A K M FAZLUL HAQUE VS STATE 26 DLR SC 1974

 

Analysis of the Fact:

This petition for special leave was filed by two accused persons currently facing charges before a special magistrate at Mymensingh under President’s Order No.8 of 1972 that is Bangladesh Collaborators Special Tribunals Order, 1972.

Issue:

Whether the Collaborator’s Order was a valid piece of legislation or not?

Argument from the Petitioner:

Collaborator’s Order was a still born law in as much as it was promulgated by an authority not competent to do it and its inclusion in the first schedule of the Constitution was of no avail. The appointment of the President who promulgated the Collaborator’s Order namely Mr Justice Abu Sayed Chowdhury was not made under proper authority.

The President had no authority to make Constitutional Provisions at least of the nature of clauses

5 to 8 of the Provisional Constitutional Order bringing about an alteration in the system of Government from Presidential system of Government to Parliamentary System of Government. This resulted not only in violation of the mandate contained in the Proclamation but also in the self effacement of the President himself and abdication of power by him in favor of the Prime Minister.

Argument from the Respondent:

No argument is reported in the DLR.

 

 

Decision:

The petition was dismissed because the impugned clauses of the Provisional Constitutional Order namely clauses 5 to 8 thereof not being in excess of the powers conferred on the President designated by the Proclamation, the validity of the appointment of the second President which was under clause 8 could not be disputed. The Collaborators Order was thus promulgated by an authority competent to do so.

Reasoning behind the decision:

The above decision was taken on the following grounds:

The submission relating to abdication of power by the President or his self effacement could be relevant only in the cases involving complaints relating to unauthorized delegation of legislative powers to external authorities. But here the President designated by the proclamation promulgated the Provisional Constitutional Order in the exercise of his plenary legislative power.

The expression Legislative Powers of the Republic in the Proclamation was of the widest amplitude and admitted of no limitation. The Proclamation empowered the President to make any law or legal provision even of a Constitutional nature. Proclamation also empowered the President to do anything necessary to give the people of Bangladesh an orderly and just Government. So, the impugned clauses 5 to 8 of the Provisional Constitutional Order were authorized by the terms of the Proclamation.  

Principle:

Any action taken amounting to legislation during the period from 16^th December ( to be more precise from the 26^th March, 1971) till the Constitution came into force on the 16^th December,1972 is lawful as per the provisions of the Proclamation of the Independence. 

Important of the case:

The Proclamation of the independence which is regarded as the first Constitution of Bangladesh empowered the then President of newly born Bangladesh with all the legislative and executive power necessary for running the country in the light of an orderly and just Government. From the decision of this case the validity of the Acts done according to the provisions of the Proclamation of Independence during the period till the Constitution operated was rightly understood.