Appellate Division Cases
(Civil)
PARTIES
Moudud Ahmed and others (In C. A. Nos. 3, 1995)…………….. Appellants
Moulana Matiur Rahman(in C.A. No.5of 1995) …………..Appellant
Mrs. Sheikh Hasina @ Sheikh Hasina Wazed (in C.A.No.13 of 1995)……Appellant
-Vs-
Md. Anwar Hossain Khan (Dead) and others (In all the Judgment cases) ……….. Respondents
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M.M Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated:11 December 2007
The Constitution, Article 65, 67(1 )(b) 78(1) 148(3)
The Rules of Procedure Act 1992
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 obligationsl…………….. (5)
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 citizens 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 ………….(19)
Article 65 of the Constitution as because the continuous and unabated abstention from the Parliament tends to erode and destroy the fundamental of the Parliament and as such the question of locus standi of the writ petitioner “cannot be raised”………… (20)
The writ petition in its nature and for all practical purposes was a public interest litigation ………………………….(36)
In all probability it appears that the writ petitioner sought for quo-warranto on the premise that absence of the appellant of the respective appeals and the members of the Parliament of their respective party being not with leave of the Speaker was unauthorized and as such their continuation as members of the Parliament was not legal ……….(63)
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 member of parliament” and were “purportedly holding” office
in the Parliament, since the High Court Division held that they did not cease to be the member of the parliament. …………………..(67)
In that view of the matter the High Court Division ought not have gone for academic exercise of its jurisdiction under Article 102(2) of the Constitution……………. (82)
we are of the view that there was no cause for the writ petitioner to approach the High Court Division under Article 102(2) of the Constitution for vindication since the provision of the Constitution provides for absence of the member(s) of the Parliament for certain period and after which seat of a member of the Parliament falls vacant but no such thing had happen in the instant case. There is also no law, and no law was also placed before the High Court Division to show that in case of absence of a member(s) of Parliament for the prescribed period they would be denied the privileges and facilities, salaries or emoluments available to them for such permissible period of absence. This being the undenied position the High Court Division was in serious error in holding the absence of the respondent Nos. 3-5 and the members of the Parliament of their respective party, which was not beyond the period permitted by law, was unauthorized and that facilities and emoluments received by them should be realised from them. ……………………….(83)
It has already been observed that the proceeding initiated had no colour of public interest litigation and that being the position the High Court Division, as it appears in the background of materials on record and discussion made herein above was in error in holding that the writ petition so filed was maintainable, since writ petition was not maintainable, as held hereinbefore there was no necessity or requirement for arriving at a decision as to whether the respondent Nos. 3-5 or for that matter the members Constitution……………………… (86)
In the background of the discussions made hereinabove it seen there is merit in the appeals and accordingly, the same are allowed without any order as to costs …………….(87)
Md. Aftab Hossain, Advocate-on-Record For the appellants (In C. A. Nos. 3 & 5/95)
Muhammad Nawab Ali Advocate-on-Record…………… For the appellant (In C. A.No. 13/95)
Fida M. Kama I. Attorney General, instructed by Mvi. Md. Wahidnllah, Advocate-on-Record ……………For the Respondent No. Kin all the cases)
Fida M. Kama!, Attorney General, instructed by B. Hossain, Advocate-on-Record ……….For the Respondent No.6 (In C. A. Nos. 5, 13/95)
For the Respondent Nos. 2 -5 (In C. A. Nos. 5, 13/95)………… Not represented
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)
JUDGMENT
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 unauthorized absence. We declare that the salary, emoluments allowances and other benefits so received by the respondents are illegal and unauthorized. The aforesaid illegal and unauthorized receipts of salaries, emoluments and allowances by the absentee members of the Parliament without leave of the Parliament is 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 privilege to the respondent Nos. 3-5 as a members of the Parliament and leaders of the opposition parties in the Parliament alternatively to respondent Nos. 3-5 as a 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;”
6. The High Court Division issued the Rule as follows: “Let a Rule Nisi 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”.
7. It may be mentioned other relief sought (as quoted hereinbefore) was rejected at the time of issuance of the Rule.
8. While the writ petition was awaiting final hearing the writ petitioner filed supplementary affidavit seeking declaration “that Respondent Nos. 3-5 and tbdr 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”.
9. The writ-respondent Nos. 3-5 are the appellants in the respective appeals.
10. 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 provide 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 Care-Taker 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 a lawlessness in the country and thereby to stop development of the country resulting 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 hartab which have caused financial loss to the State harmed development of the country and increased suffering of the people and make 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 to Session 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 Care-Taker Government in the Constitution. The demand of the Care-Taker 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 is required to be directed 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.
11. The Rule issued was opposed by the respondent Nos. 3-5 by filing different sets of affidavitsrin-opposition. The said respondents denied the material averments made in the writ petition.
12. It was the common contentions of the respondents that the writ petition so filed was not maintainable and that a writ petition of mandamous does not lie against the respondents and the writ petition so filed involves disputed question of facts and as such not maintainable.
13. 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 mandamous 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.
14. 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,Legislative 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.
