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Testimony ISSN 2049-8918 Issue 1 Vol. 1 Nov – Jan 2013 Editor: Emeritus Professor Philip A. Thomas Joint Editor: Prashanta B. Barua Consulting Editor: Sarat C. Das

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ESTIMONY, A BI-ANNUAL The publication aims to contribute to scholarly law journal focusing jurisprudence with a revealing insight into T on legal issues, is jointly civil rights and civil liberties, international published by Centre for South law, or human rights, and statutory, Asian Studies (UK) and London East Bank regulatory, and public policy issues. College (LEBC). The publication draws its Testimony accepts contributions of interest contributions from a cross-section of legal to a wide cross-section of readers. practitioners, judges, law teachers and students. The diverse body of content The reviews of law articles are primarily includes legal commentaries, reviews, those which have been influential in the analysis, 'notes' and 'comments.' These development of legal jurisprudence in the papers aim to articulate the views of legal UK and Europe. However, contributions specialists with regard to current legal from overseas, particularly south east Asia issues and their potential solutions. The are welcome. The common law journal is broadly based both regarding its jurisdictions are indeed global and content and the academic disciplines that Testimony seeks to reflect that level of are covered. outreach of this legal system. 7 8 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

supremacy of the rule of law above of Parliament rather than limiting itself to arbitrary exercise of power by the the powers traditionally given to the Sovereign. This may be termed judicial judiciary.' In other words judicial activism activism par excellence. However, is the term used to describe the actions of nowadays the term offers different j u d g e s w h o g o b e y o n d t h e i r meanings to different persons. It constitutionally prescribed duties of acting commands popularity from the quarter as arbiters in a case, of applying law to the benefitted and scorn from others. In the facts of individual cases, and "legislate" context of judicial pronouncements in from the bench. These judges create new judicial activism that is good for the poor Bangladesh, particularly in relation to constitutional rights, amend existing ones, and oppressed, who are otherwise decisions concerning women and children, or create or amend existing legislation to fit it appears to be used as synonymous with their own notions of societal needs. prevented from getting proper and judicial pro-activism. proportional treatment under the law and By the same token, the nomenclature denied redress due to various hurdles- Black's Law Dictionary defines judicial "activist judge" is used to describe a judge economic, social, educational etc activism as "a philosophy of judicial who actively and knowingly subverts, decision-making whereby judges allow misuses, grossly misinterprets, ignores, or ABSTRACT: their personal views about public policy, otherwise flaunts the law and or legal among other factors, to guide their precedence due to personal opinion, be that In order to unravel the true meaning of s a concept, judicial activism o p i n i o n i d e o l o g i c a l , r e l i g i o u s , 'judicial activism' as a philosophy of has been in existence for more philosophical, or otherwise. than a hundred years. decisions, usu. with the judicial decision-making the discourse A Others say, 'judicial activism' is when On the other hand, judicial activism in However, the meaning has goes beyond the point when the courts do litigation is a helpful mechanism used by changed over the decades from courts do not confine themselves to not confine themselves to reasonable reasonable interpretations of laws, but the courts to assert their powers and its earlier pejorative sense to the now more jurisdiction and to do justice strictly interpretations of laws, but instead create acceptable, and is sometimes considered as instead create law. Alternatively, judicial law. The author deliberates on judicial activism is when courts do not limit their according to law, as they would interpret it a laudable practice. Earlier it was in the facts and circumstances of the case activism in litigation as a utilitarian ruling to the dispute before them, but scathingly used to describe decisions which before them. mechanism employed by the courts to e s s e n t i a l l y r e f l e c t e d p o l i t i c a l instead establish a new rule to apply broadly to issues not presented in the specific ensure justice is delivered according to law, manipulations. [viz. Marbury v. Madison DO JUDGES MAKE LAW? action. "judicial activism" is when judges as they would interpret it in the facts and (1804)]1. Even as early as 1608, Coke CJ substitute their own political opinions for circumstances of the case before them. . If stood up to King James I of England, who In the last three decades there has been a claimed absolute power to withdraw a case the applicable law, or when judges act like a while acting under the forgoing urge to do phenomenal development in the arena of from the Royal Courts of Justice and to legislature (legislating from the bench) justice in accordance with law, the judges rather than like a traditional court. In so Public Interest Litigation, particularly in decide it himself. The Chief Justice advised the sphere of Environmental Law. Here appear to be 'guilty of judicial activism', that he could not do so and that, although doing, the court takes for itself the powers then so be it. The author asserts on the the King is above man, he was under God 1 Tag Archives: Supreme Court: A novel way of ensuring transparency in the higher judiciary? Accessed 16th October 2012 http://letstalkaboutthelaw.wordpress.com/tag/supreme-court/ utility of 'beneficent activism' as a form of and the law. Thus was established the Judgment of Chief Justice Marshall of the US Supreme Court who observed that the Constitution was the fundamental and paramount law of the nation and "it is for the court to say what the law is". 9 10 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

again, it cannot be said that this is Court or otherwise to secure the ends of principle, in a case of this kind where the assault in the absence of corroborations, as lawmaking in its true sense. In reality, justice. This section emphasised that the evidence and condition of the prosecutrix a rule, is adding insult to injury.” Their judges interpret the law, sometimes Supreme Court's High Court Division has form the only evidence which the court has lordships went on to hold that following the strict letter of the law and at the widest jurisdiction to pass orders for to go upon, it is necessary in order to sustain corroboration is wholly unnecessary in the other times looking to the intendment of the ends of justice and for that purpose to a conviction, that it should at least be found context and profile of Indian society and Legislature in a way so as to cater for the entertain applications not contemplated by that the woman's statement is in accordance that the evidence of a victim of a sex needs of the populous for whose benefit the the Code. Their lordships went on to say with all the probabilities and has all the offence is entitled to the great weight. In the law was enacted. that the inherent power of the court is appearances of having been honestly case of Jahangir Hossain vs. State, 1 BLC undefined and indefinable. It is well settled made.” It appears that in that case the court 292, Gholam Rabbani, J., after discussing In a recent decision in the case of The State that the paramount consideration in was not convinced about the honesty of the in detail the above decision of the Pakistan –Versus- Seema Zahur and another, 8 BLT exercising power under section 561A of the witness, thus requiring corroboration of her and Indian Supreme Courts, as well as (AD) 69, a petition was filed by a learned Code of Criminal Procedure is that such an evidence. In the subsequent case of Md. another decision of the Indian Supreme advocate under section 561A of the Code of order will prevent abuse of the process of Saidur Rahman Neoton and others Vs. The Court, where Ahmadi J commented that a Criminal Procedure, invoking the inherent any court or otherwise it would secure ends State 13 BLD (AD) 79, it was observed, '... prosecutrix of a sex offence cannot be put jurisdiction of the Court, praying for of justice. It was held that no illegality and it has long been a rule of practice for on par with an accomplice and that she is in quashing the proceedings of a case pending wrong had been committed by the High insisting corroboration of the statement of fact a victim of the crime, stated trial before the Nari-o-Shishu Nirjatan Court Division in exercising its inherent the prosecutrix, but if the judge feels that emphatically, “We hold conclusively that Bishesh Adalat as well as for holding a power which had been initiated by [the without corroboration in a particular case in a sex offence case there is no legal bar in judicial enquiry. The petitioner being learned advocate]. that conviction can be sustained without believing the sole testimony of the neither the informant nor an accused nor a independent corroboration, then the judge prosecutrix. Nay, she must prima facie be witness in the case, her locus standi to file The pertinent question in the light of the should give some indication in his believed, except in the rarest of rare cases the petition was the moot issue before the above decision is whether by granting locus judgement that he has/had this rule of where she is found unreliable the necessity Appellate Division. After due deliberation, standi to someone not connected with the caution in his mind and then should proceed of corroborative evidence will arise and their lordships of the Appellate Division case, the court has 'activistically' created to give reasons for considering it that the legal custom of insisting on held that the Code of Criminal Procedure new law. I would venture to suggest that unnecessary to require corroboration and corroboration in every case or having been made applicable by section 23 this is not so much creating law as for considering that it was safe to convict alternatively, of stating the reason for of the Nari-o-Shishu Nirjatan Bishesh Ain, expounding the scope of the existing the accused in a particular case without waiving such corroboration is not there was nothing which debars a judicial inherent power of the High Court Division. corroboration.' Their lordships considered applicable in our court.” enquiry as ordered by the High Court a similar view taken by the Indian Supreme Division. With regard to the question of More relevant to the present context, let us Court in Rameswar Vs. The State of In a later decision in the case of Al-Amin locus standi of the learned advocate to take the example of the law relating to Rajasthan 1952 Supreme Court Reports and 5 others vs. State, 51 DLR 154, it was move the High Court Division under evidence in dealing with cases of rape and 377. However, in a later case, reported in held as follows: “Corroborative evidence is section 561A of the Code of Criminal other sexual offences. Past decisions of our AIR 1983 (SC) 753 the Supreme Court of not an imperative component of judicial Procedure, their lordships held that the Supreme Court and those of the Indian India, taking into account the passage of credence in every case of rape. High Court Division in its inherent power Supreme Court tended to require three decades and the increase in the Corroboration as a condition for a judicial may make such orders as may be necessary corroboration of the evidence of the offences against women in India, stated as reliance on the testimony of a victim of sex to give effect to any order under this Code prosecutrix. In the case of Khaleque vs. follows: “in the Indian setting, refusal to act crime is not a requirement of law but or to prevent abuse of the process of any State, 12 DLR (SC) 165, it was held, “... on on the testimony of a victim of sexual merely a guidance of prudence under a 11 12 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

given circumstances. The rule is not that customarily, being a woman of full age, is Similarly the 'Trisha murder case'2 created judgment merits attention. After dealing corroboration is essential before there can not accepted as sufficient, but requires a stir. In that case some hoodlums chased a with the factual aspects of the case, their be a conviction. The testimony of the victim corroboration by independent evidence in girl with ill motive leaving her no choice Lordships made several observations with of sexual assault is vital and unless there are order to be believed. This decision maybe but to jump into a pond. She did not know regard to (i) loopholes in the legal compelling reasons which necessitate contrasted with the decision by the same how to swim and drowned. Her signals for provisions concerned in the case, (ii) the looking for corroboration of her statement, Judges in the case of Abdus Sobhan Biswas help were purposely ignored by the accused plight of rape victims who undergo two the court should find no difficulty in acting vs State, 54 DLR 556, where the evidence who watched her drown. They were crises, one the rape itself and the other, the on the testimony of a victim of sex crime of the rape victim was accepted as convicted of murder, their argument that subsequent investigation and trial, (iii) rape alone to convict an accused where her sufficient for conviction. It is fair to say that they had no intention to kill her did not hold investigations to be conducted by female testimony inspires confidence and is found this is a reminder that one of the cardinal water since they knowingly allowed her to police officers and rape victims to be to be reliable.” His lordship, AK Badrul principles of justice is that the end result in drown, when her actions in desperately medically examined by female doctors, Haque J, who delivered the judgement in each case will be determined by the waving her hands in the air commanded (iv) trial of rape cases to be held in camera the case, went on to say, “One must remain peculiar facts of that case and the quality of their positive action to save her. Rather than for the mental ease and security of the alive to the fact that in a case of rape no self the evidence produced. help, they stood on the bank of the pond and victim who gives evidence in the case, (v) respecting woman especially a college girl enjoyed and ensured her death. In this case provision for compensation for the victim would come forward in a court just to make Many other examples may be cited from conviction under section 302/34 of the to be realised from the offender. These a humiliating statement against her honour which bold statements of judges have set a Penal Code was upheld upon rejecting the matters were specifically mentioned in the and dignity such as involved in the footprint on the law. I may refer just one argument that the offence should be one judgment, in far greater detail, for the commission of rape upon her. The court such case, namely Harun–or Rashid and under section 304A. In the final consideration by the government. In must not cling to fossil formula and insist on another vs State and another, 5 BLC 524, it assessment, the finding of the court is addition the court observed the mode to be corroborative testimony, even if, taken as a was observed, following earlier decisions, neither more nor less than a decision upon adopted by the trial court when a victim of a whole the case spoken to by the victims of that corroborative evidence is not an analysis and scrutiny of the evidence and sex crime is cross-examined in order to sex crimes strikes a judicial mind as imperative component of judicial credence materials on record. ensure that she is not put through probable. Judicial response to human rights in every case of rape. Corroboration as a Thus the conclusion that can be drawn from harassment and humiliation. cannot be blunted by legal bigotry.” condition of judicial reliance on the the above is that through the process of testimony of a victim of sex crime is not a The cases mentioned above, like many Can the above cases be said to be paradigms requirement of law but merely a guidance judicial pronouncements only the creation other similar ones, clearly reflect, not of judicial activism? The answer, arguably, of prudence under a given circumstances of a certain degree of sensitisation has been judicial activism, but the Hon'ble Judges' is that they are mere examples of judicial but not a requirement of law. The notable possible. Judicial activism in those cases, if pro-activism. The mindset of the judge in exposition of evidence law, so far as it factor in this case was that the High Court it can be called that, was purely an reality indicates that he is not necessarily relates to need for corroboration of a victim Division upheld the conviction of rape in exposition of the existing legal principles, an "activist judge", but that he is an 'active of a sex crime. As will be seen from a later spite of the fact that the victim could not be applied to facts of the case. judge' meaning that he has made an decision, the lid was not closed on the issue. found to give evidence during the trial. important decision encompassing the In the case of Hossain Shially (Fakir) vs Reference was made to the Indian Supreme However, in the context of the present whole panoply of the judicial process and State, 56 DLR 637, following the decision Court decision in the case of State of discussion, one other aspect of the Al-Amin procedure relevant to the matter in issue. in the case of Mumtaz Ahmad Khan vs. The Karnataka vs. Mahabaleshwar Gourja State, 19 DLR (SC) 259, it was held that the Naik, AIR 1992 (SC) 2043. In that case the evidence of a prosecutrix in a rape case victim of rape had committed suicide. 13 14 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

One other oft-referred example of judicial recent decision in the case of The State Vs. during his journey from an allegation being one or the other is treason to the activism relates to those cases commonly Md. Roushan Mondal @ Hashem, BCR made against him to the final conclusion of Constitution." To this I would only add in known as 'wife-killing' cases. Again I 2006 HCD 275. This case highlighted some his trial ending in his conviction and the context of our laws that the laws are suggest that those cases simply reflect a of the shortcomings of our trial courts in imprisonment. made for a purpose and it is our duty to give correct exposition of section 106 of the dealing with child offenders. It appears that effect to them. Evidence Act. I venture to add that the most of the trial courts are unaware of the In the two above instances we have sought provision is not in fact restricted to cases of provisions of the Children Act, 1974 and to bring to the fore the provisions laid down It is said, "Judges must be sometimes wife-killing. Such restriction would have not the faintest idea of how trials in the Children Act 1974, which appeared cautious and sometimes bold. Judges must amount to incorrect interpretation of the under that Act should be conducted. The to be seldom followed in accordance with respect both the traditions of the past and law. The provision relates to special numerous covenants and conventions the mandate of the law and the rules the convenience of the present. Judges knowledge which is imputed to the person concerning the welfare of children in promulgated there under. I would venture must reconcile liberty and authority; who is within the vicinity of the victim, to conflict with the law, their trial and the to suggest that this is not judicial activism, the whole and its parts." In our judgments, the exclusion of others, i.e. the one who was sanction to be imposed upon them after due although it may be termed as judicial pro- what we have aimed at is to do justice to the in the best position to know. He is required process, were dealt with in some detail in activism, in other words rising to the to explain how the victim met his/her fate. o u r j u d g m e n t a n d c e r t a i n occasion to interpret the law in its proper case and at the same time ensure that failure This is an exception to the rule of burden of recommendations were made suggesting perspective with a view to redress the of justice is avoided, bearing in mind that proof being on the prosecution to prove the provision of new law incorporating the misery of the hapless and downtrodden, but the right of the citizen, be s/he accused or guilt of an accused beyond reasonable latest international documents concerning at all times remaining within the ambit of victim is to be dealt with even-handedly, in doubt. In a relatively recent case3, heard on children and also with a view to ironing out the law. It is also a positive attempt to accordance with law, affording to him/her appeal by the High Court Division, some of the anomalies remaining within the ensure that provisions of law enacted for all the facilities and benefits provided by presided over by the author, it was held that system of trials of child offenders. the benefit of a certain class should be the law. where there was no possibility of any I may also be forgiven for mentioning an properly and correctly administered in the outsider entering the house in which the true light and spirit of the law itself and of It is our view that the Supreme Court can occurrence took place, during the night of article, written by the author, published in the Constitution. come to the aid of the hapless and the occurrence, the person having dominion the Human Rights Magazine 2007.4 The As was said by Chief Justice Marshall of downtrodden and can act, as it has acted in over the house, who lived in the same article was written after a division bench of the USA, "The judiciary cannot, as the the past, even on news items published in premises, was liable to explain the death of the High Court, presided over by the legislature may, avoid a measure because it the media. These are signs of a pro-active another co-inhabitant. This decision, I author, noted serious malfunctioning of the approaches the confines of the judiciary working in aid of the mandate of believe releases the fetters, if there were trial system concerning the process and Constitution. We cannot pass it by because the Constitution to provide proper any, on the interpretation of section 106 of procedures to be followed when dealing it is doubtful. With whatever doubts, with application of the law in case of weaker and the Evidence Act, which in our view has with child offenders.5 The article whatever difficulties, a case may be disadvantaged section of the citizenry. An general application and is not confined to highlights the various stages at which the attended, we must decide it, if it be brought example of this was the report in the 'wife-killing cases'. appellant in a jail appeal suffered due to before us. We have no more right to decline newspapers regarding children in prison, legal provisions not being followed by the the exercise of jurisdiction which is given, which resulted in a suo motu Rule being In a similar vein, I mention the relatively concerned authorities whom he faced than to usurp that which is not given. The issued by the High Court Division.

3Death Reference No.66 of 2003, State vs. M.A. Kader and others – Judgment delivered on 29.01.2007 by AKM Fazlur Rahman, J. 15 16 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 REFERENCES: Conceptually this is not as 'activistic' as it always bearing in mind the structure of the might appear at first sight. The Constitution society, its cultures, mores, difficulties and th by virtue of Article 28(4) permits enactment drawbacks, and above all keeping in view Tag Archives: Supreme Court: A novel way of ensuring transparency in the higher judiciary? Accessed 16 of discriminatory laws in favour of women the rule of law. If while acting under the October 2012 http://letstalkaboutthelaw.wordpress.com/tag/supreme-court/ forgoing urge to do justice in accordance and children, for example. The Children Judgment of Chief Justice Marshall of the US Supreme Court who observed that the Constitution was the Act was enacted in 1974 dealing with law, the judges appear to be 'guilty of fundamental and paramount law of the nation and "it is for the court to say what the law is". exclusively with children who come into judicial activism', then so be it. This, to my contact with the law. This law specifically mind, is 'beneficent activism' and not to be The State v Mehadi Hasan alias Modern and others 24 BLD (HCD) 497 excludes child offenders from the prisons. decried or sneered at. This type of judicial The suo motu Rule was, therefore, activism is good for the poor and Death Reference No.66 of 2003, State vs. M.A. Kader and others – Judgment delivered on 29.01.2007 by AKM amending a wrong done by incarcerating oppressed, who are otherwise prevented Fazlur Rahman, J. children, contravening legal provisions, from getting proper and proportional Fundamental Rights of Children: Rights of Youthful Offenders are ensured by the Constitution (2007) treatment under the law and denied redress namely the Children Act 1974 and the Human Rights Magazine Constitution. It must be borne in mind that due to various hurdles- economic, social, where the Constitution empowers the educational etc. Human Rights and Peace for Bangladesh (HRPB) legislature to discriminate in favour of certain section of the citizenry, then it is all In conclusion, I would say that, what is Jail Appeal No.552 of 2007 the more incumbent upon judges to ensure most necessary to combat violence against that the benefit so enshrined in law, women and children and to ensure their Excerpts of the Keynote speech delivered at the Convention of the Bangladesh National Woman Lawyers' Association held at the Bangladesh China Friendship Centre on 2-3 December, 2007] authorised by the Constitution, is given full rights is to create awareness amongst all effect. actors concerned, namely the accused, victims, lawyers, welfare agencies, NGOs, As an inherent characteristic of their probation service, police, investigating appointment, many judges across the globe agencies, doctors, forensic scientists, act with more self-restraint, sometimes magistrates and judges, etc., about the doggedly adhering to old norms, which is provisions of the relevant laws, to sensitise least befitting to the needs of the day. all the persons manning the machinery of However, judicial activism in its popular justice to the peculiar needs of those sense need not necessarily be the antithesis persons who come into contact with the law of self-restraint. In the examples cited enforcing machinery. above, I believe the judges dealing with cases of violence against women and children as well as those concerning the rights of child offenders, have not been making any new laws, but have propounded the law in its correct spirit and perspective, keeping in mind the subjects whom the laws were enacted to protect and benefit and 17 18 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

was finally demonstrated by the revolution and that if such a parliament purports to do of 1688. so, the constitutional court can undo such Sovereignty, no doubt, connotes an Act. This theme has been implemented omnipotence: in other words, an ability to in scores of cases in India, Pakistan, Sri act as the postulant wishes. Sovereignty Lanka, Bangladesh, South Africa and imports untrammelled power, power to act many other countries with written at whim, power to do or undo anything constitutions. The Apex Courts of these literally possible, power to even act in countries have struck down purported Acts defiance of logic and reason. As Sir Ivor of parliament. t is topical amongst politicians Jennings stated power to declare a man as a in many countries that were woman and vice versa. The British parliament's sovereignty is I previously ruled by British explicable. There is no authority in Britain imperialism to purport to Prof Dicey observed that the British which is superior to parliament. Parliament portray that their post parliament is sovereign because 1) it can is not a creature of patriarch, nor does it independence parliaments are also as pass any law on any subject 2) there is no owe obedience to, or is bound by any 'sovereign' as was the imperial parliament. authority in the realm which can question superior law or entrenched provision. So, They tend to nurture this view on the basis the validity of an Act of parliament 3) no its power is unbounded, not circumscribed of the British concept, more precisely, on parliament can bind its successor. by any dictating provision as Britain does Abstract: the Diceyan doctrine. not have an overriding written instrument. The core question is -- can a parliament The British Parliament, despite the The research paper explores the under a written constitution regime be existence of the European Communities That is not the case where a written complexities involved in parliamentary sovereign? Act 1973, can pass any law it wishes and constitution reigns supreme. In such a sovereignty as it may be contrasted with the that, as Lord Reid proclaimed, there is no country the constitution is the progenitor of doctrines of separation of powers, which Professor A V Dicey championed this forum in Britain before which the validity all the organs, authorities of the state. All owe their existence to that written limits the legislature's scope often to theory and argued that sovereignty of of an Act of parliament can be challenged. parliament is one of the three distinctive Can such a claim be substantiated in respect instrument, bound by what that instrument general law-making, and judicial review, features of the British legal system. to the Parliament in a country with a written dictates. So a parliament with a written where laws passed by the legislature may be constitution? The obvious answer is bound constitution, which is the creation of the declared invalid in certain circumstances. Notwithstanding the developments that to be in the negative. constitution, cannot override any provision The discourse cites several parliamentary followed the passage of the European of the constitution. Its power, as the High democracies which may have served as Communities Act 1973,1 and the House of It was firmly settled by the US Supreme Court Division of Bangladesh Supreme th referents for the Appellate Division of the Lords ruling on the case, ex-parte Court in the tide turning case of Marbury v Court proclaimed in the 7 Amendment Factortame, it will be no exaggeration to case, the parliament's power in respect to Supreme Court of Bangladesh in effacing Madison3 that a parliament under a written th say that the British parliament remains constitution cannot pass a law that is legislation is subject to the express the Act of parliament by which 8 sovereign. As Lord Reid observed in Pickin repugnant to a provision in the constitution provisions of the constitution. amendment was purportedly brought about v British Railway Board2, any idea that an in the constitution, asserting that the power Act of parliament can be disregarded, is 1 O'Halloran, Anthony (20 Jan 2010) The Dail in the 21st Century (County Dublin: Mercier Press, 2010) 178 of Bangladesh parliament is limited. obsolete since the supremacy of parliament 2 Winterton, G. , ed., (2007) State Constitutional Landmarks (Sydney: The Federation Press) 382 19 20 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Sir Ivor Jennings 4stated, 'A written the Diceyan sense.’6 Bangladesh parliament is limited. The erroneous claim that Parliament even constitution is thus the fundamental law of a in a written constitutional country is country….all public authorities-legislative, Prof James Read of the 'Commonwealth Justice U C Banerjee of India made it clear sovereign is based on the claim that Legal Education Association' expounded, administrative and judicial-take their power that the Indian parliament was more akin to sovereignty lies with the people and as the directly or indirectly from it'. He went on to 'The supremacy (or even misleadingly that of its US counterpart rather that of the parliament is composed of the say, 'Indeed in modern constitutional law it 'Sovereignty') of parliament has long been is frequently said that a legislature is one of the doctrines offered by British UK in that the Indian parliament does not representatives of the people, it is sovereign within its power. This is of Constitutional Lawyers, including enjoy sovereignty in the sense the British sovereign. But in thinking so, the claimants course, a pure nonsense if sovereignty is Dicey…..In any case, it could not survive parliament does. ignore the fact that the people have not supreme power, for there are no powers of a transplantation into the political order of a granted unlimited power to their sovereign body; there is only the unlimited new state established by a written As Mr. Pranab Mukherjee, the newly representatives, but only such powers as power which sovereignty implies.’ constitution which imposed variety of elected President of India has are permissible by the constitution which limitations upon the legislative power….’ KC Whear insists that to give omnipotence unequivocally stated, in a written in turn the people have proclaimed by to a parliament in a written constitution Professors AW Bradley and KD Ewing constitution country the sovereignty lies virtue of their sovereign power. regime is tantamount to giving the deputy wrote 'The doctrine of legislative with the constitution. greater importance than his principal5. supremacy distinguishes the United Kingdom from those countries in which a A G Marshall explains that where REFERENCES: autochthony exists, the resultant document, written constitution imposes limitation on the constitution is supreme. Marshall the legislature and entrusts the ordinary argued that supremacy, in the Diceyan courts or a constitutional court to decide Basu, D.D (1977) Commentary on the Constitution of India: article 19, complete with constitution amendment sense, cannot have an abode in a written whether Acts of the legislature comply with acts and a critical survey of the 42nd amendment act (Kolkata: S.C Sarkar) constitution country. the constitution.’ In the Supreme Court of Bangladesh High Court Division (Special Original Jurisdiction) Writ Petition No. 696 of Dr. Durga Das Basu, an authority on Indian 2010 [Online] http://www.supremecourt.gov.bd/scweb/documents/270095_WritPetitionNo7thAmendment.pdf constitution, observed, 'A law enacted by The Appellate Division of the Supreme [Accessed 17/10/2012] legislature cannot transgress or violate the Court of Bangladesh in effacing the Act of provisions of fundamental law. Thus the parliament by which 8th amendment was Jennings, Ivor (1963) The Law and the Constitution (London: University of London Press) parliament under the Indian constitution purportedly brought about in the cannot be said to be sovereign legislature in constitution, asserting that the power of O'Halloran, Anthony (20 Jan 2010) The Dail in the 21st Century (County Dublin: Mercier Press, 2010) 178

Tushnet, Mark, ed., (2005) Arguing Marbury v Madison (Stanford, Carlifornia: Stanford University Press) 3Tushnet, Mark, ed., (2005) Arguing Marbury v Madison (Stanford, Carlifornia: Stanford University Press) 4Jennings, Ivor (1963) The Law and the Constitution (London: University of London Press) Winterton, G., ed., (2007) State Constitutional Landmarks (Sydney: The Federation Press) 382 5In the Supreme Court of Bangladesh High Court Division (Special Original Jurisdiction) Writ Petition No. 696 of 2010 [Online] http://www.supremecourt.gov.bd/scweb/documents/270095_WritPetitionNo7thAmendment.pdf [Accessed 17/10/2012] 6Basu, D.D (1977) Commentary on the Constitution of India: article 19, complete with constitution amendment acts and a critical survey of the 42nd amendment act (Kolkata: S.C Sarkar) 21 22 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

really very different - many more lawyers; matters have been of much recent interest more of them working in the jurisdiction and will likely be included. These are having undertaken their legal education discussed later on. Perhaps more important and qualification outside of England & is the ability of those involved the review Wales; law firms that come in very different (myself included) to be able to stand back shapes and sizes (from the 'mega' firm of and see the wood for the trees. What the thousands of lawyers via the 'virtual' law Review offers is the chance for debate on firm with no physical headquarters to two core and interlinked questions: what is Alternative Business Structures and law for? and what is legal education for? ay you were given absolute outside investment following the Legal One's views on these questions will very power to dictate the way in Services Act) etc. much be a product of where one sits in the S which lawyers in England & world of legal education and training and Wales are educated and The question then is to what extent these what one sees as the 'issues' in need of trained, from the moment they changes (and many others) in the legal r e v i e w a n d r e f o r m . enter university to the moment they retire. profession suggest or necessitate changes W h a t w o u l d y o u d o ? T h i s in legal education and training. At present, it is impossible to ascribe fundamental question is at the heart of a common views on legal education with any review (the "Review") announced in Equally important is the fact that the precision to the different interest groups. November 2010 by three regulators of the economics of legal education and training That is, it is simply not possible to say, legal sector: the Solicitors Regulation have also altered fundamentally since "Universities providing undergraduate law Authority (SRA) who regulate solicitors; 1967. Following the Browne review into degrees think X of legal education and the Bar Standards Board (or BSB) who university funding in England, 'home' training and providers of the LPC and regulate barristers; and ILEX Professional students on a three year undergraduate law BPTC think Y". While there have been any Standards (or IPS) who regulate legal degree may be faced with £40,000 of debt number of disparate, individual comments Abstract: e x e c u t i v e s . in fees and maintenance loans. Someone in the media on legal education and who then goes on to self fund their training, many of these are based on The paper engages in a debate surrounding The last fundamental review of legal postgraduate vocational legal training (via anecdotal evidence and we lack a sector the controls/exemption over the ways education in England & Wales started in the LPC or BPTC) could easily end up with wide, reliable and robust data set on which lawyers should be educated or trained. The 1967 (reporting back in 1971) and £60,000 of debt in total. What then does this to base informed views. We also do not research traces the origin of the debate to essentially attempted to reconcile the mean for the Review? Calls have come have a full understanding of the opinions of the fundamental question raised at the demands of vocational training (the process from certain quarters to reduce the length of each of the relevant stakeholders (students, heart of a review (the "Review") announced of 'becoming' a lawyer) with the academic law degrees and/or to combine academics, vocational course providers, in November 2010 by three regulators of the study of law in universities. Skip forward undergraduate and vocational legal legal practitioners, clients etc). legal sector: the Solicitors Regulation four decades and roughly the same sort of qualifications. But such reforms, if possible Authority (SRA); the Bar Standards Board i n q u i r y i s or desirable, are only part of the matter. Happily the Review is set to address both of (or BSB); and ILEX Professional Standards likely to form at least part of this Review. these matters, through the commissioning (or IPS). However, much has changed since 1967. The specific areas that the Review will of targeted research and the creation of a In particular, modern legal practice looks address are not known, though some s t a k e h o l d e r r e f e r e n c e g r o u p . 23 24 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Despite the point made above that the sector and then assess their own realistic (and what may prove extremely difficult) is Review should be more than a catalogue of c h a n c e s o f s u c c e s s . to be confident of a system of legal separate issues, it is perhaps worth education and training that is sufficiently mentioning two specific matters that have On the second issue, there are concerns that flexible and forward looking to meet the gained a good amount of traction in the undergraduate law degrees are too cerebral needs of lawyers (and consumers of legal media. The first goes to a perceived 'over and do not adequately prepare would-be services) today and in the years to come. supply' of students with vocational lawyers for their vocational training and qualifications. The second questions the development. While this concern needs to e x t e n t t o w h i c h be fully explored, there is a much wider undergraduate law degrees prepare students issue at play: what is a university education for their vocational training and subsequent for? Is there a right in and of itself to a REFERENCES: q u a l i f i c a t i o n . liberal arts education which allows a student to grow as an intellectual person? Or do we believe that law is essentially a On the first issue, each year there are a Legal Education and Training Review: About LETR [Online] vocational subject for which there are a number of students who complete the LPC http://www.sra.org.uk/sra/how-we-work/legal-education-training-review-letr.page [Accessed 28th Jan 2011] or BPTC and who are unsuccessful in core set of skills and competencies securing a training contract or pupillage. In (commercial awareness; legal writing; this context, certain commentators have public speaking and presentation etc) that talked about law schools 'exploiting' universities are obliged to inculcate in their students who have little realistic prospect of students? Whatever one's view, it is becoming a lawyer. Three points are worth questionable how well the academy would making here. The first is that the numbers respond to attempts to modify or limit its may not be as bad as they seem (especially academic freedom. In addition, there may as regards those wishing to become be a somewhat overzealous fixation on solicitors, where a large drop in training undergraduate law degrees at a time when, contracts seems a temporary corollary of each year, the majority of those admitted the credit crunch). The second is that a onto the roll as solicitors either do not have situation of far greater concern (for a law degree (having undertaken a non-law consumers of legal services) would be one undergraduate degree and then the GDL) or of parity between the numbers completing have been educated outside England & the LPC or BPTC and the number of jobs Wales (and completed the Qualified available (as some level of oversupply Lawyers Transfer Test). suggests the 'best' graduates are getting the limited number of jobs available). The third The Review is set to last two years, with the i s t h a t t h o s e SRA, BSB and IPS expecting to make applying for the LPC or BPTC are not findings in the interim. Little at this stage is children and should be able to effectively a given, save that the Review is as research employment prospects in the legal challenging as it is important. What is key 25 26 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

('ECtHR') have a positive obligation to 'I conceive that marriage, as balance the interests of the sexual understood in Christendom, may minorities and the opponents of same sex for this purpose be defined as the marriage due to their religious belief3. This voluntary union for life of one man Ph.D. thesis will thus call for a 21st Century and one woman, to the exclusion of gender neutral interpretation of the right to all others'.6 marry and to found a family in Art.12. This common law definition was ommencing from Article 12 of In Schalk and another v Austria4, the abandoned by Canada in Halpern et al.7 v the European Convention on ECtHR unanimously rejected a same Attorney General of Canada et al. On the C Human Rights ('ECHR'), the sex marriage plea from Austria. On its European level, when the ECHR was question of this research is face, it seems like a failure of the drafted, the concept of 'nuclear family' with whether the narrow applicability of Art.12's L e s b i a n , G a y, B i s e x u a l a n d a heterosexual couple and 2.4 children rights of marriage and family to the Transsexual ('LGBT') community. under the auspice of Christendom was the Abstract: heterosexual 'nuclear families' only Nevertheless, this is the first time that norm. The UK Household Composition 'restricts or reduces the right in such a way the issue of same sex marriage entering Census 1971 and 2001 indicated that the Article 12 of the European Convention on or to such an extent that the very essence of into the ambit of the non-qualified percentage of married couple has Human Rights ('ECHR'), the international the right is impaired, so as to be Art.12 which states: decreased from 90% to 64%; single treaty to protect human rights and disproportionate to any legitimate aim parenthood has increased from 1% to 10% fundamental freedoms in Europe, raises the pursued'?1 'Men and women of marriageable whilst the rate of divorced parent has question is whether the narrow age have the right to marry and to increased from 2% to 9%; and the average applicability of Art.12's rights of marriage In Goodridge v Dept. of Public Health, found a family, according to the number of children in a family is now 1.6.8 and family to the heterosexual 'nuclear Judge Marshall clarified that 'there are national laws governing the With regard to religion, Justice Munby families' only 'restricts or reduces the right three partners to every civil marriage: two exercise of this right.' observed that 'we now live in a multi- in such a way or to such an extent that the willing spouses and an approving State.'2 From the literal reading of Art.12, the cultural community of many faiths in very essence of the right is impaired, so as Observing the debate of same-sex marriage subject is limited to 'men and women of which all of us can now take pride.'9 to be disproportionate to any legitimate and the recent call for equal marriage for marriageable age'. The exercise of Art.12 is Since the enactment of the Civil aim pursued'? The author addresses the homosexual couples and civil partnership subject to the national laws under the Partnership Act 2004,10 which is a issue which the judges confront: where to for heterosexual couples in the United scrutiny of proportionality. In the UK, compromise to keep the same-sex couples draw the line between the equality and Kingdom, the author proposes that there is marriage is defined by Lord Penzance in from using the name marriage, there are dignity of the sexual minorities and the a relationship of ménage à trois between Hyde v Hyde as follows5: approximately 34,000 same sex families State, Church and the same sex couple. It is 1Shazia Choudhry and Jonathan Herring, European Human Rights and Family Law, (Hart, Oxford and Portland, Oregon, 2010) 141 alternative families. 2Hilary Goodridge v Department of Public Health, Supreme Judicial Court of Massachusetts, 440 Mass. 309 (2003) also proposed that the state and the 3Minister of Home Affairs and Another v Fourie and Another, (CCT 60/04) [2005] ZACC 19; 2006(3) BCLR 355 (CC); 2006 (1) SA 524 (CC) 4Schalk and another v Austria [2010] ECHR 30141/04. European Court of Human Rights 5Hyde v Hyde and Woodmansee, (1865-69) L.R. 1 P. & D. 130 27 28 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

formed according to a 200811 survey. The reinterpretation of Art.12 is needed 1965 Loving v. Virginia said, separated the races shows that he Vatican released a statement that 'allowing imminently. did not intend for the races to mix.’ children12 to be adopted by persons living in 'Almighty God created the races such [same-sex] unions would actually In 1979, the ECtHR recognized the right of white, black, yellow, malay, and Forty-five years later, this decision seems to mean doing violence to these children'. children born out of wedlock under Art.8 in red, and he placed them on separate be out of touch on a global scale. In the 21st Some considered that the 'nuclear family' Marckx v Belgium17. In 2002, the famous continents. And but for the century, maybe it is worth once again asking concept is in crisis.13 Some proposed that it Goodwin v United Kingdom confirmed the interference with his arrangement ourselves this question, how far can the is time to reexamine the function, form and transsexual's right to marry and found a there would be no cause for such society go in allowing members of religious st law of family and marriage in the 21 family under Art.12.18 This proves that the marriages. The fact that he communities to define for themselves Century.14 ECHR can be a living instrument in an which laws they will obey and which not. 20 ever-changing society. Today, gender- It is proposed that these non-traditional, neutral marriages are legal in seven alternative or 'different families'15 are not European countries, Canada, South Africa REFERENCES: socially different but legally treated and Argentina. The ECtHR is unable to differently. By confining marriage and hide behind the veil of margin of Shazia Choudhry and Jonathan Herring, European Human Rights and Family Law, (Hart, Oxford and Portland, Oregon, 2010) 141. family to the archaic common law appreciation for much longer. The ultimate definition in Hyde v Hyde and keeping question for the judges would be where to Hilary Goodridge v Department of Public Health, Supreme Judicial Court of Massachusetts, 440 Mass. 309 these different families outside of Art.12, it draw the line between the equality and (2003). created a sexual caste system and harms the dignity of the sexual minorities and the Minister of Home Affairs and Another v Fourie and Another, (CCT 60/04) [2005] ZACC 19; 2006(3) BCLR 355 very essence of the marital and familial alternative families, and the religious belief (CC); 2006 (1) SA 524 (CC). rights. The 'separate but equal' argument of some Christians. from the same sex marriage camp is an echo Schalk and another v Austria [2010] ECHR 30141/04. to this jurisprudence.16 A teleological The first instance judge Leon Bazile19 in the Hyde v Hyde and Woodmansee, (1865-69) L.R. 1 P. & D. 130.

6 Ibid. 7 Halpern et al. v Attorney General of Canada et al., (2003) 60 O.R. (3d) 321 Halpern et al. v Attorney General of Canada et al., (2003) 60 O.R. (3d) 321. 8 Fiona William, Rethinking Families, (Calouste Gulbenkian Foundation, London, 2005) 9 Singh v Entry Clearance Officer New Delhi, [2004] EWCA Civ 1075. Concurring opinion by Justice Munby. 10 Civil Partnership Act 2004 (c.33) Fiona William, Rethinking Families, (Calouste Gulbenkian Foundation, London, 2005). 11Office for National Statistic, Civil Partnerships, figures from 2005 to 2008 [Online] http://www.statistics.gov.uk/cci/nugget.asp?id=1685 [Accessed on 14 June 2010] 12 Offices of the Congregation for the Doctrine of the Faith, 'Considerations Regarding Proposals To Give Legal Recognition To Unions Between Singh v Entry Clearance Officer New Delhi, [2004] EWCA Civ 1075. Concurring opinion by Justice Munby. Homosexual Persons', Rome, 3 June, 2003 13 Caroline Wright and Gill Jagger, 'End of century, end of family?: shifting discourses of family “crisis”' in Gill Jagger and Caroline Wright (eds.), Changing Family Values, (Routledge, London and New York, 1999) 17 Civil Partnership Act 2004 (c.33). 14 Martha Albertson Fineman, The Autonomy Myth, (The New Press, New York and London, 2004); also see John Eekelaar and Thandabantu Nhlapo (eds.), The Changing Family, (Hart, Oxford, 1998) 15 A term used by Stonewall UK and the International Lesbian and Gay Association 16 Plessy v Ferguson, (1896) 163 U.S. 537 and Brown v Board of Education, (1954) 347 U.S. 483 Office for National Statistic, Civil Partnerships, figures from 2005 to 2008 [Online] 17 Marckx v Belgium, (1979) 2 EHRR 330. http://www.statistics.gov.uk/cci/nugget.asp?id=1685 [Accessed on 14 June 2010] 18 Goodwin v UK (2002) 35 EHRR 18 19 Loving v Virginia, (1967) 388 U.S. 1 20 Christian Education South Africa v Minister of Education, (2000) 9 BHRC 53. Offices of the Congregation for the Doctrine of the Faith, 'Considerations Regarding Proposals to Give Legal 29 30 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Recognition to Unions between Homosexual Persons', Rome, 3 June, 2003.

Caroline Wright and Gill Jagger, 'End of century, end of family? shifting discourses of family “crisis”' in Gill Jagger and Caroline Wright (eds.), Changing Family Values, (Routledge, London and New York, 1999) 17.

Martha Albertson Fineman, The Autonomy Myth, (The New Press, New York and London, 2004); also see John Eekelaar and Thandabantu Nhlapo (eds.), The Changing Family, (Hart, Oxford, 1998).

A term used by Stonewall UK and the International Lesbian and Gay Association.

Plessy v Ferguson, (1896) 163 U.S. 537 and Brown v Board of Education, (1954) 347 U.S. 483.

Marckx v Belgium, (1979) 2 EHRR 330.

Goodwin v UK (2002) 35 EHRR 18.

Loving v Virginia, (1967) 388 U.S. 1.

Christian Education South Africa v Minister of Education, (2000) 9 BHRC 53.

Abstract:

The Hague Visby Rules scheme solves many of the issues involved in the carriage of goods by sea but not all of them. The new Rotterdam Rules provides a total solution, the research paper argues. 31 32 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

he current legal regime relating relating to Bills of Lading" and after the bargaining position. party to the contract of carriage, the to bills of lading is a result of same was amended by the Brussels doctrine of privity of contract affirms that a T developments that began some Amendments (officially the "Protocol to Indira Carr (2009) aptly points out the third party is not in a position to enforce the two centuries ago. In majority Amend the International Convention for shortfall of the Hague-Visby Rules as agreement. The most pertinent question is o f i n t e r n a t i o n a l s a l e the Unification of Certain Rules of Law follow who owns the goods and who holds the transactions the bill of lading plays a Relating to Bills of Lading") in 1968, the “The vessel owner, who risks associated with the carriage and significant role. As understood commonly, Rules became known as the Hague-Visby always has had an upperhand in the accordingly it would be a matter of concern the bill of lading is a contract of carriage Rules. In 1979 the final amendment was drafting of the contracts of carriage to the consignee. However, such a thing between the carrier and the endorsee or the made in the SDR Protocol. of goods by sea, hence, the stronger can be known with a close examination of consignee. To determine the rights and of the contracting parties, the terms of all the relevant contracts. The liabilities of the parties to the contract the The underpinning of the Hague-Visby unavoidably incorporated all consignor can sue to recover his or her loss terms contained in the bill of lading are Rules is that a carrier has more bargaining embracing exclusion clauses. in the situations where a consignor has referred to. The provenance of the terms power than the shipper; and that to salvage Carriers were exempted from reserved title until payment is made. seems to interesting -- "to lade" which the interests of the shipper/cargo-owner; liability for loss or damage from However, it is to be noted with due regard means to load a cargo onto a vessel. the law should decree minimum perils of the sea, decay, strikes, that if ownership and/or the risk of loss has obligations upon the carrier. deviation to unseaworthy ships and passed to the consignee, the right to sue The bill of lading is issued by a carrier to a their own negligence. The exclusion may not be clear in contract, although there shipper, assenting to the fact that specified Under the English Common law earlier a clauses operated totally in the could be remedies in tort/delict (the issue goods have been arrived as cargo for vessel was strictly accountable for the safe carrier's favour and goods were of risk will have been closely considered to conveyance to a named place for delivery to transport of the cargo to its destination and carried entirely at the merchant's decide who should insure the cargo). As a the consignee or endorsee, which is usually delivery to the designated consignee. The risk.” r e s u l t , n u m e r o u s i n t e r n a t i o n a l identified. vessel could however disavow this strict Conventions and country-specific laws liability by incorporating appropriate The above shortcomings contribute to the particularly address when a consignee has A string of international conventions -- The clauses in contract of carriage. obsoleteness of "bill of lading". the necessary right to sue. In order to grant Hague Rules, the Hague-Visby Rules and Particularly Articles 1:15 & 1:16 of the consignee the same rights of action held by the Hamburg Rules which decree on the The rapid rise in ocean traffic witnessed the Rotterdam Rules create the new term the consignor a suitable legal solution is carrier minimum responsibilities and increased use of exemption clauses in the "transport document”. fleshed out from the principle of liabilities that cannot be reduced with 19th century. The priority attached to the subrogation. appropriate clauses in the contract – apply laissez faire philosophy which facilitated A bill of lading does no more than figure out to most of the bills of lading. the unbridled freedom in commercial that a particular person has the right to Earlier British judges, believing in the agreements sets out a significant era for possession at the time when delivery is The most prominent of them was the laissez faire philosophy, were sympathetic Hague-Visby Rules were a set of English contract law. The English courts about to be made. Discontentment arises to clauses under Hague-Visby Rules. The international rules for the international emphasized on ensuring that the parties when cargo is discovered to have been lost carriage of goods by sea. Originally drafted steadfastly kept to the terms of their or vitiated in transit, or delivery is deferred volume growth of ocean traffic enabled to in Brussels in 1924 the Hague-Visby Rules agreement and were hesitant to intervene in or refused. Since the consignee is not a adduce reasons in support of Britain were officially christened as the the contract between individuals.

