Emergency proclamation challenged in High Court

Staff Correspondent, NewAge, July 15, 2008

The legality of the state of emergency, proclaimed on January 11, 2007, has been challenged in the High Court.
 Supreme Court lawyers M Saleem Ullah, Mohsen Rashid, Nahid Sultana Juthi and Abdul Mannan Khan on Monday filed a writ petition challenging the legality of the declaration of the emergency, two emergency powers orders suspending fundamental rights, Emergency Powers Ordinance and the Emergency Powers Rules.
   

Moving the petition with the High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuq Hossain Ahmed, the petitioners’ counsel MI Farooqui said the president on January 11, 2007 had declared the emergency without any lawful authority.
   

The emergency was declared in violation of the constitution as there was no existence of ‘a grave emergency in which the security or economic life of Bangladesh’ was threatened by internal disturbance, the counsel said.
   

The court, however, adjourned the hearing till this morning as assistant attorney general Mahfuza Begum Nila sought time for the hearing on behalf of the government.
   

This is the first-ever writ petition challenging the declaration of the emergency and subsequent orders, ordinance and rules.
   

The constitution empowers the president to issue a proclamation of emergency, but the power is not absolute, but conditional, Farooqui said. ‘In order to declare emergency, the president must be objectively satisfied that “a grave emergency exists in which the security or economic life of Bangladesh is threatened by war or external aggression or internal disturbance”.’
   

In the proclamation, issued on January 11, 2007 declaring the emergency, no reasons were cited establishing the ‘objective satisfaction’ of the president for the declaration of the emergency, Farooqui said.


The declaration of the emergency is also tainted with malice in law as in the wake of strong condemnation, the president surrendered the de facto office of the chief adviser, but hastened to declare mala fide the emergency before the induction of the chief adviser on January 12, 2007, suspending fundamental rights without any specification, the counsel said.
   

The blanket suspension of the fundamental rights without any specification is in conflict with the constitution and the fundamental rights so suspended have no link with the objectives of the proclamation of the emergency and is also in direct conflict with the objects of the caretaker government to hold free, fair and credible national elections, he said.
   

He also said, ‘The caretaker government is a government defined by the constitution under the thirteenth amendment to the constitution and cannot assume the character of a representative government, nor can it claim to be supra-constitutional government and it has no authority to declare and linger the emergency beyond 90 days that goes against the objectives of the caretaker government to hold national elections within the specified period of 90 days.’

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