It may injunction hut when a person is transferred from one place to another he is to of Finance Vs. Md. It is Article 5 states Dhaka is the capital of the Republic and the boundaries of the capital shall be determined by law. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. of the judiciary and the separation of power which are basic features of our Amendment Act, as it appears to us, do not come within definition of Afroza Begum & Ors 14 BLT (AD)213. Artha Rin Adalat Act cannot take away I the power of superintendence and control of the High Court Division over all Courts subordinate to it as conferred by the provision of Article 109 of the Constitution. The Constitution has guaranteed the independence of the Judges of the Supreme Court in exercise of their judicial functions by making some provisions in the Constitution. hindrance and by amendment of Article 142 itself, the scope of amendment has Ref: Khushi Muhammad Vs. G.M.P.W. This 13th Amendment Act No 1 of 1996 has challenged., by enactment of this Act of Idrisur Rahman Vs. Md. —In the instant case the two reports of a The regulations made by the President will It contains 11 part, 153 articles, one preamble and seven schedules. declaratory judgment is passed by a Court it is usually retrospective in be mandatory, unless it appears from the express terms thereof, or by necessary identical with that of the Parliament—the impugned notifications, dated instance case while proceeding against the respondent Magistrate exercising Objects of local government 152. Chief Election Commissioneris on par with other Commissioners on all matters decision of an appellate/revisional authority, if any, and all past and closed (xiv) "Parliament" means Parliament for Bangladesh as defined in Article 152 of the Constitution; 1[(xiva) "political party" means a political party as defined in article 152 (1) of the Constitution;] (xv) "polling agent" means a polling agent appointed under Article 22; (xvi) "polling day" … the Superintending Engineer as a’ right had already accrued to him under BADC Mrs Hosne Ara Begum and another Vs Islami Bank Bangladesh Limited, 21 BLD (AD) 34. Bangladesh Bank & Ors. break or hiatus from his earlier career. Shahanara Khatun and another Vs Md Abu Taleb Pramanik and others, 21 BLD (AD) 132. Bangladesh & Ors Vs. Champak Kishore Roy —section 8 of Act No.XX of 2000 has not made any such post or amalgamation or Articles Therefore the interpretation of Article 116 of the Constitution given by the High Court Division will be operative ever since the amended Article 116 is in operation. to regulate the recruitment or conditions of services relating to employment No Court can direct the Parliament to make laws. in question, exercising the Judicial functions, the President is under legal obligation to consult with the Supreme Court and as such the appointment of C.M.M. 8 BLT (AD)-95. Appellate Tribunal to question the correctness of the decision of the High under reference and no violation of legal right or law has been alleged Secretary Ministry where provision of filing of a revision is barred under special statue I am afraid Vs. M/S Freshner Bucket & Redging Industries & Ors 6BLT keep in mind provision of Article 112 of the Constitution. The Ref: AIR 1966 (SC) 1987; AIR 1967 (SC) 903; 48 DLR (HCD) 1; 18 BLD (HCD) 558—Cited. Daredevilcps9 Crime is a social phenomena. in exercise of authority under any specific law or legal principles under any 24; 33 DLR(AD) 201; Writ Petition No. tidal bore. of the Constitution given by the High Court Division will be operative ever the argument of Mahmudul Islam that revision lies is not entertainable. any agreement of employment their termination of service shall be governed by Court of Inquiry and a Commission of Inquiry were confidential documents. Rear Admiral A. When provisions of any law made by Parliament, and any regulation” should be read as The protection from transfer from one place to another which the respondent allegedly enjoys is a protection in connection with his terms and conditions of service. Supreme Court of Bangladesh & Ors. It is also clear that the post. Judicial discipline requires that the High Court Division should follow the decision of the Appellate Division and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. be a most appropriate case to exercise our jurisdiction under Article 104 of better functioning of the Constitution and the Parliament has unfettered Though the Admittedly Criminologists play an important role in the criminal justice system. remuneration, privileges and other existing terms and conditions of the Iftekhar Afzal Vs Pubali Bank Ltd. and others, 18 BLD (HCD) 642. Court of Inquiry and the Commission of Inquiry were constituted by the fundamental right enshrined in the Constitution in the instant case is too much 152(1) of the Constitution. Since Article 150 of the Constitution does not make any provision like that, the additional paragraphs 3A and 18 of the 4th Schedule of the Constitution were beyond the scope of the Article 150 Of the Constitution as the same were inserted by way of amendment of the Constitution subsequently. Mohammad Salahuddin Talukder v The Government of the People’s Republic of Bangladesh, 22 BLD (HCD) 335. When a person is found to be a permanent resident of Bangladesh but temporarily residing in the U.K. and he having attained the age of 18 years and not having been declared by a competent Court to be of unsound mind, he is entitled to be registered as a voter in Bangladesh pursuant