem fit and
proper”.
The respondent Nos.3 and 4 opposed the Rule and filed affidavits-inopposition
stating that Moon Cinema Hall is an abandoned property and that
no body was found to manage the same and none of the share holders of the
company, except two, was found present in Bangladesh at the relevant time
and so Moon Cinema Hall was taken over under the Acting President’s Order
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No.1 of 1972 in the interest of the Republic and subsequently under
President’s Order No. 16 of 1972 it vested in the Government and
subsequently it was placed at the disposal of the proforma respondent No.5
which is possessing and managing the same and that by paragraph 18 of the
Fourth Schedule to the Constitution all actions taken during the Martial Law
period between 15th August and 9th April, 1979 were ratified and declared to
have been validly made, done or taken and also providing that the validly of
those shall not be called in question in any Court, Tribunal or authority on any
ground whatsoever and further in the cases of Halima Khatun V. Bangladesh
30 DLR (SC) (1978) 207, State V. Joynal Abedin 32 DLR (AD) (1980) 110,
Nasiruddin’s case (supra) and Enteshauddin’s case (supra) this Division in no
uncertain terms put the Constitution as subservient to the above Martial Law
Proclamations, Regulations and Orders etc. and further in Anwar Hossain’s
case (supra) Justice Shahabuddin Ahmed, even after noticing that by the
above Martial Law Proclamations, Regulations and Orders the Constitution
was badly mauled in different times, refused to interfere holding that all these
structural changes were incorporated in and ratified by the Fifth Amendment
and moreover long 15 years have elapsed since Fifth Amendment was passed
and none challenged the Fifth Amendment it in the meantime.
The proforma respondent No.5 also opposed the Rule and filed
affidavit-in-opposition stating that the writ petition is barred by the principle
of res judicata inasmuch as all the relevant issues raised in the writ petition
had been finally and conclusively decided in Writ Petition No. 802 of 1994 as
well as in Civil Appeal No. 15 of 1997 and that in the wake of two Martial
Law periods/regimes the jurisprudence that has emerged in the constitutional
12
history of Bangladesh is that no Court including the Supreme Court has any
power to call in question the same in any manner whatsoever and / or declare
illegal or void the above Martial Law Proclamations, Regulation and Orders
etc and in Halima Khatun’s case it was held that there was a ‘total ouster of
jurisdiction of the Court” and thus this Division put the Constitution in no
uncertain terms as subservient to the above Martial Law Proclamations,
Regulations and Orders etc and thus the Constitution has lost its character as
the supreme law of the country and in Joynal Abedin’s case this Division
followed the above view and in Ehtaeshamuddin’s case this Division went on
not only to reiterate the subservience of the Constitution to the above Martial
Law Proclamation, Regulations and Orders etc for as long as Martial Law
proclaimed / made on August 15, 1975 existed, but also beyond, i.e., after the
Constitution was revived and that in Nasiruddin’s case this Division also
followed Halima Khtun’s case but however clarifying that there cannot be any
question of abatement of any legal proceedings initiated by an aggrieved
person to protect his legal right or interest in the property against which the
action taken or the vesting order made is without jurisdiction or coram non
judice or is malafide and that except within this narrow compass, all the
proceedings coming within the mischief of Martial Law Regulation No. VII
of 1977, shall abate.
Upon hearing the parties, the High Court Division made the Rule absolute
and at the end of its judgment the High Court Division summarized its
findings as follows:-
1. Bangladesh is a Sovereign Democratic Republic, governed
by the Government of laws and not of men.
2. The Constitution of Bangladesh being the embodiment of the
will of the Sovereign People of the Republic of Bangladesh,
13
is the supreme law and all other laws, actions and
proceedings, must conform to it and any law or action or
proceeding, in whatever form and manner, if made in
violation of the Constitution, is void and non est.
3. The Legislature, the Executive and the Judiciary being the
three pillars of the Republic created by the Constitution, as
such, are bound by its provisions. The Legislature makes the
law, the Executive runs the government in accordance with
law and the Judiciary ensures the enforcement of the
provisions of the Constitution.
4. All functionaries of the Republic and all services of the
Republic, namely, Civil Service, Defence Service and all
other services, owe its existence to the Constitution and must
obey its edicts.
5. State of emergency can only be declared by the President of
the Republic on the advice of the Prime Minister, in case of
imminent danger to the security or economic life of the
Republic.
6. The Constitution stipulates a democratic Republic, run by the
elected representatives of the People of Bangladesh and any
attempt by any person or group of persons, how high so ever,
to usrup an elected government, shall render themselves liable
for high treason.
7. A proclamation can be issued to declare an existing law under
the Constitution, but not for promulgating a new law or
offence or for any other purpose.
8. There is no such law in Bangladesh as Martial Law and there
in also no such authority as Martial Law Authority as such
and if any person declares Martial Law, he will be liable for
high treason against the Republic. Obedience to superior
orders is itself no defence.
9. The taking over of the powers of the Government of the
People’s Republic of Bangladesh with effect from the
morning of 15th August, 1975, by Khandaker Mushtaque
Ahmed, an usurper, placing Bangladesh under Martial Law
and his assumption of the office of the President of
Bangladesh, were in clear violation of the Constitution, as
such, illegal, without lawful authority and without
jurisdiction.
10. The nomination of Mr. Justice Abusadat Mohammad Sayem,
as the President of Bangladesh, on November,6, 1975, and his
taking over of the Office of President of Bangladesh and his
assumption of powers of the Chief Martial Law Administrator
14
and his appointment of the Deputy Chief Martial Law
Administrators by the Proclamation issued on November
8,1975, were all in violation of the Constitution.
11. The handing over of the Office of Martial Law Administrator
to Major General Ziaur Rahman B.U., by the aforesaid Justice
Abusadat Mohammad Sayem, by the Third Proclamation
issued on November 29,1976, enabling the said Major
General Ziaur Rahman, to exercise all the powers of the Chief
Martial Law Administrator, was beyond the ambit of the
Constitution.
12. The nomination of Major General Ziaur Rahman, B.U., to
become the President of Bangladesh by Justice Abusadat
Mohammad Sayem, the assumption of office of the President
of Bangladesh by Major General Ziaur Rahman, B.U., were
without lawful authority and without jurisdiction.
13. The Referendum Order,1977 (Martial Law Order No.1 of
1977),published in Bangladesh Gazette On 1st May, 1977, is
unknown to the Constitution, being made only to ascertain the
confidence of the people of Bangladesh in one person,
namely, Major General Ziaur Rahgman, B.U.
14. All Proclamations, Martial Law Regulations and Martial Law
Orders made during the period from August 15, 1975 to April
9,1979, were illegal, void and non est because.
i) Those were made by persons without lawful authority, as
such, without jurisdiction.
ii) The Constitution was made subordinate and subservient to
those Proclamations, Martial Law Regulations and Martial
Law Orders,
iii) Those provisions disgraced the Constitution which is the
embodiment of the will of the people of Bangladesh, as
such, disgraced the people of Bangladesh also.
iv) From August 15, 1975 to April 7, 1979 Bangladesh was
ruled not by the representatives of the people but by the
usurpers and dictators, as such, during the said period the
people and their country, the Republic of Bangladesh, lost
its sovereign republic character and was under the
subjugation of the dictators.
v) From November 1975 to March, 1979 Bangladesh was
without any Parliament and was ruled by the dictators, as
such, lost its democratic character for the said period.
vi) The Proclamations etc. destroyed the basic character of the
Constitution, such as, change of the secular character,
15
negation of Bangalee nationalism, negation of Rule of law,
ouster of the jurisdiction of Court, denial of those
constitute seditious offence.
15. Paragraph 3A was illegal,
“Firstly because it sought to validate the Proclamations,
MLRs and MLOs which were illegal”, and
“Secondly, Paragraph 3A, made by the Proclamation
Orders, as such, itself was void”.
16. The Parliament may enact any law but subject to the
Constitution. The Constitution (Fifth Amendment) Act, 1979 is
ultra vires, because:
Firstly, Section 2 of the Constitution (Fifth Amendment)
Act, 1979, enacted Paragraph 18, for its insertion in the
Fourth Schedule to the Constitution, in order to ratify,
confirm and validate the Proclamations, MLRs and MLOs
etc. during the period from August 15, 1975 to April 9,
1979. Since those Proclamations, MLRs, MLOs etc., were
illegal and void, there were nothing for the Parliament to
ratify, confirm and validate.
Secondly, the Proclamations etc. being illegal and
constituting offence, its ratification, confirmation and
validation, by the Parliament were against common right
and reason.
Thirdly, the Constitution was made subordinate and
subservient to the Proclamations etc.
Fourthly, those Proclamations etc. destroyed its basic
features.
Fifthly, ratification, confirmation and validation do not
come within the ambit of ‘amendment’ in Article 142 of
the Constitution.
Sixthly, lack of long title which is a mandatory condition
for amendment, made the amendment void.
Seventhly, the Fifth Amendment was made for a collateral
purpose which constituted a fraud upon the People of
Bangladesh and its Constitution.
17. The Fourth Schedule as envisaged under Article 150 is meant
for transitional and temporary provisions, since Paragraph 3A
and 18, were neither transitional nor temporary, the insertion of
16
those paragraphs in the Fourth Schedule are beyond the ambit
of Article 150 of the Constitution.
18. The turmoil or crisis in the country is no excuse for any
violation of the Constitution or its deviation on any pretext.
Such turmoil or crisis must be faced and quelled within the
ambit of the Constitution and the laws made thereunder, by the
concerned authorities, established under the law for such
pur pose.
19. Violation of the constitution is a grave legal wrong and remains
so for all time to come. It cannot be legitimized and shall
remain illegitimate for ever. However, on the necessity of the
State only, such legal wrongs can be condoned in certain
circumstances, invoking the maxims, Id quod Alias Non Est
Licitum, Necessitas Licitum Facit, salus populi est suprema lex
and salus republicae est suprema lex.
20. As such, all acts and things done and actions and proceedings
taken during the period from August 15, 1975 to April 9, 1979,
are condoned as past and closed transactions, but such
condonations are made not because those are legal but only in
the interest of the Republic in order to avoid chaos and
confusion in the society, although distantly apprehended,
however, those remain illegitimate and void forever.
21. Condonations of provisions were made, among others, in respect
of provisions, deleting the various provisions of the Fourth
Amendment but no condonation of the provisons was allowed
in respect of omission of any provision enshrined in the
original Constitution. The Preamble, Article 6, 8, 9, 10, 12, 25,
38 and 142 remain as it was in the original Constitution. No
condonation is allowed in respect of change of any of these
provisions of the Constitution. Besides, Article 95, as amended
by the Second Proclamation Order No.IV of 1976, is declared
valid and retained.
The High Court Division then concluded as follows:
i) The Constitution (Fifth Amendment) Act, 1979 (Act of
1979) is declared illegal and void ab initio, subject to
condonations of the provisions and actions taken thereon as
mentioned above.
ii) The “ratification and confirmation” of the Abandoned
Properties (Supplementary Provisions) Regulation, 1977
(Martial Law Regulation No. VII of 1977) and
Proclamations (Amendment) Order, 1977 (Proclamation
Order No. 1 of 1977) with regard to insertion of Paragraph
17
3A to Fourth Schedule of the Constitution added by the
Constitution (Fifth Amendment) Act, 1979 (Act of 1979), is
declared to have been made without lawful authority and is
of no legal effect.
The High Court Division also directed the proforma respondent No.3 to
hand over the physical possession of the Moon Cinema Hall to the company
within a period of 60(sixty) days of the receipt of the judgment.
Thus the High Court Division though allowed the condonations of the
provisions which annulled the various provisions of the Fourth Amendment
and also some other provision, but did not condone of the provisions in
respect of the omission / substitutions of the Preambles, Articles 6, 8, 9, 10,
12, 25, 38 and 142 of the original Constitution and no condonation being
allowed in respect of the changes of any of the above provisions of the
Constitution those were to remain as existed as on August 15 1975. Besides,
Article 95, as amended by the Second Proclamation (Seventh Amendment)
Order 1976 i.e, the Second Proclamation Order No. IV of 1976, being
declared valid, was retained by the High Court Division.
Mr. T. H. Khan, Senior Advocate, the learned counsel appearing for
the petitioner in Civil Petition No.1044 of 2009 submitted as follows:-
(a) on coming to power in the year 1996 the Awami League
Government, having found that the provisions of the Indemnity
Ordinance, 1975, Ordinance No. 1, of 1975, protecting the trial in
respect of the assassination of the then President Sk. Mujibur Rahman
along with his family, by ousting Courts jurisdiction, was given legal
coverage by the Proclamation (Amendment ) Order, 1977,
Proclamation Order No. 1 of 1977, the Court’s jurisdiction was clearly
ousted and further the said Proclamation Order No. 1 of 1977 was also
given constitutional coverage vide the Fifth Amendment by a legally
elected Parliament and thereby totally ousting the Court’s jurisdiction
for holding any trial of the perpetrators of the crime committed on 15th
August, 1975, had to go for new legislation for repealing the said
Indemnity Ordinance, 1975 in order to extricate from the embargo as
18
provided in paragraph No. 3A and 18 to the Fourth Schedule to the
Constitution and for that purpose enacted repealing Act No. 21 of 1996,
by a simple majority, and that the said Act 21 of 1996 was then
challenged before the High Court Division on the ground that it ought
to have been passed by two third majority instead of simple majority
but this contention however was turned down by the High Court
Divisions and on appeal this Division by its judgment reported in 18
BLD AD 155 affirmed the above judgment and then only the trial for
the said killing commenced but surprisingly even after getting such a
clearance from the Appellate Division by the above decision for
enacting similar repealing Act, the then Awami League Government
did not touch any other single instrument passed during 15th August
1975 to 9th April 1977 including MLR VII of 1977, which having got
similar legal coverage, could only be nullified by a repealing legislation
and not by any judicial pronouncement and since the embargo
regarding entertainment of any question regarding the validity of the
promulgation of the said MLR VII of 1977 existed at the time of filing
of the present writ petition as well as at the time of pronouncement of
its judgment on 29 August 2005 and also till today, the High Court
Division had no jurisdiction to entertain the above writ petition and
pass judgment thereon and moreover the High Court Division also not
only illegally arrogated to themselves the functions of the legislators
but also made highly subjective opinionated conjectures and surmises
in declaring that the laws from August 15, 1975 to April 9, 1979 were
illegal, void and non est.
(b) the High Court Division totally failed to consider that the Appellate
Division had already given sanction to MLR VII of 1977 in so many
previous decisions such as Halima Khatun’s case , Nasiruddin’s case,
Ehteshamuddin case, (supra), judgment passed in Civil Appeal No. 15
and also in other decisions wherein it was held that when Martial Law
if imposed, are Constitution looses its supremacy and those decisions
being binding upon the High Court Division in terms of the provisions
of Article 111 of the Constitution and though those decisions were cited
before the High Court Division, not only those were ignored but the
High Court Division, in a language, which is inconsistent with the
civility and decorum of the Court, criticized those decisions.
(c) Article 101 of the Constitution confers jurisdiction upon the High
Court Division and sub clause a(ii) of Clause 2 of Article 102 of the
Constitution, delineates the power to the High Court Division and the
said sub clause (a)(ii), is subject to and /or controlled by the rider
clause as provided in Article 150 of the Constitution and undoubtedly
paragraphs 3A and 18 added to the Fourth Schedule to the Constitution
by the Proclamation Order 1 of 1977, subsequently ratified by the 5th
Amendment of the Constitution are transitional and temporary
provisions, which were promulgated out of imperative necessity in
order to give continuity and to avoid chaos and confusion and those
19
provisions are clearly a bar in entertaining any writ petition like the
present one.
(d) description of “person” given in Article 102(5) of the Constitution
having not included the Parliament, it is crystal clear that the
Parliament has not been considered as a person and the legislators had
never contemplated to equate the Parliament with a statutory pubic
authority and the High Court Division though has been vested with the
power to examine the vires of any provisions of any parliamentary
enactment but strictly within the letter and spirit of Articles 7 and 26 of
the Constitution as has been done in the case of Anwar Hossain (supra)
in which it was held that the disintegration of the High Court Division
was violative of the unitary structure of country thereby offends against
the said provisions,
(e) the learned judges of the High Court Division having declared that
the laws from August 15, 1975 to April 9, 1979 were illegal, void and
non-est there remained nothing to condone any amendments but
ironically some of the non est provisions were condoned and some
were not condoned and moreover the High Court Division can not pick
and choose the provisions at its sweetwill from the non est provisions
to give those legal validity.
(f) undoubtedly the facto and de-jure jurisdiction of legislation laid
with the Martial law Authority during the whole Martial Law Regime
and also the transitional period until return of democratic system after
General Election held in February, 1979 and one must realize that the
reality of the situation of the Country at the relevant time and the
personal sentiment or likes and dislikes have no role.
(g) the company filed Writ Petition No.6016 of 2000 after 21 years of
the enactment of the Fifth Amendment without assigning any reason
for this inordinate delay, which is fatal and the company can not at its
sweetwill choose his own time to invoke the extraordinary jurisdiction
of the High Court Division and that in the mean time the transactions
and instruments made by the Martial Law Authority having been
ratified by the Fifth Amendment, became past and closed transactions
and the whole country, in all its branches, was governed under those
instruments without any protest form any quarter including the
judiciary and so the writ petition aught to have been rejected on the
ground of delay alone.
Mr. Moudud Ahmed, Senior Advocate, the learned counsel appearing
for the petitioner in Civil Petition No. 1045 of 2009 submitted as follows:-
(a) the very fact that the judgment of the High Court Division
involves interpretation of the Constitution and of great public
20
importance, for complete justice under Article 103 and 104, the
petitioners deserve leave as opined by the former Chief Justice Mr.
Justice Mostafa Kamal in the report published in Naya Diganha on
14.01.2010,
(b) in terms of the principle as laid down in 32 DLR (AD) 216, 33
DLR (AD) 201, 44 DLR(AD) 154, 207 US 288, the writ petition
could be disposed of without declaring the Fifth Amendment illegal
and void
(c) The High Court Division also travelled beyond the terms of the
Rules which is not permitted as held in 51 DLR AD 172, 60 DLR
AD 90 and 18 BLD (AD) 155.
(d) Five Parliaments duly elected by the people in the years 1986,
1988, 1991, 1996 and 2001, have preserved and protected the Fifth
Amendment enacted in April 1979 and maintained its continuity and
five governments including the judiciary have functioned and
discharged their responsibilities under the Fifth Amendment and
consequently it has been accepted by the people and accordingly by
their acquiescence the Fifth Amendments has become part of the
Constitution as observed by Shahabuddin Ahmed CJ in Anwar
Hossain’s Case (supra).
e) by way of denying condonation of the amendments made in the
Preamble; Articles 6, 8, 9, 10, 12, 25; proviso to Article 38 and
clause 1A 1B and 1C of Article 142 and paragraphs 3A and 18 to
the Fourth Schedule of the Constitution, the High Court Division
has acted as a legislature by rewriting the Constitution which could
only be done by the Parliament under Article 65 of the Constitution.
(f) the High Court Division has delivered the judgment in violation
of Article 111 of the Constitution as will be evident in as much as
series of decision of this Division reported in 30 DLR (AD) 207, 32
DLR AD 110 and 216, 33 DLR (AD) 154, 59 DLR (AD) 289, 60
DLR (AD) 57 and 3 BLC (AD) 89 will show that the supremacy of
the Constitution does not hold good once it is placed under the
proclamation of Martial Law and further from the judgments of this
Division passed in 60 DLR (AD) pages respectively 57, 82 and 90,
it will appear that the supremacy of Constitution did not hold good
even during the recent Emergency where a subordinate legislation
like the Emergency Rules were given precedence over the
Constitution.
(g) the judgment of this Division is confusing rather than cohesive
and it is also irrational, inconsistent and self contradictory as while
it has struck down the Fifth Amendment as a whole but on the other
hand have condoned some of the amendments and actions at its own
choice on a pick and choose basis without any legal grounds.
21
(h)the principles of nationalism, socialism and secularism, identified
by the High Court Division as the basic structures of the
Constitution have no legal foundation and are contrary to the
decision given by the Appellate Division in Anwar Hossain’s Case.
(i) the judgment and order of the High Court Division has been
made in violation of the Constitution and without jurisdiction in as
much as that in terms of Article 150 of the Constitution anything
contained in the Fifth Amendment “shall not be called in question in
or before any court, tribunal or authority on any ground whatsoever”
and further the definition of ‘Court’ as provided in Article 152 of
the Constitution has been reaffirmed by the Appellate Division in 60
DLR 82 holding that it included the Supreme Court.
Mr. Mahmudul Islam, Senior Advocate, the learned counsel
appearing for the respondent No.7 in both the petitions, submitted as follows:-
(a) the submission of the petitioners that the High Court Division ought
to have granted certificate suo moto under Article 103 (2) as substantial
question of law as to the interpretation of the Constitution is involved
in this case has no basis at all because the petitioners, having not
required the High Court Division to exercise its discretion in granting
or refusing to grant the certificate, can not now complain and that the
High Court Division ought to have granted certificate as the High Court
Division should not grant certificate without formulating the question
of law on which certificate is to be granted and it has been the regular
practice to pray for such certificate from the Bar on stating the points of
law for which certificate is prayed for and further even though the
petitions involve constitutional issues, the petitioners having failed to
show any prima facie defect in the judgment necessitating interference
and the points raised having been authoritatively decided by the
superior courts, the petitioners have failed to make a case for grant of
leave to appeal.
(b) the government having withdrawn the appeal and the concerned
Ministry not challenging the judgment and the petitioners having taken
no grounds challenging the order of the High Court Division directing
delivery of the property in question to the respondent No.1, in the
instant petitions we are only concerned with question whether the Fifth
Amendment ratifying all legislative and executive actions of the
Martial Law Authorities between 15th February, 1975 and 5.11.79 is
valid and if not whether and to what extent the doctrine of necessity
will come into play.
(c) It is a well-established principle of interpretation of any statute or
constitution that in order to ascertain the meaning of any particular
provision, the instrument must be read not in isolation but as a whole in
its proper context and the context is of two types- internal and external;
22
the internal being the text of the statute including the preamble and
whether or not preamble is a part of the Constitution it, constituting a
part of the context, has to be taken into consideration in construction of
any substantive provision of the Constitution and moreover if the
internal context cannot resolve the vagueness, resort may be had to the
external context which includes the history leading the enactment of the
statute and the proceedings of parliament and the same can be said
about interpretation of a Constitution and accordingly for interpretation
of our Constitution, concentration should be on the text of the
Constitution and then go to history only incidentally, if necessary.
(d) unlike preamble of many other constitutions, the preamble of our
Constitution has laid in clear terms the aims and objectives of the
Constitution and in no uncertain terms it speaks of representative
democracy, rule of law and supremacy of the constitution as the
embodiment of the will of the people of Bangladesh and all the
provisions that follow have been structured accordingly to achieve
these aims and objectives and further a written Constitution in itself is a
limitation on the governmental powers resulting in (i) a limited
government and (ii) the supremacy of the Constitution.
(e) the past history of constitutional misadventures by the civil and
military bureaucrats in Pakistan who never permitted constitutional
governments to settle down, the framers of our Constitution felt it
necessary to make the declarations in Article 7 of the Constitution
which brilliantly comprehends the entire jurisprudence of the
constitutional law and constitutionalism in Bangladesh including the
supremacy of the Constitution and the decision of Pakistan Supreme
Court in Zafar Ali Shah V. General Parvez Mosharaf, PLD 2000 SC
869, is an example which demonstrates the foresight of the framers of
our Constitution in making it explicit by incorporating Article 7 what
has always been implicit in any written constitution and if Article 7 is
read together with the preamble and the fundamental principles of State
Policy of Chapter II of the Constitution and if the different provisions
of the Constitution are interpreted following the mandate of Article
8(2), there remains no doubt that (i) the supremacy of the Constitution
and through its operation the establishment of a representative
democratic polity and Rule of Law securing for all the citizens
fundamental human rights and freedom are the basic features of the
Constitution and together with these (ii) the independence of the
judiciary and its the power of judicial review of the executive and
legislative actions are also basic features of the Constitution as without
the above, the aims and objectives as formulated would be wishful
thinking and it is now well- established that the basic features and
structures of the Constitution are beyond the amending power of the
Parliament under Article 142 of the Constitution.
(f) our Constitution does not contemplate governance by any authority
other than the elected representatives of the people and thus any
23
government formed by the members of military service is
unconstitutional and constitutes gross violation of the Constitution and
the governance by such authority is also contrary to the legal order
established by the Constitution and such a government is out and out an
unconstitutional government and all its actions are ultra vires of the
Constitution and Martial Law government continues because the people
have hardly any way of defying the mandate of the arms but once a
Martial Law government goes, it goes leaving no trail unless its deeds
and actions are condoned by application of the doctrine of necessity but
there are limits to the application of such doctrine and to come out of
this the Parliament has resorted to the private law contrivance of
ratification of unauthorized actions of agents by principals but there is
inherent limitation even to such ratification as life can not be given to a
prohibited transaction by ratification and moreover by the device of
ratification an authority can not increase its authority in asmuchas it can
ratify only those actions of others which it can lawfully do and thus
Parliament can not, by resort to the device of ratification, ratify and
render valid an amendment which it can not itself do because of
infringement of the basic features of the Constitution and accordingly
the inclusion of impugned paragraphs 3A and 18 in the Fourth
Schedule by Fifth Amendment is not only unconstitutional but also
violative of the basic features of the constitution, namely, supremacy of
the Constitution, Rule of Law, Independence of Judiciary and its Power
of Judicial Review as all of them are basic features or structures of the
Constitution and the Parliament does not have any competence under
Article 142 of the Constitution, even in exercise of the power with two
third majority, to make an amendment damaging or flouting any of the
basic structures of the Constitution as held by their Lordship of this
Division in Anwar Hossain’s case.
(g) the submission of the petitioners that the Parliament being not a
person, the High Court Division does not have jurisdiction to declare an
Act of Parliament ultra vires has also no basis as since Article 7 of the
Constitution declared the Supremacy of the Constitution, there must be
some authority to maintain and preserve this supremacy of the
Constitution and there can be no doubt that in an entrenched
Constitution the judiciary must be that authority and starting from the
case of Marbury v. Madison, 1 Cranch 137, there are numerous
instances where the superior courts functioning under a written
constitution upheld this power of judicial review as would be evident
from the contents of the judgment of the High Court Division.
(h) Whenever a new legal order is ushered, the Constitution makes
provision to deal with some matters, treating those as “transitional
provisions”, till the Constitution takes full effect and these provisions
are called transitional provisions as the purpose of these provisions will
be fulfilled once the government under the Constitution is established
and though generally such provisions are kept beyond the pale of
judicial review but at the same time no matter is intended to be
24
included in the “transitional provisions” which do not relate to anything
during the interregnum period between the date of the Constitution
coming into operation and the date of setting up of the government
under the provisions of the Constitution but by the Fifth Amendment
made in 1979 paragraph 18 was inserted in the schedule of
“transitional provisions” only to ratify the otherwise unconstitutional
legislative and executive actions of the Martial Law authority and also
to preclude judicial review of those actions though those are not
“transitional provisions” and so this is simply a fraud on the
Constitution and such Fifth Amendment is also patently illegal
specially for inserting the provision barring judicial review, another
basic feature of the Constitution.
(i) the petitioners submitted that the Fifth Amendment having not being
challenged for long time, it must be deemed that Fifth Amendment has
been accepted by the people but the legal position is that time does not
run in favour of the validity of legislation and if it is ultra vires, it can
not gain legal strength from long failure on the part of lawyers to
perceive and set up its invalidity as has been held in Grace Brothers Pty
Ltd v. The Commonwealth, 72 CLR 269, 289.
(j) simply because the laws made by the Martial Law authority and
actions under it were considered by this Division in some cases wherein
those were not declared ultra vires, those laws can not attain validity
and further it also will be evident that in none of those case, the
invalidity of the Fifth Amendment was vouched and so those cases can
not operate as precedent for the validity of the Fifth Amendment and
accordingly the submission of the petitioners that the earlier decisions
touching the actions of the Martial Law authorities provide some
binding precedents under Article III of the Constitution upholding the
finding that actions of martial Law authorities can not be challenged in
the Court is not tenable as in none of those cases the issue of invalidity
of the Fifth Amendments was raised much less to speak of the Court’s
confirming the validity of the fifth Amendment and that in order to
apply the provision of Article 111 an issue must raised and deliberated
upon and decided before it can operate as a binding precedent as what
is binding as a law is the ratio of a decision and not the finding of a fact
or the conclusion reached by the Court and furthermore this Division,
having the power of review, is not bound by a view earlier taken by this
Division and moreover the role of Stare Decisis is insignificant in
constitutional interpretation particularly when the earlier view is
manifestly wrong and further the observation of the Shahabuddin
Ahmed J in Anwar Hossain case to the effect that “ In spite of these
vital changes from 1975 by destroying some of the basis structures of
the Constitution, nobody challenged them in court after revival of the
Constitution; consequently, they were accepted by the people, and by
their acquiescence have become part of the Constitution” is quite
wrong as can be seen from numbers of decisions of the superior Courts
Eights and further this statement is simply an obiter dicta as being
25
made while dealing with the Eighth Amendment and the Fifth
Amendment was not in issue in Amendment case and the above
observation was simply uncalled for and moreover no other Judge
having agreed with the said observation, it cannot be treated as ratio
decidendi so as to have biding force under Article 111 and that in
dealing with ratio decidendi to operate as a precedent of the view
Salmond is relevant
(k) an effort has been made to apply the principle of estoppel and
acquiescence to prevent the Fifth Amendment from being declared ultra
vires but such effort is not tenable in the eye of law because it is a wellestablished
principle that estoppel cannot be pleaded against or in
respect of a Statute, much less to speak of the Constitution and
similarly, there cannot be any acquiescence to hold valid an otherwise
invalid law.
(l) the doctrine of necessity is applied to condone some of the actions of
a usurper as were done in the case of Madzimbamutu V Lardner-Burke
(1968) 3 All ER 561 and also in the case of Asma Jilani v. Punjab PLD
1972 (SC 139) and that actions and laws validated by Para 18 of
Proclamation Order No.1 of 1977 and the enactment of Para 18 of the
Fourth Schedule of the Constitution do not fall within any of the above
categories and that as held in the case of Zafar Ali Shah V. General
Parvaz Mosharraf the Constitution assigned the function of enactment
of law to Parliament and /or its delegate and any law framed or
proclaimed by any authority other than Parliament and/or its delegate is
violation of the Constitution as no authority except Parliament and/or
its delegate can amend the Constitution as mandated by the
Constitution under article 142 of the Constitution and at the minimum
all those amendment made by the Martial Law authority infringing on
the basic features of the constitution namely Supremacy of the
Constitution, Rule of Law Independence of Judiciary and its power of
Judicial Review
(m) However to avoid anomaly and preserve continuity, Courts have to
pass consequential orders as in the Eighth Amendment case the
Appellate Division ordered prospective application of the invalidity of
the Eighth Amendment and further while declaring any law ultra vires,
the Court often applies the doctrine of severability to limit the
application of the judicial verdict and this is no legislative act though
such a decision modifies or even destroys a legislation and accordingly
once the Fifth Amendment is held invalid and beyond the power of
parliament to make, only the following can be condoned by the court
(a) actions past and closed; (b) actions not derogatory to the rights of
the citizens and (c) routine works which even the lawful government
would have done.
(n) the petitioners submitted that the High Court Division having found
that the property in question is not an abandoned property, it was
26
unnecessary to go on the constitutional issue and to declare the Fifth
Amendment unconstitutional ignored and the High Court Division the
principle of judicial restraint of not deciding any constitutional issue
when an issue involved in the case can justifiably be disposed of on
other grounds.But this principle of judicial restraint to avoid decision
on constitutional issue is not an invariable rule and it has also been felt
necessary that constitutional issues should be resolved as early as
possible as for example in the case of Nurul Islam’s case 33 DLR (AD)
201 though Kamaluddin Hossain CJ and Shahabuddin J found the
compulsory retirement of Dr. Nurul Islam to be vitiated because of
mala fidee and refrained from deciding the constitutional issue but the
majority judges addressed to the question of violation of the equality
clause and decided it and that in the present case though the High
Court Division found that the property in question was not an
abandoned property, it could not pass any order for the release of the
property because of the provisions of MLR VII of 1977 and this
Division in C.A. No. 15 of 1997 brought the matter into sharp focus by
holding that the validity of the Fifth Amendment has not been
challenged in Writ Petition No.802 of 1994 and in this compelling
situation the company had to file the present writ petition challenging
the vires of the Fifth Amendment and in the facts and circumstances as
involved in the present writ petitions it can not be said that the writ
petition could be disposed of without deciding the constitutional
question
(o) The submission of the petitioners that without declaring the Fifth
Amendment invalid in its entirety the Fifth Amendment could have
been declared without lawful authority only in so far as the company
was concerned has no substance as the matter in issue is such that there
is no scope for application of the doctrine of severability as the grounds
of violation of the basic features of the Constitution, on which the
impugned Fifth Amendment was found invalid, are such that it has to
be declared void in its entirety.
(p)The submission of the petitioners that because of the Fourth
Amendment, Fifth Amendment had to be made has also no basis as
even if the Fourth Amendment was violative of the basic features of the
Constitution there was way of challenging it in the Supreme Court as
had been successfully done in the case of Eighth Amendment.
Mr. Azmalul Hossain, Q.C, the learned counsel appearing for the
respondent No.1 in both the petitions, submitted as follows:-
(a) in a case of this nature, appeals to this Division may be brought
with a certificate under the provisions of sub Article (1)(a) of
Article.103 or with leave of this Court under sub-article (3) of
Article 103(3) of the Constitution and Article 103 does not state the
criteria for granting leave and in the case of Ekushey Television
27
Ltd. and others –v- Dr. Chowdhury Mohamood Hasan and others.
54 D:R AD 130 at para 83 and in the case of Bangladesh Bank and
another –v- The Administrative Appellate Tribunal, and others, 44
DLR (AD) 239, at para 4 it has been held that the primary threshold
or criteria for granting leave is that there had been some “illegality”
in the decision of the High Court Division or that there had been
some “miscarriage of justice” or that an “evil precedent” has been
or will be created and further in the case of Ibrahim –v- Emperor,
AIR 1914 PC 155 it has held that the test for granting leave to
appeal must be that there are reasonable grounds for sustaining the
appeal and those grounds have reasonable prospects of success but
in the present petitions the petitioners have not fulfilled this criteria
in advancing any of such grounds and mere assertion in the
petitions that there are important constitutional points which needs
to be considered by this Court is simply not good enough for
granting leave.
(b) The background for filing the present writ petition challenging the
vires of the Fifth Amendment, dates back when the struggle of the
company to free the Moon Cinema Hall started soon after it was
taken over and that at first its Managing Director approaching the
authorities and having established that Moon Cinema Hall was not
an abandoned property sought release of the same and when the
property was not released the company filed Writ Petition No.67 of
1976 wherein the High Court Division upon declaring that Moon
Cinema Hall is not abandoned property directed the concerned
proforma respondents for release Moon Cinema Hall and they took
some steps for release but then Moon Cinema Hall was handed over
to the proforma respondent No.5 and accordingly the company filed
contempt proceedings to enforce the judgment passed in the above
writ petition but then Martial Law came whereupon the “period of
delinquency” began and MLR VII of 1977 was promulgated
specifically providing that even if the Government had unlawfully
taken over a property as abandoned the same shall remain as
abandoned and any judgments obtained saying otherwise would be
ineffective and this directly affected the rights of the company and
afterwards by the Fifth Amendment this MLR was purportedly
ratified and given effect to and the result was that because of the
Fifth Amendment the contempt proceedings failed and the company
could not get the fruits of the above judgment and that the “Period
of Delinquency” was brought to an end in the year 1991 within the
lifting Martial Law and thereafter the company filed the second writ
petition being Writ Petition No.802 of 1994 but the same was
summarily rejected by the High Court Division on the ground that
the power of judicial review of the High Court Division in such
cases being taken away by the Fifth Amendment the writ petition
was not maintainable and being aggrieved, the company filed C.A.
No.15 of 1997 and the company though made an attempt to
challenge the vires of the Fifth Amendment therein but failed as the
28
company had not challenged the vires of the Fifth Amendment in
the Writ Petition No.802 of 1994 and in the above circumstances to
get possession of Moon Cinema Hall the company had to file the
present writ petition challenging the vires of the Fifth Amendment
and the High Court Division after hearing made the rule absolute
holding amongst others that in the present writ petition the issue as
to whether the Fifth Amendment was ultra vires the Constitution
was raised and that there was clearly a conflict between the right to
property as guaranteed under the Constitution and the infringement
of this right by the Fifth Amendment.
(c) it was specifically argued before the High Court Division that there
is a conflict between the constitutional rights as provided in the
Constitution made by the representatives, delegates or agents of the
“people” and the Fifth Amendment, an Act of Parliament
purporting to take away the said constitutional rights and as held in
the case of Marbury –v- Madison, (1803) 5 US 137, the laws made
by the “people” take precedence and further where the provisions of
the Constitution and a law passed by Parliament were in conflict
with each other but were applicable to a particular situation and the
Courts had to apply the law, the Courts will always choose the
Constitution as the supreme law and reject the law passed by the
Parliament or some other body or authority.
(d) the Preamble, as well as Articles 7, 8 and 11 of the Constitution
refer to the “people” of Bangladesh and Anowar Hossain’s case
BLD (Spl. Issue) at para 52, Article 7 as a whole has been held to
be basic feature of the Constitution and because of the words “we,
the People of Bangladesh” as referred in the Preamble, the message
that comes across loud and clear is that under our Constitutional
scheme, the sovereignty lies with the “people” of Bangladesh and
Article 7(1) which provides that “All powers in Republic belong to
the people, and their exercise on behalf of the people shall be
effected only under, and by the authority of, this Constitution”
makes this beyond argument and Article 7(2) providing that: “This
Constitution is, as the solemn expression of the will of the people,
the supreme law of the Republic .....”, also unequivocally supports
this obvious proposition therefore, the impact of this part of Article
7 is that all power in the State belongs to the “people” of
Bangladesh and everyone else, every functionary in the state
whether constitutional or otherwise is subject to the will of the
“people” to whom all power is vested and this proposition will also
find support from the 19th Amendment of the Constitution (Sri
Lanka) [2003] 4 LRC 290 and Chisholm v Georgia 2 US 419
(e) it therefore follows that “We, the people of Bangladesh” being
sovereign with all powers vesting in them, every one else
discharging the functions of the Republic is the representative or
agent of the “people” and therefore, the executive, the legislature
and the judiciary are all representatives and agents of “We, the
29
people of Bangladesh” and are subject to their will and the
President, the Prime Minister, Cabinet, Chief Justice, Judges,
Attorney General, every one in the armed forces, the
administration, the law enforcement authorities are all subservient
to the will of “We, the people of Bangladesh” and they having
taken their authority to act and are answerable to the people for
every action they take and the Constitution sets the limits of
everyone’s authority and the will of the “people” being enshrined in
the Constitution, the basic features of the Constitution cannot be
changed and further it is only the other provisions, which are not
the basic features, can only be changed in accordance with the
provisions of the Constitution.
