KHONDKER DELOWER HOSSAIN AND MUNSHI AHSAN KABIR VS BANGLADESH ITALIAN MARBLE WORKS LTD
Analysis of the Fact:
Pakistan
Italian Marble Works Ltd. was registered with the Joint Stock Companies of the
Erstwhile East Pakistan as a private limited company. In 1962 it became the
owner of the above
Holding no.11,
Wise Ghat Road, Dhaka and in 1964 it constructed a cinema hall known as Moon
Cinema Hall. After the liberation of Bangladesh in or around the last week of
December of 1971, some people taking advantage of poor law and order situation
prevailing at that time took over forcible possession of the above Moon Cinema
Hall. Subsequently by a notification dated 31 December, 1971 the Management of
the Moon Cinema Hall was taken by proforma Respondent no.03 and the same was
handed over to the Management Board in the pursuance of the Acting
President’s
Order dated 30 December, 1971. In the terms of the order passed by the
Department of Trade and Commerce the name of the company was changed to
Bangladesh Italian Marble
Works Ltd. Then under Article 5 of the President’s Order No. 16 of 1972
placed the Moon Cinema Hall under the disposal of Bangladesh Freedom Fighters
Welfare Trust. On April 28, 1972 the company filed an application praying for
release of the Moon Cinema Hall. After the proper inquiry it was reported that
the Moon Cinema Hall was not an abandoned property. So, Additional Deputy
Commissioner, Dhaka recommended the release of the property. But the Respondent
no.03 informed the company that the Moon Cinema Hall was an abandoned property
and as such could not be released. The company filed writ petition praying for
declaration that the notification issued by proforma Respondent no.03 taking
over Moon Cinema Hall as abandoned property under the Acting President’s Order
no.01 of 1971 and its subsequent order refusing to release the Moon Cinema Hall
were illegal and without lawful authority.
After hearing
High Court Division declared the impugned notification as illegal and directed
the proforma Respondent no. 3and 4 to hand over the possession of Moon Cinema
Hall to the company at once.
In the mean
time Abandoned Properties (supplementary provisions) Regulation, 1977 referred
to as Martial Law Regulation no.VII of 1977 had been promulgated providing
annulment of judgment of High Court Division. Then the above civil petition was
dismissed so not being pressed. In this way the judgment of High Court Division
did not become binding upon the Respondents and the said Moon Cinema Hall
vested to the Government.
After the
withdrawal of Martial Law the company filed writ petition before the High Court
Division praying for issuing a Rule Nisi upon the Respondents to show cause as
to why the possession of Moon Cinema Hall should not be delivered to the
company.
High Court
Division rejected the above writ petition holding that the company did not
challenge the vires of the Fifth Amendment and further being late of about 15
years to challenge the vires of the Fifth Amendment. Being aggrieved the
company filed the appeal but the same was dismissed by this Division. The
publication of Gazette Notification dated on 24.8.77 was not an actual and
effective restoration or transfer of the possession of the Moon Cinema Hall by
the way of delivery of possession. The Fifth Amendment had not been challenged
in the appeal. In the above circumstances the company had to file the above
writ petition challenging the vires of the Fifth Amendment for relief.
Then the High Court Division on 11.12.2000 a Rule Nisi was issued calling upon the Respondents to show cause as to why taking over the management of Moon Cinema Hall should not be declared made without lawful authority and why purported ratification and confirmation of the Abandoned Properties Regulations,1977( Martial Law Regulation No.VII of 1977) with regard to insertion of paragraph 3A to Fourth Schedule of the Constitution by paragraph 18 added by Constitution Fifth Amendment Act,1979 should not be declared to have been made without lawful authority and why the Respondents should not be directed to hand over the Moon Cinema Hall to the petitioners.
Argument from the petitioner:
It was argued that
•
Clause 2(a)(ii) of Article 102 is subject to the
rider clause provided in Article 150 and paragraph 3A and 18 added to the
Fourth Schedule by the proclamation order 1 of 1977 subsequently ratified by 5th
Amendment of the Constitution are transitory and temporary provisions which
were promulgated out of imperative necessity in order to give continuity and to
avoid chaos and confusion and these provisions are clearly a bar in
entertaining any writ petition.
•
The Government had to make a repealing Act but
the Government did not touch any other single instrument passed during 15th
August, 1975 to 9th April,1977 including MLR VII of 1977. High Court
Division illegally arrogated to themselves the functions of the legislators.
•
Appellate Division had already given sanction to
MLR VII of 1977 in so many previous decisions as such Halima Khatun’s case,
Nasiruddin’s case, Ehteshamuddin case. Those decisions are binding upon the
High Court Division as per Article 111. Though those decisions were cited
before High Court Division but the High Court Division ignored and criticized
those decisions.
•
Person in Article 102(5) does not include the
parliament. The legislators had never contemplated to equate the parliament
with a statutory public authority. Though High Court Division has been vested
with the power to examine the vires of any legislative act but that is to be
done within the provision of Article 7 and 26.
