IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 1760 OF 2020

IN THE MATTER OF:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

-And-

IN THE MATTER OF:

S. M. Enamul Haqre Mahatab Uddin and others     …Petitioners

-V E R S U S-

The Secretary, Ministry of Liberation War Affairs, Bangladesh Secretariat, Dhaka and others

                                                        ...Respondents

Mr. Nur Muhammad Azami, Advocate with

......For the petitioners Mr. Sk. Shaifuzzaman, DAG with

Ms. Rehana Sultana, AAG and

Mr. Md. Salim Azad, AAG and

Mr. Md. Samiul Alam Sarkar, AAG and

Ms. Zulfia Akhter, AAGs

                           …. For the respondents

Heard and Judgment On : 16.11.2023

Present:

Mr. Justice K.M. Kamrul Kader

           And

Mr. Justice Khizir Hayat

K.M. Kamrul Kader , J :

On an application made by the petitioner under article 102 of the Constitution  of the People’s Republic of Bangladesh, this Rule  Nisi  was issued on 09.03.2020, in following terms:-

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned Memo No. 48.02.0000.03.000.140.19-228 dated 18.04.2019 issued under the signature of the respondent No.5 re-constituting the Muktijoddha Scrutinizing Committee Kathalia, Jhalokthi

(Annexure-C) should not be declared to have been issued without lawful authority and is of no legal effect and/or pass

such other or further order of orders as to this Court may seem

fit and proper.”

Facts relevant for disposal of the Rule, in short, are that all the

petitioners are Freedom Fighters of Bangladesh Liberation War, 1971 and they have fought in our liberation war for the independent of our Motherland and in recognition of their sacrifice, they were awarded as “Freedom Fighters” and the respondent No. 1 had published different list of Freedom Fighters. In order to scrutiny the “Freedom Fighters” status all over the country the Jatio Muktijuddha Council (JAMUKA) framed a Guideline/Nitimala under the heading of “Muktijuddha Jachai Bachai Nirdeshika 2016”. Subsequently, the respondent No. 1 formed a Committee for scrutiny of the Freedom Fighters of Bangladesh Libration War vides Memo No. 48.00.0000. 004.49.233.09-92 dated 12.01.2017.

It is stated that previously the respondents sent a report vide Memo No.05.10.4243.010.50.050.16 (Part-1)-26 dated 04.01.2018 amending the earlier list of Freedom Fighters. It is also stated that on 21st March 2019 a Board Meeting was held at the Office of the respondent No. 2, upon discussion, the respondents took a resolution vide agenda Nos. 7 and 13 for reconstruction of Upazila Freedom Fighters Scrutiny Committee, of those Upazila which had recommended for inclusion the names of the Freedom Fighters more than 10% of the existing list and also passed a direction upon the newly constructed committee to prepare a list of the Freedom Fighters after further verification of the ‘Ka’ list. On the basis of the resolution Nos.7 and 13 dated 21st March 2019 taken in the 61st Board Meeting. The Director,

Development Jatiya Muktijoddha Command Council issued Memo No. 48.02. 0000.003.000.140.19-228 dated 18th April 2019 giving direction for preparing report upon scrutinizing ‘Ka’ list of the Freedom Fighters of different Upazila through reconstructed Committee, inasmuch as in the “Ka” list recommendations had been made for inclusion of names of Freedom Fighters for more than 10% of the existing list.

 The JAMUKA authorized the scrutinizing committee to find out the Freedom Fighters from the ‘Ka’ list. After scrutinizing the applications of the Freedom Fighters and other relevant documents and evidence both documentary and oral from its local area and further directions are given to justify in the booklet published by Ministry of Liberation War Affairs. Thereafter, all the members of different Upazila Scrutiny Committee, after considering and scrutinizing the applications with utmost good faith and guidelines of booklet, evidences of proof, prepared a list of real freedom fighter.  It is also stated that the Upazilla Nirbahi Officer as Member Secretary of the Committee sent the list to the Jatiyo Muktijodha Council i.e. the office of the respondent No.2 for its perusal and approval. However, On 21.03.2109, 61st meeting was held at the office of the Jatiyo Muktijoddha Council presided by the respondent No.2 along with other members of the Jatiyo Muktijoddha Council (JAMUKA) and a resolution has been passed that if any scrutiny committee send more than 10%  names as Freedom Fighter out of their existing list of  Freedom Fighter then these lists are required to be re-scrutinized by reconstructed committee and took further resolution by re-constructing the Muktijoddha Scrutiny  Committee for Upazila in all over Bangladesh in following manner:

Qh ¢

It is also stated that immediately after 61st meeting of Muktijoddha Council, the Director, Development Jatiya Muktijoddha Command Council vide  Memo  No. 48.02. 0000.003.000.140.19-228  dated  18.04.2019  re- constructed the Muktijoddha Scrutiny Committee for different Upazila, of Bangladesh  on  the  ground  that  those  Upazilla  Muktijoddha  Scrutiny Committee  send  more  than  10% name  out  of the  applications  forwarded before them. It is further stated that Jatya Muktjoddha Council is a statutory body  and it  was  established  under  the Act  of  Parliament  namely  "Jatiyo Muktijoddha Council Act, 2002" with certain vision and mission and the said Act  clearly  describe the ambit of  works  and Jatiya Muktijoddha  Council cannot constitute any committee or dissolved any committee, its power only lies upon the  Ministry of Liberation  Affairs.  But in the instant case the Director  (Development),  Jatiya  Muktijuddha  Command  Council  vide  it’s Memo  No. 48.02.0000.003.000.140.19-228  dated  18.04.2019  having  no jurisdiction to reconstitute the Upazila Scrutiny Committee for determination of real and genuine Muktijoddha. The petitioners are bravest son of the soil, fought  for  the  country  along  with  other  Freedom  Fighters  during  the

Liberation War in 1971 and achieved the independence of Bangladesh. They are well known Freedom Fighters of the country.  It is stated that the Respondent No. 1 decided to verify the genuineness of the list of freedom fighters and accordingly, Upazilla / Thana Freedom Fighters Verification Committee was formed in different Upazilla in violation of law.

Being aggrieved by and dissatisfied with the direction of the respondents vide Memo No. 48.02.0000.003.000.140.19-228 dated 18.04.2019 the petitioners preferred this instant writ petition before this Court and obtained the instant Rule.

Mr. Nur Muhammad Azami,  learned Advocate for the petitioners submits that the petitioners have taken risk to save the Motherland at the time of Libration War of Bangladesh on the call of the Father of the Nation Bangabondhu Sheikh Mujibur Rahman and as such, further verification of the ‘Ka’ list due to inclusion the names of Freedom Fighters for more than 10% of the existing list of the Upazila is illegal, malafide and is of no legal effect. He also submits that the acts of the State functionaries had not been done fairly and in accordance with law and as such, the Memo No. 48.02.0000.003.000.140.19-228 dated 18.04.2019 issued under the signature of the Director (Development), Jatiya Muktijoddha Council preparing report upon further scrutinizing “Ka” list of the Freedom Fighter through reconstructed Committee for inclusion the names of the Freedom Fighters for more than 10% of the existing list is illegal and without any lawful authority.  Learned Advocate for the petitioners again submits that the section 7 of

the S¡a£u j¤¢š²­k¡Ü¡ L¡E¢¾pm BCe, 2002 does not empower the JAMUKA/respondents to restrict enrolling the real Freedom Fighters. Real

Freedom Fighters, who were not listed previously, could be more or less than 10% of the existing Freedom Fighters’ enjoying allowances. The only criteria of finding out the real Freedom Fighters left out should be conducted under strict verification and scrutiny and the respondents have already done so through the ‘Ka’ list that contained the names of real Freedom Fighters, including the petitioners. As such, the impugned restriction is not only an unreasonable one but also has been passed and issued without lawful authority. He further submits that the decision taken by JAMUKA in its 61st Board Meeting and the impugned memo issued pursuant thereto is arbitrary and illegal, inasmuch as, the same has imposed an undue restriction upon enlisting the real freedom fighters without any basis. Such constraint of enlistment of freedom fighter is nothing, but colorable exercise of power of the concerned authority. He also submits that imposing of an indirect limitation by the impugned memo on the power conferred on all Upazilla Verification Committee has compelled the committee to exclude those freedom fighters, who have been found genuine by the “Ka” list. This empowers the committee to Act arbitrarily on a “pick and choose” manner. As such, the impugned memo is liable to be struck down. He submits that the imposition of restriction on the listing of genuine Freedom Fighters are vague and ambiguous inasmuch as the number of freedom fighters, who fought for the independence of the country in 1971, cannot be restricted now by the impugned Memo. Moreover, the impugned memo does not define who would be called as “new freedom fighter”. As such, it would create a dilemma on the Upazilla Committee while exercising its power to prepare a list of Freedom Fighters. As such, the same is liable to be struck down. He further argued that since the “Ka” list was prepared and published on a mammoth scrutiny, the right of the “Ka” listed freedom fighters’ (the writ petitioners) cannot be taken away arbitrarily on a pick and choose manner. As such, the same is liable to be declared illegal and to have been passed without lawful authority and as such, the learned Advocate for the petitioners prays for making the Rules absolute.

