Moudud Ahmed and others Vs. Md Anwar Hossain Khan (dead) and others

Moudud Ahmed and others (Appellants)

Vs

Md Anwar Hossain Khan (dead) and others (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICE

Md. Ruhul Amin CJ

Md. Fazlul Karim J

MM Ruhul Amin J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Hassan Ameen J

Md. Abdul Matin J

Judgment dated : December 11, 2007.

The Constitution of the People’s Republic of Bangladesh, 1972, Article 78

Participation or non-participation by a member of Parliament in any Parliamentary proceedings and making deliberation in Parliament is his personal matter. Therefore the High Court cannot compel the respondents to attend sessions of Parliament and perform their constitutional duties………………………..(68 and 69)

Lawyers Involved:

Md. Aftab Hossain, Advocate-on-Record—For the Appellants. (In Civil Appeal Nos. 3& 5 of 1995).

Md. Nawab Ali, Advocate-on-Record—For the Appellant (In Civil Appeal No. 13 of 1995)

Fida M Kama, Attorney-General, instructed by Mvi Md. Wahidullah, Advocate-on-Record—For Respondent No. 1. (In all the cases)

Fida M Kamal, Attorney-General, instructed by B Hossain, Advocate-on-Record—For Respondent No. 6. (In Civil Appeal Nos. 5, 13 of 1995).

Not represented—Respondent Nos. 2-5. (In Civil Appeal Nos. 5, 13 of 1995).

Civil Appeal Nos. 3, 5 & 13 of 1995.

(From the Judgment and Order dated December 11, 1994 passed by the High Court Division in Writ Petition No.1001 of 1994).

JUDGEMENT

                    Md. Ruhul Amin CJ.- These certified appeals arise from the judgment and order dated December 11, 1994 of a Division Bench of the High Court Division in Writ Petition No. 1001 of 1994.

2. The appellants i.e. Writ-Respondent Nos. 3-5, have also filed separate appeals.

3. The High Court Division made the Rule absolute in the following terms “The respondent Nos. 3-5 are required to attend the Parliament. They are directed to attend the Parliament and if the Par­liament is not in Session, as and when the Sessions is summoned by the President and within 3 days from commencement of such Sessions subject to the conditions and incidents as contained in Article 67 of the Constitution.

4. The respondent Nos. 3-5 have received the salary, emoluments, allowances and all other bene­fits for the period of their unauthorised absence. We declare that the salary, emoluments, allowances and other benefits so received by the respondents are illegal and unauthorised. The aforesaid illegal and unauthorised receipts of salaries, emoluments and allowances by the absentee Members of the Parlia­ment without leave of the Parliament are recoverable by appropriate authority upon due process of law”.

5. The writ petition was filed at the first instance seeking relief in the following terms—

“(A) To issue a Rule calling upon the respondent Nos. 3-5 to show cause as to under what authority of law they are abstaining from attending the Parliament and why they should not be directed to attend the Sessions of the Parliament of the People’s Republic of Bangla­desh, and perform their constitutional duties and obligations as and when it is held and/or to pass such other or further order or orders as to your Lordships may deem fit and proper.

and

Pending hearing of the Rule the respondent Nos.1-2 be restrained from making payment of the salaries, allowances, dues and other facili­ties and privileges to the respondent Nos. 3-5 as Members of the Parliament and leaders of the opposition parties in the Parliament alternative­ly to restrain the respondent Nos. 3-5 from receiving the aforesaid salary and benefits;”

The High Court Division issued the Rule as follows:

“Let a Rule Nisi be issued calling upon the respondent Nos. 3-5 to show cause under what authority of law they are abstaining from attending the Parliament and why they shall not be directed to attend the Sessions of the Parliament of Bangladesh and perform their constitutional duties and obligations as and when the Sessions is held or such other or further order or orders passed as to this Court may seem fit and proper”.

6. It may be mentioned other relief sought (as quoted hereinbefore) was rejected at the time of issuance of the Rule.

7. While the writ petition was awaiting final hearing the writ petitioner filed supplementary affi­davit seeking declaration “that respondent Nos. 3-5 and their party members in the Bangladesh Parlia­ment have ceased to be Members of Parliament with effect from 30-5-94 i.e. after expiry of 90 days with­out leave and that they be directed to refund all emoluments, salaries, allowances, etc. received by them from 30-5-94 till to date and/or pass such other order or further orders as to your Lordships may seem fit and proper”.

