The

Constitution of
The People's Republic of
Bangladesh
with
Comments & Case-Laws

Justice Latifur Rahman

Mullick Brothers
 The Constitution of
The People's Republic of Bangladesh
with
Comments & Case-Laws
 The Constitution of
The People's Republic of Bangladesh
With
Comments & Case-Laws

Justice Latifur Rahman

Former Chief Justice
and
'Former Head of the Non-party Caretaker Government

First Published
2004
Second Edition
2005
New Cases added upto December, 2004
Reprint
May, 2008

Mullick Brothers
 Published by
Shahidul Hasan Mullick
Mullick Brothers
42 Banglabazär
Dhaka-1 100

Copyright
Author

First Published
February 2004

Second Edition
March 2005
Reprint
May 2008

Price
Tk. 200/- only

Cover Design
Dislam

ISBN 984-8164-93-6

Printed at
M.B. Printing & Publications
57 SukIal Das Lane
Dhaka-1100
 Dedicated
to the freedom loving people of Bangladesh
 PREFACE TO THE SECOND EDITION

The publisher of my book having told me that all the printed copies have
been sold out, the necessity of re-print of a Second Edition arose. In the
meanwhile, I got an opportunity to include few new and important cases of
the Appellate Division upto December, 2004. Those new cases are included
in the appendix.
It is gratifying to note that "The Constitution of the People's Republic of
Bangladesh with Comments and Case-laws" has been helpful to lawyers,
Judges and academics of law.
I am happy to see that my labour has been truly rewarded within such a
short time.

Dhaka Justice Latifur Rahman
1 March, 2005

PREFACE
After relinquishing the office of the last Head of the Non-Party Care-
Taker Government of the People's Republic of Bangladesh, I stated writing
this book on the Constitution of Bangladesh. This writing can in no way be
passed as original. Primarily, it is a compilation separately of the provisions
of the Constitution of Bangladesh with little comments and the authoritative
pronouncements that have been made by the Supreme Court of Bangladesh
on those particular provisions of the Constitution. The cases of the Supreme
Court which have interpreted various provisions of the Constitution have
been elaborately dealt.
After the Second World War many Third world countries achieved
independence through negotiations with the colonial power and many of
those third world countries had adopted a written Constitution. But if we
look to the history of the emergence of Bangladesh, we find that the creation
of Bangladesh is not a gift from anybody. It is a result of a war of liberation
for about nine months. The framers of the Constitution recognized the war
of liberation in the preamble of our constitution.
My endeavour is to remember the Judges of the Supreme Court, lest we
forget them, who have interpreted the Constitution of Bangladesh and have
enriched Constitutionalism in this country. As a matter of fact, I feel that we
should recognise the individual Judges for their little contribution to the
growth of the Constitutional law in Bangladesh. '1 ho role of Judges in the
development of constitutional law is indeed enormous. Although it is the
 Preface
Viii
litigant public and the lawyers who bring various constitutional issues for
guidance of the Supreme Court, in reality, the Supreme Court is the
guardian of the Constitution. The Judges of the Supreme Court take the
solemn oath to protect, preserve and defend the Constitution. I may mention
here that in 1907 Charles Even Hughes, Chief Justice of U.S. Supreme
Court said, 'We are under a Constitution, but a constitution is what the
Judges say it is, and judiciary is a safe-guard on our liberty and on our
property under the Constitution." So what the Judges of the Supreme Court
say ultimately prevails.
On 16 December 1972, the Constitution came into being but
unfortunately the Constitution of Bangladesh could not grow and develop
unhindered due to imposition of Martial Laws in Bangladesh. Here I may
digress a little and say that the Constitution of India was made effective
from 26 January 1950 and its growth was continuous and the constitutional
journey was never impeded. The First Martial Law was promulgated on 15
August 1975 by Khandakar Mustaque Ahmed and it continued till 27
November 1979. Subsequent thereto, the Second Martial Law was imposed
by Hussain Mohammad Ershad on 24 March 1982 and it continued upto 10
November 1986. During those periods, nothing tangible could grow and
flourish for the development of the Constitutional law in Bangladesh. As a
matter of fact, the rule of law and constitutionalism can only grow in a
democratic polity, where the Supreme Court possesses the absolute power
of judicial review. But unfortunately in the case of Bangladesh, the
development of constitutional law got a set-back for a considerable period of
time. If there would have been free play of Constitution since the birth of
Bangladesh, probably our Constitutional law would have been greatly
enriched by now, and the society would have been benefited.
In this book, I have tried to write a commentary, article by article of our
Constitution with particular reference to case laws decided by the Supreme
Court of Bangladesh. This is perhaps the first book of this kind and I hope
that it will be of help as a reference book to the community of lawyers and
Judges, students of law and more particularly academics of law interested in
closely observing the growth of constitutional law in Bangladesh through
the decisions of the Supreme Court. In writing this book, I have read few
books, of which (Constitutional Law of Bangladesh) written by Muhmudul
Islam, former Attorney General of Bangladesh and (Shorter Constitution of
India) by Durga Das Basu are worth mentioning. My labour will be
rewarded if the readers find this book useful to them.

Dhaka Justice Latifur Rahman

31 January 2004
 CONTENTS

THE CONSTITUTION OF THE

PEOPLE'S REPUBLIC OF BANGLADESH

page
Historical back ground and birth of Bangladesh

Martial Law dispensations and Cases during the period 10

Amendments of the constitution 19

Preamble 25

PART I
THE REPUBLIC

Article

1 The Republic 31

2. The territory of the Republic 32

2A. The state religion 33

3. The State language 33

4. National anthem, flag and emblem 33

5. The capital 33

6. Citizenship 34

7. Supremacy of the Constitution 36

PART II
FUNDAMENTAL PRINCIPLES OF STATE POLICY
Article
S. Fundamental principles 37
9, Promotion of local Government institutions 39
10. Participation of women in national life 40
11. Democracy and human rights 40
12. [Omitted]
13. Principles of ownership 40
14. Emancipation of peasants and workers 41

ILI Contents
Article: page

15 Provision of basic necessities 41
16 Rural development and agricultural revolution 41

17 Free and compulsory education 42
18 Public health and morality
42

19 Equality of opportunity 42

20 Work as a right and duty 42
21
Duties of citizens and public servants 43
Separation of judiciary from the executive 43
23 National culture 46
24 National monuments, etc. 46

25 Promotion of International peace, security and solidarity 47

PART I
FUNDAMENTAL RIGHTS
Article:
26. Laws inconsistent with fundamental rights to he void 49-
27. Equality before law 51
28. Discrimination on grounds of religion, etc. 59
29. Equality of opportunity in public employment 60
30. Prohibition of foreign titles, etc. 62
31. Right to protection of law 62
32. Protection of right to life and personal liberty 63
33. Safe-guards as to arrest and detention 64
34. Prohibition of forced labour 66
35. Protection in respect of trial and punishment 66
36. Freedom of movement 70
37. Freedom of assembly 71
38. Freedom of association 71
39. Freedom of thought and conscience, and of speech 73
40. Freedom of profession or occupation 74
41. Freedom of religion 75
42. Rights to property 75
43. Protection of home and correspondence 78
44. Enforcement of fundamental rights 78
45. Modification of rights in respect of disciplinary law 79
46. Power to provide indemnity 81
47. Saving for certain laws 81
47A. Inapplicability of certain articles 84

Contents xi

PART IV
THE EXECUTIVE
Chapter 1: The President
Article page
48. The President 85
49. Prerogative of mercy 86
50. Term of office of President 86
51. President's immunity 86
52. Impeachment of the President 87
53, Removal of President on ground of incapacity 88
54, Speaker to act as President during absence, etc. 89
Chapter II: The Prime Minister and the Cabinet
Article
The cabinet 90
Ministers 90
Tenure of office of Prime Minister 91
Tenure of office of other Ministers 91
58A Application of Chapter
Chapter hA : Non-Party Care-taker Government
Article

58B. The Non-Party Care-taker Government Vx
58C. Composition of the Non-Party Care-taker Government,
appointment of advisers, etc. 94

58D. Functions of Non-Party Care-taker Government 95
58E. Certain provisions of the Constitution to remain ineffective 95

Chapter III : Local Government

Article
Kocal government
60. Powers of local government bodies
Chapter IV : The Defence Services
Article
61. Supreme Command 98
62. Recruitment etc., of defence services 99
63. War 99

Chapter V : The Attorney General

Article:
64. The Attorney General

xii Contents
PART V
THE LEGISLATURE
Chapter I Parliament
Article : page
65. Establishment of Parliament 101
66. Qualifications and disqualifications for election to Parliament 102
67. Vacation of seats of members 104
68. Remuneration, etc., of members of Parliament 105
69. Penalty for member sitting or voting before taking oath 106
70. acation of seat on resignation, etc. -- - -- 107
71. at- against double membership 108
72. Sessions of Parliament 108
73. President's address and messages to Parliament 109
73A. Rights of Ministers as respects Parliament 110
74. Speaker and Deputy Speaker 110
75. Rules of Procedure, quorum, etc. 111
76. Standing committees of Parliament 112
77. Ombudsman 113
78. Privileges and immunities of Parliament and members 114
79. Secretariat of Parliament 115
Chapter II : Legislative and Financial Procedures
Article
80. Legislative procedure 115
81. Money Bills 116
82. Recommendation for financial measures 116
83.
No taxation except by or under Act of Parliament 117
84. Consolidated Fund and the Public Account of the Republic 117
85. Regulation of public moneys 117
86, Moneys payable to public Account of Republic 117
87.
Annual financial statement 117

88. Charges on consolidated fund 118
89.
Procedure relating to annual financial statement 118
90.
Appropriation Act 119
91.
Supplementary and excess grants 119
92. Votes of account, votes of credit, etc. 120
92A [Omitted]
Chapter III : Ordinance Making Power
Article
93. Ordinance making power 123
Contents xlii
PART VI
THE JUDICIARY
Chapter I The Supreme Court
Article page
94. Establishment of Supreme Court 125
95. Appointment of Judges 126
96. Tenure of office of Judges 126
97. Temporary appointment of Chief Justice 127
98. Additional Supreme Court Judges 128
99. Disabilities of Judges 128
100. Seat of Supreme Court 129
101, Jurisdiction of High Court Division 130
102. Powers of High Court Division to issue certain orders
and directions, etc. 130
103. Jurisdiction of Appellate Division 182
104. Issue and execution of processes of Appellate Division 185
105. Review of Judgments or orders by Appellate Division 188
106. Advisory jurisdiction of Supreme Court 189
107. Rule making power of the Supreme Court 189
108. Supreme Court as court of record 190
109. Superintendence and control over courts 190
110. Transfer of cases from subordinate courts to High
Court Division 192
111 Binding effect of Supreme Court judgments 192
112 Action in aid of Supreme Court 193
113 Staff of Supreme Court 193

Chapter II: Subordinate Courts

Article
114. Establishment of subordinate courts 194
115. Appointments to subordinate courts 194
116. Control and discipline of subordinate courts 194
116A. Judicial officers to be independent in exercise of their
functions 195
Chapter III Administrative Tribunals
Article

117. Administrative tribunals 196
PART VIA-THE NATIONAL PARTY [OMITTED]

-Vt', Conreizt.
PART Vii
ELECTIONS

Article page

118. Establishment of Election Commsion 201

119. Functions of Election Commission 201

120. Staff of Election Commission 202

121. Single electoral roll for each constituency 202

122. Qualifications for registration as voter 202

123, Time for holding elections 203

124. Parliament may make provision as to elections 203

125. Validity of election law and elections 204

126. Executive authorities to assist Election Commission 204

PART VIII
THE COMPTROLLER AND AUDITOR-GENERAL
Article:

127. Establishment of office of Auditor-General 207

128. Functions of Auditor-General 207

129. Term of office of Auditor-General 207

130. Acting Auditor-General 208

131. Form and manner of keeping public accounts 208

132. Reports of Auditor-General to be laid before Parliament 208
PART IX
THE SERVICES OF BANGLADESH
Chapter I : Services
Article
133. Appointment and conditions of service 209
134. Tenure of office 210
135. Dismissal, etc., of civilian public officers 212
136. Reorganisation of service 216

Chapter II: Public Service Commissions

Article
137 Establishment of Commissions 217
138 Appointment of members 217
139 Term of Office 218
140 Functions of Commissions 218
141 Annual report 219
Contents xp
PART IXA
EMERGENCY PROVISIONS
Article: page
141A Proclamation of emergency 220
141B Suspension of provision of certain articles during
emergencies 221
141C Suspension of enforcement of fundamental rights
during emergencies 221

PART X
AMENDMENT OF THE CONSTITUTION
Article
142. Power to amend any provision of the constitution

PART XI
MISCELLANEOUS
Article:

143, Property of the Republic 224
144. Executive authority in relation to property, trade, etc 225

145. Contracts and deeds 225

145A. International treaties 225

146 Suits in name of Bangladesh 225
147
Remuneration, etc., of certain officers 226
148
Oaths of office 227
149
Saving for existing laws 228
150
Transitional and temporary provisions 228
151
Repeals 228
152
Interpretation 229
153
Commencement, citation and authenticity 232

SCHEDULES
FIRST SCHEDULE : Laws effective notwithstanding other provision
233
SECOND SCHEDULE : [Omitted]

THIRD SCHEDULE : Oaths and affirmations 235

FOURTH SCHEDULE : Transitional and Temporary provisions 240

xvi Contents

Appendix
New Cases added upto December, 2004 257

Case on Articles 27 and 28 257
Case on Article 27 257

Cases on Articles 31 and 32 257
Case on Articles 65 258

Case on Articles 66 and 67 258
Case on Article 102, Alternative remedy in case of violation of

legal right 259

Case on Article 103 privilege 259
Case on article 102 259

Case on Article 102(2) 260
Case on article 102(2)
260
Case on article 102 260
Case on articles 104 & 105 261
Case on article 146 261

I,
 I.

INTRODUCTION

Historical Background and Birth of Bangladesh

Indian independence Act, 1947, as passed by the British Parliament
ushered in the creation of two dominions, namely, India and Pakistan
from 15 August 1947. The Constitution of India was enacted on 26
January 1950. The Constituent Assembly of Pakistan delayed the
framing of the Constitution due to dissentions and hostilities amongst
the politicians, bureaucrats and military personnel. Finally, the
Constitution of Pakistan saw the light of the day in March, 1956. Soon
thereafter, the Constitution of 1956 was abrogated by Ayub Khan by
imposing Martial Law. in 1958. Again, during Ayub's regime, the
Constitution of 1962 was framed on 7 June 1962. In 1965, Ayub Khan
got himself re-elected as President for the second term.
The economic disparities between East and West Pakistan
prompted Sk. Mujibur Rahamn to start political movement in East
Pakistan with 6-point, which runs as follows
1. The character of the Government shall be Federal and
Parliamentary, in which the election 10 the federal legislature and
to the legislatures of the federating units shall he direct and on
the basis of universal adult franchise. The representation in the
federal legislature shall be on the basis of population.
2. The Federal Government shall he responsible only for defence,
foreign affairs and currency, subject to the conditions provided in
(3) below,
3. Two separate but freely convertible currencies for the two wings
may be introduced, or (I) one currency for the whole country
may be maintained. In this case effective constitutional
provisions are to be made to stop flight of capital from East to
West Pakistan. Separate Banking Reserve is to be made and
separate fiscal and monetary policy to be adopted for East
Pakistan.
4. The power of taxation and revenue collection shall vest in the
federating units and the Federal Centre will have no such power.
The Federation will have a share in the State taxes for meeting
their required expenditures. The consolidated federal fund shall
come out of a levy of certain percentage of all State taxes.
5. (I) There shall be two separate accounts for foreign exchange
earnings of the two wings.
(II) Earnings of East Pakistan shall be under the control of East
Pakistan Government and that of West Pakistan under the
control of West Pakistan Government.
(III) Foreign exchange requirements of the Federal Government
shall be met by the two wings either equally or in a ratio to
be fixed.

2 Introduction
(IV) Indigenous products shall move free of duty between the
two wings.
(V) The Constitution shall empower the unit Governments to
establish trade and commercial relations with, set up trade
missions in and enter into agreements with, foreign
countries.
6. The setting up of a militia or a paramilitary force for East
Pakistan.
As the political movement was gaining momentum, the
Government of Pakistan started the 'Agartala Conspiracy Case' against
Sk. Mujibur Rahman and others to stop the political movement in East
Pakistan by putting them behind prison bars. Due to heavy political
activities, the Government of Pakistan was compelled to withdraw the
case. In the back drop of political agitations, Ayub Khan relinquished
his Presidency and handed over power to his Commander-in-Chief
Yahaya Khan, who under Martial Law Proclamations abrogated the
Constitution of 1962 and promulgated Legal Framework Order (LFO).
Under the provisions of LFp, elections were held between 7 December
1970 to 17 January 1971 to the National and Provincial Assemblies on
the basis of adult franchise in East Pakistan. In these elections out of
169 seats, Awami League obtained 167 seats. The National Assembly
was summoned by Yahaya Khan on 3 March 1971 at Dhaka for
framing of the Constitution. Thereafter, Yahaya Khan postponed the
sessions at Dhaka indefinitely and A unjust and treacherous war was
imposed on the innocent men and women in East Pakistan on the night
of 25 March 1971. Sk. Mujihur Rahrnan was arrested and taken to
West Pakistan prison. The, war of liberation continued for about nine
months and the freedom loving people of East Pakistan got
independence on 16 December 1971. The Pakistan occupation forces
were compelled to surrender at Dhaka. This war of liberation brought
independence and Bangladesh emerged as an independent, sovereign
state n the map of the world. The world at large recognised the birth of
Bangladesh as a new country.
The members elected in the elections of 1970, proclaimed
independence of Bangladesh through the instrument of 'The
Proclamation of Independence, 10 April 1971. at Mujibnagar,
Bangladesh and formed the Government with Sk. Mujibur Rahman (in
custody) as President and Syed Nazrul Islam as Acting President till
release of Sk. Mujibur Rahman from the prison of Pakistan. This
proclamation of Independence was isued by Professor Yusuf Ali by
and under the authority of the Constituent Assembly. This document is
in fact the Constitutional basis for the creation of sovereign
Bangladesh as a State. The said proclamation is under :-
Introduction
THE PROCLAMATION OF INDEPENDENCE
Mujibnagar, Bangladesh
Dated 10 day of April, 1971
WHEREAS free elections were held in Bangladesh from 7th December,
1970 to 17th January 1971, to elect representatives for the purpose of framing
a Constitution,
AND
WHEREAS at these elections the people of Bangladesh elected 167 out
of 169 representatives belonging to the Awami League,
AND
WHEREAS General Yahya Khan summoned the elected representatives
of the people to meet on the 3 March 1971, for the purpose of framing a
Constitution,
AND
WHEREAS the Assembly so summoned was arbitrarily and illegally
postponed for an indefinite period,
AND
WHEREAS instead of fulfilling their promise and while still conferring
with the representatives of the people of Bangladesh, Pakistan authorities
declared an unjust and treacherous war,
AND
WHEREAS in the facts and circumstances of such treacherous conC'iet
Banga Bandhu Sheikh Mujibur Rahman, the undisputed leader of 75 million
of people of Bangladesh in due fulfillment of the legitimate right of self-
determination of the people of Bangladesh, duly made a declaration of
independence at Dacca on March 26, 1971 and urged the people of
Bangladesh to defend the honour and integrity of Bangladesh,
AND
WHEREAS in the conduct of a ruthless and savage war the Pakistani
authorities committed and are still continuously committing numerous acts of
genocide and unprecedented tortures, amongst others on the civilian and
unarmed people of Bangladesh,
AND
WHEREAS the Pakistan Government by levying an unjust war and
:ommitting genocide and by other repressive measures made it impossible for
:he elected representative of the people of Bangladesh to meet and frame a
constitution and give to themselves a Government.
AND
WHEREAS the people of Bangladesh by their heroism, bravery and
revolutionary fervour have established effective control over the territories of
Bangladesh, we the elected representatives of the people of Bangladesh, as
honour bound by the mandate given to us by the people of Bangladesh whose
will is supreme duly constituted ourselves into a Constituent Assembly, and
having held mutual consultations, and in order to ensure for the people of
Bangladesh - equality, human dignity and social justice, declare and
constitute Bangladesh to be a sovereign people's Republic and thereby
 Introduction
confirm the declaration of independence already made by Banga Bandhu
Sheikh Mujibur Rahman, and
do hereby affirm and resolve that till such time as a Constitution is
framed Banga Bandhu Sheikh Mujibur Rahman shall be the President of the
Republic and that Syed Nazrul Islam shall be the Vice-President of the
Republic, and
that the President shall be the Supreme Commander of all the armed
forces of the Republic,
shall exercise all the executive and legislative powers of the Republic
including the power to grant pardon,
shall have the power to appoint a Prime Minister and such other
Ministers as he considers necessary, -
shall have power to levy taxes and expend monies,
shall have the power to summon and adjourn the Constituent Assembly,
and
do all other things that may be necessary to give to the people of
Bangladesh an orderly and just Government.
We, the elected representatives of the people of Bangladesh do further
resolve that in the event of there being no President or the President being
unable to enter upon his office or being unable to exercise his powers due to
any reason - whatsoever, the Vice-President shall have and exercise all the
powers, duties and responsibilities herein conferred on the President.
We further resolve that we undertake to observe and give effect to all
duties and obligations that devolve upon us as a member of the family of
nations and to abide by the charter of the United Nations.
We further resolve that this proclamation of independence shall be
deemed to have come into effect from 26th day of March 1971.
We further resolve that in order to give effect to this instrument we
appoint Pro• f. Yusuf Ali our duly constituted potentiary and to give to the
President and the Vice-President oaths of office.

Mujibnagar, Bangladesh PROF. YUSUF AU

10th April, 1971 Duly Constituted Potentiary
by and under the authority
of the Constituent Assembly
of Bangladesh.
Introduction 5

As the war of liberation was continuing, 'Laws Continuance

Enforcement Order, 1971' was promulgated by Syed Nazrul Islam,
Acting President on 10 April 1971, so that the existing laws which
were in force could continue in Bangladesh from 25 March 1971 (on
the day of crack down in East Pakistan).
Laws Continuance Enforcement Order, 1971 is as follows

Muj ibnagar
Dated 10th Day of April, 1972
1, Syed Nazrul Islam, the Vice-President and Acting President of
Bangladesh, in exercise of the powers conferred on me by the proclamation
of independence dated tenth day of April. 1971 do hereby order that all laws
that were in force in Bangladesh on 25" March. 1971 shall subject to the
proclamation aforesaid continue to be so in force with such consequential
changes as may be necessary on account of the creation of the sovereign
independent state of Bangladesh formed by the will of the people of
Bangladesh and that all Government officials, civil, military, judicial and
diplomatic who take the oath of allegiance to Bangladesh shall continue in
their offices on terms and conditions of service so long enjoyed by them and
that all District Judges and District Magistrates, in the territory of Bangladesh
and all diplomatic representatives çlsewhere shall arrange to administer the
oath of allegiance to all government officials within their jurisdiction.
This order shall be deemed to have come into effect from 26" day of
March 1971.
SdJ- Syed Nazrul Islam
Acting President
6 Introduction
During the war of liberation Sk. Mujibur Rahman was in prison of
Pakistan. He was released from the prison of Pakistan on 8 January
1972. He came back to Dhaka on 10 January 1972. On 11 January
1972, 'Provisional Constitution of Bangladesh Order, 1972' was
promulgated by Sk. Mujibur Rahman as ?rsident of the People's
Republic of Bangladesh.
'The Provisional Constitution of Bangladesh Order, 1972' reads as
follows :-
WHEREAS by the proclamation of Independence Order, dated the 10th
April. 1971 provisional arrangements were made for the governance of the
people's Republic of Bangladesh:

AND WHEREAS by the said proclamation the President is invested with

all executive and legislative authority and the power to appoint a Prime
Minister;

AND WHEREAS the unjust and treacherous war as referred to in the

said proclamation has now ended;

AND WHEREAS it is the manifest aspiration of the people of

Bangladesh that a parliamentary democracy shall function in Bangladesh,

AND WHEREAS in pursuance of the said objective it is necessary

immediately to make certain provisions in that behalf.

NOW, THEREFORE, in pursuance of the proclamation of Independence

Order dated the 10th April, 1971 and all other powers enabling him in that
behalf the President is pleased to make and promulgate the following order:

(I) This order may be called the Provisional Constitution of Bangladesh

Order, 1972.
(2) It extends to the whole of Bangladesh.
(3) It shall come into force at once.
(4) Definition:
Constituent Assembly referred-to in this Order means the body
comprising of the elected representative of the people of Bangladesh
returned to the N.A. and P.A. seats in the elections held in
December, 1970, January. 1971 and March, 1971 not otherwise
disqualified by or under any law.
(5) There shall be a Cabinet of Ministers with the Prime Minister at the
head.
(6) The President shall in exercise of all his functions act in accordance
with the advice of the Prime Minister.

Iniroductiofl 7
(7) The President shall commission as Prime Minister a member of the
Conctituent Assembly who commands the confidence of the
majority of the members of the Constituent Assembly. All other
Ministers, Ministers of State and Deputy Ministers shall be
appointed by the President on the advice of the Prime Minister.
(8) In the event of a vacancy occurring in the office of the President at
any time prior to the framing of the Constitution by the Constituent
Assembly, the Cabinet shall appoint as President a citizen of
Bangladesh who will hold the office of President until another
President enters upon the office in accordance with the Constitution
as framed by the Constituent Assembly.
(9) There shall be High Court of Bangladesh consisting of a Chief
Justice and so many other Judges as may be appointed from time to
time.
(10) The Chief Justice of the High Court of Bangladesh shall administer
an oath of office to the President and the President shall administer
an oath of office to the Prime Minister, other Ministers. Ministers of
State and Deputy Ministers. The form of the oath shall be as
prescribed by the Cabinet.

Dated this eleventh day of January one thousand nine hundred and
seventy two, being the twenty-sixth day of Poush, one thousand three
hundred and seventy eight.

Dacca Sheikh Mujibur Rahman

The 1 1th January, 1972 President of the
People's Republic of Bangladesh.
8 Introduction

In this document, the manifest aspiration of the people of

Bangladesh was to establish parliamentary democracy in Bangladesh.
As a matter of fact, this pre-constitutional document is a declaration,
affirmation and resolution for parliamentary democracy in Bangladesh.
These three pre-constitutional documents ultimately gave us the
legal basis for creation of Bangladesh and the system of Government
in accordance with which the country will be governed.
The Constituent Assembly by a resolution constituted a
Constitution Drafting Committee on 11 April 1972 with Dr. Kamal
Hossain as Chairman and 33 members of the Constituent Assembly as
members of the Commission. The Constitution of Bangladesh was
adopted and enacted on 4 November 1972 and it came into effect on 16
December 1972, as the commencing day of the Constitution as per
Article 153 of the Constitution of Bangladesh.
It may be noted that under the Chairmanship of Dr. Ambedkar, the
Constitution Drafting Committee of India drafted the Constitution of
India.

Constitution:
Constitution been defind in the Universal Standard
"Encyclopedia, Volume 6 as, "In olitics, a s stem of law established
yasinState for its ogiidance. It fixes the limits and
defines the relations of the legislative, the judicial, and the executive
powers of the State, both among themselves and with the citizens of
the State, thus setting up the basis for Government."
In the words of Cooley, in his 'Treatise on Constitutional
Limitations', Constitution has been defined as "the fundamental law of
a State, containing the principles upon which the Government is
founded, regulating the division of sovereign powers, and directing to
what persons each of these powers is to be confined and the manner in
which it is to be exercised."
A Constitution is a bare statements as to the different organs of a
State and its functioning within its sphere. Thus the Constitution is
different from Constitutional law. Tj nstitoniT1i of a counti5
decision s,ctinsiiiid
pracç. A Constitution cannot conceive oTifl eventualities but
leaves them to be provided by legislation. Even our Constitution can
not provide all exigencies and leave it to be determined by legislation.
American Constitution has developed through various decisions of the
United States of Supreme Court. In like manner, our Constitution
through judicial interpretations is also getting new colour and
dimension.
Introduction 9
EMERGENCY DECLARED ON 6.9.65, DURING PAKISTAN TIME,
AND THE COMBINED EFECT OF PROCLAMATION OF
INDEPENDENcE,1 971 ,LAWS CONTINUANCE ENFORCEMENT
ORDER, 1971 AND THE CONSTITUTION OF BANGLADESH.

Case cited:
In the case of Du/ichand Omraola/ Vs. Bangladesh, 33 DI-R(AD)
30, a substantial question of law of some public importance was
raised as to the validity of Ordinance 1 of 1969 which continued by
Laws Continuance Enforcement Order, 1971. The fact of th&case in
short is that on 6.9.65 emergency was proclaimed by the President
under Article 30 of Pakistan Constitution of 1962 as war broke out
between Pakistan and India. In pursuance of the declaration of
Emergency, the Defence of Pakistan Ordinance, 1965 was
promulgated. The war was over soon. Thereafter, Defence of Pakistan
Ordinance and the Rules made there under continued in operation till
16 February 1969, when came the formal declaration of revocation of
the Proclamation of Emergency and on that date Ordinance NO. 1 of
1969 Enemy Property (Continuance of Emergency Provision)
Ordinance, 1969 was promulgated continuing some provisions of the
Defence of Pakistan Rules. While th law was in continuance the
country was liberated.
K.Hossain,C.J. held Ordinance No.1 of 1969 as a valid piece
of legislation and observed in Paragraph 9 as follows:
"We are to look at the legitimacy of a law from the Proclamation of
Independence made on 10 April 1971 and the Laws Continuance
Enforcement Order and the Constitution of Bangladesh. As regards
argument of constitutional legitimacy of Yaha Khan, all that need to
be said is that this is a political question which the court should
refrain from answering, if the validity or legality of the law could
otherwise be decided. In the present case, however, as we have said.
we are to look for the validity of the laws from the source indicated
earlier. A combined leading of Proclamation of Independence, Laws
Continuance Enforcement Order, the Constitution of Bangladesh,
President's Order No.29 of 1972, President's Order NoA8 of 1972
and Act XLV of 1974 as amended by Act XCIII of 1976 clearly
indicates, that Ordinance 1 of 1969 continued as a valid piece of
legislation which has been repealed by Act XLV of 1974. No further
argument or speculation is necessary".

10 Introduction

MARTIAL LAW DISPENSATIONS IN BANGLADESH AND THE

POSITION OF OUR CONSTITUTION DURING THOSE PERIODS
A.V. Dicey in his book, 'An introduction of the study of the law
of the Constitution' has defined "Martial law" in.the proper sense of
that term, in which it means the suspension of ordinary law and the
temporary Government of a country or parts of it by military
tribunals, is unknown to the law of England. But the proclamation of
martial law in this sense of the term is, as has been pointed out, had
visited Bangladesh twice by usurping the authority of a recognised
Government. Many Third World Countries had also experienced the
imposition of Martial Law from time to time.
On 15 August 1975 President Sheikh Mujihur Rahman was
assassinated. Thereafter Khandaker Mostaque Ahmed assumed the
Office of the President of Bangladesh and the entire country was
placed under Martial Law on 20 August 1975. Khandaker Mosta'que
Ahmed issued a proclamation of Martial Law and thereby the
Constitution of Bangladesh Was made subservient to the Maiial Law
Proclamation and the Martial Law Regulations and Orders(and other
orders) made by him.
This Proclamation of 20 August 1975, further takes away the
jurisdiction of all courts including the Supreme Court, or Tribunal or
Authority to call in question in any manner whatsoever or declare
illegal or void this Proclamation or any Martial Law Regulation or
Order(or other orders) made by the President himself. This
Proclamation also bars the challenge of anything done or any action
taken by or under this proclamation, or any Martial Law Regulation
or order (or other orders) made by the President in pursuance thereof.
The first Martial Law which was promulgated on 20 August 1975
continued upto 9 April 1979. During this time, A.M. Sayem Chief
Justice of Bangladesh assumed the Office of President and Chief
Martial Law Administrator and thereafter Ziaur Rahman became the
President and Chief Martial Law Administrator.
In the election held under the Martial Law, the new parliament
under. Ziaur Rahman got the Constitution (Fifth Amendment)Act,
1979 passed, ratifying all the Proclamations and Proclamations Orders
and the amendments, modifications and omissions made in the
Constitution by such proclamations and proclamation orders. This
Fifth Amendment of the Constitution also gave validity to all actions
done or taken during this period.
After revocation of the First Martial Law on 9 April 1979. the
Constitutional Government was restored and the Supreme Court's
 Introduction 11
power of judicial review was also restored. Even during Martial Law
and thereafter many cases on the Constitutional validity of the First
Martial Law Proclamation, Regulations and Orders came up for
consideration before the High Court Division of the Supreme Court.
Here in below I will deal with some of those cases:
Cases:
(1) Hal/ma Kharun —Vs- Bangladesh, 30 DLR(SC) 207(Judgment on
January 4, 1978).
Fn that case, the petitioner's property was declared as an
abandoned property under the Abandoned Property (Control,
Management and Disposal) Order (P.0.16 of 1972) and the said
notice was challenged in the Writ Petition. The Writ Petition was
dismissed as disputed questions of fact were raised in the petition. A
preliminary question arose before the Appellate Division whether, in
view of the Abandoned Properties (Supplementary Provisions)
Regulation, 1977 (Martial Law Regulation No.VII of 1977), the leave
petition has been rightly abated or not.
In that decision, F.Munim,J. observed that the Const:'tion of
Bangladesh stands subordinate to the Proclamation, Regulation. or
order as may be made by the President by virtue of assumption of
powers and as such the Constitution is no longer the Supreme law of
the country. Further, it was held in Paragraph 18 of that decision that,
inspite of Article 7(2), no Constitutional provisions can claim to be
sacrosanct and immutable. The present constitutional provisions may,
however, claim superiority to any law other than a Regulation or
order made under the Proclamation. Ultimately, total ouster of
jurisdiction of the High Court Division was upheld in that decision.
As time passed by, the case of Hahn, Khatoon was reviewed by
the same court and total ouster of jurisdiction was modified.
(2) State —VS- Haji Jovnal Abed in, 32 DLR (AD) 110 (Judgment on
December 20, 1978).
In that decision, the High Court Division declared the sentence of
death passed on five condemned prisoners by a Special Military
Court as passed without lawful authority and is of no legal effect.
The Appellate Division set aside the order of the High Court
Division and Ruhul Islam,J. held that-
"The moment the country is put under Martial Law, the aforenoted
Constitutional position along with other Civil Laws of the country looses
its superior position. Martial Law Courts being creatures either of the
I 2 Introduction

proclamation or Martial Law Regulation. have the authority to try any

offence made triable by such courts".
Further in that case, Ruhul Islam,J. held at Paragraph 18 as under:-
"From a consideration of the features noted above it leaves no room for
doubt that the Constitution though not abrogated, was reduced to a
position subordinate to the Proclamation, in asmuch as, the unamended
and unsuspended Constitutional Provisions were kept in force and
allowed to continue subject to the proclamation and Martial Law
Regulation or orders and other orders, and the Constitution was amended
from time to time by issuing proclamation. In the face of the facts stated
above I find it difficult to accept the arguments advanced in support of
the view that the Constitution as such is still in force as the Supreme Law
of the country, untrammelled by the proclamation and Martial Law
Regulation".
Thus, the power of the Supreme Court to exercise judicial review
was not allowed during the existence of Martial Law
Proclamation.
(3) In the case of Ehtashwnuddin Vs. Bangladesh, 33 DLR(AD)
154, Ruhul lslam,J. held at paragraph 15 as under:-
"In view of the clear provisions in clauses (e) and (h) of the Proclamation
of August 20, 1975, which clearly provide, inter alia, that the
Constitution shall continue subject to proclamation, etc. and that no
courts including the Supreme Court, or Tribunal or authority shall have
any power to call in question in any manner whatsoever or declare illegal
or void the proclamation or any Martial Law Regulation or Orders or
other orders made by the Chief Martial Law Administrator in pursuance
thereof, or any declaration made by or under the proclamation".
In this case, however, the Appellate Division made a little
opening and further held that when a Martial Law Court or
Tribunal has acted without jurisdiction or such courts or Tribunal
is not properly constituted, that is to say, is coram non-judice, or
has acted malafide, the power of the Superior Courts under Article
102 of the Constitution in an appropriate case may be exercised.
(4) Nasiruddin Vs. Government of Bangladesh, 32 DI-R(AD) 216.
In this case, clarification was given regarding the question of
abatement of writ petition in Halima Khatoon 's case.
Karnaluddin Hosain,C.J. at paragraph 11 of this case observed as
follows:
"In Halinza Khatowt s case the decision is that if any action of taking
over or vesting of a property comes within the mischief of Martial
Law Regulation NoV11 of 1977, any proceedin gs seeking to

introduction 13

challenge The taking over or vesting of such property shall abate. The
further observation that requires to be made is that abatement of the
proceedings will follow in such cases, except where the taking over
or vesting is without jurisdiction or Coram non-judice or it is
malafide and, in such circumstances such action or order is not
protected under the said Regulation. With this clarification in Halima
Khatoon 's case and in conformity of the two decisions set out, is to
be held that there cannot be any question of abatement of any legal
proceedings taken by an aggrieved person to protect his legal right or
interest in the property against which action has been taken or vesting
order made which is without jurisdiction or Coram non judice or is
malafide. Except within this narrow compass the proceedings coming
within the mischief of MLR VII of 1977 shall abate".
Thus the jurisdiction of the Supreme Court was extended within
the narrow compass as indicated above inspite of the mischief of
Martial Law Regulation.
(5) Jainil Huq Vs. Bangladesh, 34 DLR(AD) 125.
President Ziaur Rahman was killed on 30 May, 1981. As a
consequence of that several Army Officers were tried and
convicted by a court martial, out of those convicted persons,
twelve persons who were sentenced to death filed writ petition
befre the High Court Division. The writ petitions were
dismissed in limine by a Division Bench of the High Court
Division holding that under Sub-clause(5) of Article 102 of the
Constitution, the High Court Division has no jurisdiction to
entertain the writ petition. On leave to appeal, the Appellate
Division held that the view taken by the High Court Division that
the jurisdiction is barred in absolute terms is not correct.
Kamaluddin l-Iossain,C.J. held at paragraph 45 as under:-
It has been now well settled that the court can interfere when a
case is made out of coram non judice or malafide
notwithstanding a finality clause. In the present cases, such case
has not been made out. Since this is the position the conclusion is
that the High Court Division has not been conferred with the
jurisdiction under Article 102 of the Constitution to interfere with
a decision given by a Court Martial Law convened under the
Army Act, unless it can be shown that the proceedings was in
coram non judice or malafide. If the court is constituted properly
and the offence is cognizable then tl'ke proceedings of such court
cannot be interfered with on the ground of procedural
irregularities."
 Introduction
(6) Bangladesh Vs. Mahbubur Rashid, 191 BLD(AD) 300.
Respondent and others were convicted by the Special Martial
Law Court. The proceedings of that case were submitted to the
Government for review, The Govcrnent found no ground of
review. The respondent, however, challenged the order of review
in a writ petition before the High Court Division. The High Court
Division allowed the review on the ground that in the absence of
any judgment the purported review was illegal. Appellate
Division dismissed the writ petition. In that decision, Sahabuddin
Ahmed,J. rejected the contention of the respondent's Advocate
that there is no Constitutional backing of clause (e) of the
proclamation from 7 April 1979 and held at paragraph 6 as
follows:-
"In clause(c) this proclamation has only provided for disposal of
certain pending matters and this provision has been ratified by
the Constitution(Fifth Amendment) Act which was enacted
simultaneously with the last proclamation."
(7) Khondker Moshtaque Ahmed-Vs-Bangladesh, 34 l)LR( AD) 222.
Khondker Moshtaquc Ahmed was convicted in two cases before
the Martial Law Court. In both the cases the proceedings were
submitted to the Chief Marlial Law Administrator for review. In
the above dcisioii it was held that malauide or corarn non judice
proceedings are not immune from scrutiny of the Supreme Court
notwithstanding any ouster clause in the Martial Law
Proclamation. Ish that case, B.H.Chowdhury,J. held at Paragraph
23 as follows:-
"Power has not been given to exercise it illegally or with
malafide Intention. Malafide action do not get any protection
from a court of law. The learned Judges of the High Court
Division having come to this point fell short of giving the remedy
which inferentially leads to irresistible conclusion, namely, the
quashment of the conviction. Since the conviction is to be
quashed it is needless to go into the second point whether the
review was done in accordance with law. Suffice it to say that the
review was not done by the Chief Martial Law Administrator
who was the reviewing authority till 6.6.1977. The only inference
that can be drawn by such belated review by an aLithority e.g.
the Government when the Chief Martial Law Administrator was
the designated authority is that the apprehension of the accused
that the proceedings have been initiated malafide cannot be
repudiated."
Introduction 15

SECOND MARTIAL LAW; 24 MARCH, 1982-10 NOVEMBER,

1986.
Bangladesh was placed under Second Martial Law on 24 March,
1982 by Hussain Muhammad Ershad. By the Proclamation of 24
March 1982, he suspended the Constitution of Bangladesh and
the Supreme Court of Bangladesh ceased to derive any power
from the Constitution. Subsequent thereto, Ershad revived the
power of judicial review in respect of some of the fundamental
rights and the Constitution was partially restored. Final revival of
the Constitution took place after withdrawal of the Martial Law
on 10 November 1986. As the Constitution (Fifth Amendment)
Act gave validity to the First Martial Law, in the like manner, the
Constitution (Seventh Amendment) Act, 1986, ratified and
confirmed all Martial Law Proclamations, Regulations and
orders. By inserting paragraph 19 to the Fourth Schedule to the
Constitution all Martial Law orders, actions made or taken during
this period was validated.

Cases:
(1) Nasrin Kader Siddique Vs. Bangladesh, 44 DLR(AD) 16.
Detenu, Abdul Kader Siddique' wife filed a writ petition
challenging her husband's detention under Section 3(1)(a) of the
Special Powers Act, 1974. The facts are like this, that after the
assassination of Sheikh Mujibur Rahman on 15 August 1975, the
detenue left'for India. He returned to Bangladesh on 16 December,
1990. Subsequently, he was arrested on the ground that there is a
conviction order against him by a Martial Law Court. The detenu
wanted to see the warrant of arrest and the police failed to produce
the same. Thereafter, this detention order was passed. The alleged
conviction and sentence remained unexecuted for 14 years. On 7
April 1979, a proclamation was issued which was both a repealing
and saving legislation. Now, the main question raised is, unexecuted
sentences of Special Martial Law Court can be executed only in the
manner and by the authority prescribed in the saving clauses.
The said proclamation of withdrawal in Sub-paragraph 'K' reads
as follows:-
"K' Every sentence of imprisonment or whipping passed in any
case at any time before the commencing day by a Special Martial
Law Court or Special Martial Law Tribunal shall,after the
commencing day, be put into execution under the warrant of the
Sessions Judge of the area in which ' person under sentence
may be found, as if the sentence were passed by him."
16 Introduction

But in the instant case the warrant of commitment of sentence was

issued by the Additional District Magistrate, Tangail, whereas the
warrant of commitment of sentence was not passed by the Sessions
Judge within whose area the detenue was found as contemplated
under the proclamation of 7 April 1979. It is the Sessions Judge who
alone is lawfully competent to issue the Warrant of Commitment in
this case. Hence, it was held that the order of detention was wholly
without any lawful authority.
(2) In the case of Principal Secretary Vs. Mahtabuddjn Ahmed, 42
DLR(AD) 214, the respondent, Additional Chief Engineer of the
Roads and High Ways Department was dismissed from service
by Chief Martial Law Administrator under Martial Law Order
No. 9 of 1982. A criminal case filed against the respondent was
disposed of by submitting FRT. Though the Criminal ease was
withdrawn but the review application and the dismissal order
were not set aside. Martial Law was withdrawn with effect from
10.11.86 by a proclamation. All Martial Law Orders including
Martial Law Order No.9, stood repealed and thus there was no
competent authority to pass any order on review for respondent's
re-insi.atenient under Para 1A ofjMLO No.9 of 1982.
In that decision A.T.M. Afal,. held at para 6 as under:
"The relevant provision slwws'thatJtñ aggrieved person may
make an application praying fo'r vie of an order made under
MLO 9. It is true that the word 'm' has been used in conferring
authority to the Chief Martial Law Adrijinistrator for review but
upon a true construction of the Provisibn'jn the context of an
order made under MLO 9 it will he reasonable and right to hold,
as the High Court Division has done, that the word 'may' ought
to be read as 'shall' and the CMLA is bound to consider and
dispose of n application for review which has been filed to
him."
The learned Judge further held in paragraph 7 as follows:
The General Clauses Act, 1897 has been made applicable to
Martial Law Orders by reason of Sub-Paragraph(a) of Paragraph
19 of the 4th Schedule of the Constitution (7" Amendment)Acr,
1986. Under the Proclamation of withdrawal of Martial Law,
MLO 9 was repealed but the remedy of review provided under
the said MLO survived the repeal. It is obvious that unless some
provision was made for disposal of cases awaiting review the
effect to the proclamation could not be fully given. In order to
harmonize the effect of repeal of the MLO with the operation of
proclamation of withdrawal of Martial Law in the circumstances
as in the present case, provision has been rightly made in
 Introduction 17
paragraph 5 of the said proclamation enabling the President to
make an order whenever necessary to which the High Court
Division has referred."
(3) In the case of Dewan Abdul Karini-Vs- Bangladesh, 54 DIR, 33,
Syed J.R.Mudassir Husain,J. relying oil decision of 42
DLR(AD) 214 held in paragraph 14 as under:
In view of the aforesaid decision of the Appellate Division
reported in 42 DLR(AD) 214 as well as of the decision of the
Writ Petition No.4897 of 1997 we find substance in the Rule and
accordingly, we direct the respondents to communicate the result
of the review application of the petitioner which was heard on
16,6,92 pursuant to notice 3.6.92 (Annexure F). If the petitioners
application is still undisposed of, the Government may take step
to dispose of the said application for review by creating an
appropriate review forum within three months from the date of
receipt of this order."
(4) In the case of Manoran Jan MuklierJee Vs. Election Commission
and others, 41 DLR 484, a question was raised as to what will he
the effect of a conviction and sentence by a summary Martial
Law Court after the withdrfl of Martial Law and could such a
conviction be termed asa 0 isa4ification under Section 7(2)(d)
of Local Governmeii ( .14nion Parishad) Ordinance, 1983. in that
decision at Parag4is tià 10 Mustafa Kamal,J. observed as
follows:
"But wh i lç.paving, the Martial Law does not leave a trail of
disqualificatiy.It is good as it lasts, but with its departure it no
longer casts a shadow upon the ordinary laws of the land. In that
view of the matter we are clearly of the opinion that Section
7(2)(d) of the Ordinance does not refer to a conviction of a
Military Court and it also does not refer to an offence under the
Martial Law Regulations or orders. it simply refers to Criminal
offences as provided by the ordinary laws of the land and
conviction on trial by an ordinary court of the country as
provided in the judicial hierarchy or by Special Tribunals."
(5) In the case of Mullick Brothers Vs. income Tax Officer and
another, 31 DLR(AD) 165, a question was raised that the Martial
Law Regulation came to an end after the revocation of Martial
Law and it cannot be included as a valid piece of legislation in
the definition of law or existing law or Regulation as provided in
the Constitution of Bangladesh. In that decision, Article 83 of the
Constitution, Income Tax Regulation, 1969 promulgated by
Martial Law authority of Pakistan, proclamation of Independence

18 Introduction

were considered and K.M.Sobhan,J. held at Paragraph 12 as

follows:-
"The learned Judges of the High Court Division again
wrongly concluded that the tax demanded from [lie
appellant is debt due to the Government of the then
Pakistan and became a debt, to the Government of
Bangladesh. President's Order No.147 of 1972 has
amended the definition of the Government which is
effective from the 26 day of March, 1971 and it reads as
follows:-
"Clause 21 "Government or the Government" shall mean
(a) in relation to anything done before the 26 day of
March, 1971, comprised in Bangladesh
(b) in relation to anything done or to be done after the 25
day of March, 1971, the Government of the People's
Republic of Bangladesh. This definition of the
Government is contrary to what have been taken as
meaning of Government by the High Court
"Government debt" has also been defined in clause
(216) of the General Clauses Act as amended by
President's Order No. 147 of 1972 and is as follows:-
"(216) Government debts" and equivalent expressions shall
include debts due to the Government of the People's
Republic of Bangladesh and any debt due to any
Government that functioned within the territories now
comprised in Bangladesh."
The imposition of the impugned tax was totally
unauthorised and lacked legal foundation. It created no
liability and so the question of debt does not arise".
(6) In the case of A.K.M.FazIul Hoque and others Vs. State, 26 DLR
SC 11, a question was raised as to whether the President's Order
No.8 of 1972, the Bangladesh Collaborators (Special Tribunal)
Order, 1972 was promulgated by an authority competent to do
so. Sayem,C.J. on consideration of Clause (5) to (8) of the
Provisional Constitution of Bangladesh Order, 1972, held at
paragraph 11 as under:
"It will,however, be seen that in addition to conferring on the
President all other powers including the executive powers, the
proclamation after having notice the prevailing circumstances
invested him with all the "legislative powers of the Republic"
Obviously, the expression "Legislative Power of the Republic" is
of the widest amplitude and admits of no limitation. The
Introduction 19
proclamation, in our view, empowered the President designated
by it to make any law or legal provision, even of a Constitutional
nature. We looked for but found no indication in the
proclamation to the contrary. On the other hand, assurance is lent
to this view by the further provision in the proclamation which
empowered the President to do everything necessary to give the
people of Bangladesh an orderly and just Government, including
the power to appoint a Prime Minister and other Ministers. The
impugned clauses (5) to (8) of the Provisional Constitution order
were thus authorised by the terms of proclamation.".
Thus, the Appellate Division found that the Bangladesh Collaborators
order was promulgated by a competent legislative authority of the
Republic.

AMENDMENTS OF THE CONSTITUTION

There has been 13 amendments of the Constitution:

1. Constitution (1st Amendment ) Act, 1973 was passed on 15 July
1973. Sub-Article (3) of Article 47 was inserted whereby any
law providing for the detention and trial of war crimii.ils was
kept out of the purview of fundamental rights as in
Part III of our Constitution. New Article 47A debars any person
to whom a law specified in Clause (3) of Article 47 applies to
move the Supreme Court for any of the remedies under the
Constitution.
2. Constitution (Second Amendment) Act, 1973 was passed on 22
September, 1973. In our constitution, there was no provision of
proclamation of emergency and suspension of fundamental
rights. Part IXA was introduced providing for proclamation of
Emergency, suspension of provisions of certain articles during
emergencies and suspension of enforcement of fundamental
rights during emergencies. Further, Article 33 was substituted
providing for preventive detention.
3. Constitution (Third Amendment) Act, 1974 was passed on 28
November 1974. In the case of Mukhlesur Rahman Vs.
Bangladesh, 26 DLR(SC) 44, the agreement between India and
Bangladesh signed by Sheikh Mujibur Rahman, Prime Minister
of Bangladesh and Indira Ghandi, Prime Minister of India in
respect of retaining Dahagram and Angarpota and giving up
Berobari was challenged. In view of the decision of the Appellate
Division to give effect to the said agreement, this Amendment
was brought in Article 2.

20 I,lt1l)dUC(jQ,i

4. Constitution (Fourth Amendment) Act, 1975 was passed on 25

January 1975. This Amendment brought in changes in the basic
structures of the Constitution. Part VIA was added bringing the
following basic changes:

(1)
Parliamentary form of government was abolished
introducing Presidential form.
(2) One political party was introduced in place of many
political parties in the country.
(3) Power of judiciary was curtailed. Article 44 was amended.
(4) President can appoint and remove Judges.
(5) President will appoint Vice-President and Ministers.
(6) Subordinate Court's control was taken away from the
Supreme Court to the President.
(7) No provision was kept for consultation with the Chief
Justice in case of appointment of the Supreme Court
Judges.
By this amendment all authority was vested in the President.
5. Constitution (Fifth Amendment), 1979. The First Martial Law of
Khandoker Mostaque Ahmed continued upto 9 April 1979.
Constitution (Fifth Amendment) Act, 1979 was passed in the new
Parliament of President Ziaur Rahman ratifying and conforming of
all martial law proclamations/orders between 15 August 1975 to 9
April 1979.
6. Constitution (Sixth Amendment) Act, 1981. On the death of
President Ziaur Rahinan on 30 May 1981, Vice President Abdur
Sattar became the Acting President. To remove doubt as to
whether Acting President can contest as President without
resigning from the post of Vice President in 198 I, (his amendment
was broughtin that on being elected as President he shall be
deemed to have vacated the post of the vice President.
7. Constitution (Seventh Amendment) Act 1986:
2 Martial Law of Hussain Muhammad Ershad continued from
24 March 1982 to 10 November 1986. By this amendment all
Martial Law proclamations/Orders of this period were ratified
and confirmed. Further the age of the Supreme Court Judges was
raised from 62 to 65 years.
8. Constitution (Eight Amendment) Act 1988:
By this amendment, Article 100 of the Constitution was amended
by setting up six permanent benches out side Dhaka. By the same
Amendment Act, Islam was introduced as the State religion of
Bangladesh in Article 2A. In the case of Constitution (8th
Amendment) case, Anwar Hossain Chowdhury—Vs- Bangladesh,
Introduction

41 DLR(AD) 165, the Constitution (Eight Amendment) Act,

1988 was declared as unconstitutional and void.
9. Constitution (Ninth Amendment) Act, 1989 was passed
providing for election of the Vice-President and making
amendments in respect of the terms of office of the President and
Vice-President. Before this amendment, the movement for
formation of Non-Party Care-Taker Government for holding a
free and fair election was going on for appointing a neutral
person. To facilitate this formula, Article 55A was inserted for
appointment of a new Vice-President, and to make it effective,
would require the confirmation by the majority of the total
number of members of Parliament.
10. Constitution (Tenth Amendment) Act, 1990. By amendment of
Article 65(3), reserved seats for 30 women were further extended
for ten years.
11. Constitution (Eleventh Amendment) Act, 1991. President
Ershad handed over power to Shahabuddin Ahmed, Chief Justice
after appointing him as Vice-President. By this amendment all
actions of the Care-Taker Government was ratified along with
the appointment of Justice Shahabuddin Ahmed and his return to
the Supreme Court as Chief Justice.
12. Constitution (Twelfth Amendment) Act, 1991 restored
Parliamentary form of Government. This amendment is very
important as original Constitution was substantially restored.
13. Constitution (Thirteenth Amendment) Act, 1996 introduced Non-
Party Care Taker Government by introducing Chapter 11 A-in
the Constitution. This was passed in the Sixth Parliament.
 THE CONSTITUTION OF THE
PEOPLE'S REPUBLIC OF BANGLADESH
Preamble , The (o,tsiéiuiuw o/ tie Peoples R publie r)/lluI?c'luderlt 25

'Bismil!ah-ar-Rahrnan-ar-Rahim
(in the name of Allah, The Beneficent, The Merciful)

PREAMBLE

We, the people of Bangladesh, having proclaimed our independence

on the 26 1h day of March. 1971 and through 2 [a historic war for national
independence], established the independent sovereign People's Republic
of Bangladesh;
3 [Pledging that the high ideals of absolute trust and faith in the
Almighty Allah, nationalism, democracy and socialism meaning economic
and social justice, which inspired our heroic people to dedicate themselves
to, and our brave martyrs to sacrifice their lives in the war for national
independence, shall be the fundamental principles of the Constitution:]
Further pledging that it shall he a fundamental aim of the State to
realise the democratic process a socialist society, free from exploitation—a
society in which the rule of law, fundamental human rights and freedom,
equality and justice, political, economic and social, will he secured for all
Citizens;
Affirming that it is our sacred duty to safeguard, protect and defend
this Constitution and to maintain its supremacy as the embodiment of the
will of the people of Bangladesh so that we may prosper in freedom and
may make our full contribution towards international peace and co-
operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembl y , this eighteenth day of Kai-tick, 1379 B.S.
colTesporiding to the fourth day of November, A.D., do hereby
adopt, enact and give to ourselves this Constitution.

Comments on Preamble
Basic Structure
High Ideals specified in the preamble contain the basic structure of out-
Coll Sti tUti Oil which cannot he amended in exercise of the power under
Article 142 of the Constitution. The land mark judgment of the Appellate

'The words, commas and brackets "Rismillah-arRahman-ar-Rahjin (in thc name of

Allah, the Beneficent, the Merciful)" were inserted by the proclamations (Amendment)
order. 1977 (Proclamations Order No.1 of 1977).
"The words "a historic war for national independence were substituted lr the words "a
historic struggle for national liberation", (ihid).
The second paragraph was substituted for the former second paragraph, ibid.
26 The (onsthution of the l't'ople . Republic of Bangladesh l'rew)IbIe

Division in the Constitution (Eighth Amendment) case of Anwar llussai,i

Chowdhury Vs. Bangladesh, 41 DLR (AD) 165 may he r ad for
consideration of the theory of 'basic structure", wherein it has been held
that preamble now is an entrenched provision of the Constitution which
cannot be amended by the Parliament alone without a referendum as
contemplated in Article 142(l A) of the Constitution. In our jurisdiction.
the Constitution (Eight Amendment) case is the only case which has given
a clear interpretation of the preamble but in Indian jurisdiction, the
importance and utility of the preamble has been pointed out in several
decisions of the Supreme Court of India. Ref. Keshvananda Bharati V.
State of Keral, AIR 1973 SC 1461. The basic structure doctrine is now
firmly established in the constitutional law of India. The Janata
Government's efforts to enshrine the 'basic feature theory' in the
Constitution of India, by requiring a referendum to amend four basic
feature failed owing to congress opposition to the relevant amendments of
Article 368 of the Constitution of India, as proposed by the 45th
Amendment, Bill, 1978. The four basic features mentioned in that Bill
were - Secular and democratic character of the Constitution; (ii)
Fundamental rights under Part III; (m) ' Free and fair elections to the
legislatures; (iv) Independence of Judiciary.
The framers of our Constitution recognized the proclamation of
Independence on the 26th day of March, 1971 and emergence of
Bangladesh as an independent, sovereign nation through a historic war of
national independence. The objectives specified as high ideals are,
absolute trust and faith in the Almighty Allah, nationalism, democracy and
socialism meaning economic and social justice which inspired our heroic
people for the war of national independence.
One of the fundamental aims of our Constitution is to secure the rule
of law for all citizens. Part VI (Judiciary), and other provisions have been
incorporated in the Constitution in furtherance of that aim. The realization
of all these objectives will increase manifold activities of the State for
overall welfare of the citizens by establishing a welfare and socialistic
State in Bangladesh.

Interpretation by Preamble
Looking at the preamble of our Constitution it can safely he said that it
does not stand in the same footing with the preamble of a Statute. The
preamble of a Statute cannot govern the substantive provisions of the
statute. Normally, preamble is not recognised as a pail of the Statue. And
 Preamble The Constitution of the Peoples Republic of Bangladesh 27

if the provisions of a statute are clearly unambiguous then the substanti*

part of a statute will prevail over the preamble. In the case of Anwar
Hossain Chowdhurv Vs. Bangladesh, 41 DLR (AD) 165, the Appellate
Division has taken note of aspirations of the people of Bangladesh and has
given interpretation and meaning to the preamble in confirmity with other
constitutional provisions of the Constitution.
Preamble speaks of ideals of trust and faith in Almighty Allah,
nationalism, democracy, socialism, rule of law, fundamental human rights,
political, social and economic rights. As a matter of fact the preamble may
be invoked to determine the ambit offundamental rights and Q7
fundamental principles of State Policy, which are supposed to secure civil
economic, social and political rights of the citizens oS Bangladesh. As
matter of fact the preamble spells out the aspirations of the people of
Bangladesh.
n interpreting a constitutional provision not only the grammatical
construction but also the intention of the framers of the Constitution are
also to be looked into to avoid ambiguity.

Democracy
Democracy guarantees its citizens a number of fundamental righ, that
non-democratic systems do not, and cannot, grant. It ensures its citizens a
broader range of personal freedom. It provides a maximum opportunity for
persons to exercise the freedom or self determination - that is to live under
laws of their OWfl choosing. Only a democratic Government can foster a
relatively high degree of political equality. It is seen that countries with
democratic Governments tend to be more prosperous than countries with
non-democratic Governments. Democracy is, for most of us, a better
system than any attainable alternative system. It is the best possible form
of Government, though it may not be all perfect. Democracy in theory, is
based on a notion of equality of all citizens irrespective of race, colour,
sox ek.

(Economic and Social Justice

In all modern Constitutions social and economic rights are
incorporated for the well being of common man. In keeping with the
aspirations of the preamble, the Court should uphold legislation which
enables for establishment of social justice. Economic and social justice
means, to remove economic inequalities to provide a decent standard of
living to the working people and to protect the interests of weaker sections
28 The Co'nslitl4lion of the People's Republic of Ban , ,'ladesl, l'reuoihle

of the people in the society. It is now a standard practice to have explicit

constitutional bill of rights in the Constitution.

Written Constitution
Ours is a written Constitution. The adoption of written Constitution
has, however, become the practice of the day. In U.K. Isreal and New
Zealand, we find unwritten Constitutions.

An organic Law
Constitution is not to be construed as a mere law, hut as the machinery
by which laws are made. A Constitution is a living and organic thing
which, of all instruments has the great claim to be construed broadl y and
liberally.

Secularism
It was one of the ideals in the original Constitution and the same was
substituted by 'absolute trust and faith in Almighty Allah' by the
Proclamation (Amendment) Order, 1977 (Proclamations Order No I of
1977). The meaning of secularism in English-Bengali dictionary published
by Sahitya Samsad is as follows :i-i ^ -FM--
. WT" Secularism ensures !'1'eedom of religion. It not only
guarantees a person's freedom of religion and conscience, but also ensures
freedom for one who has no religion. The State cannot make any
discrimination on grounds of religion. It treats all alike. As opposed to
Bangladesh, India is a secular democratic Republic. Bangladesh has now a
official religion.
Rule of Law
According to A.V. Dicey, Rule of Law means supremacy of law as
opposed to the arbitrary authority of the Government. This supremacy
guarantee three concepts:
(1) Absence of arbitrary power:
(2) equality before law: and
(3) rights of citizen.

Fundamental Law
The Constitution of Bangladesh operates as a fundamental law of the land.
All organs of the Government owe their origin and drive their authority
from the Constitution, All organs of the Government arc to discharge their
responsibilities within the frame-work of the Constitution. The judiciary
 7711' ( 'ou.vi/lullin 0. 1 i/u' People '.% Republic o/ /3a'ui1wh',/r 29

has power to declare a law unconstitutional, if the law is found to have

contravened any provision of the Constitution.

