IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 9989 OF 2014

IN THE MATTER OF:

An application under Article 102 of the Constitution of the Peoples Republic of

Bangladesh.

-AND-

IN THE MATTER OF:

Advocate Asaduzzaman Siddiqui and others

....... Petitioners.

-Versus-

Bangladesh represented by the Cabinet Secretary,

Cabinet Division, Bangladesh Secretariat, Police
Station Shahbag, Dhaka-1000 and others
......Respondents.

Mr. Manzill Murshid with

Mr. Moyeen A. Firozze and
Mr. Sanjoy Mandal, Advocates
.....For the petitioners.

Mr. Mahbubey Alam, Attorney General with

Mr. Md. Motaher Hossain (Sazu), DAG,
Ms. Purabi Rani Sharma, AAG,
Mr. A.B.M. Mahbub, AAG and
Ms. Purabi Saha, AAG
.For the respondent no. 1.

Mr. Murad Reza, Additional Attorney-General

with
Mr. Amit Talukder, DAG
.For the respondent no. 4.

1) Dr. Kamal Hossain, Senior Advocate

2) Mr. M. Amir-ul Islam, Senior Advocate
3) Mr. Rokanuddin Mahmud, Senior Advocate
and
 2

4) Mr. Ajmalul Hossain QC, Senior Advocate

. Amici Curiae

Heard on 28.05.2015, 18.06.2015,

02.07.2015, 30.07.2015, 06.08.2015,
19.08.2015, 20.08.2015, 02.09.2015,
03.09.2015, 09.09.2015, 11.11.2015,
01.12.2015, 02.02.2016, 03.02.2016,
04.02.2016, 23.02.2016, 03.03.2016
and 10.03.2016.
Judgment on 05.05.2016.

Present:
Mr. Justice Moyeenul Islam Chowdhury,
Mr. Justice Quazi Reza-Ul Hoque
-And-
Mr. Justice Md. Ashraful Kamal

MOYEENUL ISLAM CHOWDHURY, J:

On an application under Article 102 of the Constitution of the

Peoples Republic of Bangladesh filed by the petitioners, a Rule Nisi was

issued calling upon the respondents to show cause as to why the Constitution

(Sixteenth Amendment) Act, 2014 (Act No. 13 of 2014) (Annexure-A to

the Writ Petition) should not be declared to be colourable, void and ultra

vires the Constitution and/or such other or further order or orders passed as

to this Court may seem fit and proper.

The case of the petitioners, as set out in the Writ Petition, in short, is

as follows:

The petitioners are the practising Advocates of the Supreme Court of

Bangladesh. They are also working under the umbrella of an organization

under the name and style Human Rights and Peace for Bangladesh

(HRPB) which is engaged in promoting and defending human rights and

 3

establishing the rule of law in the country. As officers of the Court, they are

very conscious of the independence of the Judiciary. By virtue of the

Constitution (Sixteenth Amendment) Act, 2014 (hereinafter referred to as

the Sixteenth Amendment), Article 96 of the Constitution has been amended

which contains the provisions relating to the power and procedure of the

removal of the Judges of the Supreme Court of Bangladesh. The background

of the initiative to amend the relevant provisions relating to the removal of

the Judges of the Apex Court emanated from some incidents which took

place in the recent past. One of them is that our Parliament passed a law of

Contempt of Court in 2013 wherein some people were given undue privilege

and exempted from the charge of Contempt of Court in a discriminatory

manner and the vires of that law was challenged by way of a Public Interest

Litigation. After hearing the parties, the High Court Division declared the

said law of Contempt of Court of 2013 void and ultra vires the Constitution.

Another step was taken to protect public servants from the charge of

corruption and accordingly an amendment was made in the Anti-Corruption

Commission Act of 2004. By the amendment, a provision was inserted in the

Anti-Corruption Commission Act of 2004 to take permission from the

Government in case of prosecuting any public servant thereunder. This

amendment was also challenged by way of a Public Interest Litigation in the

High Court Division and ultimately after hearing the parties, the High Court

Division declared the amendment void and ultra vires the Constitution.

Thereafter in a seven-murder case in Narayanganj, repeated allegations were

made in both electronic and print media about the involvement of some

personnel of the law-enforcing agencies; but no concrete step was taken

 4

against them. Eventually in this regard, a Public Interest Litigation was filed

before the High Court Division and the High Court Division directed the

concerned authorities to arrest those personnel of the law-enforcing

agencies. However, in accordance with the order of the High Court Division,

those personnel were arrested and the entire scenario of killing of seven

persons by them was exposed to the public. Soon thereafter an evil move

was taken by the political executives to amend Article 96 of the Constitution

through the Parliament. This move was crystallized by the passing of the

Sixteenth Amendment at the behest of the political executives with the mala

fide intention of interfering with the independence of the Judges of the

Supreme Court of Bangladesh in the discharge of their judicial functions.

It is the duty of the Members of Parliament to enact necessary laws.

But at present, they are also performing functions relating to all development

activities in their respective constituencies and the whole administration is

under their thumb. In most of the cases (Writ Petitions), the Government is

the respondent; but the Members of Parliament are vitally interested in those

cases arising out of the development activities in their local areas. Moreover,

in the present context of Bangladesh, most of the Members of Parliament are

from business sectors and by that reason, they have personal interest in those

cases. Against this backdrop, the Judges of the Apex Court would suo motu

be restrained from passing any order in the cases in which the Members of

Parliament are interested. In view of the Sixteenth Amendment, any Member

of Parliament can bring a motion against any Judge of the Supreme Court

and discuss the same therein and due to this reason, no Judge will be able to

perform his duties impartially and independently. In the long run, justice will
 5

be frustrated and administration of justice will collapse in no time. In India

and other developed countries, the Judges of the Apex Courts may be

removed by the resolutions of their respective Parliaments; but in our

country, the influential people including the Members of Parliament ignore

the law for their personal interest and that being so, the situation in

Bangladesh is quite different. The primary objective of the Sixteenth

Amendment is to destroy the principle of independence of the Judiciary and

to render the Judiciary impotent and ineffective. Independence of the

Judiciary is one of the basic features of the Constitution as expounded in

Anwar Hossain Chowdhury and othersVsBangladesh and others

(popularly known as Eighth Amendment Case) [1989 BLD (SPL) 1] which

has been reiterated and reaffirmed in Masdar Hossains Case [52 DLR (AD)

82]; but that independence has been compromised by the Sixteenth

Amendment giving overwhelming authority to the Executive through the

Parliament to remove the Supreme Court Judges. This is, no doubt, a death

blow to the independence of the Judiciary and a blatant interference with the

administration of justice.

The Sixteenth Amendment is ultra vires the Constitution as it is in

direct conflict with and contradictory to the spirit of the Preamble of the

Constitution. The power conferred upon the Parliament by the Sixteenth

Amendment is beyond its scope and jurisdiction and is contrary to the basic

features of the Constitution as investigation into misbehaviour or incapacity

and recommending to the President for removal of the Judges of the

Supreme Court is neither a legislative function, nor it is an act of scrutiny of

the Executive action. The role of each organ of the State is clearly defined
 6

and deliberately and carefully kept separate under the Constitution to

maintain its harmony and integrity and to maximize the effectiveness of the

functionality of the organs of the State in their respective spheres. The

Sixteenth Amendment has opened up the door for manipulation and exertion

of control over the Judges of the Supreme Court of Bangladesh in their

judicial functions. It is violative of Article 7B of the Constitution as no

provisions relating to the basic structures of the Constitution shall be

amendable by way of insertion, modification, substitution, repeal or

otherwise. The Sixteenth Amendment blatantly destroys the spirit and

essence of the provisions of Article 22 of the Constitution and thereby blurs

the separation of powers among the different organs of the State and clearly

establishes the domination of the Executive through the Parliament over the

Judiciary which will create a great imbalance within the constitutional

bodies and thereby make the Judiciary a mockery and a toothless and tearful

silent witness. The principle of independence of the Judiciary and separation

of powers are basic structures of the Constitution and as such the same can

not be touched upon or taken away in any manner whatsoever. The Sixteenth

Amendment is also ultra vires the Constitution as by dint of Article 70, the

Members of Parliament can not express their independent views/opinions

against their partyline and as a natural corollary thereto, the removal of the

Judges of the Apex Court of Bangladesh will be prejudiced by its direct

implication. Furthermore, the Sixteenth Amendment is ultra vires the

Constitution as it has undermined the authority and dignity of the Apex

Court because of the fact that the validity of the proceedings in the

Parliament can not be questioned in any Court by virtue of Article 78 of the

 7

Constitution. As such the Judiciary will be at the mercy of the Executive

through the Legislature and it will not be able to safeguard itself. The

Supreme Court of Bangladesh being the guardian of the Constitution must

not allow any inroad upon the Constitution; but the Sixteenth Amendment is

an inroad upon the independence of the guardian of the Constitution. This is

why, the same can not be sustainable and must be struck down as being

unconstitutional. In such a posture of things, the petitioners have impugned

the vires of the Sixteenth Amendment.

In the Supplementary Affidavit dated 26.11.2014, it has been stated

by the petitioners that in the Fifth Amendment Case, the High Court

Division declared the Constitution (Fifth Amendment) Act, 1979 (Act No. 1

of 1979) illegal and void abinitio subject to certain condonations. The

Appellate Division in the Fifth Amendment Case endorsed those

condonations with some modifications. As per the judgment of the Appellate

Division passed in the Fifth Amendment Case, the provisions relating to the

Supreme Judicial Council were kept intact in the Constitution of

Bangladesh. So the provisions of removal of the Judges of the Supreme

Court of Bangladesh by the Supreme Judicial Council can not be substituted

by the authority of the Parliament violating the verdict of the Appellate

Division. The Judges of the Apex Courts in the UK, USA and India are

removed by the resolutions of their respective Legislatures. Those countries

have bicameral Legislatures, that is to say, two Houses each in their National

Legislatures. The removal of the Judges of the Apex Courts by the

Legislatures of the UK, USA and India is not only complicated, but also

balanced by the two Houses of the Legislatures. But on the contrary,

 8

Bangladesh has a Parliament (to be known as the House of the Nation)

consisting of only one House which may lead to impairment of judicial

independence by way of removal of the Judges of the Supreme Court by its

single House. Moreover, as the social and democratic practices of those

countries are different from those of Bangladesh, the removal of the Judges

of the Supreme Court of Bangladesh by our Parliament will endanger the

independence of the Judiciary; because there is every possibility of using the

weapon of the Sixteenth Amendment being politically motivated.

In the Supplementary Affidavit dated 27.05.2015, it has been

mentioned by the petitioners that the Sixteenth Amendment is inconsistent

with and violative of Article 147 (2) of the Constitution which provides that

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.

As per Article 147(4) of the Constitution, this Article (Article 147) applies,

amongst others, to the office of a Judge of the Supreme Court. The Sixteenth

Amendment has undoubtedly varied the removal mechanism of the sitting

Judges of the Supreme Court of Bangladesh for their misconduct or

incapacity to their disadvantage. As such the Sixteenth Amendment is illegal

and void.

The Sixteenth Amendment will also directly affect the Election

Commissioners, Comptroller and Auditor-General, Members of the Public

Service Commission as well as Members of the Anti-Corruption

Commission. By virtue of this Amendment, they will be removed in like

manner as a Judge of the Supreme Court according to Articles 118(5),

 9

129(2) and 139(2) of the Constitution of Bangladesh and Section 10(3) of

the Anti-Corruption Commission Act, 2004 respectively. The independence

of the Commissioners of the Anti-Corruption Commission and the

Comptroller and Auditor-General of Bangladesh will be in jeopardy

inasmuch as they will not be able to act impartially and effectively against

the misdeeds of the concerned Members of Parliament who are their real

bosses. One of the main components of judicial independence is strong

protection against removal from office. That international standard on

judicial removal has been emphasized in the UN Basic Principles On The

Independence Of the Judiciary as adopted by the General Assembly in

1985. The Judges of the Supreme Court can not be removed without proven

misconduct or incapacity by a fair, unbiased, independent and impartial

body who is free to conduct the inquiry and make a determination on its own

from the influence of the other branches of the State. The Sixteenth

Amendment by way of giving power of removal of the Judges of the

Supreme Court to the Members of Parliament is definitely against the spirit

of the independence of the Judiciary. This amendment has been made in

exercise of the derivative power of the Constitution and this will not

automatically make the amendment immune from challenge by way of

judicial review. No amendment to the Constitution can be made in

exercising derivative power violating the existing provisions of the

Constitution and the limitations imposed by it. So the Sixteenth Amendment

is ultra vires the Constitution.

 10

The respondent no. 1 has contested the Rule by filing an Affidavit-in-

Opposition. The case of the respondent no. 1, as set out in the Affidavit-in-

Opposition, in short, runs as follows:

In the Fifth Amendment Case, all martial law proclamations, martial

law regulations, martial law orders made/promulgated during the period

between 20th August, 1975 and 9th April, 1979 which were validated by the

Act No. 1 of 1979 was declared illegal, void abinitio and ultra vires; but

those were provisionally condoned until 31st December, 2012 so as to enable

the Parliament to make necessary amendment to the Constitution (vide

judgment and order dated 11th May, 2011 passed by the Appellate Division

in Civil Review Petition Nos. 17-18 of 2011). So it is totally a misconceived

idea that in the Fifth Amendment Case, the Appellate Division of the

Supreme Court by its observation favoured to retain or condone the

provisions of the Supreme Judicial Council which were introduced by

General Ziaur Rahman. Thereafter the Constitution (Fifteenth Amendment)

Act was passed in 2011 which endorsed the system of the Supreme Judicial

Council which may be considered as a departure from the original provisions

of the Constitution relating to removal of the Judges of the Supreme Court

by the Parliament. Finally it was thought expedient and necessary to

restore/revive the original provisions of the Constitution about removal of

the Supreme Court Judges through the Parliament which were introduced in

Article 96 of the original Constitution and therefore, the Sixteenth

Amendment was passed in 2014 reviving the relevant provisions (provisions

of Article 96) of the original Constitution. The Sixteenth Amendment is not

intended to dominate the Judiciary by the Executive through the Legislature

 11

undermining its independence. In the instant Writ Petition, no public interest

is involved for which the Sixteenth Amendment can be challenged in the

form of judicial review of any legislative action nor the same is amenable to

judicial review. The Sixteenth Amendment is not ultra vires; rather it is

intra vires the Constitution which can not be called in question by way of

judicial review in that the same has revived and restored the original

provisions of Article 96 of the Constitution (barring age limit) relating to

removal of the Supreme Court Judges. As the Parliament has restored the

original provisions of Article 96 of the Constitution, the Sixteenth

Amendment can not be subjected to judicial scrutiny. No provision of the

original Constitution as enacted and adopted by the Constituent Assembly in

1972 can be judicially reviewed.

Public perception regarding the functions of the Supreme Judicial

Council is that it is not effective and vibrant so as to investigate and remove

a Judge on the ground of proved incapacity or misbehaviour. Besides, in the

recent past, the conduct of two sitting Judges of the High Court Division, as

reported in the media, was not taken into account and dealt with properly by

the Supreme Judicial Council. The Minister for Law, Justice and

Parliamentary Affairs raised all those issues while making his address in the

Legislature in connection with the passing of the Sixteenth Amendment and

he also clarified the intention of the Legislature in this respect. By enacting

the Sixteenth Amendment, the Government has taken the necessary initiative

to maintain the high judicial standard of the Supreme Court Judges and to

keep their jobs secured following the best practices of the contemporary

world. The system of parliamentary removal of Judges has a long history. It

 12

was developed in the 18th century in England to ensure that the King could

only dismiss a Judge if both Houses of Parliament passed a resolution or

address calling for the removal of the Judge. Parliamentary removal

procedure is in place in 33% Commonwealth jurisdictions. The Westminster

model of parliamentary removal of Judges as has been reintroduced in

Bangladesh through the Sixteenth Amendment is a standard mechanism of

removal of Judges of the Supreme Court of Bangladesh for their proved

misbehaviour or incapacity. The Government is committed to restore and

revive the provisions of the original Constitution of 1972 in phases and as a

part of this initiative, Article 96 of the original Constitution has been revived

and restored through the Sixteenth Amendment.

It is not true that the Members of Parliament have been empowered to

perform the functions of all development activities of their local areas and

the whole administration is under their control. Though the Government has

made them advisers to the Upazilla Parishads, yet it does not necessarily

mean that they control the whole of the local administration. The Members

of Parliament have no scope to act arbitrarily and illegally. There is not a

single instance that exposes the interest of the Members of Parliament in any

case where the Judges of the Supreme Court have restrained themselves

from passing any order in connection therewith. There is rule of law in the

country. Separation of powers among the 3(three) organs of the State is a

unique feature of our Constitution so that one organ of the State can not

encroach upon the domain of another. In fact, the petitioners have virtually

admitted that in India and other developed countries, the Judges of the Apex

Courts are removed by a resolution of the Parliament which is one of the

 13

fundamental structures of the Constitution of a democratic country.

Bangladesh being a democratic country also upholds the spirit of democracy

and the rule of law. So the Sixteenth Amendment has not destroyed the

independence of the Judiciary in any way. Rather it has changed the process

of removal of the Judges of the Supreme Court of Bangladesh on the ground

of proved misbehaviour or incapacity shifting from the Supreme Judicial

Council to the Parliament. The Preamble of the Constitution is not in conflict

with Article 96 of the original Constitution. Besides, the Sixteenth

Amendment is not violative of Article 7B of the Constitution. In the UK,

USA, Australia, Canada, India, South Africa and others countries, the same

mechanism of parliamentary removal of the Judges of the higher Judiciary

has been in place. In all those countries, the question of undermining the

independence of the Judiciary and hampering the separation of powers

among the 3(three) organs of the State has not arisen at all.

It is not correct that by reason of Article 70 of the Constitution, the

Members of Parliament can not express their independent views and

opinions against the stance of their respective parties. Every Member of

Parliament has the right to express his/her opinion in the Parliament.

Removal of Judges is not a political issue; rather it is a delicate

constitutional issue that demands a debate in the Parliament among all the

members irrespective of their political identity. Parliament does not

generally involve itself in investigation and inquiry process on the allegation

of misbehaviour or incapacity of any Supreme Court Judge. Almost in all

jurisdictions, a separate, independent and impartial authority has been

created to investigate or inquire into any allegation levelled against any

 14

Judge of the Apex Court by an Act of Parliament for the sake of fairness,

transparency and objectivity and the said investigating or inquiring authority

is quite distinct and separate from the Legislature or the Executive organ of

the State. An accused Judge will be fully entitled to defend himself during

investigation or inquiry, as the case may be. That being so, he will not suffer

any prejudice on any count.

The statement made in the Writ Petition that the Sixteenth

Amendment has undermined the authority and dignity of the Apex Court

because of the fact that the validity of the proceedings in the Parliament can

not be called in question in any Court by reason of Article 78 of the

Constitution is quite meaningless and unwarranted. The Constitution itself

has given the mandate that the validity of the Parliamentary proceedings

shall not be called in question in any Court of law. Being the sovereign law-

making body, Parliaments proceedings are immune from judicial

interference. This is a universal practice prevailing all over the world. Had

Article 96 of the Constitution not been unconstitutionally and illegally

amended by the unconstitutional military regime introducing the system of

the Supreme Judicial Council, the Sixteenth Amendment would not have

been required to restore Article 96 to its original position of 1972. The

Supreme Court is the guardian of the Constitution, but not the supervisor of

the whole Governmental process. The Sixteenth Amendment is a valid piece

of legislation. So the Rule is liable to be discharged.

In the Supplementary Affidavit-in-Opposition filed on behalf of the

respondent no. 1, it has been stated that the respondent no. 4 by a Memo

being No. 55.00.0000.105.53.001.15-68 dated 01.03.2016 forwarded a draft

 15

bill prepared under Article 96 (3) of the Constitution titled hwmcn pfj

LVl hQlLNZl ApcQlZ h Apjb (ac J fjZ) BCe, 2016 to the Registrar-

General of Bangladesh Supreme Court, Dhaka for the considered opinion of

the Supreme Court of Bangladesh.

The case of the respondent no. 4, as set out in the Affidavit-in-

Opposition, in brief, is as follows:

The Writ Petition has been filed by the petitioners invoking Article

102 of the Constitution as Public Interest Litigation (PIL) for the purpose of

challenging the vires of the Constitution (Sixteenth Amendment) Act, 2014.

Admittedly the petitioners are not persons aggrieved. As the petitioners

are not aggrieved persons, the Writ Petition in the nature of Public Interest

Litigation is not maintainable. It has been provided in Section 2(3) of the

Constitution (Sixteenth Amendment) Act, 2014 that the Parliament may by

law regulate the procedure in relation to a resolution under clause (2) and for

investigation and proof of the misbehaviour or incapacity of a Judge. As the

Parliament is yet to make any law pursuant to clause (3) of the amended

Article 96 of the Constitution, the Writ Petition is premature. In other words,

no cause of action has arisen to file the Writ Petition and that being so, the

Writ Petition is incompetent. However, the Sixteenth Amendment has not

undermined the basic principles of separation and independence of the

Judiciary. On the contrary, it has brought back the main spirit of the original

Constitution which the sovereign people of Bangladesh conferred upon

themselves in 1972 through their elected representatives who formed the

Constituent Assembly. In fact, Article 96 of the Constitution, as it stands

after the Sixteenth Amendment, is the same as Article 96 of the original

 16

Constitution of 1972. It may be mentioned that the usurper of power

suspended, subverted and mutilated the Constitution illegally by the Second

Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order

No. 1 of 1977), so far as it relates to insertion of Clauses (2), (3), (4), (5), (6)

and (7) of Article 96 i.e. provisions relating to the Supreme Judicial Council

which were subsequently endorsed and ratified by the Constitution (Fifth

Amendment) Act, 1979. As the Sixteenth Amendment has restored the

original provisions of Article 96 of the Constitution, the same can not be

declared void and ultra vires the Constitution. In Italian Marble

WorksVsBangladesh, 2006 (Special Issue) BLT (HCD) 1, the High

Court Division declared the Constitution (Fifth Amendment) Act, 1979 null

and void. Thereafter on appeal, the Appellate Division affirmed the decision

of the High Court Division with some modifications and condonations in

Khondker Delwar Hossain Secretary, BNP and anotherVsBangladesh

Italian Marble Works and others, 62 DLR (AD) 298. In particular, the

provisions embodied in Clauses (2), (3), (4), (5), (6) and (7) of Article 96

were condoned by the Appellate Division in the case of Khondker Delwar

Hossain (Fifth Amendment Case). Subsequently on review of its own

decision, the Appellate Division, by its judgment and order dated 29th

March, 2011 passed in Civil Review Petition Nos. 17-18 of

2011(Bangladesh represented by the Secretary, Ministry of Industries and

othersVsBangladesh Italian Marble Works Limited and others) held,

inter alia, that the Second Proclamation (Tenth Amendment) Order, 1977

(Second Proclamation Order No. 1 of 1977) inserting Clauses (2), (3), (4),

(5), (6) and (7) in Article 96 and also clause (1) in Article 102 of the
 17

Constitution were provisionally condoned till 31st December, 2012. The

condonation of the provisions relating to the Supreme Judicial Council in

Article 96 of the Constitution was a provisional one for a very limited

period. But the Parliament in its own wisdom has reverted to the original

Article 96 of the Constitution by passing the impugned Sixteenth

Amendment. So it is an absurd proposition that the Sixteenth Amendment is

contrary to the Constitution.

By the Sixteenth Amendment, no situation has been created to

dominate the judiciary indirectly and the justice-seekers will not be

prejudiced in any way in getting fair play from the Supreme Court of

Bangladesh. No petition for judicial review can be entertained on mere

assumptions and surmises that the administration of justice will be

obstructed by the Sixteenth Amendment. The statements made in the Writ

Petition with reference to the background of the initiative to amend the

provisions of removal of the Judges of the Supreme Court resulted from

some incidents which occurred in the recent past such as passing of the

Contempt of Courts Act, 2013 which was ultimately declared null and void

by the High Court Division; the amendment of the Anti-Corruption

Commission Act of 2004 allegedly brought in to protect the Government

officers from the charge of corruption which was also declared null and void

by the High Court Division and a direction from the High Court Division to

arrest the concerned officers of the law-enforcing agencies in a seven-

murder case in Narayanganj etc. are vehemently denied. Such kind of wild,

imaginary and baseless propositions on the part of the petitioners are

nothing, but a deliberate insult upon the wisdom and integrity of the
 18

Legislature which voices the will of the sovereign people. Such statements

also go against the principle of law that all the Judges of the Supreme Court

of Bangladesh are oath-bound to perform their duties without fear or favour

and affection or ill-will. According to Article 7 of the Constitution, all

powers in the Republic belong to the people, and their exercise on behalf of

the people shall be effected only under, and by the authority of, the

Constitution. Those powers of the people have been reflected in Article 52,

57, 74 and 96 of the original Constitution relating to the impeachment of the

President, resignation of the Prime Minister and removal of the Speaker and

a Judge of the Supreme Court by the resolutions of the Parliament

respectively. Although the provisions of Article 52, 57 and 74 of the

Constitution still remain unchanged, the usurper, that is to say, the Martial

Law Authority inserted the provisions of removal of a Judge of the Supreme

Court by the Supreme Judicial Council which runs counter to the spirit of

Article 7. The usurper i.e. the then military ruler in so doing by way of a

Martial Law Proclamation purported to Act as holier than the Pope, but in

fact, his very intention was to take away the power of the people who are

entitled to exercise through their elected representatives in the Parliament. In

most democratic countries of the world, such as the United Kingdom, United

States of America, Canada, Australia, Ireland, India etc., the principle of

accountability of the Judges of the superior Courts to the people through

their elected representatives in the Parliament is maintained. So in our

instance, the Sixteenth Amendment has not affected the principles of

separation of powers and independence of the Judiciary at all. These basic

structures of the Constitution, precisely speaking, have remained unaffected.

 19

The wisdom of the Parliament in passing the Sixteenth Amendment is not

subject to judicial review. However, the Sixteenth Amendment was passed

by the Parliament by virtue of the power provided in Article 142 of the

Constitution. This amendment does not curtail the independence of the

Judges of the Supreme Court of Bangladesh in discharging their judicial

functions. The apprehension of the petitioners that the Judges of the Apex

Court will suo motu be restrained from passing any orders in the cases in

which the Members of Parliament are interested is unfounded and baseless.

The Judges of the Supreme Court will preserve, protect and defend the

Constitution and the laws of Bangladesh in view of their oath of office. The

further apprehension of the petitioners that in accordance with the amended

Article 96 of the Constitution, a Member of Parliament can bring a motion

against a Judge and discuss it in the Parliament and because of this reason,

the Judge will not be able to perform his duties independently in respect of

the case concerned is ill-conceived. Anyway, there is a presumption of

constitutionality in favour of the impugned Sixteenth Amendment.

Consequently the burden of rebuttal of the presumption of constitutionality

of the Sixteenth Amendment lies on the shoulder of the petitioners. This

burden can not be discharged by mere speculations, surmises, conjectures

and apprehensions.

Like India, Bangladesh follows the Westminster type of democracy

and our Parliament is democratic which consists of democratically elected

representatives of the people. In the Parliament, every proceeding is initiated

and completed democratically pursuant to the Constitution and the Rules of

Procedure of Parliament by following democratic norms, practices, customs

 20

and traditions. Against this backdrop, there is no basis for suspecting that the

Members of Parliament may create obstruction to the administration of

justice. Furthermore, it is an absurd proposition on the part of the petitioners

that unlike the Members of Parliament in other countries, our Members of

Parliament are influential people and in most cases, they ignore law for their

personal interest and that the overall scenario in this regard is different in

Bangladesh. In our subcontinent, only in Pakistan, there is a provision in its

Constitution for removal of the Judges of the higher Judiciary by the

Supreme Judicial Council. In Bangladesh, our Parliament in its wisdom

preferred to revive the original provisions of removal of the Judges of the

Supreme Court of Bangladesh by the orders of the President passed pursuant

to the resolutions of the Parliament supported by a majority of not less than

two-thirds of the total Members of the Parliament on the ground of their

proved misbehaviour or incapacity which the Constituent Assembly

originally adopted in 1972 following the constitutional provisions of the

developed countries of the world. The Sixteenth Amendment has upheld the

most important basic structure of the Constitution i.e. sovereignty of the

people and implementation of their desire through their elected

representatives. In addition, an amendment of the Constitution is always

tested by the touchstone of the spirit of the original Constitution which is the

sovereign will of the people. Besides, Article 70 of the Constitution is

designed to strengthen democracy and ensure discipline among the Members

of Parliament belonging to different political parties. This Article (Article

70) is not a roadblock to the independence of the Judiciary. So the Sixteenth

Amendment is valid and intra vires the Constitution.

 21

At the outset, Mr. Manzill Murshid, learned Advocate appearing on

behalf of the petitioners, submits that the petitioners are all Advocates of the

Supreme Court of Bangladesh and in this perspective, they are interested in

the independence of the Judiciary and the rule of law and by that reason,

they have come up with the present Writ Petition in the nature of Public

Interest Litigation and as such the Writ Petition is maintainable.

Mr. Manzill Murshid also submits that although no law has yet been

enacted by the Parliament in accordance with the amended Article 96(3) of

the Constitution, yet the fact remains that the petitioners have the locus

standi to challenge the vires of the Sixteenth Amendment independently on

its own merit and the challenge of the constitutionality of the Sixteenth

Amendment has no nexus with the contemplated law to be framed by the

Parliament in the future and this being the landscape, the Writ Petition is not

premature.

Mr. Manzill Murshid further submits that the people are very much

concerned with the independence of the Judiciary and the rule of law

inasmuch as these are 2(two) basic structures of the Constitution and the

petitioners have voiced the concern of the people thereabout by filing the

Writ Petition in the nature of Public Interest Litigation in view of the fact

that the petitioners being Advocates of the Supreme Court of Bangladesh are

the officers of the Court and they have great stakes in the rule of law through

the administration of justice and from this point of view, this Public Interest

Litigation is very much competent under Article 102 of the Constitution. In

this context, the decision in the case of National Board of

RevenueVsAbu Saeed Khan and others reported in 18 BLC (AD) 116

 22

adverted to both by the Attorney General Mr. Mahbubey Alam and the

Additional Attorney-General Mr. Murad Reza has no manner of application

to the facts and circumstance of the case before us.

Mr. Manzill Murshid also submits that through the Sixteenth

Amendment, the power of removal of the Judges of the Supreme Court has

been shifted to the Parliament which is a separate independent organ of the

State in the scheme of the Constitution and by this amendment, a sort of

situation has been created to dominate the higher Judiciary in an indirect

manner which will ultimately affect the justice-seekers and this indirect

control of the higher Judiciary by the Executive through the Parliament is

contrary to the independence of the Judiciary and the rule of law and

considered from this standpoint, the Sixteenth Amendment is ultra vires the

Constitution.

Mr. Manzill Murshid next submits that if any amendment to the

Constitution does not fit in with the Constitution itself, then the amendment

is to be declared void and ultra vires in that the Constitution is a logical

whole and if by exercising the amending power, one of the basic pillars of

the Constitution is sought to be demolished, it is the constitutional duty of

the Supreme Court to restrain it and when the Parliament and the Executive,

instead of implementing the independence as well as separation of the

Judiciary, follow a different course not sanctioned by the Constitution, the

higher Judiciary will be within its jurisdiction to bring back the Parliament

and the Executive from constitutional derailment and to pass necessary

orders to declare Article 96 of the Constitution as inserted by the Sixteenth

Amendment as void.
 23

Mr. Manzill Murshid further submits that the primary objective of the

Sixteenth Amendment is to destroy the principle of independence of the

Judiciary and to make the Judiciary subservient to the Executive through the

Parliament and the principle of independence of the Judiciary is one of the

basic features of the Constitution as expounded in the case of Anwar

Hossain Chowdhury and othersVsBangladesh and others (popularly

known as Eighth Amendment Case) [1989 BLD (SpI) 1] which has been

reiterated and reaffirmed in Masdar Hossains Case [52 DLR (AD) 82]; but

the Sixteenth Amendment has given overwhelming authority to the

Executive through the Parliament to remove the Judges of the Supreme

Court which is a vicious blow to the independence of the Judiciary.

Mr. Manzill Murshid also submits that the power to frame the

Constitution belongs to the people alone that is constituent power and it

is original power, but the power to amend the Constitution is a derivative

power derived from the Constitution itself which is to be exercised subject

to certain limitations and the people after making the Constitution gave the

Parliament the power to amend it in exercise of its legislative power

following certain special procedures and even if the constituent power is

vested in the Parliament, that power is a derivative one and an amendment

made in exercise of the derivative constituent power will not automatically

make the said amendment immune from challenge by way of judicial review

and no amendment to the Constitution can be made in exercise of the

derivative power violating the existing provisions of the Constitution and the

limitations imposed thereby.

 24

Mr. Manzill Murshid next submits that the Sixteenth Amendment is

violative of Article 7B of the Constitution as no provisions relating to the

basic structures of the Constitution shall be amendable by way of insertion,

modification, substitution, repeal or otherwise and as the Sixteenth

Amendment has affected the independence of the Judiciary and separation of

powers, two basic structures of the Constitution, the same is liable to be

struck down as being unconstitutional.

Mr. Manzill Murshid further submits that the power conferred upon

the Parliament by the Sixteenth Amendment is beyond the scope and

jurisdiction of the Parliament on the score that causing of any investigation

of misbehaviour or incapacity of any Judge of the Supreme Court and

recommending to the President for his removal from office are neither

legislative functions nor those are acts of scrutiny of the Executive actions;

rather those functions are judicial in nature and the Constitution does not

allow or contemplate any judicial role by the Parliament and the role of each

organ of the State is clearly defined and carefully kept separate under the

Constitution to maintain its harmony and integrity and to maximize the

effectiveness of the functionality of the 3(three) organs of the State, that is to

say, the Executive, the Legislature and the Judiciary and the assumption of

the judicial role by the Parliament in the matter of removal of the Judges of

the Supreme Court derogates from the theory of separation of powers as

enshrined in our Constitution and this is why, the Sixteenth Amendment is

unconstitutional.

Mr. Manzill Murshid also submits that the Sixteenth Amendment is

ultra vires the Constitution as it blatantly and shockingly destroys the spirit
 25

and essence of the provisions of Article 22 of the Constitution and clearly

establishes the dominance of the Executive over the Judiciary through the

Parliament which will create a great imbalance within the constitutional

bodies and thereby make the Judiciary a toothless and tearful silent witness

to the dismantling of the constitutional fabric.

Mr. Manzill Murshid further submits that the Sixteenth Amendment is

unconstitutional in view of the fact that by virtue of Article 70, the Members

of Parliament can not exercise their voting right independently against their

partyline and given this position, the removal of the Judges of the Apex

Court will certainly be prejudiced by the direct implication of Article 70 of

the Constitution and this Article 70 has virtually fastened the hands of the

Members of Parliament in the matter of exercise of their voting right and

hence in case of voting for taking any resolution for removal of a Judge, they

will have to toe the partyline leading to the politically motivated resolution

frustrating the independence of the higher Judiciary.

Mr. Manzill Murshid also submits that the Supreme Court of

Bangladesh being the guardian of the Constitution should not countenance

any inroad upon its independence as it shall alone have overall control,

supervision and management over the powers, functions and jurisdictions of

its own as well as those of the subordinate Courts as an independent

institution and the legislators and the political executives shall have no

control, supervision and management over them in any manner whatsoever

and hence the Sixteenth Amendment is ultra vires the Constitution.

Mr. Manzill Murshid next submits that the independence of the

Judiciary, especially its institutional independence, as affirmed and declared

 26

particularly by Articles 94(4) and 116A, is one of the basic pillars of the

Constitution and it can not be demolished, whittled down, curtailed or

diminished in any manner whatsoever and the Constitution does not give the

Parliament or the Executive any authority to curtail or diminish the

independence of the Judiciary by having recourse to any amendment of the

Constitution, other legislation, subordinate legislation, rules or in any other

manner as found by the Appellate Division in Masdar Hossains Case

(supra) and since the Sixteenth Amendment is an implied violation of Article

94(4) of the Constitution, the same should be struck down.

Mr. Manzill Murshid further submits that as per Article 112 of the

Constitution, all authorities, whether executive and judicial, in the Republic

shall act in aid of the Supreme Court and from this point of view, the

Parliament can not make any law bypassing the binding effect of the

judgment rendered by the Appellate Division in the Fifth Amendment Case

(Khondker Delwar Hossain Secretary, BNP and anotherVsBangladesh

Italian Marble Works and others, 62 DLR (AD) 298) whereby the Appellate

Division declared the Constitution (Fifth Amendment) Act, 1979 (Act No. 1

of 1979) illegal and void subject to some modifications and condonations,

holding, inter alia, that the Second Proclamation (Tenth Amendment) Order,

1977 (Second Proclamation Order No. 1 of 1977), so far as it relates to

insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions

relating to the Supreme Judicial Council are condoned, and therefore, the

provisions of removal of the Judges of the Supreme Court of Bangladesh by

the Supreme Judicial Council can not be substituted by the authority of the

Parliament violating the verdict of the Appellate Division and what is more,
 27

the condonation as regards the provisions of the Supreme Judicial Council

was also maintained by the Appellate Division in the judgment of the Civil

Review Petition Nos. 17-18 of 2011.

Mr. Manzill Murshid also submits that in the case of Peoples Union

For Civil Liberties (PUCL) and anotherVsUnion of India and another,

(2003) 4 SCC 399, the Supreme Court of India held in paragraph 34 that

the Legislature has no power to review the decision and set it at naught

except by removing the defect which is the cause pointed out by the decision

rendered by the Court and if this is permitted, it would sound the death knell

of the rule of law and the Supreme Court also held in paragraph 37 that the

Legislature also can not declare any decision of a court of law to be void or

of no effect and that the Legislature can not encroach upon the judicial

sphere and hence the Supreme Court also held in paragraph 112 that the

Legislature can not overrule or supersede a judgment of the Court without

lawfully removing the defect or infirmity pointed out by the Court because it

is obvious that the Legislature can not trench on the judicial power vested in

the Courts.

Mr. Manzill Murshid further submits that in the case of Cauvery

Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2) and in Municipal

Corpn. of the City of AhmedabadVsNew Shrock Spg. and Wvg. Co. Ltd.,

(1970) 2 SCC 280, the Indian Supreme Court also held similar views as in

Civil Liberties and given this scenario, it is manifestly clear that by the

Sixteenth Amendment, the Parliament has undermined the authority of the

Supreme Court of Bangladesh which has kept the Supreme Judicial Council

intact in the Constitution in its judgment in the Fifth Amendment Case and
 28

thereby the Parliament has destroyed one of the basic structures of the

Constitution, namely, independence of the Judiciary.

Mr. Manzill Murshid also submits that the background of the initiative

to amend the provisions of removal of Judges dates back to some recent

incidents, namely, declaring the Contempt of Courts Act, 2013 illegal and

void, declaring an amended provision of the Anti-Corruption Commission

Act, 2004 purporting to give protection to the Government officers unlawful

and void and the directive issued to the concerned authority to arrest some

accused officers of the law-enforcing agencies in a seven-murder case in

Narayanganj by the High Court Division and such being the state of affairs,

the Executive, at the instance of some interested quarters, took steps for the

enactment of the Sixteenth Amendment and accordingly the same was

enacted with a view to interfering with the freedom of the Judges in the

discharge of their judicial functions with the ulterior motive of creating

undue pressure upon the administration of even-handed justice to the litigant

people and by this reason, the Sixteenth Amendment is definitely a

colourable legislation.

Mr. Manzill Murshid next submits that the Judges of the superior

Courts of the UK, USA, Canada, Australia and India are removed by their

National Parliaments and in those countries, the Members of Parliaments do

not perform any administrative functions as are being performed by the

Members of Parliament in our country and furthermore, the social and

democratic practices of those countries are quite different from those of

Bangladesh and as such the Parliamentary removal mechanism in

 29

Bangladesh is inappropriate and unsuitable; rather the possibility of misuse

of this weapon being politically motivated can not be brushed aside at all.

Mr. Manzill Murshid further submits that there are many countries in

the world where Judges are removed without the intervention of the

Legislature and the modes of removal of the Judges of some of those

countries are: (a) In Pakistan, the Supreme Judicial Council functions vide

Article 209 of the Constitution of Pakistan, 1973 for removal of Judges. The

said Supreme Judicial Council also functions under the Supreme Judicial

Council Procedure of Enquiry, 2005 and the Code of Conduct for Judges of

the Supreme Court and the High Courts of Pakistan. (b) By Article 98, the

Constitution of Zambia Act provides that the President shall remove a Judge

of the Supreme Court from his office upon having a report and /or advice

from a Three-Member-Tribunal formed in that behalf headed by a Chairman.

(c) The Constitution of the Republic of Fiji by its Article 111 provides that

the President of the Republic must act on the advice of the Tribunal or the

Medical Board in case of removal of the Chief Justice or the President of the

Court of Appeal. In the similar way, Article 112 provides that the President

of the Republic must act on the advice of the Tribunal or the Medical Board

in case of removal of the other Judges/Judicial officers. (d) The Constitution

of the Republic of Namibia also has similar provisions in its Article 84; as

per Article 84(1), a Judge may be removed from office before expiry of his

or her tenure only by the President acting on the advice of the Judicial

Service Commission. (e) By Article 98, the Constitution of Singapore

provides that the President may, on the recommendation of the Tribunal,

remove any Judge of the Supreme Court from his/her office. (f) The
 30

Constitution of Republic of Bulgaria provides in its Article 129(1) that

Judges, Prosecutors, and Investigating Magistrates shall be elected,

promoted, demoted, transferred and removed from office by the Supreme

Judicial Council. In this connection, Mr. Manzill Murshid claims that all

those countries have similar types of procedures for removal of Judges

which the Constitution of Bangladesh had earlier in the form of the Supreme

Judicial Council and the independence of the Judiciary will be best

guaranteed if the Judges of the Supreme Court of Bangladesh are removed in

accordance with the provisions of Article 96 as incorporated in the

Constitution by the Constitution (Fifteenth Amendment) Act, 2011 (Act No.

14 of 2011).

Mr. Manzill Murshid next submits that the Sixteenth Amendment is

inconsistent with and violative of Article 147(2) of the Constitution which

provides that 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 and as per Article 147(4) of the Constitution, this Article,

amongst others, applies to the office of the Judge of the Supreme Court and

the Sixteenth Amendment has undoubtedly affected the terms and conditions

of service of the incumbent Judges of the Supreme Court and they have been

prejudiced thereby because of variation of their terms and conditions to their

disadvantage while in service and the Sixteenth Amendment is liable to be

knocked down as being unconstitutional on this count also.

Mr. Manzill Murshid further submits that for impeachment and

removal of the President of the Republic, detailed provisions have been spelt
 31

out in Articles 52 and 53 of the Constitution; but for removal of the Judges

of the Supreme Court under the amended Article 96(2), details have been

left to the Parliament to be worked out in the form of a law pursuant to the

amended Article 96(3) and that is incongruous and even if an ordinary law is

passed pursuant thereto, it will be subject to frequent changes by simple

majority of the Members of Parliament in the interest of the party-in-power

jeopardizing the independence of the Judiciary.

Mr. Manzill Murshid next submits that the Sixteenth Amendment

contains an inherent weakness, that is to say, the amended Article 96(2)

requires a resolution to be passed by a majority of not less than two-thirds of

the total number of Members of Parliament and in the absence of such

majority, there may arise a complication in passing the resolution, which

may ultimately provide the concerned Judge with a blank cheque for his

misbehaviour or incapacity and in India, a motion was lost in Lok Sabha in

1992 in spite of a finding of guilt by a committee formed under the Judges

(Inquiry) Act, 1968 against one V. Ramaswami J, the then Chief Justice of

Punjab and Haryana High Court because of not having the required votes in

the House since the members of a major political party, namely, Congress

were absent therein (Mrs. Sarojini RamaswamiVsUnion of India and

others, AIR 1992 SC 2219) and in our instance, the same may be replicated

if the Sixteenth Amendment is maintained by this Court.

Mr. Manzill Murshid further submits that the tenure of the Judge is

very vital in maintaining the integrity of the Judiciary and is pivotal in

maintaining and upholding the independence of the Judiciary as expounded

by the Appellate Division in Masdar Hossains Case and in that context, the
 32

removal of the Judges of the Apex Court must be by an appropriate process

for the sake of fairness, transparency and avoidance of arbitrariness and

since the process of voting in the Parliament is a political process, the

amended Article 96(2) is against the fundamental principle of rule of law

and in such view of the matter, the Sixteenth Amendment will make the

Judges susceptible to a capricious political process of voting in the

Parliament which may pass a resolution for removal of an innocent Judge on

the one hand, or may not do so in the case of a guilty Judge on the other

hand and in any case, a Judge may be left at the mercy of the Parliament

impairing the independence of the Judiciary.

Mr. Manzill Murshid next submits that though the duty of the

Members of Parliament is to frame laws; but in the present context, they are

also performing the functions of all development activities in their local

areas and the whole local administration is under their control and as such

they will not hesitate to act arbitrarily or illegally as a result of which the

powerless people will be compelled to resort to the High Court Division and

in most of the cases (Writ Petitions), the Government is the respondent and

that being so, the Members of Parliament will be interested in those cases

and by virtue of the Sixteenth Amendment, a Member of Parliament can

bring a motion against any Judge in any case and discuss it therein

necessitating his character-assassination and consequently the Judge may not

be able to perform his duties independently to the great detriment of public

interest.

Mr. Manzill Murshid also submits that the Sixteenth Amendment shall

have far-reaching negative impact on the discharge of the functions of the

 33

Members of the Public Service Commission, Comptroller and Auditor-

General, Election Commissioners as well as Commissioners of the Anti-

Corruption Commission inasmuch as they will be removable in the like

manner as a Judge of the Supreme Court of Bangladesh as per Articles 139

(2), 129(2), 118 (5) of the Constitution of Bangladesh and Section 10(3) of

the Anti-Corruption Commission Act, 2004 respectively and if the power of

removal of the Judges of the Supreme Court is retained in the hands of the

Members of Parliament, in particular, the Anti-Corruption Commission will

not be able to act independently against them which will eventually frustrate

the purpose of the Anti-Corruption Commission Act and the Comptroller

and Auditor-General will also be self-restrained from acting independently

while auditing the accounts of the Parliament Secretariat and as such the

Sixteenth Amendment should go.

Per contra, Both Mr. Mahbubey Alam, learned Attorney General

appearing on behalf of the respondent no. 1 and Mr. Murad Reza, learned

Additional Attorney-General appearing on behalf of the respondent no. 4,

contend that the Sixteenth Amendment is not intended to dominate the

Judiciary by the Executive through the Legislature and as the provisions

relating to the Supreme Judicial Council were introduced in Article 96 of the

Constitution by the Second Proclamation (Tenth Amendment) Order, 1977

(Second Proclamation Order No. 1 of 1977) by General Ziaur Rahman

during the period of Martial Law mutilating the Constitution, the Sixteenth

Amendment was enacted by the Parliament restoring Article 96 of the

original Constitution of 1972 and that being so, it can not be said at all that

the Sixteenth Amendment is violative of the independence of the Judiciary,

 34

one of the basic features of the Constitution as held by the Appellate

Division in the Eighth Amendment Case.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that

admittedly the petitioners are not aggrieved persons, though they are the

Advocates of the Supreme Court of Bangladesh and as they are not

aggrieved persons within the meaning of Article 102 of the Constitution,

they can not come up with the instant Writ Petition in the nature of Public

Interest Litigation and as such the Writ Petition is not maintainable. In

support of this submission, they have referred to National Board of

RevenueVsAbu Saeed Khan and others, 18 BLC (AD) 116.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that the

Sixteenth Amendment has not been made effective and operative as yet in

the absence of a law to be framed pursuant to the amended Article 96(3) of

the Constitution and as the Sixteenth Amendment without any corresponding

law is ineffective and dysfunctional, the Writ Petition is premature and this

is why, the Rule is liable to be discharged on this ground alone.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that

the Fifth Amendment of the Constitution was declared void and ultra vires

by the final judgment of the Appellate Division in the case of Khondker

Delwar Hossain Secretary, BNP and anotherVsBangladesh Italian

Marble Works and others (Fifth Amendment Case) reported in 62 DLR (AD)

298 and eventually the Parliament thought it appropriate in its wisdom to

restore the original provisions of Article 96 of the Constitution by way of

amendment under Article 142 of the Constitution and it is well-settled that

the wisdom of the Parliament can not be questioned in any manner by any
 35

Court and from this standpoint, the Sixteenth Amendment is immune from

challenge.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that as

per Article 7(1) of the Constitution, all powers in the Republic belong to the

people, and their exercise on behalf of the people shall be effected only

under, and by the authority of, the Constitution and as the people are the

source of all powers of the Republic, Judges are consequentially accountable

to the people through their representatives in the House of the Nation and the

Sixteenth Amendment has been made in order to ensure the accountability of

the Judges of the Supreme Court to the people and by that reason, the

Sixteenth Amendment is a valid piece of legislation.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that it is

true that in the Fifth Amendment Case, the Appellate Division affirmed the

judgment of the High Court Division subject to some modifications and the

Appellate Division condoned the Second Proclamation (Tenth Amendment)

Order, 1977 (Second Proclamation Order No. 1 of 1977), so far as it relates

to insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e.

provisions relating to the Supreme Judicial Council and also Clause (1) of

Article 102 of the Constitution; but in Civil Review Petition Nos. 17-18 of

2011, the Appellate Division modifying its earlier stance condoned the

Second Proclamation (Tenth Amendment) Order, 1977 (Second

Proclamation Order No. 1 of 1977) in respect of insertion of Clauses (2), (3),

(4), (5), (6) and (7) of Article 96 and also Clause (1) of Article 102 of the

Constitution provisionally till 31st December, 2012 in order to enable the

Parliament to make necessary amendment to the Constitution and to enact

 36

the laws anew promulgated during the period of Martial Law of General

Ziaur Rahman and because of this provisional condonation, the Parliament

passed the Sixteenth Amendment in 2014, that is to say, long after expiry of

31st December, 2012; but in any event, the Sixteenth Amendment is intra

vires the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that

there is a presumption of constitutionality in favour of the Sixteenth

Amendment and the onus is upon the petitioners to rebut that presumption of

constitutionality. In support of this contention, they have drawn our attention

to the decision in the case of Sheikh Abdus SaburVsReturning Officer,

District Education Officer in-Charge, Gopalganj and others, 41 DLR

(AD)30.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the

Constitution is the supreme law of the land and as per the Constitution, there

are 3(three) organs of the State, namely, the Executive, the Legislature and

the Judiciary and all the 3(three) organs of the State are to function within

the parameters set by the Constitution, though the Supreme Court is the

guardian of the Constitution and the original Article 96 of the Constitution

was made by the Constituent Assembly in exercise of its constituent power

and the Sixteenth Amendment has simply restored the original Article 96 of

the Constitution by way of amendment and this being the panorama, the

Sixteenth Amendment can not be found fault with.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that

supremacy of the Constitution, judicial review, separation of powers,

independence of the Judiciary etc. are some of the basic features of the
 37

Constitution and the Sixteenth Amendment is not violative of either the

principle of separation of powers or the principle of independence of the

Judiciary and the Parliamentary procedure of removal of the Judicature is

also sanctioned by the Constitutions of the United Kingdom, United States,

India, Canada, Australia, Sri Lanka etc. and in particular this Parliamentary

procedure of removal of the Judges of the Supreme Court of Bangladesh was

there in the original Constitution of 1972 too till the Second Proclamation

(Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of

1977) came into force and ultimately the Parliament enacted the Sixteenth

Amendment restoring the original Article 96 of the Constitution verbatim

and in such a posture of things, it can not be said at all that the Sixteenth

Amendment is repugnant to Article 7B of the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the

provisions relating to the Supreme Judicial Council were inserted in Article

96 of the Constitution by General Ziaur Rahman through the Fifth

Amendment importing the same from the Constitution of Pakistan of 1973

and the Supreme Judicial Council being a legacy of the Martial Law regime

does not fit in with the democratic set-up of the Peoples Republic of

Bangladesh and by enacting the Sixteenth Amendment, our Parliament said

good bye to this Martial Law legacy for ever.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that by

passing the Sixteenth Amendment, Parliament has restored the provisions of

the original Article 96 of the Constitution and by that reason, the

constitutionality of the Sixteenth Amendment is beyond the scope of the

judicial review under Article 102 of the Constitution.

 38

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that

Article 70 of the Constitution is designed to maintain discipline and prevent

horse-trading among the Members of Parliament belonging to different

political parties and this Article 70 has nothing to do with the independence

of the Judiciary as guaranteed by the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the

privileges and other terms and conditions of service of the incumbent

Supreme Court Judges have not been varied to their disadvantage as

postulated by Article 147(2) by the Sixteenth Amendment; rather those have

been fortified by the restoration of the original Article 96 of the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that the

Sixteenth Amendment has not affected the independence of the Judiciary in

any way as guaranteed by Articles 94(4) and 147(2) and by way of

elaboration of this contention, they assert that in the UK, USA, India, Sri

Lanka, Canada and Australia, Judges are removed from office through the

intervention of the Legislature and in those countries, Judges are fully

independent in discharge of their judicial functions. They further assert that

the two relevant basic structures of the Constitution in this case, namely,

separation of powers and independence of the Judiciary are to be considered

with reference to the provisions of the original Constitution of 1972 and not

otherwise and if the Court appreciates this stand of the contesting

respondents, then it can not be conceived that the Sixteenth Amendment is

violative of Article 7B of the Constitution.

Dr. Kamal Hossain, learned Amicus Curiae, argues that the

independence of the Judiciary is the foundation stone of the Constitution as

 39

contemplated by Article 22 and it is one of the fundamental principles of

State policy and the significance of the independent Judiciary, free from the

interference of the other 2(two) organs of the State, has been emphasized in

Articles 94(4), 116A and 147 of the Constitution and in the Eighth

Amendment Case, it has been held that Democracy, Republican

Government, Unitary State, Separation of Powers, Independence of the

Judiciary, Rule of Law, Fundamental Rights etc. are basic structures of the

Constitution.

Dr. Kamal Hossain next argues that the independence of the Judiciary

was further strengthened in the historic decision of the Appellate Division in

Masdar Hossains Case, where the Appellate Division re-affirmed the

constitutional mandate of independence of the Judiciary and laid out a

roadmap to achieve separation of the lower Judiciary from the Executive

organ of the State.

Dr. Kamal Hossain also argues that the consensus appears to be that

the constitutional principle of independence of the Judiciary is intended to

exclude any kind of partisan exercise of power by the Legislature in relation

to the Judiciary, in particular, the power of the Legislature to remove the

Judges of the Supreme Court of Bangladesh.

Dr. Kamal Hossain next argues that in the original 1972 Constitution,

removal of Judges of the Supreme Court was entrusted to the Parliament on

the premise that the Parliament being constituted by the elected

representatives of the people, when in exercising its power, would do so

conscientiously and independently, free from any party directive and this is

how it was perceived when a similar provision was adopted in the Indian
 40

Constitution and both in the Indian Constitution and in the original 1972

Constitution of Bangladesh, the power of removal of any Judge would only

be exercised after an inquiry conducted by an independent Judicial Inquiry

Committee; but H. M. Seervai has expressed his concern in his book The

Position of the Judiciary under the Constitution of India (published by

Bombay University Press) at page 109 that political and party considerations

have come into play in impeachment proceedings.

Dr. Kamal Hossain also argues that independence of the Judiciary is a

sine qua non of modern democracy and so long as the Judiciary remains

truly distinct from the Legislature and the Executive, the general power of

the people will never be endangered. In this connection, Dr. Kamal Hossain

adverts to The StateVsChief Editor, Manabjamin and others, 57 DLR

(HCD) 359.

Dr. Kamal Hossain next argues by referring to Idrisur Rahman (Md)

and othersVsSecretary, Ministry of Law, Justice and Parliamentary

Affairs, Government of the Peoples Republic of Bangladesh, 61 DLR

(HCD) 523 that independence of the Judiciary is an indispensable condition

of democracy and if the Judiciary fails, the Constitution fails and the people

might opt for some other alternative.

Dr. Kamal Hossain also argues that although the independence of the

Judiciary is an essential element of the rule of law, yet by enacting the

Sixteenth Amendment, the Parliament is prone to exercise control over the

Judiciary by way of preserving a right to take decisions on the question of

removal of the Judges of the Supreme Court.

 41

Dr. Kamal Hossain next argues that the security of tenure of the

Judges is one of the essential conditions for ensuring effective independence

of the Judiciary and this has been emphatically spelt out in Walter

ValenteVsHer Majesty The Queen and another, [1985] 2 R. C. S. 673

and S. P. Gupta and othersVsPresident of India and others, 1982 AIR

(SC) 149.

Dr. Kamal Hossain further argues that the Judges can not perform

their solemn duties unless their independence is guaranteed and protected

by securing their tenure as underlined in the United Nations Instrument on

Basic Principles on the Independence of the Judiciary and in a number of

authoritative International Instruments, such as the Beijing Statement of

Principles of the Independence of the Judiciary, the Universal Charter of

the Judge, and the Commonwealth Latimer House Principles on the Three

Branches of Government and the formal requirements of independence of

the Judges include, amongst others, their security of tenure and suitable

conditions of service.

Dr. Kamal Hossain also argues that Article 96 of the original 1972

Constitution relating to the removal of Judges was materially affected by the

Fourth Amendment of the Constitution in 1975 which deleted Clause (3) of

Article 96 and thereafter by the Fifth Amendment of the Constitution, the

provisions for removal of Judges by the Supreme Judicial Council were

introduced and ultimately the Fifth Amendment was held to be

unconstitutional by the Appellate Division in the Fifth Amendment Case,

albeit the Appellate Division condoned the provisions relating to the

Supreme Judicial Council in Article 96 of the Constitution; but the

 42

impugned Sixteenth Amendment purports to violate the judgment of the

Appellate Division passed in that case.

Dr. Kamal Hossain next argues that the Parliament, in disregard of the

decision of the Appellate Division rendered in the Fifth Amendment Case,

has abolished the Supreme Judicial Council, which clearly compromises and

weakens the independence of the Judiciary through the Sixteenth

Amendment and this Sixteenth Amendment is violative of Articles 94(4) and

22 of the Constitution by way of subjecting the tenure of the Judges of the

Supreme Court to the whims and caprices of the Members of Parliament.

Dr. Kamal Hossain also argues that the consequence of the Sixteenth

Amendment is that it has rendered the tenure of the Judges of the Apex

Court insecure and as such the Sixteenth Amendment has created an

opportunity to undermine the independence of the Judiciary by making the

same vulnerable to outside influences and pressures jeopardizing the rule of

law in the country.

Dr. Kamal Hossain further argues that as the Sixteenth Amendment is

violative of independence of the Judiciary and separation of powers, the

same is in conflict with Article 7B of the Constitution and by that reason, it

is liable to be struck down.

Dr. Kamal Hossain also argues that the Sixteenth Amendment has

clearly varied the removal mechanism of the Supreme Court Judges for their

proved misbehaviour or incapacity to their disadvantage during their term of

office and in this perspective, the Sixteenth Amendment is violative of

Article 147(2) of the Constitution.

 43

Dr. Kamal Hossain next argues that in a bid to ensure the

independence of the Judiciary by securing the remuneration of the Judges of

the Supreme Court, the Constitution provides in Articles 88(b) and 89(1)

that their remuneration is payable from the Consolidated Fund and the

expenditure charged upon the Consolidated Fund can only be discussed in

Parliament, but it can not be voted on and regard being had to the provisions

of Articles 88(b) and 89(1) of the Constitution, it appears that the

Constitution upholds the independence of the Judiciary in a way that even

Parliament can not vote on their remuneration and Articles 88(b) and 89(1)

do together form part of the basic structure of the Constitution as they

protect the independence of the Judiciary and therefore the Sixteenth

Amendment, read in the light of Articles 88(b) and 89(1), should not be

allowed to stand as a valid piece of legislation.

Dr. Kamal Hossain also argues that Article 23 of the Beijing

Statement of Principles of the Independence of the Judiciary provides that

by reason of difference in history and culture, the procedure adopted for the

removal of Judges may differ in different societies and removal by

Parliamentary procedures has traditionally been adopted in some

jurisdictions; but in other jurisdictions, that procedure is unsuitable and its

use other than for the most serious of reasons is apt to lead to misuse and

having regard to the socio-political conditions of Bangladesh, the provisions

relating to the Supreme Judicial Council for removal of the Judges of the

Supreme Court are best suited.

Dr. Kamal Hossain further argues that the American scenario of

impeachment of the Judges has been criticized as an unsatisfactory process

 44

in which political and party influence has come into play and thus, the risk

of impeachment being highly politicized will be even more conspicuous in

the current political context of Bangladesh, especially due to the presence of

Article 70 in the Constitution of Bangladesh and viewed from this angle, the

independence of the Judiciary will be endangered.

Mr. M. Amir-ul Islam, learned Amicus Curiae, submits that he was

one of the Members of the Constitution Drafting Committee after Liberation

War of Bangladesh and Dr. Kamal Hossain was the Chairman of that

Committee and in the post-liberation period in 1972, there was no other

option for the Members of the Committee but to assign the job of removal of

the Supreme Court Judges to the Parliament and that being so, the

Parliament was entrusted therewith by the original Constitution of 1972.

Mr. M. Amir-ul Islam further submits that we learn through

experience and experience is the best teacher of a person and restoration of

the original Article 96 of the Constitution by the Sixteenth Amendment is

not backed by experience and in this regard, the Sri Lankan, Indian and

Malaysian experiences are not happy. On this point, Mr. M. Amir-ul Islam

has relied upon a report of the International Bar Associations Human Rights

Institute, namely, A Crisis of Legitimacy: The Impeachment of Chief

Justice Bandaranayake and the Erosion of the Rule of Law in Sri Lanka,

and a report of a Mission on behalf of the International Bar Association, the

ICJ Center for the Independence of Judges and Lawyers, the Commonwealth

Lawyers Association and the Union Internationale Des Avocats, namely,

Justice In Jeopardy: Malaysia 2000 and the decision in the case of Lily
 45

Thomas (Ms), AdvocateVsSpeaker, Lok Sabha and others reported in

(1993) 4 SCC 234.

Mr. M. Amir-ul Islam next submits that separation of powers and

independence of the Judiciary go hand in hand and the doctrine of separation

of powers must be adhered to in making the Judiciary completely

independent of the influence of the Executive or the Legislature and the

Sixteenth Amendment, it goes without saying, is a blow to the independence

of the Judiciary.

Mr. M. Amir-ul Islam further submits that the removal procedure of

the Judges of the Supreme Court is a part of their appointment process, but

unfortunately in Bangladesh, the appointment process of the Judges of the

Supreme Court is not transparent, open and public and even after 45 years of

our independence, Article 95(2)(c) of the Constitution relating to the other

qualifications for appointment of a Judge of the Supreme Court has not seen

the light of the day to the great detriment of public interest.

Mr. M. Amir-ul Islam further submits that the force of law is not

logic, but experience and our experience shows that about 70% of the

Members of Parliament in Bangladesh are now-a-days businessmen and

litigants and for the sake of independence of the Judiciary, they should not

be involved in the process of removal of the Judges of the Supreme Court of

Bangladesh on the ground of proved misbehaviour or incapacity.

Mr. M. Amir-ul Islam next submits that the Parliamentary removal

procedure of the Judges of the Apex Court is in vogue in some countries of

the world like the UK, USA, Canada, Australia, India etc., but that has
 46

become obsolete and outdated with the growing constitutional jurisprudence

of the independence of the Judiciary.

Mr. M. Amir-ul Islam also submits that the historical perspective

coupled with our experience and judicial observations in various cases,

namely, Masdar Hossains Case, Eighth Amendment Case, Fifth

Amendment Case etc. militate against the Sixteenth Amendment and

homecoming of Article 96 (restoration of Article 96) is not a plausible

argument in the present scenario of Bangladesh.

Mr. M. Amir-ul Islam further submits that the principle of

independence of the Judiciary demands that a Judge should be tried by his

peers for his misbehaviour/misconduct or incapacity and that will best

guarantee his independence in the discharge of his judicial functions.

Mr. M. Amir-ul Islam further submits by referring to a book captioned

The Appointment, Tenure and Removal of Judges under Commonwealth

Principles: A Compendium and Analysis of Best Practice published by the

British Institute of International and Comparative Law, Charles Clore

House, 17 Russell Square, London WC 1B 5JP that the Commonwealth

Latimer House Principles (2003) on the Accountability of and the

Relationship between the Three Branches of Government as agreed by Law

Ministers and endorsed by the Commonwealth Heads of Government

Meeting, Abuja, Nigeria, 2003 require that Judges are accountable to the

Constitution and to the law which they must apply honestly, independently

and with integrity and the principles of judicial accountability and

independence underpin public confidence in the judicial system and the

importance of the Judiciary as one of the three pillars upon which a

 47

responsible Government relies [Principle VII (b)] and the removal

mechanism of the Judges of the Supreme Court of Bangladesh as

contemplated by the Sixteenth Amendment has virtually impaired the

independence of the Judiciary.

Mr. Rokanuddin Mahmud, learned Amicus Curiae, contends that

personally he does not find fault with the Sixteenth Amendment, but what is

of paramount importance is that the law to be framed pursuant to the

amended Article 96(3) of the Constitution must be gone into before he

makes any submission on the point and unless that law is framed by the

Parliament, it is difficult to say at this stage as to whether the Sixteenth

Amendment has impaired the independence of the Judiciary or not.

Mr. Rokanuddin Mahmud next contends that the Judges of the

Supreme Court should be tried by their peers in case of misbehaviour or

incapacity and that will guarantee the independence of the higher Judiciary

to the fullest extent and in this respect, the Supreme Judicial Council as

introduced in Article 96 by the Fifteenth Amendment of the Constitution is

the best mechanism.

Mr. Ajmalul Hossain, learned Amicus Curiae, submits that as the

Sixteenth Amendment has restored the provisions of Article 96 of the

original Constitution of 1972, it will be an uphill job for him to assail the

constitutionality of the Sixteenth Amendment.

Mr. Ajmalul Hossain next submits that the provisions relating to the

Supreme Judicial Council were introduced by the Second Proclamation

(Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of

 48

1977) and in the Fifth Amendment Case, the Appellate Division condoned

those provisions as being more transparent and safeguarding the

independence of the Judiciary.

Mr. Ajmalul Hossain further submits that in Civil Review Petition

Nos. 17-18 of 2011 by the order dated 29th March, 2011, the Appellate

Division by modifying its earlier decision in the Fifth Amendment Case

provisionally condoned the provisions relating to the Supreme Judicial

Council in Article 96 of the Constitution till 31st December, 2012 and the

Fifteenth Amendment endorsed the provisions relating to the Supreme

Judicial Council in Article 96 and maintained the same; but thereafter all of

a sudden, the Sixteenth Amendment was pushed through raising suspicions

in the minds of the people about the independence of the higher Judiciary.

Mr. Ajmalul Hossain next submits that there is always a scope for

abuse of the power of removal of the Judges of the Supreme Court by the

Members of Parliament on the strength of the Sixteenth Amendment

impairing the independence of the higher Judiciary.

Mr. Ajmalul Hossain also submits that Article 7B of the Constitution

should have been at the back of the mind of the Members of Parliament

before passing of the Sixteenth Amendment and the Sixteenth Amendment

is hit by Article 7B of the Constitution as it has affected the independence of

the Judiciary, one of the basic features of the Constitution.

Mr. Ajmalul Hossain further submits that the security of tenure of the

Judges is the most essential condition of judicial independence and whether

the Sixteenth Amendment has affected the security of tenure of the Judges of

the Supreme Court adversely is the moot question in this case and the Court
 49

will decide this question one way or the other, regard being had to the socio-

political conditions obtaining in Bangladesh. As regards the question of

essentiality of the security of tenure of the Judges, Mr. Ajmalul Hossain

relies on Walter ValenteVsHer Majesty The Queen and another, [1985]

2 R. C. S. 673.

Mr. Ajmalul Hossain further submits that judicial independence

encompasses both an individual and institutional dimension and the

individual dimension relates to the independence of a particular Judge, and

the institutional dimension relates to the independence of the Court which he

mans and each of these dimensions depends on the objective conditions or

guarantees that ensure the Judiciarys freedom from any outside influence or

interference and the requisite guarantees are security of tenure, financial

security and administrative independence. On this point, Mr. Ajmalul

Hossain adverts to the decision in the case of EllVsAlberta, [2003] 1

S.C. R. 857.