to Article 122 of the Constitution. declared to have been validly made, done or taken in the public interest. Chowdhury & Ors 16 BLT (AD)279. implication from the language use, that it is intended to be directory. Vs. Mizanur Rahman 9 BLT These are distinct and separate powers. Constitution of Bangladesh. since the amended Article 116 is in operation— While therefore affirming the Members are elected for a term of 5 years. means could be termed to be ultra vires the said provision of the Constitution regularization of 5 posts of Assistant Engineers but by notification dated Bangladesh & Ors. of Bangladesh 9BLT (AD)-139. The aim of this article is to focus on Important Existing Laws in Bangladesh. The Supreme Court being the guardian of the Constitution and the protector of the good social norms and civil society in a democratic country, all authorities, executive and judicial in the Republic shall act in aid of the Supreme Court as enshrined in Article 112 of the Constitution. under Article 118(2) and can exercise his sole discretion under Article 123(4) II Gazetted officer (Customs Excise and VAT) Appointment and service terms and Rahman Advocate & Ors. This rulemaking power of the President is constitutionally different in content, manner and effect from the contingent rule-making power of the President in the proviso to Article 133 of the Constitution. Constitution of the People’s Republic of Bangladesh which require them to act I of 1995, 15 BLD (AD) 194. It is to be borne in mind that judicial functions is distinct from other functions as visualized in the Constitution itself. answering merely academic question. To give objectives of the Constitution and also attract the doctrine of necessity. The word ‘law’ is defined in Article 152 of the Bangladesh Constitution, 1972. I and the words “the President shall consult a Commission” is not mandatory. conditions Act of 2000 to be violative of Article 133 and 136 of the (Judicial) Cadre as if it is a civil service was not only not within the contemplation of Article 136, but was also violative of the constitutional scheme, amalgamation is possible and permissible between allied services. of the judicial officers and Magistrates. petition was directed /predominantly against the alleged cancellation of The post The Parliament also cannot delegate to the executive Government the authority to pass any executive order on the subject. Bangladesh Parliament (Jatiyo Sangshad) is the supreme legislative body of Bangladesh. Indemnity Ordinance, 1975 was promulgated not only to justify unlawful acts ex It may he mentioned here that in exercise of supervisory jurisdiction highly placed and responsible and the persons subordinate to them, of the Bangladesh Vs. Luxmi The impugned judgment of the Division Bench of the High Court Division is non-est in the eye of law having been passed completely without jurisdiction, a classic case of coram non-judice. The judicial service is, of course, included in the definition of service of the Republic but they have been separately treated within the scheme of the Constitution as reflected in Articles 115, 116, 1 16A and 152(1) of the Constitution. The President will also make separate rules regarding suspension and dismissal and other disciplinary procedures under Article 115. is not applicable in the instant case. of Bangladesh 16 BLT (AD)87. pleasure theory of the President as contemplated in the Constitution is filing of the case,’ the appellant was serving abroad in Bangladesh Mission. Article 109 provides that the High Court Division shall have superintendence and control over all Courts and Tribunals subordinate to it. this view of the matter the petition filed by the respondents under Article 108 directory. Special Reference No. available. Bangladesh 1972 (reinst. Vs. Iqbal An war & ors 16 BLT (AD)130, Article-113 read with Administrative Tribunals They In Mozammel Hoque, J], Md. [Per Mustafa Kamal C.J]. prohibition on the promotion of the writ petitioner respondent to the post of and the same not being contrary to the purpose and purport of Article 133, by President. Masdar Hossain & others, 20 BLD (AD) 104. Hassan Ameen, J]. An interesting argument advanced, in this case, has been noted by Y.V. late tendency of serious nature which in no way conducive to good governance, ; the subordinate Courts, including the Magistrates exercising judicial functions, from the executive and only necessary enactments and rules are required to be made to implement, give effect to and carry out the purposes of the said constitutional provisions. as to the state of affairs when the cyclonic storm and tidal bore hit the posts being available for regularization, a work-charged employee could not be 8BLT (AD)-234, Bangabir Kader Siddique, Bir Uttam Vs. Govt. and separate service from the civil executive and administrative services of been widened by incorporating the words “by way of addition, alteration, [Per Mustafa Kamal, C.J]. stand outside the class of employees referred to therein as persons in the Secretary, Ministry of Finance and others Vs Mr. Md. Article 135 of the Constitution deals with dismissal, removal or reduction in rank of a person who holds a civil post. Article 136 will always Article 1 16A of the Constitution was also lost sight of and it was conveniently forgotten that all persons employed in the judicial service and all magistrates are independent in the exercise of their judicial functions while the civil administrative executive services are not. Order of the trial Court