Suspending rights through emergency challenged: High Court rule on govt

The Daily Star, November 25, 2008

The High Court (HC) yesterday issued a rule upon the government to explain why the provisions of the constitution empowering the president to suspend the fundamental rights of the people during the state emergency should not be declared void.

Upon a writ petition, the HC bench comprising Justice Syed Mahmud Hossain and Justice Quamrul Islam Siddiqui also asked the government to explain why the president’s proclamation of emergency, suspending the fundamental rights on January 11, 2007, should not be declared unconstitutional.

The law secretary, president’s secretary and home secretary have been made respondents and asked to reply within four weeks.

Retired secretary M Asafuddowlah, New Age editor Nurul Kabir, senior journalist Amir Khasru and former Jahangir Nagar University teacher Rahnuma Ahmed filed the writ petition as public interest litigation with the HC challenging the legality of Article 26(3), 141(B), 141(C) and 142(2) of the constitution suspending the fundamental rights of the people enshrined in Articles 36, 37, 38, 39 40 and 42 of the constitution.

The petitioners also challenged the legality of the President’s Emergency Proclamation Orders (EPO) 1 and 2.

The president issued the EPO 1 on January 11, 2007, and EPO 2 on January 13, 2007, suspending the right to move any court for the enforcement of the fundamental rights during the emergency.

Counsel for the petitioners, barrister Moyeen Firozee argued before the court that Articles 26(3), 141B, 141C and 142 (2) were inserted through the Second Amendment to the constitution in 1973 for the obvious purpose of curtailment of the fundamental rights of the people.

He said fundamental rights are guaranteed in the constitution and through the second amendment the harmony of the constitution has been damaged.

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