Mr. Ajmalul Hossain also submits that judicial independence has been

recognized as the lifeblood of constitutionalism in democratic societies

and the principle of judicial independence requires the Judiciary to be

independent both in fact and perception. In support of this submission, Mr.

Ajmalul Hossain adverts to the self-same decision in the case of

EllVsAlberta, [2003] 1 S. C. R. 857.

Mr. Ajmalul Hossain next submits by referring to Provincial Court

Judges Association of New Brunswick, Honourable Judge Michael Mckee

and Honourable Judge Steven HutchinsonVsHer Majesty The Queen in

Right of the Province of New Brunswick, as represented by the Minster of

 50

Justice and others, [2005] 2 S. C. R. 286 that it is a sound proposition that

judicial independence is for the benefit of the judged and not for the benefit

of the Judges and without considering the interest of the judged, our

Parliament has passed the Sixteenth Amendment which has belittled the

independence of the Judiciary in public perception.

Mr. Ajmalul Hossain further submits that the institutional

independence of the Judiciary reflects a deeper commitment to the doctrine

of separation of powers among the Executive, Legislative and Judicial

organs of the State and although judicial independence had historically

developed as a bulwark against the abuse of the Executive power, it equally

applied against other potential intrusions, including any from the Legislative

organ as a result of legislation. In order to buttress up this submission, Mr.

Ajmalul Hossain relies upon the decision in respect of two References from

the Lieutenant Governor in Council pursuant to Section 18 of the Supreme

Court Act, 1988VsThe Attorney General of Prince Edward Island,

[1997] 3 R. C. S. 73.

Mr. Ajmalul Hossain next submits that in this case, a question must be

answered as to whether the Sixteenth Amendment has advanced public

interest or defeated it and he believes that the Sixteenth Amendment has

defeated it.

Mr. Ajmalul Hossain further submits that it is common knowledge

that in our country, a vast majority of the legislators have criminal records;

but nevertheless they will be involved in the process of removal of the

Judges of the Supreme Court by dint of the Sixteenth Amendment and this

may give rise to conflict of interests posing a threat to the rule of law.
 51

Mr. Ajmalul Hossain lastly submits that the Sixteenth Amendment is

a colourable piece of legislation in the facts and circumstances of the case

and as such the Sixteenth Amendment should go.

We have heard the submissions of the learned Advocate Mr. Manzill

Murshid and the counter-submissions of the learned Attorney General Mr.

Mahbubey Alam and the learned Additional Attorney-General Mr. Murad

Reza. We have also heard the submissions of the learned Amici Curiae Dr.

Kamal Hossain, Mr. M. Amir-ul Islam, Mr. Rokanuddin Mahmud and Mr.

Ajmalul Hossain.

Anyway, it may be mentioned that we also appointed Mr. Mahmudul

Islam, a Senior Advocate of Bangladesh Supreme Court, as one of the Amici

Curiae; but unfortunately he was terminally sick and died during the

pendency of the Rule. So we were deprived of his able assistance in this

case.

In the facts and circumstances of the case and in view of the

contentions of Mr. Manzill Murshid and the counter-contentions of Mr.

Mahbubey Alam and Mr. Murad Reza on the question of maintainability of

the Writ Petition under Article 102 of the Constitution, I take up this issue

first for adjudication.

Our Constitution is undeniably the supreme law of the land. In other

words, the Constitution is the suprema lex of the country. Under Article

102 of the Constitution except for an application for habeas corpus or quo

warranto, a writ petition can be filed by a person aggrieved. Thus in order

to have locus standi to invoke the Writ Jurisdiction of the High Court
 52

Division, an applicant has to show that he is an aggrieved party in an

application for certiorari, mandamus or prohibition.

The leading English case on locus standi is Exparte Sidebotham,

(1880) 14 Ch. D. 458 where the Court held that a person aggrieved is a

man

who has suffered a legal grievance, a man

against whom a decision has been

pronounced which has wrongly deprived

him of something, or wrongfully refused

him something, or wrongfully affected his

title to something.

The same view was taken in subsequent cases. The Pakistani and Indian

Courts were greatly influenced by these English decisions.

In the case of Tariq Transport Company, Lahore....Vs....Sargodha-

Bhera Bus Service, Sargodha and others reported in 11 DLR (SC) 140, the

Supreme Court of Pakistan observed:

...a person seeking judicial review must

show that he has a direct personal interest in

the act which he challenges before his

prayer for review is entertained.

That writ petition was filed under Article 170 of the Constitution of

Pakistan, 1956. The same view was taken in respect of locus standi under

Article 98 of the Constitution of Pakistan, 1962. Therefore, an association,

 53

though registered, did not have locus standi to vindicate the personal or

individual grievance of its members.

But in the case of Mian Fazal Din.....Vs....Lahore Improvement Trust

reported in 21 DLR(SC) 225, the Pakistan Supreme Court took somewhat a

liberal view stating

...the right considered sufficient for

maintaining a proceeding of this nature is

not necessarily a right in the strict juristic

sense; but it is enough if the applicant

discloses that he had a personal interest in

the performance of the legal duty, which if

not performed or performed in a manner not

permitted by law, would result in the loss of

some personal benefit or advantage or the

curtailment of a privilege or liberty or

franchise.

The Indian Supreme Court also followed the English decisions in the matter

of standing both for the enforcement of fundamental rights and for other

constitutional remedies.

The traditional view of locus standi has an adverse effect on the rule

of law. Schwartz and Wade commented in Legal Control of Government

(1972 edition) at page 291:

Restrictive rules about standing are in

general inimical to a healthy system of

administrative law. If a person with a good

 54

case is turned away, merely because he is

not sufficiently affected personally, that

means that some government agency is left

free to violate the law, and that is contrary to

public interest.

With the increase of governmental functions, the English Courts

found the necessity of liberalizing the standing rule to preserve the integrity

of the rule of law. When a public-spirited citizen challenged the policy of the

police department not to prosecute the gaming clubs violating the gaming

law, the Court heard him, though no clear-cut and definitive answer to the

standing question was given (R.V. Metropolitan Police Commissioner ex P.

Blackburn [1968] 1 All E. R. 763). The Court also heard Mr. Blackburn

challenging the action of the Government in joining the European Common

Market (Blackburn v. Attorney-General [1971] 2 All E. R. 1380). Again, Mr.

Blackburn was accorded standing in enforcing the public duty owed by the

police and Greater London Council in respect of exhibition of pornographic

films (R.V. Metropolitan Police Commissioner ex P. Blackburn [1973] All

E.R. 324). In all the cases mentioned above, the duty owed by the public

authorities was to the general public and not to an individual or to a

determinate class of persons and the applicants were found to have locus

standi as they had sufficient interest in the performance of the public duty.

In India, the concept of public interest litigation (public-spirited

citizens bringing matters of great public importance) was initiated by Mr.

V.R. Krishna Iyer, J in the case of Mumbai Kamgar Sabha, Bombay....Vs....

M/s. Abdulbhai and others reported in AIR 1976 SC 1455. However, a

 55

definite jurisprudential basis was laid down in the case of S. P. Gupta and

others Vs. President of India and others (AIR 1982 SC 149) where several

Advocates of different Bar Associations of India challenged the action of the

Government in transferring some Judges of the High Courts. In that case, in

according standing to the petitioners, Justice Bhagwati observed:

Where a legal wrong or a legal injury is

caused to a person or to a determinate class

of persons by reason of violation of any

constitutional or legal right or any burden is

imposed in contravention of any

constitutional or legal provision or without

authority of law or any such legal wrong or

legal injury or illegal burden is threatened

and such person or determinate class of

persons is, by reason of poverty,

helplessness or disability or socially or

economically disadvantaged position, unable

to approach the Court for relief, any member

of the public can maintain an application...

seeking judicial redress for the legal wrong

or injury caused to such person or

determinate class of persons.

In the case of Bangladesh Sangbadpatra ParishadVsBangladesh

and others (43 DLR (AD) 126), the Association of Newspaper-owners

challenged an award given by the Wage Board and the High Court Division
 56

turned down the writ petition holding that the Association had no locus

standi. The Appellate Division upheld the finding of the High Court

Division. Dealing with the Indian decisions regarding public interest

litigation, the Appellate Division observed:

In our Constitution, the petitioner

seeking enforcement of a fundamental right

or constitutional remedies must be a person

aggrieved. Our Constitution is not at pari

materia with the Indian Constitution on this

point. The Indian Constitution, either in

Article 32 or in Article 226, has not

mentioned who can apply for enforcement

of fundamental rights and constitutional

remedies. The Indian Courts only honour a

tradition in requiring that the petitioner must

be an aggrieved person. The emergence of

pro bono publico litigation in India, that is

litigation at the instance of a public-spirited

citizen espousing causes of others, has been

facilitated by the absence of any

constitutional provision as to who can apply

for a writ. In England, various tests were

applied. Sometimes it was said that a person

must be aggrieved or he must have a

specific legal right or he must have

 57

sufficient interest. Now after the

introduction of the new Rules of the

Supreme Court, Order 53 Rule 3, any person

can apply for judicial review in England

under the Supreme Court Act, 1981 if he has

sufficient interest. Therefore the decisions

of the Indian jurisdiction on public interest

litigations are hardly apt in our situation. We

must confine ourselves to asking whether

the petitioner is an aggrieved person, a

phrase which has received a meaning and a

dimension over the years.

In that case, public interest litigation was not involved. There was no

difficulty on the part of the newspaper-owners to challenge the award

themselves. So the Appellate Division denied standing to the Association of

Newspaper-owners.

In the case of Bangladesh Retired Government Employees Welfare

Association.Vs.Bangladesh (46 DLR (HCD) 426), the High Court

Division accepted the standing of the said Association holding

Since the Association has an interest in

ventilating the common grievance of all its

members who are retired Government

employees, in our view, this Association is a

person aggrieved...
 58

In the case of Kazi Mukhlesur Rahman.....Vs....Bangladesh and

another reported in 26 DLR (AD) 44 (commonly known as Kazi Mukhlesur

Rahmans Case), it was held:

It appears to us that the question of locus

standi does not involve the Courts

jurisdiction to hear a person but of the

competency of the person to claim a hearing,

so that the question is one of discretion

which the Court exercises upon due

consideration of the facts and circumstances

of each case.

Article 102 of our Constitution speaks about person aggrieved. What

is the meaning of this expression? The Constitution has not defined the

expression, nor has it mentioned personally aggrieved person. An

expression occurring in the Constitution can not be interpreted out of context

or only by reference to the decisions of foreign jurisdictions where the

constitutional dispensations are different from ours. In interpreting the

expression person aggrieved, it can not be overlooked that the English

Courts which introduced the restrictive rule of standing vastly shifted from

their traditional view which was ultimately changed by legislation. The

expression has to be given a meaning in the context of the scheme and

objectives of the Constitution and in the light of the purpose behind the grant

of the right to the individuals and the power to the Court. Any interpretation

which undermines the scheme or objectives of the Constitution, or defeats

 59

the purpose for which the jurisdiction is created is to be discarded. It has to

be noted that the framers of the Constitution envisioned a society in which

the rule of law, fundamental human rights and freedom, equality and justice

(political, economic and social) would be secured for all citizens. They

spoke about their vision in the Preamble of the Constitution in no uncertain

terms. To give full effect to the rule of law, substantive provision has been

made in Article 7 which states that all powers in the Republic shall be

exercised only under, and by the authority of, the Constitution. The vision as

to the society has been re-stated in Article 8 and elaborated in other Articles

of Part II. Article 8(2) specifically states that the principles of State policy

set down in Part II will be fundamental to the governance of Bangladesh. To

ensure the fundamental human rights, freedom, equality and justice, the

Constitution has guaranteed a host of rights in Part III as fundamental rights.

And to ensure that the mandate of the Constitution is obeyed, the High Court

Division has been given the wide power of judicial review. In this

background, can the expression person aggrieved be given a meaning in

consonance with the traditional view of locus standi and thereby producing

a result deprecated by Schwartz and Wade as inimical to a healthy system of

administrative law and contrary to public interest? The Appellate Division

has answered the question in the negative in the case of Dr. Mohiuddin

FarooqueVs Bangladesh, 49 DLR (AD) 1 (popularly known as BELAs

Case).

The expression person aggrieved means a person who even without

being personally affected has sufficient interest in the matter in dispute.

 60

When a public functionary has a public duty owed to the public in general,

every citizen has sufficient interest in the performance of that public duty.

In BELAs Case, his Lordship Mr. Justice Mostafa Kamal of the

Appellate Division held:

We now proceed to say how we interpret

Article 102 as a whole. We do not give

much importance to the dictionary meaning

or punctuation of the words any person

aggrieved. Article 102 of our Constitution

is not an isolated island standing above or

beyond the sea-level of the other provisions

of the Constitution. It is a part of the over-all

scheme, objectives and purposes of the

Constitution. And its interpretation is

inextricably linked with the (i) emergence of

Bangladesh and framing of its Constitution,

(ii) the Preamble and Article 7, (iii)

Fundamental Principles of State Policy, (iv)

Fundamental Rights and (v) the other

provisions of the Constitution.

The Constitution, historically and in real terms, is a manifestation of

what is called the Peoples Power. The people of Bangladesh are,

therefore, central, as opposed to ornamental, to the framing of the

Constitution. It was further held in BELAs Case:

 61

The Supreme Court being a vehicle, a

medium or mechanism devised by the

Constitution for the exercise of the judicial

power of the people on behalf of the people,

the people will always remain the focal

point of concern of the Supreme Court while

dispensing justice or propounding any

judicial theory or interpreting any provision

of the Constitution. Viewed in this context,

interpreting the words any person

aggrieved meaning only and exclusively

individuals and excluding the consideration

of people as a collective and consolidated

personality will be a stand taken against the

Constitution. There is no question of

enlarging locus standi or legislation by

Court. The enlargement is writ large on the

face of the Constitution.

Where there is a written Constitution and an independent judiciary

and the wrongs suffered by the people are capable of being raised and

ventilated publicly in a Court of law, there is bound to be greater respect for

the rule of law. 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.

 62

In the decision in the case of Ekushey Television Ltd. and

others.....Vs....Dr. Chowhdury Mahmood Hasan & others reported in 54

DLR (AD) 130 (popularly known as the ETV Case), it was held:

What is meant by sufficient interest is

basically a question of fact and law which

shall have to be decided by the Court. None

of the fundamental rights like rule of law is

subject to mechanical measurement. They

are measured in our human institutions i.e.

the Courts and by human beings i.e. the

Judges, by applying law. Therefore, there

will always be an element of discretion to be

used by the Court in giving standing to the

petitioner. From the above, it appears that

the Courts of this jurisdiction have shifted

their position to a great extent from the

traditional rule of standing which confines

access to the judicial process only to those to

whom legal injuries are caused or legal

wrong is done. The narrow confines within

which the rule of standing was imprisoned

for long years have been broken and a new

dimension is being given to the doctrine of

locus standi.
 63

Article 102 is inextricably linked with the genesis of the Constitution

and can not be construed independently of the scheme and objectives of the

Constitution, particularly those explicated in the preamble and fundamental

principles of State policy.

It is axiomatic that judicial review is the soul of the Judiciary in a

written Constitution. To the extent that fundamental rights are not available

to any provision of a disciplinary law (Article 45), certain laws are

specifically excluded from the purview of judicial review (Articles 47 and

47A) and certain authorities are not amenable to judicial review (Article

102(5) ), the power of judicial review is constitutionally restricted. These

constitutional restrictions aside, the horizon of judicial review is being

expanded through judicial activism with the passage of time facilitating the

citizens access to justice. A great duty is cast upon the Lawyers and Judges

of the Apex Court of Bangladesh for onward march of our constitutional

journey to its desired destination.

Coming back to the instant case, the petitioners are admittedly

practising Advocates of the Supreme Court of Bangladesh. Needless to say,

they are conscious and public-spirited persons. As Advocates of the

Supreme Court of Bangladesh, they have, no doubt, a stake in the

establishment of the rule of law in the country. By the way, it may be

recalled that the rule of law is one of the basic structures of the Constitution

as found by the Appellate Division in the Eighth Amendment Case (Anwar

Hossain Chowdhury and othersVsBangladesh and others, 1989 BLD

(SpI) 1). It is the mandate of the Constitution that there must be rule of law
 64

in the country. Although the petitioners are not directly or personally

affected by the Sixteenth Amendment, yet as Advocates, they have

sufficient interest in the establishment of the rule of law in Bangladesh. In

this view of the matter, I find the petitioners competent enough to claim a

hearing from this Court as found by the Appellate Division in Moklesur

Rahmans Case (supra). Besides, in the ETV Case referred to above, there is

always an element of discretion in the matter of granting standing to the

petitioners. From the facts and circumstances of the present case, it

transpires that the petitioners as Advocates of the Supreme Court of

Bangladesh are very much concerned with the independence of the

Judiciary, separation of powers and establishment of rule of law. In a word,

like Judges, they are also stakeholders in the administration of justice

without let or hindrance from any quarter. It is a truism that they are not

busybodies or interlopers. Given this situation, I can not deny their standing

in filing the Writ Petition before the High Court Division under Article 102

of the Constitution.

With regard to the alleged lack of locus standi of the petitioners to

file the Writ Petition, both the learned Attorney General Mr. Mahbubey

Alam and the learned Additional Attorney-General Mr. Murad Reza have

relied upon the decision in the case of National Board of RevenueVsAbu

Saeed Khan and others reported in 18 BLC (AD) 116. According to me, the

facts and circumstances of that case are quite distinguishable from those of

the present case. So that decision is of no avail to them.

 65

It has already been observed that the petitioners being Advocates of

the Supreme Court of Bangladesh are interested in the establishment of the

rule of law. They are also interested in seeing that the Supreme Court of

Bangladesh does function independently and impartially in public interest. It

is an indisputable fact that independent and impartial functioning of the

Judiciary without any hitch is essential to the establishment of the rule of

law in the country. Regard being had to the facts and circumstances of the

case, it seems that the petitioners have come up with the instant Writ Petition

in vindication of the interest of the public. The guidelines that have been

enumerated in paragraph 38 of the decision reported in 18 BLC (AD) 116, as

I see them, do not obviously stand as a bar to the filing of the present Writ

Petition in the High Court Division under Article 102 of the Constitution.

The concern expressed by the petitioners in the Writ Petition about the

independence of the higher Judiciary and separation of powers among the

3(three) organs of the State is, no doubt, a public concern vis--vis the

Sixteenth Amendment of the Constitution. In any view of the matter, I can

not shut my eyes to this public concern as ventilated by the petitioners in the

Writ Petition. So in any event, this Court must uphold public interest.

In the ETV Case (supra), it was held in paragraph 74:

74. It must be remembered here that it is not

possible to lay down in clear and precise terms

what is required to give petitioner locus standi

when public injury or public wrong is

involved. Locus standi is not a case of

 66

jurisdiction of the Court, but a case of

discretion of the Court, which discretion has to

be exercised on consideration of facts and law

points involved in each case, as already

pointed out in the case of Kazi Mukhlesur

Rahman. As a matter of prudence and not a

rule of law, the Court may confine its exercise

of discretion, taking into consideration the

facts, the nature of the public wrong or public

injury, the extent of its seriousness and the

relief claimed. Therefore, the concern shown

by the Bar, that giving locus standi to the

petitioner will open the floodgates, and the

Court will soon be overburdened with cases,

does not hold good. The discretion to open the

gates will always be with the Court, which

discretion will only be exercised within the

bounds mentioned above.

In this connection, it will not be out of place to mention that the

Thirteenth Amendment Case (M SaleemullahVsBangladesh, 2005 BLD

(HCD) 195) challenging the introduction of the Non-Party Caretaker

Government during the period of Parliamentary election was filed as a

Public Interest Litigation and both the Divisions of the Supreme Court did

not find fault with the maintainability of the case.

 67

In view of what have been stated above and in the facts and

circumstances of the case, I opine that the petitioners have locus standi to

file the Writ Petition and accordingly the Writ Petition is maintainable under

Article 102 of the Constitution. So the contention of both Mr. Mahbubey

Alam and Mr. Murad Reza on the question of non-maintainability of the

Writ Petition in the High Court Division under Article 102 of the

Constitution stands negatived.

As to the submission on behalf of the contesting respondent nos. 1

and 4 that the Writ Petition is premature in the absence of any law yet to be

framed pursuant to the amended Article 96(3) of the Constitution, I feel

constrained to say that the vires of the Sixteenth Amendment can be gone

into on its own merit under Article 102 of the Constitution, though the

contemplated law is yet to be framed. What I am trying to emphasize is that

the non-enactment of any law pursuant to the amended Article 96(3) of the

Constitution will not ipso facto preclude the High Court Division from

examining the constitutionality of the Sixteenth Amendment. So the

submission of both Mr. Mahbubey Alam and Mr. Murad Reza in this respect

stands discarded. In the result, I hold that the petitioners have cause of

action for filing the Writ Petition and the same is not premature.

The system of parliamentary removal has a long history. It emerged in

England as a check on the executive discretion to dismiss Judges, which

various monarchs had asserted until the passage of the Act of Settlement in

1701. The Act established that this power could no longer be exercised
 68

without joint resolution of both Houses, known formally as an address,

calling upon the monarch to remove the judge in question.

Though the Westminster Parliament only once passed an address for

the removal of a Judge in 1830, the issue has been debated at intervals and

there is a well-established recognition of the value of an independent

Judiciary. Discussing the Westminster removal system and its adoption in

other parts of the Commonwealth, Sir Kenneth Roberts-Wray described the

parliamentary removal system as an accident of history which could lead to

serious constitutional conflicts if it was put into action, despite the

procedures which were widely regarded by parliamentarians as appropriate

[Roberts-Wray (n19) 491].

Besides, the UN Special Rapporteur has noted that parliamentary

control over the disciplining of Judges is a matter of concern, and has argued

that an independent body is required in such circumstances in order to

ensure that the Judges receive a fair trial [Report of the Special Rapporteur

on the Independence of Judges and Lawyers, Leandro Despouy, UN Doc

A/HRC/11/41(2009)].

Another fundamental concern from the point of view of judicial

independence is that the parliamentary removal mechanism may be abused

by the Executive Government if it enjoys the support of a sufficient number

of legislators. The concern expressed by the Chief Justices of Asia-Pacific

Jurisdictions in the Beijing Statement on the Independence of the Judiciary

in the LAWASIA Region is particularly relevant as the majority of the 18

Commonwealth states with a parliamentary removal mechanism are located

in this region.
 69

Removal by parliamentary procedure has traditionally been adopted in

some societies. In other societies, that procedure is unsuitable; it is not

appropriate for dealing with some grounds for removal; it is rarely, if ever,

used; and its use other than for the most serious of reasons is apt to lead to

misuse [Article 23 of the Beijing Statement of Principles of the

Independence of the Judiciary].

When the Commonwealth Heads of Governments at their meeting in

Abuja, Nigeria in 2003 adopted the Commonwealth Latimer House

Principles on the Accountability of and the Relationship between the Three

Branches of Government, they demonstrated continuing Commonwealth

commitment to advancing respect for the separation of powers including

judicial independence, and a collective determination to raise levels of

practical observance. Bangladesh is indisputably a Commonwealth country.

The Commonwealth Charter states:

We believe in the rule of law as an

essential protection for the people of the

Commonwealth and as an assurance of

limited and accountable government. In

particular, we support an independent,

impartial, honest and competent judiciary

and recognize that an independent, effective

and competent legal system is integral to

upholding the rule of law, engendering

public confidence and dispensing justice.

 70

The Commonwealth Latimer House Principles declare that

appropriate security of tenure and protection of levels of remuneration must

be in place in relation to the Judiciary. Such guarantees serve to shield the

Judges from external pressures and conflicts of interest when they hold

powerful individuals or Government bodies legally to account, and thereby

contribute to sustaining an independent Judiciary, which is an essential

element of the rule of law.

Principle IV of the Commonwealth Latimer House Principles of 2003

states:

An independent, impartial, honest and

competent judiciary is integral to upholding

the rule of law, engendering public

confidence and dispensing justice. The

function of the Judiciary is to interpret and

apply national constitutions and legislation,

consistent with international human rights

conventions and international law, to the

extent permitted by the domestic law of each

Commonwealth country.

The question of when a Judge may be removed from office is of vital

importance to the rule of law. In general, states need a removal mechanism,

though a rigorous judicial selection process and high standards of ethical

conduct may help to minimise the need for its use. Besides the risk that a

Judge may become mentally or physically incapacitated while in office,

there is always the danger of the rare Judge who engages in serious
 71

misconduct and refuses to resign when it becomes clear that his or her

position is untenable. On the other hand, there is the threat to judicial

independence when the removal process is used to penalise or intimidate

Judges. The challenge for legal systems is to strike the correct balance

between these concerns.

Both sides of the problem are reflected in the Commonwealth Latimer

House Principles. Principle IV- Independence of the Judiciary indicates that

there are only very limited circumstances in which a Judge may be removed

from office:

Judges should be subject to suspension or

removal only for reasons of incapacity or

misbehaviour that clearly renders them unfit

to discharge their duties.

The reasons that may justify removal of a Judge are set out more fully

in Principle VII (b)Judicial Accountability:

Judges are accountable to the Constitution

and to the law which they must apply

honestly, independently and with integrity.

The principles of judicial accountability and

independence underpin public confidence in

the judicial system and the importance of the

Judiciary as one of the three pillars upon

which a responsible Government relies.

In addition to providing proper procedures

for the removal of Judges on grounds of

 72

incapacity or misbehaviour that are required

to support the principle of Independence of

the Judiciary, any disciplinary procedures

should be fairly and objectively

administered. Disciplinary proceedings

which might lead to the removal of a judicial

officer should include appropriate

safeguards to ensure fairness.

Removal from office is, by no means, the only way in which Judges

are held accountable, and should not be the first demand of those dissatisfied

with a judicial decision. The basis of judicial accountability more generally

is implicit in the opening sentence of Principle VII (b), which refers to

Judges being accountable to the Constitution and to the law. The principal

way in which Judges are expected to account for the performance of their

legal and constitutional duties is by giving reasoned judgments and rulings

in open court. Appeal mechanisms serve as a further check in many cases. A

Judge acting in good faith should incur no personal sanction if his or her

decision is overturned on appeal. Indeed, the rule of law will suffer if Judges

are deterred from applying the law as they see it, and such a situation will be

particularly detrimental to the independence of the Judiciary, of which the

decision-making autonomy of individual Judges is a vital part.

The Commonwealth Latimer House Principles declare, briefly and

succinctly, that the mechanism for determining whether a Judge is to be

removed from office should include appropriate safeguards to ensure

 73

fairness. This raises two important questions which need to be addressed in

practice:

(a) Which body, or combination of bodies, should be

responsible for the removal process; and
(b) What safeguards such bodies should adopt to ensure
fairness.

The Latimer House Guidelines provide an important starting-point in

both respects:

In cases where a judge is at risk of removal,

the judge must have the right to be fully
informed of the charges, to be represented at
a hearing, to makes a full defence and to be
judged by an independent and impartial
tribunal. [Guideline VI. 1(a)(i)]
The removal mechanisms that have been established in

Commonwealth jurisdictions have different models. The following Diagram

provides an overview of how the 48(forty-eight) independent

Commonwealth jurisdictions have approached this issue:

 74

(a) There are no Commonwealth jurisdictions in which the Executive

has the power to dismiss a Judge. (It is still common for the

Executive to be responsible for formally revoking a Judges

appointment after another body has determined that the Judge

should be removed).

(b) The Westminster model of parliamentary removal is the standard

mechanism of removal in only 16 jurisdictions (33% of the total),

namely, (Australia (federal), Bangladesh, Canada, India, Kiribati,

Malawi, Malta, Maldives, Nauru, New Zealand, Samoa, Sierra

Leone, South Africa, Sri Lanka, Tuvalu and the United Kingdom,

In Nigeria and Rwanda, Judges who hold certain positions are

subject to parliamentary removal, but others are subject to removal

by a disciplinary council).

(c) In 30 jurisdictions (62.5%), a disciplinary body that is separate

from both the Executive and the Legislature decides whether

Judges should be removed from office. The most popular model

found in 20 jurisdictions (41.7%) is the ad hoc tribunal, which is

formed only when the need arises to consider whether a Judge

should be removed. Those Commonwealth jurisdictions are

Bahamas, Barbados, Botswana, Fiji, Jamaica, Ghana, Guyana,

Kenya, Lesotho, Malaysia, Mauritius, Papua New Guinea, the

Organisation of Eastern Caribbean States, Seychelles, Singapore,

Solomon Islands, Tanzania, Trinidad and Tobago, Uganda and

Zambia. The Australian States of Victoria and Queensland, and the

Australian Capital Territory, also provide the ad hoc tribunals to be

 75

formed to consider the removal of a state judge. In 10 other

jurisdictions (20.8%), the decision is entrusted to a permanent

disciplinary council, namely, Belize, Brunei Darussalam,

Cameroon, Cyprus, Mozambique, Namibia, Nigeria, Rwanda,

Pakistan, Swaziland, Tonga and Vanuatu.

(d) In two further jurisdictions, Judges holding certain senior positions

are subject to parliamentary removal, while a permanent

disciplinary council is responsible for removal decisions in respect

of the rest of the higher Judiciary. Nigeria and Rwanda are two

examples in this regard.

It is encouraging that there is no Commonwealth jurisdiction in which

the legal framework permits the Executive to dismiss Judges, albeit this does

not mean that opportunities for abuse do not exist. However, it is interesting

to note that the Westminster system of parliamentary removal has not proved

to be the most popular among Commonwealth jurisdictions.

It is ex-facie clear from the above Diagram that the Parliamentary

removal procedure is in force in 33% Commonwealth jurisdictions whereas

ad hoc tribunals are formed in 42% Commonwealth jurisdictions, as and

when necessary, and permanent disciplinary councils are in vogue in 21%

Commonwealth jurisdictions. The mixed procedure (permanent disciplinary

council-cum-parliamentary removal system) is operative in 4%

Commonwealth jurisdictions. The ad hoc tribunals and permanent

disciplinary councils are akin to the Chief Justice-led Supreme Judicial

Council of Bangladesh to a great extent which has already been abolished by

 76

the Sixteenth Amendment. Anyway, these calculations show that in

42%+21%= 63% Commonwealth jurisdictions, either ad hoc tribunals, or

permanent disciplinary councils hold the field. [Reference: The

Appointment, Tenure and Removal of Judges under Commonwealth

Principles: A Compendium and Analysis of Best Practice (supra)]. So it is

crystal clear that the parliamentary removal mechanism has not been

preferred by the majority Commonwealth jurisdictions obviously for

upholding the separation of powers among the 3(three) organs of the State

and for complete independence of the Judiciary from the other two organs of

the State. What I am driving at boils down to this: from the above analysis, it

is easily comprehensible that in 63% Commonwealth jurisdictions, Judges

are removed from office for their misconduct/misbehaviour or incapacity

without the intervention of the Legislature. Hence it is easily deducible that

the majority Commonwealth jurisdictions are on high alert about separation

of powers and independence of the Judiciary in their respective jurisdictions.

Each Commonwealth countrys Parliament, Executive and Judiciary

are the guarantors in their respective spheres of the rule of law, the

promotion and protection of fundamental human rights and the entrenchment

of good governance based on the highest standards of honesty, probity and

accountability. The relationship between the Parliament and the Judiciary

should be governed by respect for the Parliaments primary responsibility

for law-making on the one hand and for the Judiciarys responsibility for the

interpretation and application of the law on the other hand. Both the

Parliament and the Judiciary should fulfill their respective but critical roles
 77

in the promotion of the rule of law in a complementary and constructive

manner.

It is undisputed that the Constitution is the supreme law of the land.

According to the Constitution, there are 3(three) organs of the State, namely,

the Executive, the Legislature and the Judiciary. In the scheme of our

Constitution, both the Executive and the Legislature are manned by elected

people; but the Judiciary is manned by unelected people. So it leaves no

room for doubt that the task of administration of justice has been entrusted

to the Judges who are unelected people. Article 7(1) of the Constitution

provides that all powers in the Republic belong to the people, and their

exercise on behalf of the people shall be effected only under, and by the

authority of, this Constitution. So the Judges exercise the sovereign judicial

power of the people only under, and by the authority of, the Constitution.

The scheme of our Constitution clearly provides that the people are

sovereign and that the Constitution is supreme. The executive power of the

Republic is vested in the Executive. The legislative power of the Republic is

vested in the Legislature. The judicial power of the Republic is necessarily

vested in the Judiciary. The Constitution has placed the Supreme Court of

Bangladesh as the guardian of the Constitution. Being the guardian of the

Constitution, the Supreme Court is empowered to interpret and expound the

provisions of the Constitution, as and when required, and the interpretations

and expositions of various provisions of the Constitution given by the

Supreme Court are binding upon all concerned. As the guardian of the

Constitution, it is the duty of the Supreme Court to see that the other 2(two)
 78

organs of the State, namely, the Executive and the Legislature do function

within the limits set by the Constitution. In his preface to the book, The

Changing Law, Lord Denning wrotePeople think that the law is certain

and that it can be changed only by Parliament. In theory, the Judges do not

make law. They only expound it. But as no one knows what the law is until

the Judges expound it, it follows that they make it. Judge-made law, it is

well-settled, is also a source of law. Both the statutory and judge-made laws

stand on the same plane. However, if any piece of legislation is found to be

inconsistent with and repugnant to the provisions of the Constitution, then

that piece of legislation will be struck down by the High Court Division as

being void and ultra vires the Constitution.

The Constitution mandates that both the Executive and the Legislature

will function under the authority of the elected people. All sovereign

executive, legislative and judicial powers of the Republic are the powers of

the people as enjoined by Article 7 of the Constitution. As unelected people,

Judges are exercising the peoples sovereign judicial power under the

authority of the Constitution perfectly in keeping with the provisions of

Article 7 of the Constitution. Anyway, Article 55(3) provides that the

Cabinet shall be collectively responsible to the Parliament. To put it

differently, the accountability of the Executive has been vested in the House

of the Nation because the Members of the House of the Nation are the

elected representatives of the people. What I am trying to stress is this: the

Executive is accountable to the Legislature for the sake of transparency of

their actions and deeds. But it is worthy of notice that nowhere it has been
 79

provided in the Constitution that the Judiciary shall be responsible or

accountable to the Parliament. But through the Sixteenth Amendment, the

Supreme Court has become accountable or responsible to the Parliament for

all practical purposes by way of disciplining its Judges by the Parliament. To

my mind, the Apex Court has become suspect in public perception on the

question of its undiluted independence because of the Sixteenth

Amendment.

As per Article 65(1) of the Constitution, there shall be 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 power of

the Republic. So it is seen that although the legislative power of the

Republic is vested in the Parliament, yet it is not unlimited; rather the

lawmaking power of the Parliament has been circumscribed by the

provisions of the Constitution. In other words, our Parliament is not like the

British Parliament which is supreme. In our jurisdiction, the Constitution is

supreme and all the 3(three) organs of the State owe their existence to the

Constitution. As the lawmaking power of the Parliament is not absolute, it

can not make any law in derogation of the provisions and the basic features

of the Constitution.

The Preamble of the Constitution of Bangladesh states rule of law as

one of the objectives to be attained. The expression rule of law has various

shades of meaning and of all constitutional concepts, rule of law is the

most subjective and value-laden. A.V. Diceys concept of rule of law

includes three dimensions -(i) the supremacy of regular laws as opposed to

 80

the influence of arbitrary power and the persons in authority do not enjoy

wide, arbitrary or discretionary powers, (ii) equality before law, that is,

every man, whatever his rank or position, is subject to ordinary laws and the

jurisdiction of ordinary courts, and (iii) individual liberties legally protected

not through any bill of rights, but through the development of common law.

His thesis has been criticised from many angles, but his emphasis on the

subjection of every person to the ordinary laws of the land, the absence of

arbitrary power and legal protection for certain basic human rights remains

the undisputed theme of the doctrine of rule of law.

The rule of law is a basic feature of the Constitution of Bangladesh.

Law does not mean anything that Parliament may pass. Articles 27, 31 and

32 have taken care of the qualitative aspects of law. Article 27 forbids

discrimination in law or in State actions, while Articles 31 and 32 import the

concept of due process, both substantive and procedural, and thus prohibit

arbitrary or unreasonable law or State actions. The Constitution further

guarantees in Part III certain rights including freedom of thought, speech and

expression to ensure respect for the supreme value of human dignity.

An independent and impartial Judiciary is a precondition of rule of

law. Constitutional provisions will be mere moral precepts yielding no result

unless there is a machinery for enforcement of those provisions and faithful

enforcement of those provisions is impossible in the absence of an

independent and impartial Judiciary. In Masdar Hossains Case, the

Appellate Division has referred to the three essential conditions of

independence of the Judiciary listed by the Canadian Supreme Court in

Walter Valente...Vs... Her Majesty The Queen and another, ([1985] 2 R. C.

 81

S. 673) which are security of tenure, security of salary and other

remunerations and institutional independence to decide on its own matters of

administration bearing directly on the exercise of its judicial functions.

In a subsequent decision (British Columbia...Vs...Imperial Tobacco

Canada Ltd, [2005]2 S.C.R 473), the Canadian Supreme Court expressed

itself in the following manner:

Judicial independence is a foundational

principle of the Constitution reflected in

s.11(d) of the Canadian Charter of Rights

and Freedoms, and in both ss.96-100 and the

Preamble to the Constitutional Act, 1867... It

serves to safeguard our constitutional order

and to maintain public confidence in the

administration of justice.

Judicial independence consists essentially in

the freedom to render decisions based

solely on the requirements of the laws and

justice... It requires that the Judiciary be left

free to act without improper interference

from any other entity... i.e. that the

Executive and Legislative branches of the

Government not to impinge on the essential

authority and function... of the court...

Security of tenure, financial security and

administrative independence are the three

 82

core characteristics or essential

conditions of judicial independence... It is

a precondition to judicial independence that

they be maintained, and be seen by a

reasonable person who is fully informed of

all the circumstances to be maintained...

However, even where the essential

conditions of judicial independence exist,

and are reasonably seen to exist, judicial

independence itself is not necessarily

ensured. The critical question is whether the

Court is free, and reasonably seen to be free,

to perform its adjudicative role without

interference, including interference from the

Executive and Legislative branches of the

Government...

(Underlinings are mine)

Independence of the Judges does not merely mean security of their

tenure or decent wages to keep themselves off from any worry for their daily

bread, but a condition under which Judges may keep their oath to uphold the

Constitution and the laws without fear or favour. Independence and

impartiality are, in fact, intertwined and it is futile to expect an impartial

judgment from a Judge who is not immune from extraneous influences of

any kind whatever. Impartiality, as one of Americas best Judges once

 83

observed, is not a technical conception. It is a state of mind [Durga Das

Basus Limited Government and Judicial Review, 1972, page 27].

Supremacy of the Constitution means that its mandates shall prevail

under all circumstances. As it is the source of legitimacy of all actions,

legislative, executive or judicial, no action shall be valid unless it is in

conformity with the Constitution both in letter and spirit. If any action is

actually inconsistent with the provisions of the Constitution, such action

shall be void and can not, under any circumstances, be ratified by passing a

declaratory law in Parliament. If a law is unconstitutional, it may be re-

enacted removing the inconsistency with the Constitution or re-enacted after

amendment of the Constitution. However, supremacy of the Constitution is a

basic feature of the Constitution and as such even by an amendment of the

Constitution, an action in derogation of the supremacy of the Constitution

can not be declared to have been validly taken. Such an amendment is

beyond the constituent power of Parliament and must be discarded as a fraud

on the Constitution [Khondker Delwar Hossain Secretary, BNP and

anotherVsBangladesh Italian Marble Works and others, 62 DLR (AD)

298].

Where the power of the Legislature is limited by the Constitution or

the Legislature is prohibited from passing certain laws, the Legislature

sometimes makes a law which in form appears to be within the limits

prescribed by the Constitution; but which, in substance, transgresses the

constitutional limitation and achieves an object which is prohibited by the

Constitution. It is then called a colourable legislation and is void on the

principle that what can not be done directly can not also be done indirectly.
 84

The underlying idea is that although a Legislature in making a law purports

to act within the limit of its powers, the law is void if, in substance, it has

transgressed the limit resorting to pretence and disguise. The essence of the

matter is that a Legislature can not overstep the field of its competence by

adopting an indirect means. Adoption of such an indirect means to overcome

the constitutional limitation is often characterised as a fraud on the

Constitution.

The doctrine of colourable legislation does not, however, involve any

question of bona fides or mala fides on the part of the Legislature. It is not

permissible for a Court to impute malice to the Legislature in making laws

which is its plenary power (Shariar Rashid Khan...Vs...Bangladesh, 1998

BLD (AD) 155, paragraph 37). The entire question is one of competence of

the Legislature to enact a law. A law will be colourable if it is one which, in

substance, is beyond the competence of the Legislature. If a Legislature is

competent to do a thing directly, then the mere fact that it attempted to do it

in an indirect manner will not render the law invalid (Gajapati Narayan

Deo...Vs...Orissa, AIR 1953 SC 375).

We should not be mindless of the fact that independence of the

Judiciary is a sine qua non of modern democracy and so long as the

Judiciary remains truly separate and distinct from the Legislature and the

Executive, the peoples power will never be endangered as found by the

High Court Division in the case of The State...Vs...Chief Editor,

Manabjamin, (2005) 57 DLR 359.

Article 121 of the Indian Constitution provides that no discussion

shall take place in Parliament with respect to the conduct of any Judge of the
 85

Supreme Court or any High Court in the discharge of his duties except in a

proceeding of his impeachment in Parliament. In this connection, the Indian

Supreme Court observed, The Constitution-makers attached so much

importance to the independence of the Judicature in this country that they

thought it necessary to place them beyond any controversy, except in the

manner provided in Article 121 (In Re Under Article 143, AIR 1965 SC

745, paragraph 63).

In Bangladesh jurisdiction, in order to maintain independence of the

Judges of the Supreme Court, the framers of the Constitution not only

provided under Article 147 that the remuneration, privileges and other terms

and conditions of their service shall not be varied to their disadvantage

during their term of office, but also expressly declared in Article 94(4) that

the Chief Justice and the other Judges of the Supreme Court shall be

independent in the exercise of their judicial functions. It, therefore, naturally

follows that the conduct of the Judges of the Supreme Court can not be

discussed by the Executive Government or by the Members of Parliament.

The Rules of Procedure of Parliament provide that no question, motion or

resolution which contain any reflection on the conduct of any Judge of the

Supreme Court shall be admissible. The immunity of the Members of

Parliament under Article 78 in respect of what they say in Parliament can not

be construed as allowing them to make any statement or comment which

may directly or indirectly undermine the independence of the Judges of the

Supreme Court. But none the less, it is our painful experience that whenever

a judgment passed by the Supreme Court is not liked by the Parliament,

most of the parliamentarians, irrespective of the political parties to which

 86

they belong, decry that judgment and the concerned Judge(s) in an

obnoxious, indecent and unseemly manner. This kind of conduct can not be

countenanced at all and as such it is deprecated. Article 94(4) is an implied

limitation on the freedom of speech of the Members of Parliament. But

enforcement of this limitation is in the hands of the Speaker which is

unfortunately seldom exercised by him.

In this sub-continent, the idea that a Constitution can contain some

basic features which can not be deviated from was first reflected in the case

of Muhammad Abdul Haque...Vs...Fazlul Quader Chowdhury, PLD 1963

Dacca 669. In that case, the petitioner being a Member of the National

Assembly of Pakistan challenged the legality of the warrant and title of the

respondents to the membership of the said Legislature. The Dacca High

Court was asked to examine the legality of the authority of the respondents

by which they claimed to be the Members of the National Assembly in spite

of the fact that shortly after election to the National Assembly, Fazlul

Quader Chowdhury and others were appointed to the Presidents Council of

Ministers. The Dacca High Court was required to examine the vires of an

order made under Article 224 of the Constitution of Pakistan, 1962.

Mentioning the observation of Muhammad Munir C. J, it was stated by Syed

Mahbub Murshed J:

The aforesaid dictum of the Supreme Court of

Pakistan is a pointer that in the case before us, the
power of adaptation does not extend to the wiping
out of the vital provisions of the Constitution to
implement a decision of the Members of the
Assembly who were invited to be Ministers.
 87

The said judgment of Dacca High Court was affirmed by the Supreme

Court of Pakistan in Mr. Fazlul Quader Cyowdhury and others...Vs...Mr.

Muhammad Abdul Haque, PLD 1963 SC 486. A. R Cornelius C. J, in the

judgment observed:

Forms of Government are fundamental

features of a Constitution, and to alter them

in limine in order to placate or secure the

support of a few persons, would appear to be

equivalent not to bringing the given

Constitution into force, but to bringing into

effect an altered or different Constitution

(Page 512).

In the same appeal, it was also observed by Cornelius C. J:

In that passage, there clearly appears a

determination on the part of the Court to

resist any attempt to manipulate the

Constitution in order to suit a particular

person, and at the same time to insist that

nothing should be permitted which

derogates from the very basis of the

Constitution or is in direct violation of the

Constitution (Page 512).

Fazle-Akbar J., agreeing with the observation of the learned Chief

Justice Cornelius, observed:

 88

However wholesome the intention and

however noble the motive may be, the extra-

constitutional action could not be supported

because the President was not entitled to go

beyond the Constitution and touch any of

the fundamentals of the Constitution (Page

524).

Hamoodur Rahman J. in this context observed as follows:

The fundamental principle underlying a

written Constitution is that it not only

specifies the persons or authorities in whom

the sovereign powers of the State are to be

vested but also lays down fundamental rules

for the selection or appointment of such

persons or authorities and above all fixes the

limits of the exercise of those powers. Thus

the written Constitution is the source from

which all governmental power emanates and

it defines its scope and ambit so that each

functionary should act within his respective

sphere. No power can, therefore, be claimed

by any functionary which is not to be found

within the four corners of the Constitution

nor can anyone transgress the limits therein

specified (Page 535).

 89

He further observed:

An alteration of this main fabric,

therefore, so as to destroy it altogether can

not, in my view, be called an adaptation of

the Constitution for the purpose of

implementing it (Page 538).

Thus it is evident that a Constitution can contain within itself some

basic features which were first identified by Dacca High Court and then

developed by the Supreme Court of Pakistan. The source of this antiquated

principle, no doubt, originated in the U.S Supreme Court in

Marbury..Vs...Madison (1803) 1 Cranch, 137. But Abdul Huqs Case helped

develop the concept as an original and independent view of Dhaka High

Court which was affirmed by the Supreme Court of Pakistan and later

developed in India.

In India whether by an amendment of the Constitution, the basic

features can be changed was first questioned in the case of Sajjan

Singh...Vs...State of Rajasthan, AIR 1965 SC 845. The Indian Supreme Court

in its judgment referred to Abdul Huqs Case as a point of reference and

relied upon it as a precedent.

The case of L. C. Golak Nath...Vs....State of Punjab, AIR 1967 SC

1643 was heard by a Full Bench comprising 11(eleven) Judges. Before

Golak Naths Case, the Indian Supreme Court was of the view that subject to

the condition provided in Article 368, Parliament has the power to amend

any Article of the Constitution. This stand was changed in Golak Naths

Case. It was held that the fundamental rights contained in part III of the
 90

Constitution of India are not amendable under Article 368. The same can

only be done after constituting a Constituent Assembly. The Judgment

delivered in Golak Naths Case was superseded by the Constitution (24th

Amendment) Act, 1971 by inserting clause (4) in Article 13 and clause (1) in

Article 34.

In the case of His Holiness Kesavananda Bharati Sripadagalvaru and

others...Vs...State of Kerala and another (AIR 1973 SC 1461), the Supreme

Court of India declared the Constitutions 25th Amendment Act, 1971 illegal

and void on the ground that the said Amendment took away the Supreme

Courts power of judicial review which is a basic structure of the

Constitution. Regarding the theory of basic structure of the Constitution in

the said case, Sikri C. J. observed:

The learned Attorney General said that

every provision of the Constitution is

essential; otherwise it would not have been

put in the Constitution. This is true. But this

does not place every provision of the

Constitution in the same position. The true

position is that every provision of the

Constitution can be amended provided the

basic foundation and structure of the

Constitution remain the same.

In the Eighth Amendment Case [41 DLR (AD) 165], the vires of

Article 100 of the Constitution (Eighth Amendment) Act, 1988 was

 91

challenged. Describing the basic structures of the Constitution, Justice

Shahabuddin Ahmed observed in paragraph 416:

416. Main objection to the doctrine of basic

structure is that it is uncertain in nature and

is based on unfounded fear. But in reality

basic structures of a Constitution are clearly

identifiable. Sovereignty belongs to the

people and it is a basic structure of the

Constitution. There is no dispute about it, as

there is no dispute that this basic structure

can not be wiped out by amendatory

process. However, in reality peoples

sovereignty is assailed or even denied under

many devices and cover-ups by holders of

power, such as, by introducing controlled

democracy, basic democracy or by super-

imposing thereupon some extraneous

agency, such as a council of elders or of

wisemen. If by exercising the amending

power, peoples sovereignty is sought to be

curtailed, it is the constitutional duty of the

Court to restrain it and in that case, it will be

improper to accuse the Court of acting as

super-legislators. Supremacy of the

Constitution as the solemn expression of the

 92

will of the people, Democracy, Republican

Government, Unitary State, Separation of

Powers, Independence of the Judiciary,

Fundamental Rights are basic structures of

the Constitution. There is no dispute about

their identity. By amending the Constitution,

the Republic can not be replaced by

Monarchy, Democracy by Oligarchy or the

Judiciary can not be abolished, although

there is no express bar to the amending

power given in the Constitution. Principle of

separation of powers means that the

sovereign authority is equally distributed

among the three organs and as such one

organ can not destroy the other. These are

structural pillars of the Constitution and they

stand beyond any change by amendatory

process. Sometimes it is argued that this

doctrine of bar to change of basic structures

is based on the fear that unlimited power of

amendment may be used in a tyrannical

manner so as to damage the basic structures

in view of the fact that power corrupts and

absolute power corrupts absolutely. I think,

the doctrine of bar to change of basic

 93

structure is an effective guarantee against

frequent amendments of the Constitution in

sectarian or party interest in countries where

democracy is not given any chance to

develop.

There is no dispute that the Constitution stands on certain fundamental

principles which are its structural pillars and if these pillars are pulled down

or damaged, the whole constitutional edifice will fall down. It is by

construing the constitutional provisions that these pillars are to be identified.

In the Eighth Amendment Case, paragraphs 272, 273, 380, 404, 433,

437, 475 and 478 are in the following terms:

272. This point may now be considered.

Independence of Judiciary is not an abstract

conception. Bhagwati, J: said if there is one

principle which runs through the entire

fabric of the Constitution, it is the principle

of the rule of law and under the

Constitution, it is the Judiciary which is

entrusted with the task of keeping every

organ of the State within the limits of the

law and thereby making the rule of law

meaningful and effective. He said that the

Judges must uphold the core principle of the

rule of law which says Be you ever so

high, the law is above you. This is the

 94

principle of Independence of the Judiciary

which is vital for the establishment of real

participatory democracy, maintenance of the

rule of law as a dynamic concept and

delivery of social justice to the vulnerable

sections of the community. It is this

principle of Independence of the Judiciary

which must be kept in mind while

interpreting the relevant provisions of the

Constitution (S. P. Gupta and

othersVsPresident of India and others,

AIR 1982 SC at page 152).

273. He further says What is necessary is

to have Judges who are prepared to fashion

new tools, forge new methods, innovate new

strategies and evolve a new jurisprudence

who are judicial statesmen with a social

vision and a creative faculty and who have,

above all, a deep sense of commitment to

the Constitution with an activist approach

and obligation for accountability, not to any

party-in-power nor to the opposition We

need Judges who are alive to the socio-

economic realities of Indian life, who are

anxious to wipe every tear from every eye,

 95

who have faith in the constitutional values

and who are ready to use law as an

instrument for achieving the constitutional

objectives. (At page 179). He quoted the

eloquent words of Justice Krishna Iyer:

Independence of the Judiciary is not

genuflection; nor is it opposition to every

proposition of Government. It is neither

judiciary made to opposition measure nor

Governments pleasure.

380. There is, however, a substantial

difference between Constitution and its

amendment. Before the amendment

becomes a part of the constitution, it shall

have to pass through some test, because it is

not enacted by the people through a

Constituent Assembly. Test is that the

amendment has been made after strictly

complying with the mandatory procedural

requirements, that it has not been brought

about by practising any deception or fraud

upon statutes and that it is not so repugnant

to the existing provision of the Constitution

that its co-existence therewith will render

the Constitution unworkable, and that, if the

 96

doctrine of bar to change of basic structure

is accepted, the amendment has not

destroyed any basic structure of the

Constitution.

404. Independence of the Judiciary, a basic

structure of the Constitution, is also likely to

be jeopardized or affected by some of the

other provisions in the Constitution. Mode

of their appointment and removal, security

of tenure, particularly fixed age for

retirement and prohibition against

employment in the service of the Republic

after retirement or removal are matters of

great importance in connection with the

independence of Judges. Selection of a

person for appointment as a Judge in

disregard to the question of his competence

and his earlier performance as an Advocate

or a Judicial Officer may bring in a

Spineless Judge in the words of President

Roosevelt; such a person can hardly be an

independent Judge

433. Alexander Hamilton, one of the

founding fathers of the U.S. Constitution, in

his Federalist Paper No. 78 described the

 97

Supreme Court as the least dangerous

branch. He said: The Executive not only

dispenses the honours but holds the sword of

the community. The Legislature not only

commands the purse, but also prescribes the

rules by which the duties and rights of every

citizen are to be regulated. The judiciary, on

the contrary, has no influence over either the

sword or the purse; no direction either of the

strength or of the wealth of the society, and

can take no active resolution whatsoever.

437 It is often forgotten why a Court is

important and why a Court must be

independent. The reason is that all rights are

rights against the State. A Court must be

able to overturn unconstitutional law passed

by the Parliament, it must overrule the

police, the bureaucrats, and the army, the

President or the Prime Minister. Only when

the Court has this power, it can protect the

citizenry from the State

475. The doctrine of basic structure is one

growing point in the constitutional

jurisprudence. It has developed in a climate

where the Executive, commanding an

 98

overwhelming majority in the Legislature,

gets snap amendments of the Constitution

passed without a Green Paper or White

Paper, without eliciting any public opinion,

without sending the Bill to any select

committee and without giving sufficient

time to the Members of the Parliament for

deliberation on the Bill for amendment.

Examples may be found both at home and

abroad

478. The doctrine of basic structure is a

new one and appears to be an extension of

the principle of judicial review. Although

the U. S. Constitution did not expressly

confer any judicial review, Marshall CJ held

in MarburyVsMadison (1803) 1 Cranch

137 that the Court, in the exercise of its

judicial functions, had the power to say what

the law was, and if it was found an Act of

Congress conflicted with the Constitution, it

had the duty to say that the Act was not law.

Though the decision of Marshall, C.J is still

being debated, the principle of judicial

review has got a wide acceptance not only in

the countries that are under the influence of

 99

common law but in civil law countries as

well.

In the Eighth Amendment Case, it was decided by the majority of the

Judges that the Constitution stands on certain fundamental principles which

are its structural pillars. Parliament can not amend those being fundamental

in character, by its amending power, for, if these pillars are demolished or

damaged, then the whole constitutional edifice will fall apart. Though all the

Judges put forward different features as basic structures, but some of these

are common, and these are: (i) Sovereignty, (ii) Supremacy of the

Constitution, (iii) Separation of Power, (iv) Democracy, (v) Republican

Government, (vi) Independence of the Judiciary, (vii) Unitary State and

(viii) Fundamental Rights.

As to implied limitation on the amending power of the Parliament, it

is inherent in the word amendment in Article 142 and is also deducible

from the entire scheme of the Constitution. Amendment of the Constitution

means a change or alteration for improvement or to make it effective and

meaningful. Amendment is subject to the retention of the basic structures of

the Constitution. The Court, therefore, has power to undo any amendment if

it transgresses its limit and alters any basic structure of the Constitution.

In Secretary, Ministry of FinanceVsMd. Masdar Hossain and

others reported in 52 DLR (AD) 82, it was held by the Appellate Division in

paragraph 57:

57. 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

 100

can not be demolished, whittled 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...

The written Constitution of Bangladesh has placed the Supreme Court

in the position of the guardian of the Constitution itself. So the Supreme

Court will not countenance any inroad upon the Constitution. A reference to

Articles 94(4) and 147(2) of the Constitution clearly reveals the independent

character of the Supreme Court. Therefore it can not be questioned that the

Supreme Court has not been envisaged in the Constitution as an independent

institution.

Independence of the Judiciary is an essential attribute of the rule of

law. The notion of independence of the Judiciary is not limited to the

independence from the executive pressure or influence-it is a wider concept

which takes within its sweep independence from any other pressure or

prejudice. If the Judiciary manned by the Judges are not independent, how

can the independence of the Judiciary be secured? It was observed in C.

Ravichandran IyerVsJustice A. M. Bhattacharjee, (1995) 5 SCC 457 as

under:
 101

Independent Judiciary is, therefore, most

essential when liberty of citizen is in danger.

It then becomes the duty of the Judiciary to

poise the scales of justice unmoved by the

powers (actual or perceived) and

undisturbed by the clamour of the multitude.

The heart of judicial independence is

judicial individualism. The Judiciary is not a

disembodied abstraction. It is composed of

individual men and women who work

primarily on their own. Judicial

individualism, in the language of Justice

Powell of the Supreme Court of the United

States in his address to the American Bar

Association, Labour Law Section on

11.08.1976, is perhaps one of the last

citadels of jealously preserved

individualism

Douglas, J. in his dissenting opinion in Stephen S.

ChandlerVsJudicial Council of the Tenth Circuit of the United States,

398 US 74; 26 LED 2d 100, observed:

No matter how strong an individual Judges

spine, the threat of punishment-the greatest

peril to judicial independence- would project

as dark a shadow whether cast by political

 102

strangers or by judicial colleagues. A

Federal Judge must be independent of every

other Judge Neither one alone nor any

member banded together can act as censor

and place sanctions on him. It is vital to

preserve the opportunities for judicial

individualism.

In Understanding the Law by Geoffrey Rivlin, Sixth Edition, at

page 84, it has been stated:

The responsibility of a Judge to be

independent of outside pressures was given

eloquent modern expression in March, 1998

by the American Judge, Hiller B. Zobel,

who presided over the trial of the English

nanny Louise Woodward, for murder:

Elected officials may consider popular

urging and sway to public opinion polls.

Judges must follow their duty, heedless of

editorials, letters, telegrams, picketers,

threats, petitions, panellists and talk shows.

In this country, we do not administer justice

by plebiscite [popular vote].

In the self-same book, at page 88, the value and importance of an

independent Judiciary has been emphasized as follows:

 103

The value and importance of an independent Judiciary,

and the reasons for our high-minded expectations of

Judges, were spelled out in a speech by Lord Justice Igor

Judge, now Lord Judge of Draycote, Lord Chief Justice

of England and Wales.

The principle of judicial independence

benefits the Judge sitting in judgment. The

Judge does what he or she believes to be

right, according to law, undistracted and

uninhibited. But the overwhelming

beneficiary of the principle is the

community. If the Judge is subjected to any

pressure, his judgment is flawed, and justice

is tarnished. When Judges speak out in

defence of the principle, they are not seeking

to uphold some minor piece of flummery or

privilege, which goes with their office. They

are speaking out in defence of our

communitys entitlement to have its

disputes, particularly those with the

Government of the day, and the institutions

of the community, heard and decided by a

Judge who is independent of them all...

Among our tasks we have to ensure that the

rule of law applies to everyone equally, not

 104

only when the consequences of the decision

will be greeted with acclaim, but also, and

not one jot less so, indeed, even more so,

when the decision will be greeted with

intense public hostility.

A write-up captioned Crisis in Pakistan by Justice Robert J. Sharpe

and Michelle Bradfield has found place in Judicial Independence in

Context edited by Adam Dodek and Lorne Sossin. In that write-up, it has

been stated:

Chief Justice Chaudhurys strong assertion

of judicial independence indicated that he

was breaking with the Pakistani judiciarys

traditional pattern of docility vis--vis

military rule, which included the judgment

he signed in 1999 validating Musharrafs

coup under the doctrine of state necessity.

Every time Chaudhury C. J. asserted his

apparently newfound judicial independence,

it became more evident that he was no

longer prepared to toe the line that

Pakistans rulers had laid down for its

judges. The constitutionality of Musharrafs

right to hold the office of the President was

very much in doubt and an independent-

minded Chief Justice determined to uphold

 105

the rule of law posed a serious threat to

Musharrafs continued retention of power.

It has been further stated in the above-mentioned write-up:

After a protracted hearing on 20 July, 2007

the Supreme Court set aside the reference to

the SJC, declared Chaudhury C.Js

suspension from office illegal, and ordered

his reinstatement. The Presidents order of 9

March suspending the Chief Justice and the

order of the SJC restraining the Chief Justice

were declared to have been made without

lawful authority, as was the appointment of

the acting Chief Justice. The Court

pronounced the 15 March order placing

Chaudhury C. J. on compulsory leave

invalid and the 1970 emergency order upon

which it was based to be ultra vires the

Constitution. As a consequence of these

orders, the Court ruled that the Chief Justice

shall be deemed to be holding the said

office and shall always be deemed to have

been so holding the same.

The capacity or inclination of Judges to exercise independent thought

and judgment can certainly be referred to as judicial independence. The

purpose or rationale of affording Judges a large measure of autonomy is to

 106

establish conditions that will ensure them to make decisions free from

control by others. This goes to the very core of the judicial function as a

third party method of settling disputes about legal rights and duties. If a

Judge is controlled by or unduly influenced by one of the parties to a

dispute, he can not act as a third party. Even the appearance of being partial

to one of the parties will undermine his legitimacy as a third party

adjudicator. A Judiciary free in reality and in appearance from control by the

other branches of the Government is an essential condition of a liberal

democracy in which the citizenry can assert their legal rights against the

Government even against a very popular Government.

It is now a well-established principle that the judicial power should be

regarded in its nature, and even more in the persons who administer it, as

separate from other instruments of political authority. An independent and

impartial Judiciary is universally recognized as a basic requirement for the

establishment of the rule of law; an inevitable and inseparable ingredient of

a democratic and civilized way of life. It is only thus that a citizen can be

assured of a just and fair determination of his disputes with other citizens,

and with the State.

The role of Judges in the establishment of the rule of law was defined

by the International Commission of Jurists in Athens in June, 1955 in the

following terms:

Judges should be guided by the rule of law,

protect and enforce it, without fear or

favour, and resist any encroachments by

 107

Governments or political parties on their

independence as Judges.

The International Commission of Jurists reiterated this principle in its

New Delhi Declaration in January, 1959 by stating:

(a) An independent judiciary even though

appointed by the Head of the State is an

indispensable requisite of a free society

under the rule of law. Such independence

implies freedom from interference by the

Executive or the Legislature with the

exercise of the judicial function, but that

does not mean that the Judge is entitled to

act in an arbitrary manner; and

(b) The principle of irremovability of the

Judiciary and their security of tenure until

death or until a retiring age fixed by statue is

reached, is an important safeguard of the

rule of law.

Whenever a Constitution is justiciable, i.e., enforceable in a Court of

law, the Judiciary becomes the guardian of the Constitution. According to

A.V. Dicey:

This system (referring to the American),

which makes the Judges the guardians of the

Constitution provides the only adequate

 108

safeguard which has hitherto been invented

against unconstitutional legislation.

(The Law of Constitution, 10th Ed. P-137)

In the case of Idrisur Rahman (Md) and othersVsSecretary,

Ministry of Law, Justice and Parliamentary Affairs, Government of the

Peoples Republic of Bangladesh reported in 61 DLR (HCD) 523, it was

held in paragraph 209:

209. Independence of Judiciary is an

indispensable condition for democracy if

the Judiciary fails, the Constitution fails and

the people might opt for some other

alternative.

Montesquieu in his book Spirit of Laws, Vol.-1, Page 181 observed:

There is no liberty if the power of judging

be not separated from the Legislative and

the Executive powers.

Our Constitution has not only taken care to empower the Supreme

Court of Bangladesh to limit the power of the Legislature in lawmaking but

has also authorized the Supreme Court to function as the bulwark of the

Constitution against Executive encroachments on the lives and properties of

the citizenry and against any breach of their fundamental rights.

Since ours is a limited Government, the limitations imposed by the

Constitution can only be preserved in practice, in the words of Hamilton, in

no other way than through the medium of courts of justice, whose duty it

must be to declare all acts contrary to the manifest tenor of the Constitution
 109

void. Without this, all the reservations of particular rights or privileges

would amount to nothing [Federalist Paper No. 78 by Alexander Hamilton].

In this connection, it is pertinent to refer to the eloquent statement of

Chief Justice John Marshall who said, The judicial department comes home

in its effects to every mans fireside. It passes on his property, his reputation,

his life, his all. Is it not, to the last degree important, that the Judge should be

rendered perfectly and completely independent, with nothing to influence or

control him but God and his conscience? [Proceedings and Debates of the

Virginia State Convention of 1829-30(1830), page-616].

It is, therefore, evident that the Supreme Court occupies a unique

position of the balance wheel and its independence is the cornerstone of

our constitutional-democratic state under the rule of law.

The Supreme Court of India through its comprehensive judgment in

the leading case of Minerva Mills Ltd....Vs...Union of India (AIR 1980 SC

1789), literally left no query unanswered on Parliamentary limitation in

making law and in amending the Constitution, as well as the superior

Courts power, including the source of their power, to judicially review Acts

of Parliament. Their Lordships of the Indian Supreme Court observed in that

case as under:

Parliament too, is a creature of the

Constitution and it can only have such

powers as are given to it under the

Constitution. It has no inherent power of

amendment of the Constitution and being an

authority created by the Constitution, it can

 110

not have such inherent power, but the power

of amendment is conferred upon it by the

Constitution and it is a limited power which

is so conferred. Parliament can not in

exercise of this power so amend the

Constitution as to alter its basic structure or

to change its identity. Now, if by

constitutional amendment, Parliament is

granted unlimited power of amendment, it

would cease to be an authority under the

Constitution, but would become supreme

over it, because it would have power to alter

the entire Constitution including its basic

structure and even to put an end to it by

totally changing its identity. It will,

therefore, be seen that the limited amending

power of Parliament is itself an essential

feature of the Constitution, a part of its basic

structure, for if the limited power of

amendment is enlarged into an unlimited

power, the entire character of the

Constitution would be changed. It must

follow as a necessary corollary that any

amendment of the Constitution which seeks,

directly or indirectly, to enlarge the

 111

amending power of Parliament by freeing it

from the limitation of unamendability of the

basic structure, would be violative of the

basic structure and hence outside the

amendatory power of Parliament.

It is a fundament principle of our

constitutional scheme, and I have pointed

this out in the preceding paragraph, that

every organ of the State, every authority

under the Constitution, derives its power

from the Constitution and has to act within

the limits of such power. But then the

question arises as to which authority must

decide what are the limits on the power

conferred upon each organ or

instrumentality of the State and whether

such limits are transgressed or exceeded.

Now there are three main departments of the

State amongst which the powers of the

Government are divided; the Executive, the

Legislative and the Judiciary. Under our

Constitution, we have no rigid separation of

powers as in the United States of America,

but there is a broad demarcation, though

having regard to the complex nature of

 112

governmental functions, certain degree of

overlapping is inevitable. The reason for this

broad separation of powers is that the

concentration of powers in any one organ

may, to quote the words of Chandrachud, J.

(as he then was) in Smt. Indira Gandhis

case (AIR 1975 SC 2299) by upsetting that

fine balance between the three organs,

destroy the fundamental premises of a

democratic Government to which they were

pledged. Take, for example, a case where

the executive which is in charge of

administration, acts to the prejudice of a

citizen and a question arises as to what are

the powers of the executive and whether the

executive has acted within the scope of its

powers. Such a question obviously can not

be left to the executive to decide for two

very good reasons. First, the decision of the

question would depend upon the

interpretation of the Constitution and the

laws and this would pre-eminently be a

matter fit to be decided by the judiciary,

because it is the judiciary which alone

would be possessed of expertise in this field

 113

and secondly, the constitutional and legal

protection afforded to the citizen would

become illusory, if it were left to the

executive to determine the legality of its

own action. So also if the Legislature makes

a law and a dispute arises whether in making

the law, the Legislature has acted outside the

area of its legislative competence or the law

is violative of the fundamental rights or of

any other provisions of the Constitution, its

resolution can not, for the same reasons, be

left to the determination of the Legislature.

