Source: Asian Centre for Human Rights
South Asia provides glimpses of the world’s systems of governance and political structure. An imperfect democracy India is surrounded by Bhutan where monarchy orchestrated a sham election to give victory to the King’s party, Nepal – where King once considered reincarnation of Lord Bishnu cannot even cast his vote; Maldives where President Gayoom serves as the longest serving dictator in Asia; Sri Lanka where tyranny of the majority rules the roost and a military junta in Myanmar.
Yet, it is the quasi-military dictatorship in Pakistan and Bangladesh that will test South Asia’s tryst with democracy and rule of law. Following the elections, President Parvez Musharaff lost control. The newly elected Prime Minister released deposed Chief Justice Iftikar Choudhury. It remains to be seen how the Musharaff regime collapses and whether it provides any lessons to the Bangladeshi dictators.
I. High Court judgement on the trial of Sheikh Hasina under the Emergency Power Rules
The lack of international outcry against the regime in Bangladesh is disturbing. The emergency imposed on 11 January 2007 still continues. There is no apparent internal disturbance which requires continuation of the emergency. On the other hand, the interim government has been trying to fix the discourse of democracy in Bangladesh under the emergency regulations.
Nothing reflects it more than the order of the Chief Justice of the Supreme Court of 17 March 2008 to exercise his discretionary power to strip the High Court division bench of Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam of its writ jurisdiction. This bench of the High Court had, among others, declared illegal a government sanction to try an extortion case against detained former Prime Minister Sheikh Hasina under the Emergency Power Rules (EPR) and quashed the trial proceedings, and had ruled that the High Court can grant bail even to those convicted in the cases under the EPR. 
Asian Centre for Human Rights studied the judgement of the High Court delivered on 17February 2008 relating to the detention and trial of Sheikh Hasina under the EPR. The judgement is now available at: http://www.achrweb.org/countries/Bangla/Hasina-HC-Judgment17-02-08.pdf
While delivering its judgment, the High Court considered the following issues:
- Whether alleged criminal offences committed prior to the promulgation of Emergency can be proceeded with tried under the provisions of the Emergency Power Rules 2007 in view of Section – 3(3Ka) of the Emergency Power Ordinance, 2007 and Articles 93 and 35 of the Constitution.
- Whether the incorporation of penal provisions in the Rules, in particular, in Rules 15Gha, 19Gha, 19Cha of the Emergency Power Rules, 2007 are inconsistent with the provisions of the Articles – 27, 31, 32, 33 and 35 of the Constitution and are void in view of Article – 26 (2) read with Articles – 7 (2) of the Constitution.
- In view above whether the sanctions given under Rule 19 Nye(1) and (5) of the Emergency Power Rules are valid for the cases, proceeded with/ tried under the Emergency Power Rules, 2007, arising out of the alleged offences committed prior to the promulgation of the Emergency;
Among others, the Amiei urged that “Since Article 35 of the Constitution provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than or different from that which might have been inflicted under the law in force at the time of the commission of the offence, the accused petitioner is guaranteed to be proceeded with in connection with the alleged offence under the law as prevailing at the time of commission of the alleged offence, and that in view of the provisions of Article – 31, which provides that accused petitioner is to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law and no action detrimental to the life, liberty, body, reputation or property can be taken except in accordance with law, which is an inalienable right guaranteed to the petitioner, the right of the accused petitioner for bail in the instant case cannot be denied and the Court’s power to grant bail cannot be curtailed and that in view of Article -26(2) of the Constitution, no provisions inconsistent with the provision of Articles – 31,32,33, and 35 of the Constitution (of Bangladesh) can be included either in the EPO or in the EPR legally, and if any such inconsistent provision is found or added therein, those are void ab-initio and this Court has the authority to declare those as Void in terms of the Constitution. Thus the provisions of Rules 19Gha, 10(2) and 11 of the EPR so far relates to bail, are bad and void”.
In fact as the Honourable judges noted, “The learned Additional Attorney General Mr Mansur Habib appearing for the respondent-Government submitted that in view of Section -3(4) of the EPO the offence committed prior to the promulgation of the Emergency can be tried under the provision of EPO and the Rules framed thereunder, giving retrospective effect. However, when his notice has been drawn to the provisions of Articles -93 as well as Articles- 31, 32, 33 and 35 with 141B of the Constitution and Sections – 1(2), 3(1) and 3(3ka) of the EPO, he found it difficult to elaborate his submissions in favor retrospective effect to the offence allegedly committed prior to promulgation of the EPO”.
