Mr. Speaker: Hon'ble Members, the Hon'ble Chief Whip has asked for my decision on a point of order on a complicated legal issue. According to him the sovereignty of the Parliament is closely connected with the two Rule Nisi issued by the High Court Division of the Supreme Court on the said resignation of 147 Members of the Opposition. The Speaker has been requested not to accept any comment or opinion about the resignation of 147 Members of the Opposition through one of these Rule Nisi for indefinite period. This is tantamount to create obstacles in the way of performing the Constitutional assignment of the Speaker and sovereignty of the Parliament. He further said that the Constitution has clearly defined the respective function of the Parliament and the Supreme Court. The framers of the Constitution or any relevant authorities would definitely not desire to have ill feeling or misunderstanding amongst the three organs of the state. They should be allowed to function independently and perform their constitutionally assigned job and this practice is followed in all democratic countries of the world. According to him this has become the interference of the High Court Division of the Supreme Court into his assigned job under Article 67(2) of the Constitution and Rules 177 and 178 of the Rules of Procedure. Since the Supreme Court is the authority for giving any final decision on any Constitutional issue, he is of the opinion that issuance of Rule Nisi by the High Court Division before performing the assigned job by the Speaker under the provisions of the Constitution and the Rules of Procedure has curtailed the sovereignty of the Parliament and the Constitutional privilege of the Speaker.

On the same subject Hon'ble Member Mr. Nurul Islam Moni raised a general proposal under Rule 147 of the Rules of Procedure and the question of special privilege under Rule 164 of the Rules of Procedure. Hon'ble Member Mr. Abu Yousuf Mohammad Khalilur Rahman also raised a question of special privilege and both the proposal have been sent to the Committees for consideration and appropriate decision. The matter was discussed for several hours over three days and there was no further scope for discussion of this subject.

On the basis of the above discussion I am to say that the Parliament and the Law Department function in their respective fields under Constitutional provisions. I have carefully studied the two writ cases filed in the High Court and the order of the bench. Mr. Abdur Rob Chowdhury in his statement has mentioned that the issue raised in the writ petitions is a very important and complicated Constitutional matter in the context of future of democracy and the aspirations of the people. That is why the Hon'ble Chief Justice has asked to resolve the issue in a greater bench. Rule Nisi has been issued so that the Rule does not become ineffective or ineffectual which has not affected the Jurisdiction of the Speaker.

Differences between the Parliament and the Judiciary exist in many countries and in some countries a conflicting situation exists. Such a Ruling by the Supreme Court has been severely criticised by the Speaker and in many cases the Speakers have challenged it to the Court for preserving the sovereignty of the Parliament. In this respect let me quote a statement of Justice Raghob Roa, "The powers of each one of the three organs have to be exercised fundamentally subject to the provision of the Constitution relating to that organ individually as well as to the provision relating to other organs. It is the respect that is accorded by one organ of the state to the others that ensures that healthy working to the Constitution which is the acid test of its merits whatever the paper value of its provisions."

On the same subject Justice Mostafa Kamal said, "The Constitution assigned to the Legislature, Executive and the Judiciary clearly democratic roles, each controlled by Constitutional Provisions and no one organ generally overlapping with the other" (Bangladesh Constitution: Trends and Issues).

The question of compromise with anybody regarding the assigned job and sovereignty of the Parliament does not arise, like you I am also fully determined to protect the status and sovereignty of the Parliament at any cost. Interference by any authority into the affairs of the Hon'ble Members and the Speaker is against the Constitution whether it is from the Executive Branch or Judiciary.

After studying different Court cases and decisions on this matter it is found that the Rulings differ on subjects and its importance. The decision on the resignation of 147 MPs is purely within the reserved Constitutional jurisdiction of the Speaker and I think with it the question of Parliament's sovereignty is connected. But since two writ cases are now pending with the High Court Division of the Supreme Court and a highly sensitive and important Constitutional issue is involved, I am pending temporarily my decision of the resignation of 147 MPs.

[Eighteenth session of the Fifth Parliament, February 5, 1995]

Mr. Speaker: I gave a decision on February 5, 1995 on the point of order raised by Hon'ble Chief Whip Khandaker Delwar Hossain. In my decision I said that the Speaker had the reserved Constitutional jurisdiction over the said issue of resignation of 147 MPs. Now I am giving my decision:

On 28th of December, 1994 at about 9pm three folders, said to contain resignation letters, were submitted to me; one file was submitted by Sheikh Hasina, MP, Hon'ble Leader of the Opposition and President of Awami League, contending that the folder contains resignation letters of almost all the Members of the Party excepting a few because of unavoidable reasons. Another folder was submitted to me by Mr. Mizanur Rahman Chowdhury, M.P. Acting Chairman of Jatiyo Party and the other folder was submitted to me by Mr. Matiur Rahman Nizami, Hon'ble Leader of the Parliamentary Party of Jamat-e-Islami saying that those folders contain the resignation letters of the Members of Parliament of their respective Parties. The moment those folders were submitted to me, I announced that all these resignation letters, said to be contained in those folders, needed to be scrutinized as per provision laid down in Article 67(2) of the Constitution of People's Republic of Bangladesh and Rule 177 of the Rules of Procedure of Bangladesh Parliament. I also requested in the same breath that the Hon'ble Members of their respective Parties may please be requested to appear before me in Office for compliance with the Constitutional and procedural requirements. When I started calling the names of some of the Members of Jamat-e-Islami, I found no Member of Parliament of any political Party present in my office, except Mr. Salahuddin Quader Chowdhury, MP who was present to submit his resignation letter in person and Mr. Ebadur Rahman Chowdhury, MP who was casually present but left before I called the names of the Members of his Party. I was told that the Members had left along with their Leaders and were having press briefings.