Sources of constitutional Law

The Constitution is a hare statement of facts of the different organs of the
State, but the Constitutional law is supplemented by Act of Parliament,
Judge made laws, cbnventions and practices. Article 152(2) of the
Constitution of Bangladesh provides that the provisions of the General
Clauses Act 1897 shall apply to the interpretation of the Constitution.
Article 6 of our Constitution speaks that citizenship shall be regulated by
law, Futher an Act of parliament shall govern the method of election of the
President by the members of the Parliament. Hence, legislation is main
source of constitutional law. Judicial decisions also form part of the
constitut:onal law of Ban g ladesh. Conventions are not enforceable in a
Court of law but those can attain the status of law by judicial
interpretations. The authorative books on constitutional law can he treated
as it source of constitutional lacy hut those have persuasive force only.
In the case Anwar IJo.v.an ? Vs Bangladesh reported in 41 DLR (AD)
165, at paragraph 53. 13.11. Chowdhury, J. held as follows:
We are relieved of the anxiety as to whether the preamble is a part of
the Constitution or riot as it has been the case in some other Country.
Article 142( IA) stipulates that a Bill for amendment for the preamble
and provisions of Article 8. 48, 56. 80. 92A and Article 142 when passed
in the Parliament and presented to the President for assent "the President
shall within the period of seven day after the Bill is presented to him,
cause to he referred to it referendum the question whether the Bill should
or should not he assented to.' Hence, the preamble can only be amended
by referendum and therefore is a part of the Constitution.'
In the same decision at paragraph 496, M.I-I. Rahman, J has opined as
under:
"This preamble is not only it part of the Constitution. it now stands as an
entrenched provision that cannot be amended by the Parliament alone. It
has not been spun out or gossamer matters nor it is it little star twinkling
in the sky above. If any provision can be called the pole star of the
Constitution then it is the Preamt)le.
In the case of Dr. Mohiudthn Fai'ooquc Vs. Bangladesh reported in 49
DLR (AD) 1, Mustafa Karnal, J. held in paragraph 42 as follows:
'As for (ii) the Preamble and Article 7, the Preamble of our Constitution
stands on a different footing front that of other Constitutions by the very
fact of the essence of its birth which is different from others. It is in our
30 The Constitution of the Peoples Republic of Bangladesh Picambit'

Constitution a real and positive declaration of pledges. adopted. enacted

and given to themselves by the people not by way of a presentation from
skilful draftsmen, but as reflecting the ethos of their historic war of
independence. Among other pledge- the high ideals of absolute trust and
faith in the Almighty Allah, a pledge to secure for all citizens a society in
which the rule of law, fundamental human rights and freedom, equality
and justice, political, economic and social and the affirmation of the
sacred duty of safeguard, protect and defend the Constitution and to
maintain its supremacy as the embodiment of the will of the people of
Bangladesh are salutary in indicating the course or path that the people
wish to tread in the days to come. Article 7 of the Constitution bestows
the powers of the Republic with the people and the exercise of the
people's power on behalf of the people shall he effected only under and
by the authority of the Constitution.
Article 7 does not contain empty phrases. It means that all the legislative,
executive and judicial powers conferred oil Parliament. the Executive
and the Judiciary respectively are constitutionally the powers of the
people themselves and the various functionaries and institutions created
by the Constitution exercise not their own indigenous and native powers
but the powers of the people on terms expressed by the Constitution. The
people, again, is the repository of all power under Article 7.'
In the same decision, Latifur Rahman. J. in paragraph 71 held as
follows:
"The Preamble of our Constitution really contemplates a society where
there will be unflinching respect for the Rule of Law and the welfare of
the citizens. Article 7 speaks of the supremacy of the Constitution. This
supremacy of the Constitution is a special and unique feature in out-
Constitution. Neither in the Constitution of India nor in the Constitution
of Pakistan there is reassertion of the supremacy of the Constitution. i'his
is a substantive provision which contemplates exercise of all powers in
the Republic through the authority of the Constitution."
 Article 1 1 lie ('ou.c:izuhio,i of tile People '.r Republic of liwigladesli 31

PART I
THE REPUBLI(/

Article 1. The Republic.—Bangladesh is a unitary, independent. soveicign

Republic to be known as the Peoples Republic of Bangladesh.

Comments on Article 1
Unitary Structure
The Constitution of Bangladesh is unitary in form and is marked by
the traditional characteristic of a unitary system, namely, supremacy of the
Constitution, division of power between the different organs of the State,
existence of an independeny judiciary and a rigid procedure for the
amendment of the Constitution. There is an independent judiciary to
determine issues between State and its citizens and between citizens and
citizens. An amendment in respect of preamble, or any provisions of
Article 8. 48 or 56 or 142 may he caused by referendum alone. Unitary
system of government, is opposed to Federal system of Government, as in
the case of American Federation and Indian Federal system. n our system
of Government there is one central command i.e. one central government,
whereas in a federal system there is a central government as well as State
Governments with separate executive, legislative and judicial branches. In
our unitary system, all administrative units and local government
organizations derive their powers and jurisdictions from the single central
authority In the Constitution of America it has been clearly said that all
Judicial power vests in the Supreme Court of the United States. Although
there is no such vesting of judicial power by express words in our
Constitution. Yet all judicial powers of the Republic are vested centrally in
the Supreme Court of Bangladesh. In a unitary State, there will be one
central constitutional Court with full plenary power. Our founding fathers
have devised a composite Supreme Court to emphasis the oneness of the
Supreme Court. Thus bifurcation and creation of Seven Permanent
Benches outside capital with assigning separate territorial jurisdictions is
contrary to the concept of unitary character of Bangladesh.

,1,- Sovereign
Sovereignty is the independent authority of the State. The external
sovereignty of Bangladesh means that it is not under control of any outside
State or external power, Bangladesh as an independent sovereign State can
acquire foreign territory and also cede any part of Bangladesh territory.
 Die (I'on.tit,iuni of the I'cOplc '. Re1 iI'/ic of Ra,ii,'th/ii/i Altai( 2

The case of Mukhlesur Rahman reported in 26 DLR (SC) 44 illustrate the

proposition.
From internal stand point it means the power to legislate on any matter
in accordance with the Constitution and the fundamental rights enshrined
in the Constitution. The doctrine of sovereignt y also obliges the sovereign
to protect the rights and privileges of' the citizens of Bangladesh troth
external aggression.

6Republic
It is opposed to aristocracy, monarch y . oligarchy or dictatorship. The
Republican character is demonstrated in the idea that people are the
repository of all powers in the Republic. The head of the State must he an
elected functionar y . The Constitution declares that the sovereignty lies
with the people of Bangladesh.

Article 2. The Territory of The Republic—The territory of the Republic

shall comprise—
(a) The territories which immediatel y before the Proclamation of
Independence on the 26th day of March, 1971 constituted East
Pakistan [and the territories referred to as included territories in
the Constitution (Third Amendment) Act, 1974. but excluding the
territories referred to as excluded territories in that Act and
(b) Such other territories as may become included in Bangladesh.

Comments on Article 2
An agreement was entered into hetween India and Bangladesh on
16 May 1974 in Delhi between Sheikh Mujihur Rahnian. Prime Minister
of Bangladesh and Indira Ghandi, Prime Minister of India in respect of
retaining Dahagrarn and Angorpota enclaves and giving up South Berihari
to India. One Kazi Mukhlesur Rabman lthalIenged the legality of this
Delhi agreement of 1974. In the case 14 Kaci M,illesiir Ra/iiiian Vs.
Bangladesh, 26 DLR (SC) 44, it was held that cessicion of territory cannot
be done without constitutional amendment. Hence. the Constitution (Third
Amendment) Act, 1974 was incorporated in the Constitution. Being a
sovereign State, Bangladesh is free from any type of external control. It

The words, brackets, commas, tleure and semi-colon 'and the territories referred to as
included territories in the Constitution (Third Amendment) Act, 1974, but exeludinc the
territories referred to as excluded territories in that Act: and" were substituted for the
semi-Colon and word "; and" b y the Constitution (Third Amendment) Act. 974 (Act
I XXIV of 1974) s. 3.
Articles 2A-5 The Constitution of the People's Republic of Bu,zlade/, 33

can acquire foreign territory and, if necessary, cede a Part of the territory
in favour of another country, subject to certain constitutional
requirements.
Thus it is elementary that a definite territory, Population, a
Government and sovereignty constitute a State.

'[Article 2A. The state religion— The state religion of the Republic is
Islam, but other religions may he practised in peace and harmony in the
Republic.]

Comments on Article 2A
Islam was recognised as the official religion of Bangladesh. The
Constitution of India stands for a secular State. India has no official
religion as opposed to Bangladesh.
It may be mentioned here that many countries viz. Ireland, Sweden,
Norway, Denmark, Switzerland and Brazil have recognized Christianity
and jesus as religion.

Article 3. The state language—The state language of the Republic is

[B angi a].

Article 4. (1) National anthem, flag and emblem—The national anthem

of Republic is the first ten lines of "Amar Sonar Bangla".
(2) The national flag of the Republic shall consist of a circle, coloured
red throughout its area, resting on a green background,
(3) The national emblem of the Republic is the national flower Shapla
(Nympoea nouchali) resting on water, having on each side an ear
of paddy and being surmounted by three connected leaves of jute
with two stars on each side of the leaves.
(4) Subject to the foregoing clauses, provisions relating to the national
anthem, flag and emblm shall be made by law.

Article 5. (1) The capital—The capital of the Republic is 3[Dhaka].

(2) The boundaries of the capital shall be determined by law,

'Article 2A, was inserted by the Constitution (Eighth Amendment) Act, 1988 (Act XXX
of 1988), s.2.
2The word "Bangla" was substituted for the word "Bengali ibid. s.3.
The word "Dhaka" was substituted for the word "Dacca" ibid. s.4.
34 The Constitution of the Peoples Republic of Bangladesh Article 6

Article '[6. (1) Citizenship— The citizenship of Bangladesh shdl be

determined and regulated by law.
(2) The citizens of Bangladesh shall he known as Bangladeshis].

Comments on Article 6
Two sets of law determine and regulate the citizenship of Bangladesh.
(1) Bangladesh citizenship (Temporary Provisions) Order, 1972
(P.0.149 of 1972).
(2) Citizenship Act, 1951.

Cases:
In the case of Bangladesh —Vv- Professor Goiwn Azain, 46
DLR(AD) 192, the question of respondent's citizenship came into
question and on consideration of the relevant existing laws on Bangladesh
Citizenship. M.H.Rahman,J. held at paragraph 9 as under:
"Citizenship may he acquired by birth or by naturalisation. A
person who is deemed to he a citizen of Bangladesh under Article
2 is not required to take any oath of allegiance unless he is elected
or appointed to any office mentioned in the Third Schedule of the
Constitution. A naturalised citizen is, however, required to take
oath of allegiance to the constitution of the People's Republic of
Bangladesh.
To meet the requirements of the new situation that emerged out of
the independence of Bangladesh President Over No. 149 of 1972
was brought into existence on 15 December 1972, one day before
the commencement of the Constitution so that it might get the
constitutional protection of an existing law. The legislation bears
marks of hurried drafting. It has undergone several amendments
At present law of citizenship is governed by two legislations the
Citizenship Act, 1951, continued as an existing law by President's
Order No.48 of 1972, but not yet revised for printing in the statute
book, and the Bangladesh Citizenship (Temporary Provisions)
Order 1972(Prcsident's Order No. 149 of 1972). The instant case is
governed by President's Order No. 149 of 1972."
In the same decision, Latifur Rahman,J. held at p:ragraph 191 as
follows:-

Article 6 was substituted For the former article 6 by the proclamation (Amendment)
Order, 1977 (Proclamations Order No. I of 1977).
Article 6 The Constitution of the People's Republic oJ'Baiiglade.th 35

"Hence, legally speaking the commencement day of this order is

the 151h December,1972 and we are to see whether upto this date a
person qualifies the tests as contained in Clause (I) of Article 2 of
the Order. Clause (1) of Article 2 of the order only speaks of
permanent residence on 251h day of March, 1971 and nowhere it
has been mentioned that one is to he physically present at any point
of time after 25 day of March, 1971. From the 26111 day of March,
1971 upto 15.12,72 the investigation will be whether a person
continues to be so permanently resident in Bangladesh upto the
date of the commencement of the order. On other words, Article 2
of the order does not provide any mode for acquisition of
citizenship of Bangladesh, subsequent to the commencement of the
order."
In the case of Govt. of Bnanglades/z-Vs- ivI.S.Ispahani, 40 DLR(AD) 116,
the main contention of the Government was that the respondent cannot be
deemed to be a citizen of Bangladesh within the meaning of the provisions
of Articles 2 and 2A of the President's Order No. 149 of 1972. This
contention was rejected by the majority judgment. In ti.'t case,
Shahahuddin Ahmed,J. held at paragraph 40 as under:
"Respondent does not come under clause (1) of Article 2, but his
case is that he comes under clause (ii) in view of the fact that he
was a permanent resident "of the territories now comprised in
Bangladesh on the 25th March, 1971 and continued to be so. From
before 25111 March, 1971 he had been residing in U.K., first for
study, then for the purpose of professional work. He did not
physically continue to reside in Bangladesh but on the strength of
Article 2A of President's Order No. 149 of 1972, inspite of his
residence in U.K. "he shall he (teemed to continue to be permanent
resident of Bangladesh."
In the case of Mukhtar Ahmed-Vs-Govt. of Bangladesh, 34 DLR 29, the
facts are like this that the petitioner migrated from India in 1951 and his
domicile certificate was issued from Dhaka and he remained in
Bangladesh. After liberation of the country he swore an affidavit of
allegiance to Bangladesh in 1972 and he was a voter in the voters list
prepared after liberation. He filed an application to the International
Committee of Red Cross with a view to go over to Pakistan. The issue was
whether in such circumstances he lost his citizenship. Rafiquer Rahman,J.
held at paragraph 6 as under:
 The Constitution of the Peoples Republic of Bangladesh Article 7

"The mere fact that he filed an application for going over to

Pakistan cannot take away his citizenship. The Bangladesh
Citizenship Order, P.0.149 of 1972, has enumerated different
situations in which a person shall he deemed to be a citizen of
Bangladesh, but it has not discriminated among its citizens no
matter in which way they have become citizen of this country. So
the petitioner is on the same footing as any other citizen. His
citizenship,therefore, clings to him."

Article 7. (1) Supremacy of the Constitution—All powers in the Republic

belong to the people, and their exercise on behalf of the people shall be
affected only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the
people, the supreme law of the Republic, and if any other law is
inconsistent will this Constitution that other law shall, to the extent
of the inconsistency, be void.

Comments on Article 7
The importance of Article 7 was discussed at great length in the
Constitution (Eight Amendment) Case, 41 DLR (AD) 165. In this
decision, Article 7 has been held as a Pole Star of our Constitution.
Parliament is the creation of this Constitution and all powers flow from
this Article 7 and as such no Parliament can amend it. Further, it was held
in that decision that an amendment of the Constitution is not included in
law within the meaning of Article 7 in the same way as it is not law , in
Article 26 of the Constitution. The fabric of the Constitution cannot be
dismantled by Parliament as the amendment is to he tested with the touch
stone of Article 7.
This article is of an unique nature and we do not find any
corresponding article like this in the Constitution of India. Such
reaffirmation of the Supremacy of Constitution and vesting of all powers
to the people are seldom find in any Constitution of the world. There is
clear assertion that this Constitution has been given to ourselves by the
people of Bangladesh. The preamble and Article 7 envisage supremacy of
the Constitution.
The Constitution operates as a fundamental law. The judiciary has
power to declare a law void to the extent of its inconsistency, if the law is
found to have contravened any provision of the Constitution,
Article 8 The Constitution of the Peoples Republic of Bangladesh 37

PART II
FUNDAMENTAL PRINCIPLES OF STATE POLICY

Article '[8. (1) Fundamental Principles—The principles of absolute trust

and faith in the Almighty Allah, nationalism, democracy and socialism
meaning economic and social justice, together with the principles derived
from them as set out in this Part, shall Constitute the fundamental
principles of state policy.
(1A) Absolute trust and faith in the Almighty Allah shall be the basis
of all actions.]
(2) The Principles set out in this Part shall be fundamental to the
governance of Bangladesh, shall be applied by the State in the making
of laws, shall be a guide to the interpretation of the Constitution and of
the other laws of Bangladesh, and shall form the basis of the work of
the State and of its citizens, but shall not be judicially enforceable.

Comments on Article 8
The provisions in this Article are indeed in the nature ofsocio-
economic policies which a good Government must aspire to implement for
the good of the citizens. These fundamental principles when truly
achieved will be a manifestation of a Welfare State. As a matter of fact,
these fundamental principles of state policy have been interpreted as an
embodiment of concept of Welfare State. These principles oblige the
Government to create conditions in which the welfare of the common man
could be achieved by the State. These fundamental principles do not
confer any enforceable rights and their violation by the State dose not
entitle a citizen to seek relief in a court of law. These principles shall he
fundamental to the govéce of the State and shall be applied by the
State in the making of laws. If law is made b y the Par Iiment for
implementation of the fundamentil principles of State p y should be
as far as possiblel As a matter of fact, the Supreme Court of India
in--v—a—F—
ousdecislons when necessary, even constitutional provisions as to
fundamental rights have been adjusted so as to give effect to the directive
principles. Constitutional provisions ( apart from fundamental rights) have
been construed in the light of Directive Principles. In some of the
decisions of Indian jurisdiction, harmonious construction has been given
of Directive Principles and Fundamental Rights.

Clauses (I) and (IA) were substituted for the former clauses (1) by the Proclamations
(Amendment) Order, 1977 (Proclamations Order No. I of 1977).
 The Constitution of the Peoples Republic of 13 an ?Icl desh Article S

Through judicial decisions various constitutional provisions are

interpreted and the constitution gets a new dimension. If we look to some
of the earlier cases of Indian jurisdiction then we find that the Supreme
Court of India in the beginning uphck that the provisions of fundamental
rights will prevail in case of conflict with the Directive Principles of State
Policy. But in the later decisions, the same court did not find any conflict
between Part II and Part ifi and on the contrary, both Fundamental Rights
and the Directive Principles of State Policy were found to be
supplementary and complementary to each other. This is how constitution
develops gradually with the need of the time, through judicial
pronouncement of the constitutional Court for the good of the people and
society.

*ases :
In the case of Kudrat-e-Elahi Panir- Vs- Bangladesh, 44 DLI? (AD)
319, Shahbuddin Ahmed, C.J. held about the importance of fundamental
Principles of State Policy at paragraph 22 as under:
"They are in the nature of peoples programme for soClo-eConornic
development of the country in peaceful manner, not overnight, but
gradually. Implementation of tlese programme require resources,
technical know-how and many other things including mass-education.
Whether all these pre-requisites for a peaceful, socio-economic
revolution exit is for the state to decide.''
In the case of Dr. Iv! ohiuddin Farooque- VS. -Ban gladesh,49 DLI?
(AD)], Mustafa Kamal,J. held in paragraph 25 as under while interpreting
Article 8 of our Constitution:
"The preamble and Article 8 also proclaim principles of absolute trust
and faith in the Almighty Allah as a fundamental principles of State
Policy. Absolute trust and faith in the Almighty Allah necessarily mean
the duty to protect his creation, and environment. The appellant is
aggrieved, because Allah's creations and environment are in mortal
danger of extinction and degradation."
In the case of Sheikh Abdus Sahur Vs. Returning Otjicer, 41, DLR(AD)
30, it was held that it is judiciary that has to say the last word even in
matters of propriety of legislation. The concept of legislative supremacy
imported from the soil of a developed country cannot be transplanted into
the soil of a developing nation which has a nascent democracy. In the
same decision, the Appellate Division did not accept the theory of judicial
enforceability of fundamental principles of State Policy.
 Article 9 The Constitution of the People's Republic of Bangladesh 39

In the case of Saieernuila/z Vs. Justice Mohammed Abdul Quddus

Chowdliurv, and other, 41 DLR 691, the appointment of Justice
Mohammed Abdul Quddus Chowdhury as Secretary, Ministry of Law was
challenged on the ground that as a Judge he cannot he appointed as a
Secretary to the Ministry of Law and further his appointment has violated
Article 22 and other Articles of the Constitution, Abdul Matin Khan
Chowdhury,J. repelled this argument by interpreting Article 8(2) of the
Constitution and held at Paragraph 3 as follows:-
"In view of the above provision it is clear that although the separation of
judiciary was one of the fundamental principles of the State Policy of
the Government that cannot he enforceable in a court of law."
In the case of Aflahuddin (McI)- 1"s- Bangladesh and others, 48 DLR 3,
Naimuddin Ahmed,J. while interpreting Article 8(2) of the Constitution
observed in Paragraphs 45 and 46 that fundamental principles of State
Policy act as guide to the interpretation of the Constitution and other laws
of Bangladesh in view of Clause (2) of Article 8, but the fundamental
principles of State Policies are not enforceable in a Court of law.

Al rtjcIe 1 [9. Promotion of local Government institutions—The State shall

encourage local government institutions composed of representatives of
the areas concerned and in such institutions special representation shall be
given, as far as possible, to peasants, workers and women.

Comments on Article 9
Local Government institutions must be composed of representatives of
the areas concerned, wherein as far as possible arrangement for special
representatives of peasants, workers and women should be provided.
Cases:
In the case of Sheikh Abthes Sabur Vs. Returning Officer, District
Election Officer-In-Charge, Gopalganj and others, 41 DLR(AD) 30, at
paragraph 12 it has been held by the Appeflate Division that fundamental
principles as enunciated in Part 11, are nor judicially enforceable.
"While our Constitution recognizers the supremacy of the Constitution,
it lays fundamental principles of the State Policy in Part 11 although the
principles cannot be judicially enforced."
In the case of Ahsanullah Vs. Bangladesh, 44 DLR-179, Md. Abdul Jai il,J.
at paragraph 21 held that;

Articles 9 and 10 were substituted for the former Articles 9 and lij. ibid.
 40 The Constitution of the People's Republic of Bangladesh flrude.r 10, 11 & 13

"However Article 9 of the Constitution as quoted above is not mandatory

provision but is an enabling one as it is a direction on the State to
encourage Local Government Institution composed of representatives of
the area concerned with special representation of pleasant, workers and
women, as far as possible. There is no mandate that no Local
Government Institution can be abolished if necessary. Hence the
impugned ordinance cannot be said to be inconsistent with Article 9."

Article 31articipation of women in national life—Steps shall be taken

to ensuie participation of women in all spheres of a national life.

Artic?' Democracy and human rights—The Republic shall be a

democracy in which fundamental human rights and freedoms and respect
for the dignity and worth of the human person shall be guarantced l * * *
2[
and in which effective participation by the people through their elected
representatives in administration at all levels shall be ensured].
* * * * * * *

lses on Article
,^Oa 11
In the case of_Kudjad-E-Elcthi Panir_PLRA!))319,the Appellate
Division took note of Articles 9 and 11 while construing provision of
Article 59%nd held that there is no scope for forming a local government
body outside the provision of Article 59 or composed of non-elected
persons. It is the duty of the State to organise local government institutions
at Village,Union, Upazila and District levels. This Article also
contemplates the participation of workers, peasants and women in local
self governments.

Article 13. Principles of ownership—The people shall own or control the

instruments and means of production and distribution, and with this end in
view ownership shall assume the following terms—

The comma and words ", and in which effective participation by the people through
their elected representatives in administration at all levels shall be ensured" were omitted
by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975), s.2.
2 The comma and words ", and in which effective participation by the people through
their elected representatives in administration at all levels shall ensured" were inserted by
the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), s. 2.
3 Article "12. Secularism and freedom of religion." was omitted by the Proclamations
(Amendment) Order, 1977 (Proclamations Order No,! of 1977).
Articles 14-16 The (onsultitioz of the Peoples Republic of Bangladesh 41

(a) state ownership, that is ownership by the State on behalf of

the people through the creation of an efficient and dynamic
nationalised public sector embracing the key sectors of the
economy;
(b) co-operative ownership, that is ownership by co-operatives
on behalf of their members within such limits as may he
prescribed by law; and
(c) private ownership, that is ownership by individuals within
such limits as may be prescribed by law.

Comments on Article 11
In Bangladesh, we find the instruments and means of production and
distribution are owned by State, co-operative management and Private
Sector ownership.

Article 14. Emancipation of peasants and workers—It shall be a

fundamental responsibility of the State to emancipate the toiling masses—
the peasants and workers—and backward sections of the people from all
forms of exploitation.

Article 15. Provision of basic necessities—It shall be a fundamental

responsibility of the State to attain, through planned economic growth, a
constant increase of productive forces and a steady improvement in the
material and cultural standard of living of the people, with a view to
securing to its citizens—
(a) the provision of the basic necessities of life, including food,
clothing, shelter, education and medical care:
(h) the right to work, that is the right to guaranteed employment at
a reasonable wage having regard to the quantity and quality of
work;
(c) the right to reasonable rest, recreation and leisure; and
(d) the right to social security, that is to say, to public assistance in
cases of undeserved want arising from unemployment, illness
or disablement, or suffered by widows or orphans or in old age,
or in other such cases.

Article 16. Rural development and agricultural revolution—The State

shall adopt effective measures to bring about a radical transformation in
the rural areas through the promotion of an agricultural revolution, the
provision of rural electrification, the development of cottage and other
42 The Constitution of the Peoples Republic oJ fJangIodesh Article.% 17-20

industries, and the improvement of education, communications ard public

health, in those areas, so as progressively to remove the disparity in the
standards of living between the urban and the rural areas.

Article 17. Free and compulsory education—The State shall adopt

effective measures for the purpose of-
(a) establishing a uniform, mass-oriented and universal system of
education and extending free and compulsory education to all
children to such stage as may be determined by law;
(b) relating education to the needs of society and producing
properly trained and motivated citizens to serve these needs;
(c) rempving illiteracy within such time as may be determine by
law.

Article 18. (1) Public health and morality—The Stare shall regard the
raising of the level of nutrition and the improvement of public health as
among its primary duties, and in particular shall adopt effective measures
to prevent the consumption, except for medical purposes or for such other
purposes as may be prescribed by law, of alcoholic and intoxicating drinks
and of drugs which are injurious to health.
(2) The State shall adopt effective measures to prevent prostitution and
gambling.

Article 19. (1) Equality of opportunity—The State shall endeavour to

ensure equality of opportunity of all citizens.
(2) The State shall adopt effective measures to remove social and
economic inequality between man and man and to ensure the equitable
distribution of wealth among citizens, and of opportunities in order to
attain a uniform level of economic development throughout the
Republic.

Article 20. (1) Work as a right and duty—Work is a right, a duty and a
matter of honour for every citizen who is capable of working, and
everyone shall be paid for this work on the basis of the principle "from
each according to his abilities to each according to his work".
(2) The State shall endeavour to create conditions in which, as a general
principles, persons shall not be able to enjoy unearned incomes, and in
which human labour in every form intellectual and physical, shall
become a further expression of creative endeavour and of the human
personality.
 Articles 21 & 22 The Constitution of the Peoples Republic of Bangladesh 43

General Comments
It is no doubt,the duty of the State to provide for basic necessities of
life for its citizens, provide for employment opportunities, bring equal
development of rural and urban life, provide for free and compulsory
education and improve public health and morality, but all these
developments depend on the economic resources of the State.
Article 21. (1) Duties of citizens and public servants—It is the duty of
every citizen to observe the Constitution and the laws, to maintain
discipline, to perform public duties and to protect property.
(2) Every person in the service of the Republic has a duty to strive at all
times to serve the people.

Comments on Article 21
It is incumbent on every citizen in our country to understand and
observe the Constitution. It is unfortunate that the people of our country
are apathetic towards the Constitution and are not at all conscious to
perform public duties and to protect public property. Observance of the
Constitution will in reality, enable a person to be a good citizeii n our
country. A duty is also cast on a public servant of the Republic to serv. the
people withhty and dedication.

Ar ticLe2(4eparation of Judiciary from the executive—The State shall

ensure the separation of the judiciary from the executive organs of the
State.

Comments on Article 22
This Article is incorporated in the Constitution of Bangladesh since its
inception, but no government till today has implemented the Separation of
the Judiciary from other executive organs of the State. The Appellate
Division -of the Supreme Court in the case of Secretary, Finance,
Government of Bangladesh Vs. Masdar Hossain, 2000 BLD(AD) 104,
judgment delivered on 19.12.1999, gave clear direction to the Government
to implement twelve directions within six months and thereby to separate
the judiciary.
It may be mentioned here that during the Care-Taker Government of
2001, necessary Rules and ordinances were framed by the Ministry of
Law, Justice and Parliamentary Affairs,but those could not be
implemented at that time. The directives of the highest court is still not
implemented by the Government and on the contrary, Government is
taking time form the Appellate Division on various grounds. It may be
44 The Constitution of the People's Republic of Bangladesh Article 22

mentioned here that in India, Judiciary has been separated from the
executive in accordance with the directive principles of the State Policy as
per Article 50 of the Constitution of India. At the present time, there are
two classes of Magistrates-Executive Magistrates and judicial magistrates.
The judicial magistrates discharge all judicial functions, subject to the
judicial control of respective High Courts of India (Vide Durga Das
Basu's Constitution of India, Twtfth edition).

Case:
In the case of Secretary, Ministry of Finance Vs. Md. Masdar
Hossain, 20 BLD(AD) 104, Latifur Rahman,J. observed at paragraph 75 as
under:-
"Article 22 of the Constitution provides that the State shall ensure the
separation of judiciary from the executive organs of the State. Though
more than 29 years have elapsed since making of the Constitution and
its coming into force no effective steps have been taken to separate
the judiciary from the executive organs of the Stale."
The twelve directions of the case of Masdar Hossain as given by Mustafa
Kamal, C.J. are as follows:
1. The judicial service is a service of the Republic within the meaning of
art. 152(1), but it is fundamentally and structurally distinct and
separate from the civil executive and administrative services of the
Republic with which the judicial service cannot be placed on par Ofl
any account and it cannot be amalgamated, abolished, replaced,
mixed up and tied together with the civil executive and administrative
services.
2. The word "appointments" in art. 115 means that it is the President
who under art. 115 can create and establish a judicial service and also
a magistracy exercising judicial functions, make recruitment rules and
all pre-appointment rules in that behalf, make rules regulating their
suspension and dismissal, but art. 115 does not contain any rule-
making authority with regard to other terms and conditions of
serviced and arts. 133 and 136 and the Service (Re-organisation and
conditions) Act, 1975 have no application to the above matters in
respect of judicial service and magistrate exercising judicial
functions.
3. The creation of B.C.S (Judicial) cadre along with other B.C.S.
executive and administrative cadres by Bangladesh Civil Service (Re-
organisation) Order, 1980 with the amendment of 1986 is ultra vires
Article 22 The Constitution of the Peoples Republic of Bangladesh 45

the Constitution and Bangladesh Civil Service Recruitment Rules,

1981 are inapplicable to the judicial service.
4. The government is directed to take necessary steps forthwith for the
President to make rules under art. 115 to implement its provisions
which is a constitutional mandate and for a mere enabling power. The
nomenclature of the judicial service shall follow the constitutional
language and shall be designated as the Judicial Service of
Bangladesh or Bangladesh Judicial Service. Either by legislation or
by executive order having the force of rules a Judicial Services
Commission be established forthwith with majority of members from
the Senior Judiciary of the Supreme court and the subordinate courts
for recruitment to the judicial service on merit with the objective of
achieving equality between men and women in the recruitment.
5. Under art. 133 law or rules or executive orders having the force of
rules relating to posting, promotion, grant of leave, discipline (except
Suspension and removal), pay, aflowances, pension (as a matter of
right, not favour) and other terms and conditions of service, consistent
with arts. 116 and 116A, as interpreted by the appellate Division, be
enacted or framed or made separately for the judicial service and
magistrates exercising judicial functions keeping in view the
constitutional status of such service.
6. The orders impugned in the writ petition imposing conditions are
declared to be ultra vires and Constitution and the government is
directed to establish a separate Judicial Pay Commission forthwith as
a part of the rules to be framed under art. 115 (sic) to review the pay,
allowance and other privileges of the judicial service which shall
convene at stated intervals to keep the process of review a continued
one. The pay etc. of the judicial service shall follow the
recommendations of the Commission.
7. In exercising control and discipline of persons employed in the
judicial service and magistrates exercising judicial functions under
art. 116 the views and opinion of the Supreme Court shall shave
primacy over those of the executive.
8. The essential condition of judicial independence in art. 116 A,
elaborated in the judgement, namely, (1) security of tenure, (2)
security of salary and other benefits and pension and (3) institutional
independence from Parliament and the executive shall be secured in
the law or rules made under art. 133 or in the executive orders having
the force of rules.
 The Constitution oJ'lhe People's Republic of Bangladesh ,triicics 23 & 24

9. The executive government shall not require the Supreme court of

Bangladesh to seek their approval to incur any expenditure on any
item from the funds allocated to the Supreme court in the annual
budgets, provided the expenditure iu'irrd falls within the limits of the
sanctioned budgets, as more fully explained in the body of the
judgment. Necessary administrative instructions and financial
delegations to ensure compliance with this direction shall issued by
the governemnt to all concerend by 31.5.2000.
10. The members of judicial service are within the jurisdiction of the
administrative tribunal.
11. The declaration by the High Court Division that for separation of the
subordinate judiciary from the executive no further constitutional
amendment is necessary is set aside. If Parliament so wishes, it can
amend the Constitution to make the separation more meaningful,
pronounced, effective and complete.
12. Until the Judicial Pay Commission gives its first recommendation the
salary of judges in the judicial service will continue to be governed by
status quo ante as on 8-1-1994 vide paragraph 3 of the Order of the
same date and also by further directions of the High Court Division in
respect of Assistant Judges and Senior Assistant Judges. If pay
increases are effected in respect of other services of the Republic
before the Judiciary Pay Commission gives its first recommendation
the members of the judicial service will get increase in pay etc.
commensurate with their special status in the constitution and in
conformity with the pay etc. that they are presently receiving."

Article 23. National culture—The State shall adopt measures to conserve

the cultural traditions and heritage of the people, and so to foster and
improve the national language, literature and the arts that all sections of
the people are afforded the opportunity to contribute towards and to
participate in the enrichment of the national culture.

Article 24. National monuments, etc.—The State shall adopt measures for
the protection against disfigurement, damage or removal of all
monuments, objects or places or special artistic or historic importance or
interest.
 Article 25 The Constitution of the Peoples Republic of Bangladesh 47

Article 25. 1 (1) Promotion of international peace, security and

solidarity—The State shall base its international relations on the principles
of respect for national sovereignty and equality, non-interference in the
internal affairs of other countries, peaceful settlement of international
disputes, and respect fo international law and the principles enunciated in
the United Nations Charter, and on the basis of those principles shall—
(a) strive for the renunciation of the use of force in international
relations and for general and complete disarmament:
(b) uphold the right of every people freely to determine and build
up its own social, economic and political system by ways and
means of its own free choice: and
(c) support oppressed peoples throughout the world waging a just
struggle against imperialism, colonialism or racialism.
2[(2) The State shall endeavour to consolidate, preserve and strengthen
fraternal relations among Muslim countries based on Islamic
solidarity].

Comments on Article 25
Under this Article, promotion of international peace, securit y and
solidarity of the Government of Bangladesh with other countries
particularly with muslim countries are to be maintained and strengthened.

Case:
In the case of M. Saleemullal,, Advocate, Supreme Court of
Bangladesh, High Court Division, Dhaka Vs. Bangladesh, 47 DLR-218,
A.M.Mahmudur Rahman, J. while interpreting Article 25 of the
Constitution held in paragraph 7 as follows:
"For the purpose of disposal of this petition Articles 25(I)(b) is relevant.
Our reading of this Sub-Article vis-a-vis Chapter VII of the U.N. Charter
and the Resolution No.940 does not impress us to hold that there is any
infringement of Sub-Article (l)(b) of Article 25 in taking decision to
participate in U.N. Sponsored multinational force in Haiti and to send
troops. Sub-Articles (1)(e) and (2) have no relevancy for our purpose.
Rather the decision in our view, has been taken on the principles
enunciated in the United Nations Charter which is in no way against the

Article 25 was renumbered as clause (1) of that Article by the Proclamations

(Amendment)
2
Order. 1977 (Proclamations Order No.1 of 1977).
Clause (2) was added, ibid.
48 The Co,sti::ioi o ilre People's Republic of Bangladesh A ilicle 25

fundamental principles of State Policy. The decision of the Government

of the People's Republic of Bangladesh is in consonance with the spirit
of the fundamental principles of State Policy and in accordance with
Chapter VII of the Charter of the U.N."
The contention of the learned Advocate of the petitioner that the
decision of the Government of Bangladesh was against Article 25
of the Constitution was negatived by the learned Judges in the
above terms in the said judgment.
In the case of Saifiil Islam Dilder Vs. Bangladesh, 50 DLR-318.
A.M.Mahmudur Rahman,J. interpreted Article 25 of the Constitution and
opined that fundamental principle of State Policy cannot he enforced by
court, nevertheless the fundamental principles of State Policy is
fundamental to the governance of Bangladesh, and serve as a tool in
interpreting the Constitution on the strength of Article 8(2) of the
Constitution. Paragraph 6 of the decision reads as follows:
"The learned Advocate relying upon Article 25 of our Constitution
contended that Anup Chatia, if extradited to India the government would
violate the mandate of Article 25. The contention on the facts of this case
is totally misconceived. Rather the Government can take help of Article
25 for the purpose to extradite Anup Chatia to Indian Authority in order
to base its international relations on the principle of respect for national
sovereignty and equality, non-interference in the internal affairs of other
countries."
 Article 26 The ( 'on.!ini/ioii 0111U I'eof)/c s Republic o/lwzgluleth

PART III
FUNDAMENTAl, RIGHTS

Article 26. (1) Laws inconsistent with fundamental rights to be Void—

All existing law inconsistent with the p rovi sions of this part shall, to the
extent of such inconsistency, become void on the commencement of this
constitution.
(2) The state shall not make any law inconsistent with any provisions of'
this Part, any law so made shall, to the extent of such inconsistency,
be void.
'[(3)Nothing in this Article shall apply to any amendment of this
constitution made under Article 142].

Comment on Article 26
Many third world countries which achieved independence after the
second World war adopted fundamental rights in their written
constitutions. These rights are in the nature of bill of rights. The framers ui
the constitutions of those third world countries had before them the
Universal Declaration of Human Rights as adopted by the United Nations
General Assembly in 1948. 30 Paragraphs of Universal Declaration of
Human rhts charter mentioned all conceivable rights for mankind. As a
matter of fact, Part 11 & Ill of our constitution are akin to two covenants,
namely, (I) Covenants on Civil and Political ri g hts and, (2) Covenants on
economic, social and cultural rights which were adopted by the United
Nations General Assembly in 1966.
A.V. Dicey in his book, 'An Introduction of the study of the law of the
constit
ution' has elaborated as a proposition of Law of the United
Kingdom that parliament has the right to make or unmake any law
whatever. Nor can any Court within the United Kingdom set aside the
Provisions of an Act of parliament. All that a court of law can do with
such an Act is to apply it i.e. to interpret the meaning of the enactment.
This is enough to satisfy the lawyer. but it must be admitted that the
concept is purely a legal one. As a matter of fact, no person or body is
recognis ed by the law of England as having a right to override or set aside
the legislation of parliament. The United Kingdom has no fundamental
rights at all in the constitution as, we have, because it has no written
Constitution.

Clause (3) was added by the constitution (Second Amendment) Act, 1973 (Act XXI\' of
1973), s. 2.
50 The Constitution of the Peoples Republic of Bangladesh A iticle 26

Thus in United Kingdom the sovereignty of Parliament is cognised

as supreme in making laws and those cannot be set aide by a Court of law.
Whereas in the case of a country, that is India, Bangladesh and the United
States which is governed by a written constitution, the legislative power of
the Parliament is subject to Judicial review in the light of constitution of
these countries. There is no idea of unlimited authority of the Parliament
of Bangladesh as evident from Article 26 of our Constitution. This
constitutional provision defines the parameters within which Parliament
can function. If Parliament transgresses those functions, then the
legislation is declared as invalid and unconstitutional.
Further, fundamental rights as enumerated in this part are also
qualified by reasonable restrictions otherwise rights of others will not be
secured in a society. Absolute right will create chaos in the society and the
equilibrium of society and governmental actions will suffer.
The main object of Article 26 is to secure the supremacy of the
constitution in regards to fundamental rights. The clauses (1)&(2) refer to
pre-constitution and post constitution laws. The first clause relates to
existing laws in force and declares that those laws will become void to the
extent to which they are inconsistent with the fundamental rights. The
second clause prohibits the State from making a law which either takes
away totally or abrogates in part a fundamental right. All pre-
constitutional laws shall be void on the date of commencement of the
constitution, whereas in case of post constitutional laws, shall be void on
the date of the enactment of the law. The third clause clearly says that this
Article shall not apply to any amendment of the constitution made under
Article 142. Thus the constitutional amendment does not fall within
definition of law as per Article 26. The constitution (Eight Amendment)
case retariates this view.
In Indian Jurisdiction, (1) the case of Keshawmanda -VS- Slate of
Punjab, AIR 1973 SC 1461 and (2) Minerva Mills —VS- Union of India,
ALR 1980 SC 1789, which, while upholding the validity of amendment
held that certain basic features which could not be amended under the
amending power. As a matter of fact these above decisions while declaring
that there shall be no limitation whatsoever on the constituent power of
parliament to amend. by way of addition, variation or repeal, the
provisions of the constitution under Article 368 of the Indian Constitution
cannot touch the basic feature of the constitution. Judicial review is
excluded in relation to the concept of basic feature and such amendment
will be void. In our jurisdiction, the case of Anwar Hossain —VS-
 Article 27 The Constitution of the People's Republic of!3anlades/, 51

Bangladesh, 41 DLR (AD) 165, popularly known as the Constitution

(Eight Amendment) case has also expressed the same view. In that
decision, Shahabuddin Ahmed,J. held at paragraph 381, as under:
"As to the constituent power, that is power to make a constitution, it
belongs to the people alone. It is the original power. It is doubtful whether
it can be vested in the Parliament, though opinion differ, people after
making a Constitution give the Parliament power to amend it in exercising
its legislative power strictly following certain special procedures.
Constitutions of some countries may be amended like any other statues
following the ordinary legislative procedure. Even if the 'constituent
power' is vested in the Parliament the power is a derivative one and the
mere fact that an amendment has been made in exercise of the derivative
constituent power will not automatically make the amendment immune
from challenge. In that sense there is hardly any difference whether the
amendment is a law, for it has to pass through the ordeal in validity test.
My considered opinion therefore is that an amendment of the Constitution
is not included in 'law' within the meaning of Article 7 in the same way as
it is not law in Article 26."

Artiduality before law—All citizens are equal before law and are
entitled to equal protection of law.

\'—&omment on Article 27
This Article refers to 'equality before law' and 'equal protection of
law'. The idea as contained in this Article is a combination of the English
concept of 'equality before law' and the American concept of 'equal
protection of laws'. The first and foremost right which has been made
justiciable under Part III of our constitution is the right to equality before
the law and the equal protection of laws. The doctrine of equality is one of
the most difficult doctrines to apply to real life situations. The Courts have
therefore evolved some principles on the basic of equality and non-
discrinnation can be tested. These principles are as follows:-
"1. Discrimination, whether under substantive or procedural law, would
he unconstitutional.
2. It is permissible to classify individuals into different groups on the
basic of certain criteria which are relevant to the set of facts
requiring differentiation. Members who are similarly situated in the
given set of facts must be treated similarly. However, one can have
legislation which makes a distinction between members belonging to

/- q1323
 The Co;istiiuiuit of the Peoples Republic of Bangladesh Article 27

different i.e. non-homogenous, classes, permissible classification for

this purpose must be based on two criteria."

Several decisions of the Supreme Court of Bangladesh have judicially

enunciated two conditions, namely,
(a) The classification must be founded on an intelligible
differential which distingues those that are grouped
together from others.
(b) The differential must have a rational relation to the
object sought to be achieved by the law under
challenge.

Case:
In the case of Sheikh Abdus Sabur —Vs- Returning Officer, District
Education Office-in-change, Gopalgong others, 41 DLR (AD) 30,
Shahahuddin Ahmed,J. at paragraph 29 has spelt out the above two
criteria, which runs as follows:
"Eality before law' is not to be interpreted in its absolute sense to hold
that all persons are equal in all respects disregarding different conditions
and circumstances in which they are placed or special qualities and
characteristics which some of them may posses but which are lacking in
others. The term 'Protection of equal law' is used to mean that all
persons or things are not equal in all cases and that persons similarly
situated should he treated alike. Equal protection is the guarantee that
similar people will be dealt with in a similar way and that people of
different circumstances will not be treated as if they were the same. A
single law therefore cannot be applied uniformly to all persons
disregarding their basic differences with others and if these differences
are identified, then the persons or things may be classified into different
categories according to these distinctions: this is what is called
'permissible criteria' or 'intelligible differentia'. The legislature while
proceeding to make law with certain object in view, which is either to
remove some evil or to confer some benefit, has power to make
classification on reasonable basis, classification of persons for the
purpose of legislation is different from class legislation. which is
forbidden. To stand the test of equality a classification besides being
based on intelligent differentia, must have reasonable nexus with the
object the legislature intends to achieve by making the classification".
Article 27 The Constitution of the Peoples Republic of Bangladesh 53

Reasonableness:-
Classification which is unreasonable can be challenged in Court and to
this extent the policy of legislation is open to scrutiny by Court. The
element of reasonableness is an important criteria in determining rights to
equality.
This aspect is decided in the following decisions of both the Divisions of
the Supreme Court.
(i) Nurul Islam —VS- Secretary, Ministry of Law, 46 DLR (AD) 188
(ii) Retired Govt.Eetnployees —VS- Bangladesh, 46 DLR 427.
(iii) Abdul Mannati Khan —VS- Bangladesh, 42 DLR 316.

Discrimination:
In the case of A.B Mohitiddin Ahmed, Executive Engineer —VS-
Bangladesh at others, 49 DLR-353, it was held as such; classification of
those who failed in the examination for the first time like the petitioner
and those who did not appear at all in such examination or failed to appear
in such examination into two categories has a reasonable basis is and an
intelligible differentia.Subsequently passing of one who failed earlier in
such examination though securing highest position like the petitioner is
immaterial as the stigma of failure sticks to him. The classification of the
two categories of officers is not discriminatory.

Equal and unequals:

Unequals are not only permitted to be treated unequally but also they
are to be so treated. Under mentioned cases illustrate the above
propositions:
(i) Bangladesh —VS- Md. AiurAh,ned, 46 DLR (AD) 19.
(ii) Secretary of Aircraft Engineers of Bangladesh & another -
VS- Registrar of Trade Unions others, 45 DLR (AD) 122.
(iii) Nurul Islam another —VS- The Secretary, Ministry of Law,
Justice & others, 46 DLR (AD)- 189

Equal Protection of Law.

An accused person who is poor and cannot engage a lawyer where the
charge is of an offence punishable with imprisonment for life, he is
entitled to be offered legal aid. In our parliament, the Legal Aid Am, 1999
has been passed and the workings of the legal aid in various districts have
been adopted in that act. Legal aid in reality will help fair trial of a weaker
 54 The Constitution of the People's Republic of Bangladesh A rtj c/c' 27

and disadvantaged person in our society. Through the help of legal aid a
citizen is entitled to equal protection of law.
In the case of Sheikh Abdus Sabur —VS- Returning Officer & ors, 41
DLR AD 30, A. T. M. Afzal J. has i nterpreted Article 27 of our
Constitution, while considering the disqualification clause in section 7(2)
(g) of U.P. Ordinance, 1983, whereas there is no corresponding
disqualification for a person seeking election to Parliament, though he has
alike defaulted in repaying the same kind of loan.
"On consideration of the views expressed by these distinguished Judges
and authors as to the meaning of the equality before law and equal
protection of the law", I do not think that I will be able to define this
term in a batter way. "Equality before law" is not to be interpreted in its
absolute sense to hold that all persons are equal in all respects
disregarding different conditions and circumstances in which they are
placed or special qualities and characteristic which some of them may
posses but which are lacking in others. The term 'Protection of equal
law' is used to mean that all persons or things are not equal in all cases
and that persons similarly situated should be treated alike. Equal
protection is the guarantee that similar people will be dealt with in a
similar way and that people of different circumstances will not be treated
as if they were the same. A single law therefore cannot be applied
uniformly to all persons disregarding their basic differences with others;
and if these differences are identified, then the persons or things may he
classified into different categories according to those distinctions; this
what is called permissible. criteria' or intelligible differentia. The
legislature while proceeding to make law with certain object in view,
which is either to remove some evil or to confer some benefit, has power
to make classification on reasonable basic. Classification of persons for
the purpose of legislation in different from class legislation, which is
forbidden. To stand the test of 'equality' a classification, besides being
based on intelligent differentia, must have reasonable nexus with the
object the legislature intends to achieve by making the classification. A
classification is reasonable if it aims of giving special treatment to a
backward section of the population; it is also permissible to deal out
distributive justice by taxing the privileged class and subsiding the poor
section of the people. What is of fundamental importance in law-making
is that while making a classification the legislature shall not act
arbitrarily but make selection on rational basis."
In the light of the above discussion, the learned Judge ultimately held
that Section 7(2)(g) of the Union Parishad Ordinance, 1983, is not
discriminatory but is constitutionally valid.
Article 27 The Constitution of the Peoples Republic of Bangladesh 55

In the case of Abdus Sattar (Md.) Vs. Bangladesh, 45 DLR (AD) 65, a
question was raised as to whether barring a thrice-elected member of the
Managing Committee of a Co-operative Association to stand for election
again till lapse of two years since his last term expired as provided in
section 19(2) of the Co-operative Societies Ordinance is an unreasonable
restriction under Article 27 of our Constitution.
Mustafa Kamal, J. in that case at paragraph 5, answered the point in
the following words:
"While the proverb 'old is gold" has a fatal attraction, another proverb
"the old order changeth yielding place to new" is equally honoured,
which proverb to follow in what given situation is a legislative exercise
and it cannot be said that barring a thrice-elected member of the
Managing Committee to stand for election again till lapse of 2 years
since his last term expired, is an unreasonable restriction. The petitioner
has not been unequally treated at all because on being elected for 3
consecutive terms he has himself achieved inequality with and
superiority to others who did not have the opportunity of being elected
for three consecutive terms."
In the case of Majizur Rahman Vs. Government of Bangladesh, 34
DLR (AD) 321.
The appellant was retired from his service on completion of 25 years
of service under section 9(2) of the Public Servants (Retirement) Act,
1974. It was argued before the Court, inter alia, that the order was
malafide, that the punishment was imposed without hearing him, and that
section 9(2) of the Act was violative of Aritcles 27 and 29 of the
Constitution. In that case it was held that parliament is the supreme
legislative body subject to the constitutional limitations. It can equally
validate, subject to the Constitution, any law earlier found invalid either
prospectively or retrospectively by a Court of law by removing the cause
of illegality or infirmity.
K. Hossain, C.J. held at paragraph 5 as under:
"The validity of a validating law is to be judged by three tests. The first,
is to see whether parliament is clothed with the legislative power on the
subject. The second is whether by validation, Parliament has removed the
defect which the Court found in the earlier law. And thirdly, whether the
validating law is consistent with the provision of the Constitution. When
all the three tests have been fulfilled, the vtlidation law may operate
retrospectively. if Parliament so expresses it in the validating enactment.
The invalidity of a law may be owing to some egislative incompetence
56 The Constitujion of the Peoples Republic of Bangladesh /(rtu'Ie 27

or to its repugnancy to any of the fundamental rights and they can be

cured in the manner set out above.'
In that decision, the earlier case of Dr. Nurul Islam Vs. Government of
Bangladesh, 33 DLR (AD) 201 was refered to wherein section 9(2) of Act
No.XH of 1974 was found violative of Articles 27 and 29 of the
Constitution in the absence of any principle or guide-line provided therein
for exercising the discretion as to which of the Government servants who
have completed 25 years of service should be retired. Eight months after
the judgment the amendment was broughtin by promulgating Ordinance
No.V1 of 1981 to this effect in section 9(2) which reads as follows
"The Government may, if it considers necessary in the public
interest so to do, retire from service a public servant at any time
after he has completed twenty five years of service, without
assigning any reason."
Having tested the validity of the validation provision, the above-
amended section was found to be constitutionally valid.
In an unreported case of Md. Shamsuddin Ahmed Vs. Janata Bank and
others, C.P.S.L.A. No.18 of 1972, judgment delivered on 28.5.1974, a
question was raised as to whether the direction given by the Assistant
General Manager (Personnel) to an employee of Janata Bank to undergo
practical training in general Banking for two years is violative of Article
27 of our Constitution. No other officer of the petitioner's status and
experience in the employment of the Bank was formally asked to undergo
such training. In the leave petition it was contended that the impugned
order was discriminatory. The contention of the petitioner was rejected
and the leave petition was dismissed on the finding that order of the Bank
was not discriminatory. Further, the petitioner could not produce any
material to show that the intention of the Bank authority in passing such
order is malafide. Consequently the Appellate Division found the
impugned order not violative of Article 27 of our Constitution.
The brief facts of the case, Dr. Nurul Islam Vs. Bangladesh, 33 DLR
(AD) 201 are that the appellant who was a Director and Professor of
medicine of the Institute of Post-Graduate and Research was retired of his
duties as Professor of medicine and was to continue to as Director of the
Institute which was non-practicing post. The appellant challenged this
notice in Writ Petition No.57 1 of 1971 and the same was made absolute by
the High Court Division. Thereafter Government retired the appellant
from service under sub-section (2) of section 9 of Public Servants
Article 27 The Constitution of the People's Republic of Bangladesh 57

(Retirement) Act, 1974 as the appellant completed 25 years of service.

This order was again challenged in the High Court Division but with no
success.
In the Appellate Division, the order of retirement was challenged on
the ground that it is ultra vires of the provisions of Articles 27 and 29 of
the Constitution and the same is also violative of Article 135 of the
Constitution.
In that case, the main judgment was written by F. Munirn, J. wherein
his Lordship held at paragraph 76 as under:
As already observed, the impugned action was taken to circumvent the
judgment of the High Court Division passed in Writ Petition No.571 of'
1971. and also liable to he struck down on the ground of malice in law
which form the basis of action. I declare that section 9(2) of the
impugned Act in so far as it empowers to retire a Government servant is
unconstitutional and the impugned notification issued thereunder is
violative of Articles 27 and 29 of the Constitution and, therefore, void.
In that decision, the majority judgment declared section 9(2) of the
Public Servants (Retirement) Act, 1974 as ultra vires of the Constitution.
Most of the Judges held that there is scope of arbitrary action by the
Government as absence of principle of guidcline in section 9(2) of the
Act. Further, the action is a clear proof of malice in law, used for a
collateral purpose to defeat the earlier judgment and there is nothing to
indicate that the action was taken on the ground of "public interest".
In the case of Dr. Nurul Alum Vs. Bangladesh, 33 DLR 201, Article
27 of the Constitution which speaks of "entitled to equal protection of law
was interpreted by R. Islam, J. at paragraph 87 as under:
'The principle on which the doctrine of equal protection of laws is
founded is that persons in similar circumstances must be governed by the
same laws. The legislative classification by itself does not offend against
the principle of equal protection of the laws provided the law operates
equally in all members of the said class or group. For valid legislation,
classification must be reasonable for the purpose of legislation, should be
based on proper and justifiable distinction, should not be clearly arbitrary
and should have all reasonable relation to the objects and to the public
purpose sought to be achieved by the legislation.'
In the case of Bangladesh Vs. Aizur Rahman, 46 DLR (AD) 19,
Shahabuddin Ahmed C.J. while interpreting Article 27 of the Constitution
observed in paragraph 22 as follows
18 The Constitution of the Peoples Republic of Bangladesh Article 27

"Classification of persons for making a law is permissibl. This

classification is not class legislation. The term "equality befo:e law"
should not be •mterpretated in its absolute sense to hold that all persons
are equal in all respects disregarding different conditions and
circumstances in which they are placed or special quality and
characteristics which some of them may possess but which are lacking in
others. In fact, this term means that all persons are not equal in all
respects and that persons similarly situated should be treated alike. Equal
protection of law is a guarantee that similar people should be dealt with
in a similar way and that people of different circumstances will not be
treated as if they were the same. A single law therefore cannot be applied
uniformly to all persons disregarding the basic differences among them,
and if these differences are identified, then the persons may he classified
into different groups or categories according to those distinctions.
Therefore a classification is reasonable if it is made to give special
treatment to a backward section of the people. It is also permissible to
dole out distributive justice by taking the privileged class and subsidizing
the poor section of the people. A classification based on distinct
characteristics cannot be assailed as arbitrary. Secondly, a classification
to be reasonable it must have direct nexus to the object which the
classification seeks to achieve."
In Public Demands Recovery Act (No.111 of 1913) section IOA was
added for quick recovery of loan from the defaulting borrowers. Section
IOA was challenged by a writ petition, inter alia, that it is harsh, against
principle of natural justice and violative of Articles 27 and 31 of out -
Constitution. in the case of Bangladesh Kris/ii Bank Vs. Meg/ma
Enterprises and another, 50 DLR (AD) 194, Latifur Rahman, J. held at
paragraph 9 as follows
"It is the policy of the legislature to make an enactment to that effect.
Can we say that the law is had because it is not in consonance with the
principle of natural justice and it is harsh and arbitrary'? Certainly not.

As a matter of fact, the learned Judges of the High Court Division in

their judgment did not elaborate as to how section 10A of the Act is
violative of Articles 27 and 31 of the Constitution, other than mentioning
that is arbitrary and violates the principles of natural justice. It appears that
the learned Judges failed to appreciate the true import of Article 27 which
speaks of equality before law and Article 31 which speaks of protection of
the law and to he treated in accordance with law."
 Article 28 The Constitution oft/u-' People's Republic of 13anladesh 59

As a matter of fact defaulting borrowers are situated differently from

non-defaulting borrowers.
In the case of City Bank Ltd Vs. Bangladesh, 51 DLR (AD) 262,
Mustafa Kamal CJ interpreted Article 27 of our Constitution and held in
paragraph 15 as under:
"We are of the opinion that the embargo on banks, insurance companies
and other financial institutions to nominate its directors on the Board of a
financial institution is based on a reasonable classification. It appears to
us to be obvious that the legislative policy is to exclude the same set of
persons to manage, control, regulate and monopolize the policy-making
functions of capital-generating financial institutions. A textile
manufacturing company is generating goods and it may not be immoral
from the point of view of financial policy to allow the directors of such a
company to be represented on the Board of a financial institution in
which the textile manufacturing company may have share holding
interest. But it appears to be the policy of the legislature that directors of
capital-generating institutions should not be allowed to flock together in
a financial institution to control and monopolize the capital market."
In the case of ETV Ltd. Vs. Dr. Chowdhurv Mahinood Hasan, DLR
(AD) 130, K.M. Hasan, J. while interpreting Article 27 of our COflStjLuLi.fl
observed at paragraph 59 as follows:
"Law requires that subsequent change of terms and conditions of
tender must be relayed to each and every participants so that all the
participants can avail of the equal opportunity while participating in the
tender. But in this case subsequent change of conditions were kept secret
to other participants. As a result of which requirement of law are not met
with and other participants were discriminated and deprived of
participation in the tender on equal terms."
In the case of Bangladesh Biinan Corporation —Vs. Md. Yousuf
Horooji Ors, 23 BLD (AD) I 1&, Bangladesh corporation Employees
(Ser ice) requlations, 1979 was found valid as it was not devoid of any
guideline and was n t violative of Articles 26 and 27 of the constitution.
(Para 27)

Artici 1) Discrimination on grounds of religion, etc.—The State

shall not discriminate against any citizen on grounds only of religion, race,
caste, sex or place of birth.
(2) Women shall have equal rights with men in all spheres of the State
and of public life
 The Constitution of the People's Republic of Bangladesh Article 29
60

(3) No citizen shall, on grounds only of religion, race, caste, sex or place
of birth be subjected to any disability, liability, restriction or
condition with regard to access to any place of public entertainment
or resort, or admission to any educational institution.
(4) C. Nothing in this Article shall prevent the State from mpcIal
provision in favour of women or children or for the advancement of
any backwiiction of citizens.
49
Comments on Article 28
The principle of equality laid down in Article 27 is spelt out for certain
situations in greater detail in Article 28. Article 28, clauses (1) and (2) are
both limited to discrimination on the ground of religion, race, caste, sex or
place of birth or any of them. Clause (3) speaks of non-restriction of
access in any public entertainment or resort, or admission to any
educational institution on grounds of religion, race, caste, sex or place of
birth. Clause (4) of this article permits the State to make special provision
for women, children and for the advancement of any backward section of
citizens. As a matter of fact, this article projects the citizen rgainst
discrimination. The State cannot discriminate only on the grounds as
mentioned in Article 28, but with some other rational factor, the
discrimination would be valid. The crucial word in this Article is
discrimination which means making an adverse distinction with regard to
or distinguishing unfavorably from others.
In the case of Dr. Ahmed Hossain Vs. Bangladesh and others, 44 DLR
(AD) 109, a question was raised as to whether after the period of
reservation of thirty women seats having expired, the Constitution (Tenth
Amendment) Act, 1990 could extend the time for further ten years. M.H.
Rahman, J. held in paragraph 6 as follows:
"A system of indirect election cannot he called undemocratic. It is
provided in the Constitution itself. The amendment is not also violative
of Article 28. Clause (4) in Article 28 provides that nothing in that
Article shall prevent the State, which expression includes Parliament.
from making special provision in favour of women.

Article 29. (1) Equalit y of opportunity in public employment—There

shall be equality of opportunity for all citizens in respect of employment
or office in the service of the Republic.
(2) No citizen shall, on grounds only ol religion, race, caste, sex or place
of birth, be ineligible for, or discriminated against in respect of, any
employment or office in the service of the Republic.
(3) Nothing in this Article shall prevent the State from -
Article 29 The (' ,jstilutiofl of the People's Republic of Bangladesh 61

(a) making special provision in favour of any backward section of

citizens for the purpose of securing their adequate representation
in the service of the Republic;
(b) giving effect to any law which makes provision for reserving
appointments relating to any religious or denominational
institution to persons of that religion or denomination;
(c) reserving for members of one sex any class of employment or
office on the ground that it is considered by its nature to be
unsuited to members of the opposite sex.

