পাতা:বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্র (প্রথম খণ্ড).pdf/৬৫৭

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বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্রঃ প্রথম খণ্ড
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from this juristic point of view, the norms of the old order can no longer be recognized as valid norms.” (General Theory of Law & State, translated by Anders Wedberg, 20th Century Legal Philosophy Series, pp. 117-118).

 Bearing in mind the principle just stated, let us now approach the question involved in these cases. If what I have already stated is correct, then the revolution having been successful it satisfies the text of efficacy and become a basic law-creating fact. On that assumption, the Laws (Continuance in force) order, however, transitory or imperfect it may be, is a new legal order and it is in accordance with that Order that the validity of the laws and the correctness of judicial decisions has to be determined. The relevant provisions of this Order are:

 “Article 2-(1) Notwithstanding the abrogation of the Constitution of the 23rd March. 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.

 (4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition,, quo warranto and certiorari.

 Article 4-(1) Notwithstanding the abrogation of the late Constitution, and Subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders-in-Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution, as are set out in the Schedules to this Order, Rules, by laws. Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or haying extra-territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.

 (2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation.

 (3) No Court shall call into question any adaptation made by the President under clause (1).”

 The Order applies to the situation that came into existence under the President's Proclamation of October 7. The laws that are in force after that date are enumerated in Article 4, but from the list of such laws the constitution of 23rd March, 1956, has been expressly excluded. This means that when under clause (4) of Article 2 of the order the Supreme Court or the High Court is moved for a writ, the ground for the writ can only be the infraction of any of the laws mentioned in Article 4, or any right recognized by the Order and not the violation of a right created by the late Constitution. The so-called fundamental rights which are described in part II of the late Constitution are, therefore, no longer a part of the national legal order and neither the Supreme Court nor High Court has under the new Order the authority to issue any writ on the ground of the violation of