On scrutiny of 88 resignation letters found in the folder submitted by Sheikh Hasina, MP, Hon'ble Leader of the Opposition, I found that the signatures of Mr. Mustafizur Rahman, MP and Mr. Aktaruzzaman Chowdhury, MP belonging to Awami League, on their resignation letters do not tally with their specimen signatures kept in the Parliament Secretariat on the date of taking oath of Office as Members of Parliament. It may be mentioned that Mr. Mustafizur Rahman, MP by a letter dated 28-12-94 informed me that he did not put his signature on any resignation letter found in the folder which does not at all tally with his specimen signature kept in the Parliament Secretariat. It is gathered that he is absconding in connection with a criminal case. His signature was compared on getting a telephone call for a person who did not disclose his name. I disclosed this telephone call to some of the journalists and officials who were present in my office.

Thus those two letters of resignation said to be of Mr. Mustafizur Rahman, MP and Mr. Aktaruzzaman Chowdhury, MP are not considered to have been received my me within the meaning of Article 67(2) of the Constitution of the People's Republic of Bangladesh read with Rule 177 of the Rules of Procedure of the Parliament. So their seats do not stand vacant.

Out of the other 144 resignation letters, the resignation letter of Mr. Hussain Muhammad Ershad, MP of Jatiyo Party was received by the Parliament Secretariat on 29^th of December 1994 through the Dhaka Central Jail authorities and put up before me. That of Mr. Sharifuddin Ahmed MP belonging to Awami League was submitted to me through the Hon'ble Deputy Speaker on 7-1-95. These two resignation letters, received separately, stand on a different footing. As such it is necessary to consider the other 142 resignation letters together and following points come up for consideration and decision.

1. Whether these resignation letters satisfy the legal requirements as provided in Article 67(2) of the Constitution of the People's Republic of Bangladesh read with Rule 177 of the Rules of Procedure of the Parliament?

2. Whether en masse resignation of 144 Members of Parliament is legal and can be received by the Speaker within the meaning of Article 67(2) of the Constitution of the People's Republic of Bangladesh read with Rule 177 of the Rules of Procedure of the Parliament?

Point No. 1

Article 67(2) of the Constitution of the People's Republic of Bangladesh runs as under:

"A Member of Parliament may resign his seat by writing under his hand addressed to the Speaker and the seat shall become vacant when the writing is received by the Speaker or if the Office Speaker is vacant or the Speaker is for any reason unable to perform his functions, by the Deputy Speaker."

We have to read Article 67(2) of the Constitution together with Rules 177 and 178 of the Rules of Procedure of the Parliament.

Rule 177 of the Rules of Procedure of Bangladesh Parliament runs as under:

(1) A Member who desires to resign his seat in Parliament shall intimate in writing under his hand addressed to the Speaker, his intention to resign his seat in the House, and shall not give any reason for his resignation.

Provided that where any Member gives any reason or introduces any extraneous matter, the Speaker may, in his discretion, omit such words, phrases or matter and the same shall not be read out to the House.

(2) The resignation shall take effect and the seat of the Member, shall become vacant under clause (2) of Article 67 of the Constitution when the intimation is received by the Speaker or if the Office of the Speaker is vacant or the Speaker is for any reason unable to perform his functions, by the Deputy Speaker."

(a) He shall sign the writing, that as resignation letter as per Article 67(2) of the Constitution, "through a signed letter."

(b) He shall write the resignation letter by and under his own hand.

(c) He shall not assign any reason.

The later two requirements (b) and (c) are to be satisfied as per Rules of Procedure off the Parliament. But how this resignation letter is to be written and what shall be the contents have not been stated in the Constitution but in the Rules which are to be followed by the Members of the Parliament and the Speaker as well.

The Rules of Procedure of Bangladesh Parliament was framed on 22nd of July, 1974 by the Parliament under Article 75(1) of the Constitution and subsequently there had been some Amendments. As stated before, there are no conflicts between Article 67(2) of the Constitution and Rule 177 of the Rules of Procedure of the Parliament. The Rules only supplement the supreme law. If we consider Article 67(2) of the Constitution read with Rule 177 of the Rules of Procedure of Parliament it would be clear that in order to make a resignation letter "receivable" by the Speaker, within the meaning of Article 67(2) of the Constitution, all the three conditions stated above must be fulfilled. That is, the resignation letter shall bear his signature, he shall write the resignation letter by and under his own hand, and he shall not assign any reason. If the Hon'ble Member concerned does not personally hand over the resignation letter to the Speaker, and hands over to him through some one else or through his or her Leader (as in the present case) then legally and equitably a question arises as to whether the concerned resignation letter is genuine and voluntary. Natural justice, as well, demands it. Let us examine whether Article 67(2) of the Constitution enjoins upon the Speaker to examine the genuineness and vountarness of the resignation letters or whether it is to be automatically received.

To examine this point it would be helpful if we consider what are the constitutional provisions and Rules of Procedure and principles that are followed in some other countries in connection with resignation of a Member of Parliament. Such laws per material would help us in arriving at a conclusion with solid foundation.

In Pakistan, the Constitutional provision for resignation has been laid down in Article 64 which is as under:

"64 (A) A Member of Majlis-e-Shoora (Parliament) may by writing under his hand addressed to the Speaker or as the case may be, the Chairman, resign his seat and thereupon his seat shall become vacant."

The worlds "by writing under his hand addressed to the Speaker" are common both in Article 67(2) of the Constitution of Bangladesh and Article 64(a) of the Constitution of Pakistan. In Pakistan the relevant Rules of Procedure is as follows:

"25. Resignation of seat - (1) A Member may, by writing under his hand addressed to the Speaker, resign his seat.

