Shahriar Rashid Khan and other Vs. Bangladesh and others, II ADC (2005) 181

Case No: Civil Appeal Nos. 18 and 19 of 1997

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: KS Nabi,,

Citation: II ADC (2005) 181

Case Year: 2005

Appellant: Shahriar Rashid Khan and other

Respondent: Government of Bangladesh

Subject: Constitutional Law,

Delivery Date: 1998-4-19

Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Shahriar Rashid Khan
..............Appellant (In Civil Appeal No. 18 of 1997)
Sayed Faruque Rahman Col. (Reted.)
.......Appellant (In Civil Appeal No. 19 of 1997)
Vs.
Bangladesh and oth­ers
............Respondents (In both the appeal)
 
Judgment
April 19, 1998.
 
Constitution of Bangladesh, 1972
Article 103(2)
The Indemnity Ordinance (L of 1975)
The Indemnity (Repeal) Act, 1996
On behalf of the respondent Government affidavit-in-opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20th August, 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made the Indemnity Ordinance 1975 a part of the Constitution, that paragraphs 3A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April , 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the Indemnity Ordinance not being a part of the Constitution, but an Ordinary law, the repeal thereof does not attract article 142 of the Constitution and that the Indemnity Ordinance has been validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional.                         …. (11)
 
Cases Referred to-
Kay V. Goodwin; Surtees V Ellison; Dosso's case 11 DLR (SC) 1; Halima Khatun 30 DLR (AD) 207; Haji Joynal Abedin 32 DLR (AD) 110; Eheteshamuddin Iqbal 33 DLR (AD) 154.
 
Lawyers Involved:
Korban Ali, Advocate, instructed by Azra Ali, Advocate-on-Record - For the Appellant (In both the Appeals)
K. S. Nabi, Attorney General (Bhuiyan, Additional Attorney General, Shahabuddin Ahmed, M. Farooq, Deputy Attorney General, Obadul Raham, Mustafa and Baziur Rahman, Assistant Attorney General with him) Sharifuddin Chaklader, Advocate-on-Record - Respondents No. 1 A. N.(In both the Appeals)
 
Civil Appeal Nos. 18 and 19 of 1997.
(From the Judgment and Order dated 28th January, 1997 passed by the High Court Division, Dhaka in Writ Petition No. 5321 and 5313 of 1996 respectively)
 
JUDGMENT
 
ATM Afzal CJ.
 
1. These two appeals, certified by the High Court Division under arti­cle 103(2)(a) of the Constitution, involve con­sideration of one central question and that is, whether the Indemnity (Repeal) Act 1996, Act No. 21 of 1996, briefly the Act, (published in the Bangladesh Gazette (additional issue) dated 14, November, 1996) is ultra vires the Constitution. At the end of the hearing of the appeals, we have come to the unanimous and unhesitating conclusion that it is not, and the Act is a valid piece of legislation. Now we turn to the facts leading to these appeals and give the reasons for our decision.
 
2. The appellant in Civil Appeal No. 18 of 1997 filed writ petition No. 5321 of 1996 seek­ing a declaration that the Act was void, illegal, ultra vires of the Constitution and of no legal effect and further that Dhanmondi P.S. Case No. 10(10) 96 dated 2.10.96 and Lalbagh P.S Case No. 11(11)75 dated 4.11.75 were unlawful and void.
 
3. The appellant who was a captain in the Pakistan Army in 1970 joined the liberation war and was ultimately promoted to the rank of Lieutenant Colonel. He stated, inter alia, in his writ petition that he also served in the diplomatic service of Bangladesh but for his personal reason he resigned from diplomatic service in 1982 and coming back to Bangladesh joined both business and politics. He was arrested on 13.8.96 on baseless allegations regarding certain acts or things done in connection with or in preparation or execution of any plan for or steps necessitating the historical change and proclamation of martial law on the morning of the 15 August, 1975. The appellant came to know about the aforesaid criminal cases while inside the jail.
 
4. The appellant alleged that in 1975 when the democratic system was throttled by the then BAKSHAL Government and an economic crisis and a serious unrest was prevailing all over the country, a revolution took place on the 15th August (1975) when the Government in power was overthrown and in this process some unwanted happenings took place in the residence of the then President of Bangladesh at Road No. 32, Dhanmondi, Dhaka and some other places also. The appellant who was then a Major in the Bangladesh Army performed his duties under the orders of his superiors who were above him in the rank of Colonels, Brigadiers and Major Generals etc.
 