(f) the will of the people does not contemplate Martial Law or any
other laws not made in accordance with the Constitution and the
armed forces are subject to the will of the people and their oaths, as
provided in section 15(2) of the Army Act 1952, section 17(2) Air
Force Act 1953 and section 14 Navy Ordinance 1961, make it plain
and they serve the “people” and can never become the masters of
the “people” and accordingly Martial Law is unconstitutional and
illegal and it is a mischievous device not founded in any law known
in Bangladesh and that by Martial Law the whole nation is hijacked
by some people with the support of the armed forces and the whole
nation goes into a state of siege; it is like that the whole nation and
“We, the people of Bangladesh”, are taken hostage and further like
a hostage-taking situation, the hostage takers themselves recognize
that there is a superior law than their weapons which “We, the
people” put in their hands to serve us and they recognize that there
are two impediments to their taking power or assuming power, first,
the Constitution itself and so, they at first start by saying
“Notwithstanding anything the Constitution” because they
recognize that the Constitution is superior but they choose to brush
it aside and it is like a hostage-taking situation when the law
enforcers in their uniforms with their guns and cars with red and
blue flashing lights encircling the hostage takers and remind them
that there is a superior law outside which they must face at some
point of time and the second impediment to Martial Law is the
Courts of the Republic entrusted with the solemn duty to “preserve,
protect and defend the Constitution” and so every Martial Law,
immediately upon proclamation seeks to curb the powers of the
Court, particularly, the powers of the Constitutional Court under
Article 102.
(g) India also went through a “period of delinquency” between 1975
and 1977 during the regime of Indira Gandhi when she tried to
stifle the rule of law and that Bangladesh entered its “Period of
Delinquency” at its very early age in 1975 and that delinquency
continued for a long 16 years and the characteristics or hallmarks of
this “period of delinquency” in our country are several: the first
30
noticeable one is the delinquent behaviour comes from all
functionaries of the Republic, constitutional or otherwise, more
often than not starting with the armed forces obviously, closely
followed by the President or the Chief Justice and the other notable
hallmark or characteristic of the “Period of Delinquency” is that
those entrusted to “preserve, protect and defend” the Constitution
miserably failed in their sacred obligations to “preserve, protect and
defend” the Constitution and in not less than a dozen cases
throughout this period when “We, the people” sought to challenge
aspects of Martial Law, this Court miserably failed to do its duty
and it coined words like “supra constitutional”, “Constitution is
eclipsed” and phrases like” “ .... Constitution has lost its character
as the Supreme law of the country”, “ ..... no constitutional
provision can claim to be sacrosanct and immutable”, Constitution
.... subordinate to the proclamation ....”, Halima Khatuns case, and
“ ..... the supremacy of the Constitution cannot by any means
compete with the Proclamation issued by the Chief Martial Law as
in Ehteshamuddins case and “the moment the country is put under
Martial Law, .... Constitutional provision .... loses its superior
position” as in Haji Joynal Abedin case, to justify Martial Law and
these declarations of the law, made during a long period of
darkness, fall in the category of “black law” and those must be
excised from our jurisprudence now and forever so that no one can
ever again even think about overriding “the will of the people” of
Bangladesh and all must also ensure that this history never repeats
and all must recognize these faults of the past and must rectify them
now so that our conscience is cleared.
(h) the footprints that the “Period of Delinquency” leaves behind are
Martial Law Proclamations, Regulations and Orders in the form of
black laws and further, the ultimate insult to “We, the people” is the
attempt to ratify these black laws by bringing those into the
umbrella of the Constitution itself and in the present case the High
Court Division recognizing these footprints sought to erase those
once for all and since all the parties before the High Court Division
agreed that Martial Law is illegal and unconstitutional, this court
should not, indeed cannot, grant leave in this case because to do so
would be perceived by “the people of Bangladesh” in the way that
our highest judiciary is still unable, long after the “Period of
Delinquency”, to properly and adequately deal with such
delinquency and further, it would send the wrong signals to those
who wish to circumvent the “will of the people” in the Constitution
and that each of our generations must also be taught, educated and
informed about those dark days; the easiest way of doing this is to
recognize our errors of the past and reflect these sentiments in the
judgments of this Court which will ensure preservation of the
sovereignty of “We, the people of Bangladesh” forever as a true
“pole star”.
31
(i) the process of amendment of the Constitution could not affect the
basis structure of the Constitution and the High Court Division took
the view that an amendment of the Constitution cannot legitimize
any illegitimate activity and the High Court Division rightly used
the Constitution itself, namely, its basic structure as enshrined in
various articles and also Articles 142 and 150, to hold the Fifth
Amendment ultra vires, illegal and non est. which will find support
from the decisions reported in Republic of Fiji –v- Prasad [2001] 2
LRC 743, UDM-vs- South Africa (No.1) [2003] 4 LRC 98, Re: 19th
Amendment to the Constitution (Sri Lanka) [2003] 4 LRC 290,
Taione-v- Kingdom of Tonga [2005] 4 LRC 661, Njoya and others
–vs- AG (Kenva) and others [2004] 4 LRC 559.
(j) the submissions placed by the petitioners that without the Fifth
Amendment there will be a legal vacuum and the amendment has
given constitutional dispensation and has prevented chaos and
confusion has no basis and that in Shariar Rashid’s case, 18
BLD(AD) 155, on which the petitioners relied, though one of the
judges of this court discussed the need to “ensure constitutional
continuity of those acts and things done” during Martial Law but the
learned Judge did not state the basis for such need and further it is a
reference to the “acts and tings done” during that period by
government functionaries, like building roads, and payment against
those etc and so it can not be perceived that without the so called
ratification, the road will disappear or the payment made will come
back to the Government coffers and moreover in any event, these
“acts and things done” comes within closed and past transactions
have been condoned by the High Court Division and so the fear of
chaos and confession is nothing but a baseless fear which does not
withstand scrutiny and analysis.
Mr. Taufiq Newaj, Senior Advocate, the learned counsel appearing for
the respondent No.2 in both the petitions, mainly emphasizing on the rejection
of the doctrine of necessity, submitted as follows:-
(a) by the doctrine of necessity the perpetrator of an unconstitutional act
is granted judicial protection not against the “will of the people” as
signified through their representatives in the Parliament but also
against the laws in force at the time of the unconstitutional act and a
so called “successful revolution” invades political sovereignty, and
also legal sovereignty as contemplated in the Constitution of
Bangladesh and to denude those it renders those meaningless and
inoperative wholly or in part and purports to establish the primacy
of the executive organ of the State over its other two organs.
(b) even assuming that a “successful revolution” would constitute
justification for unconstitutional acts, there was no “successful
32
revolution” in Pakistan where the doctrine was first and then
repetitively, invoked to deny the people any expression of their
sovereign will after the said so-called “successful revolution” and
the so called ‘successful revolution’ was in fact a failed revolution
since it failed forever, including during the continuance of the
“revolutionary” Government, to enable the holding of a free and fair
election which is a basic constituent of democracy and the
Government born out of the so called “successful revolution” sought
devious, unwarranted and unknown doctrines of “guided
democracy” and “basic democracy” suited to the genius of the
people to deny adult franchise to the people and the perpetrator of
“successful revolution” also failed to hand over power to a
democratic government duly elected as was the case following the
general elections held in 1970, and further the perpetrator himself
sought to continue to perform the functions of the Republic through
attempts to legitimize his unconstitutional assumption of power or
intervention by embarking on further unconstitutional acts;
alternatively the perpetrator committed further Constitutional
wrongdoing by handing over the reigns of the State to yet another
perpetrator as its successor government and further the reach of the
doctrine was so extended that even an expressed will of the people,
so expressed through a general election electing their
representatives, was disregarded with the effect that there was a
collapse of the existing State and moreover it is inescapable that a
strict application of the doctrine of necessity would purport to
support the use of force by the perpetrator in disregard of
fundamental rights, support the use of collective punishment and the
killing of a people, in legal parlance, known as genocide upon the
people.
(c) the doctrine of necessity provided a misconceived and misplaced
juridical and unconstitutional justification for the benefit of the
perpetrators of unconstitutional acts seizing the machinery of the
State through its executive organ and also provided an invalid basis
for undermining the Declaration of Independence of the sovereign
people of the Republic of Bangladesh which asserted the will of the
people through their representatives in Parliament, the organ vested
with political sovereignty in a Republican State, and at the same
time unleashed a purported “licence” invokeable at any time to
shackle, denude and mutilate people’s will and to grant to a person
or entity, historically the military, the reigns of the State
undermining the historical struggle and the War of Independence
fought to assert the right of self-determination of the people as
embodied in the Constitution and providing a basis to render
meaningless the spirit, sacrifices and achievements proclaimed and
recognised in the Preamble to the Constitution and also altering the
relationship between the other two organs of State, namely, the
Judiciary and the Parliament and also destroying the bedrock of a
future by Rule of Law and the dependence of a people and State on
its Constitution.
33
Mr. Mahbubey Alam, the learned Attorney General, appearing for the
respondent Nos. 3-4 in both the petitions, submitted as follows:-
(a) though the Government filed the Civil Petition Nos. 1100 of 2006
and 1320 of 2007 against the impugned judgment but subsequently,
finding the same as correct one, did not proceed with the leave
petitions and those leave petitions having been dismissed as being
not pressed, the petitioners cannot make them substituted in the said
leave petitions and further the Government having accepted the said
judgment the petitioners, who were not parties at any stage of the
proceeding before the High Court Division, cannot file the leave
petitions challenging the said judgment specially when they, in the
leave petitions filed by them did not take any stand that they were
not aware that the present writ petition, was pending before the High
Court Division and further they, not having taken any step to
challenge the contentions as contained in the writ petition and/or
for impleading them as party to the writ petition and did not file any
leave petition immediately after the judgment of the High Court
Division, the instant leave petitions are not maintainable.
(b) the High Court Division having found Khandaker Mustaq Ahmed,
Justice A.S.M. Sayem and General Ziaur Rahman as usurpers and
aforesaid findings having not been challenged in the instant leave
petitions, the petitioners can not support purported amendments of
the Constitution made by userpers by issuing Martial Law
Proclamations, Regulations and Orders etc and further General
Ziaur Rahman, after being nominated as President by Justice A.S.M.
Sayem, an incompetent and unauthorized person, promulgated
Proclamation Order No.1 of 1977 on 23.4.1977 and then on
30.5.1977 arranged for alleged Referendum for obtaining so-called
confidence of the voters upon him only and not for the purported
amendments and the purported amendments made by him having
not been referred to the voters by way of Referendum, it cannot be
said that general public accepted the said amendments of the
Constitution made by him.
(c) in the Constituent Assembly the framers of the Constitution having
unanimously decided to incorporate the principle of secularism in
the Constitution as one of the basis character of the Constitution, the
submission of the petitioners that the secularism is not one of the
basis character of the Constitution, can not be accepted.
(d) as required under sub-article a(i) of Article 142 of the Constitution
in the Bill of the Fifth Amendment nothing has been mentioned
regarding the articles of the Constitution which were to be added,
altered, or substituted in place of the existing Articles and thus the
34
Fifth Amendment can not be treated as an Amendment of the
Constitution.
(e) there being no provisions in the Constitution for ratification of an
earlier purported amendment made by Martial Law Proclamations,
Regulations and Orders etc the alleged ratification and confirmation
of the alleged amendments purported to have been done from 15th
August, 1975 to 6th April, 1979 by the Fifth Amendment is contrary
to the provisions of Article 142 of the Constitution.
(f)the purported amendments of the Constitution were made done by
Martial Law Proclamations, Regulations, Orders etc and there being
no-provision in the Constitution to amend the Constitution in the
said manner, the purported amendment of the Constitution has
rightly been declared
illegal and invalid by the High Court Division .
(g)the Parliament passed the Fifth Amendment during Martial Law and
there being no provision in the Constitution for conducting business
of the Parliament during Martial Law, the Fifth Amendment passed
during Martial Law, can not be treated a valid amendment of the
Constitution.
(h)No Referendum having been done before purported addition of
sub-article 1A in Article 142 of the Constitution providing for
Referendum in case of amendment of the Preamble and Articles, 8,
48, 56 and Article 142 of the Constitution, the amendments in
question can not be treated as valid and legal and the High Court
Division has rightly treated the said provisions as illegal.
Mr. M.K. Rahman, the learned Additional Attorney General,
appearing for the respondent No.5 in both the petitions submits as follows :-
(a) no cause being pending before this Division, the leave petitions filed
at the instance of the third party intervener/petitioners, who have no
locus standi, can not be entertained specially when no issue of
public importance is involved in the case and further no Court
certainly will justify the imposition of Martial Law inasmuch as
Martial Law does not come within the definition of “Law” as
provided in Article 152 of the Constitution and further the
declaration of Martial Law is also not mandated by the Constitution
and accordingly, for the sake of the supremacy of the Constitution
and democratic polity, rule of law and good governance, the
judgment of the High Court Division must not be interfered with
and as such the leave petitions are liable to be dismissed in limine.
(b) as per the mandate of Article 7 of the Constitution all powers in the
Republic belong to the “people” and exercise of those powers on
35
behalf of the “people” shall be effected only under and by the
authority of provisions of the Constitution which, as the soleman
expression of the will of the people is the supreme law of the
Republic and in terms of Articles 7(2) if any other law is
inconsistent with provisions of the Constitution that other law shall
be void to the extent of the inconsistency and therefore the Fifth
Amendment is illegal and void ab-initio.
(c) no amendment to any provision of the Constitution can be made
beyond the authority of Article 142 of the Constitution, and
accordingly the amendments made to the Preamble and Articles 6,
8, 9, 10, 25, 38 and 142 of the Constitution by Martial Law
Proclamations, which is beyond the authority of Article 142, are
illegal and invalid.
(d) the Constitution did not empower any authority or power either to
impose Martial Law or the Military Rule in the country and further
the Parliament having no authority or power to ratify and validate
the illegal Martial Law Proclamations, Regulations and Orders etc
by amending any provision of the Constitution, the insertion of
paragraph 3A and 18 to the Fourth Schedule of the Constitution by
the Fifth Amendment is illegal and ultra vires and such the acts of
illegal usurpation of power by military junta cannot be given a goby
and / or validating those in the name of “temporary and
transitional provisions” under Article 150 of the Constitution.
Mr Murad Reza, the learned Additional Attorney General, appearing
for the respondent No.6 in the both the petitions, adopted the arguments of Mr
Azmalul Hossain QC, Mr Mamudul Islam and Mr Mahbubey Alam.
As it appears the petitioners were not parties in the writ petition and
after passing of the judgment of the High Court Division on 29.8.2005 the
Government and the Freedom Fighters Welfare Trust filed Civil Petition Nos.
1100 of 2006 and 1320 of 2007. In those petitions, the petiioners filed two
petitions praying for appearing as interveners on 4.3.09 and 24.3.07
respectively. In early 2009, when the government decided that they will not
press the leave petitions, the petitioners, prayed for time to file leave petitions
and accordingly the matters were adjourned. The petitioners thereupon filed
the above leave petitions on 25.5.2009 and thereafter the prayers of the
36
Government and the Freedom Fighters Welfare Association were allowed on
03.01.10. In both the petitions the petitioners stated that the High Court
Division by the impugned judgment has stripped the citizens of Bangladesh
their identity as “Bangladeshi” and also proceeded in the manner as if
secularism is a basic structure of the Constitution although the same is only a
fundamental principle of State Policy and further the High Court Division
reintroduced Articles 8 and 12 of the original Constitution which did not
contain the provisions of absolute faith and trust in Allah and the High Court
Division, without any basis, also declared inclusion of the Article 25(2) as
unlawful.
As it appears the respondents opposed the above applications raising
the point of delay of 1364 days contending that it is only on 4.3.2009 and
26.3.2007, i.e. long after passing of the judgment of the High Court Division
on 29.8.2005, the petitioners filed the above applications praying for allowing
them to seek leave and since the applications were out of time, they filed
applications praying for condonation of delay but in the said applications the
space kept for showing the number of the days sought to be condoned, was
not filed in and the said space remained completely blank and accordingly
the explanations as given in the application for condonation of delay are also
not at all satisfactory. We noticed from the judgment of the High Court
Division that various constitutional points were raised from the Bar on the
point of the power of the Martial Law authority to change the basic features
of the Constitution and the High Court Division addressed those points.
Accordingly we have decided to hear these matters on merit despite the delay.
37
The submission of the petitioners to the effect that substantial question
of law and also interpretation of the Constitution being involved the High
Court Division ought to have granted certificate under Article 103(2) suo
moto, has no substance inasmuch as the petitioners, having not required the
High Court Division to exercise its discretion in granting certificate by
formulating points of law involving Constitutional issues, cannot now
complain and as has been held in the case of Kazi Mokhlesur Rahman V
Bangladesh 26 DLR (AD) 44 the High Court Division should not grant
certificate without formulating the question of law on which certificate is to
be granted and accordingly it has been the regular practice to pray for such
certificate from the High Court Division by formulating the points of law on
the basis of which certificate is prayed for and / or formulating those points
which involved constitutional issues so that on the basis of those the High
Court Division may grant certificate.
There is also no substance to the submission of the petitioners that the
interpretation of Constitution being involved leave should be granted
inasmuch as the points as raised in the leave petitions have already been
authoritatively decided by the superior Courts which have been referred to in
the judgment of the High Court Division. Further there are decisions in
support the submissions made on behalf of the respondents that for granting
leave the primary threshold or criteria is that some “miscarriage of justice”
has resulted or that an “evil precedent” has been or will be created or that
there are reasonable grounds for sustaining the appeal. In the case of Ibrahim
–V-Emperor, AIR 1914 PC 155 it was held that the test for granting leave to
appeal must be that there are reasonable grounds for sustaining the appeal and
38
those grounds have reasonable prospects of success. In the Case of Ekushey
Television Ltd. and others V. Chowdhury Mohammod Hasan and others, 54
DLR (AD) 130, in para 83, it was held that the primary threshold or criteria
for granting leave is that there had been some “illegality” in the decision of
the High Court Division or that there had been some “miscarriage of justice”
or that an “evil precedent” has been or will be created. In the case of
Bangladesh Bank and another V. the Administrative Appellate Tribunal and
others, 44 DLR (AD) 239, in para 4, similar view was taken holding that this
Division has power to interfere in suitable cases where miscarriage of justice,
which has occurred, is very wide. However, from the discussions made
hereinbelow, it will be evident that the points raised in the leave petitions
have already been authoritatively decided by the superior Courts and the High
Court Division referring to the relevant portions of the judgments of the
superior courts, declared the Fifth Amendment is illegal and void and
ultravires the Constitution.
There is also no substance in the submission of the petitioners that the
judgment of the High Court Division is beyond the terms of the Rule in as
much as the Rule very much depicts that the vires of the Fifth Amendment
has been challenged in the writ petition which will be evident from the terms
of the Rule issued by the High Court Division as quoted earlier.As it appears
the Rule as issued, contained three parts i.e.
(a) Notification dated 31.12.71 in taking over Moon
Cinema Hall and Notification dated 15.12.72 placing
Moon Cinema Hall with the writ respondent No.3 and
subsequent actions deeds and instruments, the taking
39
thereto should not be declared to have been made
without legal authority.
(b) further to show cause as to why purported ratification
and confirmation of MLR VII of 1977, Proclamation
Order No.1 of 1977 with regard to the insertion of Para
3A to the Fourth Schedule of the Constitution by Para 18
of the Fourth Schedule of added by Fifth Amendment
Act 1 of 1979 should not be declared to have been made
without legal authority and
(c) as to why the respondent should not be directed to
hand over Moon Cinema Hall to the writ petition.
Thus it is apparent that the vires of the Fifth Amendment was very
much under challenge in the writ petition as duly reflected in the Rule.
It may be noted here that earlier we did not accept the submissions of
the petitioners to the effect that leave should be granted in the present
petitions as substantial question of law as well as interpretation of
Constitution are involved on holding that the points as raised by the
petitioners have already been authoritatively decided by the superior Courts
and that the High Court Division referring to those judgements of the superior
Courts declared the Fifth Amendment illegal, the relevant portions of the
judgement of the High Court Division containing the views of the superior
Courts relying on which the Rule was discharged, will be reproduced
hereinafter.
It may also be noted here that in the case of Asma Jilani V Government
of Punjab, PLD 1972 SC 139 the Pakistan Supreme Court reversed the
40
decision passed in the case of State V. Dosso P.L.D. 1958 (S.C.) 533 but in
case of Nusrat Ali Bhutto V. Chief of Army Staff PLD 1977 (SC) 657, Asma
Jilani’s case was not followed. However, in support of the case of the
petitioners the above case of Nusrat Ali Bhutto was referred. As it appears,
recently, the Pakistan Supreme Court, sitting in a Constitutional Bench
consisting of fourteen judges and headed by Chief Justice Iftikhar
Muhammad Choudhury, by judgment and order dated 31 July, 2009 passed in
the case of Sindh High Court Bar Association V Federation of Pakistan and
others (Constitutional Petition Nos. 8 and 9 of 2009) following Asma Jilani’s
case, disapproving the above case of Nusrat Ali Bhutto and also the case of
Jafar Ali Shah V General Parvez Musharraf PLD 2000 (SC) 869 which
followed Nusrat Ali Bhutto’s case declared the Provisional Constitutional
Order 2007, in short PCO 2007, illegal and unconstitutional and approved
Asma Jilani’s case. By the above PCO No 1 of 2007, not only new legal
order was introduced but the Constitution of Pakistan was also amended by
General Parvez Musharraf, the then President of Pakistan. The ratio
decidendi of the above judgement will have a serious impact upon all the
previous judgements including those passed in the cases of Nusrat Ali Bhutto,
Jafar Ali Shah and also others in which Martial Law and constitutional
amendments by extra constitutional instruments were justified and validated
invoking doctrine of necessity.
Next submission of the petitioners is that the High Court Division
having found that the property in question is not an abandoned property, in
terms of the principle of judicial restraint of not deciding any constitutional
issue when an issue involved in the case can be justifiably be disposed of on
41
other grounds, it was not at all necessary for the High Court Division to enter
into on the constitutional issues and to declare the Fifth Amendment
unconstitutional.
As it appears, the High Court Division was very much aware of the
above principle as is evident from its following observations in the
judgment:-
“In disposing of this Rule, we kept in our mind what A.T.M.
Afzal, J. (as his Lordship then was) aptly observed in Anwar
Hossain Chowdhury’s case 1989 BLD (Spl.)1 at para 491, page
181.
“In answering the ultimate question involved in these cases i.e.
scope of the Parliament’s power of amendment of the
Constitution, the Court’s only function is to examine
dispassionately the terms of the Constitution and the law without
involving itself in any way with all that I have indicated above.
Neither politics, nor policy of the government nor personalities
have any relevance for examining the power of the Parliament
under the Constitution which has to be done purely upon an
interpretation of the provisions of the Constitution with the help
of legal tools.”
We are also conscious of what Kemaluddin Hossain, C.J.
observed in Dr. Nurul Islam V. Bangladesh 33 DLR (AD) (1981)
201 at para-1:
“1…………As regards the constitutionality ………I like to
adhere to the well-established self-established self-set rule which
says, the Court will not declare a law unconstitutional, if the case
in which the question is raised can be properly disposed of in
some other way………………”
However, the High Court Division having found that after Moon
Cinema Hall was taken over, at first the Managing Director of the company,
the writ petitioner No. 2, on approaching the relevant authorities established
42
that Moon Cinema Hall was not an abandoned property and then sought
release of the same and when Moon Cinema Hall was not released even
though it was not found to be an abandoned property, the company filed Writ
Petition No.67 of 1976 wherein the High Court Division, after hearing, made
the Rule absolute declaring that Moon Cinema Hall was not an abandoned
property and directed the government to release Moon Cinema Hall in favour
of the company and the Government also took some steps for release of the
same but even then Moon Cinema Hall, instead of being released, was
handed over to the proforma respondent No.5 and the company then filed
contempt proceedings to enforce the above judgement of the High Court
Division and after then Martial Law was declared and under the umbrella of
the Proclamatons, Martial Law Regulation No. VII of 1977, was promulgated
on October 17, 1977 specifically providing that even if the Government had
unlawfully taken over a property as abandoned, the same shall remain as
abandoned property and any judgment obtained declaring otherwise would be
ineffective and this Martial Law Regulation No. VII of 1977 directly affected
the rights of the company and afterwards, by the Fifth Amendment dated
April 6, 1979, this Martial Law Regulation No. VII of 1977 was purportedly
ratified and given effect to and because of the Fifth Amendment, the contempt
proceedings failed and the company could not get the fruits of the above
judgment and that after the period of Martial Law was brought to an end on
April 9, 1979, the company filed Writ Petition No.802 of 1994 but the same
was summarily rejected by the High Court Division on the ground that the
power of judicial review of the High Court Division in such cases was taken
away by the Fifth Amendment and the company in the above writ petition did
43
not challenge the vires of the Fifth Amendment and then being aggrieved, the
company filed C.A. No.15 of 1997 before this Division and made an attempt
therein to challenge the vires of the Fifth Amendment but this Division did
not entertain the same on the reasonings that the vires of the Act No.1 of 1971
is not under challenge in this appeal. In the above situation the company, to
protect its property had no other alternative but to file the present writ petition
challenging the vires of the Fifth Amendment and that the issue as to whether
the Fifth Amendment was ultra vires the Constitution was duly raised in the
above writ petition and that there was clearly a conflict between the right to
property as guaranteed under the Constitution and the infringement of this
right by the Fifth Amendment.
Further, this principle of judicial restraint is not an invariable rule and
the Courts, taking the view that constitutional issues should be resolved as
early as possible, decided the constitutional issues. As will be evident that in
Dr. Nurul Islam’s case (supra) though Kamaluddin Hossain, CJ and
Shahabuddin, J (as his Lordship then was) having found the compulsory
retirement of Dr. Nurul Islam to be vitiated because of malafide, refrained
from deciding the constitutional issue but the majority judges addressed to the
constitional question of violation of the equality clause and decided it. Further
in the present case, as stated earlier, the High Court Division in Writ Petition
No. 67 of 1976 having found that the property in question was not an
abandoned property released Moon Cinema Hall but even then it was not
handed over to the company in view of the embargo provided in Martial Law
Regulation No. VII of 1977 and this Division, earlier in Civil Appeal No. 15
of 1997, brought the matter into sharp focus by dismissing the appeal on the
44
ground that the validity of the Fifth Amendment has not been challenged in
Writ Petition No.802 of 1994 and in this compelling situation the company,
had no other alternative but to file the present writ petition challenging the
vires of the Fifth Amendment and in the facts and circumstances as involved
in the present case, it can not be said that the present writ petition could be
disposed of without deciding the constitutional question i.e. whether the Fifth
Amendment is ultra vires or not.
Before we go to the question as to whether all Proclamations, Martial
Law Regulations and Orders promulgated/ made during the period from
August 15, 1975 upto April 9, 1979 being promulgated/ made by usurpers are
illegal, void and non-est and further the Second Parliaments itself, even by
two-third majority, had no power to enact any law which is repugnant to the
basic feature of the Constitution and accordingly the Fifth Amendment is
ultravires the Constitution, the history leading to the emergence of erstwhile
Pakistan on August 14, 1947, the constitutional developments in erstwhile
Pakistan, the Proclamation dated April 10, 1971, the emergence of
Bangladesh in the map of the globe, the aims and objectives of the
Constitution, the supremacy of the Constitution, independence of judiciary
and its power of judicial review, the implication of the decisions passed by
this Division in the case of Halima Khatoon, Jainal Abedin, Ehteshamuddin
and Nasiruddin in view of the provision of Article 111 of the Constitution,
estoppel, waiver and acqueisance, resjudicata, implication of the provisions of
Article 150 of the Constitution etc will be relevant and as it appears the High
Court Division also discussed the above in its judgment.
45
The history, as we find from the judgment of the High Court Division,
shows that the glory of independent Bengal faded away and sank in Palassy
due to the treachery and betrayal of Mir Jafar Ali Khan Bengali rebels then
successfully fought many a battles against British forces. The year of 1857
saw the War of Independence of Sepoys which originated from Bengal.
However, Queen Victoria by a Proclamation on November 1, 1858 made
India a part of the British Empire and by the Government of India Act 1935,
created 11 Provinces and Princely States. It provided governance of those
Provinces by the elected representatives of the people. In 1937, A K Fazlul
Haque, became the first Prime Minister of the province of Bengal. On March
23, 1940 he moved the famous Lahore Resolution for the establishment of
separate states for the Indian muslims. In 1943 Khawaza Nazimuddin became
next Prime Minister of Bengal. In 1946, on Pakistan issue, under the
leadership of Hussain Shahid Suharwardy the Muslim League secured 116
seats out of 119 and achieved landslide victory in Bengal amongst all the
provinces in India. In that view of above it can be said that it was the Bengali
Muslims who spearheaded and voted Pakistan into existence for the entire
Muslim population of the Indian Subcontinent.
The Dominion of Pakistan formally came into existence on August 14,
1947 and M.A. Jinnah, was elected the first President of the Constituent
Assembly of Pakistan. In his inaugural address on September 11, 1947 he
outlined basic ideals on which the State of Pakistan was going to flourish
which are as follows :
...... The first observation that I would like to make is this: You
will no doubt agree with me that the first duty of a Government
46
is to maintain law and order, so that the life, property and
religious beliefs of its subjects are fully protected by the state.
....... If you change your past and work together in a spirit that
everyone of you, no matter to what community he belongs, no
matter what relations he had with you in the past, no matter what
is his colour, caste or creed, is first second and last a citizen of
this State with equal rights, privileges and obligations, there will
be no end to the progress you will make.
...... You are free; you are free to go to your temples, you are free
to go to your mosques or to any other places or worship in this
State of Pakistan. You may belong to any religion or caste or
creed- that has nothing to do with the business of the State.
...... Now, I think we should keep that in front of us as our ideal
and you will find that in course of time Hindus would cease to be
Hindus and Muslims would cease to be Muslims, not in the
religious sense, because that is the personal faith of each
individual , but in the political sense as citizens of the State.”
As it appears the above speech echoed Secular State.
Further while addressing a gathering of the Civil officers of
Baluchistan on 14 February 1948 M A Jinnah said :
“….. until we finally frame our constitution , which of course,
can only be done by the Constituent Assembly; our present
provisional Constitution based on the fundamental principles of
democracy, not bureaucracy or autocracy or dictatorship, must be
worked ……”
As it appear the above speech also echoed that autocracy and
dictatorship, thus military rule direct or indirect, is to be shunned.
However, as we have experienced the dreams of the people of the then
East Pakistan were soon shattered in no time and the history of Pakistan was
ridden with palace clique, deception and disappointment. The people of the
then East Pakistan discovered that they were reduced to second class citizens,
creation of Pakistan brought them only a change of rulers and for all practical
puposes the then East Pakistan became a colony of the then West Pakistan.
The process started with the delay in framing the Constitution for Pakistan
47
although in India the Constitution was framed and adopted by the Constituent
Assembly on November 26 1949. Ultimately when the draft Constitution for
Pakistan was ready for approval by the Constituent Assembly in December
1954, the Constituent Assembly itself was dissolved by Golam Mohammad,
the then Governor General of Pakistan, who was never a politician and was a
bureaucrat and was elected as member of Constitutional Assembly from the
quota of East Bengal in June 1948 and retained membership until July 1953.
Regarding the past history of constitutional misadventures by the civil
and military bureaucrats in Pakistan who never permitted constitutional
government to settle down, the High Court Division quoted the view
expressed by Yaqub Ali , J., in Asma Jilani’s case at page –212 regarding
constitutional mishaps which are as follows:-
“Pakistan was faced with innumerable difficulties from the very
start. Firstly, ………………………………….On the 11th
September 1951, Khan Liaqat Ali Khan, the first Prime Minister
w as assassinated.
A tussle for grabbing power among persons who held positions
of advantage in the Government thereupon ensued and under its
weight the foundation of the State started quivering. Eventually
Mr. Ghulam Muhammad, an ex-civil servant, who was holding
the portfolio of Finance became the Governor-General and
Khawaja Nazimuddin as Leader of the majority party in the
Constituent Assembly assumed the Office of the Prime Minister.
In April 1953, Mr. Ghulam Muhammad dismissed Khawaja
Nazimuddin and his Cabinet although he commanded clear
majority in the Constituent Assembly and made another civil
servant Mr. Muhammad Ali Bogra, Pakistan’s Ambassador to
the United States of America, as the Prime Minister. Among
others General Muhammad Ayub Khan,Commander-in-Chief of
Pakistan Army, joined his Cabinet as Defence Minister. This was
the first constitutional mishap of Pakistan as Governor- General
Mr. Ghulam Muhammad was only a constitutional head. He had
to act on the advice given to him by the Prime Minister and
under the Constitutional Instruments (Indian Independence Act,
48
1947, and the Government of India Act, 1935) he had no legal
authority to dismiss the Prime Minister and assume to himself
the role of a sovereign. ……………………….
By 1954, the draft of the Constitution based on the Objectives
Resolution had been prepared with the assent of the leaders of
the various parties in the Constituent Assembly when on the 24th
October 1954, Mr. Ghulam Muhammad knowing full well that
the draft Constitution was ready, by a Proclamation, dissolved
the Constituent Assembly, and placed armed guards outside the
Assembly Hall. This was the second great mishap of Pakistan.
The order of the Governor-General was challenged by Maulvi
Tamizuddin Khan, President of the Constituent Assembly, in the
Chief Court of Sind by a Writ Petition filed under section 223-A
of the Government of India Act, 1935, which was added by the
Government of India (Amendment) Act, 1954, passed by the
Constituent Assembly, on 16th July 1954. It empowered the
High Courts to issue Writs of mandamus, certiorari, quo
warranto and habeas corpus. The order passed by Mr. Ghulam
Muhammad was challenged as unauthorised by the Indian
Independence Act or the Government of India Act, void and of
no legal effect.
In defence of the Writ Petition, the Governor-General and the
Members of the newly-constituted Cabinet, cited as respondents,
inter alia pleaded that the Chief Court of Sind had no jurisdiction
to Issue a Writ under the Government of India (Amendment)
Act, 1954, as it had not received the assent of the Governor
General.
A Full Bench of the Chief Court overruled the objection raised
by the respondents and held that the order dissolving the
Constituent Assembly was illegal and issued a Writ restraining
the Governor-General, his newly appointed Cabinet Ministers;
their agents and servants from implementing or otherwise giving
effect to the Proclamation of 24th October 1954, and from
interfering directly or indirectly with the functions of the
Constituent Assembly.
The Governor-General and his Ministers thereupon filed an
appeal in the Federal Court being Constitutional Appeal 1 of
1955 reiterating the objection that the Government of India
(Amendment) Act, 1954, did not become a law as it had not
received the assent of the Governor-General.
By a majority judgment delivered by Muhammad Munir, C. J.-
the appeal was allowed and the writ petition was dismissed on
the finding that since section 223A of the Government of India
49
Act under which the Chief Court of Sind issued the Writ had not
received such assent, it was not yet law and, therefore, that Court
had no jurisdiction to issue the Writs.
Cornelius, J. (as he then was) differed with this view and
recorded a dissenting judgment holding that neither the British
soverign nor the Governor-General as such was a part of the
Constituent Assembly. The assent of the Governor-General was,
therefore, not necessary to give validity to the laws passed by the
Constituent Assembly. With great respect to the learned Chief
Justice the interpretation placed by him on sections 6 and 8 of the
Indian Independence Act, 1947, as a result of which the appeal
was allowed, is ex facie erroneous though we do not propose to
examine in detail the reason given in the judgment.
……………………………
The question of the validity of section 2 of the Emergency
Powers Ordinance, 1955, came up before the Court in the case of
one Usif Patel (1) within a few days of the decision in Maulvi
Tamizuddin Khan’s case. On the short ground that under section
42 of the Government of India Act, 1935, the Governor- General
had no power to make by Ordinance any provision as to the
Constitution of the country. The Emergency Powers Ordinance
IX of 1955 was held to be invalid whereupon the Governor-
General made a Special Reference to the Federal Court which
was answered on the 16th May 1955. Dealing with the validity of
this action the Court expressed the opinion that the Constituent
Assembly and not the Constituent Convention as was proposed
to be set up by the Governor-General would be competent to
exercise all powers conferred by the Indian Independence Act,
1947, and secondly that in the situation presented in the
Reference, the Governor-General had during the interim period
the power under the common law, special or state necessity of
retrospectively validating the laws listed in the Schedule to the
Ordinance, 1955, and all those laws now decided upon by the
Constituent Assembly or during the aforesaid period shall be
valid and enforced in the same way on which day they purported
to have come into force.
Cornelius, J.-as he then was, differed with the opinion of the
Court that the Governor-General could on the basis of the State
necessity validate the laws which were declared invalid by the
Federal Court and opined that there was no provision in the
Constitution and no rule of law applicable to the situation, by
which the Governor-General can, in the light of the Court’s
decision in the case of Usif Patel by Proclamation or otherwise,
validate laws enumerated in the Schedule to the Emergency
Powers Ordinance, 1955, whether temporarily or permanently.
50
In accordance with the opinion given by the Federal Court, a new
Constituent Assembly was elected and it eventually succeeded in
framing a Constitution which came into force on the 23rd March
1956. …………………………………….…………
A National Assembly was yet to be elected under the 1956-
Constitution when Mr. Iskander Mirza who had become the first
President by a Proclamation issued on the 7th October 1958,
abrogated the Constitution; dissolved the National and Provincial
Assemblies and imposed Martial Law throughout the country:
General Muhammad Ayub Khan Commander-in-Chief of the
Pakistan Army, was appointed as the Chief Administrator of
Martial Law. This was the third great mishap which hit Pakistan
like a bolt from the blue.…………………………..
On the 13th October 1958, Criminal Appeals State v. Dosso and
three other connected matters came up for hearing before the
Court………
Delivering the majority judgment of the Court Munir, C. J. held
that as Art 5 of the late Constitution itself had now disappeared
from the new Legal Order, the Frontier Crimes Regulation (III of
1901) was by reason of Article IV of the Laws (Continuance in
Force) Order, l958, still in force and all proceedings in cases in
which the validity of that Regulation had been called in question
having abated the convictions of the respondents recorded by the
Council-of-Elders was good .………………
The judgment in State v. Dosso set the seal of legitimacy on the
Government of Iskander Mirza though he himself was deposed
from office by Muhammad Ayub Khan, a day after the judgment
was delivered on the 23rd October 1958, and he assumed to
himself the office of the President. The judgments in the cases
Maulvi Tamizuddin Khan; Governor-General Reference 1 of
1955 and The State v. Dosso had profound effect on the
constitutional developments in Pakistan. As a commentator has
remarked, a perfectly good country was made into a laughing
stock. A country which came into being with a written
Constitution providing for a parliamentary form of Government
with distribution of State power between the Executive,
Legislature, and the Judiciary was soon converted into an
autocracy and eventually degenerated into military dictatorship.
