Case No: Civil Appeal No. 66 of 1999
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Mr. Salahuddin Ahmed,,
Citation: V ADC (2008) 12
Case Year: 2008
Appellant: Government of Bangladesh
Respondent: Mr. Mostafizur Rahman
Subject: Review Petition,
Delivery Date: 2007-5-6
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
MM Ruhul Amin J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J
Md. Hassan Ameen J
Government of Bangladesh represented by the Secretary, Ministry of Home Affairs and another
Mr. Mostafizur Rahman
May 6, 2007.
Principles of law as to the scope of judicial review of a detention order and evaluation of the grounds of detention have been grossly violated causing error in the decision on merit and whether a restatement of the said principles has become necessary. …. (3)
After giving our considered thought we hold that the provision as to ratification and confirmation of the things done and actions taken, under such circumstances cannot give the acts any protection from being challenged in court of law for judicial review. ….. (25)
It seems to us that it has become more an academic exercise. The order of detention of the respondent was issued on 11.12.1990 and by the ultimate order of this Court it has been declared to have been passed without lawful authority as far back as on 01.03.1998. The submission made on behalf of the respondent that the present exercise in the matter has become mere academic. …. (27)
Cases Referred To-
Mostafizur Rahman Vs. Bangladesh, 51 DLR (AD) 1; Kudrat-E-Elahi Panir Vs. Bangladesh, 44 DLR (AD) 319; Anwar Hossain Vs. Mainul Hosein, 58 DLR (AD) 229; Jamuna Oil Company Vs. Chairman Labour Court, Chittagong Division and others, 6 MLR (AD) 123; Secretary, Ministry of Finance and others Vs. Md. Masdar Hossain, 7 BLC (AD) 92; Ekushey Television Ltd. Vs. Dr. Chowdhury Mahmood Hasan and others, 55 DLR (AD) 26.
Salauddin Ahmed, Additional Attorney General instructed by B. Hossain, Advocate-on- Record-For the Appellants.
Rafique-Ul-Hoque, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For the Respondent.
Civil Appeal No. 66 of 1999
(From the judgment and order dated 01.03.1998 passed by the Appellate Division in Civil Appeal No. 20 of 1992).
Amirul Kabir Chowdhury J.
At the instance of Bangladesh represented by the Secretary Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and Senior Assistant Secretary of the said Ministry this appeal by leave arises seeking review of the judgment and order 01 March 1998 passed in Civil Appeal No.20 of 1992 allowing the said appeal thereby setting aside majority judgment in Writ Petition No. 147 of 1991.
2. The said writ petition was filed by the respondent challenging the detention of Mr. Hussain Mohammad Ershad. former President of Bangladesh, after the fall of his Government of 06.12.1990 pursuant to an order of detention passed by the Government on 11.12.1990 under Section 3(1) (a) of the Special Powers Act, 1974 (Act No. XIV of 1974), briefly, the Act. A Division Bench of the High Court Division delivered a split judgment on 20.03.1991 whereupon the matter was referred to third Judge and the Rule Nisi issued in the writ petition finally discharged by majority judgment and order dated 09.12.1991.
3. Leave to appeal from the said judgment was granted on 30 April, 1992 to consider whether in the majority judgment the established principles of law as to the scope of judicial review of a detention order and evaluation of the grounds of detention have been grossly violated causing error in the decision on merit and whether a restatement of the said principles has become necessary.
4. While disapproving the views of a learned Judge with regard to the principles of law relating to judicial review of an order of preventive detention, it was observed in the impugned judgment:
"A morbid view of the law as quoted above will be clear to any discerning person acquainted with the development of the law. It must be made clear that the law which we have declared has never granted absolute power either to the Government or to the President to make an order of detention even in the circumstances mentioned in the judgment nor it is the law that the satisfaction upon which an order of detention is made is immune from challenge. The power of the Supreme Court in making scrutiny of executive acts never recedes to the background, as observed by the learned Judge so long as the constitution remains operative. The maintenance of law and order, public peace, public safety and security are undisputedly concerns of the State and the Government know best to preserve them, but the Court's concern in a case of preventive detention is to see whether the person is being detained without lawful authority or in an unlawful manner. The authority can never, justify an order of preventive detention by merely saying that the action was taken in the interest of public safety and public order. It has to satisfy the High Court Division which is an obligation cast upon the Court by the Constitution, that there were materials on record as would satisfy a reasonable person to justify the order of detention."