"International Convention for the Apparently this tolerant attitude helped 1 Indira Carr, International Trade Law (Oxford: Routledge, 2009) p 229 Unification of Certain Rules of Law those individuals who were in a better 33 34 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

maritime interests, hence the laissez faire as a red book for Hague Rules as a many of UK witnessed the implementation of unification of international transport philosophy stayed on its course. the convention's provisions were modeled Hague-Visby Rules with Carriage of Goods contracts as flaws in the Hague-Visby on provisions found in the earlier Harter by Sea Act 1971 which repealed the earlier Rules were becoming more apparent. Under a unified legal and political The US Supreme Court took a contrary Act. Swinging into action The Hague Rules Act of 1924. In the case of some signatories the Hague Rules and the Hague-Visby framework for maritime carriage of goods view to the liberal British attitude to set a threshold level of liability that could Rules co-existed since the Hague-Visby Rotterdam Rules deliberate on an evolving disclaimers in bills of lading and also, other not be contracted out of by the carriers. As a Rules were not adopted by them. For and comprehensive code of conduct for jurisdictions were at a variance with signatory to 'Hague Rules' convention example, US were under the spell of governing the rights and obligations of Britain. For example, the US Supreme Britain was forced to implement the Hague Hague-Visby Rules. carriers, shippers, and consignees under a Court subjected the exclusion clauses to a Rules with the Carriage of Goods by Act contract for door-to-door shipments that number of overriding obligations, such as 1924. During an exchange of trade between US involve international sea transport. the obligation to provide a seaworthy vessel and UK a bill of lading issued for goods sent from the US may be subjected to the This is to say the purpose of the and to take due care of the consignment. Indira Carr2 points out the grey areas of Hague Rules rather than the Hague-Visby convention is to extend and refurbish the Hague Rules which were vindicated Rules. existing international rules and achieve The Harter Act in 1893 passed in the US subsequently. Indira Carr3 reflects on this as follow: uniformity of admiralty law in the field of Congress was particularly delivered a maritime carriage, updating and/or decisive blow to this laissez faire “Failings of the Hague Rules … “The implementing legislation, the replacing many provisions in the Hague Rules, Hague-Visby Rules and Hamburg philosophy which limited the vessel- surfaced over time as a consequence Carriage of Goods by Sea Act 1971 of litigation and developments in to which the Hague-Visby Rules are Rules4. The Rotterdam Rules have been owner's freedom of contract and sought to shipping technology. For instance, attached as a schedule, provides in s p r e p a r e d i n i n t e rg o v e r n m e n t a l protect the cargo owner. the defenses and limitation of 1(2) that the Rules shall have the negotiations that lasted for over a decade liability afforded by the Rules did force of law. In other words, the by the UNCITRAL. On the other hand the Yet it was found to be not enough and not extend to the servants or agents Rules must be treated as if they are a Comité Maritime International (CMI) sooner an international convention was of the carriers, and the calculation of part of directly enacted statute. The conducted the preparatory work on the created to redress the imbalance caused by limitation of liability in terms of consequence of this, according to Convention at the request of UNCITRAL including a preliminary draft text for the the laissez faire. Further, to this effect the packages or units was not The Hollandia, is that the parties' s u f f i c i e n t l y f l e x i b l e t o intentions are overridden by the Convention. The signing ceremony was 'Hague Rules' (originally the International accommodate consolidation of provisions of the Rules.” held in Rotterdam from 20 to 23 September Convention for the Unification of Certain cargo in containers. This led to the 2009.5 Rules Relating to Bills of Lading, Brussels, drafting of the Brussels Protocol Rotterdam Rules, in actuality the 2008 1924) was drafted between 1921 and 1923 which revised the Hague Rules United Nations Commission for The Rules promise to accommodate and signed by a host of big-ticket trading (hereinafter Hague-Visby Rules) in International Trade Law (UNCITRAL) contemporary trade practices as those nations in August 1924. Harter Act served 1968.” Convention, aims to achieve a legal treating the carriage of goods by sea

4"2008 - United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea - the 'Rotterdam

2Indira Carr, International Trade Law (Oxford: Routledge, 2009) p 230 Rules'.".http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/2008rotterdam_rules.html ( Retrieved on 29 December, 2011) 3Ibid., 5Rotterdam Rules, http://www.rotterdamrules.com/en/ ( Retrieved on 29 December, 2011) 6Yvonne Baatz et al., The Rotterdam Rules: A Practical Annotation (Institute of Maritime Law, 2009) 35 36 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

as part of wider commercial transport regimes.9 However, specific obligations volume contracts; continuous character of The Rotterdam Rules now extend this operations and largely dependent on e- (art. 13 (1)), the duty to provide a seaworthy the obligation of seaworthiness; bull; limits wording by creating the performing party. commerce for their businesses for the ship (art. 14) and exonerations from of liability; rights during transit; recovery However there is no possibility to sue the Rules create the explicit legal basis for liability (Art. 17 (3)), have been taken from of loss of and damage to goods caused by performing party directly under the the use of electronic transport records. The Hague/Visby Rules with some accidents of navigation; jurisdiction and Rotterdam Rules. This is left to the Rotterdam Rules also provide the important changes.10 In contrast, deck arbitration; role of subcontracted carriers applicable national law.17 greater legal assurance for each party's carriage and jurisdiction and arbitration both on sea and inland; role of warehouses, legal position and more emphatically provisions have principally been kept as transport terminals and stevedoring The carrier is liable for the breach of its the freedom to extend the Rules by they are found in the Hamburg Rules11. The companies; risks and contract practices of obligations under the Rotterdam Rules contract to the whole logistics of fault-based liability framework has not lenders; interests of freight forwarders, caused by acts or omissions of any operation. undergone any changes.12 cargo insurers and liability insurers; and performing party (lit. [(a)], the master or bull; prevention of maritime fraud.” crew of the ship (lit. [(b)], employees of the Yvonne Baat et al (2010)6 assert the According to Alexander von Ziegler:13 Since there are several parties involved in a Rotterdam Rules represent the most 'Rotterdam Rules closes many gaps in the carrier or a performing party (lit. (c)) or any carriage of goods by sea the Rotterdam comprehensive overhaul of the law of existing international transport regime, Rules introduce the performing party and other person that performs any of the carriage of goods by sea in more than half a thoroughly specifying the relation of the maritime performing party. carrier's obligations under the contract of century. They focus on all 96 articles of the transport documents to the rights and carriage, to the extent that the person acts, new Convention and compare them to the obligations between exporters and The performing party was introduced into either directly or indirectly, at the carrier's text of the Hague-Visby Rules, the importers of goods, clarifying the interests the Rotterdam Rules not only to include request or under the carrier's supervision or instrument currently covering most bills of of credit and insurance in contracts of sub-carriers but also all other persons such lading. carriage and the flexibility with which the as terminal operators, stevedores and control. Art. 4 (1) which was called a warehouse keepers.14 Therefore the Rules have left room for evolving trade "statutory Humalaya-like protection" performing party includes agents, Although formed for door-to-door practices. The rules certainly have helped independent contractors and sub- protects these persons 18and provides them operations, the core of the Rotterdam to facilitate the existing international contractors which are engaged by the the same defenses as the carrier. Rules7 is still carriage by sea. Further, it can transport regime through its clearer and carrier to perform any of their activities also be said that the liability regime set by more complete regulation of such elements The distinction between the "employees of the Rules is a mixture of the Hague/Visby as the following: allocation of burden of according to Article 1 (1) (a).15 the carrier"19 and "the master of crew of the and Hamburg Rules, although on some proof; evidentiary value of transport The Hamburg Rules distinguish between the carrier and the actual carrier, Art. 10 ship" was made because it can occur that points it differs substantially.8 The period of documents and electronic records, responsibility (Art. 12), for instance, was including non-negotiable documents and Hamburg Rules.16 The claimant has the the master or crew may not be employees regulated differently by the two previous records; freedom of contract in respect of possibility to sue the actual carrier directly. of the carrier. That is the case when the ship

7 Sturley, M.F., UNCITRAL, p 255 Selection and Arbitration in the Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, (2009) 44 Tex. Int. 8Sturley, UNCITRAL, p 255: "proposed changes to existing law are not earth shattering. The new convention is deliberately evolutionary, not L.J. 417 revolutionary". For an overview see Baughen, p 143 et seqq. See also D. Rhidian Thomas, An Appraisal of the Liability Regime Established under New 11Berlingieri, UNCITRAL, p 281; Mbiah, p 289-291 UN Convention, (2008) 14 JIML 496; Alexander von Ziegler, The Liability of the Contracting Carrier, (2009) 44 Tex. Int. L.J. 329. For more information see Berlingieri, Comparative Analysis, p 5-6; Berlingieri, UNCITRAL, p 27; Sturley, UNCITRAL, p 256-257; Baatz/ et al., p 33 12Ziegler, Alexander von, The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts for the International Carriage of et seqq. Goods Wholly or Partly by Sea (London: Kluwer Law International, 2010) 9For more information see Berlingieri, UNCITRAL, p 280-281; Mbiah, p 293-294; Baatz/ et al., p 35 et seqq. See also Theodora Nikai, The Fundamental Duties of the Carrier under the Rotterdam Rules, (2008) 14 JIML 512; Stephen Girvin, Exclusions and Limitation of Liability, (2008) 14 13Francesco Berligieri, "Carrier's Obligations and Liabilities" CMI Yearbook 2007-2008 (Antwerp, Belgium: Comite Maritime International, 2007- JIML 524. 2008) p 285 10For more information see Berlingieri, Comparative Analysis, p 43 et seqq.; Berlingieri, UNCITRAL, p 283-284; Sturley, M.F., UNCITRAL, p 258; 4Document A/CN.9/645, para.59; D.Rhidian Thomas, "An appraisal of the liability regime established under the new UN Convention", (2008) 14 Mbiah, p 296. See also Yvonne Baatz, Jurisdiction and Arbitration under the Rotterdam Rules, (2008) 14 JIML 608; Chester D. Hooper, Forum Journal of International Maritime Law 498 37 38 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 notes are essential, the more in terms of REFERENCES: is time chartered by the carrier from the proper application in practice. ship-owner by means of a time-charter. For a so called bareboat-charter the person that Following a thorough and detailed analysis "2008 - United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea charters the ship has to employ the master of the Rotterdam Rules, ECSA, ICS, - the 'Rotterdam Rules'.". http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/2008rotterdam_rules.html (Retrieved on 29 and crew. 20 BIMCO and WSC have all concluded that this important new regime must be December, 2011) The maritime performing party is a new promoted by the industry to avoid the risk Baatz et al., p 33, 35 et seqq. Berlingieri, Francesco. UNCITRAL, p 5-6, 27, 41, 280-281, 283-284 "invention" of the Rotterdam Rules. The of a proliferation of regional cargo liability regulations. However, early ratification of Berligieri, Francesco. "Carrier's Obligations and Liabilities" CMI Yearbook 2007-2008 (Antwerp, Belgium: maritime performing party means a the UNCITRAL Convention by major Comite Maritime International, 2007-2008) p 285 performing person to the extent that it trading nations, such as EU Member States, Berlingieri, Francesco. Comparative Analysis, p 27, 43 performs or undertakes to perform any of will almost certainly give this process Chester D. Hooper, Forum Selection and Arbitration in the Draft Convention on Contracts for the International the carrier's obligations during the period critical momentum….In general it can be Carriage of Goods Wholly or Partly by Sea, (2009) 44 Tex. Int. L.J. 417 between the arrival of the goods at the port remarked that most of the significant Document A/CN.9/645, para.59; D.Rhidian Thomas, "An appraisal of the liability regime established under the of loading of a ship and their departure from changes compared to The Hague-Visby new UN Convention", (2008) 14 Journal of International Maritime Law 498 the port of discharge of a ship, per first rules are to the benefit of cargo owners, Indira Carr, International Trade Law (Oxford: Routledge, 2009) p 229, 230 although signatory states are allowed to Mbiah, p 289-291, 293-29, 296 sentence Art. 1 (7). 21 apply declarations in respect of certain Nikaki, supra note 43, 420 options to allow carriers to seek full Although the Convention simplifies certain Rolf Herber, "Haftung nach den Haager Regelin, Haag/Visby-Regeln und Hamburg-Regeln", Transportrecht advantage by the contracting out of elements to reduce the scope for disputes, 1995, 262; supra note 11, p 239 on the other hand it provides for a quite provisions, where permissible. Rainer Lagoni et al, ed., Recent Developments in the Law of the Sea (Berlin: Reihe: Schriften zum See- und lengthy and detailed Convention text, some Hafenrecht, 2010) p 190 of which clauses are fairly complex and Rotterdam Rules, http://www.rotterdamrules.com/en/disputes/ (Retrieved on 29 December, 2011) likely to be the subject of litigation. 22 Rotterdam Rules, http://www.rotterdamrules.com/en/interpretation/ (Retrieved on 29 December, 2011) Finally the Rotterdam Rules are interpreted Rotterdam Rules, http://www.rotterdamrules.com/en/ (Retrieved on 29 December, 2011)

as something as follow:23 Stephen Girvin, Exclusions and Limitation of Liability, (2008) 14 JIML 52 Sturley, M.F., UNCITRAL, p 255, 256, 257, 258 Like most international Conventions, the Theodora Nikai, The Fundamental Duties of the Carrier under the Rotterdam Rules, (2008) 14 JIML 512 Theodora Nikaki, "The Statutory Himalaya-type Protection under the Rotterdam Rules: Capable of Filling the Rotterdam Rules represent a compromise. Gaps?", Journal of Business Law 2009, 410 For the correct interpretation the Yvonne Baatz et al., The Rotterdam Rules: A Practical Annotation (Institute of Maritime Law, 2009) Yvonne Baatz, Jurisdiction and Arbitration under the Rotterdam Rules, (2008) 14 JIML 608

17Theodora Nikaki, "The Statutory Himalaya-type Protection under the Rotterdam Rules: Capable of Filling the Gaps?", Journal of Business Ziegler, Alexander von, The Rotterdam Rules 2008: Commentary to the United Nations Convention on Contracts Law 2009, 410 18However not the performing party; Nikaki, supra note 43, 420 for the International Carriage of Goods Wholly or Partly by Sea (London: Kluwer Law International, 2010) 19Berlingieri, supra note 41, 285 20Rolf Herber, "Haftung nach den Haager Regelin, Haag/Visby-Regeln und Hamburg-Regeln", Transportrecht 1995, 262; supra note 11, p 239 21Rainer Lagoni et al, ed., Recent Developments in the Law of the Sea (Berlin: Reihe: Schriften zum See- und Hafenrecht, 2010) p 190 22Rotterdam Rules, http://www.rotterdamrules.com/en/disputes/ ( Retrieved on 29 December, 2011) 23Rotterdam Rules, http://www.rotterdamrules.com/en/interpretation/ ( Retrieved on 29 December, 2011) 39 40 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

postulation that all the apparent realities h e t e r o s e x u a l i t y t o e x c l u s i v e are merely social constructs and are homosexuality. Social factors are therefore subject to change. The research irrelevant both for determining a person's puts forward a point-of-view that sexual orientation as well as for people's deconstructs the notions of objectivity and understanding of this concept. neutrality, affirming that every perspective For any particular entity, according to the is socially situated. viewpoint put forward by Radden and Cuyckens (2003, p. 275), there is a host of properties all of which any entity of that t seems appropriate to situate kind must possess. As a matter of fact, it the feminist legal theory at can be concluded that all entities can be I postmodern perspectivism. correctly defined. It can be inferred from S u c h a p o i n t - o f - v i e w this point-of- view; the terms or words

deconstructs the notions of should have a single meaning.2 In common objectivity and neutrality, affirming that parlance, essentialism is a generalization every perspective is socially situated. This affirming that particular characteristics sits at a variance with anti-essentialist possessed by a group are universal, and not theory such as Niclas Berggren who has contingent on context. 'Man is a social identified the essentialist views into two animal' can serve as an essentialist mutually exclusive categories:1 statement. (1) Humans have a fixed sexual orientation, determined at birth, and it is Anti-essentialist, also known as that of perfect bisexuality. Social factors intersectionalist critiques of feminist, have are irrelevant both for determining a run counter to the viewpoint that there can person's sexual orientations as well as for be any universal women's voice and have people's understanding of this concept. reprobated feminists, as did pagan feminism, chauvinist feminism, or Black Abstract: (2) Humans have a fixed sexual feminism, for unreservedly basing their orientation, determined at birth, and for the work on the experiences of white, middle entire population, it is distributed along a The author attempts to situate the feminist class women. The anti-essentialist continuum, ranging from exclusive l e g a l t h e o r y a t a p o s t m o d e r n

perspectivism. Situating the feminist legal 1Berggren, Niclas. ? 1 December 2000. Is Social Constructionism and Appealing Construction viewed 13 January, 2012

theory in postmodernism leads to http://ham.passagen.se/nicb/construct.htm 41 42 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

assignment has been to probe the ways in knowledge for one another, jointly giving motivations in the embodiment of ideas and cut method for changing legal approaches which ethnicity, race, class, sexual birth to a culture of shared artefacts with beliefs. The postmodernism perspective of to gender. orientation, and other forms of shared meanings, something which is female legal theory is critical of the use of distinct binary classifications such as male Within the framework of postmodern or subordination interplay with gender and to relevant from feminist legal theory versus female, culpable homicide versus anti-essentialist model, feminist legal uncover the implicit, damaging viewpoint. According to Lev Vygotsky, non culpable homicide, white versus black, theory has really evolved over the years, presumption that have frequently been when an individual is embedded in a actus reus (guilty act) versus actus reus and has interacted successfully with other deployed in feminist theory. culture of particular type, the individual is (guilty act), mala in se (crimes that are significant theoretical and political- learning continuously about how to be a thought to be inherently evil or morally academic movements such as critical race

Postmodernism in feminist legal theory is a part of that culture on many levels.3 All by wrong, and thus will be widely regarded as t h e o r y , p o s t - s t r u c t u r a l i s m , movement came into being in reaction to himself Vygotsky arrived at the same crimes regardless of jurisdiction) versus postmodernism, post colonialism and mala prohibita (offenses that do not have psychoanalysis. The salient feature of this modernism, the predisposition in existing conclusions as Piaget with respect to the wrongfulness associated with them), and period of discourse is its theoretical culture towards recognising the objective constructive nature of development. Social i m p e r i a l v e r s u s c o l o n i a l . T h e ambition to create a feminist jurisprudence truth. As a result, the postmodernist thought constructivism entails into many theories postmodernism point-of-view asserts – a common feminist account of legal is flies off a tangent from the previously such as behaviourism, constructivism and realities to be plural and relative, and to be method and of the substantive preponderant modernist approaches. In social constructivism, arising from the contingent on who the interested parties are development of modern legal orders. feminist legal theory the "postmodernism" work of Jean Piaget's theory of cognitive and the nature of these interests. Such a Certainly such a development has is understood to have its antecedent in the development which has a bearing on perspective affirms that there is no absolute engendered a critical analysis of not merely truth and that the way individuals perceive the substance but also the conceptual "modernist" scientific state-of-mind of feminist legal theory. Piaget's stage theory, the world is purely subjective. The female framework of legal rights. objectivity and the progress linked to the perhaps more popular as constructivism, legal theory has drawn from a wide array of Enlightenment, the Kantian domain. affirms that the children need to construct a cultural fields, including history, politics, It is to be noted that the contemporary perception of the world for themselves. It religion, literary criticism, sociology, feminist legal theory is an amalgamation of Situating the feminist legal theory in certainly can prove to be relevant as the linguistics, and anthropology. analytic and political-ethical claims. From postmodernism leads to postulation that all s o c i a l c o n s t r u c t i v i s m e x t e n d s an analysis perspective, the claim is that the apparent realities are merely social In the discourse of the feminist legal theory, sex/gender is a key social structure or axis constructivism by assimilating the role of constructs and are therefore subject to the postmodern or anti-essentialist model is of social differentiation, and little to be other actors and culture in development. It change. certainly the dominant approaches over the doubted on its ability to characterise and is an odd with social learning theory by three other primary approaches to feminist influence the shape of law. The starting Social constructivism is a sociological putting emphasis on interaction over jurisprudence are: the liberal equality point of feminist theory, both politically theory of knowledge that is put into use in observation. model; the sexual difference model; and the and ethically, is the assumption that the dominance model. Irrespective of which ways in which sex-gender has fashioned the constructivism into social settings, In the legal discourse it accentuates on the one of the above approaches is the most the world, including through law. To put it wherein various social groups construct role of power relations, language, and preferred model each approach provides a differently, the sex/gender consists not just

2Hubert Cuyckens, Thomas Berg, Rene Dirven, Klaus-uwe Panther (eds) 2003. Motivation in language: studies in honor of Günter Radden. John unique point-of-view of the legal in differentiation but in domination, 3Benjamins. p. 275 Veer, Rene Van Der and Lev Vygotsky, 2008, The development and meaning of psychological distance (NY: Continuum)Wadsworth, Barry J., 2003, mechanisms that contribute to female's oppression or discrimination. To put it 4Piaget's Theory Of Cognitive And Affective Development: Foundations Of Constructivism (Boston: Allyn & Bacon) subordination, and each provides a clear- succinctly, the legal sex differentiation, 43 44 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

mostly disadvantages women. gender into account. According to Susan the very characteristics of women that have "Whereas, Labour is a physical and moral Okin, 6'A central source of injustice for historically prevented them from attaining injury to women and a competitive menace Such a view could be disputed, but women these days is that the law, most equality with men. An appropriate example to men, we recommend legislation to according to Nicola Lacey, 'It is political noticeably in the event of divorce, treats is the protective laws that were enacted to restrict women in industry."10 The position often combined with an incipient more or less as equals those whom custom, protect women from certain hazards or minimum wage was supported except for utopianism in legal feminism: its social workplace discrimination, and the still imperilment of paid work. The sexual men because of "widespread agreement constructionist methodology, which seeks conventional division of labour within the difference model, which has a bearing on that the labour market did not function to identify the historical bases of family have made very unequal. Central to these laws which had the effect of curtailing effectively where women and the family discrimination in social decision-making this socially created in equality are two the employment available to women, were concerned" and among feminists and action rather than in biology implies a commonly made but inconsistent benefitting the men. Until late 20th century because women needed to support their contingency which opens up radical presumptions: that women are primarily the protective laws were enacted in a galore own dependents.11 possibilities for political and social change responsible for the rearing of children; and of US jurisdictions. The rationale for the ... notwithstanding the fact that what has that serious and committed members of the enactment of the laws was the reason The dominance model summarily rejects been socially constructed as real sex-role work force (regardless of class) do not have behind the protection of women. It seems to liberal feminism and asserts that the legal expectations for example are sometimes primary responsibility, or even shared be plausible as women were regarded more system as a mechanism for the harder to change than biological or responsibility, for the rearing of children.' vulnerable than men in sweatshops and continuation of male dominance. Thus, the 'natural' features such as the possession of As compared to postmodern or anti- factories. 7 model finds a common ground with certain certain sexed physical characteristics.' essentialist model and liberal equality sections of critical legal theory, which also model the sexual difference model focuses A host of followers in women's deem the potential for law to act as an In a sharp contrast to the postmodern or on the connotation of gender differences organizations and unions, concerned that instrument for domination. anti-essentialist model the liberal equality and maintains that these differences should courts in the 1950s would oppose pro- model operates from within the liberal legal not be obscured by the law, but should be labour legislation, intended to protect According to Catherine Mackinnon12, paradigm and usually accepts the liberal taken into account by it. By the virtue of whatever such laws were already in place. 'jurisprudence is a theory of the relation values and the rights-based approach to accounting for these differences the 8During early 70s, the Equal Rights between life and law. In life, 'woman' and law, though it accounts for the issue with feminist legal theory provides adequate Amendment (ERA) to the U.S. 'man' are widely experienced as features of how the liberal framework has operated in remedies for women's situation, which sits Constitution passed the Congress and was being, not constructs of perception, practice. This liberal equality model at a variance from men's locus. proposed to the states for ratification; cultural interventions, or forced identities. emphasizes on assuring that women are unions supported the ERA and considered Gender, in other words, is lived as afforded real equality—contravene to the The sexual difference model is in direct female-only protective laws as against ontology, not as epistemology. Law nominal equality usually bestowed on them contrast to the sameness account which women's interests.9 Another justification actively participates in this transformation i n t h e c o n v e n t i o n a l l i b e r a l affirms that women's sameness with men was put forth by an organization which, in of perspective into being. In liberal framework—and seeks to attain this either should be accentuated. To the sameness 1836, adopted a resolution that said, regimes, law is a particularly potent source by way of a more thorough application of feminist, deploying women's differences in liberal values to women's experiences or an effort to amass greater rights is 7Stansell, Christine, The Feminist Promise, op. cit., p. 197 8Stansell, Christine, The Feminist Promise, op. cit., p. 197 n. 52, citing Peterson, The Kennedy Commission, in Tinker, Irene, ed., Women in the revision of liberal categories to take ineffectual to that end and places focus on Washington: Advocates for Public Policy (Beverly Hills, Calif., 1983) 9Stansell, Christine, The Feminist Promise, op. cit., p. 287. 5Lacey, Nicola, Feminist Legal Theory and the Rights of Women 10Grant, Jane, Confession of a Feminist, in The American Mercury, vol. LVII, no. 240, Dec., 1943, pp. 684–691, esp. pp. 688–690 (quotations per p. http://www.yale.edu/wff/cbg/pdf/Lacey.pdf Viewed 10 January, 2012 689 (italics in Jane Grant's article)). 11Folbre, Nancy, Greed, Lust and Gender, op. cit., p. 276A Mac Kinnon, Catharine, 1991, Toward A Feminist Theory Of The State (Harvard: 6Okin, Susan Moller and Justice, Gender, 1991 ( NY: Basic Books) p 4-5 12Harvard University Press) pp. 237-239 45 46 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

and badge of legitimacy, and site and cloak terror and abasement and silence and industrial to service economy) that thinking about feminist critique of modern of force. The force underpins the legitimacy misrepresentation continuing to the present occurred in 1950s and continued till the law is truly its status as an imminent as the legitimacy conceals the force. When day are considered valid bases for defeating Social Revolution which peaked in critique of liberalism: as part of the life becomes law in such a system, the 'unprecedented' interpretations or 1968—are captured within the discourse of conscience of a liberal order which has transformation is both formal and initiatives from women's point of view. Postmodernity, 1 4 as opposed to been slow to deliver the universalism substantive. It reenters life marked by Doctrines of standing suggest that because Postmodernism, a term referring to an which it promised.16 power. From a feminist perspective, male women's deepest injuries are shared in opinion or movement. "Postmodernist" supremacist jurisprudence erects qualities some way by most or all women, no describes part of a movement; What probably can be considered the valued from the male point of view as individual woman is differentially injured "Postmodern" places it in the period of time defined moment of feminist movement is standards for the proper and actual relation enough to be able to sue for women's since the 1950s, subsuming its role within second uprising of women in late 1960s between life and law. Examples include deepest injuries.’ the purview of contemporary history. and 1970s to give vent to the feminist standards for scope of judicial review, thought, and in particular stimulated the norms of judicial restraint, reliance on Catherine MacKinnon essentially There is an apparent myth primarily created precedent, separation of powers, and the postulates sexuality as something key to the by the contemporary feminist texts on law gradual entry of feminist ideas into division between public and private law. dominance. MacKinnon affirms that that legal feminism is the creation of the mainstream academic discourse. Both Substantive doctrines like standing, women's sexuality is socially constructed late Twentieth Century contravene to the sociology and literary studies drew heavily justiciability, and state action adopt the by male dominance and the sexual truth that the feminist jurisprudence goes from feminist movement; however, the same stance. Those with power in civil domination of women by men is the back to many centuries. Strong opinions in potential of feminist analysis to transcend society, not women, design its norms and provenance of the general social support of the same surfaced in the the boundaries of already established institutions, which become the status quo. subordination of women. Twentieth Century, which included the Those with power, not usually women, arguments for women's rights and equal. disciplines led relatively at a faster rate to write constitutions, which become law's In critical theory, "Postmodernism" refers The legal and political status resoundingly the founding of particular women-centric highest standards. Those with power in to a point of departure for works of articulated by Mary Wollstonecraft 15in the programmes and even centres dedicated to political systems that women did not design literature, drama, architecture and design Eighteenth Century and, of course, the women's or gender studies, latter is a and from which women have been excluded and it begins to influence the interpretation suffragists of the Nineteenth and early disciplinary innovation that was aptly write legislation, which sets ruling values. of law.13 Postmodernism, particularly as an Twentieth Centuries. Notwithstanding the brought about at the cost of keeping Then, jurisprudentially, judicial review is academic movement, can be understood as fact that that liberal and Enlightenment feminist issues relatively on the periphery said to go beyond its proper scope -- to a reaction to modernism in the Humanities. thinking has been linked to an accretion of delegitimate courts and the rule of law itself Whereas modernism was primarily feminist theories, there is a robust argument in the learning academy. Nonetheless, the -- when legal questions are not confined to concerned with principles such as identity, for thinking of the feminist tradition as intellectual efforts expend in this era of the assessing the formal correspondence unity, authority, and certainty, unique in its own right. According to a women's movement affected not only between legislation and the constitution, or postmodernism is often associated with different viewpoint, a utilitarian way of public consciousness and popular culture legislation and social reality, but scrutinize difference, plurality, textuality, and 13Historians have generally not used postmodernist approaches in their work, as shown by Sigurdur Gylfi Magnusson, "The Singularization of the underlying substance. Lines of skepticism. History: Social History and Microhistory within the Postmodern State of Knowledge," Journal of Social History 2003 36(3): 701-735; Georg G. Iggers, Historiography in the Twentieth-Century: From Scientific Objectivity to the Postmodern Challenge (1997). Many historians (e.g.Perry precedent fully developed before women Anderson) engage with postmodernism, and several philosophers (most prominently, Michel Foucault) often associated with the postmodern were permitted to vote, continued while These recorded developments in the recent movement have made important contributions to history and historiography. women were not allowed to learn to read period — reappraisal of the entire Western 14Paul Michael Lützeler (St. Louis), December 2001 , From Postmodernism to Postcolonialism: On the Interrelation of the Discourses, and write, sustained under a reign of sexual value system (popular culture's shift from www.inst.at/trans/11Nr/luetzeler11.htm Viewed 09 January, 2012 47 48 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

but have a bearing on the intellectual which identified gender issues in a far categories usually left intact, and Well, what apparently may come across as agenda a range of issues formerly ignored: expanding range of legal arrangements, seemingly appear to assume that a something insufficiently analysed – the particular 'women's' perspective could be the gendered division of labour; questions with medical law, property laws and striking difference between feminist identified, the 'law and gender' approach writers on law has to do with a mixture of of pay equity; sexual violence; and sex pensions law becoming a locus for analysis postulated the framework of sex/gender methodology and written style. A relevant of 'indirect discrimination' commonly discrimination. divisions as a general category for critical example could be Catharine MacKinnon's perceived as the existence of arrangements legal analysis. It was breakthrough in the written style is rhetorical and polemical: The legal scholarship associated with the which, though superficially neutral, in fact evolution of jurisprudence thinking as it her arguments are advanced by striking legal jurisprudence took an inordinate time serve to exclude or disadvantage a opened up the possibility that law's elisions and rhetorical tropes which are

to take a note of these developments, earlier disproportionate number of women .17 contribution to the sexing or gendering of interspersed with more detailed analysis of largely ignored, but now a spate of the its subjects might interact with other social particular legal institutions.21 political and analytic issues raised by the As a result it led to a more radical set of forces, hence constituting multiple female subject positions.18 women's movement have had concerns theoretical dialectic, with the feminists of In Patricia Williams, we also find a genre of rhetoric, but realised through narratives with women's legal and civic status. During the Oslo school, spearheaded by the late According to Rhode and Gender (1990), which deliver an analytic or political point the foregoing era the feminist legal Tove Stang Dahl, founding a centre of the 'law and gender' approach postulated obliquely, indirectly.22 Any of these styles scholarship singled out and condemned the women's law and reorganising the very the framework of sex/gender divisions contrast sharply with, for example, the non-presence of women and women's conceptualisation of subjects around assumed both a powerful, dynamic role for more classically academic style of Ngaire issues from the agenda of legal study; women's lives -- birth law, money law, and law in the constitution of gender, and, as a Naffine,23 whose writing deploys the disturbing questions such as the way the housewives-law. What underpinned the result, a wide-ranging and potentially techniques of analytical legal scholarship radical law reform agenda.19 and political theory. Moving on, Luce domestic and sexual violence began to find early feminist approaches was a sharp Irigaray writes in a seamlessly their inroad into family and criminal law contrast between sex and gender, with the Furthermore, it opened up the possibility of metaphorical style, weaving social critique courses and texts; women's assigned former perceived as a bodily or biological incorporating sexual orientation in the with utopian visions and elliptical, poetic position in the economy began to be category, and a latter as the socially critical analysis of law's constitution of meditations,24 while Drucilla Cornell recognised in labour law; and the probing constructed meaning of sex. gender, and of analysing the gendering of moves between each of the techniques of the sex discrimination law, largely found to men, hence promising finally to explode the other four. the myth of sex/gender as exclusively a be under the civil rights law, found a The distinction between gender and sex soon came under the scanner, and it had a 'woman problem'. These differences are not just a matter of precarious foothold in legal jurisprudence, bearing on shifting the political and style. The resort to polemical or self- vacillating between labour law and civil academic discourse towards an exploration The radical shift from 'women and law' to consciously literary forms of expression rights. The saltatorial gambit to include in of the pivotal role of law in constructing 'law and gender' was still condemned for also reflects the idea that the very the curriculum highpoints where women or social meanings of gender. The women and that the shift intimidated to make women, conceptual framework of legal scholarship gender questions were particularly visible law, which so far had been treated as and issues of particular concern to women - makes it impossible to say certain kinds of soon precipitated to more probing work mutually exclusive categories , hence both - the 'woman-centeredness of feminism' -- things: that the way in which particular perish again just as they had seemed to be intellectual disciplines and discourses have 15Mary Wollestonecraft, A Vindication of the Rights of Woman (1792; 1988, ed. Carol Poston, New York, W.W. Norton gaining a foothold. 20 developed makes it impossible to 16Margaret Thornton, 1990, The Liberal Promise (Oxford: Oxford University Press) 17See for example Susan Atkins, 1984, Brenda Hale and Brenda Hoggett, Women and the Law, (B. Blackwell, Oxford) conceptualise certain types of harm or 49 50 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

wrong or to reveal certain kinds of interest shift towards the 'law and gender' third perspective is an interpretive method, other ethical and political commitments. or subject position. To take a well-known paradigm. Widely acknowledged as the which the contemporary feminist theory For this reason among others (notably the example, the concept of harassment was feminist legal theory' the concern has been uses as its key instrument. political antecedents of the social

developed by MacKinnon25 to identify a to reprioritise the political commitments of As a result, Nicola Lacey asserts:28 'the movements which generated feminist form of abuse of power which fell between feminist scholarship, emphasising the feminist legal theories do not merely intend scholarship) feminist legal scholarship is a number of existing social and legal c o m b i n a t i o n o f a n a l y t i c a n d to rationalise legal practices; nor, characterised by a particularly intimate concepts such as rape, assault and sex normative/ethical concerns on which conversely, do they typically engage in linkage between theory and practice: both discrimination. feminist work is founded, while holding to entirely external critique and prescription. with a rejection of any strong division a close engagement with particular legal Rather, they aspire to produce a critical between the two, which sometimes in fact 26 According to Nicola Lacey, 'there was issues and institutions.27 interpretation of legal practices: an account implies a certain scepticism about theory; some concern about whether the analytic which at once takes seriously the legal point and with an impulse to have effects beyond frame of gender analysis would submerge During the shaping up of the feminist legal of view yet which subjects that point of the academy. Hence feminist theory is or displace feminism's traditionally theory the focus always have had been on view to critical scrutiny on the basis of both firmly grounded in particular legal issues.’ political and ethical concerns in favour of a its methodology. It is old method to its own professed values and a range of scientific approach... whether the shift to bifurcate the legal theories into the internal gender could really make the problem of and the external – theoretical approaches REFERENCES: sex disappear: granted that gender roles are which intend to rationalise and explain the socially constructed (which is not to say nature of law and legal method from the easy to change), why had they happened to point of view of legal reasoning or legal be ascribed to men and to women in the way practice itself, independent of the A. MacKinnon, Catharine, 1987, Feminism Unmodified: Discourses on Life and Law (Harvard: Harvard they had?’ theoretical approaches which exist outside University Press) A Mac Kinnon, Catharine, 1991, Toward A Feminist Theory of The State (Harvard: Harvard University Press) pp. legal practices, subjecting them to an 237-239 The periodization of different stages of analysis from the point of view of a Anne Bottomley (ed.) 1996, Feminist Perspectives on the Foundational Subjects of Law (1996). (London: feminist legal scholarship can never have particular social scientific method or from Cavendish Publishing) any conclusive answer, but the third phase distinctive normative points of view. Berggren, Niclas. ? 1 December 2000. Is Social Constructionism and Appealing Construction [Online] in the development of feminist legal http://ham.passagen.se/nicb/construct.htm [Accessed 13 January, 2012] scholarship is widely accepted to be the In a sharp contrast all these methods, the Cornell, Drucilla, 1991, Beyond accommodation: ethical feminism, deconstruction, and the law (London: Routledge) 18See Katherine O'Donovan, 1985, Sexual Divisions in Law (London: Weidenfeld and Nicolson) 19See Deborah L. Rhode, Justice and Gender (1989); Regina Graycar and Jenny Morgan, The Folbre, Nancy, Greed, Lust and Gender, op. cit., p. 276 Hidden Gender of Law (1990); Katherine Bartlett and Rosanne Kennedy (eds.) Feminist Legal Theory (1990) 20 Joanne Conaghan, 'Reassessing the Feminist Theoretical Project in Law' (2000) 27 Journal of Law Georg G. Iggers, 1997, Historiography in the Twentieth-Century: From Scientific Objectivity to the Postmodern and Society p.351 Challenge 21A. MacKinnon, Catharine, 1987, Feminism Unmodified:Discourses on Life and Law (Harvard: Harvard University Press) 22Williams, Patricia J., 1991, The Alchemy of Race and Rights (Harvard: Harvard University Press) 23Naffine, Ngaire , 11 August, 1990, Law and the sexes: explorations in feminist jurisprudence (Sydney: Allen & Unwin) Grant, Jane, Confession of a Feminist, in The American Mercury, vol. LVII, no. 240, Dec., 1943, pp. 684–691, 24Cornell, Drucilla, 1991, Beyond accommodation: ethical feminism, deconstruction, and the law (London: Routledge) esp. pp. 688–690 (quotations per p. 689 (italics in Jane Grant's article) 25MacKinnon, Catharine A., 1979, Sexual harassment of working women: a case of sex discrimination (Yale: Yale University Press) 26Lacey, Nicola, Feminist Legal Theory and the Rights of Women [Online] http://www.yale.edu/wff/cbg/pdf/Lacey.pdf [Accessed 10 January, 2012] Deborah L. Rhode, 1989, Justice and Gender (Harvard: Harvard University Press) 27See for example Ngaire Naffine and Rosemary Owens (eds.) Sexing the Subject of Law (1997); Anne Bottomley (ed.) Feminist Perspectives on the Foundational Subjects of Law (1996). Hubert Cuyckens, Thomas Berg, Rene Dirven, Klaus-uwe Panther (eds) 2003. Motivation in language: studies in 28Lacey, Nicola, Feminist Legal Theory and the Rights of Women [Online] http://www.yale.edu/wff/cbg/pdf/Lacey.pdf [Accessed 10 January, 2012] honor of Günter Radden. John Benjamins. p. 275 51 52 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Joanne Conaghan, 'Reassessing the Feminist Theoretical Project in Law' (2000) 27 Journal of Law and Society p.351

Katherine Bartlett and Rosanne Kennedy (eds.) 1990, Feminist Legal Theory: Readings in Law and Gender (Boulder, Colorado: Westview Press)

Katherine O'Donovan, 1985, Sexual Divisions in Law (London: Weidenfeld and Nicolson)Lacey, Nicola, Feminist Legal Theory and the Rights of Women [Online] http://www.yale.edu/wff/cbg/pdf/Lacey.pdf [Accessed 10 January, 2012]

MacKinnon, Catharine A., 1979, Sexual harassment of working women: a case of sex discrimination (Yale: Yale University Press)

Margaret Thornton, 1990, The Liberal Promise (Oxford: Oxford University Press) ou Tube fails to halt the jihad videos”1- The Sunday Times Magnusson, Gylfi, "The Singularization of History: Social History and Microhistory within the Postmodern State headline on 07th of November of Knowledge," Journal of Social History 2003 36(3): 701-735 Y 2010 brings one of the Mary Wollestonecraft, A Vindication of the Rights of Woman (1792; 1988, ed. Carol Poston, New York, W.W. challenges of user generated Norton content (“UGC”) internet Web 2.0. Naffine, Ngaire and Owens, Rosemary (eds.) 01, June, 1997, Sexing the Subject of Law (LBC Information Collaboration, cooperation, interactivity Services) and social networking are the main features of Web 2.0. The central issue of the Web 2.0 Naffine, Ngaire , 11 August, 1990, Law and the sexes: explorations in feminist jurisprudence (Sydney: Allen & Unwin) is that the users are the publisher, critic, journalist, reviewer, public performer and Okin, Susan Moller, 1991, Justice and Gender ( NY: Basic Books) pp. 4-5 broadcaster. The power of the user- Paul Michael Lützeler (St. Louis), December 2001 , From Postmodernism to Postcolonialism: On the generated content (UGC) has no boundary Interrelation of the Discourses [Online] www.inst.at/trans/11Nr/luetzeler11.htm [Accessed 09 January, for the content; the user can be a journalist, 2012]Regina Graycar and Jenny Morgan, 1990, The Hidden Gender of Law (Sydney CBD: The Federation Press) Abstract: entertainer, reporter, and protester or may Stansell, Christine, The Feminist Promise, op. cit., p. 197 simply be raising a voice for justice. 2 Since collaborations, cooperation, Stansell, Christine, The Feminist Promise, op. cit., p. 197 n. 52, citing Peterson, The Kennedy Commission, in Tinker, Irene, ed., Women in Washington: Advocates for Public Policy (Beverly Hills, Calif., 1983) interactivities and social networkings are The user-generated content brings the key features of Web 2.0 together these enormous energy to the digital life but also Stansell, Christine, The Feminist Promise, op. cit., p. 287 pose formidable legal challenges to faces some challenges. Complication Susan Atkins, 1984, Brenda Hale and Brenda Hoggett, Women and the Law, (B. Blackwell, Oxford) regulate user generated content (UGC). includes pornography, undesirable content, The research paper argues for a change in obscenity, defamation, privacy and Veer, Rene Van Der and Lev Vygotsky, 2008, The development and meaning of psychological distance (NY: regulation and procedure In order to get the confidentiality, intellectual property, Continuum) most out of the UGC, as now, it would money laundering,3 jurisdiction and Wadsworth, Barry J., 2003, Piaget's Theory Of Cognitive And Affective Development: Foundations Of require the regulator to understand the governance. However, the mobility and Constructivism (Boston: Allyn & Bacon) code-based technologies to control the storage of data as well as frequent and easy cyberspace within the provision of law. access to data make the web 2.0 very Williams, Patricia J., 1991, The Alchemy of Race and Rights (Harvard: Harvard University Press) convenient and financially attractive. A full set of paper encyclopaedia costs £995, 53 54 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

whereas a full encyclopaedia can be found Privacy of information over the Internet is a shall commit an offence.12 Furthermore, it Hacking and viruses are dealt with the in one CD, costs only £60. Access over the major issue nowadays. The United is stated that to knowingly produce, Computer Misuse Act 1990 but it does not Internet costs much less, only around £40.4 Kingdom takes an initiative to control data distribution, prints or publish any child deal with the fraud. Sections 1 and 2 privacy on the Internet by enacting pornography or to knowingly import provide that unauthorised access to Formation of contract via online, i.e., e- legislation. The Data Protection Act 1998 export, sell or show any child pornography computer materials and commit or mail raises the legal problem. The High implements the Data Protection Directive shall be an offence.13 facilitate commission of further offence Court in Fernandes SA v Metha5 raised two (95/46/EC) of the European Union. The respectively. A person who makes an issues concerning this problem. One of aim of The Data Protection Act 1998 is to Digital divide is another challenge of the untrue statement not to disclose his or her them was e-mail did not constitute adequate regulate the electronically stored data and web. Alan Buckle, Chief Executive of identity and intends to do deception may be evidence to make an agreement and there its distribution and uses.8 KPMG Consulting said “...I do see the guilty of fraud.17 “...the phenomenon of so- was not an admissible signature on the e- danger of digital divide. It won't be a divide called 'identity theft', where a person's mail. Respecting this issue a direction has The New York Times on October 23, 2000 based on geography or on size of company, identification details are obtained through been given from the European Union published an article stating that 21 million but between businesses that embrace web- various surreptitious methods, obtains and 'Electronic Commerce Directives Americans visited one of the more than based technologies to transform disclose an individual's confidential 2000/31/EC' which articulates: 'Member 60,000 sex sites on the web once a month. themselves and their markets, and those details.”18 states' obligation is to remove the obstacle However, the analysts researched and said that don't see it or who get their strategies to the use of electronic contracts is to be that web sex generated at least $1 billion wrong. For many of the latter, there won't Copyright, Design and Patent Act, 1988 implemented in conformity with legal revenue in a year.9 A recent sex website be a second chance.”14 Law enforcement section 107: copyright infringement is requirements for contracts enshrined in domain named “sex.com” has been sold agencies cannot take action against the committed - 'In the course of the business' Community law. As regards the second $13 million.10 The problems regarding cybercriminals unless the countries have whereas the infringement affects the works issue concerning the signing of the contract p o r n o g r a p h y b e g i n w i t h c h i l d specific laws dealing with the of the owner. In Dow Jones v Jameel 19 via e-mail, Pelling J. stated his view that a pornography. A principle cause of tension cybercriminals activities. The rules and either individual or collectively court take valid signature could not be 'incidental' to has been the interface between art and child procedures are the prerequisite for care the amount of real and substantial tort the document. He did not address the issue pornography laws. Child pornography has investigation as well as the prosecution.15 (Defamation). The supreme court of of an automated e-mail with a signature at led to the questions of whether the law is In 2000-01, G8 also took a plan of action to Finland – “A service provider who had the end. However, paradoxically people fuelling a 'moral point'.11With reference to communicate these opportunities to each deliberately collaborated with the who do not type or sign their e-mail may this issue, section 4 of the Child Trafficking other. However the 'Digital Opportunity recipients of the service in order to escape from the contractual liability.6 An and Pornography Act 1998 says that if any Taskforce' did not address cybercrime but undertake illegal acts could not benefit electronic signature may be described as the person having the custody, charge or care of focused on how to overcome the 'digital from the liability exemptions”20 contained same as a handwritten signature which a child allows the child to be used for the divide.'16 EU Directives on electronic commerce. identifies the sender of the message7. production of child pornography, he or she 21Moreover, the Supreme Court stated that

1Times Online (Online) http://www.timesplus.co.uk/sto/?login=false&url=http://www.thesundaytimes.co.uk/sto/news/uk_news/National/article440026.ece [7th November 9E. Casey, Digital Evidence and Computer Crime, 2nd ed. (Elsevier Press, London, 2004). 2010] 10BBC, (Online), http://www.bbc.co.uk/news/technology-11596477 [3rd November 2010] 2Dr. C. George & Dr. J. Scerri, 'Web 2.0 and User-Generated Content: legal challenges in the new frontier', (2007), JILT 11S. Ost, Child Pornography and Sexual Grooming: Legal and Social Responses, 1st ed. (Cambridge University Press, New York, 2009), p. 103. 3A. Murray, 'A Information Technology Law: The Law and Society', (Oxford University Press, Oxford, 2010), p.107 12Child Trafficking and Pornography Act 1998, s 4 4 I. J. Lloyd, Information Technology Law, 4th ed. (OUP, Oxford, 2004), p.4. 13Ibid s 5 5[2006] EWHC 813 (Ch). 14S. Courtnage, E-volution Time, (2003), Company Secretary Review, issue 23, p. 184. 6K. Rogers, 'Signing your e-life away', (2006), New Law Journal, vol. 156, p.833. 15M.D. Goodman , (2002) 'The Emerging Consensus on Criminal Conduct in Cyberspace', Int. Jnl. of Law and Info. Technology, vol. 10, no. 2, p. 93. 7L. Edwards & C. Waelde, Law and the Internet A Framework for electronic Commerce, 2nded. (Hart Publications, Oxford, 2000), p .41.8G. 16G8 Digital Opportunity Taskforce (Online) www.mofa.go.jp/policy/economy/it/df0106.html [3rd November 2010] 8Spindler & F. Borner (Editor), E-Commerce Law in Europe and the USA, (Springer, Germany, 2001), p. 296-97. 55 56 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 REFERENCES: file sharing network co-operate between the the rules and procedure of the real space are administrator and the user which intend and no longer effective in cyberspace. Times Online [Online] lead to a large scale of infringement.22 http://www.timesplus.co.uk/sto/?login=false&url=http://www.thesundaytimes.co.uk/sto/news/uk_news/National/a To get the most of the user content Internet rticle440026.ece [7th November 2010] On the occasion of real space jurisdiction regulating the cyberspace needs new forms apply on the cyberspace life, that is an - of regulation and procedure. Cyberspace is Dr. C. George & Dr. J. Scerri, 'Web 2.0 and User-Generated Content: legal challenges in the new frontier', (2007), JILT “illegitimate extra-territorial power grab” 23 totally operated by the code. If the regulator unjustified and unwise. However, one wants to control Cyberspace it needs to A. Murray, 'A Information Technology Law: The Law and Society', (Oxford University Press, Oxford, 2010), p.107 change the code. It could prevent trespass th government cannot claim to control the I. J. Lloyd, Information Technology Law, 4 ed. (OUP, Oxford, 2004), p.4. universal jurisdiction on the basis of local by introducing a password system. Code is harms.24 Lawrence Lessig argued that “… a perfect technology to control the [2006] EWHC 813(Ch). cyberspace, as L. Lessig says - 'Law as code the real world is made of atoms, cyberspace K. Rogers, 'Signing your e-life away', (2006), New Law Journal, vol. 156, p.833. of bits; the rule of the atoms don't work very is a start to the perfect technology of nd well when applied to bits. Bits don't respect justice.'26 Nowadays the cyberspace is an L. Edwards & C. Waelde, Law and the Internet A Framework for electronic Commerce, 2 ed. (Hart Publications, imperfect structure. However, we can hope Oxford, 2000), p .41. borders; they can't be cabined by borders. G. Spindler & F. Borner (Editor), E-Commerce Law in Europe and the USA, (Springer, Germany, 2001), p. 296- They go wherever the net goes, and the net it will be perfect technology architecture 97. nd goes everywhere without much limit.”25 So within a very short time. We are now at a E. Casey, Digital Evidence and Computer Crime, 2 ed. (Elsevier Press, London, 2004). primary stage of change. BBC, (Online), http://www.bbc.co.uk/news/technology-11596477 [3rd November 2010]

S. Ost, Child Pornography and Sexual Grooming: Legal and Social Responses, 1st ed. (Cambridge University Press, New York, 2009), p. 103.

Child Trafficking and Pornography Act 1998, s 4

S. Courtnage, E-volution Time, (2003), Company Secretary Review, issue 23, p. 184.

M.D. Goodman, (2002) 'The Emerging Consensus on Criminal Conduct in Cyberspace', Int. Jnl. of Law and Info. Technology, vol. 10, no. 2, p. 93.

