The expression ‘state of emergency’ is being use in a generic sense to embrace the central concept of a variety of legal terms in different legal systems to identify an exceptional situation of public danger permitting the exercise of crisis powers in a particular state. This terminology would therefore cover the status of different regimes known as states of emergency, of siege, of alert, of prevention of internal war, of suspension of guarantees, of martial law, of special powers etc. The expression would include, for instance, what is described as martial rule (which has a variety of pseudonyms, the most important being martial law) as it is known in the common law countries of the erstwhile British Empire and the USA, as well as the state of siege, as it is known in civil law countries of continental Europe and Latin America.
The justification for the proclamation of emergency power during a grave emergency is provided by the maxim “SALUS POPALI SUPREMA LEX” -The welfare of the people is the paramount law. It is generally assumed that the rights which citizens in normal time enjoy should, in the time of emergency yield to the maxim ‘salus popali suprema’ lax. Relying on the “principle of necessity” encompassed by this maxim, court in common law countries have consistently been prepared to condone draconic executive action during the time of national emergency. Although the constitutional system of common law would have long recognized the maxim “salus popali suprema lex”, the tendency to entrench emergency powers in constitution is recent.
The term state of emergency generally means an unforeseen combination of circumstances or the resulting state that calls for immediate action or urgent need for assistance or relief to handle the situation. One of the primary reasons for the incorporation of emergency power in constitution is to affect, the operation of constitutional during an emergency. The thrust of the argument in this regard has been that the existence of fundamental rights ought not to be permitted to imperial the safety of the state. A second reason for defined provisions on emergency powers is a concern to restrict judicial creativity in the determination of the extent to which such power can be exercised. The general objective of the constitutional emergency power is to bring about a re-allocation of state power in a manner inconsistent with the constitutional limitations which ordinary prevail.
In Bangladesh, what the intention for a proclamation of emergency is to deal with the situations, which either affect or are likely to affect a large number of people or their property passing thereby a threat to public safety or the national security, is no more borne on the mind of the government and with the departure from that intention they use that emergency power as a weapon to oppress criticism and opposition to perpetuate the rule. It is mostly used for political persecution including the extension of police power to search, detain and interrogate, compromising the normal standards. Consequently imposition of a state of emergency has serious political and legal ramifications. It transcends various branches of law especially international law constitutional law and criminal law. Without the effective constraint of rule of law there is a real apprehension that the emergency regime may gradually give rise to a permanent police state. So the aim of every nation should be the strengthening of the political constitution by devising institutions and developing detrain international standards to prevent future abuse of power in the name of an emergency.
Definition of emergency:
In 1937 Rabindranath Tagore, the renowned worldly poet, working in his capacity as President of the newly formed Indian Civil Liberties Union wrote to his counterparts in British Civil Liberties Union: ‘Liberty is a privilege which an individual has to defend daily for himself, for even the most democratic government lends to be oppressive if its tyranny is tempted by the indifference or cowardice of its subjects.” Those were trying times. Not only in the colonies but the colonizer’s world itself too was moving towards a ‘state of emergency’ rule. Walter Benjamin, the not so famous German writer at the time, shortly before committing suicide in the face of imminent arrest at the hands of fascist authorities on the Franco-Spanish border in 1940, also could assert that by that time the tradition of the oppressed teaches us that the ‘state of emergency in which we live is not the exception but the rule.
Like the written constitution of most countries, the Constitution of the People Republic of Bangladesh also contains the provision for proclamation of emergency, but nowhere it is exactly defined that what a state of emergency means.
Lord Dunedin in the case of Balgal singh vs king Emperor, expressed his opinion thus,
“A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action.”
In general sense, the expression ‘state of emergency’ means an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.
In the legal sense, in order to be defined as an emergency, the incident should be one of the following:
- Immediately threatening to life, health and property or environment.
- Have already caused loss of life, health detriments, property damage or environmental damage.
- Have a high probability of escalating to cause immediate danger to life, health, property or environment.
From the view points of constitutional law, “the concept of emergency means the suspension of and restriction over certain fundament rights of citizens in order to deal with a situation when the security of the state is threatened or the national interest is in peril.”
In broad sense, a state of emergency is a governmental declaration that may suspend certain normal functions of government or may work to alert citizens to alter their normal behaviors or to order government agencies to implement their emergency preparedness plans. It can also be used as the rationale for suspending civil liberties; such declarations come during time of natural disaster or during periods of civil unrest or a declaration of war; dictatorial regimes often declare a state of emergency that is prolonged indefinitely as long as the regime lasts.
Some political theorists have argued that the power to declare a state of emergency is the most fundamental power of government, and that knowing who decides on declaring a state of emergency in a given country or territory tells you a lot about where the real power in that country or territory is located, even if the country’s constitution paints a different image on the surface.
Stiphen p. marks says that
“Emergency is a situation which results from temporary condition, which place the institution of the state in a precarious position which leads the authorities to feel justified in suspending the application of certain principles.”
Brendan Mangham defined emergency thus,
“The state of emergency is a situation in which states are faced with conflicting obligations – on the one hand the commitment to protection of individual rights of its citizens and on the other the protection of the existence of the state itself in extreme conditions, or in less severe conditions the safeguarding of public order and safety.”
The European Court of Human Rights (ECtHR) in Lawless v. Ireland, qualified the time of emergency as ‘an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organized life of the community of which the community is composed’. This definition was further developed in the Greek case, in which the European Commission on Human Rights pronounced that ‘state of emergency’
1) must be actual or imminent,
2) the effects of emergency must involve the whole nation,
3) the continuance of the organised life of the community must be threatened and
4) The crisis or danger must be exceptional, in that the normal measures or restrictions for the maintenance of public safety, health and order, are plainly inadequate.
Without excluding the foregoing definition, Mrs Questiaux has provided a workable but ‘somewhat oversimplified’ definition of a state of emergency as: ‘a crisis situation affecting the population as a whole and constituting a threat to the organized existence of the community which forms the basis of the State.’ The crisis situation envisages exceptional circumstances. Such circumstances result from temporary factors of a generally political character which in varying degrees involve extreme and imminent danger. The danger must be of sufficient gravity to threaten the organized existence of a notion, that is to say, the political and social system that it comprises as a state.
Further, a well-recognized definition of empirical importance can be found in international labour conventions (at least eight of which recognize an emergency situation). For instance, Convention No 29 on Forced Labour, 1930, provides that the prohibition against ‘forced or compulsory labour’ shall not include – any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insects or vegetable pests, and in general any circumstance that would endanger the existence or the wellbeing of the whole or part of the population.
In the Constitution of the People’s Republic of Bangladesh, 1972 there is no definite definition of emergency. But if we examine the Article 141A of the constitution, we can make out the possible definition of emergency which may be of that.
Emergency means the existence of an unexpected condition where by the security or economic life of Bangladesh or any part there is threatened by war, external aggression or internal disturbance. The salient feature of the emergency regime is the suspension of some fundamental human rights including normal protections under the criminal law, and the extension of police power to search, detain and interrogate, compromising the normal standards.
State of emergency envisaged in three different situations:
Broadly speaking, emergency situations may be envisaged three different circumstances resulting from:
(a) a serious political crisis (armed conflict and internal disorder);
(b) force majeure (disasters of various kinds); or
(c) particular economic circumstances, notably those relating to underdevelopment.
The concept of force majeure in both municipal and international law covers calamities like earthquakes, tidal waves, cyclones and other natural disasters. An emergency situation caused by such natural calamities, actual or imminent, requires the marshalling of relief and rehabilitation resources. These might necessitate the imposition of limitations or restrictions on the enjoyment of certain rights and freedoms, such as the freedom of movement and residence (forced evacuations from affected danger areas); the freedom of the press and other information media (to avoid panic and the need to inform the population of steps to be taken): freedom of employment (use of the labour force to build shelters, dykes etc); the right to property (requisitions); as well as other rights. Such restrictions must be strictly necessary, and in compliance with the just requirements of general welfare (article 29 of the Universal Declaration and the terms of the limitation clauses in international human rights treaties, such as the (ICCPR).
There are very few precedents of an emergency arising from force majeure because such situations have been specifically provided for in the international instruments, notably in ILO Conventions 29 and 105. Accordingly, there is a greater chance of their being controlled by the competent organs.
