HC strikes down Contempt of Courts Ordinance: Caretaker govt cannot make ordinance unless related to polls

Staff Correspondent, NewAge, July 25, 2008. Dhaka, Bangladesh

The High Court on Thursday declared illegal and cancelled the Contempt of Courts Ordinance 2008, observing the caretaker government had no authority to promulgate any ordinance making provisions not directly related to elections or indispensable for running routine government work.
   

The High Court bench of Justice ABM Khairul Haque and Justice M Abu Tariq delivered the verdict after hearing a writ petition filed by Supreme Court lawyers M Shamsul Haque and Tajul Islam and a rule issued suo moto by the court asking the government to explain the constitutionality of the ordinance.
   

With this, the High Court has so far declared illegal and void two ordinances, out of the total 84, promulgated by the president since January 12, 2007 when the military-controlled interim government assumed office after the declaration of the state of emergency the previous day.
   

The same bench on July 13 cancelled the Muslim Marriage and Divorce Ordinance 2008.
   

‘The caretaker government could promulgate no ordinance making provisions not directly related to elections… The president and the caretaker government do not represent the people… The shorter the tenure of such an undemocratic government, the better it is for all,’ the bench observed in the July 13 verdict.
   

The Appellate Division of the Supreme Court, however, on July 20 stayed for a month the July 13 verdict and ordered the government to file a regular appeal against the verdict in a month.
 The Appellate Division chamber judge, Justice MA Matin, passed the order after hearing a petition filed by the government on July 16 seeking a halt of the High Court verdict.
   

The government will also appeal against the Thursday verdict, deputy attorney general Idris Khan told reporters after the verdict.
   He also obtained a certificate from the court which said the case had involved a substantial question of law as to the interpretation of the constitution, allowing the government to appeal against the judgement. It means the government will not need the Appellate Division permission to file the appeal.
   

The court had also issued a similar certificate in the July 13 verdict.
 The government promulgated the Contempt of Courts Ordinance 2008 on May 25 repealing the Contempt of Courts Act 1926.
   

The High Court bench of Justice Syed Mahmud Hossain and Justice Farid Ahmed on June 8 issued a rule asking the government to explain the constitutionality of the ordinance after hearing a public interest litigation writ petition filed by M Shamsul Haque and Tajul Islam.
   

The High Court bench of Justice ABM Khairul Haque and Justice M Abu Tariq also issued a rule suo moto on July 6 asking the government why the ordinance would not be declared illegal and void.
   

The court delivered the verdict after hearing arguments on both the rules.
   

In the verdict, the court once again said the president had no authority to promulgate ordinances which are not related to elections and are not urgent during the tenure of the caretaker government.
   

Observing that the promulgation of the new Contempt of Courts Ordinance was a policy decision of the government, the court said the caretaker government had no power to make any policy decision as Article 58(D) of the constitution stipulates, ‘…except in the case of necessity for the discharge of such [routine] functions it [caretaker government] shall not make any policy decision.’
   

The government failed to prove that the promulgation of the ordinance was related to holding free and fair national elections or an utmost necessity for the discharge of its routine functions, the court observed.
   

The bench further observed the ordinance had run counter to the fundamental spirit of the constitution, curbed the freedom of the judiciary and belittled the Supreme Court.
 As for provisions in the ordinance which gave the president the power to waive punishment for contempt of courts and exempt public servants from personal appearance during proceedings in such cases and from liability of trial after their retirement, the court observed the provisions had given special benefits to public servants and thus had violated the right to get equal protection of law as guaranteed by the constitution.
   

Terming the ordinance an attempt to hamper the inherent power of the judiciary, the court said it had jeopardised the rule of law.
   

Writ petitioners’ counsel Abdur Razzaq moved the petition and the attorney general, Salahuddin Ahmed, appeared for the government.
   Senior lawyers Rafique-ul Huq, M Amirul Islam, former attorney general Mahmudul Islam, Shahdeen Malik, AHM Shamsuddin Chowdhury and Azamalul Hossain argued in the case as amici curiae.

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