Their Lordships continued to observe:

It is for the judiciary to uphold the

constitutional values and to enforce the

constitutional limitations. That is the essence

of the rule of law which, inter alia, requires

that the exercise of powers by the

Government whether it be the legislature or

the executive or any other authority, be

conditioned by the Constitution and the law.

The power of judicial review is an

integral part of our constitutional system and

without it, there will be no Government of

laws and the rule of law would become a

 114

teasing illusion and a promise of unreality. I

am of the view that if there is one feature of

our Constitution which, more than any other,

is basic and fundamental to the maintenance

of democracy and the rule of law, it is the

power of judicial review and it is

unquestionably, to any mind, part of the

basic structure of the Constitution.

Coming back to the case before us, I think, the constitutional

provisions which are germane to proper adjudication of the Rule are the

relevant paragraphs of the Preamble, Articles 7B, 22, 70, 88(b), 89(1), 94(4)

and 96 (both before and after the Sixteenth Amendment) and Article

147(2)(4) which are reproduced below:

Preamble:

Further pledging that it shall be a fundamental

aim of the State to realize through 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 be secured for

all citizens; (Paragraph 3)

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

 115

prosper in freedom and may make our full

contribution towards international peace and co-

operation in keeping with the progressive

aspirations of mankind; (Paragraph 4)

Article 7B:

Notwithstanding anything contained in Article

142 of the Constitution, the preamble, all Articles

of Part I, all Articles of Part II, subject to the

provisions of Part IXA, all Articles of Part III, and

the provisions of Articles relating to the basic

structures of the Constitution including Article 150

of Part XI shall not be amendable by way of

insertion, modification, substitution, repeal or by

any other means.

Article 22:

The State shall ensure the separation of the

judiciary from the executive organ of the State.

Article 70:

After the Constitution (15th Amendment) Act, 2011

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

(a) resigns from that party; or

(b) votes in Parliament against that party;

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but shall not thereby be disqualified for subsequent

election as a Member of Parliament.

Article 88(b):

The following expenditure shall be charged upon

the Consolidated Fund

(b) The remuneration payable to

(i) the Speaker and Deputy Speaker;

(ii) the Judges of the Supreme Court;

(iii) the Comptroller and Auditor-General;

(iv) the Election Commissioners;

(v) the Members of the Public Service

Commissions;

Article 89(1):

So much of the annual financial statement as

relates to expenditure charged upon the

Consolidated Fund may be discussed in, but shall

not be submitted to the vote of, Parliament.

Article 94(4):

Subject to the provisions of this Constitution, the

Chief Justice and the other Judges shall be

independent in the exercise of their judicial

functions.

Article 96:

Before the Constitution (Sixteenth After the Constitution (Sixteenth

 117

Amendment) Act, 2014 Amendment) Act, 2014

96. (1) Subject to the other 96. (1) Subject to the other

provisions of this article, a Judge provisions of this Article, a Judge

shall hold office until he attains the shall hold office until he attains the

age of sixty-seven years. age of sixty-seven years.

(2) A Judge shall not be removed (2) A Judge shall not be removed

from his office except in accordance from his office except by an order of

with the following provisions of this the President passed pursuant to a

Article. resolution of Parliament supported

(3) There shall be a Supreme Judicial by a majority of not less than two-

Council, in this Article referred to as thirds of the total number of

the Council, which shall consist of Members of Parliament, on the

the Chief Justice of Bangladesh, and ground of proved misbehaviour or

the two next senior Judges: incapacity.

Provided that if, at any time, the (3) Parliament may by law regulate

Council is inquiring into the capacity the procedure in relation to a

or conduct of a Judge who is a resolution under clause (2) and for

member of the Council, or a member investigation and proof of the

of the Council is absent or is unable misbehaviour or incapacity of a

to act due to illness or other cause, Judge.

the Judge who is next in seniority to (4) A Judge may resign his office by

those who are members of the writing under his hand addressed to

Council shall act as such member. the President.

(4) The function of the Council shall

be-
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(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 be 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

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been guilty of gross misconduct, the

President shall, by order, remove the

Judge from office.

(7) For the purpose of an 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 147 (2) (4):

(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.

(4) This Article applies to the offices of

(a) President;

(b) Prime Minster;

(c) Speaker or Deputy Speaker;

(d) Minister, Minister of State or Deputy

Minister;
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(e) Judge of the Supreme Court;

(f) Comptroller and Auditor-General;

(g) Election Commissioner;

(h) Member of Public Service Commission.

From the third paragraph of the Preamble, it is abundantly clear that it

shall be a fundamental aim of the State to realize through the democratic

process a society in which the rule of law, amongst others, will be secured

for all citizens. It is in the fourth paragraph of the Preamble that it is our

sacred duty to safeguard, protect and defend the Constitution and to maintain

its supremacy as the embodiment of the will of the people of Bangladesh. It

is explicit that the third and fourth paragraphs of the Preamble of the

Constitution have enjoined a duty upon the State for establishment of the

rule of law and a duty upon the people to safeguard, protect and defend the

Constitution and to maintain its supremacy. On the other hand, the Judges of

the Supreme Court are oath-bound to preserve, protect and defend the

Constitution and the laws of Bangladesh as per Article 148 read with third

schedule of the Constitution. So it is seen that the act of safeguarding,

protecting and defending the Constitution is upon the people whereas apart

from protecting and defending the Constitution, the Judges of the Supreme

Court must preserve the Constitution, come what may. The preservation of

the Constitution is very significant. The Constitution must be preserved,

protected and defended in case of any assault on it either by the Executive or

by the Legislature. As independence of the Judiciary is one of the basic

 121

structures of the Constitution, it must be preserved, protected and defended

by the Judges of the Supreme Court at all costs.

Dr. Kamal Hossain has rightly contended that in an effort to ensure

the independence of the Judiciary by securing the remuneration of the

Judges of the Supreme Court, the Constitution has provided in Articles 88(b)

and 89(1) that the remuneration of the Judges of the Supreme Court is

payable from the Consolidated Fund and the expenditure charged upon the

Consolidated Fund can only be discussed in Parliament; but it can not be

voted on. So it is evident that the Constitution upholds the independence of

the Judicature in a way that even Parliament can not vote on their

remuneration. Viewed from this angle, I am at one with Dr. Kamal Hossain

that Articles 88(b) and 89(1) conjointly form an integral part of the

independence of the Judiciary, one of the basic structures of the

Constitution. To be more precise, the independence of the Judiciary is also

protected by those two Articles, namely, Articles 88(b) and 89(1) of the

Constitution. In the result, the Sixteenth Amendment, considered from the

standpoint as above, should not be allowed to exist as a valid piece of

legislation.

Article 147(2) of the Constitution provides in clear, unambiguous and

categorical terms that 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. As per Article 147(4), this Article applies, amongst

others, to the office of a Judge of the Supreme Court. Prior to the Sixteenth

Amendment, the gross misconduct or incapacity of any Supreme Court

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Judge was required to be inquired into by the Supreme Judicial Council

consisting of the Chief Justice and the next 2(two) senior most Judges of the

Appellate Division as introduced by the Second Proclamation (Tenth

Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977). The

Supreme Judicial Council mechanism was justifiably endorsed by the

Parliament and incorporated in Article 96 of the Constitution by the

Fifteenth Amendment of the Constitution. But the Parliamentary mechanism

of removal as introduced by the Sixteenth Amendment has varied the terms

and conditions of service of the Judges of the Supreme Court to their

disadvantage during their incumbency as Judges as guaranteed by the

Fifteenth Amendment. In such view of the matter, it is palpably clear that the

Sixteenth Amendment is violative of Article 147(2) of the Constitution.

Dr. Kamal Hossain has rightly adverted to Article 23 of the Beijing

Statement of Principles of the Independence of the Judiciary which provides

that by reason of difference in history and culture, the procedure adopted for

the removal of Judges may differ in different societies. Although the

Parliamentary removal procedure has traditionally been adopted in some

societies; yet in other societies, that procedure is unsuitable and its use other

than for the most serious of reasons is apt to lead to misuse. So the probable

misuse of the Parliamentary procedure of removal of Judges has been

internationally recognized.

Dr. Kamal Hossain has also rightly pointed out that the Sixteenth

Amendment has undermined the independence of the Judiciary by making

the Judiciary vulnerable to a process of removal of the Judges of the

Supreme Court by the Parliament which is likely to be influenced by

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political clout and pressure. The risk of political clout upon the

independence of the Judiciary has been noted in the following statement by

H. M. Seervai in his book- The Position of the Judiciary under the

Constitution of India, published by Bombay University Press, at page 109:

the American experience in impeaching

a judge has been unsatisfactory. The Senate,

which is a Legislative body, has little time

for a detailed investigation into the conduct

of a judge; and where such investigation has

been made, political and party

considerations have come into play.

So we find that the American experience about the impeachment of Judges

by the Legislature is not happy.

Speaking about Article 70 of the Constitution of Bangladesh, I must

say that this Article has fettered the Members of Parliament unreasonably

and shockingly. It has imposed a tight rein on them. Members of Parliament

can not go against their partyline or position on any issue in the Parliament.

They have no freedom to question their partys stance in the Parliament,

even if it is incorrect and flawed. They can not vote against their partys

decision. They are, indeed, hostages in the hands of their party high

command.

Because of Article 70 of the Constitution, a Member of Parliament

effectively loses his character as an agent of the people and becomes the

nominee of his party. What is dictated by the cabinet of the ruling party or

the shadow cabinet of the opposition, Members of Parliament must follow

 124

them meekly ignoring the will and desire of the electorate of their

constituencies. There starts a process of distance and apathy between the

Members of Parliament and their electors. Such Members are dummies in

Parliament. Having a solid grip over the majority of the Members of

Parliament, the party-in-power moves to influence the executive, judiciary

and other instrumentalities. It eventually results in what we say, daleo-

karan- the political terminology to indicate a group oriented society.

In defence of empowering the Parliament with regard to removal of

the Judges of the Supreme Court, both Mr. Mahbubey Alam and Mr. Murad

Reza have emphatically cited the practices in the UK, USA, India, Canada,

Australia and a few other countries; but there is a fundamental difference

between the lawmakers in those countries and those in our country. In the

USA, UK, Canada and Australia, the lawmakers are free to perform their

functions in the Parliament. No restriction like the one imposed by Article

70 of our Constitution exists in those countries. However, in India there is

some restriction on the lawmakers; yet they do not blindly obey the partys

decisions because of prevalence of democratic practice in the parties. In

view of Article 70 of the Constitution of Bangladesh as it stands now, the

Members of Parliament must toe the partyline in case of removal of any

Judge of the Supreme Court. Consequently, the Judge will be left at the

mercy of the party high command.

The other significant aspect in all those countries is their focus on the

appointment process of Judges, not their removal. But in our country, the

Executive never speaks about the mechanism for appointment of Judges of

the higher Judiciary in those countries. Due to the effective mechanism for
 125

judicial appointments in the higher Judiciary, Parliaments in those countries

do not need to exercise their authority to remove Judges. Both Dr. Kamal

Hossain and Mr. M. Amir-ul Islam have lamented that all the successive

Governments in Bangladesh have remained conspicuously callous and

indifferent to the constitutional provision (Article 95 (2)(c)) to enact a law

prescribing other qualifications for appointment of Judges of the Supreme

Court ostensibly for political reasons. Resultantly Judges are being

appointed to both the Divisions of the Supreme Court without any rigorous

process of their selection by the President after consultation with the Chief

Justice. The non-framing of any law pursuant to Article 95(2)(c) of the

Constitution has virtually given an upper hand to the Executive in the matter

of appointment of the Judges of the Supreme Court of Bangladesh.

At this juncture, I would like to mention that both Mr. Mahbubey

Alam and Mr. Murad Reza have submitted that by the Sixteenth

Amendment, Parliament has restored the original Article 96 of the

Constitution. According to them, this restoration of the original Article 96 of

the Constitution by way of amendment has restored the peoples

sovereignty; but they have conveniently forgotten that the Legislature has

failed to restore the original Articles 115 and 116 of the Constitution, though

the Appellate Division has made a pious wish to that effect in the Fifth

Amendment Case. It seems that the Parliament has given a damn to the

pious wish of the Appellate Division in that regard. Anyway, it is my

considered view that unless and until Articles 115 and 116 are restored to

their original position of the 1972 Constitution, the lower Judiciary will

continue to remain under the sway and influence of the Executive impinging
 126

upon its independence. But regrettably, the political Executives do not

appear to be at all mindful of the complete independence of the lower

Judiciary from the Executive organ of the State.

In examining the constitutionality of the Sixteenth Amendment, I can

not shut my eyes to the peculiar political culture prevalent in this country. It

is common knowledge that there is no consensus about pressing national

issues between the major political parties of the country. As a matter of fact,

the major political parties are poles apart in this respect. Secondly, our

society is sharply polarized. Thirdly, there may not be always two-thirds

majority of the party-in-power in Parliament. Taking all these factors into

consideration, I am of the opinion that the Parliamentary removal

mechanism may fizzle out in many instances. In consequence, the allegedly

corrupt or incapacitated Judges of the Supreme Court will continue to be in

office to the great detriment of public interest. On this point, the case of Mrs.

Sarojini RamaswamiVsUnion of India and others, AIR 1992 SC 2219

referred to by Mr. Manzill Murshid can not be disregarded at all.

Ours is a unitary State. Our Legislature is unicameral. But in the UK,

USA, Canada, Australia and India, the Legislatures are bicameral. The

power of impeachment of the Judges of the higher Judiciary in those

countries having two chambers (upper house and lower house) may be

highlighted incidentally. In those countries, the two chambers maintain the

balance of power and nullify the practical apprehension of victimization, by

parliamentary executives, owing to personal vengeance, if any, arising out of

any judgment that might not be the way they have desired or expected.

Without a judicial mind, free from apprehension and anxiety of being

 127

ridiculed, harassed or victimized, it will be difficult for a Judge to discharge

his judicial function according to his oath of office. In view of the peculiar

socio-political scenario of Bangladesh and sharp polarization of the society,

the Judges of the Apex Court of Bangladesh will not feel safe and secure in

discharging their judicial functions by keeping the Sixteenth Amendment in

place.

In an article titled Impeachment of Judges: Tremors in Indian

Judiciary by T. N. Shalla; published in Law, Judiciary and Justice in

India, Deep and Deep Publications, 1993, he stated at page 92:

The existing law permits politicians and

other vested interests to use the weapon of

impeachment of Judges sometimes for

extraneous considerations. Earlier abortive

attempt to move a motion for impeachment

of Justice J.C. Shah substantiates the point.

As many as 198 signatures of MPs were

procured on a scandalous petition to the

Speaker of the Lok Sabha to impeach him,

only because he had passed a wholly

justified order against a corrupt Government

servant. Fortunately, Mr. G. S. Dhillon, the

then Speaker of the Lok Sabha, managed to

convince the majority of the signatories of

the irresponsibility of their action and the

move for impeachment was dropped.

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In Bangladesh jurisdiction too, the possibility of any such move by the

Members of Parliament against any Judge of the Supreme Court for

rendition of any justified judgment or order can not be thrown overboard at

all.

Basically, the process of impeachment of a Judge is a political

process. A learned author, namely, Wrisley Brown says in The

Impeachment of the Federal Judiciary, Harv LR (1912-1913) 684 at page

698:

Thus an impeachment in this country,

though judicial in external form and

ceremony, is political in spirit. It is directed

against a political offence. It culminates in a

political judgment. It imposes a political

forfeiture. In every sense, save that of

administration, it is a political remedy, for

the suppression of a political evil, with

wholly political consequences.

In paragraph 42 of Sub-Committee on Judicial

AccountabilityVsUnion of India and others, (1991) 4 SCC 699, the

above view of Wrisley Brown was referred to by the Indian Supreme Court.

In Lily Thomas (Ms), Advocate...Vs...Speaker, Lok Sabha and others,

(1993) 4 SCC 234, it was mentioned in paragraph 2:

2. Article 124 (4) is extracted below:

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124. (4) A Judge of the Supreme Court

shall not be removed from his office except

by an order of the President passed after an

address by each House of Parliament

supported by a majority of the total

membership of that House and by a majority

of not less than two-thirds of the members of

that House present and voting has been

presented to the President in the same

session for such removal on the ground of

proved misbehaviour or incapacity.

In Sub-Committee on Judicial

AccountabilityVs...Union of India and

others ((1991) 4 SCC 699) the Constitution

Bench held that the constitutional process

up to the point of admission of Motion,

constitution of Committee and recording of

findings by the Committee were not

proceedings in the Houses of Parliament. In

our opinion, proceedings for impeachment

partake of judicial character because it is

removal after inquiry and investigation. The

statutory process appears to start when the

Speaker exercises duty under the Judges

(Enquiry) Act and comes to an end once the

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Committee appointed by the Speaker

submits the report. The debate on the

Motion thereafter in the Parliament, the

discussion and the voting appear more to be

political in nature. Voting is formal

expression of will or opinion by the person

entitled to exercise the right on the subject

or issue in question.

So we find that the political role of the Parliament in the matter of removal

of any Judge of the higher Judiciary is inevitable. In my humble estimation,

generally speaking, this political role of the Legislature on the question of

removal of any Judge of the higher Judiciary will necessarily give rise to

suspicions and misgivings in the minds of the people undermining their

confidence in the judicial system of Bangladesh.

There is no earthly reason to disagree with the submission of Mr.

Manzill Murshid that the power conferred upon the Parliament by the

Sixteenth Amendment is beyond the scope and jurisdiction of the Parliament

on the score that causing of any investigation of misbehaviour or incapacity

of any Judge of the Supreme Court and recommending to the President for

his removal from office are neither legislative functions nor those are acts of

scrutiny of the Executive actions; rather those functions are judicial in nature

and the Constitution does not allow or contemplate any judicial role by the

Parliament and the role of each organ of the State is clearly defined and

carefully kept separate under the Constitution to maintain its harmony and

integrity and to maximize the effectiveness of the functionality of the

 131

3(three) organs of the State, that is to say, the Executive, the Legislature and

the Judiciary and the assumption of the judicial role by the Parliament in the

matter of removal of the Judges of the Supreme Court derogates from the

theory of separation of powers as enshrined in our Constitution.

According to the submission of Mr. Manzill Murshid, the Sixteenth

Amendment blatantly and shockingly destroys the spirit and essence of the

provisions of Article 22 of the Constitution and clearly establishes the

dominance of the Executive over the Judiciary through the Parliament and

thereby makes the Judiciary subservient to the Executive and a toothless and

tearful silent spectator to the dismantling of the constitutional fabric.

However, in the facts and circumstances of the case, I find it very difficult to

discard this submission of Mr. Manzill Murshid.

Mr. Manzill Murshid has justifiably submitted that for impeachment

and removal of the President of the Peoples Republic of Bangladesh,

detailed provisions have been spelt out in Articles 52 and 53 of the

Constitution; but for removal of the Judges of the Supreme Court under the

amended Article 96(2), details have been left to the Parliament to be worked

out in the form of a law pursuant to the amended Article 96(3) and that is

incongruous and even if an ordinary law is passed pursuant thereto, it will be

subject to frequent changes by simple majority of the Members of

Parliament in the interest of the party-in-power jeopardizing the

independence of the Judiciary.

The duty of the Members of Parliament is to frame laws; but in the

present context of Bangladesh, they are also performing the functions of all

development activities in their respective constituencies and the local

 132

administration seems to be under their control. In this context, Mr. Manzill

Murshid, I suppose, has rightly submitted that the Members of Parliament

will not hesitate to act arbitrarily or illegally as a result of which the

powerless people will be compelled to resort to the High Court Division and

in most of the cases (Writ Petitions), the Government is the respondent and

that being so, the Members of Parliament will be interested in those cases

and by virtue of the Sixteenth Amendment, a Member of Parliament can

bring a motion against any Judge in any case and discuss it therein

necessitating his character-assassination and consequently the Judge may not

be able to perform his duties independently to the great detriment of public

interest.

The Sri Lankan experience about the removal of Dr. Shirani

Bandaranayake, the then Chief Justice of Sri Lanka may be shared at this

stage. Dr. Shirani Bandaranayake, 43rd Chief Justice of Sri Lanka, was

impeached by Parliament and then removed from office by President

Mahinda Rajapaksa in January, 2013. Sri Lankan Parliament ignored a Court

order quashing a report against Chief Justice Shirani Bandaranayake, and

began a two-day debate to impeach her. But the Legislature, backed by an

all-powerful Executive, deliberated upon the report prepared by the

Parliament Select Committee (PSC), which had held Ms. Bandaranayake

guilty of some of the 14 charges levelled against her. Bandaranayake was

accused of a number of charges including financial impropriety and

interfering in Court cases, all of which she denied. The impeachment

followed a series of rulings against the Government by the Supreme Court of

Sri Lanka including one against a bill proposed by a Minister, namely, Basil
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Rajapaksa, President Rajapaksas brother. Bandaranayake was replaced as

Chief Justice by former Attorney General Mohan Peiris. Bandaranayake

refused to recognize the impeachment process and the lawyers refused to

work with the new Chief Justice. Bandaranayakes controversial

impeachment drew much criticism and concern from within and outside Sri

Lanka. On 28th January, 2015, she was reinstated on the ground that her

2013 impeachment was unlawful and as such the appointment of Mohan

Peiris, her successor-in-office, was void ab initio. On the following day (29th

January, 2015), she retired from the office of the Chief Justice of Sri Lanka.

[See the report of the International Bar Associations Human Rights

Institute, namely, A Crisis of Legitimacy: The Impeachment of Chief

Justice Bandaranayake and the Erosion of the Rule of Law in Sri Lanka]

Needless to say, we may experience a similar situation in Bangladesh on

account of enactment of the Sixteenth Amendment.

I have already adverted to the case of Mrs. Sarojini

RamaswamiVsUnion of India and others, AIR 1992 SC 2219 reminding

us that in Indian jurisdiction, in spite of a finding of guilt by a Committee

formed under the Judges (Inquiry) Act, 1968 against V. Ramaswami J, the

then Chief Justice of Punjab and Haryana High Court, he could not be

removed from office because of not having the required votes in Lok Sabha

as the Members of Congress (a political party) were absent therein. This

situation may also happen in Bangladesh jurisdiction and this has been

emphatically asserted by Mr. Manzill Murshid.

The 1988 Malaysian constitutional crisis (also known as the 1988

judicial crisis) was a series of events that began with the United Malays
 134

National Organization (UMNO) party elections in 1987 and ended with the

suspension and eventual removal of the Lord President of the Supreme

Court, Tun Mohamed Salleh Abas, from his seat. The Supreme Court in the

years leading up to 1988 had been increasingly independent of the other

branches of the Government. Matters thereafter came to a head when

Mahathir Mohamed, who believed in the supremacy of the Executive and

Legislative branches, became the Prime Minster of Malaysia. Many saw his

eventual sacking of Salleh Abas and two other Supreme Court Judges as the

ignominious obliteration of judicial independence in Malaysia, and

Mahathirs action was condemned by all quarters. [See the report of a

Mission on behalf of the International Bar Association, the ICJ Center for

the Independence of Judges and Lawyers, the Commonwealth Lawyers

Association and the Union Internationale Des Avocats, namely, Justice In

Jeopardy: Malaysia 2000] This type of situation can not be brushed aside in

our jurisdiction keeping the Sixteenth Amendment in place.

Dr. Kamal Hossain, as stated earlier, was the Chairman of the

Constitution Drafting Committee formed immediately after the liberation of

Bangladesh. Mr. M. Amir-ul Islam was one of the eminent Members of that

Committee. It is a great fortune for us that those two jurists are still alive and

we have had the opportunity of having their able assistance as Amici Curiae

in coming to the right decision in this case.

Both Dr. Kamal Hossain and Mr. M. Amir-ul Islam are of the opinion

that in the post-liberation period of Bangladesh, the Members of the

Constitution Drafting Committee were less experienced and with the passage

of time, they have become more experienced in constitutional matters and in

 135

the ways of the world. Now they realize that they should not have entrusted

the task of removal of the Judges of the Supreme Court of Bangladesh to the

Legislature, regard being had to the prevalent political culture and socio-

political scenario of the country.

However, I find substance in the argument of Mr. M. Amir-ul Islam

that the force of law is not logic; but experience and experience is the best

teacher and guide of a person. Because of their maturity, experience and

expertise in constitutional law, both Dr. Kamal Hossain and Mr. M. Amir-ul

Islam now hold the view that the Parliamentary removal mechanism of

Judges is unsuitable, outdated, obsolete and violative of the independence of

the higher Judiciary in Bangladesh.

I am in complete agreement with the argument of Mr. M. Amir-ul

Islam that the historical perspective together with our experience and

judicial observations in various cases, namely, Masdar Hossains Case, Fifth

Amendment Case, Eighth Amendment Case etc. militate against the

Sixteenth Amendment and by that reason, the homecoming of the original

Article 96 of the Constitution, as Mr. M. Amir-ul Islam puts it, is not a

plausible argument.

By the Sixteenth Amendment, in effect, the power of judging the

Judges of the Supreme Court of Bangladesh has been given to the

Parliament. The power of judging is, no doubt, a judicial power. This

judicial power should not have been given to the Parliament, a separate

organ of the State.

The stark reality of our country and the principle of independence of

the Judiciary dictate that a Judge should be tried by his peers for his alleged
 136

misbehaviour or incapacity. In this respect, I absolutely agree with Mr.

Rokanuddin Mahmud that the Chief Justice-led Supreme Judicial Council is

the best disciplinary body for the Judges of the Supreme Court of

Bangladesh. As the Chief Justice-led Supreme Judicial Council is composed

of Judges, the people will not nourish any suspicion about any proceedings

taken against a delinquent Judge of the Supreme Court. What is of signal

importance is that the removal mechanism of the Judges of the Supreme

Court through the Chief Justice-led Supreme Judicial Council had been in

place for about 37(thirty-seven) years in this country and the people

accepted it by their acquiescence. Even the Parliament admittedly endorsed

the Chief Justice-led Supreme Judicial Council and incorporated the

provisions relating thereto in Article 96 of the Constitution through the

Fifteenth Amendment of the Constitution, despite knocking down of the

Fifth Amendment as void and ultra vires the Constitution finally by the

Appellate Division. Assuming for the sake of argument that the Supreme

Judicial Council system is not beyond reproach, in that event, the same may

be reformed by upholding the principles of independence of the Judiciary

and separation of powers.

Judicial independence has been called the lifeblood of

constitutionalism in democratic societies (BeauregardVsCanada,

[1986] 2 S.C. R. 56) and has been said to exist for the benefit of the judged,

not the judges (EllVsAlberta, [2003] 1 S.C.R. 857). We ought not to be

oblivious of these dicta of the Canadian Supreme Court.

Undeniably, there are two dimensions of judicial independence, one

individual and the other institutional. The individual dimension relates to the
 137

independence of a particular Judge. The institutional dimension relates to the

independence of the Court. Both the dimensions depend upon some

objective standards that protect the Judiciarys role. The Judiciary must both

be and be seen to be independent. Public confidence hinges upon both these

requirements being met. Judicial independence serves not as an end in itself,

but as a means to safeguard our constitutional order and to maintain public

confidence in the administration of justice.

The three core characteristics of judicial independence are security of

tenure, financial security and administrative independence which have

emerged from the various decisions referred to above. However, the

guarantee of security of tenure may have a collective or institutional

dimension, such that only a body composed of Judges may recommend the

removal of a Judge. The Sixteenth Amendment, to my mind, has affected the

security of tenure of the Judges of the Supreme Court of Bangladesh, a core

characteristic of judicial independence.

It transpires that Mr. Ajmalul Hossain has correctly submitted that the

institutional independence of the Judiciary reflects a deeper commitment to

the separation of powers among the Executive, Legislative and Judicial

organs of the State and although judicial independence had historically

developed as a bulwark against the abuse of executive power, it equally

applies against other potential intrusions, including any from the Legislative

branch as a result of legislation. In a nutshell, the Judiciary must guard

against any abuse of executive power and any legislative intrusion upon

itself as a result of legislation. In the light of the discussions made above and

in the facts and circumstances of the case and having regard to the socio-
 138

political conditions and political culture of Bangladesh, I feel constrained to

hold that the Sixteenth Amendment is an intrusion upon the independence of

the Judiciary from the Legislative organ of the State. So this intrusion can

not be countenanced in the least.

Judicial independence flows as a consequence of separation of

powers. This independence also operates to insulate the Courts from

interference by the parties to litigations and the public generally. Our

experience shows that a vast majority Members of Parliament have criminal

records and are involved in civil litigations too. But by dint of the Sixteenth

Amendment, they have become the virtual bosses of the Judges of the higher

Judiciary posing a threat to their independence in the discharge of judicial

functions. This situation also drives home the point that there may be a

conflict of interest of those Members of Parliament by reason of the

Sixteenth Amendment.

A very pertinent question has been raised by Mr. Ajmalul Hossain as

to whether the Sixteenth Amendment has advanced public interest or

defeated it. My answer to this question is that the Sixteenth Amendment has

singularly defeated public interest in view of the observations made by the

Canadian Supreme Court in paragraph 23 of the decision in the case of

Ell...VsAlberta, [2003] 1 S.C.R 857 which are as follows:

23. Accordingly, the judiciarys role as

arbiter of disputes and guardian of the

Constitution require that it be independent

from all other bodies. A separate, but

related, basis for independence is the need to

 139

uphold public confidence in the

administration of justice. Confidence in our

system of justice requires a healthy

perception of judicial independence to be

maintained amongst the citizenry. Without

the perception of independence, the

Judiciary is unable to claim any legitimacy

or command the respect and acceptance that

are essential to it. See MackinVsNew

Brunswick (Minister of Finance), [2002] 1

S. C. R. 405, 2002 SCC 13, at paragraph 38,

per Gonthier J. The principle requires the

Judiciary to be independent both in fact and

perception.

I see eye to eye with the above-mentioned observations of the Canadian

Supreme Court.

Reverting to Bangladesh jurisdiction, a billion-dollar question has

arisen: whether the Sixteenth Amendment has infringed upon the

independence of the Judiciary in public perception? My answer is obviously

in the affirmative. In public perception, the independence of the Judiciary

has been curbed by the Sixteenth Amendment. We must attach topmost

importance to public perception when it comes to the question of

independence of the Judiciary. If according to public perception, the

Judiciary is not independent, then it can not be sustained at all. Sustenance

of an independent Judiciary is a must for rule of law and nourishment of

 140

democratic values in a democratic polity. The principle of independence of

the Judiciary as held by the Canadian Supreme Court exists for the benefit of

the judged and not the Judges and I also hold so. If the Judiciary fails

because of adverse public perception about its independence, then the

constitutional order will fall apart like a House of Cards.

As Professor Shetreet has written (in Judicial Independence: New

Conceptual Dimensions and Contemporary Challenges, in S. Shetreet and

J. Deschenes, eds., Judicial Independence: The Contemporary Debate

(1985), 590, at page 599):

Independence of the Judiciary implies not

only that a Judge should be free from

executive or legislative encroachment and

from political pressures and entanglements,

but also that he should be removed from

financial or business entanglement likely to

affect or rather to seem to affect him in the

exercise of his judicial functions.

I find substance in the submission of Mr. Manzill Murshid that

through the Sixteenth Amendment, the power of removal of the Judges of

the Supreme Court has been shifted to the Legislature which is a separate

independent organ of the State in the scheme of the Constitution and by this

amendment, a sort of situation has been created to dominate the higher

Judiciary in an indirect manner which will ultimately affect the justice-

seekers and this indirect control of the higher Judiciary by the Legislature is

contrary to the principles of independence of the Judiciary and rule of law.

 141

I think, Mr. Manzill Murshid, on the basis of his practical wisdom, has

rightly submitted that the primary objective of the Sixteenth Amendment is

to destroy the principle of independence of the Judiciary and to make the

Judiciary subservient to the Executive through the Legislature and that being

so, the Sixteenth Amendment is a vicious blow to the independence of the

Judiciary.

The Judiciary is an institution of the highest value in the society. The

independence of the Judge is indispensable to impartial justice under the

law. It is indivisible. All institutions and authorities, whether national or

international, must respect, protect and defend that independence. The view

of the Appellate Division about the independence of the Judiciary in the

Fifth Amendment Case was couched in the following terms in paragraph

232:

232. It also appears that the provision of

Article 96 as existed in the Constitution on

August 15, 1975 provided that a Judge of

the Supreme Court of Bangladesh may be

removed from the office by the President on

the ground of misbehaviour or incapacity.

However, clauses (2), (3), (4), (5), (6) and

(7) of Article 96 were substituted by the

Second Proclamation (Tenth Amendment)

Order, 1977 providing the procedure for

removal of a Judge of the Supreme Court of

Bangladesh by the Supreme Judicial Council

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in the manner provided therein instead of

earlier method of removal. The substituted

provisions being more transparent procedure

than that of the earlier ones and also

safeguarding independence of judiciary, are

to be condoned.

So it is obvious that according to the Appellate Division, the provisions

relating to the Supreme Judicial Council are more transparent in

safeguarding the independence of the Judiciary. By the way, it may be

pointed out that in Civil Review Petition Nos. 17-18 of 2011, the Appellate

Division did not change its stance vis--vis the Supreme Judicial Council as

articulated in paragraph 232 of the decision in the Fifth Amendment Case,

though it condoned the provisions pertaining thereto provisionally till 31st

December, 2012. Furthermore, it is an indisputable fact that the Sixteenth

Amendment was not enacted within the given time-frame of 31st December,

2012. Rather the House of the Nation, as discussed earlier, endorsed the

provisions relating to the Supreme Judicial Council and incorporated the

same in Article 96 through the Fifteenth Amendment of the Constitution in

2011. Thereafter all of a sudden, the Sixteenth Amendment was passed in

2014 to the astonishment of all concerned.

As per Article 112 of the Constitution, all authorities, whether

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

Accordingly the Supreme Judicial Council was maintained in Article 96

through the Fifteenth Amendment of the Constitution. But subsequently

without any apparent cause, the political executives made a volte-face and
 143

got the Sixteenth Amendment passed on the strength of their more than two-

thirds majority in the Parliament without sufficiently reflecting upon the

infringement of the independence of the Judiciary and its probable disastrous

consequences undermining the confidence of the people in the

administration of justice.

The respondent no. 1 has filed a Supplementary Affidavit-in-

Opposition annexing a copy of the draft bill of a law purported to have been

made pursuant to Article 96(3) of the Constitution as amended by the

Sixteenth Amendment. Although this is a draft bill, yet I feel inclined to

refer to it. By making a reference thereto, we may gauge the intention of the

political executives behind making the draft bill. This draft bill has been

approved by the Cabinet in principle very recently as reported in the press. It

appears from the draft bill that on receipt of a complaint about the

misbehaviour or incapacity of a Judge of the Supreme Court from any

person, the Speaker shall form a Ten-Member Committee from amongst the

Members of Parliament and that Ten-Member Committee will ascertain the

prima facie truth or otherwise of the complaint. So it is seen that a Ten-

Member Committee of the Members of Parliament will hold a preliminary

enquiry into the complaint lodged against any Judge of the Supreme Court.

Does this conform to the principle of the independence of the Judiciary? The

answer is 100% in the negative. Furthermore, not a single sitting Judge of

the Supreme Court has been made a Member of the Three-Member

Investigation Committee. To me, this is very stunning, mind-boggling and

astounding. Anyway, the impairment of the independence of the Judiciary

by the Sixteenth Amendment stands corroborated by the draft bill.

 144

The main submission of both Mr. Mahbubey Alam and Mr. Murad

Reza is that by the Sixteenth Amendment, Article 96 of the original

Constitution has been restored with a view to establishing the sovereignty of

the people as per Article 7 of the Constitution. The powers of the people,

according to them, have been reflected in Articles 52, 57, 74 and 96 of the

original Constitution relating to impeachment of the President, resignation of

the Prime Minister, removal of the Speaker and a Judge of the Supreme

Court by resolutions of Parliament respectively. Both Mr. Mahbubey Alam

and Mr. Murad Reza are of the view that although the provisions of Articles

52, 57 and 74 of the Constitution have remained unchanged, the military

ruler General Ziaur Rahman introduced the procedure of removal of a Judge

by the Supreme Judicial Council which is against the spirit of Article 7 of

the Constitution.

It has already been stated earlier that nowhere in our Constitution

there is a provision to the effect that the Judiciary shall be responsible or

accountable to the Parliament. However, assuming for the sake of argument

that the Judges are accountable to the people, that accountability may be

rendered to their appointing authority, that is to say, the President of the

Republic. The office of the President is an elective office and he is elected

by the Members of Parliament according to law. In that sense, he represents

the people. He is also the Head of the State. In my opinion, the poking of the

nose of the Parliament into the removal process of the Judges of the

Supreme Court by virtue of the Sixteenth Amendment is violative of the

doctrine of separation of powers among the 3(three) organs of the State. It

may be reiterated that independence of the Judiciary is an essential element

 145

of the rule of law. The rule of law will certainly get a serious jolt by the

Sixteenth Amendment. In fact, the Sixteenth Amendment is hanging like a

Sword of Damocles over the heads of the Judges of the Supreme Court of

Bangladesh threatening their independence in the discharge of their judicial

functions. So the Sword of Damocles must be removed by this Court.

It is true that the provisions of Article 96 of the Constitution as framed

by the Constituent Assembly were restored (as is often called) by the

Sixteenth Amendment. But by the same token, it should be borne in mind

that this Article (Article 96) as framed by the Constituent Assembly lost its

original identity and character with the enactment of the Constitution

(Fourth Amendment) Act, 1975. In the present case, we are not examining

the constitutionality of the Fourth Amendment of the Constitution which,

inter alia, took away the Parliaments power of the removal of the Judges of

the Supreme Court and vested the same absolutely in the hands of the

President. Anyway, it may be reiterated that in the Fifth Amendment Case,

the Appellate Division condoned the provisions relating to the Supreme

Judicial Council and our Parliament accepted and incorporated the same in

Article 96 through the Constitution (Fifteenth Amendment) Act, 2011. So

after passing of the Constitution (Fifteenth Amendment) Act, 2011 by the

Legislature, the Chief Justice-led Supreme Judicial Council can not be

stigmatized as a legacy of the Martial Law regime of General Ziaur Rahman.

Although in common parlance, it is said that the provisions of Article

96 as framed by the Constituent Assembly have been restored through the

Sixteenth Amendment; but there is no such expression as any provision

may be amended by way of restoration in Article 142(a) of the Constitution.

 146

Article 142(a) of the Constitution provides that notwithstanding anything

contained in the Constitution, any provision thereof may be amended by way

of addition, alteration, substitution or repeal by Act of Parliament. The

petitioners have challenged the constitutionality of the substituted provisions

of Article 96 brought about by the Sixteenth Amendment, no matter whether

they were in the original Constitution of 1972 or not. That is immaterial.

Over and above, the socio-political scenario of the country has changed

tremendously since 1972. The Constitution is for the people. So it should

meet the needs and expectations of the people and the requirements of the

society. As the Sixteenth Amendment has facilitated the political executives

to control the Judiciary through the Legislature, it has, of necessity, affected

two basic structures of the Constitution, namely, separation of powers and

independence of the Judiciary. This being the panorama, the Sixteenth

Amendment is subject to judicial review. So the contention of both Mr.

Mahbubey Alam and Mr. Murad Reza that the Sixteenth Amendment is not

judicially reviewable stands jettisoned.

It has been reported by the press that about 70% of the Members of

Parliament in Bangladesh are businessmen. Both Mr. Mahbubey Alam and

Mr. Murad Reza do not dispute this figure. That being so, our experience

shows that they are less interested in Parliamentary debates in the matter of

lawmaking. Consequently now-a-days most of the laws passed by the

Parliament are found to be flawed, defective and of low standard. Instead of

seriously performing their job of lawmaking, the Members of Parliament

have become interested in getting themselves involved with the process of

removal of the Judges of the Supreme Court on the strength of the Sixteenth
 147

Amendment. It is not the job of the lawmakers to judge the Judges of the

Supreme Court of Bangladesh for their misbehaviour or incapacity. In this

respect, the Sixteenth Amendment has vested the judicial power in the

Parliament as argued by Mr. M. Amir-ul Islam and I also think so.

In the case of Belgaum Gardeners Cooperative Production Supply

and Sale Society LtdVs...State of Karnataka, 1993 Supp (1) SCC 96, it was

observed in paragraph 76:

76. The principle which emerges from

these authorities is that the Legislature can

change the basis on which a decision is

given by the Court and thus change the law

in general, which will affect a class of

persons and events at large. It can not,

however, set aside an individual decision

inter parties and affect their rights and

liabilities alone. Such an act on the part of

the Legislature amounts to exercising the

judicial power of the State and to

functioning as an appellate court or

tribunal.

In the case of Peoples Union For Civil Liberties (PUCL) and

another...Vs...Union of India and another, (2003) 4 SCC 399, it was held in

paragraph 37:

37. For the purpose of deciding these petitions,

the principles emerging from various decisions

 148

rendered by this Court from time to time can, inter

alia, be summarized thus:

the Legislature can change the

basis on which a decision is rendered

by this Court and change the law in

general. However, this power can be

exercised subject to constitutional

provision, particularly, legislative

competence and if it is violative of

fundamental rights enshrined in Part

III of the Constitution, such law

would be void as provided under

Article 13 of the Constitution. The

Legislature also can not declare any

decision of a court of law to be void

or of no effect.

From the above decisions of the Indian Supreme Court, I am led to

hold that the Legislature can not expressly or impliedly declare the judgment

passed by the Appellate Division in the Fifth Amendment Case to be void or

of no effect pertaining to the condonation of the provisions about the Chief

Justice-led Supreme Judicial Council through the Sixteenth Amendment.

What is of paramount importance is that the judgment of the Appellate

Division in the Fifth Amendment Case, so far as it relates to the Supreme

Judicial Council, was implemented through the Fifteenth Amendment of the

Constitution.
 149

To all its intents and purposes, the Sixteenth Amendment has made

the Members of Parliament the Judges of the Judges of the Supreme Court of

Bangladesh. The usurpation of this judicial power by the Legislature has

contravened the theory of separation of powers among the three organs of

the State.

It is undisputed that the original Article 96 of the Constitution was

supplanted by the Parliament by virtue of its amendatory power under

Article 142 of the Constitution by the Fifteenth Amendment. With coming

into force of the Fifteenth Amendment in 2011, the basic structure with

regard to the independence of the Judiciary got a new dimension and added

significance and stood fortified.

Federalist Paper No. 78 is an essay by Alexander Hamilton. This is

regarded as a foundation text of constitutional interpretation. Of all the

essays, Federalist Paper No. 78 is the most cited by the Judges of the United

States Supreme Court.

Federalist Paper No. 78 describes the process of judicial review, in

which the Federal Courts review statutes to determine whether they are

consistent with the Constitution and its statutes. It also indicates that under

the Constitution, the Legislature is not the judge of the constitutionality of its

own actions. Rather, it is the responsibility of the Federal Courts to protect

the people by restraining the Legislature from acting inconsistently with the

Constitution:

If it be said that the legislative bodies are

themselves the constitutional judges of their

own powers, and that the construction they

 150

put upon them is conclusive upon the other

departments, it may be answered, that this

can not be the natural presumption, where it

is not to be collected from any particular

provisions in the Constitution. It is not

otherwise to be supposed, that the

Constitution could intend to enable the

representatives of the people to substitute

their will to that of their constituents. It is far

more rational to suppose, that the courts

were designed to be an intermediate body

between the people and the legislature, in

order, among other things, to keep the latter

within the limits assigned to their authority.

In Modern Political Constitutions: An Introduction to the

Comparative Study of their History and Existing Form by C. F. Strong, it

has been mentioned at page 236:

But it is not this distinction that the theory

of the separation of powers points. The

application of the theory means not only that

the executive shall not be the same body as

the legislature but that these two bodies shall

be isolated from each other, so that the one

shall not control the other. Any state which

has adopted and maintained this doctrine in

 151

practice in its full force has an executive

beyond the control of the legislature. Such

an executive we call non-parliamentary or

fixed. This type of executive still exists in

the United States, whose Constitution has

not been altered in this particular since its

inception. But France, which, as we have

said, applied the doctrine in its first

Constitutions born of the Revolution, later

adopted the British executive system, and

this feature appeared in the Constitutions of

the Third and Fourth Republics, and again,

though greatly modified, in that of the Fifth

Republic. The system is one in which a

cabinet of ministers is dependent for its

existence on the legislature of which it is a

part, the members of the executive being

also members of the legislature.

But in our constitutional scheme, the Prime Minister is the Leader of the

House and the political executives are also Members of Parliament. So in

Bangladesh perspective, the Legislature always tends to be under the thumb

of the Executive.

The Supreme Court of India is widely known for its active and

pragmatic role in maintaining smooth functioning of the constitutional

journey of India against the Executive and/or Legislative transgression.

 152

Since its inception in 1950, the Supreme Court through its various orders,

judgments and advisory opinions, has been vigilant in keeping the

constitutional journey of India on the right track. The judgment in the case

of the Supreme Court Advocates-on-Record-Association and

another...Vs...Union of India [Ninety-Ninth Amendment Case] is a glaring

example in this respect.

The Parliament of India passed the Ninety-Ninth Amendment Act,

2014 which came into force on 13th April, 2015. The Ninety-Ninth

Amendment Act, 2014 empowers the Parliament to make laws for the

regulation of the selection and appointment procedure of Judges in the

Supreme Court and High Courts. In exercising this power, the Parliament

passed the National Judicial Appointments Commission Act, 2014 (NJAC

Act, 2014) which also came into effect on 13th April, 2015. The Ninety-

Ninth Amendment Act, 2014 and the NJAC Act, 2014 form the subject

matter of challenge in the case of the Supreme Court Advocates-on-Record-

Association and another...Vs...Union of India (2015).

The Supreme Court opines that in its attempt to replace the collegium

system, the Parliament first makes some textual changes in Article 124 of

the Constitution by replacing the consultation clause with the Chief Justice

of India by the impugned NJAC. The textual changes may be noticed as

under:

Pre-amendment Post-amendment

124. Establishment and Constitution 124. Establishment and Constitution

of Supreme Court. (1) There shall of Supreme Court. (1) There shall
 153

be a Supreme Court of India be a Supreme Court of India

consisting of a Chief Justice of consisting of a Chief Justice of

India and, until Parliament by law India and, until Parliament by law

prescribes a larger number, of not prescribes a larger number, of not

more than seven other Judges. more than seven other Judges.

2) Every Judge of the Supreme (2) Every Judge of the Supreme

Court shall be appointed by the Court shall be appointed by the

President by warrant under his hand President by warrant under his hand

and seal after consultation with such and seal on the recommendation of

of the Judges of the Supreme Court the National Judicial Appointments

and of the High Courts in the States Commission referred to in Article

as the President may deem 124A and shall hold office until he

necessary for the purpose and shall attains the age of sixty-five years:

hold office until he attains the age

of sixty-five years:

Provided that in the case of Omitted

appointment of a Judge other than

the Chief Justice, the Chief Justice

of India shall always be consulted:

Provided further that- (a) a Judge Provided that- (a) a Judge may, by

may, by writing under his hand writing under his hand addressed to

addressed to the President, resign the President, resign his office;

his office; (b) a Judge may be removed from

(b) a Judge may be removed from his office in the manner provided in
 154

his office in the manner provided in clause (4).

clause (4).

Thus it is apparent from the above Table that the Ninety-Ninth

Amendment introduces the NJAC under Article 124A replacing the

collegium system. The Supreme Court of India takes into account the

provisions of newly-inserted Article 124A which deals with the composition

of the NJAC. After examining the provisions in this regard, the Supreme

Court finds that in the six members of the NJAC, the Judiciary has got only

three members. The Supreme Court observes that the NJAC does not make a

proper and adequate representation from the Judiciary to ensure primacy in

the process of appointment and transfer of Judges in the higher Judiciary.

Thereby it makes a striking blow at the basic structure of the independence

of the judiciary. Then the Supreme Court looks into the inclusion of the

Union Minister for Law and Justice in the structure of the NJAC. Referring

to many scholarly presentations from different corners of the world on the

issue of reciprocity, the Supreme Court reveals that the inclusion of the

Union Minister for Law and Justice in the NJAC is nothing but a direct

involvement of the executive branch of the Government of India. In the

findings of the Supreme Court, the Government of India frequently becomes

a party to cases before the higher judiciary and the Union Minister being a

representative of the Government of India, appears as party to the cases

pending before the Supreme Court or High Court(s). So a Judge, whose

name will be recommended by the NJAC at the instance of the Union

Minister for Law and Justice, will naturally be lenient to the Government on
 155

the ground that the Judge being the recipient of benefit by the said Minister

is likely to continue to feel obliged to the Government. Consequently, this

Judge will not be in a position to discharge his official duties and

responsibilities properly for being loyal to the Union Minister for Law and

Justice. In another sense, with his inclusion in the structure of the NJAC,

participation of the executive in the selection and appointment process will

increase alarmingly in India, though efforts are being made to lower down

executive participation to zero level across the globe.

Then the Supreme Court advances to check the constitutionality of the

provisions regarding the inclusion of two eminent members in the structure

of the NJAC and unearths the fact that the NJAC Act, 2014 does not make

clear the eligibility criteria for their inclusion. More pathetically, the opinion

of the Attorney General for India differs with that of the counsel

representing the State of Maharashtra as the former asserts that they will be

persons having no background in law while the latter argues they will be

persons having background in law. In case, they are chosen from non-law

background segment, how it will be possible for them to insulate inputs in

the Judiciary is not clear to the Supreme Court. More importantly, the NJAC

Act, 2014 virtually equips the two eminent members of the NJAC as this Act

provides that a recommendation fails if any two members of the NJAC do

not agree with the name proposed to be recommended. This veto power in

any two members of the NJAC will adversely impact upon the primacy

ingrained in the Judiciary in the matter of selection and appointment of

Judges in the higher Judiciary and their transfer from one High Court to

another. Hence, according to the Supreme Court, it violates the

 156

independence of the Judiciary amounting to a breach of the basic structure of

the Constitution and therefore the Supreme Court declares it ultra vires the

Constitution.

Under the NJAC Act, 2014, the Secretary to the Government of India

is made the convener of the NJAC and the Supreme Court declares his

inclusion as the convener of the meetings of the NJAC ultra vires and on the

same ground, the Supreme Court also declares the inclusion of the Union

Minister for Law and Justice ultra vires. The Supreme Court avoids

examining every single provision of the NJAC Act, 2014 from legal

perspective on the ground that since the impugned Ninety-Ninth

Amendment of the Constitution becomes unsustainable in law, the NJAC

Act, 2014 which is enacted under the authority of it, is also liable to be

declared a nullity and void. Consequently, the Supreme Court strikes down

the Ninety-Ninth Amendment of the Constitution and the NJAC Act, 2014

on the ground that the impugned Amendment and the Act are violative of

and contradictory to the concept of independence of the Judiciary. Then the

Supreme Court issues its ruling on the effect of striking down the impugned

Ninety-Ninth Amendment and the NJAC Act, 2014. The Supreme Court

holds that the legal position postulated in the Koteswar Vittal

Kamath...Vs...K. Rangappa Baliga ((1969) 1 SCC 255) is applicable only

when a new system substitutes the old one. In the present case, the Ninety-

Ninth Amendment introduces completely a new system replacing the

collegium system in the process of selection and appointment of Judges in

the Supreme Court and High Courts and transfer of a Judge from one High
 157

Court to another. As a consequence, the original provisions of the

Constitution will stand automatically revived.

Independence of the Judiciary is an inseparable component of the

concept of separation of powers which is one of the most vital components

of a democratic society. However, independence of the Judiciary is a

concept that has no in-built mechanism to remain operative in a country

uninterruptedly; rather is has to face numerous challenges on its way. It is

the Judiciary upon which the duty of upholding its independence rests

through ages. In this respect, selection and appointment of Judges in the

higher Judiciary are a significant factor. It is the fundamental element of the

independence of the Judiciary that its members must be free from fear or

pressure from any quarters in their efforts to discharge their responsibilities

as such. In this context, efforts have been ventured to make the Judiciary

free of executive influence, particularly in the matter of selection and

appointments. In different countries, mechanisms are being adopted to lower

down executive participation the process of selection and appointment of

Judges to zero level, though their Constitutions do not specifically provide

for strict separation of the Judiciary from the Executive. In the context of

India, though Article 50 of the Constitution provides for the separation of the

Judiciary from the Executive, the impugned Ninety-Ninth Amendment Act

and the NJAC Act, 2014 through introducing the NJAC replacing the

collegium system of appointment of Judges in the higher Judiciary of India,

have widened the door of executive participation in the matter of selection

and appointment of Judges. This goes against the concept of independence

of the Judiciary. The Supreme Court of India endorses the power of Indian
 158

Parliament to bring any amendment to the Constitution of India, but that

must be by maintaining the attributes of basic structure or separation of

power or independence of judiciary test.

It will be profitable for me if I quote some of the paragraphs of the

decision dated 16th October, 2015 rendered by the Indian Supreme Court in

the case of the Supreme Court Advocates-on-Record-Association and

another...VsUnion of India in Writ Petition (Civil) No. 13 of 2015 along

with other Writ Petitions which was downloaded from the Internet. In that

case, it was spelt out, inter alia, in paragraph 146:

146. The scope of judicial review with

reference to a constitutional amendment

and/or an ordinary legislation, whether

enacted by the Parliament or a State

Legislature, can not vary, so as to adopt

different standards, by taking into

consideration the strength of the Members of

the concerned legislature, which had

approved and passed the concerned Bill. If a

constitutional amendment breaches the

core of the Constitution or destroys its

basic or essential features in a manner

which was patently unconstitutional, it

would have crossed over forbidden territory.

This aspect would undoubtedly fall within

the realm of judicial review. In the above

 159

view of the matter, it is imperative to hold

that the impugned constitutional

amendment, as also, the NJAC Act, would

be subject to judicial review on the

touchstone of the basic structure of the

Constitution, and the parameters laid down

by this Court in that behalf, even though the

impugned constitutional amendment may

have been approved and passed

unanimously or by an overwhelming

majority, and notwithstanding the

ratification thereof by as many as twenty-

eight State Assemblies.

It was further spelt out in that case in paragraph 168:

168. We are of the view that consequent

upon the participation of the Union Minster

in charge of Law and Justice, a Judge

approved for appointment with the Minsters

support, may not be able to resist or repulse

a plea of conflict of interest, raised by a

litigant, in a matter when the executive has

an adversarial role. In the NJAC, the Union

Minster in charge of Law and Justice would

be a party to all final selections and

appointments of Judges to the higher

 160

judiciary. It may be difficult for Judges

approved by the NJAC, to resist a plea of

conflict of interest (if such a plea was to be

raised, and pressed), where the political-

executive is a party to the lis. The above

would have the inevitable effect of

undermining the independence of the

judiciary, even where such a plea is

repulsed. Therefore, the role assigned to the

political-executive, can at best be limited to

a collaborative participation, excluding any

role in the final determination. Therefore,

merely the participation of the Union

Minster in charge of Law and Justice in the

final process of selection, as an ex-officio

Member of the NJAC would render the

amended provision of Article 124A(1)(c) as

ultra vires the Constitution, as it impinges on

the principles of independence of

judiciary and separation of powers.

It was also observed in that case in paragraph 243:

243. It was additionally submitted that it

was imperative to exclude all executive

participation in the proceedings of the NJAC

for two reasons. Firstly, the executive was

 161

the largest individual litigant, in matters

pending before the higher judiciary, and

therefore, can not have any discretionary

role in the process of selection and

appointment of Judges to the higher

judiciary (in the manner expressed in the

preceding paragraph). And secondly, the

same would undermine the concepts of

separation of powers and independence

of the judiciary, whereunder the judiciary

has to be shielded from any possible

interference, either from the executive or

from the legislature.

After making in-depth discussions of the various provisions of the

Indian Constitution, the Indian Supreme Court struck down the Constitution

(Ninety-Ninth Amendment) Act, 2014 and the National Judicial

Appointments Commission Act, 2014 as being unconstitutional on the

ground of violation of the principles of separation of powers and

independence of the Judiciary, two basic structures of the Constitution and

revived the collegium system of appointment of Judges to the higher

Judiciary of India.

In our jurisdiction, the involvement of the Members of Parliament

including political executives in the removal process of the Judges of the

Supreme Court of Bangladesh on the basis of the Sixteenth Amendment, to

be sure, goes against the concepts of independence of the Judiciary and

 162

separation of powers, though this system is in place in some jurisdictions of

the world.

The submission of Mr. Manzill Murshid that the Sixteenth

Amendment will have far-reaching demoralizing effects on the discharge of

the functions of the Chairman and Members of the Public Service

Commission, Comptroller and Auditor-General, Election Commissioners as

well as the Commissioners of the Anti-Corruption Commission in that by

virtue of this amendment, they will be removed in like manner as a Judge of

the Supreme Court as per Articles 139(2), 129(2), 118(5) of the Constitution

and Section 10(3) of the Anti-Corruption Commission Act, 2004

respectively and the Commissioners of the Anti-Corruption Commission

may not be able to act independently against the allegedly corrupt Members

of Parliament which may eventually frustrate the purpose of the Anti-

Corruption Commission Act and the Comptroller and Auditor-General may

also be self-restrained from acting independently while auditing the accounts

of the Parliament Secretariat can not be brushed aside at all in view of the

prevalent socio-political spectra of the country.

I am not impressed by the submission of Mr. Manzill Murshid that the

Sixteenth Amendment was enacted mala fide because of declaring the

Contempt of Courts Act, 2013 and an amended provision of the Anti-

Corruption Commission Act, 2004 (purporting to afford protection to the

Government officers) illegal and void and directing the concerned authority

to arrest the accused officers of law-enforcing agencies in a seven-murder

case in Narayanganj by the High Court Division. It is a settled proposition of

law that the wisdom of the Legislature in making laws can not be questioned
 163

by any Court. So in that view of the matter, even if there was some factual

background leading to the passing of the Sixteenth Amendment by the

Legislature, no ill motive or mala fide intention can be imputed thereto. In

the case of His Holiness Kesavananda Bharati Sripadagalvaru and

othersVsState of Kerala and another, AIR (1973) SC 1461, the Indian

Supreme Court held in paragraph 298:

298. It is, of course, for Parliament to

decide whether an amendment is necessary.

The Courts will not be concerned with the

wisdom of the amendment.

This being the position, the High Court Division can not hold that the

Sixteenth Amendment was passed by the Parliament with mala fide

intention.

I have already discussed that independence of the Judiciary is one of

the basic structures of the Constitution and security of tenure of Judges is

one of the core characteristics of that independence. It can, therefore, be

held that Article 96 containing provisions for removal of the Judges of the

Supreme Court of Bangladesh being an integral part of the independence of

the Judiciary as incorporated in the Constitution by the Fifteenth

Amendment is not amendable under Article 7B. To put it differently, the

Sixteenth Amendment is hit by Article 7B of the Constitution as it has

affected the independence of the Judiciary.

The independence of the Judges of the Supreme Court of Bangladesh

has been guaranteed by Article 94(4) of the Constitution. My discussions

about the impairment of the independence of the Judiciary by the Sixteenth

 164

Amendment lead me to hold that the Sixteenth Amendment is violative of

that Article [Article 94(4)].

It is admitted on all hands that the Judiciary thrives upon the

confidence of the people. As the confidence of the people in the Judiciary

has been shaken because of impairment of its independence by the Sixteenth

Amendment, the public interest will take a backseat and the people will

suffer. If the Judiciary fails in this regard, the constitutional order may

crumble to pieces. The Commonwealth Latimer House Principles, 2003

about the removal mechanism of Judges, to my way of thinking, are best

exemplified by the Chief Justice-led Supreme Judicial Council as

incorporated in Article 96 by the Fifteenth Amendment of the Constitution.

It is a correct submission on the part of Mr. Mahbubey Alam and Mr.

Murad Reza that there is a presumption of constitutionality in favour of the

Sixteenth Amendment. But that presumption of constitutionality, in my

opinion, has been rebutted to the satisfaction of this Court as is apparent

from the foregoing discussions.

From the discussions made above and in the facts and circumstances

of the case, I have no hesitation in holding that the Sixteenth Amendment is

a colourable legislation and is violative of separation of powers among the

3(three) organs of the State, namely, the Executive, the Legislature and the

Judiciary and independence of the Judiciary as guaranteed by Articles 94(4)

and 147(2), two basic structures of the Constitution and the same are also hit

by Article 7B of the Constitution. So I find merit in the Rule. The Rule,

therefore, succeeds.
 165

Accordingly, the Rule is made absolute without any order as to costs.

It is hereby declared that the Constitution (Sixteenth Amendment) Act, 2014

(Act No. 13 of 2014) (Annexure-A to the Writ Petition) is colourable, void

and ultra vires the Constitution of the Peoples Republic of Bangladesh.

However, as per Article 103(2)(a) of the Constitution, we certify that

the case involves a substantial question of law as to the interpretation of the

Constitution.

QUAZI REZA-UL HOQUE, J:

I agree.

MD. ASHRAFUL KAMAL, J:

Bj jeeu hQlfa Seh jCem Cpmj Qdl jqcul luV emj, kl p

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e fl ab ija foZ Ll Bjl eS Aija fce LlRz
kqa jeeu hQlfa jCem Cpmj Qdl A jLjl pwr OVe, Eiu frl
h BCeShNZl Hhw Amicus Curiae hcl kaL hlaih BmQe LlRe,
pqa Bj felu pph pwr OVe Hhw kaL hZe Ll qa hla bLmjz
HC lmVa k fn Efa quR a qm HC k, pwhde (osn pwnde) BCe,
2014 (2014 pel 13 ew BCe) pwhdel hdehm-pfr fZa quR Le?
A lmVa k fn Efa quR a pwhde pfLaz Bjl pLmC Se, pwhde
qm HLV ll phQ BCez 1972 pm 16C Xpl pwhde fhae qJul fl qa BS
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pwnde ab pwhde fj pwnde, pwhde pj pwnde, pwhde Aj pwnde Hhw
pwhde ucn pwndel ~hdal fn cul Ll jjm ef quRz
 166

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bL SeNZ acl fh pwhdeL BlJ hn Nilih Sea Hhw hTa flz fhae 4V
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ph jjmpjql lu AhnC hwmu fce Ll eupaz
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iol hhql pfL hm eCz pwhdel AeRc 23 jahL l SeNZl pwa Iaq J
EldLl lrZl Se hh NqZ Llhe Hhw Sau io pqa J nfLmpjql Hje
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ez
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hwm ejl k-de cnl Sj, al pwhde hwmL Lace
 167

hfL lahqz fuSeu phl hwm io fQmel chl jm

pfeV k aC pwhdel 3 AeRcC E, aa pcq foZlJ
LR eCz

hwmcn BCe pja LaL fLna EQ Bcma hwm iol hhql- fuSeua
J pjha N NS njRl lqje hme k,
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palw hwm io BCel r hhqa qh Le, p fn HLhlC
Ahlz pLm r lio hwm quC BRz
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faL flioL nL pdlZih BCel r HLVj Ab
hqe Lla quz
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phm hC hwma mMz HC LS Lla Nu Bjl eQa faa
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phSe nu eafp X. jqjc nqcq k AiioZ cuRe
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L OoZ LlRme Bjcl jaio hwm ioL fh
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 168

LE Bl HNu Bpe ez phC ke ima Q Lle La

asas ASel NlhVL L Ll im kuz gm BSJ EQal
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phl hwm iol hhql eQa Lll r Le fLa
BCe
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CwlS QQ pwhdel 35(3) AeRc hZa fLn hQll dlZl
flfz LlZ, CwlS e-Se mLl LR Nfe hQl Bl fLn hQll
fbL eCz ayL chdal ALl lMa h WLa fl k LEz AbQ
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ll Bcma hwmu efZih lul Se CeVVEVL hh ea
hmRmez
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AeR h LlR, al jd HC hde cV eCz palw hwmcnl EQ
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ah jehdLll lafZ pec qph BCpffBlHl eQu hau
OVRz Hl 14 dll 3 cgl cV Ef-cg hmR, a) To be informed
promptly and in detail in a language which he understands of
the nature and cause of the charge against him; (f) To have
the free assistance of an interpreter if he connot understand
 169

or speak the languange used in court. palw iol AdLll p

jehdLll pfL AhRcz.........
HLn ghull cn, BSaL jaiol cnl EQ Bcma ioNa
jehdLll Ahqa mOel Ahpe qLz
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hme k,
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pje fh; lio hhql e Ll Sau Bcma flliol Ahd
hhql L pwhdel mwOe, e mwOe eu? CwlS fr hmRe, pfjLV
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kpa euz acl k fll jZmu CwlS Qmuz a pfjLV eu
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aau Ab Bl BfLlz CwlS fr hmRe pwhdel 3 el AeRc-
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cJul fh kacl Se hnhwL fk cuez
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 170

na 2 Se CwlS hT ez HC ab bL Bjcl eJul Le nrC L

eC? Bjcl nrl je haje Ha k Mlf al jm LlZ Sa Nsl
BuSe eCz Bjcl Sa NsR e, NsRz hnhSl fakN qJul
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iz
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HC k ca hb qez

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LS qu, ah a SeNZl ioaC qJu EQaz...........
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qJu fuSez
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Le pqS p cJu ph euz fliou BCeQQl gm Bjl
 171

BCen ihL pqSa mi Lle, aje Le jmL AhceJ

lMa flez
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NZ hflz cnl lu hwmu mMa qh, ka elrlJ em LR
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hc cJul pfln Llez Bjl L kh e acl LR, kl d
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El fCez
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cnl p Bjcl b Ssa Hhw hZSl pfL, pph cnl
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h hC eC hmmC Qmz
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qhz
 172

27 hRl fl 1998 pml 1 jQ YLu hQl fnpe fnrZ

CeVVEVl Ede Aee avLme fdej nM qpe hme,
Bjcl fh pwhde BR, fSal pLm rjal jmL SeNZ
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HC fSal Bcmaz
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hTa flz hcncl Aphd HMe pfZ AfpLz ph pcq
elpeLf pwpcl bqe EcN eJu EQaz
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hPm Hhw hQlfbNZJ haj halL phC hPmz pLm
Bcma LaL Ooa lu hwm iou qh, HVC a ihLz
jju mLl Se HC hQlhh euz HC hQlhh cnl ph
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faedl Sau pwpc bqeih ecne e cm SeNZl
eSl iou lu nel piN qh ez.................
iol ~cejQe Hhw hwm ioL BS aL jepf pj
ioml pjLr Ll am Bjcl hs cuz pC cujQe
flnjhjM e qu eScl HLNQ ehce Llh p qh
Bjcl Se jmju J LmZLlz..............
heca Saa dwpl hcma, hwm iou Z, pel
hwml piN Hhw Caqpl cu t mmu hwmcn BS HL
de phij cnz kyl hme, ilal EQ Bcma CwlS iol
hhql Le Aphd qR e; aycl Se EQa, ila CwlSl
fb k k LlRm, p Rm al Se ANkz Bkha J
crZal HLj kNp CwlS, k R qm hSal cn ila
Ri qu ka flz Bjl pih ci heN eCz Bjcl
piN, Bjl eSl cnl phQ Bcma eSl iou ll
Aeaj phij rja hQlLk pjd Lll pkN fuRz
Ab~eaL r EMkN fh ASe pJ Bjl H cnVL
pkN qlel cn qph e Lll Se hflLlz...............
 173

EQ Bcma liol pjhal Lb e ih al fuSeual

Lb Bjcl BN iha qhz cnl Bcma k cnl SeNZl
io hhqa qR e, p a HL mLl hflz H cN a ka
asas cl qu, al Se phaih Bjcl Q Lla qhz
Bhcm je Me hej hwmcn {64 X,Hm,Bl (HX) (2012) fa-169 fl
1148} jjmu fde hQlfa H,h,Hj, Mulm qL hme k,
HC luV hno Llu Bjcl jaio hwmu fce Ll
qCm LlZ The judicial department comes home
in its effect to every mans fire side (John
Marshall)

H fku Sal fa hh nM jShl lqje Hl LR hZ ej Ea Ll qmx

jaiol Afje LE pq Lla fl e

-hh nM jShl lqje
Bj hPm,
hwm Bjl cn,
hwm Bjl ioz
-hh nM jShl lqje

H fku hwm iol n LuLSe Lhl Lha bL Hhw hwm iol LuLSe n
pqaL Hl LR hZ ej Ea Ll qmx

Bjl jaio aal qQl, jepl cfQZL

l
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Bjl jaioz Bjl jaio hwmioz
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jN Jl hm
phl Lb Ls eh
ajl Lm u
Nf ea ch ez
hm j aCL qu?
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H iol je lMa
qu kch She ca
Ql LV iC l cu
 174

flh Hl jel Bnz

-SpjEcce
Bhm hlLa, pmj, lgLEe, Sl
L BQk, L hoZ ej! HLpl Sm ejzz
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php, hwm cn, H fbh
AhL aLu lu,
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qua jeo eu-qua h nMQm nmLl hn,
qua il LL qu HC LaLl ehl cn
Lunl hL ip HLce Bph H LyWm Ruu; .....
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dede ffil Bjcl HC hpl,
aql jT BR cn HL- pLm cnl pl;
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 175

jaiou kql n eC p jeo eqz

-jl jnllg qpe
kyql hwmcn hwmioL Rsu Lwh hwml
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fajM i Bl LRC je Lla fl ez
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jcl Nlh, jcl Bn, B jl hwm io!
ajl Lm, ajl hm, LaC n imhp!
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 176

Bm Nggl Qdl lQa LhaV, kl fbj Ru QlZ HLnl Ne qph flQa mi

LlR, a ejlfx
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pL iQk lQa cjlLhaV ej Ea qmx

qjmu bL pclhe, qWv hwmcn
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p Lmqm lll Bj fC En
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 177

qu ce eu fZ H n
pl cn cnql,
HLhl jl im NR BS
jal iu alz
php, hwmcn, H fbh
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pmj, lgL, hlLa, Sl Hhw ngEl lqjepq ASp nqcl ll heju ASa
Bjcl jaio hwm ioz fbhl Bl Le SaL al jMl io ab jul iou Lb
hml AdLll Se l ca quez aCa HLn ghull nNe jcl Nlh jcl
Bn B jl hwm io , lio hwm QC Hhw phl hwm io Qm Llz Sal
fa hh nM jShl lqje cn del fhC 1971 pml 15C ghul hwm HLXjl
HLnl Aeel Ede ioZ c L OoZ LlRme Bj OoZ LlR, Bjcl qa
kce rja Bph pce bLC cnl phl hwm io Qm qhz aCa Bjcl
pwhde lio qph dj hwml Lb hm quRz hwmcn fbhl HLj cn kl
pwhde hwmu mM quRz Bjcl jeeu fdej nM qpe 1998 pml 1 jQ YLu
hQl fnpe J fnrZ CeVVEVl Ede Aee hme, Bjcl fh pwhde BR,
fSal pLm rjal jmL SeNZ Bl fSal lio hwmz pfj LVpq cnl pLm
BcmaC HC fSal Bcmaz
Efk BmQeu Cq LyQl ja flLl k, pwhde jahL NZfSa hwmcnl
l io HLj hwm ioz pwhdel AeRc 7 jahL HC pwhde fSal phQ
BCez pwhdeL fcdLl pLm h HC jj nfb fW Lle k, ae HC pwhdel lrZ,
pjbe J elf hde Llhez palw pwhdel ecne Aeku fSal pLm Lj dj
hwm iou qhz Hl Aeb Ab pwhde i Llz pwhde jahL fSal aeV hiNz
BCe hiN, ehq hiN Hhw hQl hiNz pwhde jahL Efk aeV hiNlC
HLj io hwm ioz

HMe cMh pwhde L? CwlS Constitution nVl fan qph hwmu aeV
n NWea, npea Hhw pwhde hhqa qa cM kuz ah, npea Hhw
pwhde n cV lu fkul phQ BCe Ab Hhw NWea nV lu fkul hCl
pjSL, pwaL h Ae Le pwNWel En J flQmel hde pma jm cmm Ab
 178

hhqa quz cnl phQ BCe Ab npea nV pdlZa hhql Ll quz 1972 pe
NZfloc LaL lu fkul phQ BCeL npeaHl flha pwhde ej Aiqa
Llu aMe bL npeanVl flha phSeeih pwhde nV hhql qRz
gmnaa Bjcl l flQmel cmmVL ab Constitution L npea e hm
pwhde ejLlZ Ll quRz
pwhdeL BCe h Constitutional Law hma plLl pfLa pC pLm BCeL
hTu k ll fLa, plLll dlZ, Lkhm, rja, plLll fde fde hiNl jd
rjal hVe Hhw ll pb eNlLl pfL edlZ Llz
Aristotle Hl ja pwhde qm The way of life the state has chosen for
itself.
pwhde qm ll Hje HL She fa k l uw eSl Se hR euRz
pwhdeL BCe cnl j~mL h phQ BCez Cq pLm BCel Ed e mi Ll
bLz NVml ioux
Cq ll jd phij nl Ahe r eZu Ll Hhw BCel Evpl ecn
Llz
Thomas Paine Hhw D.C. Tocquevilla Hl ja, Constitution means the
agrregate of only those written principle which regulate the administration
of the state. In the sence that, if the constitution cannot be produce in the
possible document it cannot be said to be constitution at all a written
documents which defines basic rights of the Governed and the limitation of
the government. A document which contained those rules which provides
the frame work for government.
Lord Bryee Hl ja, Constitution is the aggregate of laws and
customs under which the life of the state goes on.
K.C. Wheare, Hood Phillips Hhw Gilthrist pwhdeL hmRe The term
constitution is used to denote all written and unwritten principal
regulating the administration of state.
Professor K.C. Wheare pwhdeL hZe Lle HC ih- The whole system
of government of a country, the collection of rule which established and
regulate or governed the government.
 179

C.F. Strongs Hl ja, A constitution may be said to be a collection of

principle according to which the powers of the government, the rights of the
governed and relation between the two are adjusted.
jx Bm qmj ayl pwhde, pwhdeL BCe J lSeax hwmcn fp N
(27 fa) hme k,
pwhde qm mMa h AmMa Lam BCel pj k ll
fLa, plLll dlZ ecn Ll, plLll hi hiNl jT
rja edlZ Ll Hhw npL J npal jT pfL ecn Llz

Xx hmm qpe Su al Constitutional History of Bangladesh hC-Hl

Preface H pwhde p hme k,
A constitution can be written or unwritten, is a fundamental
document: an act of the people not only of the government; a
device of limiting the power of the government; a device to
develop and reinforce democratice process; a device of effective
implementation of Rule of Law; a social contract between the
government, society and ordinary citizens; and has effective
means of checks and balances and separation of powers; and
should grow with a growing nation amending to suit peoples
needs in changing society to achieve political stability and to
increase efficiency in public service to bring happiness,
prosperity and dignity to peoples lives.

