HC asks govt to explain legality of emergency

Staff Correspondent, NewAge, July 21, 2008

The High Court on Sunday issued a rule on the military-controlled interim government to explain in four weeks the legality of the state of emergency, declared on January 11, 2007.

The High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuq Hossain Ahmed ordered the government to explain why the proclamation of the state of emergency, two emergency powers orders suspending fundamental rights, Emergency Powers Ordinance and the Emergency Powers Rules would not be declared ultra vires of the constitution.

The government will also need to detail in affidavit in four weeks when the national elections would be held and how it would hand over power to the elected representatives.

Issuing the directive on the government, the court also observed the government’s plan for power handover must be transparent.

The court passed the orders after hearing in four working days a public interest litigation writ petition filed by Supreme Court lawyers M Saleem Ullah, Mohsen Rashid, Nahid Sultana Juthi and Abdul Mannan Khan on July 14.

The petitioners’ counsel, Ruhul Quddus Babu, told reporters, ‘The court issued the rule being satisfied at the grounds mentioned in the petition.’

Deputy attorney general Naima Haider, who appeared for the government, told reporters, ‘The court asked the government to detail its plan on when the national elections would be held and how power would be handed over to the elected government… The court will also examine the legality of the state of emergency.’

The president proclaimed the state of emergency on January 11, 2007, stalling the elections to the ninth Jatiya Sangsad scheduled for January 22, 2007 and the present interim government came to power with military backing on January 12, 2007.

During Sunday’s hearing, the court asked the petitioners’ chief counsel MI Farooqui to explain the constitutional provisions on the declaration of emergency.
  The constitution empowers the president to issue a proclamation of emergency, but the power is not absolute, but conditional, Farooqui replied. ‘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”.’
   ‘But, 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,’ the counsel said.

Opposing the petition, Naima argued the president had declared the emergency in accordance with the constitution.
   Referring to the arguments of the petitioners’ counsel, the court asked the state attorney whether the emergency powers orders issued on January 11, 2007 had specified any specific fundamental rights to be suspended.

As Naima answered in the negative, the court said, ‘You cannot, according to the constitution, suspend all the fundamental rights… There are some rights which cannot be suspended under any circumstances.’

The court further said, ‘The suspension of fundamental rights without specifying them has made it difficult to examine whether you [government] have the power to make the ordinances you are making… The Supreme Court has the power to examine that.’

Naima also argued the emergency had been declared in the wake of a political turmoil and there had been a a situation in the days which warranted a state of emergency.

Opposing her contention, Farooqui argued there were democratic, political movements to uphold the people’s rights to vote. ‘A democratic, political movement cannot be considered an internal disturbance to invoke an emergency.’

Naima questioned the delay in filing the writ petition, saying, ‘It is too late… We have already headed towards elections and carried out a number of reforms.’

Elections to four city corporations and nine municipalities will be held on August 4 and the national polls in December, Naima contended. ‘Now one should not file such a petition which might hamper the process of the elections and reforms.’

The court said, ‘But the emergency continue for an indefinite period. There must be an end to it.’

Naima said, ‘The proclamation of emergency along with the orders, ordinance and the rules will be placed before the next parliament in accordance with the constitution.’

‘But the spirit of the constitution does not allow an emergency for indefinite period,’ the court said. The government’s plan to hold the national elections, the deadline for the elections and the process and timeframe for power handover to the elected government must be transparent to the people, the court said. ‘We want rule of law to be established and the constitution and democracy to be sustained.’


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