8. The writ-respondent Nos. 3-5 are the appel­lants in the respective appeals.

9. The writ petition was filed averring, inter alia, that the writ petitioner is a citizen of Bangla­desh and an Advocate of the Supreme Court of Ban­gladesh, that the respondent Nos. 3-5 deliberately and continuously in violation of the provisions in different Articles of the Constitution and ignoring constitutional duty who were voted by the people and elected for 5 (five) years and took oath of the office as Member of the Parliament to abide by the provisions of the Constitution and the oath taken but without performing their constitutional duties and obligations the respondents are drawing emolu­ments and enjoying the facilities and privileges pro­vided by the laws and rules, that Sessions of the Parliament are being regularly held but the respon­dent Nos.3-5 with their members in the Parliament are abstaining themselves from attending the Ses­sions of Parliament since 1-3-94 and thereby they are not performing their constitutional duty though they are to represent the people in the Parliament for making law as per provisions of Article 65 of the Constitution of the People’s Republic of Bangladesh (the Constitution) and have taken oath but, as in this regard, they are not discharging their duties, they have violated the provisions of Article 148(3) of the Constitution, that the respondent Nos. 3-5 and the members of their party elected as the Members of the Parliament are not doing their duties as members of the Parliament and thus failed to represent the people in the Parliament by non-participating in the process of enacting law and thereby deprived the people who would have the benefits of enactment of good and beneficial legislation as to life and pro­perty of the citizen, that the respondent Nos. 3-5 along with their members in the Parliament are boy­cotting the Sessions of the Parliament for fulfillment of the demand for bringing a bill for Caretaker Government by the Government and thus said act of the respondents and their members in the Parliament is clearly coercion, malafide, illegal……”, that the respondents and their members in the Parliament “trying to create lawlessness in the country and thereby to stop development of the country resulting in ruination of Parliamentary Democracy ….”, that the respondents and their members in the Parliament without asking for any leave from the Speaker are abstaining from the Session of the Parliament and that though the respondent Nos. 3-5 and their mem­bers in the Parliament are not attending the Session of the Parliament since 1-3-94 “yet they are illegally drawing salary, enjoying house facility, daily allowance, different allowances, car facilities, telephone facilities and other benefits and thereby causing financial loss to the people and the Republic of Bangladesh illegally and unjustly”, that the respondent Nos. 3-5 and their party members in the Parliament upon abstaining from attending Parlia­ment Session “started agitation and movement from outside the Parliament and repeatedly observed hartals which have caused financial loss to the State, harmed development of the country and increased  suffering of the people and made the entire nation jimmi at their hands ….”, that the respondent Nos. 3-5 and their members in the Parliament “took oath of allegiance to abide by the Constitution and thereby to represent the people in the Parliament for greater interest of the people yet, they are not attending the Sessions for performing public duty which is perfunctory and malafide and hence their illegal activities cannot be a privilege as members of the Parliament”, that “there is no provision of Caretaker Government in the Constitution. The demand of the Caretaker Government is motivated and false plea for non-attendance in the Sessions of the Parliament and hence non-attendance of the respondent Nos. 3-5 along with their party members of Parliament is motivated and malafide and illegal and, as such, is liable to be declared as such and it is required to direct them to attend the Sessions of the Parliament as and when it is held”, that the legal right and interest of the petitioner as a citizen of Bangladesh has been breached by the respondent Nos. 3-5 and, as such, he has locus standi to file the writ petition.

10. The Rule issued was opposed by the res­pondent Nos. 3-5 by filing different sets of affidavits-in-opposition. The said respondents denied the material averments made in the writ petition.

11. It was the common contentions of the res­pondents that the writ petition so filed was not maintainable and that a writ petition of mandamus does not lie against the respondents and the writ petition so filed involves disputed question of facts and, as such, not maintainable.

12. It is seen from the judgment of the High Court Division that the writ petition was filed chal­lenging the continuous and unabated abstention of the respondent Nos. 3-5 and sought relief by way of declaration and mandamus so that the abstaining members go back to the Parliament in order to enable them to discharge their constitutional function and obligation within the framework of the Constitution.

13. The High Court Division noted the conten­tions of the respondents, inter alia, that the direction so issued in terms of the Rule is not tenable as the said Rule would interfere with the functions, powers, privilege and remuneration of the Parlia­ment as well as of the members, that prayer made in the writ petition if allowed that would tantamount to destroy the principle of separation of the powers of Executive, Legislature and Judiciary, that the respon­dents are not persons or authority against whom a writ petition ‘would lie’, that the matter of absence of the members of the Parliament with leave or without leave is the matter for decision by the Speaker and the Parliament Secretariat.

14. The respondents, i.e., Writ respondent Nos. 3-5, seriously challenged the locus standi of the writ petitioner, maintainability of the writ petition and also asserted seriously that it being the case of the writ petitioner the respondents and their members in the Parliament have ceased to be members of the Parliament and, as such, the writ petition has become infractuous.

15. The High Court Division, in the back­ground of the contentions made in the affidavits by the contesting respondents, observed that the said respondents raised the following points:

“(a) that the petition is not maintainable;

(b) that the petitioner has no locus standi to file the writ petition;

(c) that the petitioner is not aggrieved;

(d) that this Court has no jurisdiction to issue a Rule and to direct the respondent Nos. 3-5 to attend the Sessions;

(e) that in view of the statements that the res­pondent Nos. 3-5 have ceased to be mem­bers of Parliament, as such, the Rule issued directing them to attend the Sessions of Parliament has become infructuous;

(f) that the respondent Nos. 3-5 are privileged Members of the Parliament and, as such, their actions are immune from the juris­diction of the Court and,

(g) that direction to refund the emoluments, salary, allowances and other benefits they have received, taken or obtained cannot be issued as the same are within the transac­tion of business which are internal pro­ceeding of the Parliament”.

The High Court Division observed that the ques­tion of maintainability of the writ petition “could only be decided upon consideration of various grounds, such as the locus standi of the petitioner to file this petition, as to whether he is aggrieved or not, whether respondent Nos. 3-5 are persons within the meaning of Article 102 of the Constitution or not, as to whether the continuous absence from Parliament without leave of the Parliament can be called in question by the petitioner or not”.

16. As to locus standi of the writ petitioner, the High Court Division has observed “As Constitution is a solemn expression of the will of the people; the Supreme Law of the Republic, any violation by anybody including the Members of the Parliament shall be called in question by each and every citizen of Bangladesh. Therefore, it can safely be said that the petitioner has got a locus standi to file this application by calling in question the conduct and actions of the respondent Nos. 3-5 for getting appropriate relief.

17. It has also been observed by the High Court Division that in the background of the provi­sion in Article 65 of the Constitution as because the continuous and unabated abstention from the Parlia­ment tends to erode and destroy the fundamentals of the Parliament and, as such, the question of locus standi of the writ petitioner “cannot be raised”. It has also been observed by the High Court Division that the provision in Article 65 of the Constitution clearly shows that 330 elected members “constitute the Parliament and they are designated as Members of the Parliament and that these Members of the Parliament as set out in Article 65 shall make legislation and perform other legislative functions and this Parliament as constituted by these members if twist or break the fundamentals of Parliament by taking away a considerable number of members outside the Parliament in order to make the Parlia­ment ineffective which is not authorised by any law, and such acts amount to erode or destroy the very fundamentals of the Parliament and, as such, every member of the country including the petitioner has a right to challenge such move in order to protect, prescribe and safeguard the Constitution”.

