Article-42
Whether the amendment by way of inserting proviso to section 31 and 34 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 being ultra-vires of the constitution and violative of the principles of natural justice.
Held : We are of the view that amendment that has been made in section 31 and 34 of the Ordinance cannot be said violated the right of the petitioners to have protection law and that in having adequate compensation in respect of the land acquired under the Ordinance or that of the provision of Article 116A of the Constitution.
Md. Shahjahan Ali Khan & Ors. Vs. Govt. of Bangladesh & Ors 8BLT(HCD)-l
Article-42
The constructions so far made at a cost of crores up to 14 floors with a foundation of a 22 storied building known as ‘Rangs Bhaban’ as per plan duly approved by RAJUK and following the terms and conditions thereof must be held to be a property
lawfully vested in the petitioners as valid acquisition under Article 42 of the Constitution and under the Constitution the rights of petitioners to hold and enjoy such property are guaranteed.
A Rouf Chowdhury & Anr. Vs. Bangladesh & Ors 8BLT(HCD)-277
Article-65(1)
Lawmaking Power of the Parliament is a limited one because where the Constitution as ours is supreme and the legislature is a
creature of the Constitution with limitations on its competence, its laws being liable to be struck down as ultra vires if they breach the constitutional controls, it is called a “controlled Constitution”. In such a Constitution the legislature’s power to alter the Constitution is nonexistent—The Parliament as a creature of the Constitution. As such if the Proceedings of the Parliament are outside the purview or are contrary to any provision of the Constitution, it would not qualify as a Proceeding in Parliament and the Courts jurisdiction is not ousted.
Afzalul Abedin & Ors. Vs. Govt. of Bangladesh & Ors. 10 BLT (HCD)-490
Article-66(2)(d) read with Rules of
Procedure of Parliament Rules-178(3)
The learned Counsel appearing for the petitioner contends that the alleged disqualification was never made applicable to the petitioner in 1993 when he was convicted and sentence for 7 years in Janata Tower case. The petitioner was also not debarred
from participating in the Parliament election held in June, 1996. But it was only made applicable to him after long 8 years from the date of conviction and sentence while he v\as continuing as a Member of Parliament. Hence, theN authorities concerned must now be estopped from declaring his seat vacant on the ground of disqualification for his conviction in Janata Tower case—Held :
In the instant case, the Speaker did not inform the House that the petitioner ceased to be a Member on account of disqualification for being convicted in the Janata Tower Case for a period exceeding 2 (two) years. The petitioner was, therefore, not informed about his seat being vacant due to disqualification. As a result he had no opportunity in the present case to raise any dispute. The impugned notification was not issued after due compliance with the aforesaid rule of the procedure. Hence the same is struck down as not being done in accordance with law.
Hussain Muhammad Ershad Vs. Abdul Muqtar Chowdhury & Ors. 10BLT(HCD)-148
Article-66(2)
There is no room for doubt in the said provision that on conviction and sentenced for a period of not less than two years for an offence involving moral turpitude, a member shall be disqualified at once. Of Course, if they are acquitted in appeal, it will be effective retrospectively and the disqualification, if any, would at once cease to exist —the onus and the whole procedure leading to an order of conviction of a person is based on criminal jurisprudence, while the question of disqualification of a sitting Member of Parliament, to remain as such member or not. is base on a different jurisprudential plane or basis. Naturally, the approach to these two kinds of rights, such as the right of such as, the right of a convict and the right to remain as a sitting member of Parliament, shall be, of necessity, different from the other. A convict has a right of appeal and also be granted bail in an appropriate case but a sitting Member of Parliament loses his qualification at once because his such qualification under clause (1) of Article 66 of subject to clause (2) and not independent of it.
Hussain Muhammad Ershad Vs. Abdul Muqtar Chowdhury & Anr. 10BLT (HCD)-148
Article-66(2)(d)
Whether we read the words ‘on conviction’ as ‘ on final conviction’
A court of law has got no power to add or omit anything to what is provided in the law itself. The Constitution of the Republic being the Supreme Law of the Country, this Court would never embark on such a venture. Rather the learned Judges of the Supreme Court are oath bound to preserve, protect and defend the Constitution and the laws of Bangladesh. This Court can always explain and expound the constitutional provisions and other laws of the country but in doing so certainly would never make detour from such laws or even from the spirit of such laws.
Hussain Muhammad Ershad Vs. Abdul Muqtar Chowdhury & Anr. 10BLT (HCD)-148
ArticIe-70
Political Party —Constitutional entity
The object of Article-70 of the Constitution is to ensure stability and continuity of Government and also to ensure discipline among the members of the political parties so that corruption and instability can be removed from national politics. The spirit
was that members elected to the Parliament should continue to maintain theirallegiance to the party by which they have been nominated and to uphold the manifesto and programme of that party in national politics. It was forms theGovernment can continue to govern the country ad not be destabilized and dethroned by floor crossing and horse-trading being allured by the other side and vice versa.
