Section 33: Validity of Order under section 41 of the Representation of the People

33. Validity of Order under section 41 of the Representation of the People Ordinance, 1958, and of Regulations under section 3 of the Emergency Powers Ordinance, 1968, fixing dates for by-elections—The petitioner applied for a declaration that an Order made by the Governor-General under section 41 of the Representation of the People Ordinance, 1985, appointing dates for a by-election was invalid on the ground of unreasonableness and that Regulations made subsequently by the Governor-General under section 3 of the Emergency Powers Ordinance, 1968, whereby, among other things, certain dates were substituted for those fixed in that Order were invalid— (i) because no state of emergency existed at the time; (ii) assuming that such a state existed, the Ordinance did not otherwise empower the Governor-General to make the Regulations; (iii) in any case, the dates fixed in the Regulations would unreasonably delay the holding of the by-election. HELD (i) (a) in order to satisfy the requirement of the existence of a state of public emergency for the valid exercise of the Governor-General’s power of making regulations under section 3 of the Emergency Powers Ordinance, 1968, it was sufficient that there was in force a Proclamation declaring that such a state of emergency existed; such a Proclamation once ratified by the Legislative Assembly as prescribed by section 19 (8) of the Constitution remained in force until revoked by the Governor-General or by a resolution of the Assembly; and (b) assuming that the issue whether there existed in fact a state of emergency was justiciable, the petitioner had not substantiated his contention; (ii) the Regulations which the Governor-General was empowered to make were neither such as should have a connection with fundamental rights and freedoms nor limited in their scope to amending, suspending or applying any law in force, as contended by the petitioner; CON – 175 [Issue 1] The Constitution (iii) the Regulations were not invalid for unreasonableness; (iv) the Order having been superseded by the Regulations, the question of its validity did not arise. Mathoorasing v Governor-General (1973). PART IV – EXECUTIVE