High Court cannot repeal any Act of Parliament: lawyer
Leave hearing against HC judgment on fifth amendment continues
Dhaka, Jan 21 (UNB)-Sticking to his guns in the legal battle over the Constitution Fifth Amendment, veteran lawyer TH Khan Thursday told the apex court that the High Court division doesn’t have the power under article 102 on writ jurisdiction to repeal any Act of Parliament.
“Such power can be exercised by the sovereign Parliament only,” he said, citing article 142 of the constitution.
TH Khan argued that the High Court division under its writ jurisdiction has the power to take up any person’s impugned order or action for judicial scrutiny. But the Parliament does not come under the nomenclature of person.
To underpin his argument Khan referred to clause 5 of article 102 that reads: In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
Putting forward a series of questions before the apex court Khan asked who is to execute the judgment of the High Court. “Can the High Court division dictate the Parliament to execute its ruling; can the High Court snatch the power of the Parliament by repealing the Act of Parliament?”
No such power exists under the constitution for the High Court division, so it needs new enactment for the High Court by the Parliament in this regard, he contended.
Khan said since the High Court does not enjoy such power, the past Awami League government (1996-2001) had to repeal the Indemnity Ordinance promulgated by the martial law authority through parliament.
They (Awami League) did not turn up with a writ petition challenging the validity of the Indemnity Ordinance that barred the self-confessed killers of Bangabandhu Sheikh Mujibur Rahman from being tried, he added.
“Even, during their past regime, they did not move to the High Court with a writ petition challenging the validity of the fifth amendment to the constitution that ratified all the junta acts and actions after August 15, 1975 changeover,” he pointed out.
He said judiciary, as one of the organs of the state, cannot encroach upon the functions of the Parliament, another state organ.
“So the application for leave to appeal against the impugned High Court judgment on the fifth amendment should be granted,” Khan said in conclusion of his submissions for BNP secretary-general Khandaker Delwar Hossain as an intervener in the case.
Barrister Moudud Ahmed, the counsel for three lawyer-interveners, argued that issuance of the High Court order following a writ petition had gone beyond its jurisdiction.
The High Court could give remedy to the writ petitioner over the possession of Moon Cinema Hall without declaring “illegal and void” the fifth amendment.
He argued that the constitution did not provide the High Court any power of condoning, which it exercised in its fifth-amendment judgment.
In support of the fifth amendment, the former law minister said it was passed by the Parliament to maintain the continuity of the state functions and it was done to facilitate doing away with the fourth amendment.
“Besides, the Appellate Division of the Supreme Court had already legitimized the junta regimes in disposing of cases,” he argued.
Moudud, who earlier had served as a functionary of military regimes, said the military actions have now become part of the constitution.
He alleged that the incumbent government wants to “use” the highest judiciary for political purpose to get the fifth amendment nullified despite its two-thirds majority in parliament.
During the hearing, Moudud did not hesitate to tell the court that he had occasions to serve the two military dictators --Gen Ziaur Rahman and Gen HM Ershad. And his frank admissions triggered adverse reaction among the lawyers present.
The hearing remained inconclusive. It will resume Sunday.
“Such power can be exercised by the sovereign Parliament only,” he said, citing article 142 of the constitution.
TH Khan argued that the High Court division under its writ jurisdiction has the power to take up any person’s impugned order or action for judicial scrutiny. But the Parliament does not come under the nomenclature of person.
To underpin his argument Khan referred to clause 5 of article 102 that reads: In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
Putting forward a series of questions before the apex court Khan asked who is to execute the judgment of the High Court. “Can the High Court division dictate the Parliament to execute its ruling; can the High Court snatch the power of the Parliament by repealing the Act of Parliament?”
No such power exists under the constitution for the High Court division, so it needs new enactment for the High Court by the Parliament in this regard, he contended.
Khan said since the High Court does not enjoy such power, the past Awami League government (1996-2001) had to repeal the Indemnity Ordinance promulgated by the martial law authority through parliament.
They (Awami League) did not turn up with a writ petition challenging the validity of the Indemnity Ordinance that barred the self-confessed killers of Bangabandhu Sheikh Mujibur Rahman from being tried, he added.
“Even, during their past regime, they did not move to the High Court with a writ petition challenging the validity of the fifth amendment to the constitution that ratified all the junta acts and actions after August 15, 1975 changeover,” he pointed out.
He said judiciary, as one of the organs of the state, cannot encroach upon the functions of the Parliament, another state organ.
“So the application for leave to appeal against the impugned High Court judgment on the fifth amendment should be granted,” Khan said in conclusion of his submissions for BNP secretary-general Khandaker Delwar Hossain as an intervener in the case.
Barrister Moudud Ahmed, the counsel for three lawyer-interveners, argued that issuance of the High Court order following a writ petition had gone beyond its jurisdiction.
The High Court could give remedy to the writ petitioner over the possession of Moon Cinema Hall without declaring “illegal and void” the fifth amendment.
He argued that the constitution did not provide the High Court any power of condoning, which it exercised in its fifth-amendment judgment.
In support of the fifth amendment, the former law minister said it was passed by the Parliament to maintain the continuity of the state functions and it was done to facilitate doing away with the fourth amendment.
“Besides, the Appellate Division of the Supreme Court had already legitimized the junta regimes in disposing of cases,” he argued.
Moudud, who earlier had served as a functionary of military regimes, said the military actions have now become part of the constitution.
He alleged that the incumbent government wants to “use” the highest judiciary for political purpose to get the fifth amendment nullified despite its two-thirds majority in parliament.
During the hearing, Moudud did not hesitate to tell the court that he had occasions to serve the two military dictators --Gen Ziaur Rahman and Gen HM Ershad. And his frank admissions triggered adverse reaction among the lawyers present.
The hearing remained inconclusive. It will resume Sunday.
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