A Judicial Precedent based approach to the Effect of Unconstitutional Statute in Bangladesh

- Md. Khaled Miah

JUDICIAL

Published On - June 7, 2017 [Vol. 6, Jan - Jun, 2017]

1. Introduction:

The Constitution of the People’s Republic of Bangladesh is a written one and it is recognized as the supreme law of the land by article 7(2) of the Constitution [[i]]. Though the parliament has been vested with the authority of enacting laws, it has to enact laws within the limits prescribed by the Constitution. If any law enacted is inconsistent with the Constitution, that law or that particular portion of the law can be declared void and unconstitutional by the judiciary in exercise of its judicial review power that is one of the basic structures of the Constitution [[ii]]. But a question recurrently arises as to what are the consequences upon statute declared unconstitutional? Does such declaration have the effect of repealing a statute or does the statute become inoperative from the time of the decision which declares it unconstitutional, or is the statute to be considered void ab initio [[iii]] from the date of its enactment by the parliament? The answer may be both in the affirmative and in the negative considering consequences and circumstances. That means the declaration of unconstitutionality may operate both retrospectively and prospectively.

1.1 Retrospective Operation of Unconstitutionality: Generally an unconstitutional statute is no law [[iv]] in real sense and void ab initio meaning it never came into existence [[v]]. The United States Supreme Court held that an unconstitutional law is inoperative as if had never been passed and can neither confer a right or immunity nor operate to supersede any existing valid law [[vi]]. Any person convicted under such statute is entitled to reversal, even though the accused pleaded guilty [[vii]]. However, a question arises whether the convicted persons or their relation can challenge the convictions even where the imprisonment has already been suffered or sentence of death had been executed to remove the stigma of conviction [[viii]]. If we follow the English case of Bently [[ix]] where Bently’s sister was moving for pardon of Bently, though already executed, to remove the stigma of the conviction, the answer should be in the affirmative. An unconstitutional statute constitutes protection to no one who has acted under it [[x]] and no decision can be taken against any person who has refused obedience to it before the decision of unconstitutionality was made [[xi]]. Similar view is taken in Shahrier Rashid Khan V. Bangladesh [[xii]] where the Court held that:

“As the Ordinance No. 50 of 1975 is void it will not create any benefit or vested right in favour of the persons for whom it was made. The benefit of section 6 of the General Clauses act is not available to them and their prayers for declaring the criminal proceedings pending against them as illegal, cannot be accepted because the Indemnity Ordinance itself is void being repugnant to the Constitution.”

It was also held in Z.I. Khan Panna V. Bangladesh [ [xiii]] that the Joint Drive Indemnity Act, 2003 was illegal, void ab initio, unconstitutional and the Court further ruled that any family member of the victim of the operation can file cases with lower court against those responsible for torture and custodial death of their relatives.

So it is clear that the acts done in reliance on an unconstitutional statute are not protected in any way.

1.2 Prospective Operation of Unconstitutionality: The Court while declaring a law unconstitutional can give prospective effect to it, instead of retrospective effect, to save the pending cases and keep the transactions past and closed unaffected. This view is reflected in Anwar Hossain Chowdhury V. Bangladesh[ [xiv]] where the Court while declaring the amendment of article 100 of the Constitution void ordered “This invalidity, however, will not affect the previous operation of the amended articles and judgments, decrees, orders etc. rendered or to be rendered and transaction past and closed”. The Court in another case [[xv]] held  that despite repeal of Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain,1995 the pending cases including appeal may be held under the repealed Ain. Even despite of the Court being silent qua the pending cases, the proceedings pending under a law repealed by the judgment of the Supreme Court were also held to be protected under section 6 of the General Clauses Act, 1897 [[xvi]]. So we can reach a decision that judicial pronouncements of unconstitutionality operate retrospectively as well as prospectively. But retrospective overruling often causes administrative inconvenience or results in great hardship by disturbing vested rights acquired on the basis of the rule found invalid [[xvii]]. To avoid this situation, the doctrine of prospective overruling is developed by the American Supreme Court through judicial precedent [[xviii]] and the Indian Supreme Court applied the same doctrine in Golak Nath V. Punjab case [[xix]]. In Suman Gupta Vs. J&K[ [xx]] the same Court declared the absolute power of the government to nominate candidates for admission to  medical college to be violative of the equality clause; but refused to disturb the existing nomination as the candidates had already covered a substantial part of the course. However, this doctrine is applied while retrospective overruling results in grave injustice or involves extremely burdensome sorting out process for courts, or administration [[xxi]].

1.3 Unconstitutionality of Repealing or Amending statute: A repealing or amending Act which is unconstitutional can have no consequence upon the enactment sought to be repealed or amended and the previous enactment remains unaffected [[xxii]] as though the parliament had not made any attempt to change it. The provisions of ss.6, 6A of the General Clauses Act would not apply to such statute. This view is expressed in Frost Vs. State Corporation Commission [ [xxiii]] where the Court held that if the amending Act is ultra vires, the statute sought to be amended remains in operation. An unconstitutional law cannot operate to abrogate a valid existing legislation [[xxiv]]. The unconstitutionality of a statute brings another consequence that is the provision of law which was repealed or substituted by the statutory provision declared ultra vires automatically became revived [[xxv]] and the principles of sound interpretation do not contemplate a legal vacuum in a statute and thereby making the statute unworkable [[xxvi]]. From the discussion made above, we can have no hesitation in holding that as the Sixteenth Amendment to the Constitution of Bangladesh being declared ultra vires the Constitution [[xxvii]] and consequently void ab initio, the removal method of the judges of the Supreme Court by the Supreme Judicial Council revives automatically. But previously the Indian Supreme Court held a contradictory view that a repealed statute or a repealed provision of a statute is not revived if  the repealing Act itself is declared ultra vires the Constitution [[xxviii]].

