Supreme Court observes unelected government’s promulgation of ordinances ultra vires and unconstitutional

July 15, 2008

A Statement by the Asian Human Rights Commission (AHRC)

A High Court Division Bench of the Supreme Court of Bangladesh declared on Sunday [13 July 2008] that promulgation of ordinance by the country’s President, under unelected caretaker government be unconstitutional and ultra vires, unless the ordinance is directly related to the general election. The Bench comprising Justice A B M Khairul Huq and Justice Abu Tarique declared this verdict following a writ petition challenging the legality of the “Muslim Marriage and Divorce (Registration) Amendment Ordinance-2008. Bangladesh’s media published this news yesterday (Monday, 14 July).

According to the English dailies, The Daily Star and The New Age, the Ministry of Law issued a gazette notification on the ordinance on 20 February. The president of the marriage registers’ association and five other marriage registers lodged a writ petition with the High Court on 13 March. The Court issued a rule upon the government to explain the legality of the promulgation of the ordinance, but the government did not respond to the rule. The Court appointed Barrister Rafique-ul Huq, Barrister Azmalul Hossain and Barrister AHM Shamsuddin Chowdhury as amicus curiae (friends of the court) for legal interpretation in this matter along with Dr. Kamal Hossain, who did not made any argument before the Court. The Attorney General Barrister Fida M. Kamal also refrained from speaking on this issue when the Court invited him to do so. However, the Deputy Attorney General Mr. Iddrisur Rahman Khan pleaded for the government.

Observing that the powers of the Caretaker Government are narrower than those of a politically elected government, the Court said, “An ordinance can only be promulgated by the caretaker government if it is directly related to elections. Otherwise, that would be without lawful authority. If the power of the president is widened at the demand of particular quarters beyond the constitutional framework, the balance of the people’s powers would be jeopardised. Before promulgating any ordinance, the President must be satisfied that the elections will be hampered unless the ordinance is promulgated. Otherwise, the President cannot promulgate such an ordinance”.

The judgment observed, “In general, the President, in the exercise of his functions, acts in accordance with the advice of the Prime Minister. But, under Article 58E of the constitution [during the tenure of the caretaker government] the President does not act in accordance with the advice of the Chief Adviser to the caretaker government. The council of advisers (equivalent to the cabinet) also cannot advise him for promulgation of any ordinance. They can only request him. The President promulgates an ordinance on his own responsibility and power in accordance with Article 93 and 58D.”

Referring to a judgment delivered by the US Supreme Court in 1608, the Court said, “The President cannot go beyond the powers given to him by the constitution. If any person is aggrieved by an ordinance promulgated by the president, s/he can seek redress before the Supreme Court. The Supreme Court has the power to consider such a petition and to examine the constitutionality of the ordinance.”

“Every citizen and every person engaged in the service of the republic are bound to go by every article of the constitution. If the constitution is violated, however slightly, for some reason the probability arises for its complete destruction in the end,” the court observed, “No authority can violate the constitution on any grounds, as none is above law.”

The Court further said, “All powers in the republic belong to the people. In Bangladesh, elected parliament runs the state. The Prime Minister and the cabinet are accountable to the parliament for their functions. It means the elected government is accountable to the people.”

Commenting on the Muslim Marriage and Divorce Ordinance 2008 which empowered the deputy commissioners, instead of the law ministry, with the authority to hire and fire marriage registrars, promulgated on 20 February, the Court also observed, “The promulgation of the ordinance is without lawful authority. So, the ordinance is declared ultra vires of the constitution and void.”

The High Court Bench verdict has raised the question of legality with regards the promulgation of most of the ordinances of around 70 in number, promulgated so far by the President in the military-controlled regime. It is, however, highly assumed that the government will lodge an appeal with the Appellate Division of the Supreme Court challenging this verdict.

The Asian Human Rights Commission (AHRC) recalls that the Appellate Division of the Supreme Court, in a controversial verdict passed on 23 April 2008, abdicated its own constitutional power to entertain the petitions of bail from the persons implicated in the Emergency Powers Ordinance-2007 and the Emergency Powers Rules-2007. The professionals concerned will have to wait and see whether the Appellate Division, the highest organ of the Court prefers to overturn this verdict once again like what it did in the recent past or upholds a trend of loyalty to the Constitution and rule of law. Any further controversial verdict from the highest body of the Supreme Court will not only undermine rule of law but also lead to a total destruction of the already jeopardized democratic institutions. An obverse, on the contrary, can resist the temptation of power-abuse by the vested quarters, and champion the cause of democracy.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.


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