Stephen Marks in his seminal contribution makes three valid points. First, the ‘implications of the argument that underdevelopment constitutes an emergency situation’ become clear when one sees that all human right; — civil and political rights on the one hand and economic, social and cultural rights on the other — are indivisible; consequently ‘the enjoyment of the former (civil and political rights) are not possible without that of the latter (economic, social and cultural rights).’
Second, whatever view one may have on the claims put forward by Third World countries, the fact remains that, for these countries, until a new international economic order is achieved, the economic and social conditions of under development will constitute an emergency situation making the implementation of at least some human rights difficult, if not impossible.
Third, the Economic and Social Council (ECOSOC) has repeatedly affirmed its conviction that the early realization of economic, social and cultural rights cannot be achieved until all countries and people cooperate for global development.
This writer is of the view that the underdevelopment- emergency syndrome has three dimensions. They are: long-term impact; short-term impact; and misuse of underdevelopment as a pretext for impermissible derogations of human rights.
State of emergency resulting from Political crisis:
Political crisis may be caused by armed conflict or internal disorder of a serious nature. Armed conflicts may be of three types, first, external aggression or war or international armed conflicts; second, war of national liberation; third, non-international armed conflicts.
Both the European Convention (ECHR) and the American Convention (ACHR) refer to ‘war’. But article 4 of the International Covenant (ICCPR) makes no such reference. The travaux preparatoires indicate clearly that the omission was deliberate: ‘While it is recognized that one of the most important public emergencies was the outbreak of war, it was felt that the Covenants should not envisage, even by implication, the possibility of war, as the United Nations was established with the object of preventing war.
But the omission of ‘war’ was never intended to deny a permissible right of derogation in war-time which is perhaps the most vivid paradigm of a threat to the life of a nation. The main concern of the draftsmen to ensure that the Covenant ‘would not be open to abuse’ and hence the wording emphasized ‘that the public emergency should be of such a magnitude as to threaten the life of the nation as a whole.’
Need for a Proclamation of Emergency:
It is recognized that extraordinary situations necessitate empowering the executive to take extraordinary measures to deal with the crisis, thereby raising public awareness with regard to the seriousness of the situation. More importantly, through this, the government tries to demonstrate that it is in full control of the situation and should be seen as taking action in dealing with the crisis. A distinguished US constitutional expert calls it the “reassurance function”. During periods of emergency, certain provisions of the constitution guaranteeing fundamental rights are either restricted or suspended. However in legal sense, necessity of emergency is a very controversial matter, for emergency may be right or wrong. It is true that providing the provision of emergency is democratic , but its abuse is an undemocratic one .Emergency means one kind of unexpected occurrence when immediate action becomes necessary because the security of state as a whole is of greater important than the liberty of any individual.
As lord Atkinson has said in R. V Halliday case-
“However precious the personal liberty of the subject be there is something for which it may be , to some extent , sacrificed by legal enactment , on account of national success in the war , or escape from the national plunder or enslavement.”
So the state has to safeguard the liberties of all the people within its local area As V. N. Shukla says in this regard –
“Events may take place threatening the very existence of the state and if there are no safeguards, against such eventualities, the together with all that is desired to remain basic and immutable , will be swept away .”
The spurious justifications of the emergency’s necessary to save democracy from chaos and to pursue the social revolution effectively .But, in many countries, including Bangladesh, a state of emergency is often used as a vehicle to remain in power by suppressing the opposition and mostly used for political persecution, including torture, in gross violation of human rights.
However, sometimes it may be difficult to adequately deal with situations within the framework provided by the existing law, especially criminal law. ‘This likely inability to effectively deal with the crisis clears the conceptual path for another way to confront the problem: the “state of emergency.” The reason for allowing a declaration of a state of emergency has been an imminent threat to the wider society, which necessitates empowering the government to take extraordinary measures to protect lives and property.
Thus, the emergency constitution should contain provisions to detain suspects threatening national security, without the criminal law’s usual protections. Given the fact that the scale and nature of the future emergency are unknown, the government should have all tools at its disposal, including the declaration of a state of emergency, to deal with the crisis as it comes. Efforts to deprive the government of the power to declare a state of emergency altogether may limit its ability to respond to the situation. At the same time, giving a blank cheque to the government may result in the abuse of this extraordinary power.
Consequently, most post-war constitutions provide for a declaration of a state of emergency with wide protection of core civil and political liberties during even the most severe crises. The purpose of the declaration of a state of emergency should be to reassure the public that the situation is under control, and that the state is taking effective short-term actions to normalize the situation. However, the declaration of a state of emergency in a way is an expression of no-confidence in the existing laws and the government’s general capacity to discharge its functions by utilizing existing laws. The declaration of a state of emergency in situations other than natural disasters is also an admission by the government of its failure to perform its functions to prevent events, or minimize their effects, leading to such a declaration. A distinctive interest may come into play when the government fails to perform its functions and the level of confidence is eroded in the government’s ability to deal with a situation. In the face of such a failure, the government tends to become authoritarian and the norms of human rights are compromised. The abuse of fundamental rights during a state of emergency thus necessitates a re-look at the constitution and the development of new constitutional and other measures to deal with the protection of civil liberties. There is a need to establish a uniform procedural framework for the future exercise of all such powers.
Classification of Emergency:
If we make a legal study of emergency, we may find out that emergency may be classified on the basis of two points.
Firstly, the declaration of a state of emergency may cover the entire territory of the state or any part thereof, depending upon the areas actually affected by the circumstances motivating the declaration. So from the view point of territorial extent- emergency may be of two types.
When emergency is declared whatever may be the reason behind the declaration throughout the whole territory of the state, it is called the national emergency. For example, article 352 of the constitution of India provides that emergency may be declared throughout India or any part thereof. The constitution of Pakistan also provides the same provisions regarding national emergency that is article 232 of the Pakistan constitution.
Partial or State emergency:
When emergency is declared in a particular area of a unitary state or in a state of federation it is called partial or state emergency. For example article 356 of the constitution of India provides partial or state emergency. The constitution of Pakistan also provides state or partial emergency in article 234.
The Constitution of Bangladesh allows both the National emergency and partial or state emergency.
Secondly, On the basis of its nature emergency may be classified into three categories.
Emergency of War:
When emergency is declared as a result of war or external aggression it is called Emergency of War. For example, Emergency of war was declared in British India during the Second World War. This emergency was declared by the British government under the authority of the emergency power (defense) Act. 1939. In independent India emergency of War was declared for two times. First in October, 1962 when in china launched a massive attack on India’s North-Eastern border. Second in December 1971, when Pakistan attacked India emergency was declared under article 352 on account of external aggression.
Emergency of Subversion:
If any state declares emergency for internal disturbance within the state to suppress civil war or any anti-government movement or a riot in any particular area of the country or to face natural disaster like storms, earth quake, volcanic eruption is called emergency of subversion. For example in our country emergency was declared five times due to internal disturbance.
Economic or Financial Emergency:
When emergency is declared with a view to overcoming a situation in which the economy of the state is about to breakdown or has broken down it is called Economic Emergency. It is worthy of notice here that from the broader point of view economic emergency should be included in emergency of subversion but constitution and laws of some countries specifically, in addition to emergency of subversion, for economic or financial emergency. For example article 360 of the constitution of India, specifically provides that if the president of India is satisfied that a situation has arisen where by the financial stability or credit of indie or any part of it is threatened, he may declare emergency. Similar provision is provided for in article 235 of the constitution of Pakistan. The constitution of Pakistan of 1956 also provided for such provisions (article 194). In USA economic emergency was declared by President Roosevelt under the authority of the National Industrial Recovery Act. 1930. By declaring emergency Roosevelt adopted New Duel Policy to overcome worldwide financial depression. Under the constitution of Bangladesh proclamation of Economic Emergency is not allowed.
Distinction between Emergency of War and Emergency of Subversion:
Though in a general sense the emergency of subversion may be seemed identical with the emergency of war but if a legal and deep study of comparison between the two emergencies is performed some distinguishable features must be found out. Firstly, Emergency of war is connected with war or external aggression whereas emergency of subversion is connected with any type of internal disturbance within the territory of the state.
Secondly, emergency of war is declared throughout the country but emergency of subversion may be declared to any part of the territory.
Thirdly, Emergency of war is related to the question of sovereignty of a state because it is declared when the sovereignty of the state is threatened but emergency of subversion has no relation with the question of sovereignty of a state.