From now onwards people who were the recepients of delegated
sovereignty from the Almighty, ceased to have any share in the
exercise of the State powers. An all omnipotent sovereign now
ruled over the people in similar manner as the alien commander
of the army who has conquered a country and his “will” alone
regulates the conduct and behaviour of the subjugated populace.
Martial Law remained in force till the 7th of June 1962, when in
pursuance to a Mandate he had obtained by some kind of
51
referendum Muhammad Ayub Khan gave a Constitution to the
country. Under it he himself became the first President; revoked
the Proclamation of 7th October 1958 and lifted Martial Law.
……..(page-220)
……… Mr. Iskander Mirza, and Mr. Ayub Khan had joined
hands on the night between 7th and 8th October 1958, to
overthrow the national legal order unmindful of the fact that by
abrogating the 1956-Constitution they were not only committing
acts of treason, but were also destroying for ever the agreement
reached after ‘laborious efforts between the citizens of East
Pakistan and citizens of West Pakistan to live together as one
Nation. The cessation of East Pakistan thirteen years later is, in
my view, directly attributable to this tragic incident……….
In early 1965 Muhammad Ayub Khan was re-elected as
President. The general impression in the country was that the
election was rigged. Towards the end of 1968, an agitation
started against his despotic rule and the undemocratic
Constitution which he had imposed on the country. The agitation
gathered momentum every day and was accompanied by wide
spread disturbances throughout the country. In February 1969,
Muhammad Ayub Khan called a round table conference of
political leaders for resolving the political issues which had led
to the disturbance. A solution was near insight, when all of a
sudden Muhammad Ayub Khan decided to relinquish the office
of the President and asked the Defence Forces to …………
The Mandate given by the outgoing President to the
Commander-in-Chief was thus to fulfill his constitutional
responsibilities; to restore law and order; and to carry out his
legal duty in this behalf.
Muhammad Yahya Khan, Commander-in-Chief, who had taken
an oath, that he will be faithful to the Constitution of 1962 and to
Pakistan, however, in disregard of his constitutional and legal
duty by a Proclamation issued on the 26th March 1969,
abrogated the Constitution ; dissolved the National and
Provincial assemblies and imposed Martial Law throughout the
country. This was the fourth great constitutional mishap which
befell Pakistan in less than 16 years.
However as it appears, only a part of the history was reflected in the
above portion of the judgment and the unfathomed misery, neglect and
discrimination suffered by the people of the then East Pakistan in all spheres
52
of life were not reflected therein. As it appears in 1966 one of the major
parties launched a six point constitutional program for economic salvation
and autonomy for the then East Pakistan but was not at all heeded to either by
Field Marshal Ayub Khan or thereafter by General Yahya Khan. It may be
noted here that the economists of the then east Pakistan also protested against
the Five Year Development Plan as the same neglected the interest of the
people of the then East Pakistan. However, the first general election in
earstwhile Pakistan was held in 1970 while by that time as many as four
general elections were already held in India although both the countries
achieved independence at the same time.
The High Court Division then quoted the following statement of
Yaqub Ali, J. in Asma Jilani’s case at page.223:
“On the 30th March 1970, Yahya Khan promulgated the
Legal Framework Order and under its provisions, elections
were held in December 1970, to the National and
Provincial Assemblies under the supervision of a Judge of
this Court acting as the Chief Election Commissioner.
After a good deal of political manoeuvring, the National
Assembly was summoned by Muhammad Yahya Khan for
the 3rd March 1971. However, shortly before that he
postponed the session indefinitely, Awami League, the
dominant political party of East Pakistan and who held a
clear majority in the National Assembly reacted to this
decision very sharply. To meet the situation Military
action was taken on the 25th March 1971, which lasted for
several months. These strong measures had, however, no
effect on the events which were shaping fast in the Eastern
Wing. It led to an armed insurrection by Awami League
and their supporters.”
It also appears that the last sentence of the above quotion i.e. “it led to
an armed insurrection by Awami League and their supporter” also does not
depict the correct picture. In fact, on 25 March, 1971 the Pakistan army
53
unleashed a reign of terror. The genocide committed by them is one of the
worst known in the history. As a result, struggle for political autonomy and
economic parity, so long pursued, transformed into war of liberation which
started at the dead of night following 25 March, 1971 and indepedence of
Bangladesh was proclaimed. It was followed by a formal Proclamation of
Independence issued on 10th April, 1971 at Mujibnagar. The war of liberation
continued for about nine months and ended on 16 December, 1971 and a
nation was ultimately born with blood and tears, and Bangladesh emerged in
the map of the globe.
In respect of the above Proclamation of Indepenedence dated 10th April,
1971 B. H. Chowdhury, J (as his Lordship then was) page 1 in Anwar
Hossain’s case (supra) held as follows:-
“This declaration envisages the following:
(a) Because of the unjust war and genocide by the Pakistani authorities
it became “impossible for the elected representatives of the people of
Bangladesh to meet and frame a Constitution” although General Yahya
Khan summoned the elected representatives earlier “to meet on the 3rd
March, 1971 for the purpose of framing a Constitution”;
(b) The elected representatives duly consitute them self into a
Constituent Assembly because of the “mandate given to us by the
people of Bangladesh whose will is supreme”
(c) It declared Bangladesh to be sovereign people’s Republic in order to
ensure “equality, human dignity and social justice.
(d) Bangabandhu Sheikh Mujibur Rahman was declared to be President
and Syed Nazrul Islam Vice-President “ till such time as a Constitution
is framed”;
(e) President or in his absence the Vice-President “shall have the power
to appoint a Prime Minister and such other Ministers as he considers
necessary”. It was the presidential system that was envisaged;
f) President or in his absence the Vice-President “shall have the power
to summon and adjourn the Constituent Assembly.”
54
It will be apparent that from the very beginning the framers of the
Constitution dreamt of a democratic form of Government, not a Martial
Law Government or a dictatorship or an autocratic form of
Government”.
In the above case B. H Choudhury, J at para 47 page 58 also held as
follows:
“It will be noticed that the proclamation took notice of the “mandate”
for framing a Constitution for the Republic so as to ensure “equality,
human dignity and social justice” and a democratic form of
Government”.
Further, having regard to the past history of constitutional
misadventures by the civil and military bureaucrats in Pakistan who never
permitted constitutional governments to settle down examples of which have
been narrated earlier while narrating the history leading to the emergence
independent Bangladesh, the framers of the Constitution felt it necessary to
make some declarations in the Preamble, Article 7 and also in some other
Articles which brilliantly comprehends the entire jurisprudence of the
constitutional law and constitutionalism in Bangladesh including the
Supremacy of the Constitution.
Accordingly unlike Preamble of many other countries, the Preamble of
our original Constitution has laid down bare in clear terms the aims and
objectives of the Constitution and in no uncertain terms it spoke of
representative democracy, rule of law, and the supremacy of the Constitution
as the embodiment of the will of the people of Bangladesh.
The second, third and fourth paragraph of the Preamble provides the
aims and objectives which are as follows:-
55
“Pledging that the high ideals of nationalism, socialism,
democracy and secularism, which inspired our heroic people to
dedicate themselves to, and our brave martyrs to sacrifice their
lives in, the national liberation struggle, shall be the fundamental
principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to
realise through the democratic process a socialist society, free
from exploitation -- a society in which the rule of law,
fundamental human rights and freedom, equality and justice,
political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and
defend this Constitution and to maintain its supremacy as the
embodiment of the will of the people of Bangladesh so that we
may prosper in freedom and may make our full contribution
towards international peace and co-operation in keeping with the
progressive aspirations of mankind”
All the provisions that followed have been structured accordingly to
achieve those aims and objectives.
Further Article 7 of the Constitution provides as follows:
“7. (1) All powers in the Republic belong to the people, and
their exercise on behalf of the people shall be effected
only under, and by the authority of this Constitution.
(2 ) This Constitution is, as the solemn expression of the
will of the people, the supreme law of the Republic,
and if any other law is inconsistent with this
Constitution that other law shall, to the extent of the
inconsistency, be void”.
As it appears as early as in 1973, in the case of A.T. Mridha V. State 25
DLR (1973) 335, B. H. Chowdhury, J on the concept provided in Artilce 7
held at para-10 page-344:
“In order to build up an egalitarian society for which
tremendous sacrifice was made by the youth of this country in
the national liberation movement, the Constitution
emphasises for building up society free from exploitation of
man by man so that people may find the meaning of life.
After all, the aim of the Constitution is the aim of human
happiness. The Constitution is the supreme law and all laws
56
are to be tested in the touch stone of the Constitution (vide
article 7). It is the supreme law because it exists, it exists
because the Will of the people is reflected in it.”
It also appears that in the case of Md. Shoib V. Government of
Bangladesh 27 DLR(1975) 315 on the concept as provided in Article 7 was
noticed by D.C. Bhattacharya, J who at para-20, page-325 held as follows:
“In a country run under a written Constitution, the
Constitution is the source of all powers of the executive
organs, of the State as well as of the other organs, the
Constitution having manifested the sovereign will of the
people. As it has been made clear in article 7 of the
Constitution of the People’s Republic of Bangladesh that the
Constitution being the solemn expression of the will of the
people, is the Supreme law of the Republic and all powers
of the Republic and their exercise shall be effected only
under, and by the authority of, the Constitution. This is a
basic concept on which the modern states have been built
up”.
In Anwar Hossain’s case B.H. Chowdhury J. analysed Article 7 in this
manner at para-52, page-60:
52. “On analysis the Article reveals the following:
(a) All powers in the Republic belong to the people. This is the
concept of sovereignty of the people. This echoes the words of
the proclamation “by the mandate given to us by the people of
Bangladesh whose will is supreme”.
(b) This exercise on behalf of the people shall be effected only
under, and by the authority of this Constitution. Limited
government with three organ performing designated functions is
envisaged. In the Proclamation it was said the President “shall
exercise all the Executive and Legislative powers of the
Republic” “till such time as Constitution is framed” and he will
“do all other things that may be necessary to give to the people
of Bangladesh an orderly and just Government. Hence separation
of Powers emerges as a necessary corollary of designated
functions;
(c) Supreme Law of the Republic. That points to supremacy of
the Constitution because;
57
(d) Any law is void to the extent of inconsistency with the
Supreme Law (i.e. the Constitution) which therefore
contemplates judiciary;
(e) Supreme Court with plenary judicial power for maintenance
of the supremacy of the Constitution”.
It also appears that Mustafa Kamal, J. (as his Lordship then was) in
Kudrat-E-Elahi Panir V. Bangladesh 44 DLR (AD) (1992) 319, in
acknowledging its importance, at para-72, held that Article 7 says that all
powers in the Republic belong to the people.
The High Court Division, referring to the Article 7 of the Constitution,
held as follows :
“Article 7(1) emphatically proclaims that all powers of the
Republic belong to the people and their exercise on their
behalf shall be effected only under and by the authority of
this Constitution.
Article, 7(2) is equally significant. It proclaimed that the
Constitution is the Supreme Law of the Republic being the
solemn expression of the will of the people that any other
law which is inconsistent with the Constitution that other
law shall, to that extent of the inconsistency, be void.
Article-7 is an unique one and is not found in any other
Constitution. It emphatically without any ambiguity,
declares the supremacy of the Constitution in no uncertain
terms”.
Thus Article 7 declares the Supremacy of the Constitution as stated in
the fourth paragraph of the Preamble and thus is the touch-stone in the
construction of the Constitution and provides for undoubted Supremacy of the
Constitution. It is also settled that Article 7 is a basic feature of the
Constitution.
It also appears the second paragraph of the Preamble of the original
Constitution also spells out the high ideals of nationalism, socialism,
58
democracy and secularism which was also reflected in Article 8 of the
Constitution. The High Court Division found that our liberation war was
fought on those high ideals and those high ideals inspired our heroic people to
dedicate themselves and our brave martyrs to sacrifice their lives in the
national liberation struggle and those ideals being the basis of our nationhood
shall be the fundamental principles of the Constitution.
It also appears that the framers of the Constitution had the foresight to
apprehend that this country might not always be served by wise conscientious
and true patriotic persons, rather as observed by Justice Davis in Ex Parte
Milligan, might sometimes be governed by ‘wicked men, ambitious of power,
with hatred of liberty and contempt of law’ who, in their self-interest, may do
away with the above noted high ideals of our martyrs and as such, in their
wisdom, spelt out those high ideals both in the Preamble and also in the
articles of the Constitution so that those fundamental principles shall remain
permanently as the guiding principles and as the ever lasting light house for
our Republic.
However, as it appears, the apprehension of the framers of the
Constitution proved to be right. In 1975, Martial Law was imposed in the
country making the Constitution subvervient to Martial Law Proclamation
Regulations and Orders and various provisions of the Constitution was
wrecked by the usurpers. We will deal with this matter letter on.
Now regarding the supremacy of the Constitution, it is well settled that
in the countries which have written Constituition, the Constitution is supreme
and further a written constitution is itself a limitation on the power of the
government. In this regard the following views were expressed by B. H.
59
Chowdhury, J in Anowar Hossain’s case at paragraphs -145-148, pages-83-
86:-
“145. It does not need citation of any authority that the
power to frame a Constitution is a primary power whereas
a power to amend a rigid constitution is a derivative power
derived from the Constitution and subject at least to the
limitations imposed by the prescribed procedure.
Secondly, laws made under a rigid constitution, as also the
amendment of such a constitution can be ultra vires if they
contravene the limitations put on the law making or
amending power by the Constitution, for the Constitution
is the touch stone of validity of the exercise of the powers
conferred by it. But no provision of the Constitution can
be ultra vires because there is no touch stone outside the
Constitution by which the validity of a provision of the
Constitution can be judged. (See M. H-Seervai,
Constitutional Law of India at page-(1522-23).
146. Professor Baxi while talking about Indian
Constitution said that the Supreme Court reiterated that
what is supreme is the Constitution; “neither Parliament
nor the judiciary is by itself supreme. The amending
power is but a power given by the Constitution to
Parliament; it is a higher power than any other given to
Parliament but nevertheless it is a power within and not
outside of, the Constitution ……………Article 368 is one
part of the Constitution. It is not and cannot be the whole
of Constitution”. (See Indian Constitution Trends and
Issues at Page- 123)”.
147. Professor K.C. Wheare in Modern Constitutions
quoted Alexander Hamilton in the Federalist when he said:
“There is no position which depends on clearer principles
than that every act of a delegated authority, contrary to the
tenor of the Constitution under which it is exercised, is
void. No legislative act, therefore, contrary to the
Constitution can be valid. To deny this would be to affirm
that the deputy is greater than his principal; that the
servant is above his master, that the representatives of the
people are superior to the people themselves; that men
acting by virtue of powers may do not only what their
powers do not authorize, but what they forbid. And he
concludes that “the Constitution ought to be preferred to
the Statute, the intention of their agents”.
148. Professor Wheare further mentioned that once a
Constitution is enacted, even when it has been submitted
60
to the people for approval, it binds thereafter not only the
institutions which it establishes, but also the people itself.
They may amend the Constitution, if at all, only by
methods which the Constitution itself provides (Page 89-
90). He further says “A Constitution cannot be disobeyed
with the same degree of lighteartedness as a Dog Act. It
lies at the basis of political order; if it is brought into
contempt, disorder and chaos may soon follow” (Page
91)”.
B.H. Chowdhury J, on the basis of the above, observed that this nation
has learnt its bitter lessons to the consequence of disobedience of the
Constitution.
In the above judgment B. H. Chowdhury, J, upholding the supremacy
of the Constitution and that our Constitution being a written constitution is
also a rigid one, also quoted as follows at paragraphs -181-182, pages-92-93:
“181. K.C. Wheare says: “Constitutional Government
means something more than Government according to
terms of a Constitution. It means Government according to
rule as opposed to arbitrary Government, it means
Government limited by terms of a constitution not
Government limited only by the desire and capacity of
those who exercise powers”. ..............................
..............................................................................................
“K.C. Wheare observed .................................................
The real justification of Constitutions, the original idea
behind them is that of limiting Government and of
requiring those who govern to conform to the law and
usage. Most Constitutions as we have been seen do
purport to limit the Government “and if in turn a
Constitution imposes restriction upon the powers of the
institution it must be said” then the courts must decide
whether their actions transgress those restrictions and in
doing so, the Judge must say what the Constitution means.
The substance of the matter is that while it is the duty of
every institution established under the authority of a
Constitution and exercising powers granted by
Constitution, to keep within the limits of those words, it is
the duty of the Court, from the nature of their function to
say what these limits are? and that is why courts come to
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interpret a Constitution”. (Page 174, Modern
Constitution).
182. E.C.S. Wade and G. Godfrey Phillips in
Constitutional and Administrative Law considered the
question of the doctrine of legislative supremacy. The
authors pointed out that the doctrine of legislative
supremacy distinguishes the United Kingdom from those
countries in which a written constitution imposes limits
upon the legislature and entrusts the ordinary courts
whether the acts of the Legislature are in accordance with
the Constitution. It is observed:
“In a constitutional system which accepts judicial
review of legislation, legislation may be held invalid
on a variety of grounds: for example. because it
conflicts with the separation of powers where this is a
feature of the Constitution, (Liyanage v. R [1967]
A.C. 259) or infringe human rights guaranteed by the
Constitution, (E.G. Aptheker v. Secretary of State 378
U.S. 500 (1964) (Act of U.S. Congress refusing
passports to Communists held a unconstitutional
restriction on right to travel) or has not been passed in
accordance with the procedure laid down in the
Constitution (Harris v. Minister of Interior 1952(2)
S.A. 428)”.
In the above case Shahabuddin Ahmed, J at para-272 page-118, also
upheld the Supremacy of the Constitution in the following manner:
“In this case we are to interpret a Constitution which is referred
to, as the will of the people and supreme law of the land and as
such it is a most important instrument. But its preeminance is not
derived only from the fact that it is the supreme law of the land;
it is pre-eminent because it contains lofty principles and is based
on much higher values of human life. On the one hand, it gives
out-lines of the State apparatus, on the other hand, it enshrines
long cherished hopes and aspirations of the people; it gives
guarantees of fundamental rights of a citizen and also makes him
aware of his solemn duty to himself, to his fellow citizen and to
his country.”
Considering the above legal position the High Court Division
concluded as follows :
“From a reading of the above Judgments, it would show that nobody
denied the supremacy of the Constitution. Even the
62
Attorney General accepted the supremacy of the Constitution,
and so also the Court”.
It has been argued on behalf of the petitioners that (a) Parliament being
a sovereign body and it also does not come within the definition of ‘person’
as provided in Article 152 of the Constitution, the High Court does not have
any jurisdiction to declare an Act of Parliament invalid and (b) while making
any judicial review of any Act of Parliament, Articles 7 and 26 are to be
followed in letter and spirit.
While discussing the Supremacy of the Constitution earlier we have
found that Article 7 having declared the supremacy of the Constitution there
must be some authority to maintain and preserve the supremacy of the
Constitution and there can be no doubt that in an entrenched constitution
judiciary must be that authority. Starting from Marbury V. Madison, (1803)
there are numerous instances where the Court functioning under a written
constitution upheld this jurisdiction of judicial review of the superior Courts.
The High Court Division discussed this issue in details as follows :
“Article 55(2) of the Constitution of Bangladesh vests the
executive power of the Republic on the Prime Minister
while under Article 65(1), the legislative powers are vested
on the Parliament which is the House of the Nation.
Similarly, Article 94(1) provides for the establishment of the
Supreme Court of Bangladesh. Article 114 provides for the
subordinate courts. These three distinct branches of the
Republic commesurate with the Doctrine of the Separation
of Powers propounded by Baron Montesquieu. In his De l
‘Esprit des Lois (1748), he stressed the importance of the
independence of Judiciary :……..
“When the legislative and executive powers are united in
the same person, or in the same body of magistrates, there
can be no liberty…Again, there is no liberty if the power of
judiging is not separated from the legislative and executive.
If it were joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control; for the
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judge would then be the legislator. If it were joined to the
executive power, the judge might behave with violence and
oppression. There would be an end to everything, if the
same man, or the same body, whether of the nobles or the
people, were to exercise those three powers, that of enacting
laws, that of executing public affairs, and that of trying
crimes or individual causes.”( (Quoted from Hilaire Barnett
on Constitutional and Administrative Law, Fourth Edition,
2002). (page-106) …….
The United States of America is the first Republic which
appears to have accepted the doctrine of separation of
powers in the first three Articles of its Constitution.
In the United States, the Supreme Court in the last years of
the 18th century, started to exercise its power of judicial
review in deciding the constitutionality of Federal and State
laws. In Hylton V. U.S(1796) and in Calder V. Bull(1798),
the Court, However, after consideration, upheld the
legislation.
In Marbury V. Madison (1803), William Marbury under a
provision of the Judiciary Act of 1789, prayed to the
Supreme Court for issuing a writ of mandamus, compelling
James Madison, the Secretary of State, to deliver him his
commission for his appointment as justice of the peace.
Marbury was one of the ‘midnight judges’, appointed at the
last-minute of the tenure of President Adams. The President,
however, had acted within constitutional statute and all the
appointments were confirmed by the Senate. But
unfortunately for Marbury, Thomas Jefferson, the new
President, took office on March 4, 1801, before his
commission could be delivered to him. It was thereafter
never delivered presumably on the direction of the new
President.
John Marshall was a Federalist. He actively participated in
the American war of Independence. He was appointed as the
Chief Justice of the U. S. Federal Supreme Court by
President Adams in early 1801.
The Court found that the Constitution limited the original
jurisdiction of the Supreme Court only in two types of
cases, namely, the cases affecting the ambassadors and
those in which a State shall be a party but in all other cases
the Supreme Court shall have appellate jurisdiction, not
original. As such, the request of Marbury for mandamus was
denied.
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Normally, the matter would have been ended there but Chief
Justice Marshall did not stop there. It was not necessary but
he digged further, although, Marbury was only interested in
his own commission and not in the least in the vires of the
relavant clause of the Judiciary Act of 1789, but Marshall C.
J., on examination of the relevant provisions found that a
ontradiction did in fact exist between the Constitution and
the pertinent provision of the aforesaid Act”.
Robert K. Carr tried to visualize the mind-set of Chief Justice Marshall,
a great Chief Justice of the Supreme Court of the United States, in its infancy
in this manner:
“In other words, Marshall was invoking that power for the
first time at just such a moment when the Fathers probably
intended it should be exercised. Jefferson had become
president and his party had won control of Congress. The
opposition had obtained complete control of the political
branches of the government. Is it not obvious that from the
point of view of the Founding Fathers and the Federalist
party the time had come to point out that the Constitution as
a higher law did place restraints upon Congress and that the
Supreme Court as guardian of the Constitution had power to
enforce those restraints?
In Marbury v. Madison we see Chief Justice Marshall
suggesting that the Supreme Court was duty-bound as a
matter of unescapable principle to enforce the Constitution
as a symbol of restraint upon congressional authority
through the exercise of its power of Judicial review. ……..”
(Quoted from Robert K. Carr on ‘The Supreme Court and
Judicial Review’ at page-71).
This is how the review was made two hundred years ago in Marbury V.
Madison:
“If an act of the legislature, repugnant to the Constitution, is
void, does it, notwithstanding its invalidity, bind the courts,
and oblige them to give it effect? Or, in other words, though
it be not law, does it constitute a rule as operative as if it
was a law?
…..………It is emphatically the province and duty of the
judicial department to say what the law is.
………..The judicial power of the United States is extended
to all cases arising under the Constitution.
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Could it be the intention of those who gave this power, to
say that in using it the constitution should not be looked
into? That a case arising under the constitution should be
decided without examining the instrument under which it
rises?
This is too extravagant to be maintained……..Thus, the
particular phraseology of the constitution of the United
States confirms and strengthens the principle, supposed to
be essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.”(Quoted from
Professor Noet T. Dowling on the ‘Cases on Constitutional
Law Fifth Edition, 1954, at pages-95-97).
It will be interesting to note that Marbury was not at all
interested in the supremacy of the Constitution or the
Supreme Court’s power of judicial review. He only made a
request for mandamus upon Madison, the Secretary of State,
directing him to deliver his commission which was ready in
all respect but could not be delivered to him earlier due to
paucity of time. But the Supreme Court in course of
considering his grievance, very consciously declared invalid
an Act of the Congress. This is how the U. S. Supreme
Court wields its power of Judicial review of legislative
actions.
O. Hood Phillips in his ‘Constitutional and Administrative Law’,
Seventh Edition (1987), explains the mechanism at page-8:
“…..the federal courts have jurisdiction to declare
provisions of state constitutions, state legislation and federal
legislation repugnant to the Federal Constitution. It is not
strictly accurate to say that the Courts declare legislation
void: when cases are brought before them judicially, they
may declare that an alleged right or power does not exist or
that an alleged wrong has been committed because a certain
statute relied on is unconstitutional.”
This was also indicated by A. R. Cornelius, C.J., in Fazlul Quader
Chowdhury V. Muhammad Abdul Haque PLD 1963 SC 486, at page-503:
“The duty of interpreting the Constitution is, in a fact a
duty of enforcing the provisions of the Constitution in any
particular case brought before the Courts in the form of
litigation.”
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Hamoodur Rahman, C. J., in dealing with Martial Law provision in
Asma Jilani’s case held at page -202:
“However, as this question has been raised, regarding the
validity of Martial Law Regulation No. 78, I must point out that
it follows from what I have said earlier that it was made by an
authority whose legal competence we have not been able to
recognise on the ground of want of legal authority and the
unconstitutional manner of arrogation of power.”
The moral is clear. If any provision sought to oust the jurisdiction of
Court, that provision itself is not law.
As such it is apparent that the Court may consider the constitutionality
of any provision in course of a litigation brought before it. Further it is not for
the aggrieved persons to plead law but for the Judges to apply the correct
provisions of the Constitution and the laws made thereunder and if necessary
under the circumstances, is entitled either to uphold any particular statute or
to declare it invalid being contradictory to the Constitution so long the
Government gets adequate opportunity to support the offending provision if
so advised. This is the position in the United States, so also in India and there
is no reason why it should be otherwise in Bangladesh.
It may be mentioned here that under our Constitution all the powers
and functions of the Republic are vested in the three branches, namely, the
Legislature, the Executive and the Judiciary. All these branches, however,
owe their existence to the Constitution since it is the embodiment of the will
of the people of Bangladesh. It is the people of Bangladesh, who proclaimed
that ‘We, the people of Bangladesh’, deemed that there shall be a Supreme
Court for Bangladesh, that is why this Court came into being out of Article 94
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of the Constitution with all the powers of a High Tribunal as exists in the
civilised world.
In this connection a historical episode was narrated by B. H.
Chowdhury, J. in Anwar Hossain Chowdhury’s case at para-253, page-108
(BLD) :
“253. This judgment will be incomplete if a historical episode is
not mentioned. Sir Coke was summoned by King James first to
answer why the King could not himself decide cases which has
to go before his own court of justice. Sir Coke asserted:
“No King after the conquest assumed himself to give any
judgment in any cause whatsoever which concerned the
administration of justice within the realm but these are solely
determined in the court of justice.”
When King said that he thought the law was founded on reasons and
that he and others had reasons as well as Judges, Coke answered :
“True it was that God has endowed his Majesty with excellent
science and great endowments of nature, but his Majesty was not
learned in the law of his realm in England, and causes which
concerned the life or inheritance or good or fortune of his
subject, are not to be decided by natural reasons, but by the
artificial reasons and judgment of the law, which law is an act
which requires long study and experience, before that a man can
attain the cognizance of it, and the law was the golden metawand
one and measure to try the causes of the subject and which
protect his Majesty in safety and peace”.
About the independence of judiciary and its power of judicial review,
B. H. Chowdhury, J., in the above case further observed, quoting Bhagwati, J.
and Justice Krishna Iyer, J.at para- 240-241, page-105:
“240. This point may now be considered. Independence of
judiciary is not an abstract conception. Bhagwati, J said “if there
is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law and under the
Constitution, it is the judiciary which is entrusted with the task of
keeping every organ of the State within the limits of the law and
thereby making the rule of law a meaningful and effective”. He
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said that the Judges must uphold the core principle of the rule of
law which says, “Be you ever so high, the law is above you”.
This is the principle of independence of the judiciary which is
vital for the establishment of real participatory democracy,
maintenance of the rule of law as a dynamic concept and
delivery of social justice to the vulnerable sections of the
Community. It is this principle of independence of the judiciary
which must be kept in mind while interpreting the relevant
provisions of the Constitution (S.P. Gupta and others v. President
of India and others A.I.R. 1982 SC at page 152).
241. He further says, “what is necessary is to have Judges who
are prepared to fashion new tools, forge new methods, innovate
new strategies and evolve a new jurisprudence, who are judicial
statesmen with a social vision and a creative faculty and who
have, above all, a deep sense of commitment to the Constitution
with a activist approach and obligation for accountability, not to
any party in power nor to the opposition ………………..We
need Judges who are alive to the socioeconomic realities of
Indian life, who are anxious to wipe every tear from every eye,
who have faith in the constitutional values and who are ready to
use law as an instrument for achieving the constitutional
objectives (at page 179). He quoted the eloquent words of
Justice Krishna Iyer :
“Independence of the judiciary is not genuflexion; nor is it
opposition to every proposition of Government. It is neither
judiciary made to opposition measure nor Government’s
pleasure”.
Thus there is no hesitation in saying that these are the words of wisdom
handed down to us by the generations of Judges who very politely and meekly
from the beginning of the civilisation reminded the monarch that the King is
not above the law but under the law. Some of them were beheaded,
imprisoned or destroyed but the cherished theme ran like a refrain throughout
the pages of the history.
In this part of the world we generally follow the common law
principles but Bangladesh has got a written Constitution. This Constitution
may be termed as controlled or rigid but in contradistinction to a Federal form
of Government, as in the United States, it has a Parliamentary form of
Government within limits set by the Constitution. Like the United States, its
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three grand Departments, ‘the Legislature makes, the Executive executes and
judiciary construes the law’ (Chief Justice Marshall). But the Bangladesh
Parliament lacks the omnipotence of the British Parliament while the
President is not the executive head like the U. S. President but the Prime
Minister is, like Brithsh Prime Minister. However, all the functionaries of the
Republic owe their existence, powers and functions to the Constitution. ‘We
the people of Bangladesh’, gave themselves this Constitution which is
conceived of as a fundamental or an organic or a Supreme Law rising loftly
high above all other laws in the country and Article 7(2) expressly spelt out
that any law which is inconsistent with this Constitution, to that extent of the
inconsistency, is void. As such, the provisions of the Constitution is the basis
on which the vires of all other existing laws and those passed by the
Legislature as well as the actions of the Executive, are to be judged by the
Supreme Court, under its power of judicial review. This power of judicial
review of the Supreme Court of Bangladesh is, similar to those in the United
States, Pakistan and in India.
This is how the Legislature, the Executive and the Judiciary functions
under the Constitutional scheme in Bangladesh. The Constitution is the
undoubted source of all powers and functions of all three grand Departments
of the Republic, just like the United States, Pakistan and India. It is true that
like the Supreme Courts in the United States or in India, the Supreme Court of
Bangladesh has got the power of review of both legislative and executive
actions but such power of review would not place the Supreme Court with
any higher position to those of the other two Branches of the Republic. The
Supreme Court is the creation of the Constitution just like the Legislature and
the Executive. But the Constitution endowed the Supreme Court with such
70
power of judicial review and since the Judges of the Supreme Court have
taken oath to preserve, protect and defend the Constitution, they are obliged
and duty bound to declare and strike down any provision of law which is
inconsistent with the Constitution without any fear or favour to any body.
This includes the power to declare any provision seeking to oust the
jurisdiction of the Court, as ultra vires the Constitution.
Hamoodur Rahman, C. J. explains the legal position thus in State V.
Zia-ur-Rahman PLD 1973 SC 49 at page-70:
“In exercising this power, the judiciary claims no supremacy
over other organs of the Government but acts only as the
administrator of the public will. Even when it declares a
legislative measure unconstitutional and void, it does not do so,
because, the judicial power is superior in degree or dignity to
the legislative power; but because the Constitution has vested it
with the power to declare what the law is in the cases which
come before it. It thus merely enforces the Constitution as a
paramount law whenever a legislative enactment comes into
conflict with it because, it is its duty to see that the Constitution
prevails. It is only when the Legislature fails to keep within its
own Constitutional limits, the judiciary steps in to enforce
compliance with the Constitution. This is no dubt a delicate
task as pointed out in the case of Fazlul Quader Chowdhury v.
Shah Nawaz, which has to be performed with great
circumspection but it has nevertheless to be performed as a
sacred Constitutional duty when other State functionaries
disregard the limitations imposed upon them or claim to
exercise power which the people have been careful to withhold
from them.”
His Lordship then considered the powers of the Court in respect of the
Constitutional measure at page-71:
“I for my part cannot conceive of a situation, in which, after a
formal written Constitution has been lawfully adopted by a
competent body and has been generally accepted by the people
including the judiciary as the Constitution of the country, the
judiciary can claim to declare any of its provisions ultra vires or
void. This will be no part of its function of interpretation.
Therefore, in my view, however solemn or sacrosanct a
71
document, if it is not incorporated in the Constitution or does
not form a part thereof it cannot control the Constitution. At
any rate, the Courts created under the Constitution will not
have the power to declare any provision of the constitution
itself as being in violation of such a document. If in fact that
document contains the expression of the will of the vast
majority of the people, then the remedy for correcting such a
violation will lie with the people and not with the judiciary”.
Coming back to Bangladesh, Mustafa Kamal, C.J., was emphatic in
respect of the independence of Judiciary in Secretary, Ministry of Finance V.
Masdar Hossain 2000 (VIII) BLT (AD) 234 where his Lordship held at para
60, pages-263-4:
“60 when Parliament and the executive, instead of implementing
the provisions of Chapter II of Part VI follow a different course
not sanctioned by the Constitution, the higher Judiciary is within
its jurisdiction to bring back the Parliament and the executive
from constitutional derailment and give necessary directions to
follow the constitutional course.
This exercise was made by this Court in the case of Kudrat-Elahi
Panir Vs. Bangladesh, 44 DLR (AD) 319. We do not see why the
High Court Division or this Court cannot repeat that exercise
when a constitutional deviation is detected and when there is a
constitutional mandate to implement certain provisions of the
Constitution.”
It is thus clear that the High Court Division has not only the power of
judicial review of an Act of Parliament but also has a duty to exercise such
power in case of violation of the Constitution. And the High Court Division
did it giving reasons.
Next question is whether in view of the provisions of Article 111 of the
Constitution, the decisions of this Division passed in the cases of Halima
Khatun, Joynal Abedin, Etheshamuddin, and Nasiruddin to the effect that
Martial Law proclamations etc. were supra constitutional instruments and as
72
such the Constitution must take a back seat, is binding upon the High Court
Division.
Before discussing the above question, let us get a clear picture of the
major constitutional developments in erstwhile Pakistan and also in present
Pakistan and decision of the Supreme Court of Pakistan regarding Martial
Law. Earlier we have quoted the relevant portion of the judgment of Yakub
Ali J in Asma Jilani’s case in this regard but the same is not that elaborate.
The first major event in this behalf in erstwhile Pakistan was the
dissolution of the Constituent Assembly of Pakistan by Governor-General
Ghulam Muhammad in 1954, which he did on the following grounds:-
“(1) The Governor-General having considered the
political crisis with which the country is faced, has with
deep regret some to the conclusion that the constitutional
machinery has broken down. He, therefore, has decided to
declare a state of emergency throughout Pakistan. The
Constituent Assembly as at present constituted has lost the
confidence of the people and can no longer function.
(2) The ultimate authority vests in the people who will
decide all issues including constitutional issues through
their representatives to be elected afresh. Elections will be
held as early as possible.
(3) Until such time as elections are held, the administration
of the country will be carried on by a reconstituted Cabinet.
He has called upon the Prime Minister to reform the Cabinet
with a view to giving the country a vigorous and stable
administration. The invitation has been accepted and
(4) The security and stability of the country are of
paramount importance. All personal sectional and
provisional interests must be subordinated to the supreme
national interest.”
This act of the Governor-General was challenged by Moulvi
Tamizuddin Khan, President of the Constituent Assembly, in the Chief Court
of Sindh. The Chief Court of Sindh allowed the petition and declared the
73
dissolution of the Assembly as illegal. It was held that the Acts of the
Constituent Assembly when it did not function as the Federal legislature did
not require the Governor-General’s assent. The Federation of Pakistan
challenged the judgment of the Sindh Chief Court before the Federal Court.
The Federal Court reversed the judgment of the Sindh Chief Court on the
ground that the assent of the Governor-General was necessary for the validity
of all the laws and the amendments made in the Government of India Act,
1935. The Court held that since section 223A of the Government of India Act
under which the Chief Court of Sindh assumed jurisdiction to issue the writs
did not receive assent of the Governor-General, it was not yet law, and that,
therefore, the Chief Court had no jurisdiction to issue the writs.
However, in his dissenting judgment, Cornelius J, (later CJ) held that
there was nothing in section 6(3) of the Indian Independence Act, or to the
status of Pakistan as a Dominion which created the obligation that all laws
made by the Constituent Assembly of a constitutional nature, required the
assent of the Governor-General for their validity and operation. Thus, by
majority, the dissolution of the assembly was upheld on a legal ground. As to
the merits of the case, it was observed that it was wholly unnecessary to go
into the other issues and nothing said in the judgment was to be taken as an
expression of opinion on anyone of those issues.
The next case of constitutional importance was Usif Patel v. Crown
(PLD 1955 FC 387). The appellants in that case were proceeded against under
the Sindh Control of Goondas Act, 1952. They were declared as goondas
were directed to furnish heavy security but they having failed to give security,
were confined to prison. Against their detention in prison, they approached
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the Sind Chief Court by an application under section 491 of the Code of
Criminal Procedure, 1898 alleging that their imprisonment was wrongful and
prayed that they be set at liberty. Some of the petitioners moved revision
petitions under section 17 of the aforesaid Act before the Chief Court.
By means of the Emergency Powers Ordinance, 1955 (Ordinance No.