5. The appellant alleged that all the acts relating to the occurrence of the 15 August, 1975 were indemnified by the Indemnity Ordinance, 1975 (Ordinance No. L of 1975) dated 26.9.75, the entire subject matter of which has been ratified and validated by the Proclamation Order No. 1 of 1977 dated 23rd April, 1977 and the 5th Amendment of the constitution. The appellant asserted that the provisions of Act have become inconsistent with the provisions of paragraph 3A and paragraph 18 of the Fourth Schedule of the constitution.
 
6. The constitutionality of the Act has been challenged from various standpoints which will be noticed in course of the following discussion.
The appellant in the other appeal, Civil Appeal No. 19 of 1997, is Colonel (Retd). Syed Faruk Rahman whose mother, Mohmuda Rahman filed writ petition No. 5313 of 1996 on behalf of her son praying for similar reliefs as in the other case (in her petition only Dhanmondi P. S. Case No. 10(10) 96 dated 2.10.96 was referred to).
 
7. Syed Faruk Rahman was also an officer of the Pakistan Army who joined liberation war and was ultimately promoted to the rank of Lieutenant Colonel in the Bangladesh Army.
 
8. It has been stated, inter alia, in the writ petition that in 1975 there was an unrest in the country after the 4th amendment of the Constitution by which democratic system was abolished and one party Government was established. In such circumstances, change of Government took place on the 15 August, 1975, martial law was promulgated and a new Government came into existence. In course of change of Government and proclamation of martial law, said Faruk Rahman, a junior officer at that time, had to perform duties under the orders of his superiors in the Army on 15.8.75 and thereafter.
 
9. The President of Bangladesh in exercise of his powers under article 93(1) of the Constitution and the proclamation of 20 August, 1975 promulgated the Indemnity Ordinance, 1975 on 26.9.75 and thereby indemnified certain acts and things done in connection with or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of martial law on the morning of the 15th August, 1975. The said indemnified acts and things were subsequently included in paragraphs 3A and 18 of the Fourth Schedule of the Constitution and in fact made part of the Constitution.
 
10. The aforesaid criminal Case under sections 120B/302/149/324/34/307/109 of the Penal Code was started in connection with the occurrence of the 15th August, 1975 which is against the provision of the Indemnity Ordinance, 1975 and paragraphs 3A and 18 of the Fourth Schedule as aforesaid. The Indemnity (Repeal) Act, 1996 by which the Indemnity Ordinance, 1975 has been repealed is illegal, void and ultra vires of the Constitution.
 
11. On behalf of the respondent Government affidavit-in-opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20 August, 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made the Indemnity Ordinance 1975 a part of the constitution, that paragraphs 3A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April, 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the Indemnity Ordinance not being a part of the constitution, but an Ordinary law, the repeal thereof does not attract article 142 of the constitution and that the Indemnity Ordinance has been validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional.
 
12. The High Court Division took up the writ petitions together for consideration as the issue in both the petitions was the same, rather one. Mr. Md. Korban Ali, learned Counsel for the appellants before us, himself appeared for the writ petitioners while the learned Attorney General represented the Government respondent. It appears that on the request made by the court six senior members of the Bar had also appeared and made their submissions as Amicus Curiae. There was also an intervener at the end. The High Court Division copiously recorded the submissions of all the learned counsel, whatever was argued, in the impugned judgment. The most striking feature of this laboriously written long judgment which is bound to attract anybody's attention is the lengthy submissions made by almost all the learned Counsel including the learned Attorney General (except Khondker Mahbubuddin Ahmed and of course the Counsel of the appellants) to the effect that the Indemnity Ordinance, 1975 was itself a void legislation. The High Court Division found all the reasonings in support of the said submission to be acceptable and accordingly held: 
 
"Considering the above, we hold that the Indemnity Ordinance No. 50 of 1975 is void under Articles 7(2) and 26(2) of the Constitution. As we are declaring this Ordinance No. 50 of 1975 void, it had and has no legal existence in the eye of the constitution on the very day when it was promulgated that is on 26.9.75 and now." At another place, however, the High Court Division held: "that the Indemnity Ordinance of 1975 was continuing as an existing law along with other laws, after withdrawal of martial law, being protected and saved within the terms "others laws" as constitution, and it is subject to judicial review of this court whenever it is challenged." 
 