5. As regards the impugned order of detention it was observed:
"The Government was apparently anticipating threat to public safety and public order not from the detenu but from the students in case of their proposed march towards the Cantonment. In order to avert such prejudicial acts by the protesters the Government passed the order of detention against the detenu. It might have been a necessary and situational decision hurriedly taken by the newly installed Government in the interest of maintaining law and order but it cannot be justified as a legal order under the Act in a Court of law after the din and bustle have died down because it was not an order made to prevent the detenu but to prevent others from committing prejudicial acts. It can be imagined that the measure was taken to save the situation, most probably honestly, but the law, i.e. Section 3 of the Act was not saved, it became a casualty. The action of the Government taken in an extra-ordinary situation at that time might have been justified on the doctrine of necessity but it would never qualify as a legal decision under the Act."
6. Seeking review of the judgment of this Division the appellants, as already mentioned above preferred this appeal.
7. Leave was granted to consider the submissions that the judgment of this Division has been delivered per incuriam without any consideration of the Eleventh Amendment to the Constitution which has ratified and confirmed all orders made, acts and things done and actions taken or purported to have been made, done or taken between 06.12.1990 to 18.09.1991.
8. Mr. Salauddin Ahmed, learned Additional Attorney General appearing in support of the appeal reiterated the submissions made earlier at the time of granting leave.
9. He contended further that through inadvertence the provision of the Constitution (Eleventh Amendment) Act, 1991, in short, Eleventh Amendment was not brought to the notice of the Court and that the decision stands contrary to a provision of the Constitution and therefore a review of the Judgment is essential. Expanding his contention the learned Additional Attorney General submits that in view of the provision of the Eleventh Amendment all acts done while Mr. Justice Shahabuddin Ahmed was exercising powers of the Acting President being ratified according to law, the order challenged in the writ petition is to be deemed to have been ratified legally and done according to law and as such the judgment of this Division should be reviewed.
10. Referring to the doctrine of necessity the learned Additional Attorney General referred to various observations made in the case of Mostafizur Rahman Vs. Bangladesh reported in 51 DLR (AD) 1 i.e. the case out of which this appeal has arisen. He emphasizes that the doctrine of necessity is applicable in the present case to justify issuance of the order of detention in view of the law and order situation prevailing during the period. In this connection he has also referred to the decision in the reference by Governor General, Pakistan reported in 7 DLR (FC) 395.
11. Lastly the learned Additional Attorney General contended that there being grave situation prevailing in the country during the period in question the Government was obliged to issue the order of detention and it being an order made by the then Acting President which stands ratified by the Eleventh Amendment of the Constitution, the said order could neither be challenged nor it could be set a side under the law. In such circumstances, according to him, the appellant felt constrained to seek review of the judgment to keep the slate of Constitutional journey clean.
12. Mr. Rafique-Ul Hoque learned Counsel appearing for the respondent opposed the appeal.
13. He submits that review is not rehearing. In this connection he also refers to 51 DLR (AD) 1 and submits that the answer to the main thrust now insisted upon by the appellant after such long time shall be available in the impugned judgment.
14. He further submits that a great constitutional question raised so much late by the appellants cannot be decided in a review petition like the present one and according to him it would be merely an academic exercise.
15. He further submits that consistent view of this court is that for academic purpose only a constitutional point shall not be decided unless called upon to decide the question on merit and as such according to him this court on principle should not decide any such question as to the Eleventh Amendment of the Constitution and it does not call upon on any legal ground the question decided on merit i.e. as to the legality of the order of detention.
16. Mr. Huq has further gone to challenge the legally of the Eleventh Amendment itself and found fault even with the appointment of Mr. Justice Shahabuddin Ahmed the then Chief Justice of Bangladesh as Vice President of the country and according to him, the appointment it self was illegal and he submits that to ratify the said illegal appointment, the Eleventh Amendment of the Constitution Act was promulgated.
17. We have considered the submission made on behalf of the parties.
18. In this appeal we are required to consider the contention of the appellant that in view of failure to consider the Eleventh Amendment of the Constitution ratifying and confirming all orders made, acts and things done between 06.12.1990 to 10, 09.1991 the judgment of this court is required to be reviewed as the aforesaid Eleventh Amendment now being pointed out to the Court has not been considered in the judgment.
19. We are further required to consider the submissions that the action of the appellant in an extra-ordinary situation at the relevant time might have necessitated passing of the order of detention on the doctrine of necessity.
20. Another moot question to be decided is as to whether the contentions raised before us now by the appellants call for review of the judgment of this court.
21. It has been persistently submitted on behalf of the appellants that if the Eleventh Amendment was considered the decision of this Court would have been different and as such the review is essential and moreso to put the journey of the judiciary in right track.
