পাতা:বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্র (প্রথম খণ্ড).pdf/৬৫৬

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বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্রঃ প্রথম খণ্ড
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to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modem juristic doctrine, no change in the corpus or international entity of the State and the revolutionary Government and the new Constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a Constitution.

 After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdiction, and can function only to the extent and in the manner determined by the new Constitution. While on this subject, Hans Kelson, a renowned modern jurist, says:

 “From a jurist’s point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new man whom a revolution brings to power annul only the Constitution and certain laws of paramount political significance, putting other forms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase remains valid does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old Constitution prescribed. That Constitution is no longer in force; it is replaced by a new Constitution, which is not the result of a constitutional alteration of the former. If laws which are introduced under the old Constitution continue to be valid under the new Constitution, this is possible only because validity has expressly or tacitly been vested in them by the new Constitution.

 The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic view-point, new laws whose import coincides with that of old laws. They are not identical with the old laws, because the reasons for their validity are different. The reason for their validity is the new, not the old Constitution, and between the two, continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the Constitution merely but always the entire legal order that is changed by a revolution.

 This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old Constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order too to which no political reality any longer corresponds has ceased to be valid, and that all norms, which are valid within the new order, received their validity exclusively from the new Constitution. It follows that.