Mahbub Ahmed Chowdhury Vs. CEC and others [4 LNJ AD (2015) 1]

Case No: Civil petition for leave to appeal no. 2487 of 2010

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Mohamma Golam Kibria,,

Citation: 4 LNJ AD (2015) 1

Case Year: 2015

Appellant: Mahbub Ahmed Chowdhury

Respondent: The Chief Election Commissioner and others

Subject: Plenary Powers of legislation of the Parliament,

Delivery Date: 2011-01-23

SUPREME COURT OF BANGLADESH
APPELLATE DIVISION

(CIVIL)
 
A. B. M. Khairul Haque, CJ,
Md. Muzammel Hossain, J
S. K. Shinha, J

Judgment
23.01.2011
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Mahbub Ahmed Chowdhury
. . .Petitioner
-Versus-
The Chief Election Commissioner and others
. . . Respondents.
 

Constitution of Bangladesh, 1972
Article 26(2)
Parliament has plenary power of legislation over all subjects excepting those in respect of which the Constitution has delegated its power to some other authority or in respect of any such subject matter about which limitation has been imposed by the other provisions of the Constitution. In other words, the Plenary Powers of legislation of the Parliament are limited by the fundamental rights guaranteed by Part III of the Constitution. Therefore, Parliament cannot enact any legislation contrary to the provisions of the Part-III of the Constitution relating to fundamental rights. Article 26 has unequivocally envisages that all existing laws inconsistent to the provisions of Part III shall become void to the extent of such inconsistency. Further, clause (2) of Article 26 restricts the power of the Parliament in enacting any law inconsistent with the provisions of Part III of the Constitution and if any law is so made it shall to the extent of such inconsistency be void.                  . . . (14)

Constitution of Bangladesh, 1972
Article 135
It is the mandate of the Constitution under Article 135 that Parliament can not enact any law which empowers an authority subordinate to an authority by which a person who holds any civil post in the service of the Republic shall be dismissed or reduced in rank, inasmuch as, no law shall be made by the Parliament changing remuneration, privilege and other terms and conditions of a person holding or acting in any office to which the Article applies to the disadvantage of the holder of the aforesaid office during his terms of office.           … (17)

Constitution of Bangladesh, 1972
Article 65
The expression "subject to the provisions of this Constitution" mentioned in Article 65 of the Constitution means the provisions of Article 65 of the Constitution are to be interpreted subject to any other provisions of the Constitution containing limitations imposed upon the legislative and the constituent power of the Parliament as already discussed above. Where the legislative competence of the Parliament to enact a law is questioned one has to consider as to whether it has enacted any law inconsistent with provisions of Part III or any other provisions of the Constitution. If the answer is negative then there should not be any such question as to the legislative competence of the Parliament. The Court may ascertain the legislative policy from the provisions of the Act of Parliament including its preamble, scheme and even the subject matter of the legislation.             . . . (18)

Representation of People Order (PO No. 155 of 1972)
Articles 12 (3a) and 26
The provisions contained in clause (3a) of Article 12 of the Order of 1972 is a pre-election requirement of an independent candidate or any candidate nominated by a Political Party which is not in any way contradictory to the provisions of Article 26 of the said RPO because Article 26 conceived of an election process which requires an election under the RPO, 1972 shall be decided by secret ballot. In order to decide the eligibility or competency of a candidate seeking election to the Parliament for conducting free and fair election through a democratic process Article 12 of the RPO, 1972 was amended by inserting clause (3a) which is not at all ultra vires the provisions of the said Order of 1972 or any of the provisions of the Constitution of the People’s Republic of Bangladesh.       .... (24)

Constitution of Bangladesh, 1972
Article 124
The expression "subject to the provisions of this Constitution" in Article 124 of the Constitution indicates that the object of Article 124 is to empower the Parliament to make any law making provision with respect to all matters relating to or in connection with elections to Parliament for securing due Constitution of Parliament. But it does not exempt the Parliament from any of the limitations which are imposed by the other provisions of the Constitution upon its legislative power. . . . (39)

Constitution of Bangladesh, 1972
Articles 7 and 26
Representation of People Order (PO No. 155 of 1972)
Article 12(3a)
In the instant case we have seen that the provisions contained clause (3a) of Article 12 of the Representation of People Order, 1972 have not been enacted without any legislative competence nor is it in conflict with the other provisions of RPO, 1972 or any other provisions of law. The Appellate Division in the case reported in 41 DLR (AD) 165 judicially recognized Article 7 of our Constitution as the ‘pole star’ of the Constitution. Article 7 declared that any law inconsistent with the Constitution will be void to the extent of the inconsistency whereas Article 26 to the Constitution declared that all existing law inconsistent with the provisions of part III of the Constitution (fundamental right) is void to the extent of such inconsistency. Validity of a law is to be tested by the touchstone of the Constitution. In the instant case amendment of Article 12 by insertion of Clause (3a) to the RPO, 1972 has not been enacted in contravention of any of the provisions of the Constitution or any other provisions of law. We do not find any illegality in the provisions of clause (3a) of Article 12 of the Representation of People Order, 1972 providing that nomination paper of an independent candidate shall be submitted along with a list of signatures of one percent electors of the concerned constituency. In view of the above discussions and findings, we do not find any illegality in the impugned judgment and order passed by the High Court Division.            . . . (39 to 41)