18. In the background of the contentions of the respondent Nos. 3-5 that they “are not persons within the meaning of Article 102 of the Constitu­tion as these respondent Nos. 3-5 do not perform any function in connection with the affairs of the Republic, as such, they cannot be directed to attend the Parliament Session”, the High Court Division has observed “The word ‘any person’ appearing in Article  102 of the Constitution also includes a Member of the Parliament as Legislature is one of the components and main organ of the Republic and Executive, Legislature and Judiciary, these 3 organs taken together constitute the Republic of Bangla­desh, as such, respondent Nos. 3-5 are persons with­in the meaning of Article 102 of the Constitution and they are performing their functions in con­nection with the affairs of the Republic and, as such, the petition is maintainable as against the respondent Nos. 3-5”.

19.  As regard to the contention relating to the jurisdiction of the Court to entertain the writ petition and to make direction sought for by the writ peti­tioner, it has been observed “The abstention and action of respondent Nos. 3-5 outside the House of Parliament in the streets raising sloogans and obser­ving hartals for establishment of a caretaker Govern­ment at the cost of participation in the internal pro­ceeding does in any sense mean and include the internal proceeding of the House. Therefore, this is not barred by Article 78(1) of the Constitution, as such, we think that this Court got jurisdiction to entertain the application. Apart from this, the Judges of this Court under solemn oath bind themselves to give effect to the provisions of the Constitution and unless there is a clear constitutional provision prohi­biting interference by this Court all constitutional processes prescribed under the Constitution are capable of being enforced by our Courts of law and any result which has been reached in violation of or non-compliance with any of the provisions would be declared by them as invalid. If thereby any dis­regard of any of the Constitutional requirements the violation can always be attacked as being contrary to the Constitution and, therefore, this Court is bound to give effect to when such challenge is made before this Court”.

20. The High Court Division rejected the con­tention of the writ petitioner made in the supple­mentary affidavit that the respondent Nos. 3-5 and the members of their party in the Parliament have ceased to be members of the Parliament because they had absented for 90 (ninety) consecutive sitting days upon observing that “The supplementary affi­davit so filed by the petitioner contains some bare statements without any positive materials to show that the respondent Nos. 3-5 have absented them­selves from Parliament without leave of the Parlia­ment for 90 (ninety) consecutive sitting days. There­fore, it is difficult for us to hold that they ceased to be Members of the Parliament by operation of Arti­cle 67(1)(b) of the Constitution”.

21. In the background of the contention of the writ petitioner that “the word ‘sitting’ ( ‰eVK) in Arti­cle 67(1)(b) of the Constitution” should be deleted for the sake of giving effect to the provision of law in the said Article as because in the absence thereof there would have no occasion to give the effect to the provision of the said Article or, in other words, to make the provision of the Article effective “were a recalcitrant member may be penalised to be un­seated even though he remained absent for the whole term of the Parliament”. It has been observed by the High Court Division that the submission of the learned Counsel for the writ petitioner merits no consideration, for two reasons, “that the framers of the Constitution have in their wisdom framed the Constitution and Court is to give effect to such pro­vision of law without altering the same. Secondly, in matters of a penal clause appearing in the Constitu­tion, the Court is required to give a strict interpreta­tion of the same as this would result in vacating the seat of a member. Therefore, we construe the Article 67 as it is without making any effort to delete the word ‘sitting'”.

22. The High Court Division accepted the con­tentions of the respondent Nos. 3-5 that they have not absented themselves from attending the Ses­sions of the Parliament for 90 consecutive sitting days. In the background of the admission of the learned Counsel for the writ petitioner that the res­pondent No.3-5 and the members of their party in the Parliament did not absent themselves for 90 consecutive sitting days unless the word ‘sitting’ is not deleted as in Article 67(1)(a) of the Constitution, the High Court Division rejected the declaration sought to the effect that the seats of the respondent Nos. 3-5 and the members of their party in the Parliament have become vacant and consequently, the said res­pondents and the members of their party in the Par­liament ceased to be the members of the Parliament.

23. The High Court Division after making the aforesaid observation held that the submission of the learned Counsel for the respondents for dischar­ging the Rule as the same had become infructuous is of no .substance. The High Court Division has also observed “As the respondent Nos. 3-5 are still Mem­bers of the Parliament and they are not subjected to the provision of Article 67(1)(b), we do not find any reason why the Rule would become infructuous”.

24. It is seen from the judgment of the High Court Division that the writ petitioner obtained the Rule for the purpose of an answer from the respon­dent Nos. 3-5 as to under what authority of law the said respondents are abstaining themselves from attending the Sessions of the Parliament and that why a direction should not be given by the High Court Division to them to attend the Sessions of the Parliament and to perform their constitutional duties and obligations as and when the Sessions of the Par­liament is held.

25. The High Court Division, as it appears, disposed of the Rule taking the view “but there is hardly any provision in the Constitution that absence without leave of the Parliament could be allowed. Article 67 clearly states that a member could only remain absent with leave of the Speaker. Nowhere the members are authorised to remain absent without leave of the Parliament but absence without any leave is wholly illegal and unauthorised and therefore, the long unabated and continued absence cannot absolve the members from the liabi­lity but such liability could be imposed only as pro­vided under the Constitution. But absence without leave is illegal and unauthorised”.

26. The High Court Division further observed that the respondent Nos.3-5 and the members of their party in the Parliament are not attending the Parliament without any leave and they are not dis­charging their Constitutional obligations.