And finally the findings were summarized as follows:

It is held that both the writ petitions are maintainable in their present form. It is held that Indemnity (Repeal) Act, 1996 (Act No. 21 of 1996) is a valid piece of legislation and it is not ultra vires the Constitution. It is held that the Indemnity Ordinance. 1975 (Ordinance 50 of 1975) is void since it is repugnant to the Constitution. It is held that since the Indemnity Ordinance No. 50 of 1975 is ultra vires of the constitution and Indemnity (Repeal) Act No. 21 of 1996 does not offended and infringe any provision of the constitution, the prayers for declaring the institution of Dhanmnodi P.S Case No. 10(10)71996 and Lalbagh P.S Case No. 11(11)/ 1975 without lawful authority are illegal and hereby refused. It is found that the five out of six learned jurists of the Country (excepting Mr. Khondaker Mahbubuddin Ahmed) who assisted the court as Amicus Curiae, expressed their views that the Indemnity (Repeal) Act No. 21 of 1996 is a valid piece of legislation and the Indemnity Ordinance No. 50 of 1975 is void being ultra vires the Constitution. Submissions of the learned Attorney General and the views of the majority Amicus Curiae on the points of validity of the Indemnity (Repeal) Act No. 21 of 1996 and the repugnancy of the Indemnity Ordinance No. 50 of 1975 appear to be constitutionally and legally correct and as such the same are accepted.
 
13. The Rules issued in the writ petitions were accordingly discharged by the impugned judgment and order dated 28 January, 1997 but a certificate under article 103(2)(a) as prayed for by the writ petitioners was granted. Hence these appeals before us as of right.
 
14. We have noticed that a substantial part of the judgment of the High Court Division, rather the major part has been devoted to the consideration of the submission made on behalf of the Government and supported by all the Amicus Curiae except one that the Indemnity Ordinance, 1975 was a void legislation and the submission has been accepted. The Indemnity Ordinance has been declared void. Apart from the question of correctness and propriety of the decision, we have failed to understand why the vires of the said Ordinance was made the major issue for decision when none of parties came to the court seeking a declaration that the Ordinance was ultra vires. On the other hand, the question directly raised for consideration and decision by the writ petitioners was whether the Indemnity (Repeal) Act, 1996 was ultra vires. That was the only constitutional question for decision before the High Court Division.
 
15. For good or bad, the Act has repealed the Ordinance. Repeal of a law means its complete abrogation by the enactment of a subsequent statute. CRAIES on Statute Law (Seventy Edition) at P. 351 says:
 
“The effect of a repeal before 1890 without any express savings was thus stated by Tindal CJ in Kay V. Goodwin, where he said: "I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law". And in Surtees V Ellison, Lord Tenterden said: "It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed."
 
16. So the effect of repeal of a law is that as if it never existed and it is obliterated completely from the records of the Parliament except for the purpose of those actions which were taken under it. That being the position in law, the Indemnity Ordinance was not in existence after the passing of the Repeal Act and it was therefore unthinkable, in our opinion, to declare the Ordinance void which has not even in existence. It was, so to say, a contradiction in terms.
 
17. Then again why should the Government or anybody else consider itself or himself wiser than the Parliament? When the Parliament decided to repeal the Indemnity Ordinance, it must be presumed that the Parliament had recognised the Ordinance to be a valid and existing law. Otherwise there would have been no necessity for repealing the Ordinance. If the parliament considered the Ordinance to be void, it could have passed a declaratory legislation to that effect instead of repealing it. The learned Attorney General leading the argument that the Ordinance was void had unwittingly put the legislature, as it appears, to embarrassment in that the Repeal Act was proved to be unnecessary.
 
18. Then again the High Court Division having itself found that the Indemnity Ordinance was a continuing law after withdrawal of martial law being protected and saved under paragraphs 3A and  18 of the Fourth Schedule and further having itself noticed that despite the ouster of jurisdiction of Court it can consider the constitutional validity of any law only if the same is found to be made without jurisdiction, Coram non Judice or mala fide, it is not understood how the High Court Division could declare the Ordinance to be void on the ground that it was repugnant to  the Constitution.
 