(2) if (a) a Member hands over the letter of resignation to the Speaker personally and informs him that the resignation is voluntary and genuine and the Speaker has no information or knowledge to the contrary.

Provided that if a Member resigns his seat when the Assembly is not in session, the Speaker shall direct that information of his resignation specifying the date of resignation be given to every Member immediately".

Article 101 of the Constitution of India deals with the question of vacation of seats; it runs as follows:

"101 (3) If a Member of either House of Parliament

(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant;

Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, if he is satisfied the such resignation is not voluntary or genuine, shall not accept such resignation."

In Japan, Articles 190, 191 and 192 deal with resignation. Those Articles run as follows:

"Article 190: When a Member desires to resign, he must submit his resignation to the President.

Article 191: The President shall have the resignation read out and decide whether to accept or reject it after putting the case to a vote of the House without debate.

Article 192: If the President considers that the resignation contains some insulting remarks, he may report substance to the House instead of reading it out. In this case the President may refer the resignation to the Committee on Discipline for examination."

In Canada, a Member wishing to resign from the House of Commons may do so by so stating in the House or by sending a letter of resignation to the Speaker, signed by the Member and bearing as well the signatures of two witnesses (Article 368). A Senator, in Canada may resign in the following manner:

"Article 30. A Senator may be writing under his hand addressed to the Governor General resign his place in the Senate and thereupon the same shall be vacant."

In Sri Lanka Article 66 deals with vacation of seats. It goes as follows:

"Article 66 (a) Upon his death

                    (b) If, by writing under his hand addressed to the   
                          Secretary-General of Parliament, he resigns his seat."

In the United Kingdom, no Member of Parliament has any right to resign. "It is a settled principle of parliamentary law that a Member, after he is duly chosen, cannot relinquish his seat." ("The Law, Privileges, Proceedings and Usage of Parliament" by Erskine May, page 45)

Upon a close reading of all these provisions it would appear that if all these provisions of law are considered together very closely, it suggests a widely accepted principle that every individual Member should submit his own resignation letter voluntarily signed by him, in as much as such a step settles down all controversies. If there is any exceptional circumstance which might make it impossible for the Hon'ble Member to appear in person, a resignation letter may be sent through others. But the signature of the Member concerned must be genuine and voluntary in all cases. This is the cardinal principle followed in all countries.

It has been held in Muhammad Nawaz Sharif vs Federation of Pakistan [Reported in Pakistan Legal Decisions, P.L.D, 1993 page 473, relevant page 819] as follows:

In this case, 88 Members of the National Assembly submitted their resignation to the President although they were addressed to the Speaker. Twelve existing vacancies were already there caused by previous resignations and another by the death of a Member. The total number was 101 Members out of the House of 217. Although the premise is different, the principle enunciated in this case is important. "It was not intended to be an idle formality. To relinquish the parliamentary seat by resignation is grave and a solemn act. The letter of resignation should be signed by the Member voluntarily and submitted personally to the Speaker or transmitted through duly authorised person for delivery to the Speaker. The Constitution has thus cast the onerous duty on the Speaker to make inquiry into the genuineness and voluntary nature of the resignation and also that it has come through an authorised person, if not submitted personally.

In the case of Mirza Tahir Beg vs. Syed Kausar Ali Shah and others reported in P.L.D. 1976 (S.C.) page 504, it has been held "If, on the other hand, the resignation is not presented personally but is sent through a messenger, as in the instant case, the Speaker will have to further satisfy himself that transmission is by an authorised person. The resignation could not have taken effect unless it was voluntary and intended to reach the Speaker in a matter chosen by the appellant himself."

In this case the appellant, a Member of the Punjab Legislative Assembly belonging to People’s Party allegedly sent a resignation letter on 16th February, 1974 through the President of the People's Party of Lahore Branch who handed over the same to the Speaker. It was addressed to the Speaker written and signed by the appellant and bore the same date. The Speaker made the following endorsement and marked it to the Secretary of the Assembly. "Received today. The Election Commission may be informed accordingly." Against this order of the Speaker, the appellant filed a writ challenging that the signature was obtained by force and coercion after he was kidnapped. Hence the question arose as to whether the Speaker had any duty before it was "received" within the meaning of Article 63 and 64 read with Article 127 of the Constitution of Pakistan. It was unanimously found in this case that "Speaker was under duty to inquire into the matter before allowing resignation to take effect. Provision of giving automatic effect to resignation once it reaches him implies resignation to be genuine and voluntary."

I have referred to the above two cases of Pakistan especially because the relevant provisions as to resignation in the Constitution of Pakistan and that of Bangladesh are almost coveted in the same and similar language as quoted above.

Thus in accepting or rejecting any letter of resignation, the practice and law in every country is that the signature of the Member who has resigned or is willing to resign must be genuine and he must sign voluntarily. In fact, natural justice also requires these two conditions to be fulfilled.

In the instant case therefore, expect the resignation letters of Sheikh Hasina, Hon'ble Leader of the Opposition, Mr. Mizanur Rahman Chowdhury, Hon'ble Member of Parliament and Mr. Matiur Rahman Nizami, Hon'ble Leader of Jamat-e-Islami, and Mr. Salahuddin Quader Chowdhury, M.P. none else handed over their resignation letters personally to the Speaker. The resignation letter of Mr. Hussain Mohammad Ershad, M.P. sent through jail authorities, duly attested, stands on the same footing and is an exception as he is in custody and his absence is involuntary. The resignation letter of Mr. Salahuddin Quader Chowdhury, M.P. was signed in my presence. Thus no question of genuineness or voluntaries regarding the aforesaid 5 (five) Hon'ble Members could be raised. As for the other 139 Hon'ble Members, their signatures are required to be examined, scrutinised and compared with their specimen signatures kept in this Secretariat. Whether those are genuine and voluntary demand examination.