Comments on Article 29
The main object of this article is to create a Constitutional right to
equality of opportunity and employment in public offices. It is confined to
employment or appointment to an office under the Republic. Clauses (1)
& (2) of this Article speak of certain positive rights and clauses 3(a)(h)/
and (c) are certain exceptions in respect of which the State can make laws
for reservation of aily backward sections of citizens if not adequately
represented in the Service of the Republic, and prescription of profesing a
particular religion or belonging to a particular denomination, if the office
is in connection with the affairs of any religious or denominational
institution. Law can be made reserving any class or employment or office
for one sex on the ground that the nature of employment is unsuited to the
members of the opposite sex. In reality, clause (3) of Article 29 gives a
permissible basis. Broadly, equality of opportunity in public employment
is provided in general terms, but Article 29(2) prohibits discrimination
against a citizen on the ground of religion, race, caste, sex or place of
birth.
In the case of Bangladesh Vs. Azizur Rahman, 46 DLR (AD) 19,
Latifur Rahman, J. will interpreting Article 29 of the Constitution, "Equal
opportunity' held at paragraph 44 as under:
"The guarantee of "equal opportunity" in respect of employment is
available at the stage of initial appointment and of promotion. Merely
because chances of promotion of the writ petitioners may be said to have
been affected by the impugned Rules of 1990 would not amount to denial
of equality of opportunity in respect of the employment, as chances of
promotion are not condition of service. As a matter of fact, no writ
petitioners have been deprived of the right to be considered for
promotion and, as such, the submission that they have been denied the
right of equal opportunity in respect of future employment is untenable
and there is in fact no violation of Article 29(1) of the Constitution."
 The Constitution of ihe Peoples Republic of &itiIode.li itriclr. 30 & 31

Article [30. Prohibition of foreign titles, etc.—No citizen shall, without

the prior approval of the President, accept any title, honour, award or
decoration from any foreign state.]

Artic1.lght to protection of law—To enjoy the protection of the law,

and to Be
b treated in accordance with law, and only in accordance with law,
is the inalienable right of every citizen, wherever he may be, and of every
other person for the time being within Bangladesh, and in particular no
action detrimental to the life, liberty, body, reputation or property of any
person shall be taken except in accordance with law.

Co tson Article 3l
This article clear] that every citizen and every person in
Bangladesh have an inalienable right to he treated in accordance with law.
Further, no action detrimental to the life, liberty, body, reputation or
property of any citizen or inhabitant of Bangladesh shall be taken except
in accordance with law. The term in accordance with law is akin to
American concept of 'due process'. Noierson's life, liberty, reputation o
property shall be taken except in accordance with law means maintaining
fairness and avoiding arbitrariness. This is in essence the concept of rule
of law.

Case:
In the case of ETV Ltd. Vs. Dr. Chowdliurv Ma/unood ilasan, 54 DLR
(AD) 130, K.M. Hasan, J. while interpreting Articles 31 and 32 of the
Constitution held in paragraph 80 as under:
"It is a simple case of investment, and like every investment the
investment in ETV has its own risk. The third party rights exist and fall
with the Ekushey Television, since their interests are merged with that of
ETV. The substantive legal principle in this regard is that every person is
subject to the ordinary law within the jurisdiction. Therefore, all persons
within the jurisdiction of Bangladesh are within Bangladesh rule of law.
The foreign investors in ETV are no exception to this principle."
In the case Shahadat Ho.vsain Vs. Execuiit'e Engineer, 44 DLR 420, a
question of contractual obligation on the part of the Government was
raised. AKM Sadeque, J. after considering Article 31 and 40 of the
Constitution held at paragraph 19 as under:

'Article 30 was substituted for the former Article 30 b y the Constitution (Eighth
Amendment) Act, 1988 (Act XXX of 1988), s.5.
Article 32 The Constitution of the People's Republic of Bangladesh 63

"In the instant case also we find that the Ramna Cafeteria is a property of
the Governine-Ai under the PWD. We cannot distinguish between the
property of Government like fisheries or hat or khas land which they
lease out and the property in the instant case namely, the Ramna
Cafeteria. The Government is equally owners of all of them and all of
them are leased out to the successful bidders according to well defined
rules framed in exercise of powers rooted in statute. In this regard we
may conveniently refer to endorsement of the Ministry of Works upon
Annnexure-'B' which is, the highest bidder should be offered as per
Government rules." This endorsement itself shows that there was leasing
out of Ramna Cafeteria like other properties of the Government of like
nature in accordance with Government rules. In this case we find that the
contract between the respondents and the petitioner in pursuance of the
action was not an ordinary contract between ordinary tenderer and buyer.
We are of the view that in this case the Government acted in course of
administration of the affairs of the Republic. The action of the
respondents in the instant case was of like nature as in respect of hat,
bazaar, fisheries and khas lands, etc. not any different. Again even if the
impugned action of the respondent be considered as purely an
administrative action and mere contract without any statutory obligation
then also a writ petition will lie as malafide in the act is established."

Article 32. Protection of right to life and personal liberty—No person

shall be deprived of life or personal liberty save in accordance with -law
.\

Comments on Article 32
In this Article the expression, In accordance with law' clearly
indicates that deprivation of life or personal liberty is permissible on the
ground of reasonableness. A strict scrutiny of reasonableness can be
investigated by the court to see the objective reasonable ground on the
basis of which a man's life or personal liberty can be deprived.

Case:
In the case of Anisul Islam Mah,nood Vs. Bangladesh, 44 DLR 1,
.H.M.Habjbur Rahman,J. held that the detaining authority must have some
jurisdictional facts for detaining an individual,since the detaining authority
is curtailing the liberty of a citizen by detaining him on preventive
detention, it is exercising a non-judicial authority. To curtail fundamental
rights of personal liberty enshrined in the Constitution it is essential that
the detaining authority must have reports and materials, that is
64 l'l,e Con.!,titu:iou of the Peoples Republic of F3ançladcxli A ,tu:lc

jurisdictional facts' for exercising power to detain the dctenuc under the
Special Powers Act.

Article 1[33, (1) Safeguards as to arrest and detention—No person who

is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest, nor shall he be denied the right to
consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be
produced before the nearest Magistrate withinaperjQpfpt'-for
hours of such arrest, excluding the time necessary for the journey from
the place of arrest to the court of the Magistrate, and no such person
shall be detained in custody beyond the said period without the
authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person-
(a) who for the time being is an e emy alien or
(b) who is arrested or detained under any law providing for
preventive detention.
(4) No law providing for preventive detention shall authorise the detention
of a person for a period exceeding sixmonths unless an Advisory
Board consisting of three persons, of whom two shall be persons who
are, or have been, or are qualified to he appointed as. Judges of the
Supreme Court and the other shall be a person who is a senior officer
in the service of the Republic, has, after affording him an opportunity
of being heard in person, reported before the expiration of the said
period of six months that there is, in its opinion, sufficient causes for
such detention.
(5) When any person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order
shrill, as soon as may be, communicate to such person the grounds on
which the order has been made, and shall afford him the earliest
opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to
disclose facts which such authority considers be against the public
interest to disclose.
(6) Parliament may be law prescribe the procedure to he followed by an
Advisory Board in an inquiry tinder clause (4),I

Article 33 was substituted for the former Article 33 by the Constitution (Second
Amendment) Act. 1973 (Act XXIV of 1973) s.3.
Article 33 The Constitution of Me People .s Republic of Bangladesh

Comments on Article 33
This Article Consists of two parts. Clauses (1) and (2) relate to persons
arrested or detained under a law otherwise than a preventive detention law.
Clauses 3 to 6 apply to persons arrested or detained under preventive
detention. This Article provides for protection against unreasonable arrest
and detention. This Article provides for some specific procedural
safeguard as in clause(1) of 33, a person in detention is entitled to know
the grounds of his arrest and he cannot he denied the right to consult or be
defended by a lawyer of his/her choice. In Clause(2) a person arrested
must be produced before the nearest Magistrate within twenty-four hours,
excluding the time for such journey. This Article provides for certain
substantive and procedural safeguard in respect of deprivation of life and
personal liberty. As a matter of fact, disclosure of grounds of arrest and
detention before a magistrate even mandatory, Under Clause (1) of Article
33. There are numerous judicial decisions of the Supreme Court of
Bangladesh on the question of preventive detention and the safeguards to
he observed in preventive detention have become a highly specialised
subject. Clause (4) provides that no person can be detained at the first
place exceeding six months and during t;is time hc must be given an
opportunity to be heard by an Advisory Board. This clause also speaks of
the Constitution of the Board. Clause (5) of this Article provides for early
communication of grounds of detention of such person. The proviso of this
clause also authorises the detaining authority for not disclosure of facts in
public interest.

Case:
In the case of Professor Ghularn Azain Vs. Bangladesh, 46 DLR 29,
Md.Abdul Jalil,J. held at paragraph 25 as under:
"From the facts and circumstances as discussed above we are of the
opinion that the petitioner having been living in Bangladesh is entitled
to the protection under Article 33(5) of the Constitution and as such the
detaining authority was under constitutional obligation to communicate
grounds of detention as soon as may be, but no grounds were
communicated within such long period of more than 1 year and 3
months."
In the case of llahiba Mah,nud Vs. Bangladesh, 45 DLR(AD) 89, M.
H. Rahman, J. Held at Paragraph 27 as follows while interpreting Article
33(5)
66 The Constitution of the People's Republic of Bangladesh Articles 34 & 35

"It is needless to add, that in case of mollified the matter of non-

disclosure will be justiciable one. But for the clear constitutional sanction
provided in Article 33(5) a non-disclosure of fact that was considered to
the prejudice of the detune ought to be regarded as violation of basic
principle of national justice."
It may be mentioned here that there are several decisions of the
Supreme Court of Bangladesh that Quasi-judicial orders must contain
reasons to enable an objective inquiry as to whether there has been an
application of mind and a consideration of relevant facts by the detaining
authority.

Article 34. (1) Prohibition of forced labour—All forms of forced labour

are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.
(2) Nothing in this Article shall apply to compulsory labour-
(a) by persons undergoing lawful punishment for a criminal
offence; or
(b) required by any law for public purposes.

Comments on Article 34
Clause(1) of this Article speaks about prohibition against forced labour
and any contravention will be punishable under the law. But Article 34(2)
is an exception which provides for compulsory labour in certain conditions
and circumstances, namely, undergoing punishment in criminal offence
and required by any law for public purposes.

Article 35 (1) Protection in respect of trial and punishment—No person

shall be convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence, nor he
subjected to a penalty greater than, or different from, that which might
have been inflicted under the law in force at the time of the commission of
the offence.
(2) No person shall be prosecuted and punished for the same offence
more than one.
(3) Every person accused of a criminal offence shall have the right to a
speedy and public trial by an independent and impartial court or
tribunal established by law.
(4) No person accused of any offence shall be compelled to be a witness
against himself.
Article 35 The Constitution of the People's Republic of Bangladesh 67

(5) No person shall be subjected to torture or to cruel, inhuman , or

degrading punishment or treatment.
(6) Nothing in clause (3) or clause (5) shall affect the operation of any
existing law which prescribes any punishment or procedure for trial.

Comments on Article 35
This Article provides for certain rights in respect of trial and
punishment. These rights are protection against ex-post facto laws, double
jeopardy, holding of speedy and fair trial, granting of privilege against
incrimination, prohibits torture and cruel, inhuman or degrading
punishment. Clause (6) provides that nothing in clause(3) or clause (5)
shall affect the operation of any existing law which prescribes any
punishment or procedure for trial.
Ex—Post facto law: This law has been enacted to prohibit convictions
and sentences under ex-post facto laws. The protection given by this
provision creates against those offences which are offences at the time
when they are sought to be punished, though they were not offences at the
time when they were committed. Where there is an amendment of law
after the commission of the offence, accused cannot be adversely atLcted
by retrospective application of the changed law, generally, majority
laws are prospective in their operation. But at times, the legislature may
give retrospective effect to a law, that is to bring acts or commissions,
committed even prior to the enactment of the law in question. But
according to this Article, a criminal law cannot be retrospective so as to
provide for conviction of a person for an offence which was not an offence
at the time of commission of that act or to impose a penalty greater than
that which might have been inflicted under the law in force at the time of
commission of the offence. As a matter of fact, when the legislature
declares an act to be an offence or provide a penalty for an offence, it
cannot make the law retrospective so as to prejudicially affect the persons
who have committed such acts prior to the enactment of the law. These
principles in Article 35 (1) have got explicit recognition in international
law.
Double Jeopardy : This Article provides immunity from proceedings
before a Court of law or a judicial Tribunal. A government servant who
has been punished by a Court of law for a criminal offence may be
subjected to departmental proceedings for the same offence or vice versa.
For the same offence a person cannot be punished twice by a court of law.
If any law provides for such double punishment, such law would be void.
 The Constitution of she Peoples Republic of Bangladesh Article 35

Case:
In the case of Serajul Islam Vs. The Director General of Food, 42
i)LR(i1D) 199, the petitioner who was Inspector of Food and Incharge of
Syihet LSD at the relevant time challenged the drawing up of a
departmental proceeding against him on the principle of 'double-jeopardy'
under Article 35 of the Constitution as already a charge-sheet was
submitted against him in a criminal proceeding for a shortage amounting
to Tk.47.9 lacs.
Shahabuddin Ahmed,C.J, while interpreting Article 35 of the
Constitution held in paragraph 4 of the above decision as under:-
"We are not impressed by the arguments advanced by the learned
Advocate. Protection in respect of trial and punishment, that is, bar to
conviction and punishment more than once for the same offence as
referred to in Article 35 relates to Criminal Prosecutions. 'Double
Jeopardy', which has been defined in black's law Dictionary, means
danger of being convicted and punishment more than once on same facts
constituting offence in a criminal proceeding only."
Thus, it was held that the principle of double jeopardy cannot be
extended in a department al proceeding of a public servant.
In the case of Shaikli (Md) HarunOr-Rasiijd Vs. Secretary, Ministry of
lute, Government of the People's Republic of Bangladesh, 49 DLR 596,
K.M.Hasan,J. in paragraph 8 held as follows:
"Protection in respect of trial and punishment as a bar to conviction and
punishment more than once for the same offence as referred to in this
Article (Article 35 of the Constitution) relates to criminal prosecution
only and not a departmental proceeding."
Hcnce,procceding before a Departmental Inquiry Committee is not a
Criminal proceeding to protect a person's right guaranteed under Article
35(2) of the Constitution against double jeopardy.
Undermentioned cases may he consulted for the above prepositions:-
(1) Mustafizur Rahman wul 3 others Vs. D.G. Anticorruption and
others, 49 DLR 599.
(2) Muhammadullah —Vs-Sessions Judge and others, 52 DLR 374.
(3) In the case of liabiha Mah,nud Vs. Bangladesh, 45 DLR(AD)
89,M,H.Rahman,J. at paragraph 27 held as follows while
interpreting Article 35(5).
"It is needless to add, that in case of inalafide the matter of non-
disclosure will be justiciable one. But for the clear constitutional
sanction provided iii Article 33(5) a non-disclosure of fact that was
Article 35 The Constitution of the Peoples Republic of Bangladesh 69

considered to the prejudice of the detenu ought to be regarded as

violation of basic principle of natural justice."
In the case of Abu Siddiqui Vs. Bangladesh, 54 DLR(AD) 154, Md.
Ruhul Amin,J. interpreted Article 35(4) of the Constitution and held at
paragraph 8 as under:
"The other contention that action of respndent No.3 was violative of
Article 35(4) of the Constitution is also of no substance since the
notices impugned were issued in connection with an enquiry as regard
the information received against the petitioners. The petitioners are not
accused of any offence and, as such, protection under Article 35(4) is
not available to them"
University of Dhaka-Vs- Dr. S.Hussain and another, 34
In the case of
DLR(AD) 1, the principle of protection as provided in Article 35 of the
Constitution was invoked in asmuch as President's Order No.67 of 1972
does not contain any express words giving retrospective effect, but the
statute is prospective in nature only. The facts of the case are that, Dr.
Sycd Sajjad Hossain who was the Vice-Chancellor of the Dhaka
University during the War of Liberation in 1971, was charged with having
collaborated with Pakistan occupation Army during the war of liberation.
His case was referred to the First Screening Board constituted under the
President's Order No.67 of 1972. The Screening Board found him guilty.
Accordingly, the respondent was dismissed from his service. The
dismissal order was challenged before the High Court Division. The High
Court Division upheld the order of dismissal. By a majority
judgment, the decision of the High Court Division was set aside and
B.H.Chowdhury,J. in paragraph 45 held as follows:
"In view of the matter the opinion is all the activities attributed to
the respondent Dr.Sajjad Hossain and Dr.Mohar Ali allegedly were
performed in 1971 do not come within the mischief of the
President's Order No.67 of 1972. Such activities are punishable
under President's Order No.8 of 1972. As a matter of fact, both of
them were prosecuted under President's Order No.8 of 1972 which
was given retrospective effect. Both the respondents were given
clemency and in the writ petition they quoted the statement of the
Prime Minister as mentioned in the press note. After assurance of
such clemency, it was not permissible for initiation of any
proceedings. President's Order No.67 of 1972, however, has no
manner of application because it was not given retrospective
effect."
70 The Constitution of the Peoples Republic of Bangladesh Article 36

Speedy trial is a component of personal liberty and it is an obligation

on the state by the mandate of Article 35(3) to arrange for speedy and
public trial. It is also a fundamental principle of criminal justice that the
prosecution must prove its case and accused cannot be a witness to make
any statement against his will.

Article 36. Freedom of movement—Subject to any reasonable restrictions

imposed by law in the public interest, every citizen shall have the right to
move freely throughout Bangladesh, to reside and settle in any place
therein and to leave and re-enter Bangladesh.

Comments on Article 36
A person's physical movement within Bangladesh can only be
restricted by any reasonable restriction imposed by law in the Public
interest otherwise not. Freedom of movement is an important element of
human liberty.

Case:
In the case of Kazi Mukhlesur Rahrnan —Vs- Bangladesh, 26 DLR(SC)
44, Sayem,C.J. held at paragraph 18 as follows:-
"The fact that the appellant is not a resident of the southern half of South
Berubari Union No.12 or the adjacent enclaves involved in the Delhi
Treaty need not stand in the way of his claim to be heard in this case. We
heard him in view of the constitutional issue of grave importance raised
in the instant case involving an international treaty affecting the territory
of Bangladesh and his complaint as to an impending threat to his certain
fundamental rights guaranteed by the Constitution,namely, to move
freely through out the territory of Bangladesh, to reside and settle in any
place therein as well as his right of franchise. Evidently, these pervade
and extend to every inch of the territory of Bangladesh stretching upto
the continental shelf."
In the case of Dr. Mohiuddin Farooque —Vs- Bangladesh and others,
49 DLR 1, Mustafa Kamal, J. held at paragraph 31 as under:
"These rights, attached to a citizen are not local. They pervade and
extend to every inch of the territory of Bangladesh stretching upto
continental shelf."
Articles 3 & 38 The constitution of the People's Republic of Bangladesh 71

Article 37. Freedom of assembly—Every citizen shall have the right to

assemble and to participate in public meetings and processions peacefully
and without arms, subject to any reasonable restrictions imposed by law in
the interests of public order or public health.

Comments on Article 37
The freedom of assembly to hold meetings and processions peacefully can
only be restricted by imposing law in the interest of public order or public
health. The reasonableness of any restrictive order is subject to judicial
scrutiny. Judicial decision confines the freedom of Assembly within
permissible restrictions. Moreover, the freedom of assembly can be
exercised only on public land. But the restrictions cannot attain the status
of absolute prohibition at least in normal times.

Article 38. Freedom of association—Every citizen shall have the right to

form associations or unions, subject to any reasonable restrictions imposed
by law in the interests of morality or public order:

1* * * * * * * *

Comments on Article 38
The right to freedom of Association is for a lawful purpose. The right
includes the right to start or continue an association subject to reasonable
restricts in the interest of morality and public order. This right to freedom
of association helps people to start political party on identical views which
is essential in a democracy. Judicial Review of executive order is
allowable to see the reason behind of the restrictive order.

Case:
The facts in the case of Asaduzzanian Vs. Bangladesh, 42
DLR(AD)144,are this, that the appellant Asaduzzaman challenged the
validity of certain Amendment made in the Bangladesh Red Crescent
Society order,1973 (P.O.NO.26 of 1973) on the ground that those
amendments are void being inconsistent with Article 38 of the
Constitution.
M.H. Rahman, J. hald in that decision at paragraphs 37,38 and 39 held
as under:

Proviso to Article 38 was omitted by the Second Proc1aition (Sixth Amendment)

Order. 1976 (Second Proclamation Order No.111 of 1976).
72 The Constitution ojthe Peoples Republic of Bangladesh Article 38

"The right under Article 38 implies that several individuals having a

community of interests can join together to form a voluntary association
for furtherance of a common lawful object. This right along with other
rights, described as fundamental rights under Part 111 of the Constitution.
have been guaranteed in this sense that the state shall not make any law
inconsistent with any provision of that Part III of the constitution. and
any law so made shall, to the extent of such inconsistency, be void. The
rights are fundamental for civil life so that citizens may borrow three
very significant words from the preamble, "Prosper in freedom". Under
Article 102(1) of the constitution the High Court Division has been made
the guardian for enforcement of fundamental rights not only against the
executive but also against the legislature. The judicial review with regard
to the vires of a law passed by the legislature from the court's
constitutional duty to enforce a fundamental right.
The world ' term' in Article 38 does not limit the exercise of
that right to the formation of an association. The right to form
an association must of necessity imply the right to continue and
carry on the activities of the association as well.
Article 38 cannot, however, be involved for support,
sustenance of fulfillment of every object of an association".
In the case of Aircraft Enginners Vs. Registrar, Trade Union, 45
DLR(AD) 122, an argument was raised on behalf of the appellant unions
that they will lose their international affiliations if they lose registration.
Mustafa Kamal, J. answered this at paragraph 20 as under:—
"The short answer will be that the consequences if any, will no doubt be
unfortunate but the right to constitute a separate trade union for workers
with international affiliations is simply not provided for, either in the
unamended Ordinance, 1969 or in the Amendment Act, 1990. The
amended legislation cannot be said to be violative of the fundamental
right guaranteed under Article 38 of the Constitution on the ground of
loss of international affiliation."
In the case of Nasreen Fatetna and 20 others Vs. Bangladesh, 49
DLR-542, validity of the impugned provisions were challenged on the
ground of violation of Article 38 of the Constitution. In that case, Kazi
Ebadul Hoque,J. held at paragraph 32 as under:
"In our view, imposing reasonable restrictions on certain persons
becoming directors in Public interest has not violated their right to form
• association as share holders in any manner. In the case of Asaduzzaman
Vs. Bangladesh reported in 42 DLR(AD) 144 it has been held:"Article
Article 39 The Constitution of the People's Republic of Bangladesh 73

38 cannot, however, he invoked for support, sustenance or fulfillment of

every object of an association."

Article 39. (1) Freedom of thought and conscience, and of speech—

Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in the interests
of the security of the State, friendly relations with foreign states,
public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence—
(a) the light of every citizen to freedom of speech and expression;
and
(b) freedom of the press,
are guaranteed.

Comments on Article 39
Clause (1) of this Article guarantees the freedom of thought and
conscience in absolute form as it is a subjective condition of mind which
cannot be curbed by imposing law. But the freedom of speech and
expression and freedom of the press are Q uaranteed subject to reasonable
restrictions mentioned in this Article. As a matter of fact, permissible
restrictions can be imposed by law on specified grounds. By applying the
test of reasonabless, freedom of speech and expression and freedom of
press can he judicially investigated.
Clause (2) of Article 39 enables the legislature to impose restrictions
upon freedom of thought and conscience, and of speech, on the following
grounds:—(1) Security of the State, (2) Friendly relations with foreign
States,(3) Public order, (4) Decency or morality, (5) Contempt of Court,
(6) Defamation, and (7) Incitement to an offence.

Case:
In the case of Bangladesh National Curriculum and Text Board Vs.
A.M. Samsuddin and others, 48 DLR(AD) 184, A.T.M.Afzal,C.J. held at
paragraph 32 while interpreting Article 39(2) as under:-
"The right to freedom of speech and expression as claimed by the writ
petitioners does not extend to the right of printing and publishing of 'note
books' or 'text-book' prepared and published by the Text Book Board
under statutory authority. The court was not justified in declaring the
impugned Act to be ultra vires of Article 39(2) of the Constitution."
74 The Constitution of the Peoples Republic of Bangladesh 4rtu/e 4()

In the same decision, A.T.M.Afzal,C.J. while interpreting Article

39(2) of the Constitution held in paragraph 20 as under:
"It is true that under Article 39(2) it has been specifically mentioned as
regards the grounds upon which reasonable restriction may he imposed
by law on the right of citizens to freedom of speech and expression, but
the basic assumption for the exercise of the said right is and must be that
it may not offend any law or any right of other person under law. To give
a free hand to the publishers to publish any kind of 'note book' or text
book' without any control from the Board is to defeat the very purpose
for which the Text Book Board was vested with the authority to prepare
and publish or approve text books for such."

Article 40. Freedom of Profession or occupation—Subject to any

restrictions imposed by law, every citizen possessing such qualifications,
if any, as may be prescribed by law in relation to his profession,
occupation, trade or business shall have the right to enter upon any lawful
profession or occupation, and to conduct any lawful trade or business.

Comments on Article 40
A citizen cannot be compelled to do a certain kind of business. The
right to freedom of profession or occupation is subject to reasonable
restrictions imposed by law in the interest of General Public, of course,
there is no right where the business is dangerous or immoral such a
business may be absolutely prohibited or may be required to he licensed.
Moreover, there is no right to carry on a business at any place or at any
time, restrictions may be imposed in this regard. This article empowers the
parliament to prescribe qualifications for particular professions and
occupations. This article also contemplates that the State in public interest,
can lay down reasonable conditions subject to which any trade or business
can be pursued.
In the case of Abdul Jalil Vv. Chairman, REB, 45 DLR 24, Abdul
Jalil,J. interpreted Article 40 of the Constitution and held that the decision
of the Board when infringes any fundamental right that restriction cannot
be made unless it is authorised by law and observed at paragraph 8 as
follows:

ease:
"In the facts and circumstances as discussed before we are of the opinion
that the petitioner's fundamental right as enjoined in Article 40 of the
 0
Article 41 The Constitution of the Peoples Republic of Bangladesh 75

Constitution has been violated and he has been prejudiced thereby, the
action of the Board which is a statutory body is.therefore, unauthorised."
In the case of Nasreen Fateina Vs. Bangladesh, 49 DLR 542, Kazi
Ebadul Hoque J. while interpreting Article 40 of the Constitution held at
paragraph 34 as under:-
"Under Article 40 of our Constitution reasonable, restriction can be
imposed on a person's entering upon any lawful profession or occupation
and to conduct any lawful trade or business. We have already seen that
reasonable restriction have been imposed on certain persons under the
impugned provisions in public interest. So, we find no violation of
Article 40 of the Constitution also in the impugned provisions."

Article 41. (1) Freedom of religion—Subject to law, public order and

morality.
(a) Every Citizen has the right to profess, practise or propagate
any religion;
(b) Every religious community or denomination has the right to
establish, maintain and manage its religious institutions.
(2) No person attending any educational institution shall be required to
receive religious instruction, or to take part in or to attend any
religious ceremony or worship, if that instruction, ceremony or
worship relates to a religion other than his own.

Comments on Article 41
This Article ensures that every citizen has the right to profess, practise
or propagate any religion and every religious community or group can
establish, maintain and manage its religious institutions subject to
reasonable restrictions imposed by law on the ground of public order and
morality. The main emphasis in this article is on the practice of religious
freedom by individuals and on the establishment of religious institutions,
citizens right to profess, practise and propagate religion is guaranteed.
This article pre-supposes observance of religious worship a ritual. Even
according to this article, a person attending any educational institution can
receive religious instruction, or can take part or attend religion ceremonies
but it cannot be other than those his own religion. This guarantee under
clause (2) of Article 41 is an absolute guarantee.
76 The Constitution of the People's Republic of Bangladesh Article 42

Case:
In the case of Bangladesh Anjuman-e-Ahmadiva Vs. Bangladesh, 45
DLR 185, Sultan Hossain Khan,J. while interpreting right to profess
religion held at paragraph lii as under:
"The right of the Ahmadiya Community to preach their religious belief
is, however, subject to law, public order and morality. By the aforesaid
passages in our view the author and the publisher are deliberately and
maliciously propagating a matter which is outrageous to the religious
feeling of the bulk of the muslims of this country. The petitioner has
submitted that Ahmadi a jays also being Muslim the order stating that the
book has outraged the feelings of the Muslims of Bangladesh is not
correct."
In the case of Islamic Law research center and legal Aid Bangladesh vs-
Eva Suananda Chowdhury & Mrs. 23 BLD (AD) 21. the Appellate
division expunged the controversial part of the Judgement of the High
court Division in view of Article 41 of the constitution.

Article 42. (1) Rights to property—Subject to any restrictions imposed by

law, every citizen shall have the right to acquire, hold, transfer or
otherwise dispose of property, and no property shall be compulsorily
acquired, nationalised or requisitioned save by authority of law.
[(2) A law made under clause (1) shall provide for the acquisition,
nationalisation, or requisition with compensation and shall either
fix the amount of compensation or specify the principles on
which, and the manner in which, the compensation is to he
assessed and paid; but no such law shall be called in question in
any court on the ground that any provision in respect of such
compensation is not adequate.
(3) Nothing in this Article shall affect the operation of any law made
before the commencement of the Proclamations (Amendment)
Order, 1977 (Proclamations Order No. I of 1977), in so far as it
relates to the acquisition, nationalisation or acquisition of any
property without compensation.]

Comments on Article 42
This Article guarantees, citizens right to acquire, bold, transfer or
otherwise dispose of property, subject to restrictions imposed by law.

'Clauses (2) and (3) were substituted for the former clause (2) by the Proclamations
(Amendment) Order, 1977 (Proclamations Order No.1 of 1977).
Article 42 The constitution of the People ',s Republic of Bangladesh 77

Compulsory acquisition, nationalisation and requisition of property is not

permissible without the authority of law. This Article also provides for
compensation in case of acquisition, nationalisation or requisition of
property. A law made under clause (1) shall also provide for principles on
which the compensation is to be assessed and paid.
Case:
In the case of Alhaj Mohammad Rahimuddin Bhorasha Vs.
Bangladesh, 46 DLR- 130, Kazi Ebadul Hoquë,J. held at paragraph 8 while
interpreting Article 42 of the Constitution as follows:-
"Article 42 of the Constitution of Bangladesh provides that 'subject to
any restrictions imposed by law, every citizen shall have the right to
acquire, hold, transfer or otherwise dispose of property, and no property
shall be compulsorily acquired, nationalised or requisitioned save by
authority of law'. So petitioner as a citizen of Bangladesh has right to
hold the disputed property owned by him unless such right is restricted
by any law or acquired or nationalised by the authority of law. We have
already found that the property owned by the petitioner does not answer
the description of abandoned property and inclusion of the same in the
list of abandoned properties is without jurisdiction."
In the unreported case of M/S.Nasirahad Properties Vs. The
Chittagong Development Authorit y and others, Civil Appeal No.48 of
1965, dismissed on 7.8.1974, the question of deprivation of right to
property was argued as there was delay in execution and implementation
of Master Plan. It was held that there was no time limit for execution of
the work and that by itself cannot tantamount to deprivation of property of
the owner whose land has been validly acquired by the Chittagong
Development Authority.
In the case of Sveda Chand Guttara and others Vs. Bangladesh, 48
DLR 547, K.M.Hasan, J. released the property wrongly listed as
abandoned property as it was done in violation of Article 42 of the
Constitution, rights to property. In that decision the learned Judge held at
paragraph 17 as under:-
"The very fact that the inclusion of the disputed property in the 'Kha' list
had been found by us to be ex-facie void for want of jurisdiction and in
violation of Article 42 of the Constitution it is our view that the
petitioners can come directly to this court for protection of their
fundamental rights even though an alternative remedy is available."
78 The constitution of the People's Republic of Bangladesh Articles 43 & 44

Article 43. Protection of home and correspondence—Every citizen shall

have the right, subject to any reasonable restrictions imposed by law in the
interests of the security of the State, public order, public morality or public
health—
(a) to be secured in his home against entry, search and seizure; and
(b) to the privacy of his correspondence and other means of
communication.

Comments on Article 43
This article ensures the citizens right to be secured in his home against
entry, search and seizure and also to the privacy of his correspondence and
other means of communication. Restrictions can be imposed on such
rights on the ground of security of the state, public order, public morality
and public health. This article guarantees the privacy of home and
correspondence a911nmunications.

Article Enforcement of fundamental rights—The right to move

2 ' ..
the [High Court Division in accordance with '[clause (1)] of article 102,
for enforcement of the rights conferred by this Part is guaranteed.
(2) Without prejudice to the powers of the 2 {High Court Division] tinder
article 102, Parliament may be law empower any other court, within
the local limits of its jurisdiction, to exercise all or any of those
powers].
/ V
C me on Article 44
Enforcement of fiiida' tal rights through Article 102 of the
constitution in the High Court division is guaranteed by this part. This
Article provides that the power to move the High Court Division is itself a
fundamental right. Clause (2) of this Article provides that enforcement of
fundamental rights may be given to any other Court of concurrent

'Article 44 was substituted for the former article 44 by the Second Proclamation (Seventh
Amendment) Order, 1976 (Second Proclamation Order No.IV of 1976) ( u'.e.f 13.8.76).
2
The words "High Court Division" were substituted for the words "1-ugh Court" by the
Second Proclamation (Tenth Amnendmnent) Order. 1977) (Second Proclamation Order
No. I of 1977) (w.e.f. 1.12.1977).
The word, brackets and figure "Clause (1)" were substituted for the word, brackets and
figure "Clause (2)", ibid.
 Article 45 The ('ou.sxifution of the People's Republic of Bangladesh 79

Jurisdiction, but the High Court Division's power of enforcement of

fundamental rights can never be taken away. Thus, any other Court
empowered by law cannot have exclusive jurisdiction. The High Court
Division's power of enforcement of fundamental rights will always remain
therein.
Case:
In the case of Anwar Hossain Chowdhury VS Bangladesh, 41 DLR
(AD)165, B.H. Chowdhury, j, held that by the Amendment Act original
Article 100 had been displaced and complete new dispensation started by
enacting permanent Benches at six designated places and sub Article (5) is
inconsistent with Articles 44 and 114. It has enacted permanent Benches
with Jurisdictions, powers and functions of the High Court Division
contrary to the express mandate in Articles 44 and 114. The learned Judge
further held in paragraph 160 as follows:
"The mandate is clear and express if Articles 44 and 114 are read
together. It is well settled principle in interpreting the Constitution that
the entire Constitution is to be looked into and if any amendment to the
Constitution does not fit in with the constitution itself then the
amendment is to be declared ultra vires because constitution is a logical
whole,"
In the case of Serajul Islain Vs. D.G. Food, 43 DLR 237,
F.H,M.H.Rahman,J held while interpreting Article 44 of the Constitution
at paragraph 7 as under:
"As already stated, without exhausting all available' remedies before the
administrative authorities including Administrative Appellate authority,
the Administrative Tribunal and the Administrative Appellate Tribunal
generally speaking the petitioner is not entitled to any relief before this
court for the eni'orcement of any fundamental right under Article 44 read
with Article 102(1) of the Constitution. In the case of State of UP-Vs-
Nooh, AIR 1958(SC) 86 and Abrahan-Vs- ITO, AIR 1961(SC) 609 it
was held that the principle of exhaustion of statutory remedy is applied
as a general rule, in the matter of issuing certiorari and the superior court
will ordinarily decline to interfere until the aggrieved party has
exhausted his statutory remedies."
Article 45. Modification of rights in respect of disciplinary Law—
Nothing in this Part shall apply to any provision of a disciplinary law
relating to members of disciplined force, being a provision limited to the
80 The Constitution of the Peoples Republic of Bangladesh Article 45

purpose of ensuring the proper discharge of their duties or the

maintenance of discipline in that force.
Comments on Article 45
This Article is a modification of rights in respect of disciplinary law.
The provisions of Part III not be applicable to the members of
disciplined forces for ensuring proper discharge of their duties or
maintenance of discipline in that force. Disciplinary law is kept out of the
ambit of enforcement of fundamental rights.

Case:
In the case of Bangladesh Vs. Matiur Rahman, 34 DLR(AD) 287,
while interpreting Rule 3 clauses (a)(b) of Government Servant's
(Discipline and Appeal) Rules, 1976, S.Ahmed,J. held in paragraph 9 as
follows:-
"We find that there is no provision in the Rules requiring the enquiry
officer to give any recommendation as to the punishment to be imposed
while submitting his report of enquiry held by him under these
Rules.What he is required to do is to submit a "report of his findings" to
the "authority" by whom he was appointed; and the latter is required by
these Rules to consider the report and record its findings of the "charge".
These provisions of the Rules show that the authority' which may he
governed itself, is not bound to accept the findings of the enquiry officer
not to speak of his recommendation, but may come to a different finding
on the basis of the materials on record."
In the case of Col.Md.Hashmat Ali(Retired) of Bangladesh Army
Medical Corps. Vs. Government of Bangladesh and another, 47
DLR(AD)1, M.H.Rahman,J. held at paragraph 16 as under:
"I am of the view that a member of any disciplined force of Bangladesh
will not be entitled to any remedy under Article 102 if he is aggrieved by
(i) by any decision of a Court or Tribunal established under a law
relating to the defence services unless that decision is coram non-judice
or malafide; or (ii) by an order affecting his terms and conditions of
service, passed by or by order of the President; or (iii) by any violation of
fundamental right resulting from application of a disciplinary law for the
purpose of ensuring the proper discharge of his duties or the maintenance
of discipline in the disciplined force."
In the said decision it was further held that a member of the disciplined
force can move the High Court-Division for enforcement of fundamental
rights subject to the provisions of Article 45.
Articles 46 & 4 The Constitution of the People's Republic of /langladeslr 81

Article 46. Power to provide ind emnity -Notwithstanding anything in the

foregoing provisions of this Part, Parliament may be law make provision
for indemnifying any person in the service of thobRepublic or any other
person in respect of any act done by him in connection with the national
liberation struggle or the maintenance or restoration or order in any area in
Bangladesh or validate any sentence passed, punishment inflicted,
forfeiture ordered, or other act done in any such area.

Comments on Article 46
This Article grants indemnity by law in respect of acts done during the
national liberation struggle or the maintenance or restoration or order in
any area in Bangladesh.

Article 47. (1) Saving for certain laws-No law providing for any of the
following matters shall he deemed to be void on the ground that it is
inconsistent with, or takes away or abridges, any of the rights
guaranteed by this Part-
(a) the compulsory acquisition, nationalisation or requisition of
any property, or the control of management thereof whether
temporarily or permanently;
(b) the compulsory amalgamation of bodies carrying on commercial
other undertakings;
(c) the extinction, modification, restriction or regulation of rights of
directors, or managers, agents and officers of any such bodies,
or of the voting rights of persons owning shares or stock (in
whatever form) therein;
(d) the extinction, modification, restriction or regulation of rights to
search for or win minerals or mineral oil;
(e) the carrying on by the Government or by a corporation owned,
controlled or managed by the Government, of any trade,
business industry or service to the exclusion, complete or
partial, of other persons; or
(fl the extinction, modification, restriction of regulation of any
right to property, any right in respect of profession, occupation,
trade or business or the rights of employers or employees in any
statutory public authority or in any commercial or industrial
undertakings:
if Parliament in such law (including, in the case of existing law, by
amendment) expressly declares that such provision is made to give
effect to any of the fundamental principles of state policy set out in
Part H of this Constitution,
82 The Constitution oft/u' People's Republic of Ba,?L'ladesh Article 47

(2)Notwithstanding anything contained in this Constitution the laws

specified in the First Schedule (including any amendment of any
such law) shall continue to have full force and effect; and no
provision of any such law, nor anything done or omitted to be done
under the authority of such law, shall be deemed void or unlawful
on the ground of inconsistency with, or repugnance to, any
provision of this Constitution;
Provided that nothing in this article shall prevent amendment,
modification or repeal or any such law].
2[(3) Notwithstanding anything contained in this Constitution, no
law nor any provision thereof providing for detention, prosecution or
punishment of any person, who is a member of any armed or defence
or auxiliary forces or who is a prisoner of war, for genocide. crimes
against humanity or war crimes and other crimes under international
law shall be deemed void or unlawful, or ever to have become void
or unlawful, on the ground that such law or provision of any such
law is inconsistent with, or repugnant to, any of the provisions of this
Constitution.]

Comments on Article 47
Certain laws have been saved and Clause(I) of this Article grants
immunity from challenge on the ground of violation of fundamental rights.
Clause(2) gives protection of certain laws in First Schedule inspite of the
inconsistency with any provision of the Constitution. Clause(3) of this
Article provides for detention, prosecution and punishment for genocide,
war crimes against humanity under International law and in case of
conflict with any provision of this constitution, the law made for such
detention, prosecution or punishment of any person under international
law shall not be void.
In the case of Bangladesh Bank and others Vs. Mohammad Abdul
Mannan, 46 DLR(AD) 1, Shahabuddin Ahmcd,C.J. held while
interpreting Article 47(2) that Bangladesh Bank Staff Regulations are
protected legislation like its parent law, the Bangladesh Bank Order. The
Constitutionality of these Regulations stand beyond any question and
cannot be declared void being inconsistent with the equality clause of the
Constitution.

The proviso was substituted for the original proviso the proclamations (Amendment)
Order. 1977 (Proclamations Order No.1 of 1977).
2 Clause (3) was added by Constitution (First Amendment) Act. 1973 (Act XV of 1973).

s.2.
 Ariicfr 4 The C'o,w,tuuon of the People '.v Republic of Bangladesh 83

The facts of the case, New Ideal Engineering Works Vs. Bangladesh
Shilpa Bank and others, 42 DLR(AD) 221, are that the petitioner
challenged the decision of the Bangladesh Shilpa Bank for Sale of his
industrial concern under Article 34 of the Bangladesh Shilpa Bank Order,
1972. Bangladesh Shilpa Bank Order(P.O. 129 of 1972). A.T.M. Afzal,J.
held at paragraph 8 as follows:-
"To answer his submissions, briefly,it may be observed that the order is a
protected legislation under Article 47(2) of the Constitution and no
provision thereof shall be deemed to be void or unlawful on the ground
of inconsistency or repugnance to any provision of the Constitution.
Secondly, it is to be observed that a non-obstinate clause is unusually
used in a provision to indicate that, that provision should prevail despite
anything to the contrary in the provision mentioned in such non-
obstinate clause"
In the case of K.M.11ossain Vs. Govern,neni of Bangladesh, 31
DLR(AD) 64, the validity of Government of Bangladesh (Services
screening) Order(P.O,67 of 1972) was challenged, wherein, K.Hossain,
C.J. held at paragraph 7 as under:-
"To appreciate the point we are to refer to sub-Article(2) of Article 47 of
the Constitution. This Sub-Article says that notwithstanding anything
contained in the Constitution the laws specified in the first schedule
wherein this Presidential Order No.67 of 1972 has been included, shall
continue to have full force and effect, and no provision of any such law
or anything done or omitted to be done under the authority or such law
shall be deemed to be void or unlawful on the ground of inconsistency
with or repugnance to any provision of the Constitution."
Thus, it appears that the laws specified in the first schedule of Article
47 are protected laws and those are immune from challenge and this is the
mandate of the Constitution.
In the case of Bangladesh Vs. Haji Abdul Ghani, 33
DLR(AD) 233,
President's Order No.88 of 1972 and 136 of 1972 were challenged,
wherein B.H.Chowdhury, J. held at paragrah 7 of that decision as
follows:-
"Article 47 read with the First Schedule of the Constitution has protected
by law and clear indication has been given in the Constitution itself and
when the parent legislation is immune from attack the consequential
amendments are to be viewed in that light, namely, for giving effect to
the parent legislation unless it would he shown that the amendment
minus the protection, is otherwise unconstitutional"
 The Constitution of the Peoples I?episbhtc offlangladesli Article 47A
84

The facts of the case of Kazi Mokarrwu Hossain Vs. Bangladesh 31

DLR(AD) 64,arc that the petitioner was dismissed on the recommendation
of the First Screening Board, Government of Bangladesh (Services
Screening Order P.0.67 of 1972) without compliance of Sub-Article (2) of
Article 135 of the Constitution. The High Court Division dismissed the
writ petition and the same was upheld by the Appellate Division.
K.Hossain, C.J. held at paragraph 10 of the decision as follows:
"Reading Presidential Order No.67 of 1972 as a whole it is quite clear
that as self-contained enactment it has left no scope for any application
of a second show cause notice as contemplated in Sub-Article(2) of
Article 135. If any attempt to so do it will be to introduce and artificial
inconsistency or repugnancy which the Presidential order itself does not
contain. Article 47(2) has in clear language excluded any such attempt to
introduce repugnancy or in the name of any inconsistency, to import
some other provision of the Constitution into Presidential Order No.67 of
1972."
As a matter of fact, in that decision it was held that Sub-Article(2)
of Article 47 of the constitution gives two kinds of protections; first is
the legislative protection to the laws specified in the First Schedule,
and the second is the action taken under those protected laws.

Article 1[47A. (1) Inapplicability of certain articles—The rights

guaranteed under Article 31, clause (1) and (3) of Article 35 and Article
44 shall not apply to any person to whom a law specified in clause (3) of
Article 47 applies.
(2) Notwithstanding anything contained in this constitution, no person to
whom a law specified in clause (3) of Article 47 applies shall have the
right to move the Supreme Court for any of the remedies under this
Constitution].
Comments on Article 47A
The persons in respect of whom Clause(3) of Article 47 apply shall be
precluded from moving the Supreme Court for any remedy under the
Constitution. It provides for inapplicability of certain Articles of this part
mentioned in Article 47A of the Constitution.

Article 47A was inserted, ibid. s. 3.

Article 48 The Constitution of the Peoples Republic of Bangladesh 85

PART IV
THE EXECUTIVE
'[CHAPTER I - THE PRESIDENT

Article 48. (1) The President—There shall be a President of Bangladesh

who shall be elected by members of Parliament in accordance with law.
(2) The President shall, as Head of State, take precedence over all other
persons in the State, and shall exercise the powers and perform the
duties conferred and imposed on him by this Constitution and by any
other law.
(3) In the exercise of all functions, save only that of appointing the
Prime Minister pursuant to clause (3) of Article 56 and the Chief
Justice pursuant to clause (1) of Article 95, the President shall act in
accordance with the advice of the Prime Minister:
Provided that the question whether any, and if so what, advice has
been tendered by the Prime Minister to the President shall not be
enquired into in any court.
(4) A person shall not be qualified for election as President if he -
(a) is less than thirty-five years of age; or
(b) is not qualified for election as a member of parliament; or
(c) has been removed from the office of President by impeachment
under this constitution.
(5) The Prime Minister shall keep the President informed on matters of
domestic and foreign policy, and submit for the consideration of the
Cabinet any matter which the President may request him to refer to
it.

Case on Article 48
In the case of Abdus Sarnad Azad —VS- Bangladesh, 44 DLR- 354, the
provisions of Act XXVII of 1991 was challenged on the ground that open
ballot system of vote by the members of Parliament to elect the President
was violative of Article 39 and contrary to the principles of State Policy as
envisaged under Article 11 of the Constitution of Bangladesh. The
contention of the petitioner was rejected by the High Court Division,
wherein Anwarul Haque

Chapters 1. II and Ill were substituted for Chapters I and II by the Constitution (Twelfth
Amendment) Act, 1991(Act XXVI1I of 1991) s.3.
86 i/ic' Consmuno,z of the People . Republic otBau'ladevl .-liticIe. 49-5I

Chowdhury, J. held at paragraph 20 as follows:—

"In fact from the different provisions of the Constitution we do not find
that the democratic institution as spelt out in the Constitution to be the
aim, did not narrow it down to a choir- representative either by direct
or by secret ballot, leaving it to be decided by law on the basis of the
political expediency and necessity of the time at a given period. Voting
by secret ballot or by open ballot or by a division are all accepted modes
of voting and different ways of choosing and those modes are also not
foreign to our Constitution and only because an election is ordered to be
held by open vote would not make the said election illegal and the right
to choose according to one's own conscience would be existing in both
the procedures whether it is by open vote or by Secret vote. The system
of open ballot procedures could not be said to have taken away the right
to vote freely and fearlessly."

Article 49. Prerogative of mercy—The President shall have power to

grant pardons, reprieves and respites and to remit, suspend or commute
any sentence passed by any court, tribunal or other authority.

Article 50. (1) Term of office of President— Subject to the provisions of

this Constitution, the President shall hold office for a tel-rn of five years
from the date on which he enters upon his office:
Provided that notwithstanding the expiration of his term the President shall
continue to hold office until his successor enters upon office.
(2) No person shall hold office as President for more than two terms,
whether or not the terms are consecutive.
(3) The President may resign his office by writing under his hand
addressed to the speaker.
(4) The President durin g his term of office shall not he qualified for
election as a member of Parliament, and if a member of Parliament
is elected as President he shall vacate his scat in Parliament oil the
day on which he enters upon his office as President.

Article 51. (1) President's immunity Without prejudice to the Provisions

of article 52, the President shall not he answerable in any court for
anything done or omitted by him in the exercise or purported exercise
of the functions of his office, but this clause shall not prejudice the
right of any person to take proceedings against the Government.
Article 52 The Constitution of the People's Republic of lIanglath's/i

(2) During his term of office no criminal proceedings whatsoever shall be

instituted or continued against the President in, and no process for his
arrest or imprisonment shall issue from, any court.

Comments of Article 51
The President shall not be answerable to any Court while in office for
exercise or purported exercise of the functions of his office. But an
aggrieved person can take a proceeding against the Government. The
immunity against a criminal proceeding is available while the President is
in office.

Case:
In the case of Hussain Mohammed Ershaci -VS- The state, (1991)11
BLD(AD)55, the question of immunity of the petitioner from criminal
prosecution under Article 51(1) of the Constitution came up for
consideration, wherein at paragraph 6. M.H. Rahman,J. held as under:
"It is contended that the arms seized were in the possession and control
of the petitioner in his capacity as President and hence in view of Article
5 1(l) of the Constitution there is u Complete bar against any criminal
Prosecution against the petitioner. We find no substance in this
contention. The immunity is available to the President while he is in
office".

Article 51 (1) Impeachment of the President— The President may be

impeached on a charge of violating this constitution or of grave
misconduct, preferred by a notice of motion signed by a majority of the
total number of members of Parliament and delivered to the Speaker,
setting out the particulars of the charge, and the motion shall not be
debated earlier than fourteen nor later than thirty days after the notice is so
delivered; and the Speaker shall forthwith summon Parliament if it is not
in session.

(2) The conduct of the President may be referred by Parliament to any

court, tribunal or body appointed or designated by Parliament for the
investigation of charge under this article.
(3) The President shall havethe right to appear and to he represented
during the consideration of the charge.
(4) If after the consideration of the charge a resolution is passed by
Parliament by the votes of not less than two-thirds of the total number
88 The Constitution of the Peoples Republic of Bangladesh Article 53

of members declaring that the charge has been substantiated, the

President shall vacate his office on the date on which the resolution is
passed.
(5) Where the Speaker is exercising the functions of the President under
article 54 the provisions of this article shall apply subject to the
modifications that the reference to the Speaker in clause (I) shall be
construed as a reference to the Deputy Speaker, and that the reference
in clause (4) to the vacation by the President of this office shall he
construed as a reference to the vacation by the Speaker of his office as
Speaker; and on the passing of a resolution such as is referred to in
clause (4) the Speaker shall cease to exercise the functions of
President.

Article 53. (1) Removal of President on ground of incapacity - The

President may be removed from office on the ground of physical or mental
incapacity on a motion of which notice, signed by a majority of the total
number of members of Parliament, is delivered to the Speaker, setting out
particulars of the alleged incapacity.

(2) On receipt of the notice the Speaker shall forthwith summon

Parliament if it is not in session and shall call for a resolution
constituting a medical board (hereinafter in this article called the
"Board") and upon the necessary motion being made and carried shall
forthwith cause a copy of the notice to be transmitted to the President
together with a request signed by the Speaker that the President submit
himself within a period of ten days from the date of the request to an
examination by the Board.
(3) The motion for removal shall not be put to the vote earlier than
fourteen nor later than thirty days after notice of the motion is
delivered to the Speaker, and if it is again necessary to summon
Parliament in order to enable the motion to be made within that period,
the Speaker shall summon Parliament.
(4) The President shall have the right to appear and to be represented
during the consideration of the motion.
(5) If the President has not submitted himself to an examination by the
Board before the motion is made in Parliament, the motion may be put
to the vote, and if it is passed by the votes of not less than two-thirds
of the total number of members of Parliament, the President shall
vacate his office on the date on which the motion is passed.
Article 54 The Constitution of the Peoples Republic Oj&JflRladeSh 89

(6) If before the motion for removal is made in Parliament, the President
has submitted himself to an examination by the Board, the motion
shall not be put to the vote until the Board has been given an
opportunity of reporting its opinion to Parliament.
(7) after consideration by Parliament of the motion and of the report of
If
the Board (which shall be submitted within seven days of the
examination held pursuant to clause (2) and if not so submitted shall
be dispensed with) the motion is passed by the votes of not less than
two-thirds of the total number of members of Parliament, the President
shall vacate his office on the date on which the resolution is passed.

Article 54. Speaker to act as President during absence, etc—If a

vacancy occurs in the office of President or if the President is unable
to discharge the functions of his office on account of absence, illness
or any other cause the Speaker shall discharge those functions until a
President is elected or until the President resumes the functions of his
office, as the case may be.

General Commekits
The President of Bangladesh is the Constitutional head of the State and
of the executive Government. The office of the President is a ceremonial
one like the British Monarch. In our Constitutional dispensations, the
President is required to act on the advice of the Prime Minister expect in
two case, namely, the President can independently appoint the Prime
Minister and the Chief Justice of Bangladesh. In exercise of all other
functions the President must act on the advice of the Prime Minister.
Article 52 lays down the Procedure for impeachment of the President
wherein the President shall have the right to appear and to be represented
during the consideration of the charge. For substantiating the charge
against the President the Parliament by not less than two-thirds of the total
number of members of the Parliament can pass the resolution of
impeachment.
Article 53 also authories the removal of the President on the ground of
physical or mental incapacity. An elaborate procedure has been laid down
in the Article itself. Further in the absence of the President, the Speaker
shall discharge those functions of the President.
In Bangladesh, there has been no case of impeachment of the
President.
90 The Constitution of the Peoples Republic of l3wzgIadesI? Articles 55 & 56

CHAPTER II: THE PRIME MINISTER AND THE CABIN1T

Article 55 (1) The. Cabinet—There shall be a Cabinet for Bangladesh

having the Prime Minister at its head and comprising also such other
Ministers as the Prime Minister may from time to time designate.
(2) The executive power of the Republic shall, in accordance with this
Constitution, be exercised by or on the authority of the Prime
Minister.
(3) The Cabinet shall be collectively responsible to Parliament.
(4) All executive actions of the Government shall he expressed to he
taken in the name of the President.
(5) The President shall by rules specify the manner in which orders and
other instruments made in his name shall be attested or authenticated,
and the validity of any order or instrument so attested or authenticated
shall not be questioned in any court on the ground that it was not duly
made or executed.
(6) The President shall make rules for the allocation and transaction of
the business of the Government.

Rules of Business : Under Article 55(6) the president is to make rules

for the allocation of transaction of the business of the government and
those are called the rules of business. The rules of business enable which
authority is to perform what function of the government.
The below mentioned Cases will illustrate proposition enunciated as
per Article 55(6) of the Constitution.
(1) Bangladesh —Vs- Shafiuddi,z Ahmed and 2 others, 50
DLR(AD) 27 (Cabinet decision without publication in the
official gazette cannot be treated as an executive action in
terms of Article 55(4).
(2) Bangladesh —Vs- Dr.Dhiman Chowdhurv and others, 47
DLR(AD) 52 (In detention case, Government is hound to
disclose that the order was passed by proper person in
accordance to Rules of Business). /

Article 56. (1) Ministers—There shall be a Prime Minister, and such other
Ministers, Ministers of State and Deputy Ministers as may be
determined by the Prime Minister.
 4rigcle.c 57-58 i/ic Constitution of the Peoples Republic of Bangladesh 91
(2) The appointments of the Prime Minister and other Ministers and of the
Ministers of State and Deputy Ministers, shall be made by the
President
Provided that not less than nine-tenths of their number shall be
appointed from among members of Parliament and not more than one-
tenth of their number may be chosen from among persons qualified for
election as members of Parliament.
(3) The President shall appoint as Prime Minister the member of
Parliament who appears to him to command the support of the
majority of the members of Parliament.
(4) If occasion arises for making any appointment under clause (2) or
clause (3) between a dissolution of Parliament and the next following
general election of members of Parliament, the persons who were such
members immediately before the dissolution shall be regarded for the
purpose of this clause as continuing to be such members.

Article 57. (1) Tenure of office of Prime Minister—The office of the

Prime Minister shall become vacant-
(a) if he resigns from office at any time by placing his resignat-' in
the hands of the President: or
(b) if he ceases to be a member of Parliament.
(2) If the Prime Minister ceases to retain the support of a majority of the
members of Parliament, he shall either resign his office or advise the
President in writing to dissolve Parliament, and if he so advises the
President shall, if he is satisfied that no other member of Parliament
commands the support of the majority of the members of Parliament,
dissolve Parliament accordingly.
i3) Nothing in this article shall disqualify Prime Minister for holding
office until his successor has entered upon office.

Ankle 58. (1) Tenure of office of other Ministers—The office of a

Minister other than the Prime Minister shall become vacant-
(a) if he resigns from office by placing his resignation in the hands of
the Prime Minister for submission to the President;
(b) if he ceases to he a member of Parliament, but this shall not be
applicable to Minister chosen under the Proviso to Article 56(2);
(c) if the President pursuant to the provisions of clause (2) so directs;
or
(d) as provided in clause (4).
92 The Constitution of the People's Republic of Bangladesh Article 5$11

(2) The Prime Minister may at any time request a Minister to resign, and if
such Minister fails to comply with the request, may advise the
President to terminate the appointment of such Minister.
(3) Nothing in sub-clauses (a), (b) and (d) of clause (1) shall disqualify a
Minister for holding office during any period in which Parliament
stands dissolved.
(4) If the Prime Minister resigns from or ceases to hold office each of the
other Ministers shall be deemed also to have resigned from office but
shall, subject to the provisions of this Chapter, continue to hold office
until his successor has entered upon office.
(5) In this article "Minister" includes Minister of State and Deputy
Minister.

Article '[58A. Application of Chapter—Nothing in this Chapter, except

the provisions of Article 55(4), (5) and (6) shall apply during the
period in which Parliament is dissolved or stands dissolved
Provided that, notwithstanding anything contained in Chapter hA,
where the President summons Parliament that has been dissolved to meet
under Article 72(4), this Chapter shall apply].

Comments on Article 55 and General Comments—

In our Parliamentary form of Government, as per the Constitution, the
Prime Minister occupies the most important position. The Prime Minister
is the leader of the majority party in Parliament, the leader of the Cabinet
and the council of Ministers. As a matter of fact, the Prime Minister is the
Chief Executive of the Government. All executive powers of the Republic
shall be exercised by and under the authority of the Prime Minister. The
Cabinet shall be collectively responsible to Parliament. In case, the
Parliament passes a vote of non-confidence, the entire council of Ministers
along with the Prime Minister goes out of office.
Cabinet, the name applied to the collective body of advisers to the
executive head of a Parliamentary Government. The composition and
functions of the Cabinet vary in different countries. In modern British
Cabinet system, the Prime Minister at its head, is collectively responsible
to Parliament. The Cabinet is the effective policy making organ of' the
Executive Government. In Bangladesh, we are following the British
Parliamentary system of West-Minister. Individual and collective

Article 58A was inserted by the Constitution (Thirteenth Amendment) Act, 1996 (Act 1
of 1996) s. 2.
Articles 588 1/u' (onstifutton of the People's Republic of Bangladesh 93

responsibilities and tenure of the Ministers are also spelt out in the
Constitution itself.

Case on Article 55.

In the case of Bangladesh Vs. Shajiuddin Ahmed, 50 DLR(AD) 27,
Mustafa Kamal,J. after considering the case of Mujibur Rahman found
that the tribunals have no power of judicial review under Article 102(2) of
the Constitution and the writ petitioners rightly invoked the jurisdiction of
the High Court Division. In that decision at paragraphs 53 and 54, the
learned Judge further held as under:-
"We,therefore, agree with the majority judgment of the Special Bench
that the Cabinet decision dated 3.11.91 without publication in the official
Gazette cannot be treated as a guide line and add thereto that it was not
an executive action in terms of Article 55(4) of the Constitution. That in
the absence of any guide line the authorities are vested with arbitrary
powers. offending equality clauses contained in Articles 27 and 29(1) of
the Constitution have been amply dealt with in the decision of this court
in Dr. Nurul Islam Vs. Government of Bangladesh, 33 DLR(AD) 201

)TCHAPTER hA : NON-PARTY CARE-TAKER GOVERNNENT

Article 58B. (1) The Non-Party Care-taker Government—There shall be

a Non-Party Care-taker Government during the period from the date
on which the Chief Adviser of such Government enters upon office
after Parliament is dissolved or stands dissolved by reason of
expiration of its term till the date on which a new Prime Minister
enters upon his office after the Constitution of Parliament.
he Non-Party Care-taker Government shall be collectively
responsible to the President.,_._
(3) The executive power of the Republic shall, during the period
mentioned in clause (1), be exercised, subject to the provisions of
article 581)(1), in accordance with this Constitution, by or on the
authority of the Chief Adviser and shall be exercised by him in
accordance with the advice of the Non-Party Care-taker Government
(4) The provisions of article 55(4), (5) and (6) shall (with the necessary
adaptations) apply to similar matters during the period mentioned in
clause (1).