Amiei referring to the effect of Article 26(2) of Constitution of Bangladesh further “submitted that no law can be made inconsistent with the provisions of the fundamental rights, detailed in Part III of the Constitution, and subject to restrictions mentioned in Article 141B thereof during the Emergency, and accordingly the provisions relating to “denial of bail” as appearing in Rules -19Gha, 10(2) and 11 of the EPR are void and the power of the Court relating to granting of bail under Sections 497 and 498 of the CrPC remained unaltered and unaffected and that Emergency did not affect the existing power and authority of any Court of law relating to trial of case and or bail”.
It was further submitted by Amiei that “the existing right or benefit of the people can only be altered or affected through enactment of a law consistent with the provisions of the Articles contained in Part III of the Constitution and that a law can be made by the Parliament, when in session, otherwise by the Honourable President promulgating Ordinance under the authority of Article 93 of the Constitution and that no law can be made inconsistent with the Articles 27 to 35 of the Constitution during the Emergency and that the Rules framed under the authority of any Ordinance cannot have more power than the Ordinance itself and through such Rule no penal provision can be created affecting the existing right to life and liberty of the public. Therefore the penal provisions contained in any Rule of the EPR are void and without lawful authority.”
The High Court accepted the bar imposed by Article 26(2) of the Constitution of Bangladesh on making of any law or part thereof, inconsistent with the provisions of fundamental right guaranteed under Part III of the Constitution, which are Articles 26-44, but Article 141B of the Constitution has given a protection against violation of the Articles 36 to 40 and 42 during the period of Emergency.
In their judgement, Honorable judges held:
“Considering the preamble of the Constitution as well as the provisions of Article 26 thereof and the contents of the oath prescribed for the Judges of the Supreme Court, we find substance in the submissions of the learned Advocate Mr T.H. Khan that no law or rule or any provision can be made during the Emergency curbing or curtailing the authority and power of the Supreme Court of Bangladesh, subject to the restrictions imposed by the Articles 141 B and 141 C and that during Emergency period no law or rule can be framed inconsistent with provision of Articles 27 to 35 and as well as any existing law and the orders passed by the Judges of the Supreme Court…..
The provisions negating the authority of the Court to grant bail under Rules -19 Gha, 10(2), 11 and 15 Gha of the EPR, being inconsistent with the provisions of Articles 31, 32, 33 and 35 of the Constitution as well as Sections- 426, 496, 497 and 498 of CrPC, are void and the power and authority of the Court under sections 426, 496, 497 and 498 of the Code of Criminal Procedure relating to granting of bail has not been affected or infringed by said Rules-19Gha, 10(2), 11 and 15Gha of the EPR. Further no penalty or sentence can be imposed by any Rule of the EPR, framed under the authority of EPO. Since the Rules-3, 4, 5, 6, 7, 8 and 15Gha of the Rules, 2007 are inconsistent with the existing law as well the provisions of Articles 27 to 35 of the Constitution said Rules to the extent of the inconsistency for containing the provisions of penalty and sentence are void as per Article 26(2) of the Constitution.
Since in the Rule the impugned sanction is under challenge and we have found that the impugned sanction has been given without lawful authority, for non-fulfillment of the conditions-precedent set out in Rule-19Nyanh (4) and the alleged offence having been committed prior to the promulgation of Emergency, the instant case initiated under the Emergency Power Rules 2007 is illegal, without lawful authority and cannot be proceeded with further.
In fine it is held that:
a) any case arising out of an offence committed prior to the date of promulgation of the Emergency i.e. 11.01.2007 cannot be tried under the Emergency Power Rules, 2007;
b) existing rules framed under the Emergency Power Ordinance, 2007 are not retrospective in view of the objectives detailed in Section – 3(1) of the said Ordinance 2007 Emergency Power Rules;
c) for the purpose of granting sanction, consideration should be given to the importance the “offence committed” and not the status or importance of the accused, and that such offence must affect or be related to the objectives detailed in Section – 3(1) of the Emergency Power Ordinance, 2007;
d) Rules framed under a Statute being sub-legislation, the same cannot curb or infringe a right or benefit given by a Statute, hence the penal provisions as well as the provisions, curbing the right to bail, a contained in the Emergency Power Rules, 2007, are void and not enforceable;
e) Emergency has not curtailed the power and authority of any Court, and the Court retained its power and authority to deal with the bail and other matters in accordance with the existing laws in force;
f) Gulshan Police Station Case No. 34 dated 13.6.2007 cannot be proceeded under the Emergency Power Rules, 2007, pursuant to the impugned sanction dated 16.7.2007.