15. The respondents, i.e., Writ Respondent Nos.3-5 seriously challenged the locus standi of the writ petitioner, maintainability of the writ petitioner and also asserted seriously that it being the case ot the writ petitioner the Respondent and their members in the Parliament have ceased to the members of the Parliament and as such the writ petition has become infructuous.
16. 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 ctandi 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 respondents 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”.
17. 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”.
18. 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 citizens 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.
20. 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 fundamental of the Parliament and as such the question of locus standi of the writ petitioner “cannot be aised”. 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 member of members outside the Parliament in order to make the Parliament ineffective which is not authorized by any law / and such “f acts amount to erode or destroy the very fundamental 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”.
21. 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 component 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 as such the petition is maintainable as against the respondent Nos. 35”.
22. 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 care taker 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 Constitutions and unless there is a clear constitutional provision prohibiting interference by this Court all constitutional process 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 this 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”.
23. 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 the member of the Parliament because they had absented for 90 (ninety) consec-utive 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 member of the Parliament by operation of Article 67 (1) (b) of the Constitution”.
24. In the background of the contention of the writ petitioner that “the word ‘sitting’ (frfo) 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 penalized to be unseated even though he remain 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 merit no consideration, for two reasons, “that the framer 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 efford to delete the word ‘sitting'”. 25. 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.
26. 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 of no substance. The High Court Division has also observed “As the respondent Nos. 35 are still member 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”.
27. 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 under what authority of law the said respondents 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.
28. 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. No where the members are authorized to remain absent without leave of the Parliament but absence without any leave is wholly illegal and unauthorized and therefore the long unabatted 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 unauthorized”.
29. 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 constitution obligations.
30. 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 an 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”.
31. 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 cling to their office without performing of duties and obligation 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 writ. For a member shorn of all of his function, right and obligation cannot be 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 presentcase 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 colourable title to office for which quo warranto lies”.
32. 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 inheres in the petitioner but there is no specific remedy available” and thereupon held that the writ of mandamus “should not be denied to the petitioner”.
33. 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 provision 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 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 Parliamentary, 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.
34. It has been submitted on behalf of the appellant in Appeal No.5 of 1995, 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 ahighly 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 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 provision 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 who 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 affairs 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 unauthorized, 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.
35. 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) 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 r.nd that members elected by his vote are attending the Sessions of the Parliament and as such
his grievance narrated for the purpose of invoking ihe 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 petitioneras 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 inierfere with the powers Junctions, privileges and jurisdiction of the Parliament which derives such powers like the High Court Division of the Supreme Court of Bangladesh Lorn the Constitution itself and as such any interference with the above powers and functions of the Parliament I 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 I 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 procedures which clearly excluding 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 in
applying the provision of quo-warranto under Article 102(2) (b) (li) 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 riuht to remain absent and other 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 learly
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 that 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 member of the Parliament.
36. The writ petition in its nature and for all practical purposes was a 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. 35 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.
37. 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.
38. 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 member of the Parliament by operation of the Article 67(1) (b) of the Constitution”.
39. 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 70″. (Sub-Article (2) is not relevant
for the purpose of disposal of the appeals)
40. For the purpose of the disposal of the appeals Article 67(1) (b) is relevant and the same has already been quoted above.
41. 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 member of the Parliament.
42. 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 unauthorized. 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.
44. 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 Care Taker Government.
45. 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 make walk-out. But without attendance no such walk-out is contemplated . .. but absence without any leave is wholly illegal and unauthorized 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 unauthorized.
46. 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.
47. 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’ 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”
48. 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”.
49. 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 self same 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.
50. The accepted position is that the appellant 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 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’
51. For the purpose of considering the absence of a member of Parliament from the Parliament unauthorized 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 unauthorized 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 absent of a member of the Parliament without leave must be ‘for 90 consecutive sitting days’.
52. 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.
53. As mentioned above the word ‘consecutive’ means periods of time or events happen one after the other without inter-
54. The admitted position 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’.
55. 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 unauthorized 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 unauthorized absence”.
56. 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.
57. The above being the position, it can be said the High Court Division ought not have considered the absence of the appellant in the respective appeals and the members of the Parliament of their respective party unauthorized 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’.
58. 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.
59. 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.
60. As stated hereinbefore the writ petitioner approached the Court for a direction to the appellant 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 appellant 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 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 materialized by the writ of mandamus, quo-warranto or of any kind of writs under Article 102(2) of the Constitution.
61. 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.
62. 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.
63. In all probability it appears that the writ petitioner sought for quo-warranto on the premise that absence of the appellant of the respective appeals and the members of the Parliament of their respective party being not with leave of the Speaker was unauthorized 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.
64. 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.
65. 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 be in the true sense of the term be “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”.
66. The nature of the Rule obtained was mandamus. The High Court Division at the time of disposal of the Rule out 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 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 appropriat 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 illegally action.
67. 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 member of parliament” and were “purportedly holding” office in the Parliament, since the High Courl Division held that they did not cease to be the member of the parliament.
68. It has earlier been observed that because of the provision in Article 67(1)
68. 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 vacate. In the instant case the High Court Division itself had held that the appellant 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 member of the Parliament.