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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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