Accordingly, the Rule is made absolute without any order as to costs. The impugned sanction given by the respondent No. 2 under Rule -19Nyanh (2) of the Emergency Power Rules, 2007 of 16.7.2007, for proceeding with the Gulshan Police Station Case No. 34 dated 13.6.2007 filed under Sections 385/109 of the Penal Code, 1860, under the Emergency Power Rules, 2007 treating the offence to be of public importance evidenced by the Annexure-C to the Writ Petition, is declared to be without lawful authority and is of no legal effect and consequently, any action taken and or initiated and continuation of any proceeding and or trial of any case, arising out of said Gulshan Police Station Case No. 34 dated 13.6.2007 under the Emergency Power Rules, 2007, in any Court of law or authority, is declared to be without lawful authority and stands quashed.”
The judgment of the High Court relating to illegal detention of Sheikh Hasina is not the only one to have been overturned by the Supreme Court.
On 6 March 2008, the Supreme Court ruled that appellate courts, including the High Court, do not have the jurisdiction to grant bail to those convicted by special graft courts under the Emergency Power Rules (EPR). This judgment was delivered by the full bench of the Appellate Division of the Supreme Court headed by Chief Justice Mohammad Ruhul Amin while hearing the appeals of the Anti-Corruption Commission against the grant of bail to then UN Special Rapporteur Sigma Huda and barrister Mir Helaluddin by the High Court on 13 December 2007 after they were convicted in corruption cases by a special court under the EPR. The Supreme Court also cancelled the bails granted to Ms Huda and Mir Helaluddin.  Earlier, on 18 December 2007, the Supreme Court stayed the bail granted by the High Court to Sigma Huda and Barrister Mir Helal Uddin on 13 December 2007. 
On 13 December 2007, the Supreme Court overruled the High Court order of 9 December 2007 that stayed the trial proceedings of the Taka 30 million extortion case filed against Sheikh Hasina and two others allegedly by Azam J Chowdhury, managing director of Eastcoast Trading Pvt Ltd.  On 24 January 2008, Azam J Chowdhury reportedly told the press that he did not file any case "directly" against Sheikh Hasina and that what he had said in the case has been “distorted”. 
On 4 October 2007, the Supreme Court stayed the bail granted by the High Court to detained former Prime Minister and Chairperson of the Bangladesh Nationalist Party, Khaleda Zia in an alleged corruption case. 
On 27 August 2007, the Supreme Court stayed the High Court’s orders granting Sheikh Hasina bail in two extortion cases. The cases were related to the one filed by businessman Noor Ali in which the High Court granted bail on 7 August 2007 and asked the government not to have her tried under the emergency rules, and the one filed allegedly by Azam J Chowdhury, Managing Director of East Coast Trading Private Ltd in which Ms Hasina was granted bail by the High Court on 30 July 2007.  On the same day, the Supreme Court also stayed the High Court’s order granting bail to business leader Abdul Awal Mintoo, who was arrested under the EPR. 
II. Vowing judiciary
The Supreme Courts across South Asia bended and/or bowed before executive supremacy. India ’s Supreme Court upheld the constitutional validity of the suspension of fundamental rights during the emergency. The Supreme Courts in Pakistan often legalised the military dictatorship. The Supreme Court of Nepal also suspended the fundamental rights during the emergency imposed by King Gyanendra in 2005. Justice Sarath Nanda Silva of Sri Lanka has been known for making political rather than judicious judgements and he went to the extent of declaring non-applicability of ICCPR in Sri Lanka . In Maldives and Bhutan, the rulers have been acting as the Chief Justices.
Against this backdrop, the judgments of the High Courts in Bangladesh under the current quasi-military regime have been remarkable, only to be undone by the Supreme Court.
Yet, there has been absolute silence on this particular aspect as if justice can be short circuited to try criminal offences. It is time that the United Nations High Commissioner for Human Rights who is internationally respected as a jurist and the UN Special Rapporteur on Independence of Judiciary condemn the procedures and processes of administration of justice. No one is asking to go into the merits of the allegations brought by the government of Bangladesh against those arrested. The High Courts in Bangladesh have shown that the procedures and processes of administration of justice by the regime are themselves illegal and void.
 . HC bench of justice Nayeem, Shahidul stripped of writ powers, The Daily Star, 18 March 2008
 . Appeal courts asked not to grant bail, The Daily Star, 7 March 2008
 . HC bail to Sigma, Mir Helal stayed, The Daily Star, 19 December 2007
 . SC overrules stay on Hasina trial, The Daily Star, 14 December 2007
 . Azam Chy now says he did not file case against Hasina, The Daily Star, 25 January 2008
 . SC halts bail order for Khaleda, The Daily Star, 5 October 2007
 . Hasina's bail stayed, The Daily Star, 28 August 2007
 . Hasina's bail stayed, The Daily Star, 28 August 2007