Sajian Sing. Vs. State of Rajesthan, AIR 1965 SC 845; Kudrat-E-Elahi Panis. Vs. Ahsanullah, 44 DLR (AD) 319; Anwar Hossain Chowdhury Vs. Government of the People of Bangladesh and others; 41 DLR (AD) 165, Ashby Railway Carriage and Iron Co. Ltd. Vs. Rich (1875 LR 7 HL 653); BADC Vs. Shamsul Haque, 60 DLR (AD) 152; Full Chand Das Vs. Md. Hammad, 34 DLR (AD) 361 and Chamarbaugwalla  RMD Vs. Union of India 1957 SCR 930 ref.

For the Petitioner: Mr. Mohamma Golam Kibria, Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.
For the Respondents: None Represented

Civil petition for leave to appeal no. 2487 of 2010

JUDGMENT
 
Md. Muzammel Hossain, J: This petition for leave to appeal under Article 103 of the Constitution of People’s Republic of Bangladesh is directed against the judgment and order dated 16.08.2010 passed by a Division Bench of the High Court Division in Writ Petition No.8780 of 2008 discharging the Rule.

The present petitioner preferred Writ Petition No. 8780 of 2008 before the High Court Division stating, inter-alia, that he as an independent candidate, sought to contest the election of the Parliament from constituency No. 185, Dhaka which was scheduled to be held on 22.01.2007, but the same could not be held due to declaration of Emergency by the Hon'ble President of the Republic. Subsequently, the election schedule was declared by the Chief Election Commissioner to be held on 18.12.2008 and according to the election schedule nomination paper was to be submitted on 20.11.2008. In the meantime, in exercise of power as provided under Article 93(1) of the constitution of the People's Republic of Bangladesh, the President promulgated the Representation of the People (Amendment) Ordinance, 2008 (Ordinance No. 42 of 2008) by amending Representation of the People Order, 1972 (P.O. No. 155 of 1972) which was published in the Official Gazette on 19.08.2008 giving its effect on the same date. Due to this amendment Article 12 of the Representation of the People Order, 1972 (hereinafter referred to as RPO, 1972) has undergone a change by inserting clause (3a) and clause (3b) after clause (3).

The writ petitioner challenged the legality of the amendment by inserting clause (3a) after clause (3) of Article 12 of the RPO, 1972 in Writ Petition No. 8780 of 2008 alleging that it was violative of Articles 26 and 12(1) of P.O. No. 155 of 1972 and Articles 29 and 31 of the Constitution of the People's Republic of Bangladesh and a Rule Nisi was issued on the following terms:
 
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why clause (3a) of Article 12 of the Representation of the People Order, 1972 inserted by Ordinance No. 42 of 2008 providing that nomination paper of an independent candidate shall be delivered along with a list of signatures of one percent electors of the concerned constituency shall not be declared violative of the provisions of Articles 26 and 12(1) of the said Representation of the People Order, 1972 and also violative of Articles 27 and 31 of the Constitution of the People's Republic of Bangladesh and as such is of no legal effect and / or such other or further order or orders passed as to this court may seem fit and proper."
But the Rule could not be heard inspite of the best effort made by the petitioner and the Government having placed the said Ordinance before the Parliament got it ratified by the Representation of the People Order (Amendment) Act, 2009 (Act 13 of 2009). Subsequently, the writ petitioner filed an application before the High Court Division on 30.06.2009 with a prayer to issue a Rule afresh. Thereafter a fresh Rule was issued by the High Court Division in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the provision of clause (3a) of Article 12 of the Representation of the People Order, 1972 providing that nomination paper of an independent candidate shall be submitted along with a list of signatures of one percent electors of the concerned constituency shall not be declared to be violative of the provisions of Articles 12(1) and 26 of the said Representation of People Order, 1972 and also violative of Articles 27, 31, 66 and 124 of the Constitution of the People's Republic of Bangladesh and / or such other or further order or orders passed as to this court may seem fit and proper."

A Division Bench of the High Court Division by the impugned judgment and order dated 16.08.2010 discharged the Rule. Being aggrieved by the aforesaid judgment and order the petitioner preferred the instant Civil Petition for Leave to Appeal before this Court.  