•
Though High Court Division declared all the laws
from 15.8.1975 to 9.4.1979 were illegal and no est there remained nothing to
condone any amendment but ironically some of the non erst provisions were
condoned and some were not condoned. In this way High Court Division cannot
choose the provisions at its sweet will from the non erst provisions to give
those legal validity.
• One
must realize the situation of the country at the relevant time during the whole
Martial Law Regime and also the transitional period until return of democratic
system after general election held in February,1979.
•
Fifth Amendment has become a part of the
Constitution as observed by Shahabuddin Ahmed C.J in Anwar Hossain’s case. It
has been accepted by the people. Five parliaments duly elected by the people in
the years 1986,1988,1991,1996 and 2001have preserved and protected the Fifth
Amendment Act and five governments including the judiciary have functioned
under Fifth Amendment.
•
The judgment of the High Court Division involves
interpretation of the Constitution and of great public importance, for complete
justice under Article 103 and 104.
•
High Court Division travelled beyond the terms
of the rules which are not permitted as held in 51 DLR AD 172, 60 DLR AD 90, 18
BLD AD 155.
•
The writ petition could be disposed of without
declaring Fifth Amendment as illegal and void in the terms of the principles
laid down in 32 DLR AD 216, 33 DLR AD 201, 44DLR AD 154, 207 US 288.
•
By denying the condo nation of the amendments
made in the certain provisions of the Constitution in the Fifth Amendment (
Article 6,8,9,10,12,25,38,142, Preamble, paragraph 3A and 18 to the Fourth Schedule
), High Court Division has acted as a legislature by rewriting the Constitution
which could be only done by parliament under Article 65 of our Constitution.
•
Judgment of the High Court Division was
violative of Constitution because Article 150 says that anything contained in
the Fifth Amendment shall not be called in question in or before any Court,
Tribunal or authority or any ground whatsoever. The definition of Court as
provide in Article 152 of our Constitution has been reaffirmed by the Appellate
Division in 60 DLR holding that it includes the Supreme Court.
•
The principles of Nationalism, Socialism and
Secularism identified by High Court Division as the basic structures of the
Constitution have no legal foundation and are contrary to the decision given by
the Appellate Division in Anwar Hossain vs Bangladesh.
•
The company filed wrote petition after 21 years
of the enactment of Fifth Amendment without assigning any reason for this
inordinate delay. The company cannot at its sweet will choose his own time to
invoke the extraordinary jurisdiction of the High Court Division. All the
transactions and instruments made by the Martial Law Authority having been
ratified by the Fifth Amendment Act
became past and closed transactions and the whole country was governed under
those instruments without any protest from any quarter including the judiciary.
Argument from the Respondent:
It was argued that
Ø
The petitioners having not required High Court
Division to exercise its discretion in granting or refusing to grant the
certificate cannot now complain. The High Court Division should not grant
certificate without formulating the question of law on which certificate is to
be granted and it has been a regular practice from the bar to pray for such
certificate on stating the point of law for which certificate is prayed for.
Though the petition involves Constitutional issues the petitioners having
failed to show any prima facie defect in the judgment necessitating
interference and the points raised having been authoritatively decided by
superior courts. The petitioners therefore failed to make a case for grant of
leave to appeal.
Ø
The Constitution did not empower any authority
to impose Martial law in the country and further parliament does not have any
power to ratify and validate the illegal Martial law.
Ø
As per the terms of Article 7(2) if any law is
inconsistent with the provisions of the Constitution that other law shall be
void to the extent of the inconsistency and according Fifth Amendment is
illegal and void ab initio.
Ø
No amendment to any provision of the
Constitution can be beyond the Article 142 of our Constitution and amendments
made to Preamble, Article 6, 8, 9, 10, 25, 38 and 142 of our Constitution by
Martial law is beyond the authority of article 142 and are illegal.
Ø
The writ petition issued by the third party
intervener who have no locus standi, no issue of public importance is involved
here. No court certainly will justify the imposition of Martial law because
Martial law does not come within the definition of law as provided in Article
152 of our Constitution. The declaration of Martial Law is not mandated by the
Constitution.
Ø
Since Article 7 declares the supremacy of the
Constitution there must be authority to maintain the supremacy of the Constitution
and there can be no doubt that in an entrenched Constitution judiciary must be
that authority and stating from the case of Marbury vs Medison there are
numerous instances where the supreme courts functioning under a written
Constitution upheld the power of judicial review.
Ø
Our Constitution does not contemplate governance
by any authority other than the elected representatives of the people. Thus any
government made by the members of the military science is unconstitutional. The
inclusion of impugned paragraphs 3A and 18 in the Fourth Schedule by fifth
Amendment is not only unconstitutional but also violative of the basic features
of the constitution such as supremacy of the constitution, rule of law,
independence of the judiciary or its power of judicial review. Parliament does
not have any competence under article 142 even in its exercise of power by two
third majorities to make an amendment flouting any of the basic structures as
per the judgment of Anwar
Hossain’s case.