On scrutiny of the above 139 resignation letters 121 are found to be genuine on comparison with their specimen signatures, although many of them are undated. As for the other 18 resignation letters (specifically mentioned in the Annex "A" to this decision) their signatures do not apparently tally with the specimen signatures. But the Secretariat has contacted these 18 Hon'ble Members on telephone and they have confirmed that their signatures are genuine.

As to whether the signatures of those 139 Members are voluntary or not, no question his so far been raised by any Hon'ble Member. I have therefore, no reason to hold that their signatures are not voluntary.

Let us now deal with Rule 177 of the Rules of Procedure of the Parliament, quoted herein above which clearly provides that it should be writing under his hand and shall not give any reason of resignation.

In the instant cases the reason for submitting en-masse resignation, namely, non-fulfillment of their demand for neutral non-partisan caretaker Government by the B.N.P. Government and other reasons have been assigned by 141 Member excepting Mr. Salahuddin Quader Chowdhury, MP, Mr. Hussain Mohammad Ershad, MP and Mr. Dabirul Islam, MP. Although the former two Hon'ble Members have stated certain extraneous matters I am inclined to exercise my discretion as laid down in the proviso to Rule 177 of the Rules of Procedure and find that their resignation letters contain no reason and hence receivable under Article 67(2) of the Constitution on this count. Since those 141 Members of Parliament, mentioned above, have assigned reasons for submitting resignation letters they have violated Rule 177 of the Rules of Procedure of the Parliament and as such their resignation letters are not receivable by me under Article 67(2) of the Constitution of the People's Republic of Bangladesh and Rule 178(4) of the Rules of Procedure of the Parliament need not be complied with.

In addition to what has been stated above, it appears that all the resignation letters submitted by the Hon'ble Members of Parliament belonging to Jatiya Party are typed letters except that of Mr. Sankar Gobindo Chowdhury, an MP of Awami League is also typed. It violates Rule 177 of the Rules of Procedure as stated before. I have already stated above that in addition to the legal requirements to be satisfied under Article 67(2) of the Constitution, the Rules of Procedure of the Parliament which is also a piece of legislation under the Constitution provided for two more additional requirement. All the Members of Parliament and the Speaker are bound to follow these procedures. In my opinion, a resignation letter is not a trifling matter: a Member is losing his seat by such a letter. So the legislature in their collective wisdom, felt it necessary, while framing the Rules under the Constitution, to add two more complementary conditions to be satisfied for "receiving" a resignation letter within the meaning of Article 67(2) of the Constitution. Be it mentioned that all other resignation letters appear to have been written by and under their own hands.

Hence, in the instant case all the resignation letters (excepting that of Mr. H.M. Ershad, MP) submitted by the Members of Jatiya Party are typed and the Hon'ble Members have only signed those typed letters but dates have been put by different ink. Besides, Mr. Sankar Gobindo Chowdhury, MP belonging to Awami League has also signed a typed letter.

I, therefore, hold that all these typed resignation letters do not satisfy the condition laid down in the Rule 177 of the Rules of Procedure and hence not "receivable" by me under Article 67(2) of the Constitution read with Rule 177 of the Rules of Procedure.

Details of my findings as to genuineness of the signatures, writings by and under the hand of the Hon'ble Members of Parliament who submitted resignation letters and all other relevant findings have been given in Annex "A" to this decision.

In conclusion, I find that excluding the case of 3 (three) Hon'ble Members namely, Mr. Mustafizur Rahman, Mr. Aktaruzzaman Chowdhury and Major General (Retd.) Mahmudul Hasan, about whom I have given my decision at the beginning, the remaining 144 resignation letters bear their genuine signatures and that those are voluntary.

I also find that, excluding the case of Mr. Hussain Mohammad Ershad, Hon'ble Member, resignation letters of the remaining 33 Members of Parliament belonging to Jatiyo Party and that to Mr. Sankar Gobindo Chowdhury, Hon'ble MP belonging to Awami League are not "receivable" by me within the meaning of Article 67(2) of the Constitution on the grounds that they have not complied with the provision laid down in Rule 177 of the Rules of Procedure of Parliament in as much as they have assigned reason for their resignation.

I also find that the resignation letters of one, Mr. Salahuddin Quader Chowdhury, two, Mr. Hussain Mohammad Ershad, and three, Mr. Dabirul Islam, Hon'ble Members are "receivable" by me within the meaning of Article 67(2) of the Constitution.

Thus point No. 1 is disposed of accordingly.

Point No. 2: This point in my view, is most important. The question is whether en masse submission of resignation letters by 144 Members of Parliament out of which 87 Members belong to Awami League, 34 Members to Jatiya Party, 19 Members to Jamat-e-Islami and Mr. Md. Dabirul Islam, M.P. and Mr. Md. Yusuf of C.P.B. and Mr. Suranjit Sen Gupta, M.P. of Ganatantri Party and Mr. Salauddin Quader Chowdhury of N.D.P. in the manner and under the circumstances, herein above mentioned, could be legally done within the meaning of Article 67(2) of the Constitution of the People's Republic of Bangladesh read with Rule 177 of the Rules of Procedure of the Parliament. In other words, whether such an en-block resignation by almost all the Member of the Opposition, in protest of non-acceptance of their demand for Caretaker Government has been conceived by or contemplated under Article 67(2) of the Constitution?