E Preface Hl no Awn ae pwhde Hhw pwhde fZuel Caqp SeL la

cu hme k,
Finally, reshaping the theme- Constitution with its
History by Late Barister S A Siddique, I would add,
constitution with its history is the prime legal guide of a
nation. A nation without the knowledge of its own
Constitution is like a ship without a profiler and that is
bound to be lost in the currents and cross currents of the
judicial cyclone. The Constitution of Bangladesh, with
background history, supported by comments on
contemporary political crisis and leading case-laws, will
hopefully act as an educator to the law students, a trainer
to the practicing lawyers, an inspirer to the professionals, a
guide to the citizens in general and a generator of self-
confidence in general for all people of all walks of lives.
 180

pwhde Hhw pwhde fZuel Caqp qm HLV Sal jm BCeNa ecnLz pwhde
Hhw pwhde fZuel Caqp e Sel Ab qm HLV eL kl Le ~hW eCz dj
pwhde fs L Hl fZuel Caqp e Se ab Hl fZuel Caqpl pb eSL pf
e Ll Lwh E Caqp pjLlf Ba e Ll pwhdel hM Ll Aphz Abv
hwmcnl dea pwNj Hhw Hl dlhqL CaqpL ke Al dlZ Lla prj ee, ae
HC pwhdeL LMeC pWLih hM Lla flhe e ab pwhde jahL pWLih l
flQmel cL ecne ca flhe ez
HLV cnl pwhde p cnl jeol cO cel pwNj ab Ab~eaL Hhw pjSL
~~hojl hl pwNjl jdj, al kph hel Ll qu al frfV hhQe Ll, p
cnl SeNZ Hl Bn BLwMl fagme qph fZa quz faV cn al pwhde
fZueLm pwhde fhha lS~eaL OoZhm lal pb fkmQe Llz
Bjcl pwhdeL AbfZlf hTa qm Hhw Hl hM hnoZ Lla qm pwhde
fZuel fhfl lS~eaL, Ab~eaL Hhw pjSL Caqp Se lafZz hm Sa cOce
khv noZ hel hl pwNj Ll BpR ab al AdLl Bcul pwNj Ll BpRz
hwmcnl SeNZ dea pqS ASa quez Sau jl Se IaqpL pwNj Hl
jdj hm Sa dea fuRz Bjcl hl SeNZ Lam jqe BcnL pje lM
IaqpL Sau jl pwNj BaeuN Ll acl fZ EvpN LlRez pph BcnL
hTa qm Bjcl cO deal pwNjpq deal pfZ Caqp Sea qh, hTa qh
Hhw Al dlZ Lla qhz ahC pwhdel jm QaeL Aedhe Ll khz pwhdel jm
QaeL ke Al dlZ Lla hb qhe ae pwhdel im hM Lla hdz
jx lm Lp, HXiLV Nw hej hQlfa Hj H BSS Nw (28 hHmX
(HCQpX) 2008 fa 568-a jeeu fde hQlfa H, h, Hj, Mulm qL hme k,
455z Efll hZa BmQe qCa ejmMa pa
Epa qCuRx
1z pwhde qCm ~fde (heirloom) Cq hwmcn fSa
fe J Cql pLm jm hiN h p LluRz phno
fuSe halL Cqa Le flhae Beue hdu eqz
pwhde k Le dlZl flhae Bea qCm hwmcnl
deal Se kyql fZ hpSe cuRme ayqcl pq
deal pju qCa hwmcnl pLm SeNl Bn
BLM J deal jm QaeL hhQeu AhnC mCa
qChz (AdlM fc)
 181

454 flu ae BlJ hme k, ............pwhdeL fcdLl hNZl qcu

kc pwhde J BCel jjhZl (sprit) ja OV ah Le pwhde, Le BCeC cnL
pWL fb Ada lMa fl ez
Bm je Me hej hwmcn jjmu (k ucn pwnde pw jjm qph
flQa) {64 X.Hm. Bl. (HX), f-340} jeeu fde hQlfa plc Ljl peq
pwhde Hhw pwhde fZuel Caqp Sel Efl la Blf Ll hme k,
1160. It should have to be remembered that
the judiciary is not in a position to provide
solutions to each and every problem of the
state. The problem of the day which is a
burning issue has to be solved by the politicians
by using their solemn responsibility and ethos,
and not by egoism. The problem is so massive
that it can be solved on taking into
consideration the historical background of
achieving liberation, democracy and the
Constitution. They should not forget the past
history that whenever crisis comes, their
strength both moral and physical have been
generated by the mass people. While discussing
on the characteristics of the Indian
Constitution, Jennings stated All Constitutions
are the heirs of the past as well as the testators
of the future. In this context, Rowland, J of the
Federal Court in Benoarilal Sharma, 1943
FCR96 observed, I do not see why historical
facts should be excluded from the purview. Such
topics as the history of legislation and the facts
which give rise to the enactment may usefully be
employed to interpret the meaning of the
statute, though they do not afford conclusive
argument. Accordingly, for understanding the
constitutional law of a country, one must have
to refer to the laws and the principles that exist
outside the Constitution, he must acquaint with
 182

the historical background and also require to

make a brief review of the Constitutional set-up
in the preceding periods. Such historical
account would not only enable us to lay the
lessons of the past before the future, but to see
the remarkable achievement of the Constitution
against its historical background.....
1178. The moot questions involved in this
appeal are to considered in the light of the
above historical background, whether the
impugned judgment conflicts the basic feature
of the Constitution or in the alternative, such
amendment was made against the spirit of the
Constitution and the constitutional convention.
If the answer is in positive it is our duty to
express opinion as to how and why it is
unconstitutional. The Court has a special
responsibility to ensure that the Constitution
works in practice.
1179. The Proclamation of Independence
reflected the true feelings and emotions of the
people. The people took arms against the
Pakistani rulers for liberation of the country
against exploitation. This has been reflected in
the beginning of the Proclamation that there
was free elections to elect representatives for
the purpose of framing the Constitution but the
Pakistani authority declared an unjust and
treacherous war, and Sheikh Mujibur Rahman,
the undisputed leader in due fulfillment of the
legitimate right of self determination of the
people declared independence and urged the
people to defend the honour and integrity of
Bangladesh. It was also pointed out in
unequivocal terms that the will of the people is
 183

supreme and the independence was declared to

ensure the people of Bangladesh to present a
modern democratic country where equality,
human dignity and social justice will be served.
1180. The following day of Sheikh Mujibur
Rahmans return from Pakistani incarceration
the provisional Constitutional Order, 1972 was
issued on 11th January, 1972. The President of
the Republic having realised the mischief
committed by the Constituent Assembly of
Pakistan after independence in 1947 that it
failed to frame a Constitution because of
conflicting interests, ideologies, and power
struggle, did not waste a single moment and
declared that the Parliamentary form of
Government would be the basis for running the
country. Though he was sworn in as the
President of the newly born country immediate
after his return, again he was sworn in as
Prime Minister although the Constitution was
not framed and transacted the business of the
Government in a Parliamentary form in all
practical purposes during the interim period.
He constituted the Constituent Assembly with
the members of National and East Pakistan
Provisional Assemblies who were elected by the
people of East Pakistan in December, 1970 for
drafting a Constitution. The Constituent
Assembly thereupon within a short period
adopted a Constitution on 16th December, 1972.
The preamble of the Constitution reads:
We, the people of Bangladesh having
proclaimed our Independence on the 26th day of
March, 1971 and, through a historic struggle
for national liberation, established the
 184

independent, sovereign Peoples Republic of

Bangladesh.;
Pleading that the high ideals of nationalism,
socialism, democracy and secularism, which
inspired our heroic people to dedicate
themselves to, and our brave martyrs to
sacrifice their lives in, the national liberation
struggle, shall be the fundamental principles of
the Constitution;
Further pleading that it shall be a fundamental
aim of the State to realise through 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 be 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 Assembly, the eighteenth day
of Kartick, 1379 BS, corresponding to the
fourth day of November, 1972 AD, do hereby
adopt, enact and give to ourselves this
Constitution.
1181. The preamble starts with the expression
we the people of Bangladesh. The
independence of Bangladesh was achieved not
as a course but it was achieved by the people
through a historic struggle for national
liberation. The Constituent Assembly pledged
 185

that the fundamental aim of the state should be

realized through democratic process free from
exploitation a society in which the rule of law,
fundamental human rights and freedom,
equality and justice, political, economic and
social, will be secured for all citizens. The
supremacy of the Constitution was declared.
The framers of the Constitution describe the
qualitative aspects of the polity the Constitution
is designed to achieve. In this situation, the
preamble of the Constitution and in its role
cannot be relegated to the position of the
preamble of a statute.
1182. This preamble is different from other
Constitutions of the globe which reflected the
philosophy, aims and objectives of the
Constitution and describes the qualitative
aspects of the Constitution as designed to
achieve. the preamble declares in clear terms
that all powers in the Republic belong to the
people. It emphatically declares to constitute a
sovereign Peoples Republic in which
democracy with equality of status and of
opportunity of all citizens in all spheres of life
be ensured. Their exercise on behalf of the
people shall be effected only under and by the
authority of the Constitution. This preamble
speaks of representative democracy, rule of law
and the supremacy of the Constitution. The
beginning of the expressions we the people
means the machineries and the apparatus of the
Republic, that is, the Executive, the Legislature,
the Judiciary including the President and the
Cabinet, the disciplinary forces including the
army are subservient to the will of the people.
 186

They are answerable to the people for every

action taken. If this preamble is read along with
Articles 7 and 11, provisions of Parts III, IV, V
and VI, there is no denying the fact that the
sovereignty of the people, the four ideals, such
as, nationalism, socialism, democracy and
secularism which inspired the martyrs to
sacrifice their lives, the will of the people, the
rule of law, the fundamental rights of the
citizens and the parliamentary form of
Government are the main pillars of the
Constitution. The will of the people is to be
expressed through their elected representatives
in the administration at all levels.

1183. Thus, our preamble contains the clue to

the fundamentals of the Constitution and the
basic constituent of our Constitution is the
administration of the Republic through their
elected representatives. These two integral
parts of the Constitution form a basic element
which must be preserved and cannot be altered.
The Parliament has power to amend the
Constitution but such power is subject to
certain limitation which is apparent from a
reading of the preamble. The broad contours of
the basic elements and fundamental features of
the Constitution are delineated in the preamble.
. (AdlM fc)

hnl Aee pwhdel fhe qa Bjcl pwhdel fhe hajdjz Lee

Ajcl pwhdel fheu pjN pwhdel cne ab ll mr-En fagma

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ASa quRz palw Bjcl pwhdeL Hhw Hl fheL flfZih hTa qm fheu
 187

EMa Sau jl Se Bjcl k IaqpL pwNj p pfL fZ e lMa qh Hhw k

pLm jqe Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl nqcNZL
fZvpN Lla E LlRm pC pLm jqe BcnpjqL Sea qh J Al dlZ Lla
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hnoZ Hhw Hl k Le pwnde Lla qhz

pwhdel fhel fbj flu hm quR, Sau jl Se IaqpL pwNj Hhw

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pwNj BaeuN J hl nqccNL fZvpN Lla E LluRmz palw HV edu

hm ku k, pwhdel fhe kje pjN pwhdel cne, aje k pLm jqe Bcn
Bjcl hl SeNZL Sau j pwNj BaeuN Hhw fZvpN Lla E LlRm pC

pLm Bcnpjq Hhw Sau jl Se IaqpL pwNjl Caqp qm fhel cne ab

fhel Awn ab pwhdel Awnz Hl bL Le hQa Qmh ez Abv Sau j pwNjl
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fce Ll kh e h BCe fZue Ll kh ez pwhdel fhepq Sau jl Se
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pwNj BaeuN J hl nqcNZL fZvpN Lla E LlRm pC pLm jqe BcnpjqL
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fhe ab jm k fhe a qm Bjcl pwhdel jm LWjz Bjcl pwhde jmax
csu BR HC fhel Efl aC HC jm LWj ab fhel HLV n HLV cs LjJ
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l hm kh ez hwml H AmmL hm qa Sefcz
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 188

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jd cu Ee OV de LR lSlz
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BjZC fae OV mMZ pelz fmu Nu ae hjfl Bnu eez ecu Bp jpmjecl
AdLlz
ecul fl hMaul MmS 1205 pm pecl lSde mMeha AdLl Lle, ej ce mMeaz
fl chLV AdLl Ll pMe ayl lSde fe Llez Ljlf-Hl lSl pjaa aa HL
hb Aikel fl HMeC ba qe aez 1205 pm ayl ja quz hwmu uih aL npe
fal mr hMaul MmS ayl AdLli Amm LuLV fcn h Smu iN Ll jpmj
npel pQe Lle, jpmj pjS J pwa hLnl Se fe Lle AeL jpSc, jpz
hwmu aL npe
aL npLcl qaC hwmu jpmj npel pQe qu Bl HC npe fhl fbj fku Rm 1204
bL 1338 pm z H kNl npeLaclJ flfl de hm kh ez Hycl LE Rme hMaull
pqk MmS jmL, Bhl LE aL hwnl npLz cl pmaecl Ade hwml npeLa qu
HmJ Hcl jd LE LE cl hl hq Ll dea OoZ LlRmez L no fk Le
hq pgm que, cl Bjel jM hb qu kuz cl IaqpL SuEe hle H LlZ
hwml ej cuRme hmNLfl, kl Ab hql eNlz
hMaul MmSl jal fl rja ee Bm jcez ayL qVu jqjc nlZ MmS eSL npL
OoZ Llez cl pquau pjEe CJuS MmS chLVl npeLal cua NqZ Lle Hhw
chRl fl Bm jce MmSl LR rja glu cez rjau eSl Ahe ppwqa Ll Bm jce
1210 pm dea OoZ Lle Hhw eSl ej cn pmae BmEe Bm jce MmSz L al
efsejmL l flQmel hl j hri hsa bLz MmS jmLl HL SV qu hq
Lle Hhw Hcl qaC eqa qe Bm jce MmSz pjEe auhl rjau Bpez NupEe
CJuS MmS ej eu ae 1212 bL 1227 pm fk hwm npe Llez MmS jmLcl jd
CJuS MmS Rme phQu Majez ayl pju hwmu jpmj npe Abm Bl ha quz ae
chLVl flha mMeaa lSde fe Llez hwmu fbj ehqe Ns aml Laa aylCz
ae Se ej j Sl Lle Hhw jpSc, jppq hnLR lOV ~al Llez hwml HC
dea cl pmae ihLihC je euez pmae Cmaajnl ~pecl qa 1227 pm
CJuS MmS eqa qez
Hl fl bL 1287 pm fk hwm jma cl jpmj npLcl HLV fcn flZa quz fel Se
npeLa H pju hwm npe Lle Hhw Hycl jd cn SeC Rme cpz cpcl hm qa jjmL
Hhw H LlZ oV hRll HC npeLmL cp npe h jjmL npe hm IaqpLl Aiqa Llez
flha kNl jjmL aLcl jd Aeaj npL Rme aOlmz El Hhw fQj hwm RsJ YL
Hhw glcfll hn LR Abm ae AdLl Lle, pelNyJul LR ejZ Lle elLm ej
HLV cNz cl rja qahcml jdJ 1338 pm fk hwm cl Ade Rmz
hwmu de pmae npe
hwmu de pmae npel Caqp fu cCn hRll (1338-1538)z gMle jhlL nql qa
dl HC npejm l qu Hhw anma mi Ll Cmupnq hwnl pmaecl qaz Hl jd
cl pmael hwmL hn Bel Q Lle LuLhl, L nohd hb qez aRs, H pju hCl
bL hwm BjZl aje Le nwLJ Rm ez
de pmae kNl pQe
1338 pm pelNyJul npeLa hqlj Mel ja qm ayl hjlrL gMl ejl HL
lSLjQl dea OoZ Lle Hhw gMle jhlL nq ej eu pelNyJul pwqpe hpez
ayl qa dlC hwmu de pmae kNl pQe quz cl pmae jqjc he aOmLl H pju pcl
hwml cL c cJul gpla Rm ez de pmae qph gMle eS ej j Sl
LlRmez ju Mca alM cM dlZ Ll ku ae 1338 pm bL 1339 pm fk pelNyJ
npe Llez ayl jal fl f CMaul Ee NS nq pwqpe hpe Hhw 1352 pm fk lSa
Llez
 189

Cmupnq hwnl npe

gMle jhlL nq kMe pelNyJul de pmae, aMe mMeal pwqpe cMm LlRme
pMeLl pefa Bm jhlLz BmEe Bm nq Efd NqZ Ll mMeaa aeJ de lS
Ns amez fl fuu lSde el Llez 1342 pm qS Cmup nql qa eqa qJul
BN fk rjau Rme aez Cmup nq njpe Cmup nq ej eu fa Lle Cmup nq
hwnz al ElpllC cOce dl hwm npe Llez
Cmup nql f Rm fl hwml Adfa qJuz paNyJ cMm Lle 1346 pm, efm BjZ
Lle 4 hRl flz El hqll LR AwnJ eSl Ade Beez ah, Cmup nql lafZ pgm
Rm fhhwm AdLlz 1352 pm CMaul Ee NS nqL flSa Ll fl hwmu eSl npe
fLf Llez hwml hCl hqll LR Awn, Nlrfl Hhw LnJ Su Lle Cmup nqz H
LlZC cl IaqpL njp-C-plS Bgg Cmup nqL nq-C-hPmq J nq-C-
hPmue Efd cez
HcL hwmL cl AdLli Lla pmae glS nq (1358-1393 pm) hwml pwqpe
hpez BhlJ hwmu glS nq hb BjZ Qmez Cmup nq faa de pmae npe Bl
n il Jfl cys Lle pLcl nqz ayl jal fl f NupEe BSj nq (1393-1411)
hwml pwqpe hpez ae Rme H kNl phQu Sefu pmaez BSj nq fa Hhw fajql
Ns am hnm lSaL AVV lMa flRmez Caqp ae HLSe cr npL qph fpz
flpl Lh qgSl p al fkNkN OVRmz
NZn hwnl npe
hwml Caqpl cCn hRl (1338-1538 pm) jpmje pmaecl de lSal kN Af
LRLm Rc fsRmz NupEe BSj nql jal fl ayl f pCge qjS nq pwqne
Ade qJul j HL hRll jbu 1412 pm acp nqhEel qa eqa qez nqhEe
eSl ej ee nqhe huSc nqz L cC hRll jbu aeJ fpc osk eqa qez H pkN
qc AiSa lS NZn hwml rja cMm Llez
lS NZn Rme NupEe Bkj nql HLSe fihnm Bjaz L rja cMml flflC ae
dju J lS~eaL hldal jMjM qez H pju Sefll pmae Chqj nL hwm BjZ
Llm NZn ayl f kcL Cpmj cra Ll ayl qa rja ql Llez SmmEe jqjc nq
ej ae 1432 pm fk hwm npe Llz fu bL lSde Ns ela Lll fnfn
ae hwml lSpjJ ha Llez ayl jal fl f njpe Bqjc nq pwqpe hpez 1433
pm eSl acpcl qa eqa qJul jd cu lS NZn J ayl hwndlcl fu n hRll
npel Ahpe OVz
flha Cmupnq hwnl npe
1452 pm hwml pwqpe Ada qe Cmup nql HL hwndl epl nq, Caqp ae
eplEe jqjc nq ej flQaz H kNL hm qu flha Cmupnq Bjmz eplEe jqjc
nq Rme HLSe cr pefa J eufluZ npLz 1459 pm ayl jal fl f lLeEe hlhL
nq hwml pwqpe hpez fal lSaLm nqSc hlhL nq cral pb paNyJ npe Llez
ae hwml lSpj hn MeLV ha Llez fu 8 qSl qhn acpL ae hi fc
euN cez
hlhL nql jal fl ayl f njpe Bh jSggl CEpg nq (1474-1481 pm) hwml
pmae qez HLSe Bcnhe J pcr pmae qph ae fa J fajql Ns hnm pjS AVV
lMez ayl jal fl pwqpe hpe f pLcl nqz L Ap qu fsu ayL AfplZ Ll
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J CEpg nql pju Bjce Ll qhn acpl H kN fQ rjanm qu JWz HL fku
acl qaC SmEe gaq nq eqa qez
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AhQl, osk, hqz H f pju Ql Se qhn pmaeL qa Ll quz qhn ea hlhL
nqSc fbj rjau hpez L LuL jpl jdC ae qhn pefa jmL Bcml qa eqa
qez jmL Bcm pCge glS nq Efd eu pwqpe hpez ayl ae hRll lSaLm Rm
amejmL nfZz fpclrcl qa ae eqa qJul fl rjau Bpe au eplEe jqjc
nqz L aeJ LRcel jd eqa qez HL qhn pcl aL qa Ll njpe jSggl nq
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pez Hih hwmu qhn kNl Ahpe OVz
penq hwnl npe
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1519 pm)z ae jSggl nql Ade QLl eu HL fku ESl qe Hhw HLpju hwml
rjau Bpez
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 190

BjZ Llm ae a faqa Llez HLj Bpj Aike ae pgm qa fleez pgml pb
lS flQme Ll BmEe pe nq 1519 pm jahlZ Llez
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fal jal fl epla nq (1519-1532 pm) hwml qwqpe hpez fal ja aeJ Rme
HLSe cr npLz H pju pjN hql ayl AdLl Bpz HcL ila aMe jOm pjS faa
quRmz fbj jOm pjV hhl hwm Aikel Se ~pe fWm epla nq fbj hhll pb ja
fe Llez fl k l qm p Ll hwml pwqpeL elfc lMez 1531 pm epla nq
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eqa qJul BN j hRl MeL ae rjau Rmez aMe bLC de pmae kNl fae l
quz H pju Bpj lSl pb hwml pwOo QmRmz BgNe ea nlnqJ hwm BjZ Llez
Ahno 1538 pm nlnq Ns cMm Llez NupEe jqjcl jal p p hwml cCn
hRll deal Ahpe quz
hwmu BgNe npe
penq kNl nocL bLC jOm pjV hhl J ayl f jue Q LlRme hwmL jOm
AdLl Beaz L BgNecl LlZ phd Lla fleez Ahno nl Mel p k Ssu
fse pjV juez pjN ilal Adfa qJul hpe bL nl Me Nfe eSl n h Lla
bLez H mr Af pjul jd ae nnm Qel cN J hql cMm Llez 1537 pm chl
ae hwml lSde Ns BjZ Llez H pkN jOm pjV jue Qel cN J hql AdNa Ll
nl Mel fR dJu Ll hwml lSde Ns AdLl Llez Nsl QjvLl fpc Bl fLaL
pck j qu jue Hl ejLlZ Lle Sahcz pjV Ns hmp She LVa bLm nl
Me N ecl al Qp ejL e juel Jfl Tyfu fsez Afa jue flSa qez
jOm pjV jueL flSa Ll nl Me nlnq Efd eez eSL ae hqll de pmae
qph OoZ Llez 1540 pm jOm npeLa Bm LmL flSa Ll ae hwm cMm Llez
p hRlC ae jueL Qsih flSa Ll cl pwqpe AdLl Llez hwm cOce fl
felu cl npe Bpz nlnq QVNj J pmV ayl pjSi Llez hwm Qm ku BgNe
npel Adez nlnql f Cpmj nql lSaLm fk (1545-53 pm) hwm cl Ade Rmz
Cpmj nql fl BgNe eacl cmcma cl pjS iP fsz H pkN BgNe npeLa
jqjc nq l hwml dea OoZ Llez L cl pmae jqjc Bcm nql qa flSa
qe aez 1555 pm jqjc nq nl eqa qm f hqcl nq nl Nsl pwqpe hp fal
qaLl Bcmnq nlL qa Llez 1560 pm hqcl nql jal fl ayl iC Smm nq nl
Nsl pmae qez Aaxfl Smm nq nll fL qa Ll NupEe ej HL h hwml
pwqpe cMm Llez Hih hwmu nl BgNe hwnl Ahpe quz l qu Llhe BgNe hwnl
npez
nlnql pefa Rme aS Me Llhe J pmuje Me Llhez crZ hql ayl SuNl mi
LlRmez aS Me Rme Cpmj nql pefa J fljncaz 1564 pm aS Me Lllel
hwm Sul jdj H Am faa qu Llle hwnl npez aS Me Lllel jal fl al iC
pmuje Me Llle hwml pmae qez cr HC npL BgNe eacl cmi Ll hwm J
hqll AdLwn HmL ayl AdLli Llez EsoJ ayl AdLl Bpz pmuje Llle ayl
f ESl mcl fljn jOm pjV BLhll pb ppfL lr Ll QmRmez 1572 pm
pmuje Lllel qa eqa qm rjau hpe pmuje Lllel au f cEc Lllez aeC
Rme hwmu no BgNe npLz Aclcn HC npL hnm lS J Inkl jq N ipu ce Hhw
de pjVl ja hcnq Efd NqZ Llez aace hwm J hqll BgNe npLl fLn jOm
pjVl fa BeNa fLn LlRz Ahno cEc Lllel HC BQlZ BLhlL hwm BjZl
pkN Ll cuz 1576 pm lSjqml LR jOm J BgNecl jd ajm HL k cEc Lllel
Qs flSu OV Hhw ayL jac cJu quz no qu hwmu Llle BgNe npe Hhw l qu
jOm npelz Ahn hliCucl hdl jM jOm npe hncl ha qa flez
hliyCucl Caqp
hwml Sjclcl hldal jM pjV BLhl fl hwml Jfl AdLl fa Lla fleez HC
Sjcll aycl eS eS Sjcla de Rme Hhw acl Rm nnm ~pecm J ehqlz
hwml Caqp H Sjcll hliyCu ej flQa, kcJ hl hma hl SeL hTu ez dlZ Ll
qu, AecpwML Sjclcl hTaC hl nV hhql Ll qaz
hliyCucl ea Dp Me Rme Llle hwnl AeNaz penq hwnl Ahpe qm ayl fa
pmuje Me pelNyJ Am Sjcl fa Llez iJuml NS flhl Sjcl fe
LlRme nlnql hwm Sul fhCz jC knl, glcfl, pmV, jujepwq, hjfl, hlnm,
euMm, jeLN fia Am Ns JW de Sjcl hhz
 191

hliyCucl cjel En pjV BLhl 1553 pm nqhS Me, 1585 pm pcL Me, 1586
pm ESl Me J 1594 pm lS jepwqL hwml phcl Ll fWez Dp Me J Aee
Sjcll pb hhl k LlJ al hliyCucl ea Dp MeL flSa Lla flez 1599
pm Dp Mel jal fl hliyCucl eaa fe ayl f jp Mez 1601 pm auhll ja
jepwqL hwmu fWe qm Hhl LRV pgm qe aez L Qs hSul BNC pjVl Bcn
ayL gl ka qu BNuz
jOm pjV Sqll BjmC hwml hliyCucl Qsih cje Ll ph quz H pgml chcl
phcl Cpmj Me (1608-1613)z hliyCucl cjel En ae hwml lSde lSjqm bL
YLu ela Lle Hhw Ns ame nnm ehqlz jp Mel pb ayl fbj pwOo qu 1609
pm Llau ecl fhal kflz k jp Me J Aee SjclNZ flSa qez pjVl ej
YLl ej lM qu SqleNlz
jp Mel eaa Sjclcl ehql flha pju HLa qu namr ecaz ecl fhfs
Aha jp Mel Lcj lpm cN jOmcl AdLl Qm Nm ae BlJ fR qV Qm Bpe
pelNyJuz no fk jOm ~pel pelNyJ cMm Llz gm Sjcll hd qe BapjfZ Lla
Hhw jp Me al Sjcla jOmcl Ade SuNlcll cua fez jp Mel BapjfZl fl
AeL SjclC eln qu fse Hhw HL HL phC jOmcl hna je eez Ahpe OV hwmu
hliyCucl npez
hwmu jOm npe
hwmu jOm npe QmRm phcl J ehh HC cC fhz jOm fcnm ph ej
flQa Rmz hwm Rm jOmcl Aeaj phz pal naLl fbj cL bL BWl naLl pQe fk
Rm phcl npel ZkNz pjV BJlShl fl EldLlcl jd pwOa jOm npe
nqe qu fsz H pkN hwml phclNZ fu deih hwm npe Lla bLez jOm
Bjml HC kN ehh Bjm ej flQaz ehhcl npeLm VL Rm 1757 pm fk, fu Adna
hRlz
hwmu phcl npe
hliyCucl cje Ll phcl Cpmj Me 1610 pm pjN hwmu phcl npe fa
LlRmez ayl jal fl bL 1660 pm phcl jl Sjm rja NqZl BN fk Le phclC
EMkN Le ijL fme Lla prj qeez
hwmu faNSl hZS l Ll pCenq kN bL Hhw j faNS hZLcl faf hsa
bLz pjV nqSqe ek hwml phcl Lpj Me Sue n qa faNScl cje Llez Lpj
Mel fl phcl Cpmj Me jpqc (1635-1639 pm) Ql hRl npe Llez Hlfl pjV
nqSqe ayl au f nq pSL hwml phcl Ll fWez pSl hn hRll npeLm Rm
nfZz hcn hZLNl jd CwlSl H pju phcll LR bL hsa LR phd mi
LlRmz Ha hZSl fnfn CwlScl rjaJ h fuz
1657 pm pjV nqSqe Ap qu fsm ayl Ql fl pwqpe eu l qu z HL pju
BJlShl pb nq pSl hlda quz cC iCul k 1659 pm nq pS flSa qez
BJlSh ayl pefa jlSjmL (1660-1663) hwml phcll cua cez phcl qph
jlSjm Bpj J LQhql jOm pjSi Llez jl Sjml jal fl BJlShl jj nu
Me (1664-1668 pm) hwml phcl qph euN fez jTMe HL hRl pjVl Bcn ae
ca Ahe Llez 1779 pml pVl ae auhll ja hwml phcl qez
nu Me LWl qa Smcpcl hasa Ll hwml jeocl lr Llez H pju ae QVNjJ
cMm Llez phcll no cL ayl pb CwlS CV Cu Lfel hld hdz CwlScl rja
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pjV BJlShl f nqSc Bkjl flha pju cr phcl qph hwml rjau Bpe
jncLm Me (1700-1727 pm)z lS pwll Se ae Maje qu BRez BJlShl
jal fl jOm pjVNZl chmal pkN eu phcll AeLV deih eScl Am npe
Lla bLez jncLm MeJ ejj pjVl BeNa fLn Llae Hhw hoL 1 LV 3 mM VL
lS fWaez jncLm Mel fl ayl Sja pSEe Me pwqpe hpm hwml phcl hwn
flflu Qma bLz Bl HlC fb dl felu faa qu de npez
hwml ehh npe
ehh jncLm Mel pju bLC hwm ph fu de qu fsz H pju phL hm qa eSja
phcll hcm fch qu eSjz eSj fcV qu fs hwnNaz aC BWl naLl hwmu jOm
npel Caqp eSja h ehh Bjmlf flQaz Bl fu de npLl flQa qe ehh qphz
jncLm Mel fpe e bLu ayl Sja pSEe MeL (1727-1739 pm) pjV ghlM
nul hwml phcl euN Llez pSEe HLSe de ehhl jkc eu hwm, hql, Eso
ae fcnC npe Llez ae ayl BauSe J hnpiSecl EQfc e cez Sjclcl pbJ
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AkNal LlZ cnSs hnMm cM cu Bl H pkN hqll euh-C-eSj Bmhc Me
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faa quz
 192

hN ej flQa jlW cpl cOce dl hwml hi Am BjZ Ll SeShe Aa Ll

amRmz Bmhc Me 1742 bL 171 pm fk 10 hRl fald Ll hNcl cnRs Lla prj
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hZSL J pjlL avfla n qa ld Llez
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CR flZ ae plSEml hl ksk ejm lu cmi, SNvnW, jl Sgl, EjQyc,
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pjlL nl hflJ ehh eilnm qu fse CwlScl Jflz gm jl Sgl kMe CwlScl
Qqc ja Ab ca hb qe, aMeC al aL plu cu pwqpe bLz eae CwlS Nill qel
ipVV ehh jeea Ll jl Sgll Sja jl LpjLz jl LpjJ CwlScl pb Nfe
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(1763 pm)z hlal pb k LlJ flSa qe aez Akdl ehh pSEm J jOm pjV
au nq Bmjl pqk eu jl Lnj felu CwlScl Jfl Tyfu fsez 1764 pm
hLll k jl Lpj nQeuih flSa qez
jl Lpj flSa qm CwlSl auhll ja jl SglL hwml pwqpe hpuz 1765 pm
al jal fl f eSjmL CwlSl eh ehQe Llz ayl pb pfca Q Aeku hwml
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CwlS KfehnL npe faa quz
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fmnl kl fl bL CwlSl dl dl hwmu rja ppwqa Lla bLz lhV LCi 1765 pm
auhll ja hwml Niel qu Hp LfeLC plpl hwml rjau hpl hh Llez
pjVL hoL 26 mM VL cJul heju hwm, hql J Esol lS Bcul AdLl uih
mi Lle aez fnfn hwml npe Lk Qmel Se Lfe ehhL 53 mM VL cJul
fana cu hwml lS Bcul pfZ cua Abv cJue mi Llz
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1772 pm Jule qVwp hwml Niel ek qu lS Bcul eae hh NqZ Llez fbj
ae Sjclcl LR fyQ hRll Se Sj CSl cez L Ha aje pgm e fJuu HL hRlll
Se Sj hch cul hh Lle aez LoLcl ccn aa Lje HaVLJz 1786 pm mX
LeJump hwml eae Niel Selm ek qez ae Sj hchl eae fcrf NqZ Llez H
mr 1790 pm ae Sjclcl pb 10 hRll Se cnpe hch Llez HC hchC
flhaLm (1793 pm) Qlu hch flZa quz
hwmL Lc Ll dl dl pjN ila hVn npe rjal hl OVa bLz 1773 pm hVn
fmjV HLV BCe fp quz lmVw A ej flQa H BCel hm Efjqcn hwm hVn
npel Lc flZa quz Jule qVwpl hi ea HLcL hZS r CwlScl HLQVu
AdLl fa Ll, AecL cnu lSm acl Ade qa l Llz
mX LeJumn flha Niel Selm mX Jumpp (1798 -1805 pm) ila hVn pjS hl
phQu hn avfl Rmez H pju ilahol AeL ll Jfl hVn Adfa faa quz flha
Niel Selmcl jd mX qVwp (1813-23 pm), ECmuj hVL (1825-35 pm) J mX
Xmqp (1848-56) EMkNz Hcl dlhqL fQu pjN Efjqcn hVn npel fpl
OVz CwlScl pjShc ea J noel gm Efjqcnl phll jeo r qu EWz Hl
fauu 1857 pm pwOVa qu hVnhld jqAie, k pfq hq qph Maz
fmnl kl fl bL hcn npe J noZl hl dl dl Hcnl jeol je hri hsa
bLz hri hn Rm jpmjecl jez LlZ acl qa bLC CwlSl npe rja Ls
euRmz 1757 pm bL 1857 pm fk na hRl hwml jeo hiih hq-hri fLn
Lla bLz pwOVa qu hi Bcmez gLl-pp Bcme, aajll Bcme, gluS
 193

Bcme Rm Aeajz 1859-60 pml em hq lS~eaL J pjSL She lafZ ijL

lMz
Efjqcnl fbj dea pwNj
hVnhld Qae hwml jeol je kMe ce hyd EWRm aMeC HL hlV Bmsel p quz
hcn npel hl pjN El ilaSs HL pn Aie OVz
pje hcLl VVl ASqa pwNWa qu hVn KfehnL npel hl fbj ILh fahcz
CwlSl HL pfq hq qph BMua LlmJ HC hfhl jm LlZ Rm CV qu Lfel
noZ hhz pfq hfhl pQe OV hwm bLCz 1857 pml Seul jp bL pfql
CwlS AdeuLcl Bcn Aje Ll l Llz hlLfl jm fl HLL fahc Sm cu
hfhl BNez jQ HC hfh Rsu ku mr Bl jlVz hwmcnl fhe J glcfl Lfel
LW B quz knl, hlnm fia Sm qu EW Ez H pju clhe ej HLV Ec fLl
Efl eod Blf Ll quz QVNj hfh OV fbjz hfhl hlL ANpwkN Ll J ANl
bL A J Nmhlc pwNq Ll YLl En lJe quz 22 eil pfql hq OoZ Llz
eill jd ehqel Selu SqSl ehLcl cu Lfe YLl hq cje Llz H
pju he hQl pfqcl gyp cu quz QVNj J YLl fmaL hqcl p Lfel ~pecl
pwOo qu pmVz fqpejmL hQl hqcl gyp cu qu Ej ez
1857 pm jqhfh Hcnl pfql acl pje n eu Tyfu fs CwlScl Jflz jOm
pjV hqcl nq SglL ea je LuL jp CwlScl faqa Lla prj qmJ no fk VL
bLa fle alz CwlSl n qa H hq cje Llz Ahno 1857 pm hVn fmjV
ila npel Se HLV eae BCe fp Llz ila npe BCehm flQa H BCe Hcn C
q~u Lfel npel Ahpe OVu Hhw plpl Hcnl npeil NqZ Ll hVn plLlz
BdeL kNl hwml pjSL J pwaL She
cSe hn hPm-lS ljjqe lu J qS nluaEq hwml pjSL J dju She pwl
HNu Bpez ljjqe luL ilal fbj BdeL flo hm quz Hcnl jeoL Lpwll
ALl bL j Lll Se ae dju r pwll fuSe Aeih Llez 1803 pm ae
aga-Em-juqe ej Blh J gp iou HLV hC mMez HMe ae jafSl hlda
Ll HL D~nll Bldel Lb hmez fl hi djl Jfl BmQepjmL hC jeSlam
Bdue fLn Llez HLnlhcl hZ fQll Se 1815 pm ljjqe lu Bau pi ej
HLV pja NWe Llez p kNl LmLal nra AiSa J jdh nZl AeLC H pjal
pcp qez 1825 pm ae fa Lle hc LmSz fQal he, cne J hc nr fceC
Rm H LmSl Enz ljjqe lu al dju QL fa Lll Se 1828 pm h pjS
ej HLV dju fae fe Llez
ljjqe lu pjS pwlJ hno ijL lMRmez ae Lme fb, hm hhq, h hhq,
pacq Cac fbm am cJul Se Seja Ns ama bLez nr hll r ljjqe
lu hno Ahce lMRmez ae Efm LlRme CwlS Ade Hcnhpl jml Se fuSe
CwlS nru nra qJuz 1822 pm LmLau ae Awm qc m fa Llez cl
ejj pjV cau BLhl ayl ch cJu hVn plLll LR fn Lll Se ljjqe luL
faed euN Llez ae ljjqeL lS Efd cu 1830 pm me fWuRmez 1833
m Cwml hVm nql jahlZ Lle HC BmLa hz
HLC pju hwml jpmje hno Ll fhhl jpmjecl Lpwll ALl bL hl Ll
Bel Se HNu Bpe BlL pwlL qS nluaEqz ae jpmjecl dju Lpwm
ERc ANZ ijL lMez H Bcme jmax jdfQl Juqh Q l AefZa Rmz
hwml jpmjecl jd AdLwnC Rm djlaz Cpmj NqZl BN al Rm qc, h h fLal
EfpLz H LlZ djla qJul flJ ihLih acl jd fhdj J pwal AeL Efce
hcje Rmz nl Sj, ja, hu hi pjSL Evphl jd Hml fagme cM kaz qS
nluaEql pwl Bcme fh hwml jpmjecl jd hfL ps SNuz ah, fQa nru
nra LR jpmje al HC Bcmel pjmQe Lla bLz
qS nluaEM jal fl gluS Bcmel eaa ce f jqpe Ee cc juz L cc ju
Rme hfhz ae gluS BcmeL nfZ dju pwl Bcme bL hl Ll He Sjcl,
emLl, pcMl jqSecl noZ J AaQll hl cl LoL J jqea jeocl ILh Llez
hwml nr J pwal r hs dlel Bmse p qu Een naLz CwlScl fih H naLl
l bLC hwmu fQa nru nra HLV hSh nZl Eh quz d hwmcn eu, Een
naL pjN fbha e hel r Qlj Ea OVa bLz CElf H pju Ecl Qihe,
Sauahc J NZal hLn OVz CElfl pb kNkN h fJuu Hph Qdl hwmuJ
fhn Llz hwml pjSL, Ab~eaL J lu She flhae Bpa l Llz
CV Cu Lfel npe Lc LmLau bLu CwlS Shekl pb hPmlC fbj flQu OVz
kcJ 1835 pml BN fk Hcn fQma iolC ffoLa Ll Lfe, ah EQ nel hPm
qccl AeLC H pju CwlS nr NqZ Lla bLz hPmcl HLwn H pju eScl
fuSe CwlS nM plLl QLla YLz H hfl Me jnelclJ pqua jmz al
RfMe fa Llm CwlS nrl NaJ hs kuz
 194

Niel Selm hVLl pju hPml Se CwlS nrl cN Mm kuz Hcn CwlS nr
pfplZl fr mX jLm HLV nreal fh Llm hVL 1835 pm a NqZ Llez Hlfl
bL plLl EcN hi Am CwlS hcmu, QLvp hcmu J BCe hcmu faa qa
bLz d LmLa eu, LmLal hClJ HC Sul Rsu fsz Bl aC 1836 pm Nm LmS,
1841 pm YL LmS, 1845 pm LoeNl LmS J 1853 pm hqljfl LmS faa quz
nrl fnfn hwml pjS pwlJ LR ha HNu Bpez ljjqe lul Bcme kMe
iV fs BpRm, aMe HNu Bpe fa DnlQc hcpNlz hwm Nc lQel eae la aeC
fQme Llez hcpNl hdh hhql fr Bcme Lla bLez 1856 pm ayl fQl hdh
hhq ~hd hm BCe fp quz
jpmje pjS CwlS nrl r fRu fsm acl pSN Lla HNu Bpe qS jqjc
jqpez jal BN jqpe ph pf SeNZl LmZ hno Ll nr hl EvpN Ll kez BlJ
LuLSe ha fRu fs jpmje pjSL HNu ea ijL lMez Hycl jd fde Rme
eJuh Bm mag J ~puc Bjl Bmz Mye hqcl J fl eJuh Efda ioa Bm
magl fQu YL, lSnq, QVNj fia e jp fa quz jpmjecl lS~eaLih
pQae Lla ~~puc Bjl Bm 1877 pm LmLau pVm enem jqjXe Appune
ej HLV pja NWe Llez 1906 pm YLu jpmjecl i lS~eaL fae jpmj mN
faa qm Bjl Bm aa pjbe Seez 1912 pm ae eMm ila jpmj mNl pifa
ehQa qez
Lfel npel no cL hwm h ilal Caqp Euel kN qph flQaz H pju lmfb-
psLfb ejZ, Vmge hh fhae Ll qm kNkN hhu OV Bjm flhaez gm nr
ea J nr hhl lfl OVz 1854 pm Qmp EXl nreal gpm qph 1857 pm
LmLa hnhcmu faa quz gm H pju bLC hwmu a HLV nra pjS Ns EWRmz
nrpQaea J nrl ANNal pb pb hwm io J pqal Ea qu fiaz
1857 pm pfq hfh hb qJul fl Hcnl eahN eScl AdLl lrl Se lS~eaL
fae Ns aml Q l Llz pC dlhqLau 1885 pm faa qu ilau Sau
LwNp z
hi J avLme lSea (1905-1911)
1905 pm mX LSe hi OoZ Llm fhhl jpmjel Bnhc qu fsz Ha AeNpl
fhh hi r Eal phe cM kuz fnpeL LlZ hi Ll qmJ jn a hVn npe
eaL pqk Lla bLz LlZ hil jdjC hwml qc J jpmje cC iN hi qu fsz
jpmj mNl fal jdj jpmjecl lS~eaL pQaea fLn fuz 1909 pml jm-jV
pwl jpmjecl fbL ehQe chL La cm lSeal r eae dll pQe quz
hil fVij
hwm, hql J Eso eu NWa hwm fcn 1905 pml 16 Ahl ilal hsmV mX LSel
HL OoZu cC iN hi qu fsz HC OoZ Aeku hwmcnl YL, QVNj J lSnq hiN
Hhw Bpj eu NWa qu fhh J Bpj fcnz ehNWa HC fcnl lSde qu YLz AecL
fQj hwm, hql J Eso eu NWa qu fQj hwm fcn, kl lSde bL LmLauz
fnpeL phd hhQeu eu hi kL qmJ Hl fRe Bl AeL LlZ Rmz hVn npel
l bLC fhh Rm Ab~eaLih Aea J Ahqmaz H Aml nr, hhp-hZS J kNkN
hhl Le Ea Hl fh quez AecL lSde LmLa Rm hVn npel fnpeL, Ab~eaL
J pwaL Euel jm Lcz hnhcmu, jqhcmu J hcmu Cac fau LmLa phpju
ANdLl faz fhh LoC Rm fde Ab~eaL LjLz AbQ LoLl Eal Se aMe Le
plLl fQ Nqa quez fhhl Sjclcl AdLwnC Rme LmLal u hpcz acl
euh, Nj J fCLcl AaQl LoLcl Ah qu fs nQeuz kNkN hhl Ea e
qJuu Ab~eaL clh Qlu qhl Efj quz nr, kNkN J Ab~eaL r fh J
fQjhl jd HC fbL hVn npLcl Se Rm Hhw al hil jdj fhh Ea
pdel fr ja fLn Llez fnpeL Ea J Ab~eaL pja hdel En RsJ hwm
hiNl fRe hVn plLll lS~eaL En Rmz mX LSe hwml lS~eaL pQaeal hou
hnoih EN Rmez ae mM LlRme k, hPm jdh J hShl jn Sauahc J
lSea pQae qu EWRz H pju ilau LwNp LmLa bL pjN ila Bcme flQme
LlRmz hwm iN qm hPml chm qu fsh Hhw LmLa bL hVnhld Bcmel Lc
pl kh H hhQeu mX LSe hic J npe ea fuN Ll hwmL hi Lla QCmez
LlZ ILh hwm Rm HL hlV n Hhw hwml qc J jpmjecl jma J ILh Bcme
hVn pjSl fr jVJ elfc Rm ez aRs hil gm fhhl jpmjelJ p qu
hVn plLll fa AeNa bLh Hhw ilal Sau IL H LlZ chm qu fshz
hil fau
hwml jeol jd hil fau Rm jnz kce plLlih hi OoZ Ll qu pce
LwNp cnhf nL chp fme Llz 1905 pm 16 Ahl hil fahc qlam fma qu
Hhw lhceb WLll fljn lM he Aeel flLfe Nqe Ll quz hPml ILl Aqe
Seu lhceb hwml jV, hwml Sm, NeV lQe Llez hwml jpmje eahcl HLwn
hil hlda Llez jmi Bm lpml pifaa LmLal lShSl Aea Sepiu
eahc hil hl fahc Seez ah jpmjecl HLwn hiL Na Seez YLl ehh
 195

pmjq hiL jpmjecl bl fr hm ja fLn Llez HRs gSmm qL, dehsl

Sjcl eJuh Bm QdlJ hiL Na Seez
hPm hSh, nra pfcu J lSeaLcl jd kl hil hlda Lle aycl fu
pLmC Rme LwNp pjbL Hhw EQh qc pfcuiz hiL al Sauahcl Jfl
pjShc nl BOa hm je Llez H pju fQjh bL fLna Cwmnje, VVje,
fCJeul, kNl, p, phe, ehn, qahc Cac fLm hil hlda Lla
bLz L HL fku Hph f-fL plLl cjeeal nLl quz 1906-1908 pml jd
hcjalj, p, kNl fL h Ll cu quz jujepwq J hlnm bL fLna Ql jql J
hlnm q~ao fL cV plLl cjeeal Lhm fsz
hil fa qc J jpmjecl flflhld faul houV Aa lafZz LmLal nra
hPm hShl fh hwml Aea J Ahqma jpmjecl Eal houVL peSl NqZ Lleez
hhiN LkLl qm ehNWa fcnl lSde qh YL Hhw pMeC faa qh qCLV, Agp-
Bcmapq hZS Lcz gm LmLa qlh Hl HLQVuaz H Ahu LmLal hhpu, ELm J
nra pjS eScl bhc Ahe bLC hil hlda Llez
HLCih ij J jdh nel b LmLaLcL bLl LlZ fhhL eae fcnl jkc ce
Rm acl bhldz Bl HcL hi Ahqmacl jd eae Bn SNa l Llz fhhl
SeNZ ihLihC hil jdj ehNWa fhh J Bpj fcn acl b AdLal pwlra
qh hm je Llz eae fcnl nr J Ab~eaL Eal pkN-phdl phe aclL Bnhc
Ll amz gm jpmjecl pfca ffLm hiL pjbe Llz LmLal jpmj pqa
pwpc hiL Bnhc qph NZ Llz HMe EM Ll lafZ k, hwml ejhZ ab agpm
pfcui qclJ h hiNL pjbe Llz
jpmj mNl fa
AeNpl jpmjecl CwlS nrl fuSeua Efm Lle BmNsl pl ~~puc Bqjc Mez ayl
EcN faa qu jqjXe Awm JluVm LmS, Aehc pja J jpmj nr pjmez
1905 pml hi OoZ hwml Ahqma jpmjecl jd eae Bn J Efe p Ll Hhw
al HLV a lS~eaL pwNWel fuSeua Efm Llz 1906 pm hVn plLl eaeih
npe pwl Qm Lll hou hhQe Lla bLz H Ahu lSeaa puih AwnNqZl CR
jpmjecl jd cM cuz
1906 pml 30 Xpl YLu eMm ila jpmj HXLnem Leglp Aea quz JC
pjme ehh pmjq eMm ila jpmj mN ej HLV lS~eaL cm NWel fh Llm
pwMNl faedl fhV pjbe Llez flce 31 Xpl jpmjecl lS~eaL pwNWe qph
jpmj mN BafLn Llz
hihld Bcme
hil fahc k Bcme Ns JW aL jVcN hm qu cn Bcmez H Bcme QlV
fku hi Rmz fQma euj Aeku pi-pjaa hace J fh NqZl jdj hil
hl fahc fe Rm fbj fkuz au fku Rm Ban NWe J Sau nr Bcmez
huLV h hma fZh hSe Hhw cn fZl Evfce J hhql Rm hihld Bcmel
aau fku Hhw Qab fku Qm hfh h pn Bcmez
huLV Bcme
la huLV Bcme hma fZpl hSel jd pjh bLmJ Bcme hll pb pb
huLV Hl Ab jC hfLal qa l Llz hma fZ J nr hSel fnfn cn
fZpll hhql, cn nf J nrl fpl Cac QaeJ fde fuz 1905 pml Ahl
jp bL huLV J cn Ljf eu k Bcme Ns JW pVC cn Bcme ej
flQaz HC Bcme jn hwml hi Am Rsu fsz LwNpl eaa flQma H
Bcmel pju nql Hhw Nj-N fLn hma h fsu gm Hhw cn fZ hhqll
Evpq fce Ll quz cn Bcmel gm hcn fZl Qqc kb fljZ qp fuz 1906
pm plLl hhlZ bL Se ku k, hma phe, mhZ, pa Lfs J pNlVl Bjce AeL
hn qp fuRmz H pju hwml hi Am Ns JW cn Bcme Lhm hwml jdC
pjh Rm e, ilal hi AmJ H Bcmel fpl OVz
cn Bcme
cn Bcme nr r Sau nr Bcme lf euz hihld Bcme kNcel
Afld plLl m J jqhcmu bL hpwML R hqa qm Sau nr fae Ns am
Sll qu fsz gm hwml hi Am hnLR hcmu fa qu Hhw Ns JW LuLV LlNl
nr Lcz hwmcnl lwfl, ceSfl, jujepwq J hlnm H Sau hcmu fa quz
cn Bcme hwml hi nZl jeo kNce Ll Hhw Bcmel fr Seja ~~all Se
hi Smu pja NWe Ll quz hlnml cn hh, glcfll ha, jujepwql pde
Hhw YLl Aenme Rm EMkN pwNWez cn Bcme Efe pl Se Lh J pqaLl
f-fLu cnahdL lQe fLn Lla bLez Hcl jd lhceb WLl, Scmm lu J
lSeL pel ej hnoih EMkNz hlnml QlZ Lh jLc cp Nj Nj Ol fl e
lnj Qs, hel, Li qa Bl fl e Ne Nu plcn SeNZl jd ah BhN p Llez
hwml el pjS cn Bcme AwnNqZl jdj Efjqcnl lSeaa phfbj kN cuz
 196

hihld Bcmel cC HLSe jpmje eal pjbe bLmJ no fk HC BcmeL hwml

jpmjel pjbe Llez HRs cn Bcmel EN qcue ihdl J qcdjl Bcnl fih
Bcme flQmel fa jpmje pjSl jd ~elnl p Llz hh J cn BcmeL
Lc Ll lM he, LmOV fS cJu, Nal nLl hhql Cac jpmjecl jd hlf
fau ~al Llz gm hh J cn BcmeL Lc Ll qc J jpmjecl pfL gVm
dl, kl gmgm Rm pclfplz
cn Bcme ee LlZ Sau Bcme qph hLna qa flez plLl cje ea cn
Bcmel pjbLcl jehm i cuz LmLal jsul hZL Hhw hwml Njbml hhpul
huLV Bcme AwnNqZ e Ll hma h Bjce J hul Evpq cMuz cn Bcme
hihld Bcmel HLV Ab~eaL-pwaL LjpQ qmJ Hl lS~eaL fih Rm mMZuz
ila hVnhld Hhw dea Bcmel pQe Ll H Bcmez cn Bcme Rcl
kNcel gm lSeaa R pjSl la h fuz huLV Bcmel gm HLcL hcn
fZ Bjce qp fu Hhw cnu nf fae J LmLlMe fel houV la mi Llz
pwaLih H Bcme cnu io, nr J pqaQQu Evpq p Llz L hihld
Bcme qc-jpmje pfL k gVm p LlRm cn Bcme a Bl hsu cu Hhw
Sau lSea J Bcmel Jfl HV jlaL fih lMz
hfh Bcme (1911-1930)
hwmu pn Bcme
hwmu pn Bcmel gm p Sauahc Bcme pn hfh Bcme qph flQa qmJ
hVn plLll ca pV Rm pphc Bcmez hfhcl En Rm cn bL hVn nL
EvMa Ll dea ASez
hihld Bcmel gm p Sauahc Bcme jma LwNp pjba cml jdC pjh
Rmz L Bcmel fa fn pwNWeV eljf H cC cm hi qu fsz eljfl eujaL
Bcmel jd lS~eaL avfla pjh lMl frfa Rmez acl ja Rm eu fald
h huLV Acmel jdj hVn plLlL AQm Ll cuz Aefr pn hfhl jdj dea
ASel frfa Rmez hiL Lc LlC pn ~hfhL avfla l qu Hhw 1911 pm hi
lc qmJ H Bcme h quez 1908 pm CwlS jSVV LwpgXL qal Se rcljl
hj erfl jd cu pn hfh Bcme fLn lf euz
hwml pn Bcme fbj bLC pwNWa J flQma qu pi-pjal jdjz YLl Aenme
pja J LmLau kNl Rm cV fde pwNWez ah YLl Aenme pja Rm AdL avflz
j hhLecl pb BNa BCln Sauahc jp jNlV ehm h iNe ehca Hhw
Sfe AdfL JLLl hwml pn BcmeL pjbe J pqkNa ce LlRmez
YLl enem m J pelw enem m fh hwmu hfh Bcme lafZ ijL fme
Llz YLl Aenme pjal faa J flQmL fme hql cn Hhw ayl Aeaj pqLj
ifnQc lu Rme enem m Hl nrLz 1910 pm fme hql cnpq 55 SeL Ngal
Ll qu Hhw plLl aycl hl YL ksk jjm Qfu lqal AikN Bez fmn
pcqiSecl as Lla bL Hhw hcLk pLml Syclm hfh ea kaceb jMfdu
(Jlg hO kae) eqa qez
cn Bcme J ~hfhL avfla Ahqa bLmJ hVn npL fbjcL hil p flhae
Llez 1910 pml no cL mX jVl m mX qX ilal eae iCplu qph rja NqZ
Llez L no fk cn J ~hfhL Bcmel aha hVn plLlL hi lc Lla hd
Llz mX qX Bfo ea NqZ Ll hi lc Lll je Llez 1911 pml 12 Xpl
Cwml pjV fbj SSl AioL Aee Efmr BuSa cl clhl hi lcl OoZ
cJu quz alflJ hfh Bcme Qma bLz hwmu pn Bcmel EMkN OVe qR
1930 pm QVNj plLl ANl mez
QNj kh hq
m nrL pk pel AdeuLa QNj Ns JW hfh kh hqez 18 Hfm 1930 pml X
CX Hl la hfhl pjlL fnL pa qu AaLa BjZ nqll cV ANl cMm
Llez plLl cje-fse pJ jVlcL phdeuL Ll deal pwNj fu Ql hRl dl
Qma bLz 1933 pml 16 ghul jVlc Ngal qe Hhw 1934 pml 12 Seul jVlc
pk pe J alLnl cclL hVnl gypa Tmu qa Llz fu HC cxpqpL Aiel
ea Rme eu enem CeVVEVl nrL pk pe, ke jVlc qph pflQaz ANl
mel fl QNjl EMkN hfh OVe Rm fama Jucll eaa fqsama lmJu
Lh BjZz 1932 pml 24 pfVl fqsam lmJu CElfue Lh BjZ 7 alZ hfh
cml eaa ce fama Juclz pgm qjml fl fmnl Ngal Hsa ae fVnuj
pueCX Lfpm Mu OVemC Aaa cez
jm-jV pwl BCe
1909 pm fhaa jm-jV pwl BCel EMkN hou Rm Lcu J fcnL BCepi
NWe Hhw Hl LWj flhaez Lcu BCepil pcp pwM 16 bL 60 Se Ll qu Hhw
jpmjecl fbLih pcp ehQel AdLl fce Ll quz fbL ehQel ea H BCe
 197

pwkSa qm jpmjecl cOcel ch flZ quz pfcuiL faedal eaL La cu

CwlS plLl fLafr jpmje J qccl jd hhde Ns amz
hi flha lSea (1911-1936)
1911 pm hi lc Ll qm hwml jpmjecl jd qanl p quz alflJ H pjul
EMkN lS~eaL ASe qR qc J jpmjecl lS~eaL pjTa J H~Lh hVnhld
Bcmez 1916 pml mr Ql jdj qc J jpmjcl jd pjTa quz 1920-24 pm
Mmga J ApqkN Bcmel jdj qc J jpmjcl ILh hVnhld Bcme Rm MhC
lafZz cnu J BSaL fla Hhw hVn npe J cje eal Se H Bcme HLpju
hbau fkhpa quz hwm Q h hm f (1923) qc-jpmjecl jd ILl fb felu
EjQe LlmJ no fk pVJ hdN quz
mr Q
1914 pm fbj hnk l qm ilau lSeaaJ eae Na pbla quz Sau fku
lS~eaL cmml jeih J cil flhae Rm H pjul EMkN OVez jJme jqjc
Bm J jqjc Bm Sq Sau Bcme bL jpmjcl cl pl bLl Se pjmQe Llez
jpmje khLcl Sau Bcme AwnNqZl Bqhe See alz 1915 pm jqjc Bm Sq
jpmj mNl pifa ehQa qm jpmj mN hVnhld jeih Ns JWz p hRl jpmj
mNl Adhne jqjc Bm Sq Efa lafZ HL fh hm qu k, jpmj mN SeNZl
Se LmZLl LS Aee cml pb pjmaih LS Llhz Sq jma LwNp J jpmj
mNL flfll LRLR Bel Se qc J jpmjecl jd ILl Jfl Sl cez
1916 pml 16 Xpl LwNp J jpmj mN mr nql eS eS cmu pjme Bqhe Llz HC
pjme Eiu cml eal IaqpL mr -Q fZue Llez mr Q jma Rm qc J
jpmjecl pfa J pjTal HL jmhe cmmz HC Q qc J jpmjecl jd pjTal
flhn pa pquL quz hVn plLl 1919 pml ila npe BCe H Ql AeLm dl
Ai Llz
1919 pm jV-QjpgX pwl BCe
hVn plLl 1917 pm ilaucl knpe fcel phel Lb fbj fmjV Efe Llz
En Rm fbj hnk ilau pqkz pl HXECe jV H npe pwl flLfe hou hsmV
mX QjpgX J ilal lS~eaL eacl p BmQel ia 1918 pm jV-QjpgX
lfV fLn Llez 1919 pm hVn fmjV H lfVl Jfl i Ll HLV npe pwl BCe
fp Ll k ila npe BCe ej flQaz
Mmga J ApqkN Bcme (1920-1924)
fLafr Mmga J ApqkN Bcme Rm fbj philau NZBcmez H Bcme hwml
SeNZ axgaih AwnNqZ Ll Hhw pjuLih qmJ HV qc J jpmjcl ILh
hVnhld Qeu E Lla pqk LlRmz
Bcmel fVij
1919 pm hVn plLl lJmV BCe fp Llz H pju jqe ce Llj Qyc LwNpl ea qph
ilal lSeaa Bhia qez Hl BN ae crZ BLl na plLll dj J hZho
AaQl J efsel hl paNq Bcme flQme Ll Ma ASe Llez N Rme Aqwp
eaa hnpz lJmV BCe ilal phll SeNZL hVn npel fa hr Ll amz jqa
Nl XL 1919 pm 6 Hfm pl ilahf qlam fma quz lJmV BCel hl Aea
pjhn fhl Ajapll SmueJumhN 13 Hfm Selm JXull ecn hpwML
elq SeNZL elih qa Ll quz Caqp H OVe SmueJumhN qaL ej flQaz
HC qaLl fahc hnLh lhceb WLl hVn plLl fc eCV Efd flaN Llez
Mmga Bcme
SmueJumhN qaL kMe NV ilahp hceqa, aMe all fa hVn ea jpmjecl
hr Ll amz fbj hnk al Sjel fr Ahme Llzilal jpmjel all pmaeL
jpmj hnl Mmg h dju ea qph n Llaz HC k pmae hVel hl kNce Llm
ilal jpmjel HL ALl flal jMjM quz dju cL bL al Rm all pmael
pjbL, AecL lS~eaLih hVn plLll fa AeNaz
Sjel fr eul Afld hVn ab jn pip pl jdj al pjSL hi Llz
all pjbe H Efjqcn Mmga Bcme l quz jJme Bhm Lmj BSc, jJme
jqjc Bm, jJme nJLa Bm J Bepll eaa NWa qu philau Mmga LjVz 1919
pml 17 Ahl fma qu Mmga chpz
ca Aea eMm ila Mmga pjme NL pifa ehQa Ll quz H pjme hVn
plLll cJu Mah J QLl hSe Hhw fuSe MSe h Lll p eu quz jpmj mNJ
Mmgal fn jqa Nl pqkNa fuSe hm je Llz NJ Mmga Bcme LwNpl
AwnNqZl frfa Rmez
ApqkN Bcme (1920-1922)
fbj hnk flha Ab~eaL jc, eafuSeu hcl jmh pdlZ SeNZl ApoL
ahal Llz H flaa N 1920 pm qc-jpmj ILl ia Aqwp ApqkN Bcmel
XL cez ApqkN Bcme LjpQl Ai cn fZl fpl, plLl Mah J hcmu hSe,
Lcu J fcnL BCepil ehQe hSe, hVn h hSe, QlL J Mll hfL fQme Hhw qc-
 198