Mr. Mohammad Golam Kibria, the learned Advocate appearing for the petitioner submits that the High Court Division erred in law in passing the impugned judgment and order discharging the Rule having referred to the preamble and Article 7 of the Constitution but passed the impugned judgment and order with inconsistent and contradictory decision by holding in effect the supremacy of the law of parliament over the constitution and as such the impugned judgment and order is liable to be set aside. He then submits that the High Court Division in passing the impugned judgment and order imposed an additional qualification in the case of a voter who wishes to be an independent candidate in the election to the Parliament must also satisfy an additional qualification as laid down in Clause 3(a) of Article 12 of the President's Order No. 155 of 1972 and also holding that Article 12 (3a) of the aforesaid order cannot be derogative to Articles 66 and 124 of the Constitution of the People’s Republic of Bangladesh and thereby the High Court Division has taken a partisan view of the whole matter based on a prejudicial and wrong presumption about an independent candidate and thus committed an error of law in discharging the Rule. Mr. Kibria submits that the High Court Division by holding that the submission of nomination paper in election to the Parliament is a pre-election process and putting signatures of one percent electors of the concerned constituency on a mere blank paper giving support to a candidate cannot be put at par to the actual voting right to be exercised by an elector on the day of election by casting vote by inserting the ballot paper in the ballot box, and moreover, such list of signatures of one percent (1%) of the electors of the concerned constituency is the expression of mandate to support the competent candidate, and neither our constitution nor the P.O. No. 155 of 1972 requires such expression to be veiled in secrecy as provided under Article 26 of the P.O. No. 155 of 1972, has fully misconstrued the constitution and the RPO, 1972 and as such the High Court Division erred in law in discharging the Rule. Mr. Kibria then submits that the High Court Division by ignoring the fact that every citizen recorded as voter can participate in contesting the election held for the Parliament subject to the Rules of Election as framed by the Election Commission and the Rules such framed must adhere to the provisions of the Constitution to the effect that a voter can participate in the election as a candidate and for the purpose as aforesaid the Rules must be consistent with the provisions of the Constitution and they must not commit excess in making a candidature impossible to participate in the election, erred in law in discharging the Rule. He also submits that the High Court Division by not taking into consideration that there is no specific provision in the Constitution that the candidate must belong to a particular or specific political party, nor an independent candidate has been debarred to participate in the election and that the provision of obtaining the signatures of 1% voter of the constituency by an independent candidate in support of candidature is an impossibility and a bar for him altogether to participate in the election, specially when there is no provision in the constitution to that effect, erred in law in discharging the Rule. He further asserts that the High Court Division by wrongly comparing the submission of nomination paper of an independent candidate for election to the Parliament with the conditions laid down in Article 90(B)(1)(a)(ii) and 90 B(1)(b)(iv) of the RPO 1972 for registration of political parties with the Election Commission, erred in law in discharging the Rule. He finally submits that the High Court Division by holding in a civil matter that since the petitioner has failed to show beyond reasonable doubt that the impugned provision has transgressed the limit laid down by the organic law of the constitution it must be allowed to stand and erred in law in discharging the Rule. 

We have heard the learned Advocate for the petitioner, perused the impugned judgment and order dated 16.08.2008 passed by the High Court Division in Writ Petition No. 8780 of 2008 and other materials available on record. The pertinent question in this case is whether the amendment of the President Order No. 155 of 1972 by inserting Clause 3(a) of Article 12 of the RPO, 1972 providing that nomination paper of an independent candidate shall be submitted along with signatures of one percent (1%) electors of the concerned constituency be ultra vires, violative of the provisions of Articles 26 and 12(1) of the Representation of People Order, 1972 and also violative of Articles 27, 31, 66 and 124 of the Constitution of the People’s Republic of Bangladesh. In this context it is pertinent to refer to the preamble to the Representation of the People Order, 1972 which reads as under:

"WHEREAS it is necessary to provide for the conduct of elections to Parliament and for matters connected therewith and incidental thereto;
Now, THEREFORE in pursuance to the provisions of paragraph 3 of the Fourth SCHEDULE to the Constitution of the People's Republic of Bangladesh and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Orders:"

From the preamble it is clear that for the conduct of elections to the Parliament and for matters connected therewith and incidental thereto the RPO, 1972 has been promulgated.

In this context, we may profitably refer to Clause 3(a) and (3b) of Article 12 of the ROP, 1972 which reads as under:

“(3a) Every nomination paper under clause (2) shall be delivered along with the following documents namely:
(a)     in the case of an independent candidate a list of signature of one percent electors of the concerned constituency;
Provided that such list need not to be delivered if the independent candidate has previously been elected in any parliamentary election.
(b)     a certificate signed by the chairman or secretary or a person holding the equivalent rank on behalf of the registered political party stating that the candidate has been nominated by that party;
Provided that any registered political party may primarily nominate more than one candidate and if more than one candidate are nominated, the name of one nominated candidate shall be sent to the Returning Officer in writing before the scrutiny of the nomination papers.
(3b)  Every nomination paper under clause (2) shall be delivered along with an affidavit signed by the candidate which shall include the following information and particulars, namely-
(a)     an attested copy of the certificate of his highest educational qualification;
(b)     whether at present he is accused of any criminal offence or not;
(c)     whether he has any past criminal record, and if any, the judgment of the case;
(d)     description of his profession or business;
(e)     probable sources of his income;
(f)     a statement of property or rebt of his own or his dependents;
(g)     what promises he made before an election in which he was elected as a member in the past, and how many of those promises were fulfilled; and
(h)     the amount of loan received by him alone, or jointly or by his dependents from any bank or financial institution, and the amount of loan received by him from any bank or financial institution as a Chairman, Managing Director or Director thereof."