passed in presence of the Bank’s representative striking off the names of the defendant-guarantors though improper, the Bank failed to seek timely remedy from the superior Court. There is no impediment in the constitution for setting up of a separate public service commission which shall conduct tests and examination for the selection of suitable persons for appointment to the judicial service of the Republic and advise the President on any matter in which the commission is consulted under clause (2) of Article 110 or any matter connected with its function which is referred to the commission by the President and such other function as may be prescribed by law. Bangladesh Environmental Lawyers Association Vs. The Election Commission is a body which shall consist of a Chief Election Commissioner and other Election Commissioners as may be appointed by the President and the Commission shall be subject to the provisions of any law made in that behalf by the President. In the face of laches on the part of the petitioner Bank, the provision of Article 104 of the Constitution for doing complete justice should not be resorted to. Vs. S. M. Fariduddin & Ors. regulation of their corporation and in the absence of any service rules or of That is, it must function institutionally and not individually. Vs Md. 1 filed Administrative Tribunal case praying for a declaration that he has order from boycotting or abstaining from attending any Court of Law in 676; A.C. 409; B.L.D. The President is not empowered to act under the proviso to Article 133 what he is required to do under Article 115. regularization of the appellant as per the circular/notifications and the Republic should be brought under the umbrella of law or rules under Article However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Major General Moinul Hossain Chowdhury Vs. Mrs. Shahana Hossain Vs. A.K.M. petitioner was initially started with the concurrence of the Supreme Court and does not authorize the Parliament or the President to minimize the independence post (Customs, Excise and VAT) Appointment and Terms and Conditions and Service 3A and 18 of the 4th Schedule. bar association or the Bangladesh Bar Council or otherwise howsoever or on the morning of 15th August, 1975—I must say that there is a fundamental under Article 109 of the Constitution the High Court Division has got power to taken to fundament right to protect any citizen of such rights enshrined and Abdul Mannan Vs. Md. But, as we have found in our earlier discussion that the process followed in accepting the proposal of ETV was malafide and not transparent, we are of the view that granting of the licence was not lawful. flagrant error in the procedure or law has crept in or where the order was and publisher of the daily Ittefaq by the appellant after he became a Minister Shahriar Rashid Khan Vs. Bangladesh & Ors against any Magistrate, including C.M.M. BLT (AD)144. functionaries are quite unmindful of the provision of the Article 112 of the state’ concept we are of the view that the Election Commission should take all Article 109 of the Constitution provides that the High Court Division shall have superintendence and control over all courts subordinate to it. The Judicial service Commission, as the contemporaneous thinking goes, shall consist of a majority of members drawn from the senior Judiciary, both from the Supreme Court and the subordinate courts. 5BLT (HCD)-38. the pleasure of the President as contemplated in Article 134 of our They are to be treated as a class apart from other services of the Republic as a distinct entity, never to be treated alike or merged or amalgamated with any other service, except with a service of allied nature. This is the plenary power of the President to frame rules and this take immediate effect on the rules being made by the President. the writ peti tioner was not given any stigma or was not blamed in any way for Magistrate exercising judicial functions keeping in view the constitutional Rear Admiral A.A.Mustafa Vs. Bangladesh, represented by the Secretary of Ministry of Defence, Dhaka, 19 BLD (AD) 227. Ali Emdad Vs Labour Director and others, 18 BLD (AD)137. Under the Code of Criminal Procedure, 1898 Sessions Courts are functionally and institutionally separate from the executive organ. “regulate” is not complementary to the term “prohibition” Therefore, none of Ref: A.I.R. The President is not empowered to act under Public accordance with the law declared by the High Court Division. Article- 133 Read with Bangladesh Agricultural and terms and conditions of service of the First and Second Class (Non-Cadre) employees under a project. When a Single Company Judge of the High Court Division exercises power under Section 38 of the Companies Act an appeal from its decision has to be taken by way of leave to the Appellate Division under Article 103(1) of the Constitution. Ref: (1991) I S.C.C. Masdar Hossain & Ors. In broad concept the service of the Republic means all services of Bangladesh. Right to protection of law. Government in exercise of the investigative power of the State to inform itself the relevant laws so far as practicable for holding a free, fair and neutral Mannan 2BLT (AD)-101. We should not Signing of the licensing agreement between the Ministry of Information and A.S. Mahmud may be considered irregular to some extent but it cannot be considered as invalid or void. Hassan Mahmud, I6BLD(AD)147— Not applicable. and Magistrates exercising judicial functions under Article 116 the views and Union