Articles—66 and 67
As respondent No. 1 has been convicted for more than two years and the nature of offence amounts to moral turpitude. it attracts the provision of sub-clause (d) of clause (2) Article 66 as well as sub-clause (d) of clause (1) of Article 67 of the Constitution. Respondent No. 1, H M Ershad has rightly been disqualified to be a Member of the Parliament under the provision of Article 66 of the Constitution and his seat as a member of the Parliament has been vacated under the provision of Article 67 of the Constitution for committing moral turpitude.
Md Zahedul Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.
Ref: A1R1966 Punjab 393; Khandaker Delwar Hossain and another Vs. Speaker of Bangladesh Jatiya Sangsad (Parliament) and another, 51 DLR(HC)l; Dr. Kamal Hossain Vs. Serajul Islam, 21 DLR(SC)23; Farid Mia Vs. Amjad All, 42 DLR(AD)13—Cited.
Article—66(2)(c)
Clause (c) requires to give an ordinary meaning and to do otherwise would amount to violating the language and expression used therein. Article 66(2)(c) should therefore be construed to mean that a citizen of Bangladesh is permitted to acquire a citizenship of a foreign State as provided under Article 2B(2) of the P0 149 of 1972. But if a person is found to be a citizen of Bangladesh as well as a citizen of any foreign State either on the date when he files nomination paper for the Parliamentary election or if such person acquires citizenship of a foreign state after he was elected as a member of Parliament, he becomes disqualified to contest the election or to continue as a member of the Parliament. Because a citizen of. Bangladesh with total and indefeasible loyalty and patriotism is only considered fit and qualified for becoming a member of Parliament. By the said disqualification clause in our Constitution, a person being a citizen of Bangladesh as well as a citizen of a foreign State is considered to have lost his absolute patriotism and loyalty to Bangladesh and thus becomes unfit to be a member of Parliament. Reasons being that once such person is elected, he is normally given the charge of the helm of affairs of the country either in the capacity as a Member of the Parliament or as a Member of a Parliamentary Committee or as a Minister or the Prime Minister of Bangladesh.
Md Abdul Halim Vs The Speaker of Bangladesh Parliament and others, 21 BLD (HCD) 391.
Articles—66(2) and 67(1)(d)
Disqualification’s for election to Parliament or for being a sitting Member thereof
A person convicted of an offence involving moral turpitude and sentenced to suffer imprisonment for a term of not less than two years cannot be elected as a Member of the Parliament—A Member of the Parliament vacates by his seat as Member on such conviction and sentence.
Article 67(1)(d) provides for automatic vacation of seat as a Member of Parliament if he incurs disqualification as per provision of Article 66(2)(d) of the Constitution. There is no ambiguity in it—No examination by any authority, particularly by the Election Commission is necessary or required.
Conviction and sentence under section 5(i)(d) of the Prevention of Corruption Act 1947 (Act II of 1947) for embezzlement of State money by a person who was the President of the country and using the same for his personal benefit or living or having properties disproportionate to his known source of income definitely comes within the ambit of moral turpitude—after such conviction is upheld by the Appellate Division, there is nothing left to be decided by the Election Commission—the vacation of the seat is automatic.
Hussain Mohammad Ershad v. Zahedul Islam Khan and others, 21 BLD (AD) 142.
Articles—66(2A) and 99(1)
From a careful reading of the provisions of Article 99(1) and the provisions of Article 66 (2A) of the Constitution it becomes abundantly clear that the latter does not include the office of the President, Prime Minister, Minister, Minister of State or Deputy Minister in the category of office of profit in the service of the Republic.
Abu Bakar Siddique Vs Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
Ref: 42 DLR(AD) 13, 41 DLR 56; 26; DLR (SC)44 AIR 1977 (SC) 237 AIR 1982 (SC) 149 (Popularly known as judges case); 43 DLR (AD) 126; 16 BLD (HCD) 126; AIR 1958 (SC) 52; AIR 1958 (SC) 937; AIR 1964(SC)254; AIR 1986 (SC) 1534; AIR 1985 (SC) 211; 31 DLR 332; AIR 1968 (SC) 904, I BLC,(1996) 437;—Cited.
Articles—66(4) and 70
Article 70 as referred to in Article 66(4) does not stipulate nor require that the resignation from a party should be in writing. Resignation by conduct or otherwise against the party disciplines and dictates is also envisaged under these Articles.
[In fact, by taking seat with the treasury bench, against the dictates of their party, from which they were elected to Parliament, the two members went beyond the control of the Chief Whip of the opposition, who was to maintain party discipline and this amounted to formal renunciation of ties with the party and cessation of membership from the B.N.P. The speaker very well knew that he would have to allot the two members seats with the treasury bench, once they joined the Awami League Cabinet. Rule 7 of Rules of Procedure of Parliament clearly lays down: “the member shall seat in such order as the Speaker may determine, Under the circumstances, it would not have been wrong for the Speaker to expect, that unless the B.N.P. took a different stand, a dispute would follow.]