New Chapter hA was inserted. ibid s. 3

 94 The Constitution of the Peoples Republic of Bangladesh Article 58C
Article 58C. (I) Composition of the Non-Party Care-taker
Government, appointment of Advisers, etc.—The Non-Party Care-taker
Government shall consist of the Chief Adviser at its head and not more
than ten other Advisers, all of whom shall be appointed by the President.
(2) The Chief Adviser and other Auvisers shall be appointed within
fifteen days after Parliament is dissolved or stands dissolved, and
during the period between the date on which parliament is dissolved
or stands dissolved and the date on which the Chief Adviser is
appointed, the Prime Minister and his cabinet who were in office
immediately therefore Parliament was dissolved or stood dissolved
shall continue to hold offiCe as such.
(3) The President shall appoint as Chief Adviser the person who among
the retired Chief Justices of Bangladesh retired last and who is
qualified to be appointed as an Adviser under this Article
Provided that if such retired Chief Justice is not available or is not
willing to hold the office of Chief Adviser, the President shall
appoint as Chief Adviser the person who among the retired Chief
Justices of Bangladesh retired next before the last retired Chief
Justice.
(4) If no retired Chief Justice is available or willing to hold the office of
Chief Adviser, the President shall appoint as Chief Adviser the
person who among the retired Judges of the Appellate Division
retired last and who is qualified to be appointed as an Adviser under
this Article
Provided that if such retired Judge is not available or is not willing to
hold the office of Chief Adviser, the President shall appoint as Chief
Adviser the person who among the retired Judges of the Appellate
Division retired next before the last such retired Judge.
(5) if no retired Judge of the Appellate Division is available or willing to
hold the office of Chief Adviser, the President shall, after
consultation, as far as practicable, with the major political parties,
appoint the Chief Adviser from among citizens of Bangladesh who
are qualified to be appointed as Advisers under this Article.
(6) Notwithstanding anything contained in this Chapter, if the provisions
of clauses (3), (4) and (5) cannot be given effect to, the President
shall assume the functions of the Chief Adviser of the Non-Party
Care-taker Government in addition to his own functions under this
Constitution.
 Articles 58!) & 58E The Cons! /1111/0,1 of the People's Republic of Bangladesh 95

(7) The President shall appoint Advisers from among the persons who
are-
(a) qualified for election as members of Parliament;
(b) not members of any political party or of any organization
associated with or affiliated to any political party;
(c) not, and have agreed in writing not to be, candidates for the
ensuing election of members of Parliament;
(d) not over seventy-two years of age.
(8) The Advisers shall be appointed by the President on the advice of the
Chief Adviser.
(9) The Chief Adviser or an Adviser may resign his office by writing
under his hand addressed to the President.
(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or
Adviser if he is disqualified to be appointed as such under this
Article,
(11) The Chief Adviser shall have the status, and shall be entitled to the
remuneration and privileges, of a Prime Minister, and an Adviser
shall have the status, and shall be entitled to the remuneration and
privileges of a Minister.
(12) The Non-Party Care-taker Government shall stand dissolved on the
date on which the Prime Minister enters upon his office after the
constitution of new Parliament.
Article 58D. (1) Functions of Non-Party Care-taker Government—The
Non-Party Care-taker Government shall discharge its functions as an
an interim government and shall carry on the routine functions of such
government with the aid and assistance of persons in the services of
the Republic; and, except in the case of necessity for the discharge of
such functions it shall not make any policy decision.,
(2) The Non-Party Care-taker Government shall give to the Election
Commission all possible aid and assistance that may he required for
holding the general election of members of Parliament peacefully,
fairly and impartially.

Article 58E. Certain provisions of the Constitution to remain

ineffective— Notwithstanding anything contained in articles 48(3),
141A(1) and 141C(1) of the Constitutions, during the period the Non-
Party Care-taker Government is functioning, provisions in the Constitution
requiring the President to act on the advice of the Prime Minister or upon
his prior counter-signature be ineffective.]
 The Constitution of the People's Republic of Ban, 'luth's/? Articles 59 &
96

General Comments on Articles 5811-58E

The concept of Non-party Care-taker Government was passed in the
sixth Parliament by the Constitution (Thirteenth Amendment) Act. The
main object of bringing this concept is to avoid rigging and unfairness in
the Parliamentary Elections of Bangladesh. The main function of the Non-
party Care-Tak.r Government is to give all possible aid and assistance to
the Election Commission of Bangladesh for holding free, fair and neutral
election. Apart from running the country, during the span of 90 days, the
Care-Taker Government cannot take any policy decision. The Care-Taker
Government will consists of one Chief Adviser and ten other advisers to
assist the Chief-Adviser of the Care-Taker Government. The Non-party
Care-Taker Government shall be collectively responsible to the President.
Three General Parliamentary Elections were held in Bangladesh under
the Care-Taker Government and on the Constitutional procedure of Non-
party Care-Taker Government. The election of fifth parliament was held
under former Chief Justice Shahabuddin Ahmed. The General Election of
the Seventh Parliament was held under former Chief Justice Md.Habibur
Rahman and the election of the eighth Parliament was held under former
Chief Justice Latifur Rahman.

CHAPTER ifi: LOCAL GOVERNMENT

Article- (1) Local government—Local Government in every

administrative unit of the Republic shall be entrusted to bodies, composed
of persons elected in accordance with law.
(2) Everybody such as is referred to in clause (1) shall, subject to this
Constitution and any other law, perform within the appropriate
administrative unit such functions as shall be prescribed by Act of
Parliament, which may include functions relating to-
((a) administration and the work of public officers
) b) the maintenance of public order:
(c) the preparation and implementation of plans relating
to public services and economic development.

Article Powers of local government bodies— For the purpose of

giving ftull effect to the provisions of article 59 Parliament shall, by law,
confer powers on the local government bodies referred to in that article,
including power to impose taxes for local purposes, to prepare their
budgets and to maintain funds.]
Article 60 The Constitution of the People's Republic ofBangladesh

Comments on Articles 59 and 60

Article 59 provides for local government in every administrative unit
of the Republic which shall be entrusted to bodies composed of persons
elected in accordance with law. In Clause(2) of Article 59, it has been said
that by an Act of Parliament the functions of the Local Government may
be determined relating to administration and the work of public officers,
the maintenance of public order and the preparation and implementation of
plans relating to public services and economic development. Article 60
provides that for giving meaningful effect of Article 59, Parliament shall
by law, confer on the local government bodies the power to impose taxes,
prepare budget and to maintain funds within the local area. In a
democratic polity, for effective involvement of the people at grass-root
level, the idea of local government bodies were conceived by the framers
of the Constitution. As a matter of fact, these Articles are the reflections of
Articles 9 and 11 of the constitution which are truly two important
fundamental principles of State policy, namely, local government bodies
elected by the people of the locality and effective participation by the
people through their elected representatives in local administration.
Local Government is the subordinate administrative system by means
of which the affairs of particular Divisions and Sub-Divisions of a country
are managed. As for example in the United States of America there exists
thtee types of local government: town Government, county Government
and the Compromise System. Each of these types is typical of a particular
section of the country in which it predominates; hence it can be said that
there are three different types of Local Government.
In Bangladesh, the system of Government is unitary and the local
Government system is directly linked Up with the central government.
Thus the local government system is a political institution. This local
government is the core of functional democracy and structural democracy.
These institutions at village, union, upazila etc. perform similar
functions of a State in local level viz, agriculture, health, education and
road development. These institutions being nearer to local people can do
better works by participation of local government bodies. These should be
decentralized and devolution of power is essential. Strengthening of local
government institutions can, therefore, be seen as a positive trend towards
good governance.
cases:
IiiTthe case of Kudrat-E- Ela/ii Ponir, 44 DLR(AD)-3 19, Shahabuddin
Ahmed,C.J. in paragraph 11eiJiiatior k vemment thtQl4
institutions which cannot be abolished without damaging the democratic
fa bic of the country. But since independence from British rule, these
98 The Constitution of the Peoples Republic of !lrin/w/es/: A 'ii ic 0I

institutions fell victim to party politics or evil designs of aLtocratic

regimes, passed through the ordeal of suppression, dissolth ion or
management of their affairs by official bureaucrates or henchman
nominated by Government of the day.
In paragraph 41(vi) the learned Chief Justice held as follows:-
"The other constitutional requirement for these local bodies is that they shall
be entrusted to bodies" composed of persons elected in accordance with law."The
existing local bodies are, therefore, required to he brought in line with Article 59
by replacing the non-elected persons by election keeping in view the provision
for special representation under Article 9. Necessary action in his respect should
be taken as soon as possible in any case within a period not exceeding six months
from date."
In the said decision, Mustafa Kamal,J. held at paragraph 69 as follows:-
"I cannot conceive of a local government existing in terms of Articles 59
and 60 and another outside of it. That will make a mockery of Articles 59
and 60 and will be in direct conflict with Article 7(1) of the
Constitution."
In the same judgment A.T.M.Afzal,J. held at paragraph 52 as under:-
"The contention of the learned Attorney General that the legislature
may without designating an area as an administrative unit for the
purpose of Article 59 in exercise of its plenary legislative power
(Article 65) establish local government is mischievous as it would
amount to defying the mandate of Article 59 and 60 which cannot he
permitted. The argument, therefore, must be rejected."
Thus it now stands that a local body must consists of elected persons and
the local government be constituted in an administrative unit. As in Article
152(1) districts have been designated as administrative units and as such
no designation by law is necessary in case of district area. But designation
by law is necessary in case of areas other than district within Article 59 of
the Constitution.

CHAPTER IV: THE DEFENCE SERVICES

Article 61 : Supreme command—The supreme command of the defence
services of Bangladesh shall vest in the President and the exercise thereof
shall be regulated by law '[and such law shall, during the period in which
there is a Non-Party Care-taker Government under article 58B, he
administered by the President].

'The words, commas and figure "and such law shall, during the period in which there is a
Non-Party Care-taker Government under article 5813. be administered by President" were
inserted by the Constitution (Thirteenth Amendment) Act, 1996 (Act I of 1996), s.4.
A,ifcic.c ()2-64 The Conslituliol, of ihe People's Republic of/Jangladesh 99

Article 62. (1) Recruitment etc., of defense Services—The Parliament

shall by law provide for regulating-
(a) the raising and maintaining of the defence services of
Bangladesh and of their reserves;
(b) the giant of commissions therein;
(c) the appointment of chief of staff of the defence services, and
their salaries and allowances; and
(d) the discipline and other matters relating to those services and
reserves.
(2) Until Parliament by law provides for the matters specified in clause
(1) the President may, by order, Provide for such of them as are not
already subject to existing law.

Article 63. (1) War— War shall not be declared and the Republic shall not
participate in any war except with the assent of Parliament.
1* * * * * * * * * * * * * * * * * * * *

Comments on Articles 61— 63

In our Constitutional dispensation the Ministry of Defenci. : under
the Prime Minister who is the executive head of the Republic. Durii' the
period of Non-Party Care-Taker Government, under Article 58B, the
President remains in charge of the Ministry of Defence. Recruitment,
discipline and all other matters relating to Defence Services are regulated
by a separate law, namely, Military Law.

CHAPTER V: THE ATTORNEY GENERAL

Article 64. (1) The Attorney-General— The President shall appoint a
person who is qualified to be appointed as a Judge of the Supreme
Court to be Attorney-General for Bangladesh.
(2) The Attorney-General shall perform such duties as may be assigned
to him by the President.
(3) in the performance of his duties, the Attorney-General shall have the
right of audience in all courts in Bangladesh.
(4) The Attorney-General shall hold office during the pleasure of the
President, and shall receive such remuneration as the President may
determine.

Clauses (2) and (3) were omitted by the Constitution (Second Amendment) Act, 1973
(Act XXIV of 1973), S.4.
/O() The Constitution of the Peoples Rrpuhlic of Ba;iglade.J Article 04
* * * * * * * * * *

Comments on Article 64
Attorney General of Bangladesh is not a political person. In the United
Staté, Attorney-General is a member of the Cabinet and performs the
functions of those of a law Minister in Bangladesh. In Bangladesh,
normally, an advocate of high standing is appointed as Attorney-General.
He has a right of audience before all courts in Bangladesh. 1-le is the
highest law officer of theRepublic. He is the ex-offlo Chairman of the
Bangladesh Bar Council and also the leader of the entire Bar of
Bangladesh. A custom has developed that with the change of Government,
the Attorney General tenders his resigption.

Chapter Vl-"ADVOCATE GENERAL" was omitted the second proclamations

(Amendment) Order. 1977 (Second Proclamations Order I of 1977), which was added
by the second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation
Order No.1\' oF 1976).
A eticle 65 The Constitution of the People's Republic of Baçkulesl: 101

PART V
THE LEGISLATURE
CHAPTER 1: PARLIAMENT

Article 65. (1) Establishment of Parliament—There shall he a Parliament

for Bangladesh (to be known as the House of the Nation) in which
subject to the provisions of this Constitution, shall be vested the
legislative powers of the Republic
Provided that nothing in this clause shall prevent Parliament from
delegating to any person or authority, by Act of Parliament, power to
make orders, rules, regulations, bye-laws or other instruments having
legislative effect.
(2) Parliament shall consist of three hundred members to be elected in
accordance with law from single territorial constituencies by direct
election and, for so long as clause (3) is effective, the members
provided for in that clause; the members shall be designated as
Members of Parliament.
1[(3) Until the dissolution of Parliament occurring next after the expiration
of the period of ten years beginning from the date of the first meeting
of the Parliament next after the Parliament in existence at the time of
commencement of the Constitution (Tenth Amendment) Act, 1990,
there shall he reserved thirty seats exclusively for women members,
who shall he elected according to law by the members aforesaid
Provided that nothing in this clause shall prevent a woman from being
elected to any of the seats provided for in clause (2).1
(4) The seat of Parliament shall he in the capital.

Comments on Article 65
Article 65 provides for Parliament known as Jatiya Sangshad in
Bangladesh.. The legislative power of the Republic is vested in the
Parliament. Under clause (3) of f Article 65, thirL-3e) seats were
exclusively reserved for women Mernhersj At the moment there is no
women Member in the reserved seats as the period for which the
reservation of seats was fixed had expired on the dissolution of the
Seventh Parliament.

Clause (3) was substituted for the former clause (3) by the Constitution (Tenth
Amendment) Act, 1990 (Act XXXVIII of 1990); s.2
ICZ The Constitution of the Peoples Republic of Bangladesh Article 66

Case:
the case of Fazie Rabbi- 44 DLR 14,
the question raised was whether the election to reserseats for women
members in the Parliament ought to w till Completion of oath of all 300
members of Parliament. F.H.M.H. Rahman,J. on consideration of Articles
65(2)(3) and 67(1)(a) (vacation of seats of members) held ai Paragraph 8
as follows
"When clauses (2) and (3) of Article 65 are read together, it clearly
means that the election to the thirty reserved seats for women
Members of Parliament cannot take place before the general election to
all the three hundred territorial constituencies are held and that results are
published by the Election Commission of the General Election of all the
said three hundred territorial constituencies. It is nowhere provided either
in Article 67( l)(a) or in any other article of the Constitution that if one or
some of the said three hundred representatives declared by direct election
do not make and subscribe the oath or affirmation for a member of the
Parliament as prescribed in the Third Schedule to the Constitution, the
election to the thirty seats exclusively reserved for women Members
under Article 65(3) of the Constitution cannot held."
In the case of Bangladesh & ors-15, MIS Eastern Beverage Industries
Ltd., 23 BLD (AD) 68. Article 65 (1) of Parliament's delegated authority
was considered, (Paragraphs 14, 22 & 26).

Article 66. (1) Qualifications and disqualifications for election to

Parliament—A person shall subject to the provisions of clause (2), be
qualified to be elected as, and to be, a member of Parliament if he is a
citizen of Bangladesh and has attained the age of twenty-five years.
(2) A person shall be disqualified for election as, or for being, a member
of Parliament who-
(a) is declared by a competent court to be of unsound mind
(b) is an undercharged insolvent;
(c) acquires the citizenship of, or affirms or acknowledges
allegiance to, a foreign state;
(d) has been, on conviction for a criminal offence involving moral
turpitude, sentenced to imprisonment for a term of not less than
two years, unless a period of five years has elapsed since his
release; I*

The word "or" was omitted by the Second Proclamation (Fifteenth Amendment) Order,
1978 (Second Proclamation Order No.IV of 1978).
Article 66 The Constitution of' the People's Republic of Bangladesh 103

'(dd) holds any office of profit in the service of the Republic other
than an office which is declared by law not to disqualify its
holders or]
2 * * * * * * *
3 * * * * * * *

(g) is disqualified for such election by or under any law.

4 [(2A) For the purposes of this article a person shall not be deemed to
hold an office of profit in the service of the Republic by reason only that
5 [ hc is a President, 6* Prime Minister], * * * Minister, Minister of State or
7*

Deputy Minister.]
8 * * * * * * * * * *
(4)lf any dispute arises as to whether a member of Parliament has,
after his election, become subject to any of the disqualifications
mentioned in clause (2) or as to whether a member of Parliament
should vacate his seat pursuant to article 70, the dispute shall he
referred to the Election Commission to hear and determine it and
the decision of the Commission on such reference shall be final.
(5) Parliament may, by law, make such provision as it deems
necessary for empowering the Election Commission to give full
effect to the provisions of clause (4).

1
Sub-clause (d(l) was inserted by the Second Proclamation (Fifteenth Amendment)
Order, 1978 (Second Proclamation Order No.IV of 1978).
2 Sub-clause (e) was omitted by the Second Proclamation (Third Amendment) Order,
1975 (Second Proclamation Order No. III of 1975).
Sub-clause (f) was omitted by the Constitution (fourth Amendment) Act, 1975 (Act II
of 1975), s.5.
Clause (2A) was inserted by the second Proclamation (Fifteenth Amendment) Order,
1978 (Second) Proclamation Order No. IV of 1978).
The words and commas "he is a President, Vice-President, Prime Minister" were
substituted for the words "he is a Prime Minister" by the Constitution (Sixth
Amendment) Act, 1981 (Act XIV of 1981), s.3.
6 The word and comma "Vice-President" were omitted by the Constitution (Twelfth
Amendment) Act. 1991 (Act XXVIII of 1991). s.4.
' The words and comma "Deputy Prime Minister." were omitted, ihid;
8 Clause (3) was omitted by the Constitution (Fourth Amendment) Act. 1975 (Act II of
1975), s. 5.
104 The Constitution oj the People's Republic of Bangladesh Article 07

Case:
i HiHML - hai -V
and others, 54 DLR(AD) I, Mahmudul Amin Chowdhury,C.J. while
interpreting Articles 66 and 67 of the Constitution, held in paragraph 13 as
under:
"The petitioner cannot hold that office after he has been sentenced to
suffer imprisonment for over two years which has been upheld by the
Appellate Division. The petitioner lost his seat in the Parliament as he has
incurred disqualification as provided under Article 66 of the Constitution.
Embezzlement of State money by a person who was the President of the
country and using the same for his personal benefit or living or having
properties disproportionate to his known source of income which
definitely come within the ambit of moral turpitude".

In the case of j
II N hp*it A*1. 49
DLR-1, a question was raised as to whether Mr. Justice Shahahuddin
Ahmed, former Chief Justice can be elected as a President of Bangladesh
in view of Article 99(1) of the Constitution. Md. Mozammel Hoque, J. in
that decision held at paragraph 47 after interpreting Article 66(2A) and
99(1) as follows:-
"We further find that under this provision clause (2A) the President,
Prime Minister others are excluded from this Article 66 which does not
mean that the office-holders like the President, Prime Minister and others
will be included as holders of office of profit in the service of the Republic
considering the provisions of Article 99(1) along with the provision of
Article 66(2A) of the Constitution. We are of the view that this clause(2A)
shall not include the office of President, the Prime Minister and other
constitutional office-holders in the category of office of profit in the
service of the Republic by implication."

Article 67. (1) Vacation of seats of members—A member of Parliament

shall vacate his seat-
(a) if fails, within the period of ninety days from the date of the first
meeting of Parliament after his election, to make and subscribe 1'
the oath or affirmation prescribed for a member of Parliament in
the Third Schedule:

The words "before Parliament" were omitted, ibid.

A rekie óS the Co,rstituno, of Ilk' People's Republic of Bun'lidc.ch JO_c

Provided that the Speaker may, before the expiration of that period,
for good cause extend it:
(b) if he is absent from Parliament, without the leave of Parliament, for
ninety consecutive sitting days:
(c) upon a dissolution of Parliament:
(d) if he has incurred a disqualification under clause (2) of article 66:
or
(e) in the circumstances specified in article 70.
(2) A member of Parliament may resign his scat by writing under his hand
addressed to the Speaker, and the seat shall become vacant when the
writing is received by the Speaker or, if the office of Speaker is vacant
or the Speaker is for any reason unable to perform his functions, by the
Deputy Speaker.

Case:
In Special Reference No 1 of 1995, the President referred the matter
under Article 106 of the Constitution to decide the question as to whether
the walkout of all the opposition parties from the Parliament can be
construed as 'absent' from Parliament ''ithout leave of Parliament
occurring in Article 67(1) (b) of the Constitution resulting in vacation of
their seat in Parliament?

"In Article 67 (1) (b) we find the word absent which means simply not
present whatever may he the meaning of walkout and boycott, the net
result is that all the members of the opposition parties in the Parliament
are absent".
In the same decision, while computing 90 consecutive sitting day,
A.T.M.Afzal,C.J, held in paragraph 76 as follows:-
We have, therefore, no doubt in our mind that in computing the
period of ninety sitting days the period between two Sessions as above and
even adjournments in a particular Session between sitting cla y should be
excluded".

Article 68. '[Remuneration], etc., of members of Parliament—

Members of Parliament shall he entitled to such 1[remuneration].

The word "remuneration" was substituted for the word "salaries" b y the Constitution
(Eighth Amendment) Act, 1988 (Act XXX of 1988), s. 6.
 /06 The Constitution of the People's Republic o/ ' Bangludesh Article 09

allowances and privileges as may be determined by Act of Parliament or,

until so determined, by order made by the President.

Case:
In the case oF MMMa
question was raised as whether insertion of Article 3c is beyond the scope
of President's Order No. 28 of 1973. It was held by the Appellate Division
that when the power is there in Article 68 of the Constitution, non-
invocation of the specific power of the concerned President's order is
constitutionally valid.
In this case it was held that the import of Car or Jeep from duty etc,
may offend the sense of decency and dignity of a section of the people
outside the Parliament but on that ground it con not he unconsituticnal.
In that decision, Mustafa Kama[, J. held at paragraph 5 as under:
It is clear from the language of Article 68 of the Constitution that
Parliament has been given as enabling power to enact a legislation providing for
payment of remuneration and allowances and granting of privileges to the
members of the Parliament. The enabling power is there, but while enacting
President's Order No 28 of 1973 the word "Privileges" was not used."
Even without using this word in the Preamble of the President's Order
and in the nomenclature of the President's Order, the Parliament retains
the power to grant privileges to members of Parliament under Article 68 of
the Constitution. When the power is there in the Constitution, non-
invocation of the specific power in the concerned legislation will not make
the privilege granted outside the scope of the concerned President's Order.
In President's Order No 28 of 1973 itself preamble further says as follows:
Now, therefore, in power once of Article 68 of the Constitution of
the People's Republic of Bangladesh and in exercise of all Powers
enabling him in that behalf, the President is pleased to make the following
order". As such Presidents Order No 28 of 1973 was specifically enacted
in pursuance of the powers of Parliament granted by Article 68 of the
Constitution".

Article 69. Penalty for member sitting or voting before taking oath—If
a person sits or votes as a member of Parliament before he makes or
subscribes the oath or affirmation in accordance with this Constitution, or
when he knows that he is not qualified or is disqualified for membership
thereof, he shall be liable in respect of each day on which he so sits or
Article 70 The Constitution of the People's Republic of Bangladesh 107

votes to a penalty of one thousand take to be recovered as a debt due to the

Republic.

Article I[70 (1) Vacation of seat on resignation, etc.—A person elected

as a member of Parliament at an election at which he was nominated as a
candidate by a political party shall vacate his seat if he resigns from that
party or votes in Parliament against that party.
Explanation.- If a member of Parliament—
(a) g present in Parliament abstains from voting, or
(b) nts himself from any sitting of Parliament,
ignoring the direction of the party which nominated him at the election as
a candidate not to do so, he shall be deemed to have voted against that
party.
(2) If, at any time, any question as to the leadership of the
Parliamentary party of a political party arises, the Speaker shall, within
seven days of being informed of it in writing by a person claiming the
leadership of the majority of the members of that party in Parliament,
convene a meeting of all members of Parliament of that party in
accordance with the rules of procedure of Parliament and dete1ine its
Prliamentary leadership by the votes of the majority through division and
if, in the matter of voting in Parliament, any member does not comply
with the direction of the leadership so determined, he shall be deemed to
have voted against that party under clause (1) and shall vacate his seat in
the Parliament.
(3) If a person, after being elected a member of Parliament as an
independent candidate, joins any political party, he shall, for the purpose
of this article, be deemed to have been elected as a nominee of that Party.]

Comments on Article 70
Article 70 was substituted by the Constitution (Twelfth Amendment)
Act, 1991. One may argue both in favour or against the substitution of
Article 70. If the floor-crossing is for horse trading, evil power grabbing
and self-aggrandizement, then it affects on good democratic polities But
the withdrawal of political support on grounds of principle, is a vital
safeguard of the democratic process which keeps a leadership in cheek and
prevents it from riding rough that over diverse interest, one may argue that
threat of withdrawal to support is an effort to keep a government in its
toes.

'Article70 was substituted for the former article 70 by the Constitution (Twelfth
Amendment) Act. 1991 (Act XXVIII of 1991), S. 5.
108 The Constitution of the People's Republic of Bangladesh Articles 71 & 72

Case:
In the case of the 5e.reuirv, &iiecrezariat –VS- .
rrWi 39- 276, a question was raised of
floor crossing by two members of the Parliament by changing their
allegiance to the Party from which ticket they were elected in the
Parliament. Mustafa Kamal, J. while interpreting Article 70 along with
Article 66 (4) (5) of the Constitution held at para graph 25 as follows:
"The subject matter of Article 7() is within the executive domain of the
Election Commission and the Speaker has neither any Constitutional
authority to thwart a decision by the Election Commission by including
the subject matter in a parliamentary proceeding and by pre-empting any
decision under the cover of a ruling which will be a usurpation of the
Constitutional power of the Election Commission. We. therefore, do not
attach any importance to an unedited copy of the proceedings of the
Jatiya Sangshad held on 2 1.4.98 produced for our perusal by the learned
Attorney General."

71. (1) Bar against double membership—No person shall at the same
time be a member of Parliament in respect of two or more constituencies.
(2) Nothing in clause (1) shall prevent a person from being at the
same time a candidate for two or more constituencies, but in the
even of his being elected for more than one----
(a) within thirt y days after his last election the person elected shall
deliver to the Chief Election Commissioner a signed
declaration specifying the constituency which lie wishes to
represent, and the seats of the other constituencies for which he
was elected shall thereupon fall vacant;
(b) if the person elected fails to comply with sub-clause (a) all the
seats for which he was elected shall all vacant; and
(c) the person elected shall not make or subscribe the oath or
affirmation of a member of Parliament until the foregoing
provisions of the clause, SO far as applicable, have been
complied with.

Article. 72. (1) Sessions of Parliament—Parliament shall be summoned.

prorogued and dissolved by the President by public notification, and when
summoning Parliament the President shall specify the time and place of
the first meeting;


Aericle 73 The Constitution of the People's Republic of Bwzglmles/i 109

1 R Pr o vided that a period exceeding sixty days shall not intervene between
the end of one session and the first sitting of Parliament in the next
session:
Provided further that in the exercise of his functions under this clause,
the President shall act in accordance with the advice of the Prime Minister
tendered to him in wi-itingj
(2) Notwithstanding the provisions of clause (1) Parliament shall be
summoned to meet within thirty days after the declaration of the
results of polling at any general election of members of Parliament.
(3) Unless sooner dissolved by the President, Parliament shall stand
dissolved on the expiration of the period of five years from the date of
its first meeting
Provided that at any time when the Republic is engaged in war the
period may he extended by Act of Parliament by not more than one
year at a time but shall not be so extended beyond six months after the
tei inination 01 the war.
(4) If after a dissolution and before the holding of the next general election
of members of Parliament the President is satisfied that owing to the
existence of a state of war in which the Republic is engaged it is
necessary to recall Parliament, the President shall summon the
Parliament that has been dissolved to meet.
2- * * * * * * * * *

(5) Subject to the provisions of clause (1) the sittings of Parliament

shall be held at such times and places as Parliament may, by its rules of
procedure or otherwise determine.

Atide : 73. (1) President's address and messages to Parliament—The

President may address Parliament and may send message thereto.
(2) Al. the commencement to the first session after a general election of
members of Parliament and at the commencement of' the first session of
each year the President shall address Parliament.

The provisos were substituted for the former proviso by the Constitution (Twelfth
Amendment) Act. 1991 (Act XXVII! of 1991). s.6(a).
2 Clause (4A) was omitted b y the Constitution (Twelfth Amendment) Act. 1991 (Act
XXVIII of 1991), s. 6(b).
 The Constitution of il&e People's Repullic ofBnnglade.li it rtule. 73..1 74

(3) Parliament shall, after the presentation of an address by the

President, or the receipt of a message from him, discuss the matter
referred to in such address or message.

1 [73A. (1) Rights of Ministers as respects Parliament- Every Minister

shall have the right to speak in, and otherwise to take part in the
proceeding of, Parliament, but shall not be entitled to vote 2[ or to speak
on any matter not related to his Ministry] unless he is a member of
Parliament also.
(2) In this article, "Minister" includes a Prime Minister, 3**, Minister
of State and Deputy Minister.]

" ^rticle. 74. (1) Speaker and Deputy Speaker—Parliament shall at the
first sitting after any general election elect from among its members a
Speakerand a Deputy Speaker, and if either office becomes vacant shall
within seven days or, if Parliament is not then sitting, at its first meeting
thereafter, elect one of its members to fill the vacancy.)
(2) The Speaker or Deputy Speaker shall vacate his office—
(a) if he ceases to be a member of Parliament;
(b) if he becomes a Minister;
(c) if Parliament passes a resolution (after not less than fourteen days'
notice has been given of the intention to move the rcsolution
supported by the votes of a majority of all the members thereof,
requiring his removal from office;
(d) if he resigns his office by writing under his hand delivered to the
President;
(e) if after a general election another member enters upon that office;
or
(,,fl in the case of the Deputy Speaker, if he enters upon the office of
Speaker.

Article 73A was inserted by the Constitution (Fourth Amendment) Act, 1975 (Act 11 of
1975),s.9.
2 The words "or to speak on an matter not related to his Ministry" were inserted b y the
Constitution (Twelfth Amendment) Act. 1991 (Act XXVIII of 1991), s. 7(a).
The words "Deputy Prime Minister" were omitted by the Constitution (TwelfTh
Amendment) Act, 1991 (Act XXVIII of 1991), s. 7(b).
 Alter/c 75 The Constitution '?f the People's Republic of&in'/ades/e III
(3) While the office of the Speaker is vacant or the Speaker is '[
acti ng as]
President, or if i! ' determined by Parliament that the Speaker is
otherwise unable to perform the functions of his office, those functions
shall be performed by the Deputy Speaker or, if the office of the
Deputy Speaker is vacant, by member of Parhaetas may-be
determined by or under the rules of procedure of Parliament; and
during the absence of the Speaker from any sitting of Parliament the
Deputy Speaker or, if he also is absent, such person as may be
determined by or under the rules of procedure, shall act as Speaker.
(4) At any sitting of Parliament, while a resolution for the removal of the
Speaker from his office is under consideration the Speaker (or while
any resolution for the removal of the Deputy Speaker from his office is
under consideration, the Deputy Speaker) shall not preside, and the
provisions of clause (3) shall apply in relation to every such sitting as
they apply in relation to a sitting from which the Speaker or, as the
case may he, the Deputy Speaker is absent.
(5) The Speaker ur the Deputy Speaker. as the case may be, shall have the
right to speak in, and otherwise to take part in, the proceedings of
Parliament while any resolution for his removal from office is under
consideration in Parliament, and shall be entitled to vote but only as a
member.
(6) Notwithstanding the provisions of clause (2) the Speaker or, as the
case may he, the Deputy Speaker, shall be deemed to continue to hold
office until his successor has entered upon office.
Comments on Article 74 of the Constitution
The office of the Speaker is of great importance. He presides over
the sittings of the Parliament and regulates proceedings of the House and
control its workings. He is expected to maintain strict neutrality, that is
why in Britain there is a convention that the Speaker resigns after being
elected as a Speaker. The Speaker upholds the dignity and privileges of
the house.

75. (1) Rules of procedure, quorum, etc.—Subject to this Constitution—

(a) the procedure of Parliament shall be regulated by rules of
procedure made by it, and until such rules are made shall be
regulated by rules of procedure made by the President;

The words "acting as" were substituted for the words "exercising the functions of the"
b y the Constitution (Fourth Amendment) Act, 1975 (Act 11
of I97), S. 10.
/ /21 •fhc Constitution of the People's Republic of Ban giwleshi Article 76

(b) a decision in Parliament shall be taken by a majority of the votes of

the members present and voting, but the person presiding shall not
vote except when there is an equality of votes, in which case lie
shall exercise a casting vote:
(c) no proceeding in Parliament shall be invalid by reason only that
there is a vacancy in the membership thereof or that a person who
was not entitled to do so was present at, or voted or otherwise
participated in, the proceeding.
(2) If at any time during which Parliament is in session the attention of the
person presiding is drawn to the fact that the number of members
present is less than sixty, he shall either suspend the meeting until at
least sixty members are present, or adjourn it.

76. (1) Standing committees of Parliament—' * * Parliament shall

appoint from among its members the following standing committees, that
is to say—
(a) a public accounts committee;
(b) committee of privileges; and
(c) such other standing committees as the rules of procedure of
Parliament require.
(2) In addition to the committees referred to in clause (I), Parliament shall
appoint other standing committees, and a committee so appointed may,
subject to this Constitution and to any other law—
(a) examine draft Bills and other legislative proposals;
(h) review the enforcement of laws and propose measures for such
enforcement.
(c) in relation to any matter referred to it by Parliament as a matter of
Public importance, investigate or inquire into the activities of
administration of a Ministry and may require it to furnish, through
an authoriscd representative, relevant information and to answer
questions, orally or in writing
(d) perform any other function assigned to it by Parliament.
(3) Parliament may by law confer on committees appointed under this
article powers for-
(a) enforcing the attendance of witnesses and examining them on oath,
affirmation or othcrwise
(/) compelling the production of documents.

The words "At its first meeting in each session" were omitted by the Constitulion
(Fourth Amendment) Act, 1975 (Act 11 of 1975), s. 11.
 u/c 77 The Constitution of the People's Republic of Bangladesh 113

Comments on Article 76
The principal task of legislature is of course, law-making. People elect
their representatives not only to make-laws but also to oversee their
enforcement and administration. Government is required not only iou
ensuring enforcement of laws but also to check and control excesses
committed or transgressions made by the public servants. This power is
exercised by legislature through general discussions in the sessions and in
various parliamentary committees. If the parliamentary committees are
active, vigolous and regular for overseeing and controlling the executive
branch, the greater is the promotion of the cause of good governance.
Further, promulgation of new laws can be discussed in detail and on a
multi-party basis as much within the parliament and in public.
The Public Accounts Committee (PAC) is the top vigilance body of
parliament to scrutinise whether the budget allocations are spent properly.

Article 77. (1) Ombudsman—Parl i amen t may,. bylaw, provide for the
establishment of the office of Ombudsman.
(2) The Ombudsman shall exercise such powers and perform such
functions as Parliament may, by lay, to
investigate rny actinn taken by a Ministr y, a public officer or a
statutory public authority.
(3) The Ombudsman , - I report conce
disc are of his functions, and such report shall be laid before
Parliament.
Comments on Article 77
The word comes from old Swedish Embed, meaning proxy or Power
to act for another. Swedish call "Parliamentary Commissioner of Justice".
It started in Sweden in 1809. It is practised in Scandinavian countries,
New Zealand and the Philippines. The crucial point in Ombudsman's
power in the right to look into 'unreasonable, unfair, oppressive or
unnecessarily discriminatory' acts by government officials. Any one can
file any complaint for deprivation of their freedom in jail, hospital etc. The
ombudsman should be a person of distinguished accomplishment in the
field of law or administration who will ameliorate the sufferings of Urban
people.
The provision is in our Constitution since the day of coming into force
of the Constitution. In 1980, Ombudsman Act has been passed in the
114 The Constitution of the People's Republic of Bangladesh Article 7

Parliament, but the Office of the Ombudsman has not yet been cstablishcd
in Bangladesh till today.
Article 78. (1) Privileges and immunities of Parliament and
members—The validity of the proceedings in Parliament shall not be
questioned in any court.
(2) A member or officer of Parliament in whom powers are vested for the
regulation of procedure, the conduct of business or the maintenance of
order in Parliament, shall not in relation to the exercise by him of any
such powers be subject to the jurisdiction of any court.
(3) A member of Parliament shall not he liable to proceedings in any court
in respect of anything said, or any vote given, by him in Parliament or
in any committee thereof.
(4) A person shall not be liable to proceedings in any court in respect of
the publication by or under the authority of Parliament of any report,
paper, vote or proceeding.
(5) Subject to this article, the privileges of Parliament and of its
committees and member may be determined by Act of Parliament.

Comments on Article 78
This article speaks of the parliamentary privilege and immunities of
the members of the Parliament. The underlying principle has been stated
to be that the people's representatives should he free to express themselves
without fear of legal consequences. This immunity is confined within the
Parliament only. Clause (4) also extend immunity in respect of any
publication, report, paper, vote or proceeding in the Parliament. Thus a
member of Parliament enjoys freedom of speech and publication of
proceedings within the Parliament.
In the case of Ataur Raliman Vs. Md. Nasini, 52 DLR-16, a question
was raised as to whether the statement of the Home Minister in the
Parliament that the High Court is patronizing terrorist by granting them
bail indiscriminatel y, has immunity under Article 78(3) of the
Constitution. In that decision Md. Mozammel Hoque,J. held at paragraph
of that decision as under:-
"Though prima facie the alleged statements appear to be objectionable
and contemptuous, yet we hold that the immunity under Article 78(3) of
the Constitution is wide, absolute and unqualified and such immunity
enjoyed by a member of Parliament cannot be curtailed in any manner
and no court including the Supreme Court can take any legal proceeding


A .s 79 & 80 The Constitution of the People's Republic of Bangladesh 115

against a member of Parliament for anything he says in the Parliament

during the course of business of the Parliament".

Article 79. (1) Secretariat of Parliament—Parliament shall have its own

secretariat.
(2) Parliament may, by law, regulate the recruitment and conditions of
service of persons appointed to the secretariat of Parliament.
(3) Until provision is made by Parliament the President may, after
consultation with the Speaker, make rules regulating the recruitment
and condition of service of persons appointed to the secretariat of
Parliament, and rules so made shall have effect subject to the
provisions of any law.

CHAPTER II: LEGISLATIVE AND FINANCIAL PROCEDURES

Article 80. (1) Legislative Procedure—Every proposal in Parliament for
making a law shall be made in the form of a Bill.
(2) When a Bill is passed by Parliament it shall be presented the
President for assent.
(3) The President, within fifteen days after a Bill is presented to him, shall
assent to the Bill t or, in the case of a Bill other than a Money Bill
may return it to Parliament with a message requesting that the Bill or
any particular provisions thereof be reconsidered and that any
amendments specified by him in the message be considered: and if he
fails so to do he shall be deemed to have assented to the Bill at the
expiration of that period.
(4) If the President so returns the Bill Parliament shall consider it together
with the President's message, and if the Bill is again passed by
Parliament with or without amendments 2 [by the votes of a majority of
the total number of members of Parliament], it shall be presented to
the President for his assent, whereupon the President shall assent to the
Bill within the period of seven days after it has been presented to him,
and if he fails to do so he shall be deemed to have assented to the Bill
on the expiration of that period.

The words 'or declare that he withholds assent therefrom" were omitted by the Second
Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No. IV of
1978).
2
The words "by the votes of a majority of the total number of members of Parliament" were
inserted, ibid.
1/6 The Constitution of the People's Republic of Bangladesh Articles Si

(5) When the President has assented or is deemed to have assented to a

Bill passed by Parliament it shall become law and shall be called an
Act of Parliament.
Article 81. (1) Money Bills— In this Part "Money Bill" means a Bill
containing only provisions dealing with all or any of the following
matters—
(a) the imposition, regulation, alteration, remission or repeal of any
tax:
(b) the borrowing of money or the giving of any guarantee by the
Government, or the amendment of any law relating to the
financial obligations of the Government;
(c) the custody of the Consolidated Fund, the payment of money into,
or the issue or appropriation of moneys from, that Fund:
(d) the imposition of a charge upon the Consolidate Fund or the
alteration or abolition of any such charge;
(e) the receipt of moneys on account of the Consolidated Fund or the
Public Account of the Republic, or the custody or issue of such
moneys, or the audit of the accounts of the Government:
(f) any subordinate matter incidental to any of the matter specified in
the foregoing sub-clauses.
(2) A Bill shall not be deemed to be a Money Bill by reason only that it
provides for the imposition or alteration of any fine or other pecuniary
penalty, or for the levy or payment of a licence fee or a fee or charge
for any service rendered, or by reason only that it provides for the
imposition, regulation, alteration, remission or repeal of any tax by a
local authority or body for local purposes.
(3) Every Money Bill shall, when it is presented to the President for his
assent, bear a certificate under the hand of the Speaker that it is a
Money Bill, and such certificate shall be conclusive for all purposes
and shall not be questioned in any court.

Article 82. Recommendation for financial measures— No Money Bill,

or any Bill which involves expenditure from public moneys, shall he
introduced into Parliament except on the recommendation of the
President:
Provided that no recommendation shall he required under this article for
the moving of an amendment making provision for the reduction or
abolition of any tax.
Articles 83-87 The Constitution of the People's Republic of Bangladesh 117

Article 83. No taxation except by or under Act of Parliament—No tax

shall be levied or collected except by or under the authority of an Act of
Parliament.

Article 84. (1) Consolidated Fund and the Public Account of the
Republic—All revenues received by the Government, all loans raised by
the Government, and all moneys received by it in repayment of any loan,
shall form part of one fund to be known as the consolidated Fund.
(2) All other public moneys received by or on behalf of the
Government shall he credited to the Public Account of the
Republic.

Article 85. Regulation of public moneys—The custody of public

moneys, their payment into and the withdrawal from the Consolidated
Fund or, as the case may he, the Public Account of the Republic, and
matters connected with or ancillary to the matters aforesaid, shall be
regulated by Act of Parliament, and until provision in that behalf is so
made, by rules made by the President

Article 86. Moneys Payable to Public account of Republic—All

moneys received by or deposited with—
(a) any person employed in the service of the Republic or in
connection with the affairs of the Republic other than
revenues or moneys which by virtue of clause (1) of article 84
shall form part of the Consolidated Fund; or
(b) any court to the credit of any cause, matter, account or
persons,
shall be paid into the Public Account of the Republic.

Article 87. (1) Annual financial statement— There shall be laid before
Parliament, in respect of each financial year, a statement of the estimated
receipts and expenditure of the Government for that year, in this Part
referred to as the annual financial statement.
(2) The annual financial statement shall show separately—
(a) the sums required to meet expenditure charged by or under
this Constitution upon the Consolidated Fund; and
(b) the sums required to meet other expenditure proposed to be
made from the Consolidated Fund;
and shall distinguish expenditure on revenue account from other
expenditure.
 1/8 The Constitution of the People's Republic of Bangladesh A,iicles
Article 88. Charges on Consolidated Fund— The following expenditure
shall be charged upon the Consolidated Fund—
(a) the remuneration payable to the President and other
expenditure relating to his off:;
1* * * * * * * * * * * *
(b) the remuneration payable to-
(i) the Speaker and Deputy Speaker;
(ii) the Judges of the 2 [Supreme Court 3***];
(iii) the Comptroller and Auditor-General;
(iv) the Election Commissioners
(v) the members of the Public Service Commissions;
(c) the administrative expenses of, including remuneration
payable to, officers and servants of Parliament, the Supreme
Court 4**, the Comptroller and Auditor-General, the Election
Commission and the Public Service Commissions;
(d) all debt charges for which the Government is liable, including
interest, sinking fund charges, the repayment or amortisation
of capital, and other expenditure in connection with the raising
of loans and the service and redemption of debt;
(e) any sums required to satisfy a judgment, decree or award
against the Republic by any court or tribunal; and
(f any other expenditure charged upon the Consolidated Fund by
this Constitution or by Act of Parliament.

Article 89. (1) Procedure relating to annual financial statement—So

much of the annual financial statement as relates to other expenditure
charged upon the Consolidated Fund may he discussed in, but shall not be
submitted to the vote of Parliament.

Clause (aa) was omitted by the Constitution (Twelfth Amendment) Act. 1991 (Act XXVIII of
1991).s. 8.
2 The words "Supreme Court and High Court" were submitted lot the words 'Supreme Court"
by the Second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation Order
No. IV of 1976.
3 The words "and High Court" were omitted by the Second Proclamation (Tenth Amendment)
Order, 1977 (Second Proclamation Order No. I of 1977).
4 The comma and words "the High Court were omitted, ibid.
 Articles 90 & 91 The Co#istituiion of the People's Republic o
f &znglades/i 119
(2) So much of the annual financial statement as relates to other
expenditure sh:!! be submitted to Parliament in the form of demands
for grants, and Parliament shall have power to assent to or to refuse to
assent to any demand, or to assent to it subject to a reduction of the
amount specified therein,
(3) No demand for a grant shall be made except on the recommendation of
the President.

Article 90. (1) Appropriation Act—As

soon as may be after the grants
under article 89 have been made by Parliament there shall be
introduced in Parliament a Bill to provide for appropriation out of
the Consolidated Fund of all moneys required to meet—
(a) the grants so made by Parliament; and
(h) the expenditure charged on the Consolidated Fund but not
exceeding in any case the amount shown in the annual
financial statement laid before Parliament.
(2) No amendment shall be proposed in Parliament to any such
Bill which has the effect of varying the amount of any grant so
made or altering the purpose to which it is to be applied, or of
varying the amount of any expenditure charged on the
Consolidated Fund.

(3) Subject to the provisions of this Constitution no money shall be

withdrawn from the Consolidated Fund except under
appropriation made by law passed in accordance with the
provisions of this article.

Article 91. Supplementary and excess grants—If in respect of any

financial year it is found—
(a) that the amount authorised to be expended for a particular
service for the current financial year is insufficient or that a
need has arisen for expenditure upon some new service not
included in the annual financial statement for that year; or
(b) that any money has been spent on a service during a financial
year in excess of the amount granted for that service for that
year;
the President shall have power to authorise expenditure from the
Consolidated Fund whether or not it is charged by or under the
Constitution upon that Fund and shall cause to be aid before Parliament a
120 The Constitution oft/ic Peoples Republic of Bangladesh Article 92

supplementary financial statement setting out the estimated amount of the

expenditure or, as the case may he, an excess financial statement setting
out the amount of the excess, and the provisions of articles 87 to 90 shall
(with the necessary adaptations) apply in relation to those statements as
they apply in relation to the annual financial statement.

Article 92. (1) Votes of account, votes of credit, etc. —Notwithstanding

anything in the foregoing provisions of this Chapter, Parliament shall have
power—
(a) to make any grant in advance in respect of the estimated
expenditure for a part of any financial year pending the
completion of the procedure prescribed in article 89 for the
voting of such grant and the passing of a Jaw in accordance
with the provisions of article 90 in relation to that expenditure:
(b) to make a grant for meeting an unexpected demand upon the
resources of the Republic when on account of the magnitude
or the indefinite character of the service the demand cannot he
specified with the details ordinarily given in an annual
financial statement;
(c) to make an exceptional grant which forms no part of the
current service of any financial year:
and Parliament shall have power to authorise by law the withdrawal of
moneys from the Consolidated Fund for the purposes for which such
grants are made.
(2) The provisions of articles 89 and 90 shall have effect in relation to the
making of any grant under clause (1), and to any law to he made under
that clause, as they have effect in relation to the making of a grant with
regard to any expenditure mentioned in the annual financial statement
and to the law to be made for the authorisation of appropriation of
moneys out of the Consolidated Fund to meet such expenditure.
1[(3) Notwithstanding anything contained in the foregoing provisions of
this Chapter, if, in respect of a financial year. Parliament—
(a) has failed to make the grants under article 89 and pass the law
under article 90 before the beginning of that year and has not
also made any grant in advance under this article; or

Clause (3) was added by the Constitution (Twelflh Ainciidincrn) Act. 1991 Act XXVIII of
1991). S. 9.
Article 92 The Constitution of the People's Republic of Bangladesh 121

(b) has failed to make the grants under article 89 and pass the law
under article 90 before the expiration of the period for which
the grants in advance, if any, were made under this article,
the President may, upon the advice of the Prime Minister, by order,
authorise the withdrawal from the Consolidated Fund moneys necessary to
meet expenditure mentioned in the financial statement for that year for a
period not exceeding sixty days in that year, pending the making of the
grants and passing of the law.]

1 * * * * * * * *

Comments on Articles 80-92

(Legislative and Financial Procedure of Parliament)
The Primary function of the Parliament is to make laws. The
legislative Procedure is introduced in the form of bill. There are two types
of Bills, namely, public and private Bills. Public Bill concerns the general
interest of the entire people. Private Bills relates to the interest of some
locality or Corporation, or Particular person or body of persons.
A public bill may be introduced in the House by the Government and
is generally known as a government Bill. Government Bill are of two
kinds, (a) ordinary Public bills and (b) money bills. When a private
member of Parliament introduces a public Bill it is called a private
member public Bill.
In the Constitutional provisions mentioned in this chapter, the
procedure and considerations at different stages including the procedure
and report of select/standing, committee and amendments are elaborately
dealt with.
In other Constitutional provisions the Procedure of withdrawal of Bills
and authentication of Bill by the President for assent are mentioned.
It may be mentioned that a money Bill is a bill which contains matter
mentioned in Article 81 of the Constitution. Certain principles are
followed regarding money Bills as mentioned in the Constitutional
provisions.
The expenditures as mentioned in Article 88 of our Constitution are
charged on the consolidated fund such expenditures are not subject to vote
in Parliament.

Article "92A. Authorisation of expenditure in certain cases" was omitted, ibid., s. 10.
122 The Constitution of the People's Republic of Bangladesh Articles 80-92

Case on Article 85:

In the case of Bangladesh —Vs- Prize Court, 34 DLR(AD) 212, the
Government of Bangladesh filed an application before the Prize Court for
a direction for allocating and transfer of the Prize Fund of the proceedings
in a Prize suit to the Public Account of the Republic of Bangladesh. The
said application was rejected by the Prize Court and subsequently the
Appellate Division affirmed the same. Fazle Munim,J. on a reference to
Article 85 of the Constitution held in paragraph 10 as under:
"There is neither an Act of Parliament nor any rules made by the
President which govern the mode of payment of money constituting the
Prize Count Fund into the Public Account of Republic. In the absence of
any enactment or rules which the Constitution has empowered the
President to make for the regulation of payment of money belonging to
the Prize Count Fund into the Public Account of the Republic,the only
alternative left to the Government is to get an Act passed by Parliament
or have Rules framed by the President pending such enactment"
In the case of Zaminur Rahman —VS- Bangladesh, 31 DLR (AD) 172,
Octroi Muhrir's of Dhaka Pourashava who were entrusted with the duty of
assessing and collecting Octroi on goods and animals imported in the
Municipal area, challenged the validity of notification. In that case K.M.
Subhan, J. on an interpretation of Articles 83 and 84 held in Paragraph 17
as under:
"Now reverting to Article 83 of the constitution it is found that it
Provides thus: "No tax shall be levied or collected except by or under the
authority of an Act of Parliament". If octroi, as is leviable by the
Paurashava, and mentioned in the 4th Schedule of the Ordinance is a tax
as authorized to be levied or collected as mentioned in Article 83 of the
Constitution, then it is to be credited to the consolidated fund mentioned
in Article 84 of the constitution, which is the ultimate source for
utilization for all public purposes. A toll or fee is never intended to be or
becomes a part of the consolidated fund."
Further, it was observed in that case from the provisions of Municipal
Administration Ordinance, 1960 that the cost of service rendered by the
Municipality is derived from the Municipal Fund in which the Proceeds,
all taxes, tolls, rates and fees and other charges, levied by the
Pouravashava are credited.
Article 93 The Constitution of the People's Republic of Bangladesh 123

CHAPTER III: ORDINANCE MAKING POWER

Article 93. (1) Ordinance making power—At any time when
1 [Parliament stands dissolved or is not in session], if the President is
satisfied that circumstances exist which render immediate action
necessary, he may make and promulgate such Ordinances (as the
circumstances) appear to him to require, and any Ordinance so made shall,
as from its promulgation have the like force of law as an Act of
Parliament;
Provided that no Ordinance under this clause shall make any provision-
(i) which could not lawfully be made under this Constitution by
Act of Parliament;
(ii) for altering or repealing any provision of this Constitution; or
(iii) continuing in force any provision of an Ordinance previously
made.
(2) An Ordinance made tinder clause (1) shall be laid before Parliament at
its first meeting following the promulgation of the Ordin'nce and
shall, unless it is earlier repealed, cease to have effect at the expiition
of thirty days after it is so laid or, if a resolution disapproving of the
Ordinance is passed by Parliament before such expiration, upon the
passing of the resolution.
(3) At any time when Parliament stands dissolved the President may, if he
is satisfied that circumstances exist which render such action
necessary, make and promulgate an Oidinance authorising expenditure
1.om the Consolidated Fund, whether the expenditure is charged by the
Constitution upon that fund or not, and any Ordinance so made shall,
as from its promulgation, have the like force of law as an Act of
Parliament.
(4) Every Ordinance promulgated under clause (3) shall be laid before
Parliament as soon as may be, and the provisions of articles 87 and 90
shall, with necessary adaptations, be complied with in respect thereof
within thirty days of the reconstitution of Parliament.

The words within square brackets were substituted for the words "Parliament is not in
session" by the Proclamation (Amendment) Order, 1977 (Proclamations Order No.1 of
1977).
124 The Constitution of the People's Republic of Bangladesh A iticle 93

Comments on Article 93
This is the legislative power of the President when the Parliament is
not in session. The President must be satisfied that immediate action is
necessary for Promulgation of the Ordinance. The Proident is to act on
the advice of the Prime Nlinister, w ho iih et

Case:
In the case of Kudrat-E-Elahz Panir, 44 DLR (AD) 319, the
President's Ordinance making power was questioned on the plea of
malafide and colourable exercise of power, Shahbuddjn Ahamed C.J.
repelled the argument by holding at paragraph 36 as under:-
The question of colourable legislation arises when a thing which cannot
be done directly is sought to be done indirectly. A thing is colourable
which exists in appearance and not in reality. It is "what it purports" to
be, colourability is linked up with incompetency, that is, an authority
doing a thing which he got no power to do. "Colourable" is not tainted
with faith, it is just lack of jurisdiction. In other words, in the case of
law-making, the doctrine of colourable legislation does not involve any
question of bonafide on the part of the legislature. If the legislature is
competent to pass a particular law, the motives which impelled it to act
are really irrelevant".
 Article 94 The Constitution of the Peoples Republic of Bangladesh 125

PART VI
THE JUDICIARY
1—THE SUPREME COURT

Article 94.)(1) Establishment of Supreme Court—There shall be a

Supr'me Court for Bangladesh (to be known as the Supreme Court of
Bangladesh) comprising the Appellate Division and the High Court
Division.
(2 The Supreme Court shall consist of the Chief Justice, to be known as
the Chief Justice of Bangladesh, and such number of other Judges as
the President may deem it necessary to appoint to each division.
(3) The Chief Justice, and the Judges appointed to the Appellate Division,
shall sit only in that division, and the other Judges shall sit only in the
Hig, ,eourt Division.
Q&bject to the provisions of this Constitution the Chief Justice and the
other Judges shall be independent in the exercise of their
Judicial
functions.

Comments on Article 94
This article speaks of establishment of Supreme Court, comprising of
the Appellate Division and the High Court Division. This article
contemplates which Judges will sit in which Divisions. Clause (4) of this
article categorically states that all the Judges of the Supreme Court will
exercise their judicial functions independently subject to the provisions of
this Constitution.

Article 111 of Section 1 of the United States Constitution Expresses

that "the judicial power of the United States shall be vested in one Supreme
Court and in such inferior courts as the congress may from time to time
ordain and establish", Although in the Constitution of Ban g ladesh there is
no clear vesting of judicial power to the Supreme Court, yet from the
scheme of our Constitution it is abundantly clear that all judicial power of
Bangladesh vests in Supreme Court, other inferior courts and tribunals, set
Up under the Constitution and the law.

Chapter I was substituted for the former Chapters I, IA and lB by the Second
Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order NO. I of
1977),
1 26 The Constitution of the People's Republic of Bangladesh Articles 95 & 96

Case:
In the case of Secretary, Ministry of Finance Vs. Masdar Hossain, 52
DLR(AD) 82, Mustafa Kamal,C.J. while interpreting Articles 94(4) and
116A clearly spelt out that the independence of judiciary is one of the basic
pillars of our Constitution and held in paragraph 59 as follows:-
"The independence of the judiciary, as affirmed and declared by Articles
94(4) and 116A , is one of the basic pillars of the Constitution and cannot
be demolished, whettled down, curtailed or diminished in any manner
whatsoever, except under the existing provisions of the Constitution. It is
true that this independence, as emphasized by the learned Attorney
General, is subject to the provisions of the Constitution, but we find no
provision in the Constitution which curtails, diminishes or otherwise
abridges this independence. Article 115. Article 133 or Article 136 does
not give either the Parliament or the President the authority to curtail or
diminish the independence of the subordinate judiciary by recourse to
subordinate legislation or rules. What cannot be done directly, cannot be
done indirectly.

Article 95. (1) Appointment of Judges—The Chief Justice and other

Judges shall be appointed by the President.
(2) A person shall not be qualified for appointment as a Judge unless he is
a citizen of Bangladesh and
(a) has, for not less than ten years, been an advocate of the
Supreme Court: or
(b) has, for not less than ten years, held judicial office in the
territory of Bangladesh: or
(c) has such other qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court. -
In this article. "Supreme Court" includes a court which at any time
before the commencement of the Second Proclamation (Tenth
Amendment) Order, 1977, exercised jurisdiction as a High Court or
Supreme Court in the territory now forming part of Bangladesh.

Article 96. Tenure of office of Judges—Subject to the other

provisions6ithis article, a Judge shall hold office until he attains the
age of 1 [sixty-five] years.

The word "sixty-five" was substituted for the word "sixty-two " by the Constitution
(Seventh Amendment) Act. 1986 (Act I of 1986). s.2.
 Article 97 The Constitution of the People's Republic of Bangladesh 127

(2) A Judge shall not be removed from office except in accordance with
the following provisions of this article.
(3) There shall be a Supreme Judicial Council, in this article referred to
as the Council, which shall consist of the Chief Justice of
Bangladesh, and the two next senior Judges:
Provided that if, at any time, the Council inquiring into the capacity
or conduct of a Judge who is a member of the Council, or a member
of the Council is absent or is unable to act due to illness or other
cause, the Judge who is next in seniority to those who are members
of the Council shall act as such member.
(4) The functions of the Council shall be—
(a) to prescribe a Code of Conduct to be observed by the Judges; and
(b) to inquire into the capacity or conduct of a Judge or of any other
functionary who is not removable from office except in like
manner as a Judge.
(5) Where, upon any information received from the Council or from
any other source, the President has reason to apprehend that a
Judge—
(a) may have ceased to he capable of properly performing the
functions of his office by reason of physical or mental
incapacity-,or
(b) may have been guilty of gross misconduct, the President may
direct the Council to inquire into the matter and report its
finding.
(6) If, after making the inquiry, the Council reports to the President that in
its opinion the Judge has ceased to be capable of properly
performing the functions of his office or has been guilty of gross
misconduct, the President shall, by order, remove the Judge from
office.
(7) For the purpose of any inquiry under this article, the Council shall
regulate its procedure and shall have, in respect of issue and
execution of processes, the same power as the Supreme Court.
(8) A Judge may resign his office by writing under his hand addressed to
the President.
Article 97. Temporary appointment of Chief Justice—If the office of
the Chief Justice becomes vacant, or if the President i s satisfied that the
Chief Justice is, on account of absence, illness, or any other cause, unable
to perform the functions of his office, those functions .hall, until some
128 The Constitution of the People's Republic of Bangladesh Articles 98 & 99

other person has entered upon that office, or until the Chief Justice has
resumed his duties, as the case may be, be performed by the next most
senior Judge of the Appellate Division.

Article 98. Additional Supreme Court Judges—Notwithstanding the

provisions of article 94, if the President is satisfied that the number of the
Judges of a division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly qualified persons to
be Additional Judges of the division for such period not exceeding to years
as he may specify, or, if he thinks fit, may require a Judge of the High
Court Division to sit in the Appellate Division for any temporary period as
an ad hoc Judge and such Judge while so sitting, shall exercise the same
jurisdiction, powers and functions as a Judge of the Appellate Division
Provided that nothing in this article shall prevent a person appointed as
an Additional Judge from being appointed as a Judge under article 95 or as
an Additional Judge for a further period under this article.

Article 99. (1) Disabilities of Judges—Except as provided in clause (2), a

person who has held office as a Jud ge otherwise than as an
Additional Judge shall not, after his retirement or removal therefrom,
plead or act before any court or authority or hold any office of profit
in the service of the Republic not being a judicial or quasi-judicial
office 'the office of Chief Adviser or Adviser].
2. A person who has held office as a judge of the High Court Division
may, after his retirement or removal therefrom, plead or act before the
Appellate Division.

Case:
In the case of Abdul Bari Sarkar Vs. Bangladesh, 46 DLR (AD) 37,
Shahabuddin Ahmed,C.J. interpreted Article 99 and observed in paragraph
5 as follows:-
"Existing Article 99 is the result of an amendment made in 1976.
Original Article 99 totally prohibited the appointment of a retired Judge
"in any office of profit in the service of Republic". The purpose behind
this prohibition was that the high position and dignity of a Judge of the
Supreme Court should be preserved and respected even after his

The words "or the office of Chief Adviser or Adviser" were inserted by the Constitution
(Thirteenth Amendment) Act, 1996 (Act I of 1996), s. 5.
 Article 100 The Constitution of the People's Republic of Bangladesh 129

retirement and, further that if any provision was made for holding of
office, after retirement, then a judge, while in service of the Supreme
Court might be tempted to be influenced in his decisions in favour of the
Authorities keeping his eye upon it future appointment. This Article, after
amendment, lifted the embargo partially making a retired Judge eligible
for appointment "in a judicial or quasi-judicial office". A Judicial or
Quasi-Judicial Office pre-supposes independent dispensation of Justice."