The RPO, 1972 was promulgated with the object to provide for the conduct of elections to Parliament and for matters connected therewith and incidental thereto. With the aforesaid purpose the RPO, 1972 has been promulgated. Article 12(1) of the aforesaid Order, 1972 provides that any elector of a constituency may propose or second for election to that constituency, the name of any person qualified to be a member under clause (1) of Article 66 of the Constitution. However, the proviso to clause 12(1) of the aforesaid Order enumerated a long list of grounds of disqualification of a person for election to a seat of a Member of the Parliament. Clause (2) of Article 12 of the RPO, 1972 describes the procedure by which proposal shall be made by a separate nomination paper in the prescribed form which shall be signed by the proposer and the seconder and shall contain a declaration signed by the candidate declaring that he has consented to the nomination and that he is not subject to any disqualification for being, or being elected as, a member of the Parliament and that a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder and that a declaration signed by the candidate that he is not a candidate for more than three constituencies. Clause (3) of Article 12 provides that every nomination paper shall be delivered by the candidate, or his proposer, or seconder to the Returning Officer or the Assistant Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt. Clause (3) of Article 12 in no uncertain terms postulates the procedure by which every nomination paper shall be delivered by, or on behalf of the candidate to the Returning Officer or the Assistant Returning Officer as the case may be. Whereas Article 26 of RPO, 1972 provides that election under this order shall be decided by secret ballot which reads as under:

"26. An election under this Order shall be decided by secret ballot and subject to the provisions of Article 27, every elector shall cast his vote by inserting, in accordance with the provisions of this Order, in the ballot box, a ballot paper in the prescribed form."

Moreover, Article 27 enumerates detailed provisions about the persons who are entitled to cast their votes by postal ballot and the procedures applicable thereto.

Article 66 of the Constitution of the People’s Republic of Bangladesh postulates qualifications and disqualifications of a person to be elected as a Member of the Parliament if he is a citizen of Bangladesh having attained the age of twenty-five years. Article 66(2) of the Constitution enumerates a long list of grounds of disqualifications of a person for election to the Parliament if he (a) is declared by a competent Court to be of unsound mind; (b) is an undischarged insolvent; (c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state; (d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; (e) has been convicted of any offence under the Bangladesh Collaborators (Special Tribunals) Order, 1972; (f) holds any office of profit in the service of the Republic other than an office which is declared by law not to be disqualified its holder; or (g) is disqualified for such election by or under any law.

From the preamble to the RPO, 1972 we have already noticed that the same has been enacted for the conduct of election to Parliament and for matters connected therewith and incidental thereto. Article 12(3) of the RPO, 1972 envisages the procedure by which a nomination paper shall be submitted by or in favour of the candidate to the Returning Officer or the Assistant Returning Officer. The RPO, 1972 has been enacted for conduct of elections to Parliament and for matters connected therewith. The Parliament being authorised to enact necessary legislations for smooth holding of Parliamentary elections and Article 124 of the Constitution of the People's Republic of Bangladesh empowers the Parliament to enact any law with respect to all matters relating to or in connection with election to Parliament which reads as under:

"124. Subject to the provisions of this Constitution, Parliament may by law make provision with respect to all matters relating to or in connection with elections to Parliament, including the delimitation of constituencies, the preparation of electoral rolls, the holding of elections, and all other matters necessary for securing the due Constitution of Parliament."

Parliament is competent to enact any law and also to make any amendment or modification, alteration or repeal of any law enacted by Parliament subject to the provisions of the Constitution which means it may do so relating to subjects within its legislative competence (Sajjan Sing –Versus- State of Rajesthan AIR 1965 SC 845).     

According to Article 65 of the Constitution legislative powers of the Republic vests in the Parliament subject to the provisions of the Constitution. Parliament has plannery power of legislation over all subjects excepting those in respect of which the Constitution has delegated its power to some other authority or in respect of any such subject matter about which limitation has been imposed by the other provisions of the Constitution. In other words, the Plenary Powers of legislation of the Parliament are limited by the fundamental rights guaranteed by Part III of the Constitution. Therefore, Parliament can not enact any legislation contrary to the provisions of the Part-III of the Constitution relating to fundamental rights. Article 26 has unequivocally envisages that all existing laws inconsistent to the provisions of Part III shall become void to the extent of such inconsistency. Further, clause (2) of Article 26 restricts the power of the Parliament in enacting any law inconsistent with the provisions of Part III of the Constitution and if any law is so made it shall to the extent of such inconsistency be void.  