G8 Digital Opportunity Taskforce (Online) www.mofa.go.jp/policy/economy/it/df0106.html [3rd November 2010] Fraud Act, 2006 s. 1 & 2 Creed & J. Angel, Computer law The Law and Regulation of Information Technology, 6thed. (OUP, Oxford, 2007), p. 557. [2005] EWCA Civ 75 P. Honkasalo, 'Criminal proceeding against the administrator of Bit Torrent tracker: Finreactor KKO 2010:47', 17Fraud Act, 2006 s. 1 & 2 (2010), European Intellectual Property Review, p. 2. 18C.Reed & J. Angel, Computer law The Law and Regulation of Information Technology, 6thed. (OUP, Oxford, 2007), p. 557. 19[2005] EWCA Civ 75 E-Commerce Directive: Introduction of the Directive [Online] http://ec.europa.eu/internal_market/e- 20P. Honkasalo, 'Criminal proceeding against the administrator of Bit Torrent tracker: Finreactor KKO 2010:47', (2010), European Intellectual Property Review, p. 2. commerce/directive_en.htm [3rd November 2010] 21See http://ec.europa.eu/internal_market/e-commerce/directive_en.htm 22Supra, n. 22. D. R. Johnson & D. Post, 'Law and Borders-The Rise of Law in Cyberspace', (1996), Stan. Law Review, vol. 48, 23D. R. Johnson & D. Post, 'Law and Borders-The Rise of Law in Cyberspace', (1996), Stan. Law Review, vol. 48, No. 5, p.1380. 24Ibid at 1390 No. 5, p.1380. 25L. Lessig, 'The Zones of Cyberspace', Stan. Law. Review, (1996), vol. 48, No.5, 1996, p. 1404. L. Lessig, 'The Zones of Cyberspace', Stan. Law. Review,(1996), vol. 48, No.5, 1996, p. 1404. 26Ibid 57 58 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Mr. Justice Md. Tafazzul Islam General, Mr. Khandaker Diliruzzaman, Chief Justice Assistant Attorney General, Mr. Kashifa Mr. Justice Mohammad Fazlul Karim Hussain, Assistant Attorney General, Mr. Mr. Justice Md. Abdul Matin Pratikar Chakma, Assistant Attorney General, Mr. Titas Hillol Rema, Assistant Mr. Justice Bijan Kumar Das Attorney General, with him), instructed by Mr. Justice Md. Muzammel Hossain Mr. B. Hossain, Advocate-on-Record Mr. Justice Surendra Kumar Sinha CIVIL PETITION FOR LEAVE TO For the Respondent No.5 APPEAL NOS. 1044 & 1045 OF 2009 (in both the cases) :Mr. M.K. Rahman, (From the judgment and order dated Additional Attorney General (Mr. Motaher 29TH August passed by the High Court Hossain Sazu, Deputy Attorney General, Division in Writ Petition No. 6016 of Mr. Biswajit Debnath, Deputy Attorney General, Mr. S. Rashed Jahangir, Assistant 2000) Attorney General and Mr. S.M. Nazumul Khondker Delwar Hossain, Secretary, Haque , Assistant Attorney General with B.N.P. Party (in C.P. No. 1044/09) ... him) instructed by Mrs. Sufia Khatun, Petitioner Advocate-on-Record Munshi Ahsan Kabir and others (in C.P. No. 1045/09) ....Petitioners For the Respondent `No.6 (in both the cases) :Mr. Murad Reza, =Versus = Additional Attorney General, (Ms. Fazilatunassa Bappy, Assistant Attorney General, Ms. Mahfuza Begum, Assistant Bangladesh Italian Marble Works Ltd., Attorney General and Ms. Khairunnessa, Dhaka and others Assistant Attorney General, instructed by (in both the cases) ... Respondents Mr. Giasuddin Ahmed, Advocate-on- Record For the Petitioner For the Respondent No.7 (in C.P. No. 1044/09) :Mr. T. H. Khan, (in both the cases) :Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Md. Senior Advocate, (Mr. AFM Mesbahuddin, Taufique Hossain, Advocate-on-Record Senior Advocate, Mr. Yusuf Hossain Humayun, Advocate, Mr. A.M. Amin Uddin, Advocate, Mr. Abdul Matin For the Petitioners Khasru, Advocate, Mr. Sheikh Fazle Noor (in C.P. No. 1045/09) :Mr. Moudud Ahmed, Tapash, Advocate, Mr. Nurul Islam Sujon, Senior Advocate,(Mr. Imran A Siddiq with Advocate, Mr. Shahidul Karim Siddiki, him) instructed by Advocate, Mr. S.M. Rezaul Karim, 59 60 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Advocate and Mr. Momtazuddin Fakir with from the staffs of the company and Officer (South) Dhaka, after examining the respondent Nos. 3 and 4 to hand over the him), Advocate instructed by Mrs. subsequently, by notification being documents, by his order dated 18.12.1974 possession of Moon Cinema Hall to the Mahmuda Begum, Advocate-on-Record No.186-SI dated December 31, 1971, the placed the matter before the Deputy company at once. management of the Moon Cinema Hall was Commissioner, Dhaka and in due course th st th th Date of hearing :The 19 , 21 , 26 , 27 and taken over by the proforma respondent the Additional Deputy Commissioner, Then in compliance of the above judgment th 28 January, 2010 and 1st February, No.3 and the same was handed over to the Dhaka by his Memo dated 6.1.1975 of the High Court Division, the respondent 2010 Management Board purportedly in recommended release of the said property. No.3, by Notification No. ND/(N- pursuance of the Acting President's Order But by Memo dated 27.06.1975 the 1)/4(2)/72/11 Dacca dated 24.8.1977, Amendment, as illegal and void and No. Sec XI/IM/35/71/17 dated December respondent No.3 informed the company deleted Moon Cinema Hall from the list allowing condonations of some of the 30, 1971; then in terms of the order passed that the Moon Cinema Hall is an abandoned published in the Notification dated amendments while refusing some others by the Department of Trade and property and as such cannot be released. 31.12.1971 and formally released Moon and also directing the Ministry of Commerce, by an order dated 28.11.1972 The Company then filed an application on Cinema Hall in favour of the company with Industries, the writ respondent No.1, the passed by the Registrar Joint Stock 17.12.1975, before the Member, Advisory a direction to the respondent No.4 to hand proforma respondent No.3 herein, to Companies, Bangladesh, the name of the Council, in-charge, Ministry of Planning over the physical possession of the same to handover the physical possession of Moon company was changed to Bangladesh and Industries, praying for release of Moon the representative of the company. In due Cinema Hall, 11 Wiseghat Road, Police Italian Marble Works Ltd.; then by Cinema Hall but without any result. Then course, a Magistrate was also deputed to Station: Kotwali, Dhaka, to the writ Notification No. IM-XV-36/72/531 dated finding no other alternative, the company hand over possession of Moon Cinema petitioner No. 1, the respondent No.1 15.12.1972 the respondent No.3, in filed Writ Petition No. 67 of 1976 praying Hall to the company but the possession herein, within 60 (sixty) days. exercise of the powers under Article 5 of the for declaration that the notification dated could not be handedover because the President's Order No. 16 of 1972, placed 31.12.1971 issued by the proforma proforma respondent No.5 refused to give Facts, in brief, are that the respondent No.1, the Moon Cinema Hall under the disposal respondent No.3 taking over Moon Cinema up possession of Moon Cinema Hall to the hereinafter referred to as the company, of Bangladesh (Freedom Fighters) Welfare Hall as abandoned property under the company on the ground that they, against along with its Managing Director, filed the Trust, the writ respondent No.3, the Acting President's Order No.1 of 1971 and the above judgment of the High Court above writ petition stating, inter alia, that proforma respondent No.5 herein. its subsequent Order dated 27.6.1975 Division, has filed Civil Petition No. 291 of the company was registered with the Joint refusing to release Moon Cinema Hall are 1977 before this Division and obtained an Stock Companies of the erstwhile East Then on April 28, 1972, the company filed illegal and without lawful authority. Only order of stay. In the meantime Abandoned Pakistan as a private limited company in the an application praying for release of the the respondent Nos. 3 and the Secretary, Properties (Supplementary Provisions) name and style of Pak Italian Marble Work Moon Cinema Hall whereupon the Sub- Ministry of Industries, the writ respondent Regulation, 1977, hereinafter referred to as Limited and in the year 1962 it became the Divisional Officer (South), Dhaka, by his No.2, the respondent No.4 herein, Martial Law Regulation No. VII of 1977, owner of the above Holding No.11, Wise order dated 1.12.1972, directed an enquiry contested the Rule by filing an affidavit-in- having been promulgated on 7.10.1977 Ghat Road, Dhaka and in the year 1964, it and the directors of the company personally opposition. The proforma respondent No.5 prodiving, amongst others, annulment of constructed a cinema hall known as Moon appeared before the Officer-in-Charge of neither opposed the Rule nor filed an the above judgement and Cinema Hall; after liberation of the Abandoned Property Cell on affidavit-in-opposition. After hearing the Bangladesh, in or around the last week of 22.10.1973 and after enquiry the authority High Court Division, by judgment and order of the High Court Division dated 15. December, 1971, some people taking concerned filed an enquiry report dated order dated 15.6.1977, declared the 6. 1977. Then the above civil petition was advantage of poor law and order situation 11.9.1974 with the finding that the Moon impugned notification dated 31.12.1971 as dismissed as not being pressed.Thereafter prevailing at that time, took over forcible Cinema Hall was not an abandoned illegal and directed the proforma the company made several representations possession of the above Moon Cinema Hall property and thereafter the Sub-Divisional to the respondent Nos.3 and 4 requesting 61 62 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

them to hand over of the possession of the Division by order dated 7.6.94 rejected the Martial Law on April 6, 1979 by the Fifth 23, 1977 also promulgated Proclamations Moon Cinema Hall in their favour but the above writ petition summarily holding that Amendment and only quoted one (Amendment) Order, 1977, i.e., the same was refused on the plea that in view of the company did not challenge the vires of paragraph from the said judgment and that Proclamations Order No.1 of 1977, which promulgation of MLR VII of 1977 the the Fifth Amendment and further there the above cases also have no relevance with amongst others, inserted paragraph 3A in judgment and order of the High Court the Fourth Schedule to the Constitution being inordinate delay of about 15 years it the facts and circumstances of the appeal Division dated 15.6.1977 passed in Writ purporting to validate the above is too late to challenge the vires of the Fifth and further the Fifth Amendment has also Petition No. 67 of 1976 stood annulled and Proclamations dated August 20, November so the said judgment was no longer binding Amendment specifically in view of the not been challenged in the appeal. In the 8 and 29 of 1975 and also all the Martial upon them and the said Cinema Hall having judgment passed in the case of Anwar above circumstances, the company, for Law Regulations, Orders etc made during vested in the Government, they were not Hossain Vs. Bangladesh BLD (Suppl.)1 = relief, had to file the above writ petition the period between August 15, 1975 and legally bound to deliver the possession of 41 DLR (AD)165. Being aggrieved the challenging the vires of the Fifth April 9, 1979, i.e the date of withdrawal of the same to the Company. In the contempt company filed Civil Appeal No. 15 of 1997 Amendment. Martial Law and thereafter, by section 2 of proceedings, which in the meantime but the same was also dismissed by this the Fifth Amendment, Paragraph 18 was commenced at the instance of the company, Division by judgment and order dated In the writ petition it was further stated that inserted in the Fourth Schedule to the the proforma respondents having taken Constitution under the heading 14.7.1999 holding, amongst others, that the Khandaker Moshtaque Ahmed by a similar stand, the company did not press Proclamation dated August 20, 1975 took 'Ratification and Confirmation' and thus on publication of the Gazette Notification those and those were accordingly over the full powers of the Government and seizing powers, the Chief Martial Law discharged. dated 24.8.77 was not an actual and suspended the Constitution with effect Administrators purportedly issued decrees effective restoration or transfer of the from August 15, 1975 and made the known as Proclamations 'subordinating' or However, after the withdrawal of Martial possession of the Moon Cinema Hall by Constitution subservient to the above 'suspending' the Constitution of the Law the company filed Writ Petition No. way of delivery of possession to the Proclamation and after 82 days he handed Republic including all those articles of the 802 of 1994 before the High Court Division company or by means similar to delivery of over the office of the President of Constitution which protected the rights of the individuals and provided the praying for issuing a Rule Nisi upon the possession and therefore the High Court Bangladesh to Justice Abu Sadat Mohammad Sayem, the then Chief Justice guarantees necessary for the maintenance respondent Nos. 3-4 and the proforma Division did not commit any illegality in of the rule of law etc. and that the Chief not extending the protection of sub- of Bangladesh, who upon entering the said respondent No.5 calling upon them to show office of President on November 6, 1975, Martial law Administrator had no authority paragraph (2) of paragraph 6 of Martial cause as to why, pursuant to the Gazette assumed the powers of Chief Martial Law to nullify the Constitution by issuing the Law Regulation No. VII of 1977 to the Notification No. IND(M-1)/4(2)/72/11 Administrator and then he, by the Second above proclamations etc. and that under the dated 24.8.1977 issued by the respondent company and the High Court Division also Proclamation dated November 8, 1975, Constitution, even in case of grave public No.3 for releasing Moon Cinema Hall and did not misinterpret the law as laid down in made certain amendments in the danger, it is only the President of the also directing the respondent No.4 to hand the case of Nasiruddin Vs. Government 32 Proclamation dated August 20, 1975 and Republic who, in case of his satisfaction over the possession of the same to the DLR (AD) (1980) 216 and merely then by the Third Proclamation dated and subject to Article 141A, could have suspended only some constitutional company, the respondent Nos. 3-4 and the summarized the points stated therein and November 29, 1976 he handed over the office of Chief Martial Law Administrator guarantees but the Chief Martial Law proforma respondent No.5 should not be that with regard to the case of to Major General Ziaur Rahman B.U and Administrators, under the above directed to make over possession of the Ehteshamuddin Vs. Bangladesh 33 DLR then on 5.10.1977 Major General Ziaur Proclamations, went even further than (AD) (1981) 154 the High Court Division Moon Cinema Hall in favour of the Rahman promulgated Martial Law what the President and /or the Parliament merely considered the effect of the lifting of company. However, the High Court Regulation No. VII of 1977, and on April was entitled to do under the Constitution 63 64 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

and further the Chief Martial Law purported 'ratification and confirmation' of 18 of the Fourth Schedule to the 15 of 1997 and that in the wake of two Administrators purportedly subordinated the Abandoned Properties (Supplementary Constitution all actions taken during the Martial Law periods/regimes the or suspended the very Constitution itself to Provisions) Regulations, 1977 (Martial Martial Law period between 15th August jurisprudence that has emerged in the the Martial Law Proclamtions, Regulaions Law Regulations No. VII of 1977 and and 9th April, 1979 were ratified and constitutional history of Bangladesh is that and Orders which cannot be done either by Proclamations (Amendment) Order, 1977 declared to have been validly made, done or no Court including the Supreme Court has the President or the Parliament even in (Proclamation Order No.1 of 1977) with taken and also providing that the validly of any power to call in question the same in grave emergency and further the Parliament regard to insertion of paragraph 3A to the those shall not be called in question in any any manner whatsoever and / or declare under Article 142 of the Constitution has / Fourth Schedule of the Constitution by Court, Tribunal or authority on any ground illegal or void the above Martial Law had no authority / power to “ratify” and paragraph 18 of the Fourth schedule of the whatsoever and further in the cases of Proclamations, Regulation and Orders etc “confirm” the act of “subordination' or Constitution of the People's Republic of Halima Khatun V. Bangladesh 30 DLR and in Halima Khatun's case it was held “suspension” of the Constitution and Bangladesh added by the Constitution (SC) (1978) 207, State V. Joynal Abedin 32 that there was a 'total ouster of jurisdiction nullifying all those Articles which provided (Fifth Amendment) Act, 1979 (Act 1 of DLR (AD) (1980) 110, Nasiruddin's case of the Court” and thus this Division put the Supremacy of the Constitution, Rule of 1979) should not be declared to have been (supra) and Enteshauddin's case (supra) Constitution in no uncertain terms as Law. Independence of Judiciary and its made without lawful authority and is of no this Division in no uncertain terms put the subservient to the above Martial Law power of Judicial review and thus legal effect and as to why the respondents Constitution as subservient to the above Proclamations, Regulations and Orders etc destroying the basic structures of the should not be directed to hand over 'Moon Martial Law Proclamations, Regulations and thus the Constitution has lost its Constitution. Cinema', 11, Wiseghat Road, Dhaka with and Orders etc. and further in Anwar character as the supreme law of the country Then the High Court Division on its assets and management to the petitioners Hossain's case (supra) Justice Shahabuddin and in Joynal Abedin's case this Division 11.12.2000 issued Rule on the following or such other or further order or orders Ahmed, even after noticing that by the followed the above view and in terms: passed as to this Court may seem fit and above Martial Law Proclamations, Ehtaeshamuddin's case this Division went proper”. Regulations and Orders the Constitution on not only to reiterate the subservience of “Let a Rule Nisi be issued calling upon the was badly mauled in different times, the Constitution to the above Martial Law respondents to show cause as to why taking The respondent Nos.3 and 4 opposed the refused to interfere holding that all these Proclamation, Regulations and Orders etc over the management of 'M/s. Moon Rule and filed affidavits-in-opposition structural changes were incorporated in and for as long as Martial Law proclaimed / Cinema' 11, Wiseghat, Dhaka by / under stating that Moon Cinema Hall is an ratified by the Fifth Amendment and made on August 15, 1975 existed, but also Notification No. 186-51 dated 31st abandoned property and that no body was moreover long 15 years have elapsed since beyond, i.e., after the Constitution was December, 1971 published in the found to manage the same and none of the Fifth Amendment was passed and none revived and that in Nasiruddin's case this Bangladesh Gazette, Extraordinary dated share holders of the company, except two, challenged the Fifth Amendment it in the Division also followed Halima Khtun's 3rd January, 1972 and its placement with was found present in Bangladesh at the meantime. case but however clarifying that there respondent No.3 for management by relevant time and so Moon Cinema Hall cannot be any question of abatement of any Notification No. IM-XV-36/72/531 dated was taken over under the Acting President's The proforma respondent No.5 also legal proceedings initiated by an aggrieved 15th December, 1972 published in the Order No.1 of 1972 in the interest of the opposed the Rule and filed affidavit-in- person to protect his legal right or interest Bangladesh Gazette Extraordinary dated 4th Republic and subsequently under opposition stating that the writ petition is in the property against which the action January, 1973 and all subsequent actions, President's Order No. 16 of 1972 it vested barred by the principle of res judicata taken or the vesting order made is without deeds and documents relating thereto in the Government and subsequently it was inasmuch as all the relevant issues raised in jurisdiction or coram non judice or is should not be declared to have been made placed at the disposal of the proforma the writ petition had been finally and malafide and that except within this narrow without lawful authority and is of no legal respondent No.5 which is possessing and conclusively decided in Writ Petition No. compass, all the proceedings coming effect and to further show cause as to why managing the same and that by paragraph 802 of 1994 as well as in Civil Appeal No. within the mischief of Martial Law 65 66 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Regulation No. VII of 1977, shall abate. economic life of the Republic. Bangladesh and his assumption of powers B.U. of the Chief Martial Law Administrator and 6. The Constitution stipulates a democratic Upon hearing the parties, the High Court his appointment of the Deputy Chief 14. All Proclamations, Martial Law Division made the Rule absolute and at the R e p u b l i c , r u n b y t h e e l e c t e d Martial Law Administrators by the Regulations and Martial Law Orders made end of its judgment the High Court Division representatives of the People of Proclamation issued on November 8,1975, summarized its findings as follows:- Bangladesh and any attempt by any person during the period from August 15, 1975 to or group of persons, how high so ever, to were all in violation of the Constitution. April 9,1979, were illegal, void and non est 1. Bangladesh is a Sovereign Democratic usrup an elected government, shall render because. themselves liable for high treason. Republic, governed by the Government of 11. The handing over of the Office of i) Those were made by persons without laws and not of men. 7. A proclamation can be issued to declare Martial Law Administrator to Major lawful authority, as such, without General Ziaur Rahman B.U., by the jurisdiction. 2. The Constitution of Bangladesh being the an existing law under the Constitution, but embodiment of the will of the Sovereign not for promulgating a new law or offence aforesaid Justice Abusadat Mohammad People of the Republic of Bangladesh, or for any other purpose. Sayem, by the Third Proclamation issued ii) The Constitution was made on November 29,1976, enabling the said subordinate and subservient to those 8. There is no such law in Bangladesh as is the supreme law and all other laws, Major General Ziaur Rahman, to exercise P r o c l a m a t i o n s , M a r t i a l L a w actions and proceedings, must conform to it Martial Law and there in also no such all the powers of the Chief Martial Law Regulations and Martial Law Orders, and any law or action or proceeding, in authority as Martial Law Authority as such whatever form and manner, if made in and if any person declares Martial Law, he Administrator, was beyond the ambit of the iii) Those provisions disgraced the violation of the Constitution, is void and will be liable for high treason against the Constitution. Constitution which is the embodiment Republic. Obedience to superior orders is non est. of the will of the people of Bangladesh, itself no defence. 12. The nomination of Major General Ziaur as such, disgraced the people of 3. The Legislature, the Executive and the Rahman, B.U., to become the President of Bangladesh also. Judiciary being the three pillars of the 9. The taking over of the powers of the Republic created by the Constitution, as Government of the People's Republic of Bangladesh by Justice Abusadat such, are bound by its provisions. The Bangladesh with effect from the morning of Mohammad Sayem, the assumption of iv) From August 15, 1975 to April 7, Legislature makes the law, the Executive t h office of the President of Bangladesh by 15 August, 1975, by Khandaker 1979 Bangladesh was ruled not by the runs the government in accordance with Major General Ziaur Rahman, B.U., were representatives of the people but by the law and the Judiciary ensures the Mushtaque Ahmed, an usurper, placing without lawful authority and without usurpers and dictators, as such, during enforcement of the provisions of the Bangladesh under Martial Law and his jurisdiction. Constitution. assumption of the office of the President of the said period the people and their 4. All functionaries of the Republic and all Bangladesh, were in clear violation of the country, the Republic of Bangladesh, services of the Republic, namely, Civil 13. The Referendum Order,1977 (Martial Constitution, as such, illegal, without lost its sovereign republic character and Service, Defence Service and all other Law Order No.1 of 1977),published in lawful authority and without jurisdiction. was under the subjugation of the services, owe its existence to the st Bangladesh Gazette On 1 May, 1977, is dictators. Constitution and must obey its edicts. 10. The nomination of Mr. Justice Abusadat unknown to the Constitution, being made 5. State of emergency can only be declared Mohammad Sayem, as the President of only to ascertain the confidence of the v) From November 1975 to March, by the President of the Republic on the Bangladesh, on November,6, 1975, and his people of Bangladesh in one person, 1979 Bangladesh was without any advice of the Prime Minister, in case of namely, Major General Ziaur Rahgman, Parliament and was ruled by the imminent danger to the security or taking over of the Office of President of 67 68 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

dictators, as such, lost its democratic nothing for the Parliament to ratify, confirm excuse for any violation of the Constitution the provisons was allowed in respect of character for the said period. and validate. or its deviation on any pretext. Such turmoil omission of any provision enshrined in the Secondly, the Proclamations etc. being or crisis must be faced and quelled within original Constitution. The Preamble, vi) The Proclamations etc. destroyed the illegal and constituting offence, its the ambit of the Constitution and the laws Article 6, 8, 9, 10, 12, 25, 38 and 142 basic character of the Constitution, such as, ratification, confirmation and validation, made thereunder, by the concerned remain as it was in the original change of the secular character, negation of by the Parliament were against common authorities, established under the law for Constitution. No condonation is allowed in Bangalee nationalism, negation of Rule of right and reason. such purpose. respect of change of any of these provisions law, ouster of the jurisdiction of Court, Thirdly, the Constitution was made of the Constitution. Besides, Article 95, as denial of those constitute seditious offence. subordinate and subservient to the 19. Violation of the constitution is a grave amended by the Second Proclamation Proclamations etc. legal wrong and remains so for all time to Order No.IV of 1976, is declared valid and 15. Paragraph 3A was illegal, Fourthly, those Proclamations etc. come. It cannot be legitimized and shall retained. destroyed its basic features. remain illegitimate for ever. However, on “Firstly because it sought to validate the Fifthly, ratification, confirmation and the necessity of the State only, such legal The High Court Division then concluded as Proclamations, MLRs and MLOs which validation do not come within the ambit of wrongs can be condoned in certain follows: were illegal”, and 'amendment' in Article 142 of the circumstances, invoking the maxims, Id Constitution. quod Alias Non Est Licitum, Necessitas I) The Constitution (Fifth Amendment) “Secondly, Paragraph 3A, made by the Sixthly, lack of long title which is a Licitum Facit, salus populi est suprema lex Act, 1979 (Act of 1979) is declared Proclamation Orders, as such, itself was mandatory condition for amendment, made and salus republicae est suprema lex. illegal and void ab initio, subject to void”. the amendment void. condonations of the provisions and Seventhly, the Fifth Amendment was made 20. As such, all acts and things done and actions taken thereon as mentioned 16. The Parliament may enact any law but for a collateral purpose which constituted a actions and proceedings taken during the above.ii) The “ratification and subject to the Constitution. The fraud upon the People of Bangladesh and period from August 15, 1975 to April 9, confirmation” of the Abandoned Constitution (Fifth Amendment) Act, 1979 its Constitution. 1979, are condoned as past and closed Properties (Supplementary Provisions) is ultra vires, because: transactions, but such condonations are Regulation, 1977 (Martial Law 17. The Fourth Schedule as envisaged made not because those are legal but only in Regulation No. VII of 1977) and Firstly, Section 2 of the Constitution (Fifth under Article 150 is meant for transitional the interest of the Republic in order to avoid Proclamations (Amendment) Order, Amendment) Act, 1979, enacted Paragraph and temporary provisions, since Paragraph chaos and confusion in the society, 1977 (Proclamation Order No. 1 of 18, for its insertion in the Fourth Schedule 3A and 18, were neither transitional nor although distantly apprehended, however, 1977) with regard to insertion of to the Constitution, in order to ratify, temporary, the insertion of those those remain illegitimate and void forever. Paragraph 3A to Fourth Schedule of the confirm and validate the Proclamations, paragraphs in the Fourth Schedule are Constitution added by the Constitution MLRs and MLOs etc. during the period beyond the ambit of Article 150 of the 21. Condonations of provisions were made, (Fifth Amendment) Act, 1979 (Act of from August 15, 1975 to April 9, 1979. Constitution. among others, in respect of provisions, 1979), is declared to have been made Since those Proclamations, MLRs, MLOs deleting the various provisions of the without lawful authority and is of no etc., were illegal and void, there were 18. The turmoil or crisis in the country is no Fourth Amendment but no condonation of legal effect. 69 70 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

The High Court Division also directed Ordinance, 1975, Ordinance No. 1, of the above decision for enacting similar Constitution looses its supremacy and the proforma respondent No.3 to hand 1975, protecting the trial in respect of the repealing Act, the then Awami League those decisions being binding upon the over the physical possession of the assassination of the then President Sk. Government did not touch any other single High Court Division in terms of the Moon Cinema Hall to the company Mujibur Rahman along with his family, by instrument passed during 15th August 1975 provisions of Article 111 of the within a period of 60(sixty) days of the ousting Courts jurisdiction, was given legal to 9th April 1977 including MLR VII of Constitution and though those decisions were cited before the High Court Division, receipt of the judgment. c o v e r a g e b y t h e P r o c l a m a t i o n 1977, which having got similar legal not only those were ignored but the High Thus the High Court Division though (Amendment ) Order, 1977, Proclamation coverage, could only be nullified by a Court Division, in a language, which is allowed the condonations of the Order No. 1 of 1977, the Court's repealing legislation and not by any judicial inconsistent with the civility and decorum provisions which annulled the various jurisdiction was clearly ousted and further pronouncement and since the embargo of the Court, criticized those decisions. provisions of the Fourth Amendment the said Proclamation Order No. 1 of 1977 regarding entertainment of any question and also some other provision, but did was also given constitutional coverage vide regarding the validity of the promulgation © Article 101 of the Constitution confers not condone of the provisions in respect the Fifth Amendment by a legally elected of the said MLR VII of 1977 existed at the jurisdiction upon the High Court Division of the omission / substitutions of the Parliament and thereby totally ousting the time of filing of the present writ petition as and sub clause a(ii) of Clause 2 of Article Preambles, Articles 6, 8, 9, 10, 12, 25, Court's jurisdiction for holding any trial of well as at the time of pronouncement of its 102 of the Constitution, delineates the 38 and 142 of the original Constitution the perpetrators of the crime committed on judgment on 29 August 2005 and also till power to the High Court Division and the th said sub clause (a)(ii), is subject to and /or and no condonation being allowed in 15 August, 1975, had to go for new today, the High Court Division had no controlled by the rider clause as provided in respect of the changes of any of the legislation for repealing the said Indemnity jurisdiction to entertain the above writ Article 150 of the Constitution and above provisions of the Constitution Ordinance, 1975 in order to extricate from petition and pass judgment thereon and undoubtedly paragraphs 3A and 18 added those were to remain as existed as on the embargo as provided in paragraph No. moreover the High Court Division also not to the Fourth Schedule to the Constitution August 15 1975. Besides, Article 95, as 3A and 18 to the Fourth Schedule to the only illegally arrogated to themselves the by the Proclamation Order 1 of 1977, amended by the Second Proclamation Constitution and for that purpose enacted functions of the legislators but also made subsequently ratified by the 5th Amendment (Seventh Amendment) Order 1976 i.e, repealing Act No. 21 of 1996, by a simple highly subjective opinionated conjectures of the Constitution are transitional and the Second Proclamation Order No. IV majority, and that the said Act 21 of 1996 and surmises in declaring that the laws from temporary provisions, which were of 1976, being declared valid, was was then challenged before the High Court August 15, 1975 to April 9, 1979 were promulgated out of imperative necessity in order to give continuity and to avoid chaos retained by the High Court Division. Division on the ground that it ought to have illegal, void and non est. and confusion and those provisions are been passed by two third majority instead clearly a bar in entertaining any writ (b) the High Court Division totally failed to Mr. T. H. Khan, Senior Advocate, the of simple majority but this contention petition like the present one. learned counsel appearing for the petitioner however was turned down by the High consider that the Appellate Division had already given sanction to MLR VII of 1977 in Civil Petition No.1044 of 2009 submitted Court Divisions and on appeal this Division (d) description of “person” given in Article in so many previous decisions such as as follows:- by its judgment reported in 18 BLD AD 155 102(5) of the Constitution having not Halima Khatun's case , Nasiruddin's case, included the Parliament, it is crystal clear affirmed the above judgment and then only Ehteshamuddin case, (supra), judgment that the Parliament has not been considered (a) on coming to power in the year 1996 the the trial for the said killing commenced but passed in Civil Appeal No. 15 and also in as a person and the legislators had never Awami League Government, having found surprisingly even after getting such a other decisions wherein it was held that contemplated to equate the Parliament with that the provisions of the Indemnity clearance from the Appellate Division by when Martial Law if imposed, are 71 72 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

a statutory pubic authority and the High (g) the company filed Writ Petition DLR(AD) 154, 207 US 288, the writ (f) the High Court Division has delivered Court Division though has been vested with No.6016 of 2000 after 21 years of the petition could be disposed of without the judgment in violation of Article 111 of the power to examine the vires of any enactment of the Fifth Amendment without declaring the Fifth Amendment illegal and the Constitution as will be evident in as provisions of any parliamentary enactment assigning any reason for this inordinate void much as series of decision of this Division but strictly within the letter and spirit of Articles 7 and 26 of the Constitution as has delay, which is fatal and the company can (c) The High Court Division also travelled reported in 30 DLR (AD) 207, 32 DLR AD been done in the case of Anwar Hossain not at its sweetwill choose his own time to beyond the terms of the Rules which is not 110 and 216, 33 DLR (AD) 154, 59 DLR (supra) in which it was held that the invoke the extraordinary jurisdiction of the permitted as held in 51 DLR AD 172, 60 (AD) 289, 60 DLR (AD) 57 and 3 BLC disintegration of the High Court Division High Court Division and that in the mean DLR AD 90 and 18 BLD (AD) 155. (AD) 89 will show that the supremacy of was violative of the unitary structure of time the transactions and instruments made (d) Five Parliaments duly elected by the the Constitution does not hold good once it country thereby offends against the said by the Martial Law Authority having been people in the years 1986, 1988, 1991, 1996 is placed under the proclamation of Martial provisions, ratified by the Fifth Amendment, became and 2001, have preserved and protected the Law and further from the judgments of this past and closed transactions and the whole Fifth Amendment enacted in April 1979 Division passed in 60 DLR (AD) pages (e) the learned judges of the High Court country, in all its branches, was governed and maintained its continuity and five respectively 57, 82 and 90, it will appear Division having declared that the laws from under those instruments without any governments including the judiciary have that the supremacy of Constitution did not August 15, 1975 to April 9, 1979 were protest form any quarter including the functioned and discharged their hold good even during the recent illegal, void and non-est there remained judiciary and so the writ petition aught to responsibilities under the Fifth Amendment Emergency where a subordinate legislation nothing to condone any amendments but have been rejected on the ground of delay and consequently it has been accepted by like the Emergency Rules were given ironically some of the non est provisions alone. the people and accordingly by their precedence over the Constitution. were condoned and some were not acquiescence the Fifth Amendments has condoned and moreover the High Court Mr. Moudud Ahmed, Senior Advocate, become part of the Constitution as (g) the judgment of this Division is Division can not pick and choose the the learned counsel appearing for the observed by Shahabuddin Ahmed CJ in confusing rather than cohesive and it is also provisions at its sweetwill from the non est petitioner in Civil Petition No. 1045 of Anwar Hossain's Case (supra). irrational, inconsistent and self provisions to give those legal validity. 2009 submitted as follows:- contradictory as while it has struck down the Fifth Amendment as a whole but on the (a) the very fact that the judgment of the e) by way of denying condonation of the (f) undoubtedly the facto and de-jure H i g h C o u r t D i v i s i o n i n v o l v e s other hand have condoned some of the amendments made in the Preamble; amendments and actions at its own choice jurisdiction of legislation laid with the interpretation of the Constitution and of Articles 6, 8, 9, 10, 12, 25; proviso to great public importance, for complete on a pick and choose basis without any Martial law Authority during the whole Article 38 and clause 1A 1B and 1C of justice under Article 103 and 104, the legal grounds. (h)the principles of Martial Law Regime and also the Article 142 and paragraphs 3A and 18 to the petitioners deserve leave as opined by the nationalism, socialism and secularism, transitional period until return of Fourth Schedule of the Constitution, the identified by the High Court Division as democratic system after General Election former Chief Justice Mr. Justice Mostafa Kamal in the report published in Naya High Court Division has acted as a the basic structures of the Constitution held in February, 1979 and one must realize Diganha on 14.01.2010, legislature by rewriting the Constitution have no legal foundation and are contrary that the reality of the situation of the which could only be done by the Parliament to the decision given by the Appellate Country at the relevant time and the Division in Anwar Hossain's Case. (b) in terms of the principle as laid down in under Article 65 of the Constitution. personal sentiment or likes and dislikes 32 DLR (AD) 216, 33 DLR (AD) 201, 44 have no role. (i) the judgment and order of the High 73 74 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Court Division has been made in violation of law for which certificate is prayed for preamble and whether or not preamble is a misadventures by the civil and military of the Constitution and without jurisdiction and further even though the petitions part of the Constitution it, constituting a bureaucrats in Pakistan who never in as much as that in terms of Article 150 of involve constitutional issues, the part of the context, has to be taken into permitted constitutional governments to the Constitution anything contained in the petitioners having failed to show any prima consideration in construction of any settle down, the framers of our Constitution Fifth Amendment “shall not be called in facie defect in the judgment necessitating substantive provision of the Constitution felt it necessary to make the declarations in question in or before any court, tribunal or interference and the points raised having and moreover if the internal context cannot Article 7 of the Constitution which authority on any ground whatsoever” and been authoritatively decided by the resolve the vagueness, resort may be had to brilliantly comprehends the entire further the definition of 'Court' as provided superior courts, the petitioners have failed the external context which includes the jurisprudence of the constitutional law and in Article 152 of the Constitution has been to make a case for grant of leave to appeal. history leading the enactment of the statute constitutionalism in Bangladesh including reaffirmed by the Appellate Division in 60 and the proceedings of parliament and the the supremacy of the Constitution and the DLR 82 holding that it included the (b) the government having withdrawn the same can be said about interpretation of a decision of Pakistan Supreme Court in Supreme Court. appeal and the concerned Ministry not Constitution and accordingly for Zafar Ali Shah V. General Parvez Mr. Mahmudul Islam, Senior Advocate, challenging the judgment and the interpretation of our Constitution, Mosharaf, PLD 2000 SC 869, is an the learned counsel appearing for the petitioners having taken no grounds concentration should be on the text of the example which demonstrates the foresight respondent No.7 in both the petitions, challenging the order of the High Court Constitution and then go to history only of the framers of our Constitution in submitted as follows:- Division directing delivery of the property incidentally, if necessary. making it explicit by incorporating Article in question to the respondent No.1, in the 7 what has always been implicit in any (a) the submission of the petitioners that the instant petitions we are only concerned (d) unlike preamble of many other written constitution and if Article 7 is read High Court Division ought to have granted with question whether the Fifth constitutions, the preamble of our together with the preamble and the certificate suo moto under Article 103 (2) as Amendment ratifying all legislative and Constitution has laid in clear terms the aims fundamental principles of State Policy of substantial question of law as to the executive actions of the Martial Law and objectives of the Constitution and in no Chapter II of the Constitution and if the interpretation of the Constitution is Authorities between 15th February, 1975 uncertain terms it speaks of representative different provisions of the Constitution are involved in this case has no basis at all and 5.11.79 is valid and if not whether and democracy, rule of law and supremacy of interpreted following the mandate of because the petitioners, having not required to what extent the doctrine of necessity will the constitution as the embodiment of the Article 8(2), there remains no doubt that (i) the High Court Division to exercise its come into play. will of the people of Bangladesh and all the the supremacy of the Constitution and discretion in granting or refusing to grant provisions that follow have been structured through its operation the establishment of a the certificate, can not now complain and © It is a well-established principle of accordingly to achieve these aims and representative democratic polity and Rule that the High Court Division ought to have interpretation of any statute or constitution objectives and further a written of Law securing for all the citizens granted certificate as the High Court that in order to ascertain the meaning of any Constitution in itself is a limitation on the fundamental human rights and freedom are Division should not grant certificate particular provision, the instrument must governmental powers resulting in (i) a the basic features of the Constitution and without formulating the question of law on be read not in isolation but as a whole in its limited government and (ii) the supremacy together with these (ii) the independence of which certificate is to be granted and it has proper context and the context is of two of the Constitution. the judiciary and its the power of judicial been the regular practice to pray for such types- internal and external; the internal review of the executive and legislative certificate from the Bar on stating the points being the text of the statute including the (e) the past history of constitutional actions are also basic features of the 75 76 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Constitution as without the above, the aims fulfilled once the government under the invalidity as has been held in Grace a view earlier taken by this Division and and objectives as formulated would be Constitution is established and though Brothers Pty Ltd v. The Commonwealth, 72 moreover the role of Stare Decisis is wishful thinking and it is now well- generally such provisions are kept beyond CLR 269, 289. i n s i g n i f i c a n t i n c o n s t i t u t i o n a l established that the basic features and the pale of judicial review but at the same interpretation particularly when the earlier structures of the Constitution are beyond time no matter is intended to be 24 included (j) simply because the laws made by the view is manifestly wrong and further the the amending power of the Parliament in the “transitional provisions” which do Martial Law authority and actions under it observation of the Shahabuddin Ahmed J under Article 142 of the Constitution. not relate to anything during the were considered by this Division in some in Anwar Hossain case to the effect that “ In interregnum period between the date of the cases wherein those were not declared ultra spite of these vital changes from 1975 by (g) the submission of the petitioners that the Constitution coming into operation and the vires, those laws can not attain validity and destroying some of the basis structures of Parliament being not a person, the High date of setting up of the government under further it also will be evident that in none of the Constitution, nobody challenged them Court Division does not have jurisdiction to the provisions of the Constitution but by the those case, the invalidity of the Fifth in court after revival of the Constitution; declare an Act of Parliament ultra vires has Fifth Amendment made in 1979 paragraph Amendment was vouched and so those consequently, they were accepted by the also no basis as since Article 7 of the 18 was inserted in the schedule of cases can not operate as precedent for the people, and by their acquiescence have Constitution declared the Supremacy of the “transitional provisions” only to ratify the validity of the Fifth Amendment and become part of the Constitution” is quite Constitution, there must be some authority otherwise unconstitutional legislative and accordingly the submission of the wrong as can be seen from numbers of to maintain and preserve this supremacy of executive actions of the Martial Law petitioners that the earlier decisions decisions of the superior Courts Eights and the Constitution and there can be no doubt authority and also to preclude judicial touching the actions of the Martial Law further this statement is simply an obiter that in an entrenched Constitution the review of those actions though those are not authorities provide some binding dicta as being 25 made while dealing with judiciary must be that authority and starting “transitional provisions” and so this is precedents under Article III of the the Eighth Amendment and the Fifth from the case of Marbury v. Madison, 1 simply a fraud on the Constitution and such Constitution upholding the finding that Amendment was not in issue in Cranch 137, there are numerous instances Fifth Amendment is also patently illegal actions of martial Law authorities can not Amendment case and the above where the superior courts functioning under specially for inserting the provision barring be challenged in the Court is not tenable as observation was simply uncalled for and a written constitution upheld this power of judicial review, another basic feature of the in none of those cases the issue of invalidity moreover no other Judge having agreed judicial review as would be evident from Constitution. of the Fifth Amendments was raised much with the said observation, it cannot be the contents of the judgment of the High less to speak of the Court's confirming the treated as ratio decidendi so as to have Court Division. (i) the petitioners submitted that the Fifth validity of the fifth Amendment and that in biding force under Article 111 and that in Amendment having not being challenged order to apply the provision of Article 111 dealing with ratio decidendi to operate as a (h) Whenever a new legal order is ushered, for long time, it must be deemed that Fifth an issue must raised and deliberated upon precedent of the view Salmond is relevant the Constitution makes provision to deal Amendment has been accepted by the and decided before it can operate as a with some matters, treating those as people but the legal position is that time binding precedent as what is binding as a (k) an effort has been made to apply the “transitional provisions”, till the does not run in favour of the validity of law is the ratio of a decision and not the principle of estoppel and acquiescence to Constitution takes full effect and these legislation and if it is ultra vires, it can not finding of a fact or the conclusion reached prevent the Fifth Amendment from being provisions are called transitional provisions gain legal strength from long failure on the by the Court and furthermore this Division, declared ultra vires but such effort is not as the purpose of these provisions will be part of lawyers to perceive and set up its having the power of review, is not bound by tenable in the eye of law because it is a 77 78 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

well-established principle that estoppel (m) However to avoid anomaly and issues should be resolved as early as concerned has no substance as the matter in cannot be pleaded against or in respect of a preserve continuity, Courts have to pass possible as for example in the case of Nurul issue is such that there is no scope for Statute, much less to speak of the consequential orders as in the Eighth Islam's case 33 DLR (AD) 201 though application of the doctrine of severability Constitution and similarly, there cannot be Amendment case the Appellate Division Kamaluddin Hossain CJ and Shahabuddin as the grounds of violation of the basic any acquiescence to hold valid an otherwise ordered prospective application of the J found the compulsory retirement of Dr. features of the Constitution, on which the invalid law. invalidity of the Eighth Amendment and Nurul Islam to be vitiated because of mala impugned Fifth Amendment was found further while declaring any law ultra vires, fidee and refrained from deciding the invalid, are such that it has to be declared (l) the doctrine of necessity is applied to the Court often applies the doctrine of constitutional issue but the majority judges void in its entirety. condone some of the actions of a usurper as severability to limit the application of the addressed to the question of violation of the were done in the case of Madzimbamutu V judicial verdict and this is no legislative act equality clause and decided it and that in the (p)The submission of the petitioners that Lardner-Burke (1968) 3 All ER 561 and though such a decision modifies or even present case though the High Court because of the Fourth Amendment, Fifth also in the case of Asma Jilani v. Punjab destroys a legislation and accordingly once Division found that the property in question Amendment had to be made has also no PLD 1972 (SC 139) and that actions and the Fifth Amendment is held invalid and was not an abandoned property, it could not basis as even if the Fourth Amendment was laws validated by Para 18 of Proclamation beyond the power of parliament to make, pass any order for the release of the violative of the basic features of the Order No.1 of 1977 and the enactment of only the following can be condoned by the property because of the provisions of MLR Constitution there was way of challenging Para 18 of the Fourth Schedule of the court (a) actions past and closed; (b) actions VII of 1977 and this Division in C.A. No. it in the Supreme Court as had been Constitution do not fall within any of the not derogatory to the rights of the citizens 15 of 1997 brought the matter into sharp successfully done in the case of Eighth above categories and that as held in the case and (c) routine works which even the lawful focus by holding that the validity of the Amendment. of Zafar Ali Shah V. General Parvaz government would have done. Fifth Amendment has not been challenged Mosharraf the Constitution assigned the in Writ Petition No.802 of 1994 and in this Mr. Azmalul Hossain, Q.C, the learned function of enactment of law to Parliament (n) the petitioners submitted that the High compelling situation the company had to counsel appearing for the respondent No.1 and /or its delegate and any law framed or Court Division having found that the file the present writ petition challenging the in both the petitions, submitted as follows:- proclaimed by any authority other than property in question is not an abandoned vires of the Fifth Amendment and in the Parliament and/or its delegate is violation property, it was 26 unnecessary to go on the facts and circumstances as involved in the (a) in a case of this nature, appeals to this of the Constitution as no authority except constitutional issue and to declare the Fifth present writ petitions it can not be said that Division may be brought with a certificate Parliament and/or its delegate can amend Amendment unconstitutional ignored and the writ petition could be disposed of under the provisions of sub Article (1)(a) of the Constitution as mandated by the the High Court Division the principle of without deciding the constitutional Article.103 or with leave of this Court Constitution under article 142 of the judicial restraint of not deciding any question under sub-article (3) of Article 103(3) of Constitution and at the minimum all those constitutional issue when an issue involved the Constitution and Article 103 does not amendment made by the Martial Law in the case can justifiably be disposed of on (o) The submission of the petitioners that state the criteria for granting leave and in authority infringing on the basic features of other grounds.But this principle of judicial without declaring the Fifth Amendment the case of Ekushey Television the constitution namely Supremacy of the restraint to avoid decision on constitutional invalid in its entirety the Fifth Amendment Constitution, Rule of Law Independence of issue is not an invariable rule and it has also could have been declared without lawful Ltd. and others –v- Dr. Chowdhury Judiciary and its power of Judicial Review been felt necessary that constitutional authority only in so far as the company was Mohamood Hasan and others. 54 D:R AD 79 80 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

