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Vacuum in law: approach and response of Supreme Court of Bangladesh

Vacuum in law approach and response of Supreme Court of Bangladesh

Vacuum in law approach and response of Supreme Court of Bangladesh

Today’s article is about Vacuum in law: approach and response of Supreme Court of Bangladesh.

Vacuum in law: approach and response of Supreme Court of Bangladesh

 

 

Despite the existence of Parliament or National Assembly or even the non-existence of a particular law or non-existence for being held unconstitutional by Constitutional Court, vacuum can be in existence in respect of law enunciated by the Parliament. This vacuum will not be elongated till the next session of the parliament or even till the enactment of new law regarding to such vacuum.

In this juncture, Constitutional Court has come forward to pronouncing guideline(s), directive(s) although, such Court has no true authority to enact any law. This vacuum filing law cannot be in action for an unlimited period unless the parliament pays no heed to enact law to eradicate such vacuum. If such response from the Court cannot be seen, there will be lawlessness and sometimes chaotic situation can be actually happened.

Thus, Supreme Court of Bangladesh as Constitutional Court has come forward plethora of times to eradicating such vacuum; however, it cannot be told that such guideline(s), directive(s) are honoured and accomplished through laws by the state party.

In this writing, I shall focus on rule-making power of Supreme Court of Bangladesh, its enforceability, concept of vacuum in law, response of Supreme Court of Bangladesh. Response will be discussed with the recent examples of decisions made by the Supreme Court in different cases where different guideline(s), directive(s) as well as recommendation(s) are made.

Introduction

Without being bestowed with law-making power, approach and response of the Constitutional Court should be appreciated and celebrated from the part of the law-making institution of the country. Nevertheless, Bangladesh Supreme Court’ (hereinafter referred to as Supreme Court) as Constitutional Court has every task to make clarification, explanation of Constitution and at the same time, to test every law made by the parliament regarding to its constitutionality, infringement of fundamental rights etc.

Bangladeshi legal arena witnessed approach of the Supreme Court many times to counter the critical legal issues and responses with effective measures. Such measures sometimes eradicate the vacuum while sometimes withheld the illegal action and sometimes it expressed in the mode of directive(s) along with guideline(s).

It must not be forgotten that the wisdom of law-making, sanctioned to and preserved with the parliament.* Parliament is the authority to enact, repeal, and suspend any law of the country.

While secondary legislation can be delegated to the Government, but the primary legislation has to be enacted only by the Parliament. Parliament is the source of law, mandated by the will of the citizens of Bangladesh and backed by the Constitution itself.

When we are talking about the law-making power of the Parliament, we must not brush away the rule making power of the Supreme Court. And, one thing for sure, this rule has the effect of law; however such rule can only be made with the approval of the President and such rule are subject to law made by the Parliament.

Legislation or rule-making power of Supreme Court

(1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.

(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 and 116 to a division of that Court or to one or more judges.?

Whether the Supreme Court reserved any power to enact a law? Legislation made by the Supreme Court is subject to the approval of President while it concerns with the practice and procedure of the Supreme Court and subordinate Court.

This rule does not like other legislation which extends to the whole of the Country, but only for the proper functioning of Courts. On the other hand, pronouncements made by the Supreme Court is mandatory and binding over the subordinate Courts, has the juristic value and considered as source of law though Supreme Court has no authority over enactment of law; however, these pronouncements can accelerate or turn down the law, made by the Parliament.

It is interesting to see that the Constitution speaks of declaring law rather than pronouncements or judgments, however with the heading of ‘Binding effect of Supreme Court judgments.’

it is absolutely a misconception. If any Bench of the High Court Division or the Appellate Division directs any subordinate Court to conclude the trial within certain period of time, it should be considered by the Court concerned as mandatory, but if the concerned Court cannot conclude the trial within the time-frame stipulated by the High Court Division or the Appellate Division for any valid reason, it must seek for further time to the Court from which the order/direction was passed.

If the Court (Either Division of the Supreme Court) is not satisfied with the reason submitted by the trial Court, the Supreme Court (Either Division) can take measure for violating the Courts’ order.”