27. The High Court Division was of the view that the respondent Nos. 3-5 and the members of their party in the Parliament are holding public office and thereupon observed “It is to be remem­bered that person holding any public office is to be designated as a rightful holder of the same if he per­forms the functions, duties and obligations thereto properly. But without performing any functions, obligations and duties it cannot be said that the per­son so elected for such public office to be holding the same rightfully. A holder of a public office with­out accepting his responsibility can be termed to hold the same purportedly. In the instant case, res­pondent Nos. 3-5 although are validly elected as members of the Parliament but they do not seem to be elected members within the meaning of Article 65 of the Constitution. The moment a member becomes a Member of the Parliament he assumes all responsibilities, functions and obligations attached to such office. Bereft of such power, function and obligation, the member so elected is a mere shadow of his title”.

28. In the background of the aforesaid observa­tions, the High Court Division observed, as the res­pondent Nos. 3-5  were not discharging their function, obligation and responsibilities the writ peti­tioner was compelled to approach the Court with the prayer for issuing a direction to the said respondents “under what authority of law they are holding such public office” and thereupon, the High Court Divi­sion held—

“In such circumstances Court is justified in issuing such writ of quo warranto in order to get information from the respondent Nos. 3-5 as to how they can cling to their office without performing of duties and obligations attached to such office. It is not the holding of office but it is their purportedly holding of office that gave rise to issue of this kind of writ. For a member shorn of all of his functions, right and obligation cannot, in the true sense of the term, be called a dejure Member of Parliament. In the premises we think that it is open to attack in a collateral proceeding to challenge the status of a member having colourable title to his office without public acquiescence and his abstention from the internal proceedings of the Parliament. The proper proceeding to question his right to boycott the Parliament is by quo warranto information. To refuse such relief as in the present case is to perpetuate the illegality the respondent Nos.3-5 are committing by boycotting the Sessions and indulging in activities other than the function and obligation of a member of the Parliament. Therefore, the title of respondent Nos. 3-5 to the office is a colourable title to office for which quo warranto lies”.

29. The High Court Division upon observing “We find that the petitioner has a right to get the performance of the legal duty of the respondent Nos.3-5 to attend the Sessions of the Parliament. The Constitution imposes a duty to the respondent Nos. 3-5 to perform such duty and the duties complained of undoubtedly is a public duty and Constitutional in nature. We further find that there is a right inhering in the petitioner but there is no specific remedy available” and thereupon hold that the writ of mandamus “should not be denied to the peti­tioner”.

30.  It has been submitted on behalf of the appellant in Appeal No. 3 of 1995, that in making the judgment under appeal the High Court Division transgressed its jurisdiction in exercise of its power under Article 102 of the Constitution and upon the jurisdiction of the Parliament. That the contention of the writ petitioner that the action of the respondent Nos. 3-5 is not legal or constitutional but are violative of the provisions of the Constitution and of democratic norms are all contrary to law and provi­sions of the Constitution and being extraneous in nature the judgment under appeal is liable to be set aside, and the judgment of the High Court Division is based on no legal foundation and the said is a political decision rather than a legal decision, and the High Court Division was in error in making declaration in its writ jurisdiction, that the demand of the respondent Nos. 3-5 and the members of their party in the Parliament for enacting law making provision for Caretaker Government is illegal, unconstitutional and void as said declaration has no legal basis, that the judgment passed by the High Court Division is not enforceable and also bad in law since there is no effective legal or Parliamentary machinery to compel members to attend the sitting of the Parliament, that the High Court Division has passed the judgment without considering the provi­sions of the National Assembly Secretariat Act, 1994 and the provisions of the Members of Parlia­ment (Remuneration and Allowances) Order and the High Court Division ought not to have made the comments and observations against the Members of the  Parliament belonging to  the  party of the respondent Nos. 3-5, that the High Court Division by the judgment under appeal has trespassed in the field and jurisdiction of the Parliament and thereby has created an unnecessary conflict between the Judiciary and Parliament, that the writ petitioner has no locus standi to file a writ petition since members of the Parliament for whom he voted and elected are attending Parliament regularly, that the High Court Division had totally misconceived and miscons­trued the provisions of the Constitution relating to absence of Members of Parliament as in Article 67 of the Constitution, that the disqualification for being a Member of Parliament and vacation of seats of Members of Parliament are guided by the provisions of Articles 66 and 67 of the Constitution and  that the appellant’s absence from the Parliament not being in violation of the Articles, the findings and  decisions made by the High Court Division while  giving the directions as in the operative part of the judgment are not sustainable in law, that the finding of the High Court Division on the question of writ of quo warranto and on the question of writ of  mandamus in the background of the facts and cir­cumstances of the case is not sustainable in law.

31. It has been submitted on behalf of the appellant in Appeal No. 5 of  995, that the High Court Division failed to discharge its constitutional obligation of judicial review under Article 102 of the Constitution in not coming to the conclusion that the subject matter of writ petition is a highly poli­tical one and outside the scope of the judicial review of the High Court Division, that the High Court Division was in error in not coming to the conclu­sion in the background of the materials on record that the respondent No.1 (writ petitioner) has no (locus standi to file the writ petition, that the High Court Division was in serious error in interpreting the term a person performing functions in connection with the affairs of the Republic’ and that also was wrong in holding that a Member of Parliament is such a person, that the High Court Division was in error in interpreting the provisions in different Articles of the Constitution including the Preamble, Articles 65(1),78(1) and 148(1) of the Constitution and thereupon in holding that appel­lant’s continued absence from Parliament tends to erode provision of Article 65 and that appellant’s absence from the Sessions of Parliament is not covered by the privileges and immunity of Parlia­ment and its members as enshrined in Article 78, that the High Court Division seriously had erred in evaluating the status and character of Parliament and its members vis-a-vis the jurisdiction or powers of the High Court Division in issuing a direction upon the legislator to perform his legislative function and, as such, palpably was incorrect in issuing a direction upon the appellant to attend the Sessions of Parliament, that the High Court Divi­sion committed error in issuing a direction by way of mandamus to the members of Parliament to per­form their functions and legislative duties, that the High Court Division misconstrued the term internal proceedings in Parliament and failed to come to the conclusion the ‘internal proceedings is synonymous with internal affairs, that matter of boycotting of the Sessions of Parliament is an internal affair of the Parliament which virtually took place within the four walls of the Parliament House and, as such, outside purview of the judicial review under Article 102 of the Constitution, that the High Court Divi­sion, was in error in giving narrow meaning of the term proceeding in Parliament, that the High Court Division was not correct that the appellant’s recei­ving of the allowances and other benefits within the period of absence from the Sessions of Parliament are unlawful and unauthorised, that the observations and findings made by the High Court Division as to matter of seeking quo warranto and issuance there­of as well as mandamus is not sustainable in law.