Secretary Parliament Secretarial Vs. Khondaker Delwar Hossain & Ors. 8BLT (AD)-215
Article-70
As the Constitution is very emphatic that any dispute as to whether a member of Parliament should vacate his seat pursuant to Article-70 shall be decided by the Election Commission it was neither appropriate for the Speaker to preempt the decision
by putting his own interpretation on the word “resignation” nor will it be appropriate for us to give our mind away as to what we think about the language of Article-70.
Secretary Parliament Secretarial Vs. Khondaker Delwar Hossain & Ors. 8BLT (AD)-215
Article-78(1)
The Parliament cannot claim any immunity if it transgress or oversteps is limits under the Constitution which it did in passing a non-money Bill as a Money Bill and hence Article 78(1) cannot preclude or debar the courts from exercising their power of judicial review of the unconstitutional acts.
Afzalul Abedin & Ors. Vs Govt. of Bangladesh & Ors. 10 BLT (HCD)-490
Article-81(1)
Certificate— A Money Bill is not immune from challenge if it renders itself unconstitutional either by violating fundamental rights or by transgressing any provision of the Constitution or by being absurd. And therefore, the certificate of the speaker
will not be conclusive for all purposes.
Afzalul Abedin & Ors. Vs Govt. of Bangladesh & Ors. 10 BLT (HCD)-490
Articie-81(1) read with 80(3)
Per Mr. Justice M.A. Aziz: P.S.A —Money Bill—the President did never recommend the Bill as a Money Bill as it was not sent for his recommendation as a Money Bill and the endorsement of the Speaker of the Bill as a Money Bill under Article 81(3) being without authority and power is a nullity and the certificate not being a magic wand has no mesmerism to transform a non money Bill into a Money Bill in derogation of Article 81(1) of the constitution. The speaker derives his power of certification under Article 81(3) which is hedged with a condition that “Every Money is presented to the President for his assent, shall bear a certificate under his band “that” (the underlining is mine) it is a Money Bill” and such certificate shall a be conclusive for all purposes and shall not be questioned in any court. The expression “that” it is a Money Bill is not an “idle expression or mere formality” It means that the speaker must satisfy himself that what he is presenting for the assent of the President is in fact a Money Bill. And this satisfaction must be derived from the enumeration given under Article 81(l)(a) to (f) read with Article 81(2) and 88 of the Constitution. Furthermore, Article 7(1) which is the “touch stone” of the constitution ordains in no uncertain term that “All Powers in the Republic belong to the people and their exercise on behalf of the People shall be effected only under, and by authority of this Constitution while under Article 7(2) it is sanctified to be the “Solemn expression” of the will of the People and the “Supreme law of the Republic”. Now the question is, have the people invested the speaker with the power or in other words is the speaker empowered to certify a Bill as a Money Bill which in fact is not a Money Bill? The answer must be “no” The Power conferred upon the Speaker under Article 81(3) must be exercised on behalf of the people and must be effected only under, and by authority, of the Constitution. This sacred document (the Constitution) has not authorized or invested any one specially the constitutional functionaries of the state who are under oath to preserve, protect and defend the Constitution to issue a false certificate transgressing the presidential Prerogative under Article 80(3) of the Constitution. This constitutional Power cannot be negated and denied by any one at his sweet will or whim. There must be a clear and unambiguous conferment of such power by the Constitution itself. In the facts and circumstances of this case Particularly the way the extract Bill was sent to the President for his recommendation to be introduced in the House, the way the Home Minister deliberately misled the House saying that the President recommended the Bill as a Money Bill (Which it was not) and the way the Speaker sent the Bill for the assent of the President after it was passed by the Parliament as a Money Bill certifying that the Bill (P.S.A.) was a Money Bill knowing fully well that it was not so under Article 81(1) of the Constitution, I am left with but only one conclusion that it was a ploy to preempt the prerogative of the President (under Article 80(3) to prevent him from refusing or withholding his assent to the Bill and returning it back to the Parliament because it did not answer the description (a) to (f) of Sub-Article (1) of Article 81 of the Constitution. It was clearly an act of fraud by the Speaker committed upon the president, upon the Constitution and above all upon the people.
Per Mr. Justice Shamsul Huda : In no way any fraud has been committed either on the President or on the Constitution in relation to a money bill while presenting it to the President for latter’s assent, the propriety of legality or any other matters relating to such certification cannot be called in question in any court. And the court cannot go behind the certificate even if the court finds error of law in certifying.
Afzalul Abedin & Ors. Vs. Ciovl. of Bangladeshi Ors.10BLT (HCD)-490
Article-83 read with Finance Act, 1997
Section-7
Section-7 of the Finance Act, 1997, by which surcharge have been imposed is an Act of the Parliament and it has been determined therein as to when, how and what amount of surcharge will be realized from the goods imported in Bangladesh. There is no doubt that the Finance Act. 1997 is an Act of the Parliament and the same has the full force of law in levying or collecting taxes or other charges/duties as contemplated in Article 83 of the constitution.
M/S F. Rahman Oil Mills Ltd. & Ors Vs. Com. Customs & Ors. 9BLT(HCD)-435