As per provision of Article 59 of the Constitution the Local Government in every administrative unit of the Republic shall be entrusted to the elected bodies, composed of persons elected in accordance with law. In the case of Kudrat-E-Elahi Panir -Vs- Ahsanullah reported in 44 DLR (AD) 319 the Appellate Division of the Supreme Court held that on construction of Articles 59 and 60, read with Articles 9 and 11 of the Constitution and considering the origin, growth and development of Local Government Institutions at different levels of the Administration over one and a half centuries, it is found that Local Government is an integral part of the democratic polity of the country. ...... ........... ......... For an Institution to be a Local Government under the Constitution, two requirements are to be fulfilled. One is that a Local Government is constituted in an "administrative unit", and the other is that the Local Government is entrusted to a body composed of elected persons. An "administrative unit", as defined in Article 152(1), is a "district or other area designated by law for the purposes of Article 59". In the case of a district, no designation is necessary, but it is necessary in all other cases as was done in the case of unions and municipalities by Act IX of 1973.

The Appellate Division further observed that the other constitutional requirement for these local bodies is that they shall be entrusted to bodies "composed of persons elected in accordance with law". The existing local bodies are, therefore, required to be brought in line with Article 59 by replacing the non-elected persons by election.

It is the mandate of the Constitution under Article 135 that Parliament can not enact any law which empowers an authority subordinate to an authority by which a person who holds any civil post in the service of the Republic shall be dismissed or reduced in rank, inasmuch as, no law shall be made by the Parliament changing remuneration, privilege and other terms and conditions of a person holding or acting in any office to which the Article applies to the disadvantage of the holder of the aforesaid office during his terms of office.

The expression "subject to the provisions of this Constitution" mentioned in Article 65 of the Constitution means the provisions of Article 65 of the Constitution are to be interpreted subject to any other provisions of the Constitution containing limitations imposed upon the legislative and the constituent power of the Parliament as already discussed above. Where the legislative competence of the Parliament to enact a law is questioned one has to consider as to whether it has enacted any law inconsistent with provisions of Part III or any other provisions of the Constitution. If the answer is negative then there should not be any such question as to the legislative competence of the Parliament. The Court may ascertain the legislative policy from the provisions of the Act of Parliament including its preamble, scheme and even the subject matter of the legislation.

We have already discussed that the Parliament have within it's constitutional limitations plenary powers of legislation which include its power to legislate either absolutely or conditionally or it may authorize subordinate bodies to make bye-laws or regulations under a statute or it may enact permanent or temporary legislation or it may legislate either prospect-ively or retrospectively or it may legislate by reference or incorporation. Further the parliament in addition to its power of direct legislation it has power to amend, repeal, modify or alter any law within its legislative competence. The principles have been recognized by the Indian Supreme Court in the Case of Sajjat Sing -Vs- State of Rajsthan AIR 1965 SC 845. The validity of an Act of Parliament depends upon whether the Parliament has any power under the Constitution to enact such Act.

In the instant case the pertinent question before this Court is whether the Parliament by amending Article 12 of the RPO, 1972 inserted clause (3a) providing that nomination paper of an independent candidate shall be submitted along with a list of signatures of 1% electors of the concerned constituency being violative of the provisions of Articles 12 and 26 of the said Order of 1972 and also violative of Articles 27, 31, 66 and 124 of the Constitution of the People’s Republic of Bangladesh. The competence of the Parliament to make a law is to be determined with reference to the Constitutional Provisions relating to the power of the Parliament to enact law as they exist at the time of enactment of the same. In order to determine the true nature of a legislation challenged as to its legality the Court must look to the substance and not merely the form of the legislation. In doing so the Court has to examine the object of the legislation for the purpose of ascertaining the true character and the substance of the legislation and the class of subject of legislation to which it belongs. In order to examine the vires of a law or any enactment or an existing law the legislative powers of the Parliament being limited by the provisions of the Constitution a law enacted without legislative competence is a nullity. Clause (3a) of Article 12 of the RPO, 1972 was inserted by amendment of Article 12 Representation of the People (Amendment) Ordinance, 2008, adding some additional requirements in respect of an independent candidate while submitting nomination paper along with the same a list of signatures of one percent electors of the concerned constituency. By the same Ordinance, Chapter VIA under the heading "Registration of Political Parties with the Commission" was replaced by amendment wherein a special provision under Article 90A has been introduced requiring registration of any political party willing to participate in election under this Order with the Commission subject to the fulfillment of one of the conditions laid down in Article 90B(1) which provides that every political party shall fulfill one of the following conditions, namely:
  1. secured at least one seat with its electoral symbol in any parliame-ntary election held since the independence of Bangladesh; or
  2. secured five percent of total votes cast in the constituencies in which it’s candidates took part in any of the aforesaid parliamentary elections; or
  3. established a functional central office, by whatever name it may be called, with a central committee and district offices in at least ten administrative districts and offices in at least fifty Upazilas or Metropolitan Thanas.
In addition to complying with the aforesaid terms and conditions referred to in clause (1) (a) of Article 90B, the political party is required to comply with the other terms and conditions incorporating such specific provisions in it’s Constitution as mentioned in Article 90B(1)(b). Moreover, in order to be eligible to contest Parliamentary Election, the name of a candidate of a political party, has to be included in the panel nominated by the Central Parliamentary Body of the party from the panels prepared by the members of the Ward, Union, Thana, Upazila or District Committee, as the case may be of the concerned constituency. Article 90C has been inserted in the RPO, 1972 by the Representation of the People (Second Amendment) Ordinance, 2008 wherein certain grounds have been stated which disqualify a political party to be registered under chapter VIA of the RPO, 1972 including the objectives laid down in the constitution of the party are contrary to the provisions of the Constitution of the People's Republic of Bangladesh or any discriminations regarding religion, race, caste, language or sex or by any other activity it threatens to destroy communal harmony etc. Article 66 of the Constitution contains qualifications and disqu-alifications of a candidate for being elected as Member of Parliament which amongst others postulates that the candidate must be a citizen of Bangladesh who has attained the age of 25 years. A long list of disqualifications have been enumerated in Sub-Article (2) of Article 66 of the Constitution. According to the provisions of Article 124 of the Constitution of the People’s Republic of Bangladesh the Parliament by amending Article 12 of the RPO, 1972 inserted clause (3a) to Article 12 of the RPO, 1972 imposing certain conditions in respect of submissions of nomination of an independent candidate supported by a list of signatures of one percent electors of the concerned constituency and in case of a candidate of a Political Party a certificate signed by the Chairman or Secretary or a person holding the equivalent rank on behalf of the registered political party stating that the candidate has been nominated by the party.