Learned Deputy Attorney General appearing for the respondent did not oppose the Rule.

Heard  the  learned  Advocate  for  the  petitioners  as  well  as  learned Deputy Attorney General appeared on behalf of the respondents. We have also perused the writ petition, affidavit-in-opposition, supplementary affidavit and all annexures annexed with the writ petition and all other materials on record, wherefrom it transpires that the petitioners’ names were published in the ‘Ka’ list as Freedom Fighter. The respondents are the authority to prepare the list of the Freedom Fighters. Accordingly, they formed a Muktijaddha Jachai-Bachai Committee for scrutinizing the applications and prepared the Freedom Fighters list. It is apparent from the record that the ‘Ka’ list of the Freedom Fighters by the Muktijaddha Jachai-Bachai Committee, however, the Ministry, the respondent Nos. 1 and 2 without scrutinizing the ‘Ka’ list, they directed the local Jachai-Bachai Committee for further scrutinizing the applications on the basis of the 61st Board Meeting, which reads as follows:-

u £ i¢š­a

Hhw É

 Y¡L¡

¢V

j¢Vl, ¢

l 22¢V

a­hce

hce

k¡Ü¡ ­

f§ZÑz H…­m¡ V z

¢j¢Vl V

u¡

u¡u

pÜ¡¿¹¢

Sm¡u a¥

h¡R¡C

­Sm¡u e ¥

 f¤ex pÉl

œ²j Ñ

¡

cl j¢V

The learned Advocate for the petitioners argued that the petitioners are Freedom Fighter as per “Ka” list and section 7 of the S¡a£u j¤¢š²®k¡Ü¡ L¡E¢¾pm BCe, 2002 does not empower the JAMUKA/respondents to restrict enrollment

of the real Freedom Fighters.

According  to  the  definition  given  under  the  Gazettee   notification

being  Memo  No.  48.00.0000.004.49.233.09-1832  dated  10.11.2016  which

clearly stated that,” S¡¢al ¢fa¡ h‰hå¥ ®nM j¤¢Sh¤l lqj¡e LaѪL ü¡d£ea¡l ®O¡oZ¡u p¡s¡ ¢c- ­u 1971 p¡­m 26 ®n j¡QÑ q­a 16C ¢X­pðl fkÑ¿¹ pj®ul j­dÉ ®k pLm hÉ¢š² h¡wm¡­c­nl jq¡e ü¡d£ea¡l ASÑ­el m­rÉ j¤¢š²k¤­Ü AwnNqËZ L­l­Re a¡ly¡C j¤¢š²­k¡Ü¡ ¢q­p­h NeÉ q­hez” Real

Freedom Fighters, who were not listed previously, could be more or less than

10% of the existing Freedom Fighters’ who are enjoying allowances. The

only  criteria of finding  out  the real Freedom  Fighters  left out  should be

conducted under strict verification and scrutiny and the respondents have

already done so through the “Ka” list that contains the names of real Freedom

Fighters, including the petitioners.

The Father of the Nation Bangabondhu Sheikh Mujibur Rahman had

declared independence of Bangladesh and after his declaration, the Bangalees

in response to the said declaration of independence came out to resist the

occupying Pakistani force. In order to participate in the Liberation War and to

make free our motherland  from the  Pakistani occupying force,  they  took

training at different camps and thereafter, they bravely fought against the well

equipped Pakistani forces. After 9(nine) months of Liberation War, the

occupying forces were forced to surrender and we achieved our freedom and

these courageous sons of the soil sacrificed themselves to make free our

motherland. After obtaining our freedom, the Father of the Nation returned

home on 10th January, 1972, and the newly formed Government took several decisions to build up the country and the then Government also honored our freedom fighters and decision was taken to give allowances to the freedom fighters. However, after our Great Liberation War, we failed to enlist all names of the freedom fighters of our Great Liberation War, due to this reason, on several occasions the Government or authority issued several rules and regulations for enlistment of the freedom fighters. It is also evident in

annexures in this writ petition, the directives of the Hon’ble Prime Minister’s office and other notices issued under the Ministry of Liberation War Affairs. However, no circular or Paripotra or office letter can supersede the binding effect of the law enacted by our National Parliament.