Ø
It is a well established principle of the
interpretation of the statue that in order to ascertain the particular meaning
of any provision of a statue the instrument must be read not in isolation but
as a whole in its proper context. The context is of two types such as internal
and external. The internal being the text of the statue including the preamble,
has to be taken into consideration of any substantive provision of the
constitution and if the internal context can not resolve the vagueness resort
may be had to the external context which includes the history leading the
enactment of the statue, the proceedings of the parliament. Accordingly for
interpretation of our constitution concentration should be on the context of
the constitution and then to the history only incidentally if necessary.
Ø
Preamble of our Constitution has laid in clear
terms the aims and objectives of the Constitution. It speaks of representative
democracy, rule of law and supremacy of the constitution. All the provisions
that follow have been structured accordingly to achieve these aims and
objectives and further a written constitution in itself is a limitation on the
governmental power.
Ø The
past history of constitutional misadventures by the civil and military
bureaucrats in Pakistan who never permitted constitutional governments to
settle down the framers of our constitution felt it necessary to make the
declarations in Article 7 of our constitution which brilliantly comprehends the
entire jurisprudence of the constitutional law and constitutionalism in Bangladesh.
Ø
The primary threshold for granting leave is that
there had been some illegality in the decision of the High Court Division or
there had been some miscarriage of justice or evil precedent has been or will
be created. The test for granting leave to appeal must be that there are
reasonable grounds for sustaining the appeal and those grounds have reasonable
prospects of success. But in the present petition the petitioners had not
fulfilled these criteria in advancing of any grounds.
Ø
MLR of 1977 was promulgated specifically
providing that even if the Government had unlawfully taken over a property as
abandoned the same shall remain as abandoned and any judgment obtained saying
otherwise would be ineffective. This directly affected the rights of the company
and after wards through Fifth Amendment the contempt proceeding set up by the
petitioner for not fulfilling the directions of High Court Division failed and
the company did not get the fruit of the judgment because of the period of
delinquency. After ending the martial law when the company challenged the Fifth
Amendment and High Court Division made the rule absolute that Fifth Amendment
was ultra vires the constitution and there was a conflict between the right to
property under the constitution and the infringement of this right by Fifth
Amendment.
Issues:
1.
Whether the taking over the management of the Moon
Cinema Hall has been done within lawful authority or not?
2.
Whether the purported ratification and confirmation of
the Abandoned Properties Regulations,1977( Martial Law Regulation No.VII of
1977) with regard to insertion of paragraph 3A to Fourth Schedule of the
Constitution by paragraph 18 added by Constitution Fifth Amendment
Act,1979 have been made within lawful
authority or not? Decision
and Reasoning behind the decision:
Leave
petitions were dismissed with disapproval of Martial law and suspension of the
Constitution. Leave petitions were not granted because the points raised in the
leave petitions had been authoritatively decided by the High Court Division.
Judgment of the High Court Division. Finally the judgment of the High Court
Division was approved subject to some modifications such as
All the findings and observations in respect of article 150
and fourth schedule in the judgment of the High Court Division were hereby
expunged and the validation of Article 95 was not approved.
And in respect of
condo nation made by the High Court Division the following condo nations were
approved:
•
All executive acts, things and deeds done and
actions taken during the period from 15th August,1975 to 9th
April,1979 which were past and closed.
•
The actions not derogatory to the rights of the
citizens.
•
All acts during that period which tended to
advance or promote the welfare of the people.
•
All routine works done during the period which
even the lawful government could have done.
•
Proclamations related to omitting Part VI.
•
Proclamations relating to Article 6 , insertion
of clauses 2,3,4,5,6 and 7 of Article 96 that means relating to Supreme
Judicial Council and clause 1 of Article 102 of the Constitution and relating
to the amendment of English text of Article 44 of the Constitution.
• All
acts and legislative measures which were in accordance with the original
Constitution.
The above decision was taken because the impugned amendment
was not done in the light of article 142 of our constitution and such amendment
could only be done by the parliament duly formed as per the provisions of the
Constitution. The amendment was done by the second parliament was formed during
the reign of martial law which is not supported by our Constitution.
Principle:
Any amendment of the Constitution made by any authority not
mandated by the provisions of the Constitution is illegal and violative to the
Constitution.
Importance of this case:
In this case
the supremacy of Constitution was upheld by the court which cannot be mutilated
or subverted by any other way. The impugned amendment was highly condemned
because it had violated the basic structures of the Constitution and the supreme
will of the people as per Article 7 and rule of law embodied in the
Constitution. In this case it was correctly narrated that Military Rule was
wrongly justified in the past and it ought not be justified in the future on
any ground, principle, doctrine and theory as the same is against the dignity
and glory of the nation that it had achieved after a great sacrifice and
violative of the spirit of the Preamble and Article 7 of our Constitution
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