IX of 1955) issued under section 42 of the Government of India Act, 1935 the
Governor-General sought to validate all those Acts by indicating his assent
with retrospective operation. The ground urged before the Chief Court on
which their imprisonment was alleged to be illegal was that the Governor’s
Act under which action had been taken against them was invalid because it
was passed by the Governor in exercise of the powers which were conferred
on him by a Proclamation issued by the Governor-General under section 92A
of the Government of India Act, 1935, which section had been inserted in the
Government of India Act, 1935 by an Order of the Governor-General under
section 9 of the Indian Independence Act, 1947. It was contended that this
action of the Governor-General was ultra vires the provisions of the aforesaid
section 9. The contention was repelled by the Chief Court and the detentions
of the petitioners were held legal.
The matter came up in appeal before the Federal Court where the questions
requiring determination were as under :-
“(1) Whether the Governor-General could by an Ordinance
validate the Indian Independence (Amendment) Act, 1948;
and
(2) Whether the Governor-General could give assent to
constitutional legislation made by the Constituent Assembly
with retrospective effect”.
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It was held that a legislature could not validate an invalid law if it did
not possess the power to legislate on the subject to which the invalid law
related, the principle governing validation being that validation being itself
legislation one could not validate what one could not legislate upon. The
essence of a federal legislature was that it was not a sovereign legislature
competent to make laws on all matters, in particular it could not, unless
specifically empowered by the Constitution, legislate on matters which were
assigned by the Constitution to other bodies. Nor was it competent to remove
the limitations imposed by the Constitution on its legislative powers. The
power of the legislature of the dominion for the purpose of making provision
as to the constitution of the Domination could, under subsection (1) of section
8 of the Indian Independence Act, 1947, be exercised only by the Constituent
Assembly, and that such power could not be exercised by that Assembly
when it functioned as the Federal Legislature within the limits imposed upon
it by the Government of India Act, 1935. The Governor-General could not by
an Ordinance, repeal any provision of the Indian Independence Act, 1947 or
the Government of India Act, 1935 and assume unto himself all powers of
legislation.
Since the Amendment Act of 1948 was not presented to the Governor-
General for his assent, it did not have the effect of extending the date from
31st March, 1948 to 31st March, 1949 and that since section 92A was added to
the Government of India Act, 1935 after 31st March, 1948, it never became a
valid provision of that Act. Thus, the Governor-General had no authority to
act under section 92A and the Governor derived no power to legislate from a
Proclamation under that section. Accordingly, the Sind Goondas Act was
76
ultra vires and no action under it could be taken against the appellants. That
being so, it was argued, the detention of the appellants in jail was illegal.
The Federal Court held that the Acts mentioned in the Schedule to the
above Order could not be validated by the Governor General under section 42
of the 1935 Act nor could retrospective effect be given to them. A noteworthy
fact was that the Constituent Assembly, having already been dissolved by the
Governor General by a Proclamation on October 24, 1954 had ceased to
function and no legislature competent to validate these Acts was in existence.
In conclusion, the court observed as:
“It might have been expected that conformably with the
attitude taken before us by the responsible counsel for the
Crown the first concern of the Government would have been
to bring into existence another representative body to
exercise the powers of Constituent Assembly so that all
invalid legislation could have been immediately validated
by the new body. Such a course would have been consistent
with the constitution practice in relation to such a situation.
Events, however, show that other counsels have since
prevailed. The Ordinance contains no reference to elections,
and all that the learned Advocate General can say is that
there intended to be held.”
Next case of significant relevance is the Reference H.E. The Governor-
General reported in PLD 1955 FC 435. The Federal Court having held in
Moulvi Tamizuddin Khan’s case that assent of the Governor-General was
necessary to all laws passed by the Constituent Assembly, the Governor-
General sought to validate such Acts by indicating his ascent, with
retrospective operation, by means of the Emergency Powers Ordinance,
1955(Ordinance No, IX of 1955) issued under section 42 of the Government
of India Act, 1935. The Federal Court in Usif Patel’s case, however, declared
that the Acts mentioned in the Schedule to that Ordinance could not be
77
validated under section 42 of the Government of the India Act, 1935, nor
could retrospective effect be given to them. A noteworthy fact was that the
Constituent Assembly had ceased to function, having already been dissolved
by the Governor-General by a Proclamation on 24th October 1954, and no
legislature competent to validate these Acts was in existence.
The Governor-General made a reference to the Federal Court under
section 213 of the Government of India Act, 1935 asking for the Court’s
opinion on the question whether there was any provision in the Constitution
or any rule of law applicable to the situation by which the Governor-General
could, by Order or otherwise, declare that all orders made, decisions taken,
and other acts done under those laws, should be valid and enforceable and
those laws, which could not without danger to the State be removed from the
existing legal system, should be treated as part of the law of the land until the
question of their validation was determined by the new Constituent
Convention.
The answer returned by the Federal Court (by majority) was that in the
situation presented by the Reference, the Governor-General has, during the
interim period, the power under the common law of civil or state necessity of
retrospectively validating the laws listed in the Schedules to the Emergency
Powers Ordinance, 1955, and all those laws, until the question of their
validation was decided upon by the Constituent Assembly, where, during the
aforesaid period, valid and enforceable in the same way as if they had been
valid from the date on which they purported to come into force.
In Dosso’s case the respondents in one of the appeals were tried by a
Jirga (council of elders) under the provisions of the Frontier Crimes
78
Regulation, 1901 (FCR) and convicted and sentenced under different
provisions of the Pakistan Penal Code, 1860. They filed applications before
the High Court for a writ of habeas corpus and certiorari on the ground that
the provisions of the FCR enabling the executive authorities to refer a
criminal case to a Council of Elders were void under Article 4 of the
Constitution of the Islamic Republic of Pakistan, 1956. The High Court
accepted the contention and held that the provisions of FCR could be
enforced under subsection (4) of section 1 (ibid) only against Pathans and
Baluchis and against such other persons the local government may notify and
as this was not a reasonable classification, those provisions were ultra vires
Article 5 of the Constitution. The convictions and sentences were set aside,
and the respondents were ordered to be treated as under trial prisoners, it
being left to the government to refer their cases to a court of law. On appeals
filed by the State before the Federal Court against the impugned orders of the
High Court, the validity of the exercise of power by the High Court was
adjudged in the context of the actions of 7th October, 1958. What happened
was that by Proclamation of that data, the President of Pakistan annulled the
Constitution of 1956, dismissed the Central Cabinet and the Provincial
Cabinets and dissolved the National Assembly and both Provincial
Assemblies. Simultaneously, Martial Law was declared throughout the
country and Commander-in Chief of the Pakistan Army was appointed as the
Chief Martial Law Administrator. Three days later, the President promulgated
the Laws (Continuance in Force) order, 1958, the general effect of which was
the validation of laws other than the late Constitution, that were in force
before Proclamation, and restoration of the jurisdiction of all Courts including
79
the Supreme Court and High Courts. The Order contained the further
direction that the country, thereafter to be known as Pakistan and not the
Islamic Republic of Pakistan, should be governed as nearly as may be in
accordance with the late Constitution.
Under Clause (7) of Article 2 of the Laws (Continuance in Force)
Order 1958, all writ petitions pending in High Courts seeking enforcement of
fundamental rights stood abated. The Court held that if the Constitution was
destroyed by a successful revolution, the validity of the prevalent laws
depended upon the will of the new law-creating organ. Therefore, if the new
legal order preserved any one or more laws of the old legal order, then a writ
would lie for violation of the same. As regards pending applications for writs
or writs already issued but which were either sub judice before the Supreme
Court or required enforcement, the Court in the light of the Laws
(Continuance in Force) Order, 1958 held that excepting the writs issued by
the Supreme Court after Proclamation and before the promulgation of the
Order, no writ or order for a writ issued or made after Proclamation shall have
any legal effect unless the writ was issued on the ground that anyone or more
of the laws mentioned in Article 4 or any other right kept alive by the new
Order had been contravened.
The Supreme Court, on the basis of the theory propounded by Hans
Kelsen, accorded legitimacy to the assumption of power by General Ayub
Khan holding that coup d’etat was a legitimate means to bring about change
in the government and particularly so when the new order brought about by
the change had been accepted by the people. It was held that where a
Constitution and the national legal order under it was disrupted by an abrupt
80
political change not within the contemplation of the Constitution, then such a
change would be a revolution and its legal effect would not only be the
destruction of the Constitution but also the validity of the national legal order,
irrespective of how or by whom such a change was brought about. In the
result, in accordance with the judgment of the majority, the proceedings for
writs in each of these cases were held to have abated. The result was that the
directions made and the writs issued by the High Court were set aside.
However, in 1972, in Asma Jilani’s case, the details of which will be
discussed later on, the above view was overruled by Pakiatan Supreme Court.
Now coming to the cases of Halima Khatun, Joynal Abedin,
Ehteshamuddin and Nasiruddin where the status of the said Proclamations
dated August 15, 1975, November and 29 of 1975 and Martial Law
Regulations and Orders have been considered, the High Court Division
regarding Halima Khatun’s case stated as follows:-
The first is the case of Halima Khatun V. Bangladesh 30 DLR
(SC) (1978) 207. In the said case, the legality of the
Proclamations etc. was not the issue but inclusion of a
property in the list of abandoned properties was challenged in
the High Court. The Rule was discharged on the ground that
the question as to whether the relevant property was
abandoned or not is a disputed question of fact. On appeal
question arose before the Appellate Division, whether in view
of the provisions of the Abandoned Properties
(Supplementary Provisions) Regulation 1977, (MLR No. VII
of 1977) the aforesaid writ petition abated. This appeal was
decided on January 4,1978. Bangladesh was at that time
under Martial Law. After considering the Proclamations,
MLRs and MLOs and also the Constitution including Article
7 , Fazle Munim, J. (as his Lordship then was), observed at
para-18 :
“ ………. what appears from the Proclamation of August 20,
1975 is that with the declaration of Martial Law in
Bangladesh on August 15, 1975, Mr. Khondker Moshtaque
Ahmed who became the President of Bangladesh assumed
full powers of the Government and by Clause (d) and (e) of
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the Proclamation made the Constitution of Bangladesh, which
was allowed to remain in force, subordinate to the
Proclamation and any Regulation or order as may be made by
the President in pursuance thereof. In Clause (h) the power to
amend the Proclamation was provided. It may be true that
whenever there would be any conflict between the
Constitution and the Proclamation or a Regulation or an
Order the intention, as appears from the language employed,
does not seem to concede such superiority to the Constitution.
Under the Proclamation which contains the aforesaid clauses
the Constitution has lost its character as the Supreme law of
the country. There is no doubt, an express declaration in
Article 7(2)of the Constitution to the fol1owing effect : “This
Constitution is, as the solemn expression of the will of the
people, the supreme law of the Republic and if any other law
is inconsistent with this Constitution that other law shall to
the extent of the inconsistency be void.” Ironically enough,
this Article, though still exists, must be taken to have lost
some of its importance and efficacy. In view of clauses (d),
(e) and (g) of the Proclamation the supremacy of the
Constitution as declared in that Article is no longer
unqualified. In spite of this Article, no Constitutional
provision can claim to be sacrosanct and immutable. The
present Constitutional provision may however, claim
superiority to any law other than a Regulation or Order made
under the Proclamation.”
Fazle Munim, J., held that the Constitution of Bangladesh was
made subservient and subordinate to the Proclamations,
MLRs and MLOs.
According to the High Court Division in view of the above judgment---
“I) Under the Proclamations, the Constitution lost
its character as the supreme law of the Republic.
II) The Constitution is subordinate to the
Proclamations and the Regulations and Orders
made thereunder.
III) Constitution is superior to any law other than a
Regulation or Order made under the
Proclamation”.
Regarding Haji Joynal Abedin’s case 32 DLR (AD) (1980)110 the
High Court Division stated as follows:
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In this case a writ petition was filed challenging the legality
of the order of conviction passed by the Special Martial Law
Court. The legality of Proclamations etc. was not the issue in
that case. The High Court Division declared the said order of
conviction and sentence was without lawful authority and of
no legal effect.
Leave was granted, inter alia, to consider as to whether in
view of the Proclamation dated August 20, 1975, the High
Court Division acted within its jurisdiction in issuing the writ.
After tracing the history of the Proclamation of Martial Law,
declared on August 20, 1975 at page-16 and 17 of the Report,
Ruhul Islam, J, held at para-18, page- 122 :
“From a consideration of the features noted above
it leaves no room for doubt that the Constitution
though not abrogated, was reduced to a position
subordinate to the Proclamation, inasmuch as, the
unamended and unsuspended constitutional
provisions were kept in force and allowed to
continue subject to the Proclamation and Martial
Law Regulation or orders and other orders; and the
Constitution was amended from time to time by
issuing Proclamation. In the face of the facts stated
above I find it difficult to accept the arguments
advanced in support of the view that the
Constitution as such is still in force as the supreme
law of the country, untrammelled by the
Proclamation and Martial Law Regulation.
…………..”
Ruhul Islam J, then at para-19: page-122-23 held:
“………..So long the Constitution is in force as
the supreme law of the country, any act done or
proceeding taken by a person purporting to
function in connection with the affairs of the
Republic or of a local authority may be made the
subject matter of review by High Court in exercise
of its writ jurisdiction. The moment the country is
put under Martial Law, the above noted
constitutional provision along with other civil laws
of the country loses its superior position”.
Ruhul Islam, J. very specifically spelt out that the
Constitution was reduced to a position subordinate to the
Proclamations, MLRs and MLOs.
83
This opinion of the Appellate Division was given on
Decembers 20, 1978. At that time the country was under
Martial Law”.
According to the High Court Division by the above judgment ….
I) The Constitution was reduced to a position
subordinate to the Proclamation.
II) The unamended unsuspended Constitutional
provisions were allowed to continue subject to the
Proclamations and MLRs and MLOs.
III) The Constitution was amended from time to
time by issuing Proclamations.
IV) The moment the country is put under Martial
Law, the Constitution looses its superior position”.
Regarding the next case i.e. the case of Kh. Ehteshamuddin Ahmed V,
Bangladesh, 33 DLR (AD)(1981 ) 154 the High Court Division held as
folows:-
In this case a writ petition was filed challenging the proceedings
in passing the Judgment and Order of conviction passed by the
Special Martial Law Court. The Proclamation etc. were not
challenged. The High Court Division summarily rejected the writ
petition by an order dated June, 13, 1979, on the ground of ouster
of jurisdiction by MLR 1 of 1975.
By this time, Proclamations were revoked and the Martial Law
was withdrawn.
Leave was granted, inter alia, to consider as to whether the
proceeding of the Special Martial Law Court could be examined
by the High Court Division after passing of the Fifth Amendment
of the Constitution.
In this case, the vires of the Fifth Amendment was not
challenged. This position was admitted by the learned Advocates
of both the sides, the Court considered the legality of the
proceedings before the Special Martial Law Court when the
country was under Martial Law. The Judgement of the Appellate
Division was given on March 27, 1980.
At that time although Martial Law was withdrawn still its dark
shadows apparently loomed large over the country and its
84
Constitution, as found by the Court. His Lordship Ruhul Islam.
J., in considering Article-7, held at para-16 page-163:
“It is true that Article 7 (2) declares the Constitution
as the Supreme Law of the Republic and if any
other law is inconsistent with the Constitution that
other law shall, to the extent of the inconsistency, be
void, but the supremacy of the Constitution cannot
by any means compete with the Proclamation issued
by the Chief Martial Law”.
His Lordship then at Para -18 page-163 held :
“18. In that case, on the question of High Court’s
power under the Constitution to issue writ against
the Martial Law Authority or Martial Law Courts,
this Division has given the answer that the High
Courts being creature under the Constitution with
the Proclamation of Martial Law and the
Constitution allowed to remain operative subject to
the Proclamation and Martial Law Regulation, it
loses its superior power to issue writ against the
Martial Law Authority or Martial Law
Courts.………”
His Lordship then at para-25, page-166 further held:
“25.Before I proceed further it may be mentioned that
in the present case neither the authority of the person
who proclaimed Martial Law nor the vires of the
Martial Law Regulation was or could be challenged at
the bar excepting arguing on the question of
supremacy of the Constitution over the Proclamations
and Martial Law Regulations. Since the authority of
the Chief Martial Law Administrator is not
challenged and the vires of the relevant Martial Law
Regulation is also not challenged, I do not find any
good reason for making reference to Asma Jilani’s
case”.
The comment of the High Court Division on the above judgment is that
the Appellate Division found :
“i) The Constitution continued subject to the
Proclamations.
ii) The Supremacy of the Constitution cannot by
any means compete with the Proclamation.
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iii) The Chief Martial Law Administrator would
not be deemed to be a person holding an office
of profit in the service of the People’s Republic
of Bangladesh.
iv) The High Court lost its superior power to
issue writ against the Martial Law Authority or
Martial Law Courts”.
“From the above Judgment it is apparent that
even after lifting of the Martial Law, its
provisions remained supreme and on the face of
the MLRs, the Constitution was relegated even
further to the back-seat. Although at that time the
Martial Law was not there but even then the
Constitution was read subject to the Martial Law
and was made to recoil on the face of the bare
shadow of the MLRs”.
“It is apparent from the above Judgment that the
effect of the Proclamation was that the
Constitution is supreme only when the Martial
Law is not near by and even long after the lifting
of the Martial Law, on the face of its bare
shadow, the Constitution with its ‘supremacy’
becomes a worthless sheaf of papers. Whether
we like it or not the status of the Constitution
was reduced to such an ignoble shambles by the
Proclamations, the MLRs and the MLOs which
would have blushed even Henry VIII or Louis
XIV. During the reign of Henry VIII in the 16th
Century, the Proclamations were issued by the
King but in pursuance of an Act of Parliament
and no prerogative right to issue proclamation
was allowed even to the King of England by the
Chief Justice Coke four hundred years ago in
1610.
Regarding Nasiruddin’s case 32 DLR (AD) (1980) 216, the High
Court Division found as follows:
This case was decided on 14.4.1980. It is also in respect of an
abandoned property. It modified the effect of the decision of
the earlier Halima Khatun’s case to some extent but the
observations of Fazle Munim, J., in respect of the status of
Martial Law vis-à-vis the Constitution made in the said
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decision, remained unaltered. Kamaluddin Hossain, C. J.,
however, held at para-10, page 221:
“It is to be observed that when an authority is
vested with a jurisdiction to do certain acts and
in the exercise of that jurisdiction he does it
wrongly or irregularly the action can be said to
be done within the purported exercise of his
jurisdiction. But an act which is manifestly
without jurisdiction, such as the property which
not being an abandoned property within the
meaning of Presidenual Order 16 of 1972 is
declared to be so, or in case of judicial or quasi
judicial act which is coram non judice, the use of
the expression ‘purported exercise’ in the
validating clause of Fifth Amendment of the
Constitution cannot give such act the protection
from challenge, it being ultra vires. It is true
mala fide act is also not protected, but then mala
fide is to be pleaded with particulars constituting
such mala fide and established by cogent
materials before the Court.”
...................................................................................................
...................................................................................................
In this connection it should also be noted that the case of Kh.
Ehteshamnddin Ahmed V. Bangladesh, 33 DLR (AD) (1981)
154 was decided on 27.3.1980 and the case of Nasiruddin V.
Government of Bangladesh 32 DLR (AD) (1980) 216 was
decided on 14.4.1980. Both the cases were decided after the
Fifth Amendment was passed on April 6, 1979, by the Second
Parliament.
A question although was not raised but yet may arise that
since those two cases were decided after the enactment of the
Fifth Amendment whether it can be said that the Appellate
Division approved the Fifth Amendment, at least impliedly?
However, it is not, since the vires of the Fifth Amendment
was not under challenge in any of those two appeals, even
indirectly. The issues involved in those two cases were no
where near the Fifth Amendment.
In Ehteshamuddin’s case the issues were:
“i) Whether the proceedings of the Special
Martial Law Court could be examined after the
enactment of the Fifth Amendment and the
Proclamation made on April, 7, 1979 by the
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CMLA, withdrawing the Martial Law and
revoking the earlier Proclamations.
ii) The extent of protection given under the Fifth
Amendment.
iii) Whether the decision of the Government can
be called in question under Article 102 of the
Constitution despite the Proclamation of April 6,
1979”.
It is thus apparent that the vires of the Fifth Amendment to the
Constitution was not under challenge in any of the above cases. This is also
admitted by the learned Additional Attorney General and also the learned
Advocate for the respondent no. 3. Besides, at paragraph-25 of the Judgment
it is categorically stated that neither the authority of the person who
proclaimed Martial Law nor the vires of the Martial Law Regulations was
challenged in the said case. In Nasiruddin’s case, the issue was whether the
writ abated, in view of sub-paragraph (1) of paragraph 5 read with paragraph
4 of Martial Law Regulation No. VII of 1977. This case has got no nexus with
the Fifth Amendment.
As it appears the High Court Division also stated that similar question
as to validity of Martial Law was also faced by Hamoodur Rahman, C.J. in
Asma Jilani’s case wherein his Lordship considering the case of Muhammad
Ismail V. The State, PLD 1969 SC 241 in which the judgment was delivered
again by himself, and also the case of Mia Fazal Ahmed V. The State PLD
1969 SC 241 held that in those cases no question was raised as to the validly
of the Martial Law Order or of the Provisional Constitution Order and
therefore it is incorrect to say that the Supreme Court had given any legal
recognition to the regime of General Yahya Khan.
88
We are also of the view that simply because the laws made by the
Martial Law Authorities and actions taken under it were considered by this
Division in the cases of Halima Khatun, Joynal Abedin, Enteshamuddin and
Nasiruddin and in those cases Martial Law being not declared ultra vires the
Constitution, those laws will not attain validity. Further, as pointed out earlier,
in none of those case, the invalidity of the Fifth Amendment was challenged
and so those cases can not operate as precedent for the validity of the Fifth
Amendment. Accordingly there is no substance to the submission of the
petitioners that the decisions in the above cases touching the actions of the
Martial Law authorities provide some binding precedents under Article 111 of
the Constitution and so the actions of martial Law authorities can not be
challenged in the Court. In order to apply the provision of Article 111 an issue
must be raised and deliberated upon and decided before it can operate as a
binding precedent. Further what is binding as a law is the ratio of a decision
and not the finding of a fact or the conclusion reached by the Court as held in
the case of Dalbir Singh V. India, AIR 1979 1384. Moreover, as held in the
case of Bangladesh V. Mizanur Rahman, 52 DLR (AD) 149 this Division
having the power of review is not bound by a view earlier taken by this
Division.
Further the role of stare decisis in constitutional interpretation is also
very insignificant particularly when the earlier decision is manifestly wrong.
In this regard in Asma Jilani’s case (supra) at page 139, 168-169, the Chief
Justice quoted with approval, the statement in Corpus Juris Secumdum which
is as follows;
89
“The doctrine of stare decisis cannot be invoked to sustain,
as authority, a decision which is in conflict with the
provisions of the state Constitution”.
As regards the stare decisis, Halsburys Laws of England states as follows:
“In general the House of Lords will not overrule a long
established course of decisions except in plain cases where
serious inconvenience or injustice would follow from
perpetuating an erroneous construction or ruling of law.
The same considerations do not apply where the decision,
although followed, had been frequently questioned and
doubted. In such a case it may be overruled by any Court
of superior jurisdiction. When old authorities are plainly
wrong, and especially where the subsequent course of
judicial decisions has disclosed weakness in the reasoning
on which they were based and practical injustice in the
consequences that must flow from them, it is the duty of
the House of Lords to overrule them”.
Further this doctrine of precedent, however, cannot control questions
involving the construction and interpretation of the Constitution or at least
does not apply with the same force to the decisions on constitutional
questions as to other decisions. Even though the previous decisions will not
be entirely disregarded and may, in case of doubt, control the views of the
Court.
Henry J. Abrahams in his “The Judicial Process” quoted Douglas J of
the US Supreme Court saying that
“a judge looking a constitutional decision may have
compulsions to revere past history and accept what was
once written; but he remembers above all also that it is the
“Constitution which he swore to support and defend, not
the gloss which his predecessor may have put on it”.
In dealing with ratio decidendi to operate as a precedent, Salmond in
jurisprudence 12th Edition page 183 observed:-
“Where there are several different judgments, as in a case
on appeal, the ratio must be ascertained from the
judgments of those in favour of the final decision. A
dissenting judgment, valuable and important though it may
be, cannot count as part of the ratio, for it played no part in
the court’s reaching their decision. It may happen in an
90
appeal court that all the judges concur in the decision but
each one gives different reasons for it. In such a case one
can only follow the advice of Lord Dunedin, who said that
if it is not clear what the ratio decidendi was, then it is no
part of a later tribunal’s duty to spell out with great
difficultly a ratio decidendi in order to be bound by it.”
The petitioners, relying on the views of Shahabuddin Ahmed, J
expressed in Anwar Hossain’s case to the effect that in spite of these vital
changes from 1975 by destroying some of the basis structures of the
Constitution nobody challenged them in Court after revival of the
Constitution and consequently they were accepted by the people and by their
acquiescence have become part of the Constitution, submitted that in view of
the principle of acquiescence the writ petition is not maintainable.
However, the above view does not depict the correct law as can be seen
from the number of decisions cited hereinabove and secondly this statement is
simply an obiter diclum as it was made while dealing with the Eighth
Amendment and the Fifth Amendment was not in issue in the above decision
and the observation was also uncalled for and thirdly, no other judges in the
said case agreed with the said observation and as such it cannot be treated as
ratio decidendi so as to have binding force under article 111. It may be noted
here that four learned judges heard the appeal and out of them only M H
Rahman, J. concurred with Shahabuddin J’s decision that Eight Amendment
was unconstitutional and not with the above quoted observation of
Shahabuddin J regarding Fifth Amendment.
The next submission of the petitioners that the Fifth Amendment have
been accepted by the people and so it cannot be challenged in view of the
principle of waiver and acquiescence by delay.
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In this regard the High Court Division held as follows :
“Let us now consider the contention that whether the vires
of the Martial Law Proclamation etc. and the Fifth
Amendment, has become barred by waiver and
acquiescence, due to long delay in challenging those
provisions. It was further contended that this delay shows
that the people of Bangladesh had already accepted the Fifth
Amendment, ratifying the Martial Law Proclamations etc.
This proposition is anything but correct. Conclusions or
inferences based on the facts and circumstances may vary
with the change of social out-look or political situation but
what is legally wrong remains wrong for ever.
Similarly, if there is a violation of law, it remains a violation
for all time to come with consequential and inevitable
results. The law of adverse possession has got no
application in case of unconstitutional acts and events. One
must not loose sight that the Constitution is supreme and
every person in the Republic, be he is a servant of the
Republic or an ordinary citizen, owe his unquestionable,
unqualified and absolute loyalty to the Constitution. Any
attempt to deface the Constitution or to make it subservient
tantamounts to the offence of sedition of worst kind. The
Fifth Amendment sought to legalize such offences
committed by the Martial Law Authorities and the learned
the Advocates for the respondents submitted that it cannot
be questioned, because those Proclamations etc. were made
by the Martial Law Authorities, that the Fifth Amendment
itself provided that the ratification, confirmation and the
validation of those Proclamations etc. and the actions taken
thereon cannot be questioned before any Court, that it is
beyond question because no body challenged those in all
these years, as such, deemed to be waived or acquiesced.
Those arguments are neither legal nor logical. Those
arguments would not have been accepted even before the
Star Chamber not to speak in the dawn of 21st century.
Further, the answer in this respect has been aptly given by Denning L.J
in Oacker V Packer (1953)2 All ER 127 at page – 129 H
“ What is the argument on the other side ? Only this, that no
case has been found in which it has been done before. That
argument does not appeal to me in the least. If we never do
anything which has not been done before, we shall never get
92
anywhere .The law will stand still while the rest of the
world goes on, and that will be bad for both”.
Accordingly, we are also of the view that it is far, far better thing that
we do now, what should be done in the interest of justice, even it was not
done earlier.
We have already held that making of the Constitution subordinate and
subservient to the Martial Law Proclamations, Regulations and Orders are
absolutely illegal, void and non-est in the eye of law. So any attempt to
legalise this illegality in any manner or method and by any Authority or
Institution, how high so ever, is also void and non-est and remains so for ever.
Further, if the Constitution is wronged, it is a grave offence of
unfathomed enormity committed against each and every citizens of the
Republic. It is a continuing and recurring wrong committed against the
Republic itself. It remains a wrong against future generations of citizens. As
such, there cannot be any plea of waiver or acquiescence in respect of
unconstitutionality of a provision or an Act of Parliament.
As stated earlier the United States of America during its long and
eventful history, also passed through many a turbulent periods but none of its
amendments was made for anything but further advancement of civilization
and humanity but not to legalize illegal acts. Its purpose is not to engineer or
as a device to hide the illegal activities of usurpers or dictators but for
achieving further improvements, further refinements of the constitutional
position of the citizens of a Republic. This is the true spirit for amendment of
a Constitution, the supreme law of the Republic. If the Court finds that the
amendment is affected for a collateral and illegal purpose, the Court will not
93
be slow to declare it so in exercise of its high constitutional duties ordained
upon it. There is no law of limitation in challenging an unconstitutional
action, conduct, behaviour or acts. In such a situation, the cause of action is
recurring till such acts are judicially considered. Constitutional questions are
of utmost national as well as of legal interest and mere collateral observation
does not carry much of an importance than a bare passing remark without any
conviction.
In the case of Lois P-Myers V. United States 272 US 52 (1926) the
Tenure of Office Act of 1867 and an Act of Congress of 1876, were declared
invalid after more than 50 years after its enactment.
In the case of Proprietary Articles Trade Association V. Attorney
General of Canada 1931 All ER 277 PC, the vires of Combines Investigation
Act (1927) and Section 498 of the Criminal Code (1927) were under
challenge. In considering the question, Lord Atkin for the Board held at page-
280A:
“Their Lordships entertain no doubt that time alone will not
validate an Act which, when challenged, is found to be ultra
vires; nor will a history of a gradual series of advances till this
boundary is finally crossed avail to protect the ultimate
encroachment.”
In the case of Grace Brothers Proprietary Limited V. The Commonwealth
(1946) 72 C.L.R 269, the validity of the land Acquisition Acts 1906-1936
were challenged. In deciding the issue in the High Court of Australia, Dixon
J. held at page- 289:
“……..the plaintiffs next proceed to impugn the validity of the
Lands Acquisition Act 1906-1936 itself. Time does not run in
favour of the validity of legislation. If it is ultra vires, it cannot
gain legal strength from long failure on the part of lawyers to
perceive and set up its invalidity. At best, lateness in an attack
94
upon the constitutionality of a statute is but a reason for
exercising special caution in examining the arguments by which
the attack is supported.”
In the case of Frederick Walz V. Tax Commission of New York 25 L
Ed 2d 697 (397 US 664) (1970), grant of property tax exemptions under the
New York Constitution, to religions organizations were challenged on the
ground of violation of First Amendment of U.S. Federal Constitution. In
deciding the issue, Chief Justice Burger held at para – 12, page – 706:
“[12] It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long use, even
when that span of time covers our entire national existence and
indeed predates it”.
In the case of Motor General Traders V. State of Andhra Pradesh AIR
1984 SC 121, in considering the validity of section 32(b) of A.P. Buildings
Control Act of violative at Article 14 of the Constitution of India,
Venkataramiah, J., held at para –24:
“24. It is argued that since the impugned provision has been in
existence for over twenty three years and its validity has once
been upheld by the High Court, this Court should not pronounce
upon its validity at this late stage. There are two answers to this
proposition. First, the very fact that nearly twenty three years are
over from the date of the enactment of the impugned provision
and the discrimination is allowed to be continued unjustifiably
for such a long time is a ground of attack in these case.…….The
second answer to the above contention is that mere lapse of time
does not lend constitutionality to a provision which is otherwise
bad. Time does not run in favour of legislation. If it is ultra vires,
it cannot gain legal strength from long failure on the part of
lawyers to perceive and set up its invalidity. Albeit, lateness in
an attack upon the constitutionality of a statute is not a reason for
exercising special caution in examining the arguments by which
the attack is supported” (See W. A. Wvnes: ‘Legislative,
Executive and Judicial Powers in Australia’, Fifth Edition, p.
33). We are constrained to pronounce upon the validity of the
impugned provision at this late stage…..because the garb of
constitutionality which it may have possessed earlier become
95
worn out and its unconstitutionality is now brought to a
successful challenge.”
These well reasoned decisions only confirm our view that the plea of
waiver or acquiescence is no ground in considering the of vires of a
constitutional amendment or for that matter any law. Validity of an Act of
Parliament effecting an amendment of the Constitution is to be considered on
its own merit as to whether such an amendment violates the Constitution itself
even on a remote manner or not, but delay in challenging any such
amendment, on its own, is not a valid objection to such a challenge.
Rgarding the submission of the petitioners that the Appellate Division
in Anwar Hossain’s case already refused to consider the past amendments of
the Constitution which affected the basis structure of the Constitution, the
High Court held as follows:
“Referring to an observation of Shahabuddin Ahmed, J.(as his
Lordship then was), Mr. Akhtar Imam, Advocate, on behalf of
the respondent no. 3, submitted that the Appellate Division in
Anwar Hossain Chowdhury’s case already refused to consider
the past amendments of the Constitution which had admittedly
destroyed the basic structure of the Constitution, as such, the
learned Advocate submitted that it is now too late in the day
after a delay of about 26 years since the Constitution (Fifth
Amendment) Act was passed, to challenge its vires in view of
the above decision of the Appellate Division.
The learned Advocate in effect wanted to impress upon us that
the vires of the Constitution (Fifth Amendment) Act, 1979, had
already been duly considered by the Appellate Division in the
case of Anwar Hossain Chowdhury etc. V. Bangladesh 1989
BLD (Spl.) 1 and since the Court found on the basis of the
decision in Golak Nath’s case that the said constitutional
amendment was accepted by the people of Bangladesh and
became part of the Constitution by general acquiescence, the
legality of the said Constitution (Fifth Amendment) Act, cannot
now be re-opened all over again.
These contentions raised on behalf of the respondents, on the
face of it have no legs to stand on. These contentions are
96
fallacious, misconceived and have no substance. However, we
shall deal with these contentions in some details to repel any
confusion in these regards.
The main plank of the above noted arguments are based on an
observation of Shahabuddin Ahmed, J., in the case of Anwar
Hossain Chowdhury etc. V. Bangladesh 1989 BLD (Spl.) 1.
The said observations were made at para-332 of his Lordship’s
Judgment:
“In spite of these vital changes from 1975 by destroying some
of the basic structures of the Constitution, nobody challenged
them in court after revival of the Constitution; consequently,
they were accepted by the people, and by their acquiescence
have become part of the Constitution. In the case of Golak
Nath, the Indian Supreme Court found three past amendments
of their Constitution invalid on the ground of alteration of the
basic structures, but refrained from declaring them void in
order prevent chaos in the national life and applied the Doctrine
of Prospective Invalidation for the future. In our case also the
past amendments which were not challenged have become part
of the constitution by general acquiescence. But the fact that
basic structures of the Constitution were changed in the past
cannot be, and is not, accepted as a valid ground to answer the
challenge to future amendment of this nature, that is, the
Impugned Amendment may be challenged on the ground that it
has altered the basic structure of the Constitution.”
On the basis of this observation, the learned Advocates for the
respondents stoutly submitted that the Fifth Amendment has
been accepted by the people of Bangladesh by acquiescence
and is now part of the Constitution, so also Martial Law culture
and jurisprudence and cannot now its validity be challenged all
over again. The learned Advocates argued these contentions on
the basis of the decision of the Supreme Court of India in the
case of Golak Nath V. State of Punjab AIR 1967 SC 1643 but
without at all appreciating the context and perspective of the
said decision, as such, it is necessary to recapitulate the said
decision and its background.
In Kesavananda Bharat’s case, AIR, (SC) Sikri, C.J.explained the
matter at para-487 as follows:
“In this connection I may deal with the argument that the
device of Art. 31B and the Ninth Schedule has up till now been
upheld by this Court and it is now too late to impeach it. But
the point now raised before us has never been raised and
97
debated before. As Lord Atkin observed in Proprietary Articles
Trade Association v. Attorney-General for Canada, 1931 AC
310 at “Their Lordships entertain no doubt that time alone will
not validate an Act which when challenged is found to be
ultravires ; nor will a history of a gradual series of advances till
this boundary is finally crossed avail to protect the ultimate
encroachment.
If any further authority is needed, I may refer to Attorney-
General for Australia v. The Queen and the Boilermakers’
Society of Australia, 1957 AC 288 at p. 328. The Judicial
Committee, while considering the question whether certain
sections of the Conciliation and Arbitration Act, 1904-1952
were ultra vires inasmuch as the Commonwealth Court of
Conciliation and Arbitration had been invested with the
executive powers along with the judicial powers, referred to the
point why for a quarter of century no litigant had attacked the
validity of this obviously illegitimate union, and observed :
“Whatever the reason may be, just as there was a patent
invalidity in the original Act which for a number of years went
unchallenged, so for a greater number of years an invalidity
which to their Lordships as to the majority of the High Court
has been convincingly demonstrated, has been disregarded.
Such clear conviction must find expression in the appropriate
judgment.”
M. H. Rahman, J., in Anwar Hossain’s case at para 442 referring to the
self-same submission of the learned Attorney General answered as follows:-
“442. After referring to the various past amendment
particularly the Fourth Amendment, the learned Attorney
General has submitted that the Constitution has undergone so
many radical changes with regard to the Preamble, powers of
the President and several other important matters that the
doctrine of basic structure merely evokes anamazement why if
it is such an important principles of law (and it had already
been propounded by the Indian Supreme Court in 1973) it was
not invoked earlier in this Court. I find no force in this
contention. Because the principle was not invoked in the past
the Court cannot be precluded now from considering it.”
Under the circumstances, the contentions of the learned Advocates for
the respondents that the Fifth Amendment had already been accepted by the
people of Bangladesh by acquiescence, have got no substance.
98
Regarding the question of res judicata it appears that the order dated
7.6.1994 passed by the High Court Division in Writ Petition No. 802 of 1994
and the Judgment dated 5.7.1999 passed by the Appellate Division in Civil
Appeal No. 15 of 1997 also show that the Constitution (Fifth Amendment)
Act, 1979, was not judicially considered earlier. As such, there is no reason as
to why we would not consider not only the legality of the Martial Law
Proclamations etc. but also its legalization, ratification, confirmation and
validation by inserting paragraph 18 in the Fourth Schedule to the
Constitution by virtue of Section 2 of the Constitution (Fifth Amendment)
Act, 1979, specially when the Rule was issued in that manner and form.
An effort has also been made by the petitioners to apply the principle of
estoppel and acquiescence to prevent the Fifth Amendment from being
declared ultra vires but it is a well-established principle that estoppel cannot
be pleaded against or in respect of a statute, much less to speak of the
Constitution. Similarly, there cannot be any acquiescence to hold valid an
otherwise invalid law.
The learned counsel of the petitioners submitted that Article 150 of the
Constitution provides a bar upon the High Court Division to entertain writ in
respect of transitional or temporary provision.