Prior to submission of the resignation the Opposition Parties abstained continuously from attending sessions of the Parliament without leave of the Parliament on the demand that the Treasury Bench shall have to introduce a Constitutional Amendment Bill to the effect that the National Elections for Members of Parliament shall have to be held under a Caretaker Government comprising natural and non-partisan persons to be nominated by the political Parties represented in the Parliament. They maintained that election of Members of Parliament, if held under the Ruling Party, cannot be free and fair. As the Ruling Party, namely Bangladesh Nationalist Party (BNP) was not conceding to their demand, the Opposition Members of Parliament took to streets by boycotting the sessions of the Parliament. Challenging the continuous and unabated abstention of Members of Parliament of the Opposition Parties, Mr. Mohd. Anwar Hossain Khan filed writ petition No. 1001 of 1994 in the High Court Division of the Supreme Court, Dhaka against Sheikh Hasina, MP. Hon'ble Leader of the Opposition and President Bangladesh Awami League, Mr. Moudud Ahmed, MP Hon'ble Leader of the Parliamentary Party of Jatiyo Party and Mowlana Matiur Rahman Nijami, Hon'ble Leader of the Parliamentary Party of Jamat-e-Islami.

In this case their Lordships, Mr. Justice Kazi Shafiuddin and Mr. Justice Kazi A.T. Monwaruddin passed judgment on 11^th December, 1994. It was held by their Lordships that "Article 67 clearly states that a Member could remain absent with leave of the Speaker. Nowhere, the Members are authorised to remain absent without leave of the Parliament. If Members walk out or boycott the Session they are to attend first then they may walk out. But without attendance no such walk-out is contemplated. If a Member remains absent, anybody on his behalf could ask for leave for such person, but absence without any leave is wholly illegal and unauthorised and therefore the long, unabated and continued absence cannot absolve the Members from the liability but such liability could be imposed only as provided under the Constitution. But absence without leave is illegal and unauthorised. The responded Nos. 3-5 both are validly elected as Members of the Parliament but are not attending the Parliament without any leave, are not discharging their Constitutional obligation but are engaged in some other activities prompted by political consideration namely for realisation of the demand for a Caretaker Government. The concept of Caretaker Government is nowhere to be found within the four corners of the Constitution. In the fundamental principal of state policy as stated in part II of the Constitution does not even contemplate such idea. Shorn of legal cover or sanction as to the demand of Caretaker Government, the respondent Nos. 3-5 along with others are abstaining from Parliament Session without leave and are carrying on activity for their own selfish ends which is clearly against their oath of Office; as such the demand so canvassed for by the respondent Nos. 3-5 in order to justify their unabated absence from Parliament is wholly illegal and unconstitutional.

Mr. Moudud Ahmed who was respondent No. 4 in the aforesaid writ petition stated in his affidavit-in-Opposition that the decision of his Party in the Parliament is to boycott the proceedings of the Parliament and it is further stated that to participate in the proceeding in the Parliament is only one of the functions of the Members of the Parliament. He further stated on oath that "the boycotting of the proceeding of Parliament was continued to pressurise the Government with the expectation that it would respond by resolving the issue peacefully and constitutionally inside the Parliament but it failed". It is further stated that "Members of Parliament belonging to the Opposition were always eager to join the Parliament but since the Ruling Party took no initiative to resolve impasse, it made the Parliament ineffective". So the abstention of the Members from Parliament is not a simple abstention but it is a conditional abstention i.e. the demand for Caretaker Government be not conceded by the Ruling Party they should abstain from Parliament until realisation of such demand."

In the said judgment of the writ petition their Lordships further held that "The normal course of effecting any reform or Amendment of the Constitution is to be done by introduction of a Bill and in case of Amendment of any constitutional provision two thirds majority of the Members of the Parliament is necessary. As the Ruling Party (BNP) is not conceding to such a demand, it is stated in the affidavit, the respondent Nos. 3-5 have opted for abstention and are making agitation in order to pressurise the Ruling Party to concede to such demand. Such an attempt is not only illegal and unconstitutional but is also a coercive measure unknown to the history of the country. Within the free-will and freedom to exercise one's judgment, subject to limitation imposed by law, each Member should participate in the internal proceedings of the Parliament. But such right of the Ruling Party has been taken away by the Members of the Opposition including the 3 respondents and they are not only coercing the Ruling Party Members to concede to their demands but also about to bring a downfall of the democratically elected Government for their selfish ends. This cannot be called a struggle for emancipation of down-trodden people or restoration of democracy, nationalism or socialism but be called sabotaging all efforts of the democratically elected Government, showing complete disregard. Nos. 3 to 5 cannot be called legal or constitutional but are violations of the provision of the constitutional and democratic norms."

The Appellate Division of the Supreme Court by an order dated 12^th of December, 1994 stayed the operation of the judgment passed by the High Court Division in the said writ petition until January 15^th, 1995 subsequently extended until disposal of the appeal. While the said writ petition No. 1001 of 1994 was pending and argument on both the sides were continuing, the Opposition Members made a declaration on 6-12-94 that they would resign en masse from Parliament on December 28 if the Ruling Party failed to accept their demand for a caretaker Government for holding general election to the Parliament which has been already held to be illegal by a competent Court. And on 28th of December, 1994 as stated in foregoing paragraphs, resignation letters were submitted to the Speaker of Parliament for being received under Article 67(2) of the Constitution read with Rule 177 of the Rules of Procedure.

Bearing these facts in our minds, let us try to address the question as to en masse resignation for Government refusal to accept the demand for a caretaker Government is legal and hence receivable by the Speaker or not. Article 67(2) of our Constitution reads as under:

"67(2):A Member of Parliament may resign his seat by writing under his hand addressed to the Speaker, and the seat shall become vacant when the writing is received by the Speaker, or if the Speaker is vacant or the Speaker is for any reason unable to perform his functions, by the Deputy Speaker."

