Proclamations

 

Proclamation of the 15th August, 1975

Proclamation of 15th Aug. 1975 provided
that—Proclamations, Martial Law Regulations and Orders shall have precedence
over the Constitution.

Constitution cannot be said to be still in
force as the supreme law of the country, untrammeled by the proclamation and
martial Law Regulation.

The Constitution though not abrogated, was
reduced to a position subordinate to the proclamation, inasmuch as, the
unamended and unsuspended constitutional provisions were kept in force and
allowed to continue subject to the proclamation and Martial Law Regulations or
Order and other orders and the Constitution was amended from time to time by
issuing Proclamations. It is difficult to accept the arguments in support of
the view that the Constitution as such is still in force as the supreme law of
the country, untrammeled by the proclamation and Martial Law Regulation.

So long the Constitution is in force as the
supreme law of the country, any act done or proceeding en by a person
purporting to function in connects with the affairs of the Republic or of a
local authority may be made the subject-matter of review by the High Court in
exercise of its writ jurisdiction. The moment the country is put under Martial
Law, the above noted constitutional provision along with civil laws of the
country loses its superior position.

State,
People’s Republic of Bangladesh Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

Martial Law
courts being creatures either of the proclamation or Martial Law regulation,
have the authority to try any offence made triable by such Courts.

All proceedings before a Martial Law Court
have been made immune from being challenged before a Court including the
Supreme Court.

By the amendment of Regulation No. 4, while
keeping the order, judgment, sentence or proceedings of a Martial Law Court
immune from interference from any Court, including the High Court and the
Supreme Court, a new provision was inserted as clause (8). It puts a bar to the
effect that no Court, including the High Court and the Supreme Court, shall
call for the records of the proceedings of any Martial Law Court for any purpose
whatsoever. From the above noted provisions it appears that the proceedings
before a Martial Law Court has Li protected from being challenged before any
Court including the High Court and the Supreme Court.

Stale,
People’s Republic of Bangladesh Vs. Haji Joynal Abedin (1980)32 DLR (AD) 110.

 

The first Proclamation dated 20.8.75
suspended Article 48 (relating to election of the president) and Article
55(relating to the Cabinet) and modified Article 148 and Form I of the 3rd.
Schedule (relating to Presidents oath of office); except these the Constitution
of Bangladesh as it stood then was kept intact.

Stale,
People’s Republic of Bangladesh Vs. Haji Joynal Abedin (1980)32 DLR (AD) 110.

 

The Constitution and the Martial Law
Regulations and Orders (and other orders) were under this proclamation intended
to co-exist neither claiming to be superior to the other.

Clause(g) of Proclamation of 20.8.75 is the
Ouster clause and seeks to oust the jurisdiction of all courts including the
Supreme Court to call in question or declare illegal or void this Proclamation
or any Martial Law Regulation or Order (or other orders) made by the President
in pursuance thereof.

Stale,
People’s Republic of Bangladesh Vs. Haji Joynal Abedin (1980)32 DLR (AD) 110.

 

Proclamation
of the 20th August, 1975 clauses (d)(e) and (g)—

Supremacy of the Constitution is not
unqualified. It stands so far it is not unaffected by the proclamation.

No court including the Supreme Court has any power
to call in question the Proclamation, or any Regulation or Order (issued under
the authority of Proclamation).

Halima
Khatum Vs. Bangladesh (1978) 30 DLR (SC) 209.

 

—And with
regard to such matters the ouster of the courts is total.

Courts are concerned with the administration
of law as it stands, whether that law is considered as a just or unjust law,
with which matter the courts have no concern.

Halima Khatum Vs. Bangladesh (1978) 30 DLR
(SC) 209.

