Distinction between Repeal and Enactment of a declaratory Statute

Distinction between
Repeal and Enactment of a declaratory Statute

In the
present case the Repeal Act, 1996 repealed the Indemnity Ordinance, 1975 prospectively
(“এতদ্বারা রহিত করা হইল). It means it was an existing law till the
13th November, 1996. When a statute is repealed by the Parliament its
disappearance from the statute-book takes place from the date of repeal, either
prospectively or retrospectively according as the legislature prescribes. But
if as statute is declared void ab initio by the Court its disappearance from
the statute- book takes place retrospectively from the date of enactment of the
repealed statute, never prospectively. If a statute is declared void ab initio
by a Court no rights accrue at all. No obligation or liability generates from
the void law. But a repealed statute retains accrued rights and obligations,
unless avoided specifically or by necessary implication. In the present case no
Court of law has earlier pronounced that the Indemnity Ordinance, 1975 is void
ab initio. The Parliament was therefore free to pass a declaratory statute
declaring that the said Ordinance was void from the very beginning; but it did
not do so, It preferred to treat the said Ordinance as an existing law and
repealed it. The High Court Division made a basic mistake in holding that the
Parliament has legally repealed a void law, little giving thought that a void
law has to be declared void by a declaratory statute and a repeal can only be
made of an existing law in case of repeal the Repeal Act is itself liable to be
repealed by the same Parliament or subsequent Parliament, reviving the
Indemnity Ordinance, 1975; but when a Court declares the Indemnity Ordinance, 1975
void ab initio the Parliament cannot reenact the same legislation afresh. It
will be struck down as unconstitutional. It is buried forever. This distinction
was lost sight of by the High Court Division.

Shahriar Rashid Khan Vs. Bangladesh. &.
Ors. 7BLT (AD)-186.