Khondker Delwar Hossain Vs The Speaker, Bangladesh Jatiya Shangshad (Parliament), 19 BLD (HCD) 45.
Article—66(4)
Rules of Procedure of Parliament, Rule—178
Members of Parliament (Determination of Dispute) Act, 1980, Section—3
Reference of disputes under Article 66(4)
Article 66(4) provides that the Speaker is not to decide the question, he can only refer it to the Election Commission and if the latter come to the opinion that members concerned have, by their action, vacated their seat, they then cease to be members. Apparently the authority, contemplated by the Constitution and the law, to take action on a dispute whether a seat of Parliament is vacated or not, is the Election Commission and not the Speaker.
From a reading of rule 178 of the Rules of Procedure and the relevant sections of Act I of 1981 along with Article 66 of the Constitution it becomes obvious that in case of a dispute of the nature contemplated in Article 66(4) it must be referred to the Election Commission by the Speaker. Act I of 1981 provides in detail the procedure to be followed to implement Article 66(4). Section 3 of the Act I. of 1981 further provides a time limit of thirty days within which the Speaker shall refer the dispute along with a statement to the Election Commission for it to be heard and determined. The law is so specific and the procedure laid down is so elaborate that the assumption by the Speaker of the role of deciding whether there is dispute, to the exclusion of the Election Commission, makes the constitutional provisions on anti defection redundant. What is important to remember is that the Speaker has no power to adjudicate upon the matter in disputes. He is only to act as a Post Office.
The Constitution does not require the speaker to come to the conclusion, that a dispute has not arisen, because in order to come to such a conclusion, he shall have to decide the main issue that the two members have not resigned from the party, which the Speaker is not competent to do so as it is the domain of the Election Commission. It is the opinion of the Election Commission which is in substantive decisive. When the Speaker forwards the dispute to the Election Commission it can be assumed that the Election Commission should proceed to investigate the dispute before giving its opinion.
Khondker Delwar Hossain Vs The Speaker, Bangladesh Jatiya Shangshad (Parliament), 19 BLD (HCD) 45.
Ref: AIR 1994 (SC) 1558; AIR 1956 page 1892; PLD1969 (Lahore)602; PLD 1963 (SC) 486; 1884 (12) Q.B.D. 271; “Constitutional Law of Bangladesh”—Mahmudul Islam; Mays Parliamentary Practice (Seventh Edition) 62—Cited.
Article.—67(1)(b)
Absence of a member from Parliament without its leave for ninety consecutive sitting days
The question in this Reference is whether the ‘absence’ of some members of Parliament comes within the mischief of Article 67(1)(b) of the Constitution.
Special Reference No. I of 1995, 15 BLD (AD) 194.
Article—67(1)(b)
In all written constitutions the framers envisage the possibility of absence from the House, whatever be the reasons and put an upper limit to the period of absence with a provision of bye election to keep the democratic process in motion. Our constitution provides the longest possible latitude to the members of Parliament during which they can remain absent without leave. the term ‘absent’, however, cannot receive different interpretations in different circumstances, because that will introduce an element of uncertainty in the interpretation of a constitutional provision and will make the door open to provide for the longest longitude as well. The Court cannot give its stamp of approval to two kinds of parliamentary absence, one sanctioned by the Constitution and the other outside the purview of the Constitution. Article 67(I)(b) of our Constitution allows members of Parliament to remain absent, for any reason whatsoever, for eighty nine consecutive sitting days without the leave of the Parliament, no matter whether this period is consumed by an individual member or by some members en bloc by illness, absence from the country, walkout or boycott. Once this permissible limit is crossed, the guillotine will apply and the member “shall vacate his seat.”
Special Reference No. 1 of 1995, 15 BLD (AD) 194 .