Although legislation made by the Supreme Court is not a law that we perceived in general. It is not like as Austin said the ‘command of sovereignty10’ or ‘Social Demands’ as prescribed by Roscoe Pound. But we must not forget that Judiciary is the authority to exercise the sovereign judicial power of the people (people refers to citizens of Bangladesh) under and by the authority of the Constitution. It is happened in the 16th Amendment Case; Mr. Justice Moyeenul Islam Chowdhury uttered the task of the judiciary, which is reproduced below:

It is undisputed that the Constitution is the supreme law of the land. According to the Constitution, there are 3(three) organs of the State, namely, the Executive, the Legislature and the Judiciary. In the scheme of our Constitution, both the Executive and the Legislature are manned by elected people; but the Judiciary is manned by unelected people.

So it leaves no room for doubt that the task of administration of justice has been entrusted to the Judges who are unelected people. Article 7(1) of the Constitution provides that all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. So the Judges exercise the sovereign judicial power of the people only under, and by the authority of, the Constitution.!!

Mr. Justice Moyeenul Islam Chowdhury said about the exercising of judicial power rather than law-making power. There is no gainsaying that the rule-making power of the Supreme Court can be termed as law-making power or legislative task in the broader sense. But, in general, it is always the Parliament who has been entrusted with the task of making law.

Law making procedure in this country never involves Supreme Court, even in making any suggestion regarding to proposed law. However, it can only make rules regarding to conditions of service of the stuffs of Supreme Court.

Such rules are subject to provisions of law passed by Parliament and approval of the President. 12 In this juncture, it is apparent that Supreme Court has no actual legislative power. But secondary legislation has been entrusted with it tightened with approval of the President and reference to law passed by the Parliament.

We are not unmindful that the duty of the Court is not to enlarge the scope of the legislation. A court of law cannot rewrite, recast, or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on a Tribunal or a Court. It cannot add words to a statute or read words into it which are not there. A Court shall decide what the law is and what it should be. A Court of course adopts a construction which will carry out the presumed intention of the legislature but cannot legislate itself.

The above provision has been made by his Lordship Mr. Justice Surendra Kumar Sinha (later Chief Justice), at the time of disposal of review petition submitted by a death penalty awardee offender. Although, his Lordship, had avoided the existence of rule-making power of the Supreme Court, had been used by the Supreme Court in making Criminal Rules and Orders.

Concept of vacuum in law

‘Justice, equity and good conscience’ are the very basics in adjudicating a matter brought before the Court. What is the ultimate job of the judiciary as one of the organs of the state? Judges shall be independent in the exercise of their judicial functions.¹4 Judicial functions have been obligated to the Judiciary.

The very objective of the Judiciary is to accomplish and execute the judicial activities of the state in accordance with the Constitution and other laws passed by the Parliament time being in force. By doing such job, Judiciary has the opportunity to travel through the laws existing or time being in force in the country.

This has been the time, when a Judge has made a real connection with the law passed; understood its features, application, even the weakness. A law passed the test of constitutionality may not be necessarily flawless. It may be subject to making of rules for its very application. It may happen that such rules may face insufficiency. It may contradict with other laws which make the situation worse for its application. Such a situation, Supreme Court of Bangladesh has always come forward to overriding it.

This vacuum can also be created by the pronouncements of the Supreme Court. By the authority of judicial review, High Court Division of Supreme Court can assess any law passed by the Parliament or even secondary legislation in respect of its constitutionality, violation of fundamental rights as enshrined in part III of the Constitution.

Any part of a particular law can be held unconstitutional which essentially creates vacuum in this respect. But, Supreme Court responses to such vacuum to be eradicated with specific guideline(s), directive(s), even with recommendation(s). On the other hand, Appellate Division has the authority to issue directions, orders, decrees, writ for doing complete justice.

Legitimacy of response of Supreme Court

Before going through the approach and response of the Supreme Court in respect of vacuum in law, first we should figure out the basis of such response. Supreme Court in the case of Masdar Hossain pointed out the constitutional deviation by the Parliament and also by the Executive and gave necessary directions which composited the separation of judiciary from the executive and also established a separate and independent Bangladesh Judicial Service.

