Constitutional debate awaits SC
M. Shahidul Islam
The staying on February 26 of an historic High Court judgment (of February 6) that had quashed the case's proceedings under the Emergency Provision Rules (EPR) spells a partial victory for the government, but the final outcome of the case will be known after an exhaustive hearing on the appeal due from March 16.
Legal experts say the case has become a litmus test for both the Executive and the Judiciary and entails constitutional debates. It, however, may not end with an outcome to let the two captive leaders - Khaleda Zia and Sheikh Hasina - off the legal clasp.
According to the appellant, the appeal was necessitated because the High Court verdict ignored greater public interest and the time and the context under which the EPR came into action.
It is also contended to have overlooked precedents and threw a patent challenge on the constitutionally mandated power of the President. The appellant also argues that public interest was grossly vitiated by the verdict as it carried the potential of holding in abeyance about 150 graft cases brought under the EPR while throwing into uncertainty the fates of about 50 verdicts rendered so far, and of another 50 cases being heard.
The appellant maintains that the government derived its legal mandate to arrest and put on trial so may people, including the two former prime ministers, from the authority vested on the Executive by the President. The Ordinance making power of the President is operative at any time when parliament is not in session or is dissolved.
The appellant also argues that the Emergency Ordinances have granted subsidiary legislative powers to the Executives to deal with such exceptional circumstances. Section 2(1) of the Emergency Powers Ordinance of 1974 afforded extensive powers to the Executive to make subsidiary Emergency Rules.
Sheikh Hasina and many others were arrested not only because complaints were filed against them during the statutory period, section 16 of the EPO empowered the 'Law and Order Maintaining Forces' to arrest any person on suspicion without warrant, while section 20 explicitly states that all personnel can "take any step including the use of force" to carry out any orders under these Rules.
A full panel of the Appellate Division is now expected to decide over the alleged pitfalls in the HC verdict by exhuming further the major arguments made by the learned judges. The Appellate Division will also examine why the court stated in its verdict that the case can not be tried under any other law.
In the verdict, the court observed, "The Emergency Powers Rules cannot be applied by any means to the incidents that have taken place before the declaration of the emergency." Regarding the inclusion of an offence for trial under the EPR, the court observed that an offence cannot be considered to be of public importance based on the offender's personal standing and social status.
Sound arguments and analyses constitute the fundamentals of any verdict in cases relating to constitutional disputes.
The verdict also noted, "The powers of the Supreme Court cannot be curtailed by means of the state of emergency.... and the emergency rules revoking the provision of seeking bail is 'ultra vires' of the Constitution. No laws can be made contradicting or undermining the fundamental rights of citizens guaranteed by the Constitution.... As per articles 31-35 of the Constitution, no law promulgated under the emergency rules can curb any civic rights, including bail." The appellant says this line of argument bypasses the very reasons that compel a state to declare emergency. Emergency rules come into play under exceptional circumstances.
The upcoming debate in the SC will also entail arguments over a precise definition of 'due process of law' which has two vital segments: substantive and procedural. The appellant argues that the court in this instance weighed heavily on substantive matters, which any Emergency provision tends to curtail, and totally ignored the procedural ones that have empowered the Executive to bring to justice the very people who have for long been playing with the fortune of the languished multitude with gleeful impunity. The appellant now expects the judges to empathize more with the notion of public goods affected by the EPR, including matters as important as the independence of the judiciary which could not be materialized during the 37 years of the nation's existence.
The appellant also maintains that the judges seemed overly preoccupied with the question of Hasina's freedom than what she was accused of. One of the cardinal principles of natural law and justice helps overcome the contradiction in the idea of freedom by supposing that the conditions and circumstances of a person's act compose a determinate background order that is normatively assessed. Personal responsibility extends not only to what a person does, but also to what he/she is, and all the circumstances of his/her life. In this particular instance, the primary concern can not be focused on individuals when preserving collective interest is the aim.
Looking for last minute shopping deals? Find them fast with Yahoo! Search. __._,_.___
[Disclaimer: ALOCHONA Management is not liable for information contained in this message. The author takes full responsibility.]
To unsubscribe/subscribe, send request to alochona-owner@egroups.com
__,_._,___
A constitutional debate awaits the Appellate Division of the Supreme Court (SC) as both the appellant and the defendant will reinforce their legal armoury to fight out an appeal hearing on the Azam J. Chowdhury-initiated extortion case against former Prime Minister Sheikh Hasina.
