MOFIZUR RAHMAN KHAN Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) While concurring with the conclusion arrived at on the appeals by my, learned brother Shahabuddin Ahmed, J., I think it appropriate to make some observations of my own on the constitutional question of validation of an invalid law, struck down earlier as repugnant to a Fundamental Right. In this particular case section 9 (2) of Public Service (Retirement) Act (Act XII) of 1974 was struck down owing to its repugnancy to Articles 27 and 29 of the Constitution. The question is whether the validation of the said section and the action under the invalid law sought to be validated under the present law is constitutionally valid. The Public Servants (Retirement) (Amendment) Ordinance (No. VI of 1981) of 1981 has been given retrospective operation in seeking the revalidity of the earlier law. The infirmity which led to the invalidity of the earlier section has been removed by insertion of the phrase 'public interest and that has been made retrospective giving it a retrospective operation. Parliament has further added section 5, which attempts to validate the action taken under the earlier repugnant section.

(2.) Decision has already been given. Now while agreeing with the conclusion, some general observations of mine is called for, It Is first to be observed that Bangladesh Parliament by virtue of Article 65 has plenary or supreme legislative power conferred upon it, and this power is exercisable subject to the Constitution The Constitution puts two bars on the legislative power of the Parliament, one is that Constitution being the supreme law of the State any other law inconsistent with it, shall to the extent of inconsistency be void The second is set out in the Fundamental Rights Chapter or Bill of Rights Chapter. Article 26 at the beginning of the Chapter of Fundamental Rights, says that all existing laws inconsistent with the Fundamental Rights shall, on the commencement of the Constitution, to the extent of inconsistency, become void, and the State shall not make any law Inconsistent with the Fundamental Rights, and any law to made shall to the extent of the consistency be void.

(3.) Before entering into this question, I will refer to some of the decisions from a long string of cases cited at the Bar. They are: United Province vs. Atiqa Begum, A.I.R. 1941 F.C. 16; Shri P.C. Mills vs. Broach Municipality, AI.R. 1970 S.C 192; U. N, Saksena Vs. State of Madhya Pradesh, A.I.R, 1976 S C 2250; and Tofazzal Hossain Vs. Province of East Pakistan, 15 D.L.R, (S.C), 139. I will, however, refrain from making any lengthy discussion on the cited decisions. Constitution should be interpreted as an organic instrument keeping its dynamic character in view. More specifically regard may be had to the political, social and economic conditions and their place in the historical setting and the present international milieu. The decisions of courts of other jurisdiction will serve as a helpful guide, but never an authority.