To submit the resignation is of course a Member's right. This is an enabling Article. Now the question is what is the extent of this right and whether such a right as given under Article 67(2) could be exercised by a Member of Parliament and for what purpose could such a right be so exercised?

If a person has a right he must have a corrective duty. John Austin, in his Lectures on Jurisprudence says, "For though every law does not create a right, every right is the creature of Law. And though every obligation and sanction does not imply a right, every right implies an obligation and sanction."

Let us now examine the nature of this right. Is this right absolute or is it limited to the extent of his constitutional obligation to the people? As soon as he volunteers to represent the people in Parliament he is undertaking certain responsibility and obliged to serve them. Thus a representative is shrouded with the characteristic of a "representative" only after the electors as per law. The process of birth of a representative of the people has been laid down in "The Representation of the People Order, 1972 (P.O. 155 of 1972)". Electors are principals and representatives are their agents under the schema of PO 104/72 and 155/72. He is supposed to have held out his or his Party's programme to the people, given assurance to serve them. Sovereignty lies with the people, not with the Executive, Legislature or the Judiciary all three are creations of the Constitution. The sovereign will of the people to legislate is achieved through elected representatives, elected to the elective body that Parliament (Legislature) represents. So the Legislative Power, as envisaged by Article 65 read with Article 7 of the Constitution of the Republic belongs to the people. He has therefore a corresponding duty and obligation. He has also taken oath to the following effect:

"I have been elected a Member of Parliament do solemnly swear (or affirm) that I will faithfully discharge the duties upon which I am about to enter according to law:

That I will bear true faith and allegiance to Bangladesh;

And that I will not allow my personal interest to influence the discharge of my duties as a Member of Parliament."

Thus his right to resign is certainly not unfettered and absolute right. He, as a Member of Parliament, has undertaken the task of "faithfully discharging his duties" and will not allow his "personal interest to influence" the discharge of the said duties. The Constitution of the People's Republic of Bangladesh and the Rules of Procedure of the Parliament have set forth the duties of a Member of Parliament. It is known to all of us that the concept of a caretaker Government with natural non-partisan nominated persons is alien to our Constitution and is unknown to any democratic system or in any Constitution based on the principles of parliamentary democracy. It is known to us that no candidate, no elected Member of Parliament, no political Party had in his or its election manifesto in February, 1991 the concept of formation of a caretaker Government. Nobody got any such mandate from his voters, if so, then not only the demand for a natural non-partisan caretaker Government is illegal, as found by the High Court Division of the Supreme Court, but on the ground of non-acceptance of such a demand by the Government, no Member of Parliament has a right to resign in the manner and on the ground as they have done if he does so, he certainly violates his solemn oath and committing a breach to his duty towards his people.

Then, the question is, is a Member of Parliament not permitted at all to resign from Parliament? Yes, of course he can in normal and usual circumstances, and that is what exactly has been envisaged in Article 67(2) of the Constitution. If an elected Member becomes sick or otherwise is incapable of performing his duties for any other similar such reason he may of course resign. But could it be the intention of the framers of Constitution that such an unfettered and absolute right may be given to the Members of Parliament and by using that right the Members should create such a condition that the democratic system itself collapses or stands on the verge of being collapsed? The answer shall and must be no. Thus I find that this right as has been given to a Member of Parliament under Article 67(2) of our Constitution has been wrongly illegally used. It cannot be used as a weapon to create a constitutional crisis. If it is so, then en masse resignation to paralyse the Parliament and frustrate the democratic system and the scheme and fundamental principles of the Constitutional is illegal. It is a nugatory step designed to create a constitutional crisis which might force the democratically elected Government to fall instead of motion. If an interpretation is given to the effect that en masse resignation is contemplated by Article 67(2) of the Constitution, then its consequence may be that all future Parliaments in the country would meet similar fate and this virus may affect other Parliaments as well. As such it is inconceivable that the framers of the Constitution would sow a seed of destruction of the system they wanted to set up strengthen establish and institutionalise.

The next question which may come for consideration is, could the incidence of resignation be called a parliamentary privilege? In interpreting such words "right" or "privilege" the judges have to take resort to jurisprudentially meanings of these words because these had not been specifically defined in the laws. In our Constitution, Article 78 deals with the privileges of the Members.

"78(5) Subject to this Article, the privileges of Parliament and of its Committees and Members may be determined by Act of Parliament."

But there has been no Act so far passed by our Parliament stating the privileges of the Members. They only law that has so far been enacted is "The Members of Parliament (Remuneration and Allowances) Order, 1973", which does not contain any privilege of the nature we are discussing.

Parliamentary privileges have also not been defined in the interpretation clause of the Constitution of India (Article 366). Hatless, the great 18^th century authority, said, "The privileges of Parliament are rights which are absolutely necessary for the due execution of its power." (Hatless pre-Eden's 1818, Vol-1). It should be emphasised that these privileges are essentially those of the Parliament as a whole. Individual Members can only claim privileges in so far as any denial of their rights or threat made to them, would impede the functioning of the House. Members of many continental Parliaments cannot claim privileges that are unrelated to their functions in the House."

In a similar tone, MN Kaul and SL Shakdar in "Practice and Procedure of Parliament" (fourth Edition, 1991 page 193] say "In parliamentary language the term privilege applies to certain rights and immunities enjoyed by each House of Parliament and Committees of each House collectively and by Members of each House individually. The object of parliamentary privileges is to safeguard the freedom the authority and the dignity of the Parliament. Privileges are necessary for the purpose of exercise of the functions entrusted to Parliament by Constitution. They are enjoyed by the individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members."