Fourthly, the immediate purpose of emergency of War is to defend the sovereignty and security of the state whereas the purpose of emergency of subversion is to suppress the civil war and anti-government movement.
Somewhere provisions of double emergency are visible. Emergency is of three kinds, which we have discussed earlier. This double emergency is not a class apart. While one type of is in operation declaration of another type of emergency is called double emergency. For example in India the proclamation of emergency of war made in December 1971, was still in operation when another proclamation of emergency of subversion was made on 26th June, 1975 on the ground that the security of India was threatened by internal disturbances. This double emergency continued for a long time. When Janata Party came to power in March, 1977 replacing the Indian National Congress the emergency of subversion declared in 1975 was withdrawn on March 22, 1977 and the emergency of war was withdrawn on March 27, 1977. The provision of this double emergency was inserted in the constitution by adding clause 9 to article 352.
Historical background to the Declaration of Emergency in Bangladesh:
It has been a common practice in the constitution making of the subcontinent to include provisions for proclamation of emergency in the country not only to handle a situation of war or threat of external aggression but also to combat internal disturbance with the power to suspend the fundamental rights. In Indian subcontinent the history of emergency power of the executive traces back to The Government of India Act, 1935. under Article 102 of that Act ‘the governor general could declare the emergency if in his opinion a grave emergency existed whereby the security of India was threatened by war or internal disturbance.’1 this provision which is fully alien to the British colonial democratic system was kept candidly as a weapon by the British ruler in India to perpetuate their colonial design. But unfortunately this undemocratic and democracy destroying provisions continued to have place in the subsequent constitution in the subcontinent ,although freedom was achieved and countries become independent sovereign states .In the management of colonial states these provisions were considered as a necessary weapon to crash opposition and perpetuate the rule.
Keeping in line with the 1935 Act the Constitution of India 1949 contained provisions for proclamation of emergency. Although that constitution guaranteed the fundamental rights to the citizens of the country, the rights were suspended in case of emergency situation.
Article 352 says that
“If the president is satisfied that a grave emergency exists whereby the security of India or any part of the territory there of is threatened weather by war or external aggression or internal disturbance, he may, by proclamation, make declaration to that effect.”
Following the same line The Constitution of Pakistan 1956 contained the emergency provisions in part XI and Article 191says that
“If the president is satisfied that a grave emergency exists whereby the security of Pakistan or any part of the territory there of is threatened weather by war or external aggression or internal disturbance, beyond the power of the provincial Government to control, he may issue a proclamation of emergency”
The Constitution of Pakistan 1962 also carried almost identical provision for emergency with some more power to the president than usual. Article 30of the constitution says that
“If the president is satisfied that a grave emergency exists-
a)In which Pakistan or any part of Pakistan is (or is in imminent danger of being) threatened by war or external aggression; or
b) In which the security of Pakistan or any part of the territory there of is threatened weather by war or external aggression or internal disturbance, beyond
c) The power of the provincial Government to control, he may issue a proclamation of emergency.”
The common feature and implications of the emergency provisions are that once the emergency is proclaimed by the president not only would the fundamental rights be suspended, the power of the superior courts to issue any writ for the enforcement of such rights would also be suspended .The emergency could be proclaimed for the whole of any particular province or state where the constitutional machinery in the opinion of the president has collapsed and this to both India and Pakistan. As a result, in a emergency assumption of legislative powers in certain cases with or without the authorization would be natural sequence.
The experience of the application of the emergency provision in Pakistan is extremely bitter. In its 23 years long history , Pakistan witnessed a series of action taken by the rule elite or sometimes by one individual in the office of the president under the grab of these emergency provisions ,not only to perpetuate themselves in power but also in effect to destroy the existing institutions and the integrity of the country as whole. The exercise of such powers in the most arbitrary fashion crushed prospect of Pakistan developing into a coherent state and such exercise by the ruler of Pakistan began before the constitution of 1956 came into effect. The un-constitutionalism set in by Ghulam Mohammad and Iskander Mirza in 1950 s through use of emergency power under the 1935 Act never allowed the country to build a normal democratic system. The emergency imposed by Ayub Khan in 1965 war was not lifted till 1969 when he was forced to leave the power. The constitutional history of Pakistan was a history of arbitrary exercise of power by the chief executive followed by proclamation of emergency and martial law and almost all the actions taken under these instruments ultimately weakened the political institution. This led to the suppression of opposition and putting hundreds and thousands of citizens into jail without trail, sometimes for years together. Almost all political leaders of Pakistan particularly the prominent ones in the former East Pakistan were extremely critical of these harsh laws including those on emergency situation .The AL in particular was committed since the formation of the United Front in 1954 to repeal not only the black laws but also to remove any scope enabling any individual or retard the process of democracy. The experience of Pakistan showed that whenever such power was enshrined in the constitution, however well intentioned the laws might have been the tendency to use or in most cases misuse them was overwhelmingly predominant. These authoritarian powers were therefore considered contradictory to the concept of nourishing a living democracy.
The reason why the emergency provisions were not incorporated in the original Constitution of Bangladesh:
With these experiences in mind, the Awami League Government did not want to leave any scope for such exercise of power by the President.
Firstly, they were establishing a parliamentary system and as such, giving such power to the president who was only a titular head could lead Bangladesh back to the cycle experienced in Pakistan and frustrate the system as a whole.
Secondly, they were considered as undemocratic provisions tending to create a conflict between the Parliament and the President.
Thirdly, they would be contradictory to commitments the Awami League made to the public for the repeal of the black laws.
Lastly, the Awami League though that in view of the fact that there was hardly any opposition in the country and having had a strong friendship with India there was not much necessity for such provisions in the constitution.
As a result, in the constitution of Bangladesh no provision or article was embodied for any emergency situation. The decision was bold and courageous. Of all the features for which Bangladesh constitution-is distinguishable from others in the sub-continent the absence of any provisions to (1) preventive detention and (2) proclamation of emergency were the most significant and outstanding ones.
Incorporation of emergency provisions in the Constitution of Bangladesh: The Constitution (Second Amendment) Act 1973.
But like the change made in article 33, the constitution was also amended to include provisions for emergency sooner than a year had passed. The cynics of even some critics would say that dropping these provisions in the original constitution attributed no idealism or motivation on the part of constitution maker. They simply forgot to include them.
The fast growing opposition in the country and the deteriorating law and order situation shook the confidence of the ruling class and the stark realities of political management of a state led them to take certain measures to bring the situation under control. At the end the Awami League Government moved to take refuge to the ‘colonial instruments’ of sustaining power. On the 22nd September, 1973 when hardly 9 months had gone the Constitution (Second Amendment) Bill was passed to incorporate emergency provisions.
A few members gone to opposition with regard to incorporation of emergency provisions in the constitution. Among them Ataur Rahamn Khan was firstly mentionable. He strongly criticized the new provisions and reminded the Parliament that the Awami League over the last 25 years was opposed to this kind of law because they were always used against the political opponents. He apprehended that the same would be used against the political opponents in Bangladesh also. He aliened that the provision for proclamation of emergency for internal disturbance revealed the weakness and failure of the administration. He argued that the Awami League had won the election on the basis of the present constitution and amendment of this kind of fundamental nature could not be effected without the approval of the people. He argued that in view of the already existing Article 63 with regard to war or external aggression, the making of provisions for emergency was not justifiable nor had the suspension of fundamental rights during the pungency of the emergency any reasonable basis. He alleged that the motives of introducing these provisions now were highly political and that they would primarily be used for repression of political opponents. From the side of the government none made any sincere attempt to repudiate the charges. The Law Minister did not elaborate in what kind of internal disturbances the emergency could be proclaimed nor did he explain why enforcement of fundamental rights would be suspended in the case of Bangladesh citizens during the emergency. The opposition members including the independents led by Ataur Rahman Khan walked out of the House in protest against the making of such provisions and the Bill was passed to become an Act only by the ruling party.
Whatever might have been said by the Law Minister or the Government, it was known to all why the Constitution had to be changed. The cherished dream of Sheikh Mujibar Rahman that in a democratic Bangladesh none would be detained without trial and the fundamental rights would not be suspended to suppress political opponents was thus frustrated. It was realized by the Government that it was becoming increasingly difficult to cope with the situation. They had now reached a point where they required proclamation of emergency to combat internal disturbance. The political strength and support they claimed to have was not strong enough to keep them away from making such provisions of emergency power.