32. It has been submitted on behalf of the appellant in Appeal No.13 of 1995, that the High Court Division acted illegally in not holding that the appellant is not a ‘person’ within the meaning of Article 102(1), (2) and (5) of the Constitution of Bangladesh and that the reason given by the High Court Division while holding the appellant as ‘person’ is totally misconceived and is the result of misinterpretation of the provisions of Article 67(1)(b) of the Constitution, that the High Court Division was in error in holding that the appellant is a person by misinterpreting and misapplying the various provisions of the Constitution, that admit­tedly provision in Article 67(1))(b) of the Constitu­tion providing the period of absence for “90 conse­cutive sitting days” from the Sessions of the Parlia­ment having not expired the writ petition was not maintainable, that the writ petitioner is not an aggrieved person since he resides and voted from the constituency other than the constituency of the appellant and that members elected by his vote are attending the Sessions of the Parliament and, as such, his grievance narrated for the purpose of invo­king the writ jurisdiction of the High Court Division was not sustainable in law, that because of the provi­sion of Article 65(2) of the Constitution the writ petition was not maintainable as the writ petitioner sought to file the writ petition in a representative capacity on behalf of all the people of Bangladesh and, as such, reasons given by the High Court Divi­sion referring to provision of Articles 7 and 65 is a case of clear misinterpretation of the Constitution, that the High Court Division was in error in holding the writ petitioner as an ‘aggrieved person’ by mis­interpreting the provision of Articles 7 and 65 of the Constitution, that the High Court Division acted illegally in not holding that the said Division cannot interfere with the powers, functions, privileges and jurisdiction of the Parliament which derives such powers like the High Court Division of the Supreme Court of Bangladesh from the Constitution itself and, as such, any interference with the above powers and functions of the Parliament/Speaker of the Parliament would be violative of Article 7 of the Constitution, that the High Court Division ought to have held that any interference with the powers and functions of the Parliament/ Speaker of the Parlia­ment would tantamount to destroy the principle of separation of power of Executive, Legislature and Judiciary and thereby destroying the very basis of the written Constitution, that whether a member is abstaining from Parliament rightly or wrongly is a question of fact and remedy against such absence is clearly covered under the relevant provision of Rules of Procedure as enacted on 5th February, 1992 and the Rules of Procedure itself have sug­gested the remedies for such violation of Rules of Procedure which clearly excludes the jurisdiction of the High Court Division of the Supreme Court of Bangladesh and, as such, the judgment and order under appeal is hit by the relevant provision of Article 75(1)(c) and sub-Article (2) of Article 75 read with the Rules of Procedure Act, 1992 as enacted under Article 75 of the Constitution, that alternative remedies having been provided under various provisions of the Constitution including Articles 67,75 and 78 the writ petition was not maintainable, that the High Court Division acted illegally in not holding that to attend or to refuse to attend the Parliament is matter of procedure and privileges of the members of the Parliament and the High Court Division has no jurisdiction over such matters by making some irrelevant academic distinctions between internal proceeding and external proceeding, that the High Court Division has failed to notice the distinction between holding of office and carrying out duties, under the said office if applying the provision of quo warranto under Article 102(2)(b)(ii) of the Constitution, that the High Court Division acted illegally in not holding that duties of the members of the Parliament having not been defined in any law whereas they have right to remain absent and other rights and privileges have been clearly defined under the various provi­sions of the Constitution including Article 67(1)(b), Article 65 and Article 78 of the Constitution, the impugned judgment and order is without lawful authority, that the judgment and order of the High Court Division is violative of the provision in Article 70 of the Constitution, inasmuch as if the direction given by the High Court Division to attend the Parliament is complied with the same would tan­tamount to violation of Article 70(1) of the Consti­tution which contemplates that as leader of political party, as the appellant, is bound by the decision of the political party which nominated her as candidate at the election held and elected her member of the Parliament.

33. The writ petition, in its nature and for all practical purposes, was public interest litigation.

The writ petitioner obtained the Rule calling upon the appellants, in the respective appeals, i.e. the res­pondent Nos. 3-5 in the writ petition, to show cause under what authority of law they were abstaining from attending the Parliament and why a direction shall not be given to them to attend the Sessions of the Parliament and perform their constitutional duties and obligations as and when the Sessions are held. At certain stage while the writ petition was awaiting for final disposal, the writ petitioner filed a supplementary affidavit seeking declaration that the appellants in the respective appeals and the Mem­bers of the Parliament of the appellants party ceased to be members of the Parliament, since the appel­lants and the members of the Parliament belonging to the appellants party abstained from attending the Sessions of the Parliament more than 90 days and it was asserted on the part of the writ petitioner that the date of cessation of the membership of the respondent Nos. 3-5 and the members of the Parlia­ment belonging to their party became effective from May 30, 1994, since the appellants and the members of the Parliament belonging to their party absented from attending the Sessions of the Parliament with­out leave of the Parliament.

34. The High Court Division did not allow the declaration sought as to cessation of the member­ship of the Parliament of the appellants and the members of the Parliament belonging to their party. The term or the manner in which the High Court Division made the Rule absolute has already been stated hereinbefore.

35. It may be mentioned that the High Court Division made the definite finding “it is difficult for us to hold that they ceased to be members of the Par­liament by operation of the Article 67(1)(b) of the Constitution”.