ref: AIR. (31) Federal Court 73; 37 Harvard Law Review PP. 1005-1008; 1903 AC 524; 70 H.L. Deb 5 s Col. 629-30; In Re Machanaway (1951) AC 161; In re Allocation of Lands and Buildings, AIR. 1943(FC) 13, In re Presidential Election 1974, A.I.R. 1974 (S.C) 1682; In re Special Courts Bill, 1978, AIR 1978(S.C) 478, AIR 1974 (S.C) 1682 (Supra); AIR 1974 (S.C) 1982; AIR 1979 (S.C) 478; A.I.R. 1945 (F.C) 25; A.I.R. 1992 (S.C) 522; A.K. Brohi, Fundamental Law of Pakistan, 691 and Umayal Achi, A.I.R. 1945 (F.C) 25 at page 36; In re Special Courts Bill, 1978, A.I.R. 1979 (S.C.) 478; Hamittan Street Rly (1903) A.C. 529; (1898) A.C. 700 (711) Referred to in A.I.R 1979 (S.C) 478; A.I.R. 1965 (S.C) 745 and A.I.R. 1979 (S.C) 478; (Popularly known as Babri Masjid Case) A.I.R. 1995 (S.C) 605; Baker V Can 1962. 369 U.S. Page 186; 18 DLR.. (SC) 62; The Judicial Process, 3rd Ed. By Henr J Abraham P. 364; Nixon … Vs. … Herndon, 273 U.S. 536 (1927) at 540; Seervai’s Constitutional Law of India, 3rd Ed. P. 2212; B. Schwartz’s ‘Constitutional Law, Ch. I (Judicial Review) p. 36. 22 D.L.R. (S.C) (1970) 203(220);. 47 D.L.R. (1995) 42 15 BLD(1995)344; Webster’s Third International Dictionary; B.B.C. English Dictionary; Dictionary of Phrasal. verbs by Collins Cobuild; Collins Co build English Language Dictionary; Samsad English to Bengali Dictionary; Chambers 20th Century Dictionary; The Guide to American, Law, Vol-9, Page-419; Osborn’s Concise Law Dictionary (Seventh Edition); The Shorter Oxford English Dictionary (Third Edition); Mitra’s Legal and Commercial Dictionary (Fifth Edition); Law Dictionary of Biswas; Encyclopedia Britannica, Vol-2, page 445; Encyclopedia Americana, Vol-4, Page 386; Word. Origins and Their Romantic Stories by Wilfred Funk (Edition 1988, 32-33); The Shorter Oxford English Dictionary; Mitra’s Legal and Commercial Dictionary (15th Edi- I tion); Webster’s Third New International Dictionary; 1989 B.L.D. (Spl) 1 (Anwar Hossain. Vs. Bangladesh) Para-355, Par—524 Kauls Practice and Procure of Parliament (P. 32 1); 198BLD(Spl) 1 Para —205; 25 DIR, {AD)335; The Judicial Process, 3rd Edition; Special Reference No. I of 1944, A.I.R. 1944 FC. 73; A.I.R. 1943 (F.C) 13; P.LD. 1973 (S.C) 563; “In modem times” writes Sir Erskine May in Parliamentary Practice (twenty first Edition, 1989); 44 D.L.R. (AD) 3l9; Seervais “Constitutional Law of India!’ 3rd Ed. P. 2212. B. Schwartz’s “Constitutional Law” Ch. 1 (Judicial Review).
Article—68
Members of Parliament (Remuneration and Allowances) Order, 1973
Article—3C
A Member of the Parliament is entitled to privileges as the Parliament may determine and such determination is an act of discretion on the part of the Parliament. The import of a car or jeep free of duty even if offends the sense of decency and dignity of a section of the people outside the Parliament, it cannot be said to be unconstitutional as it is the Parliament itself which will ultimately determine the fact as to whether the import of a duty- free car is commensurate with the quality and quantity of. the work in Members of the Parliament in discharge of their duties.
Dr. Ahmed Husain Vs Bangladesh, 18 BLD (AD) 184
Article—70
When the makers of the Constitution were drafting the 1972 Constitution they wanted 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. Article 70 was introduced to achieve this objective. The spirit was that members elected to the Parliament should continue to maintain their allegiance to the party by which they have been nominated and to uphold the manifesto and programme of that party in national politics. It was designed to ensure that the party which forms the Government can continue to govern the country and not be destabilized and dethroned by floor crossing and horse trading being allured by the other side and vice versa. This provision was deliberately inserted in view of the prevailing political culture of the country. Political party has been recognised as a constitutional entity for the first time in the Constitution of Bangladesh and indirectly in Article 70 the constitution of a political party is also recognised by use of the words “resigns from the party”.
The Secretary, Parliament Secretariat, Dhaka Vs Mr. Khandker Delwar Hossain and others, 19 BLD (AD) 276.
Ref: PLD1969(Lahore) 602; PLD 1963 (SC)486.
Article.—70(1)
The resignation of the two B.N.P. members of Parliament from their party under Article 70(1) of the Constitution and the dispute caused by it, as a whole, does not fall within the meaning of a proceeding in Parliament, the conduct of business and definitely not a matter falling within the meaning of regulation procedure’ or ‘maintenance of order’ in Parliament.
Khondker Delwar Hossain Vs The Speaker, Bangladesh Jatiya Shangshad (Parliament), 19 BLD (HCD) 45.