Article '100. Seat of Supreme Court—The permanent seat of the

Supreme Court, shall be in the capital, but sessions of the High
Court Division may be held at such other place or places as the
Chief Justice may, with the approval of the President, from time
to time appoint.

Case:
In the same case of Anwar Jlossain, 41 DLR(AD) 165. B.H.Chowdhury,J.
has held in paragraph 28 as follows:-
"The amendment has purpOried to create seven independent High Court
Division in the name of permanent Bencs. When the question of

Original article 100 has been revived as the impugned amendment of article 100
made by the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988) held
ultravires and declared invalid by the Appellate Division of the Supreme Court, 41
D.L.R. 1989 (AD), p.165.
Article 100 as amended by the said Act runs thus:-
"100. Scat of Supreme Court— (1) Subject to this article, the permanent seat of the
Supreme Court shall he in the capital.
(2) The High Court Division and the Judges thereof shall sit at the permanent seat of the
Supreme Court and at the seats of its permanent Benches.
(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong,
Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such
Benches as the Chief Justice may determine from time to time.
(4) A permanent Bench shall consist of such number of Judges of the High Court
Division as the Chief Justice may deem it necessary to nominate to that Bench from
time to time and on such nomination the Judges shall be deemed to have been
transferred to that Bench,
(5) The President shall. in consultation with the Chief Justice, assign the area in relation
to which each permanent Bench shall have jurisdictions, powers and functions
conferred or that may be conferred on the High Court Division by this Constitution or
any other law; and the area not so assigned shall be the area in relation to which the
High Court Division sitting at the permanent scat of the Supreme Court shall have
such jurisdictions, powers and functions.
(6) The Chief Justice shall make rules to provide for all incidental, supplemental or
consequential matters relating to the permanent Benches."
130 The Constitution of the People's Republic of Bangladesh 4 'tic/cs 101 & 102

interpretation of the Constitution or on a point of general pu)ltC

importance arises, there, are possibilities of divergent views which will
nullify the binding effect as contemplated in Article 111 because the
decision by one permanent Bench. Thus, one of the essential
constitutional duties of the Supreme Court will be rendered nugatory
thereby destroying the one of the basic features of the Constitution. Same
will be the case in matter of Superintendence of the subordinate courts
because of the absence of any central organ to discharge this "duty".
In the same decision Shahabuddin Ahmed, J. reached his conclusion in
paragraph 419 in the following terms:
"(1) The impugned Amendment of Article 100 has broken the "oneness"
of the High Court Division and thereby damaged a basic structure
of the Constitution; as such it is void;
(2) "The impugned Amendment has resulted in uniecoiiciahle
repugnancies to other existing provisions of the Constitution
related to it rendering the High Court Division virtually
unworkable in its original form, and as such, it is void."

Article 101. Jurisdiction of High Court Division—The High Court

Division shall have such original, appellate and other jurisdictions,
powers and functions as are or may be conferred on it by this
Constitution or any other law.

Comments on Article 101

Judiciary with the system of Constitution and laws make legal decisions
by protecting the rights of individuals to live, work and enjoy without fear
or favour. When political philosopher Hobbes described life in the State of
Nature as "Poor, solitary, nasty, brutish and short,"he had in mind the
absence of laws and authority to enforce the rule of law. Judicial review of
fundamental rights as enumerated in the Constitution is a safe guard of
citizens liberty and property.

Article 102. (1) Powers of High Court Division to issue certain orders
and directions etc. —The High Court Division on the application of any
person aggrieved, may give such directions or orders to any person or
authority, including any person performing any function in connection
with the affairs of the Republic, as may be appropriate for the enforcement
of any of the fundamental rights conferred by Part III of this Constitution.
Article 102 The Constitution of the People's Republic of Bangladesh 131

(2) The High Court Division may, if satisfied that no other equally
efficacious remedy is provided by law---
(a) on the application of any person aggrieved, make an order-
(i) directing a person performing any functions in connection with the affairs
of the Republic or of a local authority to refrain from doing that which he is
not permitted by law to do or to do that which he is required by law to do;
or
(ii) declaring that any act done or proceeding taken by a person performing
functions in connection with the affairs of the Republic or of a local
authority has been done or taken without lawful authority and is of no legal
effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody be brought before it so that it may satisfy
itself that he is not being held in custody without lawful authority or in an
unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office to show
under what authority he claims to hold that office.
(3) Notwithstanding anything contained in the forgoing clauses the High
Court Division shall have no power under the article to pass any
interim or other order in relation to any law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub-clause Ri) of
clause (2), an interim order is pra y ed for and such interim order is
likely to have the effect of—
(a) prejudicing or interfering with any measure designed to implement any
development programme, or any development work: or
(b) being otherwise harmful to the public interest, the High Court Division
shall not make an interim order unless the Attorney-General has bean
given reasonable notice of the application and he (or an advocate
authorised by him in that behalf) has been given an opportunity of being
heard, and the High Court Division is satisfied that the interim order
would not have the effect referred to in sub-clause (a) or sub-clause (h).
(5) In this article, unless the context otherwise requires, "person" includes
a statutory public authority and any court or tribunal, other than a
court or tribunal established under a law relating to the defence
services of Bangladesh or any discipline force or a tribunal to which
article 117 applies.
 132 The Consrirurin of the People's Republic of Bwn,'ladesl, Article 102

Comments on Article 102

Petitions are filed for exercising writ jurisdiction under Article 102 of
the Constitution Under Article 102(1), the High Court Division on an
application of any person aggrieved, may pass appropriate order for
enforcement of fundamental rights as enumerated in Part Ill of the
Constitution.
Under Clause (2) of Article 102, High Court Division may make an
order or directions or writs in the nature of mandamus , prohibition,
certiorari, habeas corpus and Quo worranto, which ever may he
appropriate, for the enforcement of any of the rights conferred by this part.
It may be stated that variety of rights may come up for enforcement
before the High Court Division. The following rights are given by law:

Recognised by law:-
(1) Fundamental rights given by the Constitution;
(2) Constitutional rights not having the status of fundamental
rights;
(3) Statutory right;
(4) rights flowing from subordinate legislation;
(5) rights based on case law;
(6) customary rights;
(7) contractual rights;
Any person aggrieved may knock at the door of the High Court Division
for enforcement of the fundamental rights conferred by Part 111 of our
Constitution: In our jurisdiction, the concept of '_ta!di' has been
gradually expanded from the case of Mukhlesur Rahman to the case of
Dr.Mohiuddin Farooque. These cases will be mentioned herein below in
extenso to understand the development of idea of standing in exercise of
jurisdiction under Article 102 of the Constitution.
Normally, by the term "locus standi" we mean the right of an
individual or a group of individuals to bring grievances before the High
Court Division for adjudication of their legal rights. It is palpably clear
that individual person aggrieved by any action or inaction on the part of
the state or public authority has got right to move the High Court Division,
To mention here, the question of 'locus standi' has got new dimensions in
various fields of activities of India due to judicial decisions of the
Supreme Court of India and various High Courts of the provinces of India.
Article 102 Tire Constitution of the People's Republic of Bangladesh 133

I may mention here that in India a letter to the Supreme Court of India
opened the door of public interest litigation in that country and thereby
expanded the meaning of locus standi for the good of the society at large.
This is indeed, an innovative method evolved by the Judges of the
Supreme Court of India for the purpose of providing easy access to justice
to the weaker and disadvantaged communities of India.
In Indian Jurisdiction, Supreme Court under Article 32 and High
Courts under Article 226 of the Constitution of India have treated letter as
a writ petition and have taken action upon it. It is found that apart from an
aggrieved person, a public spirited individual or a social action group have
filed writ petitions for enforcement of Constitutional or legal rights of a
class of persons who by reason of poverty, disability, economic disabilities
could not approach the Supreme Court or High Courts of India for redress
of their grievances.
It may be mentioned that the case of M.C.MeIiia Vs. Union of India,
AIR 1987 SC 905, was entertained by the Supreme Court of India as a
writ petition of a public interest litigation.
In our jurisdiction, BELA's case is the first case on enviroitirient as a
public interest iitigation.
With regard to the jurisdiction of the High Court Division to issue
certain orders, directions and writs, it may be stated that apart from
enforcement of any of the fundamental rights conferred by Part ill of the
Constitution, the High Court Division may, if satisfied that no other
equally efficacious remedy is provided by law, then on the application of
any person aggrieved, the High Court Division can issue the following
directions, namely, (1) Mandamus and prohibition, (2) Certiorari, (3)
habeas corpus and (4) Quo WalTanto. As a matter of fact, these above
English Writs had been incorporated by Article 102(2) of the Constitution.

(1) Mandamus and Prohibition In the language of Article 102(2)(a)(i)

and (ii), it is a direction on a person performing any functions in
connection with the affairs of the Republic or of a local authority to do
what he is required by law to do or to refrain from doing that which he is
not permitted by law to do.
Mandamus is a public law remedy and will not,thereforc, be available
in respect of duties of private nature. In other words, writ of mandamus, is
issued for securing performance of public duties, performance of which
has been wrongfully refused. This writ is a most extensive remedial
nature. It is to he remembered that condition precedent for issue of this
 134 The Constitution of the Peoples Republic of Bangladesh Article 102

mandamus is the presence of statutory right. The public officials or public

body will be compelled to perform public duty which they failed to
perform. Prohibition prevents an order or decision being made. There are
instances that when an action has been done in violation of statutory
provisions or has no statutory basis wilt of prohibition has been issued.
Mandamus is an affirmative remedy, a direction or command to do any
thing, but writ of prohibition is purely negative as one is directed that
something be left undone. Mandamus is normally issued in case of
infringement of fundamental rights, statutory order and executive
order(non-statutory).
(2) certiorari The main function of the writ of certiorari is to curb
excess jurisdiction and to keep inferior courts and tribunals within
their bounds. When no other efficacious remedy is provided by way of
appeal from the decision of inferior courts or tribunals, jfr High Court
Division can review the decisions of those courts. This scope of
certiorari has made it a very suitable method to control administrative
tribunals. In case of violation of natural justice or an error of law, the
High Court Division can declare the act or proceedings as without
lawful authority. Broadly speaking, an essential feature of a writ of
certiorari is the exercise of control over judicial, quasi-j u dicial an d
other bodies wherein no appeal is provided for. This writ can be issued
to correct any error of law. When an administrative tribunal oriiiiits
an error of law apparent on the face of the record it can heJorrected by
issuing a writ of certiorari. The writ of certiorari quashes the decision
of judicial and quasi-judicial tribunal. When a writ of ceitioian is
moved, the High Court Divisionthay also call for the records, if
necessary. Normally, certiorari is issued in the following
circumstances:-
W the decision violates fundamental right
( the decision violates the law or without jurisdiction
( the decision is void
( the decision is against natural justice, rnalafide, 2 verseor
_ based
on non-application of mindfBut mere, mis-application of kiwis
not a ground for certiorari
(3) Quo-Warran go This writ of Quo warranto is issued to show by what
authority a person is holding or purporting to hold a public office. The
High Court Division can enquire into the legality of the claim of a
party to an office. A writ of qio-warranto may be applied at the
Article 102 The Constitution of the People's Republic of Bangladesh

instance of any person even who has no personal or special interest. A

stranger can also file such writ _petition. It is a discretionary relief
Which ihc Supreme Court may grant or refuse according to the facts
and circumstances of each case. Thus, the Supreme Court may refuse
it where the application was actuated by ill-will, or malice or ulterior
motive. It is a settled practice not to interfere with the discretion of the
High Court Division, if the discretion has not been exercised
reasonably or perversely.

(4) Habeas Corpus: The term "Heheas Corpus" literally means" have the
body". Haisbury in Article 40, Page 24 of laws of England, Third
Edition, Volume II says as follows:-
"The writ of habeas corpus and Sub-jiciendum, which is commonly
known as the writ of habeas corpus, is a prerogative process for
securing the liberty of the subject by affording an effective means of
immediate release from unlawful of unjustifiable detention, whether
in prison or in private custody".
As regards jurisdiction, it is stated in Article 45 at page 27 of the same
volume that:
"The right to the writ is a right which exists at common law
independently of any stature, though the right has been confirmed and
regulated by statute."
The writ of habeas corpus thus provides a powerful and effective
safeguard for personal liberty against unwarranted and arbitrary
encroachment therein. Habeas Corpus Act of 1940, 1679 and 1816 were
passed in England to regulate, by statute , the procedure relating to the
prerogative writ of habeas corpus but the jurisdiction to grant the said writ
is independent of statute. The jurisdiction to issue, in England, the writ of
habeas corpus, as already stated, rests on common law. In America, which
has a written Constitution, there is no mention about the writ of habeas
corpus therein except as to its suspension in paragraph 2 of section 9 of
Article I which is as follows:-
"The privilege of the writ of habeas corpus shall not he suspended,
unless when in cases of rebellion or invasion the public safety may
require it."

(From M.A.Jabir's Judgment in the case of Bangladesh Vs, Ahmed Nazir,

27 DL:R(AD) 41.
136 The Constitution of the People's Republic of Bangladesh Article 102

Affidavit & Affulavits-in-opposition : It is a general rule that the writ

petition is disposed of on Affidavits and Affidavits-in-opposition. If the
allegations in the petitioner's affidavit are not adequately met by a proper
affidavit-in-opposition on behalf of the respondents, the averments in the
petitioner's affidavit shall he taken to have been admitted. In case of
specific allegation of fact made in the affidavit of the petitioner, a mere
denial thereof in the affidavit-in-opposition will lead to the conclusion that
the petitioner's allegation goes unanswered.
Writ petition being in the nature of a summary proceeding, normally
evidence is not taken.

Locus Standi : By judicial interpretations of the Supreme Court of

Bangladesh, the concept of locus standi i.e. "any person aggrieved" has
been gradually extended to other persons as well. For filing an application
under Article 102 of the Constitution it is not necessary that the person
must be personally aggrieved. Any person or group can issue relief in the
interest of the general public or for the well being of the society and not
for its own purpose. This idea has changed the traditional doctrine of locus
standi and has opened the door of the Supreme Court even when the
person concerned has no personal interest in moving the application. Thus
in our jurisdiction gradually the door of public interest litigation is
expanding which will usher in better days f ecrnmon man of our
SOCICty. The following case of the Supreme Court illustrate the
proposition.

Case:
In the case of Dr.Mohiuddin Farooque Vs. Ban gladcs/z, 49
DLR(AD)1, Dr.Mohiuddin Farooque, Secretary General of Bangladesh
Environmental Lawyer's Association, shortly BELA filed a writ pçj.ition
in the nature of public interest litigation undé?Aitile 102(1)(2) of the
Constitution. in that case, the burning question of locus standi was
answered by the Appellate Division.
In that decision, Mustafa Kamal,J. held at paragraph 55 as under:
"We hold therefore that the association-appellant was wrongly held
by the High Court Division not to be a "person aggrieved in the facts
and circumstances of the case and we hold further that the appellant
is "any person aggrieved" within the meaning of both Article 102(1)
and Article 102(2)(a) of the Constitution."
Article 102 The Constitution oft/ic People's Republic ofBançlades1 137

In the same decision, Latifur Rahman,J. at paragraphs 62 and 77 held as

follows:
"From the Language used in Article 102(1) of our Constitution, "any
person aggrieved" may move the High Court Division for
enforcement of fundamental right conferred by Part III of the
Constitution. Under Article 102(2)(a), the High Court Division may
make an order on the application of any "person aggrieved" in the
nature of mandam and certiorari except for an
application fo habeas orpus or quo-warranto'

"Thus I hold that a person approaching the court for redress of a

public wrong or public injury has sufficient interest (not a personal
interest) in the proceedings and is acting bonafide and not for his
personal gain or private profits, without any political motivation or
other oblique consideration has locus standi to move the High Court
Division under Article 102 of the Constitution."
Further, in the same dccision,B.B.Roy Chowdhury,J. in paragraph 97
opined as under:-
"The inescapable conclusion, therefore, is that the expression
"person aggrieved" means not only any person who is personally
aggrieved but also one whose heart bleeds for his less fortunate
fellow beings for a wrong done by the Government or a local
authority in not fulfilling its constitutional or statutory obligations. It
does not, however, extent to a person who is an interloper and
interferes with things which do not concern him. This approach is in
keeping with the constitutional principle that are being evolved in the
recent times in different countries."
In the case of Kazi Mukhlesur Rahman Vs. Bangladesh 26 DLR(SC)
44, the appellant challenged the Delhi Treaty, although he was not a
resident of the Southern half of South Berubari Union No.12 or of the
adjacent enclaves involved in the Delhi Treaty and as such his locus standi
was in question. The Supreme Court found that Kazi Mukhlesur Rahman
has locus standi to challenge the transfer of the territory.

In the case of ETV Ltd. Vs. Dr. Chowdhury Mahmood Hasan, 54

DLR(AD) 130, K.M.Hasan,J. after considering the two decisions of
Dr.Mohjudcfjn Farooque 's case and Kazi Mukhlesur Rahman, held at
paragraph 73 as follows:
138 The Constitution of the Peoples Republic of Bangladesh Article 10-1

"Such gross violation of fundamental rights should shock the judicial

conscience and force it to leave aside additional procedure which
shackles the locus standi and gives standing to the petitioners. Unless
this court responds to it,Government agencies would be left free to
subvert the rule of law to the detriment of the public interest. We
must, therefore, reject the preliminary objection raised challenging
the locus standi of the petitioners in the writ petition, since important
issues relating to public wrong and rule of law involved. It being a
litigation affecting public wrong, the petitioners have interest and
locus standi to file petition."
In the case of Professor Nurul Islam and others Vs. Ban glades/i, 52 DLR
413, the question of locus standi to file the writ petition was resolved by
Md. FazIul Karim,J. in paragraph 14 as follows:-
"It Cannot be said that such associations of individuals do not feel
aggrieved or feel concerned when any action or inaction on the part
of the functionaries of the State or public sector
organizations/enterprise, has the effect of endangering human health.
Any wrong doing or invasion of public rights, against the aims and
objects of such societies does clothe them with the necessary locus
standi to move the courts of law."
In the case of Bangladesh San gbad Patra Parisliad (BSP) Vs. The
Government of Bangladesh, 43 DLR(AD) 126, BSP, an Association of
owners of news papers and news organizations, registered under the
Societies Registration Act challenged some sections of the Newspaper
Employees(conditions of Service) Act, 1974 (Act XXX of 1974) as
unconstitutional.
In that decision, the real question was, whether the petitioner has the
right to move the writ petition in a representative capacity.
It was argued on behalf of the petitioner that the petitioner was
recognised by the Government as part of the award-making process and as
such as an association of the Newspapers it had sufficient interest in the
subject matter and it not just a busy body.
Mustafa Kamal,J. held in paragraph 11 as under:
The fact that the petitioner was all along associated with the
award-making process does not make it an aggrieved person and the
preseit case is definitely not a public interest litigation. The
petitioner is not espousing the cause of a down trodden and deprived
section of the community unable to spend money to establish its
fundamental rights and enforce its constitutional remedies. It is not
Article 102 The Constitution of the People's Republic of Bangladesh 139

acting probona publico but in the interest of its members. If the

petitioner is refused entry on the threshold point, that will not be the
end of the world for newspaper owners and news organisations.
Their locus standi as well as means of access to the courts are
without doubt assured.

Basic structure theory

In the case of Anwar Hossain Chowdhury and others Vs. Bangladesh,
44 DLR(AD) 165, in paragraph 371, Shahabuddin Ahmed, J. held as
follows:-
"Inspite of these vital changes from 1975 by destroying some of the
basic structures of the Constitution, no body, challenged them in
court after revival of the Constitution; consequently, they were
accepted by the people, and by their acquiescence have become part
of the Constitution. In the case of Golok Nath, the Indian Supreme
Court found three past Amendments of their constitution invalid on
the ground of alteration of the basic structures, but refrained from
declaring them void in order to prevent chaos in the national life nd
applied the doctrine of prospective invalidation for the future. In ok..
case also, the past Amendments which were not challenged have
become part of the Constitution by General acquiescence. But the
fact that basic structures of the Constitution were changed in the past
cannot be and is not, accepted as a valid ground to answer the
challenge to future Amendment of this nature, that is, theimpugned
Amendment may be challenged on th e gound that it has altered the
basic structure of the Constitution."
Local Authority: The Supreme Court can interfere with theaction Oi a
'local authority' set up bya statute. Where the local authority is supposed
to act within the limits of the statutory boundary and fail to do so,
mandarin. may be issued for the afice that act. Similarly, a
1cal authority having a legal grievance can also file a writ petition. Thus
local authority is opposed to private authority having no sanction of law.

Cases:
In the case of Holy Family Red Cross hospital Vs. M.M. Yousuf, BCR
(1981) Supreme Court 230, leave was granted to consider whether the
Holy Family Red Cross Hospital which is managed by a governing body is
an "authority" within the meaning of Article 102 of the Constitution and
thus amenable to the writ jurisdiction of the High Court Division? In that
140 The constitution of the Peoples Republic of Bang/odes/i Article /02

decision it was held that the Holy Family Red Cross Hospital is not an
authority and Ruhul Islam, J. held atparagraph 7 as under:-
"On perusal of the affidavis we are satisfied that Holy Family Red
Cross Society continued to function as a private body under the
control and management of a governing body. The Constitution of
governing board as per terms of the agreement shows that most of
the members of the governing Board are representatives of the
hospital. Thus effective control over the management and
administration of the Holy Family Red Cross Hospital, was to be
continued to be exercised by the said hospital."
In the case of B.S.I. Corporation Vr. Mahhuh Hosain, 29 DLR(SC) 41,
Mahmud Husain, C.J. has dealt with the term 'local authority' in
paragraph 24 as under:-
"These principles as have been referred to above, have been by and
large, incorporated in the law of j udicial review as contained in
Article 102(2) of the Constitution. This Constitution power of a
superior court can be invoked and the necessary direction or
declaration can he given or made only against a person performing
functions in connection with the affair of the Republic or of a local
authority. The public character of the functionary against whom the
necessary relief can be given under the constitutional power is
manifest from the terms of the constitutional provision itself, as it
requires that such functionary must be acting in the discharge of
some public duties relating to the affairs of the State. The term 'local
authority' has not been defined in the constitution but according to
the definition as given in section 3(311D tj-xe -a] Clausys Act it
is clear that such term implies a public duty authorised by law or by
the Government to carry on some administrative function. A public
corporation, as we have already noticed, is entrusted with some
portion of the sovereign function of the Government which is to he
performed by the Corporation for the benefit of the public and such a
corporation is undoubtedly a person performing functions in relation
to the affairs of the Republic within the meaning of Article 102(2) of
the Constitution. Whatever uncertainty there might have been in
regard to such an interpretation has now been removed by an
amendment of the definition clause to the effect that a local authority
includes a statutory body. Once it is accepted that an appropriate
order under Article 102(2) of the Constitution may be made against a
public corporation the court may make an order restraining it from
,l Ic 102 T1i Constitution of the People's Republic of Bangladesh 141

doing what is not permitted by law to do or directing it to do what it

is required by law to do or declaring that an act done or a proceeding
taken by a public corporation has been done or taken without any
lawful authority. Dismissal of an employee of such a corporation in
violation of statutory rules or regulations is actionable for the
purpose of restoration to office according to the constitutional
mandate. Dismissal of an employee in violation of the principle of
natural justice is also actionable in a similar way as the principle of
natural justice must be regarded as a part of the Statute, unless it is
excluded therefrom by specific words."
In the case of A . Z. Rafique Ahmed Vs. Bangladesh Council of
Scientific and Industrial Research and others, 32 DLR(AD) 83, Ruhul
Islam,J, observed as to what local authority means and held at paragraph
14 as follows:-
"There is no doubt that the different provisions of the resolution
satisfy the requirement to constitute a local authority' as defined
under General Clauses Act. As per General Clauses Act as amended
by P.0.147 of 1972 "local authority" means: A Poura Shabha. Zilla
.
Board, Union Panchayet. Board of Trustees of a port or other
aut orities, egaily entitle to or entrusted by the Government with
the control or management of a- Mu nicipal o—rTo— caT--fu—ndor any
corporation or other body or authority constituted or estiiblisHed b -y
the Government under any law.
In the case of Manjurul Huq -Vs- Bangladesh and others, 44 DLR
239, the similar proposition has been established that the Bangladesh
Diabetic Association is not a local authority.
Natural Justice:
Another judicial rationale for requirement of reasons is that a person
affected by an adverse order is entitled to know why the decision has gone
against him or her. Our Supreme Court has held that the absence of
reasons leads to denial of Justice because the rule requiring reasons to be
given in support of an order is, like the principle of audi alterain partem
which is the basic principle of natural justice.
With regard to penal offences it can be said that no person can he
punished retrospectively in respect of an act committed which was not an
offence when committed. It is a basic principle of natural justice that no
one can be penalized on the ground of conduct which was not penal on the
day it was committed.
142 The Constitution of the Peoples Republic of Bangladesh Article 102

The question of rules of natural justice will be relevant on the statutory

provisions under which action has been taken and the facts and
circumstances of each case.
In the case of administrative orders, where civil rights are affected, the
question of natural justice is relevant.
Where the statute itself prohibit the application of the principle of
natural justice, one cannot ask enforcement of show cause/hearing. In the
case of domestic inquiry, reasonable opportunity must be provided to the
delinquent employee.
If a statutory provision either specifically or by necessary implication
exclude the application of any principles of natural justice, then the court
cannot ignore the mandate of the law.
In the case of malafide and fraudulent activities, there is no obligation
to offer an opportunity of being heard. Fraud vitiates everything.
In case of disciplinary proceedings against students, a fair hearing
ought to be given.
Further, in case of enhancement of sentence, suo nioto rule for
enhancement is givien before hearing.
Cases:
In the case of M.A.Hai Vs. TCB, 32 DLR(AD) 46, Ruhul Tslam,J.
discussed about the principles of natural justice in an enquiry proceeding
and held in paragraph 6 as follows:-
"If the employer is an 'authority', any order passed in violation of the
principles of natural justice can be effectively challenged by a writ
petition. In this case the employer is the Bangladesh Trading Corporation
which is a statutory body. Therefore, Bangladesh Trading Corporation,
being undoubtedly an 'authority', the applicability of the principles of
natural justice does not depend upon the fact that the proceedings are
held under statutory rules or not. In such a case, irrespective of the
authority framing any rules, in an enquiry held against an employee on
the charges framed against him for dismissal from service, the principles
of natural justice must be complied with."
In that decision, the learned Judge further held that the appointing
authority while inflicting a higher punishment is expected to assign some
reasons for coming to such decision, and held at paragraph 9 as follows:-
"The enquiry officer found the appellant guilty of negligence and
recommended for administering a warning for future latches but the
appointing authority considered that removal of the petitioner was
Article 102 The Constitution of the People's Republic of Bangladesh 143

warranted in the facts and circumstances of the case. While the

appointing authority is not bound to accept the recommendation of the
enquiry otticer, but in inflicting a higher punishment the appointing
authority is expected to assign some reasons for coming to such a
decision. There are good authorities for the proposition that in such case
when no reason has been given by the appointing authority, the
impugned order is not immune from attack being violative of the
principles of natural justice. Hence, on this ground also the impugned
order of dismissal is liable to be declared illegal."
In the case of Dhaka University Vs. Zakir Ahmed, 16 DLR(SC) 722,
Hamoodur Rahman, J. has enunciateq the principles of natural justice in
paragraph 29 in the following words:
ç
"Nevertheless, the general consensus of judicial opinion seems to he
that, in order to ensure the "elementary and essential principles of
fairness" as a matter of necessary implication, the person sought to be
affected must at least be made aware of the nature of the allegations
against him, he should be given a fair opportunity to make any relevant
statement putting forward his own case and "to correct or controvert any
relevant statement brought forward to his prejudice". Of course, the
person, body or authority concerned must act in good faith, but it would
appear that it is not bound to treat the matter as if it was a trial or to
administer oath or examine witnesses in the presence of the person
accused or give him facility for cross examining the witnesses against
him or even to serve a formal charge sheet upon him. Such a person or
authority can obtain information in any way it thinks fit, provided it
gives a fair opportunity to the person sought to be affected to correct or
contradict any relevant statement prejudicial to him. In other words, "in
order to act justly and to reach just ends by just means", the Courts insist
that the person or authority should have adopted the above "elementary
and essential principles" unless the same had been expressly excluded by
the enactment empowering him to so act".
The following cases may be considered for the above proposition.
(1) Chittagong Medical College —VS- Sha/iravar Murshed, 48 DLR
(AD) 33 (Paragraph 18 and 26).
(2) Bangladesh —VS- Tajul Islam, 49 DLR (AD) 177, (Paragraphs 15,
17 and 21).
(3) Ilelaluddin Ahmed —VS- Bangladesh, 45 DLR (AD) 1 (Paragraph
29)
144 The ('onstitunon of the Peoples Republic of Bangladesh Anécic 102

(4) Janina Oil Company Ltd-VS- S. K. Dev 44 DLR (AD) 104

(Paragraph 22)

Promissory Estoppel
There can be no estoppel against the constitution and statute. Acting
on the assurance or representation is enough for applicability of the
doctrine of promissory estoppel. On the basis of the principle of
promissory estoppel the court can direct the Government on a writ petition
to carry out the promi s e made.
This doctrine would apply when the promisee would suffer due to rn-
filment of the promise of the promissor.
This doctrine would not be applicable when the petitioner knew all the
fact and there was no question of his being mislead by the authority or the
Government. This doctrine must be pleaded in the petition.

Cases:
In the case of A.B.M.Quahil Vs. Ministr y of 1-lea/i/i, 44 DLR 385,
B.B.Roy Choudhury,J. had explained the doctrine of Promissory estoppel
at paragraph 18 as under:-
"Had there been any assurance as claimed even then the plea could
not be invoked because it is a settled principle that where a statute
imposes a duty of a positive kind, not avoidable by the performance
of any formality, for doing of the very act which the party suing seek
to do. it is not open to the opposite party to set up an estoppel to
prevent it (Ref: Maritime Electric Co.Ltd. Vs. General Dairies Ltd..
AIR 1973 PC page 115). A promise cannot supersede a statutory
duty of a public authority. I thus find no substance in this
submission".
In the case of Collector of Customs, Chittagong Vs. A.Hannan, 42 I)LR
(AD) 167, Badrul Haider Chowdhury,J. held at paragraph 20 as under:-
"The respondent acting upon the Solemn Promise made by the
appellant incurred huge expenditure and if the appellant is not held to
its promise, the respondent would be put in a very disadvantages
position and, therefore, the principle of promissory estoppel can also
be invoked in this case. It is not necessary to cite further decisions on
the well-settled principle of promissory estoppel."
Article 102 The Constitution of the People's Republic of Bangladesh 145

In the case of Abdur Rahim Vs. Bangladesh, 48 DLR 538,

Md.Mozammel Hoque,J. explained the principle of promissory estoppel in
paragraph 25 in the following terms:
"The Government Promised to absorb the existing teachers and staff
of the College when it will be nationalised and now the Government
is not entitled to backout from its own promise which is written
down in a registered document executed by the Government and the
Collegeauthority -------------------------------------------------------------
-------------------------------------------------------once the Government
authority makes a promise and in pursuance of such promise
something is done, subsequently it cannot back out from its own
promise and that is why the y are debarred by the promissory
estoppel."

Public interest litigation.

Public interest litigation is a proceeding in which an individual or
group seeks relief in the interest of the general public and not for its own
purpose. Public interest litigation has enlarged and enriched the traditional
doctrine of lOCUS standi and had opened ri'.v remedies and procedures. in
our jurisdiction, the case of Dr.tvloliiuddin Farooque-Vs- Bangladesh, 49
DLR(AD) I is the first and most important case which illustrate the above
proposition.

Res judicata:
In writ jurisdiction, where a decision has been delivered on merits, the
rule of constructive 1-es judicata will be applicable to bar a second writ
application founded on the same cause of action or as regards relief, which
were asked for but not granted in the previous proceeding under Article
102, or as regards a ground which ought to have been taken in the
previous application.

Legitimale Expectation.
Before the law can protect a legitimate'expectation, it must be both
legitimate and an expectation. The expectationmust also be legitimate to
attract the doctrine of legitimate expectation. This expectation must be
protected against the whims and capricious of the Government. It is to be
protected in two ways. The first one is procedural expectation, that is, to
ensure that the promised procedure is followed. It can be reasonably
146 The Constitution of the People's Republic of Ban '1ade1i Article 102

expected that a promised procedure is to be followed. The secord one, is

substantive expectation, in which case a favourable decision of on kind or
another which is expected or in other words substantive expectation could
only be protected by requiring that there should be a decision in
accordance with the expectation. The doctrine of legitimate expectation in
essence imposes a duty to act fairly. Under the doctrine 01 legitimate
expectation, even non-statutory policy or guide line issued by the state
would be enforceable against the state if a person can show that he has
been led to take ceitain actions on the basis of or on the legitimate
expectation that the Government would abide by such policy or guide line.
In such a case, deviation for the policy would be arbitrary and a violation
of Article 27 of our Constitution.

Case:
In the case of Managing Director WASA Vs. Superior Builders a,z1 -
Engineers Ltd., 51 DLR (AD) 56, the question of legitimate expectation
came up for consideration and Mustafa Kama], J. in paragraph 6 observed
as follows:-
"Basically, the principle is that, a writ petition can not he founded
merely on a contract, but when a contract is concluded the contractor
has a legitimate expectation that he will he dealt with fairly. The
petitioner could have asked the respondent to supply the water tanks
and generator according to specification and could have given him
an Opportunity to complete the work according to specification,
taking the anomaly during re-examination to he correct: but to cancel
the contract unilaterally without regard to subsequent developments
is a high feat of arbitrariness which rightly attracts the writ
jurisdiction."
In the writ petition of Rabia Bus/it-i Irene —Vs- Bangladesh Binum, 52
DLR 308, Kazi A.T. Monowaruddin,J. decided the question of legitimate
expectation in the following manner in paragraphs 43 and 45 as under:-
"In which their Lordships in the House of Lords observed-
"Legitimate, or reasonable, expectation may arise either from an
express promise given on behalf of a public authority or from the
existence of a regular practice which the Chairman can reasonably
expect to continue."
"In the aforesaid case it has been observed that it is not that
to
expectation has got be based on some contract. it may he based on
 Article 102 The Constitution of the People's Republic of Bangladesh 147

past practice or any statement whether that forms part of the

Contractor not.
In view of the above, we have no hesitation to hold that the
petitioners expectations of being absorbed in the service after
satisfactory completion of five years service cannot but be said to be
their legitimate expectation and in all fairness they should be
absorbed in their service."
1. In the case of chairman, BTMC-Vs. Nasir Ahmed, 7 Bangladesh law
chronicles (AD) 144, illustrate the above proportion.
2. Azaf Khan & Ors-The court of settlement, Dhaka ors, 23 BLD 7, (Para
52).
Case on Master & Servant
In the case of M.H. Chowdliurv —VS- B.M. Titas GAS, 1981 BLD (AD)
61, a question was raised as to whether Titas Gas Company is a
nationalized Enterprise or a Compan y. In that decision it was held that
Titas Gas Company Ltd. is a nationalized Company as such writ petition
under Article 102 of the Constitution is maintainable. On behalf of an
emplo y ee of the enterprise a case was filed. In that decision at parag'aph
10, it was held by F.K.Munim, J. as follows:
"As regards the status of the enterprise it was claimed that it became a
public enterprise within the meaning of the terms as provided in the
Comptroller and Auditor-General (Additional Functions) Amendment
Act. 1975 so that its accounts are now audited by the Comptroller and
Auditor-Genera] of Bangladesh. It gets allocation of funds from
development project and its annual development programme has to be
approved by the Planning Commission. Due to these measures, both
legislative and executive, the status of an ordinary Limited Company to
that of a Public Enterprise which is owned by the Government and
controlled by the Corporation".
In that case, it was further observed that an employee enjoys the status
of an employee of a statutory body and an employee of such an
organization cannot be governed by the law of master and servant.
In the case of B.S.I. Corporation —VS- Mahbub Hossain, 29 DLR (AD)
41, two questions were raised before the Appellate Division in granting
the Leave Petition. First, whether the relationship between the dismissed
employee and the Corporation was one of master and servant. Second,
whether the Hi g h Court Division had jurisdiction to interfere with the
order of dismissal under Article 102 of the Constitution.
148 The Constturion of the People's Republic of Bangladesh Article 102

In that case, Mahmud Hussain C.J. at paragraph 21, clearly spelt out
the relationship of master and servant and its applicability to a office of
employment which has got a public character. The paragraph reads as
follows:-
"The law of master and servant, as applicable for determining the right of
an employee dismissed from service is based upon the view that such a
right is exclusively founded upon a contract of service between an
employer and an employee and that inasmuch as such a contract is
incapable of being specifically enforced under the provision of the
Specific Relief Act, an action for restoration of the dismissed employee
to its former office is not maintainable in law. It conceives a private
individual serving another private individual or body for mutual private
benefits and the relationship does not involve any element other then the
contractual one. in such a case, the employee is interested only in his
remuneration, which can be measured solely in monetary value. In the
same way, the employer employees the particular individual for his own
private purpose which is exclusively his own concern and in which
nobody else is interested, and if, in case of a breach of any contractual
obligation arising out of the contract of employment, the employer is
prepared to forego the service of his employee and at the same time pay
the dismissed employee adequate monetary compensation, it is nobody
else's business to be concerned about it. But if the office of employment
has got a public character, the relationship transcends the confines of it
contractual character and ceases to be the concern of the individuals,
namely, the person who dismisses and the person who is dismissed. In
such a case, the person who exercises the power of dismissal does so on
behalf of a public corporation in which the general public or a substantial
section of the general public is interested and such power is exercised
under some authority of law. lie cannot rest cynically content by saying
that it is the personal affair of an individual or some individuals whose
representative he is, and he is prepared to pay the dismissed employee
the necessary compensation. if the order of dismissal is ultimately found
to be illegal and that it is nobody else's business to be bothered about it.
The position of the employee is also different from that of one serving a
private concern, at least in principle, as he is serving an institution of
public benefit in the development and progress of which he also is
supposed to he interested. Those are the considerations which naturally
lift the cases of public employment out of the strict category of the
master and servant rule. In such a case, the terms and conditions of
service may also be regulated by some statutory provisions, and the
termination of service may he made in violation of such provisions. In
that event as well as the master and servant rule cannot he invoked in
Article 102 The Constitution of the Peoples Republic of Bangladesh

order to deny the relief of reinstatement to the discharged employee. It

may he also that the office itself has been created by the statute where the
employee will undoubtedly have a kind of legal status the rights whereof
may be capable of being enforced."

Contract.
The High Court Division may interfere in Writ Jurisdiction with regard
to a contract when the contract is brought within the sphere of public law,
that is, because of the exercise by the State of its sovereign power,apart
from the contract. In case of contract by the Government as a public utility
undertaking, the court can only interfere when the terms of the contract are
discriminatory, unreasonable or capricious.

Locus Poententiae. --
In the case of Md.Slioth —Vs- Bangladesh, 27 DLR 315, D.C.
Battacharja,J. held in paragraph 18 as follows:-
"On an examination of the above mentioned authorities, it is clear that
the locus poenten0ae i.e. the power of reseeding before a decisive step
has been taken can he exercised so long as there has not been any change
in respect of the legal rights of the persons concerned. When some legal
rights have arisen in favour of a certain person as a result of a particular
order, those rights cannot he undone by a purported exercise of locus
Pocntentiae in respect of the said order. The power of passing an order
rescinding or cancelling an earlier one which has given to certain rights
shall have to be founded on some statutory provisions."

See the below mentioned case for the above proposition:

Ainirul Islam —Vs-The Secretar y, 40 DLR(AD) 52.

Cases:
Maintainability of writ petition
In the case of Bangladesh Telecom(PVT) Ltd. Vs. MT, 48 DLR AD
20, the question of maintainability of the writ petition was resisted on the
ground of commercial contract. Mustafa Kamal,J. in that decision at
paragraph 16 held as under:-
"As the licence was granted to BTL in exercise of a statutory power and
as such cancellation thereof was also made in exercise of a statutory
power, it is no longer a case of cancellation of a commercial contract.
Had there been no licence in favour of BTL then the agreement, standing
 I The Constitution of the People's Republic of Bangladesh Article 102

alone, would have been a purely commercial contract. the cancellation of

which would not have attracted the writ jurisdiction of the High Court
Division but as the agreement merged into the licence its terms and
conditions no longer remained the tz.:rns and conditions of a commercial
contract. It became the terms and conditions of the licence itself.
Therefore in the facts of the present case the writ petition cannot be
resisted on the ground of cancellation of a commercial contract',
In the case of Bangladesh —VS- Jalil, 48 DLR (AD) 10,A,T.M.
Afzal,C,J. while interpreting the jurisdiction of the High Court under
Article 102 of the Constitution held at paragraph 16 as follows:-
The High Court Division was not a Court of appeal required to make
determination of facts oil own. It could interfere with the findings of a
tribunal of fact under its extraordinary jurisdiction under Article 1021
only if it could be shown that the tribunal had acted without jurisdiction
or made any finding upon no evidence or without considering any
material evidence/facts causing prejudice to the complaining party or that
it acted malafide or in violation of any principle of natural justice. In the
absence of any of these conditions the interference by the High Court
Division will itself be an act of without jurisdiction. This precisely has
happened in the present case and therefore this appeal must succced',

Gun Licence.
In the case of Abul Hussain Md. —Vs- Bangladesh, 44 DLR 521, Fazle
Hussain Moharnmad Habibur Rahrnan,J. set aside the order of cancellation
of licence of revolver as the same was passed in violation of Article 27.
The learned Judge held in paragraph 9 as under:
"Therefore, the impugned order Annexure'E' dated 5.8.90 is liable to
be set aside as illegal as it is an arbitrary, indefinite, fanciful, vague
and capricious order in violation of Article 27 of the Constitution."

Domestic Inquiry.
In a domestic inquiry, the principles of natural Justice must he
observed. Opporttinity for cross examination must be provided in a
domestic inquiry. Fairness in an important clement in case of domestic
inquiry.
In the unreported case of Bangladesh Water Development Board and
others —Vv- Mr. A.K.M. Rahi,nul Islam, C.P.S.L.A. No.268 of 1977,
judgment on 16-11-77, a question was raised as to whether in a
Article 102 The Constitution of the People's Republic of Bangladesh 151

disciplinary proceeding, the High Court Division can enter into the
question of malafide in a domestic proceeding.
In the present case, the High Court Division looked into the
circumstances in which the officer was transferred, the second order of
transfer, the proceedings drawn up, the finding of the enquiry officer, his
conclusion, the proposed punishment and from all other attending facts
and circumstances found that the proceedings were taken with had faith by
the authority. The High Court Division further found that the Authority
was responsible for lapses which amounted to approbation and
reprobation.

The Appellate Division held that in writ jurisdiction the High Court
Division can enter into the question of malafide of the proceeding taken by
the Authority for domestic enquiry.

Malafide
In a writ petition malafide must be alleged and the same is to
established on the basis of facts. There should be some factual basis for
alleging the same otherwise the Court will not accept the contention of the
petitioner. Malafide vitiates everything and such malalide action will not
get immunity in any circumstances.

Case
In the case of Mustaque Ahmed —VS- Bangladesh, 34 DLR (AD) 2221
B.H. Chowdhury, J. at paragraph 17 held as under:
"Malalide or Coram non-judice proceedings are not immune from the
scrutiny of the Supreme Court notwithstanding any ouster clause in the
Martial Law Proclamatjon."
In the case of EVT —VS- Dr. Chowdhu,-y Mahinood Hasan, 55
I)LR(AD) 26, K.M.Hasan,J. observed at paragraph 27 as under:
"This court had ample proof that the licence to run ETV was obtained by
playing foul which can never be approbated. If the licensing act was
loathed with all the requisites of law, this court, sitting as a court of law,
would have sustained the petitions for leave to appeal by the petitioners.
In its judgment the court has recited the undue means practiced and then
concluded that the process adopted in granting Ncence was infected with
ma] a fide
152 The Constitution of the People's Republic of Bang/odes/1 Article 1()2

In the case of Habibullali Khan —VS- S.A. Alitned, 35 DLR (AD) 72,
Hahibullah Khan who was a Minister was directed to pay an amount of
TK I0,000\= (Ten Thousand) to S.A. Ahmed by issuing a Suo Moto Rule
after delivery of the main judgment. In that case, the question was raised
that notice is to he served on the person when allegation is that he was
responsible for ordering compulsory retirement of the person retired. In
that decision, Ruhul Islam, J. held at paragraph 21 as follows:
"If at the hearing of the writ petition the Court was of the opinion that the
affidavits filed by the parties sufficiently showed that Mr.Hahihullah
Khan was directly responsible for causing compulsory retirement of
Shah Azharuddin Ahmed under the influence of his hrother-in-!aw Mr.
Anisuzaman Chowdhury. the Rules of the Court provide that in such a
case the Court should adjourn the hearing of the writ petition and direct
service of notice on such person. Rule 9 of Chapter A in Appendix IV to
the Rules of the High Court of Judicature Vol-I provides that if at the
hearing of the application the Court is of opinion that any person who
ought to have been served with notice of the application has not been SO
served, the Court may order that notice may also he served on such
person and adjourn the hearing upon such terms as the Court may
consider proper. The leaned Judges instead of following the Rule
completed the hearing of the writ petition and delivered judgment. In
view of the facts and circumstances the finding imputing malafide on the
appellant cannot be sustained. Therefore, the objectionable findings set
out above and the observations made in the judgment dated 16-l1-() are
quashed"

Perventive Detention Law.

In a democratic society, this law by its very nature has posed challenge
before a court of law to secure the liberty of an individual against the
allegedly threatened interest of society and security of the State specially
in times of peace. Through this punitive detention the liberty of an
individual can he deprived. On consideration of a past record of an
individual that he might hamper the interest of society and security of the
State can he put under preventive detention to prevent the person from
committing prejudicial acts in society. The basis of such detention is the
subjective satisfaction of the detaining authority. If the executive
government can deprive an individual from his liberty without any
accountability then the individual liberty become meaningless in a true.
democratic society.
Article 102 The Constitution of the People's Republic of Bangladesh 153

Preventive detention is based on this idea that it is the bounded duty of

the State to protect the interests of the country and welfare of the citizens
from anti-national and anti-social elements-affecting the maintenance of
public order, economic welfare of Bangladesh etc. The interests of the
nation have always been regarded of Prime importance to personal liberty.
It is taken by way of precaulion to prevent mischief of the community by
curtailing individual liberty. It is putting a person behind the prison bar by
taking away his personal liberty from preventing him to act prejudicially
against the interest of the State.
As Hebeas Corpus is a writ to assert personal liberty of a person in
detention, friends or relations of the detenue can move the writ petition in
the Supreme Court.
In order to prevent possible abuse of the law of preventive detention
the legislature has taken care to provide certain safeguards in the law
itself, such as, (1) Furnishing of grounds within 15 days from the date of
order of detention, (2) The right to make representation against the order
of detention, (3) Constitution of Advisor y Board consisting of Judges of
the Supreme Court, (4) Sending the case to the Advisory Board within 120
days, (5) Hearing before the Advisory Board,(6) The revocation of the
order after the recommendation of the Advisory Board etc.
In addition to the above safeguards, the detenu or any one on his
behalf can file a writ petition in the nature of habeas corpus challenging
the detention order before the High Court Division. The High Court
Division has interpreted the Special Powers Act and the orders made
thereunder in several decisions. The rationale of those decisions will be
dealt herein below:-

Detention cases:
In the case of Abdul La/if Mira Vs. Bangladesh, 31 DLR(AD) 1, the
detention order of dctenu Abdul Latif Mirza was declared as 'without
lawful authority' and passed 'in an unlawful manner'. K.Hossain,J. has
very elaborately dealt with the question of objective satisfaction of the
Court, the availability of valid grounds, the continuation of an invalid
detention with a subsequent valid detention order and the scope of judicial
review of the Supreme Court in detention matter under Special Powers
Act in the light of the Constitutional mandate. K.Hosain,J. in paragraphs
7,12,15,23 and 24 in that case has observed as follows:-
154 The Constitution of the Peoples Republic of Bangladesh Article 102

"The Constitution, therefore. has cast a duty upon the High Court to
satisfy itself that a person in custody is being detained under an authority
of law, or in a lawful manner, the purpose of the Constitution is to confer
on the High Court with the power to satisfy itself that a person detained
in custody. is under an order which is lawful. Along with it, we are to
keep in mind the provision of Section 3 of the Special Powers Act, which
gives the detaining authority a discretion to act under the Act, if it is of
opinion, that a person's detention is necessary in order to prevent him
from doing a prejudicial act. We, therefore, find that the Special Powers
Act gives a wide discretion to the detaining authority to act according to
its own opinion, but, on the other hand. the Constitution empowers the
High Court to satisfy itself that a person is detained in custody under a
lawful authority. The Bangladesh Constitution. therefore, provides for a
judicial review of an executive action. It is well settled that a judicial
review of an executive action does not imply that the court is to sit on the
order as on an appeal. But then, the court is concerned to see that the
executive authority has acted in accordance with law and it must satisfy
the High Court that it has so acted. The Special Powers Act standing by
itself emphasizes that the opinion of the detaining authority to act is
purely subjective, but the Constitution has given a mandate to the High
Court to satisfy itself, a judicial authority, that the detention is a lawful
detention. To give a harmonious interpretation we are to observe that
under Special Powers Act, the detaining authority satisfaction is to a
great extent subjective, but the order of the detaining authority must he
based on some materials which will satisfy a reasonable person that a
conclusion could be so drawn on such materials. It is a rule that no fixed
standard or formula, except that of reasonableness can in this regard be
laid down. As to what would constitute reasonableness or the sufficiency
of materials must depend on the facts and circumstances of each case.
But there can be no denying the fact, that there must be before the
detaining authority, some materials before he can form his subjective
opinion, and there must be a rational nexus between his satisfaction and
the order of detention. Interpreted in this way both the legal requirement
of the Act and the constitutional mandate can be harmonised. The High
Court, therefore, in or to discharge its constitutional function of judicial
review, may call upon the detaining authority to disclose the materials
upon which it has so acted. in order to satisfy itself, that the authority has
not acted in an unlawful manner."(Para 7).
Article 102 The Constitution of the Peoples Republic of Bangladesh 155

"We like to observe here that the validity of the order of detention, and
the fact of detention on the scope of vagueness of ground stand on a
different footing. The order of detention for its validity is to be tested on
the basis, whether the detaining authority had before it materials which
give a rational probative value to the order and are not extraneous to the
purpose of the Act, and beyond which, the order of detention is immune
from challenge, except on the ground of malafide. But in judging the
grounds served on the detenu to enable him to make a representation so
that the fact of detention as distinguished from order of detention, is
valid, the court is to consider whether the grounds are vague, or
indefinite or irrelevant or are co-extensive with facts on pain of the
detention being invalid." (Para-12)
"The principal ground was that the detenu belonged to a political party
whose object was to overthrow the Government established by law. This
was in 1974 when the composition of the Government was different. The
then Government has been overthrown and new government installed.
There has bccri some changes in the Constitution as well judicial notice
of these facts can be taken. The detenu. we find, is in continuous
detention from 224-74 till to-day and this change has taken place curing
the period of his continued detention. The moot question is, whether tne
basis of the ground that was existent in 1974, is still existing. Mr.
Moudud Ahmed has, with a plausible force, submitted that of the many
grounds which were formulated, ground No. I has lost its cogency with
the existing facts. It has become totally irrelevant. - (Para 15).
"It is true that initially, the Court is to see whether the detenu is at
present detained under a valid order of detention. If, however, the earlier
order of detention is illegal and that order is continued by a subsequent
order, the subsequent order is illegal." (Para 23).
"From the facts on record it appears that between 22-5-74 and 24-5-74
there is a gap of two days when there was no order of detention. The
order passed by the Government on 24.5.74 is no doubt an independent
order, but it purported to continue the earlier detention. The detenu was
not released on the expiry of thirty days of the order of the Deputy
Commissioner. He continued in detention without any order whatsoever,
and so his detention become an illegal detention, after the expiry of
thirtieth day. The Government continued this illegal detention by its
order of 24-5-74. The order is independent but detention is not. There is
no correlation between an independent order and the facts of independent
detention. The order of detention purporting to continue an illegal
detention cannot he sustained." (Para 24).
156 The Constitution of the People's Republic of Bangladesh Article 102

In the case of Habiba Mahmud Vs. Bangladesh, 45 DLR(AD) 89,

proviso to Article 33(5) of our Constitution came up for consideration in a
preventive detention case wherein Latifur Rahman, J. held at paragraph 49
as follows:-
"Thus, I hold that the detenu cannot also ask as a matter of right to the
detaining authority the facts not disclosed on the plea of public interest.
This is the privilege of the State and this privilege the State can always
claim against the detenu. Further, when the liberty of a citizen is at stake
and when constitutional protection is sought for in the writ jurisdiction
for protection of one's liberty and freedom, it is the court alone which
can very well look into all the materials including the materials to which
privilege is claimed by the detaining authority. If, in fact. a privilege is
claimed in respect of any material, it is the High Court Division alone
that would finally decide as to whether the document is really a
privileged one or not. Under proviso to Article 33(5) of the Constitution,
the authority has got a Constitutional protection not to disclose anything
in public interest and it is the Constitutional Court alone which can look
into the materials pertaining to the detention of the detenu as
contemplated in the constitution for its satisfaction alone. The privilege
given to the State in the interest of the State, people or community cannot
be asked for as a matter of right."
In the case of Musrafizur Rahman Vs. Bangladesh, 51 DLR (AD) 1,
A.T.M. Afzal, C.J. held at paragraph 41 as under:-
It must be made clear that the law which we have declared has never
granted absolute power either to the Government or to the President to
make an order of detention even in the circumstances mentioned in the
judgment nor it is the law that the satisfaction upon which an order of
detention is made is immune from challenge. The power of the Supreme
Court in making scrutiny of executive acts never recedes in the back
ground, as observed by the learned Judge, so long as the Constitution
remains operative. The maintenance of law and order. public peace,
public safety and security are undisputedly concerns of the State and the
Government know best how to preserve them, but the Court's concern in
a case of preventive detention is to see whether the person is being
detained without lawful authority or in an unlawful manner. The
authority can never justify an order of preventive detention by merely
saying that the action was taken in the interest of public safety and public
order. It has to satisfy the High Court Division which is an obligation
cast upon the Court by Constitution, that there were materials on record
as would justify a reasonable person to justify the order of detention."
Article 102 The Constitution oft/ic People's Republic of Bangladesh 157

In the case of Shwneetn Vs. Government o/' Bangladesh. 47 DLR(AD)

109, the detenu was released by the Appellate Division as the respondent
did' not appear before both the Divisions. M.H.Rahman,C.J. held at
paragraph 6 as follows:-
"It is a distinctive norm in our Court system that application for habeas
corpus should get top priority over all other business and be
expeditiously disposal of. It is no longer common to direct the body of
the prisoner to be produced before the Court but the respondents having
the custody of the prisoner must specify the case of detention and
discharge the burden of proof in lawful justification of the detention."
In the case of Sajeda Parvin Vs. Government of Bangladesh, 40
DLR(AD) 178, B.H.Chowdhury while considering the detention order,
held at paragraph 20 as follows:-
"Malafide vitiates everything and the point is so settled that needs no
reiterating by reference to the decided cases. The case of Khondkar
Mustaque Ahmed, 34 DLR(AD) 222 has settled the issue. In this
proceeding, our attention has been drawn to the statement of the Home
Minister who gave oul jeasolis foi detention in the Paiiiument. Putting
his statement that detention was necessary so as to prevent this man from
escaping from the clutches of law in juxtaposition with the grounds of
detention which says in order to prevent him from indulging in
prejudicial activities, the conclusion became obvious that the order of
detention was passed for collateral purposes for which it has no sanction
in law. In this view of the matter, the opinion is that the detention is
illegal and the detenu is being held in custody without any lawful
authority."

Gases on Preventive Detention

(1) Government of East Pakistan Vs Rowshan Bijova Shaukat Au
Khan, 18 DLR(SC) 214.
(2) Md. Humayun Kabir Vs. The State, 25 DLR, 259.
(3) Sharj'uddin Ahmed Vs. Secretar y, Minister of I-ionic A/lairs, 27
DLR, 658.
(4) M.Ma/zn;ood Vs. Bangladesh, 43 DLR, 383
(5) Nasi,na Begun Vs. Bangladesh, 49 DLR (AD) 102
(6) Faisal Mahhuh-Vs- Bangladesh, 44 DLR, 168.
(7) Dr. Habi bullah - Vs- Secretar y, Ministry of Home, 41 MR, 160.
(8) AlaniAra !Iaq-Vs- Bangladesh, 42 DLR 98.
/ cc, The Constitution of the People's Republic oJBaiiladesh Article 102

(9) Bangladesh - Vs-Dr. Dh iman Chowdhur, 47 DLR(AD) 52.

(10) Mansur Ali- Vs- Secretary, Ministry of Home, 42 DLR,272.
(11) Anwar —Vs- Bangladesh, 28 DLR. 428
(12) Rama Rani- Vs-Bangladesh, 40 DLR, 364.
(13) Tahera Islam-Vs- Secretary , Ministry of Home, 40 DLR,193.
(14) Amaresh Chandra-Vs-Bangladesh, 31 DLR(AD) 240.

Service Matter.
Where the fundamental rights of the petitioner are violated by
legislation or rules or by an order of the Government, the petitioner can
move the High Court by filing an application under Article 102 of the
Constitution. The same principle is application to an employee of a
statutory public sector employee. A candidate who has been illegally
denied selection in service matter can approach the court for remedy.

Case:
In the case of Bangladesh —VS- A.Rahman, 1982 BLD (AD) 176, the
respondent was placed in the New National Grade No XIV by a
Government Notification. The notification was challenged before the High
Court Division on the ground that his placement in the National Grade was
discriminatory and violative of Article 29 of the Constitution. High Court
Division accepted the contention. The Appellate Division set aside the
judgment of the High Court Division and held that the constitution
empowers Government to reorganize "Service of the Republic" and
further the placement did not adversely affect his terms and conditions of
service, on the contrary, his pay was raised considerably. In that case. S.
Ahmed, J. held at paragraph 6. as under:
"Article 136 of the Constitution empowers the government to re-organize
the "Services of the Republic" by the creation, amalgamation or
unification of Services" and for that purpose Government may. by law.
vary a revoke any condition of service of a person employed in the
Service of the Republic. In pursuance of this Article. Act XXXII of 1975
was made under Section 4 of this Act Government issued the impugned
Notification No. MF (ID)-1-3/77/850 dated 20 December. 1977 by which
placements of the respondent and other persons in the service of the
Republic were made. This Notification and all action taken thereunder
got effect notwithstanding anything inconsistent therein contained in any
other law in force. The Notification, therefore, cannot be questioned on
Article 102 The Constitution of the People's Republic of Bangladesh 159

the ground that it has varied or revoked the condition of service of a

Government servant to his disadvantage".
In the case of Hasan Imam —Vs- Government of Bangladesh, 33 DLR
(AD) 296, the appellant challenged his order of termination of service in a
writ petition. A Division Bench of the High Court Division made the Rule
absolute with a direction that the petitioner's service shall be treated as on
extra-ordinary leave without any pay from the date of passing of the
impugned order till his rejoining in service. Before the Appellate Division
it was contended that the termination order having been set aside, the
direction was without jurisdiction. The contention was rejected by the
Appellate Division wherein, B.H. Choudhury,J. held at paragraph 5 as
follows:
"Since the High Court Division was exercising the constitutional
jurisdiction and the constitution has specifically conferred this power
upon the Court, no exception can be taken to the order in question.
Article 102, however, should not be construed so as to replace the
ordinary remedies by way of a suit and application available to the
litigant under the General Law of the !and Any declaration or direction
or order to be given must be ancillary to the main relief but in doing so,
the superior courts had always placed self-imposed limitation for not
raising any new issue which requires adjudication on proper facts for
which no foundation was laid by the parties in the writ proceeding.
Keeping in mind these well-settled principles of law the opinion is in the
facts and circumstances of the case it can not be said that the direction is
pregnant with any new issue which requires adjudication in separate
proceedings."
In the case of Bangladesh Vs. A.K.M.Zahangir Hossain, 34 DLR(AD)
173. A common question was raised in all the appeals is whether a
member of the subordinate police service by virtue of some provisions
contained in the Bangladesh Constitution can maintain a writ petition on
the ground of violation of
any statutory rules governing the service condition. In that decision at
paragraphs 77 and 78, the order of the court is as follows:-
"It is decided by the Court that a member of any disciplined force, if
aggrieved by an order of a Court or tribunal established under law
relating to the disciplined force, he is debarred from invoking the writ
jurisdiction subject to the rule laid down by the Division in the case of
Khandker Etheshamuddin @ Iqbal in that the order is Coram non-judice
or malafide.
160 The Constitution of the People's Republic of Bangladesh A il/c/c 102

By the majority opinion, it is decided that the authorities mentioned in

schedule to the Public Officers (Special Provisions) Ordinance. 1976, are
not'tribunals' as contemplated in sub-article (5) of Article 102 of the
Constitution, so as to deny the said right to an aggrieved member of the
police force, coming within the purview with said Ordinance. The
remedy provided under Article 102 of the Constitution in an appropriate
case, may be invoked by a member of the said disciplined force' if he
has been illegally dismissed, removed, discharged. reduced in rank or
compulsorily retired".

Election cases.
In the case of Mahinudul Hoque Vs. Jledavatullali, 48 DLR(AD) 128,
Md. Abdur Rouf,J. spelt out the jwsdiction of the High Court Division in
entertaining writ petition under Article 102 of the Constitution in Election
matter and held at paragraph 10 as under:
"It is well settled, vide the case of A.F.M.Shuh Alain Vs. Mu/i/in! Iiwj
and others, 41 DLR(AD) 68, that in election matters the jurisdiction of
the High Court Division cannot he invoked under Article 102 of the
Constitution except on a very limited ground of total absence of
jurisdiction (Coram non-judice) or malice in law for the purpose of
interferring with any step taken in the election process. like in the present
case, acceptance of nomination paper."
In the case of Noor Hossain —Vs-Md.Nazrul Islam, 20BLD(AD) 174. it
was held at paragraph 18 by Kazi Ebadul Hoque,J. that Post-election
allegations are to be decided by the Election Tribunal, but the Election
Commission would not be justified to cancel the result of election held
peacefully on the basis of Post-election allegations.