As a commentator says that
“In order to consolidate their political position further the high degree of idealism embodied in the 1972 Constitution was at last sacrificed. They now felt the necessity of incorporating the provisions relating to proclamation of emergency. They Government thus proceeded to reverse the process and introduced the Constitution Second Amendment Bill in September 1973. And in original constitution a new Part IXA was incorporated to include new emergency provisions in the constitution.”
When the emergency provision and preventive detention law were inserted in the Constitution as C J Badrul Haider Chowdhury says ,to put it simply what was given by one hand was taken away by the other hand.
With such a meagre number of members in opposition, the Amendment Bill was passed within a short time without much debate. The opposition’s proposal including that of Mr. Ataur Rahman Khan to refer the Bill to elicit public opinion was rejected. The new law Minister, Monoranjan Dhar however attempted to make out a case arguing that these provisions for proclamation of emergency were in the constitution of all democratic countries of the world and they were being kept to meet the emergency situation of the country. He argued that these provisions were not incorporated in the constitution when it was framed and that now this amendment was introduced to fill up that omission What the Minister implied was that either the entire Constituent Assembly forgot to incorporate them or Dr. Kamal Hossain did not do so by mistake.
The Law Minister however further assured the Parliament that the emergency power would never be used by the present government unless the government was compelled to do so. The Minister tried to convince the parliament that the provisions for emergency including the suspension of fundamental rights were retained to control, the activities of the ‘enemy aliens.
Finally to incorporate the Emergency provisions a new Part IXA was added to Constitution by the same Amendment Bill. The new Articles 141A, 14IB and 141C showed not only improved draftsmanship bat also more candidness compared to the provisions of the other three constitutions, although the, contents remained more or less the same.
Who can declare the proclamation of emergency?
The Constitution of the Peoples’ Republic of Bangladesh empowered the president to declare a proclamation of emergency to tackle an unwanted occurrence. Article 141A of the constitution says that-
“If the president is satisfied that a grave emergency exist in which the security of economic life of Bangladesh or any part thereof is threatened by war or external aggression or internal disturbance, he may issue a proclamation of emergency.”
Thus the president can declare the proclamation of emergency on three grounds namely-
- External Aggression
- Internal Disturbance
In Bangladesh the president of different periods, declared the proclamation of emergency in five times due to internal disturbance.
The first emergency was declared by the president Muhammadullah on 28th December 1974.
The second proclamation of emergency was declared by the president Abdus Sattar on 30th May, 1981.
The third proclamation of emergency was declared by the president Hossain Muhammad Ershad on 26th November, 1987.
The fourth proclamation of emergency was declared by the president Hossain Muhammad Ershad on 27 November, 1990 and,
The last and fifth proclamation of emergency was declared by President Iazuddin Ahmed on 11th January, 2007.
In Bangladesh the president also can declare the proclamation of emergency due to war and external aggression. The president of India declared the state of emergency in October, 1962 when China attacked on India’s north eastern border. Again the president of India declared emergency on December, 1971 when Pakistan attacked India on account of external aggression.
So, therefore two types of emergency can be declared by the president under the Constitution of Bangladesh namely-
- Emergency of War
- Emergency of Subversion
Again the proviso of article 141A of the constitutions of Bangladesh says that “the proclamation Emergency shall require for its validity the prior counter signature of the prime minister.” Thus virtually the declaration of emergency depends on the wish of the prime minister. Whenever the prime minister advice the president to declare the emergency, the president is bound to do so. The declaration of emergency therefore depends on the subjective satisfaction of the executive and the court cannot question the justifiability of such satisfactions.
When the non party care taker government is in charge of the country the president can declare the proclamation of emergency without acquiring the prior counter signature of the prime minister. As article 58E of the constitution says that-
“notwithstanding anything contained in article 48 (3) 141A (1) and article 141C (1) of the constitution during the period of non party care taker government is functioning, provisions in the constitutions requiring the president to act on the advice of the prime minister or upon his counter signature shall be ineffective.”
When the president can declare the proclamation of emergency?
The President of Bangladesh can issue a proclamation of Emergency under article 141 (1) of the Constitution of the People’s Republic of Bangladesh;
Whereas it is expedient to take special measures for the purpose of ensuring the security and the interests of the state and the population, and for the purpose of maintaining public order and protecting the economic life, and for the purpose of ensuring the maintenance of supplies and services essential to the life of the community.
Whereas the Parliament is not in session and the President is satisfied that circumstances exist which render immediate actions necessary not only to handle a situation of war or external aggression but also to combat internal disturbance with the power to suspend the fundamental rights then he can issue a proclamation of emergency.
Article 141A (1) of the Constitution of the peoples’ republic of Bangladesh says that
“ If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency.”
Article 141A (3) of the Constitution of peoples’ republic of Bangladesh says that
“A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance may be made before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.”
So when the existing circumstance satisfies the mind of the president to take urgent measure to tackle the threat of war or external aggression or internal disturbance, he may issue a proclamation of emergency.
Difference between Article 141A (I) and 141A (3)
Though both the Article 141 (1) and 141A (3) leaves the power to the president to declare the proclamation of emergency to prevent an unwanted occurrence, but there is a difference between them.
Under Article 141 A (1) if president is satisfied that a grave emergency exists in which the economic life of Bangladesh or any part thereof is threatened by war, or external aggression internal disturbance then he can declare a proclamation of emergency.
But, under Articles 141A (3). If economic life of Bangladesh or any part thereof threatening by war external aggression or internal disturbance is imagined by president he cannot declare the proclamation of emergency before the actual occurrence of threat of war or any of such aggression or disturbance. If he declare so, that would be unconstitutional.
Magnitude of the threat:
The emergency does not have to be one in which the life of the nation ‘as such is threatened with extinction, but one in which there is such a breakdown of order or communications that organized life cannot, for the time being, be maintained.
There has been a further refinement, that a threat to the life of the nation is one that:
a) Affects the whole of the population and either the whole or part of the territory of the State; and
b) Threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant.
It would therefore follow that the threat must be such as to imperil those institutions which are essential for the proper functioning of a democratic government. Again, the threat must be a patent one and objectively demonstrable, not a latent one subjectively perceived or apprehended. The emergency regime of a preventive nature is impermissible. Equally impermissible is a state of emergency which is declared or continued to protect the government in power and to delay the return of a popular government.
Duration of Emergency:
If the president under article 141A of the constitution of the peoples’ republic of Bangladesh declares the proclamation of emergency, the proclamation shall remain valid up to 120days. The proclamation of emergency shall become invalid on the expire of the 120 days. Unless before the expire of that period, it has been approved by a regulation of parliament. Whereas in India the constitution provides that the duration of emergency cold not exceed two months unless before the expiry of that period, the proclamation was approved by both the Houses of parliament. In both the 1956 and 1962 constitution of Pakistan there was no mandatory time limit for the expiry of the proclamation. In the 1956 constitution of Pakistan, once the National Assembly disapproved the proclamation, it would remained invalid to operate but in the 1962 the constitution of Pakistan even the National Assembly had no power to disapprove the proclamation. (Article 30.6)
When a proclamation of emergency is no more valid:
Under the Constitution of the People’s Republic of Bangladesh the proclamation of emergency, declared by the president of Bangladesh shall cease to operate in the following situation.
Firstly, the proclamation of emergency shall cease to operate under article 141A (2) (a) of the Constitution of Bangladesh, if the proclamation of emergency shall be revoked by a subsequent proclamation.
Secondly, Under article 141A (2) (c)
“A proclamation of emergency shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament:
Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament.”
Thirdly, the proclamation of emergency shall cease to operate under the proviso of article 141A (1) if the proclamation of emergency shall fail to fulfill the condition of acquiring the prior counter signature of the prime minister.
When these three conditions are established the proclamation of emergency shall leave its force to operate and to suspend the provision of certain articles of the constitution and the enforcement of fundamental rights as contained in part III of the constitution.
Justifications for a valid proclamation of emergency:
The validity of a proclamation of emergency depends upon the -“Satisfaction of the executive about the existence of two things –
(1) There ‘is war, external aggression or internal disturbance and
(2) Security or economic life of Bangladesh or any part thereof is threatened by such war, external aggression or internal disturbance.
