In a landmark judgment, the High Court (HC) yesterday declared illegal the government move to bring the Tk 2.99 crore extortion case against former premier Sheikh Hasina under Emergency Power Rules (EPR) and quashed it.
An HC division bench comprising Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam yesterday finished delivering the judgment around 12:05pm. Part of the judgment was delivered on Tuesday upon completion of hearing on a rule.
Following Hasina's writ petition filed on July 29 last year, HC bench of Justice Nayeem and Justice Zubayer Rahman Chowdhury issued the rule on the caretaker government, asking it to reply why its approval for bringing the case under the EPR should not be declared illegal.
The judgment said, "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 proceedings already taken and are under process are without lawful authority and quashed, the court added.
Hasina's counsels said the judgment is not only their victory but also of the rule of law.
The state side, however, challenged the legality of the judgment with the Supreme Court (SC) within two hours of its delivery.
Attorney General Fida M Kamal and Additional Attorney General Salahuddin Ahmed moved with the petition in the Chamber Judge's Court, seeking stay on it.
The judge, however, refrained from passing any order and forwarded the matter for hearing in the full bench of the SC today.
On June 13 last year, Managing Director of Eastcoast Trading Pvt Ltd Azam J Chowdhury charged detained Hasina and her cousin and former minister Sheikh Fazlul Karim Selim with extorting Tk 2.99 crore from him in exchange for awarding the contract of setting up the Siddhirganj Power Plant in Narayanganj.
On July 24, Gulshan police indicted Hasina along with her sister Sheikh Rehana and cousin Sheikh Selim.
On July 16, the home ministry had directed to bring the case under the EPR, but investigation officer of the case Obaidul Haque submitted the charge sheet without including relevant sections of the emergency rules.
While pronouncing the judgment yesterday, the court said no law could be formulated that goes against the constitutional provisions regarding fundamental rights.
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.
The court in its observation said the Emergency Power Ordinance also does not say that any rule could be formulated in contradiction with the constitution.
The ordinance gave the government the authority to formulate rules but not to formulate any that goes beyond the ordinance itself, the court added.
The court also mentioned that the ordinance was not empowered to formulate any rule that can cover incidents that took place before the declaration of the state of emergency. The ordinance thus does not permit bringing any offence committed before January 11, 2007--the day the state of emergency was declared--under the EPR.
The court also said when there is any conflict between the Emergency Power Ordinance, which is a law, and the EPR, rules formulated under the ordinance, the law will prevail.
Sections 19(Gha) and 10(2) in the EPR have restricted the power or right of the court, including the SC, to grant bail, which contradicts with the provision for bail ensured in sections 497 and 498 of the Criminal Procedure Code (CrPC). The court said these sections even entrust the court with the power to grant bail in case of non-bailable offences.
The emergency rules that have restricted the court's authority to grant bail also contradicted articles 31-33 and 35 of the constitution.
The court said when such procedural law restricts the citizens' rights it would be inconsistent with the constitutional provisions as much as it has restricted the rights.
The rights and provisions provided by articles 27-35 of the constitution have not been restricted even during the existence of the state of emergency, the court said.
If any law or provision inconsistent with these constitutional articles is formulated, it will become void, the court said, adding that the court has the authority to cancel such laws and such void laws cannot be applied in any other court.
Laws contradicting citizens' rights cannot be formulated by any ordinance and the provisions made in the EPR with the power of awarding punishment stand beyond the power the Emergency Power Ordinance, the court said.
It said these provisions of awarding punishment contradict the country's existing laws and the constitution.
THE SANCTION
The court said the extortion case filed by businessman Azam J Chowdhury was approved by the authorities concerned to be brought under the EPR.
"We called for documents regarding the sanction and observed that it was given on consideration of the status of the accused," the court said.
But the existing provision in the law regarding the sanction states that public importance of the offence must be considered for such sanction and there is no provision for considering the status of the accused, the court added.
While considering public importance of an offence, the authorities must take the objective behind promulgating the Emergency Power Ordinance into account, the court said.
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, it added.
The sanction cannot be given considering an individual although the dignity of the accused in this extortion case has increased the gravity of the offence, the court said.
The court said the sanction was given considering the status of the accused rather than the gravity of the offence.
The sanction was given without considering the overall aspects. So, the sanction in this case was given without lawful authority.
The court said the judges take oath to protect, preserve and defend the constitution and when the rights of a citizen are riddled with question, it is the judges' responsibility to protect those rights by applying the constitutional provisions.
The power of the SC could not be curtailed by means of the emergency power act, but the EPR curtailed the rights of the SC, the court added.
It said the power of granting bail in sections 497 and 498 of the CrPC cannot be barred as these provisions contradict the existing laws and the constitution. Section 7 of the EPR also contradicts the exiting law and the constitution.
During the delivery of the judgment the courtroom was full of lawyers, senior leaders of Awami League (AL) and journalists. AL activists and enthusiasts also crowded the corridor outside the courtroom.
After receiving the judgment, Hasina's counsel barrister Rafiqul Haque said, "The judgment has established the supremacy of law, the constitution and fundamental rights."
Another counsel of Hasina said, "As the case filed by Azam has been quashed, it would not run anymore. The barge-mount graft case against Hasina should also be considered cancelled for the same reason and Sheikh Hasina must be freed."
The trial of the extortion case began on January 30 with taking deposition of the plaintiff. Hasina expressed no-confidence in the trial court and moved to transfer the case to another court. On Tuesday, the trial was adjourned until February 11.
The trial of the barge-mount graft case began at a special court just three days after the trial of the extortion case had begun. Today was fixed for the hearing on charge-framing in the case.
GOVT APPEAL AGAINST JUDGMENT
Attorney General Fida M Kamal and Additional Attorney General Salahuddin Ahmed rushed to the Chamber Judge's Court to file the appeal with the SC, seeking stay on the judgment. But Judge MA Matin had already left the court after his day's work.
Later, the two moved to the chamber of Judge Matin who fixed today for the hearing of the matter in the full bench of the Appellate Division.
Hasina's counsel protested the government move without informing them. But the attorney general's office claimed that the advocate-on-record of Hasina's writ petition was present during the move.
Salahuddin Ahmed told the press that they will appeal finally on receipt of a copy of the HC judgment. The extortion case quashed by the court was not in the prayer of the petition, he added.
Earlier last year, following a writ petition of Hasina the HC granted her bail in the case. The HC also ordered the government not to bring the trial under the EPR.
Following a petition filed by the government challenging the HC order, the SC stayed it.
Later in January this year, Hasina filed another petition and the HC stayed proceedings of Azam's case until disposal of the rule over bringing the case under the EPR. But the SC stayed the HC order following a petition by the government.
Meanwhile, a considerable number of cases brought under the EPR have been stayed by HC.