No Nonsense
Emergency power and irreparable harm
IN a landmark judgment on February 6, the High Court (HC) declared the government move in bringing the Tk 2.99 crore extortion case against former premier Sheikh Hasina under Emergency Power Rules (EPR) illegal, and quashed it.
The judgment held: "Since, in the rule, the sanction [for bringing the case under the EPR] has been challenged, and we [the judges] have found that the sanction was given without lawful authority as the offence was committed by the accused prior to promulgation of the emergency, the rule is absolute."
The defense lawyers applauded, saying that the judgment wasn't only their victory but also of the rule of law. If that rule is absolute, then how would the prosecution of war criminals be instituted under EPR? The government, however, challenged the legality of the judgment with the Supreme Court (SC).
The essence of the HC's arguments is:
* According to the provisions in Articles 31-35 of the Constitution, none of the rights of a citizen, including the right for bail, can be curtailed by promulgating any act during the state of emergency (SOE).
* Sections 497 and 498 of the Criminal Procedure Code entrust the court with the power to grant bail even in case of non-bailable offences.
* The Emergency Power Ordinance (EPO) also does not say that any rule could be formulated in contradiction with the constitution.
* The EPO gave the government the authority to formulate rules, but not to formulate any that goes beyond the ordinance itself.
The court said that the extortion case filed by Azam J. Chowdhury (AJC) was approved by the authorities concerned to be brought under the EPR. The court observed that the sanction was given on consideration of the status of the accused. This contradicts the existing provision in the law regarding the sanction, which states that public importance of the offence must be considered for such sanction and there's no provision for considering the status of the accused.
The court argued that importance must be given to issues like protecting the state's security and economy, and maintaining law and order on the basis of the gravity of an offence.
The offences under the emergency rules include corruption, smuggling, hoarding, black-marketing, money laundering and tax evasion, and illegal possession of firearms, explosive substances, foreign currency and narcotics, and other crimes considered a threat to security of the state, the people, and the economy.
After a perfunctory look at the constitution, I found no provision of the laws stating clearly that EPRs are prohibited from enforcing cases or incidents that occurred before the SOE was promulgated (on 1/11). Certainly, the current EPRs weren't ordained in anticipation that the above-stated offenses would be committed during the operation of the SOE.
Notwithstanding my deficiencies in legal expertise, I find it commonsensical to suggest that in the absence of any statutes of limitations, all cases can be brought to trial at any time. This may be open to discretionary judicial interpretation.
Bringing cases under EPR mustn't make incarceration of the guilty any more stringent or lenient -- the expediencies of bringing them under the EPRs was guided by the exigency of resolving them on a fast track basis and purging the criminals from the political process to pave the way for a free and fair election.
Past offences for which the politicians have been charged and which have been brought under the EPR would be unlikely to ever end up in court in the absence of EPR for the obvious reason that they would be claimed to have been concocted for political vendetta. Resolving these cases expeditiously yet fairly during the tenure of a neutral CTG under the cover of the EPR seems to be in the best interest of the internal security and economic well-being of the country.
One may not simply try to seek refuge in the words of the constitution (strict constructionist) and try not to find directions, even if the cases are remotely connectable to situations that brought the SOE.
If the criminal wrong-doers waiting for their day in the court, those already incarcerated, and the others waiting to be charged are let off the hook for legal technicalities, the country and the people would have to withstand "irreparable harm" -- one that would bring back these criminals and their old games of "looters' politics" and lawlessness.
Government attorneys mustn't ignore the fact that it is only the people in power, or the "mafia," who can resort to extortions and all forms of mischief for personal and political gains -- not ordinary citizens. Sheikh Hasina may well be innocent, but numerous such cases have surfaced after this case was lodged. The lawyers arguing the case in the SC may bring forth the totality of the situation in the context of the economic, social, and political damage inflicted on the country over time.
Then again, many plaintiffs had been denied justice for many years. They thought they would get justice under the EPRs. What about the fundamental right to fair justice for these law-abiding citizens? These people could not even get a hearing of their sides in the court for fear of retribution. Who will compensate for their mental agonies and material losses?
In the meantime, the alliance government came and went, leaving behind the Augean Stable of corruption, extortion and looting, thereby placing the country as number one in corruption for five consecutive years.
"Irreparable harm or damage," as quoted above, is taken from one of the most controversial US Supreme Court verdicts -- a 5-4 decision which halted the counting of votes in the state of Florida in the 2001 presidential election that made George Bush the president.
The five-member majority on the US Supreme Court took the position, in the words of Justice Antonin Scalia, that "there is no right of suffrage" in a presidential election. Manual counting of the votes "does in my view threaten irreparable harm to the petitioner (George W. Bush), and to the country by casting a cloud upon what he claims to be the legitimacy of his election."
If the framers of the constitution could foresee that the country's powerful people (packed in prison now) would commit such odious crimes, they would have clearly incorporated the provisions of all these EPRs to save the country from "irreparable harm."
My last word is that if this is a world in which a man-made Constitution protects the right of obvious criminals, for example, the forest conservator who caused irreparable harm to his country and violated the rights of 145 million people, then I should be counted out of that world.
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