The staying on February 26 of an historic High Court judgment (of February 6) that had quashed the case's proceedings under the Emergency Provision Rules (EPR) spells a partial victory for the government, but the final outcome of the case will be known after an exhaustive hearing on the appeal due from March 16.
Legal experts say the case has become a litmus test for both the Executive and the Judiciary and entails constitutional debates. It, however, may not end with an outcome to let the two captive leaders - Khaleda Zia and Sheikh Hasina - off the legal clasp.
According to the appellant, the appeal was necessitated because the High Court verdict ignored greater public interest and the time and the context under which the EPR came into action.
It is also contended to have overlooked precedents and threw a patent challenge on the constitutionally mandated power of the President. The appellant also argues that public interest was grossly vitiated by the verdict as it carried the potential of holding in abeyance about 150 graft cases brought under the EPR while throwing into uncertainty the fates of about 50 verdicts rendered so far, and of another 50 cases being heard.
The appellant maintains that the government derived its legal mandate to arrest and put on trial so may people, including the two former prime ministers, from the authority vested on the Executive by the President. The Ordinance making power of the President is operative at any time when parliament is not in session or is dissolved.
The appellant also argues that the Emergency Ordinances have granted subsidiary legislative powers to the Executives to deal with such exceptional circumstances. Section 2(1) of the Emergency Powers Ordinance of 1974 afforded extensive powers to the Executive to make subsidiary Emergency Rules.
Sheikh Hasina and many others were arrested not only because complaints were filed against them during the statutory period, section 16 of the EPO empowered the 'Law and Order Maintaining Forces' to arrest any person on suspicion without warrant, while section 20 explicitly states that all personnel can "take any step including the use of force" to carry out any orders under these Rules.
A full panel of the Appellate Division is now expected to decide over the alleged pitfalls in the HC verdict by exhuming further the major arguments made by the learned judges. The Appellate Division will also examine why the court stated in its verdict that the case can not be tried under any other law.
In the verdict, the court observed, "The Emergency Powers Rules cannot be applied by any means to the incidents that have taken place before the declaration of the emergency." Regarding the inclusion of an offence for trial under the EPR, the court observed that an offence cannot be considered to be of public importance based on the offender's personal standing and social status.
Sound arguments and analyses constitute the fundamentals of any verdict in cases relating to constitutional disputes.
The verdict also noted, "The powers of the Supreme Court cannot be curtailed by means of the state of emergency.... and the emergency rules revoking the provision of seeking bail is 'ultra vires' of the Constitution. No laws can be made contradicting or undermining the fundamental rights of citizens guaranteed by the Constitution.... As per articles 31-35 of the Constitution, no law promulgated under the emergency rules can curb any civic rights, including bail." The appellant says this line of argument bypasses the very reasons that compel a state to declare emergency. Emergency rules come into play under exceptional circumstances.
The upcoming debate in the SC will also entail arguments over a precise definition of 'due process of law' which has two vital segments: substantive and procedural. The appellant argues that the court in this instance weighed heavily on substantive matters, which any Emergency provision tends to curtail, and totally ignored the procedural ones that have empowered the Executive to bring to justice the very people who have for long been playing with the fortune of the languished multitude with gleeful impunity. The appellant now expects the judges to empathize more with the notion of public goods affected by the EPR, including matters as important as the independence of the judiciary which could not be materialized during the 37 years of the nation's existence.
The appellant also maintains that the judges seemed overly preoccupied with the question of Hasina's freedom than what she was accused of. One of the cardinal principles of natural law and justice helps overcome the contradiction in the idea of freedom by supposing that the conditions and circumstances of a person's act compose a determinate background order that is normatively assessed. Personal responsibility extends not only to what a person does, but also to what he/she is, and all the circumstances of his/her life. In this particular instance, the primary concern can not be focused on individuals when preserving collective interest is the aim.
Looking for last minute shopping deals? Find them fast with Yahoo! Search. __._,_.___
[Disclaimer: ALOCHONA Management is not liable for information contained in this message. The author takes full responsibility.]
To unsubscribe/subscribe, send request to alochona-owner@egroups.com
Your email settings: Individual Email|Traditional
Change settings via the Web (Yahoo! ID required)
Change settings via email: Switch delivery to Daily Digest | Switch to Fully Featured
Visit Your Group | Yahoo! Groups Terms of Use | Unsubscribe
Change settings via the Web (Yahoo! ID required)
Change settings via email: Switch delivery to Daily Digest | Switch to Fully Featured
Visit Your Group | Yahoo! Groups Terms of Use | Unsubscribe
__,_._,___