1.

Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 

Fact:

In 1995 by a writ petition number 2424 Masder Hossain along with 441 judicial officers who were
judges in different civil court, Alleged inter alia that:

i. Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Civil Services (Re-
organization) Order, 1980 is ultra vires the Constitution;

ii. Subordinate Judiciary forms chapter II of the PART VI (THE JUDICIARY) of Constitution and
thereby the Subordinate Judiciary has already been separated by the Constitution. Only the rules
under Article 115 of the Constitution and/or enactments, if necessary, are required to be made for
giving full effect to this separation of judiciary.

iii. Judges of the subordinate Judiciary being the presiding judges of the courts cannot be
subordinate to any tribunal and as such. The judicial officers are not subject to the jurisdiction of the
Administrative Tribunal.

ISSUE:

Is there any ultra vires of the constitution or not?

Judgment:

The court delivered its historic judgment with 12 directive points on 7th May 1997 (reported in 18
BLD 558). The Government preferred an appeal by leave (Civil Appeal No. 79/1999) and the
Appellate Division partly reversed the decision of the High Court Division by its judgment delivered
on 2nd December 1999 (reported in 52 DLR 82). In the said land mark ruling in 1999 what is
popularly known as the Masdar Hossain case, the Appellate Division directed the Government to
implement its 12 point directives, including for formation of separate Judicial Service Commission
(JSC) to serve the appointment, promotion and transfer of members of the judiciary in consultation
with the Supreme Court. A further 12-point directive called for a separate Judicial Service Pay
Commission, amendment of the criminal procedure and the new rules for the selection and discipline
of members of the Judiciary.

2.Mohiuddin Faroquee vs Bangladesh and others 48 DLR 438

Fact: 

The appellant Dr. Mohiuddin Farooque who happens to be the Secretary General of Bangladesh
Environmental Lawyers Association, briefly BELA, moved a writ petition before the High Court
Division both under clauses (1) and (2) (a) of article 102 of the Constitution praying for issuance of a
Rule Nisi upon the respondents to show cause why the formation and activities of FAP, FAP -20 and
FPCO should not be declared to be mala fide and illegal, and have been under taken without lawful
authority on the ground that the said project would adversely affect and injure more than a million
people in the district of Tangail by way of displacement, damage to the soil, destruction of natural
habitat of fishes, flora and fauna and creating a drainage problem, threatening human health and
worsening sanitation and drinking water supplies. These, it was alleged, would create environmental
hazards and eco-logicals imbalance. BELA which is a registered society and committed to the
protection of people from environmental ill-effects thus espoused the cause of the members of the
public.

Issue:

 Whether the expression 'any person aggrieved' occurring in article 102(1) and (2)(a) of the
Constitution should be liberated from the traditional a restrictive meaning so far attributed to it in the
sense that to get a hearing the person must bring a legal and personal?

Judgment: 

The Court also held that under article 18 of the Constitution the State had a duty to promote public
health, and that article 21 laid down the obligation of every public servant to perform their duties
faithfully. In the instant case, despite the Government’s own ordinance dated 1986, no action was
being taken against the offenders. The Government was thus liable for its inaction. The Court also
held that if public functionaries were negligent or not performing their duties, it could issue necessary
orders.

3.ANWAR HOSSAIN CHOWDHURY VS. BANGLADESH, 1989.

Fact: 

Bangladesh Parliament amended article 100 iii of the constitution in 1988 incorporating the provision
for six permanent benches of a High Court for, Sylhet, Rangpur, Barisal, Chittagong, Jessore, and
Comilla. The fact is that one division of the Supreme Court was in the capital city Dhaka, but at the
time of the 8th amendment, the parliament said that one division is not needed in only capital city
Dhaka as should be outside of Dhaka also as six divisions. That's why Anwar Hossain Chowdhury
challenges that 8th amendment as viewing inconsistent of the constitutional article 102 because the
fundamental principle cannot be changed by a political majority

Issues:

1.Whether the amendment impaired the rule of law and amending power is limited or not?

2.Whether the amendment of the constitution is declared as Ultra Vires or not?

3.Whether the basic structure of the constitution is broken by the parliament or not?