We have already considered Article 26 of the Representation of People Order, 1972 which postulates that an election under this order shall be decided by secret ballot. The framers of the Constitution have consciously made provisions that fundamental rights enumerated in Part III of the Constitution are fully guaranteed. Article 26 of the Constitution provides that the state shall not make any law inconsistent with any provision of Part III of the Constitution and any law so made to the extent of such inconsistency be void. Article 27 of the Constitution guarantees equal protection to all citizens and thereby establishes equality before law. Whereas Article 31 guarantees right to protection of law and to be treated in accordance with law. Article 66(1) of the Constitution envisages the requisite qualificati-ons and disqualifications of a person to be elected as or to be a member of Parliament if he is a citizen of Bangladesh and has attained the age of 25 years. However, Sub-Clause (2) of Article 66 enumerated a long list of disqualifications for being a member of a Parliament. Article 124 enables the parliament to make any law with respect to all matters relating to or in connection with elections to Parliament including the de-limitation of constituencies, the preparation of electoral roles, the holding of elections and all other matters necessary for due constitution of Parliament.

This addition of clause (3a) to Article 12 of the Order of 1972 cannot be termed as ultra vires the Articles 12 and 26 of the Representation of the People Order, 1972 or Articles 27, 31, 66 and 124 of the Constitution. Because with the insertion of this provision the Legislature has intended to stop any whimsical, frivolous and malafide filing of nomination paper of a candidate in Parliamentary Election or participation with an ulterior motive to disrupt the normal election process in the constituency. Insertion of the aforesaid provisions by amendment of Article 12 of the RPO, 1972 is also to give impetus to the genuine independent candidate outside of a political party in any constituency of the Parliamentary election.

We are of the view that inclusion of such requirement is intended to have check on public expenditure and to watch and ensure that no public money is unnecessarily expended on such whimsical candidates. It is true that Article 26 of the Order of 1972 provides that an election shall be decided by a secret ballot subject to the provisions of Article 27. Of course Article 27 provides for postal ballots. It is our considered opinion that the provisions contained in clause (3a) of Article 12 of the Order of 1972 is a pre-election requirement of an independent candidate or any candidate nominated by a Political Party which is not in any way contradictory to the provisions of Article 26 of the said RPO because Article 26 conceived of an election process which requires an election under the RPO, 1972 shall be decided by secret ballot. In order to decide the eligibility or competency of a candidate seeking election to the Parliament for conducting free and fair election through a democratic process Article 12 of the RPO, 1972 was amended by inserting clause (3a) which is not at all ultra vires the provisions of the said Order of 1972 or any of the provisions of the Constitution of the People’s Republic of Bangladesh.

Subject to the provisions of the Constitution Article 124 empowers the Parliament to make any law with respect to all matters relating to or in connection with elections to Parliament as making of law or enactment of any law by Parliament also includes the power of the Parliament to amend, alter, modify or repeal laws for holding a free and fair election to Parliament for establishment of democracy and Rule of law which are the basic feature of our Constitution as judicially recognized by the Appellate Division of the Supreme Court in the Constitution 8th Amendment case, namely, Anwar Hossain Chowdhury -Vs- Government of People’s Republic of Bangladesh and others, 41 DLR (AD) 165. However, the basic features of the Constitution are the independence of the judiciary, separation of powers of the legislature, the executive and the judiciary and Rule of law and democratic Government under the provisions of the Constitution.