Article—78
The dispute raised by the two B.N.P. leaders by their letters to the Speaker could not have been settled through Parliamentary proceeding simple because Parliament is not forum envisaged by the Constitution, to address such a dispute. The Constitution clearly defines the forum to be the Election Commission. Consequently Article 78 is not attracted and the Courts jurisdiction is not ousted.
Khondker Delwar Hossain Vs The Speaker, Bangladesh Jatiya S hangs had (Parliament), 19 BLD (HCD) 45.
Article—78(2)
Aggrieved person
Action taken by the Speaker or his failure to take action on the resignation letters of 147 members of the Parliament is not sacrosanct from judicial review and the court’s jurisdiction is not barred under Article 78(2) of the Constitution to examine the legality of any action or inaction of the Speaker, if a really aggrieved person complains against the same. Since the petitioner is not an aggrieved person he has no locus standi in the matter before us. Moreover, the action is premature as the Speaker has not yet taken any action in the matter.
Article—78(3)
The immunity under Article 78(3) of the Constitution is wide, absolute and unqualified and such immunity enjoyed by a Member of Parliament cannot be curtailed in any manner and no court including the Supreme Court can take any legal proceeding against a Member of Parliament for anything he says in the Parliament during the course of business of the Parliament.
Md. Ataur Rahman Khan Vs Mohammad Nasim, Member of Parliament and Minister of Home Affairs, Government of People’s Republic of Bangladesh and another, 20 BLD (HCD) 1.
Ref: Cyril Sikder Vs. Nazmul Huda, 46 DLR 555; AIR 1965(SC)745; Tel Kiran and ors. Vs. M. Sanjive Reddy and ors. AIR 1970 (SC) 1573; “What Next in the Law”—Lord Denning; Special Reference No.1 of 1995, 47 DLR(AD)l 11: 15 BLD(AD)194—Cited.
Article—89, 90, 91 and 92
The cumulative effect of a close reading of Articles 89, 90,9 1 and 92 of the Constitution indicates that there must be a demand for grant for other expenditure charged upon the Consolidated Fund. Article 90 (1) of Constitution provides for enactment of appropriation act for appropriation out of the Consolidated Fund while Article 90 (3) provides that subject to the provisions of the Constitution no money shall be withdrawn from the said fund except under appropriation made by law passed in accordance with the provisions of this Article. Therefore, Article 90 (3) has to be read with Article 88 to ascertain whether for payment out of the Consolidated Fund an appropriation act is necessary.
The order of the Civil Court directing the Governor of Bangladesh Bank to make payment out of the Consolidated Fund of the Re. public does not render the provisions of Articles 85.88 (f), 90, 91 and 92 Nugatory. It cannot be said that by such order these constitutional provisions have been made subordinate legislation.
Bangladesh Bank Vs. Mrs. Rana Awan and others, 15 BLD (HCD) 27.
Ref: Muktilal Agarwala Vs. Trustees of the Provident Fund of the Tin Plate Co. of India Ltd. and others, A. I. R. 1956 (SC) 336; Smt. Radharani Das Binodamoyee Dassi and others, A. I. R. 1942 (Cal) 92; E. M. Visvanathan Chetty and others Vs. Axunachelan Chetty. I. L. R. 44 (Mad) 100; Khazan Chand Vs. Moti Singh and another, A. I. R. 1935 (Lahore) 914; Kanhaiyalal Vs. Dr. D. R. Ba. naji, A. 1. R. 1958 (SC) 725; Suxjamull Agarwala Vs. Ram Chandra Mistry and others, A. 1. R. 1916 (Cal) 570- Cited.
Article—93(l) and paragraph 3A and l8of the 4th Schedule
The Indemnity Ordinance of 1975 was continuing as an existing law along with other laws, after withdrawal of Martial Law, being protected and saved within the terms other laws as contained in paragraphs 3A and 18 of the 4th Schedule of the Constitution, and it is subject to judicial review of this Court whenever it is challenged.
By paragraphs 3A and 18 of the 4th Schedule of the Constitution it was protected and continued as existing law in the category of ‘other laws which were promulgated between the period from 15th August, 1975 to 9th April, 1979. Since it was an ordinary piece of legislation being saved, protected and continued under paragraphs 3A and 18 of the 4th Schedule of the Constitution, it can be amended or repealed by a simple majority of the members of the Parliament. Nowhere in the 4th Schedule or in any other provision of the Constitution it was stipulated that the laws which were continued and saved under paragraphs 3A and 18 of the 4th Schedule of the Constitution would require two third majority for necessary amendment or alteration or repeal.
Shahriar Rashid Khan Vs Bangladesh, represented by the Secretary, Ministry of Law and Parliamentary Affairs and others, 17 BLD (HCD) 113.