Judgment:

A division bench of high court division summarily dismissed the two petitions brought by the
petitioners; upon an application to the appellate court, leave was granted for an appeal. The appeal
court after considering the case held that the power of amendment of the constitution under article
142 is limited power and conflicts with the concept of the supremacy of the constitution contained in
article 7. The court further held that article 7 among others, are basic features of the constitution and
therefore cannot be amended and declared the amendment made by the parliament as ultra vires.
According to Justice M.H. Rahman, J, in deciding the constitutionality of the amendment, recourse
should be made in the preamble. He observed that the constitution has an entrenched provision
which cannot be amended by the Parliament alone. On the contrary, the government cannot use
arbitrary power as the court decision. However, the constitutionality of this amendment was
challenged over the judiciary system in the above case popularly referred to as the 8th amendment.

4.Sheikh Hasina vs. Bangladesh (2008) 13BLC(HCD) 121,

Fact: Section 3(3a) of the Emergency Powers Ordinance (EPO) 2007 empowered the government
to initiate special measures to conduct effectively and speedily any investigation, trial, and appeal
regarding any offence during the continuance of Emergency. It also provided that any by-laws made
in this regard (in this case the Emergency Powers Rules) may be given retrospective operation.
Accordingly, Rule 19E of the Emergency Power Rules (EPR) provided that the government may
place within the ambit of EPR any case concerning offences under certain laws. The petitioner, a
former Prime Minister, challenged the legality of a governmental order putting within the purview of
the EPR, the trial of a criminal charge against her involving allegations that precede the
promulgation of emergency.  The effecf of this governmental action was that Sheikh hasina was
effectively  deprived of the right to seek bail.

Issue:Whether the retrospective  operation of the EPR( Emergency power rules) to conduct trial of
pre emergency offences was lawful or not?

Judgement: The HCD found the language of the EPO 'clear an unambiguous' and concluded that it
did not clearly authorize trial offences committed before the promulgation of Emergency. The Court
relied on the prohibition of ex post facto laws in Article 350 of the Constitution to hold that that the
retrospective operation of the EPR to conduct trial of pre-Emergency offences was unlawful. On
appeal in Bangladesh vs. Sheikh  Hasina,(2008) 60 DLR, (AD) 90, however, the AD followed quite a
different path. Based on the mere text of Article 35 (1) of the Constitution, it found that the prohibition
as to operation of ex post facto laws concerned only with 'conviction' or 'sentence', not the 'trial' of
the offence concerned. It argued that since the government applied the EPR only for the purpose of
trial of an offence and did not create any new offence in retrospection, the rule against ex post facto
laws was not violate

5. Mujibur Rahaman Vs. Bangladesh 1992, 44 DLR (AD) 111:

Fact: Petitioner Mujibur Rahaman  was a Collector of Customs and Excise at Khulna upon

conviction by a Special Martial Law Court was compulsorily retired from service by notification dated
4.8.93 under Rule 4(3) (b) of the Government Servants (Discipline and Appeal) Rules, 1976,
hereafter referred to as the Rules. The order was passed by the Chief Martial Law
Administrator. The Administrative Tribunal set aside the order of retirement by its order dated 7th
January, 1986. The Administrative Appellate Tribunal by its judgment and order dated 8th March,
1987 set aside the Tribunal's order on the ground that the order passed by the Chief Martial Law
Administrator could not be challenged before any court. The High Court Division rejected the
appellant's petition summarily as not maintainable under clause (5) of Article 102 of the Constitution,
but granted a certificate.

Issue: 
(a) Whether in view of clause (5) of Article 102 of the Constitution, a writ petition is maintainable
against the judgment and order of the Administrative Appellate Tribunal established under section 5
of the Administrative Tribunal Act 1980 (Act VII of 1981).

(b)  Whether Article 117 of the Constitution applies to the Appellate Tribunal?

Judgement: the appellate division declared that, It is, therefore, clear that the power to create an
appellate forum can be found from the proviso to Article 117(2) itself and that the Supreme Court
was not the only appellate forum intended to be established by Part VI of the Constitution. The
appellate Tribunal was validly established by the Parliament in exercise of the special grant of
legislative power under the proviso to Article 117(2) and section 5 of the Act is not ultra vires the
Constitution. Consequently, the bar of Article 102 (5) applies to Appellate Tribunal, because it is "a
tribunal to which Article 117 applies.

Also held that, article 117(2) enable the Parliament to provide by law for more than one appeal from
and for one review only of decisions of a Tribunal.