In the instant case we are required to discuss what is meant by amendment of a statute. Amendment of a statute connotes various meaning depending upon its context. In the case reported in 41 DLR (AD) 165 his Lordship observed as under:
 
"My conclusion therefore is that the word 'amendment' is a change or alteration, for the purpose of bringing in improvement in the statute to make it more efective and meaningful, but it does not mean its abrogation or destru-ction or a change resulting in the loss of its original identity and character. In the case of amendment of a Constitutional provision, 'amendment' should be that which accords with the intention of the makers of the Constitution."

In Oxford's Advanced Learners Dictionary the word 'amendment' means a change or improvement that is made to a law or a document; the process of changing a law or a document. In K.J. Aiyar's Judicial Dictionary (15th edition, 2011) a broad definition of the word 'amendment' has been stated which means the word 'amendment' will include any alteration or change for improving or creating any law or any other instrument or pleadings with special reference to court cases. In the case reported in 41 DLR (AD) 165 at page 252 the Appellate Division observed that amendment of a statute may have various meaning depending upon its context. Dictionary meaning of the word 'amendment' is change for a purpose of effecting improvement or removing any defect. The Appellate Division quoted with approval the definition of amendment stated in Crawford's Statutory Construction which is reproduced below:

"'Amendment' is a change in some of the existing provisions of a statute --------- a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete or perfect or effective ----------- an amendment is not the same as a repeal although it may operate as a repeal to a certain degree .................. a repeal is the abrogation or destruction of a law." 

His Lordship S. Ahmed, J (as his Lordship then was) having referred to "Murphy's Constitution, Constitutionalism and Democracy" quoted with approval the definition of amendment which runs as under:
 
"Thus an 'amendment' corrects errors of commission or omission, modifies the system without fundamentally changing its nature, that is, an amendment operates within the theoretical parameters of the existing Constitution."

Amending power given by the Constitution to Parliament is a higher power than any other power given to the Parliament i.e. its a power which emanate from the Constitution. Having considered a long series of decision of Common Wealth countries his Lordship S. Ahmed, J (as his Lordship then was) observed:
 
"My conclusion therefore is that the word 'amendment' is a change or alteration, for the purpose of bringing in improvement in the statute to make it more efective and meaningful, but it does not mean its abrogation or destruction or a change resulting in the loss of its original identity and character. In the case of amendment of a Constitutional provision, 'amendment' should be that which accords with the intention of the makers of the Constitution."

It is well established that an ordinary statute is enacted through the ordinary legislative process but amendment of a constitutional provision is effected through a special procedure as prescribed in the Constitution. It has been observed by the Appellate Division in the decision of the case reported in 41 DLR (AD) 165 that validity of a law is tested by the “touchstone of the Constitution”; but there is no such “touchstone” of the validity of the Constitution because its validity is inherent and that any amendment of such constitutional provision is unchangeable if it affects the basic structure or feature of the Constitution.

In the instant case we are called upon to examine whether the amendment of Article 12 of the RPO, 1972 by insertion of clause (3a) which provides that nomination paper of an independent candidate shall be submitted along with a list of signatures of one percent electors of the concerned constituency is violative of the provisions of Articles 12 and 26 of the said Order of 1972 and also violative of Articles 27, 31, 66 and 124 of the Constitution of the People's Republic of Bangladesh.

We have also noticed that arguments have been advanced on behalf of the petitioner stating that the impugned amendment is ultra vires the RPO, 1972 and also the Constitution of the People’s Republic of Bangladesh.

The doctrine of ultra vires drives itselves from the mother theory of corporate law i.e. theory of perpetual succession. If a company is established for a particular purpose and its existence is complemented by that purpose. When the Board of Director of a company or its Member does an act which is not within the purpose or object of that company then the company will not be bound by such act and that object or purpose shall be ultra vires of the company and this theory has been established in England in the case of Ashby Railway Carriage and Iron Co. Ltc. -Vs- Rich (1875 LR 7 HL 653) and subsequently this theory was strengthened and applied in the case of Attorney General -Vs- Great Eastern Railway Co..

The word "ultra" means beyond and the word "vires" means powers. So we can state that the term "ultra vires" means beyond powers. Many authors have expressed their views that the expression is used to mean any act performed in excess of the powers of the authority or the person who performs the act. According to professor Wade the ultra vires doctrine is not confined to cases of plain excess of power; it also governs abuse of power, as where something is done unjustifiably, for the wrong reasons or by the wrong procedure. In law the consequences are exactly the same; an improper motive or a false step in procedure makes an administrative act just as illegal as does a flagrant excess of authority. Unless the courts are able to develop doctrines of this kind, and to apply them energetically, they cannot impose limit on the administrative powers which Parliament confers, so freely, often in almost unrestricted language. 