jpmjecl IL nnmLlZz Mmga J ApqkN Bcme ilahf HL NZBcme lf

euz qc-jpmje ehno ph ll jeo HC Bcme AwnNqZ Llz
Mmga J ApqkN Bcmel avfk
ila J hwmu jpmjel Mmga J ApqkN Bcmel jdj fbjhll ja hVnhld
Bcme AwnNqZ Llz qc-jpmje eacl kb eaa flQma HC Bcme cC pfcul
jd lS~eaL pjTa p Ll, nqll nra jpmje khLcl lS~eaL Bcmel fa
Evpq Ll amz ah, Mmga J ApqkN Bcme qc-jpmjecl ILL Qlu Lla
flez ApqkN Bcme qWv h Lll gm jpmjeNZ LwNpl Jfl r quz ihoa qccl
pb ILh Sau Bcme acl pwnu p quz hwmu Mmga J ApqkN Bcmel hbal
fl qc-jpmj jme Bl ph quez
lS J hm f 1922-1926
1922 pm ApqkN Bcme faqll fl ilau LwNp eahcl jd fVl ihov Ljf
eu jahld cM kuz jamm eql J Qle cpl eaa LwNpl HLwn 1923 pm NWe
Ll lS fVz
1919 pml pwl BCe Aeku 1923 pm Aea au ehQe Awn eu lS cm Bnaa
gm mi Llz ehQe lS cm Lcu BCepiu pwMNl cm qph BafLn Llz hwml
85V pdlZ qc J jpmje Bpel jd lS cm mi Ll 47 V Hhw Hl jd 21 V Rm
jpmje Bpez cnh Qle cnl Lnm eaal LlZ lS cml Apje HC hSu ASa
quz Qle cnl eaa hu LwNp LjV hwml jpmje eacl p 1923 pm HLV
pjTau fRez HC pjTa hm f h hwm Q ej flQa quz Bhm Lmj BSc,
Juqc qpe, Bm Llj, epj Bm fjM jpmj ea hwm Q pfce lafZ ijL
lMez HC Q Rm hwmu qc-jpmj jmel Se HLV hm fcrfz Qa fana Rm k,
lS ASel fl ph fnpeL fcl naLl 55 iN fh jpmjelz HC fanal Awn qph
qpe nqc pqlJuc Hhw qS Bl lnc MeL kbj LmLa fl Lflnel XfV
jul Hhw LEpm lS fVl pfcLl fc fce Ll quz
L qc-jpmjecl HC ILJ hnce VL bLez LwNp J lS cm hld qcl hwm Ql
ah hlda Llz qc jqpil J pwNWe Bcme Hhw jpmjecl ahmN J
aeSj Bcme pfcuL pfa he Lll Se kb Rmz 1925 pml 16 Se Qle
cnl ALmja qc -jpmj jm J ILl pheL Ll cuz
pCje Ljne
ila npe BCel LkLla Hhw ila Bl lS~eaL J npeaL AdLYl fcel phe
kQCul Se ila npe BCe HLV pjr NqZl hde Rmz pC hde Aeku avLme hVn
plLl 1927 pm pl Se pCjeL Qulje ek Ll 8 pcpl HLV hdh fmjVl
Ljne NWe Llz HC Ljne Le ilau e bLu LwNp, Sql eaa jpmj mNl HLwn,
ilau mhlm fV H Ljne faMe Llz ilahpl Se EfkN npe pwll Se LwNp
jamm eqll eaa HLV lfV fn Ll, AecL jqjc Bm Sq OoZ Lle jpmj
mNl pcplC ila jpmjecl HLj faedz
BCe Aje Bcme
ilaL Xjeuel jkc cuC hVn plLll En-hsmV mX BlECel HC OoZl fl
jqa N, jamm eql J jqjc Bm Sq Xjeuel hfl hsmVl pb prv Llez
L qan qa qu aclz HcL 1929 pm ila felu pn hfh Bcme l quz fZ
lS fal cha 1930 pm N l Lle BCe Aje J paNq Bcmez
fbj l qu mhZ BCe Aje Bcmez pjl fe gVu mhZ ~al Lll Jfl hVn plLll
eod Rmz jqa N 79 Se paNqL eu phlja Bnj qa cCn jCm yqV SlVl
X ejL e fR pjl fe bL mhZ ~al Ll BCe Aje Bcmel pQl Llez H
BCe Aje J paNq Bcme Mh a ilal ph Rsu fsz jpN J fVuMma paNq
Bcme Rm MhC nnmz BCe Aje Bcmel HLV lafZ cL Rm el pjSl
AwnNqZz
Nm Vhm ~hWL
ilal npea fZue fn hVn plLl 1930 pm me Nm Vhm ~~hWL Bqhe Llm jqjc
Bm Sq, H L gSmm qL, aS hqcl pf J hBl BcLlpq hn LR lSeaL kN
cmJ LwNp H ~hWL kNce hla bLz Sq HC ~hWL ayl Q cg ch fn Llm qc
faedcl pb H eu ah jahld quz no fk i ku fbj NmVhm ~hWLz LwNp ke
Nm Vhm ~hWL kNce Ll H Se 1931 pm hsmV mX BlECe jqa Nl pb HL Q
Lle k N BlECe Q ej flQaz H Q Aeku hVn plLl ph lShcL j Hhw
cjejmL BCe lc Lll fana cuz L ila pwMmO pfcul faedal fn N Hhw
jpmje faedcl jd Le Bfo e qJuJ au Nm Vhm ~hWLJ hb quz
1932 pml 17 BN Cwml fdej ljp jLXe pfcuL hVull OoZ ce,
kMe ilal jpmje, nM, Me fia pwMmO pfcuL fbL ehQel AdLl cu quz
1933 pm LS hnhcmul R Qdl lqja Bm ilal lS~eaL SVmal pjde qph
fh, hmQe, El fQj pj fcn, p J Lnl HC fyQV fcn eu fLe ej HLV
 199

fbL l NWel fh Llez aau Nm Vhm ~hWL ae Sq fha klu plLl NWel
pjmQe Llez pCje Ljne J NmVhm ~hWLl BmL 1935 pm ila npe BCe fhae
Ll quz HC BCel fde ~hn Rm ila npe klu plLl fa Hhw fcnml fcnL
unpe fhaez
mql fh (1940)
1940 pml 23 jQ mql Aea jpmj mNl Adhne H L gSmm qL Efa fhC
IaqpL mql fh qph flQaz Efjqccnl lSeaa H fhl la Aflpjz mql
fh Efjqcnl El-fQj J fhbml jpmj pwMNl HmLml HLdL de l
NWel p Nqa quz H fhl jm hh Rm BbmL dLl, BaeuZl AdLl J
phija ASez fnfn H fh pwMmOcl dju, pwaL, Ab~eaL, lS~eaL J fnpeL
AdLl Hhw blrl frJ ja fLn Ll quz 1946 pml 9 Hfm jpmj mN cmu BCepil
pcpcl HL Leiene mql fh pwnde Ll jpmj pwMNl Abm eu HLVj de
phij l NWel Lb fh Ll quz
1939 pm jqjc Bm Sq OoZ Lle -Sa a Sql ja, jpmjel ilal pwMmO
pfcu eu hlw HLV Saz qc J jpmje EiuC fbL cV Saz EM k, mql fhl
LbJ -Sa al EM Rm e, HjeL fLe nVJ e, kcJ H fh a fLe
fh qph flQa mi Llz
fp jne (1942)
au hnk fh lZe hVn hqel hfku J Sfecl hj cMml fl ilau SeNel
pqkNal fuSe Aeih Ll hVn fdej ECeVe QQm ayl jpil pcp VgX fpL
HLV npeaL flLfe cu ila fWez 1942 pml 23 jQ fp euc fRe Hhw
LwNp, jpmj mN J Aee cml pm Bmf-BmQe Ll ayl npeaL flLfe Efe
Llez fp fh hm qu k, k no qhl fl ilaL KfehnL unpe cJu qh Hhw
npea lQel Se HLV pwhde pi NWe Ll qhz L HC fh LwNp h jpmj mN LE NqZ
Llez LwNp Ahi ila pjbe Ll Hhw jpmj mN mql fh hhuel jeih foZ
Llz gm hb qu fp jne Hhw LwNp l Ll ila Rs Acmez
Cue enem Bj J eaS pio hp
pio Qc hp cC juc philau LwNpl pifa Rmez ae hnp Llae k, Aqwp faa
ilal dea ASe ph euz ae philau LwNp LjVa fZ deal pjbe hh cu
jqa Nl pb aL c Ssu LwNp pifal fc aN Llez Hlfl ae philau
gluX hL ej HLV lS~eaL cm Ns am far pwNjl jdj hVncl hasa Lll
LjpQ OoZ Llez
1941 pm 16 Seul Nqhc pio hp Nfe Nq aN Ll fnul qu Lhm fRez al
En Rm piua CEeuel pqk eu ila de Llz L Vmel pqk e fu ae
lj qu hme kez Sjea avLme evp npLhqel pquau ae fhp ilaucl eu
HLV pehqe Ns amez HRs hme bL ae HLV lXJ J pwhcf fLn Llez
1943-H pio hp Nfe HLV phjle Qs Ccenul pj fRez Sfel Bnp ae
Sfecl qa hc ilau ~~pecl HLa Lle J lphql hpl pm kbih HLV ilau
pecml eaa NqZ Llez Hlfl 1943 pml 21 Ahl ae BSc qc plLl fa Llez
Sfe AdLa pwNfl BSc qc plLll Au Lkmu fa quz pio Qc hp HC pju
Qm c HC nNe eu hVn-ilal El-fhbml pje Sul Q Lle, L al Cgm
J hj Aike hb quz ah Sfe e-hqel pquau hVn AdLa Bcje J eLhl f cV
BSc qc gS de Ll pMe ae BSc qc plLll euZ fa Llez
Sfe hje Ll lZe bL gll pju aL hqeLl hjeV eMyS qu kuz Hlfl Arn
fR qVa l Llm BSc qc gSJ hi pl BapjfZ Lla l Llz
al hMa HLV E Rm- ajl BjL l cJ, Bj ajcl dea chz
1943 pml cir
eSjEe jpi NWel flflC cirl Lhm fs hwmz Sfel hj cMm Llm
pMe bL hwmu Qm Bjce h qu kuz kl LlZ e kNkN hhJ hfk qu fsz
hwml Mcnp ~peLcl lpc qph fWe qu Ae Hhw Apd J jegMl hhpul Mcnp
cjSa Llz fh plLl hwmu Mcnp flZ BNq qmJ de-Qml LXew hh Qm bLl
Se a ph quez HRs Aehl gm hwml Mc EvfceJ qp fuz phen H cir 30
mMlJ hn jeol ja qu hm Aeje Ll quz cirl LlZ Aepe plLl NWa EX qX
Ljne gSmm qL jpi J jpmj mNL cu Llz
LheV jne flLfe
1946 pm ila pQh fbL mlpl eaa HLV faed cm ila Bpz H pju
jpmj mNl HLV Leine bL LheV jneL fLe ch je eu lS~eaL pwLV
elpel Bqhe See quz LheV jne LwNp J jpmj mNl pb Bmf BmQel fl
1946 pml j jp ilal ihov npea pfL pec fh fn Llz LwNp H flLfeu
HLLcL plLl NWel jd acl AM ila NWe chl fagme cMa fuz AecL jpmj
mN Nfw hhl jd acl LMa fLe ll phe far Llz L no fk LwNp H
flLfe faMe Llm Hl fauu jpmj mNJ H flLfe faMe Llz LheV jne
 200

flLfe hb qJul fl 1946 pml SmCu ha Aea jpmj mNl Adhne fLe
ASel Se far pwNjl p Nqa quz 16 BNV cnhf far pwNj chp fmel XL
cu jpmj mNz gm LmLau pwOVa qu qc jpmjecl jd lru HL pfcuL cz
jpmj mN npa LmLa flpi c elpe ~nbm cMuz fyQ qSllJ hn elq jeo Ha
fZ qluz H c jn euMm, Lj, parl, hlnmpq hwml hi Am Rsu fsz
pfcuL Ahl jlaL Ahea OVm hVn plLl ilaucl LR rja qll CR OoZ
Ll Hhw mX Juiml flha mX jEVhVeL ila hsmV qph flZ Llz
hp pqlJuc fh
LwNp ea nlv hp Hhw pqlJuc 1947 pml Hfm AM hPm fal fh
Llm hwml jpmj mN pfcL Bhm qnj H fh pjbe Llez hp pqlJuc fh ej
flQa H fh hwml eS pwa J Iaq pja lMl BLM foZ Ll quz fLafr
hwml de p J qc jpmje pfa fell HC fh Rm phno fQz LwNpl AhPm
J lrZnm eal H fQl ah hlda Llz AecL LwNp fLe ch je em lS~eaL
fla i Qql euz gm hp-pqlJucl AM hwm NWel fQ hb qu Hhw ila hiN
Aehk qu fsz 1947 pml 14 J 15 BN fLe J ila ejl cV eae ll Se quz
fLe Bjm (1947-1971)
-Sa al ia 1947 pml 14 BN Sj qu fLe llz IaqpL mql
fhl BmL pwMNl jpmjecl Se hn LuLV l fal Lb bLmJ hh a quez
gm cV Bmc ~hnfZ iM eu cs qSl jCml hhde fLe ll Eh OV, kl
HLV fh hwm h fh fLe, AeV fQj fLez fLel fbj NZfloc fh hwml
pwMdL bL pJ Niel Selm J fdej EiuC ehQa qu fQj fLe bL, lSdeJ
fa qu pMez fLel pwMNl jeol io hwm qmJ luih H ioL fLe
npLN LMeJ La cuez gm fbj pwOa ~al qu io euz
io Bcme
hwmcnl lS~eaL pwNjl Caqp io Bcme HLV Aee IaqpL OVez
fLel SepwMl fu naLl 56 iN jeol jaio Rm hwm, AecL Ec ioiol pwM
Rm j 6 iNz pwMNll io hwm qJu pJ fLe npLN liol fn hwmL
Efr Lla bLz Efra qu fQj fLel Aee pwMNl ioJz
1947 pml 6 J 7 pVl YLu apL qpel pifaa fh fLe kh Lj
pjme fh fLel Agp-Bcma Hhw nrl jdj qph hwm fQmel ch Seu fh
Nqa quz Hlfl aje jSmn 1947 pml 15 pVl fLn Ll io Bcmel fbj fL
fLel lio, hwm e Ecz H fLu AdfL Bhm Lpj, LS jaql qpe Hhw
Bhm jepl Bqjc hwm iol fr k fcne Ll Ecl pb hwmL fLel Aeaj lio
qph jkc cul ch Seez 1947 pml Ahl aje jSmn io BcmeL pwNWa
Lla NWe Ll lio pwNj flocz H pju lio hwml kLa hM Lll En
BuSa hn LuLV BmQe piu hh lMe Lh SpjEe, qhhq hql, LS jaql
qpe, AdfL Bhm Lpj fjMz
1947 pml Xpl LlQa Aea nr pjme EcL fLel lio Lll
p Nqa quz H pl fahc 6 Xpl YL hnhcmu fe AdfL Bhm Lpjl
pifaa HL Rpi Aea qu z pino Aea HLV jRm ~puc BgSm fjM jcl p
prv Ll hwm iol pjbe acl fana Bcu Llz
1948 pml Seula hwmL lio Lll En YLu eae Ll NWa qu lio
pwNj flocz pwNj floc iol fn k cV ch fn Ll a qRx HL. hwm ioC qh fh
hwml (fh fLe) nrl hqe J Agp Bcmal io Hhw cC. fLel lio qh cV-
hwm J Ecz
1948 pml ghul jp fLe NZflocl fbj Adhne CwlSl fnfn Ec
ioa Adhnel Lkj lLX l qm fh hwml NZfloc pcp Ljl dlceb c Hl
fahc Lle Hhw hwm ioL Nlflocl Aeaj io qph Lal ch Seez L NZfloc
H ch faMe Llm fh hwml R-nrL-hSh jqm Apo cM cu Hhw Hl fahc 26
ghul YLu djOV Bqhe Ll quz 2 jQ YL hnhcmul gSmm qL qm fh hwml hi
pwNWel HL pi Aea qu Hhw Ljle BqjcL pifa ehQa Ll NWa qu phcmu
lio pwNj flocz pwNj floc 11 jQ bL pdlZ djOVl XL cuz JC ce YLu h R
Bqa qu Hhw hwmL lio Lll cha 13 jQ felu YL hnhcmu J Aee nr fae
djOV fma qu Hhw HC djOV 15 jQ fk Qmu kJul p quz cnl ph SmaJ HC
djOV fma quz H Ahu jMj MS eSjEe pwNj flocl pb 15 jQ BmQeu hp
HLV Q rl Llez Qa BVL Rcl j, fmn AaQll ac, hwmL lio Lll
fh BCe floc Efe Hhw 144 dlpq pwhcfl Jfl Blfa eod faql Cac
hou Ai Rmz
1948 pml jQ jqjc Bm Sq YLu Bpe Hhw 21 jQ YLl avLme lpLp
juce HL ioZ cez Sepiu ae OoZ Lle Ec Hhw HLj EcC qh fLel lioz 24
jQ LSe qm Aea YL hnhcmul pjhae Aee HLC Lbl felh Llm Efa Rl
 201

e e hm ah fahc Seuz JCce lio flocl fr bL hwmL fLel Aeaj

lio Lll ch Seu SqL HLV plLmf fce Ll quz
Blh qlg hwm fQmel Q
1948 pm LlQa Aea eMm fLe nr pjme Cpmj Bcnl du am hwm
iol Se Blh qlg fhael fh Ll quz Blh qlg fQmel Se X. jqjc nqcqL
euNl fh EWm ae a faMe Llez HC fQl fahc YL hnhcmul hwm hiNl
RRl 1949 pml Hfm hwm qlg flhae e Lll ch Seu fLe nr Efc, hX
J hZjm hno LjVl LR HLV plLmf fn Llz
io Bcmel Qs fku
1949 pml nocL fLel fdej muLa Bm Me YLu Bpm YL
hnhcmul R pwpcl fr bL ayL cu jef hwm iol ch felu Efe Ll quz
L houV Hsu ke aez HLC hRl Aea fh fLe pqa pjmeJ X. jqjc nqcq
iol fnV Efe Llez 1950 pml pVl jp fdej muLa Bm Me NZfloc OoZ
Lle k, EcC qh fLel lioz fh hwml SeNZ H OoZl fahc Sem NZfloc
iol fn BmQe Na qu kuz
1951 pm Baaul qa muLa Bm Me eqa qm MS eSjEe fLel
fdej ek qez 1952 pml Seul YLl HL Sepiu ae OoZ Lle, EcC qh
fLel lioz MS eSjEel H Ooeu fh hwml NZjep fQ ril p qu Hhw
Hl fahc fcnhf djOV J qlam LjpQ XL quz pceC BaEl lqje Mel pifaa
LS Nmj jqhhL BqhuL Ll phcmu lio pwNj LjV NWe Ll quz H pwNj LjV
liol ch fa e qJu fk Bcme Qmu kJul p OoZ Ll Hhw 4 ghul R
djOV J 21 ghul lio chp fmel p euz HcL 1952 pml 16 ghul YLl
Lcu LlNl hc bL Ahu nM jSh J Rea jqEe Bqjc lio hwm J hc
jl cha AjlZ Aene l Llez elm Bje plLl R Bcmel iu iap qu 20
ghul hLm 3Vu 144 dl Sl Ll jRm J Sepjhn eo OoZ Llz L 21 ghula
RRl pwNWaih 144 dl i Ll YL hnhcmu Lfp bL jRm hl Ll Hhw
lio hwm QC nNe ca ca fcnL floc jM ANpl quz fmn Efa R SeaL
Ri Lla Lyce Np hhql Llm pwOo hydz HL fku fmnl ma Sl, lgL, hlLa,
pmjpq AeL nqc qe, Bqa qe h R Seaz H qaLl Mhl cheml ja YL nql
Rsu fs Hhw Hl fahc 22 ghul HLV hnm nik hl quz H nikl Jfl J
fmn m Qmu Hhw eqa qe ngEl lqjez HceC jXLm LmS Rhp Rcl BmQeu
nqccl pa lrb nqc jel ejZ Llz 23 ghul nqc ngEl lqjel fa BeeLih
nqc jel Ede Llez L nqc jelV fmn 24 ghul pu su cuz
H flaa elm Bje plLl fcnL floc p eu k, hwmL fLel
Aeaj lio qph NZ Lll Se NZfloc fh Efe Ll qhz Ahlj R J
NZBcmel jM fLe plLl hwmL Aeaj lio qph La ca hd quz 1956
pml npea hwmL Aeaj liol jkc fce Ll quz
1952 pml io Bcme Rm fh hwml SeNZl NZQael fbj pwNWa hqxfLnz H
Bcmel QaeC flha pju pwOVa faV Bcmel flZ SNu Hhw SeNZl lS~eaL,
pwaL J Ab~eaL jl fbL pNj Ll dea ASe ijL lMz
fLe jpmj mN hld Bcme
rjau Bpl fl jpmj mN plLl fh hwmu cV hnm Bcmel jMjM quz fh
hwml LjEeV fVl eaa aiN Bcmel h h fm elm Bje plLl cje eal
Bnu euz 1949 pm jujepwql qSw Am mi fbl hl LjEeV ea je pwql
eaa qSw LoLl pn Bcme l Llz AecL Elh l qu LoL hqz lSnql
eQm pyJam LoLcl HC hq eaa cuRme lje j J Cm jz Cm jl pwNWel
cra J Bfoqeal LlZ ae qu JWe JC Bcmel lZ j z HC hq cje Hp
fmnl fyQ pcp J HLSe LjLa eqa qm fnpe J jpmj mNl fVu hqe Bchp
pyJamcl Efl elLu qak l Llz Cm jl Jfl Qm AjeoL ekaez 1950 pml HC
OVe hwml fNanm Bcme eae j kN Llz
dLl pwNj 1954-1970
BJuj jpmj mN NWe
io Bcmel fVij, fLe plLll ANZaL jeih, frfajmL plLl
eal fahc 1949 pml Se jp YLu NWa qu BJuj jpmj mNz BJuj jpmj mNl
fbj pifa Rme jJme Bhcm qjc Me ipe J pdlZ pfcL ek quRme njRm
qLz BJuj jpmj mN Ns bLC fh hwml dLll fn Bfoqe Rmz acl NWea
fLel BmL CEeVml BaeuZl fZ AdLl Hhw fh hwml eS fcaL, e J
hjehqe lMl houV Ai Rmz ApfcuL cm qph fa fa 1955 pm H cml ej
bL jpmj nV hc cu quz
Qu pml fcnL ehQe J kV
jpmj mN plLl hlhl fh hwml pdlZ ehQel alM fRa fRa Ahno
1954 pml jQ pdlZ ehQe Aeel OoZ cuz ehQe jpmj mNL fald Lla
 202

hld lS~eaL cmm SVh qu NWe Ll kVz jJme Bhcm qjc Me ioe, nl
hwm H L gSmm qL Hhw nqc pqlJucl eaa BJuj jpmj mN, LoL fS fV, eSj
Cpmj J NZa cml pjeu 1953 pml 4 Xpl NWa qu kVz
kVl 21 cg LjpQ
fh hwml NZjeol Bn-BLML fagma Ll kV 21 cgiL ehQe
Cnaql fZue Ll Hhw H LjpQl ia ehQe Awn euz kV fZa 21 cg Rm jma fh
hwml SeNZl unpel chz H LlZ hwml SepdlZ kVl 21 cgl fa AL pjbe
Seuz H ehQe fh hwml BCe flocl 309 V Bpel jd kV 236 V, jpmj mN 9V,
LwNp 24 V , agpm gXlne 27V, Mmga le fV 1V, Me 1V, h 2V, LjEeV
fV 4V Hhw ecmu pcpl 5 V Bpe mi Llz jpmj mNl jMj elm Bjepq fcnL
jcl phC nQeuih flSa quz
nl hwml eaa kV jpi
kV ea H L gSmm qL phpjaj fcnL BCe flocl ea ehQa qm fh
hwml Niel Qdl MmLje gSmm qLL jpi NWel Bqhe Seez 1954 pml 3 Hfm
NWa qu kV jpiz jpil alZ pcp nM jShl lqje fh hwml ch cJu, hnoa
uanpe Bcu hnoih avfl Rmez hwmL lio, 21 hulL nqc chp J plLl
RV OoZ Hhw hdje qEpL hwm HLXj Lll fh kV jpi Aejce Llz
fLel npLN kVl H hSuL pqSih NqZ Llez gSmm qL fahn l
ilal pb pqcfZ pfL fe BNq Rmez nl hwml H Ecl jeihl hl al
Lvp lVe l Ll, HjeL ayL lq qphJ BM cuz kV jpi ham Lll ASqa
pl Se Lcu plLl eeih Q Qma bLz H fQu AhPm Bjml avfl qu JWz
BCe-nMm flal Ahea OVel Se fLe npLN 1954 pml j jp
eluZNl BcjS SV jm J QcOel LZgm LNSl Lm hPm J AhPm njLcl jd
fQ HL c hdu cuz HjeL fh hwml HLj pn hqe CV fLe lCgmp L fh
SJpl Laade Ll quz Hih kV jpil hl osk Qs qm Niel Selm Nmj
jqjc 1958 pml 30 j jpi i cez
fh hwmu Lcl npe
fLe npLl eScl p AlSLa J fcn Anl Se kVL cu Llz Niel
Selm Nmj jqjc kV jpi iP cul fl npeal 92(L) dl Aeku fh hwmu
Lcl npe Sl Lle Hhw jSl Selm Ccl jS fh hwml Niel ek qez Niel ek
quC ae nl hwm H L gSmm qLL Nq BVLpq ApwM kV ea-LjL Ngal Llez
1956 pm pwMpjl ia fLel fbj npea lQa quz H npeal jdj
fLe Cpmj fSal ej dlZ Llz fQjmu fcnmL HLa Ll HL CEeV NWel
gm Hl ej qu fQj fLe Hhw fh hwml ej qu fh fLez Nmj jqjc H pju
fcaN Llm 1956 pml 23 jQ Ccl jS NZaL plLlhld ijLu Ahae qe Hhw
alC qrfl LlZ Lc jpmj mN Lumne plLll fae quz 1956 pml 12 pVl
nqc pqlJucl eaa Lc NWa qu BJuj mN-lfhmLe Lumne jpiz H jpi
fh fLel Eue LaLm Se XBCV Hhw Q~Nj Euel Se pXH, NWe, BCXhEVH,
SV jLVw Lflne Hhw HgXp Cac JC pjuC faa quRmz L ~hcnL eal fn
pqlJuc J jJme ipel pb jahld quz gm cm bL fcaN Ll jJme ipe
1957 pml 27 SmC NWe Lle enem BJuj fVz
HcL Ccl jSl Q 1957 pml 10 Ahl Lc pqlJuc jpil fae
OVz Hlfl 18 Ahl CpjCm Chqj QcNs-Hl eaa jpmj mN -lfhmLe jpi NWa
quz Hl LRce fl lfhmLe fVl glS Me ee fdej qez ae 1956 pml npea
Aeku 1959 pml 16 ghul fLel fbj pdlZ ehQel alM OoZ Llez H pju fh
fLel fcnL floc NmkNl gm XfV fLl nqc Bml ja quz
pjlL npe Sl
fcnL floc hnMm Hhw XfV fLl eqa qJul gm fLe npLN
pqSC H Am lS~eaL qrfl ASqa MyS fuz fpXV Ccl jS 1958 pml 7
Ahl H OoZhm cn pjlL npe Sl Ll cnl npea, BCe floc, Lcu J fcnL
jpi ham Llez ae lS~eaL cmm eo OoZ Ll pLm lS~eaL Lkj h OoZ
Llez fde pefa Selm jqjc BCuh MeL fde pjlL npeLa euN Ll pjN
fLeL LuLV pjlL HmLu hi Ll quz jSl Selm JjlJ Me fh fLel fde
pjlL BCe fnpL ek qez Hih fLel Caqp pjlL npel pfa quz eae
pjlL elf BCe Bhm jepl Bqjc, nM jShpq h ea J floc pcp Ngal qez fde
pefa Selm BCuh Me j 20 cel hhde fpXV Ccl jSL rjaQa Ll aL
cnaN hd Llez
1958 pml 27 Ahl Selm BCuh Me eSL fLel ehQa fpXV
qph OoZ Llez lS~eaL eacl hl ehQl Sefa J ceal AikN Beez
lS~eaL ekael fnfn BCuh Me jmL NZaej HLV lS~eaL fu l
Llez H faa ae flr HL ehQe hh Qm Lle, kMe Lhm CEeue floc
 203

QuljelC iV fcel kN Rmz 1960 pm Hph jmL NZal B iV BCuh Me

fLel fbj fpXV ehQa qez
BCuh Me 1960 pml 5 Hfm SLl qpel flha Selm Bkj MeL fh
fLel Niel ek Llez BSj Me u LkLmfl LlZ fh fLe Sefu qu EWmJ
hn ce Niel bLa fleez Hlfl LRce Niel Rme Nmj glLz aL plu BCuh Me
al fRcl mL Bm jej MeL fh fLel Niel ek Llez al Bjm lS~eaL
pp J AlSLa Qlj fRz 1969 pm NZAie fae OV jej Melz
pjlL npehld Bcme
BCuh Me 1960 pml 2 jQ pjlL BCe faql Lle Hhw HLV npea Qm
Llez H pju fLel lSde LlQ bL Cpmjhc el Ll quz pwMNla pJ
YLL Lhm ejj au lSdel jkc cul Lb hm quz H npea BCepi, jfloc,
Niell rjaL pwLQa Ll fLa rja fpXVl qa lM quz H pju qpe nqc
pqlJucL cnqal AikN Ngal Ll qm fh fLe fQ hri cM kuz gm
lShccl jpq eae npea haml ch ah lf euz fla jLhml Se BCuh Me
cje eal Bnu ee Hhw Ngal qe nM jShpq h lS~eaL eaz
eae npea ham, cn fZ NZa fa, pqlJuc J nM jShpq ph lShcl
jl cha YL hnhcmul Rl AecLml Se djOV l Llz Rl 1962 pml 17
pVl qjcl lqje nr Ljnel hl fahc Seu Hhw ~~lQl BCuhl hl
fcnhf qlam fme Llz HVC Rm fpXV BCuhl hl fbj NZ-Bcmez BCuh
Rme lS~eaLih EQimpz p LlZ lS~eaL cmhd ej HLV BCe fZue Ll ae
lS~eaL cmml felhe OVe Hhw uw jpmj mNl HLwn eu NWe Lle Leiene
jpmj mN ej HLV lS~eaL cmz BCuh Mel ~lnpel Ahpe Hhw jmL AdLlL
felll Se lS~eaL eahc enem XjVL V-HeXHg ej HLV lS~eaL jQ
NWe Llez H Vl Aeaj ch Rm 1956 pml pwhde fehqm Llz
1965 pml 2 Seul jmL NZal ia ACuh Me fpXV ehQe OoZ Lle
Hhw eS Leiene jpmj mNl fr bL fb qez Hjahu AdLwn hld cm jma qu
pjma hld SV SV NWe Ll jqjc Bm Sql he gaj SqL fb ehQe Llz
fLel fNanm SeNZ pjbe LlmJ jmL NZa fbu gaj Sq flSa qez
jl pwNj lhceb J eSlm
pjlL npejm hPml pwaL Shel EflJ BOa Bpz lhceb hPml
Sapl ARc Az lhcebl hZ fLe npLcl Se Rm iaLl, LlZ acl lQ
lhcebl Ea hPm Sauahd J j Ql flfz H LlZC 1965 pml fL-ila kl
pju fLe plLl hlcebl lQel fQl plLl hal J pLm NZjdj eo OoZ Llz
ajm Bcmel gm plLl H ecn faql hd quz pwaL pwNWe RueV H Bcme
pwNWe lafZ ijL lMz pwNWeV H pju bLC hwmcn dea ASel Se pwaL
Ae hPm Sauahc Qael hLm EcN ijL lMz
lhcebl ja hq Lh LS eSlm CmpjJ hPmL QlLm AefZa LlRe
Aeu AhQll hl fahcz al Lha J Ne hPml pLm Bcme pwNj bL l Ll
1971 pm jqe jkJ qeclcl hl msC Lla pqp kNuRz
1965 pml ila-fLe k
1965 pml pVl Lnl fn ila-fLe pfLl Ahea OVm l qu kz 17
cel HC fL-ila k m J hje hqea hPm pel Aph Laa cMe, HjeL acl
pqpLal LlZC mql lr fuz SapwOl qrf khla OVz piua fdej
LpNel BjZ fLel fpXV BCuh Me J ilal fdej mm hqcl n 1966
pml 10 Seul piua EShLel lSde apMc HL n Q rl Llez Caqp H
Q apMc Qej flQaz
1965 pml fL-ila k elfl r fh fLel iNmL Apqua EeQa
quz kl pju fQj fLel pb ph kNkN hR qu fsm fh fLe HLhlC
Alra qu fsz H Aml SeNZ phfbj hTa fl hqxnl qa bL lr fJul r
acl Se Le hh eCz
hwmcnl fa ~hoj
fLe pl l bLC cC Awnl lS~eaL, pjlL, fnpeL J Ab~eaL ~hoj
jNa hsa bLz HL fku H ~hojl j fLV BLl dlZ Llz
lS~eaL ~hoj
fLe ll Sel fl bLC fh hwm lS~eaL hojl nLl qa l Llz ll
lafZ fc cV Rm fQj fLel cMmz SepwMl cL bL pwMdL bL pJ fu ph
r fh fLel fa ~hojjmL ea AeplZ Ll quz HjeL BCe floc fh fLeL
pwMpj ea jea hd Ll quz
fLel Hph ~hojjmL eal fahc kMe fh fLel SeNZ uanpe J
dLll ch am, aMeC fQj fLe npLQ Qma bL cje eaz nl hwm gSmm
qL, nM jShl lqjepq H Aml lS~eaL eacl cnq BM caJ Lhd Lle alz
pjlL ~hoj
 204

pjlL r ~hoj Rm pjqez fLel cnlr hqel 3V clC Rm fQj

fLez pjl LlMeJ Rm pMez cnlr hqel EQfc hPmcl Le e Rm e, fQj
fLecl e Rm fu HLQVuz pjlL cL bL fh fLe Rm MhC Ahqma Hhw
Alraz 1965 pml fL-ila kl pju H pa phl LR fll qu JWz
Ab~eaL ~hoj
fLe npejm fh fLe jlaL Ab~eaL jlaL Ab~eaL ~hojl nLl quz
fcnL plLll qa j hh J Abea euZl Le rja e bLu fh fLel ph Bu
Qm ka fQj fLez Lcu hwLpq fu ph hwL, hj, hZS, plLl-hplLl fae
Hhw hcn jneml Lkmu Rm fQj fLez H Aml Se fuSeu Ab kNel hflV
Rm fQj fLel cul Jfl eilnmz AecL E pu pMe Sj bLa, k LlZ
hwmcn LMe jmde Ns EWa flez
fLel ~hcnL jl cC-aauwn ASa qa fh fLel fV bLz L fVl
ekjm fVQol LMeJ fuez ee ASqa ~hcnL jJ hu qa fQj fLez hcn GZ
J BbL pqkl AdLwn hu Ll qa fQj fLel Euez nfrJ fh fLe Rm
AeNplz fVLmpq k LuV nfLlMe Hcn Rm al AdLwnl jmL Rm fQj fLe
deLNz hnfl rJ fh fLe Rm fQj fLel Jfl eilnmz
6 cgx hPml jpec
fLe npLNl Ab~eaL, lS~eaL, pjlL ~hojl hl 6 cg LjpQ Rm
HL hm fahcz 1966 pml 5 ghul mql hld cml HL pjme hh nM jShl
lqje fh fLel lS~eaL, Ab~eaL J falrl ch pwhma k LjpQ OoZ Lle
Caqp a 6 cg ej flQaz mql Ba HL pwhcL pjme ae BeeLih 6 cg
LjpQ fn Llez HC cgm qRx
1. IaqpL mql fhl ia fLel Se paLl HLV klu npea
fZue Lla qh Hhw HC plLl qh pwpcu fal z phSee iVdLll ia f
hucl plpl iV ph ehQe Aea qh Hhw BCepiml phija La qhz
2. Lcu plLll qa Lhm cnlr J fll hou bLhz Ahn rja fcnml
qa bLhz
3. cnl cC Awnl cCV fbL AbQ pqS hejukN j bLhz Abh gXlm
hwLl Ade cC fcn cCV lSi hwL hhpq HLC dlel j Qm bLhz
4. ph dlel Ll dk Lll J Bcul rja bLh BmL plLll qaz BcuLa
lSl HLV Awn Lcu plLlL cul hh bLh ;
5. cC Aml ~hcnL jl Bmc Bmc qph bLhz fuSe cC Am bL
pjeih Lwh npea edla ql Ab Lc fh;
6. AlSml elfl Se BmL ~pehqe ab jmnu h fljmnu NWe
Lla ca qhz
6 cg fLel noa J ekaa SeNZl LR jl pec qph pjbe mi Llz
HC LjpQl Sefua h fa bLm plLl iap qu 6 cgL lhld Bcme
hm fQl Lla bLz 6 cg BcmeL faqa Lla plLl 0966 pml 8 j nM
jShpq h BJuj mN ea J LjL Ngal Llz H Ngall hl YLpq
fcnl phMe ril p quz BJuj mN fbj fahc chp fme Llz alfl hc
eacl jl cha 1966 pml 7 Se fcnhf HL phaL qlaml XL cuz
plLl qlam h 144 dl Sl LlmJ SepdlZ H eod Efr Ll
axgaih jRm hl Llz fmn jRmLlcl Jfl mhoZ Llm Lnl je jupq
11 Se eqa qu, Bqa qu na na hriLlz
BNlam osk jjm
cje eal jdj 6 cg BcmeL epv Lla e fl plLl i Lnm Ahme
Llz 1968 pml Seula nM jShl lqjeL fde Bpj Ll jV 35 Se pjlL J
hpjlL hl hl lqal jb jjm cul Ll quz AikN Rm k, al fahn
ilal pquau pn hfhl jdj fLe bL fh fLeL hR Lll Se ilal
BNlamu osk LlRz H jjm hQll Se HLV hno VChem NWe Ll quz Bpjl
eScl eco hm ch Llz L Ll Bcul Se aycl Jfl AjeoL AaQl Qme
quz
BNlam osk jjml fauu pjN fh fLel SeNZ BCuhhld NZBcme
pf quz H jjml Aeaj Bpj pSV Slm qL YL peehp fmnl ma nqc qm
Bcme Bl ah lf euz H Bcme eaa cu HNl cgl ia NWa phcmu R pwNj
flocz Ahno R Bcme J NZBcmel jM plLl jjmV am ea hd quz

Rcl 11 cg
1968 pml Xpl NZBcmel pju RpjS XLpl avLme pq-pifa
agum Bqjcl eaa phcmu R pwNj floc NWe Llz HC pwNj floc fh hwml
fNanm ph R pwNWel eal Ssa Rmez pwNj floc 1969 pml Seula 11 cg
 205

LjpQ Nqe Llz 11 cgl jd 6 cg LjpQL Ai Ll quRmz 11 cg LjpQa hnhcmu

AXep hampq nrl pkN phd h, AmL uanpe, f hucl iVldLl hL-
dea, hqv nf SauLlZ, LoL-njLl pkN phd h, elfr fll ea, Sll elf
BCe faql J lShccl jpq BlJ LR ch Ai Rmz
Eepll NZAie
1968 pml 27 Ahl BCuh OV Ll fLel Eue cnL fme Llez Lhm
Ab~eaL J lS~eaL rC eu, io J pwaL rJ fLe npLcl BOa fh fLel
pdlZ jeoL r Hhw fahc Ll amz HC flaa BCuhl Eue cnL fme NZje ah
ril pl Llz lS~eaL eahc HLeuLa Ahpe J jmL AdLl fal Se NWe Lle
pwNj flocz Rcl 11 cg Bcme HC E flaa eae j kN Llz
BCuhl lQl ijLl LlZ Lhm fh fLe eu, fQj fLeJ NZApo ce
hyd JWz 1968 pml eil fQj fLe R Seal Jfl ekael fahc pMeJ R
hri quz 1968 pml Xpl bL 1969 pml ghul fk fh J fQj fLe
BCuhhld hri Qlj BLl dlZ Llz
1969 pml 18 Seul 11 cgl cha R djOV fmeLm YL hnhcmul HLcm
R 144 dl i Ll Hhw Hcl AeL Bqa Ahu hc quz 20 Sekl qSl qSl R-
Seal pb fmn Hhw CfBl-Hl pwOo hydz fmn HL fku mhoZ Llm nqc qe YL
hnhcmul BCe hiNl R Bpcjez 21 Seul Bpcl ljM nV eu qSl qSl
jeo lu ej fs, p qu HL Qael k flha pju dea pwNj ijL lMz
flfl LuL ce djOV Qml fl 24 Seull fahc chpV lf eu jlaL
NZAiez JCce fmnl Efkfl ma nqc qe ehLjl ml R jaEl lqjepq Bl 6
Sez hr Sea nqc jaEll mn eu YLu hqv nik hl Llz Bl pC Selo B
qu ~ceL fLe J ~ceL jew eES fL Agpz j H Bcme plcn Rsu fs,
fQj fLeJ H Bcmel YE mNz 18 ghul lSnq hnhcmu fZ qa Ll qu X.
njpqLz ayl jal Mhl YLu Hp fyRm qSl qSl R-Sea hri gV fsz
fla Hje jlaL J hfeL qu fs k, YLu la LlgE Sl Lla quz Rcl 11 cg
Bcmel fnfn H NZApo k NZAiel p Ll pjlL hqe euN LlJ a cje
Ll ph quez Efl fhm Bcmel LlZ fLe plLl 1969 pml 22 ghul BNlam
jjm faql Ll ea hd quz gm fpXV BCuhl faeJ Aehk qu JWz Seal Qf
plLl 22 ghul nM jShLJ j ca hd quz fLel npeaL pjp pjdel Se
BCuh Me 1969 pml 10 jQ lJumfa lS~eaL eacl HL NmVhm ~hWL XLez H
~hWL nM jShl lqje felu 6 cg J 11 cgl ia uanpel ch Efe Llez L H
ch ANq qm nM jSh ~hWL hSe Llez Hih BmQe hb qJul pb pb BCuh Mel
rja lrl no fQJ hgm kuz NZBcmel jM fLel pjlL npL g jnm jqjc
BCuh Mel fae OV, npe rjau Be fLel Qaba j pjlL npL Cuqu Mez
BCe LWj Bcn
ehQa Sefaedcl jdj fLel pwhde lQel mr 1970 pml 30 jQ
mNm jJuL h BCe LWj Bcn Sl Ll quz H Bcn EM Ll qu k, ehQel i
qh phSee iVdLlz Sau flocl jV pcp pwM 313 Se lMl Lb hm qu, Hl jd 13
V Bpe Rm jqmcl Se pwlraz H Bcn Bl hm qu k, Sau floc NWel fl bL
120 cel jd pwhde fZue Lla qhz H BCe LWj Bcn fh fLel AdLwn
lS~eaL ea NqZ Lleez ayl ehQa NZflocl phija ch Llez
pll pdlZ ehQe
Cuqu Me 5 Ahl fLel pdlZ ehQel alM edlZ LlmJ BNV jp
LuLV Smu hel LlZ a fRu kuz 7 Xpl Sau floc Hhw 17 Xpl fcnL
floc ehQel alM l quz BJuj mN acl 6 cg J Rcl 11 cgl ia HLLih
ehQe faca Lll p euz
plZLml iuhq ckN
Xpl Aeah ehQel BN 12 eil fh fLel EfLmiN Caqpl
iuhqaj SmRp BejeL 10 bL 15 mM mLl ja OVz EfNq bL Tsl fhhp fJu
pJ kbpju plLlih Le paLajmL hh eu quez HjeL H iuhq OZTsl flJ
Lcu plLl Ahnp lLj eu Rmz ef ea Jum Me Rs fQj fLel lS~eaL
ealJ aje Le pqk pqkNa eu HNu Bpeez H OVe fh J fQj fLel jd
hcje hicL Bl hsu amz
ehQel gmgm
1970 pml 7 J 17 Xpl fLel Sau J fcnL flocl ehQe Aea quz
ah OeTshd HmLu Sau J fcnL flocl 30 V Bpe ehQe Aea quz 1971 pml
17 Seulz fLel cO fara HC pdlZ ehQe BJuj mN fh fLel 169 V
Bpel jd 167 V mi Llz fQj fLel BJuj mN Le Bpe e fuJ Sau floc
eln pwMNla ASe prj quz AecL fLe ffmp fV fQj fLe 88 V Bpe
fu au hqj cm qph BafLn Llz ah ffmp fVJ fh fLe Le Bpe fuez fh
 206

fLe fcnL BCe flocl 310 V Bpel jd BJuj mN 298 V Bpe fu eln
pwMNla mi Llz
BJuj mNl H Aiafh hSu fLe npLN Baa qu fs Hhw SeNZl
luL heQm Lll osk m quz
BhlJ osk
fLe ffmp fVl ea SmgLl Bm iV J Selm Cuqu Me BJuj mNl
qa rja ql e Lll Nfe osk l Llez ehQel fl Selm Cuqu Me YLu Hp
12 J 13 Seul BJuj mN fde nM jShl lqjel pb cC cg ~hWL hpez HjeL YL
bL LlQ hcl gl Cuqu Me pwhcLcl See, nM jShl lqje cnl ih fdejz
Seul jpl nocL SmgLl Bm iV YLu Hp nM jShl pb prv Llez Cuqu
MeJ Cajd nM jSh J iVl pb Sau flocl Adhnel ph alM eu BmQe
Llez hh nM jShl lqje fQj fLe eacl f Seu ce k, npea qh 6
cgiLz ae 15 ghul Adhne Bqel ch Seez
nM jShL ih fdej hm Aiqa LlmJ Sau flocl Adhne Bqe
Cuqu Me Vm-hqe ea Ahqa lMez Ahno 13 ghul ae OoZ Lle k, 3 jQ YLu
Sau flocl Adhne hphz L 15 ghul iV Seu cu k, 6 cg chl lchcm e qm
ae Adhne kN che ez ae fQj fLel Aee eacl Adhne kN e cul
fljn cez Sau flocl Adhne heQml ASqa pl Se ilau hje N ReaC
Lle qu Hhw mql hjehcl a dwp Ll quz iV ReaCLlcl Sau hl qph La
cez Cuqu Me Cajd iVl pb nmfljn Ll 1971 pml 1 jQ BLpLih Sau
flocl Adhne AecLml Se Na OoZ Llez
Cuqu Mel H BLpL OoZu YLpq pl fcn hri J fahcl Ts JWz
BJuj mN fde hh nM jShl lqje HL pwhcL pjme Bqe Ll 2 jQ YLu, 3 jQ
cnhf qlam Hhw 7 jQ lpLp juce Sepil LjpQ fce Llez YL hnhcmul
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dwpl pgma cMuz
jm
QVNj LVe lgL fbj fLecl BjZ Ll hfL pgm ASe Llez 25 jQ
chNa la qaC Lka QVNj de qu NuRmz k LlZ H pju QVNjl LmlOV
de hwm hal Lc fa Ll ph quRmz Hfml jTjT pju fhp hwmcn
plLll eaa jk pwNWa qa bLm jhqel pcpl pjN cnl hi eC
Ns ama Bl Ll jm z EMkN jm Rm knl, hehsu, fha QVNj
fiaz VCm Lcl pL, ljla Bgpl hqe, glcfl-hlnm qjua hqe
jm fa Llez jmm hcn NZjdj J kLnm edlZ Rm Mh lafZz
HC jm cuC jhqel pcpl cnl Ail BjZ flQme Llae Hhw lpc
pwNq Llaez Hph jmC Ns JW pjlL fnrZ Lc, hNXml OyV, hwmcn
plLl eua XL hh Cacz
jl pwNj nf pjS
fhp hwmcn plLll ahde j jp faa qu de hwm hal Lcz
deal fbj fql QVNjl LmlOV HC ej HLV hal Lc bLC Ooa quz
hhl deal haz flha pju fhp plLll NZpwkN J kNkN cgall
Ade LmLau felu de hwm hal Lc Qm quz HC hal Lcl jdjC
jkl Na-fLa pfL Sea flae Ahl hPmlz de hwm hal Lcl
Mhl Bl Hj Bl iqll jLml haL LbL Qljf jkcl lZe msC
Qmu ka E Lla ellz
oVl cnL YLu RueV fal Aeaj fde Ec Juqcm qL nlZb nfcl
fbj pwNWa Lla l Llez de hwm hal Lcl jdj HC nfl Ne, Lha,
LbL J eVL fQll jdj jkcl jehm ha ijL lMaez H pju HLcm
nf pj HmLl kh nhlma Ol Ol Ne J eVL flhne Ll jkcl
Evpq kNaez
jkl pju ehpa Mmusl SLlu fY~l eaa NWe Ll de hwm gVhm
cmz ilal hi e fcne Mmu Awn meu HC cm jkl fr Seja ~al J
Ab pwNq ijL lMz Cwmn Qem hSu pyal hSe cnJ LmLau HLV fcne
pyal BuSel jdj jkcl Se Ab pwNq LlRmez fLhqel hhlal Qq
dl lMa eca QmQLl Sql luqe ~al Lle al hMa fjZQ Vf
SepCX z
LV~eaL EcN
fLe hqeL jLhmu pn k flLfe fZue J hhuel fnfn fhp
hwmcn plLll EcN LV~eaL fQ Slam HNu Qmz jkl laC
hVel hPml fLe qCLjnel pje hri pjhn Llez Hfml laC
hQlfa Bh pDc Qdl hwmcn plLll faed qph BSaL jqml pjbe
mil cuaf qez ae hVn fllj, fihnm Hjf J hVn plLll ea
edlLcl p ~hWL Llez fnfn CElfl fde cnmaJ ae hwmcnl
jkl fr fQlZ Qmez jLe plLll fLef fllea flhael Bqe
SeeJ aez SapwNl pdlZ flocl pje ae hwmcnl Qmje fla hou
hh lMez HRs hPm LVeaLl ke fLe fr aN Ll hwmcnl fa
BeNa fLn Ll p hflJ EcN ee aez
lqje phqe fhp plLl NWel fbj fku Ssa Rmez flha pju ae ca
ilau eahcL hwmcnl hh fla pfL Ahqa Llez hVel lSeaL
eahcLJ ae hwmcn fla hou dle cez HRs jLe kl Nu peVl
E houL LjVl fde peVl HXJuX LeXpq hn LuLSe fihnm BCe
 212

fZal pb pra Lle aez H pju Abeahc elm CpmjJ lafZ ijL lMez
p fhp mML ~puc JumXEq J hnMa hPm fa gSml lqje Me
hwmcnl jkl fr Seja Ns ama ijL lMez
hwmcnl jk BSaL Seja ASel r ilal fdej Ccl N Aa
lafZ ijL lMez Ccl N hnl clhl hPml pwNjL al dea ASel
fQ qph hhQel Se Sl LV~eaL fQlZ Qmez
Ccl N 1971 pml 27 jQ hPm nlZbcl ila BNje J Ahe fn al
eSl J eSl jpil pjbe h Llez hPml deal pwNjJ ae fZ pjbe
Seez hwmcn-ila pj Ej Lla cJu qu ka nlZbl ila Hp elfc
Bnu ea flz Ccl N hwmcnl fr fQlZl Se LV~eaL fQl Awn qph
1971-Hl nla fQj cnma fu 19 ce pgl Llez alC avflal gm p J
klS jLe hLl hCl Hp elf floc fLel fr Nqa k Le p
hldal OoZ cuz 31 Ahl Ccl N me Cu mNl HL piu hme,
face nhl Bp nlZbcl jM Bjl k enwpa J hhlal Lb eR, al ecne
fbha hlmz Hl bL ElZl phj Efu, phQu jehL Efu qR lS~eaL
anma Hhw H pjde ph Lhm hwmcnl jeol ehQa ea J La
Sefaedcl jdjz

jhqe J ilau hqel kb BjZ

Ahl bLC hwmcn fla eu ila J fLel LV~eaL k ahal qa bLz
ilal fdej Ccl N HC LV~eaL EcNl Awn qph hcn pgl l Lle
Hhw hwmcnl jVa fL pecl hhlal gm k jehL hfku OV QmR a
hnhpl LR am dlez
jma eil bLC ilau ~pel jkcl plpl pqk l Llz il Lje J
Vl pqk fL OVma BjZ Ll al jkcl hi Aflne pqua
cu BpRmz LR kr jhqel pcpl ilau euja pehqe bLJ hn
pgm J cta cMuz
3 Xpl ilal hl k OoZ Ll fLe ilal fQj pjl hje OyVm
BjZ Llz jma jLe J Qel Bnp J pqual Efl B lMC Cuqu Me ilal
hfr phaL k l Llez fLel HC BNpe WLa ila fh lZe jhqe
J jhqel pjeu Ns am kb Ljz Selm euS euRm cN fald
Lnmz L kbhqel Lj HC Lnml Shh cuRm HL AeepdlZ pjlL
Lnmz kb hqe fLecl LnmNa Ahema euja hqe cu Ve Bje
Qmu ku, Bhl Nlmcl pqkJ HNu Bpa bL YLl cLz H pju ilau
ehqeJ hfpNl bL fL feml Efl BjZ l Ll hjehq lZal
h bLz
Xpll la cnl iMl HLV hs Awn jkcl cMm Bpl fl pMe Qm
qu hwmcn plLll npe hhz 6 Xpl jhqel pb ilau j hqe fL
qeclcl hl jk kN cu Hhw hwmcnl Ail BjZ flQme l Llz
HLC pb ilau hje hqe jkcl pb kNkN fe Ll lafZ fLe
OyVl Jfl BjZ Qmuz hwmcn J ilau ehqeJ H Aike AwnNqe Llz
jhqe J jhqe 7 Xpl knl peehp cMm Llz 8 Xpl j knl
VXuj hwmcn plLll fdej aSEe Bqjc fbj ha Llez Cajd
parl cMm Ll kb hqe Mmel cL ANpl qu Hhw Afl HLV cm V, Sjmfl,
elpwc, jpN j Ll YL Ahldl Q Llz kbhqe H pju QlcL bL
jueja peehp Ol gmz kl HC fku ila-hwmcn kbhqel mr Rm ka
a ph YL BjZz H LlZC pj euja kl fnfn Nlm hqel pquau
ilau pehqe a YLl c HNu Bpz
hwmcn plLll Au lfa ~puc eSlm Cpmj Hhw fdej aSEe Bqjc
cnl Ail n-nMm hSu lMl Se de hwm hal Lc bL ioZ cez 9
Xpll jd jl, esCm, TeCcq kb hqel cMm Bpz hcn eNlLcl YL
aNl pkN ca 10 Xpl ph dlel hje qjm h lM quz
fLe kbhqel ANk ld Lla jlu qu LV~eaL EcN ea bLz
fLel pjbe Qe ilaL mkl jL cuz AecL jLe fpXV lQX eLe
al fle h CuquL hyQa hfpNl pj ehql fWel ecn cuz 12 J 13
Xpl kbj Lu, jujepwq J VCm j quz
Xpll Qs kl fbj jqaC ilau hje hqe YL J LjVm hje hcl
qjm Qmuz gm, fLe hqe mkl phQu fba hje pqua mil pkN
qluz LlZ, S hje bLmJ ilau Bje hje hcll leJu jljal AkN
qu fsz ilaL kl Se cu Ll jLe kl H pju elf flocl ~hWL
Bqhe Lla SapwOL Aeld Llz ~hWL Ahm k hlal k p eu qu al
hfr iV cu piua CEeuez piua CEeuel H p pjbe Ll fmz
 213

Hl BN, 5 Xpl hwmcn flal lS~eaL pjdel k fh piua CEeue

jLe pj ehqlL Qf lMa 20 V kSqS fWu hfpNl Bl piua-Qe-
pj ~pe pjhn OVuz hwmcn fp HL Afll jMjM Ahe eu hnl
phQu nnm cV cn piua CEeue J jLe klz
SapwOpq BSaL jqm LV~eaL msC kMe Slcl, WL pC pju flcj msC
QmRm hwml lZemaz Nlm kl fih fLe ~pecl jepL clhl
phQu im EcqlZ Rm knll faez Hcn fLecl phQu nnm HC pjlL
OyVl fae OV fu he kz kb hqel Bjel Mhl fuC fLel OyV gm
fmu kuz
8 Xpl bLC fLecl BapjfZl Bqhe See l Lle ilau pefa
pj jeLnz Nlmcl Efkfl Bje fkc fL cMmclcl msCul no CRVL
Lfll ja Eh ku HC OoZl fl bLz fLe ahcl Niel Xx jmL Hpju
bLC Bapjfel Q l Lle, L pjlL fde Selm euS aMeJ Bnhc
Rmez 14 Xpl Niel qES Sll piu hp fLe hqez hmcn plLll
Aejaa ila pMe hj hoZ Llm Xx jmL pceC fcaN Llez Hl BN 13
Xpl Xx jmL J jSl Selm lJ glje Bm rla HL hau SapwOl
jdj Bapjfel Q Qmu fLel, L Cuqu fnpel hldau fhV
SapwO Nqa e qJuu Xx jmL H pju BSaL lXpl LR Bnu Quz ah,
hh fla Efm Ll 15 alMC Selm euS fpXV CuquL Seu k,
YLl fae Bpz H flaa Cuqul fljn ilal fde pefa pj jeLnl
LR BapjfZl fh fWu euSz
hioL
25 jQ bL hSul BN fk cnVl cMm bL fLe qeclcl qaz al YL,
QVNj, lSnq, Mmepq cnl hs hs nqlma qjm Qmu Rhp, nr fae,
LmLlMepq lafZ fae Smu cuz Nj-N lSLl J Aee cplcl
pqkNau fsu cu jk AwnNqeLlcl hsOlz fu fel mM hs Ol su
cu fLhqe, dwp Ll aen lm paz psL kNkN hhJ raN Llz jV 29 V
k SqS hdh qu dwpf flZa qu QVNj hclz
hMa XCm HLfp fLl qph jQl 27 alMl jdC Qn qSl jeoL qa
Ll fL cMmcl hqez HC NZqal fbj nLl qu YL hnhcmul R-nrL J
LjQllz hPml deal Bcme EQLa Seal eaa cuRm HC YL
hnhcmuz 25 jQ laC hnhcmul SNb qm J CLhm qm (haje pSV Slm
qL qm) fL hqe qa Ll el Rclz H pju bLC l qu hPm hSh qaz
YL hnhcmu HC qak Qmu plpl fL qecl hqez flha pju
faunm lS~eaL Q fLe pehqel far pqkNal Se NWe Ll n
hqe, n LEpm J lSLl hqez hPml jeol LR LpC qph flQa lJ
glje Bml fljn jJme jJccl ihno Nmj Bkj Hl qa Sjua Cpmjl
R pwNWe Cpmj R pwOl pcpcl eu faa qu Bm-hcl J lSLl hqez
kbhqel Bjel j ahal qm Selm lJ glje Bm hSh qal em
eLn hhue hhql Ll Bm-hcl hqel jaEl lqje eSj, Bm Bqpe jSqc,
Bnlgje, Ljlje, jDee fjMLz glje Bml plhlq Ll amL Aeku
Bm hcll pcpl hs hs an Qmu dl eu ku hi fnl jdh jeomL,
alfl AjeoL ekae Ll qa Ll Sal n peclz Xpll fbj pq bLC
YLu Bm hcll OaLl hShcl qa l Llz ah, hrehsu Rs Aee
lafZ nqlma OaLl edek Qma prj quez LlZ, Xpll fbj bLC
kbhqel BLjZ fL hqe pjha OyVm Rs Ss qRm YLuz deal j
cce BN 14 Xpl YLu Bm hcll OaLl qa Ll hShcl HLV hs AwnLz
H kl ejj nLl qa qu elcl, acl Jfl Qm AjeoL ekae J AaQlz fu
ps 4 mM el doZl nLl quz hSul fl cnl hi e fL hwLl bL El
Ll qu elcl jacqz
hSu
1 5 Xpl la cCVu Selm euS hall jdj hwmcnl ph Ahela
fLe pehqeL Bapjfel ecn cuz ah BNl ce k hlal fh Ll al
plpl ilau pehqel LR Bapjfel Q Llz L no fk ila J
hwmcnl kbhqel LRC Bapjfe hd qu alz
16 Xpl hLm 4 V 55 jeV fLe hqel AdeuL mgVeV Selm euS
93 qSl ~pe J Anpq pqlJuc Ece kb Ljl LR Bapjfe Llz no
qu eu jpl cMmcla, Aicu OV phij hwmcnlz hnl jeQ pwkSa qu
HLV eae J de iM, HNu Qm nl Ll NZfSa hwmcn plLlz
LepV gl hwmcn
1 BNV 1971-H fa lh nwLl J ayl h hVmp Hl SS qlpel EcN
eECuLl jXpe ul NXe Aea qu LepV gl hwmcnz LepV Awn ee hh
 214

Xme, HlL LfVe, Sue huS, Jc Bm BLhl Mye J Jc BlM Mye, lwN
Vl, hm fpVe, mJe lpm, Sj LVel fjM nfz hwmcn fLe hqel
ekael nLl pdlZ jeocl Se jehL pqkl Bhce See nflz

H fku NZfSa hwmcnl pwhde (phno pwndepq ja, Hfm, 2016)

Hl fj agpm ej AemMe qCmx-
fj agpm
[150 (2) AeRc]
1971 pml 7C jQ alM YLl lpLp juce Sal fa hh nM
jShl lqjel cJu IaqpL ioZ
iCul Bjl,
BS cxM il je eu Bfecl pje qSl quRz Bfel phC See
Hhw hTez Bjl Bjcl She cu Q LlRz L cxMl hou BS YL,
QNj, lSnq, lwfl Bjl iCul l lSfb la quRz BS hwml
jeo j Qu, hwml jeo hyQa Qu, hwml jeo al AdLl Quz L Aeu
LlRmj ? ehQel fl hwmcnl jeo pfZih BjL J BJuj mNL
iV cez Bjcl enem Apm hph, Bjl pMe npea ~al Llh
Hhw HcnL Bjl Ns amhz Hcnl jeo Abea, lSea J pwaL
j fhz L cxMl hou, BS cxMl pm hma qu 23 hRll LlZ Caqp
hwml AaQll, hwml jeol ll Caqpz 23 hvpll Caqp jjo el-
ell Baecl Caqpz hwml Caqp Hcnl jeol l cu lSfb la
Ll Caqpz
1952 pm l cuRz 1954 pm ehQe Sumi LlJ Bjl Nca hpa
flez 1958 pm BCuh Me jnm m Sl Ll 10 hRl fk Bjcl
Nmj Ll lMRz 1966 pml 6 cg Bcme 7 Se Bjl Rmcl m
Ll qa Ll quRz 1969 pml Bcme BCuh Mel fae qJul fl
kMe Cuqu Me pqh plLl eme, ae hmme cn npea che-NZa
che, Bjl je emjz al AeL Caqp qu Nm, ehQe qmz Bj
fpXV Cuqu qe pqhl pb cM LlRz
Bj, d hwml eu, fLel jSlV fVl ea qph aL Aeld
Llmj, 15 ghul alM Bfe Sau flocl Adhne cez ae Bjl
Lb lMme e, ae lMme i pqhl Lbz ae hmme, fbj pq jQ
jp qhz Bj hmmj, WL BR Bjl Apma hphz Bj hmmj
Apml jd BmQe Llh-HjeL Bj H fkJ hmmj, kc LE ek
Lb hm, Bjl pwMu hn qmJ HLSe kcJ p qu al ek Lb Bjl
je ehz
i pqh HMe HpRme, BmQe Llmez hm Nme k, BmQel clS
h eu, Bl BmQe qhz alfl Aee eacl p Bjl BmQe
Llmj-Bfel Bpe, hpe, Bjl Bmf Ll npea ~al Llhz ae
hmme, fQj fLel jll kc HMe Bp aqm LpCMe qh
Apmz ae hmme, k kh aL jl gm qh, kc LE Apma
 215

Bp aqm fnul bL LlQ fk cLe Sl Ll h Ll qhz Bj

hmmj, Apm Qmhz al qWv 1 alM Apm h Ll cu qmz
Cuqu Me fpXV qph Apm XLRmez Bj hmmj, Bj khz
i hmme, ae khe e, 35 Se pcp fQj bL HMe Bpmez al qWv
h Ll cJu qm, co cJu qm hwml jeoL, co cJu qm BjLz
h Lll fl Hcnl jeo fahcjMl qu EWmz
Bj hmmj, nfZih Bfel qlam fme Llez Bj hmmj, Bfel
LmLlMe phLR h Ll cez SeNZ ps cmz Bfel CRu SeNZ lu
hlu fsm, al nfZih pwNj Qmu khl Se l fah qmz L
fmj Bjl ? Bjl fup cu A LeR hqxnl BjZ bL cnL lr
Lll Se, BS pC A hhql qR Bjl cnl Nlh-cxM el jeol
hl-al hLl Efl qR mz Bjl fLe pwMl -Bjl hPml
kMeC rjau khl Q LlR aMeC al Bjcl Efl Tfu fsRz
Vmge Bjl pb al Lb quz aL Bj hmRmj, Selm Cuqu Me
pqh, Bfe fLel fpXV, cM ke Lih Bjl Nlhl Efl, Bjl
jeol hLl Efl m Ll quRz L Ll Bjl jul Lm Mm Ll quR,
L Ll jeoL qa Ll quR, Bfe Bpe, cMe, hQl Llez ae hmme,
Bj eL Ll LlR 10 alM lE Vhm Leglp qhz
Bj a AeL BNC hm cuR Lpl lE Vhm, Ll pb hph? kl
Bjl jeol hLl l euR, acl pb hph? qWv Bjl pb fljn e
Ll fyQ OVl Nfe ~hWL Ll k ha ae LlRe aa pj co ae
Bjl Efl cuRe, hwml jeol Efl cuRez
iCul Bjl,
25 alM Apm Lm LlRz ll cN Lu eCz Bj 10 alM p
euR I nqcl ll Efl fs cu BVpa jShl lqje kNce Lla
fl ez Apm Lm LlRe, Bjl ch jea qhz fbj pjlL BCe
jnm m withdraw Lla qhz pj pjlL hqel mLcl hlL gla
ka qhz kih qa Ll quR al ac Lla qhz Bl SeNZl faedl
qa rja ql Lla qhz alfl hhQe Ll cMh, Bjl Apma
hpa flh L flh ez Hl fh Apma hpa Bjl fl ez
Bj fdeja QC ez Bjl Hcnl jeol AdLl QCz Bj flLl Arl
hm chl QC k, BS bL HC hwmcn LV-LRl, Bcma-gScl,
nr fae AecLml Se h bLhz Nlhl ka L e qu, ka Bjl
jeo L e Ll pSe pj Aee k Sepm BR, pml qlam Lm
bL Qmh ez lL, Nll Ns, lm Qmh, m Qmh-d pVluV,
pfjLV, qCLV, SSLV, pj-NiejV cl, Jufc, LeLR Qmh ez
28 alM LjQll Nu hae eu Bphez Hlfl kc hae cu e qu, Bl
kc HLV m Qm, Bl kc Bjl mLL qa Ll qu-ajcl LR Aeld
lCm, faL Ol Ol cN Ns amz ajcl k LR BR aC eu nl
jLhm Lla qh Hhw Shel al lOV k k BR phLR- Bj kc Lj
chl eJ fl, ajl h Ll chz Bjl ia jlh, Bjl fea jlhz
 216

ajl Bjl iC, ajl hlL bL, LE ajcl LR hmh ez L Bl

Bjl hLl Efl m Qmhl Q Ll ez 7 LV jeoL chu lMa
flh ez Bjl kMe jla nMR aMe LE Bjcl cha flh ez
Bl k pj mL nqc quR, BOaf quR, Bjl BJuj mNl bL
kl fl acl pqk Lla Q Llhz kl fle Bjl lmg LjVL
pje VL-fup fyR chez Bl HC 7 cel qlaml k pj njL
iCul kNce LlR, faL nfl jmL acl hae fyR chez
plLl LjQlcl hm, Bj k hm a jea qhz k fk Bjl HC cnl
j e qR, aace MSe VL h Ll cJu qm- LE ch ez ee, je
lMhe, nhqe YLR eScl jd BaLmq p Llh, mValS Llhz HC
hwmu-qc-jpmje, hPm, A-hPm kl BR al Bjcl iC, acl
lrl cua Bfecl Efl, Bjcl ke hcej e quz
je lMhe, lXJ-Vminel LjQll kc lXJa Bjcl Lb e ne
aqm Le hPm lXJ Vne khe ez kc Vmine Bjcl eES e
cu, Le hPm Vmine khe ez 2 OV hwL Mm bLh, ka jeo
acl jCef ea flz fhhwm bL fQj fLe HL fupJ Qme
qa flh ez Vmge, VmNg Bjcl HC fh hwmu Qmh Hhw hcnl
pb cueu Qmh ez
L kc HC cnl jeoL Maj Lll Q Ll qu, hPml hTpT LS
Llhez faL Nj, faL jqu BJuj mNl eaa pwNj floc Ns
am Hhw ajcl k LR BR, aC eu fa bLz je lMh, l kMe
cuR, l Bl chz HC cnl jeoL j Ll Rsh Cenqz Hhll
pwNj Bjcl jl pwNj, Hhll pwNj deal pwNjz Su hwmz

H fku NZfSa hwmcnl pwhde (phno pwndepq ja, Hfm, 2016)

Hl o agpm ej Ea qmx
o agpm
[150 (2) AeRc]
Sal fa hh nM jShl lqje
LaL fc
hwmcnl deal OoZ

1971 pml 25 jQ jd la no Abv 26 jQ fbj fql Sal fa hh

nM jShl lqje LaL fc deal OoZ (Aeca)
CqC qua Bjl no ha BS qCa hwmcn dez Bj hwmcnl
SeNZL Bqhe SeCaR k, k kMe BR, kql k LR BR, aC eu
lM cysJ, phn cu qecl hqeL fald Llz fLe cMmcl
hqel no ~peVL hwml jV qCa hasa e Ll fk Hhw Qs hSeu
ASe e Ll fk msC Qmu kJz
nM jShl lqje
26 jQ, 1971

de phij hwmcnl npeaL i lQa quRm 1971 pml 10C Hfmz

HC 10C Hfml OoZV ab Proclamation of Independence (deal OoZf)
 217

AhaLme Constitution qph flQa quz Abv deal OoZf h The

Proclamation of Independence hwmcnl fbj pwhdeL cmmz hwmcnl pwhde
lQa qJul fh fk deal OoZf h The Proclamation of Independence Hhw
Au pwhde Bcn, 1972 pwhdel e cMm LlRmz
H fku NZfSa hwmcnl pwhde (phno pwndepq ja, Hfm, 2016)
Hl pj agpm ej Ea qmx
pj agpm
[150 (2) AeRc]
1971 pml 10 C Hfm alM jSheNl plLll SlLa
deal OoZf

kqa HLV pwhde fZuel En faed ehQel Se 1970 pel 7C

Xpl qCa 1971 pel 17C Seul fk hwmcn Ahd ehQe Aea
qu,
Hhw
kqa HC ehQe hwmcnl SeNZ 169 Se faedl jd BJuj mN
cmu 167 SeL ehQa Lle,
Hhw
kqa pwhde fZuel En Selm Cuqu Me SeNZl ehQa
faedNZL 1971 pel 3l jQ alM jma qChl Se Bqhe Lle,
Hhw
kqa HC Aa floc-pi RQl J hBCeih AecLml Se Na
Ll qu,
Hhw
kqa fLe Lafr aqcl fana lrl flha Hhw hwmcnl
faedNZl pqa BmQe Ahqa bL Ahu HLV Aeu J
hnpOaLajmL k OoZ Ll,
Hhw
kqa HClf hnpOaLajmL BQlZl flfra hwmcnl ps pa
LV jeol Ahpwhca ea hh nM jShl lqje hwmcnl SeNZl
BaeuZl BCeeN AdLl fal mr 1971 pel 26 n jQ alM
YLu kbkbih deal OoZ fce Lle Hhw hwmcnl jkc J AMa
lrl Se hwmcnl SeNZl fa Ec Bqhe See,
Hhw
kqa HLV hhl J enwp k flQmeu fLe Lafr, Aeecl jd,
hwmcnl hpjlL J el SeNZl Efl eSlhqe ekae J NZqal
ApwM Afld pwOWe LluR Hhw HMeJ Aehla Llu QmaR,
Hhw
kqa fLe plLl HLV Aeu k QfCu cu, NZqa Llu Hhw Aee
cjejmL LkLmfl jdj hwmcnl faedNZl fr HLa qCu HLV
pwhde fZue Hhw eScl jd HLV plLl fa Ll Aph Llu
amuR,
Hhw
kqa hwmcnl SeNZ aqcl hla, pqpLa J hfh Efel jdj
hwmcnl iMl Efl aqcl LkLl Laa fa LluR,
Hhw
pqa Bjl hwmcnl ehQa faedNZ, hwmcnl phQ rjal
AdLl SeNZ LaL BjcNL fc Laal jkc lrb, eScl pjeu
kbkbih HLV NZfloclf NWe Llmj, Hhw
flflL BmQe Llu, Hhw

hwmcnl SeNZl Se pj, jehL jkc J pjSL phQl eQa LlZb,

phij NZfSalf hwmcnl fa OoZ Llmj Hhw al hh nM
jShl lqje LaL Cafh Ooa dea ctih pjbe J Aejce Llmj,
Hhw
 218

Hacl ctih OoZ J p NqZ LlaR k, pwhde fZa e qJu fk

hh nM jShl lqje fSal lfa bLhe Hhw ~puc eSlm Cpmj
fSal Ef-lfa bLhe, Hhw
lfa fSal pLm pn hqel phdeuL qChe,rj fcnel rjapq
fSal pLm ehq J BCe fZue rja fuN Llhe,
HLSe fdej euN Hhw ayql hhQeu fuSeu Aee j euN
rjal AdLl qChe,
Ll BlfZ J Ab hue rjal AdLl qChe,
NZfloc Bqhe J jmahLlZ rjal AdLl qChe, Hhw
hwmcnl SeNZL HLV eujaL J eueN plLl fcel mr
fuSeu Aee pLm Lk Lla flhez
Bjl hwmcnl SeNZl ehQa faedNZ BlJ p NqZ LlaR k,
Le LlZ lfa e bL h lfa ayql Lkil NqZ Lla Apjb qJu h
ayql rja fuN Lla Apjb qJul r, lfal Efl Hal Afa
pjcu rja, Lah J cua Ef-lfal bLh Hhw ae Eq fuN J fme
Llhez
Bjl BlJ p NqZ LlaR k, HC cmm LkLl Lll mr Hhw lfa
J Ef-lfal nfb flQmel Se Bjl AdfL CEpg BmL Bjcl
kbkb rjaf faed euN Llmjz

AdfL CEpg Bm
hwmcnl NZflocl rjahm J
acde kbkbih rjaf faedz
deal OoZf l fhaa pwhdeL LWj h constitutional framework
Aeku lfa HLLih pLm lu rjal AdLl Rmez lfa hh nM jShl
lqje 10 Seul 1972 fLe LlNl bL fbj me J fl euc qu cn
fahael fl ceq~ Au pwhde Bcn, 1972 ejl HLV BCe Sl Lle, k
hwmcnl pwhdeL Caqp HL eae kz H BCe cn pwpcu plLl hh fhae
Llz Cq hwmcnl au AhaLme pwhdez 1972 pml 16C Xpl fk HC Au
pwhde Bcn npea h pwhde qph LS LlRz
Au pwhde Bcn, 1972 h The Provisional Constitutional Order, 1972
ej Ea qmx
THE PROVISIOAL 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 government of the Peoples Republic of Bangladesh.