Article 150 reads as follows :
……………………………………
English Text is:-
“150. The transitional and temporary provisions set out in the
Fourth Schedule shall have effect notwithstanding any other
provisions of this Constitution.”
In this regard the High Court Division held as follows:-
99
Article 150 of the Constitution provides that transitional and
temporary provisions would be set out in the Fourth schedule.
This provision finds its place almost at the end of the
Constitution. It is preceded by Article 149, the saving clauses
for the existing laws and followed by three other Articles,
namely, Article 151, which deals with the repeal of certain
President’s Orders, Article 152 narrates the interpretations of
various words and Article 153 provides the date of
commencement of the Constitution, its citation and
authenticity.
In pursuance to the above Article in the Constitution, various
transitional and temporary provisions were set out in details in
the Fourth Schedule to the Constitution.
The heading of the Fourth Schedule reads as ‘μvwš—Kvjxb’ and
‘A¯’vqx’ weavbejx. Its English version is ‘Transitional and
temporary provisions’.
Both Article 150 and heading of the Fourth Schedule show that
the said Article, as well as the Fourth schedule, as set out in
pursuance to Article 150, deals with transitional interim
measures. A brief examination of the provisions originally
contained in the Fourth Schedule with its English text, would
make it clear.
Then the High Court Division after quoting paragraph Nos.1 -17 of the
Fourth Schedule further held as follows:
……………………………………………………………….
“These are provided in pursuance to Article 150. These
provisions| were necessary to protect various laws, actions and
decisions, made, taken or pronounced since the declaration of
Independence on March 26, 1971.
Jurisprudentially, the necessity for provisions for transitional
and temporary provisions cannot be ignored. The provisions are
generally made for the purpose of transition from the old legal
order to a new one to ensure continuity of the legality of the
new State. As such, of necessity, these provisions were made so
that no legal vacuum occurs during the period from the time
when a new nation came into existence till a Constitution of the
said nation is framed. Obviously these provisions by its very
nature, character and purpose, are of transitional and also of
temporary status and ambit. The facts, circumstances and
incidents leading to the making of those interim measures were
necessary for the smooth transition and continuance of the
functions of the young Republic of Bangladesh as a legal entity
100
of a Republic. Those interim measures were a legal necessity
and could not be avoided.
As such, the purpose of Article 150 is limited upto the
commencement of the Constitution and of any period
mentioned in the Fourth Schedule. The ambit of this Article can
not be extended beyond the commencement of the Constitution
or any period mentioned in the Fourth Schedule. In this regard
we must keep in view the words ‘transitional’ and ‘temporary’
appearing in Article 150. In the Bengali text of the Article 150
words ‘μvwš—Kvjxb’ and ‘A¯’vqx’ are used. The ordinary dictionary
meaning of the word ‘‘μvwš—Kvjxb’ according to the Bengali
Dictionary, published by Bangla Academy, 6th Edition, March,
2005, is ‘Ae¯’v cwieZ©‡bi mgq’ and the meaning of the
word ‘A¯’vqx’ are AíKvj ¯’vqx, ¶Y¯’vqx, ¯’vqx bq Ggb,
mvgwqK. Similarly, the meaning of the word ‘transition’
according to The Oxford Dictionary and Thesaurus, Edited by
Sara Tulloch, 1997, is ‘a passing or change from one place,
state, condition, etc., to another (an age of transition).
According to The Chambers Dictionary, Deluxe Edition, Indian
Edition, 1993, the meaning of the word ‘transition’ is passage
from one place, state, stage, style or subject to another.
…………………………………………………………………
……………………………………………………………
From these words it is so very clear that the purpose of Article
150 of the Constitutions only to protect various provisions,
functions of different functionaries and all other actions taken
since the declaration of independence and till the
commencement of the Constitution. As such, the purpose of
Article 150 is limited apparently only for that period and for a
specific purpose.
…………………………………
…………………………………
It is very true that the Parliament by following the procedure
mentioned in Article 142, may add any provision in the
Constitution so long its basic structure is not disturbed but
Article 150 is a special provision. It deals with only the
transitional and temporary provisions prior to the
commencement of the Constitution. This provision cannot be
used to enlarge the Fourth Schedule, by addition of the
provisions which related to the period after the commencement
of the Constitution. If necessary, the Parliament may add any
provision to the Constitution by way of amendment, without,
however, changing its basic character but cannot enlarge the
Fourth Schedule by adding any provision which is not a
101
provision made during ‘μvwšKvjxb’ (‘transitional’) which ended
with the enactment and commencement of the Constitution on
December 16, 1972.
During the period between August 15, 1975 to April 9, 1979,
the Constitution was made subordinate and subservient to the
Martial Law Proclamations etc. The provisions of the
Constitution was changed at the whims and caprices of the
usurpers and dictators. We have already found that during the
said period democracy was replaced by dictatorship and since
November 1975, on the dissolution of the National Assembly,
Bangladesh lost its republican character. Besides, Bangladesh
can not even be considered independent during the said period.
Earlier, it was conquered by the British Rulers, thereafter it was
under the domination of the West Pakistanis. But this time, for
all practical purposes, Bangladesh was conquered not by any
foreign invaders but by Bengali speaking Martial Law
Authorities.
Article 150 is certainly not meant to be abused by the usurpers
for post facto legalization of their illegal and illegitimate
activities which were beyond the ambit of the Constitution. As
a matter of fact, realizing that all the Martial Law
Proclamations etc. were un-constitutional, they sought to make
those legal by incorporating those provisions as part of the
Constitution. But the Fourth Schedule is not meant for dumping
ground for illegal provisions. Rather, what is wrong and illegal
remains so for all time to come. Besides, no one can take
advantage of his own wrongs.
The Constitution is a sacred document, because it is the
embodiment of the will of the people of Bangladesh. It is not to
be treated as a log book of Martial rules.
It appears that Paragraph 3A and 18 to the Fourth Schedule,
sought to ratify, confirm, validate and legalise all illegal and
illegitimate provisions of Martial Law Proclamations, Martial
Law Regulations and Martial Law Orders. Those Provisions
and the actions taken thereon in violation of the Constitution,
were not only illegal but seditious acts on the part of the
Martial Law Authorities, as such, by any stretch of
imagination, those provisions and the actions taken thereon
come within the ambit of the word ‘μvwš—Kvjxb’ or ‘transitional’.
As such, those unconstitutional provisions were wrongly and
illegally thrust in to the Fourth Schedule presumably in the
garb of transitional and temporary provisions and thereby a
fraud has been committed on the Constitution by such
amendments.”
102
We are of the view that the High Court Division unnecessarily dealt
with Article 150 of the Constitution. As it appears paragraphs 21 and 22 as
included in the Fourth Schedule are the results of the Eleventh and Twelfeth
Amendment which were enacted in order to strike down remaining portion of
the provisions of the Fourth and Fifth Amendment. As will be discussed later
on in details, the Fifth Amendment which ratified and validated paragraphs
3A and 18, is ultravires because it ratified and validated the Martial Law
Proclamations, Regulations and Orders made by the authorities not
recognized by the Constitution and Article 142 thereof. Since paragraphs 21
to 22 of the Fourth Schedule were accomodated in order to protect the
Eleventh and Twelveth Amendments by way of insertion of para 21 and 22 in
the Fourth Schedule, therefore all observations made by the High Court
Division regarding Article 150 and Fourth Schedule and also the findings
thereof, are hearby expunged.
It was submitted by the petitioners that identification of the principles
of nationalism, socialism and seclularism by the High Court Division as the
basic structures of the Constitution has no legal foundation and the same are
contrary to the decision given by the Appellate Division in Anowar Hossain’s
case.
As it appears the High Court Division prepared a chart showing the
paragraphs of original Preamble and Articles 6, 8, 9, 10, 12, 25, 38 and 142 of
the Constitution and also the amended versions of those after enactments of
the Fifth Amendment. The above chart along with other particulars as given
by the High Court Division are reproduced below:
103
“Before we discuss the above, as already stated the
Praclamations (Amendment) Order, 1977 (Proclamations Order
No.1 of 1977) (Annexure-L-1 to the writ petition), replaced
many of the paragraphs in the Preamble and in various
provisions of the Constitution. The Proclamation was published
in Bangladesh Gazette Extraordinary on April 23, 1977. This
Proclamation made the following changes in the Constitution,
amongst others”:
Original Constitution Proclamations (Amendment)
Order, 1977
1. First Paragraph of the Preamble:
We, the people of Bangladesh,
having proclaimed our
Independence on the 26th day of
March 1971 and, through a
historic struggle for national
liberation, established the
independent, sovereign People’s
Republic of Bangladesh;
1. First Paragraph of the Preamble:
We, the people of Bangladesh,
having proclaimed our
independence on the 26th day of
March, 1971 and through [a
historic war for national
independence], established the
independent, sovereign People’s
Republic of Bangladesh;
2. Second Paragraph of the
Preamble:
Pledging that the high ideals of
nationalism, socialism,
democracy and secularism which
inspired our heroic people to
dedicate themselves to, and our
brave martyrs to sacrifice their
lives in, the national liberation
struggle, shall be the fundamental
principles of the constitution;
2. Second Paragraph of the Preamble:
Pledging that the high ideals of
absolute trust and faith in the
almighty Allah, nationalism,
democracy and socialism meaning
economic and social justice, which
inspired our heroic people to
dedicated themselves to, and our
brave martyrs to sacrifice their
lives in, the war for national
independence, shall be the
fundamental principles of the
Constitution;
3. Article-6:
Citizenship of Bangladesh shall
be determined and regulated by
law; citizens of Bangladesh shall
be known as Bangalees.
3. Article-6:
(1) The citizenship of Bangladesh
shall
be determined and regulated by
law.
(2) The citizens of Bangladesh
shall be known as
Bangladeshis.
4. Article-8:
(1) The principles of nationalism,
socialism, democracy and
4. Article-8:
(1) The principles of absolute trust
and faith in the almighty Allah,
104
secularism, together with the
principles derived from them
as set out in this Part, shall
constitute the fundamental
principles of state policy.
(2) The principles set out in this
Part shall be fundamental to
the governance of
Bangladesh, shall be applied
by the State in the making of
laws, shall be a guide to the
interpretation of the
Constitution and of the other
laws of Bangladesh and shall
form the basis of the work of
the State and of its citizens,
but shall not be judicially
enforceable.
nationalism, democracy and
socialism meaning economic
and social justice, together with
the principles derived from
them as set out in this Part,
shall constitute the fundamental
principles of state policy.
(1A)Absolute trust and faith in the
Almighty Allah shall be the
basis of all actions.]
(2) The principles set out in this
Part shall be fundamental to the
governance of Bangladesh,
shall be applied by the State in
the making of laws, shall be a
guide to the interpretation of
the Constitute and of the other
laws of Bangladesh, and shall
form the basis of the work of
the State and of its citizens, but
shall not be judicially
enforceable.
5. Article-9:
The unity and solidarity of the
Bangalee nation, which, deriving its
identity from its language and
culture, attained sovereign and
independent Bangladesh through a
united and determined struggle in
the war of independence, shall be
the basis of Banglaee nationalism.
5. Article-9:
The State shall encourage local
Government institutions composed
of representatives of the areas
concerned and in such institutions
special representation shall be given,
as far as possible, to peasants,
workers and women.
6. Article-10:
A socialist economic system shall
be established with a view to
ensuring the attainment of a just
and egalitarian society, free from
the exploitation of man by man.
6. Article-8:
Steps shall be taken to ensure
participation of women in al
spheres of national life.
7. Article-12:
The principle of secularism shall be
realized by the examination of-
(a) communalism in all
its forms;
(b) the granting by the
State of political
status in favour of
any religion;
(c) the abuse of religion
7. Article-12 was deleted.
105
for political
purposes;
any discrimination
against, or persecution
of, persons practicing a
particular religion.
8. Clause 2 of Article-25 was not
there.
8. Article-25:
[(2) The State shall endeavour to
consolidate, preserve and
strengthen fraternal relations
among Muslim countries based on
Islamic solidarity.]
9. Article-38:
Every citizen shall have the right
to form associations or unions,
subject to any reasonable
restrictions imposed by law in the
interests of morality or public order:
Provide that no person shall have
the right to form, or be a member or
otherwise taken part in the activities
of, any communal or other
association or union which in the
name or on the basis of any religion
has for its object, or pursues, a
political purpose.
9. Article-38:
Every citizen shall have the right
to rorm associations or unions,
subject to any reasonable restrictions
imposed by law in the interests of
public order or public health.
10 Article-42:
(2) A law made under clause (1)
shall provide for the acquisition,
nationalization or requisition
with or without compensation,
and in a case where it provides
for compensation shall fix the
amount or specify the principles
on which, and the manner in
which , the compensation is to
be assessed and paid; but no
such law shall be called in
question in any Court on the
ground that it does not provide
for compensation or that any
provision in respect of such
compensation is not adequate.
10. Article-42:
(2) a law made under clause (1) shall
provide for the acquisition,
nationalization or requisition with
compensation and shall either fix the
amount of compensation or specify
the principles on which, and the
manner in which the compensation is
to be assessed and paid; but no such
law shall be called in question in any
Court on the ground that any
provision in respect of such
compensation is not adequate.
Besides, a new paragraph being paragraph 3A was added to
the Fourth Schedule of the Constitution in order to validate all
Proclamations. MLRs and MLOs and all actions taken
106
thereon since August 15, 1975, till revocation of the
Proclamations and the withdrawal of the Martial Law.
All the above changes were made in the English text of the
Constitution but the original Bengali version of the
Constitution remained as it was. The Bengali version of those
and other and further changes in the Constitution were made
by the Second Proclamation (Fifteenth Amendment) Order,
1978 (Second Proclamation Order No. IV of 1978). Section 2,
Clause (3) reads as follows:
“2. Amendment of the Second Proclamation. In the
Proclamation of the 8th November, 1975.
...................................................................................................
...................................................................................................
(3) after clause (gc), the following new clause shall be
inserted, namely:
“(gd) the provisions of the Bengali text of the Constitution
shall be amended in the manner specified in the Second
Schedule to this Proclamation;”
Earlier, some minor changes were made in Article 142 by the
Constitution (Second Amendment) Act, 1973 but
subsequently Article 142 and the Bengali version of Article
38 were also changed by the above Second Proclamation
Order No. IV of 1978.
Original Constitution Proclamations (Amendment) Order,
1978
1| cÖ¯Ívebvi cÖ_g Aby‡”Q`t
Avgiv, evsjv‡`‡ki RbMY, 1971 Lªxóv‡ãi
gvP© gv‡mi 26 Zvwi‡L m¦vaxbZv †Nvlbv
Kwiqv RvZxq gyw³i Rb¨ HwZnvwmK
msMªv‡gi gva¨‡g m¦vaxb I mve©‡fŠg
MYcÖRvZš¿x evsjv‡`k cÖwZwôZ KwiqvwQ|
1| cÖ¯Ívebvi cÖ_g Aby‡”Q`t
Avgiv, evsjv‡`‡ki RbMY, 1971 Lªxóv‡ãi
gvP© gv‡mi 26 Zvwi‡L m¦vaxbZv †Nvlbv
Kwiqv RvZxq m¦vaxbZvi Rb¨ HwZnvwmK
msMªv‡gi gva¨‡g m¦vaxb I mve©‡fŠg
MYcÖRvZš¿x evsjv‡`k cÖwZwôZ KwiqvwQ|
2| cÖ¯Ívebvi wØZxq Aby‡”Q`t
Avgiv AsMxKvi Kwi‡ZwQ †h,†h mKj gnvb
Av`k© Avgv‡`i exi RbMY‡K RvZxq
gyw³msMªv‡g AvZ¥wb‡qvM I exi knx`w`M‡K
cÖv‡YvrmM© Kwi‡Z D×y×
KwiqvwQjÐRvZxqZvev`, mgvRZš¿ , MYZš¿
I ag©wbi‡c¶Zvi†mB mKj Av`k© GB
msweav‡bi gyj bxwZ nB‡et
2| cÖ¯Ívebvi wØZxq Aby‡”Q`t
Avgiv AsMxKvi Kwi‡ZwQ †h, †h mKj gnvb
Av`k© Avgv‡`i exi RbMY‡K RvZxq
m¦vaxbZvi Rb¨ hy‡× AvZ¥wb‡qvM I exi
knx`w`M‡K cÖv‡YvrmM© Kwi‡Z D×y×
KwiqvwQj me©kw³gvb Avj−vni Dci cyY©
Av¯’v I wek¦vm, RvZxqZvev`, MYZš¿ Ges
mgvRZš¿ A_©¨vr A_©‰bwZK I mvgvwRK
mywePv‡ii †mB mKj Av`k© GB msweav‡bi
gyjbxwZ nB‡et
107
3| Aby‡”Q` Ð6t
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wba©vwiZ I wbqwš¿Z nB‡e; evsjv‡`‡ki
bvMwiKMY evsMvjx ewjqv cwiwPZ nB‡eb|
3| Aby‡”Q` Ð6t
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wba©vwiZ I wbqwš¿Z nB‡e|
4| Aby‡”Q` Ð8t
(1) RvZxqZvev`, mgvRZš¿, MYZš¿ I
ag©wbi‡c¶ZvÐGB bxwZmg~n Ges Zrmn
GB bxxZmgyn nB‡Z D™¢~Z GB fv‡M ewY©Z
Ab¨ mKj bxwZ ivóª cwiPvjbvi g~j bxwZ
ewjqv cwiMwYZ nB‡e|
(2) GBfv‡M ewY©Z bxwZmg~n
evsjv‡`kÐcwiPvjbvi g~jm~Î nB‡e,
AvBb cÖYqYKv‡j ivóª Zvnv cÖ‡qvM
Kwi‡eb, GB msweavb I evsjv‡`‡ki
Ab¨vb¨ AvB‡bi e¨vL¨v`v‡bi †¶‡Î Zvnv
wb‡`©kK nB‡e, Z‡e GB mKj bxwZ mKj
Av`vj‡Zi gva¨‡g eje†hvM¨ nB‡e bv|
4| Aby‡”Q` Ð8t
(1) me©Ðkw³gvb Avj−v‡ni Dci c~Y© Av¯’v I
wek¦vm, RvZxqZvev`, MYZš¿ Ges
mgvRZš¿ A_©vr A_©‰bwZK I mvgvwRK
mywePvi Ð GB bxwZ mgyn Ges Zrmn GB
bxwZmg~n nB‡Z D™¢yZ GBfv‡e ewY©Z
Ab¨ mKj bxwZ ivóª cwiPvjbvi g~jbxwZ
ewjqv cwiMwYZ nB‡e|
(1K) me©Ðkw³gvb Avj−v‡ni Dci c~Y© Av¯nv I
wek¦vmn nB‡e hveZxq Kvh©vjxi wfwË|
(2) GB fv‡M ewY©Z bxwZmg~n
evsjv‡`kÐcwiPvjbvi g~jm~Î nB‡e,
AvBbÐcÖYqbKv‡j ivóª Zvnv cÖ‡qvM
Kwi‡eb, GB msweavb I evsjv‡`‡ki
Ab¨vb¨ AvB‡bi e¨vL¨v`v‡bi†¶‡Î Zvnv
wb‡`©kK nB‡e Ges Zvnv ivóª I
bvMwiK‡`i Kv‡h©i wfwË nB‡e, Z‡e GB
mKj bxwZ Av`vj‡Zi gva¨‡g
ejer‡hvM¨ nB‡e bv|
5| Aby‡”Q`Ð9t
fvlvMZ I ms¯K„wZMZ GKK
mËvwewkó†h evOvjx RvwZ HK¨e× I
msKíe× msMªvg Kwiqv RvZxq gyw³hy‡×i
gva¨‡g evsjv‡`‡ki m¦vaxbZv I
mve©‡fŠgZ¡ AR©b Kwiqv‡Qb, †mB evOvjx
RvwZi HKv I msnwZ nB‡e evOvjx
RvZxqZvev‡`i wfwË|
5| Aby‡”Q`Ð9t
ivóª mswk−ó GjvKvi cÖwZwbwaMY mgb¦‡q
MwVZ ¯’vbxq kvmb msμvš— cÖwZôvb
mg~n‡K Drmvn `vb Kwi‡eb Ges GB
mKj cÖwZôvbmg~n‡K Drmvn `vb
Kwi‡eb Ges GB mKj cÖwZôvbmg~n‡K
K…lK, kÖwgK Ges gwnjvw`M‡K h_vm¤¢e
we‡kl cÖwZwbwaZ¡ †`Iqv nn‡e|
6| Aby‡”Q`Ð10t
gvby‡li Dci gvby‡li †kvab nB‡Z gy³ b¨vqvbyM
I mvg¨ev`x mgvRjvf wbwðZ Kwievi D‡Ï†k¨
mgvRZvwš¿K A_©‰bwZK eve¯’v cÖwZôv Kiv
nB‡e|
6| Aby‡”Q`Ð10t
RvZxq Rxe‡bi me©¯Í‡i gwnjv‡`i AskMªnb
wbwðZ Kwievi e¨e¯’v Mªnb Kiv nB‡e|
7| Aby‡”Q`Ð12t
ag©wbi‡c¶Zvi bxwZ ev¯Íevq‡bi Rb¨
(K) me©cÖKvi mv¤cÖ`vwqKZv,
(L) ivóª KZ©„K †Kvb ag©‡K ivR‰bwZK
gh©v`v`vb,
(M) ivR‰bwZK D‡Ï‡k¨ a‡gÔ©i Ace¨envi,
(N) †Kvb we‡kl ag©cvjbKvix e¨w³i cªwZ
‰elg¨ ev Zuvnvi Dci wbcxoY we‡jvc Kiv
nB‡e|
7| Aby‡”Q`Ð12t wejyß|
8| Aby‡”Q`Ð25t 8| Aby‡”Q`Ð25t
108
(2) Abycw¯’Z| (1) ......................................................
(2) ivóª Bmjvgx msnwZi wfwˇZ gymwjg†`k
mg~‡ni g‡a¨ åvZ„Z¡ m¤úK© msnZ, msi¶Y
Ges †Rvi`vi Kwi‡Z m‡Pó nB‡eb|
9| Aby‡”Q`Ð38t
Rbk„sLjv I ‰bwZKZvi m¦v‡_© AvB‡bi Øviv
Av‡ivwcZ gyw³ msMZ evavwb‡la mv‡c‡¶
mwgwZ ev msN MVb Kwievi AwaKvi cÖ‡Z¨K
bvMwi‡Ki _vwK‡e| Z‡e kZ© _v‡K †h,
ivR‰bwZK D‡Ïk¨m¤úboe ev j¶¨vbymvix †Kvb
mv¤cÖ`vwqK mwgwZ ev msN wKsev Abyi“c
D‡Ïk¨ ev j¶¨vbymvix ag©xq bvghy³ ev
ag©wfwËK Ab¨‡Kvb mwgwZ ev msN MVb Kwievi
ev Zvnvi m`m¨ nBevi ev Ab¨†Kvb cÖKv‡i
Zvnvi ZrciZvq Ask Mªnb Kwievi AwaKvi
†Kvb e¨w³i _vwK‡e bv|
9| Aby‡”Q`Ð38t
Rbk„•Ljv I ‰bwZKZvi m¦v‡_© AvB‡bi Øviv
Av‡ivwcZ hyw³msMZ evavwb‡la Ð mv‡c‡¶
mwgwZ ev m½ MVb Kwievi AwaKvi cÖ‡Z¨K
bvMwi‡Ki _vwK‡et
10| Aby‡”Q`Ð42t
(2) GB Aby‡”Q‡`i (1) `dvi Aaxb cÖYxZ
AvB‡b ¶wZc~i‡Y eva¨ZvgyjKfv‡e Mªnb,
ivóªvqËKiY ev `L‡ji weavb Kiv nB‡e Ges
†Kvb †¶‡Î ¶wZc~i‡Yi weavb Kiv nB‡j Zvnvi
cwigvb wba©viY wKsev Abyi“c ¶wZc~iY wbY©q I
cÖ`v‡bi bxwZ I c×wZ wbw`©ó Kiv nB‡e, Z‡e
Abyi“c †Kvb AB‡b ¶wZc~i‡Yi weavb Kiv nq
bvB ewjqv wKsev ¶wZc~i‡Yi weavb Ach©vß
nBqv‡Q ewjqv †mB AvBb m¤ú‡K© †Kvb
Av`vj‡Z †Kvb cÖkoe DÌvcb Kiv hvB‡e bv|
10| Aby‡”Q`Ð42t
(2) GB Aby‡”Q‡`i (1) `dvi Aaxb cÖYxZ
AvB‡b ¶wZc~iYmn eva¨Zvg~jKfv‡e MªnY,
ivóªvqËKiY ev `L‡ji weavb Kiv nB‡e Ges
¶wZc~i‡Yi cwigvY wba©viY, wKsev ¶wZc~iY
wbY©q ev cÖ`v‡bi bxwZ I c×wZ wbw`©ó Kiv
nB‡e, Z‡e Abyi“c †Kvb AvB‡b ¶wZc~i‡Yi
weavb Ach©vß nBqv‡Q ewjqv †mB AvBb m¤ú‡K©
†Kvb Av`vj‡Z †Kvb cÖkoe DÌvcb Kiv hvB‡e
bv|
11| Aby‡”Q`Ð142t
(1) GB msweav‡b hvnv ejv nBqv‡Q, Zvnv
m‡Ë¡I
(K) msm‡`i AvBb Øviv GB msweav‡bi †Kvb
weavb ms‡kvwaZ nB‡Z cvwi‡et
Z‡e kZ© _v‡K †h,
(A)Abyi“c ms‡kvabxi Rb¨ AvbxZ †Kvb
we‡ji m¤ú~bB wkibvgvq GB
msweav‡bi†Kvb weavb ms‡kvab Kiv nB‡e
ewjqv ¯úói“‡c D‡j−L bv _vwK‡j wejwU
we‡ePbvi Rb¨ Mªnb Kiv nB‡e bv ;
(Av) mPm‡`i†gvU m`m¨ÐmsL¨vi Ab~¨b
`yBÐZ„Zxqvsk †fv‡U M„nxZ bv nB‡j
Abyi“c†Kvb we‡j m¯§wZ`v‡bi Rb¨ Zvnv
ivóªcwZi wbKU Dc¯nvwcZ nB‡e bv ;
(L) DcwiD³ Dcv‡q†Kvb wej M„nxZ nBevi ci
m¯§wZi Rb¨ ivóªcwZi wbKU Zvnv
11| Aby‡”Q`Ð142t
(1) GB msweav‡b hvnv ejv nBqv‡Q, Zvnv
m‡Ë¡I
(K) msm‡`i AvBb Øviv GB msweav‡bi
†Kvb weavb ms‡hvRb, cwieZ©b,
cÖwZ¯’vcb ev iwnZKi‡Yi Øviv
ms‡kvwaZ nB‡Z cvwi‡et
(A) Abyi“c (ms‡kvabxi) Rb¨ AvbxZ
†Kvb we‡ji m¤ú~b© wkibvgvq GB
msweav‡bi †Kvb weavb ms‡kvab
Kiv nB‡e ewjqv ¯úói“‡c D‡j−L
bv _vwK‡j wejwU we‡ePbvi Rb¨
Mªnb Kiv nB‡e bv;
(Av) msm‡`i †gvU m`m¨ÐmsL¨vi
Ab~¨b `yBÐZ„Zxqvsk †fv‡U M„nxZ
bv nB‡j Abyi“c †Kvb we‡j
109
Dc¯nvwcZ nB‡j Dc¯nvc‡bi mvZ w`‡bi
g‡a¨ wZwb wejwU‡Z m¯§wZ`vb Kwi‡eb,
Ges Zvnv Kwi‡Z Amg_© nB‡j D³†gqv‡`i
Aemv‡b wZwb wejwU‡Z m¯§wZ`vb Kwiqv‡Qb
ewjqv MY¨ nB‡e|
(L) GB Aby‡”Q‡`i Aaxb cÖYxZ †Kvb
ms‡kva‡bi †¶‡Î 26 Aby‡”Q‡`i †Kvb
wKQyB cÖ‡hvR¨ nB‡e bv|
m¤§wZ`v‡bi Rb¨ Zvnv ivóªcwZi
wbKU Dc¯’vwcZ nB‡e bv;
(L) DcwiD³ Dcv‡q †Kvb wej M„nxZ
nBevi ci m¤§wZi Rb¨ ivóªcwZi
wbKU Zvnv Dc¯’vwcZ nB‡j
Dc¯’vc‡bi mvZ w`‡bi g‡a¨ wZwb
wejwU‡Z m¤§wZ`vb Kwi‡eb, Ges Zvnv
Kwi‡Z Amg_© nB‡j D³ †gqv‡`i
Aemv‡b wZwb wejwU‡Z m¤§wZ`vb
Kwiqv‡Qb ewjqv MY¨ nB‡e|
(1K) (1) `dvq hvnv ejv nBqv‡Q, Zvnv
m‡Z¡I GB msweav‡bi cÖ¯Ívebvi
A_ev 8, 48, ev 56 Aby‡”Q` A_ev
GB Aby‡”Q‡`i †Kvb weavbvejxi
ms‡kva‡bi e¨e¯’v iwnqv‡Q GBi“c
†Kvb wej DcwiÐD³ Dcv‡q MªnxZ
nBevi ci m¤§wZi Rb¨ ivóªcwZi
wbKU Dc¯’vwcZ nB‡j Dc¯’vc‡bi
mvZ w`‡bi g‡a¨ wZwb wejwU‡Z
m¤§wZ`vb Kwi‡eb wK Kwi‡eb bv
GB cÖkoewU MY‡fv‡U †cÖi‡Yi e¨e¯’v
Kwi‡eb|
(1L) GB Aby‡”Q‡`i Aaxb MYЇfvU msm`
wbe©vP‡bi Rb¨ cÖ¯ÍyZK…Z †fvUvi
ZvwjKvf~³ e¨w³M‡Yi g‡a¨ wbe©vPb
Kwgkb KZ©„K AvB‡bi Øviv wba©vwiZ
†gqv‡`i g‡a¨ I c×wZ‡Z cwiPvwjZ
nB‡e|
(1M)GB Aby‡”Q‡`i Aaxb †Kvb wej m¤ú‡K©
cwiPvwjZ MYЇfv‡Ui djvdj
†hw`b †NvwlZ nq †mB w`bÐ
(A) cÖ`Ë mgy`q †fv‡Ui msL¨vMwiô
†fvU D³ we‡j m¤§wZ`v‡bi
c‡¶ cÖ`vb Kiv nBqv _vwK‡j,
ivóªcwZ wejwU‡Z m¤§wZ`vb
Kwiqv‡Qb ewjqv MY¨ nB‡e,
A_ev
(Av) cÖ`Ë mgy`q †fv‡Ui
msL¨vMwiô †fvU D³ we‡j
m¤§wZ`v‡bi c‡¶ cÖ`vb Kiv bv
nBqv _vwK‡j, ivóªcwZ wejwU‡Z
m¤§wZ`v‡b weiZ iwnqv‡Qb
ewjqv MY¨ nB‡e|
(1N) (1M) `dvi †Kvb wKQyB gwš¿mfv ev
msm‡`i Dci Av¯’v Av Avbv¯’v
ewjqv MY¨ nB‡e bv|
110
(2) GB Aby‡”Q‡`i Aaxb cÖYxZ †Kvb
ms‡kva‡bi †¶‡Î 26 Aby‡”Q‡`i
†Kvb wKQyB cÖ‡hvR¨ nB‡e bv|
12. Article-142:
Notwithstanding anything contianed
in this Constitution –
(a) any provision thereof may
amended by way of addition,
alteration, substitution or repeal
by Act of Parliament:
Provided that-
(i) no Bill for such
amendment shall be allowed
to proceed unless the
longtitle there expressly
states that it will amend a
provision of the Constitution;
(ii) no such Bill shall be
presented to the President for
assentunless it is passed by
the votes of not less than
two-thirds of the total
number of members of
Parliament;
(b) When a Bill passed as
aforesaid is presented to the
President for his assent he shall,
within the period of seven days
after the Bill is presented to him
assent to the Bill, and if he fails
so to do he shall be deemed to
have assented to it on the
expiration of that period.
(2) Nothing in article 26 shall
apply to any amendment made
under this article.
12. Article-142:
Notwithstanding anything
contained in the Constitution-
(a) any provision thereof may be
amended by way of addition,
alteration, substitution or
reprel by Act of Parliament:
Provided that-
(i) no Bill for such
amendment shall be
allowed to proceed
unless the long title
thereof expressly
states that it will
amend a provision of
the Constitution;
(ii) no such Bill shall be
presented to the
President for assent
unless it is passed by
the votes of not less
than two-thirds of
the total number of
members of
Parliament.
(b) when a Bill passed as
aforesaid is presented to the
President for his assent he
shall, within the period of
seven days after the Bill is
presented to him assent to the
Bill,and if he fails so to do he
shall be deemed to have
assented to it on the expiration
of that period.
(IA) Notwithstanding anything
contained in clause (I), when
a Bill, passed as aforesaid,
which provides for the
amendment of the Preamble
or any provisions of articles
8,48 [or] 56 or this article, is
presented to the President for
assent, the President, shall,
within the period of seven
days after the Bill is presented
111
to him, cause to be referred to
a referendum the question
whether the Bill should or
should not be assented to.
(IB) A referendum under this
article shall be conducted by
the Election Commission,
within such period and in
such manner as may be
provided by law, amongst the
persons enrolled on the
electoralroll prepared for the
purpose of election to
{Parliament.
(IC) On the day on which the
result of the referendum
conducted in relation in a Bill
under this article is declared,
the President shall be deemed
to have-
(a) assented to the Bill, if the
majority of the total votes
cast are in favour of the
Bill being assemed to; or
(b) withheld assent therefrom,
if the majority of the total
votes cast are not in favour
of the Bill being assented
to.
[(ID)] Nothing in clause (IC)
shall be deemed to be an
expression of confidence or
no-confidence in the Cabinet
or Parliament.]
(2) Nothing in article 26 shall
apply to any amendment
made underthis article.
Regarding the inclusion of the words “BISMILLAH” the High Court Division
stated as follows:
The words, commas and brackets ‘BISMILLAH-ARRAHMAN-
AR-RAHIM (In the name of Allah, the
Beneficent, the Merciful) were inserted before the word
‘PREAMBLE’ by the above Order.
112
The High Court Division then, regarding the first paragraph
of the preamble held that in the first paragraph of the
preamble in the original Constitution the words ‘a historic
war for national independence’ were substituted for the
original words ‘a historic struggle for national liberation’
………………….....................................................................
.................................................................................................
Regarding the original second paragraph of the Preamble and its
amended version, which have been shown in the above chart, the High Court
Division held that a plain reading comparing the original Preamble with the
amended one would unmistakably show certain basic changes as the original
Preamble clearly show that one of the four fundamental basis of our nationhood
and inspiration of liberation was “secularism” but the amended
Preamble, specially the second paragraph, show that ‘secularism’ was omitted
from the Preamble thus changing the basic character of the Constitution.
The High Court Division then quoting the provisions of original Article
8(1) and its amended version and sub Article (1A) of the same as shown in
the above chart, held as follows
…………………………………………..
…………………………………………..
It is true that partition was made, more or less on the basis of
religion but India declared itself as a secular nation. Mr.
Mohammad Ali Jinnah, the first Governor General of
Pakistan, although in his first speech made on September 11,
1947, hinted that in Pakistan people of all religion would be
equal without any religious discrimination but its first
Constitution, made in 1956, declared the country as the
Islamic Republic of Pakistan. The Constitution of 1962 made
no difference. Pakistan, since the death of its first Governor
General, reduced itself into a theoeratic nation as happened in
medieval Europe.
But the high ideals of equality and fraternity so very
gloriously enshrined in Islam could not spare the majority
population of the erstwhile East Pakistan from total
discrimination in all spheres of the State without any
113
exception. The erstwhile East Pakistan was treated as a
colony of West Pakistan and when voice was raised praying
for at least near equal treatment, steam roller of oppression
was perpetrated on the people of the Eastern wing. After a
long 23 years, the first general election in Pakistan was held
in 1970 with one of the objects, to frame a Constitution. The
National Assembly was scheduled to be convened at Dhaka
on March 3, 1971, but General Yahya Khan, the President
and CMLA postponed the Assembly, forcing the country into
turmoil. Thereafter, on the night following March 25, 1971,
General Yahya Khan and his military government unleashed
the worst genocide in the history of mankind on the unarmed
people of the erstwhile East Pakistan, and the ‘valient’ armed
forces of Pakistan brutally killed millions. The vast majority
of the people of this part of the world are God-fearing
Muslims but their religion could not even save the fellow
Muslims from being persecuted, killed and raped and their
belongings being plundered and all ironically in the name of
Islam.
Of necessity and being forced, the unarmed simple minded
Bangalees of the then East Pakistan took up arms and rose
against the tyranny for their survival. After liberation, such
oppression and persecution on the Bangalee population was
very much fresh in their minds. They were determined to
establish an independent sovereign nation based on the
democratic principles of equality and social justice where
nobody will be discriminated on the ground of religion.
As such, the framers of the Constitution, from their earlier
bitter experience during the liberation war, gave effect to the
above lofty ideals of our martyrs which were reflected in the
Preamble and Article 8(1) and other provisions of our
Constitution.Those are the basic structures of the Constitution
which were changed on replacement of the provisions of the
original Preamble and Article 8(1) by the Proclamation Order
No. 1 of 1977 and Second Proclamation Order No. IV of
1978, but such replacements changed the secular character of
the Republic of Bangladesh into a theocratic State.
In this connection it should be remembered that the purpose
of a Constitution is not to describe the tenets of a particular
religion but is an Instrument creating the high institutions of
the Republic and its relationship with its people. A
Constitution upholds and guarantees such dignity to the
people of the Republic with its own rights and also its
obligations to the Republic in a broader sense but the religion
of a particular section or sections of people shall neither
required to be highlighted nor be interfered with in an ideal
114
and model democratic form of Republic. The Constitution of
such a Republic would never contain or refer to a particular
faith but would leave such faculties with the people
themselves. Bangladesh was dreamt of as a secular country
and came into being as a secular country, as such, its
Constitution was framed on that ideal, but any change from
such a basis would constitute a change of the basic structure
of the Constitution.
Such belief would reside with the people in accordance with
their free will and shall never be interfered with, either by the
State or any section of the population, however majority they
may be. Such a secular concept would be inhibited in a
modern democratic Constitution unless, of course, it is a
theocratic State.
According to Thomas Paine, the purpose of the Constitution is :
“A Constitution is not the act of a government, but of a
people constituting a government, and a government without
a constitution is power without right……………….A
constitution is a thing antecedent to a government; and a
government is only the creature of a constitution.” (1792)
(Quoted from Hilaire Barnett on Constitutional And
administrative Law, Fourth Edition, 2002, Page-7).
