CONSTITUTION: SEVENTH AMENDMENT

Publish by The Daily Star on 8th January, 2011 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
Dear Advocate,
My uncle was working at Chittagong port and he was sacked and military court gave him an imprisonment also. After the 7th amendment case lot of people who were suffered by military court, now is going to seek for remedy. I have very little knowledge about the legal system. My uncle has also expired. Can my aunt seek any legal remedy from Port authority? Specially the provident fund, gratuity and other benefits?

Distressed,
X from Badda

Response

Thank you very much for your query. Your queries are significant in the light of the Supreme Court’s recent judgment involving controversial fifth and seventh amendments of the Constitution. From the given limited fact it is difficult although not impossible to provide an elaborative answer to your query with precision without knowing the total scenario.

As far as the dismissal of your uncle is concerned, much depends upon the service Rule of the Chittagong Port Authority. If the Rule provides for any benefits upon cessation of employment by dismissal, your aunt can approach the concerned authority in this regard. Alternatively, if the Rule does not provide for any such benefits, such an attempt is likely to go in vain.

The Supreme Court in both the Judgments has declared all sorts of Martial Law instruments i.e. Proclamations, Orders, Instructions, made and given by the Martial Law Authority as illegal and void. However, all executive acts, things and deeds done and actions taken were condoned by the Court in order to avoid further chaos and considering interest of the country. The dismissal order of your uncle is likely to be an Executive Order. Hence, it is likely to survive even after the historic Judgment in issue. On the contrary, if your uncle was sacked by any of the abovementioned Martial Law Instruments, it is null and void according to the Judgment.

Irrespective of the nature of the dismissal order, it is wise to approach the Port Authorities on the first place. Considering the current situation prevailing in the country, your aunt may have the possibility to file a Writ Petition before the High Court Division to challenge the dismissal of her husband and to claim the corresponding benefits following the dismissal if the CPA refuses to provide the same.

It may be true that following the historical Judgments vis-à-vis fifth and seventh amendments, many aggrieved persons are having recourse to the Court. But, it has to be kept in mind that each case is having a different factual and legal background. Thus, your case is also different from the others. Hence, it is wise to consult a lawyer before taking any action with all the related documents and by way of giving him a detailed factual background. I hope the aforesaid opinion will help you to make headway towards a solution.