Mr. Speaker: As I promised in the morning session, I am giving the Ruling now.

Hon'ble Members, you are aware that Hon'ble Minister for Religious Affair Mr. M. Nazimuddin-Al-Azad placed a Bill on enlisted Dargah (control and management), 1990 on 28-1-90 and there was no proposal to oppose it. Today it has been enlisted for consideration.

Mr. A.S.M. Abdur Rob: Mr. Speaker.

Mr. Speaker: I am giving a Ruling and you should not talk when the Speaker is giving his Ruling.

Mr. A.S.M. Abdur Rob: When the Speaker speaks nobody else speaks. But at the time of passing the previous Bill we walked out and now we are back. So we want the opportunity to speak after your Ruling.

Mr. Speaker: Nothing can be said on the Ruling. The Ruling is for listening. This is a verdict and it is not a controversial issue.

Mr. A.S.M. Abdur Rob: Thank you Mr. Speaker.

Mr. Speaker: Today the Bill has been accepted for consideration. At the time of reading the Bill by the Hon'ble Minister, Hon'ble Member Mr. Shahjahan Siraj has raised a point of order under Rule 270(1) of the Rules of Procedure saying that the Ordinance which has been placed as a Bill is now under the jurisdiction of the High Court and cannot be considered by the Parliament. Mr. Shahjahan Siraj has supplied me a copy of Supreme Court's Rule Nisi in support of his statement. At the beginning of the discussion on point of order, Hon'ble Deputy Leader of the House took part and said that the Rule 270(1) of the Rules of Procedure was applicable in this case. He is of the view that Mr. Shahjahan Siraj should have raised the issue the day before yesterday at the time of seeking permission to place the Bill. Agreeing with his proposal I requested the Religious Affairs Minister for immediate acceptance of the Bill for consideration and accordingly the Hon'ble Minister for Religious Affairs proposed to accept the Bill for immediate consideration. Some Hon'ble Members, Hon'ble State Minister for Law, Hon'ble Minister for Religious Affairs, Hon'ble Education Minister, Hon'ble Leader of the Opposition and Hon'ble Leader of the House also took part in the discussion which centered mainly on the Rules of Procedure. The Leader of the House and the Leader of the Opposition have requested me for giving a Ruling on the issue and on the basis of their request I have already thoroughly examined and analysed the issue. As I have pointed out earlier, since there was no objection at the time of placement of the Bill, the Hon'ble Minister placed the Bill for immediate consideration taking due permission from me. There is no provision in the Rules of Procedure for pending the discussion at this stage and no such example is available with me. However, I am trying to give a Ruling on this.

Hon'ble Members, the Rule Nisi issued by the High Court Division of the Supreme Court is the basis of objection of Mr. Shahjahan Siraj. Different programmes of 1989 for controlling the enlisted Dargahs have been challenged in the High Court Divisions as unconstitutional and Rule Nisi has been issued on that.

I have read the Order of the High Court Division of the Supreme Court which has postponed the effectiveness of the circulars issued by the Ministry of Religious Affairs till March 31, 1990. No copy of the prayer of the case has been given to me. But it is clear from the Order of the High Court Division that why Ordinance will not be declared as ineffective or beyond the legal jurisdiction? There are two parts of the High Court Order; one is relating to the call for explanation; the other regards the stopping of effectiveness of a circular. Nowhere in the Order it has been said that the order will remain held up. Therefore the Court will decide whether the Ordinance is valid or invalid. But unless the Order is declared illegal or invalid, the Ordinance should have to be recognised. If the High Court Division holds up the effectiveness of any law, that law cannot be effective although legal or valid. But it has not been done in the present case. That held-up Order of the High Court has prohibited the effectiveness of a Government circular and the Ordinance has not been held up. But the circular letter of the Government has been held up by the Order of the High Court.

Hon'ble Members now the question is since the Ordinance is now under trial in the Court, whether it can be discussed in the Parliament. That is if a matter is referred to the Court and if that matter remain undecided in the Court for years together, whether the Parliament can enact a law on that matter in such a situation. Hon'ble Members it can be said without any doubt that a sovereign Parliament cannot accept such a situation as the Parliament is the sole authority for enacting law. In this connection Article 65(1) of the Constitution says,

"There shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic:

Provided that nothing in this clause shaority, by Act of Parliament, power to make orders, Rules, regulations, bye-laws or other instruments having legislative effect."

The Supreme Legal Constitution has declared very strongly that all the powers of enacting a law are vested with the Parliament. Enactment of law is the privilege of the Parliament and nobody can curtail this privilege. Therefore I can tell you without any hesitation that the debate that has been initiated is neither Constitutional nor legal. The discussions are also neither Constitutional nor legal,. Hon'ble Members I am going to quote a few examples. Famous writers on Constitutional law and parliamentary practices Mr. Kaul and Mr. Shakdher said:

"It is the absolute privilege of the Legislatures and Members thereof to discuss and deliberate upon all matters pertaining to the governance of the country and its people. Freedom of speech on the floor of the House is the essence of parliamentary democracy. Certain restrictions on this freedom have, to a limited degree, been self- imposed; not imposed by any outside authority."

While applying the restrictions of the Rule sub judice, care has to be taken to see that the primary right of freedom of speech is not unduly impaired to the prejudice of the legislatures.

Hon'ble Members the power to enact law by the Parliament cannot be restricted by the under trial Court cases. In this connection I further quote Mr. Kaul and Shakdher, "The Rule of sub judice cannot stand in the way of legislations. If the Rule of sub judice was to be made applicable to legislation it would not only make Legislature subordinate to the Court in that matter, but would make enactment impossible. Because numerous cases concerning a large number of statutes await at all time adjudication one Court or the other, Parliament's main function to make laws will thus become to a standstill. This neither being sanctioned by the Constitution nor justified on merits, Legislatures being supreme and sovereign in the matter of making laws, there is no bar to their work in the field of legislation. The Members, however, refrain from referring to the facts of a case pending before a Court, when a Bill is under discussion in the House."

When Mr. Kaul and Mr. Shakdher said on the matter on which I am giving Ruling today is "A Bill seeking to replace an Ordinance can be discussed in the House notwithstanding the fact that the Ordinance has been challenged in a Court of Law and the Court has issued Rule nisi to the Government."

Hon'ble Members I hope this explanation of mine and the quotations will finally dissolve the issue and there will be nothing else to discuss. I am fully in agreement with Mr. Kaul and Shakdher and like to say that in spite of issuance of Rule Nisi by the High Court, the Bill can be considered in the Parliament for making it a law. Therefore, I am giving you the Ruling that the point of order as raised by Mr. Shahjahan Siraj is not acceptable.

[Fifth session of the Fourth Parliament, January 30, 1990]