Thus a reading of all these suggests that a parliamentary privilege is available to a Member of Parliament to enable him to effectively discharge his duty in the House of the Parliament and not to resign from the Parliament or to join hands with others and then to create an issue like a caretaker Government (not found in the Constitution) and destroy the very existence of Parliament and create a Constitutional crisis.

Article 67(2) has to be read and interpreted not in an isolated way but along with other Articles of the said Constitution its spirit, basis and fundamental principles. Happily our Judiciary was never oblivious to this cardinal principle of Constitutional interpretation. Our counts have always "taken light from the burning candle". It has taken into consideration the socio-economic condition of our people the grim realities of our lives, our national aspirations, and has always followed the principles of natural justice in interpreting our Constitution. In fact, in part II of our Constitution particularly Article 8(2) clearly states as to how our Constitution would be interpreted and which are the principles that shall guide such interpretation. There has been quite a good number of judicial decisions passed by our illustrious Judges of both the High Court Division of the Supreme Court and the Appellate Division reported in various Law Journals. A recent publication captioned "Bangladesh Constitution: Trends and Issues" by Mr. Justice Mustafa Kamal is a superb work on such decisions.

About the difference made in interpretation of subordinate law and Constitution provisions, Lord Diplock expressing the majority view in Hinds and Others vs. The Queen (1976) I ALL E.R. page 353 says:

"To seek to apply to Constitutional instruments the cannons of construction applicable to ordinary legislation in the fields of substantive criminal and civil law would, in their Lordships view, be misleading.

In the case of Kudrat-E-Elahi Banir and others VS Bangladesh reported in 44 D.L.R. (AD) page 314, Mustafa Kamal says that a Constitutional provision is to be interpreted in the following way:

"It is law of the Constitution itself that the fundamental principles of State policy are not laws themselves but "Principles". To equate "Principles" with "laws" is to go against the Law or the Constitution itself. Thus interpretation of constitutional law does not stand on the same footing as interpretation of sub-ordinate law."

Like 1972 immediately after liberation war, the people of Bangladesh got another opportunity in 1991 to establish their democratic rights and march ahead with economic reforms. On both the occasions they got ideal opportunity for building up democratic institutions, culture and norms with a distinct national vision.

The new Fifth Parliament had its first sitting of 5^th of April 1991. However after a few turbulent sessions the question of switching over to a parliamentary system was accepted to all the political Parties in the Parliament. Consequently the 11^th and 12^th Amendment Acts were passed in August, 1991. After a prolonged struggle and blood bath, it was a real victory of the people. Constitutional provisions were amended unanimously. The presidential system was abandoned and a parliamentary system of democracy was unanimously accepted. All the relevant Articles of the Constitution stood amended. The object and reasons for which the 12^th Amendment was passed unanimously have been set out as follows.

"The present Parliament is the outcome of a President, and served people's movement for the last eight years which culminated into an unprecedented mass upsurge at its last stage. This unique Parliament has therefore a distinct national appeal. The Members of this Parliament have been elected by direct adult franchise in a free, fair and impartial election held under a natural non-partisan caretaker Government in a ever peaceful atmosphere have therefore an undisputed appeal and prestige. To them the people's aspirations are immense. Such hopes and aspirations of the people could only be fulfilled by establishing a Government accountable to Parliament through a democratic process based on the backdrop of realities and multiparty system. Thus to adorn democracy with an institutional shape this Amendment Bill of the Constitution is deemed expedient and essential."

The above brief and bare statement of historical facts have been given with a definite purpose to show what is the historical background of the present Constitution to show what is the ultimate goal of the people of this country and where do we really intend to go now. Does this nation what to institutionalise and strengthen democracy? Should we really have a national vision? Keeping all these aspects in view we have also to interpret our Constitutional provisions in the light of the objectives and reasons for the 12th Amendment as stated above and the preamble to the Constitution which runs as under:

"We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People's Republic of Bangladesh.

Pledging that the high ideas of absolute trust and faith in the Almighty Allah nationalism democracy and socialism meaning economic and social justice, which inspired our heroic to dedicate themselves to and our brave martyrs to sacrifice their lives in the war for national independence shall be the fundamental principles of the Constitution;

Further pledging that it shall be a fundamental aim of the state to realise through the democratic process a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;

Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and cooperation in keeping with the progressive aspirations of mankind."

Rule 177(1) provides that no reason shall be assigned by a Member in the resignation letter. Proviso to this Rule, however, says that the Speaker has a discretion not to read in the House.

Now the question is can it be said that the identical reason assigned by all the 144 Members is extraneous or irrelevant? For getting the correct answer it is necessary to examine the reason assigned together with the backdrop of events leading to such resignation and the manner in which these were submitted. I have already mentioned that these were submitted by Leaders of the three Opposition Parties in three folders. The reason assigned is the failure of the majority Party to bring a Bill in Parliament for making provision to hold future elections to Parliament under a caretaker Government. On the issue the Opposition Members continued boycotting the sessions from last March, 1994.

Thus it is imperative to examine in its true perspective whether or not Article 67(2) of the Constitution contemplates such resignation. For finding a correct answer to this question of fundamental importance it is necessary to refer to some Constitutional provisions relating to governance of the country, composition and tenure of Parliament, election of Members and the oath taken by the Members after being elected.

It is one of the fundamental principles of state policy to attain the objectives set forth in the Constitution through democratic process. In furtherance of this, the Constitution provides for governance of the country by elected representatives of the people and further provides for transfer of power by elected Government to another elected Government.