19. Except on grounds of jurisdiction etc. as above all laws made during the period between the 15 August, 1975 and the 9th April, 1979 "Shall not be called in question in or before any court, tribunal or authority on any ground whatsoever" (Para 18). The High Court Division accepted this position and yet declared the Ordinance to be void without explaining as to how the bar of jurisdiction was overcome by it.
 
20. In any view of the matter, it appears that the finding made by the High Court Division which appears to be the main burden of its judgment, that the Indemnity Ordinance was void is an uncalled for, gratuitous finding and as such the same cannot be supported.
 
21. Now, we come to the real matter in issue, Mr. Korban Ali, learned Counsel for the appellants, has advanced several arguments before us as he did in the High Court Division in support of his proposition that the Act was ultra vires the constitution. The sheet anchor of his entire submission is and Mr. Korban Ali himself is conscious about it, that the Indemnity Ordinance, 1975 had become a part of the constitution by reason of paragraphs 3A and 18 of the Fourth Schedule and as such it could not be repealed by the Ordinary law making process. To undo the Ordinance, the learned Counsel submits that the said paragraphs required to be amended following the provision of Article 142 of the Constitution and that having not been done, the Act has become repugnant to the constitution and the passing of the Repeal Act as an ordinary law is therefore a colorable exercise of power.
 
22. To examine and appreciate the submission of the learned Counsel, the relevant laws are reproduced below for ready reference:
 
The Indemnity Ordinance, 1975 was published in the extraordinary Gazette on 26, September, 1975 which reads as follows:
 
GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
MINISTRY OF LAW, PARLIAMENTARY AFFAIRS AND JUSTICE
(Law and Parliamentary Affairs Division)
NOTIFICATION
 
Dacca, the 26th September 1975. No. 692 Pub.
 
The following Ordinance made by the President of the People's Republic of Bangladesh, on the 26m September, 1975, is hereby published for general information:
 
THE INDEMNITY ORDINANCE, 1975 ORDINANCE NO. L OF 1975
 
AN ORDINANCE to restrict the taking of any legal or other proceedings in respect of certain acts or things done in connection with, or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of Marital Law on the morning of the 15th August, 1975.
 
WHEREAS it is expedient to restrict the taking of any legal or other proceedings in respect of certain acts or things in connection with or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of Martial law on the morning of the 15th August, 1975;
 
AND WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render immediate action necessary;
NOW, THEREFORE, in pursuance of the Proclamation of the 20th August, 1975, and in exercise of the powers conferred by clause (1) of article 93 of the Constitution of the People's Republic of Bangladesh, the President is pleased to make and promulgate the following Ordinance:-
 
1. Short title.- This Ordinance may be called the Indemnity Ordinance, 1975.
 
2. Restrictions on the taking of any legal or other proceedings against persons in respect of certain acts and things.- (1) Notwithstanding anything contained in any law, including a law relating to any defence service, for the time being in force, no suit, prosecution or other proceedings, legal or disciplinary shall lie, or be taken, in before or by any court, including the Supreme Court and" Court Martial, or other authority against any person, including a person who is or has, at any time, been subject to any law relating to any defence service, for or on account of or in respect of any act, mat­ter or thing done or step taken by such per­son in connection with, or in preparation or execution of any plan for, or as necessary step toward, the change of Government of the People's Republic of Bangladesh and the Proclamation of martial Law on the morning of the 15th August, 1975.
 
(2) For the purposes of this section, a certificate by the president, or any person authorised by him in this behalf, that any act, matter or thing was done or step taken by any person mentioned in the certificate in connection with, or in preparation or exe­cution of any plan for, or as necessary step towards, the change of Government of the People's Republic of Bangladesh and the Proclamation of Martial Law on the morn­ing of the 15th August, 1975, shall be sufficient evidence of such act, matter or thing having been done or step having been taken in connection with, or in preparation or exe­cution of any plan for, or any necessary step towards, the change of such Government and the Proclamation of Martial Law on that morning.
 