AND WHEREAS by he 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.
 219

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;

(1) 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 representatives 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 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.
(7) The President shall commission as Prime Minster a member of the Constituent
Assemble. 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 appoint 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 a 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 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

th
The 11 January, 1972 President of the Peoples Republic of Bangladesh.

Aaxfl hwmcnl Se HLV u npea lQel En 1972 pml 22n jQ

hwmcnl lfa hwmcn NZfloc Bcn (The Constitutent Assembly Order
of Bangladesh) Sl Lle, k ej Ea qmx
THE CONSTITUENT ASSEMBLY OF BANGLADESH
ORDER, 1972
MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS
(Law Division)
NOTIFICATION
No. 272-Pub-23rd March, 1972- The following Order made by the President, on the
advice of the Prime Minister, of the Peoples Republic of Bangladesh on the 22nd March, 1972, is
hereby published for general information:-
The CONSTITUENT ASSEMBLY OF BANGLADESH
ORDER, 1972
(Presidents Order No. 22 of 1972)
 220

WHEREAS it is necessary to make provisions for the functioning of the Constituent

Assembly constituted by the Proclamation of Independence;

NOW, THEREFORE, in pursuance of the Proclamation of Independence of Bangladesh,

read with the Provisional Constitution of Bangladesh Order, 1972, and in exercise of all powers

enabling him in that behalf, the President is pleased to made the following Order:-

1. (1) This Order may be called the Constituent Assembly of Bangladesh Order 1972.

(2) It extends to the whole of Bangladesh.

(3) It shall come into force at once and shall be deemed to have come into force on

the 26th day of March, 1972.

2. This Order shall have effect notwithstanding anything to the contrary contained in

any other law for the time being in force.

3. In this Order, unless there is anything repugnant in the subject or context,-

(i) Assembly means the Constituent Assembly of Bangladesh;

(ii) Member means the member of the Assembly;

(iii) President means the President of the Peoples Republic of Bangladesh;

(iv) Republic means the Peoples Republic of Bangladesh; and

(v) Speaker means the Speaker of the Assembly and includes any person for the

time being acting as the Speaker.

4. The Constituent Assembly of Bangladesh shall consist of the elected representatives

of the people of Bangladesh returned to the N.E. and P.E. Seats in the elections held

on different dates between the seventh day of December, One thousand nine hundred

and seventy and the first day of March, One thousand nine hundred and seventy-one

(both days inclusive) who are not disqualified by or under any law.

5. Where a seat in the Assembly fell vacant before the commenement of this Order or

falls vacant subsequent to this Order, an election to fill the vacancy shall be held in

accordance with the law for the time being in force.

6. (1) Except as provided in this Article, a person is qualified to be elected as, and to

be, a member of the Assembly if-

(a) his name appears in the electoral roll for any electoral unit in Bangladesh;

(b) he is not less than twenty-five years of age;

 221

(2) A persn is disqualified from being elected as, and from being, a member of the

Assembly if-

(a) he holds an office of profit in the service of Bangladesh, other than an office

which is not a whole time office or one which is declared by law not to disqualify its

holder;

(b) he is of unsound mind and stands so declared by a competent Court;

(c) he is an undischarged insolvent;

(d) he is not a citizen of Bangladesh, or has acquired the citizenship of a foreign

State or has affirmed or acknowledged allegiance to a foreign state;

(e) he has been on conviction for any offence, involving moral turpitude, sentenced

after the 11th day of January, 1972, to transportation for any term or to imprisonment

for a term of not less than two years or for any term under the Bangladesh

Collaborators (Special Tribunals) Order, 1972, unless a period of five years has

elapsed his release;

(f) he, whether by himself or by any person or body of person in trust for him or for

his benefit or on his account or as a member of a Hindu undivided family, has any

share or interest in a contract, not being a contract between a co-operative society

and Government for the supply of goods to, or for the execution of any contract or

the performance of any service undertaken by Government:

Provided that the disqualification under sub-clause (f) shall not apply to a person-

(i) where the share or interest in the contract devolves on him by inheritance or

succession or as a legatee, executor or administrator until the expiration of

six months after it has so developed on him or such longer period as the

President may, in any particular case, allow; or

(ii) where the contract has been entered into by or on behalf of a public company as

defined in the Companies Act, 1913 (VII of 1913), of which he is a share-

holder but is neither a director holding an office of profit under the company

nor a managing agent; or

(iii) where he is a member of a Hindu undivided family and the contract has been

entered into by any other member of that family in the course of carrying on

a separate business in which he has no share or interest;

 222

(g) he is otherwise disqualified from being a member by or under any law passed

after the 11th day of January 1972.

(3) If any question arises whether a member of the Assembly has, after his election,

become disqualified from being a member of the Assembly, the question shall be

referred to the Chief Election Commissioner and, if the Chief Election Commissioner

is of the opinion that the member has become disqualified, the member shall cease to

be member.

7. The Assembly shall frame a Constitution for the Republic.

8. A member of the Assembly may resign his seat by notice in writing under his hand

addressed to the Speaker.

9. If a member of the Assembly is absent from the Assembly, without leave of the

Assembly, for sixty consecutive sitting days his seat shall become vacant.

10. (1) A member of the Assembly, shall, before taking seat make and subscribe, before a

person presiding at a meeting of the Assembly or before a person nominated by the Speaker, an

oath or affirmation in the following form, namely:-

I.......................do solemnly swear (or affirm) that I will bear true faith

and allegiance to the Peoples Republic of Bangladesh and that I will

faithfully discharge the duty upon which I am about to enter.

(2) If a member fails to make and subscribe an oath in accordance with clause (1) within

the period of seven days from the date of the first meeting of the Assembly, his seat shall become

vacant;

Provided that the Assembly may, before the expiration of the said period, for good cause

shown, extend the period.

11. The President may, on the advice of the Prime Minister summon, prorogue or

dissolve the Assembly and shall, when summoning the Assembly, fix the time and place of the

meeting.

Provided that nothing in this clause shall be construed as preventing the President from

summoning the Assembly on the ground that all the seats of the members have not been filled.

12. (1) The Assembly shall, as soon as may be, choose two of its members to be

respectively the Speaker and Deputy Speaker thereof and shall so often as the office of the
 223

Speaker or Deputy Speaker becomes vacant, choose another member to be the Speaker or, as the

case may be, Deputy Speaker.

(2) Until the Speaker and Deputy Speaker are chosen, a member nominated by the

President shall preside at the meeting of the Assembly and perform the function of Speaker.

(3) Where the office of the Speaker is vacant, the Deputy Speaker, or if the office of the

Deputy is also vacant, such member as may be determined by the Rules of Procedure of the

Assembly shall perform the functions of the Speaker.

(4) Where the Speaker is unable to perform the function of his office due to illness or any

other cause, the Deputy Speaker shall act as Speaker, and if the Deputy Speaker is also unable to

act as Speaker due to illness or any other cause, such member as may be determined by the Rules

of Procedure of the Assembly shall perform the functions of the Speaker.

(5) During the absence of the Speaker from any meeting of the Assembly, the Deputy

Speaker or, if the Deputy Speaker is also absent, such member as may be determined by the Rules

of Procedure of the Assembly shall perform the functions of the Speaker.

13.(1) At any sitting of the Assembly, while any 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, though he

is present, preside, and the provisions of clause (5) of Article 12 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 be,

the Deputy Speaker, is absent.

(2) The Speaker shall have the right to speak in and otherwise to take part in the

proceedings of the Assembly whiles any resolution for his removal from office is under

consideration in the Assembly and shall be entitled to vote only as a member.

14. A member holding the office of Speaker or Deputy Speaker shall cease to hold that

office-

(a) if he ceases to be a member of the Assembly;

(b) if he resigns his office by writing under his hand addressed to the President; or

(c) if a resolution expressing want of confidence in him is moved in the Assembly after

not less than fourteen days notice of the intention to move it and passed by a majority of the total

number of the Assembly;

 224

15. (1) The procedure of the Assembly shall be regulated by the Rules of procedure made

by the Assembly.

(2) Until such rules are framed the procedure of the Assembly shall be regulated by the

Rules of Procedure made by the President.

(3) Subject to the provision of clause(c) of Article 14 a decision in the Assembly shall be

taken by a majority of the members present and voting, but the decision relating to the making of

the Constitution shall be taken by a majority of the total number of members of the Assembly; and

the person presiding shall not vote except when there is an enquality of votes, in which case he

shall have and exercise a casting vote.

(4) The Assembly shall have power to act, notwithstanding any vacancy in the

membership thereof, and any proceedings in the Assembly shall not be invalid only for the reason

that some person who was not entitled to do so, sat or voted or otherwise took part in the

proceedings.

(5) If at any time during a meeting of the Assembly the attention of the person presiding

is drawn to the fact that less than one hundred members are present, it shall be the duty of the

person presiding either to adjourn the Assembly, or to suspend the meeting until at least one

hundred members are present.

16. (1) The validity of any proceedings in the Constituent Assembly shall not be qustioned

in any Court.

(2) An officer or member of the Constituent Assembly in whom powers are vested for the

regulation of procedure, the conduct of business or the maintenance of order in the Assembly

shall not, in relation to the exercise by him of any of those power, be subject to the jurisdiction of

any Court.

(3) A member of, or a person entitled to speak in, the Constituent Assembly shall not be

liable to any proceedings in any Court in respect of anything said by him, or any vote given by

him, in the Assembly or in any committee of the Assembly.

(4) A person shall not be liable to any proceedings in any Court in respect of the

publication by or under the authority of the Constituent Assembly of any report, paper, vote or

proceedings.
 225

(5) No process issued by a Court or other authority shall, except with the leave of the

Speaker of the Constituent Assembly, be served or exceuted within the precincts of the place

where a meeting of Constituent Assembly is being held.

(6) If a member is arrested or detained on any criminal charge other than a charge under

the Bangladesh Collaborators (Special Tribunals) Order, 1972, and the Court before which any

such case is pending against such member is duly informed by the member that he has been

summoned to attend any session of the Constituent Assembly or any Committee thereof, such

Court shall, if the charge against such member relates to a bailable offence, release such member

on his personal recognisance in sufficient time to enable him to attend the session of the Assembly

or a meeting of any Committee thereof, as the case may be:

`Provided that the provisions of this section shall not be construed as exempting any such

member from attending such Court on the day or days which the Court may in usual course fix

for the trial of the case against such member.

(7) No member shall be required to appear in person in any Civil or Revenue Court, or

before any Election Tribunal, during a session, and for a period of fourteen days before and

fourteen days after session.

(8) Notwithstanding anything to the contrary contained in any law for the time being in

force, no Civil or Revenue Court, and no Election Tribunal shall proceed, duing a session and for

a period of fourteen days before and fourteen days after the session, with any matter before it in

which a Member is a party.

(9) Subject to this Article, the privileges of the Assembly, the committees and members

thereof, may be determined by the Assembly.

17. The Speaker, the Deputy Speaker and other members shall be entitled to receive such

salaries and allowances as may, from time to time, be determined by the Assembly by law and

until provision in this respect is so made, as the president may, by order, prescribe.

DACCA; A.S. CHOWDHURY

The 22nd March, 1972. President of the
Peoples Republic of Bangladesh.

F.K.M.A. MUNIM.
Secretary

NZfloc LaL pwhde fZuel mr k 34 Se pcp eu pwhde fZue LjV

NWa qu pC pwhde LjVl pcphcl qme x
 226

The Names of the Committee Members are:

1. Syed Nazrul Islam

2. Mr. Tajuddin Ahmed
3. Khandaker Mostaq Ahmed
4. Mr. A.H.M. Kamruzzaman
5. Mr. M Abdur Rahim (PE-29, Dinajpur)
6. Mr. Abdur Rouf
7. Mr. Md. Lutfor Rahman
8. Mr. Abdul Momen Talukder
9. Prof. Abu Sayeed
10. Mr. Md. Boitullah
11. Mr. Amirul Islam
12. Mr. Badal Rashid, Bar-at-Law
13. Khandaker Abdul Hafiz
14. Mr. Md. Nurul Islam Monju
15. Mr. Saukat Ali Khan
16. Mr. Md. Humayun Khalid
17. Mr. Asaduzzaman Khan
18. Mr. A.K. Mosarraf Hossain Akhand.
19. Mr. Abdul Momin
20. Mr. Shamsuddin Mollah
21. Sheikh Abdur Rahman
22. Mr. Fakir Shahabuddin Ahmed
23. Mr. Abdul Muntakin Chowdhury
24. Prof. Md. Khorshed Alam
25. Mr. Serajul Huq
26. Dewan Abdur Abbas
27. Hafez Habibur Rahman
28. Mr. Mohammad Abdur Rashid
29. Sree Suranjit Sen Gupta
30. Mr. Nurul Islam Chowdhury
31. Mr. Mohammad Khalid
32. Mrs. Razia Banu
33. Dr. Khitish Chandra Mondal
34. Dr. Kamal Hossain (Chairman of the Comittee)

H fku fpl fuSe McLl Bhcm qL jul pwpcu la J fa hC

bL hwmcn NZfloc noL AwnVL ej Ea qmx
NZfloc Bcn 1972 h Constituent Assembly of Bangladesh Order, 1972 (1972 pml
lfal Bcn el 22) l NZflocl pcpfc, cua, pcpfcl AkNa, fcaN, nfb NqZ, Adhne-Bqhe,
fLl J XfV fLl ehQe J aycl pfL Aee hde, fLl J XfV fLl ehQel fh NZflocl ~hWL
flQme, LkfZm-hd fZue, NZfloc p Efea qJul Se fuSeu pcp-pwM, NZflocl hno
AdLl fia hou hde Ll quz
NZflocl pcpfc
NZflocl pcpfc pfL NZfloc Bcn, 1972-Hl hdeV ej Ea Ll qmx-
4. The Constituent Assembly of Bangladesh shall consist of the elected representatives of

the people of Bangladesh returned to the N.E. and P.E. seats in the elections held on different

dates between the seventh day of December, one thousand nine hundred and seventy and the first

day of March, one thousand nine hundred and seventy-one (both days inclusive) who are not

disqualified by or under any law.

 227

Abv 1970 pml Xpl jpl 7 alM bL 1971 pml jQ jpl 1 alM fk pju hi alM

(Eiu alM Ai ) He,C Hhw f,C Bpe ehQa Sefaedcl jd kyl Le BCe l h BCel Ade AkN

Ooa qe e aycl eu NZfloc NWa qhz

H BCeVa EMa pjul jd hwmcn jV 469 V Bpe ehQe Aea quRmz Hml jd He,C

(National East) J f,C (Provincial East) Bpel pwM Rm kbj 169 Hhw 300z 169 V He,C, Bpel

jd 7 V Bpe jqmcl Se pwlra Rmz 300 V f,C, Bpel Aal 10 V Bpe jqmcl Se pwlra Rmz

L I 10 V f,C, Bpe Efk pjul jd ehQe Aea quez H BCeVa EMa pjul jd cV EfehQeJ

Aea quz

ehQe cmNa Ahe

BJuj mN I ehQe 169 V He, C Bpel jd 167 V Bpe Su quz HC abV dea OoZfl

fheu EM Ll quRz Afl cV Bpel HLVa fLe XjVL fV (fXf) Hl HLSe fb Hhw Afl

Bpe HLSe ecmu fb Su mi Llez f,C, Bpeml jd BJuj mN 288V, fXf 2V, enem BJuj

fV 1V, Sjua Emju Cpmj (eSj-C-Cpmjpq) 1V, Sjua Cpmj 1V J a fbNZ 7 V Bpe mi

Llez

NZfloc ne Bpe

hwmcn NZfloc Bcn, 1972 l NZflocl pcp qJul r LuLV AkNal hde Ll quz H ph

hdel jd k ph hde LuLSe pcpl r fk qu, pm ej EM Ll qmx-

(1) fSal miSeL fc ek Le h NZfloc pcp qJul kN qhe e, ah

fcV phreL fc e qm, Lwh Le fc ek hL BCe l NZflocl pcp qJul

AkN ee hm OoZ Ll qm H hdeV fkS qh ez

(2) Le h hwmcnl eNlL e qm Lwh hcn ll eNlLa NqZ Llm Lwh

hcn ll fa BeNa fLn Llm NZflocl pcp qa flhe ez

(3) NZflocl fbj ~hWLl pacel jd Le pcp nfb NqZ hb qm NZfloc ayl

Bpe nZ qu khz ah I pacel jd Efk LlZ cne qm NZfloc HC pjupj

hsa flhz

He,C J f,C Bpe ehQa hhNl jd 1 Se pcp fSal miSeL fc Nqe Llu, 5 Se pcp

BCe edla pjul jd nfb NqZ hb qJuu Hhw 2 Se pcp hcn ll fa BeNa fLn Llu pcp qJul

h bLl AkN qu fsez

Afl HLV BCe Bangladesh Constituent Assembly Members (Cessation of Membership)

Order, 1972 l NZfloc pcpcl pcpfc lc qJu pfL hde Ll quz H BCel jm hdeV Rmx-
 228

If any person who is a Member of the Constituent Assembly on the basis of an

election in which he was a candidate on the basis of his having been nominated and granted a

ticket by a political party;

(i) resigns from it; or

(ii) is expelled by such political party;

he shall cease to be a member of the Constituent Assembly for the unexpired

period of his term as such member.

Abv Le lS~eaL cml fblf jeea Le h NZflocl pcp ehQa qJul fl kc I cm

bL fcaN Lle h hqLa qe aqm Ahn jucl Se ae Bl NZflocl pcp bLhe ez ehQe

jeeueceLl lS~eaL cm bL hqLa qJuu H BCel hde Aeku NZflocl 43 Se pcpl pcp-fc lc

qu kuz

NZflocl 9 Se pcp jpwNj QmLm Lwh al BN jahlZ Llez NZflocl fbj ~hWL (10C

Hfm, 1972) bL Hl no ~hWL (15C Xpl 1972) fk pju NZflocl fbj fLl nq Bhcm qjc J Ae

aeSe pcp jahlZ Llez H QlSe pcpl jd HLSe Apal Se BCe edla pjul jd nfb NqZ Lla

fle ez ah ae nfb Nqel pju hsel Bhce Sem NZfloc ayl nfb NqZl pju NZflocl flha

Adhne fk hsu ca pja quz L flha Adhne l qJul BNC ae CLm Llez NZflocl cSe

pcp NZflocl pcp qph fcaN Llez pwn BCel Ade NZflocl pcp qJul AkNa ASe, pcpfc

lc qJu, edla pjul jd nfb NqZl hba, jahlZ fia LlZ pwhde rll pju fk 469 V Bpel

jd 66V Bpe nZ qu fsz pwhde rll pju NZfloc 403 Se pcp Rmez

ne Bpe ehQe

NZfloc Bcn 1972 Hl 5 AeRc hde Rm k-

5. Where a seat in the Assembly fell vacant before the commencement of this

Order or falls vacant subsequent to this Order, an election to fill the vacancy

shall be held in accordance with the law for the time being in force.

Abv NZflocl Le Bpe H Bcn fhael fh nZ qu bLm Lwh H Bcn Sll fl nZ

qm I Bpe h Bpepjq flel Se fQma BCe Aeku ehQe Ae qhz

NZfloc Bcn, 1972 lfal l 22 n jQ, 1972 alM fZa qu Hhw flce hwmcn NSV

fLna quz HLC ce fZa Hhw 23 n jQ 1972 hwmcn NSV fLna Afl HLV BCe The Bangladesh

Election Commission Order, 1972 (P.O. No. 25 of 1972) l hwmcn ehQe Ljne NWe Ll quz L

ehQe flQmel Se fuSeu BCe-fZue hm OVz HLV pc de k-hd cn Hlf BCe-fZue hm

qJu AihL euz phax ehQe flQmel BCel Aefa NZflocl Le nZ Bpe ehQe Aea qu ez
 229

EM, NZfloc Bcn, 1972-Hl 11 AeRcl na Awn Hlf hde Rm k, ... nothing in this clause shall be

construed as preventing the President from summoning the Assembly on the ground that all the

seats of the members have not been filled.

Bpe nZ bLl LlZ NZfloc u cua fme BCeNa Le hdl pjMe quez houV fuel Se

H~ BcnVl 15(4) AeRcl hdeV HMe Ea Ll kux-

15(4). The Assembly shall have power to act, notwithstanding any vacancy in

membership thereof,...

palw cM ku k, LuLV Bpe nZ bLl LlZ NZfloc u cua fmel r Le BCeNa

fahLal pjMe quez

NZflocl cua J Lkfa

NZflocl HLj cua Rm pwhde fZuez pwhde fZuel r NZfloc phij rjal AdLl

Rmz Hr Ae Le lu Lafrl Jfl NZflocl Lelf eilnma Rm ez BCepiu Le hm fn qm

hmVa lfdel pjal fuSe quz pjacel BN lfde hmV fehhQel Se BCepiu gla fWa

flez L hwmcn NZfloc Nqa pwhde hm lfal pjal Se ayl LR fn Lll Le hde Rm ez

HMe NZfloc Bcn, 1972 bL Ea cu kux-

7. The Assembly shall frame a Constitution for the Republic.

Ae Lbu hm ku k, pwhde fZuel r NZfloc Qs Lafr Rmz

I Bcnl Ae HLV AeRc hde Ll quRm k, NZflocl Lk-fa NZfloc l fZa LkfZm

-hd l eua qh Hhw NZfloc Aelf hdjm fZue e Ll fk NZflocl Lk-fa lfa l fZa

LkfZm -hd l eua qhz H Rs Lkfa houL Hhw Lkfal pb pf LR hde I BcnVaC Rmz

pml jd ej LuLV EM Ll qmx-

(1) pwhde fZue pfLa pLm fnl p NZflocl jV pcpl pwMNl iV Nqe Ll qh;

(2) pwhde fZuel LS haa Aflfl hou Efa J iVceLl pcpcl pwMNl iV p

Nqa qh;

(3) pj-pwML iVl r haa NZflocl pifaLl h iVce Llhe e Hhw Aelf r

ae eZuL (casting) iV fce Llhe;

(4) NZflocl ~hWL QmLm Le pju Efa pcp pwM HLnl Lj luR hm kc pifal

c BLoZ Ll qu a qm ae Aee HLn pcp Efa e qJu fk ~hWL Na lMhe Lwh

jmah Llhe;

(5) fdejl fljnj lfa NZfloc Bqhe, Na J hm Lla flhe Hhw NZfloc

BqheLm ae ~hWLl pju J e edlZ Llhe;

 230

(6) NZflocl fLl J XfV fLl ehQa e qJu fk NZflocl l jeea HLSe pcp

NZflocl fLll cua fme Llhez Aelfih jeea h fbj eS pcp qph nfb NqZ

Llhe; Hhw

(7) fLll hl Ae fh fnl Se NZflocl jV pcp pwMl pwM Nl iVl fuSe

qhz

NZflocl fbj Adhnel au ~hWL NZflocl Lkfa pfL lfV fcel Se hd LjV ej

HLV LjV NWa quz Hhw I LjV flha Adhne lfV fn Llz lfVl pb fc NZfSa hwmcn

NZflocl hd-fa NZfloc Nqa quz

NZflocl hno AdLl

u cua kbkbih fmel Se NZflocL hno AdLl eZul rja cu quz a Rs, NZfloc

Bcn, 1972 l LuLV hno AdLl eZu Ll quz H Bcn NZfloc, NZflocl LjVpjq J pcphc Hhw

pwn hNZL fc hno AdLll jd LuLV ej EM Ll qmx-

(1) NZflocl Lk-dll ~hda pfL~a Le fn Le Bcma Efe Ll kh ez

(2) NZflocl k pcp h LjLal Efl NZflocl Lk-fZm euZ Lk flQme h nwMm lrl rja

e bLh, ae Hph rja fuN pfLa Le hfl Bcmal Ade qhe ez

(3) NZfloc h NZflocl Le LjVa LR hm h iVcel Se NZflocl Le pcpl hl

Lwh NZfloc hh lMa fle Hje Le hl hl Bcma Lelf Lk-dl NqZ Ll kh ez

(4) NZfloc LaL h NZ-flocl Laa Le lfV, LNSf, iV h Lkdl fLnl Se Le hl

hl Bcma Le Lk-dl NqZ Ll kh ez

(5) NZflocl fLll Aeja haa NZflocl pjl jd Le Bcmal flue Sl Ll kh ez

(6) Bangladesh Collaborators (Special Tribunal) Order, 1972- Hl Ade haa Ae Le

gSdl Afld Aik NZflocl Le pcp Nl h BVL qJul fl kc pwn LVL H jj Ahqa Lle

k, ae NZflocl h Hl Le LjVl ~hWL kNcel Se Ba quRe, ah HC LV SjekN Afldl r

ayL I ~hWL kNcel Se j Llhez Ahn H hdeVl Hlf Ab qh e k, LV l ihLih edla

hQll ce Aelfih j Le pcpL LV qSl qJu bL Ahqa cu quRz

(7) NZ-flocl Adhne ll 14 ce fh bL Adhne QmLm Hhw Adhne pjl 14 ce fl fk

Le cJue h lS Bcma h Le ehQe VChem Le pcpl hl Le ee dk Llh ez

fhC EM Ll quR k, NZflocl hno AdLl pfLa hd fZuel rja NZflocl Efl e Ll

quz NZflocl fbj Adhnel au ~hWL NZfloc, NZflocl LjVpjq J pcphcl hno AdLl pfL

lfV fn Lll Se HLV fyQ-pcp hn LjV NWe Ll quz NZflocl au Adhne hno AdLl LjV
 231

lfV fn Ll Hhw LjV LaL pflnLa NZfSa hwmcn NZfloc Cql LjV J pcpNZl hno AdLl

hd NZfloc Nqa quz

NZfloc pcpcl hae J ia

NZfloc pcpcl hae J ia pfL NZfloc Bcn, 1972 Hl hdeV fbj Ea Ll kux-

17. The Speaker, the Deputy Speaker and other members shall be entitled to receive

such salaries and allowances as may, from time to time, be determined by the Assembly by law

and until provision in this respect is so made, as the President may, by order, prescribe.

Abv NZflocl fLl, XfV fLl J Aee pcpNZ NZfloc LaL pju pju BCe l edla

fljZ hae J ia ff qhe Hhw Aelf Le hde fZa e qJu fk lfal Bcn l edla fljZ hae

J ia ff qhez

pwhde fZuel r NZflocl phijal Lb hhQeu lMC phax NZfloc LaL BCe fZuel

jdj fLl, XfV fLl J pcpcl hae J ia edlZl hde Ll quRmz I pju BCe fZue rja

lfal Efl e bLu NZflocL BCe-fZuel pb pf Lll hdeVL hajdj e hm Efu eCz ah

EM k, H Bcnl hdehm NZfloc fLl, XfV fLl J pcpcl hae J ia edlZl mr Le

BCe fZue Lle ez

NZfloc pcp (hae J ia) Bcn, 1972 nlejl HLV BCe (f, J, el 24) l lfa NZfloc

pcpcl hae J Aee phdl hde Llez H BCel hde Aeku faL NZfloc pcp jpL hae, pwpcl

Adhne h LjVl ~hWL kNcel Se lm, hje, Vjl fiaa phQ nZa jZ phd, Adhne h ~hWLl

e Ahel Se ~ceL J kaua ia, QLvp phd J HLV Vmgel pkN f qez

The Speaker and Deputy Speaker (Remuneration and Privileges) Order, 1972, noL Afl

HLV BCe l lfa, fLl J XfV fLll jpL hae, jpL Bfue ia, plLl MlQ HLV Ns, he

isu plLl hpe Ahe fia hou hde Llez Afl HLV BCe The Bangladesh (Whips) Order, 1972

l HLSe fde Cf J 2 Se Cfl hde Ll qu Hhw aycl cua J Aee Lafu hou pfL I BCe hde

Ll quz

pwhde fZue
NZflocl fbj Adhne
NZfloc cV Adhne jma qu pwhde fZuel cua pfce Llz f u fbj Adhne
cV ~hWL Aea quz fbj cel ~hWL NZfloc pwhde lQel cua BeeLih Nqe Llz
NZfloc Bcn, 1972-H hde Ll quRm k, Nlflocl fLl J XfV fLl ehQa e qJu fk
lfa LaL jeea HLSe h NZfloc pifaa Llhez Le LR cel jdC H BcnV pwnde Ll hde
Ll qu k, NZflocl fLl ehQa e qJu fk pwpc LaL jeea HLSe h NZfloc pifaa Llhez
HC hde Aeku floc-ea hh nM jShl lqje fbj Adhnel fbj ~hWLl pQeu flocl jeeue OoZ
Llez ae hme,
 232

HC floc fLl J XfV fLl jeea e qJu fk flocl ~hWL pifaa Lll Se
Hhw flocl Aee cua fme Lll floc-pcpcl jd fhZaj floc-pcp jJme Bhcl lnc aLhNnL
jeea LlaRz
HC OoZl fl pifa ayl Bpe NqZ Ll BCel hde Aeku ae fbj eS NZfloc-pcp qph
nfb NqZ Lle Hhw fl Efa pLm pcpL nfb fW Llez Hlfl BCejl fhj NZfloc LaL LkfZm-
hd fZa e qJu fk pjul Se lfa LaL fZa LkfZm-hd phpjaj Nqa quz
fLl J XfV fLl ehQe
LkfZm -hd Nqa qJul fl fLl J XfV fLl fc ehQel Se pifa jeeue Bqhe Llez
Eiu fc ehQel Se HLV Ll fh Efa quz f h Aeku phpjaj nq Bhcm qjc J Seh jqjcEmq
kbj fLl J XfV fLl ehQa qez H ehQel fl jJme Bhcl lnc aLhNn Bpe aN Lle Hhw
ehQa fLl nq Bhcm qjc Bpe NqZ Llez
pwhde fZuel cua NqZ
H fku dea OoZ J pwhde fZuel cua NqZ pfLu HLV fh Efa qm a pwnda BLl
phpjaj Nqa qux-
hhl Bqhe J BJuj mNl eaa IaqpL dea pwNj hwmcnl k hfh Sea,
LoL, njL, R, khL, hSh, hle, falr hiNl hml, phL C,f,Bl, fmn, Bepl, jSqc J
lS~eaL ea J Lj J hl j kl eScl l cu Bjcl dea ASe LlRe BSLl ce hwmcnl
SeNZl iV kbkbih ehQa hwmcn NZfloc pnQ aycl plZ LlRz
1971 pml 26 n jQ hh nM jShl lqje deal k OoZ LlRme Hhw k OoZ
jSheNl bL 1971 pml 10C Hfm La J pjba quRm HC p HC NZfloc aa HLaa fLn
LlRz
dea pecl jdj k NZfloc NWa quRm BS p pecl pJ H floc HLaa OoZ
LlRz
HrZ HC floc hwmcnl ps pa LV jeol Bn-BLMl pC ph ja Bcn, kb,
Sauahc, NZa, pjSa J djelfra, k nqce J hlcl dea pwNj BaaN E LlRm,
al ia cnl Se HLV Efk pwhde fZuel cua Nqe LlRz
Mps pwhde fZue J Aee LjV
1972 pml 11 C Hfm alM Aea NZflocl fbj Adhnel au ~hWL ejlf
4V LjV NWa qux-
(1) pwhdel Mps fZuel Se 34 pcp hn Mps pwhde fZue LjV;
(2) NZflocl Mps-LkfZm hd fZuel Se 21 pcp hn hd LjV;
(3) NZfloc, Hl LjVpjq J pcpNZl hno AdLl pfL HLV lfV fn Lll
Se 5-pcp hn hno LjV; Hhw
(4) YLu AheLm NZflocl pcphcl BhpL pwe, Mc, QLvp, Bfue J
NNl pfL pkN-phd hde J Hml ahdel En 15-pcp hn floc
LjVz
NZflocl au Adhne
NZflocl fbj Adhnel fl fLl nq Bhcm qjc jahlZ Lle Hhw NZfloc Bcn
1972 Hl HLV hdehm XfV fLl Au fLl qph cua mi Llez au Adhnel pQeu
fLl J XfV fLl fc ehQe Aea quz H Adhnel laC fhha Adhne NWa 4 V LjVl
jd 3V LjVl lfV fn Ll qu Hhw lfVm pfL hh Nqa quz floc LjVl Jfl fnpeL
 233

cua e bLu I LjVl Le lfV Effel Le fuSeua Rm ez ej hd LjVl lfV Hhw

hno LjVl lfV pfL pwrf Hhw Mps pwhde fZue LjVl lfV LRV hlaih EM Ll
quRz
hd LjVl lfVx NZflocl LkfZm-hd fZuel En NWa hd LjVl pifa I
LjVl lfV fn Llez NZfloc Effa hd LjVl lfVl pb NZfSa hwmcn NZflocl
hd-fa nlejl 13-Adu hn 90 V hd pma HLV Lk-fZm-hd NZflocl Aejcel Se
fn Ll qm BmQel fl a pwnda BLl Nqa quz
hno LjVl lfVx NZfloc, NZflocl LjVpjq J pcphcl hno AdLl pfLa hno
LjVl Qulje I LjVl lfV fn Llez lfVl pb fnLa hdpjq BmQel fl pwnda
BLl Nqa quz
Mps pwhde fZue LjVl lfVx Mps pwhde fZue LjVl pifa I LjVl lfV fn
Llez lfVl pb LjV LaL fZa pwhde hm pwkSa Rmz Mps pwhde fZue LjVl lfV
EMa fde fde houm Rm ejlfx-
(1) HC LjV 17C Hfm alM fbj ~hWL jma qu LjVl Lkfa edlZ Ll Hhw pwhc f, hal
J Vminel jdj pwhde pfL fh J fljn fcel Se SepdlZL BjZ Seuz Hph fh fWel
phno alM Rm 8C j, 1972z H Bjel psu LjV 98 V plLmf mi Llz
(2) 17C Hfm bL 29 n Hfm fk HLcj LjVl ~hWL Aea qu Hhw LuLcel Se jmahl fl
10C j bL 25n j fk Bhl HLcj LjVl ~hWL Qma bLz Hph ~hWL fha pwhdel faV Mps
hde eu fMefMih BmQe qu Hhw hi cnl pwhde fkmQe Ll quz Mps pwhde fZue LjV jV
29V ~hWL jma quz
(3) 25 j alM Aea ~hWL Mps pwhde fZue LjV p NqZ Ll k, pwhdel Mps hdeNm
pfL H fk LjVa Nqa pl ia pwhdel HLV fZ Mps fZue Ll qhz 3 l Se alM Aea
LjVl ~hWL I Mps fn Ll qm LjV MpsVl cgJul BmQe Ll Hhw hn LR pwndepq 10C Se, 72
alM MpsV Aejce Llz
(4) pwhdel Mps AejceLm LjV H ja fLn Ll k, Mpsl ANa jm houh Aejca qmJ
ioNa Eapdel Se MpsV VLeLm XgVpje Hhw hwm iou fa hcl l flra qJu EQaz H
jajal flfra HLV io hno LjV MpsV flr Ll Hhw ioNa Eapdel Se fljnce Llz
acl fljn 10C BN alM Aea LjVl ~hWL Effe Ll qm LjV I ce bL 1m pVl fk Hhw 9 C
pVl bL 3l Ahl fk ~hWL jma qu Mps pwhde fkmQe Ll Hhw Qsih NqZ Llz
(5) Mps pwhdel fheu EMa jm eapjq pwhdel hdepjq fagmel mr LjV MhC
EcN J pQae Rmez
(6) pwhdel H Mpsu fSal BCe-fZue rja pwpcl Efl e Ll quz ehq rja fuNl il
fdej J ayl eaa NWa jpil Efl Afa qu Hhw jpiL kbih pwpcl LR cu lM quz H Mpsu
lfaL fSal pwhdeL fde Ll qu Hhw ayl rja J cua mfh Ll quz
(7) H Mpsu elfr hQl hiN fal Hhw ll ehq Awnpjq bL hQl hiNL fbL Lll hh
Ll quz pwpcu NZal p flQmel Se Aflqk hm hhQa LuLV pwhdeL fc J cl pl hh Ll quz
Hl jd HVe Selm, jq-qph elrL J euL, ehQe Ljne J plLl Lj Ljne EMkNz
(8) pjSaL Ab hh faLf k ph BCe fZa qh pmL hQl hiNu fkmQel BJai
Ll quez l flQmel jmea nleju pjSaL hhl mr pma pec pwhdeL ecnehm HC
Mpsu Ai Ll quz
 234

lfV pfL ja~eLjmL jhx Mps pwhde fZue LjVl ej 6 Se pcp Aee pcpcl pb
LjVl lfV rl Ll pJ Mps pwhdel LuLV hde pfL ija foZ Ll ja~eLjmL jh fce
Llex-
1z Seh BRcje Me;
2z Seh H,L, jnllg qpe BMc;
3z Seh Bhcm jLj Qdl;
4z Seh qgS qhhl lqje;
5z n pla pe ; Hhw
6z Xx ran Qc jmz
aycl ja~eLjmL jh lfVl pb pwk Ll quz
pwhde hm Efe
Mps pwhde fZue LjVl lfV J al pb pwhdel MpsV pwhde hm qph NZfloc fn Lll

fl ilf -pcp pwhde hm NZfloc Efe Llez hmV Efel fh ae Mps pwhdel LuLV ~~hn

EM Ll hh lMez

pwhde hm HLhl LjV lfVl pb fn Ll Hhw flhaLm HLC hm NZfloc Efe Ll

fwpN HLV hM cu fuSez NZflocl hd-faa fn J Effe n cV NZflocl ab Le hou

Effe Ab hhqa quRz AecL, Efe nV Le hou NZflocl hhQel Se Efe Ab hhqa

quRz Le lfV h LNSf NZfloc Effel r fn h Effe LbV hhql Ll quRz AecL,

Le hm h Le fh NZfloc hhQel r Efe nV hhqa quRz EM k, Sau pwpcl

LkfZm-hdaJ H nm HLC Ab hqe Llz Mps pwhde fZue LjVl pifa fbj I LjVl lfVl pb

lfVl Awn qph pwhde hmV NZflocl ab fn Llez Hr ae I LjVl pifa qph ayl cua

fme Llez fl ae pwhde hmV BCe-fZue ful Awn qph pwpcl hhQel Se Efe Llez Hr ae

NZflocl hd-faa hZa ilf pcp Hl cua fme Llez

pwhde hm Efel Se Aeja-fh Hl fuSe Rm ez NZflocl hd- fal 23 hdl na Awn

hde Rm k,

ah, floc kc fh BLl NZfSa hwmcnl Se HLV Mps pwhde fZuel En Le Mps

LjV ek Lle, aq qCm LjV hml BLl HLV Mps pwhdepq LjVl lfV fn Llhez LjVl

Qulje h ayql Aefaa LjV LaL rjaf Ae Le pcp LjVa kih l qCuR, pCih hmV

Efe Lla flhe; ah HClf HLV hm Efel Se Aeja- fh Efel fuSe qCh ez

pwhde hml Efl pdlZ BmQe

pwhde hml ilf pcp fh Lle k, NZfSa hwmcn NZfloc Efa hmV Ahm hhQel

Se NqZ Ll qLz HC fhVl l pwhde hml jmea J pdlZ hdem pfLa BmQel pfa quz ayl H

fhVl fl Ae HLSe pcp fh Lle k, pwhde hmV 1972 pml 30 Ahll jd Seja kQCul Se

fQl Ll qLz H Eiu fh HLC pb BmQel fr cSe pcp hh lMez AecL Seja kQCul fhVl
 235

hlda Ll Hhw hmV Ahm hhQel fh pjbe Ll Ae 4 Se pcp hh lMez BmQel HL fku Ae

HLSe pcp faNa hou jaja fce Ll hme k, Seja kQCul fhVl Jfl fbj iV NqZ Ll qh Hhw

fhV Nqa qm Seja kQCul Se hmV fQl Ll qh, L Seja kQCul fh faMa qm jm fhV Abv

Ahm hhQel fhV iV cu qh Hhw a Nqa qm hmVl cgJul hhQe l qhz Efel fll ce

Seja kQCul fhV iV cu qm a eLQ qu kuz HcL I ce Hhw 30 Ahl alM fk Aea Bl RV

~hWL jm fhVl Efl AmQe Ahqa bLz no alMl ~hWL pwhde hmV Ahm hhQel fhV iV

cu qu Hhw hmV Ahm hhQel Se NZfloc Nqa quz

pwhde hml cgJul hhQe

pwhde hmV Ahm hhQel fh NZfloc Nqa qJul fl fLl NZflocL Ahqa Ll

hme k, Mps pwhdel cgJul BmQe fl ce bL nl qhz pwhde hml cgJul hhQeLm Aepa

fal fde LuLV ~hn ej EM Ll qmx-

1. Mps pwhdel fhe AwnV pwhdel pQeuC phna qJu pJ AeRc J agpmm Nqa

qJul fl a pwpcl iV cJu quz

2. fLl Mps pwhdel AeRcml Hj Aeku pm HL HL pwpc fn Llez

3. k ph AeRc Le pwndel eVn Rm e, p ph AeRc ae plpl iV cez H ph

AeRcl Efl Le BmQel fuSe quez

4. k ph AeRc Bea pwndel eVn hd hqia hm fLl OoZ LlRe, I ph AeRc

hdpja Ae Le pwnde e bLm fLl pm plpl iV cuRez

5. k ph AeRc pwndel hd pja eVn Rm, p ph r-

(L) fLl fbjC eVnca pcpL ayl pwndeV Efel Bqhe See Hhw H fku pcp

d ayl fha pwndeV fW Ll neez

(M) eVnca pcpl fha pwndeV fLl eS fW Lle Hhw Hl fr hh lMl Se

pcpL Aqe Seez

(N) fLll Bqe eVnca pcp ayl pwndel fr hh lMez H fku pcp pdleax

cjeV pju fez pcpL ayl hh pwndeVl BJai hou pjh lMa quz

(O) fLll Bqe ilf pcp hh lMez

(P) ilf pcpl hhl fl fLl pwndeV iV cez

6. Le AeRc HLdL pwnde bLm HLVl fl HLV pwndel r fLl Efk fa

AeplZ Lle ph LV pwnde HL HL iV cez Le pwnde Nqa qm fLl pwhdel jm

AeRcV pwnda BLl Nqel fnV floc fn Llez L Le AeRcl pwnde eLQ qm

jm AeRcV flocl iV fn Llez

 236

7. Le Le r pwnde EfeLl pcp hh lMl fl Afl HL h HLdL pcpL

pwndeVl fr h hfr hh lMl pkN cul fl ilf pcpL hh lMl Bqhe Seez

Mps pwhdel 153 V AeRcl jd 82 V AeRc Le pwnde Rm e, 12 V AeRcl Jfl Bea

pwnde BmQel fl NZfloc eLQ qu, 6V AeRcl Jfl fc pwnde hdhqia hm fLl OoZ Lle
Hhw 3V AeRcl Jfl Bea pwnde Efa quez Ahn 50 V AeRc jV 62 V pwnde (Le Le
AeRc HLdL pwnde Nqa qu) pwhdel fbj J au agpm 1V Ll jV 2 V pwnde, aau agpm 2V
pwnde, Qab agpm 16V pwnde Hhw pwhdel f heu 1V pwnde Abv phjV 84V pwnde Nqa quz
Nqa pwndeml jd HLj hldcmu pcpl 1V pwnde Aiz
Hph pwnde l AdLwn r pwn hdeVL fuel Se ioNa flhae pde Ll quz ah k
LuLV r lafZ flhae pda qu pml jd ej LuLV EM Ll qmx-

1. Mps pwhde eNlLa pfL hde Rm k,

6z hwmcnl eNlLa BCel l edla J eua qChz
H hdeV ejlf pwnda BLl Nqa qux-
6z hwmcnl eNlLa BCel l edla J eua qCh; hwmcnl eNlLNZ
hPm hmu flQa qChez
HLSe pcp H pwndeV pfL ah fau h Llez
2. Mps pwhdel 56 AeRc hde Lll fh Ll quRm k, dj pwpc-pcpNZC j fc ek
qa flhez L I AeRc ej (4) cg pwkSe Ll AeRcV Nqa qux-
(4) j fc ek qChl pju Le h pwpc-pcp e bLm kc ae Aelf euNl
alM qCa Ru jpl jd pwpc-pcp ehQa e qe aq qCm ae j bLhe ez
3. Mps pwhdel 70 AeRc Hlf hdel fh Ll quRm k, Le ehQe Le lS~eaL cml
fblf jeea qu Le h pwpc-pcp ehQa qJul fl ae kc I cm bL fcaN Lle h
hqa qe aqm pwpc ayl BpeV ne qhz H hdeV ej pwnda BLl Nqa qux-
70z Le ehQe Le lS~eaL cml fblf jeea qCu Le h pwpc-pcp ehQa
qCm ae kc
(L) E cm qCa fcaN Lle; Abh
(M) pwpc E cml hfr iVce Lle,
aq qCm pwpc ayql Bpe nZ qCh, ah ae pC LlZ flha Le ehQe pwpc-
pcp qChl AkN qChe ez
HLj hldcmu pcpl HLV pwnde Nqa quz ayl fh pwhdel 73 AeRcl ej (3) cg
pwkSe Ll qux-
(3) lfa LaL fc ioZ nhZ h fla he fl fl pwpc E ioZ h hZ pfL BmQe
Llhez
NZfloc pwhde hm Nqa

4W eil 1972 jahL 18 LaL 1379 hwmcnl pwhdeL Caqpl HLV lafZ cez I ce
pwhde hml ilf-pcp fh Lle k,
NZfSa hwmcnL HLV pwhde fcel En floc lLa-BLl pwhde hmV NqZ Ll
qLz
 237

H fhVl Efl floc-ea hh nM jShl lqje J Ae cSe pcp hh lMez floc-ea ayl
hh CwlS npejm bL 1971 pml jpwNj fk hm Sal pwNj Caqp fkmQe Lle Hhw hme k,
Bjcl ll Aeaj jm mr qh NZaL faa Hje HL noZj pjSaL pjSl fa, kMe pLm
eNlLl Se BCel npe, jmL jehdLl Hhw lS~eaL, Ab~eaL J pjSL pj, dea J phQl eQa
qhz..... aycl hhl fl ilf pcpl fhV fLl iV ce Hhw iV Nqel fl OoZ Lle k, floc
lLa BLl pwhde hm fn qmz EM k, pwhdel fhe Awn hm quR-
Hal Bjcl HC NZfloc, Ac al na EeBn hwNl LaL jpl BWl alM, jahL Een
na hql Ml eil jpl Ql alM, Bjl HC pwhde lQe J hdh Llu pjhaih NqZ Llmjz
pde phij hwmcnl pwhde NZfloc Nqa qJu Efmr floc-eal fhj HLSe pcpl
flQmeu jeSa Ll quz
fLl 14C Xpl 1972 fk NZflocl ~~hWL jmah Llez 12 C Ahl bL 15C Xpl, 1972 fk
ha au Adhne NZfloc pwhde fZuel cua pf Llz fLafr 4W eil alMC NZfloc pwhde
Nqa quz I cel fl 14C Xpl fk ~hWL jmah qu kuz 14 J 15C Xpl alM Aea ~hWL cCVa
pcphc qmMa pwhde rlce Llez
pwhde rl J fhae Hhw NZflocl hm

hwmcn NZflocl no cV ~hWL pcphc pwhdel hwm J CwlS fW rlce Llez rlce
Aee l qm pwhde hml ilf-pcpl ej fhV NZfloc Nqa qux-
pLm pwnde J mMeNa Vl Ai Lll fl NZfSa hwmcnl pwhdel jm
hwm fW Hhw CwlSa Aeca HLV Aejca fW HMe fLl LaL eilkN hm pVgLV
fce Ll qL Hhw NZfloc-pcpNZ LaL pwhde J aql CwlS Aehcl rla HLV Ll
fW Sau kcOl pwlra Ll qELz
fhV Nqa qJul fl floc-ea J fdej hh nM jShl lqje phfbj pwhde rlce Llez
Hlfl jpil pcpNZL Hhw floc Lr pcpNZl Bpel jL el Aepl pcphcL fLl HL HL
pwhdel hwm J CwlS fW rlcel Bqhe Llez pwhde rll H fu 15C Xpl 1972 alM pj
quz pwhde rll pju NZfloc 403 Se pcp Rmez aycl jd 399 Se pcp pwhde rl Llez HC 399
Se pcpl rl pma pwhdel jm hwm fW J Aejca CwlS fW NZfloc Nqa fh fh Aeku Sau
ScOl pwlrel Se flZ Ll quz NZflocl pcphc LaL pwhde rlce Aeel no ce Abv 15 Xpl
1972 fk LuLSe pcp pwhde rlce Lla fle e h Lle ez H hou floc-ea hh nM jShl
lqje hme k,
...... Bjl je qu, LuLSe pcp q Lla NRe Bl cHLSe Apahnax Bpa fle
eCz Bl kc cMa Lll Se Bpa e fl bLe aa LR Bp ku ez Bfe flJ aycl cMa ea
flez HV HC qESl fr bL Aeld LlRmj Hhw Bfe p Aeld je euRez

fll ce Abv 1972 pml 16C Xpl alM NZfSa hwmcnl pwhde hmhv quz pwhde hmhv
qJuL pwhde pwhde-fhae hm EM Ll quRz pwhde-fhael pb pb NZfloc hm quz 1972
pml 16 Xpl alM fhaa hwmcnl jm pwhde H hCu fln M qph phn Ll quRz pwhde
rlceLl pcphcl ejl amL H hCu fln N qph flhne Ll quRz
NZflocl fbj ~hWL bL j 8 jp pjul jd NZfSa hwmcn pwhde fhaa quz pwhde
fZuel r Aee cnl Aia hQl Ll expcq hm ku k, hwmcn NZfloc Aa aal pb u
cua pfce Llz ilau NZfloc 1947 pm dea mil LuLcel jdC pwhde lQel LS l LlmJ
 238

1950 pml fh H cua pf Lla flez fLel fbj pwhde lQel fu 1956 pm pj quz Cajd
fbj NZfloc hm qu Hhw au NZfloc H cua pfce Llz 1958 pm pjlL BCe Sll fl I pwhde
ham Ll quz 1962 pe fde pjlL npeLa HLLih HLV pwhde Qfu cez 1969 pe H pwhdeJ ham
quz hwmcn fal pju fLel Le pwhde Rm ez
NZfloc pfca Aee LS
nL -fh
NZflocl fbj Adhnel fbj ~hWL floc-ea hh nM jShl lqje jk QmLm jahlZLl
euSe pcp Hhw ehQel fl flC He,C- 154-QVNj-2 Bpe bL ehQa Seh Hj, H, BSSl jaa NZflocl
fbj ~hWL nL-fh Efe Llez nL-fhV Efel fl floc-eal fh Aeku pcphc cysu HL jeV
elha fme Hhw fl jeSa Llez HC nL fhV Efel jdj NZfloc ab flhaLm Sau pwpc
nL-fh Efel la fhaa quz EM k, NZflocl hd-faa h flhaLm Sau pwpcl LkfZm-
hda nL-fh Efel Le mMa hde eCz ah hnl fu ph BCe-piuC pwpcu fljml Le h
ab Sau J BSaL Mapf Le hl jaa nL-fh Efe Lll lJuS fQma luRz

NZflocl fbj Adhnel fl fLl nq Bhcm qjc, pcp Seh Hj, H, Ngl J pcp Seh Lgm
Ee Qdl jahlZ Llez NZflocl au Adhnel fbj ~hWL (12 Ahl 1972) Au fLl aeV nL-
fh Efe Llez HC fhV l nL-fh Efel r HLV flhae pQa quz Hl fl bL fu pLm r
fLl LaL nL-fh Efel lJuS fhaa quz Au fLl ayl Efa faLV nL-fhl pQeu fua
pcpl pwr She phn Ll nL-fhl k gljV fhae Lle a flhaLm Sau pwpc Aepa qu
BpRz nL-fhml Efl floc-ea hh lMez ehla no fua pcpcl Bal jNgla Lje Ll
jeSa Ll quz
NZflocl au Adhne QmLm floc-pcp Seh He, H, qjcl lqje (ehQe HmL f,C, 43-
lSnq-2) 20 Ahl 1972 alM jahlZ Llez flce 21 n Ahl Aea pwpcl ~hWL fLl ayl jaa
HLV nL-fh Efe Llez I cel ~hWL Ae Le houl Efl BmQe Na lM qu Hhw jljl Bal
fa pje fcne Ll I cel Se ~hWL jmah Ll quz I cel ~hWL jmahl HC p l hcje pwpcl Le
pcp Adhne QmLm jahlZ Llm ayl jal fl Aea fbj ~hWL nL-fh Efe haa pwpc Ae Le
Lk pfce Na lMl la fhaa quz laV HMe fk Aepa qu BpRz pfa pj Sau pwpc la fhaa
quR k, hcje pwpcl Le pcp pwpc AdhneLm h al hCl Ae Le pju jahlZ Llm al fl
Aea pwpcl fbj ~hWL nL-fh haa Ae Le Lk pfce Na bLhz ah, HC laV hRll fbj
~hWLl r fkS euz
floc-Lr Sal fal Rh
pcp Seh Bnlgm Cpmj ju floc-Lr Sal fal Rh e VwNe fk qEp jmha lMl fh
Llm fLl hme k, qEp gV lMl euj eCz ah pcpNZ kc CR Lle, aqm hh Ll qhz fl floc-
Lr Sal fal Rh VwNe quz
Aiece fh
hn n floc LaL hh nM jShl lqjeL hnnl Se SmJ Ll fll fce Llu au
Adhnel fbj ~hWL ayL Aiece Seu Bea HLV fh Nqa quz
pifajm jeeue
flocl LkfZm-hdl pwn hd Na Ll fLl J XfV fLll Aefaa floc pifaa
Lll Se 4 Se floc-pcpl HLV fem jeeuel houV NZflocl fbj ~hWLl flha au ~hWL cel
LkpQa Ai Lll p Nqa quz NZflocl fbj Adhnel au ~hWL fLl pifajml pcp qph
Ql Se pcpL jeea Llez fLl J XfV fLll Aefaa H amLi 4 Se pcpl jd kyl ej
 239

phQ bLh ae fLll Bpe NqZ Llhez au AdhneJ Aelf cua fmel Se I pcp Qau BhlJ
jeea qez
pwpcu la-ea pfLa Aee hou
NZflocl hi ~hWL Efa Aee houl jd LuLV ej EM Ll qmx-
1z HL Se pcpl ~hadl fnl Shh pifa jJme Bhcl lnc aLhNn HC jj p ce k,
flocl ~hWL QmLm floc Lr djfe eoz
2z HLSe pcpl ~hadl fn fLl p ce k, floc-ea kMe Lb hml Se cyshe aMe Ae LE
Lb hmhe ez
3z floc-ea hh nM jShl lqje hme k, fLl qEp Bpl pju fmjVl Leiene Aepl
OoZ Ll clLlz OoZl fl fLl Bphe Hhw pcpl cysk pje fcne Llhez
4z Adhne pjl fh floc-ea ayl pwr hh ja fLn Lle k, NZfloc LlJ fa LVr Ll
Lb hm EQa euz Le pcp Ae Le pcpL pde Ll Lb hma fle ez ph pcpLC Seh fLlL
pdZ Lla qhz
5z H~ hh floc-ea BlJ hme k, NZfloc HLSe j efl pcp BRe, ae LR hn pkN
fa flez pSe Ae pcpcl je Lll LR eCz ayL LR hn pkN cu EQa Hhw ae p pkN fuRez
ae ihoaJ eQuC BlJ pkN fhez
6z au Adhnel fbj ~hWL floc-ea J LuLSe pcp fbj fLlL Aiece Sem fLl
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pcpl Bpe bL csu Seh huaq floc-ea Hhw flocl pcpNZL dehc Seez

H fku McLl Bhcm qL jul pwpcu la J fa hC bL jm pwhde

rlceLl NZfloc pcphcl ej pma fln-N (fa-615) noL AwnVL ej
Ea qmx
1z hh nM jShl lqje, He.C. 111-YL-8 2z puc eSlm Cpmj,
He.C. 92-jujepwq -17 3z Seh aSEe Bqjc, He.C. 108-YL-5 4z
Seh jqjc jepl Bm, f.C. 59 fhe-1 z 5z McLl jnaL
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-6 z 8z nM Bhcm BSS, He.C. 51- Mme-2 z 9z AdfL jqjc
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ge jSjcl, f.C. 219-glcfl -19z 13z Xx Ljm qpe, He.C. 112-
YL-9z 14z Seh jgSl lqje pL, He.C. 153 -QNj -1z 15z
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jaEl lqje, He.C. 10 -lwfl -10 z 17z Seh Bhcm jmL ELm,
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nq juj qpe, He.C. 175-YL-5 z 21z Seh jqjc jSel
lqje Qdl , He.C. 144-Lj -14 z 22z Seh Bhcm je, He.C.
71-VCm -1 z 23z Seh Bhcl lh Rleuha, He.C. 58-hhlN-1z
24z Selm jqjc BaEm Ne Jpje, He.C. 125- pmV-6 z 25z Xx
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28z Seh BMal Ee hnp, f.C. 172 YL-2 z 29z Xx BMmLm
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 240

He.C. 90-jujepwq-15 z31z Seh BSSl lqje, He.C. 235-pmV-16

z 32z Seh BSSl lqje BLLp, He.C. 40-Lu-2 z 33z Seh
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f.C. 199-YL-29 z 35z Seh BfahEe iCu, He.C. 114-YL-11 z
36z Xx Bgah Ee j, f.C. 204-glcfl -4z 37z Seh Bgpl
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pmV-3 z 39z Seh Bhcl lEg Qdl, f.C.72- Lu-2 z 40z Seh
Bhcl lnc, f.C. 249- Lj-9 z 41z Seh Bhcl lqje, f.C. 65-
fhe-7z 42z Seh Bhcl lqje Qdl, f.C. 1-lwfl-1z 43z Seh
Bhcl lqj, He.C. 126-pmV-7z 44z Seh Bx lL iCu, He.C.
115- YL -12z 45z Seh Bhcm BEum, He.C. 141-Lj-11z 46z
Seh Bhcm BEum, f.C. 258 -Lj-18z 47z Seh Bhcm BSS
McLl, f.C. 110-fVuMm-6z 48z Seh Bhcm BSS Me, f.C. 252-
Lj-12z 49z Seh Bhcm Jqh, f.C. 285-QNj-5z 50z Seh Bhcm
Llj fVJul, f.C. 264-Lj-24z 51z Seh Bhcm Llj hfl,
He.C. 119-YL-16z 52z Seh Bhcm Llj plcl, f.C. 124-hLlN-
13z 53z Seh Bhcm Lcl, f.C. 168-jujepwq-30z 54z Seh Bhcm
MmL, f.C. 163-jujepwq-25z 55z Seh Bhcm hlL, f.C. 111-
fVuMm-7z 56z Seh Bhcm jSc (al ju), f.C. 158-jujepwq-
20z 57z Seh Bhcm je qJmcl, He.C. 62-hLlN-5z 58z Seh
Bhcm jje, He.C. 88-jujepwq-13z 59z Seh Bhcm jje amLcl,
He.C. 26-fhe-3z 60z Seh Bhcm jmL, f.C. 142-jujepwq-4z 61z
nqSc Bhcm jmL Me, f.C. 106-fVuMm-2z 62z Seh Bhcm
jLj Qdl, He.C. 124-pmV-5z 63z Seh jx Bhcm mag,
f.C. 229-pmV-10z 64z Seh Bhcl lEg, He.C. 11-lwfl-11z 65z
Seh Bhcm mag Me, f.C. 94- Mme-4z 66z Seh Bhcm mag
pL, f.C. 133-VCm-4z 67z Xx Bhcm qC, f.C. 127-hLlN-
16z 68z Seh jx Bhcm qLj, f.C. 13-lwfl-13z 69z Seh Hj
Bhcm qLj, f.C. 153-Lj-13z 70z Seh Bhcm qLj Qdl, f.C.
220-pmV-1z 71z Seh Bhcm qjc, He.C. 93-jujepwq-18z 72z
Seh Bhcq -Bm-qle, f.C. 286-QNj-6z 73z Seh Bhcq
plJuc, f.C. 15-lwfl-15z 74z Seh Bx pl iU, f.C. 200-
YL-30z 75zSeh Bhcp phqe, f.C. 271-euMm-5z 76z Seh
Bp Bm Me, f.C. 161-jujepwq-23z 77z Seh Bhc Bm, f.C.
5-lwfl-5z 78z Seh Bhcl lS Me, He.C. 102-glcfl-9z 79z Seh
Bh CEpg BjeEe Bqjc, f.C. 207-glcfl-7z 80z Seh Bh
Rmq, He.C. 160-QNj-8z 81z Seh Bh eRl Qdl, f.C. 270-
euMm-4z 82z jpp apmj hNj, He.C. 168-jqm Bpe-6z 83z
jpp el Sqe jlnc, He.C. 163-jqm Bpe-1z 84z jpp hclp
Bqjc, He. C. 169-jqm Bpe-7z 85z jpp jjaS hNj, He.C. 166-
jqm Bpe-4z 86z jpp lSu he, He.C. 167-jqm Bpe-5z 87z
Seh Bh jqjc phc Bm, f.C. 180-YL-10z 88z AdfL Bh
pCuc, He.C. 28-fhe-5z 89z Seh Bhm jepl Bqjc, f.C. 155-
jujepwq-17z 90z Seh jx Bhm qnj, f.C. 157-jujepwq-19z 91z
Seh Bhm qpea Qdl, f, C, 35 hs-3z 92z BmqS Bhm qpj,
He,C, 139 Lj-9z 93z Seh Bhm qpe, f,C 14 -lwfl-14z 94z
Seh Bjem Cpmj (cen ju), f,C 215 glcfl-15z 95z Seh
Bjlm Cpmj, He,C 39-Lu-1z 96z Seh Bjl qpe, f,C, 119-
hLlN-8z 97z Seh Bjlm Cpmj, f,C, 280 -euMm 14z 98z
jpp pSc Qdl, He,C 165-jqm Bpe-3z 99z Seh Bmagl
lqje Qdl, f,C 234 pmV-15z 100z BmqS Bm BLhl jSjcl ,
f,C, 256 Lj-16z 101z Seh Bm BSj , He,C, 132, Lj-2z 102z
 241