Articles—94, 95, 96, 109 and 147
A reference to Articles 94, 95, 96 and 147 of the Constitution clearly reveal the independent character of the Supreme Court. Chapter—IT of Part—VI of the Constitution allots a separate and distinct existence of judicial service and magistrates exercising judicial function. Under Article 109 the High Court Division of the Supreme Court has been vested with the powers of superintendence and control Over all courts and tribunals subordinate to it. [Per Latifur Rahman, J agreeing with Mustafa Kamal, C.J]
Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. Masdar Hossain & others, 20 BLD (AD) 104.
DIRECTIONS
1) It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.
2) It is declared that the word “appointments” in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rulemaking authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the Constitution and the Services (Reorganisation and Conditions) Act. 1975 have no application to the above matters in respect of the judicial functions.
3) )It is declared that the creation of B. C. S. (Judicial) cadre along with other B.C. S. executive and administrative cadres by Bangladesh Civil Service (Reorganisation) Order, 1980 with amendment of 1986 is ultra vires the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service.
4) The appellant and the other respondents to the writ petition are directed that necessary steps be taken forth with for the President to make Rules under Article 115 to implement its provisions which is a constitutional mandate and not a mere enabling power. It is directed that the nomenclature of the judicial service shall follow the language of the Constitution and shall be designated as the Judicial Service of Bangladesh of Bangladesh Judicial Service. They are further directed that either by legislationor by framing Rules under Article 115 or by executive Order having the force of Rules a Judicial Services Commission be established forthwith with majority of members from the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service on merit with the objective of achieving equality between men and women in the recruitment.
5) It is directed that under Article 133 law or rules or executive orders having the force of Rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), pay, allowances, pension (as a matter of rights, not favour) and other terms and conditions of service, consistent with Article 116 and 1 16A, as interpreted by us, be enacted or framed or made separately for the judicial service and magistrates exercising judicial functions keeping in view the constitutional status of the said service.
6) The impugned orders in the writ petition dated 28.2.94 and 2.11.95 are declared to be ultra vires the constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to the framed under Article 115 to review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the process of review a continued one. The pay etc. of the judicial service shall follow the recommendations of the Commission.
7) It is declared that in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive.
8) The essential conditions of judicial independence in Article I 16A, elaborated in the judgment, namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institutional independence from the Parliament and the Executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules.
9) It is declared that the executive Government shall not require the Supreme Coup of Bangladesh to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Coup in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issu4 by the Government to all concerned including the appellant and other respondents to the writ petition by 31.5.2000.
10)It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration of the High Court Division to the opposite effect is set aside.
11)The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutional amendment is necessary is set aside. If the Parliament so wishes it can amend the Constitution to make the separation more meaningful pronounced, effective and complete.
12) It is declared that until the Judicial Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo ante as on 8. 1.94 vide paragraph 3 of the Order of the same date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If, pay increases are effected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation the members of the judicial service will get increases in pay etc. commensurate with their special status in the Constitution and in conformity with the pay etc. that they are presently receiving. [Per Mustafa Kamal C.J]
Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. Masdar Hossain & others, 20 BLD (AD) 104.
Ref: All India Judges Association and ors. Vs. Union of India and ors. (1993) 4SCC288; Chief Justice Andhra Pradesh Vs. L.A.A. Dikshitulu, A1R1979(SC)193=1979(2) SCC 34; B.S. Yadav Vs. State of Haryana, AIR 1981(SC)561; Walter Valente Vs. Her Majesty the Queen, (1985) 2R.C.S. 673; Kudrat-E-Elahi Panir Vs. Bangladesh, 44DLR (AD) 319; Government of Sindh Vs. Sharaf Faridi, PLD1994(SC)105;—discussed.
Article—94(4) and 116A
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 provisions of the Constitution. This independence as emphasised by the learned Attorney General, is subject to the provisions of the Constitution.
Article 115, Article 133 or Article 136 does not give either the Parliament or the president the authority to curtail or diminish the independence of the subordinate judiciary by recourse to subordinate legislation or rules. What cannot be done directly, cannot be done indirectly. [Per Mustafa Kamal C.J]
Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. Mosdar Hossain & others, 20 BLD (AD) 104.
Article—95
The oath of office of the Judges of the Supreme Court requires that they will preserve, protect and defend the Constitution and the laws of Bangladesh. These are not mere ornamental empty words. These glorifying words of oath eulogize the supremacy of the judiciary.
Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers Association (BElA) being dead Ms. Syeda Rizwana Hasan, Director (Program), representing Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, 22 BLD (HCD) 534.
Article—99
When Article 99 of the Constitution provides for appointment of a retired Judge in a judicial or quasi-judicial office, some statutory provision should be made for giving him minimum security of service, whatever its period may be. The Public Servants Retirement Act under which the petitioner’s contract of service was made, does not apply to a retired Judge of the Supreme Court.