The question is whether the satisfaction of the executive as to the existence of the two things is justifiable. The case of non-justifiability of the Presidential satisfaction for promulgation of an Ordinance is based on two grounds –
(1) Ordinance-making is an exercise of legislative power which cannot be challenged on the grounds on which exercise of executive power can be challenged and
(2) Satisfaction regarding existence of emergent situation is a political question which is not amenable to judicial determination.
The first ground is not available as proclamation of emergency is purely an executive act. The second ground is also not available as in our constitutional system the doctrine of political question has no application.
The Pakistan Supreme Court delivered, two judgments wherein the court accepted the doctrine of political question while dealing with revocation of the proclamation of emergency under art.30 of the Pakistan Constitution of 1962. That constitution introduced a sort of a presidential form of government comparable with the American system and those two decisions cannot have any application in respect of interpretation of article 141A of the Constitution. It is submitted that satisfaction of the President which in reality is the satisfaction of the Prime Minister and the Cabinet is not outside the purview of judicial scrutiny. In Teh Cheng P oh v. Public Prosecutor the power of the Ruler under the Malaysian Constitution to make certain proclamation came up for consideration. Lord Diplock observed –
“The power to proclaim an area as security area is discretionary one. It is for the Ruler again, in effect, the cabinet to form an opinion whether public security in any area of Malaysia is seriously disturbed or threatened by the causes referred to in the section, and to consider whether in his opinion it is necessary for the purpose of suppressing organized violence of the kind described. But, as with all discretion conferred upon the executive by Act of Parliament, this does not exclude the jurisdiction of the court to inquire whether the purported exercise of the discretion was nevertheless ultra vires either because it was done in bad faith (which is not in question in the instant appeal) or because as a result of misconstruing the provision of the Act by which the discretion was conferred upon him (the Ruler) has purported to exercise the discretion when the conditions precedent to its exercise were not fulfilled or, in exercising it, he has taken into consideration some matter which the Act forbids him to take into consideration or has failed to take into consideration some matter which the Act requires him to take into consideration”.
The satisfaction of the President as regards proclamation of emergency is justifiable for the same reason the satisfaction of the President in respect of emergent need for promulgating an Ordinance is justifiable. However, it should be kept in mind that the Constitution has committed the matter to the discretion of the executive and Parliament has been given the authority to approve or disapprove it. In such a situation it is not for the court to question the adequacy or sufficiency of the grounds of satisfaction or the correctness of the facts upon which the satisfaction is based. But the satisfaction as to emergency being a condition precedent to the exercise of the power, the validity of the proclamation of emergency can be challenged on the ground that there was no satisfaction at all or that it was wholly mala fide or based on totally irrelevant or extraneous grounds. The Pakistan Supreme Court held that once a proclamation had been validly issued and Parliament approved it, the question whether the emergency had ceased to exist and therefore the proclamation had to be withdrawn was outside the competence of the court to decide.2
In our constitutional dispensation this may not be the correct statement of the law. The court will not lightly deal with the decision of the executive in this regard and will be very cautious in upsetting the decision of the executive in respect of revocation of the proclamation of emergency, but the court’s jurisdiction to issue mandamus cannot be questioned where it is plainly clear that the emergency has ceased to exist. While dealing with the question whether the court is powerless when the Ruler fails to revoke the proclamation Lord Diplock observed –
“If the Ruler fails to act the court has no power itself to revoke the proclamation in his stead. This, however, does not leave the courts powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion. Article 32(1) of the Constitution makes the Ruler immune from any proceedings whatsoever in any court. So mandamus to require him to revoke the proclamation would not lie against him; but since he is required in all executive functions to act in accordance with the advice of the cabinet, mandamus could, in their Lordships’ view, be sought against the members of the cabinet requiring them to advice the Ruler to revoke the proclamation.”
State of Emergency in Bangladesh after independence:
Bangladesh became independent from Pakistan in 1971, following a bloody war. The indefinite postponement of the summoning of the national Assembly and the refusal of the Pakistani military government to hand over power to the elected representatives following the general election resulted in mass protests. The use of military might in feeling with political problems led to the bloody war that cost the lives of millions of people and also resulted in the surrender of Pakistani forces on 16 December 1971, and the creation of Bangladesh. One of the reasons for the creation of Bangladesh was the aspirating of the people to establish a democratic society. Conversely, it may be said that Bangladesh became an independent country as a protest against arbitrary and oppressive rule. For this intention the original constitution of the People’s Republic of Bangladesh, which was passed by the constituent Assembly on 4 November and put into effect on 16 December 1972 contained no provision regarding the proclamation of emergency. But after two year of independence, as the government fell the need of proclamation of emergency in order to tackle an unexpected situation, the original constitution faced a drastic change by the constitution (2nd Amendment) Act 1973 which incorporated the provisions of proclamation of emergency.
After independence, Bangladesh had experienced the state of emergency in five times.
State of Emergency December, 1974
After the famine and before the year was over, the country reached a crucial stage. What made the situation worse was the gradual realization that despite all efforts made and all laws enacted to ease the situation, the government had miserably failed to overcome the two basic problems the country faced since independence i.e. the economic crisis and the law and order situation. In both areas the situation continued to worsen and a tremendous sociopolitical pressure began to be built up both from within and outside the government for taking some drastic measures to overcome the crisis. With the last blow struck by die countless tragic death in the famine, a sort of moral recovery became necessary and the primary responsibility for a salvage fell on Sheikh Mujibur Rahman.
As indicated earlier, with the latest development in the country following the Famine, opinion was now recalculated that the existing system was not the right kind to achieve the goals Mujib had promised to the people. The two major tasks of improving the law and order situation and the general economic condition could not be accomplished through the existing agencies. By November people close to Sheikh, supported by the leaders of the CPB and the NAP (M) started openly discussing how the existing situation could be overcome and wondered what kind of system would be suitable to accomplish a socialist transformation. They revived the earlier argument that “the country was more important than the system”. Mujlb indirectly used to hint at the need for change but he did not yet openly discuss it with any of his senior colleagues.
As a first step towards that direction Mujib resorted to the exercise of power incorporated in Article 141A of the Constitution which was introduced about a year ago through the Second constitution Amendment Act. At noon on 28th December, 1974 the President by an Ordinance proclaimed a state of emergency in the country suspending the enforcement of fundamental rights during the period of emergency. While justifying such an action, the government eulogized the struggle for achieving independence within a short period of one year. It was further mentioned in the government handout that a free and fair election was held within 3 months thereafter and a government was formed by the duly elected representatives. It also said that a group of people who were opposed to the independence and emergence of Bangladesh as a sovereign state were active in various subversive activities and they were joined by others who failed to attain power through constitutional means. The government spokesman disclosed that some collaborators of the Pakistan Army, extremists and enemy agents in the pay-roll of foreign powers were subverting the state and were engaged in activities which were creating impossible condition in the country for attaining normal political stability and orderly economic progress. It was on these grounds that the President was satisfied that a grave emergency existed in which the security and economic life of Bangladesh was threatened by internal disturbance and the President therefore, issued the Proclamation of Emergency.
State of emergency May, 1981
After the death of President Jiaur Rahman, the country faced a crucial problem. The leaders of the BNP divided themselves in different groups to hold the power and this lead to the political crisis. On the other side, criminal activities in those days were going to increase at an alarming rate. So to ensure peace and order in the society, the Acting President Mr. Justice Abdur Sattar under Article 141A declared the proclamation of emergency on ground of internal disturbance on May 30, 1981. To justify such an extreme move, the president in his Act of Proclamation said that since security and economic life of the country was threatened by internal disturbance, he had to impose emergency. The President under Article 141B empowered the executive to take any action and the parliament to make any law in violation of Article 36, 37,38,39,40, and 42. The president, by virtue of power conferred in under Article 141Cof the Constitution has suspended the right to move any court for the enforcement of fundamental rights contained in Part III of the Constitution. A presidential order to this effect said, all the cases pending in any court for the enforcement of those rights shall be remained suspended during the operation of the emergency declared today. To fulfill the intention for what the proclamation of emergency was declared, the President declared The Emergency power Rules which among other rulers contained that if any one violates any order issued under this regulation, he /she shall be liable to suffer rigorous imprisonment for a maximum period of three years or fine or both.