According to O. Hood Phillips, the purpose of the Constitution is :
“The constitution of a state in the abstract sense is the
system of laws, customs and conventions which define the
composition and powers of organs of the state, and regulate
the relations of the various state organs to one another and
to the private citizen. A “Constitution” in the concrete sense
is the document in which the most important laws of the
constitution are authoritatively ordained.”(Quoted from O.
Hood Phillips’ Constitutional and Administrative Law,
Seventh Edition, 1987, at page-5).
From the discussions made above on the concept of written
Constitution it would appear that this instrument is
predominantly for the purpose of regulating the rights and
obligations of the people vis-à-vis the State and vice versa
but it has got nothing to do with the religious beliefs of its
people.
Bangladesh came into being with the basic concepts of
nationalism, socialism, democracy and secularism. As such,
its Constitution was framed with those ideals in view. It was
never intended to be a theocratic State. Rather, it was one of
115
the major reasons for the Bangalees for their costly struggle
for liberation.
In this connection it should be noted that the obligation of
the State, in this respect, is to ensure that all persons in the
Country can perform their respective religious functions.
Besides, the State is to ensure that no discrimination is made
between the followers of one religion over the other.
The High Court Division also referred the case of S. R. Bommai V.
Union of India AIR 1994 SC 1918 wherein the addition of “Socialist” and
“Secularism” the Constitution of India in the year 1976 was considered.
Ahmedi, J. (as his Lordship then was) in considering secularism as one of the
basic structures of the Constitution observed at para – 28:
“Notwithstanding the fact that the words ‘Socialist’, and
‘Secular’were added in the Preamble of the Constitution in 1976
by the 42nd Amendment, the concept of Secularism was very
much embedded in our Constitutional philosophy……By this
amendment what was implicit was made explicit. The Preamble
itself spoke of liberty of thought, expression, belief, faith and
worship. While granting this liberty the Preamble promised
equality of status and opportunity. It also spoke of promoting
fraternity, thereby assuring the dignity of the individual and the
unity and integrity of the Nation. While granting to its citizens
liberty of belief, faith and worship, the Constitution abhorred
discrimination on grounds of religion etc., but permitted special
treatment for Scheduled Castes and Tribes, vide Arts. 15 and 16.
Art. 25 next provided, subject to public order, morality and
health, that all persons shall be entitled to freedom of conscience
and the right to profess, practice and propagate religion. Art. 26
grants to every religious denomination or any section thereof, the
right to establish and maintain institutions for religious purposes
and to manage its own affairs in matters of religion. These two
articles clearly confer a right to freedom of religion.
………………State’s revenue cannot be utilised for the
promotion and maintenance of any religion or religious group
that secularism is a basic feature of our Constitution………. ”
(Page-1951-52)
In considering the concept of secularism, Sawant, J., held at para -88:
“These contention inevitably invite us to discuss the concept of
secularism as accepted by our Constitution. Our Constitution
does not prohibit the practice of any religion either privately or
publicly
116
. ……Under Articles 14, 15 and 16, the Constitution prohibits
discrimination against any citizen on the ground of his religion
and guarantees equal protection of law and equal opportunity of
public employment.(Page- 2000) …….These provisions by
implication prohibit the establishment of a theocratic State and
prevent the State either indentifying itself with of favouring any
particular religion or religious sect or denomination. The State is
enjoined to accord equal treatment to all religions and religious
sects and denominations.(Page–2000),……”
K. Ramaswamy, J., quoting Dr. S. Radhakrishnan and Mahtma
Gandhi, explained the concept of secularism as a basic feature of
Constitution of India, at para –124:
“124. ………….The Constitution has chosen
secularism as its vehicle to establish an egalitarian
social order. I am respectfully in agreement with
our brethern Sawant and Jeevan Reddy, JJ. In this
respect. Secularism, therefore, is part of the
fundamental law and basic structure of the Indian
political system to secure all its people socioeconomic
needs essential for man’s excellence and
of moral well being, fulfillment of material
prosperity and political justice.” (Page–2019 -20)
Shahabuddin Ahmed, J. in Anwar Hossain Chowdhury’s case
evaluates Constitution in this manner at para-272, page-118:
“On the one hand, it gives out-lines of the state
apparatus, and aspirations of the people; it gives
guarantees of fundamental rights of a citizen and
also makes him aware of his solemn duty to himself,
to his fellow citizen and to his country.”
No wonder his Lordship did not see any role of religion in the
Constitution itself. As such, from the discussions made above, it
is very clear that the Proclamations Order No. 1 of 1977 and the
Second Proclamation Order No. IV of 1978, by making omitting
secularism, one of the State policey from the Constitution,
destroyed one of the basis of our struggle for freedom and also
changed the basic character of the Republic as enshrined in the
Preamble as well as in Article 8(1) of the Constitution.
117
The High Court Division then quoting original Aticle 6 of the
Constitution and its amended version as shown in the above chart held as
follows:
……………………………………………………………………
……………………………………………………………………
The inhabitants of this part of the world irrespective of their cast,
creed and religion were known as Bangalees from time
immemorial. In their lighter moments they laugh as a Bangalee,
in their despair they cry as a Bangalee, they record their feelings
in Bangla, their history, their philosophy, their culture, their
literature are all in Bangla.These finer features of life and
intellects gave them an identity as a race in India for more than
thousand years. This was so recorded in the memoirs of Hiuen
Tsang, Ibn Batuta and many other travellers. Even during the
reign of Emperor Akbar, this part of his empire was known as
‘Sube Bangla’. As such, this identity as a Bangalee was not a
mere illusion or frivolous idiosyncrasy but has a definit character
which separated them from other races in Pakistan. The identity
of Punjabees, Pathans etc might have faded away in their new
identity as Pakistanes but the Bangalees consciously kept their
separate entity in their culture and literature inspite of their
Pakistani citizenship. This was their pride. Their such entity as
Bangalee blooms in their weal and woe. This sentiment may not
have strict legal value but this very sentiment of Bangalee
nationalism paved the way to the ultimate independent
Bangladesh which has a very definite legal existence. As such,
no body, how high so ever, must not ignore or undervalue the
words ‘Bangla’ or ‘Bangalee’ because since 1952, beginning
with the martyrs of language movement, thousands of Bangalees
gave their lives for their right not only to speak Bangla but also
to live as such Bangalee. It is their basic right and very naturally,
their Constitution recognised it.
Since this unwanted change of identity from ‘Bangalee’ to
‘Bangladeshi’ does not commensurate with our national entity,
this amendment goes to the root of our Bangalee nationalism”.
The High Court Division then quoting the provisions of original
Articles 6 and 9 of the Constitution and amended version of the same as
shown in the above chart found that this concept of Bangalee nationalism as
118
provided in original Article 6 was further expounded and explained in the
original Article 9 of our Constitutin.
The High Court Division held :-
……………………………………………………
……………………………………………………
This provision glorified our concept of Bangalee nationalism.
The framers of the Constitution in their wisdom, thought it
necessary to specifically spell out the basis of Bangalee
nationalism in the Constitution itself. There may be many
reasons for it. One reason may be that from time immemorial,
this part of the world which is known as Bengal during British
regime was continuously invaded by Shok, Hun, Pathans,
Moguls and lastly by the English. As such, the Bangalees
although retained their entity through their literature and cultural
heritage but always governed by the people other than
Bangalees. That is one of the reasons, Bengal voted so much in
favour Muslim League in 1946 election on the Pakistan issue but
even after independence from British yoke, in no time, their
enthusiasm got a jolt when Mr. Jinnah declared at Dhaka in 1948
that Urdu would be the only state-language of Pakistan. This was
followed by a long history of conspiracies to cripple the majority
East Pakistan economically, politically and also to destroy their
cultural heritage and above all their pride the Bangalee
Nationalism but instead, with the rise of oppression, Bangali
nationalism got new exuberance. The Pakistani Military Janta
instead of settling the issues politically unleashed the worst
genocide in the history of mankind. One of their prime objectives
was to destroy and sweep away our Bangalee nationalism from
root, once for all and make the Bangalees a hundred percent
Pakistani. In order to achieve such an ill-advised end they did not
only hesitate to kill millions of innocent Bangalees and plunder
their belongings but also did their best to change their identity as
Bangalee.
In this historical context, the framers of the Constitution in their
anxiety, specifically spelt out the basis of Bangalee nationalism
in the Constitution so that there should not be any confusion
about their entity as Bangalee. Because, they had apprehensions
like Justice Davies that this country may not always ‘have wise
and humane rulers……… wicked men, ambitious of power,
with, hatred of liberty and contempt of law, may fill the
place………….”
Our history shows that their anxiety was not for nothing but was
painfully correct because inspite of Article 7 of the Constitution ,
119
as stated earlier, the usurpers by declaring Martial Law seized
the State Power. General Ziaur Rahman by Proclamations Order
No. 1 of 1977 and the Second Proclamation Order No. IV of
1978, deleted Article-9 altogether, containing the basis of
Bangali nationalism. This portion of the Proclamation Order did
exactly what the Pakistani Military Janta wanted to do in
Bangladesh in 1971. The similarity of intentions is so stark that it
makes one start with surprise.
We fail to understand why Article 9 had to be repealed
completely and possibly in order to camouflage the repealed
Article, it was substituted with a new one which has no nexus
with Bangalee nationalism.
……………………………………………………………………
……………………………………………………………………
The substituted Article 9 is in respect of promotion of local
Government institutions but Articles 11, 59 and 60 adequately
provided for such institutions, as such, this substitution was
unnecessary. The new provision, however important it may
appear but cannot delete the basis of our Banglaee nationalism,
contained in original Article 9, for which the people of
Bangladesh fought for liberation and martyrs made their supreme
sacrifices. The original Article 9 glorified our Bangalee Nationhood,
possibly for the first time in our history, in recognition of
such nation-hood, the Constitution emblemed it as one its basic
structures but its deletion by a Proclamation Order constituted a
betrayal to the freedom fighters and the three million martyrs and
an insult to our Nation-hood”.
The High Court Division then quoting the provision of original Article
10 of the Constitution and its amended version as shown in the above chart
held that original Article 10, being one of the fundamental ideals on which the
struggle for national liberation was fought, was spelt out in the Constitution as
one of its basic structures and the amended provision provides for
participation of women in national life but this is already well provided for in
Article 28, as such, this substitution was unnecessary and redundant.
The High Court Division also held
120
This substituted provision has no nexus with the original
provision which spelt out establishment of a socialistic economic
system and exploitation free society for Bangladesh. The people
of Bangladesh dreamt of such a society for ages. In order to
establish such an idealistic society the people of Bangladesh
gave their lives. As such, the provision containing such idealism,
very rightly found its place in the Constitution as one of the
fundamental principles of State Policy. This being one of the
basis for our struggle for liberation, this provision was one of the
basic structures of the Constitution.
Without going into the merit of the substituted Article 10, we
admit that we do not find any plausible reason to delete such a
glorious provision for the salvation of fellow human being.
Then regarding Articles 9 and 10 the High Court Division held as
follows:-
We have a shrewed suspicion that the substituted Article-9 and
Article- 10 were incorporated in the Constitution only as an
excuse for deleting the original provisions because both the
substituted provisions are well provided for. Article-11 read with
Articles 59 and 60 covers the substituted Article-9 while Article-
28 takes care of the substituted Article-10.
In this connection, it should be remembered that a provision in
the Constitution gives only the basic law with wide ideas and the
Parliament enacts laws to give effect to those ideas. If we
examine the substituted Article-9 and Article-10 it would appear
that Article-11 read with Article 59 and 60 and Article-28 serves
the purposes of those two substituted provisions very well and as
a matter of fact those two Articles are redundant and apparently
were substituted only to camouflage the originalArticle-9 and the
original Article-10 which were two basic features of our
Constitution.
The High Court Division then quoting the original provision of Article
12 of the Constitution as shown in the above chart, which was omitted from
the Constitution by the Proclamation Order No. 1 of 1977, held as follows:
……………………………………
……………………………………
This provision of secularism explained and expounded in
Article 12, is one of the most important and unique basic
features of the Constitution. Secularism means both religious
121
tolerance as well as religious freedom. It envisages equal
treatment to all irrespective of caste, creed or religion but the
State must not show any form of tilt or leaning lowards any
particular religion either directly or even remotely. It requires
maintenance of strict neutrality on the part of the State in the
matters of different religions professed by various
communities in the State. The State must not seen to be
favouring any particular religion, rather, ensure protection to
the followers of all faiths without any discrimination
including even to an atheist. This is what it means by the
principle of secularism.
Secularism was one of the ideals for which the struggle for
liberation was fought and own and the framers of the
Constitution in their wisdom in order to dispel any confusion,
upheld and protect the said ideal of secularism as spelt it out
in Article-12 of the Constitution as one of the fundamental
principles of State Policy. Indeed this was one of the most
important basic features of the Constitution. But the said basic
feature of the Constitution was deleted by the Proclamation
Order No. 1 of 1977 and the Second Proclamation Order No.
IV of 1978 and thereby sought to change the secular character
of the Republic of Bangladesh as enshrined in the original
Constitution”.
The High Court Division then quoting the provision of original Article
25 of the Constitution and its amended version as shown in the above chart
held as follows:
………………………………………………………………
………………………………………………………………
This clause-2 is redundant. The original Article-25 itself
provides for promotion of international peace, security and
solidarity amongst all the nations including of course, the
Muslim countries, in accordance with the charter of the
United Nations. As such, its endeavor to foster further
relations amongst only with the Muslim countries based on
Islamic solidarity, as stated in the added clause-2, can only be
explained by its leaning towards becoming an Islamic
Republic from a Secular Republic and thereby destroying its
one of the most important and significant basic feature of our
Constitution, namely, secularism”.
The High Court Division then quoting the original Aricle 38 of the
Constitution and its proviso as shown in the above chart, which was one of
122
the fundamental rights, and the omission of the above proviso by the Second
Proclamation (Sixth Amendment) Order 1976 held as follows:
With the same object to destroy the secular character of the
Republic and its Constitution, the proviso to Article-38 was
omitted by the Second Proclamation (Sixth Amendment)
Order, 1976 (Second Proclamation Order No. III of 1976).
……………………………………………………………….
……………………………………………………………….
The above noted proviso to Article-38 was meant to protect
the secular character of the Republic of Bangladesh in spite of
one’s fundamental right to form an association as envisaged
in Article-38, but the above proviso was omitted by the
Second Proclamation Order No. III of 1976, made by Justice
Abusadat Mohammad Sayem, a nominated President of
Bangladesh and CMLA. Since the secular character of the
Republic was one of the objectives of the struggle for
liberation, the omission of the aforesaid provision from the
Constitution, as a bid or devise to change its such basic
character, tantamounts to changing of the basic feature of the
Constitution.
The High Court Division then concluded as follows:
We have discussed above the various provisions of the
Constitution. Those provisions were not only the basic
features of the Constitution but were also the ideals for the
struggle for liberation, the corner stone of our Constitution.
Those ideals were the basis for the birth of the Republic of
Bangladesh. But those basic features of the Constitution were
changed by the various Martial Law Proclamations.
Those Martial Law Proclamation Orders of 1975, 1976 and
1977 were incorporated in the Fourth Schedule to the
Constitution by its amendment as Paragraph 3A. The English
versions of the provisions discussed above were changed,
deleted and modified by the Proclamations (Amendment)
Order, 1977 (Proclamations Order No. 1 of 1977). The
Bengali versions of those very provisions were subsequently
added, deleted or amended by The Second Proclamations
(Fifteenth Amendment) Order, 1978 (Second Proclamation
Order No. IV of 1978).
In pursuance to the above Order the original Bengali text of
the part of the Preamble, Articles 6, 8, 9, 10, 12, 25(2) and the
Proviso to Article-38 were amended on the false pretext of
123
persistent demand to repeal the undemocratic provisions
although the aforesaid provisions are all the glorious basic
features of the Constitution and had no nexus with the Fourth
Amendment. All these changes of the basic structures of the
Constitution were sought to be ratified, confirmed and
validated by the Fifth Amendment apparently by playing
fraud upon the members of the Second Parliament.
The pretexts to amend the Constitution in the above manner
in the garb of repealing the undemocratic provisions of the
Constitution incorporated therein by the Constitution (Fourth
Amendment) Act, 1975, was altogether misconceived. Firstly
because the Fourth Amendment of the Constitution, whatever
its political merits or demerits, it was brought about by the
representatives of the people by an overwhelming majority
members of a sovereign Parliament. Secondly, however
undemocratic, the Fourth Amendment may appear to an army
commander, the amendment of the Constitution, could not be
made even by the President or the CMLA or any person, how
high so ever, but only by a Parliament. Thirdly, Major
General Ziaur Rahman being an usurper to the Office of the
President and in the Office of the legally non-existent Chief
Martial Law Administrator, had no authority to change the
Constitution. As an Officer of the Defence Services, he took
oath to protect the Constitution of Bangladesh, but instead, on
April 23, 1977, only two days after assuming the office of
President, he illegally and without any lawful authority
amended the various provisions of the Constitution which
were the fundamental basis for the struggle for liberation, by
the Proclamation Order No. 1 of 1977 and the Second
Proclamation Order No. IV of 1978, and made the secular
Republic of Bangladesh, a theocratic State, thereby the cause
of the liberation War of Bangladesh was betrayed.
By virtue of the above two Proclamation Orders all the
Proclamations, MLRs and MLOs were validated and were
entered in the Fourth Schedule to the Constitution as
paragraph 3A and 6B while paragraph 6A was inserted there
earlier by Second Proclamation Order No. IV of 1976. Since
it was known that in the face of the Constitution, those
amendments would be void ab initio, as such, amendment of
the Constitution itself was made in a bid to validate those
Proclamations etc. by the Fifth Amendment.
As it appears the High Court Division gave detail reasons for not
condoning the omission of secularism as was provided in original preamble,
Articles 8(1), 12 and other connected changes made in the Constitution in this
124
regard. The High Court Division similarly did not also condone the
substitution of Articles 6, 8(1), 9 and other connected Articles of the original
Constitution which dealt with nationalism, socialism and connected matters.
From the contents of the proceeding of the Constitutional Assembly it
appears that for days elaborate discussion was made in respect of secularism,
nationalism and socialism and then those were incorporated at Chapter 11 of
our Constitution which contained the fundamental principles of State Policy.
As will be evident from the case of S.R. Bommai Vs. Union of India
(supra) which we have dismissed earlier, in the original Constitution of India
enacted in the year 1949 there was no mention of secularism and socialism.
Then in the year 1976 “socialist” and “secular” were incorporated in the
Constitution of India by the 42th Amendment. In this regard in the above case
Ramasyem, J held as follows:
“124. ………….The Constitution has chosen
secularism as its vehicle to establish an egalitarian
social order. I am respectfully in agreement with
our brethern Sawant and Jeevan Reddy, JJ. In this
respect. Secularism, therefore, is part of the
fundamental law and basic structure of the Indian
political system to secure all its people socioeconomic
needs essential for man’s excellence and
of moral well being, fulfillment of material
prosperity and political justice.” (Page–2019 -20)
We, while deciding the power of the Court of judicial review, found
that the High Court Division has the jurisdiction to decide as to whether any
act or legislative measure made by any authority not competent to do so and /
or such act or legislative measure made / done otherwise than in accordance
with the procedure prescribed by the Constitution and / or are repugnant to the
provisions of Constitution. As would be discussed lateron in details, by
125
Proclamations (Amendment) Order No. 1 of 1977 (Proclamation Order No. 1
of 1977) and by Second Proclamation (Fifteenth Amendment) Order 1978
(Second Proclamation Order No. IV of 1978) omission of secularism and
substitution of Articles 6 and 10 by the authorities not competent to
promulgate / make those and by those Orders Constitution was also changed
in the manner not prescribed by the Constitution and accordingly those Orders
are illegal, void and non est, Preamble and the relevant provisions of the
Constitution in respect of secularism, nationalism and socialism, as existed on
August 15, 1975, will revive. However in respect of nationalism, as to be
discussed later on, we are inclined to condone the substituted provision of
Article 6.
Regarding nationalism though we expressed the view that being
political issue, Parliament is to take decision in this regard, but if in place of
“Bangladeshi” the word ‘Bangalee’ is substituted in terms of the judgment
and order of the High Court Division, then all passports, identity cards,
nationality certificates issued by the Government and other prescribed
authorities, certificates issued by educational institutions, visa forms and other
related documents of the government will have to be changed, reprinted or
reissued. Moreover the Bangladeshi nationals who will return to Bangladesh
as well as those travelling abroad will also face serious complications with the
immigration authorities abroad. Apart from the above and other hackles and
harassments, this change of the nationality would also cost millions from the
public exchequer. So for wider public interest the substituted Article 6 is to be
retained.
126
Now the question is whether all the legislative measures i.e the
Proclamations, Martial Law Regulations and Orders, were promulgated /
made during the period from 15 August, 1975 upto April 9, 1979 by legally
constituted authority or by usurpers and if by usurper whether those
legislative measures were illegal, void and non east and whether the Second
Parliament, itself, even by two third majority, could pass any law repugnant to
the Constitution and whether the Fifth Amendment is ultravires the
Constitution.
As it appears the grounds on which the Fifth Amendment was
challenged before the High Court Division are that
(a) Khandoker Mushtaq Ahmed, Justice A. S.M. Sayem and
General Ziaur Rahman having no authority to assume the post
of President and Chief Martial Law Administrators and
accordingly are usurpers and
(b) Fifth Amendment negates and is also repugnant to the basis
feature of the Constitution.
Regarding the point of usurpers it was argued as follows:
I) On the murder of Bangabandhu Shiekh Mujibur Rahman, President
of the People’s Republic of Bangladesh, on August 15, 1975,
Khandaker Mushtaque Ahmed in total violation of the
Constitution, illegally seized the office of President of Bangladesh,
as such, he was an usurper.
II) He had no authority to function as the President, as such, the
Proclamation of Martial Law on August 20, 1975, and his tenure
as the purported President for 82(eighty-two) days was illegal.
III) The assumption of office of a President of Bangladesh by the then
Chief Justice of Bangladesh on November 6, 1975 and the
assumption of powers of the Chief Martial Law Administrator by
the Second Proclamation issued on November 08, 1975 was in
total disregard of the Constitution.
IV) Appointment of Major General Ziaur Rahman, as the Chief
Martial Administrator by the Third Proclamation issued on
November 29, 1976, was made, beyond the ambit and in total
disregard of the Constitution.
127
V) Appointment of Major General Ziaur Rahman as the President of
Bangladesh on April 21, 1977, was made in violation and in total
disregard of the Constitution.
VI) As such, all the Martial Law Proclamations, Martial Law
Regulations including the Martial Law Regulation No. VII of 1977
and the Martial Law Orders, were made by the usurpers of the
office of President in violation and in total disregard of the
Constitution , as such, illegal, void ab initio and nonest in the eye
of law.
As it appears to decide the above issues, at first, the High Court
Division referred to the Proclamations dated 20 August 1975, 8 November
1975 and 29 November 1975 and also different Martial Law Regulations and
Orders.
The first is the “Proclamation” dated 20th August, 1975 which
proclaimed as follows:
“Whereas I, Khandaker Moshtaque Ahmed, with the help and mercy of
the Almighty Allah and relying upon the blessings of the people, have
taken over all and full powers of the Government of the People’s
Republic of Bangladesh with effect from the morning of the 15th
August, 1975.
And whereas I placed, on the morning of the 15th August, 1975
the whole of Bangladesh under Martial Law by a declaration broadcast
from all stations of Radio Bangladesh;
And whereas, with effect from the morning of the 15th August,
1975, I have suspended the provisions of article 48, in so far as it
relates of election of the President of Bangladesh, and article 55 of the
Constitution of the People’s Republic of Bangladesh, and modified the
provisions of article 148 thereof and form I of the Third Schedule
thereto to the effect that the oath of office of the President of
Bangladesh shall be administered by the Chief Justice of Bangladesh
and that the president may enter upon office before he takes the oath;
Now, thereof, I, Khandaker Moshtaque Ahmed, in exercise of all
powers enabling me in this behalf, do hereby declare that-
(a) I have assumed and entered upon the office of the President of
Bangladesh with effect from the morning of the 15th August, 1975;
(b) I may make, from time to time, Martial Law Regulations and
Orders-
(i) providing for setting up Special Courts or Tribunals for the
trial and punishment of any offence under such Regulations or
Orders or for contravention thereof, and of offences under any
other law;
128
(ii) prescribing penalties for offences under such Regulations or
Orders or for contravention thereof and special penalties for
offences under any other law;
(iii) empowering any Court or Tribunal to try and punish any
offence under such Regulation or Order or the contravention
thereof;
(iv) barring the jurisdiction of any Court or Tribunal from trying
any offence specified in such Regulations or Orders;
(c) I may rescind the declaration of Martial Law made on the morning
of the 15th August, 1975, at any time, either in respect of the
whole of Bangladesh or any part thereof, and may again place
the whole of Bangladesh or any part thereof under Martial Law
by a fresh declaration;
(d) this Proclamation and the Martial Law Regulations and Orders
made by me in pursuance thereof shall have effect
notwithstanding anything contained in the Constitution of the
People’s Republic of Bangladesh or in any law for the time being
in force;
(e) the Constitution of the People’s Republic of Bangladesh shall,
subject to this Proclamation and the Martial Law Regulations
and Orders made by me in pursuance thereof, continue to remain
in force;
(f) all Acts, Ordinance, President’s Orders and other Orders,
Proclamations rules, regulations, bye-laws, notifications and other
legal instruments in force on the morning of the 15th August,
1975, shall continue to remain in force until repealed, revoked or
amended ;
(g) no Court, including the Supreme Court, or tribunal or authority
shall have any power to call in question in any manner whatsoever
or declare illegal or void this Proclamation or any Martial Law
Regulation or Order made by me in pursuance thereof, or any
declaration made by or under this Proclamation, or mentioned in
this Proclamation to have been made, or anything done or any
action taken by or under this Proclamation, or mentioned in this
Proclamation to have been done or taken, or anything done or any
action taken by or under any Martial Law Regulation or Order
made by me in pursuance of this Proclamation ;
(h) I may, by order notified in the official Gazette, amend this
Proclamation.
In respect of this Proclamtion the comments of the High Court Division
are as follows:-
“………………………………………………………………..
(i) “Certain provisions of the Constitution were suspended and
modified,
129
(ii) The Proclamation and Martial Law Regulations and Orders
became effective inspite of the Constitution or other laws
(iii) The Constitution remained enforced but subject to the
Proclamation, Martial Law Regulations and Orders
(iv) No Court including the Supreme Court would have any power to
call in question the Proclamation, Martial Law Regulations or Orders”.
On considerations of the above noted Proclamations it appears that
(i) “Khondokar Mustaque Ahmed had no lawful authority to seize
the office of the President of Bangladesh, as such, he was an
usurper
(ii) He had no authority to suspend any provision of the
Constitution
(iii) He had no authority to make any Proclamation, Martial Law
Regulation or Order, beyond the ambit of the Constitution
(iv) He destroyed the supremacy of the Constitution by making it
subject to the Proclamation, Martial Law Regulation and Order
(v) He ousted the jurisdiction of the Supreme Court, one of the three
pillars of the State
(vi) The Proclamations etc. were made non justifiable before the
Court of law as such the concept of the rule of law was
destroyed”.
Then came the “Proclamation” dated the 8th November, 1975 which
proclaimed as follws:
Whereas the whole of Bangladesh has been under Martial Law since
the 15th day of August, 1975;
And whereas Khandaker Moshtaque Ahmed, who placed the
country under Martial Law, has made over the Office of President of
Bangladesh to me and I have entered upon that Office on the 6th
day of November, 1975;
And whereas in the interest of peace, order, security, progress, Keep
in force the Martial Law proclaimed on the 15th August, 1975;
And whereas for the effective enforcement of Martial Law it has
become necessary for me to assume the powers of Chief Martial
Law Administrator and to appoint Deputy Chief Martial Law
Administrators and to make some modifications in the Proclamation
of the 20th August, 1975;
Now, therefore, I, Mr. Justice Abusadat Mohammad Sayem,
President of Bangladesh, do hereby assume the powers of Chief
Martial Law Administrator and appoint the Chief of Army Staff,
Major General Ziaur Rahman B.U. Psc; the Chief of Naval Staff,
130
Commodore M.H. Khan, P.S.N., B.N. , and the Chief of Air Staff,
Air Vice Marshal M.G. Tawab, S.J. S.Bt. PSA, BAF., as Deputy
Chief Martial Law Administrator and declare that
“ (a ) Martial Law Regulations and Orders shall be made by the
Chief Martial Law Administrator;
(b) all Martial Law Regulations and Orders in force immediately
before this Proclamation shall be deemed to have been made by
the Chief Martial Law Administrator and shall continue to
remain in force until amended or repealed by the Chief Martial
Law Administrator;
(c) Parliament shall stand dissolved and be deemed to be so
dissolved with effect from the 6th day of November, 1975, and
general elections of Members of Parliament shall be held before
the end of February, 1977;
(d) the persons holding office as Vice-President, Speaker,
Deputy Speaker, Ministers, Ministers of State, Deputy Ministers
and Whips, Immediately before this Proclamation, shall be
deemed to have ceased to hold
office with effect from the 6th day of November, 1975;
(e) an Ordinance promulgated by the President shall not be
subject to the limitation as to its duration prescribed in the
Constitution of the People’s Republic of Bangladesh
(hereinafter referred as the Constitution);
(f) the provisions of Article 48 of the Constitution shall remain
suspended until further order;
(g) Part VIA of the Constitution shall stand omitted;
(h) the Chief Martial Law Administrator may appoint Zonal or
Sub-Martial Law Administrators;
(i) I may, by order notified in the official Gazette, amend this
Proclamation;
(j) this Proclamation shall be a part of the Proclamation of the
20th August, 1975, and the Proclamation of the 20th August,
1975, shall have effect as modified by this Proclamation”.
The High Court Division found that some of its salient features are as
follows :
(i) Mr Justice Abu Sadat Mohammed Sayem entered upon the
Office of the President on 6 November ,1975
131
(ii) He assumed the Office of the Chief Martial Law
Administrator (CMLA) and appointed three Deputy Chief
Martial Law Administrators ( DCMLA)
(iii) Parliamnt was dissolved with effect from 6 November,
1975.
(iv) Part VI –A of the Constitution was omitted
(v) The Proclaimation dated 8 November, 1975 modified the
Proclaimation dated 20 August, 1975 and became its part
On consideration of the above proclaimations it appeared to the High
Court Division that;
(i) “Justice Abu Sadat Mohammed Sayem, the Chief Justice of
Bangladesh had no authority to enter into the Office of the
President of Bangladesh and to assume the power of CMLA ,
which was beyond the ambit of the Constitution
(ii) He had no lawful authority to dissolve the Parliament
(iii) Bangladesh was ruled for the next three and a half years
without any Parliament, as such, lost its Republican character
for the said period.
(iv) He had no lawful authority to suspend any provision or any
part of the Constitution
(v) He had no lawful authority to make any Proclamation, Martial
Law Regulation or Order.
(vi) Justice Abu Sadat Mohammed Sayem violated the
Constitution of Bangladesh
(vii) He acted as a usurper in entering the Office of the President
and in assuming the powers of CMLA”
The next is the Second Proclamation (Third Amendment) Order,
1975 (Second Proclamation Order No.III of 1975) dated December 31,
1975
As it appears by the above Order amongst others by inserting clause
(gb) to the Proclamation dated November 8, 1975, the Bangladesh
Collaborator’s (Special Tribunals) Order 1972 ( P.O No 8 of 1972), was
omitted from the First Schedule to the Constitution.
132
The next is the Second Proclamation (Sixth Amendment) Order,
1976 (Second Proclamation Order No.III of 1976) dated May 4th 1976
As it appears by the above order, amongst others, by inserting clause
(eb) to the Proclamation dated November 8, 1975, the proviso to Article 38 of
the Constitution which is in respect of freedom of association other than in the
name or on the basis of any religion as its basis or purpose, was omitted.
The next is the Second Proclamation (Seventh Amendment) Order,
1976. (Second Proclamation Order No IV of 1976) dated May 4 1976.
It may be noted here that in the original Constitution Article 44
provided as follows:-
“44(1) The right to move the Supreme Court, in accordance
with clause (I) of Article 102, for the enforcement of
the rights conferred by this part, is guaranteed.
(2) Without prejudice to the powers of the Supmreme
Court under Article 102, Parliament may by law
empower any other Court, within the local limits of its
jurisidiction, to exercise all or any of those powers”.
But by Fourth Amendment sub article (1) of Article 102 was omitted
and Article 44 was substituted as follows:-
“Parliament may be law establish a Constitutional Court, tribunal
or commission for the enforcement of foundamental rights”
By the above Order 1976, amongst others, some amendments were
made to the proclamation dated November 8, 1975 predominantly restoring
original Article 44 as it existed before the Fourth Amendment but however
without restoring sub Article (1) of Article 102 and the above Order also
established separate “Supreme Court” and the “High Court” along with other
incidental changes. As it appears by Order dated August 11, 1976 the above
changes came into effect on and from August 13, 1976.
133
Then came The Political Parties Regulation, 1976 (Martial Law
Regulation No. XXII of 1976) dated July 28, 1976
The above Regulation repealed the Political Parties Act 1962 (Act III of
1962) and Political Parties (Prohibition) Ordinance 1975 (XLVI of 1975).
Then came the Third Proclamation dated 29th November, 1976 which
proclaimed as follows:-
“Whereas I, Abusadat Mohammad Sayem, President of
Bangladesh and Chief Martial Law Administrator, assumed, by
the Proclamation of the 8th November, 1975, the powers of the
Chief Martial Law Administrator and appointed the Chiefs of
Staff of the Army, Navy and Air Force as Deputy Chief Martial
Law Administrators; And whereas I do now feel that it is in the
national interest that the powers of the Chief Martial Law
Administrator should be exercised by Major General Ziaur
Rahman B.U., psc., the Chief of Army Staff; Now, therefore, in
exercise of all powers enabling me in this be and in modification
of the provisions of the Proclamations of the 20th August, 1975,
and 8th November, 1975, I, Abusat Mohammad Sayem, resident
of Bangladesh, do hereby hand over the Office of Martial Law
Administrator to Major General Ziaur Rahman B.U., psc., who
shall hereafter exercise all the powers of Chief Martial Law
Administrator including the powers—
(a) to appoint new Deputy Chief Martial Law Administrators,
Zonal Martial Law Administrators, and Sub-Zonal Martial Law
Administrators,
(b) to amend the Proclamations of the 20th August, 1975, 8th
November, 1975 and This Proclamation,
(c) to make Martial Law Regulations and Orders, and (d) to do
any other act or thing or to take any other action as he deems
necessary in the national interest or for the enforcement of
Martial Law”.
The views of the High Court Division in respect of the above order is
as follows:
“By the Third Proclamation dated November 29, 1976.
134
(a) “Justice A.S.M. Sayem handed over the office of CMLA to
Major General Ziaur Rahman BU. PSC.
(b) The Major General Ziaur Rahman, B.U. PSC would exercise all
the powers of CMLA with powers amongst others to amend the
Proclamations dated 20.8.75, 8.11.76 and 29.11.76.”
The next is the Court’s Jurisdiction (Restriction) Regulation, 1977
(Martial Law Regulation No.1 of 1977) dated March 9, 1977.
By the above Regulation restrictions were imposed upon the power of
High Court to make interim orders and restrictions were also imposed upon
the power of other Courts to pass temporary or interim injunction.
The next is the Order dated 21. 4. 1977, published in the Bangladesh
Gazette Extra Ordinary on April 21, 1977.
The above Order disclosed that on being nominated under clause (aa)
of the Proclamation dated 20.8.1975, Justice Abu Sadat Mohammad Sayem
assumed the Office of the President but the High Court Division as it appears
found that previously Justice Abu Sadat Mohammad Sayem, by Proclamation
dated November 8, 1976, assumed the position of only the Chief Martial Law
Administrator and he nominated General Ziaur Rahman to be the President of
Bangladesh in that capacity.
The next is the Proclamations (Amendment) Order 1977, i.e
Proclamation Order No. 1 of 1977 dated April 23, 1977. By this Order, as
described in details later on BISMILLAH-AR-RAHMAN-AR-RAHIM was
inserted above the Preamble of the Constitution and the second and fourth
135
paragraphs of the Preamble as well as Articles 6, 8, 9, 10, 12, 25, 38 and 141
of the Constitution were drastically changed and furher paragraph 3A was
inserted in the Fourth Schedule of the Constitution.
The High Court Division found that by it:-
“a) The Second and Third Proclamations were changed.
b) Basic features of the Constitution were changed.
c) In the Fourth Schedule of the Constitution, after paragraph 3, a
new paragraph, namely paragraph 3A was inserted in order to
validate the proclamations, MLRs, MLOs etc, including the
amendments of the Constitution which amongst others,
provided that:
i) The Proclamations etc and the acts taken thereon
were validated and those cannot be questioned
before any Court.
ii) All amendments of the Constitution were sought to
be validly made.
iii) The Proclamations MLRs and MLOs, were to be
treated as the Acts of Parliament.”
The next is the Referendum Order, 1977 (Martial Law Order No.1
of 1977) dated 1st May, 1977.
According to the High Court Division the above Order provided that to
ascertain the confidence of the people in General Ziaur Rahman, a
countrywide referendum was to be held on May 30, 1977 on the basis of
direct adult franchise. The above Referendum was conceived and conducted
under the MLO No.1 of 1977 and
“a) This was done in order to ascertain the confidence of the voters in
President Major General Ziaur Rahman,
b) This kind of referendum is unknown to the Constitution, or any
law of the land”.
136
The next is the Abandoned Properties (Supplementary Provisions)
Regulations, 1977 (Martial Law Regulation No. VII of 1977), dated 17th
October, 1977.
As it appears the above Regulation, amonst others, provided that even
if the Government had unlawfully taken over a property as abandoned, the
same shall remain as abandoned and any jugment declaring otherwise would
be ineffective.
The next is the Second Proclamation (Tenth Amendment) Order,
1977 (Second Proclamation Order No. 1 of 1977), dated 27th November,
1977.
As it appears by the above Order, amonsgt others, sub Article (1) of
Article 102 was restored to its original position along with incidental
amendmetns and the Supreme Court was again made to consist of the
“Appellate Division” and the “High Court Division” with effect from
December 1 of 1977 and in Article 44 the words “High Court” was
substituted by the words “High Court Division”. As stated earlier, by Second
Proclamation (seventh Amendment) Order, 1976, separate Courts such a
“Supreme Court” and “High Court” were set up with effect from 13th August,
1976.
The next is the Second Proclamation (Fifteenth Amendment)
Order, 1978 (Second Proclamation Order No. IV of 1978) dated 8th
December, 1978.