Justice Abdul Ban Sarker Vs. Bangladesh and others, 14 BLD (AD) 55.
Article—99(1)
Office of President—An office of Profit?
The office of the President of Bangladesh is an office of profit but it is not an office of profit in the service of the Republic as contemplated under the provisions of the Constitution.. Respondent Nr. 1, the former .Chief Justice of Bangladesh, is not therefore, debarred from being elected and holding the office of the President of Bangladesh under Article 99(1) of the Constitution. The election of Respondent No. 1 to the office of the President of Bangladesh and his competence to hold that office cannot be called in question as it was done in confirmity with the provisions of the Constitution and other laws relating to the election of the President.
Abu Bakar Siddique Vs Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
Article—102
In the absence of any provision for appeal against an order of the District Co-Operative Officer under Section 18(3)(4) of the Co- Operative Societies Ordinance, 1984, the High Court Division failed to exercise its jurisdiction under Article 102 of the Constitution in not disposing of the Appellants Writ Petition on merit and requiring him to prefer a further appeal to the District Judge when the first peal was incompetent in the eye of law.
Nani Gopal Barman. Vs. Bangladesh and Others, 14 BLD (AD) 52.
Article—102
The questions as to whether the suit was barred by limitation and the impugned decree by the Artha Rin Adalat was in excess of the Petitioners liability cannot be decided in a Writ Petition. This may be the defence in the suit and can, therefore, be properly agitated in the appeal, if not already barred.
Md. Zahirul Islam Vs. National Bank Limited and others, 14 BLD (AD) 60.
Article—102
Non-consideration of material facts by the Labour Court, even in an exparte judgment, exposes it to challenge in a Writ Petition.
In view of the employees own papers and, particularly, after noting the provision of law in Section 17(1)(a) of the Employment of Labour (Standing Orders) Act, 1965, the High Court Division ought to have struck down the judgment of the Labour Court for non-consideration of the evidence on record.
Chittagong Chemical Complex Vs. The Chairman, Labour Court and another, 14 BLD (AD) 67.
Article—102
Under Article 102 of the Constitution a writ of mandamus is to issue where a petitioner has an undisputed constitutional or le. gal right to a property and he is deprived of the benefit of enjoyment of the property.
A letter from a Secretary of a particular Ministry of the Government addressed to other authority to return unutilised excess land to the original owners does not create any le. gal right in favour of the original owners and failure to comply with such request is no violation of fundamental right or any legal right Under such circumstances, the petitioner is not entitled to invoke the writ jurisdiction for issuance of a writ of mandamus.
Hazi Aftabuddin and others Vs Bangladesh and others, 17 BLD (HCD) 1.
Article—102
Mere execution of the lease deed and de. livery of possession of the fishery to the petitioner prior to the approval of the bid did not create any right of any kind to the petitioner in the fishery in question.
Hazi Md. Bashiruddin Vs Bangladesh and others, 20 BLD (HCD) 126.
Ref: 4 BLD (AD) 36—Cited.
Article—102
Locus Standi—Error of Law
The petitioner’s interest in the subject matter seems to be bonafide to espouse a public cause, involving public wrong in as much as there has been a gross violation of the laws relating to the Societies Registration Act, 1860, the Foreign Donations (Voluntary Activities) Regulation Ordinance,1978, affecting the fundamental rights of an indeterminate number of people, including intending promoters of banking who steadfastly adhere to the laws of Bangladesh. All these demand the Court to be responsive and to react to the alleged error of law and the consequent public injury, caused by the issuance of the impugned letter of no objection’ and the registration of BRAC Bank by the Bangladesh Bank and the Registrar, Joint Stock Companies respectively.
Professor Muzaffer Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235
Ref: 9 DLR(SC)178; ITA Nos. 551 and 552 (unreported); Asalata Roy V Society vor the protection of children of India 51 C.C.J. 272; Anjuman Islamia of Muttara V Naziruddin, 28 All 384; National Deposit Friendly Society Trustees V Skegnes All ER. 195 8(2) page 601; Trustees of the Harbour of Dandee Vs D and J Nicol and others 1915 AC 550; Attorney General Vs. Mercy Railways, 1 Chancery 1907 page 606; Land Allotment Company Case (1894) 1 Ch 81 H.L 617; Guiness V Land Corporation of Inland Corporation of Ireland 22 Ch D. 349; Salomon’s Case 1897 Appeal Case 22, DHN Food Distributors Ltd. V Tower Hamlets L.B.C (1976) LW.L.R. 852 C.A; I.T. Commr. Madras V Meenakshi Mills Madras, AIR 1967 (SC)819; Delhi Development Authority V Skipper Construction Co. AIR 1996 (SC) 2005; Civil Revision 105 (c) & 106(c) 1981 (unreported); United States V Milwaukee Refrigeration l42Fed. 247 (1905); Dr. Mohiuddin Farrooque Vs. Bangladesh, 49 DLR(AD)1; AIR l989(SC)2 105—Cited.