State of emergency November, 1987
The president Hoissain Muhammed Arshed assumed to the post of president in an undemocratic way and ruled the country through martial law. At that time the other Democratic Party announced a movement against the rule of Arshed and pressed the various undemocratic acts of this government to make the people aware of these acts. So to perpetuate his rule and to control the anti –government movement, he under Article 141A declared the proclamation of emergency on27 November 1987. To acquire public consent to this proclamation he stated that he was satisfied that a grave emergency existed in which the security of economic life of Bangladesh or any part thereof was threatened by internal disturbance, so he had to imposed a proclamation of emergency. To complete his ill intention he declared the Emergency Power Rules which contain some rules that are harmful to the fundamental rights of the citizens.
This Rules stated that to protect the security or the interest of the state and the public or to maintain law and order the government under this regulation can prohibit freedom of movement, freedom of association, freedom of assembly, freedom of thought and conscience and of speech, freedom of profession and rights to property throughout the country or at any place. Any police officer can take any necessary steps including use of force to enforce this regulation. If the government felt the necessity of any information or article to examine or to collect, then he could order any person in whose possession such information or article was laying, to supply or to give to any specified person or authority. If any person did not supply or willfully supplies false or wrong information then he /she shall be liable to suffer rigorous imprisonment for a period of three years or fine or both. This rules also suspended the enforcement of fundamental rights contained in part III of the constitution and all cases pending in any court to enforce those rights under Article 141Cof the Constitution.
State of emergency November, 1990
The president Hossain Muhammed Ershed tried to make his regime long but the other democratic party such as BNP and AL struggled for free national election to prove their popularity. So to protest the opposite party and to perpetuate his rule, he declared the proclamation of emergency on 27 November 1990.To justify such an extreme move, the president in his Act of Proclamation said that since security and economic life of the country was threatened by internal disturbance, he had to impose emergency. The President under Article 141B left powers to the executive to take any action and the parliament to make any law in violation of Article 36, 37,38,39,40, and 42. The president, by dint of power conferred in; under Article 141Cof the Constitution has suspended the right to move any court for the enforcement of fundamental rights contained in Part III of the Constitution. A presidential order to this effect said, all the cases pending in any court for the enforcement of those rights shall be remained suspended during the operation of the emergency declared today. To fulfill the intention for what the proclamation of emergency was declared he ordered The Emergency Power Rules which is a threat to the fundamental rights of the citizens of the country. This proclamation of emergency was expired on December 6, 1990.
State of emergency January, 2007
On 20 October 2006, the 14-party opposition alliance declared that it would launch massive street agitations, indefinite strikes and blockades to protest against the handover of power to Justice K M Hasan after the completion of the government’s five-year term of office. On 27 October, Justice K M Hasan indicated his unwillingness to be appointed as chief adviser. On 29 October 2006, the government completed its five-year tenure and resigned. The parliament was also dissolved on its expiration of tenure. Without exhausting other options available under the Thirteenth Amendment Act 1996, the President assumed the office himself. So he was the President and, at the same time, also the Chief Adviser (Prime Minister). Thus, the very purpose of the Thirteenth Amendment to establish a neutral non-party caretaker government to hold a free, fair and credible election was defeated, with the titular President, being a nominee of the previous political Government, assuming the role of the real head of the caretaker government.
After assuming the office of Chief Adviser to the caretaker government, the President then appointed a 10 member advisory council. The general election was scheduled to be held on 22 January 2007. The failure of the President, as the Chief Adviser of the caretaker government, in maintaining neutrality (the very basis of the Thirteenth Amendment) further worsened the crisis. Apart from the legality of the combination of presidential and prime ministerial powers in one hand, the President often ignored the advice of the advisers. Consequently four advisers resigned in protest. As a result of the opposition’s demand for a re-organization of the Election Commission, the government then appointed two new election commissioners. These two new commissioners were also known supporters of the BNP. There were a number of newspaper reports that the President was acting under advice from the outgoing government. Thus, the new appointments further exposed the political bias of the President. Once more, almost all major opposition parties decided to boycott the general election as they feared that free and fair elections were not possible under that caretaker government headed by the partisan President, acting in favour of a political party, in breach of the oath of office. Moreover, on 11 January 2007, the majority of his advisers decided not to support a decision to go ahead with the election on 22 January without the participation of opposition parties. In this situation, the international community was also urging to postpone the election as, in the absence of the opposition parties, the election would not be a credible one and, given the political history of the country, it would be likely to lead to serious destabilization and civil unrest. The European Union and other international observers decided to withdraw from monitoring the election. The President ‘focused more on the timeliness of the elections than on their fairness, ignoring many signs that their credibility was eroding’. The agitation and protests of the opposition parties were gradually becoming violent, resulting in 40 deaths and causing anarchy. The President, under pressure from the armed forces and international community, declared a ‘state of emergency’ under article 141A of the constitution on the night of 11 January 2007 (that is, 11 days before the scheduled general election of 22 January 2007).To justified such an extreme move, the president in his Act of Proclamation said that since security and economic life of the country was threatened by internal disturbance, he had to impose emergency.
The consequence of a Declaration of Emergency:
Under Article 141A of the constitution of the people’s republic of Bangladesh, if the president declare a state of emergency to tackle an unexpected occurrence, he can suspend the provisions of certain Articles (Under Articles 141B) and the enforcement of Fundamental rights (Under Article 141c) as contained in the constitution. The term ‘suspension of Fundamental rights’ means that the enjoyment of those certain fundamental rights are remained restricted during emergency period. No citizen of the country can demand to get the benefit of that right until the proclamation of emergency is revoked by a subsequent proclamation.
So the proclamation of emergency bear with it two effects.
1. Suspension of provisions of certain Articles during emergencies:
As the constitution leaves the power to declare a proclamation of emergency to the president, if he declares so, certain Articles of the Constitution of Bangladesh will be suspended automatically. And this suspension will continue till the proclamation of emergency is in force. In this regard, Article 141 B of the constitution says that
“While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the state to make any law or to take any executive action which the state would, but for the provisions contained in Part III of the constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.”
The above mentioned article deals with the following matter-
Article-36. Freedom of movement:
Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.
Article 37, Freedom of assembly:
Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.
Article-38. Freedom of association:
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;
Article-39. Freedom of thought and conscience, and of speech:
(1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence- (a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed
Article -40 Freedom of profession or occupation:
Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
Article -42. Rights to property:
(1)Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law. A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or
(2)Specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate. Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalization or acquisition of any property without compensation.
As the Article 141B empowered the executive to take any action, they utilize their power in taking action even in violating the fundamental right as contained in the constitution and without out showing any humanity to the citizens of the country. The emergency Government mostly take any action to oppress the opposite party and to control the anti government movement.
At the same time the parliament can make any law which is inconsistent with the Fundamental right as contained in part III of the constitution thus the Article 26 which limits the state power to make any law inconsistent with fundamental rights is violated. The parliament makes such law only to enable their government to perpetuate the rule and to protest the opposite party.
The power of the Executive and parliament given by Article 141B will continue until the proclamation of emergency cease to operate.
2. Suspension of enforcement of fundamental rights during emergency:
As soon as emergency is declared, the president in consultation of prime minister by order can declare the suspension of enforcement of any of the fundamental rights conferred by part III of the constitution. In this regard Article 141C of the constitution says that.
“1. While a Proclamation of Emergency is in operation, the president may, [on the written advice of the prime minister, by order], declare that the right to move any court for the enforcement of such of the rights conferred by Part III of the constitution as may be specified in the order, and all proceedings pending in any court for the enforcement of the right so specified, shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.
2. An order made under this article may extend to the whole of Bangladesh or any part thereof.
3. Every order made under this article shall, as soon as may be, be laid before the parliament.”
Thus the Article 141c violates the Articles 44 of the constitution which deals with the enforcement of fundamental rights. So if any person’s rights are violated by any of those articles, (Article 141B and 141c) he, on an application to the high count Division, gets no remedy under Article 102 (I) of the constitution. It the case of Kripa Shindu Hazrav V The state C J Badrul Haider chowdhury says that
“During emergency when the fundamental rights are suspended and the right to move any court for the enforcement of the same has been taken away, neither article 102 of the constitution nor section 491 of the CrPC is available to seek the enforcement of these rights.”
As soon as, proclamation of emergency is withdrawn, all the constitution rights which are suspended during emergency situation get their full constitutional status.
