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Tuesday, 15 July 2008

Promulgation of ordinance

Staff Correspondent

The High Court has observed that the president cannot promulgate any ordinance if it is not extremely necessary or has no immediate connections to elections during the rule of the caretaker government.

"The president or the caretaker government does not represent people. The less is the tenure of an undemocratic government, the better it will be for people," the court said Sunday in its order that declared illegal "Muslim Marriage and Divorce Registration Ordinance" promulgated by the president.
The ordinance had given deputy commissioners powers to appoint and sack Muslim marriage registrars or quazis .
Justice ABM Khairul Haque and justice Abu Tarique handed down the verdict on a writ petition filed by six marriage registrars, including Bangladesh Quazi Samity president Peerjada Syed Shariat Ullah.
The power of caretaker government is much narrower than that of a politically elected government, the court observed.
"An ordinance can be promulgated if it is very necessary or has connections with elections … if not, promulgating an ordinance is out of the president's jurisdiction," the court said.
"If the president's power is increased as per demand of a specific quarter outside the structure of the constitution it will tip the balance of power."
"The president has to be satisfied that the election will be hampered without such an ordinance. He cannot promulgate an ordinance in no other cases than this," the court said.
Citing an example of a 1608 case in the US, the HC said: "The president cannot exercise more power than the constitution allows him to. If any citizen of the state is affected by the promulgation of an ordinance, he can seek redress in the Supreme Court."
"The Supreme Court has the right to consider an appeal and examine the legality of the ordinance promulgated by the president."
"Every citizen of the country or everybody employed in the posts of the republic is bound to abide by every article of the constitution."
"If the constitution is violated, however slightly, for some reason the probability arises for its complete destruction in the end."
The HC also observed: "The people of Bangladesh are the owners of the country. An elected parliament runs the country. The cabinet including the prime minister is accountable to parliament, which means the elected government is accountable to people."
The court said that "Muslim Marriage and Divorce Registration Ordinance 2008", promulgated on Feb 20, was not related to the election in Bangladesh.
Therefore the ordinance is unconstitutional and illegal, the court said.
President of Bangladesh Quazi Samity Peerjada Quazi Shariat Ullah and five others on March 13 filed a writ petition challenging the ordinance and the power to promulgate the ordinance. Later the HC issued a rule on the government.
In the final hearing on the writ petition, advocate Kamrul Haque Siddiqui and advocate Joy Rahman participated on behalf of the petitioner. The government was represented by deputy attorney general Idris Khan.
Barrister Rafique-ul-Huq, Ajmalul Huq QC and barrister Shamsuddin Chowdhury Manik spoke as amicus curie.

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