 

Second
Proclamation of 8th Nov. 1975—Its salient features

Proclamation of the 8th November, 1975-(here-
in after called the Second Proclamation) which is made by the President of the
Republic would show that the President realized the necessity of retaining
legislative authority and for this purpose the President assumed the powers of
the Chief Martial Law Administrator the Salient features of which arc (i)
Martial Law Regulation and Orders shall be made by the Chief Martial Law
Administrator and (ii) the Martial Law Regulations and Orders enforced before
the proclamation shall be deemed to have been made by the Chief Martial Law
Administrator and they could be amended and repealed only by the Chief Martial
law Administrator, (iii) The Parliament stood dissolved by this Proclamation
and dissolution dated back to the 6th November, 1975 and general election for the
Parliament was to be held before the end of February 1977. (iv) The person
holding office such as Vice-President, Speaker, Deputy Speaker, Ministers,
Ministers of State, Deputy Ministers and Whips at the time of the Proclamation
were deemed to have ceased to hold office from the 6th November, 1975, (v) An
Ordinance promulgated by the President shall be of unlimited duration, (vi) The
provisions of Article 48 of Constitution relating to the election of the
president shall remain suspended, (vii) Part VI A of the Constitution stood
omitted (viii) this Proclamation could be amended by Order by the Chief Martial
Law Administrator.

State,
Bangladesh Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

Three
Proclamations in Bangladesh

First Proclamation on 20.8.75 by Khandker
Mostaque the President, Second Proclamation on 8.11.75 and Third Proclamation
on 29.11.76 by Mr. Justice AM Sayem the President.

Md. Khalilur
Raman Vs. The State (1979) 31 DLR 50
.

Effect of 3
Proclamation-
Constitution continued to operate except certain parts along with
the ML Regulations for the purpose of administration.

Md. Khalilur
Rahman Vs. The State (1979) 31 DLR 50

 

Proclamation
of 20th August 1975, Arts. (D), (E) and (G).

Proclamation— Martial Law Regulations, Orders
are protected from challenge by any court by (d), (e) and (g) of the
Proclamation of 20.8.7 these are immune from challenge by any court subject to
the condition that if the actions of the authorities from challenge by any
courts, s:’, – the condition that if the actions of the authorities a without
jurisdiction and malafide, immunity can’ longer be claimed.

Khandker
Moshtaque Ahmed Vs. Govt. of Bangladesh (1981) 33 DLR (HCD) 348

 

Proclamation
of the 6th April, 1979.

Both the last Proclamation of Martial Law Act
I of 1979 saving Martial Law was issued on same day, i.e. on 6th April, 1979.
The specific period ascribed in the last Martial Law Proclamation – saving all
Martial Law Proclamations, F – Orders, acts and actions however extended period
from date and time of the withdrawal of Martial Law on 6th April up to 9th
April, 1979.

Rezaul Karim
Bhuiyan Vs. Govt. of Bangladesh (1981) DLR (AD) 358
.

 

Proclamation
dated 7.4.79. Clause (f).

Sessions Judge’s order for retrial of the ca
which had been disposed of after the commencing day (7.4.79) is without
jurisdiction since he had jurisdiction in respect of case tried and disposed of
fore the commencing day.

Sabdar
Rahman Khan The State (1983) 35 DLR 108
.

 

Proclamation:
MLR

No court shall call in question or declare as
gal the Proclamation or any MLR or Order made by the Chief ML Administrator.

Kh.
Ehteshamuddin Ahmed @ Iqbal Vs. Bangladesh & Ors. (1981) 33 DLR (AD) 154.

With the lifting of ML and revocation of the
Proclamations Ouster of jurisdiction of superior Courts remains operative.

Kh.
Ehteshamuddin Ahmed @ Iqbal Vs. Bangladesh & Ors. (1981) 33 DLR (AD) 154.

 

Proclamation
of Martial Law on 24.3.82.Clause (4). Sub-Clauses (1) & (2)

Powers and jurisdiction exercisable by the
High Court Div. and Appellate Div. of the Supreme Court of Bangladesh.

Bangladesh
Vs. Md. Salimullah (1983)35 DLR (AD) 1
.

With the suspension of the Constitution by
the Proclamation, the HC Div. writ jurisdiction is i.e. So appeals against HC
Div’s judgment in writer to the Appellate Division also abate.

Bangladesh
vs. Md. Salimullah (1983)35 DLR (AD) 1.

New law coming into effect after judgment is
rendered Effect-Law operates prospectively unless it is otherwise provided in
the law.