130 at para 83 and in the case of Bangladesh released the company filed Writ Petition power of judicial review of the High Court 137, the laws made by the “people” take Bank and another –v- The Administrative No.67 of 1976 wherein the High Court Division in such cases being taken away by precedence and further where the Appellate Tribunal, and others, 44 DLR Division upon declaring that Moon Cinema the Fifth Amendment the writ petition was provisions of the Constitution and a law (AD) 239, at para 4 it has been held that the Hall is not abandoned property directed the not maintainable and being aggrieved, the passed by Parliament were in conflict with primary threshold or criteria for granting concerned proforma respondents for company filed C.A. No.15 of 1997 and the each other but were applicable to a leave is that there had been some release Moon Cinema Hall and they took company though made an attempt to particular situation and the Courts had to “illegality” in the decision of the High some steps for release but then Moon challenge the vires of the Fifth Amendment apply the law, the Courts will always Court Division or that there had been some Cinema Hall was handed over to the therein but failed as the 28 company had not choose the Constitution as the supreme law “miscarriage of justice” or that an “evil proforma respondent No.5 and accordingly challenged the vires of the Fifth and reject the law passed by the Parliament precedent” has been or will be created and the company filed contempt proceedings to Amendment in the Writ Petition No.802 of or some other body or authority. further in the case of Ibrahim –v- Emperor, enforce the judgment passed in the above 1994 and in the above circumstances to get AIR 1914 PC 155 it has held that the test for writ petition but then Martial Law came possession of Moon Cinema Hall the (d) the Preamble, as well as Articles 7, 8 granting leave to appeal must be that there whereupon the “period of delinquency” company had to file the present writ and 11 of the Constitution refer to the are reasonable grounds for sustaining the began and MLR VII of 1977 was petition challenging the vires of the Fifth “people” of Bangladesh and Anowar appeal and those grounds have reasonable promulgated specifically providing that Amendment and the High Court Division Hossain's case BLD (Spl. Issue) at para 52, prospects of success but in the present even if the Government had unlawfully after hearing made the rule absolute Article 7 as a whole has been held to be petitions the petitioners have not fulfilled taken over a property as abandoned the holding amongst others that in the present basic feature of the Constitution and this criteria in advancing any of such same shall remain as abandoned and any writ petition the issue as to whether the because of the words “we, the People of grounds and mere assertion in the petitions judgments obtained saying otherwise Fifth Amendment was ultra vires the Bangladesh” as referred in the Preamble, that there are important constitutional would be ineffective and this directly Constitution was raised and that there was the message that comes across loud and points which needs to be considered by this affected the rights of the company and clearly a conflict between the right to clear is that under our Constitutional Court is simply not good enough for afterwards by the Fifth Amendment this property as guaranteed under the scheme, the sovereignty lies with the granting leave. MLR was purportedly ratified and given Constitution and the infringement of this “people” of Bangladesh and Article 7(1) effect to and the result was that because of right by the Fifth Amendment. which provides that “All powers in (b) The background for filing the present the Fifth Amendment the contempt Republic belong to the people, and their writ petition challenging the vires of the proceedings failed and the company could (c) it was specifically argued before the exercise on behalf of the people shall be Fifth Amendment, dates back when the not get the fruits of the above judgment and High Court Division that there is a conflict effected only under, and by the authority of, struggle of the company to free the Moon that the “Period of Delinquency” was between the constitutional rights as this Constitution” makes this beyond Cinema Hall started soon after it was taken brought to an end in the year 1991 within provided in the Constitution made by the argument and Article 7(2) providing that: over and that at first its Managing Director the lifting Martial Law and thereafter the representatives, delegates or agents of the “This Constitution is, as the solemn approaching the authorities and having company filed the second writ petition “people” and the Fifth Amendment, an Act expression of the will of the people, the established that Moon Cinema Hall was not being Writ Petition No.802 of 1994 but the of Parliament purporting to take away the supreme law of the Republic .....”, also an abandoned property sought release of the same was summarily rejected by the High said constitutional rights and as held in the unequivocally supports this obvious same and when the property was not Court Division on the ground that the case of Marbury –v- Madison, (1803) 5 US proposition therefore, the impact of this 81 82 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

part of Article 7 is that all power in the State the basic features, can only be changed in to brush it aside and it is like a hostage- entrusted to “preserve, protect and defend” belongs to the “people” of Bangladesh and accordance with the provisions of the taking situation when the law enforcers in the Constitution miserably failed in their everyone else, every functionary in the state Constitution. their uniforms with their guns and cars with sacred obligations to “preserve, protect and whether constitutional or otherwise is red and blue flashing lights encircling the defend” the Constitution and in not less subject to the will of the “people” to whom (f) the will of the people does not hostage takers and remind them that there is than a dozen cases throughout this period all power is vested and this proposition will contemplate Martial Law or any other laws a superior law outside which they must face when “We, the people” sought to challenge also find support from the 19th Amendment not made in accordance with the at some point of time and the second aspects of Martial Law, this Court of the Constitution (Sri Lanka) [2003] 4 Constitution and the armed forces are impediment to Martial Law is the Courts of miserably failed to do its duty and it coined LRC 290 and Chisholm v Georgia 2 US 419 subject to the will of the people and their the Republic entrusted with the solemn words like “supra constitutional”, oaths, as provided in section 15(2) of the duty to “preserve, protect and defend the “Constitution is eclipsed” and phrases Army Act 1952, section 17(2) Air Force Act Constitution” and so every Martial Law, like” “ .... Constitution has lost its character (e) it therefore follows that “We, the people 1953 and section 14 Navy Ordinance 1961, immediately upon proclamation seeks to as the Supreme law of the country”, “ ..... of Bangladesh” being sovereign with all make it plain and they serve the “people” curb the powers of the Court, particularly, no constitutional provision can claim to be powers vesting in them, every one else and can never become the masters of the the powers of the Constitutional Court sacrosanct and immutable”, Constitution discharging the functions of the Republic is “people” and accordingly Martial Law is under Article 102. .... subordinate to the proclamation ....”, the representative or agent of the “people” unconstitutional and illegal and it is a Halima Khatuns case, and “ ..... the and therefore, the executive, the legislature mischievous device not founded in any law (g) India also went through a “period of supremacy of the Constitution cannot by and the judiciary are all representatives and known in Bangladesh and that by Martial delinquency” between 1975 and 1977 any means compete with the Proclamation agents of “We, the 29 people of Law the whole nation is hijacked by some during the regime of Indira Gandhi when issued by the Chief Martial Law as in Bangladesh” and are subject to their will people with the support of the armed forces she tried to stifle the rule of law and that Ehteshamuddins case and “the moment the and the President, the Prime Minister, and the whole nation goes into a state of Bangladesh entered its “Period of country is put under Martial Law, .... Cabinet, Chief Justice, Judges, Attorney siege; it is like that the whole nation and Delinquency” at its very early age in 1975 Constitutional provision .... loses its General, every one in the armed forces, the “We, the people of Bangladesh”, are taken and that delinquency continued for a long superior position” as in Haji Joynal Abedin administration, the law enforcement hostage and further like a hostage-taking 16 years and the characteristics or case, to justify Martial Law and these authorities are all subservient to the will of situation, the hostage takers themselves hallmarks of this “period of delinquency” declarations of the law, made during a long “We, the people of Bangladesh” and they recognize that there is a superior law than in our country are several: the first period of darkness, fall in the category of having taken their authority to act and are their weapons which “We, the people” put 30 noticeable one is the delinquent “black law” and those must be excised answerable to the people for every action in their hands to serve us and they recognize behaviour comes from all functionaries of from our jurisprudence now and forever so they take and the Constitution sets the limits that there are two impediments to their the Republic, constitutional or otherwise, that no one can ever again even think about of everyone's authority and the will of the taking power or assuming power, first, the more often than not starting with the armed overriding “the will of the people” of “people” being enshrined in the Constitution itself and so, they at first start forces obviously, closely followed by the Bangladesh and all must also ensure that Constitution, the basic features of the by saying “Notwithstanding anything the President or the Chief Justice and the other this history never repeats and all must Constitution cannot be changed and further Constitution” because they recognize that notable hallmark or characteristic of the recognize these faults of the past and must it is only the other provisions, which are not the Constitution is superior but they choose “Period of Delinquency” is that those rectify them now so that our conscience is 83 84 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

cleared. (i) the process of amendment of the further it is a reference to the “acts and tings or in part and purports to establish the Constitution could not affect the basis done” during that period by government primacy of the executive organ of the State (h) the footprints that the “Period of structure of the Constitution and the High functionaries, like building roads, and over its other two organs. Delinquency” leaves behind are Martial Court Division took the view that an payment against those etc and so it can not Law Proclamations, Regulations and amendment of the Constitution cannot be perceived that without the so called (b) even assuming that a “successful Orders in the form of black laws and further, legitimize any illegitimate activity and the ratification, the road will disappear or the revolution” would constitute justification the ultimate insult to “We, the people” is the High Court Division rightly used the payment made will come back to the for unconstitutional acts, there was no attempt to ratify these black laws by Constitution itself, namely, its basic Government coffers and moreover in any “successful 32 revolution” in Pakistan bringing those into the umbrella of the structure as enshrined in various articles event, these “acts and things done” comes where the doctrine was first and then Constitution itself and in the present case and also Articles 142 and 150, to hold the within closed and past transactions have repetitively, invoked to deny the people the High Court Division recognizing these Fifth Amendment ultra vires, illegal and been condoned by the High Court Division any expression of their sovereign will after footprints sought to erase those once for all non est. which will find support from the and so the fear of chaos and confession is the said so-called “successful revolution” and since all the parties before the High decisions reported in Republic of Fiji –v- nothing but a baseless fear which does not and the so called 'successful revolution' Court Division agreed that Martial Law is Prasad [2001] 2 LRC 743, UDM-vs- South withstand scrutiny and analysis. was in fact a failed revolution since it failed illegal and unconstitutional, this court Africa (No.1) [2003] 4 LRC 98, Re: 19th forever, including during the continuance should not, indeed cannot, grant leave in Amendment to the Constitution (Sri Lanka) Mr. Taufiq Newaj, Senior Advocate, the of the “revolutionary” Government, to this case because to do so would be [2003] 4 LRC 290, Taione-v- Kingdom of learned counsel appearing for the enable the holding of a free and fair perceived by “the people of Bangladesh” in Tonga [2005] 4 LRC 661, Njoya and others respondent No.2 in both the petitions, election which is a basic constituent of the way that our highest judiciary is still –vs- AG (Kenva) and others [2004] 4 LRC mainly emphasizing on the rejection of the democracy and the Government born out unable, long after the “Period of 559. doctrine of necessity, submitted as of the so called “successful revolution” Delinquency”, to properly and adequately follows:- sought devious, unwarranted and unknown deal with such delinquency and further, it (j) the submissions placed by the doctrines of “guided democracy” and would send the wrong signals to those who petitioners that without the Fifth (a) by the doctrine of necessity the “basic democracy” suited to the genius of wish to circumvent the “will of the people” Amendment there will be a legal vacuum perpetrator of an unconstitutional act is the people to deny adult franchise to the in the Constitution and that each of our a n d t h e a m e n d m e n t h a s g i v e n granted judicial protection not against the people and the perpetrator of “successful generations must also be taught, educated constitutional dispensation and has “will of the people” as signified through revolution” also failed to hand over power and informed about those dark days; the prevented chaos and confusion has no basis their representatives in the Parliament but to a democratic government duly elected as easiest way of doing this is to recognize our and that in Shariar Rashid's case, 18 also against the laws in force at the time of was the case following the general errors of the past and reflect these BLD(AD) 155, on which the petitioners the unconstitutional act and a so called elections held in 1970, and further the sentiments in the judgments of this Court relied, though one of the judges of this court “successful revolution” invades political perpetrator himself sought to continue to which will ensure preservation of the discussed the need to “ensure constitutional sovereignty, and also legal sovereignty as perform the functions of the Republic sovereignty of “We, the people of continuity of those acts and things done” contemplated in the Constitution of through attempts to legitimize his Bangladesh” forever as a true “pole star”. during Martial Law but the learned Judge Bangladesh and to denude those it renders unconstitutional assumption of power or 31 did not state the basis for such need and those meaningless and inoperative wholly intervention by embarking on further 85 86 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

unconstitutional acts; alternatively the “licence” invokeable at any time to shackle, the High Court Division, cannot file the him having not been referred to the voters p e r p e t r a t o r c o m m i t t e d f u r t h e r denude and mutilate people's will and to leave petitions challenging the said by way of Referendum, it cannot be said Constitutional wrongdoing by handing grant to a person or entity, historically the judgment specially when they, in the leave that general public accepted the said over the reigns of the State to yet another military, the reigns of the State petitions filed by them did not take any amendments of the Constitution made by perpetrator as its successor government and undermining the historical struggle and the stand that they were not aware that the him. further the reach of the doctrine was so War of Independence fought to assert the present writ petition, was pending before (c) in the Constituent Assembly the framers extended that even an expressed will of the right of self-determination of the people as the High Court Division and further they, of the Constitution having unanimously people, so expressed through a general embodied in the Constitution and providing not having taken any step to challenge the decided to incorporate the principle of election electing their representatives, was a basis to render meaningless the spirit, contentions as contained in the writ petition secularism in the Constitution as one of the disregarded with the effect that there was a sacrifices and achievements proclaimed and/or for impleading them as party to the basis character of the Constitution, the collapse of the existing State and moreover and recognised in the Preamble to the writ petition and did not file any leave submission of the petitioners that the it is inescapable that a strict application of Constitution and also altering the petition immediately after the judgment of secularism is not one of the basis character the doctrine of necessity would purport to relationship between the other two organs the High Court Division, the instant leave of the Constitution, can not be accepted. support the use of force by the perpetrator in of State, namely, the Judiciary and the petitions are not maintainable. disregard of fundamental rights, support the Parliament and also destroying the bedrock (d) as required under sub-article a(i) of use of collective punishment and the killing of a future by Rule of Law and the (b) the High Court Division having found Article 142 of the Constitution in the Bill of of a people, in legal parlance, known as dependence of a people and State on its Khandaker Mustaq Ahmed, Justice A.S.M. the Fifth Amendment nothing has been genocide upon the people. Constitution. 33 Mr. Mahbubey Alam, the Sayem and General Ziaur Rahman as mentioned regarding the articles of the learned Attorney General, appearing for the usurpers and aforesaid findings having not Constitution which were to be added, respondent Nos. 3-4 in both the petitions, been challenged in the instant leave altered, or substituted in place of the (c) the doctrine of necessity provided a submitted as follows:- petitions, the petitioners can not support existing Articles and thus the Fifth misconceived and misplaced juridical and purported amendments of the Constitution Amendment can not be treated as an unconstitutional justification for the benefit (a) though the Government filed the Civil made by userpers by issuing Martial Law Amendment of the Constitution. of the perpetrators of unconstitutional acts Petition Nos. 1100 of 2006 and 1320 of Proclamations, Regulations and Orders etc seizing the machinery of the State through 2007 against the impugned judgment but and further General Ziaur Rahman, after (e) there being no provisions in the its executive organ and also provided an subsequently, finding the same as correct being nominated as President by Justice Constitution for ratification of an earlier invalid basis for undermining the one, did not proceed with the leave A.S.M. Sayem, an incompetent and purported amendment made by Martial Declaration of Independence of the petitions and those leave petitions having unauthorized person, promulgated Law Proclamations, Regulations and sovereign people of the Republic of been dismissed as being not pressed, the Proclamation Order No.1 of 1977 on Orders etc the alleged ratification and Bangladesh which asserted the will of the petitioners cannot make them substituted in 23.4.1977 and then on 30.5.1977 arranged confirmation of the alleged amendments people through their representatives in the said leave petitions and further the for alleged Referendum for obtaining so- purported to have been done from 15th Parliament, the organ vested with political Government having accepted the said called confidence of the voters upon him August, 1975 to 6th April, 1979 by the Fifth sovereignty in a Republican State, and at judgment the petitioners, who were not only and not for the purported amendments Amendment is contrary to the provisions of the same time unleashed a purported parties at any stage of the proceeding before and the purported amendments made by Article 142 of the Constitution. 87 88 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

(f)the purported amendments of the (a) no cause being pending before this and void ab-initio. Mahbubey Alam. Constitution were made done by Martial Division, the leave petitions filed at the Law Proclamations, Regulations, Orders i n s t a n c e o f t h e t h i r d p a r t y (c) no amendment to any provision of the As it appears the petitioners were not etc and there being no-provision in the intervener/petitioners, who have no locus Constitution can be made beyond the parties in the writ petition and after passing Constitution to amend the Constitution in standi, can not be entertained specially authority of Article 142 of the Constitution, of the judgment of the High Court Division the said manner, the purported amendment when no issue of public importance is and accordingly the amendments made to on 29.8.2005 the Government and the of the Constitution has rightly been involved in the case and further no Court the Preamble and Articles 6, 8, 9, 10, 25, 38 Freedom Fighters Welfare Trust filed Civil declared illegal and invalid by the High certainly will justify the imposition of and 142 of the Constitution by Martial Law Petition Nos. 1100 of 2006 and 1320 of Court Division . Martial Law inasmuch as Martial Law does Proclamations, which is beyond the 2007. In those petitions, the petiioners filed not come within the definition of “Law” as authority of Article 142, are illegal and two petitions praying for appearing as (g)the Parliament passed the Fifth provided in Article 152 of the Constitution invalid. interveners on 4.3.09 and 24.3.07 Amendment during Martial Law and there and further the declaration of Martial Law respectively. In early 2009, when the being no provision in the Constitution for is also not mandated by the Constitution (d) the Constitution did not empower any government decided that they will not conducting business of the Parliament and accordingly, for the sake of the authority or power either to impose Martial press the leave petitions, the petitioners, during Martial Law, the Fifth Amendment supremacy of the Constitution and Law or the Military Rule in the country and prayed for time to file leave petitions and passed during Martial Law, can not be democratic polity, rule of law and good further the Parliament having no authority accordingly the matters were adjourned. treated a valid amendment of the governance, the judgment of the High or power to ratify and validate the illegal The petitioners thereupon filed the above Constitution. Court Division must not be interfered with Martial Law Proclamations, Regulations leave petitions on 25.5.2009 and thereafter and as such the leave petitions are liable to and Orders etc by amending any provision the prayers of the 36 Government and the (h)No Referendum having been done be dismissed in limine. of the Constitution, the insertion of Freedom Fighters Welfare Association before purported addition of sub-article 1A paragraph 3A and 18 to the Fourth were allowed on 03.01.10. In both the in Article 142 of the Constitution providing (b) as per the mandate of Article 7 of the Schedule of the Constitution by the Fifth petitions the petitioners stated that the High for Referendum in case of amendment of Constitution all powers in the Republic Amendment is illegal and ultra vires and Court Division by the impugned judgment the Preamble and Articles, 8, 48, 56 and belong to the “people” and exercise of those such the acts of illegal usurpation of power has stripped the citizens of Bangladesh Article 142 of the Constitution, the powers on 35 behalf of the “people” shall by military junta cannot be given a go-by their identity as “Bangladeshi” and also amendments in question can not be treated be effected only under and by the authority and / or validating those in the name of proceeded in the manner as if secularism is as valid and legal and the High Court of provisions of the Constitution which, as “temporary and transitional provisions” a basic structure of the Constitution Division has rightly treated the said the soleman expression of the will of the under Article 150 of the Constitution. although the same is only a fundamental provisions as illegal. people is the supreme law of the Republic principle of State Policy and further the and in terms of Articles 7(2) if any other law Mr Murad Reza, the learned Additional High Court Division reintroduced Articles Mr. M.K. Rahman, the learned Additional is inconsistent with provisions of the Attorney General, appearing for the 8 and 12 of the original Constitution which Attorney General, appearing for the Constitution that other law shall be void to respondent No.6 in the both the petitions, did not contain the provisions of absolute respondent No.5 in both the petitions the extent of the inconsistency and adopted the arguments of Mr Azmalul faith and trust in Allah and the High Court submits as follows :- therefore the Fifth Amendment is illegal Hossain QC, Mr Mamudul Islam and Mr Division, without any basis, also declared 89 90 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

inclusion of the Article 25(2) as unlawful. Court Division to exercise its discretion in case of Ibrahim –V-Emperor, AIR 1914 PC judgment of the High Court Division is As it appears the respondents opposed the granting certificate by formulating points 155 it was held that the test for granting beyond the terms of the Rule in as much as above applications raising the point of of law involving Constitutional issues, leave to appeal must be that there are the Rule very much depicts that the vires of delay 1364 days contending that it is only cannot now complain and as has been held reasonable grounds for sustaining the the Fifth Amendment has been challenged on 4.3.2009 and 26.3.2007, i.e. long after in the case of Kazi Mokhlesur Rahman V appeal and 38 those grounds have in the writ petition which will be evident passing of the judgment of the High Court Bangladesh 26 DLR (AD) 44 the High reasonable prospects of success. In the from the terms of the Rule issued by the Division on 29.8.2005, the petitioners filed Court Division should not grant certificate Case of Ekushey Television Ltd. and others High Court Division as quoted earlier.As it the above applications praying for allowing without formulating the question of law on V. Chowdhury Mohammod Hasan and appears the Rule as issued, contained three them to seek leave and since the which certificate is to be granted and others, 54 DLR (AD) 130, in para 83, it was parts i.e. applications were out of time, they filed accordingly it has been the regular practice held that the primary threshold or criteria applications praying for condonation of to pray for such certificate from the High for granting leave is that there had been (a) Notification dated 31.12.71 in taking delay but in the said applications the space Court Division by formulating the points of some “illegality” in the decision of the High over Moon Cinema Hall and Notification kept for showing the number of the days law on the basis of which certificate is Court Division or that there had been some dated 15.12.72 placing Moon Cinema Hall sought to be condoned, was not filed in and prayed for and / or formulating those points “miscarriage of justice” or that an “evil with the writ respondent No.3 and the said space remained completely blank which involved constitutional issues so that precedent” has been or will be created. In subsequent actions deeds and instruments, and accordingly the explanations as given on the basis of those the High Court the case of Bangladesh Bank and another V. the taking 39 thereto should not be declared in the application for condonation of delay Division may grant certificate. the Administrative Appellate Tribunal and to have been made without legal authority. are also not at all satisfactory. We noticed others, 44 DLR (AD) 239, in para 4, similar from the judgment of the High Court There is also no substance to the view was taken holding that this Division (b) further to show cause as to why Division that various constitutional points submission of the petitioners that the has power to interfere in suitable cases purported ratification and confirmation of were raised from the Bar on the point of the interpretation of Constitution being where miscarriage of justice, which has MLR VII of 1977, Proclamation Order power of the Martial Law authority to involved leave should be granted inasmuch occurred, is very wide. However, from the No.1 of 1977 with regard to the insertion of change the basic features of the as the points as raised in the leave petitions discussions made hereinbelow, it will be Para 3A to the Fourth Schedule of the Constitution and the High Court Division have already been authoritatively decided evident that the points raised in the leave Constitution by Para 18 of the Fourth addressed those point. Accordingly we by the superior Courts which have been petitions have already been authoritatively Schedule of added by Fifth Amendment have decided to her these matters on merit referred to in the judgment of the High decided by the superior Courts and the High Act 1 of 1979 should not be declared to despite the delay. 37 The submission of the Court Division. Further there are decisions Court Division referring to the relevant have been made without legal authority petitioners to the effect that substantial in support the submissions made on behalf portions of the judgments of the superior and question of law and also interpretation of of the respondents that for granting leave courts, declared the Fifth Amendment is the Constitution being involved the High the primary threshold or criteria is that illegal and void and ultravires the (c) as to why the respondent should not be Court Division ought to have granted some “miscarriage of justice” has resulted Constitution. directed to hand over Moon Cinema Hall to certificate under Article 103(2) suo moto, or that an “evil precedent” has been or will the writ petition. has no substance inasmuch as the be created or that there are reasonable There is also no substance in the petitioners, having not required the High grounds for sustaining the appeal. In the submission of the petitioners that the Thus it is apparent that the vires of the Fifth 91 92 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Amendment was very much under Muhammad Choudhury, by judgment and issue involved in the case can be justifiably para-1: challenge in the writ petition as duly order dated 31 July, 2009 passed in the case be disposed of on other grounds, it was not reflected in the Rule. of Sindh High Court Bar Association V at all necessary for the High Court Division “ 1 … … … … A s r e g a r d s t h e It may be noted here that earlier we did not Federation of Pakistan and others to enter into on the constitutional issues and constitutionality ………I like to adhere to accept the submissions of the petitioners to (Constitutional Petition Nos. 8 and 9 of to declare the Fifth Amendment the well-established self-established self- the effect that leave should be granted in the 2009) following Asma Jilani's case, unconstitutional. As it appears, the High set rule which says, the Court will not present petitions as substantial question of disapproving the above case of Nusrat Ali Court Division was very much aware of the declare a law unconstitutional, if the case in law as well as interpretation of Constitution Bhutto and also the case of Jafar Ali Shah V above principle as is evident from its which the question is raised can be properly are involved on holding that the points as General Parvez Musharraf PLD 2000 (SC) following observations in the judgment:- d i s p o s e d o f i n s o m e o t h e r raised by the petitioners have already been 869 which followed Nusrat Ali Bhutto's “In disposing of this Rule, we kept in our way………………” authoritatively decided by the superior c a s e d e c l a r e d t h e P r o v i s i o n a l mind what A.T.M. Afzal, J. (as his Lordship Courts and that the High Court Division Constitutional Order 2007, in short PCO then was) aptly observed in Anwar Hossain However, the High Court Division having referring to those judgements of the 2007, illegal and unconstitutional and Chowdhury's case 1989 BLD (Spl.)1 at found that after Moon Cinema Hall was superior Courts declared the Fifth approved Asma Jilani's case. By the above para 491, page 181. taken over, at first the Managing Director Amendment illegal, the relevant portions of PCO No 1 of 2007, not only new legal order of the company, the writ petitioner No. 2, the judgement of the High Court Division was introduced but the Constitution of “In answering the ultimate question on approaching the relevant authorities containing the views of the superior Courts Pakistan was also amended by General involved in these cases i.e. scope of the established 42 that Moon Cinema Hall was relying on which the Rule was discharged, Parvez Musharraf, the then President of Parliament's power of amendment of the not an abandoned property and then sought will be reproduced hereinafter. Pakistan. The ratio decidendi of the above Constitution, the Court's only function is to release of the same and when Moon judgement will have a serious impact upon examine dispassionately the terms of the Cinema Hall was not released even though It may also be noted here that in the case of all the previous judgements including those Constitution and the law without involving it was not found to be an abandoned Asma Jilani V Government of Punjab, PLD passed in the cases of Nusrat Ali Bhutto, itself in any way with all that I have property, the company filed Writ Petition 1972 SC 139 the Pakistan Supreme Court Jafar Ali Shah and also others in which indicated above. Neither politics, nor No.67 of 1976 wherein the High Court reversed the 40 decision passed in the case Martial Law and constitutional policy of the government nor personalities Division, after hearing, made the Rule of State V. Dosso P.L.D. 1958 (S.C.) 533 but amendments by extra constitutional have any relevance for examining the absolute declaring that Moon Cinema Hall in case of Nusrat Ali Bhutto V. Chief of instruments were justified and validated power of the Parliament under the was not an abandoned property and Army Staff PLD 1977 (SC) 657, Asma invoking doctrine of necessity. Constitution which has to be done purely directed the government to release Moon Jilani's case was not followed. However, in upon an interpretation of the provisions of Cinema Hall in favour of the company and support of the case of the petitioners the Next submission of the petitioners is that the Constitution with the help of legal the Government also took some steps for above case of Nusrat Ali Bhutto was the High Court Division having found that tools.” release of the same but even then Moon referred. As it appears, recently, the the property in question is not an Cinema Hall, instead of being released, Pakistan Supreme Court, sitting in a abandoned property, in terms of the We are also conscious of what Kemaluddin was handed over to the proforma Constitutional Bench consisting of fourteen principle of judicial restraint of not Hossain, C.J. observed in Dr. Nurul Islam respondent No.5 and the company then judges and headed by Chief Justice Iftikhar deciding any constitutional issue when an V. Bangladesh 33 DLR (AD) (1981) 201 at filed contempt proceedings to enforce the 93 94 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

above judgement of the High Court entertain the same on the reasonings that Cinema Hall but even then it was not erstwhile Pakistan on August 14, 1947, the Division and after then Martial Law was the vires of the Act No.1 of 1971 is not handed over to the company in view of the constitutional developments in erstwhile declared and under the umbrella of the under challenge in this appeal. In the above embargo provided in Martial Law Pakistan, the Proclamation dated April 10, Proclamatons, Martial Law Regulation No. situation the company, to protect its Regulation No. VII of 1977 and this 1971, the emergence of Bangladesh in the VII of 1977, was promulgated on October property had no other alternative but to file Division, earlier in Civil Appeal No. 15 of map of the globe, the aims and objectives of 17, 1977 specifically providing that even if the present writ petition challenging the 1997, brought the matter into sharp focus the Constitution, the supremacy of the the Government had unlawfully taken over vires of the Fifth Amendment and that the by dismissing the appeal on the 44 ground Constitution, independence of judiciary a property as abandoned, the same shall issue as to whether the Fifth Amendment that the validity of the Fifth Amendment and its power of judicial review, the remain as abandoned property and any was ultra vires the Constitution was duly has not been challenged in Writ Petition implication of the decisions passed by this judgment obtained declaring otherwise raised in the above writ petition and that No.802 of 1994 and in this compelling Division in the case of Halima Khatoon, would be ineffective and this Martial Law there was clearly a conflict between the situation the company, had no other Jainal Abedin, Ehteshamuddin and Regulation No. VII of 1977 directly right to property as guaranteed under the alternative but to file the present writ Nasiruddin in view of the provision of affected the rights of the company and Constitution and the infringement of this petition challenging the vires of the Fifth Article 111 of the Constitution, estoppel, afterwards, by the Fifth Amendment dated right by the Fifth Amendment. Amendment and in the facts and waiver and acqueisance, resjudicata, April 6, 1979, this Martial Law Regulation circumstances as involved in the present implication of the provisions of Article 150 No. VII of 1977 was purportedly ratified Further, this principle of judicial restraint is case, it can not be said that the present writ of the Constitution etc will be relevant and and given effect to and because of the Fifth not an invariable rule and the Courts, taking petition could be disposed of without as it appears the High Court Division also Amendment, the contempt proceedings the view that constitutional issues should deciding the constitutional question i.e. discussed the above in its judgment. 45 The failed and the company could not get the be resolved as early as possible, decided the whether the Fifth Amendment is ultra vires history, as we find from the judgment of the fruits of the above judgment and that after constitutional issues. As will be evident or not. High Court Division, shows that the glory the period of Martial Law was brought to an that in Dr. Nurul Islam's case (supra) of independent Bengal faded away and end on April 9, 1979, the company filed though Kamaluddin Hossain, CJ and Before we go to the question as to whether sank in Palassy due to the treachery and Writ Petition No.802 of 1994 but the same Shahabuddin, J (as his Lordship then was) all Proclamations, Martial Law betrayal of Mir Jafar Ali Khan Bengali was summarily rejected by the High Court having found the compulsory retirement of Regulations and Orders promulgated/ rebels then successfully fought many a Division on the ground that the power of Dr. Nurul Islam to be vitiated because of made during the period from August 15, battles against British forces. The year of judicial review of the High Court Division malafide, refrained from deciding the 1975 upto April 9, 1979 being 1857 saw the War of Independence of in such cases was taken away by the Fifth constitutional issue but the majority judges promulgated/ made by usurpers are illegal, Sepoys which originated from Bengal. Amendment and the company in the above addressed to the constitional question of void and non-est and further the Second However, Queen Victoria by a writ petition did 43 not challenge the vires violation of the equality clause and decided Parliaments itself, even by two-third Proclamation on November 1, 1858 made of the Fifth Amendment and then being it. Further in the present case, as stated majority, had no power to enact any law India a part of the British Empire and by the aggrieved, the company filed C.A. No.15 of earlier, the High Court Division in Writ which is repugnant to the basic feature of Government of India Act 1935, created 11 1997 before this Division and made an Petition No. 67 of 1976 having found that the Constitution and accordingly the Fifth Provinces and Princely States. It provided attempt therein to challenge the vires of the the property in question was not an Amendment is ultravires the Constitution, governance of those Provinces by the Fifth Amendment but this Division did not abandoned property released Moon the history leading to the emergence of elected representatives of the people. In 95 96 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

1937, A K Fazlul Haque, became the first ...... If you change your past and work , which of course, can only be done by the never a politician and was a bureaucrat and Prime Minister of the province of Bengal. together in a spirit that everyone of you, no Constituent Assembly; our present was elected as member of Constitutional On March 23, 1940 he moved the famous matter to what community he belongs, no provisional Constitution based on the Assembly from the quota of East Bengal in Lahore Resolution for the establishment of matter what relations he had with you in the fundamental principles of democracy, not June 1948 and retained membership until separate states for the Indian muslims. In past, no matter what is his colour, caste or bureaucracy or autocracy or dictatorship, July 1953. Regarding the past history of 1943 Khawaza Nazimuddin became next creed, is first second and last a citizen of must be worked ……” constitutional misadventures by the civil Prime Minister of Bengal. In 1946, on this State with equal rights, privileges and and military bureaucrats in Pakistan who Pakistan issue, under the leadership of obligations, there will be no end to the As it appear the above speech also echoed never permitted constitutional government Hussain Shahid Suharwardy the Muslim progress you will make. that autocracy and dictatorship, thus to settle down, the High Court Division League secured 116 seats out of 119 and military rule direct or indirect, is to be quoted the view expressed by Yaqub Ali , achieved landslide victory in Bengal ...... You are free; you are free to go to your shunned. J., in Asma Jilani's case at page –212 amongst all the provinces in India. In that temples, you are free to go to your mosques regarding constitutional mishaps which are view of above it can be said that it was the or to any other places or worship in this However, as we have experienced the as follows:- Bengali Muslims who spearheaded and State of Pakistan. You may belong to any dreams of the people of the then East voted Pakistan into existence for the entire religion or caste or creed- that has nothing Pakistan were soon shattered in no time and “Pakistan was faced with innumerable Muslim population of the Indian to do with the business of the State. the history of Pakistan was ridden with difficulties from the very start. Firstly, Subcontinent. p a l a c e c l i q u e , d e c e p t i o n a n d ………………………………….On the ...... Now, I think we should keep that in disappointment. The people of the then 11th September 1951, Khan Liaqat Ali The Dominion of Pakistan formally came front of us as our ideal and you will find that East Pakistan discovered that they were Khan, the first Prime Minister as into existence on August 14, 1947 and M.A. in course of time Hindus would cease to be reduced to second class citizens, creation of assassinated. Jinnah, was elected the first President of the Hindus and Muslims would cease to be Pakistan brought them only a change of Constituent Assembly of Pakistan. In his Muslims, not in the religious sense, rulers and for all practical puposes the then w A tussle for grabbing power among inaugural address on September 11, 1947 because that is the personal faith of each East Pakistan became a colony of the then persons who held positions of advantage in he outlined basic ideals on which the State individual , but in the political sense as West Pakistan. The process started with the the Government thereupon ensued and of Pakistan was going to flourish which are citizens of the State.” delay in framing the Constitution for under its weight the foundation of the State as follows : Pakistan lthough in India the Constitution started quivering. Eventually Mr. Ghulam As it appears the above speech echoed was framed and adopted by the Constituent Muhammad, an ex-civil servant, who was ...... The first observation that I would like Secular State. Assembly on November 26 1949. holding the portfolio of Finance became to make is this: You will no doubt agree with Ultimately when the draft Constitution for the Governor-General and Khawaja me that the first duty of a Government 46 is Further while addressing a gathering of the Pakistan was ready for approval by the Nazimuddin as Leader of the majority to maintain law and order, so that the life, Civil officers of Baluchistan on 14 Constituent Assembly in December 1954, party in the Constituent Assembly assumed property and religious beliefs of its subjects February 1948 M A Jinnah said : the Constituent Assembly itself was the Office of the Prime Minister. are fully protected by the state. dissolved by Golam Mohammad, the then In April 1953, Mr. Ghulam Muhammad “….. until we finally frame our constitution Governor General of Pakistan, who was dismissed Khawaja Nazimuddin and his 97 98 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Cabinet although he commanded clear President of the Constituent Assembly, in from interfering directly or indirectly with erroneous though we do not propose to majority in the Constituent Assembly and the Chief Court of Sind by a Writ Petition the functions of the Constituent Assembly. examine in detail the reason given in the made another civil servant Mr. Muhammad filed under section 223-A of the judgment. …………………………… Ali Bogra, Pakistan's Ambassador to the Government of India Act, 1935, which was The Governor-General and his Ministers United States of America, as the Prime added by the Government of India thereupon filed an appeal in the Federal The question of the validity of section 2 of Minister. Among others General (Amendment) Act, 1954, passed by the Court being Constitutional Appeal 1 of the Emergency Powers Ordinance, 1955, Muhammad Ayub Khan,Commander-in- Constituent Assembly, on 16th July 1954. It 1955 reiterating the objection that the came up before the Court in the case of Chief of Pakistan Army, joined his Cabinet empowered the High Courts to issue Writs Government of India (Amendment) Act, one Usif Patel (1) within a few days of the as Defence Minister. This was the first of mandamus, certiorari, quo warranto and 1954, did not become a law as it had not decision in Maulvi Tamizuddin Khan's constitutional mishap of Pakistan as habeas corpus. The order passed by Mr. received the assent of the Governor- case. On the short ground that under Governor- General Mr. Ghulam Ghulam Muhammad was challenged as General. section 42 of the Government of India Act, Muhammad was only a constitutional head. unauthorised by the Indian Independence 1935, the Governor- General had no He had to act on the advice given to him by Act or the Government of India Act, void By a majority judgment delivered by power to make by Ordinance any the Prime Minister and under the and of no legal effect. Muhammad Munir, C. J.-the appeal was provision as to the Constitution of the Constitutional Instruments (Indian allowed and the writ petition was dismissed country. The Emergency Powers Independence Act, 48 1947, and the In defence of the Writ Petition, the on the finding that since section 223A of the Ordinance IX of 1955 was held to be Government of India Act, 1935) he had no Governor-General and the Members of the Government of India 49 Act under which invalid whereupon the Governor-General legal authority to dismiss the Prime newly-constituted Cabinet, cited as the Chief Court of Sind issued the Writ had made a Special Reference to the Federal Minister and assume to himself the role of a respondents, inter alia pleaded that the not received such assent, it was not yet law Court which was answered on the 16th sovereign. ………………………. Chief Court of Sind had no jurisdiction to and, therefore, that Court had no May 1955. Dealing with the validity of By 1954, the draft of the Constitution based Issue a Writ under the Government of India jurisdiction to issue the Writs. this action the Court expressed the on the Objectives Resolution had been (Amendment) Act, 1954, as it had not Cornelius, J. (as he then was) differed with opinion that the Constituent Assembly prepared with the assent of the leaders of the received the assent of the Governor this view and recorded a dissenting and not the Constituent Convention as various parties in the Constituent Assembly General. judgment holding that neither the British was proposed to be set up by the when on the 24th October 1954, Mr. soverign nor the Governor-General as such Governor-General would be competent to Ghulam Muhammad knowing full well that A Full Bench of the Chief Court overruled was a part of the Constituent Assembly. The exercise all powers conferred by the the draft Constitution was ready, by a the objection raised by the respondents and assent of the Governor-General was, Indian Independence Act, 1947, and Proclamation, dissolved the Constituent held that the order dissolving the therefore, not necessary to give validity to secondly that in the situation presented in Assembly, and placed armed guards outside Constituent Assembly was illegal and the laws passed by the Constituent the Reference, the Governor-General had the Assembly Hall. This was the second issued a Writ restraining the Governor- Assembly. With great respect to the learned during the interim period the power under great mishap of Pakistan. General, his newly appointed Cabinet Chief Justice the interpretation placed by the common law, special or state necessity Ministers; their agents and servants from him on sections 6 and 8 of the Indian of retrospectively validating the laws The order of the Governor-General was implementing or otherwise giving effect to Independence Act, 1947, as a result of listed in the Schedule to the Ordinance, challenged by Maulvi Tamizuddin Khan, the Proclamation of 24th October 1954, and which the appeal was allowed, is ex facie 1955, and all those laws now decided 99 100 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

upon by the Constituent Assembly or Chief of the Pakistan Army, was appointed Maulvi Tamizuddin Khan; Governor- between 7th and 8th October 1958, to during the aforesaid period shall be valid as the Chief Administrator of Martial Law. General Reference 1 of 1955 and The State overthrow the national legal order and enforced in the same way on which day This was the third great mishap which hit v. Dosso had profound effect on the unmindful of the fact that by abrogating the they purported to have come into force. P a k i s t a n l i k e a b o l t f r o m t h e constitutional developments in Pakistan. 1956-Constitution they were not only blue.…………………………...... As a commentator has remarked, a committing acts of treason, but were also Cornelius, J.-as he then was, differed with perfectly good country was made into a destroying for ever the agreement reached the opinion of the Court that the Governor- On the 13th October 1958, Criminal laughing stock. A country which came into after 'laborious efforts between the citizens General could on the basis of the State Appeals State v. Dosso and three other being with a written Constitution providing of East Pakistan and citizens of West necessity validate the laws which were connected matters came up for hearing for a parliamentary form of Government Pakistan to live together as one Nation. The declared invalid by the Federal Court and b e f o r e t h e with distribution of State power between cessation of East Pakistan thirteen years opined that there was no provision in the Court………...... the Executive, Legislature, and the later is, in my view, directly attributable to Constitution and no rule of law applicable Judiciary was soon converted into an this tragic incident………...... to the situation, by which the Governor- Delivering the majority judgment of the autocracy and eventually degenerated into General can, in the light of the Court's Court Munir, C. J. held that as Art 5 of the military dictatorship. From now onwards In early 1965 Muhammad Ayub Khan was decision in the case of Usif Patel by late Constitution itself had now people who were the recepients of re-elected as President. The general Proclamation or otherwise, validate laws disappeared from the new Legal Order, the delegated sovereignty from the Almighty, impression in the country was that the enumerated in the Schedule to the Frontier Crimes Regulation (III of 1901) ceased to have any share in the exercise of election was rigged. Towards the end of Emergency Powers Ordinance, 1955, was by reason of Article IV of the Laws the State powers. An all omnipotent 1968, an agitation started against his whether temporarily or permanently. 50 In (Continuance in Force) Order, l958, still in sovereign now ruled over the people in despotic rule and the undemocratic accordance with the opinion given by the force and all proceedings in cases in which similar manner as the alien commander of Constitution which he had imposed on the Federal Court, a new Constituent Assembly the validity of that Regulation had been the army who has conquered a country and country. The agitation gathered momentum was elected and it eventually succeeded in called in question having abated the his “will” alone regulates the conduct and every day and was accompanied by wide framing a Constitution which came into convictions of the respondents recorded by behaviour of the subjugated populace. spread disturbances throughout the force on the 23rd March 1956. the Council-of-Elders was good Martial Law remained in force till the 7th of country. In February 1969, Muhammad …………………………………….…… .……………… ...... June 1962, when in pursuance to a Mandate Ayub Khan called a round table conference A National Assembly was yet to be elected he had obtained by some kind of 51 of political leaders for resolving the under the 1956- Constitution when Mr. The judgment in State v. Dosso set the seal referendum Muhammad Ayub Khan gave a political issues which had led to the Iskander Mirza who had become the first of legitimacy on the Government of Constitution to the country. Under it he disturbance. A solution was near insight, President by a Proclamation issued on the Iskander Mirza though he himself was himself became the first President; revoked when all of a sudden Muhammad Ayub 7th October 1958, abrogated the deposed from office by Muhammad Ayub the Proclamation of 7th October 1958 and Khan decided to relinquish the office of the Constitution; dissolved the National and Khan, a day after the judgment was lifted Martial Law. ……..(page-220) President and asked the Defence Forces to Provincial Assemblies and imposed Martial delivered on the 23rd October 1958, and he …………...... Law throughout the country: General assumed to himself the office of the ……… Mr. Iskander Mirza, and Mr. Ayub Muhammad Ayub Khan Commander-in- President. The judgments in the cases Khan had joined hands on the night The Mandate given by the outgoing 101 102 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

President to the Commander-in-Chief was Pakistan. However, the first general It also appears that the last sentence of the frame a Constitution” although General thus to fulfill his constitutional election in earstwhile Pakistan was held in above quotion i.e. “it led to an armed Yahya Khan summoned the elected responsibilities; to restore law and order; 1970 while by that time as many as four insurrection by Awami League and their representatives earlier “to meet on the 3rd and to carry out his legal duty in this behalf. general elections were already held in India supporter” also does not depict the correct March, 1971 for the purpose of framing a Muhammad Yahya Khan, Commander-in- although both the countries achieved picture. In fact, on 25 March, 1971 the Constitution”; Chief, who had taken an oath, that he will be independence at the same time. Pakistan army 53 unleashed a reign of faithful to the Constitution of 1962 and to terror. The genocide committed by them is (b) The elected representatives duly Pakistan, however, in disregard of his The High Court Division then quoted the one of the worst known in the history. As a consitute them self into a Constituent constitutional and legal duty by a following statement of Yaqub Ali, J. in result, struggle for political autonomy and Assembly because of the “mandate given Proclamation issued on the 26th March Asma Jilani's case at page.223: economic parity, so long pursued, to us by the people of Bangladesh whose 1969, abrogated the Constitution ; transformed into war of liberation which will is supreme” dissolved the National and Provincial “On the 30th March 1970, Yahya Khan started at the dead of night following 25 assemblies and imposed Martial Law promulgated the Legal Framework Order March, 1971 and indepedence of (c) It declared Bangladesh to be sovereign throughout the country. This was the fourth and under its provisions, elections were Bangladesh was proclaimed. It was people's Republic in order to ensure great constitutional mishap which befell held in December 1970, to the National and followed by a formal Proclamation of “equality, human dignity and social justice. Pakistan in less than 16 years. Provincial Assemblies under the Independence issued on 10th April, 1971 at supervision of a Judge of this Court acting Mujibnagar. The war of liberation (d) Bangabandhu Sheikh Mujibur Rahman However as it appears, only a part of the as the Chief Election Commissioner. After continued for about nine months and ended was declared to be President and Syed history was reflected in the above portion of a good deal of political manoeuvring, the on 16 December, 1971 and a nation was Nazrul Islam Vice-President “ till such time the judgment and the unfathomed misery, National Assembly was summoned by ultimately born with blood and tears, and as a Constitution is framed”; neglect and discrimination suffered by the Muhammad Yahya Khan for the 3rd March Bangladesh emerged in the map of the people of the then East Pakistan in all 1971. However, shortly before that he globe. (e) President or in his absence the Vice- spheres 52 of life were not reflected therein. postponed the session indefinitely, Awami President “shall have the power to appoint As it appears in 1966 one of the major League, the dominant political party of In respect of the above Proclamation of a Prime Minister and such other Ministers parties launched a six point constitutional East Pakistan and who held a clear majority Indepenedence dated 10th April, 1971 B. H. as he considers necessary”. It was the program for economic salvation and in the National Assembly reacted to this Chowdhury, J (as his Lordship then was) presidential system that was envisaged; autonomy for the then East Pakistan but decision very sharply. To meet the situation page 1 in Anwar Hossain's case (supra) held was not at all heeded to either by Field Military action was taken on the 25th as follows:- f) President or in his absence the Vice- Marshal Ayub Khan or thereafter by March 1971, which lasted for several “This declaration envisages the following: President “shall have the power to summon General Yahya Khan. It may be noted here months. These strong measures had, and adjourn the Constituent Assembly.” 54 that the economists of the then east Pakistan however, no effect on the events which (a) Because of the unjust war and genocide It will be apparent that from the very also protested against the Five Year were shaping fast in the Eastern Wing. It led by the Pakistani authorities it became beginning the framers of the Constitution Development Plan as the same neglected to an armed insurrection by Awami League “impossible for the elected representatives dreamt of a democratic form of the interest of the people of the then East and their supporters.” of the people of Bangladesh to meet and Government, not a Martial Law 103 104 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Government or a dictatorship or an spoke of representative democracy, rule of structured accordingly to achieve those article 7). It is the supreme law because it autocratic form of Government”. law, and the supremacy of the Constitution aims and objectives. exists, it exists because the Will of the as the embodiment of the will of the people people is reflected in it.” In the above case B. H Choudhury, J at para of Bangladesh. Further Article 7 of the Constitution 47 page 58 also held as follows: provides as follows: It also appears that in the case of Md. Shoib The second, third and fourth paragraph of V. Government of Bangladesh 27 “It will be noticed that the proclamation the Preamble provides the aims and “7. (1) All powers in the Republic belong to DLR(1975) 315 on the concept as provided took notice of the “mandate” for framing a objectives which are as follows:- 55 the people, and their exercise on behalf of in Article 7 was noticed by D.C. Constitution for the Republic so as to “Pledging that the high ideals of the people shall be effected only under, and Bhattacharya, J who at para-20, page-325 ensure “equality, human dignity and social nationalism, socialism, democracy and by the authority of this Constitution. held as follows: justice” and a democratic form of secularism, which inspired our heroic (2 ) This Constitution is, as the solemn Government”. people to dedicate themselves to, and our expression of the will of the people, the “In a country run under a written brave martyrs to sacrifice their lives in, the supreme law of the Republic, and if any Constitution, the Constitution is the source Further, having regard to the past history of national liberation struggle, shall be the other law is inconsistent with this of all powers of the executive organs, of the constitutional misadventures by the civil fundamental principles of the Constitution; Constitution that other law shall, to the State as well as of the other organs, the and military bureaucrats in Pakistan who Further pledging that it shall be a extent of the inconsistency, be void”. Constitution having manifested the n e v e r p e r m i t t e d c o n s t i t u t i o n a l fundamental aim of the State to realise sovereign will of the people. As it has been governments to settle down examples of through the democratic process a socialist As it appears as early as in 1973, in the case made clear in article 7 of the Constitution which have been narrated earlier while society, free from exploitation -- a society of A.T. Mridha V. State 25 DLR (1973) 335, of the People's Republic of Bangladesh that narrating the history leading to the in which the rule of law, fundamental B. H. Chowdhury, J on the concept the Constitution being the solemn emergence independent Bangladesh, the human rights and freedom, equality and provided in Artilce 7 held at para-10 page- expression of the will of the people, is the framers of the Constitution felt it necessary justice, political, economic and social, will 344: Supreme law of the Republic and all to make some declarations in the Preamble, be secured for all citizens; powers of the Republic and their exercise Article 7 and also in some other Articles “In order to build up an egalitarian society shall be effected only under, and by the which brilliantly comprehends the entire Affirming that it is our sacred duty to for which tremendous sacrifice was made authority of, the Constitution. This is a jurisprudence of the constitutional law and safeguard, protect and defend this by the youth of this country in the national basic concept on which the modern states constitutionalism in Bangladesh including Constitution and to maintain its supremacy liberation movement, the Constitution have been built up”. the Supremacy of the Constitution. as the embodiment of the will of the people emphasises for building up society free of Bangladesh so that we may prosper in from exploitation of man by man so that In Anwar Hossain's case B.H. Chowdhury Accordingly unlike Preamble of many freedom and may make our full people may find the meaning of life. After J. analysed Article 7 in this manner at para- other countries, the Preamble of our contribution towards international peace all, the aim of the Constitution is the aim of 52, page-60: original Constitution has laid down bare in and co-operation in keeping with the human happiness. The Constitution is the clear terms the aims and objectives of the progressive aspirations of mankind” supreme law and all laws 56 are to be tested 52. “On analysis the Article reveals the Constitution and in no uncertain terms it All the provisions that followed have been in the touch stone of the Constitution (vide following: 105 106 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

