SC sanctions trial under EPR

The Supreme Court ruling, on Thursday 08 May 2008, sanctioning trial of various cases under EPR, came as a logical sequence to the earlier Appellate Division verdict striking down a High Court ruling empowering itself with the jurisdiction of disposing of bail petitions in cases being tried under EPR. These two rulings together basically legitimize the EPRs and that is what annoys and angers many, both in and out of the legal profession, particularly when most people in the Country are against the continuation of the Emergency with all that it implies. One is however, constrained to analyze whether the Supreme Court had any options in this regard.
Articles 141 A, B & C of the constitution state the conditions & the scope under which an Emergency may be declared. Attention may be drawn to Article 141A(3). The question is whether the satisfaction of the Executive (President) as to the existence of the condition mentioned in Article 141 A(l) is justiciable. The case of non-justiciability of the Presidential satisfaction for promulgation is based on two grounds: (a) Ordinance-making is an exercise of legislative power which cannot be challenged on the grounds on which executive power can be challenged and (b) satisfaction regarding existence of emergent situation is a political question which is not amenable to judicial determination. The first ground is not available as proclamation of emergency is purely an executive act. The second ground is also not available as in our constitutional system the doctrine of political question has no application. The satisfaction of the President as regards proclamation of emergency is justiciable for the same reason the satisfaction of the President in respect of emergent need for promulgating an Ordinance is justiciable. However, it should be kept in mind that the Constitution has committed the matter to the discretion of the Executive & Parliament has been given the authority to approve or disapprove it. In such a situation it is not for the Court to question the adequacy or sufficiency of the grounds of satisfaction or the correctness of the facts upon which the satisfaction is based. But the satisfaction as to the emergency being a condition precedent to the exercise of the power, the validity of the proclamation of emergency can be challenged on the ground that there was no satisfaction at all or that it was wholly mala fide or based on totally irrelevant or extraneous grounds. The second but equally important legal issue is whether the court is powerless when the executive fails to revoke the proclamation. In a famous case in Malayasia (The Cheng Poh versus Public Prosecutor [1980] AC 458,473), the presiding judge Lord Diplock observed: "If (the Ruler) fails to act the court has no power to revoke the proclamation in his stead. This however, does not leave the court powerless to grant to the citizens a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of this discretion." In our constitutional dispensation the judgment of Diplock can be made equally applicable. Thirdly, the Ordinance making power of the President must be examined as after the promulgation of emergency he would have to issue certain Ordinances to make the emergency effective. In order to meet emergent situations, the executive has been given the power to make laws for short durations by promulgating Ordinance under Art.93 provided the parliament is dissolved or not in session. In a famous case in India (Bhagat Singh v. Emperor, AIR 1931 PC 111) the Privy Council held that the satisfaction regarding existence of emergent situation is not justiciable and observed: "A state of Emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action which is to be judged as such by someone". For the convenience of our readers the above rather involved legal explanation of what the Emergency implies can be summarized as: our Constitution permits the imposition of Emergency through a Presidential Proclamation entailing suspension of certain constitutional provisions and even a few fundamental rights. The Emergency can be challenged in court but not so long as the Emergency is in place. The President can issue any number of Ordinances to put the Emergency into effect. If the Parliament is dissolved, as it is in our case, the Emergency can be extended for an indefinite period and the courts can do little about it.
Under the circumstances, the Supreme Court has little option but to uphold the Emergency and the EPRs, otherwise it would be creating a situation where a Government is de facto but not de jure and that would be putting the Country in a legal limbo. The lawyers and their high profile political clients, in prisons now, might well be annoyed but they have to look at the facts as they exist and not as they might wish or desire. The question of release of political prisoners, including Sheikh Hasina and Khaleda Zia, is a political question which must be solved politically but that too is a debatable point because many in this country are hard put to distinguish politicians from criminals.