As per provision of the Constitution the Parliament comprises of 330 Members of whom 300 Members are to be elected by the people and the Members so elect 30 women Members thus bringing the total to 330. The tenure of the Parliament is a period of five years.

Now, before election a candidate seeks votes of the electorate on the pledge or solemn promise to represent the interest of the electorate in the Parliament and to actively participate to enact laws for the welfare of the people and to focus attention on the problems of the people for proper redress. After being elected, a Member is required to take oath as prescribed by the Constitution which has already been quoted above.

Now, under democratic dispensation, as contemplated by the Constitution, all decisions are to be taken on the basis of majority opinion. Indeed this is the fundamental concept of democracy and clearly enshrined in our Constitution. But the reason assigned in the resignation letters as already indicate herein before is against the very concept of democracy and contrary to the Constitutional provisions.

Article 67(2) of the Constitution is an enabling provision which provides that a Member may resign. It is important to bear in mind that the Constitution cannot and does not contain any provision which will enable a Member or a number of Members of a Parliament to do everything which will impede, disrupt or frustrate the objectives sought to be achieved through democratic proceeds clearly stipulated in the Constitution.

The reason assigned to the en masse resignation of 144 Members of the Parliament, an assigning reason already indicated, is designed to frustrate the democratic process and push the country into a Constitutional crisis with unpredictable consequences. I am clearly of the opinion that these resignation letters which contained reasons opposed to the very concept of democracy and contrary to the fundamental principles of state policy are not contemplated by Article 67(2) of Constitution. Be it mentioned that although the resignation letters of Mr. Salauddin Quader Chowdhury, Mr. Hussain Mohammad Ershad and that also found to be not receivable under Article 67(2) of the Constitution as they have acted in furtherance of a common intention.

Having given my anxious thought and from my examination and consideration of the Constitutional provisions the irresistible conclusion is that these 144 resignation letters cannot be deemed to have been received by me as contemplated by Article 67(2) of the Constitution.

In the mentioned SI. no. 1, 14, 34, 55, 56, 57, 58, 59, 61, 74, 86, 90, 92, 93, 101, 103, 143 and 144, eighteen Hon'ble Members said that the signature in the letter belongs to them, when a contract was made with them.

[Eighteenth session of the Fifth Parliament, February 23, 1995]

Mr. Speaker: Hon'ble Members, Hon'ble Member Mr. Nazmul Huda submitted a prayer on 19-6-95 under Rule 179(3) of the Rules of Procedure to the Secretariat asking for ten days leave on behalf of the 149 Members of the Opposition. The same day he raised a point of order before the Speaker could take any decision on his prayer. The Rule 179(3) says, "when a Member is prevented or incapacitated from making such an application, leave of the House may be granted on a motion moved by any other Member provided that a Member who has been granted leave under these Rules by the House may attend the session of the House before the expiry of such leave with intimation to the Speaker, and if he does so the unexpired portion of the leave from the date of his resuming attendance shall lapse."

Mr. Huda did not apply for leave for 149 Members of the Opposition in the form of a proposal under the Rule, rather he himself had sent a written prayer on their behalf. Hon'ble Member Mr. Abdur Rob Chowdhury has requested the Speaker to use his discretion and treat the prayer as a proposal. Even though the permission is granted, Mr. Huda would have to fulfill two more conditions. He has to prove that the 149 MPs of the Opposition were prevented from applying for leave from June 19 for ten days and how they were prevented but he could not do so. Rather he in his statement narrated that the MPs because of the political decisions from their respective Parties which was compulsory on them obtained from applying and were not able to apply. Mr. Nazmul Huda should have remembered that the 149 MPs for whom he had applied belonged to different political Parties and they all were political Leaders of their respective Parties. Accordingly the decision of their boycotting the Parliament was theirs and nobody has imposed on them. In this connection, Mr. Kaul and Mr. Shakdher in their book "Practice and Procedures of Parliament" in pages 337 and 338 (fourth edition) said, "Applications for leave of absence have to specify the grounds for leave. The reasons given in the application should be proper, sufficient and convincing. On the recommendation of the Committee on Absence of Members Lok Sabha has laid down that the grounds on which leave could be granted to Members can be:

(i) Illness of self, including medical check up;

(ii) Illness, accident or mishap in the family;

(iii) Death in family;

(iv) Marriage of self or marriage in family;

(v) Detention in jail;

(vi) Pilgrimage or participation in religious celebrations;

(vii) Visits abroad for (a) participation in conferences and delegations, (b) study tours (c) lecturing, or (d) participation in games and sports;

(viii) Relief work in natural calamities like floods, drought, fire or earth quake in the constituency or any part of the country;

(ix) Work connected with delimitation of constituencies or preparation of electoral rolls;

(x) Celebrations in the constituency like Martyr's day, centenary celebrations, inauguration of a new project, Assembly or State etc, in which the Member has been assigned a prominent role;

(xii) Elections or by-elections in the constituency;

(xiii) Participation in Party session or Party meetings;

(xiv) Agitation's or disturbances in the constituency; and

(xv) Breakdown of communications;

Moreover, the statements of 149 MPs at different public places and to the press have no conformity with the contents of Mr. Huda's prayer. Even Mr. Huda has applied for three dead MPs, four MPs who have been absent in the session for 89 days and this prayer was unsolicited and nobody has authorized him to do so. Therefore, as the prayer of Mr. Nazmul Huda on behalf of 149 MPs for ten days leave did not fulfill the conditions of Rule 179(3) of the Rules of Procedure and as he did not have the jurisdiction or right of making such a prayer, the prayer is not acceptable. So the point of order raised by him is rejected.

[Twentieth session of the Fifth Parliament, 22nd June, 1995]