The learned Attorney-General has argued that the judiciary cannot direct the Parliament to adopt legislative measures or direct the President to frame rules under the proviso to Articles 133 of the Constitution and he has rightly relied upon certain decisions of this Court in support of his contention.

Although we shall depart in some ways from the direction given by the High Court Division, we think that in the present case there is a constitutional deviation and constitutional arrangements have been interfered with and altered both by the Parliament by enacting the Act and by the Government by issuing various Orders in respect of the judicial service………..

When Parliament and the executive, instead of implementing the provisions of Chapter II of Part VI follow a different course not sanctioned by the Constitution, the higher judiciary is within its jurisdiction to bring back the Parliament and the executive from constitutional derailment and give necessary directions to follow the constitutional course. This exercise was made by this Court in the case of Kudrat-e-Elahi Panir vs. Bangladesh, 44 DLR (AD) 319.

We do not see why the High Court Division or this Court cannot repeat that exercise when a constitutional deviation is detected and when there is a constitutional mandate to implement certain provisions of the Constitution.

It is not res integra in the legal arena of Bangladesh, but is in development process. Vacuum in law cannot be let gone without addressing, assessing and countering with effective measures.

Supreme Court has always come forward to filling the vacuum in law; and in the aid of the Parliament by giving necessary direction, guideline etc. By giving such guideline(s), the rights and security of the people of this country are protected and reserved well. Without such guideline, sometimes it can be spoken of that executive cannot be made well accountable for their activities.

After consultation with the decisions made in the case of Secretary, Ministry of Finance, Government of Bangladesh Vs. Md. Masdar Hossain, 52 DLR (AD) 82, para-73, 20 BLD (AD) 104, para-73, Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105, Kudrat-e-Elahi Panir vs. Bangladesh, 44 DLR (AD) 319, D.K. Basu v. State of W.B., Vishaka v. State of Rajasthan, AIR 1997

SC 3011, Vineet Narain v. Union of India, (1998) 1 SCC 226, People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399, Erch Sam Kanga v. Union of India, W.P. No. 2632 of 1978, Lakshmi Kanti Pandey v. Inion of India, (1984) 2 SCC 244 and other decisions of Indian jurisdiction, Chief Justice of Bangladesh, Mr. Justice Surendra Kumar Sinha, in the case of Bangladesh & ors Vs. BLAST & ors made the following comment:

From the above authorities it is now settled that the apex courts in appropriate cases issued directions, recommendations and guidelines if there is vacuum in the law until a suitable law is enacted to ensure that the constitutional and statutory safeguards of the citizens are protected. In pursuance of some guidelines, the Government of Bangladesh, India and Pakistan have implemented, and a new constitutional jurisprudence has developed in these countries.

This court being the guardian of the constitution cannot keep blindfolded condition despite rampant violation of fundamental rights of the citizens. In view of the above, we find no substance in the contention made by the learned Attorney General that in presence of specific provisions contained in sections 54 and 167 regarding the arrest and remand of an accused person the court cannot give any direction or guideline.

Mr. Justice Jamal Main (the then Chief Justice of Pakistan) in the case of Government of Sindh v. Sharaf Faridi made 5(five) directions to province of Sindh and Federation of Pakistan in relation to bifurcation of Judicial Magistrates and placing them under the administrative control of the High Court.

Not only placing but also encountering the emergency period, transfer of Civil Judges had also been directed. In the Judgment, Mr. Justice Jamal Main demarcated a subtle distinction between directing ‘Legislature to legislate’ and ‘a direction to the Executive to initiate the legislative measure’.

I am inclined to hold that there is a marked distinction between a direction to the Legislature to legislate and a direction to the Executive to initiate the legislative measure to bring the existing laws in conformity with the provisions of the Constitution. The latter in my view is permissible.