(a) All powers in the Republic belong to the It also appears that Mustafa Kamal, J. (as Constitution and provides for undoubted permanently as the guiding principles and people. This is the concept of sovereignty of his Lordship then was) in Kudrat-E-Elahi Supremacy of the Constitution. It is also as the ever lasting light house for our the people. This echoes the words of the Panir V. Bangladesh 44 DLR (AD) (1992) settled that Article 7 is a basic feature of the Republic. proclamation “by the mandate given to us 319, in acknowledging its importance, at Constitution. by the people of Bangladesh whose will is para-72, held that Article 7 says that all However, as it appears, the apprehension of supreme”. powers in the Republic belong to the It also appears the second paragraph of the the framers of the Constitution proved to be people. Preamble of the original Constitution also right. In 1975, Martial Law was imposed in (b) This exercise on behalf of the people The High Court Division, referring to the spells out the high ideals of nationalism, the country making the Constitution shall be effected only under, and by the Article 7 of the Constitution, held as socialism, 58 democracy and secularism subvervient to Martial Law Proclamation authority of this Constitution. Limited follows : which was also reflected in Article 8 of the Regulations and Orders and various government with three organ performing Constitution. The High Court Division provisions of the Constitution was wrecked designated functions is envisaged. In the “Article 7(1) emphatically proclaims that found that our liberation war was fought on by the usurpers. We will deal with this Proclamation it was said the President all powers of the Republic belong to the those high ideals and those high ideals matter letter on. Now regarding the “shall exercise all the Executive and people and their exercise on their behalf inspired our heroic people to dedicate supremacy of the Constitution, it is well Legislative powers of the Republic” “till shall be effected only under and by the themselves and our brave martyrs to settled that in the countries which have such time as Constitution is framed” and he authority of this Constitution. sacrifice their lives in the national written Constituition, the Constitution is will “do all other things that may be liberation struggle and those ideals being supreme and further a written constitution necessary to give to the people of Article, 7(2) is equally significant. It the basis of our nationhood shall be the is itself a limitation on the power of the Bangladesh an orderly and just proclaimed that the Constitution is the fundamental principles of the Constitution. government. In this regard the following Government. Hence separation of Powers Supreme Law of the Republic being the It also appears that the framers of the views were expressed by B. H. emerges as a necessary corollary of solemn expression of the will of the people Constitution had the foresight to apprehend Chowdhury, J in Anowar Hossain's case at designated functions; that any other law which is inconsistent that this country might not always be served paragraphs -145-148, pages-83-86:- with the Constitution that other law shall, to by wise conscientious and true patriotic “145. It does not need citation of any (c) Supreme Law of the Republic. That that extent of the inconsistency, be void. persons, rather as observed by Justice authority that the power to frame a points to supremacy of the Constitution Article-7 is an unique one and is not found Davis in Ex Parte Milligan, might Constitution is a primary power whereas a because; 57 (d) Any law is void to the extent in any other Constitution. It emphatically sometimes be governed by 'wicked men, power to amend a rigid constitution is a of inconsistency with the Supreme Law (i.e. without any ambiguity, declares the ambitious of power, with hatred of liberty derivative power derived from the the Constitution) which therefore supremacy of the Constitution in no and contempt of law' who, in their self- Constitution and subject at least to the contemplates judiciary; uncertain terms”. interest, may do away with the above noted limitations imposed by the prescribed high ideals of our martyrs and as such, in procedure. Secondly, laws made under a (e) Supreme Court with plenary judicial Thus Article 7 declares the Supremacy of their wisdom, spelt out those high ideals rigid constitution, as also the amendment power for maintenance of the supremacy of the Constitution as stated in the fourth both in the Preamble and also in the articles of such a constitution can be ultra vires if the Constitution”. paragraph of the Preamble and thus is the of the Constitution so that those they contravene the limitations put on the touch-stone in the construction of the fundamental principles shall remain law making or amending power by the Constitution, for the Constitution is the 107 108 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

touch stone of validity of the exercise of the contrary to the Constitution can be valid. To being a written constitution is also a rigid exercising powers granted by Constitution, powers conferred by it. But no provision of deny this would be to affirm that the deputy one, also quoted as follows at paragraphs - to keep within the limits of those words, it the Constitution can be ultra vires because is greater than his principal; that the servant 181-182, pages-92-93: is the duty of the Court, from the nature of there is no touch stone outside the is above his master, that the representatives their function to say what these limits are? Constitution by which the validity of a of the people are superior to the people “181. K.C. Wheare says: “Constitutional and that is why courts come to 61 interpret provision of the Constitution can be judged. themselves; that men acting by virtue of Government means something more than a Constitution”. (Page 174, Modern (See M. H-Seervai, Constitutional Law of powers may do not only what their powers Government according to terms of a Constitution). India at page-(1522-23). do not authorize, but what they forbid. And Constitution. It means Government he concludes that “the Constitution ought according to rule as opposed to arbitrary 182. E.C.S. Wade and G. Godfrey Phillips 146. Professor Baxi while talking about to be preferred to the Statute, the intention Government, it means Government limited in Constitutional and Administrative Law Indian Constitution said that the Supreme of their agents”. by terms of a constitution not Government considered the question of the doctrine of Court reiterated that what is supreme is the limited only by the desire and capacity of legislative supremacy. The authors pointed Constitution; “neither Parliament nor the 148. Professor Wheare further mentioned t h o s e w h o e x e r c i s e p o w e r s ” . out that the doctrine of legislative judiciary is by itself supreme. The that once a Constitution is enacted, even ...... supremacy distinguishes the United amending power is but a power given by the when it has been submitted 60 to the people ...... Kingdom from those countries in which a Constitution to Parliament; it is a higher for approval, it binds thereafter not only the ...... written constitution imposes limits upon power than any other given to Parliament institutions which it establishes, but also “ K . C . W h e a r e o b s e r v e d the legislature and entrusts the ordinary but nevertheless it is a power within and not the people itself. They may amend the ...... The real courts whether the acts of the Legislature o u t s i d e o f , t h e C o n s t i t u t i o n Constitution, if at all, only by methods justification of Constitutions, the original are in accordance with the Constitution. It ……………Article 368 is one part of the which the Constitution itself provides idea behind them is that of limiting is observed: Constitution. It is not and cannot be the (Page 89-90). He further says “A Government and of requiring those who whole of Constitution”. (See Indian Constitution cannot be disobeyed with the govern to conform to the law and usage. “In a constitutional system which accepts Constitution Trends and Issues at Page- same degree of lighteartedness as a Dog Most Constitutions as we have been seen do judicial review of legislation, legislation 123)”. Act. It lies at the basis of political order; if it purport to limit the Government “and if in may be held invalid on a variety of is brought into contempt, disorder and turn a Constitution imposes restriction grounds: for example. because it conflicts 147. Professor K.C. Wheare in Modern chaos may soon follow” (Page 91)”. upon the powers of the institution it must be with the separation of powers where this is Constitutions quoted Alexander Hamilton said” then the courts must decide whether a feature of the Constitution, (Liyanage v. in the Federalist when he said: B.H. Chowdhury J, on the basis of the their actions transgress those restrictions R [1967] A.C. 259) or infringe human above, observed that this nation has learnt and in doing so, the Judge must say what the rights guaranteed by the Constitution, “There is no position which depends on its bitter lessons to the consequence of Constitution means. (E.G. Aptheker v. Secretary of State 378 clearer principles than that every act of a disobedience of the Constitution. U.S. 500 (1964) (Act of U.S. Congress delegated authority, contrary to the tenor of In the above judgment B. H. Chowdhury, J, The substance of the matter is that while it refusing passports to Communists held a the Constitution under which it is exercised, upholding the supremacy of the is the duty of every institution established unconstitutional restriction on right to is void. No legislative act, therefore, Constitution and that our Constitution under the authority of a Constitution and travel) or has not been passed in 109 110 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

accordance with the procedure laid down in It has been argued on behalf of the 94(1) provides for the establishment of the the doctrine of separation of powers in the the Constitution (Harris v. Minister of petitioners that (a) Parliament being a Supreme Court of Bangladesh. Article 114 first three Articles of its Constitution. Interior 1952(2) S.A. 428)”. sovereign body and it also does not come provides for the subordinate courts. These In the United States, the Supreme Court in within the definition of 'person' as provided three distinct branches of the Republic the last years of the 18th century, started to In the above case Shahabuddin Ahmed, J at in Article 152 of the Constitution, the High commesurate with the Doctrine of the exercise its power of judicial review in para-272 page-118, also upheld the Court does not have any jurisdiction to Separation of Powers propounded by deciding the constitutionality of Federal Supremacy of the Constitution in the declare an Act of Parliament invalid and (b) Baron Montesquieu. In his De l 'Esprit des and State laws. In Hylton V. U.S(1796) and following manner: while making any judicial review of any Lois (1748), he stressed the importance of in Calder V. Bull(1798), the Court, Act of Parliament, Articles 7 and 26 are to the independence of Judiciary :…….. However, after consideration, upheld the “In this case we are to interpret a be followed in letter and spirit. legislation. Constitution which is referred to, as the will “When the legislative and executive of the people and supreme law of the land While discussing the Supremacy of the powers are united in the same person, or in In Marbury V. Madison (1803), William and as such it is a most important Constitution earlier we have found that the same body of magistrates, there can be Marbury under a provision of the Judiciary instrument. But its preeminance is not Article 7 having declared the supremacy of no liberty…Again, there is no liberty if the Act of 1789, prayed to the Supreme Court derived only from the fact that it is the the Constitution there must be some power of judiging is not separated from the for issuing a writ of mandamus, compelling supreme law of the land; it is pre-eminent authority to maintain and preserve the legislative and executive. If it were joined James Madison, the Secretary of State, to because it contains lofty principles and is supremacy of the Constitution and there with the legislative, the life and liberty of deliver him his commission for his based on much higher values of human life. can be no doubt that in an entrenched the subject would be exposed to arbitrary appointment as justice of the peace. On the one hand, it gives out-lines of the constitution judiciary must be that control; for the 63 judge would then be the State apparatus, on the other hand, it authority. Starting from Marbury V. legislator. If it were joined to the executive Marbury was one of the 'midnight judges', enshrines long cherished hopes and Madison, (1803) there are numerous power, the judge might behave with appointed at the last-minute of the tenure of aspirations of the people; it gives instances where the Court functioning violence and oppression. There would be President Adams. The President, however, guarantees of fundamental rights of a under a written constitution upheld this an end to everything, if the same man, or the had acted within constitutional statute and citizen and also makes him aware of his jurisdiction of judicial review of the same body, whether of the nobles or the all the appointments were confirmed by the solemn duty to himself, to his fellow citizen superior Courts. people, were to exercise those three Senate. But unfortunately for Marbury, and to his country.” powers, that of enacting laws, that of Thomas Jefferson, the new President, took The High Court Division discussed this executing public affairs, and that of trying office on March 4, 1801, before his Considering the above legal position the issue in details as follows : crimes or individual causes.”( (Quoted commission could be delivered to him. It High Court Division concluded as follows : “Article 55(2) of the Constitution of from Hilaire Barnett on Constitutional and was thereafter never delivered presumably “From a reading of the above Judgments, it Bangladesh vests the executive power of Administrative Law, Fourth Edition, on the direction of the new President. would show that no-body denied the the Republic on the Prime Minister while 2002). (page-106) ……. supremacy of the Constitution. Even the 62 under Article 65(1), the legislative powers John Marshall was a Federalist. He actively Attorney General accepted the supremacy are vested on the Parliament which is the The United States of America is the first participated in the American war of of the Constitution, and so also the Court”. House of the Nation. Similarly, Article Republic which appears to have accepted Independence. He was appointed as the 111 112 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Chief Justice of the U. S. Federal Supreme won control of Congress. The opposition That a case arising under the constitution “…..the federal courts have jurisdiction to Court by President Adams in early 1801. had obtained complete control of the should be decided without examining the declare provisions of state constitutions, The Court found that the Constitution political branches of the government. Is it instrument under which it rises? state legislation and federal legislation limited the original jurisdiction of the not obvious that from the point of view of T h i s i s t o o e x t r a v a g a n t t o b e repugnant to the Federal Constitution. It is Supreme Court only in two types of cases, the Founding Fathers and the Federalist maintained……..Thus, the particular not strictly accurate to say that the Courts namely, the cases affecting the party the time had come to point out that the phraseology of the constitution of the declare legislation void: when cases are ambassadors and those in which a State Constitution as a higher law did place United States confirms and strengthens the brought before them judicially, they may shall be a party but in all other cases the restraints upon Congress and that the principle, supposed to be essential to all declare that an alleged right or power does Supreme Court shall have appellate Supreme Court as guardian of the written constitutions, that a law repugnant not exist or that an alleged wrong has been jurisdiction, not original. As such, the Constitution had power to enforce those to the constitution is void; and that courts, committed because a certain statute relied request of Marbury for mandamus was restraints? as well as other departments, are bound by on is unconstitutional.” denied. 64 Normally, the matter would that instrument.”(Quoted from Professor have been ended there but Chief Justice In Marbury v. Madison we see Chief Justice Noet T. Dowling on the 'Cases on This was also indicated by A. R. Cornelius, Marshall did not stop there. It was not Marshall suggesting that the Supreme Constitutional Law Fifth Edition, 1954, at C.J., in Fazlul Quader Chowdhury V. necessary but he digged further, although, Court was duty-bound as a matter of pages-95-97). Muhammad Abdul Haque PLD 1963 SC Marbury was only interested in his own unescapable principle to enforce the 486, at page-503: commission and not in the least in the vires Constitution as a symbol of restraint upon It will be interesting to note that Marbury of the relavant clause of the Judiciary Act of congressional authority through the was not at all interested in the supremacy of “The duty of interpreting the Constitution 1789, but Marshall C. J., on examination of exercise of its power of Judicial review. the Constitution or the Supreme Court's is, in a fact a duty of enforcing the the relevant provisions found that a ……..” (Quoted from Robert K. Carr on power of judicial review. He only made a provisions of the Constitution in any ontradiction did in fact exist between the 'The Supreme Court and Judicial Review' request for mandamus upon Madison, the particular case brought before the Courts in Constitution and the pertinent provision of at page-71). Secretary of State, directing him to deliver the form of litigation.” 66 Hamoodur the aforesaid Act”. his commission which was ready in all Rahman, C. J., in dealing with Martial Law This is how the review was made two respect but could not be delivered to him provision in Asma Jilani's case held at page Robert K. Carr tried to visualize the mind- hundred years ago in Marbury V. Madison: earlier due to paucity of time. But the -202: set of Chief Justice Marshall, a great Chief “If an act of the legislature, repugnant to the Supreme Court in course of considering his Justice of the Supreme Court of the United C o n s t i t u t i o n , i s v o i d , d o e s i t , grievance, very consciously declared “However, as this question has been raised, States, in its infancy in this manner: notwithstanding its invalidity, bind the invalid an Act of the Congress. This is how regarding the validity of Martial Law courts, and oblige them to give it effect? Or, the U. S. Supreme Court wields its power of Regulation No. 78, I must point out that it “In other words, Marshall was invoking in other words, though it be not law, does it Judicial review of legislative actions. follows from what I have said earlier that it that power for the first time at just such a constitute a rule as operative as if it was a was made by an authority whose legal moment when the Fathers probably law? Could it be the intention of those who O. Hood Phillips in his 'Constitutional and competence we have not been able to intended it should be exercised. Jefferson gave this power, to say that in using it the Administrative Law', Seventh Edition recognise on the ground of want of legal had become president and his party had constitution should not be looked into? (1987), explains the mechanism at page-8: authority and the unconstitutional manner 113 114 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

of arrogation of power.” Bangladesh, that is why this Court came reasons, but by the artificial reasons and principle of independence of the judiciary into being out of Article 94 67 of the judgment of the law, which law is an act which must be kept in mind while The moral is clear. If any provision sought Constitution with all the powers of a High which requires long study and experience, interpreting the relevant provisions of the to oust the jurisdiction of Court, that Tribunal as exists in the civilised world. before that a man can attain the cognizance Constitution (S.P. Gupta and others v. provision itself is not law. In this connection a historical episode was of it, and the law was the golden metawand President of India and others A.I.R. 1982 narrated by B. H. Chowdhury, J. in Anwar one and measure to try the causes of the SC at page 152). As such it is apparent that the Court may Hossain Chowdhury's case at para-253, subject and which protect his Majesty in consider the constitutionality of any page-108 (BLD) : safety and peace”. 241. He further says, “what is necessary is provision in course of a litigation brought About the independence of judiciary and its to have Judges who are prepared to fashion before it. Further it is not for the aggrieved “253. This judgment will be incomplete if a power of judicial review, B. H. Chowdhury, new tools, forge new methods, innovate persons to plead law but for the Judges to historical episode is not mentioned. Sir J., in the above case further observed, new strategies and evolve a new apply the correct provisions of the Coke was summoned by King James first to quoting Bhagwati, J. and Justice Krishna jurisprudence, who are judicial statesmen Constitution and the laws made thereunder answer why the King could not himself Iyer, J.at para- 240-241, page-105: with a social vision and a creative faculty and if necessary under the circumstances, is decide cases which has to go before his own and who have, above all, a deep sense of entitled either to uphold any particular court of justice. Sir Coke asserted: “240. This point may now be considered. commitment to the Constitution with a statute or to declare it invalid being “No King after the conquest assumed Independence of judiciary is not an abstract activist approach and obligation for contradictory to the Constitution so long the himself to give any judgment in any cause conception. Bhagwati, J said “if there is one accountability, not to any party in power Government gets adequate opportunity to whatsoever which concerned the principle which runs through the entire nor to the opposition ………………..We support the offending provision if so administration of justice within the realm fabric of the Constitution, it is the principle need Judges who are alive to the advised. This is the position in the United but these are solely determined in the court of the rule of law and under the socioeconomic realities of Indian life, who States, so also in India and there is no reason of justice.” Constitution, it is the judiciary which is are anxious to wipe every tear from every why it should be otherwise in Bangladesh. entrusted with the task of keeping every eye, who have faith in the constitutional When King said that he thought the law was organ of the State within the limits of the values and who are ready to use law as an It may be mentioned here that under our founded on reasons and that he and others law and thereby making the rule of law a instrument for achieving the constitutional Constitution all the powers and functions of had reasons as well as Judges, Coke meaningful and effective”. He 68 said that objectives (at page 179). He quoted the the Republic are vested in the three answered : the Judges must uphold the core principle eloquent words of Justice Krishna Iyer : branches, namely, the Legislature, the of the rule of law which says, “Be you ever Executive and the Judiciary. All these “True it was that God has endowed his so high, the law is above you”. This is the “Independence of the judiciary is not branches, however, owe their existence to Majesty with excellent science and great principle of independence of the judiciary genuflexion; nor is it opposition to every the Constitution since it is the embodiment endowments of nature, but his Majesty was which is vital for the establishment of real proposition of Government. It is neither of the will of the people of Bangladesh. It is not learned in the law of his realm in participatory democracy, maintenance of judiciary made to opposition measure nor the people of Bangladesh, who proclaimed England, and causes which concerned the the rule of law as a dynamic concept and Government's pleasure”. that 'We, the people of Bangladesh', deemed life or inheritance or good or fortune of his delivery of social justice to the vulnerable that there shall be a Supreme Court for subject, are not to be decided by natural sections of the Community. It is this Thus there is no hesitation in saying that 115 116 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

these are the words of wisdom handed in the country and Article 7(2) expressly taken oath to preserve, protect and defend as pointed out in the case of Fazlul Quader down to us by the generations of Judges spelt out that any law which is inconsistent the Constitution, they are obliged and duty Chowdhury v. Shah Nawaz, which has to who very politely and meekly from the with this Constitution, to that extent of the bound to declare and strike down any be performed with great circumspection beginning of the civilisation reminded the inconsistency, is void. As such, the provision of law which is inconsistent with but it has nevertheless to be performed as a monarch that the King is not above the law provisions of the Constitution is the basis the Constitution without any fear or favour sacred Constitutional duty when other but under the law. Some of them were on which the vires of all other existing laws to any body. This includes the power to State functionaries disregard the beheaded, imprisoned or destroyed but the and those passed by the Legislature as well declare any provision seeking to oust the limitations imposed upon them or claim to cherished theme ran like a refrain as the actions of the Executive, are to be jurisdiction of the Court, as ultra vires the exercise power which the people have been throughout the pages of the history. judged by the Supreme Court, under its Constitution. careful to withhold from them.” power of judicial review. This power of In this part of the world we generally follow judicial review of the Supreme Court of Hamoodur Rahman, C. J. explains the legal His Lordship then considered the powers of the common law principles but Bangladesh Bangladesh is, similar to those in the position thus in State V. the Court in respect of the Constitutional has got a written Constitution. This United States, Pakistan and in India. Zia-ur-Rahman PLD 1973 SC 49 at page- measure at page-71: Constitution may be termed as controlled or 70: rigid but in contradistinction to a Federal This is how the Legislature, the Executive “In exercising this power, the judiciary “I for my part cannot conceive of a form of Government, as in the United and the Judiciary functions under the claims no supremacy over other organs of situation, in which, after a formal written States, it has a Parliamentary form of Constitutional scheme in Bangladesh. The the Government but acts only as the Constitution has been lawfully adopted by Government within limits set by the Constitution is the undoubted source of all administrator of the public will. Even when a competent body and has been generally Constitution. Like the United States, its 69 powers and functions of all three grand it declares a legislative measure accepted by the people including the three grand Departments, 'the Legislature Departments of the Republic, just like the unconstitutional and void, it does not do so, judiciary as the Constitution of the country, makes, the Executive executes and United States, Pakistan and India. It is true because, the judicial power is superior in the judiciary can claim to declare any of its judiciary construes the law' (Chief Justice that like the Supreme Courts in the United degree or dignity to the legislative power; provisions ultra vires or void. This will be Marshall). But the Bangladesh Parliament States or in India, the Supreme Court of but because the Constitution has vested it no part of its function of interpretation. lacks the omnipotence of the British Bangladesh has got the power of review of with the power to declare what the law is in Therefore, in my view, however solemn or Parliament while the President is not the both legislative and executive actions but the cases which come before it. It thus sacrosanct a 71 document, if it is not executive head like the U. S. President but such power of review would not place the merely enforces the Constitution as a incorporated in the Constitution or does not the Prime Minister is, like Brithsh Prime Supreme Court with any higher position to paramount law whenever a legislative form a part thereof it cannot control the Minister. However, all the functionaries of those of the other two Branches of the enactment comes into conflict with it Constitution. At any rate, the Courts the Republic owe their existence, powers Republic. The Supreme Court is the because, it is its duty to see that the created under the Constitution will not and functions to the Constitution. 'We the creation of the Constitution just like the Constitution prevails. It is only when the have the power to declare any provision of people of Bangladesh', gave themselves Legislature and the Executive. But the Legislature fails to keep within its own the constitution itself as being in violation this Constitution which is conceived of as a Constitution endowed the Supreme Court Constitutional limits, the judiciary steps in of such a document. If in fact that document fundamental or an organic or a Supreme with such 70 power of judicial review and to enforce compliance with the contains the expression of the will of the Law rising loftly high above all other laws since the Judges of the Supreme Court have Constitution. This is no dubt a delicate task vast majority of the people, then the 117 118 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

remedy for correcting such a violation will Division did it giving reasons. He, therefore, has decided to declare a state Federation of Pakistan challenged the lie with the people and not with the of emergency throughout Pakistan. The judgment of the Sindh Chief Court before judiciary”. Next question is whether in view of the Constituent Assembly as at present the Federal Court. The Federal Court provisions of Article 111 of the constituted has lost the confidence of the reversed the judgment of the Sindh Chief Coming back to Bangladesh, Mustafa Constitution, the decisions of this Division people and can no longer function. Court on the ground that the assent of the Kamal, C.J., was emphatic in respect of the passed in the cases of Halima Khatun, Governor-General was necessary for the independence of Judiciary in Secretary, Joynal Abedin, Etheshamuddin, and (2) The ultimate authority vests in the validity of all the laws and the amendments Ministry of Finance V. Masdar Hossain Nasiruddin to the effect that Martial Law people who will decide all issues including made in the Government of India Act, 2000 (VIII) BLT (AD) 234 where his p r o c l a m a t i o n s e t c . w e r e s u p r a constitutional issues through their 1935. The Court held that since section Lordship held at para 60, pages-263-4: constitutional instruments and as 72 such representatives to be elected afresh. 223A of the Government of India Act “60 when Parliament and the executive, the Constitution must take a back seat, is Elections will be held as early as possible. under which the Chief Court of Sindh instead of implementing the provisions of binding upon the High Court Division. (3) Until such time as elections are held, the assumed jurisdiction to issue the writs did Chapter II of Part VI follow a different administration of the country will be not receive assent of the Governor- course not sanctioned by the Constitution, Before discussing the above question, let us carried on by a reconstituted Cabinet. He General, it was not yet law, and that, the higher Judiciary is within its jurisdiction get a clear picture of the major has called upon the Prime Minister to therefore, the Chief Court had no to bring back the Parliament and the constitutional developments in erstwhile reform the Cabinet with a view to giving the jurisdiction to issue the writs. executive from constitutional derailment Pakistan and also in present Pakistan and c o u n t r y a v i g o r o u s a n d s t a b l e and give necessary directions to follow the decision of the Supreme Court of Pakistan administration. The invitation has been However, in his dissenting judgment, constitutional course. regarding Martial Law. Earlier we have accepted and (4) The security and stability Cornelius J, (later CJ) held that there was quoted the relevant portion of the judgment of the country are of paramount nothing in section 6(3) of the Indian This exercise was made by this Court in the of Yakub Ali J in Asma Jilani's case in this importance. All personal sectional and Independence Act, or to the status of case of Kudrat-Elahi Panir Vs. Bangladesh, regard but the same is not that elaborate. provisional interests must be subordinated Pakistan as a Dominion which created the 44 DLR (AD) 319. We do not see why the The first major event in this behalf in to the supreme national interest.” obligation that all laws made by the High Court Division or this Court cannot erstwhile Pakistan was the dissolution of Constituent Assembly of a constitutional repeat that exercise when a constitutional the Constituent Assembly of Pakistan by This act of the Governor-General was nature, required the assent of the deviation is detected and when there is a Governor-General Ghulam Muhammad in challenged by Moulvi Tamizuddin Khan, Governor-General for their validity and constitutional mandate to implement 1954, which he did on the following President of the Constituent Assembly, in operation. Thus, by majority, the certain provisions of the Constitution.” grounds:- the Chief Court of Sindh. The Chief Court dissolution of the assembly was upheld on of Sindh allowed the petition and declared a legal ground. As to the merits of the case, It is thus clear that the High Court Division “(1) The Governor-General having the 73 dissolution of the Assembly as it was observed that it was wholly has not only the power of judicial review of considered the political crisis with which illegal. It was held that the Acts of the unnecessary to go into the other issues and an Act of Parliament but also has a duty to the country is faced, has with deep regret Constituent Assembly when it did not nothing said in the judgment was to be exercise such power in case of violation of some to the conclusion that the function as the Federal legislature did not taken as an expression of opinion on the Constitution. And the High Court constitutional machinery has broken down. require the Governor-General's assent. The anyone of those issues. 119 120 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

The next case of constitutional importance which section had been inserted in the were assigned by the Constitution to other taken against the appellants. That being so, was Usif Patel v. Crown (PLD 1955 FC Government of India Act, 1935 by an Order bodies. Nor was it competent to remove the it was argued, the detention of the 387). The appellants in that case were of the Governor-General under section 9 of limitations imposed by the Constitution on appellants in jail was illegal. proceeded against under the Sindh Control the Indian Independence Act, 1947. It was its legislative powers. The power of the of Goondas Act, 1952. They were declared contended that this action of the Governor- legislature of the dominion for the purpose The Federal Court held that the Acts as goondas were directed to furnish heavy General was ultra vires the provisions of of making provision as to the constitution mentioned in the Schedule to the above security but they having failed to give the aforesaid section 9. The contention was of the Domination could, under subsection Order could not be validated by the security, were confined to prison. Against repelled by the Chief Court and the (1) of section 8 of the Indian Independence Governor General under section 42 of the their detention in prison, they approached detentions of the petitioners were held Act, 1947, be exercised only by the 1935 Act nor could retrospective effect be 74 the Sind Chief Court by an application legal. Constituent Assembly, and that such power given to them. A noteworthy fact was that under section 491 of the Code of Criminal could not be exercised by that Assembly the Constituent Assembly, having already Procedure, 1898 alleging that their The matter came up in appeal before the when it functioned as the Federal been dissolved by the Governor General by imprisonment was wrongful and prayed Federal Court where the questions Legislature within the limits imposed upon a Proclamation on October 24, 1954 had that they be set at liberty. Some of the requiring determination were as under :- it by the Government of India Act, 1935. ceased to function and no legislature petitioners moved revision petitions under “(1) Whether the Governor-General could The Governor-General could not by an competent to validate these Acts was in section 17 of the aforesaid Act before the by an Ordinance validate the Indian Ordinance, repeal any provision of the existence. In conclusion, the court Chief Court. Independence (Amendment) Act, 1948; Indian Independence Act, 1947 or the observed as: and Government of India Act, 1935 and assume By means of the Emergency Powers (2) Whether the Governor-General could unto himself all powers of legislation. “It might have been expected that Ordinance, 1955 (Ordinance No. IX of give assent to constitutional legislation conformably with the attitude taken before 1955) issued under section 42 of the made by the Constituent Assembly with Since the Amendment Act of 1948 was not us by the responsible counsel for the Crown Government of India Act, 1935 the retrospective effect”. 75 It was held that a presented to the Governor-General for his the first concern of the Government would Governor-General sought to validate all legislature could not validate an invalid law assent, it did not have the effect of have been to bring into existence another those Acts by indicating his assent with if it did not possess the power to legislate on extending the date from 31st March, 1948 to representative body to exercise the powers retrospective operation. The ground urged the subject to which the invalid law related, 31st March, 1949 and that since section 92A of Constituent Assembly so that all invalid before the Chief Court on which their the principle governing validation being was added to the Government of India Act, legislation could have been immediately imprisonment was alleged to be illegal was that validation being itself legislation one 1935 after 31st March, 1948, it never validated by the new body. Such a course that the Governor's Act under which action could not validate what one could not became a valid provision of that Act. Thus, would have been consistent with the had been taken against them was invalid legislate upon. The essence of a federal the Governor-General had no authority to constitution practice in relation to such a because it was passed by the Governor in legislature was that it was not a sovereign act under section 92A and the Governor situation. Events, however, show that other exercise of the powers which were legislature competent to make laws on all derived no power to legislate from a counsels have since prevailed. The conferred on him by a Proclamation issued matters, in particular it could not, unless Proclamation under that section. Ordinance contains no reference to by the Governor-General under section 92A specifically empowered by the Accordingly, the Sind Goondas Act was 76 elections, and all that the learned Advocate of the Government of India Act, 1935, Constitution, legislate on matters which ultra vires and no action under it could be General can say is that there intended to be 121 122 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

held.” by which the Governor-General could, by High Court for a writ of habeas corpus and Martial Law Administrator. Three days Order or otherwise, declare that all orders certiorari on the ground that the provisions later, the President promulgated the Laws Next case of significant relevance is the made, decisions taken, and other acts done of the FCR enabling the executive (Continuance in Force) order, 1958, the Reference H.E. The Governor-General under those laws, should be valid and authorities to refer a criminal case to a general effect of which was the validation reported in PLD 1955 FC 435. The Federal enforceable and those laws, which could Council of Elders were void under Article 4 of laws other than the late Constitution, that Court having held in Moulvi Tamizuddin not without danger to the State be removed of the Constitution of the Islamic Republic were in force before Proclamation, and Khan's case that assent of the Governor- from the existing legal system, should be of Pakistan, 1956. The High Court accepted restoration of the jurisdiction of all Courts General was necessary to all laws passed by treated as part of the law of the land until the the contention and held that the provisions including 79 the Supreme Court and High the Constituent Assembly, the Governor- question of their validation was determined of FCR could be enforced under subsection Courts. The Order contained the further General sought to validate such Acts by by the new Constituent Convention. (4) of section 1 (ibid) only against Pathans direction that the country, thereafter to be indicating his ascent, with retrospective and Baluchis and against such other known as Pakistan and not the Islamic operation, by means of the Emergency The answer returned by the Federal Court persons the local government may notify Republic of Pakistan, should be governed Powers Ordinance, 1955(Ordinance No, IX (by majority) was that in the situation and as this was not a reasonable as nearly as may be in accordance with the of 1955) issued under section 42 of the presented by the Reference, the Governor- classification, those provisions were ultra late Constitution. Government of India Act, 1935. The General has, during the interim period, the vires Article 5 of the Constitution. The Federal Court in Usif Patel's case, however, power under the common law of civil or convictions and sentences were set aside, Under Clause (7) of Article 2 of the Laws declared that the Acts mentioned in the state necessity of retrospectively validating and the respondents were ordered to be (Continuance in Force) Order 1958, all writ Schedule to that Ordinance could not be 77 the laws listed in the Schedules to the treated as under trial prisoners, it being left petitions pending in High Courts seeking validated under section 42 of the Emergency Powers Ordinance, 1955, and to the government to refer their cases to a enforcement of fundamental rights stood Government of the India Act, 1935, nor all those laws, until the question of their court of law. On appeals filed by the State abated. The Court held that if the could retrospective effect be given to them. validation was decided upon by the before the Federal Court against the Constitution was destroyed by a successful A noteworthy fact was that the Constituent Constituent Assembly, where, during the impugned orders of the High Court, the revolution, the validity of the prevalent Assembly had ceased to function, having aforesaid period, valid and enforceable in validity of the exercise of power by the laws depended upon the will of the new already been dissolved by the Governor- the same way as if they had been valid from High Court was adjudged in the context of law-creating organ. Therefore, if the new General by a Proclamation on 24th October the date on which they purported to come the actions of 7th October, 1958. What legal order preserved any one or more laws 1954, and no legislature competent to into force. happened was that by Proclamation of that of the old legal order, then a writ would lie validate these Acts was in existence. data, the President of Pakistan annulled the for violation of the same. As regards In Dosso's case the respondents in one of Constitution of 1956, dismissed the Central pending applications for writs or writs The Governor-General made a reference to the appeals were tried by a Jirga (council of Cabinet and the Provincial Cabinets and already issued but which were either sub the Federal Court under section 213 of the elders) under the provisions of the Frontier dissolved the National Assembly and both judice before the Supreme Court or Government of India Act, 1935 asking for Crimes 78 Regulation, 1901 (FCR) and Provincial Assemblies. Simultaneously, required enforcement, the Court in the light the Court's opinion on the question whether convicted and sentenced under different Martial Law was declared throughout the of the Laws (Continuance in Force) Order, there was any provision in the Constitution provisions of the Pakistan Penal Code, country and Commander-in Chief of the 1958 held that excepting the writs issued by or any rule of law applicable to the situation 1860. They filed applications before the Pakistan Army was appointed as the Chief the Supreme Court after Proclamation and 123 124 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

before the promulgation of the Order, no later on, the above view was overruled by then was), observed at para-18 : Ironically enough, this Article, though still writ or order for a writ issued or made after Pakiatan Supreme Court. exists, must be taken to have lost some of Proclamation shall have any legal effect “ ………. what appears from the its importance and efficacy. In view of unless the writ was issued on the ground Now coming to the cases of Halima Proclamation of August 20, 1975 is that clauses (d), (e) and (g) of the Proclamation that anyone or more of the laws mentioned Khatun, Joynal Abedin, Ehteshamuddin with the declaration of Martial Law in the supremacy of the Constitution as in Article 4 or any other right kept alive by and Nasiruddin where the status of the said Bangladesh on August 15, 1975, Mr. declared in that Article is no longer the new Order had been contravened. Proclamations dated August 15, 1975, Khondker Moshtaque Ahmed who became unqualified. In spite of this Article, no November and 29 of 1975 and Martial Law the President of Bangladesh assumed full Constitutional provision can claim to be The Supreme Court, on the basis of the Regulations and Orders have been powers of the Government and by Clause sacrosanct and immutable. The present theory propounded by Hans Kelsen, considered, the High Court Division (d) and (e) of 81 the Proclamation made the Constitutional provision may however, accorded legitimacy to the assumption of regarding Halima Khatun's case stated as Constitution of Bangladesh, which was claim superiority to any law other than a power by General Ayub Khan holding that follows:- allowed to remain in force, subordinate to Regulation or Order made under the coup d'etat was a legitimate means to bring the Proclamation and any Regulation or Proclamation.” about change in the government and The first is the case of Halima Khatun V. order as may be made by the President in particularly so when the new order brought Bangladesh 30 DLR (SC) (1978) 207. In pursuance thereof. In Clause (h) the power Fazle Munim, J., held that the Constitution about by the change had been accepted by the said case, the legality of the to amend the Proclamation was provided. It of Bangladesh was made subservient and the people. It was held that where a Proclamations etc. was not the issue but may be true that whenever there would be subordinate to the Proclamations, MLRs Constitution and the national legal order inclusion of a property in the list of any conflict between the Constitution and and MLOs. under it was disrupted by an abrupt 80 abandoned properties was challenged in the the Proclamation or a Regulation or an political change not within the High Court. The Rule was discharged on Order the intention, as appears from the According to the High Court Division in contemplation of the Constitution, then the ground that the question as to whether language employed, does not seem to view of the above judgment--- such a change would be a revolution and its the relevant property was abandoned or not concede such superiority to the “I) Under the Proclamations, the legal effect would not only be the is a disputed question of fact. On appeal Constitution. Under the Proclamation Constitution lost its character as the destruction of the Constitution but also the question arose before the Appellate which contains the aforesaid clauses the supreme law of the Republic. validity of the national legal order, Division, whether in view of the provisions Constitution has lost its character as the II) The Constitution is subordinate to the irrespective of how or by whom such a o f t h e A b a n d o n e d P r o p e r t i e s Supreme law of the country. There is no Proclamations and the Regulations and change was brought about. In the result, in (Supplementary Provisions) Regulation doubt, an express declaration in Article Orders made thereunder. accordance with the judgment of the 1977, (MLR No. VII of 1977) the aforesaid 7(2)of the Constitution to the fol1owing III) Constitution is superior to any law majority, the proceedings for writs in each writ petition abated. This appeal was effect : “This Constitution is, as the solemn other than a Regulation or Order made of these cases were held to have abated. The decided on January 4,1978. Bangladesh expression of the will of the people, the under the Proclamation”. result was that the directions made and the was at that time under Martial Law. After supreme law of the Republic and if any writs issued by the High Court were set considering the Proclamations, MLRs and other law is inconsistent with this Regarding Haji Joynal Abedin's case 32 aside. However, in 1972, in Asma Jilani's MLOs and also the Constitution including Constitution that other law shall to the DLR (AD) (1980)110 the High Court case, the details of which will be discussed Article 7 , Fazle Munim, J. (as his Lordship extent of the inconsistency be void.” Division stated as follows: 82 In this case a 125 126 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

writ petition was filed challenging the as such is still in force as the supreme law of continue subject to the Proclamations and considered the legality of the proceedings legality of the order of conviction passed by the country, untrammelled by the MLRs and MLOs. before the Special Martial Law Court when the Special Martial Law Court. The legality Proclamation and Martial Law Regulation. III) The Constitution was amended from the country was under Martial Law. The of Proclamations etc. was not the issue in …………..” time to time by issuing Proclamations. Judgement of the Appellate Division was that case. The High Court Division declared Ruhul Islam J, then at para-19: page-122- IV) The moment the country is put under given on March 27, 1980. the said order of conviction and sentence 23 held: Martial Law, the Constitution looses its was without lawful authority and of no legal superior position”. At that time although Martial Law was effect. “………..So long the Constitution is in withdrawn still its dark shadows force as the supreme law of the country, any Regarding the next case i.e. the case of Kh. apparently loomed large over the country Leave was granted, inter alia, to consider as act done or proceeding taken by a person Ehteshamuddin Ahmed V, Bangladesh, 33 and its 84 Constitution, as found by the to whether in view of the Proclamation purporting to function in connection with DLR (AD)(1981 ) 154 the High Court Court. His Lordship Ruhul Islam. J., in dated August 20, 1975, the High Court the affairs of the Republic or of a local Division held as folows:- considering Article-7, held at para-16 Division acted within its jurisdiction in authority may be made the subject matter of page-163: issuing the writ. review by High Court in exercise of its writ In this case a writ petition was filed “It is true that Article 7 (2) declares the After tracing the history of the jurisdiction. The moment the country is put challenging the proceedings in passing the Constitution as the Supreme Law of the Proclamation of Martial Law, declared on under Martial Law, the above noted Judgment and Order of conviction passed Republic and if any other law is August 20, 1975 at page-16 and 17 of the constitutional provision along with other by the Special Martial Law Court. The inconsistent with the Constitution that Report, Ruhul Islam, J, held at para-18, civil laws of the country loses its superior Proclamation etc. were not challenged. The other law shall, to the extent of the page- 122 : position”. High Court Division summarily rejected inconsistency, be void, but the supremacy the writ petition by an order dated June, 13, of the Constitution cannot by any means “From a consideration of the features noted Ruhul Islam, J. very specifically spelt out 1979, on the ground of ouster of compete with the Proclamation issued by above it leaves no room for doubt that the that the Constitution was reduced to a jurisdiction by MLR 1 of 1975. the Chief Martial Law”. Constitution though not abrogated, was position subordinate to the Proclamations, reduced to a position subordinate to the MLRs and MLOs. 83 This opinion of the By this time, Proclamations were revoked His Lordship then at Para -18 page-163 Proclamation, inasmuch as, the unamended Appellate Division was given on and the Martial Law was withdrawn. held : and unsuspended constitutional provisions Decembers 20, 1978. At that time the Leave was granted, inter alia, to consider as “18. In that case, on the question of High were kept in force and allowed to continue country was under Martial Law”. to whether the proceeding of the Special Court's power under the Constitution to subject to the Proclamation and Martial Martial Law Court could be examined by issue writ against the Martial Law Law Regulation or orders and other orders; According to the High Court Division by the High Court Division after passing of the Authority or Martial Law Courts, this and the Constitution was amended from the above judgment …. Fifth Amendment of the Constitution. Division has given the answer that the High time to time by issuing Proclamation. In the I) The Constitution was reduced to a In this case, the vires of the Fifth Courts being creature under the face of the facts stated above I find it position subordinate to the Proclamation. Amendment was not challenged. This Constitution with the Proclamation of difficult to accept the arguments advanced II) The unamended unsuspended position was admitted by the learned Martial Law and the Constitution allowed in support of the view that the Constitution Constitutional provisions were allowed to Advocates of both the sides, the Court to remain operative subject to the 127 128 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Proclamation and Martial Law Regulation, Bangladesh. Justice Coke four hundred years ago in vires. It is true mala fide act is also not it loses its superior power to issue writ 1610. protected, but then mala fide is to be against the Martial Law Authority or iv) The High Court lost its superior power pleaded with particulars constituting such Martial Law Courts.………” to issue writ against the Martial Law Regarding Nasiruddin's case 32 DLR (AD) mala fide and established by cogent His Lordship then at para-25, page-166 Authority or Martial Law Courts”. (1980) 216, the High Court Division found materials before the Court.” further held: “From the above Judgment it is apparent as follows: ...... that even after lifting of the Martial Law, its ...... “25.Before I proceed further it may be provisions remained supreme and on the This case was decided on 14.4.1980. It is ...... mentioned that in the present case neither face of the MLRs, the Constitution was also in respect of an abandoned property. It In this connection it should also be noted the authority of the person who proclaimed relegated even further to the back-seat. modified the effect of the decision of the that the case of Kh. Ehteshamnddin Ahmed Martial Law nor the vires of the Martial Although at that time the Martial Law was earlier Halima Khatun's case to some extent V. Bangladesh, 33 DLR (AD) (1981) 154 Law Regulation was or could be challenged not there but even then the Constitution was but the observations of Fazle Munim, J., in was decided on 27.3.1980 and the case of at the bar excepting arguing on the question read subject to the Martial Law and was respect of the status of Martial Law vis-à- Nasiruddin V. Government of Bangladesh of supremacy of the Constitution over the made to recoil on the face of the bare vis the Constitution made in the said 86 32 DLR (AD) (1980) 216 was decided on Proclamations and Martial Law shadow of the MLRs”. decision, remained unaltered. Kamaluddin 14.4.1980. Both the cases were decided Regulations. Since the authority of the Hossain, C. J., however, held at para-10, after the Fifth Amendment was passed on Chief Martial Law Administrator is not “It is apparent from the above Judgment page 221: April 6, 1979, by the Second Parliament. challenged and the vires of the relevant that the effect of the Proclamation was that A question although was not raised but yet Martial Law Regulation is also not the Constitution is supreme only when the “It is to be observed that when an authority may arise that since those two cases were challenged, I do not find any good reason Martial Law is not near by and even long is vested with a jurisdiction to do certain decided after the enactment of the Fifth for making reference to Asma Jilani's case”. after the lifting of the Martial Law, on the acts and in the exercise of that jurisdiction Amendment whether it can be said that the face of its bare shadow, the Constitution he does it wrongly or irregularly the action Appellate Division approved the Fifth The comment of the High Court Division with its 'supremacy' becomes a worthless can be said to be done within the purported Amendment, at least impliedly? However, on the above judgment is that the Appellate sheaf of papers. Whether we like it or not exercise of his jurisdiction. But an act it is not, since the vires of the Fifth Division found : the status of the Constitution was reduced which is manifestly without jurisdiction, Amendment was not under challenge in “I) The Constitution continued subject to to such an ignoble shambles by the such as the property which not being an any of those two appeals, even indirectly. the Proclamations. Proclamations, the MLRs and the MLOs abandoned property within the meaning of The issues involved in those two cases which would have blushed even Henry VIII Presidenual Order 16 of 1972 is declared to were no where near the Fifth Amendment. ii) The Supremacy of the Constitution or Louis XIV. During the reign of Henry be so, or in case of judicial or quasi judicial In Ehteshamuddin's case the issues were: cannot by any means compete with the VIII in the 16th Century, the Proclamations act which is coram non judice, the use of the “i) Whether the proceedings of the Special Proclamation. iii) The Chief Martial Law were issued by the King but in pursuance of expression 'purported exercise' in the Martial Law Court could be examined after Administrator would not be deemed to be a an Act of Parliament and no prerogative validating clause of Fifth Amendment of the enactment of the Fifth Amendment and person holding an office of profit in the right to issue proclamation was allowed the Constitution cannot give such act the the Proclamation made on April, 7, 1979 by service of the People's Republic of even to the King of England by the Chief protection from challenge, it being ultra the 87 CMLA, withdrawing the Martial 129 130 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