Seh Bm Bqjc Me, f,C, 217, glcfl-17z 103z Seh Bnlg Bm

Qdl, He,C, 109, YL-6z 104z Seh Bnlgm Cpmj ju, f,C, 57
lSnq-16z 105z Seh Bpja Bm pLcl , He,C 70-fVuMm-4z
106z Xx Bpqh-Em qL, f,C 76 Lu-6z 107z Seh Bqpe Eq
,f,C, 73-Lj-3z 108z Seh Bqjc Bm, f,C, 245-Lj-5z 109z
Seh CLhm Beulm Cpmj , He,C 44-knql-2z 110z Seh Cjj
Ee Bqjc, f,C, 205-glcfl-5z 111z Seh Cmup Bqjc
Qdl,f,C 213-glcfl-13z 112z jpp lgu BMal Xm, He,C,
164-jqm Bpe-2z 113z BmqS LVe CpjCm qpe Qdl, f,C,
47-lSnq-6z 114z Xx H,H,Hj jphm qL (hQ Xl), f,C 44,
lSnq-3z 115z Seh H,He,Hj eSlm Cpmj, He,C 85-jujepwq-10z
116z Seh H,Hj, Bqjc MmL, He,C 137-Lj-7z 117z Seh H,L
jnllg qpe BLc, He,C, 81-jujepwq-6z 118z Seh H,L,Hj
CpjCm ju, f,C, 118-hLlN-7z 119z Seh H,L,Hj elm qL, f,C
107 fVuMm-3z 120z Seh H,L,Hj elm Llj, f,C, 122 hLlN-
11z 121z Seh H,L,Hj, pjRm c, f,C, 178-YL-8z 122z Seh
H,L,Hj njpq, He,C, 117, YL-14z 123z Seh H,L,Hj, njpm
qL, f,C, 164 jujepwq-26z 124z gx mgVeV H,h, pL, f,C,
262-Lj-22z 125z Seh H, h, Hj Nmj jSc,f,C, 79-knl-2z
126z Seh H,h,Hj, jLpc Bm,He,C 15-ceSfl-3z 127z Seh
Hejm qL, f,C, 236 pmV-17z 128z Seh jx Heua Bm pe, f,C
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Xx Hj, H, Lpj ,He,C, 103 glcfl-10z 131z Seh Hj, H, Mul ,
He,C 50, Mme -1z 132z Seh Hj, H, amh ju, f,C 18-lwfl-18z
133z Seh jx Bhcm jSc, He,C 154-QVNj-2z 134z Xx Hj, H,
je, f,C, 289 QVNj-9z 135z Seh jx Bhcm jmL, f,C, 255
Lj-15z 136z Seh Hj, JhCcm qL, f,C, 283 QVNj-3z 137z Seh
Hj, JumEq, He,C 143-Lj-13z 138z Seh H,h,Hj amh Bm,
f,C 269 euMm-3z139z Seh Hj, jnlg qpe Qdl, He,C, 13-
ceSfl-1z 140z Seh Hj, njpm qL, He,C 67 hMlN-Lj-fVuMmz
141z Seh Hp,Hj CEpg, f,C 28-ceSfl-6z 142z Seh Hp Hj
jaEl lqje, f.C. 90- knl-13z 143z Seh Jum El lqje, f.C.
19-lwfl-19z 144z Seh Heua qpe Me, He.C. 66- hLlN-9z
145z Seh Jpje plJul Bmj Qdl f.C. 298-QNj-18z 146z Seh
LRj Ee Bqjc, f.C. 34- hs-2z 147z Ljle Bqjc, f.C.23-
ceSfl-1z 148z Seh Llj Ee Bqjc, f.C. -6-lwfl -6z 149z
Lljje amLcl, He.C. 77-jujepwq-2z 150z LS Sqlm LCEj,
He.C. 136-Lj-6 z 151z Seh LSjcl JupjEe Bqjc, f, C.
46- lSnq-5z 152z LS BLhl Ee Bqjc, f.C. 246-Lj-6z
153z LS Bhcl lnc, f.C. 209 glcfl-9z 154z LS Bhcm jSc
Qdl, f.C. 32 ceSfl-10z 155z Xx LS jx Mcjm Cpmj, f.C.
78 knl -1z 156z LS pqhe, f.C. 196-YL -26z 157z Seh
Ljlje,He.C. 43-knl-1z 158z n Lhl Qc hnp, f.C. 95-
Mme-5z 159z Seh L Hj Jhucl lqje,He.C. 96 -glcfl-3z 160z
McLl elm Cpmj,He.C. 106-YL-3z 161z McLl jSqlm qL,f.C.
173-YL-3z 162z Seh MS Bqjc,He.C . 146-euMm-2z 163z Seh
Mmc jqjc Bm,He,C. 150-euMm-6z 164z Seh Mul Ee
Bqjc,f.C. 268- euMm-2z 165z McLl Bhcm qgS, He.C. 49-
knl-7z 166zNS Nmj jg, f.C. 183- YL-13z 167z NS gSml
lqje,f.C. 192-YL-22z 168z n Nfm Lo jqla,f.C. 239 pmV-
20z 169z Xx Nmj RlJul,f.C. 39-hs-7z 170z Seh Nmj
jlnc,f.C. 263-Lj-23z 171z Seh Nmj qpeue,f.C. 62-
 242

fhe-4z 172z n NlQc hm, f.C. 203-glcfl-3z 173z Seh Rgl

Ee Bqjc,f.C. 186-YL-16z 174z puc Hjccm hl,f.C. 244-
Lj-4z 175zSjml lqje fde,f.C. 21-lwfl-21z 176z Seh Sl
lqje,He.C. 91 jujepwq-16z 177z Seh S L Hj H BSS, f.C.
80-knl-3z 178z Seh Sjm Ee Qdl,f.C. 176-YL-6z 179z
Seh X.Hj.HCQ. Jhucl lS Qdl,He.C. 130-pmV-11z 180z Seh
Lhl Ee Bqjc,f.C. 117- hLlN-6z 181z Seh aql Ee
WLl,He.C. 131-Lj-1z 182z Seh agum Bqjc, He.C. 63-
hLlN-6z 183z Seh agSe Bqjc,f.C. 67-fhe-9z 184z Seh
auhl lqj,f.C. 233-pmV-14z 185z cJue Bhm BR, He.C.
133-Lj-3z 186z cJue glc NS, He.C. 127-pmV-8z 187z Seh
eJuh Bm RlJul Me,f.C. 232 -pmV -13z 188z Xx eclje
Me, f.C. 145-jujepwq-7z 189z Seh elm Bqjc Qdl(Lm
Qdl), f.C. 274 -euMm-8z 190z Seh elm Cpmj Qdl,He.C.
158- QNj-6z 191z Seh eSj Ee Bqjc, f,C, 144-jujepwq-6z
192z Seh elm Cpmj, f,C, 16-lwfl-16z 193z Seh elm Cpmj,
f,C, 128-hLlN-17z 194z Seh el Bqjc, He,C, 161-QNj-9z
195z Seh elm qL, He,C, 147-euMm-3z 196z gLl pqh Ee
Bqjc,f,C, 190-YL-10z 197z Seh gSml lqje,He,C, 113-YL-10z
198z Seh gSml lqje Me (glL),f,C, 137-VwNCm-8z 199z Seh
gSmm qL plcl,f,C, 101-Mme-11z 200z Seh hcEje Me, f,C,
131-VwNCm-2z 201z Seh hcm lnc, hl-HV-m,He,C, 42-Lu-4z
202z Xx h,Hj, guSl lqje,f,C, 293-QNj-13z 203z Xx jCeEe
Bqjc,f,C, 42-lSnq-1z 204z Seh jeSl Bqjc,f,C, 169-
jujepwq-31z 205z Xx jgSl lqje, f,C, 20-lwfl-20z 206z Seh
jx jjaS Bqjc plcl, f,C, 103-Mme-13z 207z Seh Nmj
Lhlu, f,C, 74-Lu-4z 208z Seh jx elm Cpmj, f,C, 84-
knql-7z 209z Seh jx jSggl Bm, f,C, 248-Lj 8z 210z Seh
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213z jl pMJua Bm, (cl), f,C, 93-Mme-3z 214z Seh jShl
lqje, He,C, 20-hs-2z 215z Xx jepl Bm,f,C, 97-Mme-7z 216z
Xx jqjc Bhcm jmL, f,C, 227-pmV-8z 217z jl qpe Qdl,
HXiLV, f,C, 257-Lj-17z 218z Seh jqjc CLljm qL, f,C,
26-ceSfl-4z 219z jl Bhm Mul, f,C, 174-YL-4z 220z Seh jqx
CjS Ee fjZL, f,C, 48 lSnq-7z 221z Seh jqjc Bhcl lnc,
He,C, 152-euMm-8z 222z Seh jqjc pLl lqje, f,C, 171-
YL-1z 223z Seh jRmj Ee Me, He,C, 105-YL-2z 224z Seh
jSggl qpe, f,C, 36-hs-4z 225z Adr jSjm qL pjS,
f,C, 68-fhe-10z 226z Seh jSjm qpe pLcl,f,C, 116-
hLlN-5z 227z Seh jje Ee Bqjc, f,C, 99-Mme-9z 228z
Seh jpaL Bqjc Qdl, f,C, 297, Q~Nj-17z 229z Seh jpmq
Ee i, f,C 195-YL-25z 230z Seh jg Hj,H, jae, f,C,
156-jujepwq-18z 231z Seh cmJul qpe HXiLV, He, C, 149-
euMm-5z 232z Seh jg Bm, He,C, 120-pmV-1z 233z Seh
jgSl lqje Me, f,C, 165-jujepwq-27z 234z Seh jx BRc
Bm, f,C 237-pmV-18z 235z Seh jx BRcje, f,C, 87-
knql-10z 236z Seh jx BSSl lqje ju, He,C, 31-lSnq-2z
237z Seh jx BSSm Cpmj Mye, f,C, 50-lSnq-9z 238z Seh
jx Bepl lqje, He,C, 79-jujepwq-4z 239z Seh jaql qpe
amLcl, He,C, 24-fhe-1z 240z Seh jx BhcR Rl, f,C, 166-
jujepwq-28z 241z Seh jx BhcS Sl, f, C, 224-pmV-5z 242z
 243

Seh jx Bhcl lh, f,C, 70 fhe-12z 243z Seh jx BhcR Rl,

f,C, 261-Lj-21z 244z Seh jx Bhcm BEum,He,C, 9 lwfl-9z
245z Seh jx Bm Lp, f,C 167-jujepwq-29z 246z Seh jx
Bhcm hRc pL, f,C 132-VwNCm-3z 247z Seh jx Beul S,
f,C 188-YL-18z 248z Seh jx Bhcm qC, f,C 141-jujepwq-3z
249z Seh jx Bhcm qLj HXx He, C, 78-jujepwq-3z 250z Seh
jx Bhcm qLj plLl, He,C 80-jujepwq-5z 251z Xl jx
BmEe, f.C. 54-lSnq-13z 252z Seh jx CEep Bm, f.C. 77-
Lu-7z 253z Seh jx CpqL, f,C, 287-QVNj-7z 254z Seh
jqjc Cp, He,C, 155-QVNj-3z 255z Seh jx Cje Bm, jH,
f,C , 152-jujepwq-14z 256z Seh jx Hmq hLp plLl, f,C, 7-
lwfl-7z 257z Seh jqjc Cmup, He,C, 123-pmV-4z 258z Seh
jx La Eq, f,C, 147-jujepwq -9z 259z Seh jx Mahl lqje,
f,C, 30-ceSfl-8z 260z Seh jx Mmc Bm ju, He,C, 33-
lSnq-4z 261z Seh jx Mulm Bej, f,C,102-Mme-12z 262z
AdfL jx Mlnc Bmj, He,C, 135-Lj-5z 263z Seh jx NS
lqje, f,C, 11-lwfl-11z 264z Seh jqx Nup Ee plcl, f,C,
49-lSnq-8z 265z Seh jx RL qpe, f,C, 8-lwfl-8z 266z
Seh jx Bnlg qpe HXiLV, f,C, 139-jujepwq-1z 267z Seh
jx Sqlm Cpmj, f,C, 296-QVNj-16z 268z Seh jx Sjm Ee,
f,C, 189-YL-19z 269z Seh jx ahhl lqje plcl, f,C, 82-
knql-5z 270z Seh jx ~ajR Bm, f,C, 231-pmV-12z 271z Seh
jx eSlm Cpmj,f,C, 113-hLlN-2z 272z Seh jqjc elm qL,
He,C, 8-lwfl-8z 273z Xx nq hnlm qL Qdl, f,C, 45-lSnq-4z
274z Seh jqjc huaq, He,C, 32, lSnq-3z 275z Seh jx
jDee juS, f,C, 8 1-knql-4z 276z Seh jx jSql qpe
Qdl, He,C, 1-lwfl-1z 277z Seh jqjc elm qL, f,C, 75-Lu-
5z 278z Seh jx jSjm qL, f,C, 241-Lj-1z 279z Seh jqjc
jqpe, He,C 54 Mme-5z 280z Seh jx jaql Ee, f,C, 114-
hLlN-3z 281z Seh jx jnllg qpe, f,C.-281 QNj-1z 282z
Seh jnllg qpe, f.C. -206-glcfl-6z 283z Xx jx jnllg
qpe, f.C.184-YL-14z 284z Seh jx jpmj Ee, f.C.154-
jujepwq-16z 285z jl jx lgLm ju, f.C.272-euMm-6z
286z Seh jx njp ju Qdl, f.C.223-pmV-4z 287z Seh jx
njpm qL Qdl, f.C. 12-lwfl-12z 288z Seh jx njpm qL ju,
f.C.177-YL-7z 289z AdfL jx njpm c, He.C. 86-jujepwq-
11z 290z Seh jx njpm qpe plLl, HXiLV,f.C. 17-lwfl-17z
291z Seh jx mvgl lqje, He.C. 4-lwfl-4z 292z Seh pqc Bm
Me, f.C. 89-knl-12z 293z Seh jx plSm Cpmj f.C. 182-YL-
12z 294z Seh jx plSm Cpmj, f.C. 279- euMm-13z 295z
LfVe jqjc pSa Bm(Ahx) He,C, 140-Lj-10z 296z Seh jx
qjcje plLl, f.C. 10-lwfl-10z 297z Adr jx jue Mmc,
He.C. 73- VwNCm-3z 298z Seh jqjc Bhm Cpmj, f.C. 83-
knl-6z 299z Seh jx pql Bm jU, He.C. 116-YL-13z 300z
Seh jqjc BSSl lqje, He.C. 7-lwfl-7z 301z Seh jqjc
BSSl lqje ju, He.C. 14-ceSfl-2z 302z Seh jx Baul
lqje amLcl,He.C. 30-lSnq-1z 303z jSl Selm jqjc
Bhcl lh (Ahx), He C. 121-pmV-2z 304z Seh jx Bhcl lL,
f.C. 218-glcfl-18z 305z Seh jqjc Bhcm qc, f.C. 52-
lSnq-11z 306z Seh jqjc Bhcm qmj, f.C. 146-jujepwq-8z
307z BmqS jqjc Bhcp pjc, He.C. 76- jujepwq-1z 308z Seh
jqjc Bhm Mul, He.C. 98-glcfl-5z 309z Seh jx Cepe Bm,
 244

f.C. 134-VwNCm-5z 310z Seh jqjc Mmc, He.C. 157-QNj-5z

311z Xx jqjc JuLm Ee jm, He.C. 18-ceSfl-6z 312z Seh
jqjc Nmj lqje, f.C. 27-ceSfl-5z 313z Seh jx RqEe,
He.C. 41-Lu-3z 314z Seh jx Shc Bm, He. C. 89 -jujepwq-
14z 315z Seh jx eSjm qc, f,C. 159-jujepwq-21z 316z Seh
jqjc gSmm Llj, f,C. 25-ceSfl-3z 317z Seh jqjc
hpjq ju HXx, f,C. 276-euMm-10z 318z Seh jx jaul
lqje ju, f.C. 216-glcfl-16, 319z Seh jx juSEe, f.C.
191-YL-21z 320z Seh jx jpmj Ee jd, f.C. 202 glcfl-2z
321z Seh jqjc lJne Bm, He.C. 47-knl-5z 322z Seh jqjc
qeg, He.C. 151-euMm-7z 323z BmqS lCpEe Bqjc, He.C.
34-lSnq-5z 324z Seh lJnem qL,f.C. 61 fhe-3z 325z Seh
lgEe Bqjc HXx, f.C. 179-YL-9z 326z qS ljSEe Bqjc,
f.C. 251-Lj-11z 327z Seh lSEe Bqjc, f.C. 194-YL-24z
328z Seh lnc jnlg, f.C. 140-jujepwq-2z 329z Seh lS-H
Llj Qdl, f,C. 115-hLlN-4z 330z LVe Xx jx Bhm Lpj,
f.C. 290-QNj-10z 331z Seh luSEe Bqjc, He.C. 2-lwfl-2z
332z Seh mvgl lqje, He.C. 52-Mme-3z 333z Seh mvgl lqje,
f.C. 225-pmV-6z 334z Seh mvgm qC, f.C.243-Lj-3z 335z
Seh nJLa Bm Me, He.C. 72-VCm-5z 336z n nwLl Nhc Qdl,
f.C. 56-lSnq-15z 337z Seh njpl lqje Me HXx, He.C. 75-
VCm -5z 338z nq Bhcl lL, f.C. 9-lwfl-9z 339z nq jqah
Bqjc, He.C. 17-ceSfl-5z 340z nq jx Sgl, He.C. 36-
lSnq-7z 341z nq qcEje, f.C. 85-knl-8z 342z nM Bhcl
lqje, f.C. 92-Mme-2z 343z nM Bm Bqjc, f.C. 91-Mme-1z
344z Xx nM eSjm Cpmj, f.C.130-VCm-1z 345z Seh jqjc
elm Cpmj jeSl, He.C. 60-hMlN-3z 346z nM jqjc jhlL
qpe, He.C. 38-lSnq-9z 347z Seh njRm qL, f.C. 148
jujepwq-10z 348z Seh pJNam Bmj (pNl), f.C. 129-hMlN-18z
349z plcl BjSc qpe, f.C. 53-lSnq-12z 350z plcl jnllg
qpe, f.C. 31-ceSfl-9z 351z Seh pqcEe Hcl, f.C. 278-
euMm-12z 352z Xx pca Bm pLcl, f.C. 197-YL-27z 353z
Seh BRja Bm My, f.C. 214-glcfl-14z 354z Seh Bhcm BSS
Qdl, f.C. 240-pmV-21z 355z Seh Bjl qpe, f.C. 254-Lj-
14z 356z Seh jqjc lpja Bm Me, f.C. 105- fVuMm-1z 357z
Seh jx Bhcm jqCje, f.C. 277-euMm-11z 358z Seh jx
Bje, f.C. 2-lwfl-2z 359z Seh jx Sl lqje, f.C. 55-lSnq-
14z 360z Seh jqjc gSmm qL amLcl, f.C. 120-hMlN-9z
361z Seh njpe j, He,C. 97-glcfl-4z 362z Xx nq
jSqlEe Bqjc,f.C. 125-hMlN-14z 363z n pan hc qmcl,
f.C. 212-glcfl-12z 364z Seh pcLa qpe, He.C. 3-lwfl-3z
365z Seh pjpe iU, f.C. 193-YL-23z 366z Seh pmqEe
CEpg HXx, He.C. 55-Mme-6z 367z AdfL pmqEe LCpl,
He.C. 59- hMlN-2z 368z Xx pucl lqje Bqjc, f.C. 33-hl-1z
369z Seh plSm Cpmj Hm-Hm.h, f.C. 24-ceSfl-2z 370z Seh
plSm CRmj Qdl, f.C. 294-QNj-14z 371z Seh plSm Cpmj
fVJul, f.C. 265- Lj-25z 372z Seh plSm qL HXx, He.C.
134-Lj-4z 373z n phd Ljl j, He.C. 46-knl-4z 374z Seh
pmae Bqjc, f.C. 291-QNj-11z 375z BmqS pLcl Bm, f.C.
260-Lj-20z 376z nM jnllg qpe, f.C. 211-glcfl-11z
377z Seh pah Bm Me, f.C. 136-VCm-7z 378z puc Ljlm
Cpmj jqjc pmqEe, He.C. 95-glcfl-2z 379z puc Ljm hMa,
 245

He.C. 57-Mme-8z 380z puc jx Bhm qpj, f.C. 109-fVuMm-5z

381z puc jqjc gSmm qL, He.C. 156-QNj-4z 382z puc plSm
Cpmj HXx, f.C. 242-Lj-2z 383z puc qucl Bm, f.C. 60-
fhe-2z 384z puc qucl qpe, f.C. 208-glcfl-8z 385z Seh
qhhl lqje, f.C. 228-pmV-9z 386z n qleb hCe, f.C. 123-
hMlN-12z 387z Seh qaj Bm amLcl, He.C. 74-VCm-4z
388z Seh qaj Bm ju, f.C. 149-jujepwq-11z 389z Seh qcR
Ee Qdl, f.C. 162-jujepwq-24z 390z qgS qhhl lqje, He,C.
142-Lj-12z 391z AdfL qjcl lqje, f.C. 181-YL-11z 392z
Seh qpe Bm plLl, f.C. 37-hs-5z 393z Seh qcuaEm
Cpmj, f.C. 185-YL-25z 394z Xx ran Qc jm, f.C.126-
hMlN-15z 395z Seh jx BSqlm Cpmj, f.C. 3-lwfl-3z 396z
Seh pclEe Bqjc, He.C. 87-jujepwq-12z 397z Seh jqjc
lS ju, f.C. 266-Lj-26z 398z Seh jqjc Chqj, He.C. 82-
jujepwq-7z 399z jJme Bhcl lnc aLhNn, He.C. 25-fhe-2z

HMe Bjl cMh phLml phn hm Sal fa hh nM jShl lqje La

a pju hwmcnL HLV pcl npea ab pwhde Efql cuRez hPml je dLl
Qae J deal fl hS he cuRme qSl hRll n hPm Sal fa hh nM
jShl lqjez ayl clcn ihe, ApdlZ lS~eaL f, Aee pwNWeL cra J Apj
pqp HC flde SaL BapQeau c Ll HL IL, HL Aifu jma LlRmz
IaqpL 1952 pml lio Bcmel jd cu k dLll Ejo OVRm, a fl
ae 1954 pml kV, 1958 pm BCuh Mel pjlL npehld Bcme, 1962
pml qjcl lqje nr Ljne Bcme, 1966 pml Ru cg (fl k quRm R-Seal
11 cg) Hhw 1969 pml NZAiepq hi Bcme qu pfpla LlRme dea
pwNj Ahdz
Sal fa hh nM jShl lqjel eaa BJuj mN deal fl Aa a J
Aa cral pb pwhde lQe LlRme kl c fbha hlmz dea f qJul f
pjul jd pwhde lQe hnoih fnwpeu HC Se k, Bjcl HC Am lS~eaL
Iaq Rm he pwhde kace ph lu rja dl lMz fLe dea mil 9 (eu)
hvpl fl pwhde lQe Lla prj quRmz HjeL ilaJ pwhde lQe pj Lla 3 (ae)
hvpl pju euRmz
HMe hnoih EM k, 72 Hl pwhde fZue Sal fa hh nM jShl
lqje Hl eaa Mps pwhde fZue LjVl pjea pcphc fbj 17C Hfm ~hWL
jma qu LjVl Lkfa edlZ Ll Hhw pwhc f, hal J Vminel jdj pwhde
pfL fh J fljn fcel Se SepdlZL BjZ Seuz Hph fh fWel phno
alM Rm 8C j, 1972z H BjZl ps qph LjV 98 V plLmf mi Llz 17 C
Hfm bL 29 n Hfm fk Bhl HLcj LjVl ~hWL Aea qu Hhw LuLcel Se
jmahl fl 10C j bL 25 j fk Bhl HLcj LjVl ~hWL Qma bLz Hph
 246

~hWL fha pwhdel faV Mps hde eu fMefMih BmQe qu Hhw hi

cnl pwhde fkmQe Ll quz Mps pwhde fZue LjV jV 29 V ~hWL jma quz
25 j alM Aea ~hWL Mps pwhde fZue LjV p NqZ Ll k, pwhdel Mps
hdem pfL H fk LjVa Nqa pl ia pwhdel HLV fe Mps fZue
Ll qhz 3l Se alM Aea LjVl ~hWL I Mps fn Ll qm LjV MpsVl
cgJul BmQe Ll Hhw hn LR pwndepq 10C Se, 72 alM MpsV Aejce mi
Llz LjV 10C BN bL 1m pVl fk Hhw 9C pVl bL 3l Ahl fk ~hWL
jma qu Mps pwhde fkmQe Ll Hhw Qsih NqZ Llz Mps pwhde fZue
LjVl lfV J al pb pwhdel MpsV pwhde hm qph NZfloc fn Lll fl
ilf pcp pwhde hm NZfloc Efe Llez Mps pwhdel 153V AeRcl jd
82V AeRc Le pwnde Rm e, 12V AeRcl Jfl Bea pwnde BmQel fl
NZfloc eLQ qu, 6V AeRcl Jfl fc pwnde hdhqia hm fLl OoZ Lle
Hhw 3V AeRcl Jfl Bea pwnde Efa qu ez Le Le AeRc HLdL
pwnde Nqa quz pwhdel fbj J au agpm 1V Ll jV 2V pwnde, aau
agpm 2V pwnde, Qab agpm 16V pwnde Hhw pwhdel fheu 1V pwndepq
phjV 84V pwnde Nqa quz Nqa pwndeml jd HLj hldcmu pcpl 1V
pwnde Aeiz Aaxfl 4W eil 1972 jahL 18 LaL 1379 hwmcnl pwhdeL
Caqpl HLV lafZ cez HC ce NZfloc pwhde lQe J hdh Ll pjhaih NqZ
Llez Aaxfl fLl 14C Xpl 1972 alM fk NZflocl ~hWL jmah Llez 12C
Ahl bL 15q~ Xpl, 1972 fk ha au Adhne NZfloc pwhde fZuel
cua pf Llz fLafr 4W eil alMC NZfloc pwhde Nqa quz I cel fl
14C Xpl fk ~hWL jmah qu kuz 14 J 15C Xpl alM Aea ~hWL cCVa
pcphc qmMa pwhde rl Llez fll ce Abv 1972 pml 16C Xpl alM
NZfSa hwmcnl pwhde fhae quz
Efk BmQeu Cq LyQl ja R k, Sal fa hh nM jShl lqje Hl
eaa Mps pwhde fZue LjVl h pcphc Hhw NZflocl 403 Se pcp AL
flnj Ll pLm fr ab pwhc f , hal J Vminel jdj pwhde pfL fh J
fljn fcel Se SepdlZL BjZ Seu, acl jaja eu NZfloc hla
BmQe Ll Hhw HLj hldcmu pcpl 1V pwnde Ai Ll Bjcl HC fh
pwhde fZue Llez hhl eaa BJujmN dea mil ps 3 jpl jd
NZflocl ~hWL XLe Hhw pwhde lQe LjV NWe Llez Aaxfl NZfloc l 4W
 247

eil 1972 alM pwhde Nqa qu Hhw 1972 pml 16 Xpl alM pwhde hmhv quz
Abv dea mil 1(HL) hRll jd pwhde lQe, NqZ J fhae quz
kcJ Ha asas pwhde lQe Lll Le aNc Le fr bLC Rm ez Sal
fa hh nM jShl lqje kc pwhde lQe Lla ilal ja 3 (ae) hRl Hhw
fLel ja 9 (eu) hRl pju eae pLm HVL ihL hm dl eaz 1970-71 pml
ehQe kqa BJujmN ehQa quRm, pqa BCeax 1974-75 pm fk cn
flQme Lla BJuj mNl Le Aphd Rm e z 1972 pm pwhde lQe e Ll
hh nM jShl lqje pV 1975 pml fl l Lla flaez L Bjl cMmj, ae
dea mil 1(HL) hRll jd HC pwhde fZue Llme Hhw 1973 pm pdle
ehQeJ cu cmez
kqa phLml phn hm Sal fa hh nM jShl lqje NZal Aeaj
jeof Rme, aCa ae eSl Hhw cml rjal Qu cnl SeNZl rjaueL hnp
Llaez ae SeNZl npe fal Se pjN She EvpN LlRmez pC SeNZl npe
fal mr ae HC aaj pju ab 1 (HL) hRll jd cnl npeaL cmm ab
pwhdeL cmm fZue LlRme kl eSl hn auV eCz
hh Rme SeNZl Bn BLMl faLz ae Rme NZal dlL, hqL Hhw
lrLz ae Rme NZal jepfz pLlZC ae cn npea ab pwhde aaj
pju fZue Lle Hhw 1973 pml jQ pdlZ ehQe cu SeNZl iVl AdLl fa
Ll SeNZL al npe rja am cuRmez HV dj ph quRm Sal fa hh
nM jShl lqjel ja HLSe jqe eal eaal LlZz
NZfloc BJuj mNC Rm HLj fVz hld cm hma HLSe pcp Rme
pla pez NZfloc pwhde lQel fl HC NZflocLC pwpc lfla Lla flaez
alfl pC pwpcl Bu Lace qh edlZ Lla flae Hhw Hph hfl acl phdja
hde Ll ea flaez L Sal fa hhl eaa BJuj mN Hph LRC Ll e hlw
Ahm ehQe cu pwpcu NZaL ceuu Bcn eSl fe Llez Sal fa hh nM
jShl lqjel eaa Ahno hwmcnl SeNZ HLV de cn fuR, aje ayl LR
bLC jeh LmZl Se ab Hcnl pLm jeol Se EfkN HLV kNfkN pwhde
Bjl fmjz Sal fal ILL fQ e bLm qua Bjcl pwhde fa Ljfr
BlJ 10(cn) hRl pju mNaz
hh Hhw hwmcn HL Hhw Aiz HC cnV hhl hwmcnz aCa jqe
jkl pju pjN hml jM jM nNe Rm HL ea HL cn hh hwmcn, Su
hwm, Su hh z HCph nNe Bjcl Sau nNez HC nNeL luih pwlrZ
 248

Lla qhz kl HC nNeL dlZ Lle e al hwmcnl dea hldz Bl kl

dea hld al AhnC hwmcnl pwhdeL Ll Lle ez
hh hmL deal f cMuRez aCa hhl ej H cnl SeNZ A
qa k LlRmz hhl LlZC H cnl SeNZ de cn hwmcn fuRz hhl Sj
e qm qua BNj HLna hvplJ hwmcn dea mi Lla fla e, fLel HLV
AlS h fcn qu Bjcl bLa qaz
hwmcn kc de e qa Bjl Sm fnpL Lwh fmn pfl qa flaj e, pQh
qa flaj ez pehqel fde Lwh ehqel fde Lwh hje hqel fde qa
flaj ez hQlfa Lwh fde hQlfa qa flaj ez j Lwh fdej qa flaj
ez lfa qa flaj ez LlZ avLme fLel Lcu plLl hmcl pb hja
pmi BQlZ Llaz al hmcl ehQa SefaedclLC rja cu e, hs hs fcl a
fnC Bp ez
Sal fa hh nM jShl lqje kc hyQ bLae, kc OaLl acl hNa
r bpl Se Sal faL enwpih qa e Lla, aqm Bjl pfl h jmunul
bLJ Ea l Ea qajzpalw Sal fal qaLlcl Hhw acl pLm pqkNcl
hm Sa Qlce OZil Sau n lf plZ Llhz
hwmcn pl Caqp Se hwmcnl faV eNlLl jmL AdLlz pC mr
hwmcnl faV m, LmS Hhw hnhcmu hhl She J Bcn Hhw hwmcn pl
Caqp Ahn fW qa qhz H hfl nr jZmu fuSeu Hhw kbkb hh Aa a
NqZ Llhez Bj je Ll, hwmcnl faV hnhcmu Sal fa hhl She J
Bcn Hhw hwmcn ej HLV hiN Mm HMe pjul chz aqm Bjcl ihov fSe
Sal fa hhl She, Lj Hhw Bcn pfL e mi Ll Sal fal fl pel
hwm Nsa eSclL fa Lla flhz
hh pjN hm Sal Bcnz ae hnl Aeaj n eaz al She,Lj Hhw
Bcn hmpq hnl Aee Sa J ll Se HLV Aee Bcnz
palw Sal fal She, Lj J Bcn ke Sehe e, ae Lih hThe Sal
fa pwhdel fheu L hma QuRez Sal fal She Lj Bcn e Sem HC
pwhde Hhw Hl fheL LMeC hT ph qh ez
Bjcl pwhdeL hM hnoZ Lla qm Lwh pwhdel k Le pwnde Lla
qm a AhnC Lla qh pwhdel fhel BmLz pwhdel fheL hTa qm
fheu EMa Sau jl Se IaqpL pwNj Hhw k pLm jqe Bcn Bjcl
hl SeNZL Sau j pwNj BaeuN J hl nqcNZL fZvpN Lla E Ll
 249

quRm HC Lbml jj hTa qhz Sau jl Se IaqpL pwNj hTa qm 1952

pml l io Bcme, 1954 pml kV, 1958 pml BCuh Mel pjlL
npehld Bcme, 1962 pml qjcl lqje nr Ljne Bcme, 1966 pml cu cg
(fl k quRm R-Seal 11 cg) Hhw 1969 pml NZAieL hTa qhz k pLm
jqe Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl nqccNL fZvpN
Lla E LlRm a hTa qm Bjcl Sea qh Sal fa hh nM jShl lqje
Hl Bcnz
Efll pwhde Hhw pwhde fZuel Caqp hlaih BmQe Ll qm H Se
k, ke Efk pwhde fZuel Caqp, Sau jl Se IaqpL pwNj, k pLm jqe
Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl nqcNZL fZvpN Lla
E LlRm p pLm Bcnpjq, 1971 pml 7C jQ alM YLl lpLp juce Sal
fa hh nM jShl lqjel cJu IaqpL ioZ, Sal fa hh nM jShl lqje
LaL fc hwmcnl deal OoZ, 1971 pml 10C Hfm alM jSheNl plLll
SlLa deal OoZf, lfa hh nM jShl lqje LaL Au pwhde Bcn,
1972, NZfloc Bcn, 1972, Sal fal Lj J Bcn Hhw phfl deal QaeL
dlZ Llhe e-al fr LeihC HC pwhdeL pWLih Aedhe Ll ph qh ez
aje al fr HC pwhdel pWL hM hnoZ Ll Aph; pC ~hW Rs eLl jaz
palw, Efll BmQe qa HV edu hm ku k, pwhdel fhe jahL
Sau jl Se IaqpL pwNj Hhw k pLm jqe BcnL i Ll Bjcl SeNZ
Sau j pwNj BaeuN J fZ EvpN LlRe p pLm Bcnpjq Hhw deal jm
QaeL dlZ Ll pwhdeL fcdLl hNZ HC pwhdel hM hnoZ Llhe Hhw
pwhde pwnde pq pLm BCe fZue p BmLC Lla qhz LeihC Hl Aeb Ll
Qmh ez
Bjcl cn hwmcn fbhl HLj cn kMe LR pwML h, N Hhw cm
HC cnl deal hlda LlRz pwhdeL pWLih Sea qm, hTa qm Hhw
deal QaeL dlZ Lla qm pC ph h N Hhw cm pfLJ Bjcl Sea qhz
pC ph h N Hhw cm pfL hQlfa Hj, Ceual lqj al IaqpL lu [jJme
~~puc lSEm qL hej Sjua Cpmj Hhw Aee ej flQa (Lawyers and Jurist
Volumn-3 (2014) page-55)] hme k,
L Caqp, hha Hhw H cnl pdlZ SeNZl Aia L
hm? ehQe Ljnel pflL qmgejl pwk 8 (f 63-64)
qa fauje k, avLme fh fLe Sjua Cpmj'l Bjl
Seh Nmj Bkj 6C Hfm 1971 pm "M' Aml pjlL
fnpL mx Selm V Mel pb HLV faed cm p eu
 250

prv Lle z I pral jdj Seh Nmj Bkj cMmcl fL-

pjlL hqe LaL Nqa hhl fa fZ pjbe fe Hhw phL
pqkNal Bnp fce Llez
I prvLll LuLce flC 9C Hfm 1971 pm n LjV
NWe Ll qu Hhw Seh Nmj Bkj I LjVl Aeaj pcp (3 ew)
ehQa qez I n LjV 22 Hfm HL hhaa pLm cnfjL
fh-fLel fa lhld mLcl qwpaL Hhw enLajmL
LkLmf faldl Hhw Ecj J Evpql p phlLjih pn
hqeL pqk Lll Bqhe SeuRmz (ceL fLe, 23
Hfm 1971; px pwhcf jkl hldax hwmcn fp
CeVVEV qa fLna, f-250)
jk QmLme pju Seh Nmj Bkj hi pju hi pi-
pjhn J pwhcL pjme ha-hhal jdj hwmcnl
dea J jkl hlda Ll fLe cMmcl hqel pLm
hhl J e vi R b K jeha hld LjLL pjbe Seu Bpez
17 pVl, 1971 pm YLl jqjcfl gSLm HXLne
pVl fnrZla lSLl nhl flcneLm Seh Nmj Bkj
ayl hau fLel qgSal Se lSLl, jSqc J fmn
hqea ia qu pn qul Se Evpq fce Lle Hhw Bl
hme k, "lSLl hqe Le cml eu, al fLe hnp
pLm cml pfcz' (ceL pwNj, 18 pVl, 1971; px
pwhcf jkl hldax hwmcn fp CeVVEV qa
fLna, f-221)
[[[[[[[[[

hwmcn jk QmLm fh fLe NWa Ahd plLl ek

Sjual cC j Seh Bp Bm Me J Seh H. L. Hj.
CEpg (ae lSLl hqel faaJ Rme)-Hl pde Aee
Seh Nmj Bkj hmex
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LlzfLe plhn jpmjl Se Cpmjl Olz LSC fLe
kc e bL aqm Sjual Ljl ceuC hyQ bLl Le
pbLa je Ll ez ae BlJ hme, Sjual Ljl She
hf Ll fLel Aa J AMa hSu lMl Se LS LlRz''
pdel Shh Sjua ea Bp Bm Me haje pwLVSeL
flaL Qlj ANflr BMua Ll hme k, ""faV
Llhml flC Cpmj Sh qu JWz Bjcl pje BlJ
Llhm luRz al Se fa bLa qhz (ceL pwNj 26 n
pVl, 1971; px pwhcf jkl hldax hwmcn fp
CeVVEV LaL fLna, fx 221-222)
23 n eil, 1971-H mql hje hcl pwhcLcl pb
Bmf Lm Seh Nmj Bkj fh fLe n lrl En
pLm cnfjL, n LjVl pcp Hhw lSLlcl Eajel J
uwu A pa Lll ch Seez (ceL pwNj, 24 eil,
1971; p pwhcf jkl hldax hwmcn fp
CeVVEV LaL fLna, fx 233)
25 J 26 n eil, 1971 mql Aea cC ce hf Sjual
Lkehq LjVl hWLl HL f h pn hqeL pjbe cJul
Se fh fLel SeNZl fa Bqhe See quz (ceL pwNj
26 n eil, 1971; px pwhcf jkl hldax
hwmcn fp CeVVEV LaL fLna, fx 236)
 251

27 n eil, 1971-H f BCeSh pjal HL piu Seh

Nmj Bkj hmex
""nl qjm jLhmu BalrjmL ijL eu hlw nl cn
fV Bje QmeC qR phj falrz Le Sa kLm
fand jmL hh RsC VL bLa flR Hje Le eSl
Caqp MyS fJu kh ez'' (ceL pwNj 28n eil, 1971;
px pwhcf jkl hldax hwmcn fp CeVVEV LaL

fLna, fx 238)
Seh Nmj Bkj 21n Se, 1971 pm fQj fLe cmu
Ljcl HL piu fLe pn hqel fa Nil n Seu
hme; ""pehqel qrf Rs cnL hR qa lr Lll Afl
Le hLf LRC Rm ez'' (ceL fLe 22n Se, 1971; px
pwhcf jkl hldax hwmcn fp CeVVEV LaL
fLna, fx 203)
4 J 5 Ahl fcnL Sjual jSmp nll hWL Nqa HL
fh EM Ll qu k, abLba "hwmcn' Bcmel Rchle
"j gSl' ej ilau pehqe fLe HmLu jVll
NmhoZ, pn Aefhn J hje qjm LlRz (ceL CgL 7
Ahl, 1971, px pwhcf jkl hldax hwmcn fp
CeVVEV LaL fLna, fx 396)
Seh Bkj 1m pVl, 1971-H LlQ-a cmu Lkmu HL
pwhcL pjme ioZ ce Lm fLe lr J jeol Shel
elfl Se fLe pehqel fa Nil n Seu hme k,
""Le im jpmjeC ab Lba "hwmcn Bcmel pjbL qa
fl ez fh-fLe hRahccl ejm Lll Se HLje J
cnfjL mLl HL LS Ll kRez lSLll MhC im
LS LlRez'' (ceL fLe, 2 pVl, 1971, p hwmcnl
dea k cmm fx pj M, f-686)
2 ew fafr 1971 pm jqe jk QmLme pju Sjua
Cpmj'l RV fLe Cpmj R pwOl pifa Rme Hhw
OaL Bmhcl hqe NWe eaa fce Llez hcl chp Efmr
ceL pwNj, 14C eil 1971-H 2 ew fahcl mMa HLV
eh fLn Llz I eh ae mMRmex
""ciNhnax fLel LR jegL acl fr (qc hqe)
Ahme Ll ial bL Bjcl chm Lll osk m quRz
acl pLm osk heQm LlC-fLel Bcn J Aa lr
Lla qhz qc hqeL fkc J ilaL fcea LlC fLel
Aa lrl pwLf NqZ Lla qhz ...........................z Bjcl
flj piN hma qhz fL hqel pquau H cnl Cpmj fu
ale R pjS hcl kl m aL pje lM Bmhcl hqe NWe
LlRz Bjcl hnp pce Bl Mh hnce cl eu kce
Bmhcll ale khLl Bjcl pn hqel fn cysu qc
hqeL (jkcl fa Ca fhL ) fkc Ll qc el
Aa Maj Ll Cpmjl hSu faL Ee Llhz Bl pceC
fle qh hn jpmjecl All AfZ BLMz'' (px pwhcf
jkl hldax hwmcn fp CeVVEV LaL fLna, fx
587-588)
14 pVl, 1971 "Bm-hcl' nlej fLna HL fahce
Sjua Cpmjl jMf "ceL pwNj' mM: "Bm-hcl HLV
ej! HLV hpu! Bm-hcl HLV fa! kMe abLba
jhqe Bm-hcl pMeCz kMeC c aLl Bm-hcl
 252

pMeCz ilau Ql Lwh ca

Llcl LR Bm-hcl prv
BSlCmz' (px jaEl lqje eSj-Bmhcl bL j, Bm
BLhl Vh, fx 39)
hMa jLe pwhcL lhV fCe ayl ps SNe "jpLl
ejL N' EM LlRe k, ""hSh qal cO amL fa
Ll
quRm Bmhcl ej djj cmL cuz Hl hnhcmul nrL
J Rcl Nfe qal Q Llz d Nfe QC eu Bmhcl
HpLm qaL OVuRm mLQrl Almz'' (jpLl, lhV
fCe, fx 35, px jaEl lqje eSj-Bmhcl bL j, Bm
BLhl Vh, fx 40)

Sjua Cpmj d 1971-H dea pwNj J jk hlda

LlC r que deal fl de hwmcnL hi jpmj l
ka La fce e Ll p hou hnhf fQlZ Ahqa
lMRmz Seh Nmj Bkjl eNlLa pw jjmu plLl
LaL cMmLa qmgeju pfih EM Ll quRm k, Seh
Nmj Bkj 1972 pm "fh fLe fell LjV' pwNWa Ll
fLe, me Hhw hi CpmjL cn hwmcn hld hfL
fQlZ Qmez HLC hRl luc Cpmj kh pjme fh fLe
fell j pwNjl Bqhe See Hhw 1973 pm heNSa
J. BC. p. fll jcl pjme hwmcnL La e cul
Aeld Seez hwmcnL La e cul Aeld eu pc
hcnl pb ae HLdLhl prv Llez [X. Hm. Bl. (HX)
fx192, AeRc 58]
'71 pm jk QmLme pju Hhw hwmcn l fal fl
Sjua Cpmj Hhw Hl avLme Bjl Seh Nmj Bkjl
hwmcn hld avfla pfL hnc HLV fahce fLna qu
HL pjul hm fQla pqL fL hQ'u (15 ho 80 pwM
13 jQ 87/28 ge '93)z
AdfL Seh Bepje-Hl H pw HLV abhm mM
fLna qu 14C jQ 2008-H ceL fbjBm fLuz (nhll
sf; pqa pjuL, f-4)
Sjua Cpmj fLel avLme ilf Bjl ju agum
Bqjc ""hwmcnL La fce Lll Ab L''-HC fnl Shh
ae hmRmex
""hwmcnL La fce Lll Ab qm Sal
hnpOaL hL hd npL qph Ll Ll eu Bl
fh fLel pC mM mM cn fjL jeol aN-
aarl fa hf Ll kl HMeJ fLel pjbe HC
hnpOaLl hl Aac fqll ja cysu BRz
hwmcnL La fce Llm Lnll hou Bjcl
Ahe chm qu khz Bl BjclL BSc LnlJ
ilal qa am ca qhz hwmcnL La fce
Lll fl Sau pf hVe J hcn pqkl houJ fn
cM ch Bl Hph GZ fLeL flnd Lla qhz
nM jSh nf Hhw Lcu aqhml r Hhw EuejmL
fLfpjq raflZ ch Llhe, ila J hwmcn
fLel LR bL kl raflZ fhl BCNa Ahe
mi Llh Lee hwmcnL La fcel pb pb
Bjcl pe hqe Bfe Bfe qecl h cMmcl
 253

ph qhz Hih Hcnl Ahn AwnJ dwp qu khz''

[Sjua Cpmj fLel jMf "pqL Hnu'
fL (mql, 4 W Se, 1972); ehQe Ljnel pflL
qmgej, f-107]
fLVl I pwMl 11aj fu de phij hwmcnL
Sjua Cpmj Lih jmue Ll p LbJ am dl quRz
HMe dj elfr de hwmcnL jlac J Lgl fk BM
cu quz Sjua Cpmjl I fLu mM quRmx
""hwmcnl houV crZ BL J El Bulml ja
cnl HLV Awnl pdlZ hq qm houV i Rmz
L Hl fRe LkLl k ph EfLlZ hZe Ll qR pV
f hm cR, HV Lhm HLV lSeaL hq eu hlw
Bcn J cneNa HLV Kaz hwmcn plLl Lhm
eSclL dj elfr qph OoZ Lle hlw a
Cpmj Sauahc flaN Ll cnu Sauahc
Ahme LlRz dju cLe bL HV Clacc (Abv
djaN) eu a L? HLSe jpmje OoZ LlR, p
Mcl fr bL AhaZ BCeL al pjSL Shel Se
NqZ Ll e hlw p SNaL BCe Qu-HVL Lgl Rs
Bl L hm ku?'' (ehQe Ljnel pflL qmgej,
f-107)

Efl OVe J abpjq fje Ll k, dea flha pjuJ

Sjual hwmcn hld ct Ahe mLe Le hou Rm ez

HMe EM Ll pa qh k, Bjcl dea pwNj Hhw "71-

Hl jqe jk' H cnl phll jeol LR Nil HL BhNl
houz HLSe jeo qph HLSe hQlLlJ BhN BR J bLh
HVC ihLz L, HLSe hQlL BhN asa qu dj
eaLal jec hQl Lla fl e h LEL nJ fce Lla
fl ez hQll r BCe J pwhdeC qm hQlLl LR jM
houz Lee, HLSe hQlL pwhde J BCe Aeku hQl Lk
flQme Lla nfbhz

haje hwmcn Sjua Cpmj ejL lSeaL cmVl

"Sepp' qm Sjua-C-Cpmj qc, k 1941 pm faa
Lle puc Bhm Bm jJcc, ke jJme jJcc qph
pflQaz

HLcL hl hm Sau j pwNj BaeuN J fZ EvpN LlRme AflcL

fLe qecl hqel pb HL kN qu Bjcl cnl Sjua Cpmj hwmcn cmV
Hhw al pjbLl deal hlda LlRz
fbhl Hje Le cn MyS fJu kh e kMe p cnl LR pwML SeN
acl deal hlda LlRz HLj Bjcl HC hwmcn hajz Efll luV
fkmQe Llm HV LQyl ja fll k, jkl pju Bjcl cnl LR pwML h,
SeN Hhw cm, kl eaa Rm Sjua Cpmj hwmcn, Bjcl cnl deal
hlda Ll Hhw fLel ~pehqeL pqkNa LlRz Hl Qu ciN cn Bl BR
 254

Le-Bj Se ez HMe dl kL I deahld SeNl jd bL Le HLSeL pfj

LV hQlfa euN Ll qmz HMe aL kc pwhdel hM fce Lll Se hm qu
aqm ae pwhdeL Le BL hM hnoZ Llhe? AhnC ae al deahld
je jepLal BLC Bjcl HC jqe fh pwhdeL hM Llhez hwmcnl
dea hld je jepLa pf HC dlZl hQlL Bjl Aaa cMRz
deal Ql cnLlJ AdLLm Aahqa qJul flJ Le hwmcnl SeNZ
dea hld Q Qael hQlL cMh? 30 mr jkl ll Efl csu
deahld Sjua hQlfal Le hqm bLh? Le lSLl hQlfa hqm bLh?
Le Bmhcl hQlfa hqm bLh? Le deahld Hhw deal hfr AheLl
hQlfa qph hqm bLh ? Le n mr hm qaLl J cC mr j hel pj
qlZLl Sjua hQlfal hqm bLh? Bjcl hl jkl L HC Se k LlRm?
hl hm l cu cn de LlR, deahldclL hQlfa qph cMl Se euz
hwmcnl SeNZL dehc ayl Hhl BjclL deahld ab Sjuaj
ab lSLlj Sau pwpc Efql cuRez pC jqe Sau pwpcl eLV SeNZl QJu
hQl hiN bL deahld, lSLl, Bmhcl Hhw Sjua Cpmj ejL lS~eaL
cmVl Bcn hnp (kl Bjcl dea Hhw pwhdeL hnp Ll e) hQlfacl
AfplZ Ll hQl hiN ab SaL LmwLj Llhez a e qm Iph hQlfal Bjcl
fh pwhdeL acl deahld jepLau CRja im hM Ll Sjua Cpmj
ejL cmVl pwhde flZa Llhez
pC fra Bj je Ll, Bjcl pwhdeL Hhw Hl fheL flfZih hTa
prj e qm Hhw Bjcl fheu EMa Sau jl Se Bjcl k IaqpL pwNj p
pfL fZ B Hhw e e bLm Hhw k pLm jqe Bcn Bjcl hl SeNZL Sau
j pwNj BaeuN J hl nqcNZL fZvpN Lla E LlRm pC pLm jqe Bcn
pjqL e Sem J Al dlZ e Llm Hhw dea pwNj, jk Hhw deal Qae
dlZ e Llm ihoa Le hL ke hQlfa qph euN fce Ll e quz
Bjcl pwhdel fheu EMa Sau jl Se Bjcl k IaqpL pwNj
Hhw k pLm jqe Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl
nqcNZL fZvpN Lla E LlRm pC pLm jqe BcnpjqL ke Al dlZ Lla
Hhw qcuj Lla flhe aeC Lhm H pwhdeL pWLih hM Lla prj qhez
pwhde, pwhdel fhe, fheu EMa Sau jl Se Bjcl k IaqpL
pwNj Hhw k pLm jqe Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl
nqcNZL fZvpN Lla E LlRm pC pLm jqe BcnpjqL, jqe jk Hhw
 255

deal QaeL dlZ Lla fle e hmC Sal fa hh J al flhll pcpcl

qaLlcl pb pqkN qu Sal fal ll Efl csu el Hhw emi
h
pwhdeL cma jba Ll hQlfa Bh pCc Qdl (ke pwhdeL lr Lll nfb NqZ
LlRme) 1975 pml 15C BN Sal fal qaLlcl cpl qu p 6.00 Vu
Ooa, A~hd, hBCe, ApwhdeL Hhw cMmcl lfa McLl jL Bqjc LaL
A~hd, hBCe Hhw ApwhdeLih fdejl fc cMm Llez Aaflx 8C eil 1975
alM fe fde hQlfa Bh pca jqjc puj Sal fa hh J al flhll
pcpcl qaLlcl pb pqkN qu Sal fal ll Efl csu el Hhw emi
h
ih pwhdeL cma jba Ll (ke pwhdeL lr Lll nfb NqZ LlRme) A~hdih
lfal fc cMm LlRme Hhw ps pa LV SeNZl ehQa Sau pwpcL HL
Lmjl MyQu ham Lll da cMuRez
fde hQlfapq pfj LVl Bfm/qCLV hiNl hQlLNZ HC jj nfb NqZ

Lle k, Bj hwmcnl pwhde J BCel lrZ, pjbe J elfhde Llhz

1975 pml 15 C BN Sal fa hhL flhl qal Hhw 3 eil LlNl
BVL 4 Sau eaL qal flhaa cn kMe pwhdeL pwLV efaa qm aMe Bjcl
avLme pfjLV Hhw Hl hQlLl pwhde lr Hhw Hl elf hde Lla hb quz
BlJ pqSih hmm pC pjuLl pfjLV A~hd rja cMmcl Hl hl fuSeu hh
ea hb quz
al QuJ iuhq, kMe Bjl cM avLme fde hQlfa Bh pca jqjc
puj A~hdih lfal fc cMm Lle Hhw A~hdih 8C eil 1975 alM SeNZ
LaL ehQa Sau pwpc i cez kMe hQlfaNZ pwhde J BCel lrZ, pjbe J
elfhde Llhe hm nfb fW Lle, pMe Bjl cMmj Bjcl avLme fde
hQlfa Bh pca jqjc puj pwhde J BCe Hl Qlj mwOe Ll ApwhdeLih
lfal fc cMm Llez HV lqaz SeNZ HCph lcq hcl LMeJ rj Llh
ez HC ph lq hcl Hhw acl Aaa SOe LjLL hm Sa LMeJ rj Llh
ez
hQlfa Bh pca jqjc puj hQlLl fh LmjL hueV (lCgml jbu
HLfLl dlm Rl) heu Bjcl pwhdeL MyQu MyQu l LlRe Hhw ps pa
LV jeol Selu L ab ps pa LV jeol ehQa Sau pwpcL al Lmjl
hueV LV l LlRez al Qu (puj) hs lq Bl L qa fl?
 256

hQlfa Bh pca jqjc puj HLSe Selu ReaCLlz HLSe jeoL

Al jM lM al VL fup Hhw jmhe Sep Reu eu kc ReaC qu ah ps pa
LV jeol ehQa Sau pwpcL Reu eu h ReaCLl eua L?
hQlfa Bh pCc Qdl Hhw fde hQlfa Bh pca jqjc puj Sal fa
hh nM jShl lqje J al flhll qaLl Hhw Sau 4(Ql) eal qaLlcl
cplz hQlfa Bh pCc Q~dl SeNZl ehQa lfa qau pjbe cu qaLlcl
cpl qu qal ceC fdejl fc cMm Llez fbha Bl HLV cnJ eC k cnl
hQlfa H dlZl SOe Lj LlRz hQl hiN aMe H ApwhdeL avfsal hl
eeaj hhJ euez hQlfa Bh pca jqjc puj Sal fa hh nM jShl
lqje J al flhll qaLl Hhw Sau 4(Ql) eal qaLlcl cpl qu
qaLlcl l qal pb qa jmu pwhde lrl nfb i Ll lfal fc cMm
Ll Hhw ps pa LV SeNZl ehQa Sau pwpcL ham Llez HC dlZl qaLll
cpl pwhde iLl Selu ReaCLll hQl L qhe?
hQlfa Bh pca jqjc puj SeNZl ehQa Sau pwpcL ham Ll
Bl iuwLl LS Lle Hhw 29 n eil 1976 alM HLSe Bj lmp iLl plLl
LjQl jSl Selm SuEl lqjeL cnl lfa heu cez Ahc je qu ae
(puj) ke aMe CR foZ Llm HLSe XLaLJ cnl lfa heu ca flaez
cnl SeNZl aMe Le q~R AeR Rmez SeNZ AhL qu cMm ke pwhde J cnL
lr Lll nfb euRme h k hiNVL pwhdel AiihL qph cua fce Ll
quRm ae Hhw al pwhde aReR LlRez kL HL Lbu hm ku Swm npez
jSl Selm SuEl lqje hL hLj Ll rja eu eme ab lfal fc cMm
Llmez HLhlJ ihme e, ae HLSe plLl LjQlz plLl LjQl qu Lih ae
Bj lmp i Llez ihme e al nfbl Lbz ihme e, ae cnL lr Lla fuSe
jaL hlZ Lll nfb euRmez ihme e, ae Hhw al hb quRme cnl ehQa
lfaL lr Llaz ihme e, ae Hhw al hb quRe Sau Ql eaL lr Llaz
SeNZ BQk qu cMm jSl Selm SuEl lqje cnl ehQa lfa Sal fa
hh nM jShl lqje J ayl flhll pcpcl qaLl Hhw Sau Ql eal
qaLlcl cpl qu acl l qal pb qa jmu pfZ hBCe Hhw
ApwhdeLih lfal fc cMm Llmz kL HL Lbu hm ku hcL WLu SeNZl
fae cMmz
Bjl Se XLal pwOhih XLa Llz XLacl k eaa cu aL XLa
pcl hmz XLa Lll pju XLal hsV h OlV LR pjul Se Al jM cMm Ll
 257

Hhw jmhe hc me Llz hQlfa Bh pCc Qdl, fde hQlfa Bh pca

jqjc puj, jSl Selm SuEl lqje Nwl cn ehQa faed bL pJ A Hhw
A~hd Lmjl MQu ehQa Sau pwpcL i XLacl ja A~hdih SlfhL
SeNZl rja XLa Ll cMm Llez k hQl hiN Hhw Hl hQlLcl Jfl BCeNa
cua Rm pwhdel pjeaj hQaL lr Ll, pwlrZ Ll Hhw elf fce Ll; pC
hQl hiN Hhw Hl avLme hQlLl pwhdeL HL Lbu qa Llme, SeNZl lu
XLa Ll SeNZl ehQa pwpcL ham Llmez AflcL jSl Selm SuEl lqje
eS HLSe plLl LjQl quJ Bj lmp i Ll SeNZl lu ehQa Sau pwpcL
qa Ll cnl pwhdeL qa Ll Al jM Aeuih Apvih qaLlcl cpl qu
SeNZL Qlj Ah Ll rja cMm Llez HLSe jk qu jSl Selm SuEl
lqje jkl hld ab deahld lSLl, Bmhcl, Bm-njp Hhw Sjua
CpmjL Hcn fehpe Llez aclL lSea Lll AdLl cez aclL eNlLa
cez (k eNlLaL Bjcl abLba Sjua Hhw dea hld jepLal hQlLl
~hd hme)z ae deahld Hhw jehahld Afldcl pwpc pcp Lle Hhw
aclL j heu acl Nsa hwmcnl faL cu n mr nqcl ll pb Hhw
cC mr j hel pjl pb hCje Llez Hl flJ L hwmcnl SeNZ jSl Selm
SuEl lqjeL jk hma fl?
jSl Selm SuEl lqje d Sal fa J al flhll Hhw Sau Ql ea
qaLlcl d cplC qe e, hlw ae Sal fa J al flhll qaLlcl fla
LlRe lca, pwpc pcp Cac heuz ae BlJ SOe k LSV Lle a qm ae
SeNZl ehQa lfa Sal fa J al flhll qaLlcl qal hQl h Ll
cuj BCe fZue Llez Abv ae Sal fa J al flhll qaL HC cuj BCe
l pjbe cu fjZ Lle aeJ Sal fa J al flhll qaLl Hhw Sau Ql
eal qaLlclC HLSez
Bh pCc Qdl, Bh pca jqjc puj, jSl Selm SuEl lqje Nwl pq
kl 1975 pml 15C BN Sal fa J al flhll qaLl Hhw Sau Ql ea
qaLllcl pqk pqkNa Hhw mme fme LlRe hPm Sa acl faLl
cjmL hQl ch Ll Hhw Hcl fc fch pLm LR faql HMe pjul chz aC jqe
Sau pwpcL Hje cjmL BCe fZue Lla qh ke ihoa H dlZl Le SOe
Afldl QJ LlJ je Ecu e quz

kl SeNZl hl csu Hhw kl Bjcl fh pwhdeL acl hNa b

Qlab Lll Se CR ja aReR Ll, pwhdeL pjlL glje Hl eQ e cu- HC
 258

dlZl hcl BCel BJau He cjmL nl hh Ll Sllz jqe Sau pwpc

HC hou BCe fZue Llhe hm Bj Bn Llz jqe Sau pwpc LaL Efl EMa
BCeV fZue e qJu fk Afaax HLV OZ Ql fe Ll Sll, kMe Nu pdlZ
SeNZ I ph hcl fa acl OZ fLn Ll Bpa flhz HLj aqmC ihoa Bl
LE hQlfa Bh pCc Qdl Hhw fde hQlfa Bh pca jqjc puj Hhw jSl
Selm SuEl lqje Hl ja OZ LS Lll pqp fh ez
SeNZ Bl AhL qu cM, qmj Mae hej hwmcn Nw [30 X.Hm.Bl (Hp.p)
1978 fa 207] jjmu pfj LVl hQlfa gSm jej pwhdeL fLjnel ab
pjlL gljel eQ e ce ab pwhdeL pjlL glje Hhw Bcnl eQ jj OoZ
Llez ae hme, No Constitutional provision can claim to be sacrosanct and
immutable. The present Constitutional provision may, however, claim
superiority to any law other than a Regulation or Order made under the
Proclamation. kL jeeu fde hQlfa H, h, Hj, Mulm qL IaqpL pL
Bqjc hej hwmcn plLl [pwhde (pj pwnde) BCe 1986] jjmu hmRe
Seditiousz
l hej qS Suem Bhce Hhw Aee [32 X.Hm.Bl (H.X) 1980 fa 110]
jjmu hQlfa lm Cpmj hme,
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, inasmuch
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.

kL jeeu fde hQlfa H, h, Hj, Mulm qL ayl IaqpL jjm pL

Bqjc hej hwmcn plLl[pwhde (pj pwnde) BCe 1986] jjmu hmRe
Seditious z
Bjl Bl cM eRlEe hej hwmcn plLl 32 X.Hm.Bl (H.X.) 1980 fa
216 jjmu pfj LVl fde hQlfa Ljm Ee qpe hme k,
 259

............In view of the changed circumstances, the

question arose whether the decisions of the Martial Law
Courts have become amenable to writ jurisdiction of the
High Court Division. After careful consideration of all
the relevant proclamations and Regulations and
enactments and considering all aspects of the question,
this Division has expressed the opinion that such
decisions or orders passed by the Martial Law Court or
any authority under such Regulation during the Martial
Law period are protected from being challenged under
the writ jurisdiction of the High Court Division except in
case of want of jurisdiction or coram non judice or mala
fide.
Efll lu pfL fde hQlfa H, h, Hj, Mulm qL Caqp pLl pL
Bqjc hej hwmcn plLl [pwhde (pj pwnde) BCe 1986 ] jjmu hme k,
The decisions and orders passed by the various Martial Law
Courts are at all protected. Those Courts being begotten out of
void provisions, lack jurisdiction altogether and it is the duty of
the High Court Division, any, it is imperative on its part to say
so. It did so in the Fifth Amendment Case.
We have already held that the Constitution is the supreme law of
Bangladesh and the Supreme Court is empowered by the
Constitution to look into any illegality or irregularity of any
authority. The views of the Appellate Division in this case,
upholding the vain supremacy of the Martial Law Proclamations
etc. and the Martial Law Courts were erroneous and inconsistent
with the Constitution, as such with greatest respect for the
learned Judges, we are constrained to overrrule it.
Bjl Bl cM Beul qpe Qdl hej hwmcn plLl {(Aj pwnde
jjm) 1989 h,Hm,X (hno pwM)} jjmu fde hQlfa nqhe Bqjc hme k,
332. In spite of these vital changes from 1975 by
destroving some of the basic structures of the
constitution, nobody 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 Golak
Nath, the Indian Supreme Court found three past
amendments of the their Constitution invalid on the
ground alteration of the basic structures, but refrained
from declaring them void in order prevent chaos in the
 260

national life and applied the Doctrine of Prospective

Invalidation for the future. In our case also the past
amendments which were not challenged have become
part of the Constitution by genereal acquiescence.