22. In this connection the relevant provision of the Constitution (Eleventh Amendment) Act, 1991 is quoted below :-
"21. 1) The appointment of, and the administration of oath to the Chief Justice of Bangladesh as Vice President on the 21st day of Agrahayan, 1397 B.S. corresponding to the 6th day of December, 1990, and the registration tendered to him by the then President and all powers exercised, all laws and Ordinances made and all orders made, acts and things done and actions taken, or purported to have been made, done or taken by the said Vice President acting a President during the period between the 21st day of Agrahayan, 1397 B.S. corresponding to the 6th day of December, 1990, and the date of commencement of the Constitution (Eleventh Amendment) Act, 1991 (Act XXIV of 1991) (both days inclusive) or till the new President elected under article 48 (1) of the Constitution has entered upon his office (Whichever is later), are hereby ratified and confirmed and declared to have been validly made, administered, tendered, exercised, done and taken according to law."
23. Taking cue from the aforesaid provision the learned Additional Attorney General submits that the order of detention of the detenu Mr. H. M. Ershad being made within the period of 6.12.1990 to 18.09.1991 i.e. the date of commencement of the Eleventh Amendment and in view of the above provision of ratification and confirmation of the acts done by the Acting President as such it is immune and even beyond judicial review. In order to consider the aforesaid submission let us put in juxtaposition the relevant provision of the Constitution (Fifth Amendment) Act 1979 (Act 1 of 1979) which runs as follows:
"18. All Proclamations, Proclamation Orders, Martial Law Regulations, Martial Law Orders and other laws made during the period between the 15th August, 1975, and the 9th April, 1979 (both days inclusive), all amendments, additions, modifications, substitutions and omissions made in this Constitutions and said period by any such Proclamation, all order made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by any person or authority during the said period in exercise of the powers derived or purported to have been derived from any such Proclamation, Martial Law Regulation, Martial Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, are hereby ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever."
24. If the aforesaid Fifth Amendment Act and the Eleventh Amendment Act are examined closely it would be evident that in the Fifth Amendment Act besides ratifying and confirming the acts and things done during the period in question, it has been further provided that the said actions "shall not be called in question in or before any court, tribunal or authority on any ground whatsoever". But in the Eleventh Amendment Act the aforesaid bar or ouster provision is conspicuously absent. The legislature i.e. the then acting President Mr. Justice Shahabuddin Ahmed who adored the coveted post of the Chief Justice of this Court twice, in our opinion, in his wisdom did not intentionally put the taboo and thus did not feel inclined to close the doors of the citizens to take shelter of the Court of law to scrutinize judicially the actions taken and things done by him in his capacity as acting President.
25. After giving our considered though we hold that the provision as to ratification and confirmation of the things done and actions taken, under such circumstances cannot give the acts any protection from being challenged in court of law for judicial review.
26. The impugned judgment by this court was pronounced on 01.03.1998 in Civil Appeal No. 20 of 1992. Today, by now, 15 (fifteen) years have already elapsed. We are afraid that after lapse of such a long period whether there is any reasonable necessity in filing this appeal.
27. It seems to us that it has become more an academic exercise. The order of detention of the respondent was issued on 11.12.1990 and by the ultimate order of this Court it has been declared to have been passed without lawful authority as far back as on 01.03.1998. The submission made on behalf of the respondent that the present exercise in the matter has become mere academic, according to us, is not in such circumstances bereft of substance.
28. In this connection the observation in the case of Kudrat-E-Elahi Panir Vs. Bangladesh 44 DLR (AD) 319 (per ATM Afzal J) may be referred to wherein it has been mentioned “the Court does not answer merely academic question but confines itself only to the point/points which are strictly necessary to be decided for the disposal of the matter before it. This should be more so when Constitutional question are involved and the Court should be ever discreet in such matters."
29. It has further been observed in the Case of Anwar Hossain Vs. Mainul Hosein reported in 58 DLR(AD) 229 (per MM Ruhul Amin J):-
"24. We have already indicated that the learned Counsel for the appellant submitted that since the Rules have become infructuous for the reason that Mr. Anwar Hossain is no longer a Minister, a decision on the interpretation of Article 147(3) of the Constitution would be merely academic and the Courts are and should be reluctant to decide a constitution point merely as a matter of academic importance."
30. Taking into consideration of the observations noticed above and in the facts and circumstances of the case we are of the view that the subject matter of the appeal being an order of detention dated 11.12.1990 which has been set at thought on 01.03.1998, the challenge now made by the appellant calling in question the aforesaid decision in this appeal is nothing but an unnecessary academic exercise not calling for our interference.
31. While going through the order of granting leave this Court appears to have considered the submission of the learned Attorney General to the effect that, having found (by the Appellate Division) that the action of the Government taken in an extra-ordinary situation at that time might have been justified on the doctrine of necessity this court ought not to have declared the order of detention to be without lawful authority.