L a w a n d r e v o k i n g t h e e a r l i e r delivered again by himself, and also the of a decision and not the finding of a fact or are plainly wrong, and especially where Proclamations. case of Mia Fazal Ahmed V. The State PLD the conclusion reached by the Court as held the subsequent course of judicial decisions ii) The extent of protection given under the 1969 SC 241 held that in those cases no in the case of Dalbir Singh V. India, AIR has disclosed weakness in the reasoning on Fifth Amendment. question was raised as to the validly of the 1979 1384. Moreover, as held in the case of which they were based and practical iii) Whether the decision of the Martial Law Order or of the Provisional Bangladesh V. Mizanur Rahman, 52 DLR injustice in the consequences that must Government can be called in question under Constitution Order and therefore it is (AD) 149 this Division having the power of flow from them, it is the duty of the House Article 102 of the Constitution despite the incorrect to say that the Supreme Court had review is not bound by a view earlier taken of Lords to overrule them”. Proclamation of April 6, 1979”. given any legal recognition to the regime of by this Division. General Yahya Khan. 88 We are also of the Further this doctrine of precedent, It is thus apparent that the vires of the Fifth view that simply because the laws made by Further the role of stare decisis in however, cannot control questions Amendment to the Constitution was not the Martial Law Authorities and actions constitutional interpretation is also very involving the construction and under challenge in any of the above cases. taken under it were considered by this insignificant particularly when the earlier interpretation of the Constitution or at least This is also admitted by the learned Division in the cases of Halima Khatun, decision is manifestly wrong. In this regard does not apply with the same force to the Additional Attorney General and also the Joynal Abedin, Enteshamuddin and in Asma Jilani's case (supra) at page 139, decisions on constitutional questions as to learned Advocate for the respondent no. 3. Nasiruddin and in those cases Martial Law 168-169, the Chief Justice quoted with other decisions. Even though the previous Besides, at paragraph-25 of the Judgment it being not declared ultra vires the approval, the statement in Corpus Juris decisions will not be entirely disregarded is categorically stated that neither the Constitution, those laws will not attain Secumdum which is as follows; 89 “The and may, in case of doubt, control the authority of the person who proclaimed validity. Further, as pointed out earlier, in doctrine of stare decisis cannot be invoked views of the Court. Martial Law nor the vires of the Martial none of those case, the invalidity of the to sustain, as authority, a decision which is Law Regulations was challenged in the said Fifth Amendment was challenged and so in conflict with the provisions of the state Henry J. Abrahams in his “The Judicial case. In Nasiruddin's case, the issue was those cases can not operate as precedent for Constitution”. Process” quoted Douglas J of the US whether the writ abated, in view of sub- the validity of the Fifth Amendment. As regards the stare decisis, Halsburys Supreme Court saying that paragraph (1) of paragraph 5 read with Accordingly there is no substance to the Laws of England states as follows: “a judge looking a constitutional decision paragraph 4 of Martial Law Regulation No. submission of the petitioners that the “In general the House of Lords will not may have compulsions to revere past VII of 1977. This case has got no nexus with decisions in the above cases touching the overrule a long established course of history and accept what was once written; the Fifth Amendment. actions of the Martial Law authorities decisions except in plain cases where but he remembers above all also that it is provide some binding precedents under serious inconvenience or injustice would the “Constitution which he swore to As it appears the High Court Division also Article 111 of the Constitution and so the follow from perpetuating an erroneous support and defend, not the gloss which his stated that similar question as to validity of actions of martial Law authorities can not construction or ruling of law. The same predecessor may have put on it”. Martial Law was also faced by Hamoodur be challenged in the Court. In order to apply considerations do not apply where the Rahman, C.J. in Asma Jilani's case wherein the provision of Article 111 an issue must decision, although followed, had been In dealing with ratio decidendi to operate his Lordship considering the case of be raised and deliberated upon and decided frequently questioned and doubted. In such as a precedent, Salmond in jurisprudence Muhammad Ismail V. The State, PLD 1969 before it can operate as a binding precedent. a case it may be overruled by any Court of 12th Edition page 183 observed:- SC 241 in which the judgment was Further what is binding as a law is the ratio superior jurisdiction. When old authorities “Where there are several different 131 132 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

judgments, as in a case on appeal, the ratio diclum as it was made while dealing with anything but correct. Conclusions or challenged those in all these years, as such, must be ascertained from the judgments of the Eighth Amendment and the Fifth inferences based on the facts and deemed to be waived or acquiesced. Those those in favour of the final decision. A Amendment was not in issue in the above circumstances may vary with the change of arguments are neither legal nor logical. dissenting judgment, valuable and decision and the observation was also social out-look or political situation but Those arguments would not have been important though it may be, cannot count as uncalled for and thirdly, no other judges in what is legally wrong remains wrong for accepted even before the Star Chamber not part of the ratio, for it played no part in the the said case agreed with the said ever. to speak in the dawn of 21st century. court's reaching their decision. It may observation and as such it cannot be treated happen in an 90 appeal court that all the as ratio decidendi so as to have binding Similarly, if there is a violation of law, it Further, the answer in this respect has been judges concur in the decision but each one force under article 111. It may be noted here remains a violation for all time to come aptly given by Denning L.J in Oacker V gives different reasons for it. In such a case that four learned judges heard the appeal with consequential and inevitable results. Packer (1953)2 All ER 127 at page – 129 H one can only follow the advice of Lord and out of them only M H Rahman, J. The law of adverse possession has got no “ What is the argument on the other side ? Dunedin, who said that if it is not clear what concurred with Shahabuddin J's decision application in case of unconstitutional acts Only this, that no case has been found in the ratio decidendi was, then it is no part of a t h a t E i g h t A m e n d m e n t w a s and events. One must not loose sight that which it has been done before. That later tribunal's duty to spell out with great unconstitutional and not with the above the Constitution is supreme and every argument does not appeal to me in the least. difficultly a ratio decidendi in order to be quoted observation of Shahabuddin J person in the Republic, be he is a servant of If we never do anything which has not been bound by it.” regarding Fifth Amendment. the Republic or an ordinary citizen, owe his done before, we shall 92 never get unquestionable, unqualified and absolute anywhere .The law will stand still while the The petitioners, relying on the views of The next submission of the petitioners that loyalty to the Constitution. Any attempt to rest of the world goes on, and that will be Shahabuddin Ahmed, J expressed in Anwar the Fifth Amendment have been accepted deface the Constitution or to make it bad for both”. Hossain's case to the effect that in spite of by the people and so it cannot be challenged subservient tantamounts to the offence of these vital changes from 1975 by in view of the principle of waiver and sedition of worst kind. The Fifth Accordingly, we are also of the view that it destroying some of the basis structures of acquiescence by delay. 91 In this regard the Amendment sought to legalize such is far, far better thing that we do now, what the Constitution nobody challenged them in High Court Division held as follows : offences committed by the Martial Law should be done in the interest of justice, Court after revival of the Constitution and Authorities and the learned the Advocates even it was not done earlier. consequently they were accepted by the “Let us now consider the contention that for the respondents submitted that it cannot people and by their acquiescence have whether the vires of the Martial Law b e q u e s t i o n e d , b e c a u s e t h o s e We have already held that making of the become part of the Constitution, submitted Proclamation etc. and the Fifth Proclamations etc. were made by the Constitution subordinate and subservient that in view of the principle of acquiescence Amendment, has become barred by waiver Martial Law Authorities, that the Fifth to the Martial Law Proclamations, the writ petition is not maintainable. and acquiescence, due to long delay in Amendment itself provided that the Regulations and Orders are absolutely challenging those provisions. It was further ratification, confirmation and the illegal, void and non-est in the eye of law. However, the above view does not depict contended that this delay shows that the validation of those Proclamations etc. and So any attempt to legalise this illegality in the correct law as can be seen from the people of Bangladesh had already accepted the actions taken thereon cannot be any manner or method and by any number of decisions cited hereinabove and the Fifth Amendment, ratifying the Martial questioned before any Court, that it is Authority or Institution, how high so ever, secondly this statement is simply an obiter Law Proclamations etc. This proposition is beyond question because no body is also void and non-est and remains so for 133 134 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

ever. an unconstitutional action, conduct, Limited V. The Commonwealth (1946) 72 predates it”. behaviour or acts. In such a situation, the C.L.R 269, the validity of the land Further, if the Constitution is wronged, it is cause of action is recurring till such acts are Acquisition Acts 1906-1936 were In the case of Motor General Traders V. a grave offence of unfathomed enormity judicially considered. Constitutional challenged. In deciding the issue in the State of Andhra Pradesh AIR 1984 SC 121, committed against each and every citizens questions are of utmost national as well as High Court of Australia, Dixon J. held at in considering the validity of section 32(b) of the Republic. It is a continuing and of legal interest and mere collateral page- 289: of A.P. Buildings Control Act of violative at recurring wrong committed against the observation does not carry much of an Article 14 of the Constitution of India, Republic itself. It remains a wrong against importance than a bare passing remark “……..the plaintiffs next proceed to Venkataramiah, J., held at para –24: future generations of citizens. As such, without any conviction. impugn the validity of the Lands there cannot be any plea of waiver or Acquisition Act 1906-1936 itself. Time “24. It is argued that since the impugned a c q u i e s c e n c e i n r e s p e c t o f In the case of Lois P-Myers V. United does not run in favour of the validity of provision has been in existence for over unconstitutionality of a provision or an Act States 272 US 52 (1926) the Tenure of legislation. If it is ultra vires, it cannot gain twenty three years and its validity has once of Parliament. Office Act of 1867 and an Act of Congress legal strength from long failure on the part been upheld by the High Court, this Court of 1876, were declared invalid after more of lawyers to perceive and set up its should not pronounce upon its validity at As stated earlier the United States of than 50 years after its enactment. invalidity. At best, lateness in an attack 94 this late stage. There are two answers to this America during its long and eventful upon the constitutionality of a statute is but proposition. First, the very fact that nearly history, also passed through many a In the case of Proprietary Articles Trade a reason for exercising special caution in twenty three years are over from the date of turbulent periods but none of its Association V. Attorney General of Canada examining the arguments by which the the enactment of the impugned provision amendments was made for anything but 1931 All ER 277 PC, the vires of Combines attack is supported.” and the discrimination is allowed to be further advancement of civilization and Investigation Act (1927) and Section 498 of continued unjustifiably for such a long humanity but not to legalize illegal acts. Its the Criminal Code (1927) were under In the case of Frederick Walz V. Tax time is a ground of attack in these purpose is not to engineer or as a device to challenge. In considering the question, Commission of New York 25 L Ed 2d 697 case.…….The second answer to the above hide the illegal activities of usurpers or Lord Atkin for the Board held at page- (397 US 664) (1970), grant of property tax contention is that mere lapse of time does dictators but for achieving further 280A: exemptions under the New York not lend constitutionality to a provision improvements, further refinements of the Constitution, to religions organizations which is otherwise bad. Time does not run constitutional position of the citizens of a “Their Lordships entertain no doubt that were challenged on the ground of violation in favour of legislation. If it is ultra vires, it Republic. This is the true spirit for time alone will not validate an Act which, of First Amendment of U.S. Federal cannot gain legal strength from long failure amendment of a Constitution, the supreme when challenged, is found to be ultra vires; Constitution. In deciding the issue, Chief on the part of lawyers to perceive and set up law of the Republic. If the Court finds that nor will a history of a gradual series of Justice Burger held at para – 12, page – 706: its invalidity. Albeit, lateness in an attack the amendment is affected for a collateral advances till this boundary is finally “[12] It is obviously correct that no one upon the constitutionality of a statute is not and illegal purpose, the Court will not 93 be crossed avail to protect the ultimate acquires a vested or protected right in a reason for exercising special caution in slow to declare it so in exercise of its high encroachment.” violation of the Constitution by long use, examining the arguments by which the constitutional duties ordained upon it. even when that span of time covers our attack is supported” (See W. A. Wvnes: There is no law of limitation in challenging In the case of Grace Brothers Proprietary entire national existence and indeed 'Legislative, Executive and Judicial 135 136 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Powers in Australia', Fifth Edition, p. 33). that the Appellate Division in Anwar any confusion in these regards. on the ground that it has altered the basic We are constrained to pronounce upon the Hossain Chowdhury's case already refused structure of the Constitution.” validity of the impugned provision at this to consider the past amendments of the The main plank of the above noted late stage…..because the garb of Constitution which had admittedly arguments are based on an observation of On the basis of this observation, the learned constitutionality which it may have destroyed the basic structure of the Shahabuddin Ahmed, J., in the case of Advocates for the respondents stoutly possessed earlier become 95 worn out and Constitution, as such, the learned Advocate Anwar Hossain Chowdhury etc. V. submitted that the Fifth Amendment has its unconstitutionality is now brought to a submitted that it is now too late in the day Bangladesh 1989 BLD (Spl.) 1. The said been accepted by the people of Bangladesh successful challenge.” after a delay of about 26 years since the observations were made at para-332 of his by acquiescence and is now part of the These well reasoned decisions only confirm Constitution (Fifth Amendment) Act was Lordship's Judgment: Constitution, so also Martial Law culture our view that the plea of waiver or passed, to challenge its vires in view of the and jurisprudence and cannot now its acquiescence is no ground in considering above decision of the Appellate Division. “In spite of these vital changes from 1975 validity be challenged all over again. The the of vires of a constitutional amendment by destroying some of the basic structures learned Advocates argued these or for that matter any law. Validity of an Act The learned Advocate in effect wanted to of the Constitution, nobody challenged contentions on the basis of the decision of of Parliament effecting an amendment of impress upon us that the vires of the them in court after revival of the the Supreme Court of India in the case of the Constitution is to be considered on its Constitution (Fifth Amendment) Act, 1979, Constitution; consequently, they were Golak Nath V. State of Punjab AIR 1967 own merit as to whether such an had already been duly considered by the accepted by the people, and by their SC 1643 but without at all appreciating the amendment violates the Constitution itself Appellate Division in the case of Anwar acquiescence have become part of the context and perspective of the said even on a remote manner or not, but delay in Hossain Chowdhury etc. V. Bangladesh Constitution. In the case of Golak Nath, the decision, as such, it is necessary to challenging any such amendment, on its 1989 BLD (Spl.) 1 and since the Court Indian Supreme Court found three past recapitulate the said decision and its own, is not a valid objection to such a found on the basis of the decision in Golak amendments of their Constitution invalid background. challenge. Nath's case that the said constitutional on the ground of alteration of the basic amendment was accepted by the people of structures, but refrained from declaring In Kesavananda Bharat's case, AIR, (SC) Rgarding the submission of the petitioners Bangladesh and became part of the them void in order prevent chaos in the Sikri, C.J.explained the matter at para-487 that the Appellate Division in Anwar Constitution by general acquiescence, the national life and applied the Doctrine of as follows: Hossain's case already refused to consider legality of the said Constitution (Fifth Prospective Invalidation for the future. In the past amendments of the Constitution Amendment) Act, cannot now be re- our case also the past amendments which “In this connection I may deal with the which affected the basis structure of the opened all over again. were not challenged have become part of argument that the device of Art. 31B and Constitution, the High Court held as the constitution by general acquiescence. the Ninth Schedule has up till now been follows: These contentions raised on behalf of the But the fact that basic structures of the upheld by this Court and it is now too late to respondents, on the face of it have no legs to Constitution were changed in the past impeach it. But the point now raised before “Referring to an observation of stand on. These contentions are 96 cannot be, and is not, accepted as a valid us has never been raised and 97 debated Shahabuddin Ahmed, J.(as his Lordship fallacious, misconceived and have no ground to answer the challenge to future before. As Lord Atkin observed in then was), Mr. Akhtar Imam, Advocate, on substance. However, we shall deal with amendment of this nature, that is, the Proprietary Articles Trade Association v. behalf of the respondent no. 3, submitted these contentions in some details to repel Impugned Amendment may be challenged Attorney-General for Canada, 1931 AC 137 138 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

310 at “Their Lordships entertain no doubt M. H. Rahman, J., in Anwar Hossain's case (Fifth Amendment) Act, 1979, was not provisions of this Constitution.” that time alone will not validate an Act at para 442 referring to the self-same judicially considered earlier. As such, there which when challenged is found to be submission of the learned Attorney General is no reason as to why we would not In this regard the High Court Division held ultravires ; nor will a history of a gradual answered as follows:- consider not only the legality of the Martial as follows:- 99 Article 150 of the series of advances till this boundary is Law Proclamations etc. but also its Constitution provides that transitional and finally crossed avail to protect the ultimate “442. After referring to the various past legalization, ratification, confirmation and temporary provisions would be set out in encroachment. amendment particularly the Fourth validation by inserting paragraph 18 in the the Fourth schedule. This provision finds Amendment, the learned Attorney General Fourth Schedule to the Constitution by its place almost at the end of the If any further authority is needed, I may has submitted that the Constitution has virtue of Section 2 of the Constitution (Fifth Constitution. It is preceded by Article 149, refer to Attorney-General for Australia v. undergone so many radical changes with Amendment) Act, 1979, specially when the the saving clauses for the existing laws and The Queen and the Boilermakers' Society regard to the Preamble, powers of the Rule was issued in that manner and form. followed by three other Articles, namely, of Australia, 1957 AC 288 at p. 328. The President and several other important Article 151, which deals with the repeal of Judicial Committee, while considering the matters that the doctrine of basic structure An effort has also been made by the certain President's Orders, Article 152 question whether certain sections of the merely evokes anamazement why if it is petitioners to apply the principle of estoppel narrates the interpretations of various Conciliation and Arbitration Act, 1904- such an important principles of law (and it and acquiescence to prevent the Fifth words and Article 153 provides the date of 1952 were ultra vires inasmuch as the had already been propounded by the Indian Amendment from being declared ultra vires commencement of the Constitution, its Commonwealth Court of Conciliation and Supreme Court in 1973) it was not invoked but it is a well-established principle that citation and authenticity. Arbitration had been invested with the earlier in this Court. I find no force in this estoppel cannot be pleaded against or in executive powers along with the judicial contention. Because the principle was not respect of a statute, much less to speak of In pursuance to the above Article in the powers, referred to the point why for a invoked in the past the Court cannot be the Constitution. Similarly, there cannot be Constitution, various transitional and quarter of century no litigant had attacked precluded now from considering it.” any acquiescence to hold valid an otherwise temporary provisions were set out in the validity of this obviously illegitimate invalid law. details in the Fourth Schedule to the union, and observed : Under the circumstances, the contentions The learned counsel of the petitioners Constitution. of the learned Advocates for the submitted that Article 150 of the The heading of the Fourth Schedule reads “Whatever the reason may be, just as there respondents that the Fifth Amendment had Constitution provides a bar upon the High as 'µvwš—Kvjxb' and 'A¯'vqx' weavbejx. Its was a patent invalidity in the original Act already been accepted by the people of Court Division to entertain writ in respect of English version is 'Transitional and which for a number of years went Bangladesh by acquiescence, have got no transitional or temporary provision. temporary provisions'. unchallenged, so for a greater number of substance. 98 Regarding the question of res Article 150 reads as follows : years an invalidity which to their Lordships judicata it appears that the order dated ………………………………...... Both Article 150 and heading of the Fourth as to the majority of the High Court has 7.6.1994 passed by the High Court Schedule show that the said Article, as well been convincingly demonstrated, has been Division in Writ Petition No. 802 of 1994 English Text is:- as the Fourth schedule, as set out in disregarded. Such clear conviction must and the Judgment dated 5.7.1999 passed by “150. The transitional and temporary pursuance to Article 150, deals with find expression in the appropriate the Appellate Division in Civil Appeal No. provisions set out in the Fourth Schedule transitional interim measures. A brief judgment.” 15 of 1997 also show that the Constitution shall have effect notwithstanding any other examination of the provisions originally 139 140 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

contained in the Fourth Schedule with its were a legal necessity and could not be ………………………………………… with the enactment and commencement of English text, would make it clear. avoided. ………………………………………… the Constitution on December 16, 1972. Then the High Court Division after quoting ………………………………………… During the period between August 15, paragraph Nos.1 -17 of the Fourth Schedule As such, the purpose of Article 150 is From these words it is so very clear that the 1975 to April 9, 1979, the Constitution was further held as follows: limited upto the commencement of the purpose of Article 150 of the Constitutions made subordinate and subservient to the ………………………………………….... Constitution and of any period mentioned only to protect various provisions, Martial Law Proclamations etc. The “These are provided in pursuance to Article in the Fourth Schedule. The ambit of this functions of different functionaries and all provisions of the Constitution was changed 150. These provisions| were necessary to Article can not be extended beyond the other actions taken since the declaration of at the whims and caprices of the usurpers protect various laws, actions and decisions, commencement of the Constitution or any independence and till the commencement and dictators. We have already found that made, taken or pronounced since the period mentioned in the Fourth Schedule. of the Constitution. As such, the purpose of during the said period democracy was declaration of Independence on March 26, In this regard we must keep in view the Article 150 is limited apparently only for replaced by dictatorship and since 1971. words 'transitional' and ‘temporary' that period and for a specific purpose. November 1975, on the dissolution of the appearing in Article 150. In the Bengali text ………………………………… National Assembly, Bangladesh lost its Jurisprudentially, the necessity for ………………………………… republican character. Besides, Bangladesh of the Article 150 words 'µvwš—Kvjxb' and provisions for transitional and temporary can not even be considered independent provisions cannot be ignored. The 'A¯'vqx' are used. The ordinary dictionary It is very true that the Parliament by during the said period. Earlier, it was following the procedure mentioned in provisions are generally made for the meaning of the word ''µvwš—Kvjxb, conquered by the British Rulers, thereafter Article 142, may add any provision in the purpose of transition from the old legal according to the Bengali Dictionary, it was under the domination of the West Constitution so long its basic structure is order to a new one to ensure continuity of published by Bangla Academy, 6th Edition, Pakistanis. But this time, for all practical the legality of the new State. As such, of not disturbed but Article 150 is a special purposes, Bangladesh was conquered not March, 2005, is ' ' necessity, these provisions were made so Ae¯'v cwieZ©‡bi mgq provision. It deals with only the transitional by any foreign invaders but by Bengali that no legal vacuum occurs during the and the meaning of the word 'A¯'vqx' are and temporary provisions prior to the speaking Martial Law Authorities. period from the time when a new nation commencement of the Constitution. This 'AíKvj 'vqx, '¶Y¯'vqx, ¯'vqx bq Ggb, came into existence till a Constitution of the provision cannot be used to enlarge the Article 150 is certainly not meant to be said nation is framed. Obviously these mvgwqK. Similarly, the meaning of the Fourth Schedule, by addition of the abused by the usurpers for post facto provisions by its very nature, character and word 'transition' according to The Oxford provisions which related to the period after legalization of their illegal and illegitimate purpose, are of transitional and also of Dictionary and Thesaurus, Edited by Sara the commencement of the Constitution. If activities which were beyond the ambit of temporary status and ambit. The facts, Tulloch, 1997, is 'a passing or change from necessary, the Parliament may add any the Constitution. As a matter of fact, circumstances and incidents leading to the one place, state, condition, etc., to another provision to the Constitution by way of realizing that all the Martial Law making of those interim measures were (an age of transition). According to The amendment, without, however, changing Proclamations etc. were un-constitutional, necessary for the smooth transition and Chambers Dictionary, Deluxe Edition, its basic character but cannot enlarge the they sought to make those legal by continuance of the functions of the young Indian Edition, 1993, the meaning of the Fourth Schedule by adding any provision incorporating those provisions as part of Republic of Bangladesh as a legal entity word 'transition' is passage from one place, which is not a provision made during the Constitution. But the Fourth Schedule 100 of a Republic. Those interim measures state, stage, style or subject to another. 'µvwšKvjxb' ('transitional') which ended is not meant for dumping ground for illegal 141 142 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

provisions. Rather, what is wrong and Amendment which were enacted in order to enactments of the Fifth Amendment. The illegal remains so for all time to come. strike down remaining portion of the above chart along with other particulars as Besides, no one can take advantage of his provisions of the Fourth and Fifth given by the High Court Division are own wrongs. Amendment. As will be discussed later on reproduced below: 103 in details, the Fifth Amendment which The Constitution is a sacred document, ratified and validated paragraphs 3A and “Before we discuss the above, as already because it is the embodiment of the will of 18, is ultravires because it ratified and stated the Praclamations (Amendment) the people of Bangladesh. It is not to be validated the Martial Law Proclamations, Order, 1977 (Proclamations Order No.1 of treated as a log book of Martial rules. Regulations and Orders made by the 1977) (Annexure-L-1 to the writ petition), It appears that Paragraph 3A and 18 to the authorities not recognized by the replaced many of the paragraphs in the Fourth Schedule, sought to ratify, confirm, Constitution and Article 142 thereof. Since Preamble and in various provisions of the validate and legalise all illegal and paragraphs 21 to 22 of the Fourth Schedule Constitution. The Proclamation was illegitimate provisions of Martial Law were accomodated in order to protect the published in Bangladesh Gazette Proclamations, Martial Law Regulations Eleventh and Twelveth Amendments by Extraordinary on April 23, 1977. This and Martial Law Orders. Those Provisions way of insertion of para 21 and 22 in the Proclamation made the following changes and the actions taken thereon in violation of Fourth Schedule, therefore all observations in the Constitution, amongst others”: the Constitution, were not only illegal but made by the High Court Division regarding seditious acts on the part of the Martial Law Article 150 and Fourth Schedule and also Authorities, as such, by any stretch of the findings thereof, are hearby expunged. imagination, those provisions and the It was submitted by the petitioners that actions taken thereon come within the PROCLAMATIONS (AMENDMENT) identification of the principles of ORIGINAL CONSTITUTION ambit of the word 'µvwš—Kvjxb' or ORDER, 1977 nationalism, socialism and seclularism by ' t r a n s i t i o n a l ' . A s s u c h , t h o s e the High Court Division as the basic unconstitutional provisions were wrongly structures of the Constitution has no legal 1. First Paragraph of the Preamble: 1. First Paragraph of the Preamble: and illegally thrust in to the Fourth foundation and the same are contrary to the Schedule presumably in the garb of decision given by the Appellate Division in We, the people of Bangladesh, having We, the people of Bangladesh, having transitional and temporary provisions and th Anowar Hossain's case. proclaimed our Independence on the 26th proclaimed our independence on the 26 thereby a fraud has been committed on the day of March 1971 and, through a historic day of March, 1971 and through [a Constitution by such amendments.” 102 We historic war for national independence], As it appears the High Court Division struggle for national liberation, are of the view that the High Court Division established the independent, sovereign prepared a chart showing the paragraphs of established the independent, sovereign unnecessarily dealt with Article 150 of the People's Republic of Bangladesh; original Preamble and Articles 6, 8, 9, 10, Constitution. As it appears paragraphs 21 People's Republic of Bangladesh; 12, 25, 38 and 142 of the Constitution and and 22 as included in the Fourth Schedule also the amended versions of those after are the results of the Eleventh and Twelfeth 143 144 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 ORDER, 1977

2. Second Paragraph of the Preamble: 2. Second Paragraph of the Preamble: be fundamental to the governance of of the other laws of Bangladesh and shall Bangladesh, shall be applied by the State form the basis of the work of the State and Pledging that the high ideals of Pledging that the high ideals of absolute in the making of laws, shall be a guide to of its citizens, but shall not be judicially nationalism, socialism, democracy and trust and faith in the almighty Allah, the interpretation of the Constitute and of enforceable. secularism which inspired our heroic nationalism, democracy and socialism the other laws of Bangladesh, and shall people to dedicate themselves to, and our meaning economic and social justice, form the basis of the work of the State and brave martyrs to sacrifice their lives in, which inspired our heroic people to of its citizens, but shall not be judicially the national liberation struggle, shall be dedicated themselves to, and our brave the fundamental principles of the martyrs to sacrifice their lives in, the war 5. Article-9: 5. Article-9: constitution; for national independence, shall be the The State shall encourage local fundamental principles of the The unity and solidarity of the Bangalee Government institutions composed of Constitution; nation, which, deriving its identity from 3. Article-6: 3. Article-6: its language and culture, attained representatives of the areas concerned sovereign and independent Bangladesh and in such institutions special Citizenship of Bangladesh shall be (1) The citizenship of Bangladesh shall through a united and determined struggle representation shall be given, as far as be determined and regulated by law. determined and regulated by law; citizens in the war of independence, shall be the possible, to peasants, workers and (2) The citizens of Bangladesh shall be of Bangladesh shall be known as basis of Banglaee nationalism. women. known as Bangladeshis. Bangalees. 6. Article-10: 6. Article-8: 4. Article-8: 4. Article-8: (1) The principles of absolute trust and A socialist economic system shall be Steps shall be taken to ensure (1) The principles of nationalism, faith in the almighty Allah, nationalism, established with a view to ensuring the participation of women in al spheres of socialism, democracy and secularism, democracy and socialism meaning attainment of a just and egalitarian national life. together with the principles derived from economic and social justice, together with society, free from the exploitation of man them as set out in this Part, shall constitute the principles derived from them as set out by man. the fundamental principles of state policy. in this Part, shall constitute the (2) The principles set out in this Part shall fundamental principles of state policy. 7. Article-12: 7. Article-12 was deleted. be fundamental to the governance of (1A)Absolute trust and faith in the The principle of secularism shall be Bangladesh, shall be applied by the State Almighty Allah shall be the basis of all actions.] realized by the examination of- in the making of laws, shall be a guide to (2) The principles set out in this Part shall the interpretation of the Constitution and (a) communalism in all its forms; 145 146 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 ORDER, 1977

(b) the granting by the State of political 10 Article-42: 10. Article-42: status in favour of any religion; (2) A law made under clause (1) shall (2) a law made under clause (1) shall © the abuse of religion for political p r o v i d e f o r t h e a c q u i s i t i o n , p r o v i d e f o r t h e a c q u i s i t i o n , purposes; nationalization or requisition with or nationalization or requisition with any discrimination against, or persecution without compensation, and in a case compensation and shall either fix the of, persons practicing a particular religion. where it provides for compensation shall amount of compensation or specify the fix the amount or specify the principles principles on which, and the manner in on which, and the manner in which , the which the compensation is to be assessed compensation is to be assessed and paid; and paid; but no such law shall be called 8. Clause 2 of Article-25 was not there. 8. Article-25: but no such law shall be called in question in question in any Court on the ground in any Court on the ground that it does not that any provision in respect of such [(2) The State shall endeavour to provide for compensation or that any compensation is not adequate. consolidate, preserve and strengthen p r o v i s i o n i n r e s p e c t o f s u c h fraternal relations among Muslim compensation is not adequate. countries based on Islamic solidarity.]

9. Article-38: 9. Article-38: thereon since August 15, 1975, till “2. Amendment of the Second revocation of the Proclamations and the Proclamation. In the Proclamation of the Every citizen shall have the right to form th Every citizen shall have the right to rorm withdrawal of the Martial Law. 8 November, 1975. associations or unions, subject to any associations or unions, subject to any ...... reasonable restrictions imposed by law in All the above changes were made in the ...... the interests of morality or public order: reasonable restrictions imposed by law in English text of the Constitution but the ...... Provide that no person shall have the right the interests of public order or public original Bengali version of the Constitution (3) after clause (gc), the following new to form, or be a member or otherwise health. clause shall be inserted, namely: remained as it was. The Bengali version of taken part in the activities of, any “(gd) the provisions of the Bengali text of those and other and further changes in the the Constitution shall be amended in the communal or other association or union Constitution were made by the Second manner specified in the Second Schedule which in the name or on the basis of any Proclamation (Fifteenth Amendment) to this Proclamation;” religion has for its object, or pursues, a Order, 1978 (Second Proclamation Order political purpose. No. IV of 1978). Section 2, Clause (3) reads Earlier, some minor changes were made in Article 142 by the Constitution (Second as follows: Amendment) Act, 1973 but subsequently Article 142 and the Bengali version of 147 148 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Article 38 were also changed by the above ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) Second Proclamation Order No. IV of ORDER, 1977 1978.

ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 149 150 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 ORDER, 1977 151 152 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 ORDER, 1977

12. Article-142: 12. Article-142: Notwithstanding anything contained in Notwithstanding anything contianed in the Constitution- this Constitution – (a) any provision thereof may amended (a) any provision thereof may be by way of addition, alteration, amended by way of addition, alteration, substitution or repeal by Act of substitution or reprel by Act of Parliament: Parliament: Provided that- Provided that- (i) no Bill for such amendment shall be allowed to proceed unless the longtitle (i) no Bill for such amendment shall be there expressly states that it will amend a allowed to proceed unless the long title provision of the Constitution; thereof expressly states that it will amend (ii) no such Bill shall be presented to the a provision of the Constitution; President for assentunless it is passed by the votes of not less than two-thirds of the (ii) no such Bill shall be presented to the total number of members of Parliament; President for assent unless it is passed by (b) When a Bill passed as aforesaid is the votes of not less than two-thirds of the presented to the President for his assent he total number of members of Parliament. shall, within the period of seven days after the Bill is presented to him assent to the (b) when a Bill passed as aforesaid is Bill, and if he fails so to do he shall be presented to the President for his assent deemed to have assented to it on the he shall, within the period of seven days expiration of that period. after the Bill is presented to him assent to the Bill,and if he fails so to do he shall be deemed to have assented to it on the expiration of that period. (IA) Notwithstanding anything contained in clause (I), when a Bill, passed as aforesaid, which provides for the amendment of the Preamble or any 153 154 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Regarding the inclusion of the words The High Court Division then quoting the ORIGINAL CONSTITUTION PROCLAMATIONS (AMENDMENT) ORDER, 1977 “BISMILLAH” the High Court Division provisions of original Article 8(1) and its stated as follows: amended version and sub Article (1A) of provisions of articles 8,48 [or] 56 or this The words, commas and brackets the same as shown in the above chart, held article, is presented to the President for 'BISMILLAH-AR-RAHMAN-AR- as follows assent, the President, shall, within the RAHIM (In the name of Allah, the ………………………………………….. period of seven days after the Bill is Beneficent, the Merciful) were inserted ………………………………………….. presented to him, cause to be referred to a before the word 'PREAMBLE' by the It is true that partition was made, more or referendum the question whether the Bill above Order. 112 less on the basis of religion but India should or should not be assented to. The High Court Division then, regarding declared itself as a secular nation. Mr. (IB) A referendum under this article shall the first paragraph of the preamble held that Mohammad Ali Jinnah, the first Governor be conducted by the Election in the first paragraph of the preamble in the General of Pakistan, although in his first Commission, within such period and in original Constitution the words 'a historic speech made on September 11, 1947, such manner as may be provided by law, war for national independence' were hinted that in Pakistan people of all religion amongst the persons enrolled on the substituted for the original words 'a historic would be equal without any religious electoralroll prepared for the purpose of struggle for national liberation' discrimination but its first Constitution, election to {Parliament. …………………...... made in 1956, declared the country as the (IC) On the day on which the result of the ...... Islamic Republic of Pakistan. The referendum conducted in relation in a ...... Constitution of 1962 made no difference. Bill under this article is declared, the Regarding the original second paragraph of Pakistan, since the death of its first President shall be deemed to have- the Preamble and its amended version, Governor General, reduced itself into a which have been shown in the above chart, theoeratic nation as happened in medieval (a) assented to the Bill, if the majority of the High Court Division held that a plain Europe. the total votes cast are in favour of the reading comparing the original Preamble Bill being assemed to; or with the amended one would unmistakably But the high ideals of equality and show certain basic changes as the original fraternity so very gloriously enshrined in (b) withheld assent therefrom, if the Preamble clearly show that one of the four Islam could not spare the majority majority of the total votes cast are not in fundamental basis of our nation-hood and population of the erstwhile East Pakistan favour of the Bill being assented to. inspiration of liberation was “secularism” from total discrimination in all spheres of but the amended Preamble, specially the the State without any exception. The [(ID)] Nothing in clause (IC) shall be second paragraph, show that 'secularism' erstwhile East Pakistan was treated as a deemed to be an expression of was omitted from the Preamble thus colony of West Pakistan and when voice confidence or no-confidence in the changing the basic character of the was raised praying for at least near equal Cabinet or Parliament.] Constitution. treatment, steam roller of oppression was 155 156 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

perpetrated on the people of the Eastern religion. but would leave such faculties with the conventions which define the composition wing. After a long 23 years, the first general people themselves. Bangladesh was dreamt and powers of organs of the state, and election in Pakistan was held in 1970 with As such, the framers of the Constitution, of as a secular country and came into being regulate the relations of the various state one of the objects, to frame a Constitution. from their earlier bitter experience during as a secular country, as such, its organs to one another and to the private The National Assembly was scheduled to be the liberation war, gave effect to the above Constitution was framed on that ideal, but citizen. A “Constitution” in the concrete convened at Dhaka on March 3, 1971, but lofty ideals of our martyrs which were any change from such a basis would sense is the document in which the most General Yahya Khan, the President and reflected in the Preamble and Article 8(1) constitute a change of the basic structure of important laws of the constitution are CMLA postponed the Assembly, forcing a n d o t h e r p r o v i s i o n s o f o u r the Constitution. authoritatively ordained.”(Quoted from O. the country into turmoil. Thereafter, on the Constitution.Those are the basic structures Hood Phillips' Constitutional and night following March 25, 1971, General of the Constitution which were changed on Such belief would reside with the people in Administrative Law, Seventh Edition, Yahya Khan and his military government replacement of the provisions of the accordance with their free will and shall 1987, at page-5). never be interfered with, either by the State unleashed the worst genocide in the history original Preamble and Article 8(1) by the or any section of the population, however of mankind on the unarmed people of the Proclamation Order No. 1 of 1977 and majority they may be. Such a secular From the discussions made above on the erstwhile East Pakistan, and the 'valient' Second Proclamation Order No. IV of concept would be inhibited in a modern concept of written Constitution it would armed forces of Pakistan brutally killed 1978, but such replacements changed the democratic Constitution unless, of course, a p p e a r t h a t t h i s i n s t r u m e n t i s millions. The vast majority of the people of secular character of the Republic of it is a theocratic State. predominantly for the purpose of this part of the world are God-fearing regulating the rights and obligations of the Bangladesh into a theocratic State. According to Thomas Paine, the purpose of Muslims but their religion could not even the Constitution is : people vis-à-vis the State and vice versa save the fellow Muslims from being In this connection it should be remembered but it has got nothing to do with the persecuted, killed and raped and their that the purpose of a Constitution is not to “A Constitution is not the act of a religious beliefs of its people. belongings being plundered and all describe the tenets of a particular religion government, but of a people constituting a government, and a government without a ironically in the name of Islam. Bangladesh came into being with the basic but is an Instrument creating the high c o n s t i t u t i o n i s p o w e r w i t h o u t institutions of the Republic and its right……………….A constitution is a concepts of nationalism, socialism, Of necessity and being forced, the unarmed relationship with its people. A Constitution thing antecedent to a government; and a democracy and secularism. As such, its simple minded Bangalees of the then East upholds and guarantees such dignity to the government is only the creature of a Constitution was framed with those ideals Pakistan took up arms and rose against the people of the Republic with its own rights constitution.” (1792) (Quoted from Hilaire in view. It was never intended to be a B a r n e t t o n C o n s t i t u t i o n a l A n d tyranny for their survival. After liberation, theocratic State. Rather, it was one of the and also its obligations to the Republic in a administrative Law, Fourth Edition, 2002, such oppression and persecution on the broader sense but the religion of a Page-7). major reasons for the Bangalees for their Bangalee population was very much fresh particular section or sections of people costly struggle for liberation. in their minds. They were determined to shall neither required to be highlighted nor According to O. Hood Phillips, the purpose establish an independent sovereign nation be interfered with in an ideal and model of the Constitution is : In this connection it should be noted that the obligation of the State, in this respect, is based on the democratic principles of democratic form of Republic. The “The constitution of a state in the abstract to ensure that all persons in the Country can equality and social justice where nobody Constitution of such a Republic would sense is the system of laws, customs and perform their respective religious will be discriminated on the ground of never contain or refer to a particular faith functions. Besides, the State is to ensure 157 158 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

that no discrimination is made between the profess, practice and propagate religion. denominations.(Page–2000),……” Order No. IV of 1978, by making omitting followers of one religion over the other. Art. 26 grants to every religious K. Ramaswamy, J., quoting Dr. S. secularism, one of the State policey from denomination or any section thereof, the Radhakrishnan and Mahtma Gandhi, the Constitution, destroyed one of the basis The High Court Division also referred the right to establish and maintain institutions explained the concept of secularism as a of our struggle for freedom and also case of S. R. Bommai V. Union of India AIR for religious purposes and to manage its 1994 SC 1918 wherein the addition of basic feature of Constitution of India, at changed the basic character of the “Socialist” and “Secularism” the own affairs in matters of religion. These para –124: Republic as enshrined in the Preamble as Constitution of India in the year 1976 was two articles clearly confer a right to well as in Article 8(1) of the Constitution. 1 considered. Ahmedi, J. (as his Lordship freedom of religion. ………………State's “124. ………….The Constitution has then was) in considering secularism as one revenue cannot be utilised for the chosen secularism as its vehicle to establish The High Court Division then quoting of the basic structures of the Constitution promotion and maintenance of any religion observed at para – 28: an egalitarian social order. I am respectfully original Aticle 6 of the Constitution and its or religious group that secularism is a basic in agreement with our brethern Sawant and amended version as shown in the above feature of our Constitution………. ” (Page- “Notwithstanding the fact that the words Jeevan Reddy, JJ. In this respect. chart held as follows: 1951-52) 'Socialist', and 'Secular'were added in the Secularism, therefore, is part of the ………………………………………… Preamble of the Constitution in 1976 by the fundamental law and basic structure of the ………………………… In considering the concept of secularism, 42nd Amendment, the concept of Indian political system to secure all its ………………………………………… Sawant, J., held at para -88: Secularism was very much embedded in people socio-economic needs essential for ………………………… “These contention inevitably invite us to our Constitutional philosophy……By this man's excellence and of moral well being, The inhabitants of this part of the world discuss the concept of secularism as amendment what was implicit was made fulfillment of material prosperity and irrespective of their cast, creed and religion accepted by our Constitution. Our explicit. The Preamble itself spoke of political justice.” (Page–2019 -20) were known as Bangalees from time Constitution does not prohibit the practice liberty of thought, expression, belief, faith Shahabuddin Ahmed, J. in Anwar Hossain immemorial. In their lighter moments they of any religion either privately or publicly . and worship. While granting this liberty the Chowdhury's case evaluates Constitution laugh as a Bangalee, in their despair they ……Under Articles 14, 15 and 16, the Preamble promised equality of status and in this manner at para-272, page-118: cry as a Bangalee, they record their Constitution prohibits discrimination opportunity. It also spoke of promoting “On the one hand, it gives out-lines of the feelings in Bangla, their history, their against any citizen on the ground of his fraternity, thereby assuring the dignity of state apparatus, and aspirations of the philosophy, their culture, their literature religion and guarantees equal protection of the individual and the unity and integrity of people; it gives guarantees of fundamental are all in Bangla.These finer features of life law and equal opportunity of public the Nation. While granting to its citizens rights of a citizen and also makes him aware and intellects gave them an identity as a employment.(Page- 2000) …….These liberty of belief, faith and worship, the of his solemn duty to himself, to his fellow race in India for more than thousand years. provisions by implication prohibit the Constitution abhorred discrimination on citizen and to his country.” This was so recorded in the memoirs of establishment of a theocratic State and grounds of religion etc., but permitted Hiuen Tsang, Ibn Batuta and many other prevent the State either indentifying itself special treatment for Scheduled Castes and No wonder his Lordship did not see any travellers. Even during the reign of with of favouring any particular religion or Tribes, vide Arts. 15 and 16. Art. 25 next role of religion in the Constitution itself. As Emperor Akbar, this part of his empire was religious sect or denomination. The State is provided, subject to public order, morality such, from the discussions made above, it is known as 'Sube Bangla'. As such, this enjoined to accord equal treatment to all and health, that all persons shall be entitled very clear that the Proclamations Order No. identity as a Bangalee was not a mere religions and religious sects and to freedom of conscience and the right to 1 of 1977 and the Second Proclamation illusion or frivolous idiosyncrasy but has a 159 160 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

definit character which separated them same as shown in the above chart found that politically and also to destroy their cultural by declaring Martial Law seized the State from other races in Pakistan. The identity of this concept of Bangalee nationalism as heritage and above all their pride the Power. General Ziaur Rahman by Punjabees, Pathans etc might have faded provided in original Article 6 was further Bangalee Nationalism but instead, with the Proclamations Order No. 1 of 1977 and the away in their new identity as Pakistanes but expounded and explained in the original rise of oppression, Bangali nationalism got Second Proclamation Order No. IV of the Bangalees consciously kept their Article 9 of our Constitutin. new exuberance. The Pakistani Military 1978, deleted Article-9 altogether, separate entity in their culture and literature Janta instead of settling the issues containing the basis of Bangali inspite of their Pakistani citizenship. This The High Court Division held :- politically unleashed the worst genocide in nationalism. This portion of the was their pride. Their such entity as ………………………………………...... the history of mankind. One of their prime Proclamation Order did exactly what the Bangalee blooms in their weal and woe. ………………………………………...... objectives was to destroy and sweep away Pakistani Military Janta wanted to do in This sentiment may not have strict legal This provision glorified our concept of our Bangalee nationalism from root, once Bangladesh in 1971. The similarity of value but this very sentiment of Bangalee Bangalee nationalism. The framers of the for all and make the Bangalees a hundred intentions is so stark that it makes one start nationalism paved the way to the ultimate Constitution in their wisdom, thought it percent Pakistani. In order to achieve such with surprise. independent Bangladesh which has a very necessary to specifically spell out the basis an ill-advised end they did not only hesitate definite legal existence. As such, no body, of Bangalee nationalism in the Constitution to kill millions of innocent Bangalees and We fail to understand why Article 9 had to how high so ever, must not ignore or itself. There may be many reasons for it. plunder their belongings but also did their be repealed completely and possibly in undervalue the words 'Bangla' or 'Bangalee' One reason may be that from time best to change their identity as Bangalee. order to camouflage the repealed Article, it because since 1952, beginning with the immemorial, this part of the world which is was substituted with a new one which has martyrs of language movement, thousands known as Bengal during British regime was In this historical context, the framers of the no nexus with Bangalee nationalism. of Bangalees gave their lives for their right continuously invaded by Shok, Hun, Constitution in their anxiety, specifically ………………………………………… not only to speak Bangla but also to live as Pathans, Moguls and lastly by the English. spelt out the basis of Bangalee nationalism ………………………………………… such Bangalee. It is their basic right and As such, the Bangalees although retained in the Constitution so that there should not ………………………………………...... very naturally, their Constitution their entity through their literature and be any confusion about their entity as recognised it. cultural heritage but always governed by B a n g a l e e . B e c a u s e , t h e y h a d The substituted Article 9 is in respect of the people other than Bangalees. That is apprehensions like Justice Davies that this promotion of local Government Since this unwanted change of identity from one of the reasons, Bengal voted so much in country may not always 'have wise and institutions but Articles 11, 59 and 60 'Bangalee' to 'Bangladeshi' does not favour Muslim League in 1946 election on humane rulers……… wicked men, adequately provided for such institutions, commensurate with our national entity, this the Pakistan issue but even after ambitious of power, with, hatred of liberty as such, this substitution was unnecessary. amendment goes to the root of our Bangalee independence from British yoke, in no and contempt of law, may fill the The new provision, however important it nationalism”. time, their enthusiasm got a jolt when Mr. place………….” may appear but cannot delete the basis of Jinnah declared at Dhaka in 1948 that Urdu our Banglaee nationalism, contained in The High Court Division then quoting the would be the only state-language of Our history shows that their anxiety was original Article 9, for which the people of provisions of original Articles 6 and 9 of the Pakistan. This was followed by a long not for nothing but was painfully correct Bangladesh fought for liberation and Constitution and amended version of the history of conspiracies to cripple the because inspite of Article 7 of the martyrs made their supreme sacrifices. The majority East Pakistan economically, Constitution , as stated earlier, the usurpers original Article 9 glorified our Bangalee 161 162 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Nation-hood, possibly for the first time in Constitution as one of the fundamental apparently were substituted only to Secularism was one of the ideals for which our history, in recognition of such nation- principles of State Policy. This being one of camouflage the originalArticle-9 and the the struggle for liberation was fought and hood, the Constitution emblemed it as one the basis for our struggle for liberation, this original Article-10 which were two basic own and the framers of the Constitution in its basic structures but its deletion by a provision was one of the basic structures of features of our Constitution. their wisdom in order to dispel any Proclamation Order constituted a betrayal the Constitution. confusion, upheld and protect the said ideal to the freedom fighters and the three Without going into the merit of the of secularism as spelt it out in Article-12 of million martyrs and an insult to our Nation- substituted Article 10, we admit that we do The High Court Division then quoting the the Constitution as one of the fundamental hood”. not find any plausible reason to delete such original provision of Article 12 of the principles of State Policy. Indeed this was a glorious provision for the salvation of Constitution as shown in the above chart, one of the most important basic features of The High Court Division then quoting the fellow human being. which was omitted from the Constitution the Constitution. But the said basic feature provision of original Article 10 of the by the Proclamation Order No. 1 of 1977, of the Constitution was deleted by the Constitution and its amended version as Then regarding Articles 9 and 10 the High held as follows: Proclamation Order No. 1 of 1977 and the shown in the above chart held that original Court Division held as follows:- …………………………………… Second Proclamation Order No. IV of Article 10, being one of the fundamental We have a shrewed suspicion that the …………………………………… 1978 and thereby sought to change the ideals on which the struggle for national substituted Article-9 and Article- 10 were This provision of secularism explained and secular character of the Republic of liberation was fought, was spelt out in the incorporated in the Constitution only as an expounded in Article 12, is one of the most Bangladesh as enshrined in the original Constitution as one of its basic structures excuse for deleting the original provisions important and unique basic features of the Constitution”. and the amended provision provides for because both the substituted provisions are Constitution. Secularism means both participation of women in national life but well provided for. Article-11 read with religious tolerance as well as religious The High Court Division then quoting the this is already well provided for in Article Articles 59 and 60 covers the substituted freedom. It envisages equal treatment to all provision of original Article 25 of the 28, as such, this substitution was Article-9 while Article-28 takes care of the irrespective of caste, creed or religion but Constitution and its amended version as unnecessary and redundant. substituted Article-10. the State must not show any form of tilt or shown in the above chart held as follows: leaning lowards any particular religion ………………………………………… The High Court Division also held This In this connection, it should be either directly or even remotely. It requires ………………………………………… substituted provision has no nexus with the remembered that a provision in the maintenance of strict neutrality on the part ………………………………………… original provision which spelt out Constitution gives only the basic law with of the State in the matters of different This clause-2 is redundant. The original establishment of a socialistic economic wide ideas and the Parliament enacts laws r e l i g i o n s p r o f e s s e d b y v a r i o u s Article-25 itself provides for promotion of system and exploitation free society for to give effect to those ideas. If we examine communities in the State. The State must international peace, security and solidarity Bangladesh. The people of Bangladesh the substituted Article-9 and Article-10 it not seen to be favouring any particular amongst all the nations including of dreamt of such a society for ages. In order would appear that Article-11 read with religion, rather, ensure protection to the course, the Muslim countries, in to establish such an idealistic society the Article 59 and 60 and Article-28 serves the followers of all faiths without any accordance with the charter of the United people of Bangladesh gave their lives. As purposes of those two substituted discrimination including even to an atheist. Nations. As such, its endeavor to foster such, the provision containing such provisions very well and as a matter of fact This is what it means by the principle of further relations amongst only with the idealism, very rightly found its place in the those two Articles are redundant and secularism. Muslim countries based on Islamic 163 164 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