KHANDAKER MOSHTAQUE AHMED
President
DACCA;
The 26th September, 1975
 
23. Paragraph 3A was added to the Fourth Schedule of the Constitution by the Proclamation Order No. 1 of 1977 and amend­ed by the Second Proclamation Order No. IV of 1978 and reads as follows:-
 
3A. (1) The Proclamations of the 20th August, 1975, and 8th November, 1975, and the Third Proclamation of the 29th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and the withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any court or Tribunal on any ground whatsoever. (2) 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 Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from any of the said proclamations or any martial Law Regulation or martial Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any court, or Tribunal on any ground whatsoever. (3) No suit prosecution or other legal proceeding shall lie in any court or Tribunal against any person or authori­ty for or on account of or in respect of any order made, act or thing done, or action or proceeding taken whether in the exercise or purported exercise of the powers referred to in sub paragraph (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(4)..............
(5)..............
(6)..............
(7) All laws in force immediately before the revocation of the said prose­cution and withdrawal of Martial Law shall, subject to the proclamation revoking the said proclamations and withdrawing the martial Law, continue in force until altered, amended or repealed by the competent authority.
(8).......................
(9).......................
(10) In this paragraph, 'law' includes ordinances, rules, regulations, bye laws, orders, notifications and other instruments having the force of law. 
 
24. Paragraph 18 was added to the Fourth Schedule by the Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) and reads as follows: 

18. All Proclamation, 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 Constitution during the said period by any such Proclamation, all orders 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 validity made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever. 
 
25. The Indemnity (Repeal) Act, 1996 reads:
 
The Indemnity Ordinance, ১৯৭৫ এর রহিতকরণকল্পে প্রণীত আইন৷
যেহেতু The Indemnity Ordinance, ১৯৭৫ (Ordinance L of ১৯৭৫) রহিত করা সমীচীন ও প্রয়োজনীয়;
সেহেতু এতদ্‌দ্বারা নিম্নরূপ আইন করা হইল :-
১৷ সংক্ষিপ্ত শিরোনাম এই আইন The Indemnity (Repeal) Act, 1996 নামে অভিহিত হইবে৷
২৷ Ord. L of 1975 এর রহিতকরণ The Indemnity Ordinance, 1975 (L of 1975, যাহা XLX of 1975 নম্বরে মুদ্রিত), অতঃপর উক্ত Ordinance বলিয়া উল্লিখিত, এতদ্‌দ্বারা রহিত করা হইল৷
(২) এই আইন বলবত্ হইবার পূর্বে যে কোন সময় উক্ত Ordinance এর অধীন কৃত কোন কার্য, গৃহীত কোন ব্যবস্থা, প্রদত্ত কোন সার্টিফিকেট বা আদেশ-নির্দেশ অথবা অর্জিত কোন অধিকার বা সুযোগ-সুবিধা, অথবা সরকার বা কোন কর্তৃপক্ষের জন্য সৃষ্ট কোন দায়-দায়িত্ব, যদি থাকে, এর ক্ষেত্রে General Clauses Act, 1897 (X of 1897) এর Section 6 এর বিধানাবলী প্রযোজ্য হইবে না এবং উক্তরূপ কৃত কার্য, গৃহীত ব্যবস্থা, প্রদত্ত সার্টিফিকেট বা আদেশ-নির্দেশ বা অর্জিত অধিকার বা সুযোগ-সুবিধা বা সৃষ্ট দায়-দায়িত্ব উপ-ধারা (১) দ্বারা উক্ত Ordinance রহিতকরণের সংগে সংগে এইরূপে অকার্যকর, বাতিল ও বিলুপ্ত হইয়া যাইবে যেন উক্ত Ordinance জারী করা হয় নাই এবং উক্ত Ordinance এর কোন অস্তিত্ব ছিল না ও নাই৷
 