Domestic Tribunal.
In the case of Bashir A/,,ned Vs. BJMC, 44 DLR(AD) 267,
Shahabuddin Ahmed,C.J. clearly determined the scope of domestic
tribunal and held in paragraph 8 as follows:-
"Mr.Khalilur Rahman has referred to a decision of this court in the case
of Bikash Ranjan Das Vs. The Chairman, Labour Court, 29 DLR(SC)
280. In that case the scope and extent of the court's jurisdiction to
examine and scrutinise the findings of a domestic tribunal has been
indicated. It has been stated therein that when an order of a domestic
tribunal is challenged all that the court is to see is whether the charge
framed against the delinquent constitutes any offence calling for penal
Article 102 The Constitution of the People's Republic of Bangladesh 161

action, that the delinquent was given opportunity to defend himself, that
the tribunal was constituted with impartial persons and that there was no
malafide intention on the part of the tribunal. It has been further held that
a domestic tribunal is not bound by the Evidence Act and that the
tribunal is to see whether from the materials available before it any
conclusion can be drawn. It has been further observed that a difference
conclusion is possible is no ground for the court's interference."

Passport.
A citizen's passport cannot be impounded without any valid ground
and cause. Hence the requirement of natural justice is implicit in case of
denial and impounding of a passport of a citizen.

Case:
In the case of Rafique-Ul-Huq Vs. Bangladesh, 44 DLR 398, the
petitioner was served with an order to hand over his passport. The
petitioner challenged the impugned order as arbitrary, malafide and
violative of Articles 31, 36 and 40 of the Constitution. In that decision,
Md.Abdul Jalil,J. at paragraph 17 held as under:-
"In the facts and circumstances as discussed above, we are of the opinion
that the impugned order impounding the passport of the petitioner was
passed without due compliance with the requirements of Article 10 of the
Bangladesh Passport Order, 1973 and it has no legal effect."
In the case of Syed Mokbul Hosain Vs. Bangladesh, 44 DLR, 39,
Similar proposition has been enunciated as the revocation of the passport
has been made without any show cause.
The below mentioned cases illustrate the above proposition:-
1. Ekram Ibrahim-Vs-Bangladesh, 47 DLR 256 (Revocation
of Passport).
2. Bangladesh-Vs-Ghulam Azarn, 2001 BLD(AD) 162
(Renewal of Passport).
3. H.M.Ershad —Vs-Bangladesh, 2001
BLD(AD)69(Tmpounding of Passport).
4. Syed Makbooi Hosain-Vs-Bangladesh,44 DLR 39 (Refusal
of Passport).
5. Ziauddin- Vs-Bangladesh, 47 DLR 29.
. Ban gladesh-Vs-Zeanat Hossain, 1 BLC(AD) 89.
162 The Constitution of the Peoples Republic of Bangladesh Article 102

Quid Pro quo.

When the levy of the fee is for the benefit of the entire industry, there
is sufficient quid proquo between the levy recovered and the services
rendered to the whole industry. All that is necessary is that there should he
a reasonable relationship between levy of the fee and service rendered.
Case:
In the case of Za,ninur Rahman Vs. Bangladesh, 31 DLR (AD) 17 I, at
paragraph 14, the concept of quid proquo was discussed by K.M.Suhhan,J.
wherein it is observed as follows:-
"There cannot be any dispute that a tax does not aid at conferring any
direct benefit upon any particular individual and there is an element of
quid proquo between the tax payer and the public authority while on the
other hand fee or a toll is a charge for a special service rendered to some
individuals by the agency authorised to charge a toll or fee.

Reasonableness.
The duty to act fairly and reasonably has been developed in the
administrative law field to ensure the rule of law and to prevent failure of
justice where the action is administrative in nature. Just as principles of
natural justice ensure fair decision in a quasi-judicial proceeding.

Estoppel.
There can be no estoppel against constitution. A concession made by
the petitioner whether under mistake of law or otherwise that he does not
possess or would not enforce any particular fundamental right, cannot
create estoppel against him, in that or in any subsequent proceeding. Such
a concession, if enforced, would defeat the purpose of the Constitution.

Unjust Enrichment.
The doctrine of unjust enrichment is a lust and salutary doctrine.
Under this doctrine, no person can seek to collect the duty from both sides.
In other words, he cannot get the duty for the purchaser at one end, and
also collect the same duty from the State on the ground that it has been
collected from him contrary to law. The power of the Court is not meant to
be exercised for unjustly enriching a person. If an assessee has passed on
the tax for the consumer or a third party and sustained no loss or injury,
grant of refund to him will result in a windfall to him. Such a person will
be unjustly enriched. This will result in the assessee or the claimant
obtaining a benefit, which is neither legally or equitably due to him.
Article 102 The Constjtutjo,, of the People's Republic of Bangladesh 163

Corporate Veil.
Where the corporate character is employed for the purpose of
committing illegality or for defrauding others the Court could ignore the
corporate character and will look at the reality behind the corporate veil,
so as to enable it to pass appropriate orders to do justice between the
parties concerned.

Lifting the vie!.

The Court, in appropriate case lift the veil to understand the real intention
behind the veil.

Ultra Vires.
This doctrine simply means that an authority has no power to do act
complained of. An authority can only do things permitted by the statute to
be done and things which arc not expressly conferred by the Statute are
forbidden to be done. This doctrine permits the court to strike down the
decision made by the bodies exercising public functions which thv have
no power to make.

Doctrine of severability
It contemplates that if the provisions of a Statute become
unconstitutional and on account of inconsistency or contravention with
fundamental rights, only the repugnant provisions of the law in question
shall be treated by the courts as void, and not the whole statute. This
means some particular provision of a statute can be separated and severed
from the rest of the statute. The offending provision will be declared void
by the court by the doctrine of severability and the repugnant provision of
the Statute can be severable from the rest of the Statute. This doctrine is
applicable to legislation which is partly ultra vires.
If good provisions are so joined together and by severing the bad
provision, the remaining portion of the statute cannot independently
survive, then the entire statute is declared ultra vires.

Doctrine of eclipse.
This means an obstruction has come in the way of' a law which has
validity been enacted. Such a law was valid when originally made, but it
became invalid with the coming into effect of the constitution. This
164 The Constitution of the People's Republic of Bangladesh Article 102

doctrine applies to pre-constitution laws. When this obstruction is

removed the law becomes valid.

Administrative Law.
The Administrative law relates to Public Administration. It controls
the power of the Government. The public authority has been vested with
the powers and duty and to follow the procedure in exercising these
powers. The primary purpose of administrative law, therefore, is to keep
the powers of the Government within their legal limits, so as to protect
citizens against any abuse or misuse of power by governmental
authorities.

Tribunal.
A Tribunal is not a Court in the strict sense of the term. It refers to
quasi-judicial tribunal. All Courts are tribunals but all tribunals are not
courts. There are various administrative tribunals set up under various
statutes and those discharge quasi-judicial functions. The decisions of such
tribunals are amenable to the jurisdiction of the High Court in the nature
of certiorari and prohibition. In case of judicial decision, the duty to act
judicially must be laid down in the law itself, whereas in a quasi-judicial
decision, the administrative authority must act according to the relevant
statute and the rules framed thereunder.

Public law and private law.

Judicial review by the Supreme Court in writ jurisdiction is available
only in respect of public law rernedyand not of the private law. Where
the power is statutory, it falls within public law domain, but where the
powers are confined solely by a contract between private individuals or
duties of private nature are subject matter of private law.

Obterdicta.
A decision which is not express and is not founded on reasons nor
where issues in the case were not considered are obiter dicta and those
cannot he deemed to have a binding effect.

Ratio Decidendi.
When the law is declared in clear terms with reasons is called ratio
decidendi and the same is binding as the judgment of the Appellate
Division of the Supreme Court is binding on all courts of the country.
Article 102 The Constitution of the Peoples Republic of Bangladesh 165

Doctrine of stare decision.

It means to stand by the decisions. The decisions are authorative and
binding which must be followed. This doctrine pre-supposes following of
a long-standing decision of a court in future cases.

Prospective overruling.
According to this doctrine the decision of a court of law operates
prospectively not retrospectively. The decision operates from the date of
the judgment, Future transactions are covered and all past and closed
transactions are not affected to avoid administrative inconveniences and
hardships to the people. As a matter of fact the judgment, order and
decrees operate prospectively.

Case: Anwar Hossain Chowdhur- Vs-Bangladesh, 41 DLR(AD) 165.

Malice in fact and malice in law.

case:
In the case of Dr.Nurul Islam Vs. Bangladesh, 33 DLR(AD) 201,
Ruhul Islam,J. has interpreted the idea of malice in fact and malice in law
at paragraph 107 as follov;s:-
"Before this court malafide in a particular person has neither been
alleged nor argued. The allegations made by the appellant clearly
constitute malice in law. 'Malice in law' means a doing of a wrongful act
intentionally without just cause or excuse. The word 'intentional' refers
to the doing of the act, but it does not mean that the person concerned
means to be spiteful. So, to satisfy the term maliciously it is not
necessary that there should have been any spite or revenge in the
respondents towards the appellant. If from any indirect motive the action
was taken to total disregard of the judgment in Writ Petition No.57 1 of
1979, the respondent must be deemed to have acted maliciously.

Viscount Haldane L.C. observed as follows: Between malice in fact and

malice in law there is a broad distinction which is not peculiar to any
particular system of jurisprudence. A person who inflicts an injury upon
another person in contravention of law is not allowed to say that he did
so with an innocent mind, he is taken to know the law, and he must act
within the law. He may, thereforc,he guilty or malice in law, although so
1 The constitution of the Peoples Republic of Bangladesh Article 102

far as the state of his mind is concerned, he acts ignorantly, and, in that
sense, innocently. Malice in fact is quite a different thing, it means an
actual malicious intention on the part of the person who has done the
wrongful act, and it may he, proceedings based on wrongs
independent of contract, a very material ingredient in the question of
whether a valid cause of action can be stated."

In Exercise of writ Jurisdiction High Court Division is not an

Appellate Court.
The High Court Division does not, and should not, act as a court of
appeal under Article 102 of the Constitution. The power of the High Court
Division is purely discretionary. It will not allow itself to be turned into a
court of appeal and revision.

Case:
The facts of the case of Enamul Huq & others-Vs-Dhaka University,
40 DLR 507, are that, the students deposited their respective answer
scripts in respect of the papers mentioned therein by smuggling then into
the examination hall. The Discipline Board and the Syndicate found them
guilty. In that decision Mohammad Abdur Rouf,J. held at paragraph 7 as
under:
"One of the cardinal principles regarding the relationship of the student
and the University is that the relationship being fiduciary, the evaluation
of academic attainment of a student being the sole function of the
University., and any action taken, primafacie in accordance with the
rules and regulations, has little to be interfered by the dictum of the
court, specially under the writ jurisdiction. What materials the Discipline
Board could find against the petitioners during inquiry cannot be a
subject matter of review by this court in writ jurisdiction as the High
Court Division cannot assume the function of any appellate authority."

Cases on the above proposition.

1. Mustafti Kamal(Md)- Vs-First Court of Settlement aiid others, 4 S
DLR(AD) 61.
2. Bangladesh-Vs-Md.Tajul Islam, 49 DLR(AD) 177 (Writ Court is
not an appellate court).
3. Bangladesh-Vs-AshrafAli, 49 DLR(AD) 161.
 Article 102 The Constitution of the Peoples Republic of Bangladesh 167

Rule of pith and Substance.

In a federal structure, the legislative power between the center and the
provinces are limited by the Constitution. When a controversy arises
whether a particular legislature is not exceeding its jurisdiction and
encroaching on others constitutional power; the court has to consider the
real nature of legislation impugned, its pith and substance, to see whether
the subject dealt with is in the one legislative list or in the other.

Caes-oiiQuo Warranlo:
Inthe case of Md. Mossafa Hossain —VS- Sikder Md. Faruque an
another, 40 DLR (AD) 10, a question was raised as to whether a writ
petition in the nature of quo warranto can be compromised and S.Ahmed.
J. held at paragraph 8 as follows:
"It may be mentioned here that before the hearing of this appeal was
taken up, an application was filed jointly by the appellant and the
respondent No. I to the effect that they have settled their disputes
amicably on the advice of their common well-wishers and that for the
sake of peaceful relationship they pray for allowing the appeal on
compromise by setting aside the impugned order of the High Court
Division in the writ petition. The learned Additional Attorney General
appearing for the Government. respondent No 2, opposed the petition for
compromise on the ground of public interest contending that the writ
petition being a proceeding in the nature of quo warranto does not relate
to any private grievance between the appellant and respondent No. 1 but
is a matter of public interest and that when any person may question the
holder of a public office about his title thereto the question cannot be left
to he decided by compromise between the private parties particularly
when the High Court Division in exercise of its constitutional jurisdiction
held that the purported h&der of the public office got no lawful authority
to hold the office."

Ca Certiorari.
/
1. Bangladesh-Vs-Dr.Nilima Ibrahim, 1981 BLD(AD) 175 (Want
of Jurisdiction).
2. Abdur Rahman-Vs-Bangladesh,49 DLR 344 (Excess of
Jurisdiction).
168 The Constitution of the People's Republic of Bangladesh Article 102

Declaratory Order.
In the case of Bangladesh —VS- Mahhubuddin A,uned, 50 DLR (AD)
154, A.T.M. Afzal.C.J. while considering the power of the High Court
Division under Article 102(2)(a)(11) held that the High Court Division can
only make a declaratory order and nothing more and unless it is required
by law to do it cannot direct any authority to do a particular thing.
Consequently, it was held that the order for salary, increment, promotion
etc. are all gratuitous order not covered by any law.

What is Public Interest.

In the case of Habibullah Khan —VS- S.A. Ahined, 35 DLR (AD) 72, a
question was raised as to who will decide as to what is "Public interest"
and who will decide the validity of the retirement order of a Government
servant. In paragraph 39 of that decision S. Ahmed, J. held as follows:
"It may he mentioned here that when the order of retirement in this case
was made on October 4, 1978, the provision as to "Public interest" was
not there in section 9(2) of the Act XII of 1974. In the case of Dr. Nuru]
Islam —VS- Government of Bangladesh. 33 DLR (AD)201. this Court
declared section 9(2) invalid being violative of Article 27 of the
Constitution since in the absence of any guide line for selecting a
Government servant for the retirement this section was discriminatory.
The President thereafter, on 24 July 1981, promulgated the Government
Savants (Retirement) (Amendment) Ordinance, 1981, Ordinance VI of
1981 which amended Section 9(2) of Act XII of 1974 with retrospective
effect from 1974. The amendment brought in the provision "if it
considers necessary in public interest so to do". The ordinance further
included a validation clause which validated all orders of retirement
under section 9(2) made before the promulgation of the Ordinance. This
clause provides, among other things, that notwithstanding anything to the
contrary contained in any other law in force or in any judgment of a
Court "all orders of retirement made before the commencement of this
Ordinance shall be deemed to be, and to have always been, made validly,
lawfully and in public interest". By virtue of this amendment of Section
9(2) along with the validation clause, the order of the respondent's
retirement is deemed to have been made in the public interest validity of
this validation clause, namely, Section 5 of the Ordinance was
challenged by a writ-Petition which gave rise to Civil Appeal Nos, 73,
74, and 124 of 1981 of this Co'irt, and by a judgment delivered on 10
March 1982, this Court upheld the validity of the Ordinance. This Court,
Article 102 The Constitution of the People's Republic of Bangladesh 169

however, observed that inspite of the validity law a person feeling

aggrieved by retirement may contend that his retirement was not ordered
in the public interest, in which case the Government should place some
materials before the court to show that the order of retirement was in fact
made in the public interest. In the instant case the Government produced
relevant file showing certain facts on the basic of which the authorities
formed the opinion that the respondent should be retired from service in
the public interest. Now the question is who will decide as to what is
"public interest". The answer is clearly that the Government is the better
judge to decide whether a Government servant should be retired in public
interest under Section 9(2). There may be various reasons for which the
Government may retire a Government servant after he has completed the
requisite period of service qualifying for pension. The Government is in
a better position to decide to whom to retire. It is not possible for a court
to sit on judgment over Government's action if from the facts disclosed it
does not appear that the Government's action was malafide or colourabic
exercise of power. Subject to these limitations, the discretion of the
Government in such a matter is absolute".

Abatement of a Writ Petition.

In the case of Anwaruddin Bepari —VS-. Assistant commissioner and
other, 49DLR (AD)48, a question was raised as to what will happen after
abatement of a writ petition during Martial Law of 1982 and A.T.M.
Afzal.C.J. at paragraph 10 held as follows:
"With the promulgation of Martial Law all proceedings arising out of
and in connection with petitions under Article 102 of the suspended
Constitution abated. The Martial Law Proclamation, however, did
not put any embargo upon going to the Civil Court for the redress of
the causes for which the abated writ petitions were filed. The cause
of action for the writ petitions survived their abatement".

Contract of Service.
In the case of Abdul Bari Sarker —VS- Bangladesh, 46 DLR (AD) 37, a
retired Judge of the High Court Division, Supreme Court of Bangladesh
was appointed on contract basis for one year as Chairman of the
Settlement Court, but within three months his contract was cancelled. The
Judge challenged this cancellation order under writ jurisdiction of the
170 The Constitution of the Peoples Republic of Bangladesh Article 102

High Court Division, Shahabuddin Ahemd,C.J. held in that decison at

paragraph 6 as under:
"The petitioner's contract service has been terminated in terms
of the contract to which he was a party and since his appointment
has been cancelled in terms of the contract we do not think that
writ jurisdiction under Article 102 of the Constitution is attracted
to his case".
Trading Contract:
In the case of Sumikin Bussan Corporation —VS- CTG Port Authority,
53 DLR 599, Kazi A.T. Monowaruddin,J. relying on the case of Sharping
Marshajibi Samabaya Sotniti Ltd. —VS- Bangladesh and others, held at
paragraph 37 as under:
"On consideration of the facts and circumstances of the case we find that
the Chittagong Port Authority has in exercise of its statutory power
floated tender for the purchases of machineries e.g. Gantry Cranes, for
capital investment, as such, it cannot be said that the transaction is an
ordinary trading transaction".
Ordinary Contract.
In the case of Ali Sikder (MD) —VS-Bangladesh, 54 DLR 543, Kazi
A.T. Monowaruddin,J, in paragraph 11 while considering the
maintainability of a writ petition out of a contract, held as follows:
"We have perused the Sharping Matshalibi case and find that the
contract/Government grant of lease as referred to in Sharping Metshajibi's
case had its root under the statute but in the instant case we find this
Contract of one year lease was made in the discharge of on ordinary
function it has not been rooted through statute, nor in the discharge of any
statutory function".

Contract by Sovereign.
In the case of Sharping Mat.s/iajihi Saniabava Samitv Ltd. —VS-
Bangladesh and others, 39 DLR (AD) 85, the lease of the Fishery was
cancelled and as such a writ petition was filed. The High Court Division
held that a contractual right could not be enforced by invoking the writ
jurisdiction under Article 102 of the Constitution. The Appellate Division
negatived the contention of the High Court Division by holding that in this
case the Government functions not in the capacity as a trader e.g. buyer
but here the Government acts in exercise of the sovereign powers. B.H.
Chowdhury, J. in paragraph 29 held as under:
Article 102 The Constitution of the Peoples Republic of Bangladesh 171

"Or. the other hand, when the Government grants lease, privilege,
settlement, etc., the Government acts and discharges sovereign function
"Performing function in connection with affairs of the Republic or the
local authority". Such function can best be appreciated if matters of
settlement of hat, bazar, fisheries, Khas land, etc. are kept in view, The
Government acts in these affairs in pursuance of some statutory power
and any such contract when rooted in statute the Government discharges
its sovereignfunction. While doing so, if there is a breach of any statute
or Rule the same can be remedied by invoking writ jurisdiction. Even if
any discretion is left in the Statute such discretion must be exercised in
accordance with settled principles and not arbitrarily".

Policy Matter.
In the case of Al-jah Ahul Basher being dead his heirs Hosne Ara
Betuin and others Vs. Bangladesh and others, 50 DLR (AD) 11, a
question was raised that the requisitioned land remained unused for the
last 28 years and the Government in the meanwhile having taken a policy
decision, the petitioner is entitled to legally get back the land. In that
decision at paragraph 5, Laifur Rahman,J. held as under:-
"From the Inter-Ministerial Communications it appears that the Ministry
of Land Administration directed the Secretaries of various departments
of Bangladesh that unutilized requisitioned land may be returned to the
original owners, if not required. These Inter-Ministerial Communications
only lay down the policy of the Government which the various
Government Departments shall follow in the case of unutilized
requisitioned land. These Inter-Ministerial Communications are merely
policy guide lines as to how the excess and unutilized lands are to be
treated but these instructions do not create any legal right in favour of
the petitioner to ask for return of the land from the government after the
same has been validly acquired under the law,"

Ges on Article 102 (5) And Article 152.

In the case of Bangladesh —VS- Abdur Rah, 33 DLR (AD) 143, the
appellant who was a police officer and was posted as Officer—In-Charge of
Mohammadpur Police-Station, Dhaka challenged the order of show cause
notice under President's Order No. 67 of 1972, Government of
Bangladesh (Service Screening) Ordinance 1972. In that decision Fazie
Munim, J. on an interpretation of Article 152, found the appellant to he
member of 'Disciplined Force' and consequently held in paragraph 14 as
under:
172 The Constitution of the People's Republic of Bangladesh Article 102

"An the law which has set up the Screening Board permits it to
exercise jurisdiction in relation to a member of any disciplined force, it
must be considered a Court or Tribunal under a law in relation to
disciplined force, though such law is not meant exclusively for it."

Thus it was held that a police officer cannot maintain an application under
Article 102 because his locus standi is gone due to the ouster clause on
Clause (5) of Article 102, even though he may be an "aggrieved person".

In that decision, Fazie Munim, J. interpreted Article 102 of the

Constitution in paragraph 22 as under:
"The bar created under Sub-Article (5) is of that 'person' and the makers
of the Constitution have sought to give a comprehensive meaning to the
word by including "a statutory public authority and any court or tribunal
other than a court or tribunal established under a law relating to the
Defence Services or a tribunal to which Article "117 applies".
From the plain language the exclusion applies to a Court or irihunal
established under a law relating to any disciplined force. I have taken the
view that the exclusion is applicable to a Court or tribunal as the language
indicates: The Governing inclusion clause in any "Court or tribunal" and
the legislature while including "Court or tribunal" established under a law
relating to the Defence Service of Bangladesh or "a tribunal to which
Article 117 applies". A reading of Article 117 would show that it is in the
contemplation of the 'Constitution-makers that " Administrative Tribunal
would be set up which would exercise jurisdiction in respect of matters
referred to in Clauses (a) and (b) of that Article 117. Sub-Article (2) seeks
to oust the jurisdiction of the Courts from entertaining any proceeding or
making any order in respect of matters within the jurisdiction of the
Administrative Tribunal".
In the case of Jamil Huq —VS- Bangladesh, 34 DLR (AD) 125, K.
Hossain,C.J. after considering the case of Bangladesh —VS- Md. Abdur
Rab, 33 DLR (AD) 143 and the case of Bangladesh —VS- Jahangir
Hosain, Civil Appeal No. 134 or 1978 had held on the scope of writ
jurisdiction of High Court Division under Article 102 (5) of the
Constitution. In this case, K. Hossain, C.J. at paragraph 45 has clearly
stated that,
"It has been now well settled that the Court can interfere when a
case is made out of Coram non-judice or malafide notwithstanding
a finality clause."
Article 102 The Constitution of the People's Republic of Bangladesh 173

In the case of Col. Md. Hashmat Au (Retired) of Bangladesh Army

Medical Corps —VS- Government of Bangladesh and another, 47 DLR AD
1, M.H. Rahman, J. at paragraph 16 while interpreting Clause (5) of
Article 102 of the Constitution held as under:
"A member of the disciplined force can be an aggrieved person and
can also move, subject to the provision of Article 45 of the
Constitution, High Court Division for enforcement of a fundamental
right. There are, however, certain Constitutional limitation's of the
judicial review of an order passed or action taken against a member of
a disciplined force in this country. Reading Clause (5) of Article 102,
Article 134 and Article 45 of the Constitution together Jam of the view
that a member of any disciplined force of Bangladesh will not be
entitled to any remedy under Article 102 if he is aggrieved by (i) by
any decision of a Court or tribunal established under a law relating to
the Defence Services unless that decision is Coram non-judice or
malafide; or (ii) by an order affecting his terms and conditions of
Service, passed by or by order of the President, or (iii) by any violation
of fundamental right resulting from application of disciplinary law for
the purpose of ensuring the proper discharge of his duties or
maintenance of discipline in the disciplined force".

Limits o[writjuon.
It is to be remembered that the jurisdiction exercised under Article 102
of the Constitution is a discretionary relief. In that view of the matter, the
Judges have imposed certain imitations on exercise of jurisdiction under
Article 102 of the Constitution. In the following circumstances, the
Supreme Court is reluctant to give relief.
1. Latches or unreasonable delay:- There is a maxim based on equitable
principle that, 'delay defeats equity'. Inordinate and unreasonable delay in
filing a writ petition may bar the remedy under Article 102 of the
Constitution. However, if the delay is unintentional and properly
explained, then at times the writ jurisdiction may be exercised on the facts
and circumstances of each case.

Case:
In the case of Sarwarjan Bhuivan and others Vs. Bangladesh, 44 DLR
144, Kazi Ebadul Hoque,J. in paragraph 19 observed as under:
"Extraordinary remedy provided by writ petitions under Article 102 of
the Constitution is for speedy relief and is for the vigil apta 1pot for the

le
114 The Constitution of the People's Republic of Bangladesh Article 102

indolent one like the petitioner and is to be sought immediately after the
grievance is caused. It is well settled law that latches and delay disentitle
one to such remedy. The petitioners having not sought the relief
immediately after their grievan... arose rather having acquiesced in the
matter as far back as in the year 1969 they cannot now be allowed to
claim the disputed land."

The following cases support the above proposition.

(1) Deiwar Hossain(Md) —Vs- Bangladesh, 54 DLR 494.
(2) Faziur Rahman Akhand and 5 others —Vs- Bangladesh,
52DLR(AD) 116.
(3) Younus Mia(Md) and others -Vs- The Secretar y, Ministry
of Works, 45 DLR 498.
(4) Shajiquer Ruhman —Vs- Certificate Officer, Dhaka and
others, 29 D:LR(SC) 232.
(5) Mohammad Jan Vs. Bangladesh and others, BCR
1982(AD) 315.
Delay in moving an application is also a relevant fact for which the
Supreme Court may refuse to entertain the writ petition for granting relief.
In the case of Sadeque Uddin Ahmed and others -Vs- Rajdhani
Unnavan Karti Pak/zya at paragraph 15, Habihur Rahman Khan,J. held as
follows:-
"Furthermore, the petitioners are themselves guilty of undue delay and
latches in seeking relief though they were aware that the land was kept
under requisition for a long time. Though no period of limitation has
been prescribed by law for seeking relief under Article 102 of the
Constitution it has been consistently held that the aggrieved party
seeking such relief must show due diligence. Relying oil principle
laid down in the case of Standard Vacum Oil Co. Vs. Trustees of the Port
of Chittagong reported in 13 DLR 804 and the case of Aktaruddin Khan
Vs. Province of East Pakistan reported in 15 DLR I. we hold that neither
the owners nor the petitioners, who claim to be their successors-in-
interest, ever challenged the requisition for the last 3 decades and for the
first time the petitioners have awakened from slumber only to challenge
the notification for proposed allotment. Under such circumstances, we
are of the view that the petitioners are themselves guilty of latches and
hence are not entitled to the relief claimed."
 Article 102 The Constitution of the Peoples Republic of Bangladesh 17-5
In the case of Professor Golani Azani —Vs- Bangladesh, 45 DLR 423,
Anwarul Hoque Chowdhury,J. in paragraph 145 held as follows:-
"There remains the question of delay in filing of this application as
pleaded by the respondent-Government. Under the law for an aggrieved
person to come before this court under Article 102 of the Constitution,
no statutory limitation is provided for as in a suit. The jurisdiction under
Article 102 of the Constitution- is a jurisdiction in law and also in equity.
A Court thus, entertains a petition if the delay is explained to the
satisfaction of the Court and it would be explained and examined in the
light of the attending facts and circumstances."
Illustrate the above proposi ti on-K.M.Mahrnudur Rahnian- Vs-State, 48
DLR 92.
2. Alternative efficacious remedy:
In the case of MaJi,nudul Alan,-Vs-Sanvar Hossajn Talukdar, 42
DLR(AD) 211, the question of maintainability of the writ was
raised as from the decision of the Election Tribunal there is no
other forum of appeal and there being no other efficacious remedy,
the writ petition was maintainable. A.T.M.Afzal,J. held that the
writ petition is maintainable and remitted the case to the High
Court Division for disposal on merit. In that decision,
A.T.M.Afzal,J. held at paragraph 12 as follows:
"All this exercise, however, appears to be academic in the present case
because it has already been noticed that there is no word of finality
attached to the decision of the Election Tribunal in the Rules. Even if
there was any, the jurisdiction of the High Court under Article 102 of the
Constitution could not be limited by such word of finality."
In the case of Collector of Custoins,CTG-VvA.Hanna,z,
42
DLR(AD)167, B.H.Chowdhury,J. held at paragraph 16, that the alternative
remedy is not an equally efficacious remedy because it stipulated deposit
of 50% of the amount of penalty of the duty demanded. According to the
learned Judge it cannot be efficacious alternative remedy.
In the case of Dhaka University-Vs- Mahinuddin, 44 DLR(AD) 30,
Shahahuddjn Ahmed,C.J. at paragraph 8 observed as follows:-
"Remedy by appeal is quite simple and speedy, particularly when a
time limit has been given for the opinion of the syndicate on the report
of the Enquiry Commission. An application under Article 102 of the
Constitution is maintainable if the High Court Division is satisfied that
no other equally efficacious remedy is provided by law. Hence, the
 The Constitution u/the People's Republic of Bangladesh Article, 102
176

remedy available by appeal to the cancellation is efficacious and

speedy."

The following cases may be seen for the above proposition:

(1) Trade Channel Vs. Collector of Customs, 44 DLR 127.
(2) Md.Shahiduiah Vs. Collector of Customs, 48 DLR(AD) 58.
(3) Dhaka Ware House Ltd. Vs. Assistant Collector of
Customs, 11 BLD(AD) 327.
(4) 40 DLR (AD) 206.
(5) Tasmina Chowdhury Vs. Deputy Commissioner, 49 DLR
29.
(6) Abdul Hakim Vs. Bangladesh, 49 DLR, 438,
(7) Nesar Ahmed Vs. Ban gladesh,49 DLR(AD) 111.
(8) Bangladesh Telecom (Pvt.) Ltd. Vs. T&T, 48 DLR (AD) 10.
(9) Delicia Dairy Food Ltd. Vs. Collector of Customs, 51 DLR
381.
(10) Abdul Hannan Khan-Vs-Ministry of Home Affairs, 43 DLR
131.
(11) 4ansur Ali- Vs-Janata Bank, 43 DLR 394.
(12) Begum LutfunnessaVs-BaflgladeSh, 41 DLR 193.
(13) University of Dhaka- Vs-A . K.Monoruddin, 52 DLR(AD) 17.

3. Disputed question offacts:-

In general, a disputed question of fact is not investigated in a writ
petition where an alternative remedy is available. Rival claims of property
and disputed question of title cannot be the subject matter of writ.
In the case of Shamsunnahar Salajn Vs. Md. Wahidur Rahman, 51
DLR (AD)232, A.T.M.Afzal, C.J. held at paragraph 15 as follows:-
"However, extraordinary its powers, a writ court cannot and should not
decide any disputed question of fact which requires evidence to be taken
for settlement. The principle is well-settled and we have no hesitation
therefore in observing that all the findings, orders and observations made
by the High Court Division on the question of title and possession of the
disputed lands are wholly untenable and uncalled for and the dispute can
only be decided one way or the other by a competent civil court upon
taking evidence."
Article 102 The Constituticn of the Peoples Republic of Bangladesh 177

In the case of Tasmina Chowdhurv Vs. Deput y Commissioner, 49 DLR

29, Habibur Rahman Khan,J relying on the decision in PLD 1964(SC)
636, held at paragraph 28 as under:-
"Relying on the above view we find that disputed question of facts
are involved in the instant case. Writ jurisdiction is not the proper
forum for seeking remedy."
In the case of Sultana Nahar, Advocate Vs. Bangladesh and others, 7
B.L.0 (AD) 89, the petitioner, a human right activist filed a writ petition
in the nature of mandamus against Government Agencies for illegally
evicting several hundred sex-workers from the city of Dhaka. By a
majority judgment, the writ petition was dismissed as the facts were
disputed. The Appellate Division upheld the judgment of the High Court
Division, wherein, Md.Ruhul Amin,J. found that the writ petition contains
disputed question of fact and further held as under:-
"The facts stated in the writ petition were vague and unspecified
particularly relating to the number of sex workers, house and holding
numbers wherein the sex workers' said to have been staying and
following their profession."
Findings of fact made by the Labour Court could not be upset in writ
jurisdiction. For this above proposition the below mentioned case may he
considered.
1. Managing Director, Bangladesh Machine Tools Factory Ltd. Vs.
Chairman, 2 d Labour Court and another, 44 DLR AD 272.

For disputed question of facts the following cases may be seen:-

I. Sheikh Md.Shalzidun Nahi Vs. Universit y of Dhaka and others,
45 DLR 2013..
2. Farid Mici Vs. Amjid 41i, 42 DLR (AD) 13..
3. Abdul Hamid Khan Vs. Miah Nurul Islam and others, 42 DLR
49.
4. Karamat All and others Vs. Bangladesh, 50 DLR 372.
5. Unreported case of Serajuddin-Vs- Government of Bangladesh,
Civil Petition For Leave To Appeal No. 113 of 1976.
6. New India Tea Company Ltd.- Vs- Bangladesh and others, 31
DLR(AD) 303.
7. Md.Nawab Ali Khandker-Vs-Md.Aminuddin, 41 DLR 254.
178 The Constitution of the People's Republic of Bangladesh Article 102

4. Academic and Theoretical Question:-

In the case of Kudrat-E-Elahi Panir Vs. Bangladesh, 44 DLR AD-319,
Latifur Rahman,J. held at paragraph 114 as under:
"I must say that in dealing with Constitutional provisions the Court is
not allowed to take hypothetical questions as has been posed by the
learned Judge and has answered them like an academician. The learned
Judge has made some questions from Text Books on various
constitutional law of some renowned scholars. Abstract theoretical
questions are not to be decided by any Court as those are of only
academic importance."
In the same judgment A.T.M.Afzal,J. held as under:-
"The Court does not answer merely academic question but confines
itself only to the point/points which are strictly necessary to be decided
for the disposal of the matter before it. This should he more so when
constitutional questions are involved and the court should he ever
discreet in such matters."
The case of Ghvas Siddiqui-Vs-Bangladesh, 43 DLR 179 - illustrate the
above proposition.

5. No writ after repaing the benefit:-

A person cannot be allowed to blow hot and cold at the same breadth.
If a person has acquired some benefit under a statute or of an official act
he cannot be allowed to challenge the constitutionality of the law or the
official action as he has already taken benefit out of that legislation under
challenge. Such writ petitioner is stopped to file writ petition after repaing
the benefit.
In the case of Nurul Hoque (Md) and another Vs. Bangladesh, 51
DLR(AD) 140, Latifur Rahman,J. observed at paragraph 6 as under:-
"The petitioners having accepted the benefit cannot now term the
same as illegal. The learned Judges of the High Court Division in
exercising their writ jurisdiction which is a discretionary relief
rightly refused to exercise their discretion in favour of the petitioners
as it is unconscionable to blow hot and cold in the-same breadth."

6. Economic and Political policies of the Government:-

Judicial review is not concerned with economic and political policies
of the State. In all such cases, judicial inquiry is confined with whether
such findings are consistent with the laws of the land and whether such
Article 102 The Constitution of the People's Republic of Bangladesh 179

findings are reasonably based on evidence. The Court will act according to
Constitution and the law of the land.
In the case of Kazi Aftahuddin —Vs- Bangladesh. 49 DLR 422,
A.M.Mahmudur Rahman,J. held at paragraph 9 as under:
"The aforesaid letter is not a legal instrument creating legal rights
for the petitioners over the unutilised portion of the land. It only
lays down the policy of the Government without any force of law
and without creating any legal right. Therefore, we do not see
infringement of any right invoking protection under Article 102 of
our Constitution."
(1) Younus Mia —Vs- Ministry of Public Works, 44 DLR 488, it was held
that the Court cannot issue prerogative writ directing the Government
to implement its policies.
(2) Dr.t1d.Monjrul lluq Vs. Bangladesh, 45 DLR (AD) 39, Guidelines
and Policies are directory it cannot he enforced through Court.
7. In case of two interpretations, the court should save the ct:-
The presumption is always in favour of the constitutionality of an
enactment. The person who challenges the validity of an ei.'lctment
must show that there has been clear violation of the Constjt.-'nal
principles in respect of pre-constitution and post constitution law. The
court would make such p rogressive or narrow construction of the
legislation under challenge as wouild sustain its constitutional validity.
It is the cardinal principles of interpretation that the court will lean
in favour of upholding the constitutionality of law if it is possible to
dispose of the case and to determine the rights of the parties before it,
on other grounds.
In the case of Mu/thur Rahiiian —V- Bangladesh, 44 DLR
(AD)l 11, Mustafa Kamal,J. observed at paragraph 66 as under:
"With regard to his challenge of the vires of sections 3(3) and (5)
of the Act as at- (a) above, it is a settled rule of construction of
Statutes that there is a presumption of validity of legislative
statutes. The maxim aires inagis va/ear quam pareat it is better for
a thing to have effect than to be made void applies even more
liberally in the case of a Constitution regard being had to the nature
of the instrument. As Gwyer,C.J. said re CP Motor Spirit Taxation
Act, AIR 1939 (FC) 1.
180 The Constitution of (lie People's Republic of Bangladesh Article 102

"A Constitution of Government is a living and organic thing,

which of all instruments has the greatest claim to be construed
utres magis valeat quam pareat."
When two constructions are possible, one invalidating a statute
and the other upholding it, the court is inclined to adopt that
which will remove the statute furthest from Constitutional
infirmity."
The following case will illustrate the above proposition.
(1) NCTB —Vs- A.M.Shamsuddin, 48 DLR(AD) 184.
(2) Province of East and others-Vs-Serajul 1-loque Patwarv, 19
DLR(SC) 282.
(3) Dr.Nurul Islam-Vs-Bangladesh,33 DLR 201.
(4) Kudrat-e-Ela/zi Poii li-Vs-Bangladesh, 44 DLR(AD) 3 10.

8. No legal right:-
In the case of Shafiq Ahmed Vs. Chairman, BC!C, 45 DLR 99,
Anwanil Hoque Choudhury,J. held at paragraph 15 as under:-
"We are examining this petition in exercise of the power of judicial
review of this Court under Article 102 of the Constitution of the People's
Republic of Bangladesh, in which an aggrieved person must show that he
has a legal right, accrued to him under a law which right had been taken
away by an order of an executive authority performing function in the
affairs of the State, illegally or without lawful authority for a mandamus
to be sustained. Personal right arising out of a contract would not he
subject matter of mandamus unless the authority, acting on a contract,
acted inalafide in refusing a right arising out of a contract."

The following cases may be looked for the above proposition:

(1) National Engineers Vs. Ministry of Defence, 44 DLR (AD) 179
(2) Bangladesh-Vv-Dhaka Steel Works Ltd, 45 DLR(AD) 69 (para
83).
9. In both Forums writ petition cannot be agitated simultaneously:
When the petitioner has obtained relief by way of stay order granted to
him in another proceedings, a petition under Article 102 of the
Constitution has held to be infructuous and consequently not maintainable.
One will not be allowed to move forums for the same relief.
Article 102 The Constitution of the Peoples Republic of Bangladesh 181

In the case of Abu Yousuf—Vs- Bangladesh and others, 45 DLR(AD) 162,

at paragraph 3 M.H.Rahman,J. held as under:-
"The liquidation of respondent No.5 a company, registered under the
Companies Act cannot be challenged in writ jurisdiction of the High
Court Division when in its company court the liquidation proceeding
itself is pending for disposal."
Case on the above proposition.
(I) Awlad Hossain-Vs-Raji Moniruddin, 40 DLR 427.
(Obtain a stay order from the high Court while the suit was earlier
pending).
10. internal Communication not enforceable:
In the case of National Board of Revenue, 48 DLR(AD)171 at
paragraph 17, Mustafa Kamal J. held as follows:-
"The various Ministries/Divisions were thinking aloud, within
themselves as to what to do with the erstwhile employees of the
Tribunals. None of these annexures where communicated to the Writ
petitioners. No specific decision was taken by the appellant Ministry in
favour of the respondents after these correspondences ended. No legal
right can be founded on these interministcrial/ divisional
communications.'

Cases on the above proposition:

(1) Bangladesh Vs. Dhaka Steel Works Ltd., 45 DLR(AD) 70
(Paragraph 83)
(2) Abdul Bashar- Vs-Bangladesh, 50 DLR(AD) 11.
11. Petilioner must approach the Court with clean hand:
"A writ petition is liable to be dismissed on the ground that the petitioner
has not approached the court with clean hands. Suppression of material
facts while making the writ petition. when the petitioner had knowledge
of the same will disentitle one to the relief under writ jurisdiction."
12. Misrepresentation
Where the petitioner makes a clear misrepresentation as to material
facts. the Supreme Court may dismiss the petition at any stage on that
ground, even revoking a Rule Nisi which may have been issued earlier.
13. The principle of resjudicata.
The petitioner has no right to move the Supreme Court under 102 of
the Constitution more than once on the same facts. In the absence of new
 182 The constitution of the People's Republic of Bangladesh A rude 103

circumstances, after dismissal of a writ petition, the same matter cannot be

reagitated by a fresh petition.

Article 103. (1) Jurisdiction of Appellate Division—The Appellate

Division shall have jurisdiction to hear and determine appeals from
judgments, decrees, orders or sentences of the High Court Division.
(2) An appeal to the Appellate Division from a judgment, decree, order or
sentence of the High Court Division shall lie as of right where the
High Court Division—
(a) certifies that the case involves a substantial question of law
as to the interpretation of this Constitution: or
(b) has sentenced a person to death or to 1 [ irrlprisonmcnt] for
life; or
(c) has imposed punishment on a person for contempt of that
division;
and in such other cases as may be provided for by Act of Parliament.
(3) An appeal to the Appellate Division from a judgment, decree, order or
sentence of the High Court Division in a case to which clause (2) does
not apply shall lie only if the Appellate Division grants leave to
appeal.
(4) Parliament may by law declare that the provisions of this article shall
apply in relation to any other court or tribunal as they apply in relation
to the High Court Division.

Comments on Article 103

Substantial Question of Law.
A certificate may be issued by the High Court Division only on a
substantial question of law. In order to be substantial' it must be such that
there may be some doubts or difference of opinion, or there is room for
difference of opinion. If the law is well settled by the higher courts or
there are consensus of judicial opinion, a certificate cannot be granted on
the plea of substantial question of law. A mere question of law is thus
different from a substantial question of law.
The Appellate Division does not grant leave on a question of fact,
more particularly when a matter is concluded by findings of fact. In case
of perverse or arbitrary decision, the court may grant leave to consider the

The word "imprisonment" was substituted for the word transportation by the
Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988). s. 8.
Ailicle 103 The Constitution otthe Peoples Republic of Bangladesh 183

matter. In case of an error of law or substantial miscarriage of justice, the

court grants leave for consideration.
Cases on Article 103.-
(1) Erfiin Ali- Vs-Jo vnal Abedin, 35 DLR(AD) 216.
(2) Jo'iza/ Ahedin-Vs-Mofizur Ra/unan, 44 DLR(AD) 162.

Comments on Article 103(2)(C)

Any thing which tends to bring the administration of justice into disrcspct
or interference with the administration of justice constitutes contempt of
court. Broadly, for instances, (1) scandalizing the Judge himself by
imputing corruption or dishonesty, (2) destruction or interference with due
course of justice and (3) disobedience to the order of court. The Court may
proceed suo moto or can take cognizance of such fact on the application of
such fact on the application of an advocate of the Court. A notice is issued
to the contemner at the first instant for giving opportunity to answer the
charge.
The following cases illustrate the above proposition:
(1) Habibz€1 Islam Bhuivan, 51 DLR(AD) 57.
(2) Moinul Hosein-Vs-Shejk/, Hasina Wazed, 53 DLR(AD) 138.
(3) Mahbubur Rahnian-Vs-Muji/ur Rcthman, 53 DLR(AD) 203.
(4) Kushtia Co-Operative -Vs- Mujjhur Rahinan, 44 DLR(AD) 219.

Gases on Article 103(1)

In the case of Moqhul Ahmed and another Vs. Ahmed Jmpex(Pvt.) Lt.
and others, 48 DLR (AD)82, a question was raised as to whether the
appeal from a Single Company Judge is competent before a Division
Bench and on what grounds. Mustafa Kamal,J. in paragraph 25 held as
follows:-
"But when it Single Company Judge of the High Court Division is
exercising the power under Section 38 of the Companies Act and appeal
from its decision has to be taken by way of leave to the Appellate
Division under Article 103(l) of the Constitution. The grounds of appeal
mentioned in the proviso to Section 38(3) of the Companies Act are not
binding on the Appellate Division exercising its Constitutional
jurisdiction under Article 103(1) of the Constitution. because a
subordinate legislation like companies Act cannot prevail over the
Constitutional provisions. The Appellate Division may or may not grant
leave on any ground or grounds whatsoever."
184 The Constitution of the People's Republic of Bangladesh Article 103

In the case of Qazi Kainal Vs. Rajdhani Unnavan Kartripakha and

another, 44 DLR(AD) 29, a question was raised as to grant of certificate
for Appeal by the High Court Division under Article 103(2)(a), wherein
Mustafa Kamal,J. observed in paragraph 8 as under:
"This Division has been persistently holding that there must he an
indication in the certificate as to the nature of the substantial question of
law as to the interpretation of the Constitution. In the present case no
constitutional point was advanced in the High Court Division, no
constitutional point was discussed in the judgment and no question of law
was referred for the decision of this Division. The grant of a certificate of
fitness for appeal is a judicial function requiring care, and cautiousness of a
judicial mind. It is not a mere mechanical act. The High Court Division fell
into an oft-repeated avoidable error in granting a certificate in this case."

In the case of Bangladesh Bank and another Vs. The Administrative

Tribunal, 44 DLR(AD) 239, a question arose whether the leave petition
directed against the judgment passed before the coming into effect of the
new Section 6A of the Act of 1981 is maintainable. By inserting 6A,
Article 103 of the Constitution was made applicable in relation to a
Jud g ment of the Administrative Appellate Tribunal. The High Court's
power of judicial review was taken away and the Appellate Division was
granted the power to grant leave under Article 103(3) of the Constitution.
In that case, it was also argued that in the absence of any express words of'
necessary implication in new Section 6A, it is to be construed as
prospective in nature. Incidentally, it may be mentioned that the petitions
were barred by 822 days. In that decision at paragraph 4, M.H.Rahman.J.
held as under:-
"Under the new dispensation the petitioner have only the right to seek
leave for appeal. This Court's power under clause (3) of Article 103 to
interfere in suitable cases where miscarriage of justice has occurred is
very wide. It is neither possible nor would be expedient to lay down any
general rule, but where there is some substantial question of law of
public importance which deserves to be decided by this Court, where
grave miscarriage of justice has iesulted from illegality or from
misreading of evidence or from excluding or illegally admitting material
evidence or when a person has been dealt with arbitrarily or that a court
or tribunal has not given a fair deal to a litigant this court will not be
deterred by any technical hurdles, even by its own rule of limitation as
under Order XIII rule 1, because it is the duty of this court to see that an
 Article 104 The Constitution of the People's Republic of Bangladesh 185

injustice is not perpetrated. And in view of that the requisition of

retrospectivity or prospectivity of Section 6A of the Act of 1981 has got
no relevance. Each petition whether it is directed against a judgment
passed before or after the coming into effect of Section 6A is to be
considered on its merit. The court will neither refuse leave in a case of
grave injustice nor grant leave on technical or insubstantial ground to
upset the decision of the Appellate Tribunal otherwise validly made for
the benefit of the respondents and the petitioner accepted or acted on it
for some considerable time."
In an unreported case of Abdul Mannan Chowdhury Vs. La! Mohan
and others, Civil Appeal No.19 of 1978, dismissed on 4.12.78, a
question was raised as to whether a witness in a criminal case can ask for
Special Leave to Appeal under Clause (3) of Article 103 of our
Constitution.
The Appellate Division held that Article 103 does not put any
limitation on the court. It is not restricted in the matter of granting
special leave to appeal only to a party to the proceedings. A person who
is not a party to the proceedings may, in a proper case, ask for special
leave. It is for the court to examine the Pdlure of the petitioner's interest
in the proceedings and whether he is adversely affected by the judgment,
decree or order complained of.

Article 104. Issue and exec!tion of processes of Appellate Division—

The Appellate Division shall have power to issue such directions, orders,
decrees or writs as may be necessary for doing complete justice in any
cause or matter pending before it, including orders for the purpose of
securing the attendance of any person or the discovery or production of
any document.

Comments on Article 104

Under this article the power of doing complete justice in any cause or
matter pending before the Appellate Division lies to this Division alone.
The High Court Division has no power to do complete justice in any case
pending before it.

Cases on Article 104

The facts of the case of A.F.M.Nazjrudjjn Vs. Hameeda Banu, 45
DLR(AD) 38, are like this, that on the wife's land the appellant-husband
constructed a house by taking loan from Shilpa Bank, where lie was an
186 The Constitution of the People's Republic of Bangladesh Article 104

officer. Subsequently, the marriage tie was dissolved. The trial court held
that the husband had constructed the house and decreed the suit. The
appellate court, namely,thc High Court Division held that the building
was, however, constructed by the husband, but he did not acquire any title
in the building or in the land. In such circumstances, the question of doing
complete justice under Article 104 of the Constitution came up for
consideration in that case.
M.H.Rahman,J. held in that case at paragraph 37 as under:-
"Considering the vagaries of legal proceedings and the technicalities
involved in adjudication, Article 104 of the Constitution has invested as a
measure of abundant caution, the last court of the country with wide
power, so it may forestall a failure of justice and do complete justice in
an appropriate case. It is an extraordinary procedure for doing justice for
completion of or putting an end to a cause or matter pending before this
Court. If a substantial justice under law and an undisputed facts can be
made so that parties may not be pushed to further litigation then a
recourse to the provision of Article 104 may be justified. Complete
justice may not be perfect justice, and any endeavour to attain the latter
will be an act of variety. In the name of complete justice if a frequent
recourse is made to Article 104 then this court will he exposed to the
opprobrium of purveyor of "Palm tree Justice."
Ultimately an equitable remedy was granted on the concept of complete
justice by M.H.Rahman,J. at the concluding paragraph as follows:
"Accordingly it is ordered that the appellant will retain his possession of
that floor of the suit building where he is now residing, with no right to
transfer his possession. The respondent may recover possession there any
time within one year from date on payment of taka Six lacs in default of
which the appellant will have only the right to live in that floor of the suit
building where he is new residing during his life time."
In the case of National Board of Revenue Vs. Nasrin Banu and 5 others,
48 DLR 171, Mustafa Kamal,J. has spelt out the idea of complete justice
under Article 104 of our Constitution in paragraphs 21 and 26, in the
following manner:
"The High Court Division will do well to remember that is only the
Appellate Division which has been bestowed with the jurisdiction
of "doing complete justice in any cause or matter pending before it
"under Article 104 of the Constitution and that this jurisdiction is
not available either to the High Court Division or the Subordinate
 Article 104 The Constitution of the Peoples Republic of Bangladesh 187

Courts........................................................................We have done

this exercise "for doing complete justice"Under Article 104 of the
Constitution. But what is "complete justice"? The words do not
yield to a precise definition. Cases vary, situations vary and the
scale and Darameter of complete justice also vary. Sometimes it
may be justice according to law, sometimes it may be justice
according to fairness, equity and good conscience, sometimes it
may be in the nature of arbitration, Sometimes it may be justice
tempered with mercy, sometimes it may be pure common senses,
sometimes it may be the inference of an ordinary reasonable man
and so on. This court has done this exercise in varying
circumstances applying varying principles in various cases."

In the case of Razjul Hasan Vs. Badiuzza,,,an Khan and others, 48

DLR(AD) 71, LatifurRahman,J. held in paragraphs 13 and 14 as follows:-
now find that no remedy is available to the appellant, though a gross
injustice has been done to him for no fault or latches of his own. A valuable
right accrued to the appellant in law and fact should not be lost. In that view
of the matter, we thought it to be it most appropriate case to exerc our
jurisdiction under Article 104 of tile Constitution. It will not be out of p'ic
to say that Article 32(2) of the Constitution of India vests the Supreme Court
of India not only with the writ jurisdiction but also with the power to issue
directions, orders or writs in any matter. Thus the Indian Supreme Court
possesses original jurisdiction. But in the scheme of our Constitution we can
only do complete justice under Article 104 of the Constitution in a matter or
cause which is pending in appeal under Article 103 of the Constitution. A
substantial injustice having been done to the appellant we feel that the
jurisdiction under Article 104 of the Constitution should be exercised in the
facts and circumstances of this case".
"Before parting with the case, it may be mentioned that in Government
Service the question of due promotion and seniority are very important
matter and a person who enters government service always thinks that if
he performs his duty with honesty, sincerity, and dedication his
promotion and seniority is secured In doing complete justice in this case
we are not unmindful of this important consideration."
In the case of ETV-VS-Dr. Chowc//jurv Mahmood 1-lasan, 55
DLR(AD)
27, K.M.Hasan,J, held at paragraph 30 as under:
"If this court finds it necessary within the meaning of the expression of
'complete justice it may. in view of the power conferred upon it under
188 The Constitution of the Peoples Republic of Bangladesh Article 105

Article 104 of the Constitution, consider an affidavit and refer to the

facts contained therein even though the High Court Division refrained
from doing so under the law."
In the case of Bangladesh Vs. Chairman, Court of Settlement, Kazi
Ebadul Hoque, considered the question of doing complete justice under
Article 104 of our Constitution and held at para 5 as follows:-
"It appears that on Government's own admission the property in question
was not an abandoned property and was wrongly included in the Ka' list
of abandoned buildings. In that view of the matter question of limitation
does not arise. By the impugned judgment justice having been done we
are not inclined to interfere with the same on technical ground of
limitation."
The under mentioned cases illustrate the scope of Article 104:
(1) A.K.M.Abdui Mannan-Vs-Raj Textile Ltd, 42 DLR(AD) 11.
(2) Mahbubur Rahman Sikdar- Vs-Mujibur Rahman Sikdar, 37
DLR(AD) 145.
(3) Shara Hossin- Vs-A. K.M.Asaduzzaman,47 DLR(AD) 155 .(High
Court Division ha no power to do complete justice).
(4) Bangladesh-Vs-Mashiur Rahman & others, 50 DLR(AD) 205.
(5) Monir Ahmed & others-Vs-Forest Research Institute, Chittagong,
53 DLR(AD) 68.

Article 105. Review of judgments or order by Appellate Division—The

Appellate Division shall have power, subject to the provisions of any Act
of Parliament and of any rules made by the division to review any
judgment pronounced or order made by it.

Comments on Article 105

Rule 1 of Order 47 of the Code of Civil Procedure authorises review of
judgment on the below mentioned grounds:
(1) Discovery of new and important matter or evidence which,
after due exercise of diligence, could not he produced before
the Court at the time of hearing.
(2) Error apparent on the face of the record.
(3) Any other sufficient reason which is analogous to discovery of
new facts and error apparent of the face of the record.
Apart from the above grounds, the court may review its judgment to
rectify mistakes or errors crept in thejudgment through inadvertence,
clerical or accidental mistake.
Articles 106 & 107 The Constitution of the People's Republic of Bangladesh 189

Case on Article 105

In the case of Idris Ali Bhuiyan Vs. Enamul Haque and others, 43
DLR(AD) 12, Latifur Rahman,J. interpreted the scope of review under
Article 105 of our Constitution in paragraph 13 as under:
"It may be pointed out that the scope of review of our judgment is very
limited. Review of a judgment can be made where there is an error
apparent on the face of the record or that the attention of this Court was
not drawn to any particuiar statutory provision of law for which an error
has crept in the judgment."
Cases on the above proposition:- Mahbubur Rahman Sikdar-Vs-
Mujibur Rahman Sikdar, 37 DLR(AD) 145 (Appellate Division has power
to review its own judgment acting on its own). Hefazetur Ralunan-Vs-Kazi
Anwar Hossain, 53 DLR (AD) 89.

Article 106. Advisory jurisdiction of Supreme Court—If at any time it

appears to the President that question of law has arisen, or is likely to
arise, which is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it, he may refer
the question to the Appellate Division for consideration and the division
may, after such hearing as it thinks fit, report its opinion thereon to the
President.

Case on Article 106

In Special Reference No 1 of 1995, the President of the Republic
sought the opinion of the Supreme Court on its advisory jurisdiction under
Article 106 of the Constitution. In that Special Reference case. A.T.M
Afzal, C.J. at paragraph 23 held of follows:
The discretion is entirely his which cannot be doubted or questioned. The
expediency or the motive. Political or otherwise, or bonatde, of making
the reference cannot be gone into by Court. The Presidents satisfaction that
a question of law has arisen, or in likely to arise, and that it is of public
importance and that it is expedient to obtain the opinion of the Supreme
Court justifies a reference at all limes under the Article. The Appellate
Division may. after such hearing as it think fit, refer its opinion thereon to
the President."

Article 107. (1) Rule-making power of the Supreme Court—Subject to

any law made by Parliament the Supreme Court may, with the approval of
the President, make rules for regulating the practice and procedure of each
division of the Supreme Court and of any court subordinate to it.
 190 The Constitution of the People's Republic of Bangladesh Articles 108 & 109
(2) The Supreme Court may delegate any of its functions under clause (1)
and article 113 to a division of that Court or to one or more Judges.
(3) Subject to any rules made under this article the Chief Justice shall
determine which Judges are to constitute any Bench of a division of
the Supreme Court and which Judges are to sit for any purpose.
(4) The Chief Justice may authorise the next most senior judge of either
division of the Supreme Court to exercise in that division any of the
powers conferred by clause (3) or by rules made under this article.
Case on Article 107(3)
In the case of Mazzem Hossain-VS-State, 35 DLR (AD) 29; Shabuddin
Ahmed, J. considered Article 107 (3) of the Constitution and held at
paragraph 28 as follows
"There is no dispute that under the Chief Justice's order of reconstitution,
this bench ceased to exist and as such it got no jurisdiction to take up this
matter oil or 13 April. For disposal of a part-heard matter, it is brought
to the notice of the Chief Justice who thereupon makes specific orders
authorising the previous Bench to dispose of the matter either on the date
fixed or oil other date, by notice to the parties, and unless such
written order for disposal is given by the Chief Justice the previous
Bench got no jurisdiction whatsoever to take up a part-heard matter. In
this case, this matter was not brought to the notice of the Chief Justice
seeking a fresh Constitution for disposal of this matter. The matter is
found to have been heard and disposed of by this Bench when it got no
jurisdiction."
Article 108. Supreme Court as court of record—The Supreme Court
shall he a court of record and shall have all the powers of such a court
including the power subject to law to make an order for the investigation
of or punishment for any contempt of itself.
Article 109. Superintendence and control over courts—The High Court
Division shall have superintendence and control over all courts 2[and
tribunals] subordinate to it.

The words, brackets and figures "or any Bench of a permanent Bench of the High
Court Division referred to in clause (3) of article 100" inserted by the Constitution
(Eighth Amendment) Act, 1988 (Act XXX of 1988). omitted in consequence of the
amendment of article 100 by the said Act being declared invalid and held u/tral'ires by
the Appellate Division of the Supreme Court (41 D.L,R. 1989 (AD), p.165.
2 The words "and tribunals" were inserted by the Constitution (Twelfth Amendment)
Act, 1991 (Ac XXVIII of 1991), s. 11.
Article 109 The Constitution of the People's Republic of Bangladesh 191

Comments on Article 109

This jurisdiction of the High Court Division under this article is a
supervisory jurisdiction, a jurisdiction which apart from sitting over
judgment of the inferior courts meant to supervise the over all works of
lower courts.

Cases on Article 109

In the case of Home Ara Begum another Vs. Island Bank Bangladesh
Ltd., 53 DLR(AD) 9, Justice Latifur Rahman after considering Article
109, supervisory jurisdiction, held at paragraph 7 as follows:-
"It may be mentioned here that in exercise of supervisory jurisdiction
under Article 109 of the Constitution the High Court Division has got
power to call for any records pending before the Subordinate Court but
then in a case where provision of filing a revision is barred under Special
Statute I am afraid the argument of Mahmudul Islam that revision lies is
not entertainable. There are various decisions from Indian Jurisdiction
where it has been held that for fundamental basic principle of justice and
fair play or where a patent or flagrant error in the procedure of law has
crept in or where the order was passed resulting in manifest injustice the
High Court Division in exercise of its supervisory jurisdiction can
interfere, even no appeal or revision has been filed. But in a case where a
statute bars entertainment of a revision the exercise of supervisory
power under Article 109 of the Constitution is not available."

In the case of Solicitor, Government of Bangladesh Vs. A.T.Mridha, 26

DLR(SC) 17, the Appellate Division held that the order of the High Court
Division in quashing of the proceedings before filing of the charge-sheet is
premature and unwarranted. Further, taking recourse to Article 109 of the
Constitution is not proper.
M.A,Jabir,J. at paragraph 31 of the case held as follows:-
"Article 109 of the Constitution says that the High Court Division shall
have superintendence and control over all courts and tribunals
subordinate to it. The invocation of the article, in the facts and
circumstances of the present case, does not appear to be proper as we
have already held that the actions which were sought to be challenged in
the two revision applications, namely, the orders passed by the Sub-
Divisional Magistrate under Clause (3) of Article 13 of P.O. 50 and the
investigation by police in Daulatpur P.S. Case No.27, were not orders or
actions of any "Court" or "Tribunal" subordinatt to the High Court."
192 The Constitution oft/ic Peoples Republic oJ Bangladesh 1 riicics 110 & Ill

rticle 110. r1ransfer of cases from subordinate courts to High Court

Division—If the High Court Division is satisfied that a case pending in a
court subordinate to it involves a substantial question of law as to the
interpretation of this Constitution, or on a point of general public
importance, the determination of which is necessary for the disposal of the
case, it shall withdraw the case from that court and may---
(a) either dispose of the case itself; or
(b) determine the question of law and return the case to the court
from which it has been so withdrawn (or transfer it to another
subordinate court) together with a copy of the judgment of
the division on such question, and the court to which the case
is so returned or transferred shall, on receipt thereof, proceed
to dispose of the case in conformity with such judgment.

