Proclamation by Government of Bangladesh at
Mujibnagar on 10.4.71.
Laws in
force in former E.P. before 25.3.71 would continue to operate subject to
changes
It is seen that on 10th April, 1971 the
Government of Bangladesh at Mujib Nagar issued Proclamation of Independence. In
pursuance of the Proclamation of Independence and Laws Continuance Enforcement
Order all laws that were in force in erstwhile East Pakistan before 25th March,
1971 should continue to be in force with such consequential changes as might be
necessary on account of the creation of the State of Bangladesh.
Md. Yahya
Vs. Government of Bangladesh (1983) 35 DLR 82.
Proclamation
of Independence and Martial Law Regulation—On the 16th March, 1971
Bangladesh proclaimed independence and a proclamation was issued to that effect
on 10th day of April, 1971 from Mujib Nagar.
Mullick
Brothers, Appellant. Vs. Income Tax officer and another—Respondents. (1979) 31
DLR (AD) 165.
The Proclamation having been issued on the
18th April, 1971 and having come into existence on the 26th March, 1971 and the
President of the Republic being responsible for discharging all the executive
and legislative powers and only those laws which were not inconsistent with the
Proclamation of Independence having been continued in force, the irresistible
conclusion is that the Regulation made by the authority against whose authority
the Proclamation of Independence is directed could not legally legislate for
Bangladesh if such legislation was inconsistent with the Proclamation of
Independence.
Mullick
Brothers Vs. Income Tax Officer (1979) 31 DLR (AD) 165.
Martial Law
as distinguished from law passed under the will of the people:
The Martial Law Regulations promulgated by
the Martial Law Regime lack the trappings of law. It is issued by one person
who arrogates to himself all the State powers on the basis of force of arms and
commands obedience to him by the force emanating from the military power.
Law, as it is understood in jurisprudence,
draws its authority from the will of the people of a country and absence of the
expression of that will or rather silencing that will of the people through the
strength of military force cannot be substituted for the jural concept of law.
Martial Law comes into existence under certain conditions and it rules the
country by Regulation and Orders and such Regulation and Orders if are desired
to be continued are saved and preserved by a protective clause by constitution
framed by a Parliament.
Mullick
Brothers vs. Income Tax Office (1979) 31 DLR (AD) 165.
Martial is
anti-thesis of constitutional law—On return to constitutional government,
regulation as referred to in the definition clause of the] General Clauses Act
is a regulation made under constitutional instrument by a person or authority
empowered on that behalf in Bangladesh. – Law is an anti-thesis of any
Constitutional authority.
Mullick
Brothers, Appellant. Vs. Income Tax officer and another—Respondents. (1979) 31
DLR (AD) 165.
Tax assessed
under Martial law Relation not legally enforceable—Tax assessed
under the Regulation was not imposed under any law in force in Bangladesh
immediately before the commencement of the constitution. As has already been
noted it was not under any Act,
Ordinance, Order, Rule, Regulate Bye-law, Notification or other legal
Instrument The amendment of Regu1atioa” in the General Clauses Act shall be
deemed to have came into feet on the 26th day of March 1971. Article 83 the
Constitution provides as follows: “No Tax shall be levied or collected except1
or under he authority of an Act of Parliament”. Article 83 authorizes levies or
collection on under the authority of an Act of Parliament. Merely use of
procedural mechanism for collection of a tax provided in the Income Tax Act,
does not make the levy or collection under the authority of Act of Parliament.
Regulation being a Martial Law Regulation has
not been saved by any legal Instrument of People’s Republic o Bangladesh.
Mullick
Brothers Vs. Income Tax Officer (1979) 31 DIR (AD) 165.