In D.K. Basu v. State of W.B, The Supreme Court of India issued 11(eleven) basic requirements to prevent custodial violence.20 To provide specific protection for women from sexual harassment in work places adequately, the Supreme Court of India in the case of Vishaka v. State of Rajasthan issued 12(twelve) guidelines in the absence of adequate enactment.

Similarly in the case of Vineet Narain v. Union of India the Supreme Court of India issued 36(thirty six) directions in respect of Central Bureau of Investigation and Central vigilance Commission. In the case of Lakshmi Kanti Pandey v. Inion of India the Supreme Court of India expressed principles and norms in respect of adoption to foreign parents.

On the other hand, new concept of deviation from the constitutional arrangements or inference in constitutional arrangements has been developed by the Supreme Court. Supreme Court has the authority to dictate the Government to maintain its way and its activities in accordance with the Constitution.

Any derail from the Constitution or constitutional agendas, mandates the Supreme Court to issue necessary direction to the Parliament as well as to the Government. It is not the case of ‘what to do’, but a case of ‘what and how to do’. Even the failure to discharge duties in terms of Constitution can warrant the authority of the Supreme Court.

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.

It is already being seen that Supreme Court has the authority to make guideline(s), direction(s), and recommendation(s) in respect of vacuum in law of the land. However, such guideline, direction can only be existed till the enactment of the Parliament in respect of such issue.

It cannot be opened for an unlimited period. Once, Parliament passed the particular law in accordance with the direction, such direction has to face its end and after such enactment no practice of such direction will be allowed. It must not be forgotten that Parliament has to act in accordance with the direction made by the Court unless it desires to face the indictment of contempt of Court.

Therefore, the High Court Division was perfectly justified in issuing directives to protect health and longevity of people because consumption of tobacco products is universally accepted to be harmful to health. When the right to life of the people is at stake, the legislature is under the obligation to enact law to protect such right as per directives of the Court. As such the question of encroaching upon the domain of the legislature by the Court does not arise.

Supreme Court has been well celebrated in various times to issue guidelines, directives, recommendations, such as guidelines in relation to arrest, remand, appointment of judges of Supreme Court, warrant of precedence, tobacco advertisement and production, witness protection, clarification of ambiguity etc. These responses of Supreme Court are going to be discussed phase by phase.

 

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In criminal cases: arrest, remand and shown arrest

On 25.02.2002, Liakat Sikder, the then President of Bangladesh Chattra League, student wing of Bangladesh Awami League (presently, the ruling party of Bangladesh) along with Md. Rafiqul Islam Kotwal, the then Vice President of Bangladesh Chattra League were arrested under section 54 of the Code of Criminal Procedure 1898(hereinafter referred to as CrPC) by Dhanmondi Police. They were brought before the Court of Chief Metropolitan Magistrate, Dhaka with the prayer of remand for 7 days.

However, they got bail on 04.03.2002 subject to order of detention. Before their release, they were shown arrested on Ramganj Police Station Case No. 13, dated 23.09.2001. Interesting to see that when these two were granted bail in one case, had shown arrested in a new case. They even secured ad-interim bail from the High Court Division.

These two were shown arrested without producing before the Magistrate. In this juncture, High Court Division made as many as 11(eleven) guidelines in respect of arrest, remand, procedure of shown arrest etc.

Some of the guidelines are reproduced below:

Guideline No (1): The police officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.

Guideline No (2): The police officer who arrested the person must intimate to a nearest relative of the arrestee and in the absence of the relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 6(six) hours of such arrest notifying the time and place of arrest and the place of custody.

Guideline No (5): If the arrested person is taken on police remand, he must be produced before the Magistrate after the expiry of the period of such remand and in no case he shall be sent to the judicial custody after the period of such remand without producing him before the Magistrate.

Guideline No (6) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the police custody or in the judicial custody under section 167(2) of the Code.

Guideline No (8) If a police officer seeks an arrested person to be shown arrested in a particular case who is already in custody, the Magistrate shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case.