Bangladesh vs. Md. Sallimullah (1983) 35 DLR
(AD) 1.

 

Proclamation
of 24th March (1982)

Clause (g)—Special
leave application pending in App. Div. abates under clause (g) of the
Proclamation and this does not affect the HC Div. Judgment.

Bangladesh
Vs. Md. Salimullah (1983) 35 DLR (AD) 1.

With the
abatement of the special leave application in the AD, the effect is HC Div:
judgment stands and does not abate.

Bangladesh
Vs. Md. Salimullah (1983) 35 DLR (AD) 1.

When an
appeal by certificate or by special leave becoms pending before the AD of the
Supreme Court, judgment, under appeal along with the writ application also
becomes sub-judice.

Writ application against judgment of the HC Div.
in connection with appeal before the Appellate Div.—Effect is HC Div s judgment
is subjudice.

Bangladesh
Vs. Md. Salimullah (1983) 35 DLR (AD) 1.

Consequences
which follow when the appeal before the App. Division is either dismissed or
allowed:-

If the appeal is dismissed, the relevant
judgment of the High Court Division retains its finality and consequently the
writ application concerned is also finally disposed of. But if the appeal is
allowed, then the judgment of the High Court Division is either set aside or
modified, and accordingly, the writ application also stands finally disposed
of.

Bangladesh
Vs. Md. Salimullah (1983) 35 DLR (AD) 1.

 

Proclamation
of Martial Law (dated 24.3.82) Para 1(1) of the Schedule, dispensation of Govt.
land- when done by CMLA that cannot be questioned by the Court.

Memos. of 29th June and 8th July, 1982
effectively transfer the Government markets to the Dhaka Municipal Corporation.

Dhaka Municipal Corporation vs. Alhaj Md. Ruhul
Amin (1983) 35 DLR 482
.

 

Proclamation
(Amendment) Order, 1977, (P0 I of 1977)

Validated all orders etc. passed by the
President or CMLA. Therefore vires of clause(2) of Regulation 3 of MLRI of 1975
nor any order passed under clause (b) transferring a case to a Special Martial
Law Court can be questioned.

State,
People’s Republic of Bangladesh Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

By the Proclamation (Amendment) Order, 1977
(Proclamation) Order No. I of 1977) all orders made, acts and things done, and
actions and proceedings taken, or purported to have been made, done or taken by
the President or the Chief Martial Law Administration by any other person or
authority, were validated. In view of the provisions of law the irresistible
conclusion is that neither vires of clause (2) of Regulation No. 3 of Martial
Law Regulation No. 1 of 1975 nor any order passed within the language of clause
(b) transferring a case to a Special Martial Law Court can be challenged in any
Court of law.

Per KM Sobhan, J (contra)—The administrative
activities of the country are to be guided both by the Constitutional
Legislations as well as Martial Law Regulations and Orders. In the event,
however, of a conflict between the two, under clause (d), Martial Law
Regulations and Orders are to have precedence.

Martial Law Courts are amenable to the writ
jurisdiction of the High Court which jurisdiction can be ousted when (i) M.L.
Courts are properly constituted: (ii) accused are subject to M.L. Courts; (iii)
and the offences are triable by M.L. Courts only.

State,
Bangladesh vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

(Protection
of Evacuee Property) Ordinance (XVIII of 1948)

Pakistan (Economic Rehabilitation) Ordinance
(XIX of 1948) Read with Supplementary Instrument of Accession, 1949.

Clause 4 of the Instrument of Accession.

Evacuee Laws—Evacuee laws enacted by Pakistan
validly extends to the former State of Khairpur.

Held: Clause 4 of
the Supplementary Instrument was intended to confer on the Federal Legislature
of Pakistan power to enact evacuee laws in relation to Khairpur State. The
Pakistan Ordinance XVIII of 1948 and Pakistan Ordinance XIX of i943 and the
various Ordinances and Acts which amended or replaced them from time to time
were valid.

Fatoomal Vs.
Reh. Commissioner (1969) 21 DLR (SC) 291.