In Indian jurisdiction the doctrine of ultra vires has been applied to statutes, rules and orders and equally it also applied to the regulations and any other subordinate legislation. While talking about the competence of State legislature in making enactment which is not covered by the exclusive list II but relates to a subject included in list I it has been stated that it is a patent case of ultra vires because of Article 246 (Constitution of India) inasmuch as it is beyond the competence of the State legislature under clause (2) and patent to the exclusive jurisdiction of Parliament under clause (1) of Article 124 of the Constitution of India.

However in Bangladesh context both the Divisions of the Supreme Court have delivered a number of judgments which were reported in many leading law journals. In the case of BADC -Vs- Shamsul Haque reported in 60 DLR (AD) 152 the Appellate Division held that the vires of Regulation 55(2) though challenged the High Court Division declined to declare the Regulation as ultra vires as the High Court Division thought it prudent to dispose of the case otherwise than by striking down the regulation. The approach of the High Court Division is appreciated because when a case can be decided without striking down the law but giving the relief to the petitioners that course is always better than striking down the law.

In the case of Full Chand Das -Vs- Md. Hammad reported in 34 DLR (AD) 361 the Appellate Division observed that since section 4 as substituted by Ordinance X of 1964 was delcared ultra vires the Constitution, and by operation of Sub-Article(2) of Article 6 of the Constitution it was void ab initio meaning it was non est, it means that section 4(new) never came into existence. Such declaration obliterates the provisions of law from the statute, as if it was never incorporated in the statute book. In that case Section 4 (new) substituted Section 4(old) and section 4(new) having been declared ultra vires the Constitution being in conflict with the Fundamental Right; it became void ab initio which means section 4(new) was non est, as if it never came into existence.

In that case the Appellate Division observed that a valid law cannot be substituted or repealed by an invalid unconstitutional law. But then what will happen on such declaration. The section of the law being ultra vires the Constitution in meaning it was never incorpo-rated in the statute book and the existing section or the law remained unaffected. In that process of operation of law section 4(old) remained unaffected in the statute and it continued to be operative, principles of sound interpretation of statute does not contemplate a legal vacuum in the statute and thereby making the statute unworkable.  

The expression "subject to the provisions of this Constitution" in Article 124 of the Constitution indicates that the object of Article 124 is to empower the Parliament to make any law making provision with respect to all matters relating to or in connection with elections to Parliament for securing due Constitution of Parliament. But it does not exempt the Parliament from any of the limitations which are imposed by the other provisions of the Constitution upon its legislative power. The Parliament has plannery powers of legislation which are limited by other provisions of the Constitution as discussed above. Moreover, the powers of Parliament cannot be restricted by an obligation undertaken by the Government. The competence of a Parliament to enact any law is to be determined with reference to the constitutional provisions in respect of the power of the Parliament as they exist at the time of enactment of the law. In the case of Chamarbaugwalla RMD. -Vs- Union of India 1957 SCR 930 the Supreme Court of India held that where there are clear and unequivocal words in the statute which is going to show that the Parliament has transgressed the limitation laid down in the Constitution, the Court will pronounce the enactment to be ultra vires. Similar decisions have also been delivered by both the Divisions of the Supreme Court of Bangladesh. It has been established in a number of leading cases of the Apex Courts of the Sub-continent that in order to determine the vires of the law or an enactment the Court must look to the substance not merely to the form of the legislation which includes the effect of the legislation and object or purposes of the legislation. For the purpose of ascertaining the true character and substance of the statute and the classes of subjects of legislation to which it belongs the Court has to examine the object of the enactment. It has also been well established by the Apex Courts of the Sub-continent that an enactment passed by the Parliament without legislative competence is void, ab initio. In the instant case we have seen that the provisions contained clause (3a) of Article 12 of the Representation of People Order, 1972 have not been enacted without any legislative competence nor is it in conflict with the other provisions of RPO, 1972 or any other provisions of law. The Appellate Division in the case reported in 41 DLR (AD) 165 judicially recognized Article 7 of our Constitution as the ‘pole star’ of the Constitution. Article 7 declared that any law inconsistent with the Constitution will be void to the extent of the inconsistency whereas Article 26 to the Constitution declared that all existing law inconsistent with the provisions of part III of the Constitution (fundamental right) is void to the extent of such inconsistency.

We are in respectful agreement with the observation of this Division in 41 DLR (AD) 165 that validity of a law is to be tested by the touchstone of the Constitution. In the instant case amendment of Article 12 by insertion of Clause (3a) to the RPO, 1972 has not been enacted in contravention of any of the provisions of the Constitution or any other provisions of law.

Therefore we do not find any illegality in the provisions of clause (3a) of Article 12 of the Representation of People Order, 1972 providing that nomination paper of an independent candidate shall be submitted along with a list of signatures of one percent electors of the concerned constituency. In view of the above discussions and findings, we do not find any illegality in the impugned judgment and order passed by the High Court Division.

Accordingly, the Civil Petition for Leave to Appeal is dismissed.
 
Ed.
 
Reference: 4 LNJ AD (2015) 1