Article 67 of the Constitution reads as follows:

“67. (1) A Member of Parliament shall vacate seat (a) if he fails, within the period of ninety days from the date of the first meeting of Parliament after his election, to make and subscribe the oath or affirmation prescribed for a Member of Parliament in the Third Schedule: that period, for good cause extend it; (b) if he is absent from Parliament, without the leave of Parliament, for ninety consecutive sitting days; (c) upon a dissolution of Parliament; (d) if he has incurred a disqualification under clause (2) of Article 66; or (e) in the circumstances specified in Article 70A. (Sub-Article (2) is not relevant for the purpose of disposal of the appeals)

For the purpose of the disposal of the appeals Article 67(1)(b) is relevant and the same has already been quoted above.

36. The aforequoted finding of the High Court Division relating to non-ceasing of membership of the appellant, in the respective appeals and the members of the Parliament of their party in the Parliament clearly shows that in that state of the matter they enjoyed the privileges, benefits and facilities as members of the Parliament,

37. It is seen from the judgment of the High Court Division that from the writ petitioner’s side no law, Rule or Regulation, notification or any legal instrument, any custom or usage having the force of law in Bangladesh was referred to show that absten­tion of the Members of Parliament from attending Parliament not beyond 90 consecutive sitting days makes the salary, emoluments, allowances and all other benefits received illegal and unauthorised. That being the position the High Court Division was seriously in error in making direction to the autho­rity for recovery of the salary, emoluments, allowances and other benefits received by the respondent Nos. 3-5 and the members of the Parliament of their party while they abstained from attending Sessions of Parliament.

38. The writ petition was filed stating that the writ petitioner had right to expect that the respon­dent Nos.3-5 and the members of the Parliament of their party were to perform their constitutional obli­gations i.e. public expectation that they were to project the public causes in the Parliament, initiate bills for the good of the people and to participate in the discussion in all the internal proceedings of the Parliament so that the lot of the general public would be improved and good name of the country would be enhanced. It was also the contention of the writ petitioner that instead of performing the constitutional obligations as stated hereinbefore the appellants and the members of the Parliament of their party abstained themselves from attending the Sessions of the Parliament with the unjust demand for Caretaker Government.

39. The High Court Division as it appears from the judgment under appeal proceeded on the premise that there is no provision in the Constitution allowing absence without leave of the Parliament and for the aforesaid purpose the High Court Division placed reliance upon the provision of Article 67(1)(b) of the Constitution. It is also seen from the judgment under appeal that the said Division was of the view that the members of the Parliament would only walk out or boycott the Sessions of the Parliament after attendance “first then they may walk out. But without attendance no such walk-out is contemplated … but absence with­out any leave is wholly illegal and unauthorised and therefore, the long unabated and continued absence cannot absolve the members from the liability but such liability could be imposed only as provided under the Constitution. But absence without leave is illegal and unauthorised”.

40.  Article 67(1)(b) of the Constitution pro­vides for vacation of seat of a member of the Parlia­ment if he is absent from Parliament, without the leave of Parliament, for ninety consecutive sitting days.

41. The words ‘consecutive’ and ‘sitting’ in Article 67(1)(b) of the Constitution are significant. Article 152 of the Constitution relates to interpreta­tion of the words or expressions used in the Consti­tution or, in other words, for interpretation of words or expressions used in the Constitution. The same would be interpreted as in Article 152 of the Consti­tution. In Article 152 of the Constitution the word “sitting” has been defined as “in relation to Parlia­ment means a period during which Parliament is sit­ting continuously without adjournment”.

42. In the said Article the word ‘Session’ has been defined as “in relation to Parliament means the sittings of the Parliament commencing when it first meets after the commencement of this Constitution or after prorogation or dissolution of Parliament and terminating when Parliament is prorogued or dissolved”.

43. The word ‘consecutive’ as in Article 67(1)-(b) of the Constitution, as per the Chambers Dic­tionary (In India published in 2000 and re-printed in 2004) means following in regular order or one after another; the word ‘consecutive’ according to the Concise Oxford Dictionary of current English (printed in India in 1983 and re-printed in 1984)’ means following continuously. The selfsame word ‘consecutive’ according to Collins Cobuilb English Dictionary (reprinted in 1997) means consecutive periods of time or events happen one after the other without interruption.

44. The accepted position is that the appellants in the respective appeals and the members of the Parliament of their respective party did not cease to be members of the Parliament. The High Court Division came to the finding that no tangible mate­rial was placed before it that the appellants and the members of the Parliament of their respective party absented themselves from the sitting of the Parlia­ment ‘for 90 consecutive sitting days’.

45. For the purpose of considering the absence of a Member of Parliament from the Parliament un­authorised, the primary matter is that such member was absent beyond 90 consecutive sitting days with­out leave. So it comes to if absence of a member of Parliament is not beyond 90 consecutive sitting days such absence is not unauthorised or, for that matter, illegal and there is no necessity of taking leave of Parliament. It is seen from the language of Article 67(1)(b) that for cessation of membership absence of a Member of the Parliament without leave must be ‘for 90 consecutive sitting days’.

46. It has already been mentioned hereinbefore that the High Court Division itself held that no mate­rial was placed before it to show that the respondent Nos. 3-5 or, for that matter, members of the parlia­ment of their respective party absented themselves ‘for 90 consecutive sitting days’ without leave of the Parliament. Since there was no absence on the part of the appellants or, for that matter, the members of the Parliament of their respective party ‘for 90 consecutive sitting days’ there was no necessity for asking leave of the Parliament or, for that matter, from the Speaker.

47. As mentioned above the word ‘consecu­tive’ means periods of time or events happening one after the other without interruption or that following in regular order or one after another or that follow­ing continuously.

48. The admitted position is the appellants or, for that matter, the members of the Parliament of their respective party did not absent themselves from sitting days of the Parliament consecutive con­tinuously 90 days. In fact, no material was placed on record to show that the appellants or, for that matter, the members of the Parliament of their respective party absented themselves from the sitting days of the Parliament which were ‘for 90 consecutive sit­ting days’.