Writ jurisdiction of High Court Division during emergency period:
Can the High Court Division (HCD) exercise its Writ Jurisdiction Under Article 102 of the Constitution of the People’s Republic of Bangladesh when a Proclamation of Emergency is in force, may be the main question to everyone who wants to know when the President declare state of emergency under Article 141A of the Constitution.
Under Article 102 of the Constitution the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh exercises its power of judicial review by issuing writs in the nature of prohibition, mandamus (do it), certiorari (lack or excess of jurisdiction) and quo warranto, against the concerned public functionaries and a writ of habeas corpus [have the corps (body) before us (court)] against anyone, including a private individual, if there is a violation of any relevant provision of this Article.
Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation or even by amendment of the Constitution. The jurisdiction of the Court under this Article is known as Special Original Jurisdiction or writ jurisdiction. The Rule Nisi, which may be issued under this Article, requires the respondent to explain that his action was not unlawful and an
Interim order in the form of ‘stay’ or a direction also may be granted under this Article. This interim order would usually be for a certain period or until the adjudication of the matter.
The Court, usually, will not entertain any writ application on a premature grievance; however, an application can be brought when there is an apprehension of immediate danger to legal right.
Under clause 1 of Article 102 the HCD may issue directive or order against ‘any person or authority including any person performing any function in connection with the affairs of the Republic’ for the enforcement of the fundamental rights guaranteed in Part III of the Constitution. Right to move HCD under Article 102(1) is itself a fundamental right. Although writ jurisdiction is an equitable jurisdiction; however, power of the HCD under clause 1 is not a discretionary power rather it is obligatory for the Court to grant necessary relief to the aggrieved person.
Clause 2 deals with the rights, which are not fundamental in nature as mentioned in Part III of the Constitution. If the High Court Division is ‘satisfied that no other equally efficacious remedy is provided by law’ on an application by the ‘person aggrieved’, under clause 2(a) (i) of the Article the Court may prohibit ‘a person performing any function in connection with the affairs of the Republic or of a local authority’ from taking any illegal steps (writ of prohibition) or coerce to do something which is ‘required by law to do’ (writ of mandamus). Writ of prohibition stops the executives from taking any steps beyond the mandate they were given (negative sense) whereas writ of mandamus orders the executives to do something what they were required to carry out (positive sense).
Likewise, regarding clause 2(a)(i) (stated above), if there is ‘no other equally efficacious remedy’ and, once again, only on an application by the aggrieved person, under clause 2(a)(ii) of the Article the High Court Division may declare that the ‘act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect’ by issuing a writ in the nature of certiorari.
A writ of certiorari restrains the public functionaries within their jurisdiction. Proceedings are ultra vires (illegal) which was conducted without complying with the statutory procedure, when the principles of natural justices (i.e. a man cannot be condemned unheard (audi alterram partem) and a man cannot be the judge of his own cause (nemo debet esse judex in propria causa) or the principle of legitimate expectation was breached.
Clause 2(b)(i) of the Article invests the High Court Division, ‘on an application by any person’, to issue a writ of habeas corpus, to bring someone (detained unlawfully) before the court. A writ of habeas corpus can be issued against anyone including a private individual. Clause 2(b)(ii) of Article 102 sanctions the High Court Division a jurisdiction to issue a writ, in the nature of quo warranto, to inquire under what authority a person is ‘holding or purporting to hold a public office’.
Thus a Proclamation of Emergency may hit only Article 102(1); however, force of all the provisions of the Article 102(2) would remain intact always. Unless it is enacted otherwise nothing, including the fundamental rights even, is suspended automatically during a Proclamation of Emergency. And force of Article 102 is always there although may be restricted by some kind of law regarding one or more of the fundamental rights. Use of words ‘as may be specified’ and ‘the rights so specified’ in Article 141C(1) further suggest that whatever the restriction the President may impose during a Proclamation of Emergency must be specifically specified in the Order. Article 141C (2) allows the President to make law for the entire country or part of the country means nothing is automatic it must be specifically stated. Had it been automatic and for the entire Part III there was no need for the Article 141C (2). A general order suspending the entire Part III of the Constitution would also suspend force of Article 102(1)-the power of High Court Division to issue certain orders or directions to enforce fundamental rights.
Violation of Human Rights during Emergency regime:
Human Rights have Paramount importance in all Human rights conventions throughout the world. Every Nation being a state party in a number of international human rights conventions has accountability towards international communities in ensuring human rights under international legal framework.
On the 10th of December, 1948, the universal Declaration of Human rights states in its preamble that “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and that disregard and contempt for human rights have resulted in barbarous acts which has outraged the conscience of mankind.”
Echoing these documents different states recognize or incorporate in their national constitutions a table or Bill of Rights which seeks to guarantee those basic rights which are generally known as human rights. These fundamental rights are recognized as basic to the existence of human beings as human beings. The idea of derogation of these fundamental rights or fundamental principles in times of emergency is common to all legal systems. Generally it is seen that all constitutions or special laws make provisions in legal terms for situations of crisis when States of Emergency may be invoked. These provisions are not always clear and are often set forth in ambiguous terms referring to such vague concepts such as” maintenance of peace or of public order, imminent national danger, internal disorder, subversion, insurrection and danger threatening the fundamental, liberal and democratic order.” The primary justification seems to be the threat of imminent danger and the concept of self defense in order to thwart this danger.
In emergency situations states are faced with conflicting obligations – on the one hand the commitment to protection of individual rights of its citizens and on the other the protection of the existence of the state itself in extreme conditions, or in less severe conditions the safeguarding of public order and safety. Leaders are often compelled to compromise the rights of the individual in the face of threat to the state itself or to order and safety. Most people would naturally support the view that there are some basic rights which ought never to be compromised. It is widely recognized that the worst human rights abuses occur in cases where individual rights can be curtailed on the excuse that the security of state requires such curtailment. The Secretary General of the International Commission of Jurists in his introduction on an ICJ report on States of Emergency opined that the most serious violation tend to occur in situations of emergency when those in power are or think they are threatened by forces which challenge their authority if not the established order of the society. That is why he thinks that there is an understandable link between cases of grave violations of human rights and States of Emergency.
In Bangladesh, States of Emergency has been declared five times since its birth. The Constitution of the People’s Republic of Bangladesh came into force exactly one year after its independence as a sovereign nation on the 16th of December, 1972 initially containing a list of fundamental rights which were guaranteed to the citizens of Bangladesh. Article 26 of the constitution declares that all laws inconsistent with the fundamental rights guaranteed by the constitution shall be void to the extent of the inconsistency and that the state shall not In future make any law repugnant to the fundamental rights. The fundamental rights which found place in part 111 of the constitution followed the principles laid down in the Universal Declaration of Human Rights, 1948, the International Convention on Civil and Political Rights, 1966 and the Optional Protocol to the International Convention on the Civil and Political Rights 1966. After 1972 various Constitutional amendments were made which resulted in curtailment of the fundamental rights guaranteed initially by the 1972 constitution. The 2nd Amendment to the Constitution 1973, among other things inserted part IXA relating to Emergency Provisions.
The new provisions contained in Articles 141 A, 141 B and 141 C empowered the President to issue a Proclamation of Emergency with the power to suspend the provision of certain Articles (Article 36, 37,38,39,40 and 42) and the enforcement of fundamental rights. Thus what started of as a perfect Constitution guaranteeing the rights of the people soon began to be used as means of perpetuating various regimes by the suppression of those rights which in any way might provide the citizens the means of fighting against oppression. States of Emergency provide ample opportunity to perpetuate an oppressive regime, destroy democratic processes and to deprive a large part of the citizens of a country of their basic human rights. These states of Emergency ‘spill over their permissible edges with depressing regularity’ and as a result grave and horrible injustices occur.
Human rights activists are becoming vulnerable in Bangladesh. Numerous human rights defenders have been threatened and intimidated, arbitrarily arrested and detained for months at a time, tortured and/or implicated in fabricated cases. As a result, most human rights organizations have put a halt to most investigative work, such as fact-finding missions to ensure the documentation of cases of human rights abuses. This could give rise to a situation where human rights abuses are increasing, but fewer reports are surfacing, which could send an erroneous signal to the outside world that the human rights situation is improving, while in reality it is getting worse.
Thus human rights violations become rampant in our country which is not only economically backward but also politically unstable. Now I present a picture of violation of human rights during the five state of emergency which Bangladesh had experienced.