32. We have again perused the impugned judgment of this Court dated 01.03.1998 wherein it was mentioned "the action of the Government taken in an extra-ordinary situation at that time might have been justified on the doctrine of necessity but it would never qualify as a legal decision under the Act" (emphasis is ours). One of the grounds for granting leave therefore appears to be that in view of observation of this court itself that the action of the Government taken in extra-ordinary situation prevailing at that time might had been justified on the doctrine of necessity and that this court itself found so. But in fact the observation of this court made in the impugned judgment has not been correctly represented, since this court clearly observed that the plea of justification of taking action by the appellant on the doctrine of necessity 'would never qualify as a legal decision under the Act.'
33. Now let us examine the scope of review as in this case sought for by the appellants. The relevant provision of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 is quoted below:-
ORDER XXVI REVIEW
"1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record".
34. Let us also quote Order 47 rule 1 of the Code of Civil Procedure which runs as follows:
ORDER XLVII REVIEW
"1. (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
35. On perusal of the judgment of this Court dated 01.03.1998 it appears that most of the submissions now raised by the appellant touching the necessity of the order of detention of the respondent has been answered in the impugned judgment. In defining the scope of a review of this Court in the case of General Manager Jamuna Oil Company Vs. Chairman Labour Court, Chittagong Division and others reported in 6 MLR (AD) 123 it was held:-
"None of the grounds taken for review in this petition and urged is a ground for review of the judgment passed by this Division in the aforementioned two appeals. Rather it seems that the petitioner pressing the grounds wants us to sit over our judgments as a Court of Appeal simply because we failed to get in the appeal after a full-fledged argument cannot be obtained in a review petition like the present one which in a circuitous way calls for rehearing of the appeals. Reconsideration of points wrongly or rightly considered in an appeal decided by this Division without betraying apparent error on the face of record is no ground of review of a judgment."
36. In the case of Secretary, Ministry of Finance and others Vs. Md. Masdar Hossain reported in 7 BLC (AD) 92 it has further been held:-
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies where an error apparent on the face of the record exists. It is not a rehearing of the main appeal. Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected by the leave but does not include the correction of any erroneous view of law taken by the Court. Since this Court in its judgment dated 02.12.1999 has considered the grounds of this appeal and since we find that there in no error apparent on the face of the record we do not find any reason to reconsider direction Nos.4 and 6. Even reconsideration of points wrongly or rightly considered in an appeal decided by this Division without any error apparent on the face of the record is no ground for review of a judgment. Reference in this regard may be made to the Case of GM Jamuna Oil Company Ltd. Vs. Chairman, Labour Court, 53 DLR (AD) 28. This Court has, on an interpretation of the relevant provisions of the Constitution given the impugned directions which are commensurate with the clear, unambiguous and unequivocal provisions of the Constitution and the directions are in fulfillment of a Constitutional mandate which is obligatory for all, parliament, executive and the judiciary, to follow and implement."
37. In the case of Ekushey Television Ltd. Vs. Dr. Chowdhury Mahmood Hasan and others reported in 55 DLR (AD) 26 it has been observed:
"A review lies only when the alleged error in the judgment is so evident that it can be established without going into elaborate arguments and the factual matrix of the case. It may be remembered that a review in counsel s mentation cannot justify review of the verdict. No doubt the court has constitutional power to review its decision but it does not undertake on the asking of the petitioners once conflicting claims have been settled by a decision of the court. The cases are reviewed strictly within the boundaries laid down by innumerable judgments of the jurisprudence, which are highly coherent in its interpretation and application.
There are certain general principles of review whose authority is universally acknowledged that ought not to be disregarded. The fundamental is that an error is necessary to be a ground for review but it must be one, which is apparent on the face of the record, and so obvious that keeping in on the record will be legally wrong. The contention that the court has gone wrong in the application of law to the facts or the exposition of law is erroneous (unless it lays down a bad law) or that inference is drawn on appraisal and appreciation of evidence is erroneous does not constitute valid grounds for review."
38. After considering the law, the facts and circumstances of the case, we are led to opinion that the appellants have failed to make out any case calling for the review prayed for as none of the ingredients as spelt out in Order 47 Rule 1 of the Code of Civil Procedure or Order XXVI Rule 1 of the Appellate Division Rules is present in this case to lay our hands to review the impugned judgment.
39. We are therefore of the opinion that in the instant case there is no reasonable ground to justify the action of the respondent on the doctrine of necessity since the impugned order of detention of the respondent was made, according to the appellants, with the apprehension that somebody else (the students community threatening to move to Senabhaban) may endanger public order due to some utterances of the detenu and as such this court in the impugned judgment found the order of detention to have been passed without lawful authority. The plea of doctrine of necessity is not warranted in the facts and circumstances.
40. We have given our anxious consideration to the submissions made on behalf of the parties and the materials on record and we are of the view that there is no ground to review the judgment of this court.
The appeal has no substance and should be dismissed.
Hence the appeal is dismissed without any order as to cost.