1 of 2003 is repugnant to and inconsistent with the Constitution.(42)īy way of according absolute and unqualified indemnity under Section 3(ka) of the impugned Act No. As such, Section 3(ka) of the impugned Act No. 1 of 2003, all the orders made by the Government from 16 th October, 2002 to 9 th January, 2003 all acts and orders done or given by the joint forces within such period and all arrests, detentions, searches, seizures and interrogations and all other such acts done by the joint forces during that period have been given an absolute and unqualified indemnity but this type of indemnity to any person or force or personnel is totally unknown and foreign to the notion of the rule of law which is a basic feature of our Constitution and fundamental to the governance of Bangladesh. It transpires that under Section 3(ka) of the impugned Act No. ‡hŠ_ Awfhvb `vqgyw³ AvBb (2003 mv‡ji 1 bs AvBb) The State must be called to account for the unlawful and unconstitutional State-actions during the ‘Operation Clean Heart’.(39) But none the less, the State cannot shy away from its responsibility for the illegal and unconstitutional actions of the public functionaries. It is true that criminal liability of a person is his personal liability. Wbh©vZb Ges †ndvR‡Z g„Zz¨ (wbevib) AvBb (2013 mv‡ji 50 bs AvBb)Īny sort of deliberate torture on the victims in the custody of the joint forces or law-enforcing agencies is ex-facie illegal, unconstitutional and condemnable.(37) In fact, there is no scope for wholesale indemnity of the members of the joint forces for the maintenance or restoration of order throughout the length and breadth of the country in terms of Article 46 of the Constitution. Indemnity can be given to the persons concerned for the maintenance or restoration of order in any area meaning thereby in any specific area in Bangladesh as provided by Article 46 of the Constitution. As a matter of fact, the Judiciary is co-ordinate and co-equal with the other 2(two) organs of the State.(22) But this power of judicial review does not make the Judiciary superior to the other 2(two) organs of the State, namely, the Executive and the Legislature. The unique feature of the Judiciary is its power of judicial review. Such an amendment is beyond the constituent power of Parliament and must be discarded as a fraud on the Constitution. Supremacy of the Constitution is a basic feature of the Constitution and as such even by an amendment of the Constitution, an action in derogation of the supremacy of the Constitution cannot be declared to have been validly taken. If a law is unconstitutional, it may be re-enacted removing the inconsistency with the Constitution or re-enacted after amendment of the Constitution. If any action is actually inconsistent with the provisions of the Constitution, such action shall be void and can not under any circumstances be ratified by passing a declaratory law in Parliament. As it is the source of legitimacy of all actions, legislative, executive or judicial, no action shall be valid unless it is in conformity with the Constitution both in letter and spirit. Supremacy of the Constitution means that its mandates shall prevail under all circumstances. Moyeenul Islam Chowdhury, J, who delivered the main judgment. Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Legislative Drafting Division, Bangladesh Secretariat, Ramna, Dhaka-1000 and others
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