49. In the background of the aforesaid undis­puted fact as stated hereinbefore, the High Court Division was in serious error in considering the absence of the respondent Nos.3-5 or for that matter the members of the Parliament of their respective party unauthorised and thereupon making direction for recovery of the salary, emoluments and allow­ances received by the appellants and the members of the Parliament of their respective party “for the period of their unauthorised absence”.

50. It is seen from the judgment of the High Court Division that the learned Counsel for the writ petitioner in the background of the language of Article 67(1) (b) of the Constitution submitted that the word ‘sitting’ should be deleted. The High Court Division rejected the said contention of the writ petitioner.

51. The above being the position, it can be said the High Court Division ought not to have consi­dered the absence of the appellants in the respective appeals and the members of the Parliament of their respective party unauthorised or that they were required to ask for leave from the Speaker, since the appellants and the members of the Parliament of their respective party did not absent themselves from Parliament ‘for 90 consecutive sitting days’.

52. Now there comes the correctness of the direction made by the High Court Division to the appellant of the respective appeals to attend the Par­liament.

53. In the background of the materials on record, and particularly because of the law relating to matter involved in the writ petition, it is seen the High Court Division was not well founded in making direction of the kind since absence of the members of the Parliament from the Sessions of the Parliament or, for that matter, sitting days of the Parliament was very much permitted without leave of the Speaker as the said absence was not ‘for 90 consecutive sitting days’. It has already been men­tioned no law was placed before the High Court Division to show that for absence, which was not ‘for 90 consecutive sitting days’, leave from the Speaker was required to be obtained or sought for.

54.  As stated hereinbefore the writ petitioner approached the Court for a direction to the appel­lants in the respective appeals to attend the Parlia­ment and to perform their constitutional duties and obligations. It appears, that the writ petitioner is expecting the appellants in the respective appeals to perform their constitutional duties and also tried to convey that the appellant in the respective appeals or for that matter the members of the Parliament of their respective party should attend the Parliament and to participate in the deliberation and the pro­ceeding of the Parliament that take place in the Par­liament or to participate in the enactment of the law for the benefit of the people as in case of partici­pation in the process of making the law suggestions put forward from the side of the appellants or the deficiencies if any pointed out would benefit the citizen to have a law enacted suitable to the purpose for which the law so enacted. As to the expectation of the writ petitioner relating to performance of constitutional duties and obligations by the appel­lants and the members of the Parliament of their res­pective party in the background of the Parliamen­tary democracy in multi-party political system exception can hardly be taken. But the fact remains can this expectation of the writ petitioner be materia­lised by the writ of mandamus, quo-warranto or of any kind of writs under Article 102(2) of the Consti­tution.

55. Writ of quo-warranto is resorted to calling upon a person holding certain public office to show his competency of holding public office he is hol­ding or, for that matter, to show under what autho­rity he is holding certain public office.

56. In the instant case, the validity of the pro­cess of the election through which appellants, or for that matter, the members of the Parliament of their respective party elected to the Parliament was not challenged or, in other words, no question was raised as to the validity or legality of being member of Parliament and also being elected as member of the Parliament.

57. In all probability it appears that the writ petitioner sought for quo-warranto on the premise that absence of the appellants of the respective appeals and the members of the Parliament of their respective party being not with leave of the Speaker was unauthorised and, as such, their continuation as members of the Parliament was not legal. It has already been held absence of the appellants and the members of the Parliament of their respective party from sitting of the Parliament was not ‘for 90 conse­cutive sitting days’ and, as such, they remained members of the Parliament.

58. It is seen from the judgment of the High Court Division that the Division assumed the juris­diction of quo-warranto in the background of the submission of the writ petitioner that the appellants and the members of the Parliament of their respec­tive party were required to perform their functions and obligations attached to their office and to dis­charge their responsibilities to their office and hav­ing found they were not performing their functions and discharging their obligations “in their normal course of business” sought for the writ of quo-warranto in respect of the appellants to show under what authority of law they were holding such public office.

59. As it appears from the judgment under appeals the High Court Division assumed the juris­diction for the issuance of the writ of quo-warranto from the view that the appellants were not holding the office of membership of Parliament, but were purportedly holding the office and that situation gave rise to issuance of this kind of writ. The High Court Division was of the view that a member of Parliament “shorn of all of his function, right and obligation, cannot in the true sense of the term, be called a dejure Member of Parliament” and, as such, in the background of the said action of the members of the Parliament “it is open to attack in a collateral proceeding to challenge the status of a member having colourable title to his office without public acquiescence and his abstention from the internal proceedings of the Parliament. The proper proceed­ing to question his right to boycott the Parliament is by quo-warranto information. To refuse such relief, as in the present case, is to perpetuate the illegality the respondent Nos.3-5 are committing by boy­cotting the Sessions and indulging in activities other than the function and obligation of a member of the Parliament and, as such, quo warranto lies since the title of the respondent Nos.3-5 is colourable title to the office”.

60. The nature of the Rule obtained was man­damus. The High Court Division at the time of dis­posal of the Rule but also granted relief in the nature of quo-warranto to the writ petitioner upon obser­ving, in the background of the facts of the case, the relief of quo-warranto may be had since the title of the respondent Nos. 3-5 to the office is a colourable title to office and, as such, in the given premise “in a collateral proceeding to challenge the status of a member having colourable title to his office without public acquiescence and his abstention from the internal proceedings of the Parliament”. The High Court Division was of the view that the appropriate course of questioning the justification of boycotting the proceeding of the Parliament can be had ‘by quo warranto information’. The High Court Division was further of the view that in case of denial in relief of quo-warranto in the facts stating which the writ petition was filed and relief sought would amount to allowing the members of boycotting the Sessions of the Parliament to perpetuate their illegal action.