At the time of issuing above guidelines, High Court Division narrated the emergence of issuing such guidelines:

………..In order to overcome this eventuality and to check the abuses, we are of the view some binding guidelines should be given to the law enforcing agencies and the Magistrates. In the case of BLAST27 some directions were given in this regard but, in our view, some further directions are required to be given for protecting liberty of the citizens from police excesses as noticed in these rules.28

Almost same guidelines have been given in the case of Bangladesh & ors Vs. BLAST & ors.29 Some of the guidelines match the guidelines prescribed in D.K. Basu Case.30 In BLAST case, High Court Division recommended amendment of Section 54, 167, 176, 202 of CrPC and insertion of new section after section 44 in the Police Act.

It is imperative to see that High Court Division placed 5(five) recommendations in respect of Section 54, 167, 176 of CrPC and Section 330, 348 of the Penal Code 1860 and insertion of a new section titled 302A in the Penal Code 1860.

It is often seen that an accused has been produced before the media even before producing the accused before the Magistrate. Even at the time of investigation, controlling authority of investigation officer makes comment on the merit of the case which might hamper the investigation and create a bad impression of the accused before the public without having trial. It is often termed as media trial or popular justice. It is not only a bad practice but also disobedience to Constitution and CrPC.

There has not been any legislation in respect of disclosing fact regarding to an ongoing investigation, even for producing the accused before media without producing the same to the Court. Indian Supreme Court³¹ as well as High Court Division of Bangladesh also made remarks in this regard.32

In recent days, sensational case of Rifat³3 has been brought before the High Court Division of Bangladesh for disposal of bail petition of Aysha Siddika Minni, once witness, presumed to be accused by the investigation agency.

In this case, Court observed that Superintendent of Police of Borguna District made some comment, i.e. accused admitted her guilt; Minni maintained communication with the killers form the very beginning etc. before her confession made to a Magistrate. At the time of disposal of the petition, such comments made one of the grounds for allowing the petition brought by Aysha Siddika Minni.

High Court Division not only allowed the bail petition but also directed the Secretary, public security department/security department and Inspector general of Police to make and follow strictly a policy in respect of production of accused before media instead of producing the accused before Court and placing or disclosing the information regarding to an ongoing investigation.34 Such direction has not made only to maintain secrecy of the investigation but also to preserve and protect the right of the accused.

Recommendation on appointment of Judges

(c) has such qualifications as may be prescribed by law for appointment as a judge of the Supreme Court. 35

However, such law as prescribed by the provision of the Constitution has not been made yet. Raghib Rouf Chowdhury, Barrister-at-law and an Advocate of Supreme Court brought a writ petition in this respect. High Court Division after consultation with the Constitution, kept itself locked to make any order to the Parliament to formulate such law. The very utterance is reproduced below:

By the judgment in ‘ten judges case’ our Supreme Court has already rendered its considered view regarding the binding effect of ‘consultation’ with the Chief Justice by the President in appointing judges in the higher judiciary. Thus, we concede that there is no scope to direct the respondents to formulate guidelines to regulate appointments of judges in the High Court Division of the Supreme Court.

This kind of direction to formulate guidelines for appointing the Judges in the higher judiciary shall only undermine the power of the Chief Justice which has been vested upon him by the Constitution itself and by pronouncement of judgment in the ten Judges case as well as Masder Hossain case.36

High Court Division in this case made a difference from the judgment of Government of Sindh v. Sharaf Faridi. In Sharaf Faridi, Mr. Justice Jamal Main stated Court’s authority to give ‘a direction to the Executive to initiate the legislative measure to bring the existing laws in conformity with the provisions of the Constitution’.37

However, High Court Division suggested some criterion should be taken into consideration by the Chief Justice at the time of making recommendation in respect of eligible aspirant for appointment as a Judge of the Supreme Court, such as allegiance to the fundamental principles of the State Policy, i.e., nationalism, socialism, democracy and secularism, having brilliant academic profile, towering level of professional skill, legal acumen and integrity etc.

Constitution mandates a person to be held in judicial office in the territory of Bangladesh for not less than 10(ten) years.38 But, this recommendation suggests having not less than 3(three) years in the capacity of District and Sessions Judge.39

It is apparent from the Article 95 of the Constitution that making law in respect of appointment of Judges of Supreme Court is not mandatory in part of the Parliament. But no procedure has yet been prescribed by the Parliament or even by the Supreme Court itself to eradicate such haze in appointment of Judges.

