FG can’t restrict movement of 50 high-profile persons on watch-list without approval of court- Dr.Ajulo

Oredola Adeola|

“The Federal Government through the office of the Attorney General of the Federation cannot enforce the Executive Order 6 without the approval of the court”, says Dr..Kayode Ajulo, a constitutional and civil/ human right lawyer based in Abuja.

In a statement released by the lawyer against the backdrop of the placement of travel ban on 50- Nigerians being investigated by the anti-graft commission and relevant agencies, Dr. Ajulo said, “ The AGF dies not have the power to summarily seize or confiscate property but that the discretion to be exercised must be to always seek permission or approval of the court before any property can be seize or confiscated.

The lawyer disclosed that the Federal High Court in Abuja held on the basis of 50/50 and under checks and balance that the procedure to follow supersede the order.

He further explained that the practicability of Executive Order 006 is tied to the procedure that must at all times, obtain a court order before seizing any asset or restrict the movement of an individual contrary to their human right.

He said, “By implication this now also encompass the executive order made pursuant to travel restrictions on certain individuals.

“In the opinion of the court, such an application could if possible be made ex-parte." depending on the urgency of the case.

“Whether such notice of restriction will be made known at the point of departure when the human right of those individual concern would already have been violated is what will be putting the validity of the prior procedure followed under the scrutiny of Judicial Review.

“The above raises legal issue:
1. Whether a court will be willing to violate the human right of a person where sought on an application exparte that is not supported with the evidence of ongoing prosecution in court?

2. Whether a court will be willing to agree with an application to enforce restriction ban against a human right on grounds of movement and in the absence of any ongoing prosecution against them and more especially where the subject matter is of dispute is based on the suspicion or legality of Asset or money that is held within the Jurisdiction of court and when such application could have been better brought by way of Mareva injunction?

“The judgment referred already provided an answer to the above questions that the an executive order to seize (or restrain) must at all times seek the permission or approval of court and continue to be subjected to the test of proportionality and validity depending on the merit of individual case.

“By implication it rest the confusion over the fact that an executive order to seize property (and even travel ban) is not to be viewed or regarded as something giving direct power to the executive to confiscate property or restrict the movement of an individual in the absence of court approval or sanction that ought to be sought and obtained at all times.

“The American Supreme Court in 1935 overturned five of President Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284, 6855).

“Like wise the President Bill Clinton order12954 of 1995 which attempt to prevent the federal government from contracting with organizations that had strike-breakers on the payroll was invalidated on the rulings by the federal appeals court that the order conflicted with the National Labor Relations Act.

“The Supreme Court in the United State has also held that all executive orders from the President must be supported by the Constitution, whether from a clause granting specific power or through delegation by Congress.

“By law the Senate of the Federal Republic of Nigeria have under its own constitutional power to refuse to provide funding necessary to carry out certain policy measures contained an executive order but this may also be subject to the antecedent power of the president to veto such a decision. However the power of the president to Veto may be override by the Senate with a two-thirds majority to end an executive order.

“The Federal court in America on January 28, 2017 stayed Donald Trump's executive order purportedly claiming to place temporary entry ban on seven Muslim majority countries into the United States.

“Executive orders have been known to have been successfully blocked in some Jurisdictions where such exceeded the authority of the president under ultra vires proceedings or on the counter that same should have been by legislation.

“In the Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), president Truman's order which placed all steel mills in the country under federal control was ruled by the court to be invalid for trying to do what is already done in law by the Congress or the Constitution.

“The Kosovo war that was fought on the executive order of President Bill Clinton in 1999 had prior authorization of the Congress of United State of America resolution.

“This invariably raises the discretion for all litigants to subject executive order 006 to Judicial review and based on the circumstances of the merit to be advanced on grounds of defence against restriction and seizure or confiscation.

“It is my opinion that the court has held and maintain the status quo and precedence of law over Executive order 0006 that cannot by-bass the Judicial authority of court before practicability of clothing itself with the legality or constitutionality of gaining effect,” the lawyer revealed.

He however cautioned the Federal Government that the recent judgment on Executive Orders, must only be viewed as a no victor and no vanquished situation by reason of it being made subject to Judicial Review