61. The settled principle of law is that the relief that cannot be had following the appropriate and proper prescribed procedure providing for seeking said particular relief or, in other words, in case of following or resorting to prescribed procedure for seeking the particular relief, the relief so sought could have not been granted by the Court, then in such a situation the person seeking relief cannot have or be given, because of difficulty in complying with the prescribed procedure, the relief in a contri­ved manner or through a collateral proceeding. In that view of the matter, the High Court Division having had noticed that the proceeding initiated by the writ petitioner or, in other words, Rule obtained by the writ petitioner he could not have the relief of quo-warranto, the said Division was in serious error in allowing the relief of quo-warranto as the said Division itself had observed that in the facts and circumstances of the case it is open to the writ peti­tioner to attack in a collateral proceeding to chal­lenge the status of a member having colourable title to his office without public acquiescence and his abstention from the internal proceeding of the Par­liament”. The High Court Division was not correct in holding the Writ respondent Nos. 3-5 and the members of their party in the Parliament were not “dejure members of parliament” and were “purpor­tedly holding” office in the Parliament, since the High Court Division held that they did not cease to be the members of the parliament.

62.  It has earlier been observed that because of the provision in Article 67(1)(b) of the Constitution a Member of the Parliament can very much remain absent for ascertained period without leave of the Parliament and that in the case of absence beyond that period seat of such member(s) of the Parliament becomes vacated. In the instant case, the High Court Division itself had held that the appellants in the respective appeals and the members of the Par­liament of their respective party did not absent them­selves beyond the prescribed period and, as such, they did not cease to be members of the Parliament. This being the undisputed position, and the High Court Division having had noticed that fact, the said Division ought not to have proceeded on the pre­mise that the respondent Nos.3-5 and the members of the Parliament of their respective party are ‘purportedly holding office’ or, in other words, they are colourable men attached to the office.

63. As stated hereinbefore, the writ petitioner obtained Rule seeking direction on the appellants in the respective appeals “why they should not be directed to attend the Sessions of the Parliament of Bangladesh and perform their constitutional duties and obligations as and when the Sessions is held”.

The relief so sought is of the nature of writ of mandamus.

64. The High Court Division while making the Rule absolute made direction in the following terms “the respondent Nos.3-5 are required to attend the Parliament. They are directed to attend the Parliament and if the Parliament is not in Session, as and when the Session is summoned by the President and within 3 days from commencement of such Session subject to the conditions and incidents as contained in Article 67 of the Constitution”.

65. In the background of the facts of the case, provision of Article 67(1)(b) is, relevant and the same reads as follows: “if he is absent from Parliament, without the leave of the Parliament, for ninety consecutive sitting days”.

66. The word ‘he’ in Article 67(1)(b) is referable to a Member of Parliament. This provision relates to a situation on the happening of which seat of a member of the Parliament shall fall vacant. The situation as mentioned above is if a member of the Parliament-absents himself from. Parliament for 90 consecutive sitting days’ without the leave of the Parliament or, for that matter, the Speaker. In the instant case, the High Court Division itself has observed that such situation did not happen in respect of the appellants in the respective appeals and the members of the Parliament of their res­pective party.

67.  The writ petitioner sought for the direction in the nature of mandamus to compel the respondent Nos. 3-5 and thereby all the members of Parliament of the said respondents or, in other words, to send back the said respondents and the members of the Parliament of their respective party to the Parlia­ment and to attend the Parliament for discharging their constitutional function, and obligation within the framework of the Constitution and also for pro­jecting the cause of the people. It appears that the writ petitioner upon contending about performing of constitutional duties and obligations by the respon­dent Nos.3-5 and the members of the Parliament of their respective party wanted to mean the acts in relations to legislation and also performing other legislative functions by the appellants of the res­pective appeals and the members of the Parliament of their respective party. It also appears that the writ petitioner initiated the proceeding by contending that the respondent Nos.3-5 i.e. appellants in the respective appeals, and the members of the Parlia­ment of their respective party were not performing their constitutional duty and thereby intended to mean by the expression constitutional obligation ‘in participating in Parliamentary proceedings’ and the transaction of business with the Speaker ‘in the Chair or in a properly constituted committee’.

68. The High Court Division has made direc­tion to the respondent Nos.3-5 i.e. appellants in the respective appeals, to attend the Parliament for the purpose i.e. performance of their constitutional duties and obligations and projecting the cause of the people or, for that matter, for discharging the constitutional obligations “in participating in Par­liamentary proceedings or that for the transaction of business in the Parliament with the Speaker in the Chair or in a properly constituted committee” or for initiating “bills for the good of the people and to participate in discussions of all the internal pro­ceedings of the Parliament so that the lot of the general public may be improved and good name of the country may be enhanced ….”

69. It may be mentioned that deliberation in the Parliament by the members who are attending the sitting of the Parliament in absence of the res­pondent Nos. 3-5 and the members of the Parlia­ment of their respective party was very much made and participated by members present in the Parliament and legislation was also made and that there had been highlighting of the problems in constituencies of the members present in the Par­liament and there had been demand for solving the said problems. The direction so given by the High Court Division to ensure the attendance of the res­pondent Nos. 3-5 i.e. appellant in the respective appeals and the members of the Parliament of their respective party, even if complied by the respondent Nos. 3-5 and the members of the Parliament of their respective party, there remains the big question in case of compliance of the direction if the respondent Nos. 3-5 i.e. the appellant in the respective appeals and the members of the Parliament of their respective party, could have been compelled to participate in the proceedings of the deliberation in the Parliament or in the proceedings of the Parlia­ment committee or, for that matter, as to other matters too or that “to participate in the discussion in all the internal proceedings of the Parliament” for improving the lot of the general people and for the sake of good name of the country.

70. It is apparent that could in no manner or way be done since participation or non-participation in the proceedings of the Parliament of any kind and that making deliberation in any respect in the Parlia­ment by a particular member is absolutely his personal matter and also own volit