The New Nation - Internet Edition

Staff Reporter

The Law Adviser on Thursday last remarked that the fate of so many cases are depending on the outcome of the case of former Prime Minister Sheikh Hasina. Six amici curiae told the High Court Division that application of the Emergency Power Rules (hereinafter EPR) in the extortion case against Hasina is illegal as the alleged crime was committed before the EPR came into force. Hence, a very important question of law has arisen as to what illegality, if any, was committed as regards the case of Hasina by bringing in within the ambit of EPR. Lawyers of the Government view that Emergency Power Rules are rightly attracted in the present case. It is significant that one amicus curiae, Mr. Mahmudul Islam, the former Attorney- General, known as constitutional expert, declined to give opinion on the point raised.

Substantive Law or

Procedural Law

Before beginning the actual discussion on the moot point, the nature of EPR should be ascertained first i.e. whether EPR is a substantive law or a procedural law.

EPR deals with procedural matters only in respect of the events which occurred prior to its coming into force. So, it is clearly a procedural law so far as Sheikh Hasina's case is concerned. Although one might also argue that since the EPR has created certain offences which attract punishment for violation of the same, hence EPR is of a substantive nature.

However, a section of lawyers suggested that a clear line should be drawn between the cases which allege occurrence of some offences before the promulgation of EPR and which allege occurrence of offences after the promulgation of EPR. For the former types of case, EPR only prescribe the procedure for investigation and trial and for the latter it also prescribe the relevant procedure as well as special punishments. In any view of the matter, for the present purpose, EPR's procedural part is relevant.

The next question to be considered is whether or not EPR was given retrospective effect. Since EPR is a procedural law, it is, by nature always retrospective (19 DLR (SC) 242). Hence, the question of giving retrospective effect does not arise.

Then whether or not EPR changes the forum and/or the substantive laws in respect of Sheikh Hasina's case.

The offences were committed under the Penal Code, i.e. Sections 385/109. The forum for her trial is also the Court of Sessions.

So, both the substantive law and the forum for trial remain the same as those were in existence at the time of commission of the alleged offence.

In the FIR, the informant has narrated the alleged offence taking place through events starting from July, 2000 and ending in March, 2001.

Before 27 November, 2000, an offence of extortion under Section 385 was bailable and triable by a Magistrate. But on 27.11.2000, the P:arliament by amending Schedule II of the Code of Criminal P:rocedure made offences under Section 385 of the Penal Code non-bailable and triable by the Court of Sessions.

Hence, some lawyers are of the view that, according to criminal jurisprudence, since a series of events took place, the date of occurrence of the last event completing the offence will determine whether or not the amendment will be applicable in Sheikh Hasina's case. Here, since the last event completing the alleged offence took place in March, 2001, the amendment of Cr.PC will apply.

They argue that Sheikh Hasina's offence remains non-bailable and it is being tried by the Court of Sessions. EPR has not changed the substantive law i.e. Section 385 of the Penal Code and also the forum i.e. Court of Sessions remain the same.

Therefore, application of EPR in Sheikh Hasina's case is not illegal.

The issue of bail

Again, on the issue of bail these lawyers' view is that bail is a discretionary power of the Court. It only becomes a matter of right in two types of cases. Firstly, in a bailable case, bail is a matter of right and secondly once bail has been granted the same becomes a right and cannot be cancelled whimsically.

In a non-bailable case, bail is always at the discretionary power of the court. Bail is also a matter of procedure to facilitate holding the trial. If the discreationary power of the court to grant bail is curtailed, the same cannot be said to be affecting anyone's right.

Article 35

There is also the argument that bringing the case of Sheikh Hasina under EPR is violative of Article 35 of the Constitution. Article 35 is a fundamental right and is in Part III of the Constitution. After proclamation of Emergency in Bangladesh, Part III of the Constitution has become unenforceable in its entirety. Hence, it is also a matter for the Court to consider whether or not in the present state of emergency, such an argument can be advanced under the Constitutional arrangement of Bangladesh. It is only because of Article 35 that one could argue whether substantive or procedural the Emergency Power Rules would not be applicable for an offence committed before Emergency Power Rules were introduced in 2006.

What is most significant is that the Writ Petition No. 6576 itself has not, knowingly, taken as a ground for the illegality of the restrictions imposed under Article 35 of the Constitution.