According to the provision of the S¡a£u j¤¢J²­k¡Ü¡ L¡E¢¾pm BCe, 2002, the S¡a£u j¤¢J²­k¡Ü¡ L¡E¢¾pm (herein after referred to as JAMUKA) is the sole authority to hold the scrutiny process of the freedom fighters and after scrutinizing the oral/documentary evidences of the Freedom Fighters the respondents has prepared list of the Freedom Fighters. We also noticed that there are some greedy people who tried to illegally grab government benefit

as freedom fighters and in doing so, they created forged documents. On the contrary, there are some genuine Freedom Fighters have been deprived and put them at risk of exclusion from freedom fighter’s list and they have not been able to enjoy the government benefits and honorariums though they have been identified as genuine Freedom Fighter. In the instant writ petition, we find that after proper scrutiny of the documents of the petitioners, the Respondents prepared the “Ka” list and enlisted the names of the petitioners

as Freedom Fighters, which cannot be stopped, without giving any opportunity of being heard or only because the circular was issued subsequently by the Ministry of Liberation War Affairs. The respondents also failed to take necessary step as per Gazette notification of the Freedom Fighters for scrutinizing and enlisting the genuine freedom fighters and also

to ensure their all Government benefits and honorarium as per law so that, a single genuine Freedom Fighter should not be excluded from the said list.

The enlistment of the freedom fighters of this country is an ongoing process till today and after considering relevant papers and documents the list

of the freedom fighters list were finally published by the concerned Authority. But it appears from the decision of the 61st Board Meeting of the S¡a£u j¤¢J²k¡Ü¡

L¡E¢¾pm (JAMUKA) that if any Upazilla Scrutiny Committee send more than 10% names as Freedom Fighters out of their existing list of the Freedom Fighters then those lists need to be re-scrutinized by the reconstituted committees and that decision is not empowered by the section 7 of the S¡a£u j¤¢š²­k¡Ü¡ L¡E¢¾pm BCe, 2002. There is no barometer for scrutinizing the oral/documentary evidence to authenticate a document of a Freedom Fighter

on the basis of percentage and the impugned decision of more/less than 10%

of the existing Freedom Fighter without giving any logical or legal explanation is illegal. As such, the impugned restriction is not only an unreasonable one but also has been passed and issued without lawful authority.

Having given our anxious consideration to the facts and circumstances

of this writ petition and the submission as advanced by learned Advocates for the petitioners bears merit for consideration, as such, we are of the view that the scrutiny should be based on facts and circumstance of the each and every case individually, but not on mathematical terms by imposing restrictions of 10% will create undue, illegal restriction upon enlisting the names of the Freedom Fighters by the Muktijaddha Jachai-Bachai Committee of the different Upazillas. The applications relating to the Freedom Fighters should

be considered individually, not on the basis of percentage. As such, we are of

the view that the impugned decision of the 61st Board Meeting and subsequent act of the respondents are illegal and without any lawful authority. 

Accordingly, the Rule is made Absolute-in-part and the resolution Nos. 7 and 13 taken in the 61st Board Meeting dated 21.03.2019 by Jatiya Muktijoddha Council on the basis of this board meeting for inclusion of names of the Freedom Fighters for more than 10% of the existing list by the newly formed Muktijaddha Jachai-Bachai Committee of the different Upazillas, including the impugned Memos issued by the Director (Development), Jatiya Muktijoddha Council on different dates and all subsequent acts of the respondents is hereby declared illegal and without lawful authority.  The respondents are also directed to scrutiny the applications of the Freedom Fighters individually, if any, by giving opportunity of being heard by the relevant authority and this judgment will not create any bar upon the respondents to take any decision in respect of scrutiny of the freedom fighters list, fairly and properly to find out the real Freedom Fighters.

Communicate at once.

Khizir Hayat, J:

I agree.