Members of Parliament are Public Servants–– The oath that they took referred to their obligation to “faithfully discharge the duty” upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word “office” has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully. .....Anti Corruption Commission =VS= Md. Shahidul Islam & others, [1 LM (AD) 356] ....View Full Judgment

Responsibility of the High Court as custodian of the Constitution to maintain the social balance–– It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good. View that no principle of natural justice was violated in this case. The Syndicate of the University, holding inquiry, reached the right conclusion that admission test had been vitiated by practising unfair means on a mass scale by marketing the question paper before holding examination and the University had every right to cancel the admission test and order that a fresh examination be held. Allow the appeal and set aside the order of the High Court Division and affirm the decision taken by the Syndicate of the Islamic University. .....Islamic University =VS= Farhana Akhter Liza, [5 LM (AD) 34] ....View Full Judgment

The Rule of Law–– The rule of law is the foundation of a democratic society, our Constitution has given due importance to it in several articles, and it has been accepted as one of the basic structures of the Constitution. Every citizen, whatever his rank or status, is subject to the laws of the land and to the jurisdiction of the courts. Without rule of law there would be anarchy. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28] ....View Full Judgment

Rule of law–– Rule of law is the basic rule of governance of any civilized society. The scheme of our Constitution is based upon the concept of rule of law. To achieve the rule of law the Constitution has assigned an onerous task upon the judiciary and it is through the courts, the rule of law unfolds its contents. One of the important concept of the rule of law is legal certainty. Judicial review of administrative action is an essential part of rule of law and so is the independence of judiciary. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Constitution Matter:–– The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme. .....BADC & others =VS= Md. Abdur Rashid & others, [1 LM (AD) 388] ....View Full Judgment

Constitution Matter:–– In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Constitution Matter:–– Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Constitution Matter:–– We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Constitution Matter:–– Writ petitioners did not challenge any disciplinary action taken against them by the Inspector–General of Police. The authority did not give the directions in accordance with the Police Act or the Bengal Police Regulations or the Ordinance of 1969. The writ petitioners also did not challenge the propriety of the imposition of black marks upon them. They have challenged the embargo imposed upon them by the Police Headquarter, which directly affected their right to be considered for promotion to the next higher post. Clause (5) of Article 102 does not stand in their way of making an application under Article 102(1) of the Constitution subject to the provision of Article 45 of the Constitution. .....Bangladesh & others =VS= Md. Abdus Satter & others, [1 LM (AD) 378] ....View Full Judgment

Constitution Matter:–– A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field. .....Bangladesh & others =VS= Md. Abdus Satter & others, [1 LM (AD) 378] ....View Full Judgment

In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

Criminal contempt and a violation of the provisions of the Constitution–
The respondents have intentionally made the utterances as reported and have indeed expressly admitted their guilt. They have acted in violation of law and are in breach of their oath of office to preserve, protect and defend the Constitution. In their exuberance, they have undermined the sanctity of the institution of the judiciary by questioning the justice delivery system. The Constitution enjoins all citizens to abide by the law and makes the decisions of the Supreme Court law to be given effect to by all. The respondents have scandalized the Supreme Court in a highly motivated manner in order to influence the judgement of the Court. This is gross criminal contempt and a violation of the provisions of the Constitution. The contemnors deserve no sympathy other that the lenient view taken in awarding sentence which has already been expressed in the short order passed by this Court on 27th March, 2016. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment

To invoke the fundamental rights conferred by Part III of the constitution, any person aggrieved by the order, action or direction of any person performing the functions in connection with the affairs of the Republic, the forum is preserved to the High Court Division. The conferment of this power cannot be curtailed by any subordinate legislation - it being the inalienable right of a citizen. This power cannot be conferred upon any Tribunal by the Parliament in exercise of legislative power or by the High Court Division or the Appellate Division in exercise of its power of judicial review. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Chapter II of Part VI
The High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution–
When there is a deviation from the constitutional arrangements or constitutional arrangements have been interfered with or altered by the Government or when the Government fails to implement the provisions of Chapter II of Part VI of the Constitution and instead follow a different course not sanctioned by the Constitution, the High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution. This means the Apex Court of the Country is competent to issue directions upon the authorities concerned to perform their obligatory duties whenever there is a failure on their part to discharge their duties. .....Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40] ....View Full Judgment

The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme. .....BADC & others =VS= Md. Abdur Rashid & others, (Civil), 2016-[1 LM (AD) 388] ....View Full Judgment

Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment

The principles of natural justice:
The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man cannot be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse judex in propria causa). The contents of these principles vary with the varying circumstances and those cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge…V... Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fairly and in accordance with natural justice. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
The principle of natural justice should be deemed incorporated in every statute unless it is excluded expressly or by necessary implication by any statute. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
The principle of reasonableness is used in testing the validity of all administrative actions and an unreasonable action is taken to have never been authorized by the Legislature and is treated as ultra vires. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11
The authority cancelled the lease of the petitioners and in the same breath called upon them to appear before the authority on 12.04.2011 with necessary valid papers, if any. What we are driving at boils down to this: the authority ought to have afforded the petitioners an opportunity of being heard first and thereafter on perusal of the inquiry report and other materials, the authority could have cancelled the lease of the petitioners with reference to the case land; but the authority chose to cancel the lease of the petitioners by keeping them in the dark and thereafter asked them to appear before the authority on a certain future date with their valid papers, if any. To be precise, there is no point in affording the petitioners an opportunity of being heard after cancellation of the lease. Generally speaking, the hearing of the petitioners by the authority should have been a pre-decisional phenomenon; it should not be a postdecisional phenomenon. ...Mainul Hossain & anr Vs. Bangladesh & ors., (Civil), 9 SCOB [2017] HCD 11 ....View Full Judgment