In Raghib Rauf Chowdhury, High Court Division made comment on direction, i.e. ‘it is well settled that this Court cannot direct the Parliament to enact any law.40 But in the case of ‘deviation from constitutional arrangements’ or ‘vacuum in the law 42 or to follow the constitutional course’ 41 43 recommendation(s), guideline(s), direction(s) had always been given by the Supreme Court. High Court Division makes the pious wish which is reproduced below:

This Court wants to believe that if the existing system fails to work properly, our legislatures will come forward to enact a charter into the Constitution or make proper law as hinted by Article 95 (2) (c) which shall elevate the higher judiciary to a rare dignity which will command the respectful obedience of the people of Bangladesh. Undoubtedly it can be said that the existing process of recommending the persons to be appointed as High Court Judge by the Chief Justice reflects due fairness and transparency……..44

Warrant of precedence

It had been happened in framing the warrant of precedence that some of the constitutional functionaries were not paced in place of the table but the Cabinet Secretary and other administrative officials have been placed before constitutional authorities, such as Member of Parliament, Attorney General, Ombudsman etc.45 High Court Division had made 8(eight) directives in relation to the warrant of precedence which were modified by the Appellate Division.

Appellate Division in their judgment not only directs the executive but also made some suggestion in relation to inclusion of holder of Shadhinata Padak, or Ekhushey Padak, and those valiant freedom fighters who have been honoured with galantry awards of Bir Uttam.47

At the time of passing the above judgment, the Court had made a consultation with the decision made in the case of Secretary, Ministry of Finance, Government of Bangladesh Vs. Md. Masdar Hossain, 52 DLR (AD) 82 and recommendations made in the case of All India Judges’ Association V. union of India, AIR 1993 SC 2493. At last, Appellate Division made 3(three) directives in relation to modify and amend warrant of precedence which is reproduced below:

1) As the Constitution is the supreme law of the land, all constitutional functionaries shall be placed first in order of priority in the Table of the impugned Warrant of Precedence.

2) Members of judicial service holding the posts of District Judges or equivalent posts of District Judges shall be placed at Serial No.16 in the Table along with the Secretaries to the Government and equivalent public servants in the service of the Republic.

3) Additional District Judges or holders of equivalent judicial posts shall be placed at the serial number 17 immediately after the District Judges. Accordingly, the appeal is disposed of with expunction, modification, observations and findings as stated above. 48

In Md. Ataur Rahman, Supreme Court issued directives in the mode of order to the Executive for its deviation from constitutional arrangements, alteration or interference in constitutional arrangements. The above decision also recognizes the decision made in the case of Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105.

In tobacco advertisement

The State shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and of drugs which are injurious to health.49

By virtue of such state policy and the rights enshrined in Article 31 and 32 of the Constitution, High Court Division not only direct the advertisement in any form of Cigarette, Bidi, tobacco related products in any manner in Newspapers, Magazines, Signboards or in any electronic medias like Television/Radio to be stopped but also direct the Government to stop production of tobacco phase by phase.50 In appeal, Appellate Division along with the directives made by the High Court Division also made 4(four) directives in this regard.

Appellate Division endorsed the view of the High Court Division in regard to the prohibition of tobacco and made restriction on issuing license in the tobacco industry. Appellate Division made some remarkable directives, such as making non-availability of ashtrays, matches, lighters and other things facilitated the smoking and inclusion of chapter in school and intermediate level’s book about the adverse effect of smoking and about the latest law. 51

It is happened in Prof. Nurul Islam that to ensure the dignity of the citizen, to ensure the public health, to protect right to life, Supreme Court has come forward to directing the Government to stop the production of tobacco, to stop the advertisement of tobacco related products.

Now, the question has arisen, whether the Supreme Court has mandate to direct the Government in this regard? It is transparent that our legislature has not intended to make any law in relation to stop production of tobacco related products. To realize and appreciate the situation, article 18 has to be read with Article 31 and 32 of the Constitution.

