Former Attorney General Mahmudul Islam on Tuesday said the High Court cannot issue any suo moto rule, a statement constitutional expert M Zahir opposed.
The two placed their observations as amici curiae (friends of court) before the Appellate Division during the hearing of an appeal against an HC verdict that had declared fatwa illegal.
According to the constitution, Mahmudul Islam said, the HC division cannot issue any rule without getting any application.
The HC can issue any rule nisi under Article 102 of the constitution on receiving an application filed by any aggrieved person.
Issuing suo moto rule by the HC is unconstitutional, he said categorically.
Mahmudul Islam also said the SC has granted the leave-to-appeal petition in the case regarding fatwa on this point.
He said the issue whether the HC has jurisdiction to issue suo moto rule should be settled first.
Meanwhile, Dr M Zahir opined that the HC can issue any suo moto rule on any issue relating to constitutional rights of the citizens.
The constitutional obligations imposed upon the judges and the SC and the third schedule of the constitution (oath of judges), customs, and long established principles allow the HC division to issue suo moto rules on different issues, he said.
On January 1, 2001, the HC declared illegal all punishments imposed in the name of fatwa after a hearing on its own suo moto ruling. The court issued the ruling following a newspaper report on hilla marriage (marriage with a third person).
Two maulanas -- Mufti Mohammad Toyeeb and Abul Kalam Azad -- challenged the verdict at the SC in the same year.
The apex court started hearing the appeal on March 1 this year.
The Daily Star. Tuesday, 25th April, 2011.
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