Court Corridor
Proclamation of emergency never suspends rule of law
Barrister Moksadul Islam
Can the High Court Division (HCD) exercise its Writ Jurisdiction Under Article 102 of the Constitution of the People's Republic of Bangladesh (the Constitution), when a Proclamation of Emergency is in force, was the main question everyone in the Supreme Court (SC) wanted to know after the President declared state of emergency on the 11th of January 2007 under Article 141A of the Constitution. Similar question was also discussed in the Appellate Division (AD). Apparently on the 11th November, 2007 vide Order No 1 the President has suspended the right to move any court to enforce the fundamental rights mentioned in Part III (Articles 26 to 47A) of the Constitution. And on the 13th of November, 2007 vide Order No. 2 the President further suspended all the proceedings pending in any court regarding the enforcement of fundamental rights. Let us examine the situation very carefully.
Proclamation
During a Proclamation of Emergency the State can make law without considering the provisions of the Articles 36 to 40 and 42. However, a plain reading of the Article 141B would clarify that unless there is a specific law made, during a Proclamation of Emergency, sidestepping the provisions of the Articles 36 to 40 and 42 it cannot be said that the provisions of these Articles would remain suspended automatically.
Furthermore under Article 141C (1) apparently the President may suspend the right to move any court for the enforcement of the rights conferred by Part III of the Constitution and also suspend proceedings pending in any court regarding the enforcement of fundamental rights mentioned therein and this order may be enforceable all over Bangladesh or any part thereof [Article 141C (2)].
Part III Articles
Laws inconsistent with fundamental rights to be void (26); Equality before law (27); Discrimination on the grounds of religion, etc (28); Equality of opportunity in public employment (29); Prohibition of foreign titles, etc (30); Right to protection of law (31); Protection of right to life and personal liberty (32); Safeguards as to arrest and detention (33); Prohibition of forced labour (34); Protection in respect of trial and punishment (35); Freedom of movement (36), assembly (37), association (38), thought and conscience, and of speech (39), profession or occupation (40); Freedom of religion (41); Right to property (42); Protection of home and correspondence (43); Enforcement of fundamental rights (44); Modification of rights in respect of disciplinary law (45); Power to provide indemnity (46); Saving for certain laws (47); and Inapplicability of certain articles (47A).
Writ
Under Article 102 of the Constitution the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh exercises its power of judicial review by issuing writs in the nature of prohibition, mandamus (do it), certiorari (lack or excess of jurisdiction) and quo warranto, against the concerned public functionaries and a writ of habeas corpus [have the corps (body) before us (court)] against anyone, including a private individual, if there is a violation of any relevant provision of this Article.
Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation [22 DLR (SC) 203] or even by amendment of the Constitution [1989 BPD (Spl) 1]. The jurisdiction of the Court under this Article is known as Special Original Jurisdiction or writ jurisdiction. The Rule Nisi, which may be issued under this Article, requires the respondent to explain that his action was not unlawful and an interim order in the form of 'stay' or a direction also may be granted under this Article. This interim order would usually be for a certain period or until the adjudication of the matter.
The Court, usually, will not entertain any writ application on a premature grievance, however, an application can be brought when there is an apprehension of immediate danger to legal right [22 DLR (SC) 437].
Article 102
Under clause 1 of Article 102 the HCD may issue directive or order against 'any person or authority including any person performing any function in connection with the affairs of the Republic' for the enforcement of the fundamental rights guaranteed in Part III of the Constitution. Right to move HCD under Article 102(1) is itself a fundamental right [Article 44(1)]. Although writ jurisdiction is an equitable jurisdiction; however, power of the HCD under clause 1 is not a discretionary power rather it is obligatory for the Court to grant necessary relief to the aggrieved person.