solidarity, as stated in the added clause-2, CMLA. Since the secular character of the No. IV of 1978). CMLA or any person, how high so ever, but can only be explained by its leaning towards Republic was one of the objectives of the only by a Parliament. Thirdly, Major becoming an Islamic Republic from a struggle for liberation, the omission of the In pursuance to the above Order the original General Ziaur Rahman being an usurper to Secular Republic and thereby destroying its aforesaid provision from the Constitution, Bengali text of the part of the Preamble, the Office of the President and in the Office one of the most important and significant as a bid or devise to change its such basic Articles 6, 8, 9, 10, 12, 25(2) and the of the legally non-existent Chief Martial basic feature of our Constitution, namely, character, tantamounts to changing of the Proviso to Article-38 were amended on the Law Administrator, had no authority to secularism”. basic feature of the Constitution. false pretext of persistent demand to repeal change the Constitution. As an Officer of The High Court Division then concluded as the undemocratic provisions although the the Defence Services, he took oath to The High Court Division then quoting the follows: aforesaid provisions are all the glorious protect the Constitution of Bangladesh, but original Aricle 38 of the Constitution and its basic features of the Constitution and had instead, on April 23, 1977, only two days proviso as shown in the above chart, which We have discussed above the various no nexus with the Fourth Amendment. All after assuming the office of President, he was one of the fundamental rights, and the provisions of the Constitution. Those these changes of the basic structures of the illegally and without any lawful authority omission of the above proviso by the provisions were not only the basic features Constitution were sought to be ratified, amended the various provisions of the Second Proclamation (Sixth Amendment) of the Constitution but were also the ideals confirmed and validated by the Fifth Constitution which were the fundamental Order 1976 held as follows: for the struggle for liberation, the corner Amendment apparently by playing fraud basis for the struggle for liberation, by the With the same object to destroy the secular stone of our Constitution. Those ideals upon the members of the Second Proclamation Order No. 1 of 1977 and the character of the Republic and its were the basis for the birth of the Republic Parliament. Second Proclamation Order No. IV of Constitution, the proviso to Article-38 was of Bangladesh. But those basic features of 1978, and made the secular Republic of omitted by the Second Proclamation (Sixth the Constitution were changed by the The pretexts to amend the Constitution in Bangladesh, a theocratic State, thereby the Amendment) Order, 1976 (Second various Martial Law Proclamations. the above manner in the garb of repealing cause of the liberation War of Bangladesh Proclamation Order No. III of 1976). the undemocratic provisions of the was betrayed. …………………………………………… Those Martial Law Proclamation Orders of Constitution incorporated therein by the … … … … … … … . 1975, 1976 and 1977 were incorporated in Constitution (Fourth Amendment) Act, By virtue of the above two Proclamation …………………………………………… the Fourth Schedule to the Constitution by 1975, was altogether misconceived. Firstly Orders all the Proclamations, MLRs and …………………. its amendment as Paragraph 3A. The because the Fourth Amendment of the MLOs were validated and were entered in The above noted proviso to Article-38 was English versions of the provisions Constitution, whatever its political merits the Fourth Schedule to the Constitution as meant to protect the secular character of the discussed above were changed, deleted and or demerits, it was brought about by the paragraph 3A and 6B while paragraph 6A Republic of Bangladesh in spite of one's modified by the Proclamations representatives of the people by an was inserted there earlier by Second fundamental right to form an association as (Amendment) Order, 1977 (Proclamations overwhelming majority members of a Proclamation Order No. IV of 1976. Since envisaged in Article-38, but the above Order No. 1 of 1977). The Bengali versions sovereign Parliament. Secondly, however it was known that in the face of the proviso was omitted by the Second of those very provisions were subsequently undemocratic, the Fourth Amendment may Constitution, those amendments would be Proclamation Order No. III of 1976, made added, deleted or amended by The Second appear to an army commander, the void ab initio, as such, amendment of the by Justice Abusadat Mohammad Sayem, a Proclamations (Fifteenth Amendment) amendment of the Constitution, could not Constitution itself was made in a bid to nominated President of Bangladesh and Order, 1978 (Second Proclamation Order be made even by the President or the validate those Proclamations etc. by the 165 166 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Fifth Amendment. Jeevan Reddy, JJ. In this respect. provisions of the Constitution in respect of Law Regulations and Orders, were Secularism, therefore, is part of the secularism, nationalism and socialism, as promulgated / made during the period from As it appears the High Court Division gave fundamental law and basic structure of the existed on August 15, 1975, will revive. 15 August, 1975 upto April 9, 1979 by detail reasons for not condoning the Indian political system to secure all its However in respect of nationalism, as to be legally constituted authority or by usurpers omission of secularism as was provided in people socio-economic needs essential for discussed later on, we are inclined to and if by usurper whether those legislative original preamble, Articles 8(1), 12 and measures were illegal, void and non east man's excellence and of moral well being, condone the substituted provision of other connected changes made in the and whether the Second Parliament, itself, fulfillment of material prosperity and Article 6. Constitution in this regard. The High Court even by two third majority, could pass any political justice.” (Page–2019 -20) We, Division similarly did not also condone the law repugnant to the Constitution and while deciding the power of the Court of Regarding nationalism though we substitution of Articles 6, 8(1), 9 and other whether the Fifth Amendment is ultravires expressed the view that being political connected Articles of the original judicial review, found that the High Court the Constitution. issue, Parliament is to take decision in this Constitution which dealt with nationalism, Division has the jurisdiction to decide as to regard, but if in place of “Bangladeshi” the socialism and connected matters. whether any act or legislative measure As it appears the grounds on which the word 'Bangalee' is substituted in terms of From the contents of the proceeding of the made by any authority not competent to do Fifth Amendment was challenged before Constitutional Assembly it appears that for the judgment and order of the High Court so and / or such act or legislative measure the High Court Division are that days elaborate discussion was made in Division, then all passports, identity cards, made / done otherwise than in accordance (a) Khandoker Mushtaq Ahmed, Justice A. respect of secularism, nationalism and nationality certificates issued by the socialism and then those were incorporated S.M. Sayem and General Ziaur Rahman with the procedure prescribed by the Government and other prescribed at Chapter 11 of our Constitution which having no authority to assume the post of Constitution and / or are repugnant to the authorities, certificates issued by contained the fundamental principles of President and Chief Martial Law State Policy. provisions of Constitution. As would be educational institutions, visa forms and Administrators and accordingly are discussed lateron in details, by other related documents of the government usurpers and As will be evident from the case of S.R. Proclamations (Amendment) Order No. 1 will have to be changed, reprinted or Bommai Vs. Union of India (supra) which (b) Fifth Amendment negates and is also of 1977 (Proclamation Order No. 1 of reissued. Moreover the Bangladeshi we have dismissed earlier, in the original repugnant to the basis feature of the nationals who will return to Bangladesh as Constitution of India enacted in the year 1977) and by Second Proclamation Constitution. 1949 there was no mention of secularism well as those travelling abroad will also (Fifteenth Amendment) Order 1978 Regarding the point of usurpers it was and socialism. Then in the year 1976 face serious complications with the (Second Proclamation Order No. IV of argued as follows: “socialist” and “secular” were incorporated immigration authorities abroad. Apart from in the Constitution of India by the 42th 1978) omission of secularism and the above and other hackles and Amendment. In this regard in the above substitution of Articles 6 and 10 by the I) On the murder of Bangabandhu Shiekh harassments, this change of the nationality case Ramasyem, J held as follows: authorities not competent to promulgate / Mujibur Rahman, President of the People's would also cost millions from the public make those and by those Orders Republic of Bangladesh, on August 15, “124. ………….The Constitution has exchequer. So for wider public interest the 1975, Khandaker Mushtaque Ahmed in Constitution was also changed in the substituted Article 6 is to be retained. Now chosen secularism as its vehicle to establish total violation of the Constitution, illegally manner not prescribed by the Constitution the question is whether all the legislative an egalitarian social order. I am respectfully seized the office of President of and accordingly those Orders are illegal, measures i.e the Proclamations, Martial in agreement with our brethern Sawant and Bangladesh, as such, he was an usurper. void and non est, Preamble and the relevant 167 168 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

II) He had no authority to function as the As it appears to decide the above issues, at Third Schedule thereto to the effect that the August, 1975, at any time, either in respect President, as such, the Proclamation of first, the High Court Division referred to oath of office of the President of of the whole of Bangladesh or any part Martial Law on August 20, 1975, and his the Proclamations dated 20 August 1975, 8 Bangladesh shall be administered by the thereof, and may again place the whole of tenure as the purported President for November 1975 and 29 November 1975 Chief Justice of Bangladesh and that the Bangladesh or any part thereof under 82(eighty-two) days was illegal. and also different Martial Law Regulations president may enter upon office before he Martial Law by a fresh declaration; and Orders. takes the oath; (d) this Proclamation and the Martial Law III) The assumption of office of a President Regulations and Orders made by me in of Bangladesh by the then Chief Justice of The first is the “Proclamation” dated 20th Now, thereof, I, Khandaker Moshtaque pursuance thereof shall have effect Bangladesh on November 6, 1975 and the August, 1975 which proclaimed as Ahmed, in exercise of all powers enabling notwithstanding anything contained in the assumption of powers of the Chief Martial follows: me in this behalf, do hereby declare that- Constitution of the People's Republic of Law Administrator by the Second (a) I have assumed and entered upon the Bangladesh or in any law for the time being Proclamation issued on November 08, 1975 “Whereas I, Khandaker Moshtaque office of the President of Bangladesh with in force; was in total disregard of the Constitution. Ahmed, with the help and mercy of the effect from the morning of the 15th August, (e) the Constitution of the People's Almighty Allah and relying upon the 1975; Republic of Bangladesh shall, subject to IV) Appointment of Major General Ziaur blessings of the people, have taken over all (b) I may make, from time to time, Martial this Proclamation and the Martial Law R a h m a n , a s t h e C h i e f M a r t i a l and full powers of the Government of the Law Regulations and Orders- Regulations and Orders made by me in Administrator by the Third Proclamation People's Republic of Bangladesh with (I) providing for setting up Special Courts pursuance thereof, continue to remain in issued on November 29, 1976, was made, effect from the morning of the 15th August, or Tribunals for the trial and punishment of force; beyond the ambit and in total disregard of 1975. any offence under such Regulations or (f) all Acts, Ordinance, President's Orders the Constitution. Orders or for contravention thereof, and of and other Orders, And whereas I placed, on the morning of offences under any other law; Proclamations rules, regulations, bye- V) Appointment of Major General Ziaur the 15th August, 1975 the whole of ii) prescribing penalties for offences under laws, notifications and other legal Rahman as the President of Bangladesh on Bangladesh under Martial Law by a such Regulations or Orders or for instruments in force on the morning of the April 21, 1977, was made in violation and in declaration broadcast from all stations of contravention thereof and special penalties 15th August, 1975, shall continue to total disregard of the Constitution. Radio Bangladesh; for offences under any other law; remain in force until repealed, revoked or (iii) empowering any Court or Tribunal to amended ; VI) As such, all the Martial Law And whereas, with effect from the morning try and punish any offence under such (g) no Court, including the Supreme Court, Proclamations, Martial Law of the 15th August, 1975, I have suspended Regulation or Order or the contravention or tribunal or authority shall have any Regulations including the Martial Law the provisions of article 48, in so far as it thereof; power to call in question in any manner Regulation No. VII of 1977 and the Martial relates of election of the President of (iv) barring the jurisdiction of any Court or whatsoever or declare illegal or void this Law Orders, were made by the usurpers of Bangladesh, and article 55 of the Tribunal from trying any offence specified Proclamation or any Martial Law the office of President in violation and in Constitution of the People's Republic of in such Regulations or Orders; Regulation or Order made by me in total disregard of the Constitution , as such, (c) I may rescind the declaration of Martial pursuance thereof, or any declaration made illegal, void ab initio and nonest in the eye Bangladesh, and modified the provisions of law. of article 148 thereof and form I of the Law made on the morning of the 15th by or under this Proclamation, or 169 170 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

mentioned in this Proclamation to have no lawful authority to seize the office of And whereas Khandaker Moshtaque (b) all Martial Law Regulations and Orders been made, or anything done or any action the President of Bangladesh, as such, he Ahmed, who placed the country under in force immediately before this taken by or under this Proclamation, or was an usurper Martial Law, has made over the Office of Proclamation shall be deemed to have been mentioned in this Proclamation to have President of Bangladesh to me and I have made by the Chief Martial Law been done or taken, or anything done or any (ii) He had no authority to suspend any entered upon that Office on the 6th day of Administrator and shall continue to remain action taken by or under any Martial Law provision of the November, 1975; in force until amended or repealed by the Regulation or Order made by me in Chief Martial Law Administrator; pursuance of this Proclamation ; Constitution And whereas in the interest of peace, order, (c) Parliament shall stand dissolved and be (h) I may, by order notified in the official security, progress, Keep in force the deemed to be so dissolved with effect from Gazette, amend this Proclamation. (iii) He had no authority to make any Martial Law proclaimed on the 15th the 6th day of November, 1975, and Proclamation, Martial Law Regulation August, 1975; general elections of Members of In respect of this Proclamtion the comments or Order, beyond the ambit of the And whereas for the effective enforcement Parliament shall be held before the end of of the High Court Division are as follows:- Constitution of Martial Law it has become necessary for February, 1977; “………………………………………… me to assume the powers of Chief Martial (d) the persons holding office as Vice- …………………….. (iv) He destroyed the supremacy of the Law Administrator and to appoint Deputy President, Speaker, Deputy Speaker, Constitution by making it subject to the Chief Martial Law Administrators and to Ministers, Ministers of State, Deputy (i) “Certain provisions of the Constitution Proclamation, Martial Law Regulation make some modifications in the Ministers and Whips, Immediately before were suspended and modified, (ii) The and Order Proclamation of the 20th August, 1975; this Proclamation, shall be deemed to have Proclamation and Martial Law Regulations ceased to hold and Orders became effective inspite of the (v) He ousted the jurisdiction of the Now, therefore, I, Mr. Justice Abusadat office with effect from the 6th day of Constitution or other laws Supreme Court, one of the three pillars Mohammad Sayem, President of November, 1975; of the State Bangladesh, do hereby assume the powers (e) an Ordinance promulgated by the (iii) The Constitution remained enforced of Chief Martial Law Administrator and President shall not be subject to the but subject to the Proclamation, Martial (vi) The Proclamations etc. were made appoint the Chief of Army Staff, Major limitation as to its duration prescribed in Law Regulations and Orders non justifiable before the Court of law General Ziaur Rahman B.U. Psc; the Chief the Constitution of the People's Republic (iv) No Court including the Supreme Court as such the concept of the rule of law of Naval Staff,Commodore M.H. Khan, of Bangladesh would have any power to call in question was destroyed”. P.S.N., B.N. , and the Chief of Air Staff, Air (hereinafter referred as the Constitution); the Proclamation, Martial Law Regulations Vice Marshal M.G. Tawab, S.J. S.Bt. PSA, (f) the provisions of Article 48 of the or Orders”. Then came the “Proclamation” dated the BAF., as Deputy Chief Martial Law Constitution shall remain suspended until 8th November, 1975 which proclaimed as Administrator and declare that further order; On considerations of the above noted follws: (g) Part VIA of the Constitution shall stand Proclamations it appears that Whereas the whole of Bangladesh has been “ (a ) Martial Law Regulations and Orders omitted; under Martial Law since the 15th day of shall be made by the Chief Martial Law (h) the Chief Martial Law Administrator (i) “Khondokar Mustaque Ahmed had August, 1975; Administrator; may appoint Zonal or Sub-Martial Law 171 172 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Administrators; assume the power of CMLA , which others by inserting clause (gb) to the Supmreme Court under Article 102, (i) I may, by order notified in the official was beyond the ambit of the Proclamation dated November 8, 1975, the Parliament may by law empower any other Gazette, amend this Proclamation; Constitution Bangladesh Collaborator's (Special Court, within the local limits of its (j) this Proclamation shall be a part of the Tribunals) Order 1972 ( P.O No 8 of 1972), jurisidiction, to exercise all or any of those Proclamation of the 20th August, 1975, and (ii) He had no lawful authority to was omitted from the First Schedule to the powers”. the Proclamation of the 20th August, 1975, dissolve the Parliament Constitution. But by Fourth Amendment sub article (1) shall have effect as modified by this of Article 102 was omitted and Article 44 Proclamation”. (iii) Bangladesh was ruled for the next The next is the Second Proclamation was substituted as follows:- The High Court Division found that some of three and a half years without any (Sixth Amendment) Order, 1976 (Second its salient features are as follows : Parliament, as such, lost its Republican Proclamation Order No.III of 1976) “Parliament may be law establish a (I) Mr Justice Abu Sadat Mohammed character for the said period. dated May 4th 1976 Constitutional Court, tribunal or Sayem entered upon the Office of the As it appears by the above order, amongst commission for the enforcement of President on 6 November ,1975 131 (iv) He had no lawful authority to others, by inserting clause (eb) to the foundamental rights” (ii) He assumed the Office of the Chief suspend any provision or any part of the Proclamation dated November 8, 1975, the Martial Law Administrator (CMLA) and Constitution proviso to Article 38 of the Constitution By the above Order 1976, amongst others, appointed three Deputy Chief Martial Law which is in respect of freedom of some amendments were made to the Administrators ( DCMLA) (v) He had no lawful authority to make association other than in the name or on the proclamation dated November 8, 1975 (iii) Parliamnt was dissolved with effect any Proclamation, Martial Law basis of any religion as its basis or purpose, predominantly restoring original Article 44 from 6 November, 1975. Regulation or Order. was omitted. as it existed before the Fourth Amendment (iv) Part VI –A of the Constitution was but however without restoring sub Article omitted (vi) Justice Abu Sadat Mohammed The next is the Second Proclamation (1) of Article 102 and the above Order also Sayem violated the Constitution of (Seventh Amendment) Order, 1976. established separate “Supreme Court” and (v) The Proclaimation dated 8 November, Bangladesh (Second Proclamation Order No IV of the “High Court” along with other 1975 modified the Proclaimation dated 20 1976) dated May 4 1976. incidental changes. As it appears by Order August, 1975 and became its part (vii) He acted as a usurper in entering dated August 11, 1976 the above changes the Office of the President and in It may be noted here that in the original came into effect on and from August 13, On consideration of the above assuming the powers of CMLA” Constitution Article 44 provided as 1976. Then came The Political Parties proclaimations it appeared to the High follows:- Regulation, 1976 (Martial Law Court Division that; The next is the Second Proclamation Regulation No. XXII of 1976) dated July (Third Amendment) Order, 1975 “44(1) The right to move the Supreme 28, 1976 The above Regulation repealed the (i) “Justice Abu Sadat Mohammed (Second Proclamation Order No.III of Court, in accordance with clause (I) of Political Parties Act 1962 (Act III of 1962) Sayem, the Chief Justice of Bangladesh 1975) dated December 31, 1975 Article 102, for the enforcement of the and Political Parties (Prohibition) had no authority to enter into the Office rights conferred by this part, is guaranteed. Ordinance 1975 (XLVI of 1975). of the President of Bangladesh and to As it appears by the above Order amongst (2) Without prejudice to the powers of the 173 174 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Then came the Third Proclamation dated August, 1975, 8th November, 1975 and This The next is the Order dated 21. 4. 1977, b) Basic features of the Constitution were 29th November, 1976 which proclaimed as Proclamation, published in the Bangladesh Gazette Extra changed. follows:- (c) to make Martial Law Regulations and Ordinary on April 21, 1977. c) In the Fourth Schedule of the Orders, and (d) to do any other act or thing Constitution, after paragraph 3, a new “Whereas I, Abusadat Mohammad Sayem, or to take any other action as he deems The above Order disclosed that on being paragraph, namely paragraph 3A was President of Bangladesh and Chief Martial necessary in the national interest or for the nominated under clause (aa) of the inserted in order to validate the Law Administrator, assumed, by the enforcement of Martial Law”. Proclamation dated 20.8.1975, Justice Abu proclamations, MLRs, MLOs etc, Proclamation of the 8th November, 1975, The views of the High Court Division in Sadat Mohammad Sayem assumed the including the amendments of the the powers of the Chief Martial Law respect of the above order is as follows: Office of the President but the High Court Constitution which amongst others, Administrator and appointed the Chiefs of “By the Third Proclamation dated Division as it appears found that previously provided that: Staff of the Army, Navy and Air Force as November 29, 1976. Justice Abu Sadat Mohammad Sayem, by i) The Proclamations etc and the acts taken Deputy Chief Martial Law Administrators; Proclamation dated November 8, 1976, thereon were validated and those cannot be And whereas I do now feel that it is in the (a) “Justice A.S.M. Sayem handed over assumed the position of only the Chief questioned before any Court. national interest that the powers of the Chief the office of CMLA to Major General Martial Law Administrator and he ii) All amendments of the Constitution Martial Law Administrator should be Ziaur Rahman BU. PSC. nominated General Ziaur Rahman to be the were sought to be validly made. exercised by Major General Ziaur Rahman President of Bangladesh in that capacity. iii) The Proclamations MLRs and MLOs, B.U., psc., the Chief of Army Staff; Now, (b) The Major General Ziaur Rahman, were to be treated as the Acts of therefore, in exercise of all powers enabling B.U. PSC would exercise all the powers The next is the Proclamations Parliament.” me in this be and in modification of the of CMLA with powers amongst others (Amendment) Order 1977, i.e The next is the Referendum Order, 1977 provisions of the Proclamations of the 20th to amend the Proclamations dated Proclamation Order No. 1 of 1977 dated (Martial Law Order No.1 of 1977) dated August, 1975, and 8th November, 1975, I, 20.8.75, 8.11.76 and 29.11.76.” April 23, 1977. By this Order, as described 1st May, 1977. Abusat Mohammad Sayem, resident of in details later on BISMILLAH-AR- Bangladesh, do hereby hand over the Office The next is the Court's Jurisdiction RAHMAN-AR-RAHIM was inserted According to the High Court Division the of Martial Law Administrator to Major (Restriction) Regulation, 1977 (Martial above the Preamble of the Constitution and above Order provided that to ascertain the General Ziaur Rahman B.U., psc., who Law Regulation No.1 of 1977) dated the second and fourth paragraphs of the confidence of the people in General Ziaur shall hereafter exercise all the powers of March 9, 1977. Preamble as well as Articles 6, 8, 9, 10, 12, Rahman, a countrywide referendum was to Chief Martial Law Administrator including 25, 38 and 141 of the Constitution were be held on May 30, 1977 on the basis of the powers— By the above Regulation restrictions were drastically changed and furher paragraph direct adult franchise. The above imposed upon the power of High Court to 3A was inserted in the Fourth Schedule of Referendum was conceived and conducted (a) to appoint new Deputy Chief Martial make interim orders and restrictions were the Constitution. under the MLO No.1 of 1977 and Law Administrators, Zonal Martial Law also imposed upon the power of other “a) This was done in order to ascertain the Administrators, and Sub-Zonal Martial Courts to pass temporary or interim The High Court Division found that by it:- confidence of the voters in President Major Law Administrators, injunction. “a) The Second and Third Proclamations General Ziaur Rahman, (b) to amend the Proclamations of the 20th were changed. b) This kind of referendum is unknown to 175 176 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

the Constitution, or any law of the land”. The next is the Second Proclamation Supreme Court as were done in the case of which though the Parliamentary system of The next is the Abandoned Properties (Fifteenth Amendment) Order, 1978 the Eighth Amendment as well as in the Government was restored, but the ( S u p p l e m e n t a r y P r o v i s i o n s ) (Second Proclamation Order No. IV of present case. supervisory power of the Supreme Court Regulations, 1977 (Martial Law 1978) dated 8th December, 1978. over the subordinate judiciary, as was Regulation No. VII of 1977), dated 17th The High Court Division held that though given in Article 116 of the original October, 1977. The Preamble of the above Order shows in the Preamble of the above Order the Constitution, was not restored and it that the object of the above Order was only object as shown was to replace the remained with the Executive. Further many As it appears the above Regulation, amonst to replace the remaining portion of the remaining portion of the undemocratic provisions of the Fourth Amendment have others, provided that even if the undemoratic provisions of the Constituion provisions incorporated in the Constitution not yet been disturbed, as if, those being Government had unlawfully taken over a incorporated by the Fourth Amendment. by the Fourth Amendment, but many of the pieces of democratic principle were property as abandoned, the same shall But this is not correct. It may be noted that provisions incorporated by the Fourth required to be kept intact. remain as abandoned and any jugment earlier by Proclamation Order No.1 of 1977 Amendment have aready been dismantled declaring otherwise would be ineffective. changes were made only in the English Text by Martial Law Regulations. Moreover by Then while the Parliament was already in The next is the Second Proclamation of some amendents of the Constitution and the above Order not only the office of the session and The Constitution (Fifth Amendment) Act, 1979 which is under the Bengali Text of those amendments President with all the powers provided by (Tenth Amendment) Order, 1977 challenge, had already been enacted and (Second Proclamation Order No. 1 of remained as it is. By this Order similar the Fourth Amendment were kept very was published in Bangladesh Gazette on 1977), dated 27th November, 1977. changes were made in the Bengali Text. much intact but by inserting Article 92A, April 6, 1979, by The Proclamation Further, changes were also made by undemoratc provisions, the Parliament was Dated April 6, 1979 which was published in the Banglaesh Gazette Extraordinary on As it appears by the above Order, amonsgt inserting Sub Article (1A), (1B) and (1C) in made subservient to the President for all 7th April, 1979. This was the last Article 142 of the Constitution providing practical purposes with the view that in an others, sub Article (1) of Article 102 was proclamation issued by the Chief Martial restored to its original position along with that for amendment of the preamble or any unlikely event, even if the Parliament fails Law Administrator by which Martial Law incidental amendmetns and the Supreme provisions of Articles 8, 48, 56, 58, 80, 92A to make grants or to pass the budget under was revoked with effect from 8 pm of April, Court was again made to consist of the or this sub Article (1A), referandam to be Articles 89 and 90, or refuses or reduces the 6, 1979. “Appellate Division” and the “High Court held. Further Articles 92A and 145A were demands for grants, under the above Article As it appears in the above Proclamation also inserted giving the President wider 92A the President, without any worries Division” with effect from December 1 of dated April 6, 1979 the reasons for 1977 and in Article 44 the words “High powers. about the funds, could dissolve the imposing Martial Law are as follows : Court” was substituted by the words “High Parliament at his pleasure. In this way the “ WHEREAS in the interest of peace, Court Division”. As stated earlier, by Regarding the submission of the petitioners then President of Bangladesh by the above order, security, progress, prosperity and S e c o n d P r o c l a m a t i o n ( s e v e n t h that because of the Fourth Amendment, Order of 1978 became the most powerful development of the country the whole of Amendment) Order, 1976, separate Courts Fifth Amendment had to be made has also Chief Executive virtually without any Bangladesh was placed under Martial Law such a “Supreme Court” and “High Court” no substance. Assuming that Fourth checks and balance either from the on 15 August, 1975.” But as it appears in th were set up with effect from 13 August, Amendment was violative of the basic Parliament or from any body else. the Preamble of the Proclamation dated 20th 1976. features of the Constitution, there was no However, the above Article 92A was August, 1978 no indication of any grave challenge of the Fourth Amendment in the omitted by the Twelfth Amendment by situation was given. The Parliament was 177 178 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

very much in existence as on 15.8.75 and proclamation sought to subordinate the proclamations. To his such query, Chief Proclamations may be legally used to call further in view of the death of the then Constitution as clause (O) of the above Justice Coke, Chief Justice Fleming, Chief attention to the provisions of existing laws, President, the then Vice President was to Proclamation provided that the President Baron Tanfield and Baron Altham or to make or alter regulations over which take the charge of the President till a new may make any order “notwithstanding delivered their opinion thus: the Crown has a discretionary authority, President was elected. As such how the anything contained in the Constitution” either at common law or by statute. Thus, situation for declaring Martial Law as though till the above Proclamation the “The King cannot create any offence which the Crown may by proclamation summon indicated above arose on August 15, 1975 ? President did not have any such power and was not an offence before, for then he may or dissolve Parliament, declare war or Further in the above Order the reason for thus this Proclamation bestowed 'Supra alter the law of the land in his proclamation peace, and promulgate blockades and lay revoking the Martial Law was given as Constitutional' power on the then President in some high point…..The law of England embargoes on shipping in time of war…… follows : of Bangladesh. Regarding the legality of is divided into three parts: the common law, 1099. Restrictions on proclamations. the Proclamations dated August 20, 1975, statute law, and custom; but the King's Under the general rule which restrains the “ AND, WHEREAS the situation in the November 8, 1975 and November 29, proclamation is none of these…..The King Crown from legislating apart from country in all respect has since improved, 1975, the High Court Division stated as has no prerogative but that which the law of Parliament, it is well-settled law that the and all other authorities and institution in follows : the land allows him.” (Reported in 2 State Sovereign's proclamation, unless the country may now properly function in Tr 726, Quoted from Halsbury's Laws of authorized in that behalf by statute, cannot accordance with the Constitution and the “During ancient times proclamations were England, Fourth Edition, Vol. 8, note-3 to enact any new law, or make provisions law.” a source of law in England. King Henry the Para-1099). contrary to old ones………….” VIII (1509–1547) used to assert his power In modern times, the purpose of a Royal But however clause (O) of the above to make laws by way of proclamations. By Their such bold opinion four hundred years proclamation was confined and restricted proclamation the following unusal power the Statute of 1539, the King could legislate ago in 1610 could give a check to the to notify the existing law but can neither was given to the President:- by Proclamations without Parliament. This arbitrary exercise of power by the Crown, make law nor abrogate any ...... Act was, however, repealed during the but four hundred years later, the learned ...... “(O) the President may, for the purpose of reign of Edward VI (1547–1553). Still Additional Attorney General of But by proclamations, laws cannot be removing any difficulty that may arise in Mary I (1553–1558) and Elizabeth I Bangladesh, contended that the Judges of made and in all the Constitutions of the giving effect to any provision of this (1558–1603) used proclamations, but the Supreme Court of Bangladesh, are not civilized world the power to legislate is Proclamation make, by order, such much less frequently than their father. entitled to say so in respect of the Fifth always with the concerned legislative body provisions as he deems necessary or Amendment Act, since there was an ouster or authority as spelt out in the respective expedient and every such order shall have In those ancient days the Monarchs used to clause. Constitutions. effect notwithstanding anything contained rule by divine right but by 17th century it in the Constitution or in any other law for was established that the source of the Regal Halsbury's Laws of England (Fourth The Proclamation dated August 20, 1975 the time being in force.” power was the common law of the land. Edition Vol. 8) describes Royal was made by Khandaker Moshtaque King James I asked Sir Edward Coke, Chief proclamations in this manner: Ahmed, a Minister in the Cabinet of the Considering the above clause (O), the High Justice of the Kings Bench, his opinion Government of Bangladesh. As a Minister, Court Division held that the above about the right of the Kings to issue “ 1 0 9 8 . U s e o f p r o c l a m a t i o n s . he had specific functions under the 179 180 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Constitution but by any stretch of the army in Dhaka Cantonment broke by the Proclamation dated November 8, jurisprudence. Obviously, the then Chief imagination, it did not authorize him to down, large sections of army personnel 1975, made some modifications in the Justice of Bangladesh, completely ignored seize the office of President of Bangladesh. revolted leading to the whole-sale killing of earlier proclamation and also appointed the these legal realities for reasons best known No authority or legal provision has been a large number of officers of the army. Chief of Army Staff, Major General Ziaur to him but for that reason his taking over as mentioned in the Proclamation justifying Colonel Taher rescued Major General Ziaur Rahman B.U. PSC; the Chief of Naval the President of Bangladesh and his such assumption of power. Rahman, the Chief of Army Staff, from his Staff, Commodore M.H.Khan, P.S.N., B.N. assumption of the powers of CMLA would residence in the cantonment. and the Chief of Air Staff, Air Vice Martial not become legal. Even a Chief Justice is It appears that on the early morning of M.G.Tawab SJ., S.Bt., PSA, BAF, as n o t a b o v e t h e l a w . August 15, 1975, Khandaker Moshtaque This narration of the events may not be Deputy Chief Martial Law Administrators...... Ahmed merrily changed the Constitution of absolutely accurate but the real facts may Justice Sayem remained CMLA till Bangladesh and seized the office of never be known and in any case not very November 29, 1976 and resigned from the As such, he was a usurper to the office of President although without any legal necessary for deciding the legal issues office of President on April 21, 1977. President of Bangladesh and his authority. All the other Commanding involved in this rule but stated only as a During this time, a huge number of MLRs assumption of the powers of CMLA, a Officers of the Armed Forces readily sequel leading to the assumption of office and MLOs were issued. Besides, various legaly non-existent office, was void and declared their allegiance to the new of President by Justice Sayem. But how and provisions of the Constitution were non-est in the eye of law. Consequently, all 'President' and his 'Government' apparently what chain of events led the Chief Justice of amended from time to time by amendment his subsequentl actions taken by way of without any protest although on their Bangladesh to become not only the of the Second Proclamation. On our query amendment of the Proclamation dated commission as officers, they all took oath to President of Bangladesh but also the Chief as to how and under what law Justice November 8, 1975 MLRs, MLOs and be faithful to Bangladesh and its Martial Law Administrator (CMLA), is far Sayem, the Chief Justice of Bangladesh, Ordinance, issued from time to time being Constitution and bear true allegiance to the from clear. But in any case he was there as could take over as the President of beyond the ambit of the Constitution, were President The 'reign' of Khandaker the President of Bangladesh and the CMLA also all illegal, void ab initio and non est. Moshtaque Ahmed lasted for 82 (eighty as apparent from the Proclamation dated Bangladesh and also assumed the powers In due course, Justice Sayem by the Third two) days. On November 6, 1975 he handed November 8, 1975. of CMLA, the learned Additional Attorney Proclamation, handed over the office of over the office of President of Bangladesh General was without any answer. Martial Law Administrator to Major to Justice Abusadat Mohammad Sayem. The office of CMLA is a relic from the past. General Ziaur Rahman, B.U., to act as the The history and the reasons which led In the erstwhile Pakistan, General Ayub We ourselves tried to probe but could not CMLA. Khandaker Moshtaque Ahmed to abdicate Khan was appointed CMLA by the find any. The Constitution or any other law in favour of Justice Sayem were not Proclamation dated October 7, 1958 and did not provide so. Besides, the concept of Subsequently, Justice Sayem nominated explained to us with any details. All we again General Yahya Khan declared Martial Law is totally absent in our Major General Ziaur Rahman,B.U. to be could gather from the submissions made by himself as the CMLA on March 25, 1969. Constitution or in any other law or the President of Bangladesh and also the learned Advocates and their written Earlier, although Martial Law was clamped jurisprudence. The Constitution, the handed over the office of President to him. arguments that there was a coup and a on the country since August 15, 1975 but supreme law of the country, does not From the Order dated April 21, 1977, we counter coup during the first week of apparently no Martial Law Administrator provide it nor any other law of our country. could learn that Justice Sayem became November, 1975, the chain of command in was appointed but this time Justice Sayem There is no place or office of CMLA in our President of Bangladesh on being 181 182 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

nominated by Khondaker Mushtaque without jurisdiction and without lawful suspended the provision of Article 48 the back-seat due to the said extreme Ahmed. Justice Sayem similarly nominated authority”. of the Constitution so far it related to the emergency but even in that critical Major General Ziaur Rahman, B.U. as the election of the President and likewise situation the citizens of the North upheld next President of Bangladesh. Next question is whether the situation as it Justice Abu Sadat Mohammad Sayem, to the high ideals of democratic principles The office of President has been created by existed on August 15, 1975 necessitated whom Khondaker Mushtaq Ahmed and did not at all compromise and give in to Article 48 of the Constitution. The the imposition of Martial Law.In this allegedly handed over the power of the the inhuman demands of the Southerners, qualification and election to the office of regard it may be noted that in earstwhile President, had not dissolved the Parliament for allowing slavery in the country in President has been stipulated in the said Pakistan, at first, Martial Law was imposed by Proclamation dated November 8, 1975. violation of the principles of liberty and provision. But there is no provision for on October 7, 1958 by Iskandar Mirza, the Accordingly Khandaker Mustaq Ahmed, equality, as enshrined in the Constitution, nomination to the office of President in the then President, and thereafter on March 26, Justice Abu Sadat Mohammad Sayem and rather, they held the Constitution high entire Constitution. From the language of 1969 Martial Law was imposed by General subsequently Major General Ziaur above everything and fought with their the Order dated April 21, 1977, it appears Yahia Khan and in both occassion some Rahman, to whom Justice Abusadat lives to free the slaves in vindication of the that this provision of nomination was added pretexts were raised for declaring Martial Mohammad Sayem handed over the Office rights guaranteed under the Constitution. by clause (aa) to the First Proclamation by Laws. But while imposing Martial Law on of the President / Chief Martial Law Although there was serious controversy all subsequent amendment. It is amazing that August 15, 1975 and also while issuing the Administrators in unconstitutional way, over the country on the issue of slavery but when even a chairman of a Union Council Proclamation dated August 20, 1975 also did not allow the constitutional even in such a trying moment, no has to be elected and can not be nominated, Khandaker Mustaque Ahmed did not raise machinery to come into effect and on proclamation declaring Martial Law was nomination could be made to the highest any such pretext. While discussing the usurping the power of the Government made. Instead, their lawfully elected office of the Republic and even that was Proclamation dated April 6, 1979 we have started issuing all kinds of Proclamations, President gave this message to the done by a Proclamation. This is a disgrace already stated that on August 15, 1975 the Martial Law Regulations and Orders. Congress on July 4, 1861, on the out break and insult to the Nation-hood of Parliament was very much in existence and Regarding this the High Court Division of the Civil War: Bangladesh. But this insult was ratified by Vice-President was also available. observed as follows: the Second Parliament in the Constitution Accordingly in view of the killing of the “It presents to the whole family of man the (Fifth Amendment) Act. then President, the constitutional If we look back to the history we would find question whether a constitutional republic We have already stated above that a machinery should have automatically that the Civil War of 1861 in the United or democracy-a government of the people proclamation is not a law and by come into effect and the Vice President States threatened its very existence as one by the same people- can or cannot maintain proclamation neither a law can be made nor should have taken over as Acting President nation. It engulfed the entire country. War its territorial integrity against its own a law can be abrogated not to speak of the until fresh election was held for the choice went on in almost every where in the domestic foes. It presents the question provisions of the Constitution. As such, the of a successor. The political machinery country with bleak prospect for survival of whether discontented individuals, too few First Proclamation along with clause aa is would then have moved according to the the States as united with their Constitution. in numbers to control administration non-est in the eye of law and the Constitution and the Parliament could have Nobody could blame the President of the according to organic law in any case, can nominations of both Justice Sayem and taken steps to resolve the crisis if United States or others in that precarious always, upon the pretences made in this Major General Ziaur Rahman as President Khandaker Mushtaq Ahmed had not, by and catastrophic situation if the case or any other pretences, or arbitrarily were in total violation of the Constitution, Proclamation dated August 20, 1975, Constitution of the country was pushed to without any pretence, break up their 183 184 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

government and thus practically put an end could not tell; and that unlimited power, for in Article 142 and amendment can be ... to free government upon the earth. It forces wherever lodged at such a time, was done only in the manner provided therein The English text is : us to ask: 'Is there, in all republics, this especially hazardous to freemen. For this, and since the Fifth Amendment validating “1.The President.-An oath (or affirmation) inherent and fatal weakness ? Must a and other equally weighty reasons, they all illegal acts of the usurpers under the in the following form shall be administered government, of necessity, be too strong for secured the inheritance they had, fought to cover of Martial Law, not only changed the by the Chief Justice. (after amendment by the liberties of its own people, or too weak maintain, by incorporating in a written basic structure as well as the character of Khondaker Moshtaque Ahmed by his to maintain its own existence?” (Quoted constitution the safeguards which time had the Constitution in its totality but rather Proclamation dated August 20, 1975): from K.C. Wheare: Modern Constitutions, proved were essential to its preservation. uprooted the Constitution and as such, in “I, ……….., do solemnly swear (or affirm) Second Edition, 1966, page-142). Not one of these safeguards can the the eye of law, it was no amendment but that I will faithfully discharge the duties of President, or Congress, or the Judiciary destruction of the Constitution altogether. the office of President of Even the Supreme Court did not relent in disturb, except the one concerning the writ As such Fifth Amendment is ultra vires the Bangladesh according to law : that horrendous situation when the battles of habeas corpus. Constitution. That I will bear true faith and allegiance to were fought everywhere but upheld the ………………………………………..... Bangladesh: Constitution. In the case of Ex Parte ...... Knowing this, they limited the The High Court Division held as follows:- That I will preserve, protect and defend the Milligan (1866), Justice Davis, in suspension to one great right, and left the “Major General Ziaur Rahman, B.U. being Constitution: delivering its opinion of the Court held: rest to remain forever inviolable. But, it is appointed as the Chief of Army Staff on the “This nation, as experience has proved, insisted that the safety of the country in August 22, 1975, by Khandaker Moshtaque And that I will do right to all manner of cannot always remain at peace, and has no time of war demands that this broad claim Ahmed, was still in the active service in the people according to law, without fear or right to expect that it will always have wise for martial law shall be sustained. If this Republic of Bangladesh, when he entered favour, affection or ill will. …..….” and humane rulers, sincerely attached to the were true, it could be well said that a the office of the President. It should be But only 2(two) days later, on April 23, principles of the Constitution. wicked men, country, preserved at the sacrifice of all the noted that by virtue of his office as 1977, by the Proclamations (Amendment) ambitious of power, with hatred of liberty cardinal principles of liberty, is not worth President, the Supreme Command of the Order, 1977 (Proclamation Order No.1 of and contempt of law, may fill the place once the cost of preservation. Happily, it is not defence services, of Bangladesh was vested 1977) (Annexure-L-1), extensive changes occupied by Washington and Lincoln; and so.”………… (Quoted from Professor in him but at the same time he was a servant by way of amendment was made which not if this right is conceded, and the calamities John P. Frank on ; Cases And Marterials on of the Republic as the Chief of Army Staff”. only changed the Constitution but defaced of war again befall us, the dangers to human Constitutional Law (1952 Revision) at it beyond recognition. liberty are frightful to contemplate. If our page 263-64) . It should also be noted that in pursuance to fathers had failed to provide for just such a the Order dated April 21, 1977, Major Besides, Paragraph 3A was inserted after contingency, they would have been false to Regarding the other point as to whether General Ziaur Rahman, B.U. must have Paragraph 3 in the Fourth Schedule to the the trust reposed in them. They knew—the Fifth Amendment negates the Constitution taken the following oath before entering the Constitution to validate the transitional and history of the world told them—the nation and repugnant to the basic feature of the office of President: temporary provisions made since the they were founding, be its existence short or Constitution, it was argued before the High ...... declaration of independence on March 26, long, would be involved in war; how often Court Division that the provisions for ...... 1971 till 16th December, 1972, when the ...... or how long continued, human foresight amendment of the Constitution is provided Constitution became effective. But this 185 186 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

paragraph 3A was added to validate all the But the Second Parliament ratified and the Constitution was made subordinate and They are there and it is better to proclamations made since August 20, 1975 validated the said Proclamation. Order subservient to the Proclamations dated acknowledge them. with amendments and all other acts, No.1 of 1977 by the Fifth Amendment. Not August 20, 1975, November 8, 1975 and actions, MLRs and MLOs and proceedings only the Proclamations but also Martial November 29, 1976 and the Martial Law The High Court Divison answered the taken thereunder till the date when the Law Regulations and Martial Law Order Regulations and Martial Law Orders made above submission as follows: Martial Law would be withdrawn. made under the various Proclamations, thereunder and as such those are ultra vires were also ratified and validated. the Constitution. There is no provision in “We have given our utmost consideration to The High Court Division regarding the the Constitution which is 'Supra the above submission of Mr. Akhter Imam changes made by the above Proclamations Under the above noted Proclamations, a Constitutional' or to put it mildly, 'Extra but found no substance. Rather we must dated August 20, 1975, November 8, 1975, couple of hundred MLRs and MLOs were Constitutional'. All laws or provisions and acknowledge that we no longer live in the and November 29, 1976 concluded as made from time to time to suit the needs of actions taken thereon must, without any era of Henry VIII, Lois XIV or even follows:- the usurpers, since the promulgation of the exception, conform to the Constitution. Napoleon Bonaparte, whose words were ii) Votes of not less than two-thirds of the Martial Law on August 20, 1975, till it was Any law or provision, which is beyond the law. But we live in the 21st century. Now total number of members of Parliament is withdrawn on April 7, 1979. All those ambit of the Constitution, is ultra vires and the voice of the people, however feeble, is required to amend a provision of the MLRs and MLOs were also ratified and void and as such non-est in the eye of law. the first as well as the last word. Their will Constitution. No Parliament was in validated by the Fifth Amendment, passed The doubtless supremacy of the is the supreme law. The Constitution existence, on the said date on April 23, on April 6, 1979”. Constitution is far above all institutions, guarantees it, so also the Court and every 1977,but without following the above noted We have already discussed as to how our functionaries and services it created. body must follow this principle without any procedure, as stipulated in Article 142, the Constitution is supreme and under the The High Court Division also narrated the exception, in this Twenty First Century”. changes in various provisions of the Constitution all the powers and functions of submission of the learned Counsel of the The High Court Division after considering Constitution were made by the above noted the Republic are vested in the three organs proforma respondent No.5 which is as all the aspects concluded as follows:- Proclamation Order. of the Government, namely, Legislature, follows: iii) The above noted insertion and Executive and Judiciary and since all these “There is no existence of Martial Law substitution of provisions, among others, organs owe their existence to the “Mr. Akhter Imam, Advocate, however, in Authorities or Martial Law Proclamations, made in the Constitution, changed its basic Constitution, which is the embodiment of support of Martial Law, contended that in Regulations or Order in our Constitution or character, as such, could not even be done the will of the people as held by the superior our country a Martial Law culture or any of the laws of the land. Those by the two-thirds of the total number of Courts, the basic features of the Martial Law jurisprudence has been authorities or proclamations are quite members of the Parliament. Constitution cannot be changed by evolved. He based his argument partly on foreign to our jurisprudence. Still those iv) The Constitution was made subservient Proclamations, Martial Law Regulations or the book 'Bangladesh Constitution: Trends proclamations etc were imposed on the to the Proclamations, MLRs and MLOs. Orders. And Issues' by Justice Mustafa Kamal. The people of Bangladesh. Those have got no This is no amendment of the Constitution learned Advocate, read extensively from legal basis. Those are illegal and imposed even in the plain eyes, but destruction of the From the analysis of Proclamations, MLRs the said book and argued that whether we by force. The people are constrained to basic character of the Constitution by a and MLOs and the findings of our Apex like it or not we can neither avoid nor accept it for the time being, not out of Proclamation Order issued by the CMLA. Court as stated above, it is crystal clear that overlook the long shadows of Marshals. attraction to its legality but out of fear. As 187 188 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

such it has no legal acceptance. …….”. enormity of illegality sought to be legalized contemplate Martial Law or any other laws Martial Law, immediately upon by this Act, would have shocked the Chief not made in accordance with the Proclamation seeks to curb the powers of “In the instant case, the solemn Justice Coke so much so that it would have Constitution. The armed forces are also the Court, particularly, the powers of the Constitution of Bangladesh were freely left him dumb instead of saying that 'when subject to the will of the people and their Constitutional Court. changed by the Proclamations, MLRs and an Act of Parliament is against right and oaths as provided in section 15(2) of the MLOs, issued by the self-appointed or reason, or repugnant …………….the Army Act 1952, section 17(2) of the Air According to the spirit of the Preamble and nominated Presidents and CMLAs, in their common law will control it and adjudge Force Act 1953 and section 14 of the Navy also Article 7 of the Constitution the military rule, direct or indirect, is to be whims and caprices. The learned Additional that Act to be void'. Perhaps, it would also Ordinance 1961, make it plain. They serve shunned once for all. Let it be made clear Attorney General although did not support leave the Chief Justice Hamoodur Rahman, the “people” and can never become the that military rule was wrongly justified in Justice Sayem but half –heartedly out of his comprehension, if he would masters of the “people”. Accordingly the past and it ought not to be justified in attempted to justify the actions taken by found that 'after a formal written Martial Law is unconstitutional and illegal future on any ground, principle, doctrine or Khondaker Moshtaque Ahmed and Major Constitution has been lawfully adopted by and it is a mischievous device not founded theory whatsoever. Military rule is against the dignity, honour and glory of the nation General Ziaur Rahman, B,U. psc. but when a competent body and has been generally in any law known in Bangladesh and by that it achieved after great sacrifice; it is we specifically asked him to show us any accepted by the people including the Martial Law the whole nation is hijacked by against the dignity and honour of the Constitutional or legal provision in judiciary as the Constitution of the some people with the support of the armed people of Bangladesh who are committed justification of the seizure of State – Power country', an army commander can have the forces and the whole nation goes into a state to uphold the sovereignty and integrity of of the Republic , he was without any answer audacity to change the Constitution beyond of siege; it is like that the whole nation and the nation by all means; it is also against the honour of each and every soldier of the although he mumbled from time to time recognition and transfiguring a secular “We, the people of Bangladesh”, are taken Armed Forces who are oath bound to bear about the Fourth Amendment”. Bangladesh into a theocratic State. Perhaps hostage and further like a hostage-taking true faith and allegiance to Bangladesh and the U.S. Supreme Court would have kept situation, the hostage takers themselves uphold the constitution, which embodies “The election of the Second Parliament was mum instead of holding that the guarantee recognize that there is a superior law than the will of the people, honestly and conducted in February, 1979, during of due process bars Congress from their weapons which “We, the people” put faithfully serve Bangladesh in their respective services and also see that the Martial Law. At that time, Lieutenant enactments that 'shock the sense of fair in their hands to serve us and they recognize Constitution is upheld, it is not kept in General Ziaur Rahman, B.U., psc., was the play'. that there are two impediments to their suspension or abrogated, it is not President and the Chief Martial Law taking over power or assuming power, first, subverted, it is not mutilated, and to say the Administrator. But what duty is cast upon us. It is ordained the Constitution itself and so they, at first, least it is not held in abeyance and it is not that we must not and appreciate the facts start by saying “Notwithstanding anything amended by an authority not competent to do so under the Constitution. The Constitution (Fifth Amendment) Act, and the law in its proper perspective. in the Constitution” because they recognize 1979, was passed on April 6, 1979, We have done so. We must hold and declare that the Constitution is superior but they It may be mentioned here that the power to legalizing all the Proclamations, Martial that this Constitution (Fifth Amendment) choose to brush it aside. The second amend the Constitution is an onerous task Law Regulations, Martial Law Orders and Act, 1979, is not law”. Further as we have impediment to Martial Law is the Superior assigned to the Parliament, which the actions taken thereon, some of which already stated while dealing with the Court of the Republic entrusted with the represents the will of the people through are mentioned above. Any common man of principle of the supremacy of the solemn duty to “preserve, protect and their chosen representatives. It is to be ordinary prudence would say that the Constitution, the will of the people does not defend the Constitution” and so every 189 190 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

carried out in accordance with the Constitution is the embodiment and solemn ever again even think about overriding “the recognize our errors of the past and reflect procedure prescribed in Article 142 of the expression of the will of the people of will of the people” of Bangladesh and all these sentiments in the judgments of this Constitution and by no other means, in no Bangladesh, attained through the supreme must also ensure that this history never Court which will ensure preservation of the other manner and by no one else. sacrifice of nearly three million martyrs. repeats and all must recognize these faults sovereignty of “We, the people of Suspending the Constitution in the first Further the Parliament, by amendment of of the past and must rectify them so that our Bangladesh” forever as a true “pole star”. place, and then making amendments in it by the Constitution can not legitimize any conscience remains clear. Accordingly we hold that since the one man by the stroke of his pen, that is to illegitimate activity. Constitution is the Supreme law of the land say in a manner not envisaged or permitted The footprints that the “period of and the Martial Law Proclamations, by the Constitution, are mutilation and/or Accordingly, keeping the Constitution in delinquency” leaves behind are Martial Regulations and Orders promulgated / subversion of the Constitution simpliciter suspension and/or making amendments Law Proclamations, Regulations and made by the usurpers, being illegal, void therein by any authority not mentioned in Orders in the form of black laws and the and non-est in the eye of law, could not be and no sanctity is attached to such the Constitution otherwise than in ultimate insult to “We, the people” is the ratified or confirmed by the Second amendments per se. Indeed, the accordance with the procedure prescribed attempt to ratify these black laws by Parliament by the Fifth Amendment, as it Constitution is an organic whole and a in the Constitution itself, is tantamount to bringing those into the umbrella of the itself had no such power to enact such laws living document meant for all times to mutilating, and / or subverting the Constitution itself. In the present case the as made by the above Proclamations, come. Constitution. The Parliament can not ratify High Court Division recognizing these Martial Law Regulation or orders. and validate those unconstitutional acts of footprints sought to erase those once for all In the cases of A. T. Mridha and Anwar Hossain this Division held that there is no usurpers as the Parliament is not supreme and since all the parties before the High Moreover the Fifth Amendment ratifying existence of Martial Law or the Martial Law over everything else like the Parliament of Court Division agreed that the Constitution and validating the Martial Law Proclamations, Regulations or Orders in the United Kingdom, rather it is is supreme, obvious the result is that Proclamations, Regulations and Orders not our Constitution or any of the laws of the independent of other organs of the State, Martial Law is illegal and unconstitutional. only violated the supremacy of the land. Those authorities or the Proclamation but it certainly operates within certain So this Court should not, indeed cannot, Constitution but also the rule of law and by etc. are quite foreign to our jurisprudence. Still those Proclamations etc. were imposed parameters under the Constitution. grant leave in these petitions because to do preventing judicial review of the on the people of Bangladesh. Those have so would be perceived by “the people of legislative and administrative actions, also got no legal basis. Those are illegal and As it appears our country entered its Bangladesh” in the way that our highest violated two other more basic features of imposed by force. The people are “period of delinquency” at its very early judiciary is still unable, long after the the Constitution, namely, independence of constrained to accept it for the time being, Part in 1975 and that delinquency “period of delinquency”, to properly and judiciary and its power of judicial review. not out of attraction or its legality but out of fear. continued for long 16 years, Martial Law adequately deal with such delinquency and fall in the category of “black law” and the further, it would send wrong signals to As such we hold that the Fifth Amendment Further, the Parliament though may amend treatment of Martial Law by the Court, was those who wish to circumvent the “will of is also illegal and void and the High Court the Constitution under Article 142 but mostly based on Dosso's case (supra). the people” in the Constitution and that Division rightly declared the same as cannot make the Constitution subservient to Accordingly the ghost of Dosso's case each of our generations must also be taught, repugnant, illegal and ultra vires the any other Proclamations etc. or cannot should be given a go bye from our educated and informed about those dark Constitution. disgrace it in any manner since the jurisprudence forever so that no one can days; the easiest way of doing this is to 191 192 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