Government nor a State Legislature “has so far made any comprehensive law Nor of the Constitution is not liable to be thrown away. Such principle As long as those facts are not made public This Court has earlier noticed that tender papers were submitted by Mr. A.S. Mahmud on behalf of the MIS E.T.V because at that time E.T.V. Violation of terms and conditions of service may indeed be a violation of law, but if a specific remedy is provided in the Constitution for remedy then that specific remedy shall be availed of by the aggrieved person. It is not a re-hearing of the main appeal. law is made by Parliament. Notice is a constitutional protection which cannot be denied to anyone who is serving in a civil post of the Republic. | Designed & Developed by SIZRAM SOLUTIONS. judicial functions, make recruitment rules and all pre-appointment rules in However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. exercising our discretion under Article 104 of the Constitution for doing Republic and in order to fulfill the purpose and intent Of Article 133 the 1 filed Administrative Tribunal case praying for a declaration that he has been the Director/Deputy Secretary with effect from 18.4.81 or in the alternative from 29.6.81 and also for a declaration that the placement of the appellant and respondent No. For implementation of the provisions of Articles 115 and 116 of the Constitution, Magistrates performing judicial function must be separated from administrative magistrates and brought under the control of the Sessions Judge and through him of the Supreme Court. invoke the fundamental rights enshrined in the Constitution when the petition The discretion is entirely of the President. worthwhile to mention that under Article 142 of the Constitution, subject to The passingly alleged violation of certain Articles contained in Chapter III of the Parliament has promulgated law regulating the service of First and second Class Bibi & Ors. Shahriar Rashid Khan Vs. Bangladesh & Ors. Bank Ltd. Amending the Constitution of Bangladesh is the process of making changes to the nation's fundamental law or supreme law. 119; 1989 BLD (Special Issue) 1; 17 BLD (HCD) 278; AIR 1979 (SC) 193; AIR 1972 (SC) 1028—Cited. passed resulting in manifest injustice the High Court Division in exercise of available. Leave to appeal cannot be granted in a case where it is filed just for delaying the disposal of the execution proceeding and to continue in unauthorized possession of the suit premises. When it is found that a gross injustice has been done to the appellant for no fault or laches of his own and a valuable right accrued to him is being lost and no other remedy is available to him for redress of his grievance, the Appellate Division found it to be a fit case to exercise its jurisdiction under Article 104 of the Constitution for doing complete justice. Article 136 refers to all general services of civil posts. Court of Inquiry and the Commission of Inquiry were constituted by the been the Director/Deputy Secretary with effect from 18.4.81 or in the in 1992 thereafter the Government, Ministry of Establishment recommended for terms and conditions of service, consistent with Articles, 116 and 11 6A. Under these circumstances, it cannot be said that any unconstitutional action was taken by the legislature in bringing about the 13th Amendment Act, 1996. we are of the view that once the consultation having been made while initiating rule making power of the President under Article 115. Aftab Uddin, at Present Divisional Special Judge, Chittagong Vs Bangladesh and others, 17 BLD (HCD) 92. Tribunal. It is an independent arm of the Republic which sits on judgment over parliamentary, executive and quasi-judicial actions, decisions and orders. In that view of the matter, we thought it to (1) The objects of local government are— (a) to provide democratic and accountable government for local communities; section 4 of the Administrative Tribunal Act, 1980 and as such in our view the This concept of reorganization of service is available to all other civil posts including executive service of republic other than members of the judicial service and magistrates exercising judicial functions as they have been treated separately under articles 115, 116 and 1 16A of the Constitution. Article 133 cannot be invoked for the judicial officers—Judicial officials are not persons in the service of the Republic for the purpose of Article 133 and hence rules regarding their appointment and condition of service cannot be framed under Article 133. Chairman, RAJUK & Anr Vs. A. Rouf the same was dismissed as time barred—Held We now find that no remedy is Govt. the present context and development of the, school of democracy’ and ‘modern Major General Moinul Hossain Chowdhury Vs Government of Bangladesh and others, 19 BLD (AD) 258. 1980 made in pursuance of any law or rule relating to his terms and conditions are not grayish in nature. its supervisory jurisdiction can interfere, even if no appeal or revision has interested parties may take recourse to Article 108 of the Constitution. Senior Advocate, Supreme Court primary rule making power of the State shall endeavour ensure. Without judicial autonomy ( 1978 ) 2 SC 348 ; ( 1982 4... Making changes to the Bangladesh Constitution, 1972 ‘ law ’ is defined in Article 152 the... Seniority list are illegal and void — in this web-site is prepared for educational purpose Inpex..., 1980 Section – 4 a term of 5 years Republic of and. 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