Clause 2 deals with the rights, which are not fundamental in nature as mentioned in Part III of the Constitution. If the High Court Division is 'satisfied that no other equally efficacious remedy is provided by law' on an application by the 'person aggrieved', under clause 2(a)(i) of the Article the Court may prohibit 'a person performing any function in connection with the affairs of the Republic or of a local authority' from taking any illegal steps (writ of prohibition) or coerce to do something which is 'required by law to do' (writ of mandamus). Writ of prohibition stops the executives from taking any steps beyond the mandate they were given (negative sense) whereas writ of mandamus orders the executives to do something what they were required to carry out (positive sense).
Likewise, regarding clause 2(a)(i) (stated above), if there is 'no other equally efficacious remedy' and, once again, only on an application by the aggrieved person, under clause 2(a)(ii) of the Article the High Court Division may declare that the 'act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect' by issuing a writ in the nature of certiorari.
A writ of certiorari restrains the public functionaries within their jurisdiction. Proceedings are ultra vires (illegal) which was conducted without complying with the statutory procedure, when the principles of natural justices (i.e. a man cannot be condemned unheard (audi alterram partem) and a man cannot be the judge of his own cause (nemo debet esse judex in propria causa) [R v. BSMS Magistrate ex p Pinochet (No 2), 1 All E.R. 577]) or the principle of legitimate expectation [6 BLC 681; 51 DLR (AD) 56] was breached.
Clause 2(b)(i) of the Article invests the High Court Division, 'on an application by any person', to issue a writ of habeas corpus, to bring someone (detained unlawfully) before the court. A writ of habeas corpus can be issued against anyone including a private individual. Clause 2(b)(ii) of Article 102 sanctions the High Court Division a jurisdiction to issue a writ, in the nature of quo warranto, to inquire under what authority a person is 'holding or purporting to hold a public office'.
In short, under clause 1 of the Article 102 the High Court
Division may issue a writ of prohibition or mandamus for the enforcement of the fundamental rights guaranteed under the Constitution. Under clause 2(a)(i) again the High Court Division may issue a writ of prohibition or mandamus if the executives overstep their mandate or neglect their duty respectively. Under clause 2(a)(ii) the High Court Division may issue a writ of certiorari to detain the public functionaries within their jurisdiction. Clause 2(b)(i) empowers the High Court Division to issue a writ of habeas corpus against anyone to prevent unlawful detention and under clause 2(b)(ii) of this Article the HCD may issue a writ of quo warranto to find out under what authority someone is holding or purporting to hold an office of the republic.
Observation
A Proclamation of Emergency may hit only Article 102(1), however, force of all the provisions of the Article 102(2) would remain intact always. Unless it is enacted otherwise nothing, including the fundamental rights even, is suspended automatically during a Proclamation of Emergency. And force of Article 102 is always there although may be restricted by some kind of law regarding one or more of the fundamental rights. Use of words 'as may be specified' and 'the rights so specified' in Article 141C(1) further suggest that whatever the restriction the President may impose during a Proclamation of Emergency must be specifically specified in the Order. Article 141C(2) allows the President to make law for the entire country or part of the country means nothing is automatic it must be specifically stated. Had it been automatic and for the entire Part III there was no need for the Article 141C(2). A general order suspending the entire Part III of the Constitution would also suspend force of Article 31 (right to protection of law).
Suspension of Article 31 would mean suspension of Rule of Law. How can that be possible? Without the Rule of Law there cannot be a Constitution and without the Constitution there cannot be a Proclamation of Emergency. Actually a close examination of Article 141B and both Clauses (1) and (2) of the Article 141C would support this observation that nothing is suspended automatically unless actually it is done by enacting law to that effect “specifically”. A close examination of the 23 Articles mentioned in Part III would further confirm that it is highly unlikely that any sovereign country could possibly come into such a situation when suspension of all the Articles of Part III would ever be required.
As Shakespeare wrote no one would be able to remove a bowl of meat from your body without spilling some of your blood. Similarly it is simply not possible to separate some of the fundamental rights, mentioned in Part III, from many other legal rights.
This is a fortnightly column and the columnist is an advocate of the Supreme Court, Bangladesh, who can be reached at mail@legalsteps.net