26. Mr. Korban Ali in building up his ultimate submission that the Indemnity Ordinance became a part of the Constitution argued rely­ing on Dosso's case 11 DLR (SC) 1 that a new legal order came into force with the promulga­tion of martial law by Proclamation dated 20 August, 1975 made by Khandker Moshtaque Ahmed and the Constitution of the country was made subject to the Proclamation, Martial law Regulations etc. The Indemnity Ordinance was not only an ordinance made under the Constitution but it was something more than that as it was promulgated involving the supra-constitutional instrument of Proclamation dated 20 August, 1975. In paragraph 3A (1) of the Fourth Schedule, it has been provided that the Proclamation, Martial Law Regulations etc. and "all other laws" made during the period between the 15th August, 1975 and the date of revocation of the Proclamations etc. and with­drawal of martial law shall be deemed to have been validly made and shall not be called in question in or before any court or Tribunal on any ground whatsoever. By incorporating para­graph 18 all Proclamations etc. and "other laws" made during the said period have been ratified and confirmed and given the same pro­tection as already given by paragraph 3A. Mr. Korban Ali submits citing Halima Khatun 30 DLR (AD) 207, Haji Joynal Abedin 32 DLR (AD) 110, Eheteshamuddin Iqbal 33 DLR (AD) 154 etc. that this court upheld the provisions of paragraphs 3A and 18 giving immunity to the acts and things done during martial law except in cases of Coram non Judice etc. Then Mr. Ali submits, which is most vital, that not only the Indemnity Ordinance has been saved and pro­tected by paragraphs 3A and 18 but the protec­tion given to the "acts and things done" there under which was also the purpose of the Ordinance, namely, putting restriction on legal proceedings in respect of certain "acts and things done" amounts to making the Ordinance a part of the Constitution. Therefore, without amending paragraphs 3A and 18 of the Fourth Schedule be recourse to article 142, the Ordinance could not be repealed by ordinary process as was done.
 
27. Let us start making the scrutiny of the submission of the learned Counsel in the reverse order. The last and the foremost argu­ment is that the phrase "acts and things done" used in the Ordinance and Paragraphs 3A and 18 has the effect of making the Ordinance a part of the Constitution. We are far from impressed by the logic of the submission. The Indemnity Ordinance was promulgated to restrict the taking of any legal or other proceed­ings in respect of certain "acts and things done" prior to the promulgation of the Ordinance, that is those that were done in connection with, or in preparation or execution of any plan for, or steps necessitating, the historical change and the Proclamation of martial law on the morning of the 15th August, 1975. On the other hand, the protection which has been given under para­graphs 3A and 18 to the 'acts and things done' relate to those that were done in exercise of the powers derived or purported to have been derived from any proclamation .......or "any other law".

They have been 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. Evidently, the acts and things which were done on the 15th August, 1975 to which indemnity was sought to be given by the Indemnity Ordinance were not done in exercise of the powers derived or pur­ported to have been derived from the said ordi­nance.
Therefore, they have no nexus with the "acts and things done" referred to in paragraphs 3A and 18.
 
28. It has been argued that the Indemnity Ordinance has been promulgated under the Proclamation of 20th August, 1975, paragraphs 3A and 18 have declared its validity and immu­nity from challenge on any ground whatsoever and further it has been ratified and confirmed in paragraph 18 by the Constitution (Fifth Amendment) Act, 1979. The ordinance has thus been grafted in the Constitution itself. It cannot be repealed by an ordinary law.
 
29. Again we are far from convinced by the reasons in support of the submission. There is no dispute that the Ordinance, has not been made a part of the constitution expressly. There was no difficulty for the Parliament to incorpo­rate it in the Constitution if it so intended. Now attempt is being made to show that the Ordinance has impliedly become a part of the constitution. As a general principle, nothing should be read or found in the country's Constitution which is the embodiment of the will of the people of Bangladesh by way of inference and that also for defending a law which is against all norms that the Constitution stands for.
 
30. The Indemnity Ordinance was express­ly made by the President in exercise of the powers conferred by clause (1) of article 93 of the Constitution. That the Proclamation of 20th August, 1975 was also invoked in enacting the said Ordinance makes no difference because Khandker Moshtaque Ahmed, the author of the Proclamation, whatever else he could do, could not issue an Ordinance under the said Proclamation. The ordinance was made by him wearing a different cap, that of the President under the Constitution. So there was no extra magic in the Indemnity Ordinance which in normal times was required to be laid before the Parliament for its survival. All that is conferred upon the Indemnity Ordinance by paragraphs 3A and 18 is the stamp of validity and immuni­ty from challenge. Paragraph 18 goes further to ratify and confirm the said Ordinance. "Ratify" means, according to the Black's law Dictionary, "to approve and sanction, to make valid, to confirm". It all means that the Constitution pro­claims that the Indemnity Ordinance was validly made and shall not be questioned on any ground whatsoever. That is the mandate of the Constitution and no further. To say that the Ordinance has become a part of the Constitution attracting article 142 for its repeal is to read something which is clearly not there. The subsidiary argument that without necessary amendment of paragraphs 3A and 18, the Ordinance could not be repealed is also equally untenable. The heart of the argument seems to be that since approval was given to the Ordinance by a process of amendment of the constitution, the same process is required to be gone through for its repeal. We do not agree to the proposition. To give approval to a law is a qualitatively different act from enacting the law itself. An Ordinance when approved in the con­stitution remains an Ordinance, it does not become a part of the constitution.
 