Tobacco not only relates to the life but also made an adverse and chronic effect on life. To present and preserve a healthy generation, tobacco related products have to be stopped. It is not the Supreme Court to stop, but the legislature and Executive. However, failure of the other organs cannot impair the right and protection of the citizens of the country.

Such deviation from constitutional mandate to protect right to life, absence of effective law regarding to combat tobacco related products and such failure on the part of the Legislature and Executive, accelerates the authority of the Supreme Court to direct the authorities in the mode of directives.

It is not like ‘order to enact a law’ but ‘order to meet the constitutional  mandate and obligation’. And, as the Guardian of the Constitution, it is the Supreme Court to make the other organs of the state to act in accordance with the Constitution.

In Witness Protection

……I think, the seizure list proved by the police officer can safely be acted upon when in most cases local witnesses either for fear of life or acting under undue influence are obliged to deny their presence at the time of recovery of the incriminating articles. 52

In this case, Supreme Court made their very comment on witness situation in drug cases. The Court identified two factors, such as fear of life or undue influence. Except the witnesses of International Crimes Tribunal,53 no law relating to protection of the witness has yet been made. Witnesses are the cornerstone to prove a case brought against the accused. Testimonies made by them in the open court demarcates the conviction and sentence or acquittal.

It is the duty of the state to produce credible witness to prove the allegation brought against an accused. Our criminal justice system guides innocence of guilt of the accused. If the state fails to protect its witness, it will result in undue influence or fear, causes the acquittal of the accused.

Such vacuum in law in protection of the witness mandates the Supreme Court to direct the Legislature to take necessary step to fill up this gap by enacting adequate and effective law for the protection of the witnesses. In recent days, High Court Division made suggestion to enact a law regarding to protection of witness and also wished that the Government made such law promptly.54

In ambiguity and effectiveness in law

To give effect the adjudication and case management system of cases which fall within the purview of Children Act, Supreme Court made 7(seven) guidelines to follow until the Government make proper steps to eradicate such ambiguity.55 Government has been directed to bring amendment within 6(six) months in respect of composition of the offence inserted as section 11(ga) of the Naari o shishu Nirzaton Domon Ain 2000(Prevention of oppression against women and child Act).56

In Md. Safikul Islam, High Court Division after consultation with section 3, 4 of Zoutuk Nirodh Ain (Dowry Prohibition Act) 2018 and 323, 324, 325 of the Penal Code 1860 made such direction. The Tribunal is directed to treat the case of Section 11(ga) as compoundable till the enactment of amendment in this regard brought by the Government.

It is pertinent to state that section 3 and 4 of Zoutuk Nirodh Ain (Dowry Prohibition Act) 2018 are related to demand and giving of dowry which are compoundable and maximum sentence are 5(five) years and section 11(ga) of the Naari o shishu Nirzaton Domon Ain 2000(Prevention of oppression against women and child Act) is non-compoundable and maximum sentence is 3(three) years.

Whether the Supreme Court itself made such direction as law? To eradicate the ambiguity as well as to vanish the disproportionality, Supreme Court order the Government to such amendment to eradicate chaos in determining and addressing the similar offence.

 

 

Conclusion

To preserve the constitutional mandate of protecting and securing the citizens’ rights, freedom, liberty, in the absence of specific and adequate law, vacuum in law, derail from the constitutional arrangements, in the case of ambiguity in law, to eradicate disproportionality, Supreme Court has its ample power, authority and duty to come forward and to make such guideline(s), recommendation(s), directive(s) to meet the situation.

It is not like to order the legislature to enact a law, but to order the legislature to take appropriate and adequate measure to fulfill its constitutional obligation and to take legislative measure in this regard.

Action of Supreme Court in this regard cannot be termed as overlapping of power. Although Mr. Justice Jamal Main discouraged to direct the legislature to enact law, but I conclude as Supreme Court has the authority to direct the legislature to enact a particular law if it (such law) has been mandated by the Constitution itself and the Parliament deliberately ignoring the constitutional obligation which may create constitutional chaos.

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