পাতা:বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্র (প্রথম খণ্ড).pdf/৬৫৮

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বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্রঃ প্রথম খণ্ড
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any of the fundamental rights. The very essence of a fundamental right is that it is more or less permanent and cannot be changed like the ordinary law. In Jibendra Kishore Acharya Chowdhury and 58 others vs. The Province of East Pakistan Secretary, Finance and Revenue (Revenue) Deptt. Govt, of East Pakistan (1), I had occasion to point out that the very conception of a fundamental right is that it, being a right guaranteed by the Constitution, cannot be taken away by the law and that it is not only technically inaccurate but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. Under the new legal order, any law may at any time be changed by the President and, therefore, there is no such thing as a fundamental right there being no restriction of the President's law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the Legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages and having the force of law if they were inconsistent with any of the fundamental rights: This test to determine the validity of the laws and the fetter on the power of the Legislature to make laws have both disappeared under the new order. Unless, here fore, the President expressly enacts the provisions, relating to fundamental rights, they are not a part of the law of the land and no writs can issue on their basis. It is true that Article 2 provides that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision does not have the effect of restoring fundamental rights because the reference to Government in this Article is to he structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article 4. Article 2 and Article 4 can, therefore, stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article 4 which are more specific and latter must override those of Article 2.

 The position in regard to future application for Writs, therefore, is that they lie only on the ground that anyone or more of the laws mentioned in Article 4 or any other right preserved by the Laws (Continuance in Force) Order has been contravened.

 As regards pending applications for writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article 2, which provides:

 “All orders and judgments made and given by the Supreme Court between the Proclamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith.”

 Analyzed, this provision means that, excepting the writ issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that anyone or more of the laws mentioned in Article 4 of any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of