The Preamble of the above Order shows that the object of the above
Order was only to replace the remaining portion of the undemoratic
provisions of the Constituion incorporated by the Fourth Amendment. But
137
this is not correct. It may be noted that earlier by Proclamation Order No.1 of
1977 changes were made only in the English Text of some amendents of the
Constitution and the Bengali Text of those amendments remained as it is. By
this Order similar changes were made in the Bengali Text. Further, changes
were also made by inserting Sub Article (1A), (1B) and (1C) in Article 142 of
the Constitution providing that for amendment of the preamble or any
provisions of Articles 8, 48, 56, 58, 80, 92A or this sub Article (1A),
referandam to be held. Further Articles 92A and 145A were also inserted
giving the President wider powers.
Regarding the submission of the petitioners that because of the Fourth
Amendment, Fifth Amendment had to be made has also no substance.
Assuming that Fourth Amendment was violative of the basic features of the
Constitution, there was no challenge of the Fourth Amendment in the
Supreme Court as were done in the case of the Eighth Amendment as well as
in the present case.
The High Court Division held that though in the Preamble of the above
Order the object as shown was to replace the remaining portion of the
undemocratic provisions incorporated in the Constitution by the Fourth
Amendment, but many of the provisions incorporated by the Fourth
Amendment have aready been dismantled by Martial Law Regulations.
Moreover by the above Order not only the office of the President with all the
powers provided by the Fourth Amendment were kept very much intact but
by inserting Article 92A, undemoratc provisions, the Parliament was made
subservient to the President for all practical purposes with the view that in an
unlikely event, even if the Parliament fails to make grants or to pass the
138
budget under Articles 89 and 90, or refuses or reduces the demands for grants,
under the above Article 92A the President, without any worries about the
funds, could dissolve the Parliament at his pleasure. In this way the then
President of Bangladesh by the above Order of 1978 became the most
powerful Chief Executive virtually without any checks and balance either
from the Parliament or from any body else. However, the above Article 92A
was omitted by the Twelfth Amendment by which though the Parliamentary
system of Government was restored, but the supervisory power of the
Supreme Court over the subordinate judiciary, as was given in Article 116 of
the original Constitution, was not restored and it remained with the Executive.
Further many provisions of the Fourth Amendment have not yet been
disturbed, as if, those being pieces of democratic principle were required to be
kept intact.
Then while the Parliament was already in session and The Constitution
(Fifth Amendment) Act, 1979 which is under challenge, had already been
enacted and was published in Bangladesh Gazette on April 6, 1979, by The
Proclamation Dated April 6, 1979 which was published in the Banglaesh
Gazette Extraordinary on 7th April, 1979. This was the last proclamation
issued by the Chief Martial Law Administrator by which Martial Law was
revoked with effect from 8 pm of April, 6, 1979.
As it appears in the above Proclamation dated April 6, 1979 the reasons
for imposing Martial Law are as follows :
“ WHEREAS in the interest of peace, order, security, progress,
prosperity and development of the country the whole of
Bangladesh was placed under Martial Law on 15 August, 1975.”
139
But as it appears in the Preamble of the Proclamation dated 20th
August, 1978 no indication of any grave situation was given. The Parliament
was very much in existence as on 15.8.75 and further in view of the death of
the then President, the then Vice President was to take the charge of the
President till a new President was elected. As such how the situation for
declaring Martial Law as indicated above arose on August 15, 1975 ?
Further in the above Order the reason for revoking the Martial Law was
given as follows :
“ AND, WHEREAS the situation in the country in all respect
has since improved, and all other authorities and institution in the
country may now properly function in accordance with the
Constitution and the law.”
But however clause (O) of the above proclamation the following unusal
power was given to the President:-
“(O) the President may, for the purpose of removing any
difficulty that may arise in giving effect to any provision of this
Proclamation make, by order, such provisions as he deems
necessary or expedient and every such order shall have effect
notwithstanding anything contained in the Constitution or in any
other law for the time being in force.”
Considering the above clause (O), the High Court Division held that the
above proclamation sought to subordinate the Constitution as clause (O) of
the above Proclamation provided that the President may make any order
“notwithstanding anything contained in the Constitution” though till the
above Proclamation the President did not have any such power and thus this
Proclamation bestowed ‘Supra Constitutional’ power on the then President of
Bangladesh.
140
Regarding the legality of the Proclamations dated August 20, 1975,
November 8, 1975 and November 29, 1975, the High Court Division stated as
follows :
“During ancient times proclamations were a source of law in
England. King Henry the VIII (1509–1547) used to assert his
power to make laws by way of proclamations. By the Statute of
1539, the King could legislate by Proclamations without
Parliament. This Act was, however, repealed during the reign
of Edward VI (1547–1553). Still Mary I (1553–1558) and
Elizabeth I (1558–1603) used proclamations, but much less
frequently than their father.
In those ancient days the Monarchs used to rule by divine right
but by 17th century it was established that the source of the
Regal power was the common law of the land.
King James I asked Sir Edward Coke, Chief Justice of the
Kings Bench, his opinion about the right of the Kings to issue
proclamations. To his such query, Chief Justice Coke, Chief
Justice Fleming, Chief Baron Tanfield and Baron Altham
delivered their opinion thus:
“The King cannot create any offence which was not
an offence before, for then he may alter the law of
the land in his proclamation in some high
point…..The law of England is divided into three
parts: the common law, statute law, and custom; but
the King’s proclamation is none of these…..The
King has no prerogative but that which the law of
the land allows him.” (Reported in 2 State Tr 726,
Quoted from Halsbury’s Laws of England, Fourth
Edition, Vol. 8, note-3 to Para-1099).
Their such bold opinion four hundred years ago in 1610 could
give a check to the arbitrary exercise of power by the Crown,
but four hundred years later, the learned Additional Attorney
General of Bangladesh, contended that the Judges of the
Supreme Court of Bangladesh, are not entitled to say so in
respect of the Fifth Amendment Act, since there was an ouster
clause.
Halsbury’s Laws of England (Fourth Edition Vol. 8) describes
Royal proclamations in this manner:
141
“1098. Use of proclamations. Proclamations may be
legally used to call attention to the provisions of
existing laws, or to make or alter regulations over
which the Crown has a discretionary authority,
either at common law or by statute. Thus, the Crown
may by proclamation summon or dissolve
Parliament, declare war or peace, and promulgate
blockades and lay embargoes on shipping in time of
war……
1099. Restrictions on proclamations. Under the
general rule which restrains the Crown from
legislating apart from Parliament, it is well-settled
law that the Sovereign’s proclamation, unless
authorized in that behalf by statute, cannot enact any
new law, or make provisions contrary to old
ones………….”
In modern times, the purpose of a Royal proclamation was
confined and restricted to notify the existing law but can
neither make law nor abrogate any ...................
.........................................
But by proclamations, laws cannot be made and in all the
Constitutions of the civilized world the power to legislate is
always with the concerned legislative body or authority as spelt
out in the respective Constitutions.
The Proclamation dated August 20, 1975 was made by
Khandaker Moshtaque Ahmed, a Minister in the Cabinet of the
Government of Bangladesh. As a Minister, he had specific
functions under the Constitution but by any stretch of
imagination, it did not authorize him to seize the office of
President of Bangladesh. No authority or legal provision has
been mentioned in the Proclamation justifying his such
assumption of power.
It appears that on the early morning of August 15, 1975,
Khandaker Moshtaque Ahmed merrily changed the
Constitution of Bangladesh and seized the office of President
although without any legal authority. All the other
Commanding Officers of the Armed Forces readily declared
their allegiance to the new ‘President’ and his ‘Government’
apparently without any protest although on their commission as
officers, they all took oath to be faithful to Bangladesh and its
Constitution and bear true allegiance to the
President.......................
142
The ‘reign’ of Khandaker Moshtaque Ahmed lasted for 82
(eighty two) days. On November 6, 1975 he handed over the
office of President of Bangladesh to Justice Abusadat
Mohammad Sayem. The history and the reasons which led
Khandaker Moshtaque Ahmed to abdicate in favour of Justice
Sayem were not explained to us with any details. All we could
gather from the submissions made by the learned Advocates
and their written arguments that there was a coup and a counter
coup during the first week of November, 1975, the chain of
command in the army in Dhaka Cantonment broke down, large
sections of army personnel revolted leading to the whole-sale
killing of a large number of officers of the army. Colonel Taher
rescued Major General Ziaur Rahman, the Chief of Army Staff,
from his residence in the cantonment.
This narration of the events may not be absolutely accurate but
the real facts may never be known and in any case not very
necessary for deciding the legal issues involved in this rule but
stated only as a sequel leading to the assumption of office of
President by Justice Sayem. But how and what chain of events
led the Chief Justice of Bangladesh to become not only the
President of Bangladesh but also the Chief Martial Law
Administrator (CMLA), is far from clear. But in any case he
was there as the President of Bangladesh and the CMLA as
apparent from the Proclamation dated November 8, 1975.
The office of CMLA is a relic from the past. In the erstwhile
Pakistan, General Ayub Khan was appointed CMLA by the
Proclamation dated October 7, 1958 and again General Yahya
Khan declared himself as the CMLA on March 25, 1969.
Earlier, although Martial Law was clamped on the country
since August 15, 1975 but apparently no Martial Law
Administrator was appointed but this time Justice Sayem by the
Proclamation dated November 8, 1975, made some
modifications in the earlier proclamation and also appointed the
Chief of Army Staff, Major General Ziaur Rahman B.U. PSC;
the Chief of Naval Staff, Commodore M.H.Khan, P.S.N., B.N.
and the Chief of Air Staff, Air Vice Martial M.G.Tawab SJ.,
S.Bt., PSA, BAF, as Deputy Chief Martial Law Administrators.
Justice Sayem remained CMLA till November 29, 1976 and
resigned from the office of President on April 21, 1977. During
this time, a huge number of MLRs and MLOs were issued.
Besides, various provisions of the Constitution were amended
from time to time by amendment of the Second Proclamation.
On our query as to how and under what law Justice Sayem, the
Chief Justice of Bangladesh, could take over as the President of
143
Bangladesh and also assumed the powers of CMLA, the
learned Additional Attorney General was without any answer.
We ourselves tried to probe but could not find any. The
Constitution or any other law did not provide so. Besides, the
concept of Martial Law is totally absent in our Constitution or
in any other law or jurisprudence. The Constitution, the
supreme law of the country, does not provide it nor any other
law of our country. There is no place or office of CMLA in our
jurisprudence. Obviously, the then Chief Justice of Bangladesh,
completely ignored these legal realities for reasons best known
to him but for that reason his taking over as the President of
Bangladesh and assumption of the powers of CMLA would not
become legal. Even a Chief Justice is not above the law.
......................................................................................................
As such, he was a usurper to the office of President of
Bangladesh and his assumption of the powers of CMLA, a
legaly non-existent office, was void and non-est in the eye of
law. Consequently, all his subsequentl actions taken by way of
amendment of the Proclamation dated November 8, 1975
MLRs, MLOs and Ordinance, issued from time to time being
beyond the ambit of the Constitution, were also all illegal, void
ab initio and non est.
In due course, Justice Sayem by the Third Proclamation,
handed over the office of Martial Law Administrator to Major
General Ziaur Rahman, B.U., to act as the CMLA.
Subsequently, Justice Sayem nominated Major General
Ziaur Rahman,B.U. to be the President of Bangladesh and also
handed over the office of President to him.
From the Order dated April 21, 1977, we could learn that
Justice Sayem became President of Bangladesh on being
nominated by Khondaker Mushtaque Ahmed. Justice Sayem
similarly nominated Major General Ziaur Rahman, B.U. as the
next President of Bangladesh.
The office of President has been created by Article 48 of the
Constitution. The qualification and election to the office of
President has been stipulated in the said provision. But there is
no provision for nomination to the office of President in the
entire Constitution. From the language of the Order dated April
21, 1977, it appears that this provision of nomination was added
by clause (aa) to the First Proclamation by subsequent
amendment.
It is amazing that when even a chairman of a Union Council
has to be elected and can not be nominated, nomination could be
144
made to the highest office of the Republic and even that was
done by a Proclamation. This is a disgrace and insult to the
Nation-hood of Bangladesh. But this insult was ratified by the
Second Parliament in the Constitution (Fifth Amendment) Act.
We have already stated above that a proclamation is not a
law and by proclamation neither a law can be made nor a law can
be abrogated not to speak of the provisions of the Constitution.
As such, the First Proclamation along with clause aa is non-est in
the eye of law and the nominations of both Justice Sayem and
Major General Ziaur Rahman as President were in total violation
of the Constitution, without jurisdiction and without lawful
authority”.
Next question is whether the situation as it existed on August 15, 1975
necessitated the imposition of Martial Law.
In this regard it may be noted that in earstwhile Pakistan, at first,
Martial Law was imposed on October 7, 1958 by Iskandar Mirza, the then
President, and thereafter on March 26, 1969 Martial Law was imposed by
General Yahia Khan and in both occassion some pretexts were raised for
declaring Martial Laws. But while imposing Martial Law on August 15, 1975
and also while issuing the Proclamation dated August 20, 1975 Khandaker
Mustaque Ahmed did not raise any such pretext. While discussing the
Proclamation dated April 6, 1979 we have already stated that on August 15,
1975 the Parliament was very much in existence and Vice-President was also
available. Accordingly in view of the killing of the then President, the
constitutional machinery should have automatically come into effect and the
Vice President should have taken over as Acting President until fresh election
was held for the choice of a successor. The political machinery would then
have moved according to the Constitution and the Parliament could have
taken steps to resolve the crisis if Khandaker Mushtaq Ahmed had not, by
Proclamation dated August 20, 1975, suspended the provision of Article 48
145
of the Constitution so far it related to the election of the President and
likewise Justice Abu Sadat Mohammad Sayem, to whom Khondaker Mushtaq
Ahmed allegedly handed over the power of the President, had not dissolved
the Parliament by Proclamation dated November 8, 1975. Accordingly
Khandaker Mustaq Ahmed, Justice Abu Sadat Mohammad Sayem and
subsequently Major General Ziaur Rahman, to whom Justice Abusadat
Mohammad Sayem handed over the Office of the President / Chief Martial
Law Administrators in unconstitutional way, also did not allow the
constitutional machinery to come into effect and on usurping the power of the
Government started issuing all kinds of Proclamations, Martial Law
Regulations and Orders.
Regarding this the High Court Division observed as follows:
If we look back to the history we would find that the Civil War
of 1861 in the United States threatened its very existence as one
nation. It engulfed the entire country. War went on in almost
every where in the country with bleak prospect for survival of
the States as united with their Constitution. Nobody could blame
the President of the United States or others in that precarious and
catastrophic situation if the Constitution of the country was
pushed to the back-seat due to the said extreme emergency but
even in that critical situation the citizens of the North upheld the
high ideals of democratic principles and did not at all
compromise and give in to the inhuman demands of the
Southerners, for allowing slavery in the country in violation of
the principles of liberty and equality, as enshrined in the
Constitution, rather, they held the Constitution high above
everything and fought with their lives to free the slaves in
vindication of the rights guaranteed under the Constitution.
Although there was serious controversy all over the country on
the issue of slavery but even in such a trying moment, no
proclamation declaring Martial Law was made. Instead, their
lawfully elected President gave this message to the Congress on
July 4, 1861, on the out break of the Civil War:
146
“It presents to the whole family of man the
question whether a constitutional republic or
democracy-a government of the people by the
same people- can or cannot maintain its
territorial integrity against its own domestic foes.
It presents the question whether discontented
individuals, too few in numbers to control
administration according to organic law in any
case, can always, upon the pretences made in this
case or any other pretences, or arbitrarily without
any pretence, break up their government and thus
practically put an end to free government upon
the earth. It forces us to ask: ‘Is there, in all
republics, this inherent and fatal weakness ?
Must a government, of necessity, be too strong
for the liberties of its own people, or too weak to
maintain its own existence?” (Quoted from K.C.
Wheare: Modern Constitutions, Second Edition,
1966, page-142).
Even the Supreme Court did not relent in that horrendous
situation when the battles were fought everywhere but upheld the
Constitution. In the case of Ex Parte Milligan (1866), Justice
Davis, in delivering its opinion of the Court held:
“This nation, as experience has proved, cannot
always remain at peace, and has no right to
expect that it will always have wise and humane
rulers, sincerely attached to the principles of the
Constitution. wicked men, ambitious of power,
with hatred of liberty and contempt of law, may
fill the place once occupied by Washington and
Lincoln; and if this right is conceded, and the
calamities of war again befall us, the dangers to
human liberty are frightful to contemplate. If our
fathers had failed to provide for just such a
contingency, they would have been false to the
trust reposed in them. They knew—the history of
the world told them—the nation they were
founding, be its existence short or long, would be
involved in war; how often or how long
continued, human foresight could not tell; and
that unlimited power, wherever lodged at such a
time, was especially hazardous to freemen. For
this, and other equally weighty reasons, they
secured the inheritance they had, fought to
maintain, by incorporating in a written
constitution the safeguards which time had
proved were essential to its preservation. Not one
of these safeguards can the President, or
147
Congress, or the Judiciary disturb, except the one
concerning the writ of habeas corpus.
…………………………………………….
......Knowing this, they limited the suspension to
one great right, and left the rest to remain forever
inviolable. But, it is insisted that the safety of the
country in time of war demands that this broad
claim for martial law shall be sustained. If this
were true, it could be well said that a country,
preserved at the sacrifice of all the cardinal
principles of liberty, is not worth the cost of
preservation. Happily, it is not so.”…………
(Quoted from Professor John P. Frank on ; Cases
And Marterials on Constitutional Law (1952
Revision) at page 263-64) .
Regarding the other point as to whether Fifth Amendment negates the
Constitution and repugnant to the basic feature of the Constitution, it was
argued before the High Court Division that the provisions for amendment of
the Constitution is provided for in Article 142 and amendment can be done
only in the manner provided therein and since the Fifth Amendment
validating all illegal acts of the usurpers under the cover of Martial Law, not
only changed the basic structure as well as the character of the Constitution in
its totality but rather uprooted the Constitution and as such, in the eye of law,
it was no amendment but destruction of the Constitution altogether. As such
Fifth Amendment is ultra vires the Constitution.
The High Court Division held as follows:-
“Major General Ziaur Rahman, B.U. being appointed as the
Chief of Army Staff on the August 22, 1975, by Khandaker
Moshtaque Ahmed, was still in the active service in the
Republic of Bangladesh, when he entered the office of the
President. It should be noted that by virtue of his office as
President, the Supreme Command of the defence services, of
Bangladesh was vested in him but at the same time he was a
servant of the Republic as the Chief of Army Staff”.
148
It should also be noted that in pursuance to the Order dated
April 21, 1977, Major General Ziaur Rahman, B.U. must have
taken the following oath before entering the office of
President:
......................................................................................................
......................................................................................................
The English text is :
“1.The President.-An oath (or affirmation) in the following
form shall be administered by the Chief Justice. (after
amendment by Khondaker Moshtaque Ahmed by his
Proclamation dated August 20, 1975):
“I, ……….., do solemnly swear (or affirm) that I will faithfully
discharge the duties of the office of President of
Bangladesh according to law :
That I will bear true faith and allegiance to Bangladesh:
That I will preserve, protect and defend the Constitution:
And that I will do right to all manner of people according to
law, without fear or favour, affection or ill will. …..….”
But only 2(two) days later, on April 23, 1977, by the
Proclamations (Amendment) Order, 1977 (Proclamation Order
No.1 of 1977) (Annexure-L-1), extensive changes by way of
amendment was made which not only changed the Constitution
but defaced it beyond recognition.
Besides, Paragraph 3A was inserted after Paragraph 3 in the
Fourth Schedule to the Constitution to validate the transitional
and temporary provisions made since the declaration of
independence on March 26, 1971 till 16th December, 1972,
when the Constitution became effective. But this paragraph 3A
was added to validate all the proclamations made since August
20, 1975 with amendments and all other acts, actions, MLRs
and MLOs and proceedings taken thereunder till the date when
the Martial Law would be withdrawn.
The High Court Division regarding the changes made by the above
Proclamations dated August 20, 1975, November 8, 1975, and November 29,
1976 concluded as follows:-
“i) These changes were made by a nominated President and
CMLA – who had no legislative power either to make a law
or abrogate any, not to speak of any of the provision of the
Constitution but it was done.
149
ii) Votes of not less than two-thirds of the total number of
members of Parliament is required to amend a provision of
the Constitution. No Parliament was in existence, on the said
date on April 23, 1977,but without following the above noted
procedure, as stipulated in Article 142, the changes in various
provisions of the Constitution were made by the above noted
Proclamation Order.
iii) The above noted insertion and substitution of provisions,
among others, made in the Constitution, changed its basic
character, as such, could not even be done by the two-thirds
of the total number of members of the Parliament.
iv) The Constitution was made subservient to the
Proclamations, MLRs and MLOs.
This is no amendment of the Constitution even in the plain
eyes, but destruction of the basic character of the Constitution
by a Proclamation Order issued by the CMLA. But the
Second Parliament ratified and validated the said
Proclamation. Order No.1 of 1977 by the Fifth Amendment.
Not only the Proclamations but also Martial Law Regulations
and Martial Law Order made under the various
Proclamations, were also ratified and validated.
Under the above noted Proclamations, a couple of hundred
MLRs and MLOs were made from time to time to suit the
needs of the usurpers, since the promulgation of the Martial
Law on August 20, 1975, till it was withdrawn on April 7,
1979. All those MLRs and MLOs were also ratified and
validated by the Fifth Amendment, passed on April 6, 1979”.
We have already discussed as to how our Constitution is supreme and
under the Constitution all the powers and functions of the Republic are vested
in the three organs of the Government, namely, Legislature, Executive and
Judiciary and since all these organs owe their existence to the Constitution,
which is the embodiment of the will of the people as held by the superior
Courts, the basic features of the Constitution cannot be changed by
Proclamations, Martial Law Regulations or Orders.
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From the analysis of Proclamations, MLRs and MLOs and the findings
of our Apex Court as stated above, it is crystal clear that the Constitution was
made subordinate and subservient to the Proclamations dated August 20,
1975, November 8, 1975 and November 29, 1976 and the Martial Law
Regulations and Martial Law Orders made thereunder and as such those are
ultra vires the Constitution. There is no provision in the Constitution which is
‘Supra Constitutional’ or to put it mildly, ‘Extra Constitutional’. All laws or
provisions and actions taken thereon must, without any exception, conform to
the Constitution. Any law or provision, which is beyond the ambit of the
Constitution, is ultra vires and void and as such non-est in the eye of law. The
doubtless supremacy of the Constitution is far above all institutions,
functionaries and services it created.
The High Court Division also narrated the submission of the learned
Counsel of the proforma respondent No.5 which is as follows:
“Mr. Akhter Imam, Advocate, however, in support of
Martial Law, contended that in our country a Martial Law
culture or Martial Law jurisprudence has been evolved. He
based his argument partly on the book ‘Bangladesh
Constitution: Trends And Issues’ by Justice Mustafa Kamal.
The learned Advocate, read extensively from the said book
and argued that whether we like it or not we can neither
avoid nor overlook the long shadows of Marshals. They are
there and it is better to acknowledge them.
The High Court Divison answered the above submission as follows:
“We have given our utmost consideration to the above
submission of Mr. Akhter Imam but found no substance.
Rather we must acknowledge that we no longer live in the
era of Henry VIII, Lois XIV or even Napoleon Bonaparte,
whose words were law. But we live in the 21st century.
Now the voice of the people, however feeble, is the first as
well as the last word. Their will is the supreme law. The
Constitution guarantees it, so also the Court and every body
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must follow this principle without any exception, in this
Twenty First Century”.
The High Court Division after considering all the aspects concluded as
follows:-
“There is no existence of Martial Law Authorities or Martial
Law Proclamations, Regulations or Order in our Constitution
or any of the laws of the land. Those authorities or
proclamations are quite foreign to our jurisprudence. Still
those proclamations etc were imposed on the people of
Bangladesh. Those have got no legal basis. Those are illegal
and imposed by force. The people are constrained to accept it
for the time being, not out of attraction to its legality but out
of fear. As such it has no legal acceptance. …….”.
“In the instant case, the solemn Constitution of Bangladesh
were freely changed by the Proclamations, MLRs and MLOs,
issued by the self-appointed or nominated Presidents and
CMLAs, in their whims and caprices. The learned Additional
Attorney General although did not support Justice Sayem but
half –heartedly attempted to justify the actions taken by
Khondaker Moshtaque Ahmed and Major General Ziaur
Rahman, B,U. psc. but when we specifically asked him to
show us any Constitutional or legal provision in justification
of the seizure of State – Power of the Republic , he was
without any answer although he mumbled from time to time
about the Fourth Amendment”.
“The election of the Second Parliament was conducted in
February, 1979, during Martial Law. At that time, Lieutenant
General Ziaur Rahman, B.U., psc., was the President and the
Chief Martial Law Administrator.
The Constitution (Fifth Amendment) Act, 1979, was passed
on April 6, 1979, legalizing all the Proclamations, Martial
Law Regulations, Martial Law Orders and the actions taken
thereon, some of which are mentioned above.
Any common man of ordinary prudence would say that the
enormity of illegality sought to be legalized by this Act,
would have shocked the Chief Justice Coke so much so that it
would have left him dumb instead of saying that ‘when an
Act of Parliament is against right and reason, or repugnant
…………….the common law will control it and adjudge that
Act to be void’. Perhaps, it would also leave the Chief Justice
Hamoodur Rahman, out of his comprehension, if he would
found that ‘after a formal written Constitution has been
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lawfully adopted by a competent body and has been generally
accepted by the people including the judiciary as the
Constitution of the country’, an army commander can have
the audacity to change the Constitution beyond recognition
and transfiguring a secular Bangladesh into a theocratic State.
Perhaps the U.S. Supreme Court would have kept mum
instead of holding that the guarantee of due process bars
Congress from enactments that ‘shock the sense of fair play’.
But what duty is cast upon us. It is ordained that we must not
and appreciate the facts and the law in its proper perspective.
We have done so. We must hold and declare that this
Constitution (Fifth Amendment) Act, 1979, is not law”.
Further as we have already stated while dealing with the principle of
the supremacy of the Constitution, the will of the people does not contemplate
Martial Law or any other laws not made in accordance with the Constitution.
The armed forces are also subject to the will of the people and their oaths as
provided in section 15(2) of the Army Act 1952, section 17(2) of the Air
Force Act 1953 and section 14 of the Navy Ordinance 1961, make it plain.
They serve the “people” and can never become the masters of the “people”.
Accordingly Martial Law is unconstitutional and illegal and it is a
mischievous device not founded in any law known in Bangladesh and by
Martial Law the whole nation is hijacked by some people with the support of
the armed forces and the whole nation goes into a state of siege; it is like that
the whole nation and “We, the people of Bangladesh”, are taken hostage and
further like a hostage-taking situation, the hostage takers themselves
recognize that there is a superior law than their weapons which “We, the
people” put in their hands to serve us and they recognize that there are two
impediments to their taking over power or assuming power, first, the
Constitution itself and so they, at first, start by saying “Notwithstanding
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anything in the Constitution” because they recognize that the Constitution is
superior but they choose to brush it aside. The second impediment to Martial
Law is the Superior Court of the Republic entrusted with the solemn duty to
“preserve, protect and defend the Constitution” and so every Martial Law,
immediately upon Proclamation seeks to curb the powers of the Court,
particularly, the powers of the Constitutional Court.
According to the spirit of the Preamble and also Article 7 of the
Constitution the military rule, direct or indirect, is to be shunned once for all.
Let it be made clear that military rule was wrongly justified in the past and it
ought not to be justified in future on any ground, principle, doctrine or theory
whatsoever. Military rule is against the dignity, honour and glory of the
nation that it achieved after great sacrifice; it is against the dignity and
honour of the people of Bangladesh who are committed to uphold the
sovereignty and integrity of the nation by all means; it is also against the
honour of each and every soldier of the Armed Forces who are oath bound to
bear true faith and allegiance to Bangladesh and uphold the constitution,
which embodies the will of the people, honestly and faithfully serve
Bangladesh in their respective services and also see that the Constitution is
upheld, it is not kept in suspension or abrogated, it is not subverted, it is not
mutilated, and to say the least it is not held in abeyance and it is not amended
by an authority not competent to do so under the Constitution.
It may be mentioned here that the power to amend the Constitution is
an onerous task assigned to the Parliament, which represents the will of the
people through their chosen representatives. It is to be carried out in
accordance with the procedure prescribed in Article 142 of the Constitution
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and by no other means, in no other manner and by no one else. Suspending
the Constitution in the first place, and then making amendments in it by one
man by the stroke of his pen, that is to say in a manner not envisaged or
permitted by the Constitution, are mutilation and/or subversion of the
Constitution simpliciter and no sanctity is attached to such amendments per
se. Indeed, the Constitution is an organic whole and a living document meant
for all times to come.
In the cases of A. T. Mridha and Anwar Hossain this Division held that
there is no existence of Martial Law or the Martial Law Proclamations,
Regulations or Orders in our Constitution or any of the laws of the land.
Those authorities or the Proclamation etc. are quite foreign to our
jurisprudence. Still those Proclamations etc. were imposed on the people of
Bangladesh. Those have got no legal basis. Those are illegal and imposed by
force. The people are constrained to accept it for the time being, not out of
attraction or its legality but out of fear.
Further, the Parliament though may amend the Constitution under
Article 142 but cannot make the Constitution subservient to any other
Proclamations etc. or cannot disgrace it in any manner since the Constitution
is the embodiment and solemn expression of the will of the people of
Bangladesh, attained through the supreme sacrifice of nearly three million
martyrs. Further the Parliament, by amendment of the Constitution can not
legitimize any illegitimate activity.
Accordingly, keeping the Constitution in suspension and/or making
amendments therein by any authority not mentioned in the Constitution
otherwise than in accordance with the procedure prescribed in the
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Constitution itself, is tantamount to mutilating, and / or subverting the
Constitution. The Parliament can not ratify and validate those unconstitutional
acts of usurpers as the Parliament is not supreme over everything else like the
Parliament of the United Kingdom, rather it is independent of other organs of
the State, but it certainly operates within certain parameters under the
Constitution.
As it appears our country entered its “period of delinquency” at its very
early Part in 1975 and that delinquency continued for long 16 years, Martial
Law fall in the category of “black law” and the treatment of Martial Law by
the Court, was mostly based on Dosso’s case (supra). Accordingly the ghost
of Dosso’s case should be given a go bye from our jurisprudence forever so
that no one can ever again even think about overriding “the will of the
people” of Bangladesh and all must also ensure that this history never repeats
and all must recognize these faults of the past and must rectify them so that
our conscience remains clear.
The footprints that the “period of delinquency” leaves behind are
Martial Law Proclamations, Regulations and Orders in the form of black laws
and the ultimate insult to “We, the people” is the attempt to ratify these black
laws by bringing those into the umbrella of the Constitution itself. In the
present case the High Court Division recognizing these footprints sought to
erase those once for all and since all the parties before the High Court
Division agreed that the Constitution is supreme, obvious the result is that
Martial Law is illegal and unconstitutional. So this Court should not, indeed
cannot, grant leave in these petitions because to do so would be perceived by
“the people of Bangladesh” in the way that our highest judiciary is still
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unable, long after the “period of delinquency”, to properly and adequately
deal with such delinquency and further, it would send wrong signals to those
who wish to circumvent the “will of the people” in the Constitution and that
each of our generations must also be taught, educated and informed about
those dark days; the easiest way of doing this is to recognize our errors of the
past and reflect these sentiments in the judgments of this Court which will
ensure preservation of the sovereignty of “We, the people of Bangladesh”
forever as a true “pole star”.
Accordingly we hold that since the Constitution is the Supreme law of
the land and the Martial Law Proclamations, Regulations and Orders
promulgated / made by the usurpers, being illegal, void and non-est in the eye
of law, could not be ratified or confirmed by the Second Parliament by the
Fifth Amendment, as it itself had no such power to enact such laws as made
by the above Proclamations, Martial Law Regulation or orders.
Moreover the Fifth Amendment ratifying and validating the Martial
Law Proclamations, Regulations and Orders not only violated the supremacy
of the Constitution but also the rule of law and by preventing judicial review
of the legislative and administrative actions, also violated two other more
basic features of the Constitution, namely, independence of judiciary and its
power of judicial review.
As such we hold that the Fifth Amendment is also illegal and void and
the High Court Division rightly declared the same as repugnant, illegal and
ultra vires the Constitution.
Since we have declared that Martial Law Proclamations, Regulations
and Orders etc., are illegal, void and non east and the Fifth Amendment is
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also ultravires the Constitution question will arise as to whether to prevent
chaos and confusion and to avoid anomaly and to preserve continuity, the
actions and the legislative measures taken during Martial Law period needs to
be condoned / cured by the principles of doctrine of necessity.
As it appears that this doctrine of necessity is applied to condone some
of the actions of an usurper, but not all. In Madzimbamutu v. Lardner-Burke
(1968) 3 All ER 561, 579 Lord Pearce, in his dissenting judgment, termed the
doctrine of condonation as doctrine of implied mandate and observed :-
“I accept the existence of the principle that act done by
those actually in control without lawful validity may be
recognized as valid or acted on by the courts, with
certain limitations, namely, (a) so far as they are directed
to and reasonably required for ordinary running of the
State; and (b) so far as they do not impair the rights of
citizens under the lawful (1961) Constitution; and (c) so
far as they are not intended to and do not in fact directly
help the usurpation and do not run contrary to the policy
of the lawful sovereign. This is tantamount to a test of
public policy.”
But since there are limits to the application of such doctrine of
necessity, in occasions, the Parliament to come out of this position, resorted to
the private law contrivance of ratification of unauthorized actions of agents by
principals. But there is an inherent limitation even in respect of such
ratification as life can not be given to a prohibited transaction by ratification.
Again by the device of ratification the Parliament or any authority can not
increase its authority. It can ratify only those actions of others which it can
lawfully do. Thus parliament can not, by resorting to the device of
ratification, ratify and render valid an amendment which, itself, can not do
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because the same will lead to the infringement of the basic features of the
Constitution.
Regarding doctrine of necesity and condonation in Asma Jilani’s case
Hamoodur Rahman CJ. held as follows:
“I too am of the opinion that recourse has to be taken to the
doctrine of necessary where the ignoring of it would result
in disastrous consequences to the body politic and upset the
social order itself but I respectfully beg to disagree with the
view that this is a doctrine for validating the illegal acts of
usurpers. In my humble opinion this doctrine can be
involved in aid only after the court has come to the
conclusion that the acts of the usurpers were illegal and
illegitimate. It is only then the question arises as to how
many of his acts legislative or otherwise should be
condoned or maintained notwithstanding their illegality in
the wider public interest. I would call this a principle of
condonation and not legitimization. Applying this test I
would condone (1) all transactions which are past and
closed for no useful purpose can be served by reopening
them (2) all acts and legislative measures which are in
accordance with or could have been made under the
abrogated constitution or the previous legal order (3) all acts
which tend to advance or promote the good of the people (4)
all acts required to be done for the ordinary orderly running
of the State and all such measures as would establish or lead
to establishment of in our case the objectives mentioned in
the Objectives Resolution of 1954. I would not however
condone any act intended to entrench the usurper more
firmly in his power or to directly help him to run the country
contrary to the legitimate objectives. I would not condone
anything which seriously impairs the rights of the citizens
except in so far as they may be designed to advance the
social welfare and national solidarity”.
However, the High Court Division found that item (2) as referred
above, on conversion, means that any act or legislative measure, which is not
in accordance with or could not have been made under the Constitution, can
not be held valid by applying the doctrine of necessity and that Hamoodur
Rahman CJ was speaking at a time when Pakistan was far away from
accepting the doctrine of basic structure and therefore he could speak of
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condoning legislative actions which, at that time, the National Assembly had
the competence to pass. Pakistan Supreme Court, towards the end of the
twentieth century, leaned towards the doctrine of basic structure and the
doctrine of basic structure was accepted as late in the year 2000 in the case of
Zafar Ali Shah (Supra).
The High Court Division then regarding the doctrine of necessity and
condonation expressed its view as follows:
........................................................................................................
........................................................................................................
“But in order to avoid confusion, legal or otherwise and also to
keep continuity of the sovereignty and legal norm of the
Republic, we have next to consider as to whether the legislative
acts purported to be done by those illegal and void Proclamations
etc. during the period from August 15, 1975 to April 9, 1979, can
be condoned, by invoking the doctrine of “ State necessity”
But it does not mean that for the sake of continuity of the
sovereignty of the State, the Constitution has to be soiled with
illegalities, rather, the perpetrators of such illegalities should be
suitably punished and condemned so that in future no
adventurist, no usurper, would have the audacity to defy the
people, their Constitution, their Government, established by them
with their consent.
If we hark back to history, we would see that after Restoration in
1660, Charles II became King of England with effect from
January 1649, the day when his father, Charles I was beheaded,
in order to keep the lawful continuity of the Realm but not the
continuity of the illegal administration of the Commonwealth.
The moral is, no premium can be given to any body for violation
of the Constitution for any reason and for any consideration.
What is illegal and wrong must always be condemned as illegal
and wrong till eternity. In the present context, the illegality and
gravest wrong was committed against the Peoplefs Republic of
Bangladesh and its people as a whole.
This doctrine of State necessity is no magic wand. It does not
make an illegal act a legal one. But the Court in exceptional
circumstances, in order to avert the resultant evil of illegal
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legislations, may condone such illegality on the greater interest
of the community in general but on condition that those acts
could have been legally done at least by the proper authority.
This doctrine of State necessity was possibly applied for the first
time in this sub-continent in Pakistan in the Reference by His
Excellency the Governor General in Special Reference No.1 of
1955 (PLD 1955 FC 435). This Reference was made under
section 213 of the Government of India Act, 1935. It shows how
Ghulam Muhammad, the Governor General of Pakistan was
caught in his own palace clique but was rescued by an overanxious
Supreme Court by reincarnating a long forgotten
doctrine of State necessity. The Hon’ble Chief Justice looked for
help in the 13th century Bracton digged deep into the early
Middle Ages for Kings prerogatives and the maxims, such as, Id
Quod Alias Non Est Licitum, Necessitas Licitum Facit (that
which otherwise is not lawful, necessity makes lawful), salus
populi Suprema lex (safety of the people is the supreme law) and
salus republicae est suprema lex (safety of the State is the
supreme law). His Lordship referred to Chitty’ s exposition and
Maitland’s discussion on the Monarchy in England in late 17th
century. His Lordship thereafter referred to the summing up of
Lord Mansfield, to the Jury in the proceedings against George
Stratton and then held at pages 485-6:
The principle clearly emerging from this address of
Lord Mansfield is that subject to the condition of
absoluteness, extremeness and imminence, an act
which would otherwise be illegal becomes legal if it
is bone bona fide under the stress of necessity, the
necessity being referable to an intention to preserve
the constitution, the State or the Society and to
prevent it from dissolution, and affirms Chittyfs
statement that necessity knows no law and the
maxim cited by Bracton that necessity makes lawful
which otherewise is not lawful……. the
indispensable condition being that the exercise of
that power is always subject to the legislative
authority of parliament, to be exercised ex post
facto…….The emergency legislative power,
however, cannot extend to matters which are not the
product of the necessity, as for instance, changes in
the constitution which are not directly referable to
the emergency.