Case on Article6j
In the case of Mazar Market Society -Vs-Bangladesh, 1 BLC( 1996) 79,
Md.Ismailuddin Sarker,J. ordered for transfer of the case in the High Court
Division as general public importance was involved in the matter. The
learned Judge held at paragraph 12 as under:
"Naturally question of interpretation of the relevant provisions of the
Constitution and law will arise in finding out the extent of such authority
of the respondent Nos. 1-6. Moreover, question involved in a suit is also
of general public interest in that members of the public are going to he
adversely affected by the alleged action of the respondent Nos.1-6.
We,thercfore, find substance in the submission of the learned Advocate
of the petitioner in this respect."

Article 111. Binding effect of Supreme Court judgments—The law

declared by the Appellate Division shall be binding on the High Court
Division and the law declared by either division of the Supreme Court
shall be binding on all courts subordinate to it.

Case on Article 111

In the case of Slier Ali(Md) and others Vs. State, 46 DLR(AD) 67,
leave was granted to put an end to the chaos, confusion and anarchy in the
administration of criminal justice, by the judgment of the High Court
Division. The question raised is whether the High Court Division has got
power under section 561A of the Code of Criminal Procedure to interfere
with adecision of a Sessions Judge in revision under Section 439A of the
Article 112 The Constitution of the People's Republic of Bangladesh 193

Code of Criminal Procedure. The Appellate Division by a series of

judgment held , "yes", but the High Court Division in the instant case, has
said "no". In that decision it was held that the judgment of the Appellate
Division as per the mandate of Article 111 of the Constitution is binding
on the High Court Division. Thus in the instant case the learned Judges
clearly violated the Constitutional mandate of Article 111 of the
Constitution. The learned Judges have placed themselves well inside the
perimeter of contempt of this court and openly and consciously flouted
Article Ill of the Constitution.
In the case of Bangladesh Agricultural Development Corporation
(BADC) Vs. Abc/ui Barek Dewan, 19 BLD(AD) 106, Bimelandu Bikash
Roy Choudhury,J. clearly spelt out what is meant by "Perincuriam " and
the binding effect of the judgment of the Supreme Court, Appellate
Division in paragraph 18 as follows:-
"The word "Perincuriam" is a latin expression. It means through
inadvertance. A decision can he said generally to be given Per incuriam
when the court had acted in ignorance of a previous decision of its own
or when the Hi g h Court Division had acted in ignorance of a decision of
the Appellate Division. [See Punjab Laizi-' Development and Reclamation
Corporation Ltd.–Vs-Presiding Officer, Labour Court, 1990(3) Scc. 685
(705)]. Nothing could be shown that the Appellate Division in deciding
the said case had over looked any of its earlier decision on the point so it
was not open to the High Court Division to describe it as one given "Per
incuriam". Even if it were so, it could not have been ignored by the High
Court Division in view of Article 111 of the Constitution which
embodies, a rule of law, the doctrine of precedent."

Article 112. Action in aid of Supreme Court—All authorities, executive

and judicial, in the Republic shall act in aid of the Supreme Court.

Case on Article 112

The case of Ain-O-Sal is/i Kendra (ASK) and others-Vs- Government of
Bangladesh, 1999 BLD 488, is a case of public interest litigation relating
to eviction of slum dwellers from the City of Dhaka. In that case, the
Judges of the High Court Division took note of the Indian decision in the
case of Olga Tahis Vs. Bombay Municipal Corporation,(1985) 3 Scc. 454,
wherein Article 21 of the Indian Constitution speaks of Protection of life
and personal liberty. In this decision Mohammad FazIul Karim,J. while
194 The Constitution of the People's Republic of Bangladesh Articles 113-110

referring to the administrative order of the Registrar of the Suprem€ Court,

held at paragraph 20 as follows:-
"Thus Supreme Court being the guardian of the Constitution and
the protector of the good social norms and civil society in a
democratic country, all authorities, executive and judicial in the
Republic shall act in aid of the Supreme Court as also enshrined
in Article 112 of the Constitution."

Article 113. (1) Staff of Supreme Court—Appointments to the staff of

the Supreme Court shall be made by the Chief Justice or such otherjudge
or officer of that court as he may direct, and shall be made in accordance
with rules made with the previous approval of the President by the
Supreme Court.
(2) Subject to the provisions of any Act of Parliament the conditions of
service of members of the staff of the Supreme Court shall be such as
may be prescribed by rules made by that court.

CHAPTER H : SUBORDINATE COURTS

Article 114. Establishment of subordinate courts—There shall be in
addition to the Supreme Court l * such courts subordinate thereto as may
be established by law.
Article 2[11S. Appointments to subordinate courts—Appointments of
persons to offices in the judicial service or as magistrates exercising
judicial functions shall be made by the President in accordance with rules
made by him in that behalf.]
Article 116. Control and discipline of subordinate courts-The control
(including the power of posting, promotion and grant of leave) and
discipline of persons employed in the judicial service and magistrates

The words "and the High Court" were omitted by the Second Proclamation (Tenth
Amendment Order, 1977 (Second Proclamation Order No. I of 1977).
2 Article 115 was substituted for the former article 115 by the Constitution (Fourth
Amendment) Act, 1975 (Act 11 of 1975), s.19.
 Article 116A The constitution of the People's Republic of Bangladesh 195

exercising judicial functions shall vest in the 1 [ Presi dent] 2 [and shall be
exercised by him in consultation with the Supreme Court.]

Article 3 [116A. Judicial officers to be independent in exercise of their

functions—Subject to provisions of the Constitution, all persons
employed in the judicial service and all magistrates shall be independent
in the exercise of their judicial functions.]

Cases on Article 116

In the case of Bangladesh –Vs- Idrisur Rahman, Advocate and others,
51 DLR(AD) 163, Mustafa Kamal,C.J. while interpreting Article 116 of
the Constitution affirmed the judgment of the High Court Division which
held that consultation with the Supreme Court for posting, promotion and
grant of leave and discipline of persons employed in the judicial service
and magistrates exercising judicial functions is necessary. The learned
Judge further held at paragraph 10 of the decision as follows:-
"When a declaratory judgment is passed by a court it is usually
retrospective in nature, unless otherwise indicated. There,.' re, the
interpretation of Article 116 of the Constitution given by the High '"irt
Division will be operative ever since the amended Article 116 is in
operation."
In the case of Aftabuddjn-Vs- Bangladesh, 48 DLR 1, a question was
raised as to whether consultation with the Supreme Court was necessary
under Article 116 of the Constitution in case of promotion of District
Judges to the posts of Joint Secretary in the Ministry of Law, Justice and
Parliamentary Affairs. In that decision Naimuddin Ahmed,J. held at
paragraph 51 as follows:
"So, in our view, Article 116 applies in case of posting and promotion of
persons in the judicial service to any post or position outside the judicial
service in the same manner as their posting and promotion to any post in
the judicial service."

The word "President" was substituted for the words "Supreme Court", ibid., s.20.
2
The words "and shall be exercised by him in consultation with the Supreme
Court" were inserted by the Second Proclamation (Fifteenth Amendment) Order,
1978 (Second Proclamation Order No. IV of 1978).
3 Article 116A was inserted by the Constitution (Fourth Amendment) Act, 1975 (Act II of
1975), s.21.
I 96 The Constitution of the Peoples Republic of Bangladesh Article 117

CHAPTER 111: ADMINISTRATIVE TRIBUNALS

Article 117. (1) Administrative tribunals—Notwithstanding anything

hereinbefore contained, Parliament may by law establish one or more
administrative tribunals to exercise jurisdiction in respect of matters
relating to or arising out of—
(a) the terms and conditions of persons in the service of the
Republic, including the matters provided for in Part TX and the
award of penalties or punishments;
(h) the acquisition, administration, management and disposal of
any property vested in or managed by the Government by or
under any law, including the operation and management of,
and service in any nationalised enterprise or statutory public
authority;

'[(c) any law to which clause (3) of article 102 applies.]

(2) Where any administrative tribunal is established under this article, no

court shall entertain any proceedings or make any order in respect of
any matter falling within the jurisdiction of such tribunal

Provided that parliament may, by law, provide for appeals from, or the
review of, decisions of any such tribunal.
2 * * * * * * *

Comments on Article 117

In pursuance of the Provisions of Article 117 of our Constitution, the
Administrative Tribunals Act, 1980 was passed by the parliament with a
view to exercise jurisdiction in respect of matters to or arising out of the
terms and conditions of persons in the service of the Republic or any
statutory public authority.
The scheme of the Act is to deal separately service matters of the
persons in the service of the Republic or other statutory public authority. It

I Sub-clause (c) was substituted for the former sub-clause (c) by the Second
Proclamation (Tenth Amendment) Order. 1977 (Second Proclamation Order No. I of
1977).
2 "PART VIA-THE NATIONAL PARTY" omitted by the Proclamation, dated the 8"
November. 1975.
Article 1/7 The Constitution of the Peoples Republic of Bangladesh 197

is like French system of separate and independent administrative

jurisdiction, known as 'Droit Administratif'. Due to large number of cases
in the administrative side it is thought advisable to deal separately the
administrative cases by setting up Administrative Tribunals,
Administrative Appellate Tribunals and the Appellate Division of the
Supreme Court at the apex of the hierachery of such courts. Thus a
separate branch of service laws have developed in Bangladesh.
Those Tribunals will decide all service disputes. The ordinary
jurisdiction of the High Court Division with regard to service matters is
intended to be taken away and is intended to he vested in the tribunal. The
case of Mujihur Rahinan, 44 DLR(AD) 111, has very clearly spelt out the
jurisdiction of the Administrative Tribunal visa-vis the High Court
Division.

Gases on Article 117

The case of Mujihur Rahman (Md) —VS- Government of Bangladesh
and others, 44 DLR (AD) 111, is a very important Judgment as in this
case, the constitution of Administrative Tribunal, it's jurisdiction and
power, and whether it is Court in the strict sence of the term have been
elaborately dealt with.
In that decision, M,H.Rahman,J. has held in paragraph 93 as
follows:
The constitution made provisions in Article 117 for conferring States
judicial powers on some tribunals and integrating them in the judiciary,
and enabled the Parliament to make necessary legislation for evolving a
system that may in future cumulate some of the attributions which are
divided between the formal Court system and the growing practice of
adjudication of disputes by tribunals".
In the same decision, with regard to the jurisdiction of tribunal. M.H.
Rahman J. held as under in paragraph 48:
"Within its jurisdiction the tribunal can strike down an order for violation
of Principles of natural Justice as well as for infringement of
fundamental rights, guaranteed by the Constitution, or any other law, in
respect of matters relating to or arising of sub-clause (a). but such
tribunal cannot. like the Indian Administrative Tribunal in exercise of a
more comprehensive Jurisdiction under Article 323A (SASP Sampath
Kumer —Vs- Union of India. Ai.R. 1937 SC 386 (Para 16) and J.B.
Chopra —VS .. Union of India AIR 1987 SC 357 (Para 2). strike down any
law or rule on the ground of its constitutionality. A person in the service
 I Qq The constitution of the People's Republic of Bangladesh Article 117

of Republic who intends to invoke fundamental right to challenge the

Vires of a law will seek his remedy Under Article 102(1), but in all other
case he will be required to reek remedy under Article 117 (2)."
In the same decision, M.H. Rahmz:' J. held at paragraph 29 that the
tribunals have many of the trappings of the court, but "An administrative
tribunal may act judicially, but still remain an administrative tribunal as
distinguished from a Court, strictly so called."
In the same Judgment, M.H. Rahman,J. held at paragraph 36 as follows:-
"The tribunals are not meant to be like the High Court Division or the
Subordinate Court over which the High Court Division of the Supreme
Court exercises both judicial review and superintendence. The tribunals
are not in addition to the Courts described in Chapters I and III. They are
set a part, as sui generics, in a separate chapter".
In the case of Bangladesh —VS- Md. Abdus Sabur & others, 46 DLR

(AD) 19, the question of maintainability of the writ petition under Article
102 (2) of the constitution was challenged on the ground that in view
Article 117 of the Constitution the case is to be filed before the
Administrative Tribunal.
Shahabuddin Ahmed,C.J. at paragraph 21 of the Judgment repelled the
argument and held as follows:-
"This question was given due consideration by the High Court Division
which found that though the Administrative Tribunal was there, it got no
jurisdiction to declare invalid any legislation on the ground of its
inconsistency with any provision of the Constitution, in particular
Articles 27 and 29 relating to fundamental rights; which the writ
petitioners allege to have violated."
Shahabuddin Ahmed,C.J. further took note of the case of Mujibur
Ra/iman —VS- Bangladesh, 44 DLR (AD) 111 and held from the facts of
this case that the question of fundamental right invoked therein has been
so mixed up with the facts and statutory rules that the question of
fundamental right cannot be extricated for exclusive consideration.
In the case of Abdul Latif —Vs-Bangladesh, 43 DLR 446, a question
was raised as to whether civilian employees in the Defence Services can
file a case before the Administrative Tribunal. The Administrative
Tribunal held that it had no jurisdiction to entertain the case. This
contention was rejected, wherein Mustafa Kamal,J. held in paragraph 8 as
follows:-
"They are civilian employees in the defence services. The Administrative
Tribunal was obviously not correct in holding in the cases filed by the
Article 117 The constitution of the People's Republic of Bangladesh 199

petitioners that they belonged to defence services. Against the said

mistaken ordeis of the Administrative Tribunal the petitioners were at
liberty to prefer appeals before the Administrative Appellate Tribunal
within two months from the date of making of the orders."
In the case of Bangladesh —VS- S.M. Fariduddjn, 54 DLR (AD) 95, M.
Amin Choudhury,C.J. after considering the decision of Government of
Bangladesh and others—VS- Mohammad Faruque, 51 DLR (AD) 112, held
at paragraph 6 as under:
"The fact and law involved in these two appeals are same and similar.
The High Court Division in passing the impugned orders have over
looked this latest decision of this Division on transfer matters. It may be
argued that the Administrative Tribunal has no authority to pass any
order of stay or injunction but when a person is transferred from one
place to another he is to follow or abide by that order. If by the order of
transfer any terms and conditions of Service is violated his remedy lies
before the Administrative Tribunal. But it cannot be a ground to issue an
order of stay by the High Court Division only on the ground that the
Administrative Tribunal has no authority to pass any such order. This has
been well settled by this Division in the aforesaid decision. In view of the
clear decision by this Division we hold that the High Court Division
committed gross illegality in passing the aforesaid orders".

In the case of Kamrul Hasan —VS- Bangladesh, 49 DLR (AD) 44, Md.
Abdur Rouf, J. considered the question of granting interim relief and held
at paragraph 5 as follows:
Mr. Awlad Al's next submission regarding the implications of the
provisions of Sections 4 and 6 of the Act is also not acceptable in view of
the fact that the jurisdiction provided in Section 4 of the Administrative
Tribunal and that of the Appellate Tribunal in Section 6 do not contain in
express terms that those Tribunals may grant any interim relief in respect
of a lis pending before it for final adjudication".

In the case of Abdul Nairn(Md-Vs-Sonalj Bank, 1 BLC(AD) 80,

Mustafa Kamal,J. on an interpretation of Section 4(2) of the
Administrative Tribunal Acts held in paragraph 6 as follows:-
"Any application under section 4(2) of the said Act has to be filed within
6 months from the passing of the order in the departmental appeal and
after expiry of 6 months no amendment of the application can be made,
he said Act being a special law."
2(5) The Constitution of the People's Republic of Bangladesh Article 117

In the case of Bangladesh —VS- Mohammed Faruque, 51 DLR (AD)

112, Mustafa Kamal, J. interpreted Article 117 of the Constitution and
observed in paragraph 11 as follows:
But all violations of all kinds of law are not violations of fundamental
right. The protection from transfer from one place to another which the
respondent allegedly enjoys is protection in connection with his terms
and conditions of service. He has no fundamental right of non-
transferability in his service. If there is a violation of any instruction
having the force of law touching upon his terms and conditions of
service, the Constitution requires him to take recourse to the specific
remedy provided in Article 117 of the Constitution."
In the case of Junnur Rahman —VS- BSRS,51 DLR AD 180, it was held
that the writ petition was not maintainable and the proper forum was
Administrative Tribunal as there was in fact no violation of fundamental
right. In that decision, A.T.M. Afzal,C.J. held in paragraph 6 as under:
"The High Court Division found no violation of the fundamental right of
the petitioner under Articles 27 and 29 of the Constitution because of the
impugned circular and office order as alleged. The High Court Division
further found that since there was no question of violation of any
fundamental right of the petitioner, the writ petition was not maintainable
in as much as the relief sought for by the petitioner was within the
exclusive Jurisdiction of the Administrative Tribunal".

In the case of Abu Taleb- Vs-Bangladesh, 45 DLR(AD) 45,

M.H.Rahman,J. explained the word 'rehearing' and held at paragraph 10
as under:
"As the decision pronounced oil 12, 1989 was not made as per sub-
rule(9) of rule 6 of the Rules it did not reach any finality. The Appellate
Tribunal did not became functus officio on that date and it had the
jurisdiction as an adjudicating body to recall that decision subsequently
and order for rehearing."
Articles 118 & 119 The Constitution of the Peoples Republic of Bangladesh 201

PART VII
ELECTIONS
Article 118. (1) Establishment of Election Commission-There shall be
an Election Commission for Bangladesh consisting of a Chief Election
Commissioner and such number of other Election Commissioners, if any,
as the President may from time to time direct, and the appointment of the
Chief Election Commissioner and other Election Commissioners (if any)
shall, subject to the provisions of any law made in that behalf, be made by
the President.
(2) Whcn the Election Commission consists of more than one person, the
Chief Election Commissioner shall act as the chairman thereof.
(3) Subject to the provisions of this Constitution the term of office of an
Election Commissioner shall be five years from the date on which he
enters upon his office, and–
(a) a person who has held office as Chief Election Commissioner
shall not be eligible For appointment in the service of the
Republic:
(b) any other Election Commissioner shall, on ceasing to hold
office as such, he eligible for appointment as Chief Election
Commissioner but shall not he otherwise eligible for
appointment in the service of the Republic.
4) The Election Commission shall be independent in the exercise of its
functions and subject only to this Constitution and any other law.
(5) Subject to the provisions of any law made by Parliament, the
conditions of service of Election Commissioners shall he such as the
President may, by order, determine
Provided that an Election Commissioner shall not be removed from his
office except in like manner and on the like grounds as ajudge of the
1 [Supreme Court].
(n Election Commissioner may resign his office by writing under his
hand addressed to the k-'rcsideni.

Article 119. 2(1) Functions of Election Commission—The

superintendence, direction and control of the preparation of the electoral
rolls for elections to the office of President and to Parliament and the

The words Supreme Court" were substituted for the words "High Court" by the Second
Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. I of 1977).
2 Clause (1) was suhsttuted for the former clause (I) by the Constitution (Twelfth Amendment)
Act. 1991 (Act XXVIII of 1991), s. 12.
 202 The Constitution oft/ia Peoples Republic of Ba,ii,'Iw/cs/, .1 ,iicic.c 120-122

conduct of such elections shall vest in the Election Commission which

shall, in accordance with this Constitution and any other law-
(a) hold elections to the office of President:
(b) hold elections of members of Parliament:
(c) delimit the constituencies for the purpose of elections to
Parliament; and
(d) prepare electoral rolls for the purpose of elections to the office
of President and to Parliament. I
(2) The Election Commission shall perform such functions, in addition to
those specified in the foregoing clauses, as may he prescribed by this
constitution or by any other law.

Article 120. Staff of election commission—The President shall, when SO

requested by the Election Commission, make available to it such staff as
may be necessary for the discharge of its functions under this Part.

Article 121. Single electoral roll for each constituency—There shall he

one electoral roll for each constituency for the purposes of elections to
Parliament, and no special electoral roll shall be prepared so as to classify
electors according to religion, race, caste or sex.

,#tticle 122. (1) Qualifications for registration as voter—The elections

/ /l* * * * to Parliament shall he on the basis of adult franchise.
(2) A person shall he entitled to be enrolled on the electoral roll for a
constituency delimited for the purpose of election to the Parliament, if
he–
(a) is a citizen of Bangladesh:
(b) is not less than eighteen years of age:
(c) does not stand declared by a competent court to be of unsound
mind: 2[and]
(d) is or is deemed by law to be a resident of that constituency [.
4* * * * * * * * * * *
5* * * * * * * * * *

The words 'to the offices of President and Vice-President and were omitted by the
Constituion (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991). s. 13(a).
2 Thc word "and" was added by the Second Proclamation (Third Anwndineut) Order. 1975
(Second Prclamation Order No. III of 1975)_
3 The lull-stop was substituted for the semi-colon and word '; and". ibid.
4 Sub-clause (e) was omitted. ibid.
Clause (3) was omitted by the Constitution (Twelfth Amendment) Act, 1991 (Act XXVII! 01

1991).s. 13(b).
Articles 123 & 124 The Constitution of the People's Republic of Bangladesh 203

Article 123. l[(1) Time for holding elections—in the case of a vacancy
in the office of President occurring by reason of the expiration of his term
of office an election to fill the vacancy shall be held within the period of
ninety to sixty days prior to the date of expiration of the term :-
Provided that if the term expires before the dissolution of the Parliament
by members of which he was elected the election to fill the vacancy shall
not he held until after the next general election of members of Parliament,
but shall be held within thirty days after the first sitting of Parliament
following such general election.
(2) In the case of a vacancy in the official of President occurring by reason
of the death, resignation or removal of the President, an election to fill
the vacancy shall he held within the period of ninety days after the
occurrence of the vacancy.]
2[(3) A general election of members of Parliament shall be held within
ninety days after Parliament is dissolved, whether by reason of the
expiration of its term or otherwise than by reason of such expiration.]
(4) An election to fill the seat of a member of Parliament which falls
vacant otherwise than by reason of the dissoution of Parliameit shall
be held within ninety days of the occurrence of the vacancy
3 [Provided that in a case where, in the opinion of the Chief Election
Commissioner, it is not possible, for reasons of an act of God, to hold
such election within the period specified in this clause, such election
shall he held within ninety days following next after the last day of
such period.]

Article [124. Parliament may make provision as to elections—Subject

to the provisions of this Constitution. Parliament may by law make
provision with respect to all matters relating to or in connection
with elections to Parliament, including the delimitation of
constituencies, the preparation of electoral rolls, the holding of

Clauses (I) and (2) were substituted for clauses 1). (2). (2A) and (213) by the Constitution
(Twelfth Amendment) Act. 1991 (Act XXVIII of 1991). s. 14(a).
2 Clause (3) was substituted for the former clause (3) by the Constitution (Thirteenth Amendment)
Act, 1996 (Ac! I of 1996). s. 6.
The colon was substituted for the lull-stop at the end of clause (4) and thereafter the proviso was
added by the Constitution (Twelfth Amendment) Act. 1991 (Act XXVIII of 1991), s. 14(b).
Article 124 was substituted for the former article 124. ibid. s. 15.
204 The Constitution of the People ' s Republic of Bangladesh Articles 125 & 126

elections. and all other matters necessary for securing the due
Constitution of Parliament.]

Article 125. Validity of election law and elections—Notwithstanding

anything in this Constitution–
(a) the validity of any law relating to the delimitation of
constituencies, or the allotment of seats to scuh constituencies,
made or purporting to he made under article 124, shall not be
called in question in any court;
(b) no election to the 1 [offices of President 2 '"] or to Parliament
shall be called in question except by an election petition
presented to such authority and in such manner as may be
provided for by or under any law made by Parliament.

Article 126. Executive authorities to assist Election Commission—It

shall he the duty of all executive authorities to assist the Election
Commission in the discharge of its functions.
Case:
In the case of Jativa Part y –VS- Election Commission, 53 DLR (Al))
38, Latifur Rahman,C.J. while interpreting Article 118 of the Constitution
held at paragraph 9 as follows:
In the present case the order was passed by the Acting Chief Election
Commissioner alone and not by the Election Commission. The moot
question is whether a member who was acting as Chief Election
Commissioner can perform all or any of its powers and functions under
the representation of the People Order, 1972, briefly the order, without
there being any authorization by the commission itself. It has been
referred earlier that the Election Commission is constituted under Article
118 (1) of the Constitution and it consists of the Chief Election
Commission and such other Election Commissioners as may he
appointed by the President and they, in fact, constitute the Election
Commission of Bang'adesh. In that sense. Election Commission is it
composite body, and individual member can only act under Section 4 of
the order when he is authorized by the Commission itself."
In the case of A.F.M. Shah Ala,ii- Vs-Mujibui Haqiu' and others, 41
DLR(AD) 68, considering the importance of holding Free and fair election

The words "offices of President and Vice-President" were substituted for the wuids "of lice of
President by the Constitution (Ninth Amendment) Act, 1989 1 Act XXXVIII of 1989), s. 14.
2 The words "and Vice-President" were omitted by the Constitution (Twelfth
Amendment) Act. 1991 (Act XXVII of [991),s. 16.
,4,ttcic 126 The Constitution of the People's Repuhlic of Bangladesh 205

with promptitude, Badrul Haider Chowdhury,J. in paragraph 49 held as

undcr:
"On consideration of all aspects of the matter, our conclusions are as
follows:-
(1) Under rule 70 read with Section 24 of the Ordinance the Election
Commission has been vested with plenary, supervisory and
discretionary jurisdiction to oversee that an election is conducted
honestly, justly and fairly and in accordance with the provisions
of the Ordinance and the Rules.
(2) In .o doing it may pass any order, unless specifically barred,
including an order for repoll, acceptance/ consideration of result,
review etc. on the basis of materials before it. The observance of
the rule of and alteram partem though desirable in some
circumstances is not an invariable pre-condition for the validity
of such order.
3) The jurisdiction of the High Court Division under Article 102 of
the Constitutf.m cannot he invoked except on the very limited
ground of total absence of jurisdiction (coram non-judice) or
malice in law to challenge any step in the process of election
including an order passed by the Election Commission under
Rule 70 because
(a) the real and larger i . ue of completion of free and fair
election with rigorous promptitude for timely emergence and
functioning of elective bodies must take precedence over
settlement of private disputes.
(b) all election disputes must wait pending completion of the
election and he taken to the special forum created under the
Election Law itself for their resolution.
(c) almost invariably there will rise dispute over facts which
cannot and should not he decided in an extraordinary and
summary jurisdiction of writ.'
Case:
In the case of AltafHoscain —VS- Ahul Kashem, 45 [)LR (AD) 53, the
Election Commission's inherent power of superintendence, control and
direction under Article 119 of the Constitution came up for consideration.
Shahabuddin Ahmed,C.J. clearly spelt out the Election Commission's
powiin paragraph 9 of the above decision as under:
In our legal system relating to elections also the Election
Commission's inherent power under the provision of
'superintendence, control and direction' should be construed to
7 f),< The Constitution of the P'ople 's Republic of Bangladesh A,i,cI' 126

mean the power to supplement the statutory rules with the sole
purpose of ensuring free and fair elections. This power is to he
exercised with utmost restraint for frequent use of it is likely to
render the other statutory functionaries ineffective. It is rather
difficult to draw a line of demarcation of the field where this power
should be exercised and where should not. But from the experience
it is found that sometime statutory functionaries on the spot do not
make timely report as to any disturbance during poll or large scale
rigging at the time of counting of ballot papers either through
coercion or from dishonest motives. So, the general rule that when
election has been held peacefully and no report has been made
about any disturbances or jigging by the Presiding Officer or the
Returning Officer, then the Election Commission has no power to
interfere, cannot he taken for universal application. If, for instance,
the total number or votes cast in a centre exceed either total
number of ballot papers issued to the centre by the Election
Commission or the total number of voters enrolled for that centre,
then the latter may interfere even if everything is reported to have
been done peacefully. Similarly, if during the counting of ballot
papers a ballot box is found missing glaringly contradictory reports
as to the result of the counti.ng of votes, without reasonable
explanation, then the Election Commission need not wait for
determination of the dispute by the Election Tribunal. But when no
such thing has happened but allegation is brought after the
declaration of the result then it is always desirable that dispute, if
any, should go to the Tribunal for determination."
.4 ,iic!es 127-129 The Con.sti'ution of the People's Republic of Bwr'/ades/r 207

PART VIII
THE COM P TROLLER AND AUDITOR-GENERAL

Article 127. (1) Establishment of office of Auditor-General—There

shall be a Comptroller and Auditor-General of Bangladesh
(hereinafter referred to as the Auditor-General) who shall he
appointed by the President.
(2) Subject to the provisions of this Constitution and of any law made by
Parliament, the conditions of service of the Auditor-General shall be
such as the President may, by order, determine.

Article 128. (1) Functions of Auditor-General—The public accounts of

the Republic and of all courts of law and all authorities and officers of the
Government shall be audited and reported on by the Auditor-General and
for that purpose he or any person authoirsed by him in that .behalf shall
have access to all records, books, vouchers, documents, cash, stamps,
securities, stores or other government property in the possession of any
person in the service of the Republic.
(2) Without prejudice to the provisions of clause (1), if it is prescribed by
law in the case of any body corporate directly established by law, the
accounts of that body corporate shall be audited anci reported on by
such persofl as may be so prescribed.
(3) Parliament may by law require the Auditor-General to exercise such
functions, in addition to those specified in clause (1), as such law may
prescribe, and until provision is made by law under this clause the
President may, by order, make such provision.
(4) The Auditor-Genera!, in the exercise of his functions under clause (1),
shall not he subject to the direction or control of any other person or
authority.

Article 129. (1) Term of office of Auditor-General—The Auditor-

General shall, subject to this article, hold office until he attains the age of
sixty years.
(2) The Auditor-General shall not be removed from his office except in
like manner and on the like ground as a judge of the '[Supreme Court].
(3) The Auditor-General may resign his office by writing under his hand
addressed to the President.

'The words "Supreme Court" were substituted for the words "High Court" by the Second
Proclamation (Tenth Amendment) Order. 1977 (Second Proclamation Order No. I of 1977).
208 The Constitution of the People's Republic of Bangladesh A tc/c 130-132

(4) On ceasing to hold office the Auditor-General shall not be eligible

for further office in the service of the Republic.

Article 130. (1) Acting Auditor-General—At any time when the office
of Auditor-General is vacant, or the President is satisfied that the Auditor-
General is unable to perform his functions on account of absence, illness
or any other cause, the President may appoint a person to act as Auditor-
General and to perform the functions of that office until an appointment is
made under article 127 or, as the case may he, until the Auditor-General
resumes the functions of his office.

Article 131. Form and manner of keeping public accounts—The public

accounts of the Republic shall he kept in such form and in such
manner as the Auditor-General may, with the approval of the
President, prescribe.

Article 132. Reports of Auditor-General to he laid before

Parliament— The reports of the Auditor-General relating to the public
accounts of the Republic shall be submitted to the President, who shall
cause them to be laid before Parliament.

General Comments on this part

The Comptroller and Auditor General mainly performs two functions,
i.e. the control of moneys from the Consolidated Fund and the audit of
accounts. This power prevents misuse of Public money. His report is of
utmost importance because misuse of public fund by various ministries of
the Government are detected and wasteful expenditures are objected to.
Independence of the Auditor General has been ensured by the various
provisions of this part.
In U.K. the Comptroller and Auditor Genera] is the agent of the
Parliament and he submits his report to the Parliament.
Article 133 The Constitution of the People's Republic of Bangladesh 209

PART IX
THE SERVICES OF BANGLADESH
CHAPTER 1: SERVICES

Article 133. Appointment and conditions of service—Subject to the

provisions of this Constitution Parliament may by law regulate the
appointment and conditions of service of persons in the service of the
Republic
Provided that it shall be competent for the President to make rules
regulating the appointment and the conditions of service of such persons
until provision in that behalf is made by or under any law, and rules so
made shall have effect subject to the provisions of any such law.

Comments on Article 133

In our Constitution Chapter 1 of Part IX deals with the services of
Bangladesh. Parliament by law can regulate the appointment and
conditions of service of persons in the service of the Republic. But the
President can make rules on matters upon which the statutory rules are not
in existence.

Cases on Article 133

In the case of Bangladesh-Vs- Shafiuddin, 50 DLR(AD) 27, Mustafa
Kamal,J. interpreted Article 133 of the Constitution and held at paragraph
37 as follows:-
"Article 133 of our Constitution is clearly an enabling provision which
confers certain powers but does not impose any duty to legislate. It is not
obligatory for the parliament to make laws. No court can direct the
Parliament to make laws. Nor is it obligatory for the President to make
rules. No court can similarly direct the President to make rules, because
the rule-making power of the President is identical with that of the
Parliament."

In that decision, the learned Judge further held that in the absence of
law and rules under Article 133 of the Constitution, power under article
55(2) expressed to he taken in the name of the President (Article 55(4).
Such exercise of power is not unknown or without precedent in our
Jurisdiction.
210 The Constitution of the Peoples Republic of Bangladesh Article 134

Article 134. Tenure of office—Except as otherwise provided by this

Constitution every person in the service of the Republic shall hold office
during the pleasure of the President.

Comments on Article 134

The doctrine of pleasure theory as incorporated in our Constitution is a
legacy of the English doctrine that a servant of the crown holds office
during the pleasure of the sovereign.

Cases on Article 134

In the case of Ban'iadesh Vs. Zahangir Hossain, 34 DLR(AD) 173,
K.Hossain,C.J, while interpreting Article 134 of the Constitution held at
paragraph 14 as under:
"The position,therefore. is that a person who holds office during the
pleasure of the President and does not get protection of Article 135, as he
does not hold a civil post in the service of the Republic, his entire terms
and conditions of service, though governed by statutory rules, are at the
pleasure of the President, and so these statutory rules are but the
expression of the pleasure of the President, and not a Constitutional or
Statutory guarantee. His remedy for the breach of any of these rules will
be through official or departmental channel and not in a court of law.'
In the case of Major( Rid) A.F.M.ilafizur Rahnian –Vs- Bangladesh, 29
DLR 34, the question that initially came up for consideration is as to the
maintainability of the petition under Article 102 of the Constitution.
Shahabuddin Ahmed,J. on interpretation of Articles 134 and 135 of the
Constitution of Bangladesh held that Military Servant's employment being
dependent on President's pleasure, their rights cannot be enforced by a
Court. In that decision, it was further held that the nature of application
and the relief prayed for clearly show that it relates to terms and
conditions of the petitioner's service as a member of the Bangladesh Army
and hence writ petition is not maintainable.
In the case of Serajul Islam Thakur Vs. Government of Bangladesh,
the Senior Judge of the Special Bench. Mahammad 1-labibur Rahman,J.
while interpreting Articles 134 and 135 of our Constitution held as under
in paragraph 12.
"We will presently show that the members of defence services as well as
persons holding any civil post in the service of the Republic in view of
the provision of Article 134 of the Constitution of Bangladesh hold
office during the pleasure of the President but due to the protections
Article 134 The constitution of the People's Republic of Bangladesh 211

given to the persons holding any civil post in the service of the Republic
under Article 135 of the Constitution they are excluded from the
mischief of the absolute doctrine of pleasure(Vide AIR 1964 (SC) 600),
but as the members of the service of defence have not been given any
protection under the said Article 135 or any other Article of the
Constitution, they can be retired, dismissed, removed and terminated at
any time and against such orders passed against the members of the
defence services they cannot come to the ordinary courts( that is civil and
constitutional courts) for any relief or redress against such order."

In the case of Abu Saleh Md.Nasim Vs. Bangladesh, 51 DLR(AD)

101, while interpreting Article 134 of our Constitution Mustafa Kamal,J.
explained the pleasure theory at paragraph 6 of the decision as under:-
"The answer to this submission is, that all military personnel, especially
the post of Chief of Army Staffs which is a position of trust, hold their
posts during the pleasure of the President. In the case of the civilian
employees the pleasure is curtailed by Constitutional provisions but in
the case of military personnel there is absolutely no exception to the
theory of pleasure of the President in the Constitution."

In the case of Rear Admiral A.A.Mustafa-Vs- Bangladesh, 51

DLR(AD) 146, the question of pleasure theory was further considered by
the Appellate Division and Mustafa Kama], C.J. at paragraph 7 held as
under:
"As malafide vitiates every exercise of power, a malafide exercise of
pleasure by the President under Article 134 of the Constitution can be
brought within the purview of judicial review, if other provisions of the
Constitution are not a bar. But in the instant case we are not satisfied that
the President has exercised the power malafide. The two reports of a
court of Inquiry and a Commission of inquiry were confidential
documents. The Court of inquiry and the commission of inquiry were
constituted by the Government in exercise of the investigative power of
the State to inform itself as to the state of affairs when cyclonic storm
and tidal bore hit the country in the night between 29 and 30 April. 1991.
It was not for public information and consumption, but for fact-gathering
purpose of the Government."
In the case of Secretary, Ministry of Finance Vs. Masdar Hossain, 52
DLR(AD) 82,Mustafa Kamal,C.J. interpreted Article 134 of our
Constitution and held in paragraph 27 of that decision as under:-
212 The Constitution of the People's Republic of Bangladesh Article 135

In the definition of "the service of the Republic", a broad distinction

has been drawn between civil service and military service. All those who
are civilian public officers are entitled to the protection of Article 134.
The Constitution in Article 152(1) defines "public officer" as meaning "a
person holding or acting in any office of emolument in the Service of the
Republic". Persons appointed to the Secretariat of Parliament and the
Staff of the Supreme Court. although governed by separate terms and
conditions of service, are entitled to the protection of Article 134,
because they are public officers holding or acting in an office of
emolument in the service of the Republic. They are not in the executive
administrative service of the executive government of Bangladesh, but
broadly, and in a generic sense, in a service in respect of the Government
of Bangladesh. The definition of the "Service of the Republic" uses the
word "Government" in a generic sense. Hence on that ground the
members of the Judicial Service cannot be excluded from the ambit of
"the Service of the Republic".

Case on pleasure theory

1. Major General Moinul Hossain Chowdhurv(Retd.)-Vs-Bangladesh,
50 DLR(AD) 370.

Article 135. (1) Dismissal etc. of civilian public officers—No person

who holds any civil post in the service of the Republic shall be dismissed
or removed or reduced in rank by an authority subordinate to that by
which he was appointed.
(2) No such person shall be dismissed or removed or reduced in rank until
he has been given a reasonable opportunity of showing cause why that
action should not be taken

Provided that this clause shall not apply-

(i) where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction of a
criminal offence; or
(ii) where the authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that, for a reason recorded
by that authority in writing, it is not reasonably practicable to
give that person an opportunity of showing cause; or
(iii) where the President is satisfied that in the interests of the
security of the State it is not expedient to give that person such
an opportunity.
Article 135 The Constitution of the People's Republic of Bangladesh 213

(3) If in respect of such a person the question arises whether it is

reasonably practicable to give him an opportunity to show cause in
accordance with clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in rank
shall be final.
(4) Where a person is employed in the service of the Republic under a
written contact and that contract is terminated by due notice in
accordance with its terms, he shall not, by reason thereof, be regarded
as removed from office for the purposes of this article.

Comments on Article 135

This article protects civil servants from dismissal, removal and
reduction in rank by providing certain safeguards in the nature of
reasonable opportunity of showing causes against any of those proposed
actions against a person holding civil post.
Compulsory retirement: In Bangladesh, a Government servant retires
at the age of 57 years by law. But the law has also provided for
compulsory retirement of a Government servant after an employee has
completed 25 years of service.
Reference: -Dr. Nurul Islam-Vs-Bangladesh, 33 DLR(AD) 201.
Reduction in rank: It means reversion of a employee from a higher to
lower rank. When an employee is temporarily holding a higher rank on
probation or on an ad hoc or officiating basis, his reversion from the
higher rank to his substantive rank is not reduction in rank. When a person
is appointed to a post, substantively or temporarily, his reversion to a
lower post which he never held at any point of time will amount to
reduction of rank and such employee is entitled to the protection of Article
135(2).
In the case of Ban gladesh-Vs-Md.Isinail Hossain, 31 DLR(AD) 127,
the question of reduction in rank come up for consideration. The
respondent while holding substantively the post of District Kanorigo was
appointed temporary to EPCS( Class II) Cadre which is temporary
dependent on yearly sanction. After 7 years of service respondent was
reverted to the post of District Kanongo without notice. In that case,
Mahmud Husain,C.J. held at paragraph 6 as under:
"In our view the respondent held his office substantively in the
temporary cadre and he cannot be removed during the period the
cadre remains in existence except for misconduct or some such
reason and by following the service rules."
214 The Constitution of the People's Republic of Bangladesh Article 135

Thus Article 135(2) is attracted in the present case as it is case of

reduction in rank.

Case:
Saieh Ahmed Joarder- Vs-Bangladesh, 36 DLR(AD) 26,(This case
falling within the four corners of the above case of Ismail Hossain).

Cases on Article 135

In the case of Bangladesh-Vs- Abdul Motaleb Dewan and others, 45
DLR(AD) 108, M.H.Rahman,J. while interpreting Article 135 of our
Constitution held in paragraph 4 as follows:-
"Furthermore, as an order for compulsory retirement by way of penalty
amounts to removal from service the respondents are also entitled to
protection under Article 135 of our Constitution."

Further, in that decision, at paragraph 6 it has further been observed as

follows:-
"In these matters the respondents are entitled to the protection under
Article 135(1) of the Constitution and such protection cannot be
taken away either by the Parliament in its statute making power or by
the President in his rule making power. The Constitutional guarantee
given under Article 135 of the Constitution cannot be whittled down
by designating an officer lower in rank than the one who was the
appointing authority at the time of the appointment of the
respondents."
In the case of Bangladesh- Vs-Md. Fazlul Huq, 43 DLR(AD) 144, a
question was raised as to whether a postal clerk who was asked to act as
an Inspector on purely temporary basis, on being reverted to his
substantive post after about five years of service can be termed as
reversion in service and entitled to the protection of Article 135 of the
Constitution.
In that decision, M.H.Rahman,J. held at paragraph 32 as under:
"The uninterrupted service rendered by the respondent for about five
years, if considered as "one non-temporary or quasi-permanent", as
suggested by the learned counsel for the respondent, even then the
impugned order of reversion cannot be termed as an instance of
reduction in rank for attracting the protection under Article 135 of the
Constitution. The language of the impugned order indicates in
unmistaken manner that it has never meant to be order of promotion. In
Article 135 The Constitution of the Peoples Republic of Bangladesh 215

the facts of the case the respondent was not entitled to any show cause
notice nor there was any violation of any principles of natural justice."
In the case of Jam una Oil Company Vs. Sk. Dey and others, 44 DLR
104, Mustafa Kamal,J. considered the question of a reasonable opportunity
of showing cause as contemplated in Article 135 of our Constitution and
held in clear terms in paragraph 24 as follows:-
"In Article 135 of our Constitution a person holding any civil post in the
service of the Republic is entitled to a second show cause notice in the
event of dismissal., removal or reduction in rank, but that is a
Constitutional protection given to them. We are unable to extend the
application of this protection to the employees of a statutory corporation
on the ground of natural justice. This protection can only be extended by
statutory Rules and it is apparent that at the time of dismissal of the
plaintiff from his service in 1979 no statutory Rules afforded this
protection to the plaintiff."
In the case of Dr.Nurul Islam Vs. Bangladesh, 33 DLR(AD) 201,
Article 135, the reasonable opportunity of show to a Government
servant was considered, wherein R. Islam,J. in paragraph 103
observed as under:-
"Article 135 provides the Constitutional protection to the Government
servants, who have title to the office, against arbitrary and summary
dismissal or removal. From this it can be safely held that the Government
or the legislature cannot by framing a Rule or by enacting a law evade
the guarantees provided under the fundamental rights and the protection
provided under Article 135 of the constitution. In my opinion the
impugned law, that is. Sub-section (2) of section 9 or Act XII of 1974
giving the discretion to the Government without any guideline, to retire a
Government servant without assigning any reason, on his completing 25
years of service, is unconstitutional, and as such it is void on this ground
also."
In the case of Bangladesh —Vs- A.K.M. Zahangir Hossain, 34
DLR(AD) 173, K, Hossain C. J. interpreted Article 135 of the
Constitution and held at paragraph 13 as under:
"The constitution guarantee to the person holding a civil post is that he
shall not be (1) dismissed, (2) removed or (3) reduced in rank by any
authority subordinate to one by whom he was appointed and secondly, no
such action could be taken against him, unless he has been given a
reasonable opportunity of showing cause why that action should not be
taken."
216 The Constitution of the Peoples Republic of Bangladesh Article 136

The following case illustrate above proposition of law:-

(1) D.G.Prisoners & ors. –Vs- Md.Nasitnuddin, 53 DLR(AD) 30.

Article 136. Reorganisation of service—Provision may be made by law

for the reorganisation of the service of the Republic by the creation,
amalgamation or unification of services and such law may vary or revoke
any condition of service of a person employed in the service of the
Republic.

Cases on Article 136

In the case of Secretary, Ministry of Finance-Vs- Masder Hossoin,
52 DLR(AD) 82, Latifur Rahman,J. while interpreting Article 136
of the Constitution dealing with re-organisation of Service held
that the conditions of service is to be separately framed for persons
employed in the 'Judicial Service'. In that decision at paragraph 86
it was observed as follows:-.
"Article 136 of Part IX speaks of reorganization of service of the
Republic by creation, amalgamation or unification of services and such
law may vary or revoke any condition of service of a person employed in
the service of the Republic. This concept of reorganization of service is
available to all other civil post including executive service of Republic
other than members of judicial service and magistrates exercising
judicial functions as they have been treated separately under articles 115,
116 and IIÔA of the constitution. Article 136 refers to all general
services of civil post. Judicial service has been separately treated in the
relevant constitutional provisions and as such conditions of service is to
be separately framed under Article 133 and it cannot be tagged as
Bangladesh Civil Service (Judicial) under paragraph 2 (X) of Act XXII
of 1975.

In the case of Bangladesh, the Secretary, Ministry of Finance –Vs-

A.Rahrnan, 1982 BLD(AD) 176, respondent, a selection grade, Auditor
challenged his placement in National Grade No.XIV from Grade XII as
discriminatory and violative of Article 29 of the Constitution. The High
Court Division accepted his contention, but the Appellate Division set
aside the judgment of the High Court Division. Shahabuddin Ahmed,J.
held at paragraph 6 as under:
"Article 136 of the Constitution empowers the Government to re-
organise the "Services of the Republic" by the "creation,
Articles 137 l 138 The (I'onsiiturion of the People's Republic of Ruiiilaitesh 217

amalgamation or unification of services" and for that purpose

Government may, by law vary or revoke any condition of service of
a persoil employed in the Service of the Republic. In pursuance of
this Article, Act XXXII of 1975 was made. Under section 4 of this
Act Government issued the impugned Notification No.MP(E 1)-UI-
3/77/850 dated 20 December, 1977 by which placements of the
respondent and other persons in the service of the Republic were
made. This Notification and all action taken thereunder got effect
notwithstanding anything inconsistent therein contained in any other
law in force. The Notification, therefore, cannot be questioned on the
ground that it has varied or revoked the condition of service of a
Government servant to his disadvantage."

CHAPTER II: PUBLIC SERVICE COMMISSIONS

Article 137. Establishment of Commissions—Provision shall he made
by law for establishing one or more public service commissions for
Bangladesh, each of which shall consist of a chairman and such other
members as shall he prescribed by law.

Comments on Article 137

Chapter II of part IX deals with Public Service Commission. Puhlic
Service Commission was established under Article 137 of our constitution
for conducting recruitment tests, examinations and selecting suitable
candidates for appointment in various cadre services of Bangladesh and
for providing uniform recruitment policies

Article 138. (1) Appoinment of members—The chairman and other

members of each public service commission shall be appointed by the
President
Provided that not less than one-half of the members of a commission
shall he persons who have held office for twenty )ears or more in the
service of any government which has at any time functioned within the
territory of Bangladesh.
(2)Subject to any law made by Parhiarncn the conditions of scrvice 1ol the
chail'man ( and other niembersof a public service commission shall be
such as the President may, by order. determine,
218 The Constitution of the Peoples Repithik q &dngluJesh A inc/es 13V & 14()

Article 139. (1) Term of office—The term of office of the chairman and
other members of a public service commission shall. u ject to the
provisions of this article, expire five years after the date on which he
entered upon his office, or when he attains the age of sixty-two years,
whichever is earlier.
(2) The chairman and other members of such a commission shall not be
removed from office except in like manner and on the like grounds as
a judge of the '[Supreme Court].
(3) A chairman or other member of a public service commission may
resign his office by writing under his hand addressed to the President,
(4) On ceasing to hold office a member of a public service commission
shall not be eligible for further employment in the service of the
Republic, hut, subject to the provisions of clause (1)-
(a) a chairman SO ceasing shall he eligible for re-appointment for
one further term; and
(b) a member (other than the chairman) so ceasing shall be
eligible for re-appointment for one further term or [or
appointment as chairman oF a public service commission.

Article 140. (1) Functions of Commission—The functions of a public

service commission shall he----
(a) to conduct tests and examinations for the selection of suitable
persons for appointment to the service of the Repuhlic
(b) to advise the President on any matter on which the commission
is consulted under clause (2) or on any matter connected with
its functions which is referred to the commission by the
president; and
(c) such other functions as may he prescribed by law.
(2) Subject to the provisions of any law made by Parliament. and any
regulation (not inconsistent with such law) which may be made b y the
President after consultation with a commission, the President shall consult
commission with respect to—
(a) matters relating to qualifications for, and methods of
recruitment to, the service of the Republic;

'The words "Supreme Court" were substituted for the words "High Court" by the Second
Proclamation (Tenth Amendment) Order. 1977 (Second Proclamation Order No. I of
1977).
Article 141 The Constitution oft/ic Peoples Republic of Bangladesh 219

(b) the principles to be followed in making appointments to that

service and promotions and transfers from one branch of the
service to another, and the suitability of candidates for such
appointment, promotions and transfers;
(c) matters affecting the terms and conditions (including pension
rights) of that service; and
(d) the discipline of the service.

Case on Article 140 (2)

In the case of Ban gladesh–Vs-ShafIuddin Ahmed, 50 DLR (AD) 27,
Mostafa Kamal,J. interpreted Article 140(2) of the constitution and held at
paragraphs 23 and 24 as follows:
"To us, it appears, the words The President shall consult a
commission" is not mandatory. When, however, a law or regulation is
framed requiring consultation but no consultation is made, the Court may
interfere in Public interest
...........................................But we should not be understood to have
given a carte blanche for the Parliament and the president to make sub-
clauses (a) to (d) of clauses (2) a dead, and moribund provision. The sub-
clauses must be kept alive at all times and the exclusion must be all
exception, not a rule, based on sound principles of public Administration
and good government. The exclusion will not be so random and
indiscriminate as to render sub-clauses (a) to (d) of clause (2) of Article
140 nugatory."

Article 141. (1) Annual report—Each commission shall, not later than
the first day of March each year, prepare and submit to the President a
report on the performance of its functions during the period ended on the
previous 3l day of December.
(2) The report shall he accompanied by a memorandum setting out, so far
as is known to the commission—
(a) the cases, if any, in which its advise was not accepted and the
reasons why it was not accepted:
b) the cases where the commission ought to have been consulted
and was not consulted, and the reasons why it was not
consulted.
(3) The President shall cause the report and memorandum to be laid before
Parliament at its first meeting held after 31 March in the year in
which the report was submitted.
22() The Constitution of the People's Republic of Ba,i'laJc./, ,,14,141A

1 IPART IXA
EMERGENCY PROVISIONS

Article 141A. (I) Proclamation of emergency—If the President is

satisfied that a grave emergency exists in which the security or
economic life of Bangladesh, or any part thereof, is threatened by war
or external aggression or internal disturbance, he ma y issue a
Proclamation of Emergency:
2 * * * * * * * * * *
3 [Provided that such Proclamation shall require lor its validity the
prior counter signature of the Prime Minister.]
(2) A Proclamation of Emergency—
(a) may be revoked by a subsequent Proclamation:
(b) shall be laid before Parliament:
(c) shall cease to operate at the expiration of one hundred and
twenty das, unless before the expiration of that period it has
been approved by a resolution of Parliament
Provided that if an y such Proclamation is issued at a time when
Parliament stands dissolved or the dissolution of Parliament takes place
during the period of one hundred and twenty days refOrred to in sub-clause
(c), the Proclamation shall cease to operate at the expiration of thirty days
from the date on which Parliament first meets alter its re-constitution.
unless before that expiration of the said period of thirty days a resolution
approving the Proclamation has been passed by Parliament.
(3) A Proclamation of Emergency declaring that the security of
Bangladesh, or any part thereof, is threatened b y war or external
aggression or by internal disturbance may be made helore the actual
occurrence of war or any such aggression or disturbance if the
President is satisfied that there is imminent danger thereof.

l'ai t IX,\ .vas inserted hv the Consiiiiiiiun (Second Amendment) Act. 1973 (Act XXIV of
1973). S. 6.
2 The proviso was niniItci by the Constitution (l-otiith Amendment) Act, 197 Act ii of 1975,

lie Proviso was added by the Constitution (Iwelith Amendment) Act. 1991 (Ai t XXV Ill ol
1991. N. 17
Article 141B & C The (]ons!itutio,i 0/ the Peoples Republic of Bangladesh (22
Article 141142 Suspension of provisions of certain articles during
emergencies—While a Proclamation of Emergency is in operation,
nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the
State to make any law or to take any executive action which the State
would, but for the provisions contained in Part III of this Constitution, be
competent to make or to take, but any law so made shall, to the extent of
the incompetency, cease to have effect as soon as the Proclamation ceases
to operate, as respects things done or omitted to be done before the
excMve effect.
law so c eases

Article 141C. (1) Suspension of enforcement of fundamental rights

during emergencies—While a Proclamation of Emergency is in
operation, the President may. I [on the written advice of the Prime
Minister, by order], declare that the right to move any court for the
enforcement of such of the rights conferred by Part HI of this Constitution
as ma y be specified in the order, and all proceedings pending in any Court
for the enforcement of the right SO specified, shall remain suspended for
the period during which the Proclamation is in force or for such shorter
period as may he specified in the order.
(2) An order made under this article may extend to the whole of
Bangladesh or an y part thereof.
(3) Every order made under this article shall, as soon as may he, he laid
before Parliament. I

The words and coitinia on the written advice of the Prime Minister, hy order" were
uhaituted For the words 'by oidcr" bv the Constitution (Twelfth Amendment) Act. 1991
(Act XXVIII of 1991), IS
2 2 The Consniution of the Peoples Republic of Bangladesh Article 142

PART X
AMENDMENT OF THE CONSTITUTION
Article 142. I (1) Power to amend 2** any provision of the
Constitution—Notwithstanding anything c"ained in this Constitution—
(a) any provision thereof may be 3 [amended by way of addition,
alteration, substitution or repeal] by Act of Parliament
Provided that-
(i) no Bill for such amendment 2** shall be allowed to
proceed unless the long title thereof expressly states that it
will amend a provision of the Constitution:
(ii) no such Bill shall be presented to the President for assent
unless it is passed by the votes of not less than two-thirds
of the total number of members of Parliament:
(h) when a Bill passed as aforesaid is presented to the President
for his assent he shall, within the period of seven days after
the Bill is presented to him assent to the Bill, and if lie fails so
to do he shall be deemed to have assented to it on the
expiration of that period.
4 [(IA) Notwithstanding anything contained in clause (1), when a Bill,
passed as aforesaid, which provides for the amendment of the Preamble of-
any provisions of articles 8, 48 5 [or] 56 6*** or this article, is presented to
the President for assent, the President, shall, within the period of seven
days after the Bill is presented to him, cause to he referred to a referendum
the question whether the Bill should or should not be assented to.
(lB) A referendum under this article shall be conducted by the Election
Commission, within such period and in such manner as may be
provided by law, amongst the persons enrolled on the electoral roll
prepared for the purpose of election to 7[Parliament].
(IC) On the day on which the result of the retrenduni conducted in
relation to a Bill under this article is declared, the President shall be
deemed to have—

Article 142 was re-numbered as clause (I) of that article by the Constitution(Second
Amendment) Act, 1973 (Act XXIV of 1973), s. 7.
2 The words 'or repeal" were omitted. ibid.
The words and commas "amended by way of addition, alteration, substitution or repeal" were
substituted for the words "amended or repealed," ibid.
Clauses (IA), (I B) and (IC) were inserted by the Second Proclamation(Filteenili
Amendment) Order, 1978 (Second Proclamation Order No. IV of 1978).
5 The word "or" was substituted for the comma "," by the Constitution (Twelfth Aniendnient
Act. 1991 (Act XXVIII of 1991)s. 19(a).
6 The commas and figures ", 58, 80, 92A" were omitted, ibid.
' The word "Parliament" was substituted for the words "the office of Piesiderit" h', [lie
Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), s. 9(h).
it hide 142 The Constitution of the People's Republic of Bangladesh 223

(a) assented to the Bill, if the majority of the total votes cast are in
favor of the Bill being assented to; or
(h) withheld assent thereform, if the majority of the total votes
cast are not in favour of the Bill being assented to.]
'[( ID ) Nothing in clause (IC) shall be deemed to be an expression of
confidence or no-confidence in the Cabinet or Parliament.]
2 [(2) Nothing in article 26 shall apply to any amendment made under this
article.]
Case on Article 142
In the case of Anwar Hossain Chowdhurv-Vs-Bangladesh, 4,1
DI-R(AD) 165, S.Ahnied,J. held at paragraph 385 as under:
"The Constitution of Bangladesh is a controlled one because a special
procedure and a special majority-two thirds of the total strength of the
parliament are required for its amendment. Besides, further limitation has
been imposed by amending Article 142 which requires a referendum in
certairiThatters. Learned Attorne eneral quoting from a dissenting
vtv in case argued that the rigidity n the amendment
process as it is to-day if made more rigid by implied limitation, will leave
no scope for peaceful change and this may lead to change by violent and
unconstitutional means, such as revolution. I would not very much
appreciate this argument for,iivadays, there is hardly any revolution in
the sense of French or Russian revolution for radical change of socio-
economic structure, What is spoken of as revolution in the third world
countries is the mere seizure of state power by any means, fair or foul. If
a real revolution comes, it cannot be prevented by a constitution,
however, flexible it might be."
Further, in the above decision, B.H.Chowdhury,J. at paragraph 215 held as
under:
"A Constitution is a mechanism under which laws are to be made and not
a mere Act which declares what laws are to he (See AIR 1939 FC at
page 4). The power to amend the Constitution is there within the
Constitution itself, namely, Art i cle 142. Constitution is the orig[n dl- and
Supreme will. The powers of legislatures are defined and limited and
these limits may not be mistaken or forgotten when the constitution is
written."

Clause (1D) was inserted ibid., s. 19(c).

2
Clause (2) was added by the Constitution (Second Amendment) Act, 1973 (Act
XXIV of 1973), s. 7,
224 The Constitution of i/u' People '.s R1'pfthl:: / Rn Iu/Ii Ili iult' 143

PART XI
MISCELLANEOUS

Article 143. (1) Property of the Republic—Thcre shall vest in the

Republic, in addition to any other land or property lawfully vested-
((i) all minerals and other things of value underlying any land of
Bangladesh.
(h) all lands, minerals and other thins of value underlyine the
ocean within the territorial waters, or the ocean over the
continental shelf, of Ban g ladcsh and
(c) any property located in Bangladesh that has no rightful
owner.
(2) Parliament may from time to time by law provide for the
determination of the boundaries of the territory of Bangladesh and of
the territorial waters and the continental shc!f f ianoladcsh.

Cases on Articlel43
In
the case of Con/rc'e /,iiui'J ii,/
Transmission, 42 DLR 33, question ot enforcement of Writ jurisdiction
with regard to a contract entered into by dint of constitutional provision
under Article 143 of our Constitution came up for consideration. In that
decision, Abdul Matin Khan C'howdhur y .J at ILraaI'a p h 33 observed as
follows:-
"In the present case, it has alrcad bcca Nar\ cJ 111,11 the state is 111C
owner of natural gas iii its sovereign Lapacily by dint 01'a constitutional
provision i.e. Article 143 of the Constitution and the Government is
empowered to explore, distribute, sell etc. this wealth under the
Bangladesh Petroleum Act, 1974. There is, therefore, no doubt that
respondent No.! entered into a contract with the petitioner for supplying
this Wealth as a subsidiary of the Goverrinient authorized to exercise
Government's Power to deal with this wealth. As such, the contract in
this case was not an ordinary contract like "supply of cliarivs" and as
not entered into by the respondent No. I acting iii the "Trad i ng Capacity"
and discharging an ordinary tradin g function of the Government, It
on the other hand, a contract necessitated for performing (lie lunction of
the state as a sovereign power and arising out of statutory rules. As such,
respectfully following the principles enunciated in the above case. We
are of the view that although the relief sought for in this petition arises
out of a contract, the petition is maintainable."
Articles 144-146 The Constitution of the Peoples Republic of Bangladesh 225
Article 144. Executive authority in relation to property, trade etc.—
The executive authority of the Republic shall extend to the acquisition,
sale, transfer, mortgage and disposal of property, the carrying on of any
trade or business and the making of any contract.

Article 145. (1) Contracts and deeds—All contracts and deeds made in
exercise of the executive authority of the Republic shall be expressed to be
made by the President, and shall be executed on behalf of the President by
such person and in such manner as he may direct or authorise.
(2) Where a contract or deed is made or executed in exercise of the
executive authority of the Republic, neither the President nor any
other person making of executing the contract or deed in exercise of
that authority shall be personally liable in respect thereof, but this
article shall not prejudice the right of any person to take proceedings
against the Government.

Article [145A. International treaties—All treaties with foreign

countries shall be submitted to the President, who shall cause them to be
laid before Parliament:
2 [Provided that any such treaty connected with national security shall he
laid in a secret session of Parliament.]].

Article 146. Suits in name of Bangladesh—The Government of

Bangladesh may sue or be sued by the name of Bangladesh.