Article—102
Pourashava Ordinance, 1977, Section—21
Distribution of population in 9 wards with a variation of not more than ten percent being a disputed question of fact and it cannot be decided in writ jurisdiction.
Abdul Mannan Vs. Bangladesh, represented by the Secretary, Ministry of Local Government Rural Development and Cooperative and others,. 20 BLD (HCD) 188.
Article—102
Addition of party in a writ petition
The scope and purpose of a writ petition are manifestly different from a civil suit. The principles relating to addition of parties in a civil suit are not protanto applicable to a writ petition.
Mr. Moudud Ahmed Vs. Mr. Anwar Hossain Khan, Advocate and others, 15 BLD (AD) 12.
Article—102
Pourashava Ordinance, 1977, Section—21
The dispute regarding variation of population cannot be resolved in a writ petition under Article 102 of the Constitution since it requires adjudication on facts and on evidence and that the petitioner is not a person aggrieved within the meaning of Article 102 of the Constitution.
Md. Khalilur Rahman Vs Government of Bangladesh and others, 20 BLD (AD) 152.
Article—102
Principle of Natural Justice
Educational institutions in loco parents of the Students
It is now well-settled that an educational institution stands in the capacity of loco parents with that of the students of the institution and their relationship is that of the guardian and wards. An educational institution is not required to follow the procedure of a tribunal in taking disciplinary measures against its students, such as examining witnesses in presence of the delinquent student and giving him opportunities to cross-examine them.
Since the petitioner was given opportunity to show cause and he submitted a written reply and he was personally heard and there being no allegation of malafide against the invigilator and the Chief Invigilator concerned, it cannot be held that the principle of natural justice was violated for examining then in the absence of the delinquent student.
Md. Masum lqbal Vs The Director of Students Welfare and Member Secretary of the Board of Residence and Discipline, Bangladesh Engineering University, Dhaka and others, 17 BLD (HCD) 7.
Ref: 1992 BLD(AD) 160-Cited.
Article—102
In a case where basic facts are disputed and complicated questions of law and fact depending on evidence are involved, the writ jurisdiction is not the proper forum for seeking relief. An affidavit is not sufficient to decide the propriety of the foundation of the petitioners’ title even prima fade and so on the strength of the possessory title claimed on that basis, which is itself a disputed matter, the petitioners cannot get the relief they have prayed for.
Mrs. Saju Hossain Vs Govt of Bangladesh & anr, 21 BLD (HCD) 199.
Ref: 20DLR976 and 979; 28 DLR437; 30 DLR(SC)139 and 155; 46DLR136 and 138— Cited.
Article—102
Industrial Relations Ordinance, 1969
Sections—2(IX), (XIV), (XVII), (XVIII), (XX) and (XX VIII)
The aims and object of Bangladesh Family Planning Association is to render service to the people as regard matters relating to control of population and allied matters. The aims and objects of the ‘samity’ are no doubt service but mere rendering to service does not make an ‘organisation’ or ‘establishment’ and industry as defined in the Ordinance.
In the isntant case the petitioner is not an establishment of the kind where persons employed in it can be said worker as defined in the Ordinance and consequently ‘union’, if any, by the persons so employed by the ‘samity’ has been firmed the same is not a union’ of the workers as required by the Ordinance.
Bangladesh Paribar Parikalpana Samity Vs Bangladesh Paribar Parikalpana Samity Karmachari Union & others, 20 BLD (HCD) 261.
Ref: Kumudini Hospital Vs. Kumudini Hospital Karmachari Union. 45DLR655; Bangalore Water Supply and Swerage Board Vs. A. Rajappa and others, (1978) S.C.C. 213—Cited.
Article—102
The High Court Division in exercising jurisdiction under Article 102 of the Constitution cannot direct the respondents to rectify or alter the particular clause of the contract in order to make it equal to the contracts entered into with the other purchasers in respect other tennaries.
Abu Mohammad Vs Government of Bangladesh & anr, 20 BLD (HCD) 278.
Ref: Managing Director, Dhaka Wasa Vs. Superior Builders and Engineers Ltd. 51DLR (AD) 56; Associated Provincial Picture Houses Ltd. V Wednesbury Corporation, All England Law Reports Vol. 2 page 680 AIR 1973SC205 and Ramana Dayaram Shelly Vs. The international Airport Authority of India and others AIR 1979(SC)1928—cited.
Article—102
The right to office one holds and the right to pay/salary one draws are vested during the continuance of the employment. If any action affecting altering or infringing upon any such right taken not in accordance with law must be struck down otherwise the protection against arbitrary action available under the Constitution becomes meaningless.
