MD Monir
Muhammad Habibur Rahman, a former chief justice of Bangladesh and the chief advisor of the non-party caretaker government in 1996, was educated in Dhaka and Oxford.
He was called to the Bar from Lincoln’s Inn in 1959.
He served as a judge of the High Court Division (1976-85), as a judge of the Appellate Division of the Supreme Court (1985-95), as an acting chief justice (1990-91) and as chief justice of Bangladesh (1995). His juristic competence is demonstrated in his opinions and interpretations as pronounced in many Bangladesh Supreme Court’s decisions concerning vital issues such as admiralty jurisdiction, amendment of the constitution, citizenship, habeas corpus, administrative tribunals and court jurisdictions.
The renowned personality breathed his last on Saturday, January 11 this year. Let us look into some of his celebrated decisions delivered as a judge for the Supreme Court of Bangladesh.
Anwar Hossain Chowdhury v Bangladesh
The case was about the legality of the famous Eighth Amendment of the constitution of Bangladesh.
The constitution (Eighth Amendment) Act, 1988, was passed amending article 100 of the constitution by setting up Permanent Benches of the High Court Division outside the capital city Dhaka. The amendment was challenged by two writ petitions on the ground that the High Court division of the Supreme Court, with judicial power over the republic, is a basic structure of the constitution and cannot be altered or damaged, and therefore the impugned amendment is void. A division Bench of the High Court Division summarily dismissed the said two writ petitions. Leave was granted by the Appellate Division.
In his judgment as a judge at the Appellate Division, Justice Habibur Rahman opined: “The validity of an amendment will be examined on the touchstone of the preamble.”
In the judgment, he stated that one of the fundamental aims of our society is to secure rule of law for all citizens.
“The parliament cannot by itself amend the preamble. It cannot indirectly, by amending a provision of the constitution, impair or destroy the fundamental aim of our society. It is contended that the impugned amendment had destroyed a basic feature of the constitution by damaging the integrity and oneness of the High Court Division, an integral part of the Supreme Court of Bangladesh,” he added.
Finally the Constitution (Eighth Amendment) Act was declared null and void by the Supreme Court of Bangladesh.
Bangladesh v Prof Ghulam Azam
This is another landmark judgment delivered by Justice Habibur Rahman that clarifies quite a lot about citizenship rights. A writ petition was filed under Article 102 (2) (a) of the Constitution before the High Court Division of the Supreme Court of Bangladesh, challenging the legality of a government notification by which the citizenship of Prof Ghulam Azam was cancelled.
In this case, Justice Muhammad Habibur Rahman provided a meticulous account of the law and delivered a bold judgment without being influenced by fear or favour.
In his judgment, he said: “Citizenship, though not mentioned as a fundamental right in our constitution, is to be considered as the right of all rights as on it depends one’s right to fundamental rights expressly provided for a citizenship in Part III of the Constitution, and his right to seek the Court’s protection of those rights.
Citizenship is neither conferred by giving a passport nor is it acquired by receiving a passport. A passport is not regarded a conclusive evidence of the citizenship or the nationality of its holder.”
Hussain Hohammad Ershad v State
The case involved a question of whether a criminal proceeding can be quashed on the ground of lodging a FIR by the informant under order of the home ministry or on the denial of prosecution allegations by the accused.
Justice Habibur Rahman put forward the following arguments in favour of his judgement delivered in that case: “It is contended that the arms seized were in the possession and control of the petitioner in his capacity as President and hence in view of Article 52 (1) of the Constitution
there is a complete bar against any criminal prosecution against the petitioner. We find no substance in this contention. Immunity is available to the president while he is in office.
With regard to the alleged amnesty, no paper was produced before the High Court Division. No paper in this regard has been placed before us either, whether the arms in question were surrendered in response to the amnesty or recovered by law enforcement agencies is a question of fact and can only be decided at the trial.
With regard to the petitioner’s contention that he is entitled to keep the seized arms as a former president of the country, all emphasis has been laid on the size of the bore of the pistols. The question whether the seized arms satisfy the requirements for an exemption, as laid down in Table 1 of Schedule 1 to the Arms Rules, 1924, should better be left for decision to the trial judge who will have the benefit of the opinion of the arms expert, cited as a witness in the charge-sheet, and not in this summary proceeding under section 561A of the Code of Criminal Procedure.”
Justice Muhammad Habibur Rahman will be remembered by the legal fraternity for his immense contribution as a member of both the Bar and the Bench.
Source:
http://www.dhakatribune.com/law-amp-rights/2014/jan/16/seminal-decisions-justice-muhammad-habibur-rahman#sthash.tx5yk6NO.V2lzqzBA.dpuf