Case on Article 146

In the case of Md. Al. Eindad –Vs- Labour Director and others, 18
BLD (AD) 137, A. T. M. Afza], C. J. while interpreting Article 146 of the
constitution held at paragraph 21 as under:
"In an application by a person in the service of the Republic the correct
method is to follow article 146 of the constitution which provides that the
government of Bangladesh may sue or be sued by the name of
Bangladesh. The applicant has of course to mention a competent official
in the facts of a particular case who can represent Bangladesh. If the

Article 145A was inserted by the Second Proclamation (Fifteenth Amendment)

Order, 1978 (Second Proclamation Order No.IV of 1978).
2 The proviso was substituted for the former proviso by the Constitution (Twelfth
Amendment) Act, 1991 (Act XXVIII of 1991). s.20.
226 The Constitution of the Peoples Republic of Bangladesh Article 147

government or the statutory public Authority is not made party or is not

properly described in the application, the opposite parties musi raise
objection if they want to at the earliest stage so that the applicant may get
an opportunity to take necessary steps. If the proper party is not before.
the Tribunal then whether any objection is raised or not the applicant will
run the risk of having an effective order to his peril and his application
may be adjudicated as incompetent."

Article 147. (1) Remuneration, etc., of certain officers— The

remuneration, privileges and other terms and conditions of service of a
person holding or acting in any office to which the article applies shall be
determined by or under Act of Parliament, but until they are so
determined—
(a) they shall be those (if an y ) appertaining to the person holding
or, as the case may be, acting in the office in question
immediately before the commencement of the Constitution; or
(b) if the preceding sub-clause is not applicable, they shall be
determined by order made by the President.
(2) The remuneration, privileges and other terms and conditions of
service of a person holding or acting in any office to which this article
applies shall not be varied to the disadvantage of any such person
during his term of office.
(3) No person appointed to or acting in any office to which this article
applies shall hold any office, post or position of profit or emolument or
take any part whatsoever in the management or conduct of any
company, association or body having profit or gain as its object:
Provided that such person shall not for the purposes of this clause be
deemed to hold any such office, post or position by a reason only that
he holds or is acting in the office first above-mentioned.
(4)This article applies to the offices of—
(a) President;
1* * * * * *

2 [(b) Prime Minister or Chief Adviser;]

Sub-clause (aa) was omitted by the Constitution (Twelfth Amendment) Act, 1991 (Act
XX VIII of 1991). s. 21(a).
2 Sub-clause (b) was substituted for the former sub-clause (b) by the Constitution
(Thirteenth Amendment) Act, 1996), s.7(a).
Article 148 The Constitution of the People's Republic of Bangladesh 227
(c) Speaker or Deputy Speaker;
1 [(d) Minister, Adviser, Minister of State or Deputy Minister;]
(e) Judge of the Supreme Court;
2* * * * *

(1) Comptroller and Auditor-General;

(g) Election Commissioner;
(h) Member of a public service commission.

Case on Article 147

In the case of Conunissioner of Taxes Vs. Shahabudd jn Ahmed, 42
DLR(AD) 162, a question was raised as to whether the salary of Supreme
Court Judges being exempted from taxation could it be included for the
purpose of taxation while computing their total income.
B.H.Chowdhury, J. answered this in the negative and held in
paragraph 13 as under:
"Thus, the terms and conditions of service of a Supreme Court , -idge was
sanctified by constitutional provision and as such President' 'rder
No.21 of 1973 having the backing of the constitutional provision
achieved the status of Sub-constitutional legislation. Therefore, the
question is whether such sub-constitutional legislation can be displaced
by the notification exercise of section 60 of the Income Tax Act. Mr.
Moksudur Rahman frankly conceded that the President's Order No.2 I of
1973 is a legislative order and not merely executive power inasmuch as it
has the backing of the constitutional provision, namely, Article 147."

Thus it was held that the notification has no manner of application in the
case of the Judges of the Supreme Court.

Article 148. (1) Oaths of office—A person elected or appointed to any

office mentioned in the Third Schedule shall before entering upon the
office make and subscribe an oath or affirmation (in this article referred to
as "an oath") in accordance with that Schedule.

Sub-clause (d) wad substituted for the former sub-clause (d) by the Constitution
(Thirteenth Amendment) Act, 1996 (Act I of 1996),s.7(b).
2 Sub-clause (cc) was
omitted by the Second Proclamation (Tenth amendment)Order,
1997 (Second Proclamation Order No. I of 1977).
228 The Constitution of the People's Republic of Bangladesh Articles 149-151

1 * * * * * *

(2) Where under this Constitution an oath is required to be administered

by a specified person 2* * , it may be administered by such
other person and at such place as may be designated by that person.
(3) Where under this Constitution a person is required to make an oath
before he enters upon an office he shall be deemed to have entered
upon the office immediately after he makes the oath.

Article 149. Saving for existing laws—Subject to the provisions of this

Constitution all existing laws shall continue to have effect but may be
amended or repealed by law made under this Constitution.

Article 150. Transitional and temporary provisions—The transitional

and temporary provision set out in the Fourth Schedule shall have effect
notwithstanding any other provisions of this Constitution.

Comments on Article 150

In order to maintain continuity, with the adaptation of a new
Constitution, necessity arises for making certain provisions for transition
from the old loyal system to the new order set up by the Constitution.
Hence Article 150 of our Constitution provides for such transitional
provisions in the Fourth Schedule and states that those provisions would
be effective inspite of the inconsistency with the Constitutional Provisions.

Article 151. Repeals—The following President's Orders are hereby

repealed—
10th April,
(a) The Laws Continuance Enforcement Order, made on
1971:
(b) The Provisional Constitution of Bangladesh Order. 1972;
(c) The High Court of Bangladesh Order, 1972 (P.O.No.5 of 1972);

Clause (IA) was omitted by the Constitution (Twelfth Amendment) Act, 1991 (Act
XXVIII of 1991), S. 22.
2 The words "and for any reason it is impracticable for the oath to he made before that
person" were omitted by the Constitution (Fourth Amendment) Act, 1975 (Act II of
[975,s.30.
Article 152 The Constitution of the People's Republic of Bangladesh 229

(d) The Bangladesh Comptroller and Auditor-General Order, 1.972

(P.O. No. 15 of 1972);
(e) The Constitutent Assembly of Bangladesh Order, 1972 (P.O. No.
22 of 1972);
(f) The Bangladesh Election Commission Order, 1972 (P.O. No. :25 of
1972);
(g) The Bangladesh Public Service Commissions Order, 1972 (P.O.
No. 34 of 1972);
(h) The Bangladesh Transaction of Government Business Order, 1972
(P.O. No. 58 of 1972).

Article 152. (1) Interpretation—In this Constitution, except where the

subject or context otherwise requires–
"administrative unit" means a district or other area designated by law
for the purposes of article 59;
'["Adviser" means a person appointed to that office under article
58C;]
2 ["the Appellate Division" means the Appellate Division of the
Supreme Court;]
"article" means an article of this Constitution;
"borrowing" includes the raising of money by annuity, and "loan"
shall be construed accordingly;
"the capital" has the meaning assigned to that expression in article 5;
'["Chief Adviser" means a person appointed to that office under article
58C;]
"Chief Election Commissioner" means a person appointed to that
office under article 118;
2 ["The Chief Justice" means the Chief Justice of Bangladesh;]
"citizen" means a person who is a citizen of Bangladesh according to
the law relating to citizenship;
"clause" means a clause of the article in which the expression occurs;

The expressions "Adviser" and "Chief Adviser" were inserted by the Constitution (Thirteenth
Amendment) Act, 1996 (Act I of 1996). Ss. 8(a) and 8(h).
2 The expressions "the Appellate Division" and "the Chief Justice' were inserted the Second
Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. I of 1977).
 The Constitution of the People's Republic of Bangladesh Article 152

1 [ " court" means any court of law including Supreme Court;]

"debt" includes any liability in respect of any obligation to repay
capital sums by way of annuities and any liability under any
guarantee, and "debt charge" 'hall be construed accordingly;
"disciplinary law" means a law regulating the discipline of any
discipined force;
"disciplined fore" means—
(a) the army, navy or air force;
(b) the police force;
(c) any other force declared by law to be a disciplined force within
the meaning of this definition;
"district judge" includes additional district judge;
"existing kw" means any law in force in, or in any part of, the territory
of Bangladesh immediately before the commencement of this
Constitution, whether or not it has been brought into operation;
"financial year" means a year commencing of the first day of July;
"guarantee" includes any obligation undertaken before the
commencement of this Constitution to make payments in the event
of the profits of an undertaking falling short of a specified amount;
2 ["the High Court Division" means the High Court Division of the
Supreme Court;]
11
2 [ judge" means a judge of a division of the Supreme Court;]
"judicial service" means a service comprision persons holding judicial
p6sts not being posts superior to that of a district judge;
"wv" means any Act, ordinacne, order, rule, regulation, bye-law,
notification or other legal instrument, and any custome or usage,
having the force of law in Banglasdesh;
"Parliament" means the Parliament for Bangladesh established by
article 65;
"Part" means a Part of this Constitution;
"pension" means a pension, whether contributory or not, of any kind
whatsoever payable to or in respect of any person, and includes

The expression "court" was inserted by the Second Proclamation (Fifteenth Amendment)
Order. 1978 (Second Proclamation Order No. IV of 1978).
2
The expressions "the High Court Division" and "Judge" were inserted by the Second
Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. I of 1977).
Article 152 The Constitution of the People's Republic of Bangladesh 231

retired pay or gratuity so payable by way of the return or any

addition thereto of subscriptions to a provident fund;
"political party" includes a group or combination of persons who
operate within or outside Parliament under a distinctive name and
who hold themselves out for the purpose of propagating a political
opinion or engaging in any other political activity;
"the President" means the Presient of Bangladesh elected under this
Constitution or any person for the time being acting in that office;
"property" includes property of every description movable or
immovable corporeal or incorporeal, and commercial and
industrial undertakings, and any right or interest in any such
property or undertaking;
"public notification" means a notification in the Bangladesh Gazette;
"public officer" means a person holding or acting in any office of
emolument in the service of the Republic;
"the Republic" means the People's Republic of Bangladesh;
"Schedule" means a schedule to this Constitution;
"securities" includes stock;
"the service of the Republic" means any service, post or office whether
in a civil or military capacity, in respect of the Government of
Bangladesh, and any other service declared by law to be a service
of the Republic;
"session", in relation to Parliament, means the sittings of Parliament
commencing when it first meets after the commencement of this
Constitution or after a prorogation or dissolution of Parliament and
terminating when Parliament is prorogued or dissolved;
It
stting" in relation to Parliament, means a period during which
Parliament is sitting continuosly without adjournent;
"the Speaker" means the person for the time being holding the office
of Speaker pursuant to article 74;
"the State" includes Parliament, the Government and statutory public
authorities;
"satutory public authority" means any authority, corporation or body
the activities or the principal activities of which are authorised by
any Act. ordinance, order or instrument having the force of law in
Bangladesh;
232 The constitution of site People's Republic of Bangladesh /tritcle 153

"sub-clause" means a sub-clause of the clause in which the expression

occurs;
'["the Supreme Court" means the Supreme Court of Bangladesh
constituted by article 94;]
"taxation" includes the imposition of any tax, rate, duly or impost,
whether general, local or special, and 'tax' shall be construed
accordingly [;]2
3* * * * * * * *

(2) The General Clauses Act. 1897 shall apply in relation to—
(a) this Constitution as it applies in relation to an Act of
Parliament;
(b) any enactment repealed by this Constitution, or which by
virtue thereof becomes void or ceases to have, effect, as it
applies in relation to any enactment repealed by . Act of
Parliament.

Article 153. Commencement, citation and authenticity—This

Constitution may be cited as the Constitution of the People's Republic of
Bangladesh and shall come into force on the sixteenth day of December,
1972, in this Constituion referred to as the commencement of this
Constitution.
(2) There shall be an authentic text of this Constitution in Bengali, and an
authentic text of an authorised translation in English, both of which
shill be certified as such by the Speaker of the Constituent Assembly.
(3) A text certified in accordance which clause (2) shall be conclusive
evidence of the provisions of this Constitution
Provided that in the event of conflict between the Bengali and the
English text, the Bengali text shall prevail.

l The express'on "the Supreme Court" was inserted by the Second Proclamation (Tenth
Amendment) Order, 1977 (Second Proclamation Order No. I of 1977).
2 The seamy-colon was substitued for the full-stop by the Constitution (Ninth Amendment) Act.
1989 (Act XXX'VIII of 1989). s. 16.
The expression 'the vice-president' was omitted by the Constitution (Twelfth Amendment)
Act. 1991 (Act. XXVIII of 1991), s. 23.
First Schedule The Constitution of the 1' cop/c s Republic of Bangladesh 233

FIRST SCHEDULE
[Article 47]
Laws effective notwithstanding other provision
The State Acquisition and Tenancy Act, 1950 (E. B. Act XXVIII of 1951).
The Bangladesh (Taking over of Control and Managment of Industrial and
Commercial Concerns) Order, 1972 (A. P.O. No. 1 of 1972).
1 * * * * * * * *

The Government of Bangladesh (Services) Order, 1972 (P.O. No. 9

of 1972).
The Bangladesh Shipping Corporation Order, 1972 (P.O. No. 10 of
1972).
The Bangladesh (Restoration of Evacuee Property) Order, 1972 (P.O.
No. 13 of 1972).
The Bangladesh Public Servants' (Retirement) Order, 1972 (P.O.
No. 14 of 1972).
The Bangladesh Abandoned Property (Control, Management and
Disposal) Order, 1972 (P. 0. No. 16 of 1972).
The Bangladesh Banks (Nationalisation) Order, 1972 (P. 0. No. 26 of
1972).
The Bangladesh Industrial Enterprises (National] sation) Order, 1972
(P. 0. No. 27 of 1972).
The Bangladesh Inland Water Transport Corporation Order, 1972 (P.
0. No. 28 of 1972).
The Bangladesh (Vesting of Property and Assets) Order, 1972 (P. 0.
No. 29 of 1972).
The Bangladesh Insurance (Emergency Provisions) Order, 1972 (P. 0.
No. 30 of 1972).
The Bangladesh Consumer Supplies Corporation Order, 1972 (P.
0. No. 47 of 1972).

The entry 'The Bangladesh Collaborators (Special Tribunals) Order. 1972 (P. 0. No. 8 of
1972) was omitted by the Second Proclamation (Third Amendment) Order, 1975 (Second
Proclamation Order No. 111 of 1975).
*
Repealed by Ordinance No. XLIV of 1975.
Spent on 26-9-1975
Repealed by Ordinance No. XXVI of 1973.
Repealed by Act III of 1981.
234 The Constitution of the People's Republic of Bangladesh First Schedule

* The Bangladesh Scheduled Offences (Special Tribunals) Order, 197:

(P. 0. No. 50 of 1972).
** The Bangladesh Nationalised and Private Organisations (Regulation
of Salary of Employees) Order, 1972 (P. 0. No. 54 of 1972).
The Bangladesh Jute Export Corporation Order, 1972 (P. 0. No. 57
of 1972).
The Bangladesh Water and Power Development Boards Order, 1972
(P. 0. No. 59 of 1972).
The Government of Bangladesh (Services Screening) Order, 1972
(P. 0. No, 67 of 1972).
+ The Bangladesh Government Hats and Bazars (Management) Order,
1972 (P. 0. No. 73 of 1972)
"The Bangladesh Government and Semi-autonomus Organisations
(Regulation of Salary of Employees) Order, 1972 (P. 0. No. 79 of 1972).
The Bangladesh Insurance (Nationalisation) Order, 1972 (P. 0. No. 95
of 1972).
The Bangladesh Land Holding (Limitation) Order, 1972 (P. 0. No. 98
of 1972).
± The Bangladesh Biman Order, 1972 (P. 0. No. 126 of 1972).
The Bangladesh Bank Order, 1972 (P. 0. No. 127 of 1972).
The Bangladesh Shilpa Rin Sangstha Order, 1972 (. 0. No. 128 of
1972)
The Bangladesh Shilpa Bank Order, 1972 (P. 0. No. 129 of 1972).
And all Presidential Orders and other existing law effecting
amendment to the above-mentioned Act and Orders.
* * * * * *

*
Repealed by Act XIV 01 1974.
** Repealed by Ordinance No. XLII of 1977.
Repealed by Ordinance No. XXX of I985
Repealed by Ordinance No. XV ol 1977.
+ Repealed by Ordinance No. LIX of 1975.
± Repealed by Ordinance No. XIX of 1977.
I "SECOND SCHEDULE-Election 01 President" was omitted by the Constitution (Fourth
Amendment) Act. 1975 (Act II of 1975), s. 31.
 Third Schedule The Constitution of the People's Republic of Bangladesh 235

THIRD SCHEDULE
[Article 148]
I. The President.—An oath (or affirmation) in the following form shall
be administered by the '[Chief Justice]
"I............., do solemnly swear (or affirm) that I will faithfully
discharge the duties of the office of President of Bangladesh according
to law
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And that I will do right to all manner of people according to law,
without fear or favour, affection or ill-will.
2 * * * * * *
3 [1A. The President in the case of performing the functions of the
Chief Adviser. —Oaths (or affirmations) in the following forms shall
he administered by the Chief Justice–
(a) Oath (or affirmation) of office:
"I. ......................... .do solemnly swear (or affirm) that I will faithfully
discharge the duties of the office of Chief Adviser c the Non-Party
Care-taker Government according to law
That I will hear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And that I will do right to all manner of people according to law,
without fear or favour, affection or ill-will."
(h) Oath (or affirmation) of secrecy:
"I. ..... . .................. do solemnly swear (or affirm) that I will not directly
or indirectly communicate or reveal to any person any matter which
shall be brought under my consideration or shall become known to me
as Chief Adviser of the Non-Party Care-taker Government except as
may be required for the due discharge of my duty as Chief Adviser."]
2. The 1 [Prime Minister 2* * * and other Ministers, Ministers of
State and Deputy Ministers.—Oaths (or affirmations) in the
following forms shall be administered by the President—

The words "Chief Justice" weic substituted for the words "Chief ustice of the Supreme
Court" b y the Second Proclamation ('fcnth Amendment) Order. 1977 (Second Proclamation
Order No. I of 1977).
2
Form IA "Vice-President" was omitted y the Constitution (Twelfth Amendment) Act. 1991
(Act XXVIII of 1991), s. 24(a).
Form IA was inserted by the Constituion (Thirteenth Amendment) Act, 1996 (Act I of 1996),
s.9(I).
236 The Constitution oft/ic People's Republic of Bangladesh Third Scheilute

(a) Oath (or affirmation) of office

"I . ......................... do solemnly swear (or affirm) that I will faithfully
discharge the duties of the office of Prime Minister (or as the case may
be) according to law
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And That I will do right to all manner of people according to law,
without fear or favour, affection or ill-will."
(b) Oath (or affirmation) of secrecy
" 1 ........................, do solemnly sweai (or affirm) that I will not directly
or indirectly communicate or reveal to any person any matter which
shall be brought under my consideration or shall become known to me
as Prime Minister (or as the case may be) except as may be required
for the due discharge of my duty as Prime Minister (or as the case may
be),"
3 1 2A The Chief Adviser and Advisers—Oaths (or affin'natioils) in the
following forms shall be administered by the President—
(a) Oath (or affirmation) of office:
. .......................... do solemnly swear (or affirm) that I will faithfully
discharge the duties of the office of Chief Adviser (or Adviser) of the
Non-Party Care-taker Government according to law
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
That I will do right to all manner of people according to law, without
fear or favour, affection or ill-will."
(b) Oath (or affirmation) of secrecy:
"I........................, do solemnly swear (or affirm) that I will not directly
or indirectly communicate or reveal to any person any matter which
shall be brought under my consideration or shall become known to me
as Chief Adviser (or Adviser) of the Non-Party Care-taker
Government, except as may he required for the due discharge of my
duty as Chief Adviser (or Adviser).-]

The words and comma ''Prime Minister. Deputy Prime Ministers" were substituted for the
words "Prime Minister" b y the Second Proclamation (Fifteenth Amendment) Oidcr, 1978
(Second Proclamation Order No. IV of 1978).
2 The comma and words ". Deputy Prime Minister" erc omitted by the Constitution Ckkelfth
Amendment) Act, 1991 (Act XXVIII 01' 1991). s. 24(b).
Form 2A was inserted by the Constitution (Thirteenth Amendment) Act, 1996 (Act I of 1996,,
.s.9(2).
 The Constitution of the People's Republic of Banç'lndc5ll 237
Third Schedule

3. The Speaker. —An oath (or affirmation) in the following forms shall
be administered by the '[President]–
"1. ........................ , do solemnly swear (or affirm) that I will faithfully
discharge the duties of the Speaker of Parliament and (whenever I am
called upon so to do) of the President, according to law:
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And That I will do right to all manner of people according to law,
without fear or favour, affection or ill-will."

4. Deputy Speaker.—An oath (or affirmation) in the following forms

shall be administered by the 2 [President]-
"I. ........................ , do solemnly swear (or affirm) that I will faithfully
discharge the duties of the Deputy Speaker of Parliament and
(whenever I am called upon so to do) of the President, according to
law
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And That I will do right to all manner of people according to law,
without fear or favour, affection or ill-will."

5. Member of Parliament.—An oath (or affirmation) in the following

forms shall be administered 3* * * by the Speaker—
"1. ..... . ............. . ........ , having been elected a member of Parliament do
solemnly swear (or affirm) that I will faithfully discharge the duties
upon which I am about to enter according to law
That I will bear true faith and allegiance to Bangladesh
And That I will not allow my personal interest to influence the
discharge of my duties as a member of Parliament."
[6. Chief Justice or Judges.—An oath (or affirmation) in the following
forms shall be administered, in the case of the Chief Justice by the
President, and in the case of a Judge appointed to a division, by the
Chief Justice—

The word "President' was substituted for the words "Chief Justice by the Constitution
(Fourth Amendment) Act. 1975 (Act II of 1975). s. 32(c).
2 The word"President" was substituted for the words Chief Justice" by the Constitution
(Fourth Amendment) Act. 1975 (Act II of 1975). s. 32(d).
The words at a meeting of Parliament were omitted ibid., s. 32(e).
Form 6 was substituted tr the original form 6 by the Second Proclamation (Tenth
Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977).
 238 The constitution of the Peoples Republic of Bam,'ladcs/t Third 5'chcdiilc

"I............................., having been appointed Chief Justice of

Bangladesh (or Judge of the Appellate/High Court Division of the
Supreme Court) do solemnly swear (or affirm) that I will faithfully
discharge the duties of my oce according to law:
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Consiitution and the laws
of Bangladesh:
And That I will do right to all manner of people according to law,
without fear or favour, affection or ill-will."

7. Chief Election Commissioner or Election Commissioner.– An oath

(or affirmation) in the following forms shall be administered, by the
'[Chief Justice]–
"I.................................. having been appointed Chief Election
Commissioner (or Election Commissioner), do solemnly swear (or
affirm) that I will faithfully discharge the duties of my office
according to law:
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And that I will not allow my personal interest to influence my official
conduct or my official decisions."

8. Comptroller And Auditor-General.---An oath (or affirmation) in the

following forms shall be administered, by the tlChieuiustice]_
"I................................., having been appointed Comptroller and
Auditor-General do solemnly swear (or affirm) that I will Faithfully
discharge the duties of my office according to law -
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And that I will not allow my personal interest to influence m y official
conduct or my official decisions."

9. Member of Public Service Commission.—An oath (or affirmation)

in the following forms shall be administered, by the 1 [Chief iu sticc]-

The words "Chief Justice" were substituted br the words Justice (4 the I Iih ('our i by
the Second Proclamation (Tenth Amendment) Order. 1977 (Second Proclamation Ordei No .'l
of 1977).
Third Schedule The Constitution of the People's Republic of Bangladesh 239

"I................................., having been appointed Chairman (or Member)

of a Public Service Commission do solemnly swear (or affirm) that I
will faithfully discharge the duties of my office according to law
That I will bear true faith and allegiance to Bangladesh
That I will preserve, protect and defend the Constitution
And that I will not allow my personal interest to influence my official
conduct or my official decisions."
240 The Constitution oft/ic People's Republic of Bangladesh Foil/f/I Schedule

FOURTH SCHEDULE
[Article 150]
Transitional and temporary provisions
1. Dissolution of Constituent Assembly— Upon the commencement of
this Constitution, the Constituent Assembly, having discharged its
responsibility of framing a Constitution for the Republic, shall stand
dissolved.
2. (1) First elections— The First general election of members of
Parliament shall be held as soon as possible after the commencement
of this Constitution and for this purpose the electoral rolls prepared
under the Bangladesh Electoral Rolls Order, 1972 (P. 0. No. 104 of
1972) shall be deemed to be the electoral rolls prepared in accordance
with article 119.
(2) For the purpose of the first general election of members of Parliament,
the delimitation of constituencies made for the purpose of elections to
constitute the erstwhile Provincial Assembly, and published on 1970,
shall be deemed to be made under article 119, and the Election
Commission shall, after incorporating such changes, as it may consider
necessary, in the nomenclature of any constituency or any subdivision
or thana included therein, publish, by public notification, the list of
such constituencies
Provided that provision may be made by law to give effect to the
provisions relating to seats for women members referred to in clause
(3) of article 65.

3. (1) Provisions for maintaining continuity and interim

arrangements—All laws made or purported to have been made in the
period between the 26th day of March, 1971 and the commencement of
this Constitution, all powers exercised and all things done during that
period, under authority derived or purported to have been derived from the
Proclamation of Independence or any law, are hereby ratified and
confirmed and are declared to have been duly made, exercised and done
according to law.
(2) Until the day upon which Parliament first meets pursuant to the
provisions of this Constitution, the executive and legislative powers of
the Republic (including the power of the President, on the advice of
the Prime Minister, to legislate by order) shall, notwithstanding the
repeal of the Provisional Constitution of Bangladesh Order, 1972, he
exercised in all respects in the manner in which, immediately before
the commencement of this Constitution, they have been exercised.
Fourth Schedule The Constitution of the People's Republic of Bangladesh 241

(3) Any provision of this Constitution enabling or requiring Parliament to

legislate shall, until the day upon which Parliament first meets as
aforesaid, be construed as enabling the President to legislate by order,
and any order made under this paragraph shall have effect as if the
provisions thereof had been enacted by Parliament.

1 [3A . (1) Validation of certain Proclamations, etc.—The Proclamations

of the 20th August, 1975, and 8th November, 1975, and the Third
Proclamation of the 29th November, 1976, and all other
Proclamations and Orders amending or supplementing them,
hereinafter in this paragraph collectively referred to as the said
Proclamations, and all Martial Law Regulations, Martial Law Orders
and all other laws made during the period between the 15th day of
August, 1975 and the date of revocation of the said Proclamations and
the withdrawal of Martial Law (both days inclusive), hereinafter in this
paragraph referred to as the said period, shall be deemed to have been
validly made and shall not be called in question in or before any Court
or Tribunal on any ground whatsoever.
(2) All orders made, acts and things done, and actions and proceedings
taken, or purported to have been made, done or taken, by the President
or the Chief Martial Law Administrator or by any other person or
authority, during the said period, in exercise or purported exercise of
the powers derived from any of the said Proclamations or any Martial
Law Regulation or Martial law Order or any other law, or in execution
of or in compliance with any other made or sentence passed by any
Court or authority in the exercise or purported exercise of such
powers, shall be deemed to have been validly made, done or taken and
shall not be called in question in or before any Court or Tribunal on
any ground whatsoever.
(3) No suit, prosecution or other legal proceeding shall lie in any Court or
Tribunal against any person or authority for or on account of or in
respect of any order made, act or thing done, or action or proceeding
taken whether in the exercise or purported exercise of the powers
referred to in sub-paragraph (2) or in execution of or in compliance
with orders made or sentences passed in exercise or purported exercise
of such powers.

Paragraph 3A was inserted by the Proclamations (Amendment) Order. 1977 (Proclamations

Order No. I of 1977).
242 The Constitution of the People's Republic of Bangladesh I'oii it/i Schedule

(4) All amendments, additions, modifications, substitutions and

omissions made in this Constitution by the said Proclamations shall
have effect as if such amendments, additions, modifications,
substitutions and omissions were made in accordance with, and in
compliance with the requirements of, this Constitutioi.
(5) Upon the revocation of the said Proclamations and the withdrawal of
Martial Law this Constitution shall, subject to amendrhents,
additions, modifications, substitutions and omissions as aforesaid.
have effect and operate as if it had been in continuous operation.
(6) The revocation of the said Proclamations and the withdrawal of
Martial Law shall not revive or restore any right or privilege which
was not existing at the time of such revocation and withdrawal.
(7) All laws in force immediately before the revocation of the said
Proclamations and withdrawal of Martial Law shall, subject to the
Proclamation revoking the said Proclamations and withdrawing the
Martial Law, continue in force until altered, amended or repealed by
the competent authority.
1(8) The General Clauses Act, 1897, shall apply to the said Proclamations
and the Martial Law Regulations and Martial Law Orders made
during the said period and also to the revocation of the said
Proclamations and the withdrawal of Martial Law and the repeal of
the said Martial Law Regulations and Martial Law Orders as it
applies to, and to the repeal of, an Act of Parliament as if the said
Proclamations and the Proclamation revoking them and withdrawing
the Martial Law and the Martial Law Regulations and Martial law
Orders were all Acts of Parliament.
(9) In the event of any conflict, contradiction, discrepancy or
inconsistency between the Bengali and the English text of the
Constitution, in so far as it relates to any amendment, addition,
modification, substitution or omission made in any of the texts or in
both the texts by the said Proclamations, the English text shall
prevail.
(10) President—In this paragraph, laws includes Ordinances, rules,
regulations, by-laws, orders, notifications and other instruments
having the force of law].

1 Sub-paragraphs (8). (9) and (10) were substituted for the former sub-paragraphs (8) and (9) by
the Second Proclamation (Fifteenth Amendment) Order. 1978 (Second Proclamation Order
No. IV of 1978).
Fourth Schedule The Constitution of the Peoples Republic of Bangladesh 243

4. (1) The person holding office as President of Bangladesh immediately

before the commencement of this Constitution shall hold office as
President, as if elected to that office under this Constitution, until a
person elected as President under article 48 enters upon office
Provided that the holding of office under this paragraph shall not be
taken into account for the purposes of clause (2) of article 50.
(2) The persons holding office as Speaker and Deputy Speaker of the
Constituent Assembly immediately before the commencement of this
Constitution shall, notwithstanding that Parliament has not yet been
constituted, be deemed to hold office respectively as Speaker and
Deputy Speaker until an election to each of those offices is made under
clause (1) of article 74.
5. Prime Minister and Other Ministers— The person holding office as
Prime Minister, immediately before the date of the commencement of
this Constitution shall, until his successor appointed under article 56
after the first general election held under this Constitution enters upon
office, hold office as Prime Minister as if appointed to that office
under this Constitution, and the persons holding offices as Ministers
immediately before that date shall continue to hold office as Ministers
until the Prime Minister otherwise directs, and nothing in article ib
shall prevent the appointment of other Ministers on the advice of the
Prime Minister.
6. (1) Judiciary—The person holding office as Chief Justice immediately
beforc the date of the commencement of this Constitution and every
person who then held office as judge of the High Court constituted by
the Provisional Constitution of Bangladesh Order, 1972, shall as from
that date hold office as if appointed under article 95 as Chief Justice
or, as the case may be, asjudge.
(2) The persons (other than the Chief Justice) holding office as judges
puNuant to sub-paragraph (1) of this paragraph shall at the
commencement of this Constitution be deemed to have been appointed
to the High Court Division, and appointments to the Appellate
Division shall be made in accordance with article 94.
(3) All legal proceedings pending in the High Court immediately before
the commencement of this Constitution (other than those referred to in
sub-paragraph (4) of this paragraph) shall be transferred to, and be
deemed to be pending before the High Court Division for
determination, and any judgement or order of the High Court delivered
or made before the commencement of this Constitution shall have the
244 The Constitution of the Peoples Republic of Bangladesh Fourth Schedule

same force and effect as if it had been delivered or made by the High
Court Division.
(4) All legal proceedings pending before the Appellate Division of the
High Court immediately before the commencement of this
Constitution shall be transferred to the Appellate Division for
determination and any judgment or order of the former division
delivered or made before the commencement of this Constitution shall
have the same force and effect as if it had been delivered or made by
the Appellate Division.
(5) Subject to the provisions of this Constitution and of any other law—
(a) all original, appellate and other jurisdiction which was vested
in the High Court constituted by the Provisional Constitution
of Bangladesh Order, 1972 (other than jurisdiction vested in
the Appellate Division of that Court) shall from the
commencement of this Constitution, vest in and he exercised
by the High Court Division;
(b) all civil, criminal and revenue courts and tribunals exercising
jurisdiction and functions immediately before the
commencement of this Constitution shall continue to exercise
their respective jurisdictions and functions, and all persons
holding office in such courts and tribunals shall continue to
hold their respective offices.
(6) The provisions of Chapter II of Part VI (which relate to subordinate
courts) shall be implemented as soon as is practicable, and until such
implementation the matters provided for in that Chapter shall (subject
to any other provision made by law) be regulated in the manner in
which they were regulated immediately before the commencement of
this Constitution.

(7) Nothing in this paragraph shall affect the operation of any existing law
relating to the abatement of proceedings.

1 [6A. (1) Provisions As to existing Judges and pending proceedings—

The person holding office of Chief Justice of Bangladesh immediately
before the commencement of the Second Proclamation (Seventh
Amendment) Order, 1976 (hereinafter referred to as the said Order), and
every person who then held office as Judge or Additional Judge of the

Paragraph 6A was inserted by the Second Proclamation (Seventh Amendment) Order. 1976
cf
(Second Proclamation Order No. IV of' 1976)(w. the August, 1976).
Fourth Schedule The Constitution of the People's Republic of Bangladesh 245

Appellate Division of the Supreme Court shall as from such

commencement hold office as Chief Justice, Judge or Additional Judge of
the Supreme Court, as the case may be, on the same terms and conditions
as to remuneration and other privileges as were applicable to him
immediately before such commencement.
(2) A person holding office as Judge or Additional Judge of the High
Court Division of the Supreme Court immediately before the
commencement of the said Order shall as from such commencement
hold office as Judge or Additional Judge of the High Court as the case
may be, on the same terms and conditions as to remuneration and other
privileges as were applicable to him immediately before such
commencement.
(3) All legal proceedings pending before the Appellate Division of the
Supreme Court immediately before the commencement of the said
Order shall on such commencement stand transferred to, and be
deemed to be pending before, the Supreme Court for determination;
and any judgement, or order of the Appellate Division of the Supreme
Court delivered or made before such commencement shall have the
same force and effect as if it had been delivered or made by the
Supreme Court.
(4) All legal proceedings pending before the High Court Division of the
Supreme Court immediately before the commencement of the said
Order shall on such commencement stand transferred to, and be
deemed to be pending before, the Supreme Court for determination;
and any judgement or order of the High Court Division delivered or
made before such commencement shall have the same force and effect
as if it had been delivered or made by the High Court.
(5) Subject to the other provision of this Constitution, the Supreme court
shall have the same functions, jurisdiction and powers as were,
immediately before the commencement of the said Order, exercisable
by the Appellate Division of the Supreme Court, and reference in any
law, legal instrument or other document to the Appellate Division of
the Supreme Court shall, unless the context otherwise requires, be
construed as references to the Supreme Court.
(6) Subject to the other provisions of this Constitution, the High Court
shall have the same functions, jurisdiction and powers as were,
immediately before the commencement of the said Order, exercisable
by the High Court Division of the Supreme Court, and references in
any law, legal instrument or other document to the High Court
246 The Constitution of the People's Republic of Bangladesh Fou,ih Schedule

Division of the Supreme Court shall, unless the context otherwise

requires, be construed as references to the High Court.)
1 [613. (1) Provisions as to Judges of the Supreme Court and High
Court existing before the Second P roclamation Order No. I of
1977 Proceedings pending before commencement of that Order,
etc. —A person holding office as Chief Justice or Judge or Additional
Judge of the Supreme Court or Chief Justice or Judge or Additional
Judge of the High Court immediately before the commencement of the
Second Proclamation (Tenth Amendment) Order, 1977 (hereinafter
referred to as the said Order), shall, if he has attained the age of sixty-
two years on the date of such commencement, stand retired on that
date.
(2) A person holding office as Chief Justice or Judge or Additional Judge
of the Supreme Court immediately before the commencement of the
said Order shall, if he has not attained the age of sixty-two years on the
date of such commencement, as from such commencement hold office
as Chief Justice of Bangladesh or Judge or Additional Judge of the
Appellate Division as the case may be, on the same terms and
conditions as to remuneration and other privileges as were applicable
to him immediately before such commencement.
(3) The person holding office as Chief Justice of the High Court
immediately before the commencement of the said Order shall, if he
has not attained the age of sixty-two years on the date of such
commencement, as from such commencement hold office as Judge of
the High Court Division on the same terms and conditions as to
remuneration and other privileges as were applicable to him
immediately before such commencement.
4) A person holding office as Judge or Additional Judge of the High
Court immediately before the commencement of the said Order shall,
if he has not attained the age of sixty-two years on the date of such
commencement, as from such commencement hold office as judge or
Additional Judge of the High Court Division, as the case may be, on
the same terms and conditions as to remuneration and other privileges
as were applicable to him immediately before such commencement.
(5) All legal proceedings pending before the Supreme Court immediately
before the commencement of the said Order shall on such
commencement stand transferred to, and he deemed to he pending

Paragraph 613 was inserted by the Second Proclamation (Tenth Amendment) Order, 1977
(Second Proclamation Order No. I of 1977).
Fourth Schedule The Constitution of the People's Republic of Bangladesh 247

before, the Appellate Division for determination; and any judgement

or order of the Supreme Court delivered or made before such
commencement shall have the same force and effect as if it had been
delivered or made by the Appellate Division.
(6) All legal proceedings pending before the High Court immediately
before the commencement of the said Order shall on such
commencement stand transferred to, and be deemed to be pending
before, the High Court Division for determination; and any judgment
or order of the High Court delivered or made before such
commencement shall have the same force and effect as if it had been
delivered or made by the High Court Division.
(7) Subject to the other provisions of this Constitution, the Appellate
Division shall have the same functions; jurisdiction and powers as
were, immediately before the commencement of the said Order,
exercisable by the Supreme Court, and references in any law, legal
instrument or other document to the Supreme Court shall, unless the
context otherwise requires, be construed as references to the Appellate
Division.
(8) Subject to the other provisions of this Constitution, the High Court
Division shall have the same functions, jurisdiction and powers as
were, immediately before the commencement of the said Order,
exercisable by the High Court, and references in any law, legal
instrument or other document to the High Court shall, unless the
context otherwise requires, be construed as references to the High
Court Division.
(9) The person holding office as Advocate-General immediately before
the commencement of the said Order shall on such commencement
cease to hold that office.

7. Interim rights of appeal— An appeal to the Appellate Division of the

Supreme Court shall lie, notwithstanding any limitation as to time,
against any judgment, decree, order or sentence delivered, issued or
pronounced since the 1st day of March, 1971 by any High Court (but
excluding the Appellate Division constituted by the High Court of
Bangladesh (Amendment) Order, 1972 (P.O. No. 91 of 1972)
functioning in the territory of Bangladesh
Provided that article 103 shall apply in respect of an such appeal as it
applies in respect of appeals from the High Court Division
248 The Constitution of the Peoples Republic of Bangladesh Fourth Schedule

Provided further that no appeal under this article shall be lodged after
the expiration of the period of ninety days from the commencement of
this Constitution.
8. (1) Election commission–The Election commission existing
immediately before the date of commencement of this Constitution,
shall, as from that date, be deemed to be the Election Commission
established by this Constitution.
(2) The person holding office as Chief Election Commissioner, and every
person holding office as Election Commissioner, immediately before
the date of the commencement of this Constitution, shall, as from that
date, hold office as if appointed to such office under this Constitution.

9. (1) Public service commission—The public service commissions

existing immediately before the date of the commencement of this
Constitution, shall, as from that date, be deemed to be public service
commissions established under this Constitution.
(2) Every person holding office as chairman or other member of a public
service commission immediately before the date of the commencement
of this Constitution, shall, as from that date hold office as if appointed
to that office under this Constitution.

10. (1) Public service Subject to this Constitution and to any other
law—
(a) any person who immediately before the commencement of
this Constitution was in the service of the Republic shall
continue in that service on the same terms and conditions as
were applicable to him immediately before such
commencement.
(b) all authorities and all officers, judicial, executive and
ministerial throughout Bangladesh exercising functions
immediately before the commencement of this Constitution,
shall, as from such commencement, continue to exercise their
respective functions.

(2) Nothing in sub-paragrapgh (1) of this paragaph shall—

(a) derogate from the continued operation of the Government of
Bangladesh (Services) Order, 1972 (P.O. No. 9 of 1972), or
the Government of Bangladesh (Services Screening) Order,
1972 (P.O. No. 67 of 1972); or
I'oi,ril, Schedule The Constitution of the People '.s Republic of Bangladesh 249

(b) prevent the making of any law varying or revoking the

conditions of service (including remuneration, leave, pension
rights and rights and rights relating to disciplinary matters) of
persons employed at any time before the commencement of
this Constitution or of persons continuing in the service of the
Republic under the provisions of this paragraph.

11. Oaths for continuance in office Any person who, under this
Schedule, is continued in an office in respect of which a form of oath
or affirmation is set out in the Third Schedule shall, as soon as
practicable after the commencement of this Constitution, make and
subscribe before the appropriate person an oath or affirmation in that
form.
1* * * * * * * * * *

13. Taxation–All taxes and fees imposed under any law in force in
Bangladesh immediately before the commencement of this
Constitution shall continue to be imposed but may be varied or
abolished by law.

14. Interim Financial arrangements—Unless Parliament otherwise

resolves, the provisions of articles 87, 89, 90 and 91 of this
Constitution shall not have effect in respect of the financial year
current at the commencement of this Constitution, and expenditure
defrayed during that year out of the Consolidated Fund or the Public
Account of the Republic shall be deemed to have been validly
incurred:
Provided that the President shall, as soon as is practicable, cause a
statement of all such expendi t ure, authenticated by his signature, to be
laid before Parliament.

15. Audit of past accounts—The powers of the Comptroller and Auditor-

General under this Constitution shall apply in respect of all accounts
relating to the financial year current at the commencement of this
Constitution and to earlier years, and the reports of the Comptroller
and Auditor-General relating to such accounts shall be submitted to the
President who shall cause them to be laid before Parliament.

Paragraph "12 Local Government" was omitted by the Constitution (Fourth Amendcmtn) Act.
1975 (Act 11 of 1975). s. 33.
 250 The Constitution of the People's Republic of Bangladesh
Fourth Schedule
16. (1) Property, assets, rights, liabilities and obligations of the
Government—All property, assets and ri g hts which immediately
before the commencement of this Constitution were vested in the
Government of the People's Republic of Bangladesh or any person or
authority on its behalf shall vest in the Republic.
(2) All liabilities and obligations of the Government of the Republic as
they existed immediately before the commencement of this
Constitution shall continue to be the !iabilities and obligations of the
Republic.
(3) No liability or obligation of any other Government which at any time
functioned in the territory of Bangladesh is or shall be a liabilities and
obligation of the Republic unless it is expressly accepted by the
Government of the Republic.

17. (1) Adaptation of laws and removal of difficulties—For the purpose

of bringing the provisions of any law in force in Bangladesh into
conformity with this Constitution of President may, within the period
of two years from the commencement of this Constitution, by order,
amend or suspend the operation of such provisions and any order so
made may have retrospective effect.
(2) The President may, for the purpose of removing any difficulties in
relation to the transition from the provisional constitutional
arrangements existing before the commencement of this Constitution
to the arrangements under this Constitution by order, direct that this
Constitution shall, during such period as may be specified in the order,
have effect subject to such adaptations, whether by way of
modification, addition or omission, as he may deem necessary or
expedient:
Provided that no such order shall be made after the first meeting of the
Parliament, constituted under this Constitution.
(3) Every order made under this paragraph shall have effect
notwithstanding any other provision of this Constitution, shall be laid
before Parliament, and may be amended or revoked by Act of
Parliament.

[18. Ratification and confirmation of Proclamations, etc.— All

Proclamations, Proclamation Orders, Martial Law Regulations, Martial
Law Orders and other laws made during the period between the 15th

Paragraph 18 was added by the Constitution (Filth Amendment) Act. 1979 (Act I of 1979), s.2.
Fourth Schedule The Constitution of the People's Republic of Bangladesh 251

August, 1975, and the 9th April, 1979 (both days inclusive), all
amendments, additions, modifications, substitutions and omissions
made in this Constitution during the said period by any such
Proclamation, all orders made, acts and thing done, and actions and
proceedings taken, or purported to have been made, done or taken, by
any person or authority during the said period in exercise of the
powers derived or purported to have been derived from any such
Proclamation, Martial Law Regulation, Martial Law Order or any
other law, or in execution of or in compliance with any order made or
sentence passed by any court, tribunal or authority in the exercise or
purported exercise of such powers, are hereby ratified and confirmed
and are declared to have been validly made, done or taken and shall
not be called in question in or before any court, tribunal or authority on
any whatsoever.]

1 [19. (1) Ratification and confirmation of the Proclamation of the 24th

March, 1982, etc.—The Proclamation of the 24th March. 1982, hereinafter
in this paragraph referred to as the said Proclamation, and all other
Proclamations. Proclamation Orders, Chief Martial Law Administior's
Orders Martial Law Regulations, Martial Law Orders, Martial L:'
Instructions, Ordinances and all other Laws made during the period
between the 24th March, 1982, and the date of commencement of the
Constitution (Seventh Amendment) Act, 1986 (Act I of 1986) (both days
inclusive), hereinafter in this paragraph referred to as the said period, are
hereby ratified and confirmed and declared to have been validly made and
shall not be called in question in or before any court, tribunal or authority
on any ground whatsoever.
(2) All orders made, acts and things done, and actions and proceedings
taken, or purported to have been made, done or taken, by the President
or the Chief Martial Law Administrator or by any other person or
authority during the said period, in exercise or purported exercise of
the powers derived from the said Proclamation or from any other
Proclamation, Proclamation Order, Chief Martial Law Administrator's
Order, Martial Law Regulation, Martial Law Order, Martial Law
Instruction, Ordinance or any other Law, or in execution of or in
compliance with any order made or sentence passed by any court,
tribunal or authority in the exercise or purported exercise of such
powers, shall be deemed to have been validly made, done or taken and

'Paragraph 19 was added by the Constitution (Seventh Amendment) Act. 1986 (Act I of 1986). 0.
252 The constitution of the People's Republic of Bangladesh Fourth Schedule

shall not he called in question in or before any court, tribunal or

authority on any ground whatsoever.
(3) No suit, prosecution or other legal proceedings shall lie in any court or
tribunal against any person or authority for or on account of or in
respect of any order made, act or thing done, or action or proceedings
taken whether in the exercise or purported exercise of the powers
referred to in subparagraph (2) or in execution of or in compliance
with orders made or sentences passed in exercise or purported exercise
of such powers.
(4) All appointments made during the said period to any office mentioned
in the Third Schedule shall be deemed to have been validly made and
shall not be called in question in or before any court, tribunal or
authority on any ground whatsoever, and any person appointed under
the said Proclamation to any such office during the said period and
holding such office immediately before the date of commencement of
the Constitution (Seventh Amendment) Act, 1986 (Act I of 1986),
hereinafter in this paragraph referred to as the said Act shall, as from
that date hold such office as if appointed to that office under this
Constitution; and shall, as soon as practicable person an oath or
affirmation in the form set out in the Third Schedule.
(5) All appointments made by the Chief Martial Law Administrator during
the said period to any office or post which is continuing after the date
of commencement of the said Act shall, as from that the date, he
deemed to be appointments made by the President.
(6) All Ordinances and other laws in force immediately before the date of
commencement of the said Act shall, subject to the Proclamation
revoking the said Proclamation and withdrawing the Martial Law,
continue in force until altered, amended or repealed by competent
authority.
(7) Upon the revocation of the said Proclamation and withdrawal of
Martial Law, this Constitution shall stand fully revived and restored
and shall, subject to the provisions of this paragraph, have effect and
operate as if had never been suspended.
(8) The revocation of the said withdrawal of Martial Law shall not revive
or restore any right or privilege which was not existing at the time of
such revocation and withdrawal.
(9) The General Clauses Act, 1897, shall apply to the said Proclamation,
and all other Proclamations, Proclamation Orders, Chief Martial Law
Administrator's Order, Marital Law Regulations, Martial Law Orders
and Martial Law instructions made during the said period and also to
Fourth Schedule The Constitution of the People's Republic of Bangladesh 253

the revocation of the said Proclamation and other Proclamations and

the repeal of the said Proclamation Orders, Chief Martial Law
Administrator's Orders, Martial Law Regulations, Martial Law Orders
and Martial Law Instructions as it applies to, and to the repeal of, an
Act of Parliament as if the said Proclamation, and other Proclamations,
Proclamation Orders, Chief Martial Law Administration's Orders,
Martial Law Regulations, Martial Law Orders and Martial Law
Instruction and the Proclamation revoking the said Proclamation were
all Acts of Parliament.
(10) In this paragraph, "law" includes rules, regulations, bye-laws, orders,
notifications and other instruments having the force of law.]
1* * * * * * * * * * *
2[21. (1) Ratification and confirmation of the appointment of Vice-
President, etc.— The appointment of, and the administration of oath
to the Chief Justice of Bangladesh as Vice-President on the 21st day of
Agrahayan, 1397 B. S. corresponding to the 6th day of December,
1990, and the resignation tendered to him by the then President and all
powers exercised, all laws and Ordinances made and all orders made,
acts and things done, and actions taken, or purported to have been
made, done or taken by the said Vice-President acting as President
during the period between the 21st day of Agrahayan, 1397 B. S.
corresponding to the 6th day of December, 1990, and the date of
commencement of the Constitution (Eleventh Amendment) Act, 1991
(Act XXIV of 1991) (both days inclusive) or till the new President
elected under article 48 (1) of the Constitution has entered upon his
office (whichever is later), are hereby ratified and confirmed and
declared to have been validly made, administered, tendered exercised,
done and taken according to law.
(2) The said Vice-President shall, after the commencement of the
Constitution (Eleventh Amendment) Act, 1991 (Act XXIV of 1991),
and after the new President elected under this Constitution has
entered upon his office, be eligible to resume the duties and
responsibilities Ui the Chief Justice of Bangladesh and the period
between the 21st day of Agrahayan, 1397 B. S. Corresponding to the
6th day of December, 1990, and the date of which he resumes such

Paragraph 20. Provisions relating to Vice- Prcsident" was omitted by the Constitution
(Twelfth Amendment) Act. 1991 (Act XXVI[t of 1991). s. 25(a).
2 Paragraph 2 I was added by the Constitution (Eleventh Amendment) Act. 1991 (Act XXIV of
991). s2.
 254 The Constitution of the People's Republic of Bangladesh Foit ,rli Schedule
duties and responsibilities shall be deemed to be the period of actual
service within the meaning of section 2(a) of the Supreme Court
Judges (Leave, Pension and Privileges) Ordinance, 1982 (Ordinance
No. XX of 1982).]
[22. Notwithstanding anything contained in the Constitution, the
Parliament functioning immediately before the commeilcement of
the Constitution (Twelfth Amendment) Act, 1991 (Act XXVII of
1991) shall be deemed to have been duly elected and constituted in
accordance with the Constitution and Law and shall continue to
function under provisions of article 72 of the Constitution.]

Comments Fourth Schedule

In the Fourth Schedule of the Constitution, certain amendments were
made by incorporating Paragraphs 3A, 6A and 6B by the Martial Law
Proclamation Orders of 1976 and 1977. By Constitution (Fifth
Amendment) Act; 1979, paragraph 18 was inserted which gave validity to
acts and things including Constitutional amendments under taken during
the first Martial Law period ousting the jurisdiction of the Courts of all
acts and things done during the period. The Constitution (Seventh
Amendment) Act, 1986, by incorporating para g raph 19 in the Fourth
Schedule protected all acts and things done during the second Martial
Law.
Under mentioned cases will show that the challenge of
unconstitutionality of paragraphs 3A, 18 and 19 in the Fourth Schedule
was protected by the Court.

Paragraph 3A and 18 of the Fourth Schedule

(1)Inthe case of Shahriae Rashid K/iaii —VS- Bangladesh and others, 18
BLD(AD)(1998) 155, Latifur Rahman,J. mentioned the object of
paragraph 3A and 18 of the Fourth Schedule and held in Paragraph 68
as follows:
"The object of Paragraphs 3A and 18 is to maintain the constitutional
continuity of those Laws after the revival of the Constitution till they
are repealed, altered or amended by the competent authority. If
paragraphs 3A and 18 were not incorporated in the Constitution then
there would be utter confusion in the filed of Constitutional
dispensation and law. There would he discontinuity of Constitutional

3 Paragraph 22 was added by the Constitution (Eleventh Amendment) Act, 1991 (Act XXVIII
of 1991). s. 25(b).
 Fourth Schedule The Constitution of the People's Republic of Bangladesh
255

dispensation and the period in issue would remain out-side the

Constitution . Martial Law having ceased, the operation of ordinary
civil law continued ."
In that decision A.T.M. Afzal,C.J. held that Indemnity Ordinance No 50 of
1975 can be repealed by an Act of Parliament, and held at paragraph 34 as
under:
"Nowhere in the 4t1 Schedule or in any other Provision of the
Constitution it was stipulated that the laws which were continued
and saved under Paragraphs 3A and 18 of the 4111 Schedule of the
Constitution would require two-third majority member of the
Parliament for necessary amendment or alternation or repeal."

19(2) 4111 Schedule

(2) In the case of Helaluda'jn Ahmed —VS- Bangladesh, 44
DLR (AD) 1,
the question raised was whether the Chief Martial Law Administrator
has jurisdiction to convert an order of acquittal into one of conviction
in exercise of his power of review under Regulation 3(4) of the Martial
Law Regulation No I of 1982, conferring immunity from challenge to
such an order on any ground under Paragraph 19(2) of the Fourth
Schedule of the Constitution.

In that case at paragraph 29, A.T.M.Afzal,J. held as follows:

"The provision in Regulations 3(8) rather shows that representation by
lawyer has been specifically barred at the tine of review of a case. This
being the position and having regard to the language used in paragraph
19(2) of the Fourth Schedule, we do not think that it will be possible to
successfully invoke any violation of the principles of natural justice."

(3) In the case of Abdur Rashid Sarkar—VS-Ban glades/i & others,

48 DLR
(AD) 99. Latifur Rahman,J. held at paragraph 5 as Under:
"The Martial Law was promulgated on 24-3-82 and the petitioner
was compulsory retired from his service on 2-3-86 and, as such, all
actions were taken during the continuance of the Martial Law. The
Petitioner filed the review petition on 7-4-1986 and the same was
rejected on 13-3-89. In the case of Majibur Ra/unen, EX- Collector
of Customs —VS- Government of Bangladesh reported in 13 BLD
(AD) (1993) 54, it has been held by this Division that all actions of
Martial Law Authorities are protected by the 7' h Amendment of the
Constitution. In that view of the matter, the jection of the review
256 The Constitution of the People Renthlic of thtI,ç'leI(-i1 Iouril Schedule

petition does not materially affect the position as the impugned

order of compulsory retirement stands as the same was passed
when Martial Law was in force. Hence, there is no illegality in the
impugned Judgment."
 Appendix
New Amendment of the Constitution
1 4. Constitution (Fourteenth Amendment) Act 14 of 2004 passed in the
eighth Parliament on 17 May 2004 amending Article 65(3) by inserting
forty five women seats in the Parliament on proportional representation
from vanous political parties and etc.

Case on Articles 27 and 28

In the case of Bangladesh Biman Vs. Rabia Bashri irane, 55 DLR(AD)
132, Md Ruhul Amin, J. while interpreting Article 27 of the Constitution
observed that since some employees of the Corporation interse standing in
the similar situation have not been treated in the similar manner or, in other
words, have been treated differently from the others the contention of the
writ-petitioners that they have been discriminated against has rightly been
found by the High Court Division.
In the same decision, in interpreting article 2 . it was held that the matter
of fixing the age of retirement of the stewards and stewardesses being
gender-based the same is discriminatory and violative of article 28 of the
Constitution.

Case on Article 27
In the case of M.A. Gaflir and another Vs. Bangladesh, 56 DLR(AD)
205, the Appellate Division took note of two previous decisions of this
Division, namely, 33 DLR(AD) 201 and 35 DLR(AD) 72 and held that
retirement with full pension benefits after completion of 25 years of service
is not a punishment nor does it contain any stigma and it is altogether
different from dismissal, removal or compulsory retirement.

Cases on Articles 31 and 32.

In the case of M. Saleemullah, Advocate and others Vs. Bangladesh, 55
DLR 1, question was raised as to whether the respondents could convert the
open space meant for park and in interpreting Articles 31 and 32 of the
Constitution, M.M. Ruhul Amin, J. held that state is bound to protect the
health and longevity of the people living in the country as right to life
guaranteed under Articles 31 and 32 of the Constitution includes protection
258 The Constitution of the Peoples Republic' o/Bang/adesh Appendix
of health and normal longevity of a man free from threats of man-made
hazards unless that threat is justified by law. It was further observed in that
decision that right to life under Articles 31 and 32 of the Constitution being
a fundamental right it can be enforced by this court to remove any
unjustified threat to the health and longevity of the people as the same are
included in the right to life.

Case on Article 65
In the case of Bangladesh and others Vs. MIS. Eastern Beverage
Industries Ltd., 23 BLD(AD) 68. while interpreting article 65(1) of the
Constitution, the Appellate Division rejected the contention that the
delegated legislation is in excess as article 65(1) of the Constitution provides
that nothing shall prevent the Parliament from delegating to make order,
rules or other enactments having legislative effect. In that decision it was
further held that the Parliament has authorized the National Board of
Revenue by way of Contingent legislation to make rules under Section 3(4)
of the excise and salt Duty Act, 1944 and this could not be termed as
excessive delegation. The legislature is not always required to legislate in its
entirety to carry out all its work. Some of its function is left out to he
performed fully by persons technically conversant with levy and realisation
thereof, or else the legislative scheme as to levy and realisation may be
frustrated.

Case on Articles 66 and 67.

In the case of Hussain Mohammad Ersizad Vs. Za/iedul Islam Khan and
others, 54 DLR(AD), Mahmudul Amin Chowdhury, C.J. while interpreting
articles 66 and 67 of the Constitution held that embezzlement of State money
by a person who was the President of the country and using the same for
his personal benefit or living or having properties disproportionate to his
known source of income will definitely come within the ambit of moral
turpitude. Consequently, when a person is convicted for moral turpitude
and sentenced to suffer imprisonment for a minimum period of two years he
cannot be elected a Member of the Parliament and cannot retain his position
as such Member.
Appendix The Constitution of fire People's Republic of Bangladesh 259
Case on Article 102, Alternative remedy in case of violation of
legal right
In the case of Bangladesh Bank Vs. Zaftir Ahmed Chowdhury, 56 DLR
(AF) 175, MD Faziul Karim, J. while disposing the leave petition held two
very important points in the case. First, if an order affects one legal right as
wholly without authority, an alternative remedy provided by the nature will
not stand in the way of the exercise of writ jurisdiction under article 102 of
the Constitution. Secondly, without issuing a rule while disposing of the
application under article 102 of the Constitution the High Court Division
was not authorised in law to pass any ad-interim relief which it could pass
in aid of or ancillary to the main relief upon final determination of the rights
of parties.

Case on Article 103 privilege

In the case of Bangladesh and others Vs. Md. Abul Hossain, 23 BLD
(AD) 129, Mahmudul Arnin Chowdhury, C.J. held that once privilege is
given to a person on condition of doing any act and if such cobdition is
fulfilled and continues to be fulfilled, such privilege or right cannot be Laken
away or cancelled without giving him a chance of being heard. Hence it was
held that the High Court Division committed no illegality in making the rule
absolute.

Case on article 102

In the case of SSA Bangladesh Ltd. Vs. Engineer Mahmudul is/am and
others, 24 BLD (AD) 92, Mohammad FazIul Karim, J. held at para 60 as
follows.
"The principle of legitimate expectation as enunciated in Schmidt Vs.
Secretary of State of House Affairs reported in (1969) 1 Ch. 140
imposed upon the Government of the concerned Authorities a duty to act
fairly and reasonably in dealing with the rights and/or interest of the
people and in case of any breach thereof the court should act upon in
striking down any order in exercise of judicial review of executive
action and in case of any unreasonableness or inertness or even latches
in its part of which benefit it lost causing prejudice to the people at large
the court may direct the concerned authority to exercise its functions
260 The Constitution of the People's Republic of Bangladesh Appendix

fairly, reasonably and in accordance with law and established

principles."

Case on Article 102(2)

High Court's power of reconsideration of its own judgment.
In the case of Md. Serajuddin Ahmed and others Vs. A.K.M. Saiful
Alani and others, 24 BLD(AD) 145, MD. Ruhul Amin, J. held in para 28 as
follows:

"Moreover provision of Article 102(2) or any other provisions of the

Constitution do not preclude the High Court Division either to
reconsider or to review or to see the correctness of its judgment earlier
made on furnishing of fresh materials by a party to the case which
according to him if were before the Court the judgment would have been
otherwise than the one made."
Thus it was observed that the High Court Division was Competent to
reconsider or review its judgment on the ground of justice, equity and
good conscience.

Case on article 102(2)

In the case of Hazeru//ali Vs. Assistant Commissioner, Board of
management of Abandoned Property and others, 55 DLR(AD)-15, Md.
FazIul Karim,J. held at para 5 as follows:-
"Thus one could only avail the forum by way of mandamus for
enforcement of any legal right or to redress the violation thereof."

Case on article 102

Commercial Contract
In the case of Bangladesh Power Development Board Vs. Md.
Asaduzzainan Sikder, 24 BLD(AD) 33, the appeal was allowed holding that
the contract that was entered into by the appellants with the respondent was
not in terms of the statutory provision or in exercise of the statutory power
but was an ordinary commercial contract or contract of general nature, and
consequently, the High Court Division wrongly granted relief to the
respondent.
Appendix The Constitution of the People's Republic of Bangladesh 261

Case on articles 104 & 105

In the case of ETV Vs. Dr. Chowdhury Mahrnood Hasan, 55
DLR(AD)-37, K.M.Hasain, J. while rejecting the review petition observed
at para 25, that the fundamental is that an error is necessary to be a ground
for review but it must be one, which is apparent on the face of the record,
and so obvious that keeping it on the record will be legally wrong.

Case on article 146

In the case of Secretary , Ministry of Health Vs. Principal Barguna Alia
Madrasha, 24 BLD(AD) 245, a question was raised as to whether the
government ought to be made a party when admittedly the property belongs
to the Government. In that case it was held by Syed J.R. Mudassir
Husain,J. that as per provision of Article 146 of the Constitution, a suit in
respect of any government property could only proceed in the name of
Bangladesh, represented by the Deputy Commissioner concerned and not in
the name of any Secretary of the Ministry.