Md Amirul Islam and others Vs Thana Nirbahi Officer, Lalpur, Natore and others, 20 BLD (HCD) 369.
Article—102
Locus Standi
Any wrong doing or invasion of public rights against the aims and objects of societies does clothe the petitioners with the necessary locus standi to move the courts of law.
Professor Nurul Islam Vs Government .of Bangladesh and others, 20 BLD (HCD) 377.
Article—102
Habeas Corpus
Guardian and Wards Act, 1890, Section—25
Custody of minor Children
In deciding the question of custody of the minor children whether in a proceeding in the nature of habeas corpus under article 102 of the Constitution or in a proceeding for guardianship under the Guardians and Wards Act, 1890 the paramount consideration before the Court is the welfare of the minor and not the legal rights of the parties under the rules of personal law or statutory provisions.
The term “Welfare” is to be read in the largest possible sense and the Court must take into consideration the true interests of the Children as a benign mother would be inclined to do. Of course, the moral and religious welfare of the children should also be considered along with the physical wellbeing.
Abdul jalil and others Vs. Mrs. Sharon Laily Begum Jalil, 18 BLD (AD) 21.
Ref: 38 DLR(AD)106; (1893)2QBD 232: 55Cal730; 48Mad299; Muslim Law (S.35 1 Mulla’s Book); Mahommedan Law by Syed Ameer Ali Vol. 11(1976)288; AIR 1982(S.C.) 792; 46DLR399; AIR 1960(SC)93 and Imtiaz Banu A1R1979(All)25—Cited.
Article—102
Scope of Article 102 of the Constitution in deciding the legality of the order of Court of Settlement
The High Court Division exercising power under Article 102 of the Constitution does not work as a Court of appeal and as such it is not required to make determination of facts of its own. ft can interfere with the findings of a Tribunal of facts under its extraordinary jurisdiction under Article 102 only if it can be shown that the Tribunal has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts causing prejudice to the complaining party or it has acted malafide or in violation of the principle of natural justice. In the absence of any such conditions the interference by the High Court Division itself becomes an act without jurisdiction and in the present case this precisely has happened.
Govt. of Bangladesh Vs. Md. Jalil and others, 15 BLD (AD) 175.
Article—102
The High Court Appellate Side Rules, Chapter -XI, Rule 39
All writ petitions filed under Article 102 of the Constitution are disposed of in accordance with the then Rules of the High Court of Judicature for East Pakistan at Dhaka governing the procedure in applications for directions, orders and writs under Article 170 of the Constitution of the then Islamic Republic of Pakistan, which are still being continued in Bangladesh.
Rule 39 makes it obligatory on the respondents to show cause and if no cause, shown, the Rule is that the Court shall pass an order that the person or persons improperly detained shall be set at liberty. To justify the detention of a detenu the detaining authority is under an obligation to file an affidavit-in opposition to discharge its burden of proof that the detenu is not being held in custody without lawful authority or in an unlawful manner.
The burden of proof that the order of detention is lawful lies on the respondents and if they failed to rebut on affidavit the material assertions of the appellant, it is to be held that the respondents have failed to discharge the burden of proof.
Nasima Begum Vs. The Government of Bangladesh and others, 15 BLD (AD) 248.
Ref: Habiba Mahmud Vs. Bangladesh and others, 45 DLR(AD) 89; Shameern Vs. Government of Bangladesh, 47 DLR(AD)109-Cited.
Article—102
Defence Saving Certificates and the responsibility of the Commercial Bank selling the certificate
When a Commercial Bank sells defence savings certificates to the customers, the bank acts as an agent of the Government and as such it is under a legal obligation to make payment to the customers in accordance with the terms and conditions mentioned in the certificates on presentation of the same to the bank for encashment on maturity. The bank cannot refuse to encash the certificates on the ground that the purchaser as one of the Directors of a Company has a loan liability to it in connection with other transactions.
The sale of defence saving certificates is an independent transaction of the bank as an agent of the Government and as such this cannot be connected with any liability arising out of other transactions.
Mr. Abdus Salam Vs. Manager, Agrani Bank and others, 15 BLD (HCD) 48.
Article—102
Alternative Remedy—Whether bars exercise of writ jurisdiction.
Inspite of an alternative statutory remedy by way of an appeal, an aggrieved person may invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution where the vires of a statute or statutory provisions is challenged and where the alternative remedy is not efficacious and adequate.
Ahmed Hussain and 39 others Vs. The Collector of Customs, Customs House, Chittagong and others, 15 BLD (HCD) 257.
Article—102
Any person
The word any person’ appearing in Article 102 of the Constitution also includes a member of the Parliament as the legislature is one of the components and the main o