31. Clause (7) of paragraph 3A may be seen in this connection which is quite significant. It says all laws in force, (Ordinance is also law (clause 10), immediately before ....the withdrawal of martial law shall..............continue in force until altered, amended or repealed by the competent authority. So the power is given to the competent authority to deal with the law as it likes. There is no mandate anywhere that the Fourth Schedule has to be amended suitably to bring about any change in the law.
 
32. The respondents in their affidavit in opposition have given a list of Ordinances of the same period which have been subsequently repealed by Ordinances or by usual Act of Parliament. The repeal of the Indemnity Ordinance was therefore not an exception but was done in the usual legislative process. The relevant paragraph of the affidavit in opposition which also contains the gist of the respondents' contention which we find to be correct is reproduced below. This all also answer appellant's argument that the repeal Act was passed in col­orable exercise of power. The said paragraph reads:
 
That it is submitted that no provision of the Constitution had made the Indemnity Ordinance, 1975 a part of the constitution, it is also submitted that the paragraph 3A and 18 of the fourth schedule to the constitution has not cur­tailed the power of parliament to repeal any act of parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April, 1979. Besides, the Parliament possess legislative power under article 65 of the constitution and the power of parlia­ment to repeal laws and ordinance has been recognised by Article 149 of the constitution. In this connection, it may be stated that several Ordinance made between the 20th August, 1975 and the 9th April, 1979 have been repealed by Ordinance or by Act of parliament. Some instances are given below: -

(i) Industrial Relations (Regulation) Ordinance, 1975 was repealed by Act XXIX of 1980, Section 17;
(ii) Khulna Division Development Board Ordinance, 1979 was repealed by Ordinance, No. XLVI of 1986, Section 2;
(iii) Rajshahi Division Development Board Ordinance, 1979 was repealed by Ordinance No. XLVI of 1986, Section 2;
(iv) Dhaka Division Development Board Ordinance, 1979 was repealed by Ordinance No. XLVI of 1986, Section 2;
(v) Electoral Rolls Ordinance, 1979 was repealed by Section 18, Ordinance No. LXI of 1982;
(vi) Bangladesh Railways Board Ordinance, 1979 was repealed by Ordinance No. XXIV of 1983, Section-2;
(vii) Off shore Island Development Board Ordinance, 1977 was repealed by Ordinance No. XXXVIII of 1982, Section-3(e)
(viii) Haor Development Board Ordinance, 1977 was repealed by Ordinance No. XXXVIII of 1982, Section -3(e);
(ix) Environment Pollution Control Ordinance, 1977 was repealed by Act I of 1985, Section-21;
(x) Bangladesh Standards Institution Ordinances, 1977 was repealed by Ordinance No. XXXVII of 1985, Section 38;
(xi) Presidential Election Ordinance, 1978 was repealed by Act XXVII of 1991, Section-13;
(xii) State Owned Manufacturing Industries Workers (Terms and Condi­tions of Service) Ordinance, 1979 was repealed by Ordinance XXXIX of 1985, Section 6. 
 
33. At this stage, we think it is time that we quote from the High Court Division judgment where this subject has been dealt with. This part, in our opinion, is the most relevant and soundest in an otherwise prolix judgment. The views expressed by us above are confirmations of what is now quoted below:
 
According to Mr. Korban Ali and Mr. Khondaker Mahbubuddin Ahmed this Ordinance was made a part of the Constitution by paragraph 3A and 18 of the 4th schedule of the Constitution. But it appears that neither the 4th schedule nor any other provision of the constitution provides that this Indemnity Ordinance, No. 50 of 1975 should be treated as a part of the constitution. Rather by paragraph 3A and 11 of the 4th schedule of constitution was protected and continued as existing law in the category of other Laws which were promulgated in between the period from 15th August, 1975 an 9th April, 1979. Since it was an ordinary piece of legislation being same protected and continued under para­graphs 3A and 18 of the 4th schedule of the Constitution. It can be amended or repealed by simple majority members of the parliament.
 
