IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION
PRESENT:
Mr. Justice A.B.M. Khairul Haque. -Chief Justice. Mr. Justice Md. Muzammel Hossain. Mr. Justice S. K. Sinha. Mr. Justice Md. Abdul Wahhab Miah. Ms. Justice Nazmun Ara Sultana. Mr. Justice Syed Mahmud Hossain. Mr. Justice Muhammad Imman Ali. CIVIL APPEAL No. 139 of 2005 with CIVIL PETITION FOR LEAVE TO APPEAL NO.596 OF 2005.
(From the certificate granted under Article 103(2)(a) of the Constitution of the Peoples Republic of Bangladesh and from judgment and order dated 4.8.2004 passed by the High Court Division in Writ Petition No. 4112 of 1999 )
Abdul Mannan Khan .................. Appellant. (In C.A. No.139/20005) Abdul Mannan Khan ................... Petitioner (In C. P. No.596/2005) -VERSUS- Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others.
: ..................Respondents. (In both the cases)
For the Appellant. (In C.A. No.139/05)
: Mr.M.I. Farooqui, Senior Advocate (with Mr. Mohsin Rashid, Advocate) instructed by Mr. M.G. Bhuiyan, Advocate-on-Record.
For the Petitioner. (In C.P.No.596/05)
: Mr.M.I. Farooqui, Senior Advocate (with Mr. Mohsin Rashid, Advocate) instructed by Mr. M. G. Bhuiyan, Advocate-on-Record
For Respondent Nos.1-2. (In C.A. No.139/05)
: Mr. Mahbubey Alam, Attorney General, with Mr. M. K. Rahman, Additional Attorney General, Mr. Murad Reza, Additional Attorney General, Md. Mothahar Hossain Saju, Deputy Attorney General, A.B.M. Altaf Hossain, Deputy Attorney General, Md. Ekramul Haque,
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Assistant Attorney General, Khandaker Diliruzzaman, Assistant Attorney General, Amit Talukder, Assistant Attorney General, instructed by Mr. B. Hossain, Advocate-on-Record.
Respondent Nos.3-7. (In C. A. No.139/05)
: Not represneted.
Respondents. (In C.P.No.596/05)
: Not represented.
As amici curiae : Mr. T.H. Khan, Senior Advocate Dr. Kamal Hossain, Senior Advocate Mr. Rafique-ul-Huq, Senior Advocate Dr. M. Zahir, Senior Advocate Mr. M. Amirul Islam, Senior Advocate Mr. Mahmudul Islam, Senior Advocate Mr. Rokanuddin Mahmud, Senior Advocate Mr. Ajmalul Hossain, Senior Advocate
Dates of hearing. : 01.03.2011, 10.03.2011, 21.03.2011, 22.03.2011,24.03.2011, 30.03.2011, 31.03.2011, 03.04.2011, 04.04.2011, 06.04.2011 & 10.05.2011.
J U D G M E N T
A.B.M. KHAIRUL HAQUE, C.J. :- c_g fvM Avcxj `vqi I cv_wgK AvjvPbv 1| cvi t nvBKvU wefvM KZK msweavb (qv`k mskvab) AvBb, 1996 (1996 Gi 1bs AvBb) Gi eaZv c`vb
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It is hereby declared:
(1) The appeal is allowed by majority without any order as to costs.
(2) The Constitution (Thirteenth amendement) Act, 1996 (Act 1 of 1996)
is prospectively declared void and ultra vires the Constitution.
(3) The election of the Tenth and the Eleventh Parliament may be held
under the provisions of the above mentioned Thirteenth Amendment
on the age old prinicples, namely, quod alias non est licitum,
necessitas licitum facit (That which otherwise is not lawful, necessity
makes lawful), salus populi suprema lex (safety of the people is the
supreme law) and salus republicae est suprema lex (safety of the
State is the Suprme law).
The parliament, however, in the meantime, is at liberty to bring
necessary amendments excluding the provisions of making the
former Chief Justices of Bangladesh or the Judges of the Appellate
Division as the head of the Non-Party Care-taker Government.
The Judgment in detail would follow.
The connected Civil Petition for leave to appeal No.596 of 2005 is
accordingly, disposed of.
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cwZev`xMYi eivei GKwU Rule Nisi wbwjwLZ fve 25-1-2000
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Upon hearing Mr. M.I. Farooqui the learned Counsel for the petitioner in
support of the petition and the learned Attorney General appearing for the
Bangladesh who opposed the petition and as serious points of constitutional
importance emerged out of the arguments of the learned counsel and the learned
Attorney General, let a rule nisi be issued upon the respondents calling upon
them to show cause as to why the impugned Constitution (Thirteen Amendment)
Act, 1996 (Act No. 1 of 1996) (Annexure A & A-1 to the petition) should
not be declared to be ultra vires of the constitution of the Peoples Republic of
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Bangladesh and of no legal effect and/or pass such other or further order or
orders as to this court may fit and proper. .......................................................................
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reply `vwLj Kiv nq|
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Shah Abu Nayem Mominur Rahman I wePvicwZ Md. Abdul Awal mgbq MwVZ
GKwU Division Bench G 21-7-2003 ZvwiL gvKvgvwU bvbx Avi
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Since the provisions of the 13th Amendment Act, as it appears to us, do
not come within definitions of alternation, substitution or repeal of any provision
of the Constitution and since for temporary measures some provisions of the
Constitution will remain ineffective, we do not find any substance in the
submission of the petitioner that Article 56 of the Constitution had been in fact
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amended by 13th Amendment Act. On the face of the 13th Amendment Act it
appears that those provisions were made only for a limited period for ninety
days before holding general election after dissolution of the Parliament or before
expiry of the Parliament. We find that no unconstitutional action was taken by
the legislature and as such we do not find any reason to interfere with 13th
Amendment Act, we do not find any merit in the application and accordingly it
is summarily rejected.
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Since we could not agree with the earlier decision in the case of Syed
Md. Mashiur Rahman on the issue of validity of Act 1/96, we refrain from
entering into other issues raised in the writ petition and did not take into our
consider any submission on the issue of violation as to or destruction of basic
structure of the Constitution, though we have mentioned hereinabove in the
context of understanding the issue of amendment of Articles-48 and 56 of the
Constitution, and the same should not be treated as our opinion or observation
on the issue of violation or destruction of the basic structure of the
Constitution, more so when we have not given any hearing on that issue.
Accordingly as submitted by the learned Advocates on behalf of the
petitioner and respondent No. 6 as well as by the learned Additional Attorney-
General we are of the opinion that it is proper case for referring for a decision by
Full Bench as per provision of chapter-VII of the High Court Division Rules.
Having regard to the gravity and importance of the issues raised in the writ
petition, including that of destruction of basic structure of the Constitution, we
are of the opinion that the Full Bench, if constituted, should decide all issues
raised in the writ petition and particularly the issue whether the Act 1/96 has
caused amendment in the provisions of Articles-48(3) and 56 of the Constitution
requiring assent thereto through referendum as contemplated by Article-
142(1A), (1B) and (1C) of the Constitution.
Accordingly let this matter be placed before the learned Chief Justice for
necessary order for a decision by a Full Bench as required under Rule-1 of
Chapter-VII of the High Court