Efll lu pfL fde hQlfa H, h, Hj, Mulm qL IaqpL pL Bqjc

hej hwmcn plLl [pwhde (pj pwnde) BCe 1986 ] jjmu hme k,
This is not so and the observation that the past
amendments which were not challenged have become
part of Constitution by general acquiescence with
respect, are misconceived.
The Constitution is the Supreme law and its any
violation is void and illegal and remains so for all time
to come. The plea of waiver or acquiescence is not
available in respect of violation of any law. If it is
violated, the Court is bound to say so, no matter when it
is raised. There is no period of limitation, no waiver, no
acquiescence in this respect:

hQlfa Bh pCc Qdl, fde hQlfa Bh pca jqjc puj, hQlfa

gSm jej, hQlfa lm Cpmjpq Ael pwhdel fheu EMa Sau jl Se
Bjcl k IaqpL pwNj Hhw k pLm jqe Bcn Bjcl hl SeNZL Sau jl
pwNj BaeuN J hl nqcNZL fZvpN Lla E LlRm pC pLm jqe Bcn
pjqL Hhw deal QaeL dlZ Lla hb quRe hdu pwhdeL pjlL gljel
eQ jj OoZ LlRmez AbQ al pLm HC jj nfb NqZ LlRme k, Bj
hwmcnl pwhde J BCel lrZ, pjbe J elf hde Llh Hhw Aeju al hb
quRme acl pwhdeL cua fme ab pfj SXpum LEpm pma AeRc 96
pwhdel jm LWj (basic structure), hQl hiNl dea Hhw pwhdel hdehml
flf jj OoZ Llaz

1967 pm NmLeb jjmu (Golaknath v. State of Punjab AIR 1967 SC

1643) ilau pfj LVl 11 (HNl) Se hQlfa pwMNl (6-5) jajal ia hme
k, jmL AdLll (fundamental rights ) Hl pb pwOoL pLm BCe A~hdz (ilau
pfj LV hme k, law within the meaning of Article 13 (2) includes an amendment of the
Constitution and as such it is void if it conflicts with any provision guaranteeing fundamental
rights. All the three previous Amendments were found invalid; but these previous Amendments,
which already became part of the Constitution by acquiescence of the of the people for a long
time were not disturbed and the doctrine of prospective overruling was applied from the date
 261

of this decision, that is Parliament would have no power in future to amend any provision of Part
III so as to take away or abridge the fundamental rights)

1976 pm Lnhec jjmu (Kesavanda v. State of Kerala, AIR 1973 SC

1461) ilau pfj LVl 13 (al) Se hQlfa pwMNl (7- 6) jajal ia
hme k, jmL AdLl (fundamental rights) qlZ (abrogate) Ll Abh pwhdel
Lua/eSa (fundamental features of the constitution) dwp Ll k Le BCe
fZue fmjVl HMaul hqia (without jurisdiction)z (ilau pfj LV hme k,
Summary of the majority decision is: The expression amendment of the Constitution does not
enable Parliament to abrogate the fundamental rights or to completely alter the fundamental
features of the Constitution so as to destroy its identity; though the power to amend cannot be
narrowly construed and it extends to all the articles of the Constitution, it is not unlimited so as to
include the power to abrogate the Constitution or destroy its basic structure or frame work;
subject to retention of the basic structure the power of amendment is plenary and includes the
power to amend any provisions of the Constitution; majority decision in Golak Naths case (an
earlier case) that the law in Article 13(2) includes a Constitutional amendment was held to be
incorrect. )
1980 pm jeli jm jjmu ( Minerva Mills Ltd. V.Union of India

AIR 1980, SC 1789) ilau pfj LV hmRe pfj LVl liE fJul (Review

power) qlZ (abrogate) qm pwhdel jm LWj h Lua (basic or essential

features) dwpl pjmz (ilau pfj LV hme k, the amendment invalid observing that

Sec.55 of the 42nd Amendment Act is beyond the amending power of the Parliament and is void

since it removed all limitation on the power of the Parliament to amend the Constitution and

conferred upon it power to amend the Constitution so as to damage or destroy its basic or

essential features or its structures.)

Abv, ilal fmjV pwhde pwndel r pfZ de euz ilal fmjV

pwhdel jm LWj (basic structure), Lua (basic or essential features)Hhw
jmL AdLll (fundamental rights) flf Le BCe fZue Lla fle ez
Efk lum fkmQeu Cq LQyl ja fll k, ilal pfj LV p cnl
SeNZl ehQa lfal qaLlcl fZa Le BCeL ~hd hmez ilal pfj LV p
cnl pwhde iLl Hhw Selu ReaCLl Le HLL hl MumMnja fZa Le
BCeL ~hd hmez ilal pfj LVl Le hQlfa pwhde i Ll qaLlcl cpl
qu fdej Lwh lfal fc cMm Lle ez palw ilal pfj LVl Efl EMa
fh lumL He haje jjm ab SeNZl lfa qaLl Selu ReaCLl LaL
 262

fZa pfj SXpum LEpm pma pwhdel 96 AeRcV pwhde phna Lll
BCel pb ame Ll Efk jqe fh luml Ahjeez ilal pfj LV LeceC
qaLl, Selu ReaCLl, pwhde iLl LaL fZa Le BCeL LMeC La cuez
HMe hwmcnl pwhde pwnde pw IaqpL lupjqL fkmQe Llhz H
khv A jjmpq pwhdel fyQ (5) V pwndel ~hda eu Bjcl pfj LV jjm
quRz
fbj jjmV qm Beul qpe Qdl Nw hej hwmcn [(41 XHmBl (HX)
(1989) fa 165], k pwhde Aj pwnde jjm qph hMaz au jjmV qm
hwmcn CVmue jhm JuLp m. hej hwmcn plLl J Aee [14 h.Hm.V. (hno
pwM 2006], k pwhde fj pwnde jjm qph hMaz aau jjmV qm Bm je
Me hej hwmcn [2012 (hno pwM) hHmV(HX)01], k pwhde ucn pwnde
jjm qph hMa Hhw Qab jjmV qm pL Bqjc hej hwmcn [ (2011) 63
XHmBl 564], k pwhde pj pwnde jjm qph hMaz
fbjC Beul qpe jjm, k pwhde Aj pwnde jjm qph hMa h
pflQa [Beul qpe Qdl Nw hej hwmcn [(41 XHmBl (HX) (1989) fa
165]z HC jjm Bjcl hQl hiNl Caqp H Se hMa k, HC jjmu fbj Sau
pwpc LaL fZa HLV pwhde pwnde BCel ~~hda eu fn am quRz HC jjmu
fbj Bjcl pfj LV pwpc LaL fZa HLV pwhde pwnde BCeL pwhdel jmL
LWj (basic structure) Hl flf hm OoZ Ll BCeV ApwhdeL jj OoZ
Lle Hhw ham (stick down) Llez
pfj LVl pwhdeL cua jm pwhdel fafe (restoration) Llz Aj
pwnde jjmu hQlfa hclm qucl Qdl hmRe conscious as we are of the
havy responsibility which in a final analysis fall upon this court while we
have decided to strick down in amended article 100 we consider it our
lawful duty to restore Article 100 in this original position..............
hQlfa hclm qucl Qdll Aj pwnde jjml Efk pl BmL hm
ku, pfj SXpum LEpm pma 96 AeRc pwhde bL Efl gm jm pwhdel
AeRc 96 fafe Ll pfj LVl BCeNa cuaz LlZ, pfj SXpum LEpm
pma 96 AeRcV Sau pwpc fZue Llez pfj SXpum LEpm pma 96
AeRcV pwhde Ai LlR Bj lmp i Ll hBCeih Hhw ApwhdeLih
lfal fc cMmLl jSl Selm SuEl lqje z palw, pwhde jahL pfj LVl
BCeNa cua 72 Hl pwhdel 96 AeRcV fexfe (restore) Llz
 263

Aaxfl hQl hiNl Caqp phQu Emaj ce 29 n BN 2005z HC ce

hQl hiNl pk pe hQlfa H, h, Hj, Mulm qL ayl pwhde fj pwnde ej
hMa [hwmcn CVmue jhm JuLp m. hej hwmcn plLl J Aee [14 h.Hm.V.
(hno pwM 2006)] jjmu IaqpL lul jdj pwhde (fj pwnde ) BCe, 1979 (
1979 pml 1 ew BCe) L A~hd OoZ Llez E lul jdj ae Bjcl hQl
hiNL jqjea LlRez jeeu hQlfa H,h,Hj, Mulm qLl HC lul jdj hQl
hiN al pWL BCeeN cua fme prj quR, ab hQl hiN LmwLj quRz
Efk lul jdj ae 1975 pml 15C BN bL 1989 pml 9C Hfm
alMl jd fZa pLm glje, Bcn, pjlL BCe, fhde Hhw E jucl jd Aelf
Le glje l HC pwhdel k pLm pwnde, pwkSe, flhae J hmfpde Ll k
pLm Lkj, k pwhde fj pwnde BCe, 1979 l ~hda fce Ll quRm, a
ApwhdeL jj OoZ Ll pwhde (fj pwnde) BCe, 1979 (1979 pml 1 ew BCe)
L ApwhdeL, hBCe Hhw ham BCe jj OoZ Llez
HC fj pwnde jjm hQl hiNl Caqp phQu lafZ jjmz LlZ 15C
BN 1975 alM Sal fa hh nM jShl lqjeL flhl qal flhaa k
A~hd, ApwhdeL plLl rja cMm LlRm acl hl pwhdel AiihL, lrL,
pjbL Hhw elf hdeLl hiNV ab hQl hiN cOce acl BCeNa cua fme
Lla flez 15C BN 1975 bL 29 n BN 2005 alM fk pju hQl hiN hb
quR hBCe, qaLl Hhw ApwhdeL plLlL A~hd OoZ Llaz hQlfa H, h,
Hj, Mulm qL al pqp lul jdj hQl hiNL ALl kN bL Bml fb eu
Bpe Hhw 29n BN 2005 Cw alM bL hQl hiN Bhl al Nlhm fb gl
Bpz hm Sa AhnC QlLm hQlfa H, h, Hj, Mulm qLL al cxpqp Hhw
IaqpL fj pwnde jjml lul Se plZ Llhz flhaa E lu pwr qu McLl
cmul qpe (avLme pVl, h He f) Hhw jp Bqpe Lhl Hhw Ael Bfm
hiN kbj p.f ew 1044/2009 Hhw p.f. ew 1045/2009 cMm Llez E pim
fVne gl mi V Bfm cCV jeeu fde hQlfa jx agm Cpmj jqcul eaa
jqje Bfm hiN Hl fZ h HL ee A hNa 1 m ghul 2010 alM
MlS Llez
Aaxfl aau jjmV qm Bm je Me hej hwmcn [2012 (hno pwM)
hHmV(HX)01], k pwhde ucn pwnde jjm qph hMaz E jjmu fde
hQlfa H, h, Hj, Mulm qL Hl eaa Bfm hiN pwhde (ucn pwnde) BCe,
 264

1996, ll jm i-SeNZl phija, ll fSaL J NZaL flQu J hQl

hiNl dea Mh LlR hdu Cq ApwhdeL ab A~hd hm OoZ Llez
Aaxfl Qab jjmV qm pL Bqjc hej hwmcn [(2011) 63 XHmBl 564],
k pwhde pj pwnde jjm qph hMaz E jjmu hQlfa H, HCQ, Hj, njpe
Qdl hme k,

Why is the Constitution

(Seventh Amendment) Act, 1986 ultra-vires the Constitution ?
287. Having dissected the authorities pronounced in the Fifth Amendments case
and in Asma Jilani case, we are swayed to the introspective and irreversible
equation that the Constitution (Seventh Amendment) Act 1986, miserably failed
to cross the threshold of constitutionality and, is as such void ab-initio, because
of the under cited reasons:
(1) The said Act purportedly enacted Paragraph 19 to
inject it into Fourth Schedule to the Constitution with a
view to accord ratification, confirmation and validation
to the martial Law instruments, issued during the period
between 24th March, 1982 and 10th November 1986,
which instruments having been void, and illegal from the
very beginning, there was nothing before the Parliament
to ratify, confirm or validate and, as such, the purported
ratification, confirmation or validation was an action in
wilderness, having no existence at all in the eye of law,
and,
(2) because, the Martial Law proclamation, dated 24th
March 1982, and all subsequent Martial Law
instruments that followed, which were purportedly
validated by the Constitution (Seventh Amendment) Act
1986, were totally barren of any lawful authority, as
they were purportedly made/ issued by the person who,
in total derogation to the constitutional device, by
resorting to muscle power, illegally assumed the state
power, de-facto, as a usurper, illegally suspending the
Constitution, the sacrosanct document that represents
the solemn will of the people, and,
(3) because as all the instruments that were purportedly
validated and ratified by the Parliament through the
subject Act, were illegal, being bereft of lawful
authority, it was beyond the Parliaments competence to
ratify and validate them and, then infuse them into the
Fourth Schedule to the Constitution through the legality
 265

nonexistent device of paragraph 19. Obviously our

controlled Parliament, with Constitutional limitation on
legislation, cannot pass a law to accord validity to
something, which it could itself not pass, because the
legislature cannot validate an invalid law, the principle
governing validation being that validation itself is
legislation, one could not validate what one could not
legislate upon, and,
(4) because of the maxim quad initio no valet, fraction
temporize non valet (What is void in the beginning does
not become valid through efflux of time. Obviously the
dead entitles, the Martial Law Instruments, cannot be
resurrected; they being dead from their inception, and,
(5) because ratification, validation and confirmation
does not fall within the contemplation of Article 142, as
the phrase amendment therein cannot presuppose
ratification, validation or confirmation et: the phrase
amendment has its own meaning and peculiarity- it is
incapable of importing any new theme, unknown to it,
not associated with it and, (6) because, as B H
Chowdhury, J, citing Harts, explicated in Eighth
Amendment case, supra, that an amendment of the
constitution is not a Grund norm because it has to be
according to the method provided in the Constitution,
and as S. Ahmed J, stated that an amendment means
change or alteration subject to retention of the basic
structures of the constitution, and as it has been held in
Kandon vs- Us (193 Us 457-48 ED. 747) that power to
amend must not be confounded with power to create, the
Constitution (Seventh Amendment) Act 1986 cannot be
ranked as an amending Act; and,
(7) because, through the said purported action, the
Parliament, only in order to appease the whim of the
person who diabolically usurped the governmental
power, showing scant regard to the Order of the
Constitution, perpetrated fraud upon the people at large,
and their sacred Constitution, and,
(8) because, the person, the author of the abhorrent
instruments, who previously ravaged the Constitution,
cannot, at a later stage, take in aid the same
Constitution to legalise his outrageous acts and deeds,
 266

nor can he seek salvation under the Constitution, he

tried to tear apart, and,
(9) because, endorsing the said purported enactment
would render the Constitution unsafe as such an action
may allure future reprobates, adventurists, to follow suit,
and
(10) because, the purported amendment was not in
compliance with Article 142 as the mandatory long
title was missing, and
(11) because, the purported amendment can not pass the
touch stone of either Article 7 or of the Preamble, and,
(12) because, by deceitfully procuring the passage of the
subject Act, the military tyrant simply tried to get away
with the sin and the delinquency he committed by
heinously suspending the Constitution, something that he
cannot obtain from the very same Constitution, and,
(13) because, the Fourth Schedule to the Constitution,
was illegally used by the usurpers, Our above finding
that the Constitution (Seventh Amendment) Act 1986 is
and has always been void for being affronting and
repugnant to the Constitution, necessarily follow that all
deeds done, all actions taken, inclusive of the formation
of the so called Martial Law Courts of all kind, were
also barren of lawful authority.

The Ultimate Summing Up

309. Our judgment may be summed up in following
terms;
1) Martial Law is totally alien a concept to our
Constitution and hence, what Dicey commented about it,
is squarely applicable to us as well.
2) A fortiori, usurpation of power by General
Mohammad Ershad, flexing his arms, was void ab-initio,
as was the authoritarian rule by Mushtaque-Zia duo,
before Ershad, and shall remain so through eternity. All
Martial law instruments were void ab-initio, As
corollary, action purportedly shedding validity through
the Constitution (Seventh Amendment) Act 1986,
constituted a stale, moribund attempt, having no effect
through the vision of law, to grant credibility to the
frenzied concept, and the same must be cremated
without delay.
 267

3) The killing of the Father of the Nation, which

was followed by successive military rules, with a few
years of intermission, was not an spontaneous act-it
resulted from a well intrigued plot, harboured over a
long period of time which was aimed not only to kill of
Father of the Nation and his family, but also to wipe out
the principles on which the Liberation War was fought.
4) During the autocratic rule of Khandaker
Mushtaque and General Ziaur Rahman, every efforts
were undertaken to erase the memory of the Liberation
War against Pakistan.
5) Two military regimes, the first being with
effect from 15th August, 1975, and the second one being
between 24th March 1982, and 10th November 1986, put
the country miles backward. Both the martial laws
devastated the democratic fabric, as well as the patriotic
aspiration of the country. During Ziaur Rahmans
martial law, the slogan of the Liberation War, Joy
Bangla was hacked to death. Many other Bengali
words such as Bangladesh Betar, Bangladesh Biman
were also erased from our vocabulary. Suharwardy
Uddyan, which stands as a relic of Bangabandhus 7th
March Declaration as well as that of Pakistani troops
surrender, was converted into a childrens park. Top
Pakistani collaborator Shah Azizur Rahman was given
the second highest political post of the Republic, while
other reprehensible collaborators like Col. Mustafiz (IO
in Agartala conspiracy case), ASM Suleiman, Abdul
Alim etc. were installed in Zias cabinet. Many
collaborators, who fled the country towards the end of
the Liberation War, were allowed, not only to return to
Bangladesh, but were also greeted with safe haven, were
deployed in important national positions. Self-confessed
killers of Bangabandhu were given immunity from
indictment through a notorious piece of purported
legislation. They were also honoured with prestigious
and tempting diplomatic assignments abroad. The
original Constitution of the Republic of 1972 was
mercilessly ravaged by General Ziaur Rahman who
crased from it, one of the basic features, Secularism and
allowed communal politics, proscribed by
Bangabandhu, to stage a comeback.
 268

6) During General Ershads Martial Law also

democracy suffered devastating havoc. The Constitution
was kept in abeyance. Doors of communal politics, wide
opened by General Zia, were remained so during his
period. Substitution of Bengali Nationalism by
communally oriented concept of Bangladeshi
Nationalism was also allowed longevity during Ershads
Martial Law period.
7) By the judgment in the Fifth Amendment Case
all the misdeeds perpetrated by Mushtaque-Zia duo have
been eradicated and the Constitution has been restored
to its original position as it was framed in 1972.
8) It is about time that the relics left behind by
Martial Law perpetrators be completely swept away for
good.
9) Step should be taken by the government to
remove the impeding factors, the Appellate Division
cited, in order to restore original Article 6, i.e. Bangalee
Nationalism.
10) Those who advised Ershad, including his
law minister and Attorney General during his Martial
Law period to keep the Constitution suspended, should
also be tried.
Rule made absolute in part
310. For the reasons assigned above, the Rule is made
absolute in part. The Constitution (Seventh Amendment)
Act 1986 is hereby declared to be thoroughly illegal,
without lawful authority, void ab-initio and the same is,
hence invalidated forthwith through this judgment,
subject however, to the condonation catalogued above,
where they would apply.
311. Paragraph 19 of Fourth Schedule to the
Constitution, is hereby declared extinct wherefor the
same must be effaced from the Constitution without
delay.
312. The Respondents are further directed, having
regard to the Appellate Divisions modifying Order in
the Fifth Amendment case, to take steps to clear the
impediments, cited by the Appellate Division, with a
view to eventual restoration of original Article 6.
313. The Respondent No. 1 is directed to reflect this
judgment by re-printing the Constitution.
 269

314. No Order, however, is made to interfere with the

petitioners conviction or the sentence for the reasons
stated above and hence he must surrender to his bail.
315. The learned Counsel for the petitioner applied for
certificate under Article 103(2)(a) of the Constitution
and, as the case raises a substantial question of law as
to the interpretation of the Constitution, we have no
hesitation to issue the certificate asked for, which is
hereby issued.
There is however, no Order as to cost.

Efll lum fkmQeu HV pf k, Efk faLV jjmu Bjcl pfj

LV pwhdel pb ApjpfZ qJul LlZ Efk pwhde pwnde pw BCemL
hBCe jj OoZ Ll ham Llez Aj pwnde lu halL hL aeV pwnde
jjmu Bjcl pfj LV pLm fLl pjlL glje J p pfLa hBCe LkLmfL
A~hd OoZ LlRezdj Aj pwnde jjmu fLll A~hd cMmcl plLlL flr
~hda fce Ll quRz
pwhdel AeRc 7 jahL fSal pLm rjal jmL SeNZ Hhw SeNZl
fr pC rjal fuN Lhm HC pwhdel Ade J Laa LkLl qhz SeNZl Aiful
flj Aihlf HC pwhde fSal phQ BCe Hhw Ae Le BCe kc HC pwhdel
pqa ApjpfZ qu aq qm pC BCel kaMe ApjpfZ aaMe ham qhz HRs,
fhel 4b fl jahL hwmcnl SeNZl Aiful Aihlf HC pwhdel
fde ArZ lMl Hhw Eql lrZ, pjbe J elf hde hwmcnl faV eNlLl fh
Lahz
L ciNl hou pwhde Aj pwnde Ma Beul qpe jjmu Bjcl
Bfm hiN pwhdel 7 AeRcL hTa hb quRez kc pwhdel 7 AeRc hTa
flae aqm fde hQlfa pqhe Bqjc hma flae e inspite of these vital
changes from 1975 by destroving some of the basic structure of the
constitution, nobody challenged them in court after revival of the
constitution; consequently, they were accepted by the people, and by their
acquiesence have become part of the constitution.
kMe Bjcl Bfm hiN Sau pwpc LaL fZa pwhde Aj pwnde BCeL
pwhdel jmL LWj (basic structure) Hl flf hmu OoZ Ll BCeV
ApwhdeL jj OoZ Lle Hhw ham (stick down ) Lle, pMe HLSe plLl
LjQl ke Bj lmp i Ll hBCe Hhw ApwhdeL ih lfal fc cMm LlRme
 270

(jSl Selm SuEl lqje), ae al HLL CRu kMe pwhdel jm LWj (basic
structure) Hhw pwhdel Lua (basic or essential features) i Ll pfj
SXpum LEpm pma pwhdel AeRc 96 V lal Bdl fZue Lle, p hfl
avLme Bfm hiN E pfj SXpum LEpm pma 96 AeRcVL ApwhdeL
Hhw ham jj OoZ Lla flez
BCel npe NZal Aeaj jM naz BCel npe fa Rs NZa fa Ll
ku ez Bl BCel npe fa aMeC ph qh kMe ll aeV hiN pwhde jahL
eS eS Adrl jd bL kl kl cua pWL Hhw eueNih fme Llhz L Bjl
L cMmj? Bjl cMmj 1975 pm 15C BN pwhdepjaih cnl SeNZ LaL
ehQa lfaL ab Sal fa hh nM jShl lqjeL HLcm QLlQa fe
pjlL hqel mL kMe flhl ejjih qa Ll aMe Bjcl pfj LV elh pC
qaL AhmLe Llz Bjcl SeNZl Bn-BLMl phno Bnum pfj LVL
Bjl pce Le lm Cp Lla cM ez hlw Bjl AhL hpu cM ke pwhdeL lrZ,
pjbe J elf hde Llhe hm nfb NqZ LlRme, pC hQlfa Bh pCc Qdl al
nfb i Ll hhl Mecl pqkN qu Ice ab 15C BN 1975 p 6.00 Vu
hBCeih, ApwhdeL ih cnl fdejl fc cMm Llez Hhw Bjl Bl cM
Lih HLV cnl fde hQlfa Bh pca jqjc puj Mecl cpl qu pwhde
fc al cu cua fme e Ll A~hdih pwhdeL fccma Ll cnl lfal fc cMm
Lle Hhw al QuJ SOeih cnl SeNel l ehQa Sau pwpcL ham Llez
Hl Sal n ab Sau n ab lq ab SeNZl lu qaLlz Hcl hQl AhnC
qa qhz Bj Bn Ll pq~ hfl jqe Sau pwpc fuSeu BCe fZue Llhez
hwmcnl faV hm HclL QlShe OZil plZ Llhz
1975 pml 15C BN Hl jjL OVel flha faV pwhdeL pwLV Bjcl
avLme pfj LV al pwhdeL cu c|ka fme pfZih hb quRz Bjcl pfj
LV p ph pwhdeL mN pwhde ab cnL lr Lla fl ez AbQ Hcnl
lS~eaL eahc, BCeSh eahc, pwaL eahc, pwhcL eahc, R eahc, njL
eahc Hcnl hl SeNZL pb eu cnl faLV lS~eaL pwLV Hhw pwhdeL
pwLV l cu Hhw eujaL Bcme pwNjl jdj cnL pwLVj Ll felu cnL
pwhdeL dlhqLau glu HeRez

fLaNaih faL rjaC BNpz HC jehL V bL hQl hiNJ j euz H

fpwN Union of India vs- Hindustan Development Corporation (AIR 1994
 271

Supreme Court 988) jjmu hQlfa K. Jayachandra Reddy fa 1018 H hme

k,
In Attorney General for New South Wales case
(1990(64) Aus LJR 327), it is observed as under:
Some advocates of judicial intervention would encourage the
courts to expand the scope and purpose of judicial review,
especially to provide some check on the Executive Government
which nowadays exercise enormous powers beyond the capacity
of the Parliament to supervise effectively. Such advocacy is
misplaced. If the courts were to assume a jurisdiction to review
administrative acts or decisions which are unfair in the
opinion of the court-not the product of procedural fairness, but
unfair on the merits-the courts would be assuming a jurisdiction
to do the very thing which is to be done by the respository of an
administrative power, namely, choosing among the courses of
action upon which reasonable minds might differ.
XXXXX XXXXX
If judicial review were to trespass on the merits of the exercise of
administrative power, it would put its own legitimacy at ristk.
The risk must be acknowledged for a reason which Frankfurter,
J. stated in Trop v. Dulles, (1958) 356 US 86 at 119:
All power is, in Madisons phrase, of an encroaching
nature ..........Judicial power is not immune against this
human weakness. It also must be on guard against
encroaching beyond its proper bounds, and not the less
so since the only restraint upon it is self-restraint.

hQl hiNL AhnC al pje ab Adr p phno pSN bLa qhz hQl
hiN al eS pje LMeC Aaj Llh e z hQl hiNL eSL euZ ea h
BaeuZ ea AeplZ Lla qhz LlZ hQl hiN SeNZl no Bnumz
BCe fZal L En BCeV fZue LlRe a eu fn Ll kh ez hQlL
rja HC eu k hQlLcl CRL hhue Llz hQlL rja qm jqe Sau pwpc
LaL fZa BCe ke pLm pWL Hhw kbkbih ab Arl Arl fafme Llz jqe
Sau pwpcl BCeL Hjeih hM Hhw hnoZ Lla qh, ke pLml eLV je qu
BCeVl hM Hhw hnoZ jqe Sau pwpc pjea pcphc eSl LlRez jqe
Sau pwpcl fZa Le BCe Aphdeahna Le n hc fsR hm Bcmal eLV
fauje qmJ Bcma hQlL hM fce Lll ej E n kN Lll AdLl euz
 272

Ljnel Ah pmp VL hej flpe Vmp Hhw fVp [ (1975) 4 SCC 22] jjmu
ilal pfj LV Aija fce Ll k;
The will of the legislature is the supreme law which
demands absolute obedience. Judicial power is not to be
exercised to give effect to the will of the judges, but to
give effect to the will of the legislature, in other words,
to the will of the law. So, where the legislature clearly
declares its intent in the scheme and language of a
statute, the duty of the court is to give full effect to the
same without scanning its wisdom on policy, and without
engrafting, adding or implying anything which is not
congenial to or consistent with such well-expressed
intent of the law givers. If the legislature wilfully omits
to incorporate something in a statute, or even if there is
a casus omissus in statute, the language of which is
otherwise plain and unambiguous, the court is not
competent to supply the omission under the guise of
interpretation, something what it thinks to be a general
principle of justice and equity. The primary function of a
court of law being jus dicere and not jus dare the
paramount rule of interpretation of legislative intent
should be applied by the courts.

BCel hM fcel r Bcmal ijLl hou ilau pfj LV eplEe

hej pa lj (Nasiruddin v. Sita Ram, AIR 2003 SC 1543) jjmu Aija fLn Lle k,
The Courts jurisdiction to interpret a statute can
be invoked when the same is ambiguous. It is well
known that in a given case the Court can iron out of
the fabric. It cannot change the texture of the fabric.
It cannot enlarge the scope of legislation or
intention when the language of the provision is
plain and unambiguous. It cannot add to or subtract
words to a statute or read something into it which is
not there. It cannot re-write or recast legislation. It
is also necessary to determine that there exists a
presumption that the Legislature has not used any
superfluous words. It is well settled that the real
intention of the legislation must be gathered from
the language used. It may be true that use of the
expression shall or may is not decisive for
 273

arriving at a finding as to whether a statute is

directory or mandatory. But the intention of the
Legislature must be found out from the scheme of
the Act. It is also equally well-settled that when
negative words are used the Court will presume that
the intention of the Legislature was that the
provisions are mandatory in character.

Bcmal fbjL LS jus dicere and not jus dareto speak the law
not to give law Abv BCe L hmR pV hm BCe fZue Ll euz Bcmal cua qm
BCel hM fcel pju pwn BCeL BCe fZacl Q Qae dlZ Ll hM Lla
qhz BCe fZacl BCe fZuel En eu Le fn h hM Bcmal HMaul
hqiaz BCel hMl pju BcmaL lal pb Mum lMa qh k, BCel hM
Lla ku Bcma ke Aphdeahnax BCe fZue Ll e gmez
hQl hiNl dea L? hQl hiNl dea qm hQlLNZl eiu LS Lll
deaz fde hQlfa h hQlLNZ ej hZa nfb fW Llex
Bj, ......................... , fde hQlfa ( h rja pfj LVl
Bfm/qCLV hiNl hQlL) ek qCu pnQ nfb (h ctih
OoZ) LlaR k, Bj BCe-Aeku J hnal pqa Bjl fcl
Lah fme Llh;
Bj hwmcnl fa ALj hnp J BeNa foZ Llh;
Bj hwmcnl pwhde J BCel lrZ, pjbe J elfhde Llh;
Hhw Bj ia h AeNq, AelN h hlNl hnha e qCu pLml fa
BCe-Aeku kbhqa BQlZ Llhz

Abv, hQlfaNZ ial hnha e qu pLml fa BCe Aeku kbhqa BQlZ

Llhe hm nfb fW Llez pr Le iaC hQlLL ayl BCe Aeku kbhqa LS
Lll r hd qa flez Abv ke ial LR ea Ll Lle ae Bl hQlL bLe
ez SeNZl pwhdeL AdLl lr Lll k nfb euRe a fme Lla hQlLNZ phcC
eiu LS Llhez hQlL kc eS de e qe aqm aL LE h Le BCeC dea
ca flh ez k hQlL de jel AdLl p hQlL LMeC ayl cua fme ab
pwhde jahL al Efl Afa BCeNa cua J Lah fme fRf qe ez
Sefua eu, cl cje J nl fme Hhw SeNZl pwhdeL AdLl fa Ll
hQl hiNl HLj BCeNa cua J Lahz HC BCeNa cua J Lah fme Lla ku
hQl hiNL HMe fk Le hlf flal ab Le hQlLL AfplZ Lwh AfplZ Hl
 274

EcN HMe fk HLVJ quez Abv Bjl HV hma fl pdlZ jeol AdLl lr Lla
ku Lwh pdlZ jeol pwhdeL AdLl lr Lla ku Bjcl hQl hiNl HLSe
hQlLLJ al fc qla quez
pdlZ jeol AdLl lr Lla Lwh pdlZ jeol pwhdeL AdLl lr Lla
ku kc Le hQlLL fc qla qu a pC hQlLl Se NlhlC hou qhz
palw HLSe hQlLl jepL nC hQl hiNl fLa deaz hQlLl jepL
nl i qm al paa, paLl nr, elfra, eufluea Hhw jkl jqe
BcnpjqL dlZ Hhw deal Qaeu hnpz

pwhde AeRc 7 jahL fSal pLm rjal jmL SeNZ Hhw SeNZl fr
pC rjal fuN Lhm HC pwhdel Ade J Laa LkLl qhz SeNZl fr HLpb
hp cn npe Ll ph euz aC SeNZ l flQmel Se al faed ehQe Lle
ehQel jdjz SeNZl faedL pwpc hm quz Abv SeNZ l ehQa pwpcNZ qme
SeNZl faedz SeNZl faedl SeNZl LmZ BCe fZue Llez BCe fZuel r
Sau pwpc HLj pwhdeL faez
HMe Bjcl pje fn qm Sal fa hh nM jShl lqje Hyl eaa Mps
pwhde fZue LjVl 34 Se h pcphc Hhw NZflocl 403 Se pcphc AL flnj
Ll pwhc f, hal J Vminel jdj SeNZl fh J fljn NqZ Ll Hhw a
NZfloc hla BmQe Ll k pwhde fZue LlRme, kMe pwpc LaL hQlL
AfplZ pma 96 AeRc Rm, a pwhdepja; e HLSe A~hd npLl hueVl MyQu
fZa pfj SXpum LEpm pma hQlL AfplZ fu pwhdepja?
H fku jx Bm qmj LaL mMa pwhde, pwhdeL BCe J lSeax
hwmcn fp N Hl fa 339-H pfj SXpum LEpm fa fZuel LlZ J
pwhde Cql fhha Ah noL AduV ej Ea qmx
pfj SXpum LEpm fa fZuel LlZ J pwhde Cql fhha Ah
jm pwhde pfj SXpum LEpm pw Le hde Rm ez jm pwhde hde Rm k, Le
hQlLL Apjba J ApcQlZl LlZ AfplZ Lla qm E ApcQlZ h Apjba pfLa
fh pwpc cC-aauwn pwMNlau fn qa qhz jm pwhdel HC hdeV Ea J NZaL
Rmz LlZ pwhde flhae Lla k fa fuSe HLSe hQlfaL AfplZ LlaJ pC HLC
fa fuSez aRs cC-aauwn pwMNla ASe Ll MhC LLlz palw plLl CR LlmC
Le hQlLL AfplZ Lla fla ez
fVijx 1975 pm 15 BNV plcn pjlL BCe Sl Ll qu; fpXV qme McLl
jnaL Bqjcz L pjlL BCe Sl Ll qmJ ae pwpc iwN ceez 1975 pml 8C
eil alM fpXV puj lfa fc Ada qmez ae 1976 pml 28n j au glje
(pj pwnde) Bcnl jdj pwhde 44 J 102 AeRc fexfaa Llmez pfj LVl cV
 275

hiN- Bfm hiN J qCLV hiN bLl flha pfj LV J qCLVL Bmc Bcma Lll
hde Lle Hhw hQlLcl euN J Afplel Se jm pwhdel pLm hdeL fexfe Llez
1976 |pml 8C eil alM lfa puj pwpc iwN cmez H flaa fn cM cm k,
pwpcl cC-aauwn pwMNlau HLSe hQlLL AfplZ Ll ku L pwpc kc iwN ku h
Sha e bL aqm hQlLcl Afplel houV Lih pjde Ll qhz Hlf flal Lb
hhQe Ll SuEl lqje 27n eil, 1977 au glje (cnj pwnde) Bcnl jdj
hQlLcl Afplel hou pfj SXpum LEpml hde fhae Llez lfa puj pfj
LV J qCLV ej cdlel k Bcmal p LlRme aJ HC Bcnl l lqa Ll jm
pwhdel euj fexfe Ll quz L 95 AeRc hQlLcl euNl r fde hQlfal
pb lfal k fljnl hde Rm a hc cu quz 109 AeRc cnl pLm VCheml Efl
qCLV hiNl k euZNa rja Rm aJ HC Bcnl l hc cu quz
EM, 96 AeRcl Ade BS fk Le hQlLL hwmcn AfplZ Ll quez Ahn jnm
m QmLme pju LR hQlLL AfplZ Ll quRm, L pV pwhdel 96 AeRcl BJau
eu; jnm m Bcnl BJauz

haje jjml houh qm pwhde (osn pwnde) BCe, 2014 (2014 pel 13
ew BCe) pwhdepjaih fZa quR Le ab pwhde (osn pwnde) BCe, 2014
(2014 pel 13 ew BCe) pwhdel hdehm-pfr fZa quR Lez
haje jjml houh HC eu k, pwpc LaL hQlL AfplZ fu im e pfj
SXpum LEpm LaL hQlL AfplZ fu imz Lwh pwpc LaL hQlL AfplZ
fu hQl hiNl deal flf e pfj SXpum LEpm LaL hQlL AfplZ
fu hQl hiNl dea lr Llh-HCph A lml houh euz
hQlfaNZ HC jj nfb NqZ Lle k, Bj hwmcnl pwhde J BCel lrZ,
pjbe J elf hde Llhz
Abv hQlfaNZ pwhdel lrZ, pjbe, J elf hde Llhez pwhde
Llfih pwnda qm im qu p pfL Sau pwpcL Le ecn h fljn hQlfaNZ
ca fle e z
hQl hiNl BCeNa cua qm Sau pwpc pwhde pwnde BCe h Ae k Le
BCe pwhdel hdehm-pfr fZue LlR Le a elfe Llz kc pwpc HjeV Lla
hb qu bL a qm pfj LVl hQlLNZl Ahn Lah qm p BCeL pwhde hqia
jj OoZ Ll ham Llz ab nfb Aeku pwhde Hl lrZ, pjbe J elf hde Llz
palw A lmVa Bjcl pje HLj hQk hou qm pwhde (osn pwnde)
BCe, 2014 (2014 pel 13 ew BCe) pwhdepjaih ab pwhdel hdehm pfr
fZa quR Lez
H fp Bjl pwhde (osn pwnde) BCe, 2014 (2014 pel 13 ew BCe) Hl
dl 2 EM Ll fuSe hdu ej Ea qmx
 276

2z pwhdel 96 AeRcl pwndez- NZfSa hwmcnl pwhdel

96 AeRcl cg (2), (3), (4), (5), (6), (7), J (8) Hl flha
ejlf cg (2), (3), J (4) fafa qCh, kbx-

(2) fjZa ApcQlZ h Apjbl LlZ pwpcl jV pcp-pwMl

Aee cC-aauwn Nlal l pjba pwpcl fhj fc lfal
Bcn haa Le hQlLL Afpla Ll kCh ez
(3) HC AeRcl (2) cgl Ade fh pfLa fa Hhw Le
hQlLl ApcQlZ h Apjb pfL ac J fjZl fa pwpc
BCel l euZ Lla flhez
(4) Le hQlL lfaL En Llu rlk fkN u fc aN
Lla flhez
Efll dl 2 hnoZ Cq flLl k, pwhde (osn pwnde) BCe, 2014 (2014
pel 13 ew BCe) V dj pwhdel 96 AeRcL euz jVcN hm ku, AeRc 96
hQlLcl AfplZ pw z Abv pfj LVl hQlLl L fLl Afpla qhe p
pfL HC AeRcz
HMe Bjl cMh pwhdel 96 AeRcV pwhde fZuel pju ab 72 Hl fbj
pwhde Llf Rmz H fra 72 Hl pwhde hda 96 AeRcV ej Ea qmx
AeRc 96x hQlLcl fcl juc-(1) HC AeRcl Aee
hdehm pfr, Le hQlL ho hvpl fZ qJu fk u fcl
hqm bLhez
(2) fjZa ApcQlZ h Apjbl LlZ pwpcl jV pcp pwMl
Aee cC-aauwn Nlal l pjba fhj fc lfal Bcn
haa Le hQlLL Afpla Ll Ll kCh ez
(3) HC AeRcl (2) cgl Ade fh pfLa fa Hhw Le
hQlLl ApcQlZ h Apjb pfL ac J fjZl fa pwpc
BCel l euZ Lla flhez
(4) Le hQlL lfaL En Llu rlk fkN u fc aN
Lla flhez

Aaxfl 1975 pml 15 Cw BN Sal fa hhL flhl qal fl

qaLll cn hBCe ab ApwhdeLih pjlL BCe Sl Llz hBCe ih fbj
McLl jL Bqjc flhaa avLme fde hQlfa Bh pca jqjc puj
lfal rja cMm Llez fde hQlfa Bh pca jqjc puj Aaxfl
ApwhdeLih Hhw A~hdih 8 Cw eil 1975 alM SeNZ LaL ehQa Sau pwpc
i cez Aaxfl, The second Proclamation (Seventh Amendment) Order,
1976 (Second Proclamation Order No. IV of 1976) eju pjlL glje l
A~hd lfa Bh pca jqjc puj pwhde A~hdih pwnde Llax 105 AeRcl
 277

jdj 1972 pml jm pwhdel 96 AeRc ejlfih fexfe Lle, k 13.08.1976

alM qa abLbaih LkLl Ll quz
CHAPTER IV
General provisions as to Supreme Court and High Court.
105. Tenure of office of Judges of Supreme Court and
High Court . (1) Subject to the provisions of this
artilce.- (a) a judge of the Supreme Court shall
hold office until he attains the age of sixty-five years.
(b) a judge of the High Court Shall hold office until he
atains the age of sixty-two years.
(2) A Judge of the Supreme Court or of the High Court
shall not be removed from his office except by an order
of the President made pursuant to a resolution of
Parliament passed by a majority of not less than two
thirds of the total number of mebers of Parliament on the
ground of proved misbehaviour, or incapacity.
(3) Parliament may by law regulate the procedure in
relation to a resolution under clasuee (2) and for
invstigation and proof of the misbehaviour or incapacity
of a Judge of the Supreme Court or of the High Court.
(4) A judge of Supreme Court or of the High Court may
resign his office by writing under his hand addressed to
the President.
Aaxfl abLba hBCe lfa Bh pca jqjc puj HLSe fSal
haei LjQlL ab jSl Selm SuEl lqjeL lfal fc hBCeih Afe
Lle Hhw jSl Selm SuEl lqje Bj lmp Hl lm 8 jahL nfb NqZ Ll
QLla kNce Ll paJ pC nfb i Ll hBCe ih lfal fc cMm Llez Abv
jSl Selm SuEl lqje SeNZL ab lL fc nfb i Ll hBCe Hhw pwhde
hqiaih rja cMm Llez
Aaxfl The Proclamations (Amendment) Order, 1977 (Proclamations
Order No. I of 1977) eju pjlL glje Hl jdj jSl Selm SuEl lqje
Efk 105 AeRc felu pwnde Ll 1972 pml pwhde A~hdih pfj SXpum
LEpm p Ll ejlf fafe Llex
(e) in entry 13 as so renumbered, in Chapter 1B as
substituted by that entry.
(i) in article 105, for clauses (2), (3) and (4) the
following shall be substituted, namely:-
 278

(2) A Judge of the Supre Court or the High Court 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 of the Supreme Court;
Provided that if, at any time, the Council is 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
of the Supreme Court who is next in seniority to those
who are members of the Council shall act s such
member,
(4) The functions of the Council shall be-
(a) to prescribe a Code of Conduct to be observed by the
Judges of the Supreme Court and of the High Court: and
(b) to inquire into the capacity or conduct of a Judge of
the Supreme Court or of the High Court or of any other
functionary who is not removable form office except in
like manner as a Judge of the Supreme Court or of the
High Court.
(5) Where, upon any information received from the
Council or from any other source, the President has
reason to apprehend that a Judge of the Supreme Court
or of the High Court-
(a) may have ceased to be 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 an inquiry under this article, the
Council shall regulate its procedure and shall have, in
respect of issue and execution of process, the same
power as the Supreme Court.
 279

(8) A Judge of the Supreme Court or of the High Court

may resign his office by writing under his hand
addressed to the President. And
(ii) in article 107, in clause (1), after the word period
at the end, the words and commas as an ad hoc Judge
and such Judge, while so sitting, shall exercise the same
jurisdiction, powers and functions as a Judge of the
Supreme Court shall be added;
HCih Bj lmp iLl HLSe plLl LjQl A~hdih rja cMmfhL al
HLL CRu pjlL glje Hl jdj pfj SXpum LEpml Se ce 1977 pmz
Aaxfl, The Second Proclamation (Tenth Amendment) Order, 1977
(Second Proclamation Order No. I of 1977) Hl jdj A~hdih rja cMmLl
Selm SuEl lqje felu pwhde pwnde Lle Hhw A~hdih pfj SXpum
LEpmpq eae HL 96 AeRc pwhde fafa Lle, k ejlfx
96. Tenure of office of Judges. (1) Subject to the othe
provisions of this article, a Judge shall hold office until
he attains the age of sixty two years.
(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 Jusitice of Bangladesh, and the two next senior
Judge.
Provided that if, at any time, the Council is 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 e observed by the
Judge; and
(b) to inquire into the capacity r 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-
 280

(a) may have ceased to be 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 ha ceased to
be capable of properly performing the functions of his
office or has been guilty of gross misconduct, the
President shall, be order, remove the Judge from office.
(7) For the purpose of an inquiry under this article, the
Council shall regulate its procedure and shall have, n
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.
Efk A~hd hde 1977 pml 1 Xpl qa LkLl Ll quz HCih pjlL
glje Hl jdj HLSe A~hd npLl MumMn J jS jgL pfZ HMaulhqe J
ApwhdeLih pfj SXpum LEpml p, kL flhaa pwhde (fj pwnde )
BCe, 1979 ( 1979 pml 1 ew BCe) Hl jdj abLbaih ~hda fce Ll quz
Aaxfl hwmcnl hQlhiNl Caqp Aeaj Emaj ce 29.08.2005z HC
ce hQlhiNl pkpe hQlfa H,h,Hj, Mulm qL ayl pqp Hhw IaqpL lul
jdj pwhde (fj pwnde ) BCe, 1979 (1979 pml 1 ew BCe) L A~hd J hBCe
OoZ Llez al pkN pqk quRme jeeu hQlfa H, V, Hj, gSm Lhl
{[hwmcn CVmue jhm JuLp m. hej hwmcn plLl J Aee [14 h.Hm.V. (hno
pwM 2006]}z jeeu hQlfa H, h, Hj, Mulm qL al HC IaqpL lul jdj
Bjcl hQl hiNL jqjea LlRez jeeu hQlfa H,h,Hj, Mulm qLl HC lul
jdj hQl hiN al BCeNa cua fme Hhw pje fell Lla prj quR, ab
hQl hiN LmwLj quRz jeeu hQlfa H, h, Hj, Mulm qL ayl IaqpL lu
bqeih hme k,
We have held earlier held in general that there was no
legal existence of Martial Law and consequently of no Martial
Law Authorities, as such, all Proclamations etc. were illegal,
void ab initio and non est in the eye of law. This we have held
strictly in accordance with the dictates of the Constitution, the
supreme law to which all Institutions including the Judiciary
owe its existence. We are bound to declare what have to be
declared, in vindication of our oath taken in accordance with the
Constitution, otherwise, we ourselves would be violating the
Constitution and the oath taken to protect the Constitution and
 281

thereby betraying the Nation. We had no other alternative,

rather we are obliged to act strictly in accordance with the
provisions of the Constitution.

The learned Advocates for the respondents raised the

possibility of chaos or confusion that may arise if we declare the
said Proclamations, MLRs and MLOs and the acts taken
thereunder as illegal, void ab initio and non est. We are not
unmindful of such an apprehension although unlikely but we
have no iota of doubts about the illegalities of those
Proclamations etc. What is wrong and illegal shall remain so for
ever. There cannot be any acquiescence in case of an illegality.
It remains illegal for all time to come. A Court of Law cannot
extend benefit to the perpetrators of the illegalities by declaring
it legitimate. It remains illegitimate till eternity. The seizure of
power by Khandaker Moshtaque Ahmed and his band of
renegades, definitely constituted offences and shall remain so
forever. No law can legitimize their actions and transactions.
The Martial Law Authorities in imposing Martial Law behaved
like an alien force conquering Bangladesh all over again,
thereby transforming themselves as usurpers, plain and simple.

Be that as it may, although it is very true that illegalities

would not make such continuance as a legal one but in order to
protect the country from irreparable evils flowing from
convulsions of apprehended chaos and confusion and in bringing
the country back to the road map devised by its Constitution,
recourse to the doctrine of necessity in the paramount interest of
the nation becomes imperative. In such a situation, while holding
the Proclamations etc. as illegal and void ab initio, we
provisionally condone the Ordinances, and provisions of the
various Proclamations, MLRs and MLOs save and except those
are specifically denied above, on the age old principles, such as,
Id quod Alias Non Est LIcitum, Necessitas Licitum Facit (That
which otherwise is not lawful, necessity makes lawful), Salus
populi suprema lex (safety of the people is the supreme law) and
salus republicae est suprema lex (safety of the State is the
supreme law).

In this connection it may again be reminded that those

Proclamations etc. were not made by the Parliament but by the
usurpers and dictators. To them, we would use Thomas Fullers
warning sounded over 300 years ago: be you ever so high, the
law is above you. (Quoted from the Judgment of Lord Dennings
M.R. Gouriet V. Union of Post Office Workers (1977) 1 QB 729
at page-762).

Fiat justitia, ruat caelum.

PART XXXVI: Summary
To summarise, we hold:
1. Bangladesh is a Sovereign Democratic Republic,
governed by the Government of laws and not of men.
2. The Constitution of Bangladesh being the
embodiment of the will of the Sovereign People of
the Republic of Bangladesh, is the supreme law and
all other laws, actions and proceedings. Must
conform to it and any law or action or proceeding,
in whatever form and manner, if made in violation of
the Constitution, is void and non est.
3. The Legislature, Executive and the Judiciary are the
three pillars of the Republic, created by the
 282

Constitution, as such are bound by its provisions.

The Legislature makes the law, the Executive runs
the government in accordance with law and the
Judiciary ensures the enforcement of the provisions
of the Constitution.
4. All Functionaries of the Republic and all services of
the Republic, namely, Civil Service, Defence
Services and all other services, owe its existence to
the Constitution and must obey its edicts.
5. State of emergency can only be declared by the
President of the Republic on the advice of the Prime
Minister, in case of imminent danger to the security
or economic life of the Republic.
6. The Constitution stipulates a democratic Republic,
run by the elected representatives of the people of
Bangladesh but any attempt by any person or group
of persons, how high so ever, to usurp an elected
government, shall render themselves liable for high
treason.
7. A proclamation can only be issued to declare an
existing law under the Constitution, but not for
promulgating a new law or offence or for any other
purpose.
8. There is no such law in Bangladesh as Martial Law
and no such authority as Martial Law Authority, as
such, if any person declares Martial Law, he will be
liable for high treason against the Republic.
Obedience to superior orders is itself no defence.
9. The taking over of the powers of the Government of
the Peoples Republic of Bangladesh with effect
from the morning of 15th August, 1975, by
Khandaker Mushtaque Ahmed, an usurper, placing
Bangladesh under Martial Law and his assumption
of the office of the President of Bangladesh, were in
clear violation of the Constitution, as such, illegal,
without lawful authority and without jurisdiction.
10. The nomination of Mr. Justice Abusadat
Mohammad Sayem, as the President of Bangladesh,
on November, 6, 1975, and his taking over of the
Office of President of Bangladesh and his
assumption of the powers of the Chief Martial Law
Administrator and his appointment of the Deputy
Chief Martial Law Administrators by the
Proclamation issued on November 8, 1975, were all
in violation of the Constitution.
11. The handing over of the Office of Martial Law
Administrator to Major General Ziaur Rahman
B.U., PSC., by the aforesaid Justice Abusadat
Mohammad Sayem, by the Third proclamation
issued on November 29, 1976, enabling the said
Major General Ziaur Rahman, to exercise all the
powers of the Chief Martial Law Administrator, was
beyond the ambit of the Constitution.
 283

12. The nomination of Major General Ziaur Rahman,

B.U., to become the President of Bangladesh by
Justice Abusadat Mohammad Sayem, the assumption
of office of the President of Bangladesh by Major
General Ziaur Rahman, B.U., were without lawful
authority and without jurisdiction.
13. The Referendum Order, 1977 (Martial Law Order
No.1 of 1977), published in Bangladesh Gazette On
1st May, 1977, is unknown to the Constitution, being
made only to ascertain the confidence of the people
of Bangladesh in one person, namely, Major
General Ziaur Rahman, B.U.
14. All Proclamations, Martial Law Regulations and
Martial Law Orders made during the period from
August 15, to April 9, 1979, were illegal, void and
non est because:

i) Those were made by persons without lawful authority, as

such without jurisdiction,
ii) The Constitution was made subordinate and subservient
to those Proclamations, Martial Law Regulations and
Martial Law Orders,
iii) Those provisions disgraced the Constitution which is the
embodiment of the will of the people of Bangladesh, as
such disgraced the people of Bangladesh also,
iv) From August, 15, 1975 to April 7, 1979, Bangladesh was
ruled not by the representatives of the people but by the
usurpers and dictators, as such, during the said period
the people and their country, the Republic of
Bangladesh, lost its sovereign republic character and
was under the subjugation of the dictators,
v) The Proclamations etc., destroyed the basic character of
the Constitution, such as, change of the secular
character, negation of Bangalee nationalism, negation
of Rule of law, ouster of the jurisdiction of Court, denial
of those constitute seditious offence.
15. Paragraph 3A was illegal, firstly because it sought
to validate the Proclamations, MLRs and MLOs
which were illegal, and secondly, Paragraph 3A,
made by the Proclamation Orders, as such, itself
was void.
16. The Parliament may enact any law but subject to
the Constitution. The Constitution (Fifth
Amendment) Act, 1979 is ultra vires, because:

Firstly, Section 2 of the Constitution (Fifth

Amendment) Act, 1979, enacted Paragraph 18, for its
insertion in the Fourth Schedule to the Constitution, in
order to ratify, confirm and validate the Proclamations,
MLRs and MLOs etc. during the period from August 15,
1975 to April 9, 1979. Since those Proclamations, MLRs,
MLOs etc., were illegal and void, there were nothing for
the Parliament to ratify, confirm and validate.
 284

Secondly, the Proclamations etc., being illegal and

constituting offence, its ratification, confirmation and
validation, by the Parliament were against common
right and reason.

Thirdly, the Constitution was made subordinate and

subservient to the Proclamations etc.

Fourthly, those Proclamations etc. destroyed its basic

features.

Fifthly, ratification, confirmation and validation do not

come within the ambit of amendment in Article 142 of
the Constitution.

Sixthly, lack of long title which is a mandatory condition

for amendment, made the amendment void.

Seventhly, the Fifth Amendment was made for a

collateral purpose which constituted a fraud upon the
people of Bangladesh and its Constitution.

17. The Fourth Schedule as envisaged under Article

150 is meant for transitional and temporary
provisions, since Paragraph 3A and 18, were neither
transitional nor temporary, the insertion of those
paragraphs in the Fourth Schedule are beyond the
ambit of Article 150 of the Constitution.
18. The turmoil or crisis in the country is no excuse for
any violation of the Constitution or its deviation on
any pretext. Such turmoil or crisis must be faced and
quelled within the ambit of the Constitution and the
laws made thereunder, by the concerned authorities,
established under the law for such purpose.
19. Violation of the Constitution is a grave legal wrong
and remains so for all time to come. It cannot be
legitimized and shall remain illegitimate forever,
however, on the necessity of the State only, such
legal wrongs can be condoned in certain
circumstances, invoking the maxims, Id quod Alias
Non Est Licitum, Necessitas Licitum Facit, salus
populi est suprema lex and salus republicae est
suprema lex.
20. As such, all acts and things done and actions and
proceedings taken during the period from August 15,
1975 to April 9, 1979, are condoned as past and
closed transactions, but such condonations are made
not because those are legal but only in the interest of
the Republic in order to avoid chaos and confusion
in the society, although distantly apprehended,
however, those remain illegitimate and void forever.
21. Condonations of provisions were made, among
others, in respect of provisions, deleting the various
provisions of the Fourth Amendment but no
 285

condonation of the provisions was allowed in

respect of omission of any provision enshrined in the
original Constitution. The Preamble, Article
6,8,9,10,12,25, and 142 remain as it was in the
original Constitution. No condonation is allowed in
respect of change of any of these provisions of the
Constitution. Besides, Article 95, as amended by the
Second Proclamation Order No. IV of 1976, is
declared valid and retained.

We further declare:
i) The Constitution (Fifth Amendment) Act, 1979
(Act 1 of 1979) is declared illegal and void ab
initio, subject to condonations of the provisions
and actions taken thereon as mentioned above.
ii) The ratification and confirmation of The
Abandoned Properties (Supplementary
Provisions) Regulation, 1977 (Martial Law
Regulation No. VII of 1977) and Proclamations
(Amendment) Order, 1977 (Proclamation Order
No. 1 of 1977) with regard to insertion of
Paragraph 3A to Fourth Schedule of the
Constitution by Paragraph 18 of the Fourth
Schedule of the Constitution added by the
Constitution (Fifth Amendment) Act, 1979 (Act 1
of 1979), is declared to have been made without
lawful authority and is of no legal effect.

We further direct the respondents to handover

the physical possession of the premises, known
as moon Cinema Hall at 11, Wiseghat, Dhaka,
in favour of the Petitioners, within 60 (Sixty)
days from the date of receipt of the copy of this
Judgment and Order.
In the result, the Rule is made absolute but
without any order as to costs.
Before, parting with the case, I would like to
express my deep gratitude to the learned
Advocates appearing in this case for their
unfailing assistance to us. I have enriched my
knowledge by their profound learning and
experience. I would like to put it on record my
deep appreciation for all of them.

Efll luV fkmQeu Cq LyQl ja fll k, EflE IaqpL lul jdj

hQlfa H,h,Hj Mulm qL Bj lmp iLl cMmcl A~hd lfa jSl Selm
SuEl lqje LaL eSl MumMn jahL pwhde pwnde Ll pfj SXpum
LEpm pma pwhdel k 96 AeRcV fhaZ Lle a pfZlf hBCe Hhw ham
jj OoZ Llez
flhaa E lu pwr qu McLl cmul qpe (avLme pVl, h He f)
Hhw jp Bqpe Lhl Hhw Ael Bfm hiN p.f ew 1044/2009 Hhw p.f. ew
1045/2009 kbj cMm Llez E pim fVne gl mi V Bfm cCV jeeu fde
 286

hQlfa jx agm Cpmj jqcul eaa jqje Bfm hiN Hl fZ h HL

ee A hNa 1 m ghul 2010 alM ejlfih MlS Llex
353. We, therefore, sum up as under:
1. Both the leave petitions are dismissed;
2. The judgment of the High Court Division is
approved subject to the following
modifications:-
(a) All the findings and observations in respect
of Article 150 and the Fourth Schedule in the
judgment of the High Court Division are hereby
expunged, and the validation of Article 95 is not
approved;
3. In respect of condonation made by the High
Court Division, the following modification is
made and condonations are made as under:
(a) all executive acts, things and deeds done and
actions taken during the period from 15th August
1975 to 9th April, 1979 which are past and
closed;
(b) the actions not derogatory to the rights
of the citizens;
(c) all acts during that period which tend
to advance or promote the welfare of the
people;
(d) all routine works done during the above
period which even the lawful government could
have done.
(e) (i) the Proclamation dated 8th November,
1975 so far it relates to omitting part VIA of the
Constitution;

(i) the proclamations (Amendment) Order 1977

(Proclamations Order No.1 of 1977) relating to Article 6
of the Constitution.
(ii) (iii) the Second Proclamation (Seventh Amendment )
Order, 1976 (Second Proclamation Order IV of 1976)
and the Second Proclamation (Tenth Amendment)
Order, 1977 (Second Proclamation Order No.1 of 1977)
so far it relates to amendment of English text of Article
44 of the Constitution;
(iv) the Second Proclamation (Fifteenth Amendment)
Order, 1978 (Second Proclamation Order No. IV of
1978) so far it relates to substituting Bengali text of
Article 44;
(v) The Second Proclamation (Tenth Amendment) Order,
1977 (Second Proclamation Order No. 1 of 1977) so far
it relates to inserting Clauses (2), (3), (4), (5), (6) and
(7) of the Article 96 i.e. provisions relating to Supreme
Judicial Council and also clause (1) of Article 102 of the
Constitution, and
(f) all acts and legislative measures which are in
accordance with, or could have been made under the
original Constitution.
354. While dismissing the leave petitions we are putting
on record our total disapproval of Martial Law and
suspension of the Constitution or any part thereof in any
form. The perpetrators of such illegalities should also be
suitably punished and condemned so that in future no
adventurist, no usurper, would dare to defy the people,
their Constitution, their Government, established by
 287

them with their consent. However, it is the Parliament

which can make law in this regard. Let us bid farewell to
all kinds of extra constitutional adventure forever.

Efk lu fkmQeu cM ku k, jeeu Bfm hiN pfj SXpum LEpm

pma pwhdel 96 AeRcV jSe (condoned) Llez Aaxfl jeeu Bfm hiNl
jajal fa n lM Sau pwpc pfj SXpum LEpm pma pwhdel 96
AeRcV lM (fcn pwnde) BCe, 2011 (2011 pel 14 ew BCe) fp Lle, k 3l
SmC 2011 alM bL LkLl quz
Cajd jeeu Bfm hiNl E lul hl pim liE clM ew 17-
18/2011 cul Ll quz jeeu Bfm hiN hNa 29.03.2011 Cw alM E pim liE
Bhce ef Ll Bcn fce Llez E Bcnl jdj Bfm hiN Bj lmp iLl
A~hd cMmcl lfa jSl Selm SuEl lqje LaL pwkSa pfj SXpum
LEpm pma pwhdel AeRc 96 pja pjul Se ab 31 n Xpl 2012 fk
jSe (Condoned) Llez gmnaa 31n Xpl 2012 alMl fl qa Bfm hiNl
lu jahL pfj SXpum LEpm pma pwhdel 96 AeRcV Bfe Bfe hm
ab ham qu NuRz
Bl pfih hm ku, jeeu Bfm hiNl pim liE clMl hNa
29.03.2011 alMl lu jahL Bj lmp iLl cMmcl lfa jSl Selm
SuEl lqje hueVl MyQu pwhde pwnde Llax pfj SXpum LEpm pma
k AeRc 96 fhae Ll, 1m Seul 2013 Cw alM bL al Lhl lQe qu Hhw Hl
jdj jeeu Bfm hiN phLml ph n hm deal fa Sal fa hh nM
jShl lqje Hyl eaa pwhde fZue LjVl h pcp J NZflocl 403 Se pcpl
AL flnj fZa Bjcl jm pwhdeL lr Llez LlZ pwpc LaL hQlfa AfplZ
pma pwhdel 96 AeRV fZue LlRme Sal fa hh nM jShl lqjel eaa
Mps pwhde fZue LjVl h pcphc Hhw NZflocl 403 Se pcpz Bjcl plZ
lM Lah k, Bjcl HC pwhde n mr nqcl ll heju Hhw cC mr j-hel
pjl heju ASaz
pfj LVl BCeNa cua HLSe Bj lmp iLl A~hd cMmcl lfa jSl
Selm SuEl lqje LaL al HLL MumMn jahL pwhde pwnde Ll pfj
SXpum LEpm LaL hQlL Afple fu pwhdel 96 AeRc AiLlZ pw
pjlL gljeL Efs gm ab A~hd Hhw ApwhdeL jj OoZ Ll ham Ll, k
Bjcl avLme pfj LV Lla hb quRz Bjcl pfj LVL pC m bL ab
Lm bL j LlRe hQlfa H, h, Hj, Mulm qL al fj pwnde jjmu lul
 288

jdj 2005 pmz flhaa fde hQlfa jx agm Cpmj Hyl eaa Bjcl
Bfm hiN 29.03.2011 alM pim liE clM ew 17-18/2011 Hl lu Lgel no
flLV WL pfj SXpum LEpm pma 96 AeRcV Lhl Llez palw HV pf
k, Bjcl jqe Sau pwpc pwhde (osn pwnde) BCe, 2014 (2014 pel 13 ew
BCe) fZue Ll Bjcl pwhdeL Lmj Lle, hQl hiNl paLl dea
fexfa Llez n mr hml BaaNl heju Hhw cC mr j-hel pjl heju
Bjcl ASa pwhdeL Bjl glv fmjz p LlZ Bj haje jqe Sau pwpcL
hQl hiNl fr bL pn Laa fLn LlRz
clMLll A lV fVneV fMefMih fkmQe Ll cMmjz A lV
fVnel LbJ pfih clMLl hme e k pwhdel Le hde ab Le AeRc
Hl hau OVu jqe Sau pwpc haje pwhde (os|n pwnde) BCe, 2014 fZue
LlezAbv clMLl fjZ Lla hb quRe k, pwhde (os|n pwnde) BCe, 2014
BCeV pwhdel hdehml pqa ApjpfZ ab ApwhdeLz
palw HV edu hm ku k, hueVl MyQu Bj lmp iLl A~hd cMmcl
lfa jSl Selm SuEl lqjel HLL CRu fZa pfj SXpum LEpm pma
pwhde 96 AeRcV pwhde flf Hhw jeeu Bfm hiNl lul flf Hhw phfl
Sal fa hh nM jShl lqjel eaa Mps pwhde fZue LjVl h pcphc
Hhw NZflocl 403 Se pcphcl Lj, BcnL Ahjmue Lll pjm; ab pwhdel
fhel flf ab pwhde flf ab ham BCez
pwpc LaL hQlL AfplZ hh BjlL, kl, klS, Amu, LeX Hhw
ilapq Ea cnma hlSjez AflcL pfj SXpum LEpm dj
fLe hlSjez
pfj SXpum LEpm pma 96 AeRcV A~hdih pwhde pwnde Ll
pwhde pwkSe LlR pjlL nwMm iwNLl ab Bj lmp iLl A~hd lfa jSl
Selm SuEl lqje al hueVl MyQuz AflcL pwpc LaL hQlL AfplZ hh
pma 96 AeRcV jm pwhde fZue LlRme Sal fa hh nM jShl lqje Hl
eaa Mps pwhde fZue LjVl h pcphc Hhw NZflocl 403 Se pcphcz
palw HV edu hm ku k, pjlL S LaL hueVl MyQu fZa pfj
SXpum LEpm hQl hiNl deal flfz pwhdel fheu hZa jqe Bcn
pjql flf ab ApwhdeL Hhw pwhdel jm LWjl flfz
aCa Bjl cM abLba pfj SXpum LEpm Hl BJau hQl hiN
HaC de Rm k, qmj Mae hej hwmcn Nw (30 X.Hm.Bl (Hp.p) 1978 fa
 289

207) jjmu pfj LVl hQlfa gSm jej, l hej qS Suem Bhce Hhw
Aee (32 X.Hm.Bl (H.X) 1980 fa 110) jjmu hQlfa lm Cpmj pwhdeL
fLjnel ab pjlL gljel eQ e ce ab pwhdeL pjlL glje Hhw Bcnl
eQ jj OoZ Llez
Bjcl pwhde mMa Hhw fu Aflhaeuz dj Hhw HLih Aflqk qm
pwhde, pwhdel fhe, fheu EMa Sau jl Se Bjcl k IaqpL pwNj
Hhw k pLm jqe Bcn Bjcl hl SeNZL Sau j pwNj BaeuN J hl
nqcNZL fZvpN Lla E LlRm pC pLm jqe BcnpjqL, jqe jk Hhw
deal QaeL dlZ Ll Hhw Hl pb pjp lM Hhw pwhdel au iN hZa l
flQmel jmeal pb pjp lM Hhw jmL AdLlpjqL eeaj h hcj raN
e Ll pwhde pwnde Ll ka flz

Efk BmQe Hhw fkmQeu Bjl jaja qm, jqe Sau pwpc pwhdepja
ihC pwhde (osn pwnde) BCe, 2014 (2014 pel 13 ew BCe) fZue LlRez
pwhde (osn pwnde) BCe, 2014 (2014 pel 13 ew BCe) pwhde pjaz hQl
hiNl paLl dea pja bLh pwpc LaL hQlfa AfplZ fu pma 96
AeRcV hcje bLmz LlZ pwpc LaL hQlfa AfplZ fu pma 96 AeRcV
qm Bjcl jm pwhde Hl Awn ab pwhdel jm LWjz
kqa Ai hQlLl pwLV ce ce fLV BLl dlZ LlR, pqa Aj je Ll
pfj LVl hQlLcl hup 75 hvpl Ea Ll HLih fuSe Hhw Aflqk qu
fsRz pC mr Bj jqe Sau pwpcl eLV pwhdel 96 AeRcl (1) Ef-dl
pwndefhL hQlLcl hup 67 Hl m 75 Lll fh LlRz
Bj hQlL AfplZ pw hwmcn pfj LVl hQlLcl ApcQlZ h Apjb
(ac J fjZ) BCe, 2016 noL hml Mps fkmQe Llmjz hwmcn pfj LVl
hQlLcl ApcQlZ h Apjb (ac J fjZ) BCe, 2016 noL hmV SelafZ hdu
E hmVl hou pwhdel AeRc 106 jahL jqje lY~fa pfj LVl jaja
NqZl ej jqje Bfm hiNl hhQel Se flZ Llm jqje Bfm hiN u
hhQeu Efk eel fl hmV pfL jqje lfaL pfj LVl jaja flZ Lla
flhez aqm houV phQu pclih pLml eLV NqZkNih ef qh hm Bjl
hnpz pwhdel AeRc 106 ejlfx

pfj LVl EfcjmL 106. kc Le pju lfal eLV fauje qu k,

HMaul BCel HClf Le fn Efa qCuR h Efel
phe cM cuR, kq Hje dlel J Hje
Selapf k, pC pfL pfj LVl jaja NqZ
 290

Ll fuSe, aq qCm ae fnV Bfm hiNl

hhQel Se flZ Lla flhe Hhw E hiN u
hhQeu Efk eel fl fnV pfL lfaL u
jaja fe Lla flhez

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