Since we have declared that Martial Law the Parliament to come out of this position, or otherwise should be condoned or held valid by applying the doctrine of Proclamations, Regulations and Orders resorted to the private law contrivance of maintained notwithstanding their illegality necessity and that Hamoodur Rahman CJ etc., are illegal, void and non east and the ratification of unauthorized actions of in the wider public interest. I would call this was speaking at a time when Pakistan was Fifth Amendment is also ultravires the agents by principals. But there is an a principle of condonation and not far away from accepting the doctrine of Constitution question will arise as to inherent limitation even in respect of such legitimization. Applying this test I would basic structure and therefore he could whether to prevent chaos and confusion and ratification as life can not be given to a condone (1) all transactions which are past speak of condoning legislative actions to avoid anomaly and to preserve prohibited transaction by ratification. and closed for no useful purpose can be which, at that time, the National Assembly continuity, the actions and the legislative Again by the device of ratification the served by reopening them (2) all acts and had the competence to pass. Pakistan measures taken during Martial Law period Parliament or any authority can not legislative measures which are in Supreme Court, towards the end of the needs to be condoned / cured by the increase its authority. It can ratify only accordance with or could have been made twentieth century, leaned towards the principles of doctrine of necessity. under the abrogated constitution or the doctrine of basic structure and the doctrine those actions of others which it can previous legal order (3) all acts which tend of basic structure was accepted as late in lawfully do. Thus parliament can not, by As it appears that this doctrine of necessity to advance or promote the good of the the year 2000 in the case of Zafar Ali Shah resorting to the device of ratification, ratify is applied to condone some of the actions of people (4) all acts required to be done for (Supra). an usurper, but not all. In Madzimbamutu v. and render valid an amendment which, the ordinary orderly running of the State The High Court Division then regarding Lardner-Burke (1968) 3 All ER 561, 579 itself, can not do because the same will lead Lord Pearce, in his dissenting judgment, and all such measures as would establish or the doctrine of necessity and condonation to the infringement of the basic features of termed the doctrine of condonation as lead to establishment of in our case the expressed its view as follows: the Constitution. doctrine of implied mandate and observed objectives mentioned in the Objectives ...... :- Resolution of 1954. I would not however ...... Regarding doctrine of necesity and “I accept the existence of the principle that condonation in Asma Jilani's case condone any act intended to entrench the ...... act done by those actually in control Hamoodur Rahman CJ. held as follows: usurper more firmly in his power or to ...... without lawful validity may be recognized “I too am of the opinion that recourse has to directly help him to run the country “But in order to avoid confusion, legal or as valid or acted on by the courts, with be taken to the doctrine of necessary where contrary to the legitimate objectives. I otherwise and also to keep continuity of the certain limitations, namely, (a) so far as would not condone anything which sovereignty and legal norm of the they are directed to and reasonably required the ignoring of it would result in disastrous for ordinary running of the State; and (b) so consequences to the body politic and upset seriously impairs the rights of the citizens Republic, we have next to consider as to far as they do not impair the rights of the social order itself but I respectfully beg except in so far as they may be designed to whether the legislative acts purported to be citizens under the lawful (1961) to disagree with the view that this is a advance the social welfare and national done by those illegal and void Constitution; and (c) so far as they are not doctrine for validating the illegal acts of solidarity”. Proclamations etc. during the period from intended to and do not in fact directly help However, the High Court Division found August 15, 1975 to April 9, 1979, can be the usurpation and do not run contrary to the usurpers. In my humble opinion this policy of the lawful sovereign. This is doctrine can be involved in aid only after that item (2) as referred above, on condoned, by invoking the doctrine of “ tantamount to a test of public policy.” the court has come to the conclusion that conversion, means that any act or State necessity” the acts of the usurpers were illegal and legislative measure, which is not in But it does not mean that for the sake of But since there are limits to the application illegitimate. It is only then the question accordance with or could not have been continuity of the sovereignty of the State, of such doctrine of necessity, in occasions, arises as to how many of his acts legislative made under the Constitution, can not be the Constitution has to be soiled with 193 194 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

illegalities, rather, the perpetrators of such proper authority. address of Lord Mansfield is that subject to against Pakistan. As a matter of fact, that illegalities should be suitably punished and the condition of absoluteness, extremeness was the beginning of the end. Besides, the condemned so that in future no adventurist, This doctrine of State necessity was and imminence, an act which would Hon'ble Chief Justice also forgot that only no usurper, would have the audacity to defy possibly applied for the first time in this otherwise be illegal becomes legal if it is a few months back in the case of Federation the people, their Constitution, their sub-continent in Pakistan in the Reference bone bona fide under the stress of necessity, of Pakistan V. Moulvi Tamizuddin Khan Government, established by them with their by His Excellency the Governor General in the necessity being referable to an intention PLD 1955 FC 240, his Lordship refused to consent. Special Reference No.1 of 1955 (PLD 1955 to preserve the constitution, the State or the interfere even in case of a real disaster FC 435). This Reference was made under Society and to prevent it from dissolution, brought about, again by the Governor If we hark back to history, we would see that section 213 of the Government of India Act, and affirms Chittyfs statement that General in dissolving the Constituent after Restoration in 1660, Charles II 1935. It shows how Ghulam Muhammad, necessity knows no law and the maxim Assembly. became King of England with effect from the Governor General of Pakistan was cited by Bracton that necessity makes January 1649, the day when his father, caught in his own palace clique but was lawful which otherewise is not lawful……. In that case the above Chief Justice held at Charles I was beheaded, in order to keep the rescued by an over-anxious Supreme Court the indispensable condition being that the page . 299: lawful continuity of the Realm but not the by reincarnating a long forgotten doctrine exercise of that power is always subject to continuity of the illegal administration of of State necessity. The Hon'ble Chief the legislative authority of parliament, to be It has been suggested by the learned Judges the Commonwealth. Justice looked for help in the 13th century exercised ex post facto…….The of the Sind Chief Court and has also been Bracton digged deep into the early Middle emergency legislative power, however, vehemently urged before us that if the view The moral is, no premium can be given to Ages for Kings prerogatives and the cannot extend to matters which are not the that I take on the question of assent be any body for violation of the Constitution maxims, such as, Id Quod Alias Non Est product of the necessity, as for instance, correct, the result would be disastrous for any reason and for any consideration. Licitum, Necessitas Licitum Facit (that changes in the constitution which are not because the entire legislation passed by the What is illegal and wrong must always be which otherwise is not lawful, necessity directly referable to the emergency. But Constiuent Assembly, and the acts done condemned as illegal and wrong till makes lawful), salus populi Suprema lex what the Hon'ble Chief Justice decided to and orders passed under it will in that case eternity. In the present context, the illegality (safety of the people is the supreme law) ignore was that the Governor General have to be held to be void. ……….I am and gravest wrong was committed against and salus republicae est suprema lex (safety himself brought disaster upon the entire quite clear in my mind that we are not the People_fs Republic of Bangladesh and of the State is the supreme law). His country by dissolving the Constituent concerned with theconsequences, however its people as a whole. This doctrine of State Lordship referred to Chitty' s exposition Assembly earlier in October 1954 when the beneficial or disastrous they may be, if the necessity is no magic wand. It does not and Maitland's discussion on the Monarchy Prime Minister had already set the date for undoubted legal position was that all make an illegal act a legal one. But the in England in late 17th century. His adopting the Constitution for Pakistan in legislation by the Legislature of the Court in exceptional circumstances, in Lordship thereafter referred to the December, 1954. That itself was a violation Dominion under section (3) of section 3 order to avert the resultant evil of illegal summing up of Lord Mansfield, to the Jury of the Independence Act, 1947 and a needed the assent of the Governor- legislations, may condone such illegality on in the proceedings against George Stratton treasonous act against the people of General. If the result is disaster, it will the greater interest of the community in and then held at pages 485-6: Pakistan. With great respect, the Governor merely be another instance of how general but on condition that those acts General ought not to have allowed to take thoughtlessly the Constituent Assembly could have been legally done at least by the The principle clearly emerging from this advantage of his own grievious wrong proceeded with its business and by 195 196 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

assuming for itself the positition of an the Governor General than that of the principle governing validation being that case that the Constituent Assembly was not irremovable Legislature to what straits it Constituent Assembly. He refused to validation being itself legislation you a sovereign body. But that did not mean has brought the country. Unless any rule of invoke the doctrine of necessity but upheld cannot validate what you cannot legislate that if the Assembly was not a sovereign estoppel require us to pronounce merely the dissolution of the Constituent Assembly upon. Therefore if the Federal Legislature, body the Governor-General was”. in the absence of a provision expressly purported legislation as complete and valid which by then was ready with the But in this connection, the opinion of De authorizing it to do so, was incompetent to Constitution for Pakistan but invoked the legislation, we have no option but to amend the Indian Independence Act or the Smith is pertinent: pronounce it to be void and to leave it to the said very doctrine in aid of the Governor Government of India Act, the Governor- relevant authorities under the Constiution General to steer him clear out of the General possessing no larger powers than “It is clear ……. that the leading Pakistan or to the country to set right the position in constitutional crisis, created by himself, by those of the Federal Legislature was decision in 1955 was a not very well any way it may be open to them. The twisting and bending the legal provisions equally incompetent to amend either of disguised act of political judgment. By the question raised involves the rights of every even calling upon the seven hundred years those Acts by an Ordinance. Under the normal canons of construction, what the citizen in Pakistan, and neither any rule of old maxims. Independence Act the authority competent Governor-General had done was null and construction nor any rule estoppel stands in to legislate on constitutional matters being void. But the judges steered between the Constituent Assembly, it is that the way of a clear pronouncement. However, Cornelius, J., in Tamizuddin Scylla and Charybdis and chose what Khan's case dissented and at page- 358 held Assembly alone which can amend those seemed to them to be the least of evils. as follows: Acts. The learned Advocate-General This stoic and stout stand like that of a 16th alleges that the Constituent Assembly has Quoted from Leslie Wolf- Phillips: Century Common Law Judge was taken by “I place the Constituent Assembly above been dissolved and that therefore Constitutional Legitimacy at page- 11)”. Munir, C.J., when the dissolution of the the Governor General, the chief Executive validating powers cannot be exercised by This is how the doctrine of necessity made Constituent Assembly was challenged but of the State, for two reasons, firstly that the that Assembly. In Mr. Tamizuddin Khan's its appearance in order to salvage what was Constituent Assembly was a sovereign the same Chief Justice became full of equity case, we did not consider it necessary to left of the normal constitutional process in body, and secondly because the statutes decide the question whether the when the Governor General was caught in under and in accordance with which the Pakistan at that time in 1955. his own game because of his earlier Governor-General was required to Constituent Assembly was lawfully The High Court Division further held as dissolved but assuming that it was, the dissolution of the Constituent Assembly. It function, were within the competence of follows: effect of the dissolution can certainly not be appears that the Hon'ble Chief Justice was the Constituent Assembly to amend.... It should be noted that earlier to the the transfer of its powers to the Governor- more concerned and worried about the In the case of Asma Jilani V. Government Governor Generals Reference No.1, in the General. The Governor-General can give or difficulties of the Governor General who case of Usif Patel V. Crown PLD 1955 FC- withhold his assent to the legislation of the of Punjab PLD 1972 SC 139, Hamoodur was supposed to be only a titular head, than 387, decided on April 12, 1955, on behalf of Constituent Assembly but he himself is not Rahman, C.J., held at page-204-5: the Constituent Assembly, the institution an unanimous Supreme Court, Munir C.J. the Constituent Assembly and on its Reverting now to question of the legality of which represented the people of Pakistan held at page -392: disappearance he can neither claim powers the Presidential Order No.3 of 1969 and the but was dissolved by the Governor General which he never possessed nor claim to Martial Law Regulation No.78 of 1971 it The rule hardly requires any explanation, which augmented the constitutional crisis. succeed to the powers of that Assembly. His follows from the reasons given earlier that much less emphasis, that a Legislature Lordship further held at page-396: With great respect, it appears that the cannot validate an invalid law if it does not they were both made by an incompetent Hon'ble Chief Justice of Pakistan held a authority and, therefore; lacked the possess the power to legislate on the subject “This Court held in Mr. Tamizuddin Khan's double standard in protecting the interest of to which the invalid law relates, the attribute of legitimacy which is one of the 197 198 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

essential characteristics of a valid law. The Governor-General's Reference No.1 of The High Court Division further held as cry for fraternity were reverbrated in the Presidential Order No.3 of 1969 was also 1955 invoked the maxim of salus populi follows:- same manner from horizon to horizon. This invalid on two additional grounds, namely, suprema lex to create some kind of an order ………As Judges, our only tools are the sense of liberty made us independent from that it was a Presidential Order, which could out of chaos. I would like to proceed with Constitution, the laws made or adopted the yoke of the British rule in 1947 and the not in terms of the Provisional Constitution great caution, for, I find it difficult to under it and the facts presented before us. same sense of liberty pushed us through the Order itself amend the Constiution so as to legitimize what I am convinced is We are bound by these instruments and we war of liberation in 1971 and brought take away the jurisdiction conferred upon illegitimate…..” are to follow it. The plea of State necessity Bangladesh into existence. But the the High Courts under Article 98 and that it ...... shall have to be considered within the proclamation of Martial Law is altogether certainly could not, in any event, take away ...... bounds of these instruments and not the negation of the said spirit of liberty and the judicial power of the Courts to hear and ...... without those. That is how we read Grotius independence. In this connection we would determine questions pertaining even to their Then in the above case the Hon'ble Chief and Lord Pearce in Madzimbamuto. But recall what was said in the case of own jurisdiction and this power could not Justice fell back on the doctrine of Grotius or Lord Mansfield in Stratton's case Shamima Sultana Seema V. Government be vested in another authority as long as the necessity and held at page-206-7 the (1779) or Lord Pearce, did not dream of of Bangladesh 2LG (2005) 194 at para- Courts continued to exist. contents of which we have already stated breaking any law or giving legitimacy to an 123: earlier. Then regarding the case of Nusrat illegality, far less making the Constitution, This does not, however, dispose of the case, Bhutto, on which the petitioners relied in the supreme law of any country, It should be remembered that the ingrained for, we are again presented by the learned which Pakistan Supreme Court did not subservient to the commands of any Army spirit of the Constitution is its intrinsic Attorney-General with the argument that a follow Asma Jilani's case and gave approve General, whose only source of power is power. It is its soul. The Constitution of a greater chaos might result by the to the inposition of Martial Law invoking through the muzzle of a gun although all the country is its source of power. It is acceptance of this principle of legitimacy. doctrine of necessity, the High Court Generals in any country seize power in the invaluablewith its such soul. It strives a He has reminded the Court of the grave Division held as follows: name of the people and on the plea of lack nation to move forward. But if the said consequences that followed when in It appears, that the Supreme Court of of democracy in the country with a solemn spirit is lost, the Constitution becomes a Moulvi Tamuzuddin Khan's case a similar Pakistan accepted the explanation given by promise to restore it in no time, as if the mere stale and hollow instrument without General Mohammad Ziaul Haq for the argument was spurned by the Federal Court democracy can be handed down to the Army's intervention and validated such its such life and force. It becomes a dead people in a well packed multi-coloured gift and disaster brought in. I am not unmindful intervention and the imposition of Martial letter. The United Kingdom, although does of the grave responsibility that rests upon Law invoking the doctrine of State box. not have any written Constitution but has Courts not to do anything which might necessity.In doing so the learned Judges Democracy is a way of life. It cannot be got the spirit of the Constitution and that is make confusion worse confounded or resorted to the Holy Quran also, in begotten over-night. It cannot be handed why the people of that country can feel justification for suspension of the create a greater state of chaos if that can down in a silver platter. It has to be earned. Constitution and dissolution of the proud of their democracy but there are It has to be owned. The world history is possibly be avoided consistently with their National and Provincial Assemblies. In this countries with Constitutions, written and duty to decide in accordance with law. respect they were satisfied with the replete with stories of people, ordinary amended many a times but without the said ……… This is a difficult question to decide explanations given by the Army Chief of people who fought for their rights in spirit, the democracy remains a mirage”. and although I have for my guidance the Staff. This was a U-turn of the Supreme different names in different countries, but The High Court Division further held as Court from its earlier stand in the cases of example of our own Federal Court, which in the cry for liberty, the cry for equality, the Asma Jilani and Ziaur Rahman. follows: 199 200 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

We have already discussed earlier that the transformed into a theocratic State and Proclamation (Fifteenth Amendment) Besides, by the above noted Proclamation, English text of various portion of the thereby not only changed one of the most Order, 1978 (Second Proclamation Order by the amendment of Article 6, our identity Preamble, Article 6, Article 8, Article 9, basic and fundamental features of the No. IV of 1978) 2nd Schedule. of thousand years as Bangalee was Article 10 and Article 25 were altogether Constitution but also betrayed one of the changed into Bangladeshis. Since the said changed or replaced while Article 12 was dominant cause for the war of liberation of The Second Proclamation (Seventh change was made by a Martial Law completely omitted by the Proclamations Bangladesh. Amendment) Order, 1976 (Second Proclamation, it was without jurisdiction (Amendment) Order, 1977 (Proclamation ...... Proclamation Order No. IV of 1976), and non-est in the eye of law, as such, there Order No. 1 of 1977). This was published in ...... repealed most of the changes brought about was nothing to ratify confirm or validate by Bangladesh Gazette Extra-ordinary on ...... by the (Fourth Amendment) Act, 1975, save the subsequent Act of Parliament. April 23, 1977.Besides other changes, a ...... and accept Chapters I and II of the Part IV ...... new paragraph with the heading, 3A. The Proclamations (Second Amendment) of the Constitution, keeping the ...... validation of certain Proclamations, etc. Order, 1975, dated November 6, 1975, was Presidential form of Government, ...... was inserted after paragraph 3 in the Fourth made, inserting clause (aa) in the introduced earlier by the Fourth Under the circumstances, we deny schedule to the Constitution. The English Proclamation dated August 20, 1975, Amendment. The Second Proclamation condonation of both Bengali and English text of the proviso to article 38 was omitted providing for nomination of any person as Order No. IV of 1976 came into force with texts of the following provisions made in by the Second Proclamation (Sixth President. effect from 13.8.1976. The Proclamations the Constitution by the various Amendment) Order 1976 (Second (Amendment) Order, 1977 (Proclamations Proclamations : Proclamation Order No. III of 1976). The The Proclamation dated November 8, Order No. 1 of 1977) (Annexure-L-1 to the 1) The Amendments made in the Preamble Bengali text of the above noted all the 1975, omitted Part VI A of the Constitution writ petition), replaced many of the of the Constitution changes were made by the Second (added by the Fourth Amendment). paragraphs in the Preamble and in various 2) Article 6. Proclamation (Fifteenth Amendment) The Second Proclamation (Sixth provisions of the Constitution. The 3) Article 8. Order, 1978 (Second Proclamation Order Amendment) Order, 1976 (Second Proclamation was published in Bangladesh 4) Article 9 No. IV of 1978). Besides, clauses 1A, 1B Proclamation Order No. III of 1976), Gazette Extraordinary on April 23, 1977. 5) Article 10 and 1C were added to Article 142 of the omitted the following proviso of the This Proclamation made changes in First 6) Article 12 Constitution by the above Order No. IV of original Article 38: and Second Preamble, Articles 6, 8, 9, 10, 7) Article 25. 1978. These changes were of fundamental 12, 38, and 142 of the Constitution which 8) Proviso to Article 38 in nature and changed the very basis of our “Provided that no person shall have the has been stated earlier . 9) Clauses 1A, 1B and 1C to Article 142. war for liberation and also defaced the right to form, or be a member or otherwise 10) Paragraph 3A to the Fourth Schedule to Constitution altogether. The very take part in the activities of, any communal “Excepting Article 42, these are the basic the Constitution. endeavour to change the basic features of or other association or union which in the changes in the structure of the Constitution For retaining Article 95 the High Court the Constitution by the Martial Law name or on the basis of any religion has for and cannot even be done by the Parliament Division stated as follows: Proclamations was illegal, void and non est its object, or pursues, a political purpose”. itself, and as such, the question of It may be reiterated that by the Second in the eye of law. By the said Martial law The Bengali version of the above Proviso ratification, confirmation or validation of Proclamation (Seventh Amendment) Proclamations, the secular Bangladesh was was omitted subsequently by the Second those changes does not arise. Order, 1976 (Second Proclamation Order 201 202 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

No. IV of 1976), several changes were Proclamation Order No. 1 of 1977) again Proclamation (Tenth Amendment) Order, We have held earlier held in general that made with effect from 13.8.1977 in the changed Article 95(1) of the Constitution in 1977 (Second Proclamation Order No. 1 of there was no legal existence of Martial Law Constitution as it stood after the Fourth the following manner: 1977) which commensurates with Article and consequently of no Martial Law Amendment. One of such changes was in 95. Appointment of Judges- (i) The Chief 95(1) as made in the Fourth Amendment Authorities, as such, all Proclamations etc. respect of Article 95 of the Constitution. Justice and other Judges shall be appointed along with its English Text. were illegal, void ab initio and non est in This provision is in respect of appointment by the President…….. This would amount to revival of Article the eye of law. This we have held strictly in of Judges in the Supreme Court. Article 95 This form of Article 95(1) is exactly the 95(1) as amended by the Second accordance with the dictates of the in the original Constitution reads as follows same as made in the Fourth Amendment. Proclamation (Seventh Amendment) Constitution, the supreme law to which all : 95. (1) The Chief Justice shall be This Order containing Article 95 in this Order, 1976 (Second Proclamation Order the Institutions including the Judiciary owe appointed by the President, and the other form came into force on 1.12.1977 and N o . I V o f 1 9 7 6 ) its existence. We are bound to declare what judges shall be appointed by the President remains so in the Constitution till date in ...... have to be declared, in vindication of our after consultation with the Chief Justice. view of the Fifth Amendment, without ...... oath taken in accordance with the (2)...... further change”. This Second Proclamation ...... Constitution, otherwise, we ourselves The Constitution (Fourth Amendment) Act, (Tenth Amendment ) Order 1977 (Second Then the High Court Division concluded as would be violating the Constitution and the 1975, changed clause (1) of Article 95 in the Proclamation Order No. 1 of 1977) follows: oath taken to protect the Constitution and following manner : containing the latest version of Article 95 We provisionally condone the various thereby betraying the Nation. We had no 95.(1) The Chief Justice and other Judges was sought to be protected amongst others provisions of the Proclamations with other alternative, rather, we are obliged to shall be appointed by the President………. firstly by the Proclamations (Amendment) amendments as appended to the book, act strictly in accordance with the Article 95(1) was again amended by the Order, 1977 (Proclamations Order No. 1 of namely, the Constitution of the People provisions of the Constitution. S e c o n d P r o c l a m a t i o n ( S e v e n t h 1977), by inserting Paragraph 3A in the Republic of Bangladesh; published by the Amendment) Order, 1976 (Second Fourth Schedule to the Constitution. This Ministry of Law, Justice and Parliamentary The learned Advocates for the petitioners Proclamation Order No. IV of 1976) with was published in the Bangladesh Gazette Affairs, Government of Bangladesh, as raised the possibility of chaos or confusion effect from August 13, 1976, in the Extraordinary on 23.4.1977. Secondly, by modified upto 31st May, 2000, save and that may arise if we declare the said following manner: insertion of Paragraph 18 in the Fourth except those mentioned above. But since Proclamations, MLRs and MLOs and the 95. Appointment of Supreme Court Schedule by the Constitution (Fifth we have declared the Constitution (Fifth acts taken thereunder as illegal, void ab Judges,-(1) The Chief Justice of the Amendment) Act, 1979. Amendment) Act, 1979, ultravires to the initio and non est. We are not unmindful of Supreme Court shall be appointed by the Constitution, the vires of the rest of the such an apprehension although unlikely President, and the other Judges shall be Since we have decided that we would provisions of the Proclamations not but we have no iota of doubts about the appointed by the President after approve and condone the amendments considered herein, remain justifiable illegalities of those Proclamations etc. consultation with the Chief Justice…..… made in the Constitution which would before the Court. However, all the acts and What is wrong and illegal shall remain so This version commensurate with the Article repeal the various provisions of the proceedings taken thereon, although were for ever. There cannot be any acquiescence 95 in the original unamended Constitution. Constitution (Fourth Amendment) Act, not considered yet, are condoned as past in case of an illegality. It remains illegal for But by the Second Proclamation (Tenth 1975, we do not condone the amendment of and closed transactions. all time to come. A Court of Law cannot Amendment) Order, 1977 (Second clause (1) of Article 95 by the Second extend benefit to the perpetrators of the 203 204 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

illegalities by declaring it legitimate. It and salus republicae est suprema lex (safety quod Alias Non Est Licitum. Necessitas and preserve continuity condoned all acts remains illegitimate till eternity. The of the State is the supreme law). Licitum Facit, salus populi est suprema lex and thins and proceedings taken during the seizure of power by Khandaker Moshtaque and salus republicae est suprema lex. period from August 15, 1975 to April 9, Ahmed and his band of renegades, In this connection it may again be reminded 1979 as past and closed transactions and in definitely constituted offences and shall that those Proclamations etc. were not 20. As such, all acts and things done and para 21 of its summery the High Court remain so forever. No law can legitimize made by the Parliament but by the usurpers actions and proceedings taken during the Division condoned all the provisions their actions and transactions. The Martial and dictators. To them, we would use period from August 15, 1975 to April 9, which deleted the various provisions of the Law Authorities in imposing Martial Law Thomas Fullers warning sounded over 300 1979, are condoned as past and closed Fourth Amendemnt. behaved like an alien force conquering years ago: Be you ever so high, the law is transactions, but such condonations are As it appears, by the Fourth Amendment, Bangladesh all over again, thereby above you. (Quoted from the Judgment of made not because those are legal but only in amongst others, transforming themselves as usurpers, plain Lord Dennings M. R., in Gouriet V. Union the interest of the Republic in order to avoid and simple. of Post Office Workers (1977) 1 QB 729 at chaos and confusion in the society, (1) In place of Parliamentary system, page-762). Fiat justitia, ruat caelum. although distantly apprehended, however, Presidential system was introduced by Be that as it may, although it is very true that those remain illegitimate and void forever. substituting chapter I and II of Part IV illegalities would not make such Regarding condonation, the High Court 21. Condonations of provisions were made, of the Constitution. continuance as a legal one but in order to Division, in paragraphs 18-21 of the among others, in respect of provisions, protect the country from irreparable evils summary, held as follows:- deleting the various provisions of the (2) The impeachment and removal of flowing from convulsions of apprehended Fourth Amendment but no condonation of the President was made tougher. chaos and confusion and in bringing the “18. The turmoil or crisis in the country is the provisions was allowed in respect of country back to the road map devised by its no excuse for any violation of the omission of any provision enshrined in the (3) The power of the Parliament was Constitution, recourse to the doctrine of constitution or its deviation on any pretext. original Constitution. The Preamble Article reduced by amending Article 80. necessity in the paramount interest of the Such turmoil or crisis must be faced and 6, 8, 9, 10, 12, 25, 38 and 142 remain as it . nation becomes imperative. In such a quelled within the ambit of the Constitution was in the original Constitution. No (4) The power of the High Court situation, while holding the Proclamations and the laws made thereunder, by the condonation is allowed in respect of change Division to enforce fundamental rights etc. as illegal and void ab initio, we concerned authorities, established under of any of these provisions of the was curtailed by substituting Article provisionally condone the Ordinances, and the law for such purpose. Constitution. Besides, Article 95, as 44. provisions of the various Proclamations, amended by the Second Proclamation MLRs and MLOs save and except those are 19. Violation of the Constitution is a grave Order No. IV of 1976, is declared valid and (5) The independence of judiciary was specifically denied above, on the age old legal wrong and remains so for all time to retained.” curtailed by amending Article 95. principles, such as, Id quod Alias Non Est come. It cannot be legitimized and shall LIcitum, Necessitas Licitum Facit (That remain illegitimate for ever, however, on As it appears, the High Court Division (6) One-party political system was which otherwise is not lawful, necessity the necessary of the State only, such legal accepted the doctrine of condonation as introduced by adding part VIA in the makes lawful), Salus populi suprema lex wrongs can be condoned in certain was done in Asma Jilani's case and in order Constitution. (safety of the people is the supreme law) circumstances, invoking the maxims. Id to avoid chaos and confusion in the society 205 206 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

It also appears that by the Fifth absolute veto power of the President as principles of nationalism, socialism, association or union which in the name Amendment, amonsgt others, the following introduced by the Fourth Amendment democracy and secularism shall or on the basis of any religion has for its changes were made. (Article 80). The same was made by the constitute the fundamental principles of object, or pursues, a political purpose.” Second Proclamation (Fifteenth State Policy; addition of the words “the The same was made by the Second (1) Omission of Part VIA of the Amendment) Order 1978. principle of absolute trust and faith in Proclamation (Sixth Amendment) Constitution dealing with one party the Almighty Allah” in Article 8(1) and Order 1976. system as introduced by the Fourth Constitution. The same was made by also the insertion of a new sub article Amendment. The above omission was Second Proclamation Order (Fifteenth (1A) containing the words “Absolute (13) Addition of new Article 92A made by Proclamation dated 8th Ahmed) 1978 by inserting sub-articles trust and faith in the Almighty Allah giving the President the power to November of 1975. (1A), (1B) and (1C) in Article 142. shall be the basis of all actions” after expend public moneys in certain cases amended Article 8(1). The above was even without the approval of the (2) Partial restoration of the (7) The insertion of the words made by Proclamation Order No.1 of Parliament. The said Article 92A was independence of judiciary (Article 95 “Bismillahir Rahmanir Rahim” at the 1977. inserted in the Constitution by the and 116) as made by the Second beginning of the Constitution i.e. above Second Proclamation (Fifteenth Proclamation (Seventh Amendment) the Preamble. (10) Giving new explanation to Amendment) Order 1978. Order 1976. Indepence of judiciary was “Socialism” as mentioned in original curtailed by the Fourth Amendment. (8) Amending the original Article 6 of Article 8(1), one of four major (14) Inserting of another new Article the Constitution which provided that fundamental principles of State Policy, 145A providing that all international (3) Restoration of the jurisdiction of the the citizens of Bangladesh would be to the effect that socialism would mean treaties would be submitted to the High Court Division to enforce known as 'Bangalees' by the substituted only economic and social justice. President who should cause them to be fundamental rights as was provided in Article 6 providing that citizens of laid before Parliament by second original Articles 44 and 102 of the Bangladesh would be known as (11) Substitution of original Article 10 proclamation. The said Article 145A Constitution. The same was made by the 'Bangladeshis'. Further original Article of the Constitution which guaranteed was inserted in the Constitution by the Second Proclamation (Seventh 9 of the Constitution, which provided democracy and human rights by a new Second Proclamation (Fifteenth Amendment) Order 1976. for unity and solidarity of the Bengalee Article providing “Participation of Amendment) Order 1978. nation, was also substituted by a new women in national life” which has no (4) Insertion of the provision of Article providing promoting local nexus with the original Article 9. (15) Amendment of Article 58 of the Supreme Judicial Council in respect of governmental institution. The same was Constitution providing that four-fifth security of tenure of the judges of the done by Proclamation Order No.1 of (12) Omission of the proviso to Article of the total number of ministers should Supreme Court (Article 96). The same 1977. 38 from the original Constitution which be taken from among the members of was made by Proclamation Order No.1 provided as follows:- “Provided that no Parliament and that the President of 1977. (9) Omission of secularism as was person shall have the right to form, of be would appoint as Prime Minister a provided in original Article 8(1) of the a member or otherwise take part in the member of parliament who appeared to (5) Abolition of the provision of Constitution which declared that the activities of, any communal or other him to command the support of the 207 208 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

majority of the members of parliament. The other modifications that we want to 96 as existed in the Constitution on August Second Proclamation (Tenth Amendment) The same was made by the Second make are in respect of the following 15, 1975 provided that a Judge of the Order, 1977. The above restoration of sub- Proclamation (Fifteenth Amendment) provisions of the Constitution As it appears Supreme Court of Bangladesh may be article (1) of Article 102, being beneficial, Order 1978. Part III of the Constitution enumerates a removed from the office by the President on should be condoned for the wider public host of fundamental rights in which the the ground of “misbehaviour or interest. A question has been raised as to whether the framers of the Constitution made the right incapacity”. However clauses (2), (3), (4), It also appears that Part VIA of the High Court Division can exercise the to move the Supreme Court of Bangladesh (5), (6) and (7) of Article 96 were Constitution under the heading 'THE “legislative power” by way of condonation. for enforcement of fundamental rights substituted by the Second Proclamation NATIONAL PARTY' incorporating Article But it is now settled to avoid anomaly and itself a fundamental right. But as discussed (Tenth Amendment) Order, 1977 providing 117A was added by the Fourth also to preserve continuity, the Courts have earlier, the same was substituted by the the procedure for removal of a Judge of the Amendment. However in a democratic to pass consequential orders. No exception Fourth Amendment providing that the Supreme Court of Bangladesh by the system the existence of different political can be taken to it. Illustrations of such “Parliament may by law establish a Supreme Judicial Council in the manner parties and their participation in the judicial power may be found in the Eighth Constitutional Court, Tribunal or provided therein instead of earlier method parliamentary election cannot be denied Amendment case wherein the Appellant Commission for the enforcement of the of removal. This substituted provisions because such participation would flourish Division ordered prospective application of rights conferred by this part”. But the being more transparent procedure than that the democracy in the country. Further this the invalidity of the Eighth Amendment. English Text of this Article was substituted of the earlier ones and also safeguarding Article 117A is also inconsistent with Further while declaring any law ultra vires, by the Second Proclamation (Seventh independence of judiciary, are to be Articles 37, 38, 39 of the Constitution. the Court often applies the doctrine of Amendment) Order, 1976 and the Second condoned. However this provision has been deleted by severability to limit the application of the Proclamation (Tenth Amendment) Order, the Proclamation dated 8th November, 1975. judicial verdict. This is no legislative act 1977 and the Bengali Text was substituted Earlier while discussing the different Accordingly this portion of the above though such a decision modifies or even by the Second Proclamation (Fifteenth Proclamations, Martial Law Regulations Proclamation needs to be condoned. destroys a legislation. Amendment) Order, 1978 and by these and Orders we found that under the amendments the original Article 44 was Constitution of 1972 the High Court As it appears Article 95 of the Constitution, Now regarding the modifications of the restored. As a result a citizen of Bangladesh Division, under original Article 102(1), had relates to the appointment of the Judges of judgment and order of the High Court is entitled to move the High Court Division powers to pass necessary orders to enforce the Supreme Court of Bangladesh. The Division it may be noted that earlier to under Article 102 for the enforcement of fundamental rights. It may be noted here above Article 95 as it stood after the avoid the hardship that the poeple may the rights conferred in Part III. This that this power of the High Court Division amendment made by the Second suffer, we are inclined to condone the substitution of Article 44, no doubt, was is not discretionary and whenever an Proclamation (Seventh Amendment) substituted provision of Article 6 of the designed to advance rule of law and the authority acts illegally or commits an error Order, 1976 has been retained by the High Constitution. We have also expunged the welfare of the people and accordingly it of law or a citizen's fundamental right is Court Division. The above Order, amongst findings of the High Court Division made in needs to be retained for the interest of violated, the remedy under this article can others, changed Article 95 of the respect of Article 150 of the Constitution justice. be availed of. This sub-article (1) of Article Constitution relating to the appointment of and the Fourth Schedule taking in view of 102 though was deleted by the Fourth Judges of the Supreme Court. This the subsequent development. It also appears that the provision of Article Amendment has been restored by the amendment of Article 95 commensurate 209 210 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

with the Original Article 95 which existed However, before concluding we would like BLT (AD) 231 observed as follows: It is our earnest hope that Articles 115 and before the enactment of the Fourth to mention that our decision will remain 116 of the Constitution will be restored to Amendment wherein there was provision incomplete if we do not mention the present “it is true that “consultation” was their original position by the Parliament as for the appointment of the Judges by the state of the judiciary in the Constitution. considered in the light of Article 116 of the soon as possible. Before we conclude, we President “after consultation with the Chief As it appears Mustafa Kamal, CJ was Constitution but never the less the same would like to quote the following: “The Justice”. But this consultative provision as emphatic in respect of the independence of principle all the more applies in the matter greatest of all the means ……….for provided by Second Proclamation (Seventh the judiciary in Secretary of Finance V of appointment of Judges of the Supreme ensuring the stability of Constitution-but Amendment Order 1977) was deleted by Masdar Hossain 2000(VIII) BLT (AD) 234 Court under Articles 95 and 98 of the which is now a days generally neglected is the Second Proclamation (Tenth wherein he held in para 44, page 257 – 258 Constitution because without the the education of citizens in the spirit of the Amendment) Order, 1977. Accordingly, as follows: “44. The independence of the independence of the Supreme Court there Constitution …………To live by the rule after the amendment of the amended Article judiciary, as affirmed and declared by cannot be any independence of the of the Constitution ought not to be regarded 95 by the Second Proclamation (Tenth Articles 94 (4) and 116A , is one of the basic subordinate courts and minus the as slavery, but rather as salvation.” Amendment) Order,1977, Article 95 as pillars of the Constitution and cannot be consultation and primacy the separation of (Artistotle's Politics (335-322 BC) pp 233- amended by the Second Proclamation demolished, whittled down, curtailed or judiciary from executive will be empty 34” Order No. IV of 1976, did no longer exist, diminished in any manner whatsoever, words……..” and therefore, it was not ratified or validated except under the existing provision of the It was further observed:- We would also quote the following passage or confirmed by the Fifth Amendment. Constitution. It is true that this from the conclusion in an essay on Noni Accordingly this Article 95 as amended by independence, as emphasized by the “we agree, with approval, with Justice Palkivala in …….. “Democracy, Human the Second Proclamation Order No. IV of learned Attorney General , is subject to the Bhagvati and add further that although rights and Rule of Law” edited by Venkat 1976 could not be legally condoned by the provision of the Constitution, but we find Article 22 has been implemented to a great Iyer , 2000 regarding the “Period of High Court Division as it was not in force on no provision in the Constitution which extent through the judgement of this Court Deliquency” in India in 1975 -1977 : the day the Fifth Amendment was passed. curtails, demolishes to otherwise abridges in Masdar Hossains's case but until and Moreso, a repealed provision can not be this independence……” unless the unamended Articles 115 and 116 Despite the traumatic events of 1995 – legally retained and/or validated by the of the Constitution are restored vesting the 1977, the lessons of that emergency have Court. So Article 95 will remain as it existed However we are of the view that the words, control of the subordinate judiciary in the now, alas, also been forgotten by a vast on August 15, 1975. However, in view of “but we find no provision in the Supreme Court, the separation of judiciary majority of Indian citizenery. It is said that the declarations given in the Judges case Constitution which curtails, demolishes or will remain a distant cry and a music of the people do not realize the benefits of (Supra) declaring that convention of otherwise abridges this independence” do distant drum” It may be noted here that freedom until they are lost. Twenty five consultaion being, a Constitutional not depict the actual picture because unless among the twelve directions given in years have passed and a new generation of imperative, is binding upon everybody. Articles 115 and 116 are restored to their Masdar Hossain's case one was to the effect Indians is not even aware of what happened Accordingly this retention of substitued original position, independence of that Parliament will in its wisdom take during those eventful months. Article 95 will have no bearing on the judiciary will not be fully achieved. necessary steps regarding this aspect of matter of consultation. independence of judiciary. It is essential that if India is to preserve her In this regard, Matin, J. in Judges Case 17 democratic freedom, each generation must 211 212 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013

be taught, educated and informed about respective services and also see that the (b) the actions not derogatory to the rights (f) all acts and legislative measures which those dark days. Every Indian needs to Constitution is upheld, it is not kept in of the citizens; are in accordance with, or could have been renew and refresh himself at the springs of suspension, abrogated, it is not subverted, it (c) all acts during that period which tend to made under the original Constitution. freedom. is not mutilated, and to say the least it is not advance or promote the welfare of the While dismissing the leave petitions we are We will simply echo those words by held in abeyance and it is not amended by people; putting on record our total disapproval of replacing the period and the word India any authority not competent to do so under (d) all routine works done during the above Martial Law and suspension of the with Bangladesh. We emphasize each of the Constitution. period which even the lawful government Constitution or any part thereof in any our generation must be taught, educated could have done. form. The perpetrators of such illegalities and informed about those dark days: the Accordingly though the petitions involve (e) (i) the Proclamation dated 8th November, should also be suitably punished and easiest way of doing this is to recognize our Constitutional issues, leave, as prayed for, 1975 so far it relates to omitting Part VIA of condemned so that in future no adventurist, errors of the past and reflect this sentiments can not be granted as the points raised in the the Constitution; no usurper, would dare to defy the people, in our judgment. This will ensure that the leave petitions have been authoritatively (ii) the Proclamations (Amendment) Order their Constitution, their Government, sovereignty of “we, the people of decided by superior Courts as have been 1977 (Proclamations Order No. 1 of 1977) established by them with their consent. Bangladesh” is preserved forever as a “ pole reflected in the judgment of the High Court relating to Article 6 of the Constitution. However, it is the Parliament which can star”. We are of the view that in the spirit of Division. (iii) the Second Proclamation (Seventh make law in this regard. Let us bid farewell the Preamble and also Article 7 of the Amendment) Order, 1976 (Second to all kinds of extra constitutional Constitution the Military Rule, direct or We, therefore, sum up as under: Proclamation Order No. IV of 1976) and adventure for ever. indirect, is to be shunned once for all. Let it 1. Both the leave petitions are dismissed; the Second Proclamation (Tenth C. J. be made clear that Military Rule was 2. The judgment of the High Court Division Amendment) Order, 1977 (Second J. wrongly justified in the past and it ought not is approved subject to the following Proclamation Order No. 1 of 1977) so far it J. to be justified in future on any ground, modifications:- relates to amendment of English text of J. principle, doctrine or theory whatsoever as (a) All the findings and observations in Article 44 of the Constitution; J. J. the same is against the dignity, honour and respect of Article 150 and the Fourth (iv) the Second Proclamation (Fifteenth glory of the nation that it achieved after Schedule in the judgment of the High Court Amendment) Order, 1978 (Second great sacrifice; it is against the dignity and Division are hereby expunged, and the Proclamation Order No.IV of 1978) so far it honour of the people of Bangladesh who are validation of Article 95 is not approved; 3. relates to substituting Bengali text of committed to uphold the sovereignty and In respect of condonation made by the High Article 44; (v) The Second Proclamation integrity of the nation by all means; it is also Court Division, the following modification (Tenth Amendment) Order, 1977 (Second against the honour of each and every soldier is made and condonations are made as Proclamation Order No. 1 of 1977) so far it of the Armed Forces who are oath bound to under: relates to inserting Clauses (2), (3), (4), (5), bear true faith and allegiance to Bangladesh (a) all executive acts, things and deeds done (6) and (7) of Article 96 i.e. provisions and uphold the Constitution which and actions taken during the period from relating to Supreme Judicial Council and embodies the will of the people, honestly 15th August 1975 to 9th April, 1979 which also clause (1) of Article 102 of the and faithfully to serve Bangladesh in their are past and closed; Constitution, and LONDON EAST BANK COLLEGE DEPARTMENT OF LAW