1.4 Revival of Unconstitutional Law during Suspension of Fundamental Rights: A question may arise as to what will be the effect of suspension of the fundamental rights on an unconstitutional statute? A pre-constitutional legislation declared unconstitutional is only void; not void ab initio. But a post-constitutional law declared unconstitutional is void ab initio from the date of its enactment by the legislature. It was held in Chittaranjan Sutar V. Secretary Judicial Department[[xxix]] that ss.4 & 6 of the Ordinance No.1 of 1964 which are inconsistent with fundamental rights are void ab initio and as such these sections did not revive when the fundamental rights were suspended. Here the Ordinance No.1 of 1964 was a post-constitutional legislation. When pre-constitutional law comes in conflict with any fundamental right, it will become void; if it is not void ab initio and it will revive if the fundamental right is suspended and the constitutional prohibition is withdrawn [[xxx]]. The similar view is adopted by the Indian Supreme Court [[xxxi]].

2. Conclusion: A statute may cease to have its operation due to the declaration of unconstitutionality. But even though it may remain in the statute book in the absence of its repeal, it is declared unconstitutional by the Court [[xxxii]]. Unconstitutionality does neither strike the statute from the statute book, nor repeal it. However, the Court held in a case [[xxxiii]] that declaration of unconstitutionality obliterates the provision of law from the statue as if it was never incorporated in the statute book. Right of repeal being inherent in the legislature alone, any change of law including its annulment otherwise than by legislation would not constitute “repeal” as to protect any right, obligation acquired, accrued or incurred under annulled law [[xxxiv]]. When the legislature repeals an enactment, it does so consciously, but when it says that a particular statute shall be void to the extent of inconsistency, it is contemplating a possible conflict, and is not necessarily contemplating repeal, and therefore the contemplation of any saving clause for protection the rights accrued or liabilities incurred or proceedings initiated under the unconstitutional statute is out of the question [[xxxv]].

Notes

[i]  Article 7 (2) of the Constitution of Bangladesh provides that  “this Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

[ii] Anwar Hossain V. Bangladesh, 1989 BLD (SPL)1; Article 7B of the Constitution of Bangladesh provides that “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”.

[iii] Ab initio is a Latin term meaning “from the beginning” and is derived from the Latin ab and  initio. Ab means ‘from’ and ignition means ‘beginning or inception’.

[iv]65 DLR (AD) 8,  at para-258.

[v] 34 DLR (AD) 361.

[vi]Chicago Indianapolis & Louisville Ry. V. Hackett, (1912) 227 U.S. 559.

[vii] Norwood V. State, (1924) Miss. 101 So. 366.

[viii] Islam, Mahmudul, Constitutional Law of Bangladesh,Mullick brothers, 2012, Third Edi.  p.124.

[ix] R. V. Secretary of State for the Home Department, ex p Bently, [1993] 4 All ER 442.

[x] Cooley, Constitutional Limitations, (7 Ed.) p.259.

[xi] 17 DLR (DA) 451.

[xii] 49 DLR 133.

[xiii] Writ Petition no. 7650 of 2012.

[xiv] 1989 BLD (Spl)1, Para-201,234; See also 1999 BLD (AD) 291; Siddique Ahmad V. Bangladesh, Civil Appeal no.48 of 2011(unreported).

[xv] [xv] BLAST & Others V. BD & Others; 1 SCOB (2015) (AD) 3.

[xvi] Islam, Mahmudul, Constitutional Law of Bangladesh,Mullick brothers, 2012, Third Edi.  p.63.

[xvii] Ibid, at p.63.

[xviii] William V. U.S., (1970) 401, Hill Vs. California, (1970) 401 U.S. 646.

[xix] AIR 1967 SC 1643.

[xx] AIR 1983 SC 1235; See also Janaki V. J&K, AIR 1973 SC 930; Air 2001 SC 238.

[xxi] Minerava Mills Ltd. V. India, AIR 1980 SC 1789, see also Air 1981 SC 271.

[xxii] 65 DLR (AD) 8, 34 DLR(AD) 361.

[xxiii](1929)278 USA 515

[xxiv] Crawford, Statutory Construction, Para-320, Page-652

[xxv] 34DLR (AD) 361, Para-18

[xxvi] 65 DLR(AD) 283, Referred to 34 DLR (AD) 361

[xxvii] Advocate Asaduzzaman Siddiqui & others V. Bangladesh, Writ Petition No.9989 of 2014

[xxviii] Ameerrunnisa V. Mahboob Begum, AIR 1953 SC 352

[xxix] 17 DLR 451

[xxx] 34DLR (AD) 361, Para-54, Referred to 17 DLR 451

[xxxi]  See Mohendra Lal Jaini V. State of Uttar Pradesh & others, AIR 1963 SC 1019

[xxxii] Islam, Mahmudul, Constitutional Law of Bangladesh, Mullick brothers, 2012, Third Edi.  P.276

[xxxiii] 34 DLR (AD) 36

[xxxiv] Jannat-ul-Haq V. Abbas Khan, 2001 SCMR 1073(c)

[xxxv] Muhammad Bashir V. Province of West Pakistan PLD 1958 (WP) Lahore 853-PLR 1958 (2) WP Lahore 735 (FB)

About The Writer

Article Author Image

Md. Khaled Miah

LL.B., LL.M., Chittagong University

Lecturer Department of Law
Britannia University, Comilla
Miahkhaled28@gmail.com

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