But what the Hon’ble Chief Justice decided to ignore was that
the Governor General himself brought disaster upon the entire
country by dissolving the Constituent Assembly earlier in
October 1954 when the Prime Minister had already set the date
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for adopting the Constitution for Pakistan in December, 1954.
That itself was a violation of the Independence Act, 1947 and a
treasonous act against the people of Pakistan. With great respect,
the Governor General ought not to have allowed to take
advantage of his own grievious wrong against Pakistan. As a
matter of fact, that was the beginning of the end. Besides, the
Hon’ble Chief Justice also forgot that only a few months back in
the case of Federation of Pakistan V. Moulvi Tamizuddin Khan
PLD 1955 FC 240, his Lordship refused to interfere even in case
of a real disaster brought about, again by the Governor General
in dissolving the Constituent Assembly.
In that case the above Chief Justice held at page . 299:
It has been suggested by the learned Judges of the Sind
Chief Court and has also been vehemently urged before
us that if the view that I take on the question of assent be
correct, the result would be disastrous because the entire
legislation passed by the Constiuent Assembly, and the
acts done and orders passed under it will in that case
have to be held to be void. ……….I am quite clear in my
mind that we are not concerned with theconsequences,
however beneficial or disastrous they may be, if the
undoubted legal position was that all legislation by the
Legislature of the Dominion under section (3) of section
3 needed the assent of the Governor-General. If the result
is disaster, it will merely be another instance of how
thoughtlessly the Constituent Assembly proceeded with
its business and by assuming for itself the positition of an
irremovable Legislature to what straits it has brought the
country. Unless any rule of estoppel require us to
pronounce merely purported legislation as complete and
valid legislation, we have no option but to pronounce it
to be void and to leave it to the relevant authorities under
the Constiution or to the country to set right the position
in any way it may be open to them. The question raised
involves the rights of every citizen in Pakistan, and
neither any rule of construction nor any rule estoppel
stands in the way of a clear pronouncement.
This stoic and stout stand like that of a 16th Century Common
Law Judge was taken by Munir, C.J., when the dissolution of the
Constituent Assembly was challenged but the same Chief Justice
became full of equity when the Governor General was caught in
his own game because of his earlier dissolution of the
Constituent Assembly.
It appears that the Hon’ble Chief Justice was more concerned
and worried about the difficulties of the Governor General who
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was supposed to be only a titular head, than the Constituent
Assembly, the institution which represented the people of
Pakistan but was dissolved by the Governor General which
augmented the constitutional crisis. With great respect, it appears
that the Hon’ble Chief Justice of Pakistan held a double standard
in protecting the interest of the Governor General than that of the
Constituent Assembly. He refused to invoke the doctrine of
necessity but upheld the dissolution of the Constituent Assembly
which by then was ready with the Constitution for Pakistan but
invoked the said very doctrine in aid of the Governor General to
steer him clear out of the constitutional crisis, created by himself,
by twisting and bending the legal provisions even calling upon
the seven hundred years old maxims.
However, Cornelius, J., in Tamizuddin Khan’s case dissented
and at page- 358 held as follows:
“I place the Constituent Assembly above the
Governor General, the chief Executive of the State,
for two reasons, firstly that the Constituent
Assembly was a sovereign body, and secondly
because the statutes under and in accordance with
which the Governor-General was required to
function, were within the competence of the
Constituent Assembly to amend....
It should be noted that earlier to the Governor Generals
Reference No.1, in the case of Usif Patel V. Crown PLD 1955
FC-387, decided on April 12, 1955, on behalf of an unanimous
Supreme Court, Munir C.J. held at page -392:
The rule hardly requires any explanation, much less
emphasis, that a Legislature cannot validate an
invalid law if it does not possess the power to
legislate on the subject to which the invalid law
relates, the principle governing validation being that
validation being itself legislation you cannot
validate what you cannot legislate upon. Therefore
if the Federal Legislature, in the absence of a
provision expressly authorizing it to do so, was
incompetent to amend the Indian Independence Act
or the Government of India Act, the Governor-
General possessing no larger powers than those of
the Federal Legislature was equally incompetent to
amend either of those Acts by an Ordinance. Under
the Independence Act the authority competent to
legislate on constitutional matters being the
Constituent Assembly, it is that Assembly alone
which can amend those Acts. The learned
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Advocate-General alleges that the Constituent
Assembly has been dissolved and that therefore
validating powers cannot be exercised by that
Assembly. In Mr. Tamizuddin Khan’s case, we did
not consider it necessary to decide the question
whether the Constituent Assembly was lawfully
dissolved but assuming that it was, the effect of the
dissolution can certainly not be the transfer of its
powers to the Governor-General. The Governor-
General can give or withhold his assent to the
legislation of the Constituent Assembly but he
himself is not the Constituent Assembly and on its
disappearance he can neither claim powers which he
never possessed nor claim to succeed to the powers
of that Assembly.
His Lordship further held at page-396:
“This Court held in Mr. Tamizuddin Khan’s case
that the Constituent Assembly was not a sovereign
body. But that did not mean that if the Assembly
was not a sovereign body the Governor-General
was”.
But in this connection, the opinion of De Smith is pertinent:
“It is clear ……. that the leading Pakistan decision
in 1955 was a not very well disguised act of
political judgment. By the normal canons of
construction, what the Governor-General had done
was null and void. But the judges steered between
Scylla and Charybdis and chose what seemed to
them to be the least of evils. Quoted from Leslie
Wolf- Phillips: Constitutional Legitimacy at page-
11)”.
This is how the doctrine of necessity made its appearance in
order to salvage what was left of the normal constitutional
process in Pakistan at that time in 1955.
The High Court Division further held as follows:
In the case of Asma Jilani V. Government of Punjab
PLD 1972 SC 139, Hamoodur Rahman, C.J., held at
page-204-5:
“Reverting now to question of the legality of the
Presidential Order No.3 of 1969 and the Martial
Law Regulation No.78 of 1971 it follows from the
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reasons given earlier that they were both made by an
incompetent authority and, therefore; lacked the
attribute of legitimacy which is one of the essential
characteristics of a valid law. The Presidential Order
No.3 of 1969 was also invalid on two additional
grounds, namely, that it was a Presidential Order,
which could not in terms of the Provisional
Constitution Order itself amend the Constiution so
as to take away the jurisdiction conferred upon the
High Courts under Article 98 and that it certainly
could not, in any event, take away the judicial
power of the Courts to hear and determine questions
pertaining even to their own jurisdiction and this
power could not be vested in another authority as
long as the Courts continued to exist.
This does not, however, dispose of the case, for, we
are again presented by the learned Attorney-General
with the argument that a greater chaos might result
by the acceptance of this principle of legitimacy. He
has reminded the Court of the grave consequences
that followed when in Moulvi Tamuzuddin Khan’s
case a similar argument was spurned by the Federal
Court and disaster brought in. I am not unmindful of
the grave responsibility that rests upon Courts not to
do anything which might make confusion worse
confounded or create a greater state of chaos if that
can possibly be avoided consistently with their duty
to decide in accordance with law. ……… This is a
difficult question to decide and although I have for
my guidance the example of our own Federal Court,
which in Governor-General’s Reference No.1 of
1955 invoked the maxim of salus populi suprema
lex to create some kind of an order out of chaos. I
would like to proceed with great caution, for, I find
it difficult to legitimize what I am convinced is
illegitimate…..”
....................................................................................
...................................................................................
Then in the above case the Hon’ble Chief Justice
fell back on the doctrine of necessity and held at
page-206-7 the contents of which we have already
stated earlier.
Then regarding the case of Nusrat Bhutto, on which the petitioners
relied in which Pakistan Supreme Court did not follow Asma Jilani’s case and
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gave approve to the inposition of Martial Law invoking doctrine of necessity,
the High Court Division held as follows:
It appears, that the Supreme Court of Pakistan accepted
the explanation given by General Mohammad Ziaul Haq
for the Army’s intervention and validated such
intervention and the imposition of Martial Law invoking
the doctrine of State necessity.In doing so the learned
Judges resorted to the Holy Quran also, in justification
for suspension of the Constitution and dissolution of the
National and Provincial Assemblies. In this respect they
were satisfied with the explanations given by the Army
Chief of Staff. This was a U-turn of the Supreme Court
from its earlier stand in the cases of Asma Jilani and
Ziaur Rahman.
The High Court Division further held as follows:-
………As Judges, our only tools are the Constitution, the
laws made or adopted under it and the facts presented
before us. We are bound by these instruments and we are
to follow it. The plea of State necessity shall have to be
considered within the bounds of these instruments and
not without those. That is how we read Grotius and Lord
Pearce in Madzimbamuto. But Grotius or Lord
Mansfield in Stratton’s case (1779) or Lord Pearce, did
not dream of breaking any law or giving legitimacy to an
illegality, far less making the Constitution, the supreme
law of any country, subservient to the commands of any
Army General, whose only source of power is through
the muzzle of a gun although all the Generals in any
country seize power in the name of the people and on the
plea of lack of democracy in the country with a solemn
promise to restore it in no time, as if the democracy can
be handed down to the people in a well packed multicoloured
gift box.
Democracy is a way of life. It cannot be begotten overnight.
It cannot be handed down in a silver platter. It has
to be earned. It has to be owned. The world history is
replete with stories of people, ordinary people who
fought for their rights in different names in different
countries, but the cry for liberty, the cry for equality, the
cry for fraternity were reverbrated in the same manner
from horizon to horizon. This sense of liberty made us
independent from the yoke of the British rule in 1947
and the same sense of liberty pushed us through the war
of liberation in 1971 and brought Bangladesh into
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existence. But the proclamation of Martial Law is
altogether the negation of the said spirit of liberty and
independence. In this connection we would recall what
was said in the case of Shamima Sultana Seema V.
Government of Bangladesh 2LG (2005) 194 at para-123:
It should be remembered that the
ingrained spirit of the Constitution is its
intrinsic power. It is its soul. The
Constitution of a country is its source of
power. It is invaluablewith its such soul. It
strives a nation to move forward. But if
the said spirit is lost, the Constitution
becomes a mere stale and hollow
instrument without its such life and force.
It becomes a dead letter. The United
Kingdom, although does not have any
written Constitution but has got the spirit
of the Constitution and that is why the
people of that country can feel proud of
their democracy but there are countries
with Constitutions, written and amended
many a times but without the said spirit,
the democracy remains a mirage”.
The High Court Division further held as follows:
We have already discussed earlier that the English text of
various portion of the Preamble, Article 6, Article 8, Article
9, Article 10 and Article 25 were altogether changed or
replaced while Article 12 was completely omitted by the
Proclamations (Amendment) Order, 1977 (Proclamation
Order No. 1 of 1977). This was published in Bangladesh
Gazette Extra-ordinary on April 23, 1977.Besides other
changes, a new paragraph with the heading, 3A. validation
of certain Proclamations, etc. was inserted after paragraph 3
in the Fourth schedule to the Constitution. The English text
of the proviso to article 38 was omitted by the Second
Proclamation (Sixth Amendment) Order 1976 (Second
Proclamation Order No. III of 1976). The Bengali text of the
above noted all the changes were made by the Second
Proclamation (Fifteenth Amendment) Order, 1978 (Second
Proclamation Order No. IV of 1978). Besides, clauses 1A,
1B and 1C were added to Article 142 of the Constitution by
the above Order No. IV of 1978. These changes were of
fundamental in nature and changed the very basis of our war
for liberation and also defaced the Constitution altogether.
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The very endeavour to change the basic features of the
Constitution by the Martial Law Proclamations was illegal,
void and non est in the eye of law. By the said Martial law
Proclamations, the secular Bangladesh was transformed into
a theocratic State and thereby not only changed one of the
most basic and fundamental features of the Constitution but
also betrayed one of the dominant cause for the war of
liberation of Bangladesh.
................................................................................................
................................................................................................
The Proclamations (Second Amendment) Order, 1975,
dated November 6, 1975, was made, inserting clause (aa) in
the Proclamation dated August 20, 1975, providing for
nomination of any person as President.
The Proclamation dated November 8, 1975, omitted Part VI
A of the Constitution (added by the Fourth Amendment).
The Second Proclamation (Sixth Amendment) Order, 1976
(Second Proclamation Order No. III of 1976), omitted the
following proviso of the original Article 38:
“Provided that no person shall have the right
to form, or be a member or otherwise take
part in the activities of, any communal or
other association or union which in the name
or on the basis of any religion has for its
object, or pursues, a political purpose”.
The Bengali version of the above Proviso was omitted
subsequently by the Second Proclamation (Fifteenth
Amendment) Order, 1978 (Second Proclamation Order No.
IV of 1978) 2nd Schedule.
The Second Proclamation (Seventh Amendment) Order,
1976 (Second Proclamation Order No. IV of 1976), repealed
most of the changes brought about by the (Fourth
Amendment) Act, 1975, save and accept Chapters I and II
of the Part IV of the Constitution, keeping the Presidential
form of Government, introduced earlier by the Fourth
Amendment. The Second Proclamation Order No. IV of
1976 came into force with effect from 13.8.1976.
The Proclamations (Amendment) Order, 1977
(Proclamations Order No. 1 of 1977) (Annexure-L-1 to the
writ petition), replaced many of the paragraphs in the
Preamble and in various provisions of the Constitution. The
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Proclamation was published in Bangladesh Gazette
Extraordinary on April 23, 1977. This Proclamation made
changes in First and Second Preamble, Articles 6, 8, 9, 10,
12, 38, and 142 of the Constitution which has been stated
earlier .
“Excepting Article 42, these are the basic changes in the
structure of the Constitution and cannot even be done by the
Parliament itself, and as such, the question of ratification,
confirmation or validation of those changes does not arise.
Besides, by the above noted Proclamation, by the
amendment of Article 6, our identity of thousand years as
Bangalee was changed into Bangladeshis. Since the said
change was made by a Martial Law Proclamation, it was
without jurisdiction and non-est in the eye of law, as such,
there was nothing to ratify confirm or validate by the
subsequent Act of Parliament.
.................................................................................................
.................................................................................................
Under the circumstances, we deny condonation of both
Bengali and English texts of the following provisions made
in the Constitution by the various Proclamations :
1) The Amendments made in the Preamble of the
Constitution
2) Article 6.
3) Article 8.
4) Article 9
5) Article 10
6) Article 12
7) Article 25.
8) Proviso to Article 38
9) Clauses 1A, 1B and 1C to Article 142.
10) Paragraph 3A to the Fourth Schedule to the
Constitution.
For retaining Article 95 the High Court Division stated as follows:
It may be reiterated that by the Second Proclamation
(Seventh Amendment) Order, 1976 (Second Proclamation
Order No. IV of 1976), several changes were made with
effect from 13.8.1977 in the Constitution as it stood after the
Fourth Amendment. One of such changes was in respect of
Article 95 of the Constitution. This provision is in respect of
appointment of Judges in the Supreme Court. Article 95 in
the original Constitution reads as follows :
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95. (1) The Chief Justice shall be appointed by
the President, and the other judges shall be
appointed by the President after consultation
with the Chief Justice.
(2)................
The Constitution (Fourth Amendment) Act, 1975, changed
clause (1) of Article 95 in the following manner :
95.(1) The Chief Justice and other Judges shall
be appointed by the President……….
Article 95(1) was again amended by the Second
Proclamation (Seventh Amendment) Order, 1976 (Second
Proclamation Order No. IV of 1976) with effect from
August 13, 1976, in the following manner:
95. Appointment of Supreme Court Judges,-(1)
The Chief Justice of the Supreme Court shall
be appointed by the President, and the other
Judges shall be appointed by the President after
consultation with the Chief Justice…..…
This version commensurate with the Article 95 in the
original unamended Constitution.
But by the Second Proclamation (Tenth Amendment) Order,
1977 (Second Proclamation Order No. 1 of 1977) again
changed Article 95(1) of the Constitution in the following
manner:
95. Appointment of Judges- (i) The Chief Justice and other
Judges shall be appointed by the President……..
This form of Article 95(1) is exactly the same as made in
the Fourth Amendment.
This Order containing Article 95 in this form came into
force on 1.12.1977 and remains so in the Constitution till
date in view of the Fifth Amendment, without further
change”.
This Second Proclamation (Tenth Amendment ) Order 1977
(Second Proclamation Order No. 1 of 1977) containing the
latest version of Article 95 was sought to be protected
amongst others firstly by the Proclamations (Amendment)
Order, 1977 (Proclamations Order No. 1 of 1977), by
inserting Paragraph 3A in the Fourth Schedule to the
170
Constitution. This was published in the Bangladesh Gazette
Extraordinary on 23.4.1977. Secondly, by insertion of
Paragraph 18 in the Fourth Schedule by the Constitution
(Fifth Amendment) Act, 1979.
Since we have decided that we would approve and condone
the amendments made in the Constitution which would
repeal the various provisions of the Constitution (Fourth
Amendment) Act, 1975, we do not condone the amendment
of clause (1) of Article 95 by the Second Proclamation
(Tenth Amendment) Order, 1977 (Second Proclamation
Order No. 1 of 1977) which commensurates with Article
95(1) as made in the Fourth Amendment along with its
English Text.
This would amount to revival of Article 95(1) as amended
by the Second Proclamation (Seventh Amendment) Order,
1976 (Second Proclamation Order No. IV of 1976)
.................................................................................................
.................................................................................................
Then the High Court Division concluded as follows:
We provisionally condone the various provisions of the
Proclamations with amendments as appended to the book,
namely, the Constitution of the People Republic of
Bangladesh; published by the Ministry of Law, Justice and
Parliamentary Affairs, Government of Bangladesh, as
modified upto 31st May, 2000, save and except those
mentioned above. But since we have declared the
Constitution (Fifth Amendment) Act, 1979, ultravires to the
Constitution, the vires of the rest of the provisions of the
Proclamations not considered herein, remain justifiable
before the Court. However, all the acts and proceedings
taken thereon, although were not considered yet, are
condoned as past and closed transactions.
We have held earlier held in general that there was no legal
existence of Martial Law and consequently of no Martial
Law Authorities, as such, all Proclamations etc. were illegal,
void ab initio and non est in the eye of law. This we have
held strictly in accordance with the dictates of the
Constitution, the supreme law to which all the Institutions
including the Judiciary owe its existence. We are bound to
declare what have to be declared, in vindication of our oath
taken in accordance with the Constitution, otherwise, we
ourselves would be violating the Constitution and the oath
taken to protect the Constitution and thereby betraying the
Nation. We had no other alternative, rather, we are obliged
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to act strictly in accordance with the provisions of the
Constitution.
The learned Advocates for the petitioners raised the
possibility of chaos or confusion that may arise if we
declare the said Proclamations, MLRs and MLOs and the
acts taken thereunder as illegal, void ab initio and non est.
We are not unmindful of such an apprehension although
unlikely but we have no iota of doubts about the illegalities
of those Proclamations etc. What is wrong and illegal shall
remain so for ever. There cannot be any acquiescence in
case of an illegality. It remains illegal for all time to come.
A Court of Law cannot extend benefit to the perpetrators of
the illegalities by declaring it legitimate. It remains
illegitimate till eternity. The seizure of power by Khandaker
Moshtaque Ahmed and his band of renegades, definitely
constituted offences and shall remain so forever. No law can
legitimize their actions and transactions. The Martial Law
Authorities in imposing Martial Law behaved like an alien
force conquering Bangladesh all over again, thereby
transforming themselves as usurpers, plain and simple.
Be that as it may, although it is very true that illegalities
would not make such continuance as a legal one but in order
to protect the country from irreparable evils flowing from
convulsions of apprehended chaos and confusion and in
bringing the country back to the road map devised by its
Constitution, recourse to the doctrine of necessity in the
paramount interest of the nation becomes imperative. In
such a situation, while holding the Proclamations etc. as
illegal and void ab initio, we provisionally condone the
Ordinances, and provisions of the various Proclamations,
MLRs and MLOs save and except those are specifically
denied above, on the age old principles, such as, Id quod
Alias Non Est LIcitum, Necessitas Licitum Facit (That
which otherwise is not lawful, necessity makes lawful),
Salus populi suprema lex (safety of the people is the
supreme law) and salus republicae est suprema lex (safety of
the State is the supreme law).
In this connection it may again be reminded that those
Proclamations etc. were not made by the Parliament but by
the usurpers and dictators. To them, we would use Thomas
Fullers warning sounded over 300 years ago: Be you ever
so high, the law is above you. (Quoted from the Judgment
of Lord Dennings M. R., in Gouriet V. Union of Post Office
Workers (1977) 1 QB 729 at page-762). Fiat justitia, ruat
caelum.
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Regarding condonation, the High Court Division, in paragraphs 18-21
of the summary, held as follows:-
“18. The turmoil or crisis in the country is no excuse for any
violation of the constitution or its deviation on any pretext.
Such turmoil or crisis must be faced and quelled within the
ambit of the Constitution and the laws made thereunder, by
the concerned authorities, established under the law for such
purpose.
19. Violation of the Constitution is a grave legal wrong and
remains so for all time to come. It cannot be legitimized and
shall remain illegitimate for ever, however, on the necessary
of the State only, such legal wrongs can be condoned in
certain circumstances, invoking the maxims. Id quod Alias
Non Est Licitum. Necessitas Licitum Facit, salus populi est
suprema lex and salus republicae est suprema lex.
20. As such, all acts and things done and actions and
proceedings taken during the period from August 15, 1975
to April 9, 1979, are condoned as past and closed
transactions, but such condonations are made not because
those are legal but only in the interest of the Republic in
order to avoid chaos and confusion in the society, although
distantly apprehended, however, those remain illegitimate
and void forever.
21. Condonations of provisions were made, among others,
in respect of provisions, deleting the various provisions of
the Fourth Amendment but no condonation of the provisions
was allowed in respect of omission of any provision
enshrined in the original Constitution. The Preamble Article
6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the
original Constitution. No condonation is allowed in respect
of change of any of these provisions of the Constitution.
Besides, Article 95, as amended by the Second
Proclamation Order No. IV of 1976, is declared valid and
retained.”
As it appears, the High Court Division accepted the doctrine of
condonation as was done in Asma Jilani’s case and in order to avoid chaos
and confusion in the society and preserve continuity condoned all acts and
thins and proceedings taken during the period from August 15, 1975 to April
9, 1979 as past and closed transactions and in para 21 of its summery the
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High Court Division condoned all the provisions which deleted the various
provisions of the Fourth Amendemnt.
As it appears, by the Fourth Amendment, amongst others,
(1) In place of Parliamentary system, Presidential
system was introduced by substituting chapter I and
II of Part IV of the Constitution.
(2) The impeachment and removal of the President was
made tougher.
(3) The power of the Parliament was reduced by
amending Article 80.
.
(4) The power of the High Court Division to enforce
fundamental rights was curtailed by substituting
Article 44.
(5) The independence of judiciary was curtailed by
amending Article 95.
(6) One-party political system was introduced by
adding part VIA in the Constitution.
It also appears that by the Fifth Amendment, amonsgt others, the
following changes were made.
(1) Omission of Part VIA of the Constitution dealing with
one party system as introduced by the Fourth
Amendment. The above omission was made by
Proclamation dated 8th November of 1975.
(2) Partial restoration of the independence of judiciary
(Article 95 and 116) as made by the Second
Proclamation (Seventh Amendment) Order 1976.
Indepence of judiciary was curtailed by the Fourth
Amendment.
(3) Restoration of the jurisdiction of the High Court
Division to enforce fundamental rights as was
provided in original Articles 44 and 102 of the
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Constitution. The same was made by the Second
Proclamation (Seventh Amendment) Order 1976.
(4) Insertion of the provision of Supreme Judicial
Council in respect of security of tenure of the judges
of the Supreme Court (Article 96). The same was
made by Proclamation Order No.1 of 1977.
(5) Abolition of the provision of absolute veto power of
the President as introduced by the Fourth Amendment
(Article 80). The same was made by the Second
Proclamation (Fifteenth Amendment) Order 1978.
(6) Introduction of the provision of referendum in respect
of amendment of certain provisions of the
Constitution. The same was made by Second
Proclamation Order (Fifteenth Ahmed) 1978 by
inserting sub-articles (1A), (1B) and (1C) in Article
142.
(7) The insertion of the words “Bismillahir Rahmanir
Rahim” at the beginning of the Constitution i.e. above
the Preamble.
(8) Amending the original Article 6 of the Constitution
which provided that the citizens of Bangladesh would
be known as ‘Bangalees’ by the substituted Article 6
providing that citizens of Bangladesh would be
known as ‘Bangladeshis’. Further original Article 9 of
the Constitution, which provided for unity and
solidarity of the Bengalee nation, was also substituted
by a new Article providing promoting local
governmental institution. The same was done by
Proclamation Order No.1 of 1977.
(9) Omission of secularism as was provided in original
Article 8(1) of the Constitution which declared that
the principles of nationalism, socialism, democracy
and secularism shall constitute the fundamental
principles of State Policy; addition of the words “the
principle of absolute trust and faith in the Almighty
Allah” in Article 8(1) and also the insertion of a new
sub article (1A) containing the words “Absolute trust
and faith in the Almighty Allah shall be the basis of
all actions” after amended Article 8(1). The above
was made by Proclamation Order No.1 of 1977.
(10) Giving new explanation to “Socialism” as mentioned
in original Article 8(1), one of four major
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fundamental principles of State Policy, to the effect
that socialism would mean only economic and social
justice.
(11) Substitution of original Article 10 of the Constitution
which guaranteed democracy and human rights by a
new Article providing “Participation of women in
national life” which has no nexus with the original
Article 9.
(12) Omission of the proviso to Article 38 from the
original Constitution which provided as follows:-
“Provided that no person shall have the right to form,
of be a member or otherwise take part in the activities
of, any communal or other association or union which
in the name or on the basis of any religion has for its
object, or pursues, a political purpose.” The same was
made by the Second Proclamation (Sixth
Amendment) Order 1976.
(13) Addition of new Article 92A giving the President the
power to expend public moneys in certain cases even
without the approval of the Parliament. The said
Article 92A was inserted in the Constitution by the
Second Proclamation (Fifteenth Amendment) Order
1978.
(14) Inserting of another new Article 145A providing that
all international treaties would be submitted to the
President who should cause them to be laid before
Parliament by second proclamation. The said Article
145A was inserted in the Constitution by the Second
Proclamation (Fifteenth Amendment) Order 1978.
(15) Amendment of Article 58 of the Constitution
providing that four-fifth of the total number of
ministers should be taken from among the members
of Parliament and that the President would appoint as
Prime Minister a member of parliament who appeared
to him to command the support of the majority of the
members of parliament. The same was made by the
Second Proclamation (Fifteenth Amendment) Order
1978.
A question has been raised as to whether the High Court Division can
exercise the “legislative power” by way of condonation. But it is now settled
to avoid anomaly and also to preserve continuity, the Courts have to pass
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consequential orders. No exception can be taken to it. Illustrations of such
judicial power may be found in the Eighth Amendment case wherein the
Appellant Division ordered prospective application of the invalidity of the
Eighth Amendment. Further while declaring any law ultra vires, the Court
often applies the doctrine of severability to limit the application of the judicial
verdict. This is no legislative act though such a decision modifies or even
destroys a legislation.
Now regarding the modifications of the judgment and order of the High
Court Division it may be noted that earlier to avoid the hardship that the
poeple may suffer, we are inclined to condone the substituted provision of
Article 6 of the Constitution. We have also expunged the findings of the High
Court Division made in respect of Article 150 of the Constitution and the
Fourth Schedule taking in view of the subsequent development.
The other modifications that we want to make are in respect of the
following provisions of the Constitution
As it appears Part III of the Constitution enumerates a host of
fundamental rights in which the framers of the Constitution made the right to
move the Supreme Court of Bangladesh for enforcement of fundamental
rights itself a fundamental right. But as discussed earlier, the same was
substituted by the Fourth Amendment providing that the “Parliament may by
law establish a Constitutional Court, Tribunal or Commission for the
enforcement of the rights conferred by this part”. But the English Text of this
Article was substituted by the Second Proclamation (Seventh Amendment)
Order, 1976 and the Second Proclamation (Tenth Amendment) Order, 1977
and the Bengali Text was substituted by the Second Proclamation (Fifteenth
177
Amendment) Order, 1978 and by these amendments the original Article 44
was restored. As a result a citizen of Bangladesh is entitled to move the High
Court Division under Article 102 for the enforcement of the rights conferred
in Part III. This substitution of Article 44, no doubt, was designed to advance
rule of law and the welfare of the people and accordingly it needs to be
retained for the interest of justice.
It also appears that the provision of Article 96 as existed in the
Constitution on August 15, 1975 provided that a Judge of the Supreme Court
of Bangladesh may be removed from the office by the President on the
ground of “misbehaviour or incapacity”. However clauses (2), (3), (4), (5), (6)
and (7) of Article 96 were substituted by the Second Proclamation (Tenth
Amendment) Order, 1977 providing the procedure for removal of a Judge of
the Supreme Court of Bangladesh by the Supreme Judicial Council in the
manner provided therein instead of earlier method of removal. This
substituted provisions being more transparent procedure than that of the
earlier ones and also safeguarding independence of judiciary, are to be
condoned.
Earlier while discussing the different Proclamations, Martial Law
Regulations and Orders we found that under the Constitution of 1972 the
High Court Division, under original Article 102(1), had powers to pass
necessary orders to enforce fundamental rights. It may be noted here that this
power of the High Court Division is not discretionary and whenever an
authority acts illegally or commits an error of law or a citizen’s fundamental
right is violated, the remedy under this article can be availed of. This subarticle
(1) of Article 102 though was deleted by the Fourth Amendment has
178
been restored by the Second Proclamation (Tenth Amendment) Order, 1977.
The above restoration of sub-article (1) of Article 102, being beneficial,
should be condoned for the wider public interest.
It also appears that Part VIA of the Constitution under the heading
‘THE NATIONAL PARTY’ incorporating Article 117A was added by the
Fourth Amendment. However in a democratic system the existence of
different political parties and their participation in the parliamentary election
cannot be denied because such participation would flourish the democracy in
the country. Further this Article 117A is also inconsistent with Articles 37,
38, 39 of the Constitution. However this provision has been deleted by the
Proclamation dated 8th November, 1975. Accordingly this portion of the
above Proclamation needs to be condoned.
As it appears Article 95 of the Constitution, relates to the appointment
of the Judges of the Supreme Court of Bangladesh. The above Article 95 as it
stood after the amendment made by the Second Proclamation (Seventh
Amendment) Order, 1976 has been retained by the High Court Division. The
above Order, amongst others, changed Article 95 of the Constitution relating
to the appointment of Judges of the Supreme Court. This amendment of
Article 95 commensurate with the Original Article 95 which existed before
the enactment of the Fourth Amendment wherein there was provision for the
appointment of the Judges by the President “after consultation with the Chief
Justice”. But this consultative provision as provided by Second Proclamation
(Seventh Amendment Order 1977) was deleted by the Second Proclamation
(Tenth Amendment) Order, 1977. Accordingly, after the amendment of the
amended Article 95 by the Second Proclamation (Tenth Amendment) Order,
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1977, Article 95 as amended by the Second Proclamation Order No. IV of
1976, did no longer exist, and therefore, it was not ratified or validated or
confirmed by the Fifth Amendment. Accordingly this Article 95 as amended
by the Second Proclamation Order No. IV of 1976 could not be legally
condoned by the High Court Division as it was not in force on the day the
Fifth Amendment was passed. Moreso, a repealed provision can not be legally
retained and/or validated by the Court. So Article 95 will remain as it existed
on August 15, 1975. However, in view of the declarations given in the Judges
case (Supra) declaring that convention of consultaion being, a Constitutional
imperative, is binding upon everybody. Accordingly this retention of
substitued Article 95 will have no bearing on the matter of consultation.
However, before concluding we would like to mention that our decision
will remain incomplete if we do not mention the present state of the judiciary
in the Constitution.
As it appears Mustafa Kamal, CJ was emphatic in respect of the
independence of the judiciary in Secretary of Finance V Masdar Hossain
2000(VIII) BLT (AD) 234 wherein he held in para 44, page 257 – 258 as
follows:
“44. The independence of the judiciary, as affirmed and declared
by Articles 94 (4) and 116A , is one of the basic pillars of the
Constitution and cannot be demolished, whittled down, curtailed
or diminished in any manner whatsoever, except under the
existing provision of the Constitution. It is true that this
independence, as emphasized by the learned Attorney General ,
is subject to the provision of the Constitution, but we find no
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provision in the Constitution which curtails, demolishes to
otherwise abridges this independence……”
However we are of the view that the words, “but we find no provision
in the Constitution which curtails, demolishes or otherwise abridges this
independence” do not depict the actual picture because unless Articles 115
and 116 are restored to their original position, independence of judiciary will
not be fully achieved.
In this regard, Matin, J. in Judges Case 17 BLT (AD) 231 observed as
follows:
“it is true that “consultation” was considered in the light of
Article 116 of the Constitution but never the less the same
principle all the more applies in the matter of appointment of
Judges of the Supreme Court under Articles 95 and 98 of the
Constitution because without the independence of the Supreme
Court there cannot be any independence of the subordinate
courts and minus the consultation and primacy the separation of
judiciary from executive will be empty words……..”
It was further observed:-
“we agree, with approval, with Justice Bhagvati and add further
that although Article 22 has been implemented to a great extent
through the judgement of this Court in Masdar Hossains’s case
but until and unless the unamended Articles 115 and 116 of the
Constitution are restored vesting the control of the subordinate
judiciary in the Supreme Court, the separation of judiciary will
remain a distant cry and a music of the distant drum”
It may be noted here that among the twelve directions given in Masdar
Hossain’s case one was to the effect that Parliament will in its wisdom take
necessary steps regarding this aspect of independence of judiciary.
It is our earnest hope that Articles 115 and 116 of the Constitution will be
restored to their original position by the Parliament as soon as possible.
Before we conclude, we would like to quote the following:
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“The greatest of all the means ……….for ensuring the stability of
Constitution-but which is now a days generally neglected is the education of
citizens in the spirit of the Constitution …………To live by the rule of the
Constitution ought not to be regarded as slavery, but rather as salvation.”
(Artistotle’s Politics (335-322 BC) pp 233-34”
We would also quote the following passage from the conclusion in an
essay on Noni Palkivala in …….. “Democracy, Human rights and Rule of
Law” edited by Venkat Iyer , 2000 regarding the “Period of Deliquency” in
India in 1975 -1977 :
Despite the traumatic events of 1995 – 1977, the lessons of
that emergency have now, alas, also been forgotten by a vast
majority of Indian citizenery. It is said that people do not
realize the benefits of freedom until they are lost. Twenty five
years have passed and a new generation of Indians is not even
aware of what happened during those eventful months.
It is essential that if India is to preserve her democratic
freedom, each generation must be taught, educated and
informed about those dark days. Every Indian needs to renew
and refresh himself at the springs of freedom.
We will simply echo those words by replacing the period and the word India
with Bangladesh. We emphasize each of our generation must be taught,
educated and informed about those dark days: the easiest way of doing this is
to recognize our errors of the past and reflect this sentiments in our judgment.
This will ensure that the sovereignty of “we, the people of Bangladesh” is
preserved forever as a “ pole star”.
We are of the view that in the spirit of the Preamble and also Article 7
of the Constitution the Military Rule, direct or indirect, is to be shunned once
for all. Let it be made clear that Military Rule was wrongly justified in the
past and it ought not to be justified in future on any ground, principle,
doctrine or theory whatsoever as the same is against the dignity, honour and
glory of the nation that it achieved after great sacrifice; it is against the
182
dignity and honour of the people of Bangladesh who are committed to uphold
the sovereignty and integrity of the nation by all means; it is also against the
honour of each and every soldier of the Armed Forces who are oath bound to
bear true faith and allegiance to Bangladesh and uphold the Constitution
which embodies the will of the people, honestly and faithfully to serve
Bangladesh in their respective services and also see that the Constitution is
upheld, it is not kept in suspension, abrogated, it is not subverted, it is not
mutilated, and to say the least it is not held in abeyance and it is not amended
by any authority not competent to do so under the Constitution.
Accordingly though the petitions involve Constitutional issues, leave,
as prayed for, can not be granted as the points raised in the leave petitions
have been authoritatively decided by superior Courts as have been reflected in
the judgment of the High Court Division.
We, therefore, sum up as under:
1. Both the leave petitions are dismissed;
2. The judgment of the High Court Division is approved subject to
the following modifications:-
(a) All the findings and observations in respect of Article 150 and
the Fourth Schedule in the judgment of the High Court Division
are hereby expunged, and the validation of Article 95 is not
approved;
3. In respect of condonation made by the High Court Division, the
following modification is made and condonations are made as
under:
183
(a) all executive acts, things and deeds done and actions taken
during the period from 15th August 1975 to 9th April, 1979 which
are past and closed;
(b) the actions not derogatory to the rights of the citizens;
(c) all acts during that period which tend to advance or promote the
welfare of the people;
(d) all routine works done during the above period which even the
lawful government could have done.
(e) (i) the Proclamation dated 8th November, 1975 so far it relates
to omitting Part VIA of the Constitution;
(ii) the Proclamations (Amendment) Order 1977
(Proclamations Order No. 1 of 1977) relating to Article 6 of the
Constitution.
(iii) the Second Proclamation (Seventh Amendment) Order,
1976 (Second Proclamation Order No. IV of 1976) and the
Second Proclamation (Tenth Amendment) Order, 1977 (Second
Proclamation Order No. 1 of 1977) so far it relates to
amendment of English text of Article 44 of the Constitution;
(iv) the Second Proclamation (Fifteenth Amendment) Order,
1978 (Second Proclamation Order No.IV of 1978) so far it
relates to substituting Bengali text of Article 44;
(v) The Second Proclamation (Tenth Amendment) Order, 1977
(Second Proclamation Order No. 1 of 1977) so far it relates to
inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e.
184
provisions relating to Supreme Judicial Council and also clause
(1) of Article 102 of the Constitution, and
(f) all acts and legislative measures which are in accordance with, or
could have been made under the original Constitution.
While dismissing the leave petitions we are putting on record our total
disapproval of Martial Law and suspension of the Constitution or any part
thereof in any form. The perpetrators of such illegalities should also be
suitably punished and condemned so that in future no adventurist, no usurper,
would dare to defy the people, their Constitution, their Government,
established by them with their consent. However, it is the Parliament which
can make law in this regard. Let us bid farewell to all kinds of extra
constitutional adventure for ever.



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