In paragraph 3a (7) of the 4th schedule of the Constitution a clear provision has been laid down to the effect that all laws made during the period from 15-8-75 to 9-4-79 were protected, but the same can be amended, altered and repealed by the authority. It means, the Parliament is the actual authority for repealing of law. Nowhere in the 4th schedule or in any other provision of the Constitution it was stipulated that the laws which were continued and saved under paragraph 3 A and 18 of the 4th schedule of the Constitution would require two third majority members of the Parliament for necessary amend­ment or alteration or repeal. Since there was no provision like that, we cannot import such a provision and as such we hold that the Indemnity Ordinance No. 50 of 1975 can be amended or altered or repealed by simple majority mem­bers of the parliament and two third majority of the members of the Parliament was not at all required for the same. The learned Attorney General as well as other five learned Amicus curiae expressed their views that this Indemnity (Repeal) Act, 1996 has been legally passed by a simple majority members of the Parliament and to pass such all law, two-third majority of the members of the Parliament was not at all necessary.
 
34. The next important submission of Mr. Korban Ali is that even if it is conceded for argument's sake that the Indemnity Ordinance was validly repealed, the starting of the crimi­nal cases against the appellants for the occurrences of the 15 August, 1975 was unlawful because notwithstanding the repeal of the Ordinance, the rights and privileges which had accrued to them under the said ordinance would remain unaffected. Evidently, this argument is based upon section 6 of the General Clauses Act, 1897. It is true that a repealing Act does not affect any right, privilege which is acquired under the repealed enactment but there is an overriding condition and that is, s provided in section 6 itself, that "unless a different intention appears". The different intention in the present case has been abundantly clear in section 2 of the Act. Therefore, although it was a question of fact whether the appellants could at all claim protection of the Ordinance for the alleged acts attributed to them, the legislature has complete­ly sealed that chapter by expressly nullifying everything under the repealed Ordinance.
 
35. The other submissions made by Mr. Korban Ali, he has himself realized, have nei­ther much force nor carry any conviction. For example, he has submitted that the Act is an ex post facto legislation which offends Article 35(1) of the Constitution. The question does not arise because the Act has not made anything punishable which was not so punishable when the alleged acts were committed. Then he has argued that the Act was passed mala fide because the party in power now never raised question in previous Parliaments for repealing the Indemnity Ordinance but with the recent change of Government immediate step was taken maliciously to nullify the protection so long enjoyed by the appellants under the Ordinance.
 
36. It is not permissible for the court of impute malice to the legislature in making laws which is its plenary power. As long as the laws passed by it do not offend any provision of the constitution, the Court cannot strike them down on any other ground. On the subject of Inquiry into legislative motives, Colley in his “A treatise on the Constitutional Limitations” at page 186 says: 
 
From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished, and them mode of enact­ing it, has kept within the constitution­al limits and observed the constitution­al conditions. If so, the courts are not at liberty to inquire into the proper exer­cise of the power in any case. They must assume that legislative discretion has been properly exercised. If evi­dence was required, it must be sup­posed that it was before the legislature when the act was passed and if any spe­cial finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such find­ing. And although it has sometimes been urged at the bar, that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. 
 
37. Mr. Korban Ali raised the question of mala fide also because the criminal cases were stated even before the repeal of the Indemnity Ordinance. It has been noticed that in such mat­ters what is of importance is the authority to act and not with what motive the action is taken. It could not be said that the alleged bar under the Indemnity Ordinance was attracted automati­cally as soon as the FIR was lodged, It has/had to the pleaded at some stage. Since the Ordinance has already been repealed, the bar does no longer operator and no question of mala fide can be raised in opposition to the pro­ceedings.
 
In view of discussion above, these appeals cannot succeed and are accordingly dismissed without any order as to costs.
 
Ed.