Emergency power Rules and Torture:
During those state of emergency, the president made special Emergency power Rules containing several injurious sections to rule the country. These laws were contrary to a range of international human rights standards and norms and as these sections of laws were repeatedly abused by law enforcement agencies, the human rights of arrested persons were violated by such agencies in the form of torture and verbal and physical abuse. Suspected people, who were likely to commit any anti-Government act, were picked up by the law enforcement agencies; detained, and tortured, while they were in custody or during remand in order to extract evidence to use against them or others.
Extra judicial killings:
During those state of emergency, extrajudicial killings continued throughout the valid period of Emergency. Between 12 January 2007 and 11 February 2008, 184 people have been extra judicially killed by Bangladeshi law enforcement agencies. Among them a total of 69 people died while in custody of law enforcement agencies. Of the 184 people extra-judicially killed, it was reported that 131 people were killed in so-called “crossfire”/encounter/gunfight/shootout , 29 people were tortured to death, 13 were shot dead in circumstances other than crossfire”, encounter, gunfight, shootout and there were 11 deaths in other circumstances.
During the state of emergency the custodial death become a common phaemonon. Since the State of Emergency proclaimed on 11 January 2007 a total of 92 people died in jail custody.
Bangladesh has ratified the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). However, there is as yet no law that prohibits and criminalizes the practice, as well as no means to lodge a complaint. The Bangladesh Government at the time of ratification assured that it would apply article 14(1) of the UN Convention stipulating the right to redress, compensation and rehabilitation for victims in accordance with existing laws. However, no step was ever taken to pass laws for redress, compensation and rehabilitation. The practice of torture and custodial deaths has never been specifically criminalized. Above all, the government has always protected the perpetrators by granting immunity from future prosecution. Thus it seems that torture and extrajudicial killings are deliberate government policy in Bangladesh, in spite of Bangladesh being a member of the UN Human Rights Council as well as a party to key international human rights covenants such as the CAT. Bangladesh is also in breach of its international law obligation in failing to submit any periodic reports to the CAT Committee.
Criteria essential for valid derogation of human rights during emergency period:
Certain human rights treaties envisage a system of derogations allowing states parties to adjust their obligations temporarily under the treaty in exceptional circumstances, i.e. in times of public emergency threatening the life of nation. Examples of emergency situation include, but are not limited to, armed conflicts, civil and violent unrest, environmental and natural disasters, etc.
Although, exceptional measures are permissible, their validity is subject to the fulfillment of a number of requirements set by the treaty law, such as qualifications of severity, temporariness, proclamation and notification, legality, proportionality, consistency with other obligations under international law, non-discrimination, and lastly, non-derogability of certain rights recognized as such in the relevant treaty. In essence derogation clauses express the concept that states of emergency do not create a legal vacuum. The derogation regime aims at striking a balance between the protection of individual human rights and the protection of national needs in times of crisis by placing reasonable limits on emergency powers. 
Derogation clauses are provided for in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the European Convention on Human Rights (ECHR) and Article 27 of the American Convention of Human Rights (ACHR). Therefore, different states may be subject to different emergency derogation regimes, depending on the states’ adherence to these treaties as the list of non-derogable rights may vary from treaty to treaty.
In addition to texts of treaty law, the most important interpretations of how derogations may or may not be undertaken are provided by the case law of treaty bodies as well as the interpretation adopted by Human Rights Committee (the treaty’s supervisory body, hereinafter referred to as HRC) in General Comment 29. As a subsidiary source, it may also be noted that several sets of standards for states of emergency have been elaborated by expert meetings, these texts are not in themselves legally binding but they offer valuable recommendations on interpretations of existing derogation provisions in legally binding treaties and the interpretative texts are directed to national authorities and international monitoring bodies.
(a) Existence of a public emergency that threatens the life of the nation
The existence of a situation amounting to public emergency is a fundamental requirement for triggering the derogation clause. Absent specific definition of ‘public emergency’ in the ICCPR and ECHR, interpretations of its meaning and scope were provided by the HRC and jurisprudence of the ECHR. According to HRC ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation’. Unlike the regional conventions, the ICCPR does not make reference to war, yet civil war and other cases of serious, violent internal unrest are by for the reasons most asserted for declaring a state of emergency. An armed conflict, however, does not automatically satisfy the criteria a derogation should meet as there is also a qualitative measure of severity that demands that derogations are permissible ‘only if and to the extent that the situation constitutes a threat to the life of the nation’.
Second, in response to an argument that ‘terrorism’ could not conceivably be a threat to the UK’s institutions or the UK’s existence as a civil community, the Court held that it had been prepared to take into account a much broader range of factors in determining the nature and degree of the actual and imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperiled”. The existence of the ‘public emergency’ should be proved by the state derogating from its obligations. Although, the ECtHR has of granted a ‘margin of appreciation’ to states in determining whether a ‘public emergency’ exists, nonetheless the Court held that the discretion of states is ‘accompanied by a European supervision’. In contrast the HRC has made no such reference to a margin of appreciation to that in Landinelli Silva v Uruguay, found the State Party to be ‘duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the Committee’s function ‘to see to it that States parties live up to their commitments under the Covenant’.
(b) The requirements of proclamation and notification:
The requirements of proclamation and notification are not ‘simply technical and dispensable formalities’ as both procedural guarantees are important for the purposes of national and international supervision. The ICCPR requires an official proclamation of the existence of a public emergency, which is an essential technical prerequisite for the application of derogation. General Comment 29 specifies that states ‘must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’. The duty to proclaim should be distinguished from the duty to notify under Article 4(3) of ICCPR and Article 15(3) of ECHR. The duty to proclaim the state of emergency is designed to prevent arbitrary or de facto derogation and to obligate derogating states “to act openly from the outset of the emergency and to deligitimate after-the-fact justifications for violation of fundamental rights” and also serves a domestic supervision as opposed to international which is tied to the duty of notification. Although, the ECHR does not contain the requirement of proclamation.
The notification requirement serves as a guarantee for supervision by international bodies of the legality of the establishment of a state of emergency. States parties to the Covenant are bound to inform the other parties immediately. Notwithstanding the silence of the European Convention regarding the issue, in the Lawless case, the European Court found an implicit requirement that notification be “without delay”.
Notification procedures impose the duty on the state to provide information about the ‘provisions from which it has derogated’ and the states parties are to include in their reports “sufficient and precise information about their law and practice in the field of emergency powers”. To this point, the approach of the supervisory bodies in determining whether violation of the notification requirement renders derogation invalid has not been consistent. The HRC, however in a number of individual applications under the first Optional Protocol adopted an approach of declining to recognize the legitimacy of particular invasions of protected rights in the absence of “submissions of fact or law to justify such derogation”.
(c) Measures strictly required by the exigencies of situation: the principle of proportionality:
Derogation measures must be limited ‘to the extent strictly required by the exigencies of the situation’, i.e. they need to be proportionate. The requirement of proportionality constitutes one of the substantive limits to the emergency powers ‘requiring specific scrutiny and specific justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation’.
The HRC highlights three factors in proportionality: severity, duration and geographic scope. The HRC also submits that restrictions that are already allowed with the treaty provisions on certain freedoms, e.g., to freedom of movement or freedom of assembly are ‘generally sufficient’ to cover situations of ‘mass demonstration including instances of violence, or a major industrial accident’. Further, the HRC is of view that ‘no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party’.The HRC confirms that the legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.
States parties to the ICCPR are required to provide careful justification, not only for their decision to proclaim a state of emergency, but also for any specific measures based on such a proclamation. By contrast, the European Court of Human Rights allows states a ‘wide margin of appreciation’ in the context of proportionality as well. The Court in Ireland v. UK held that it falls to the national authorities to decide ‘how far it is necessary to go in attempting to overcome emergency’ and confirmed the approach in Brannigan and McBride v. UK granting discretion to the state to determine ‘the nature and the scope of derogations necessary’ the existence of an emergency.
(d) The Principle of Consistency:
Derogation measure should not be inconsistent with other obligation of the derogating state under international law. The principle of consistency is another safeguard of the derogation provision which is based ‘on the principles of legality and the rule of law inherent in the Covenant as a whole’. The expression ‘other obligations under international law’ refers to customary international law and to international treaty law, most importantly to other human rights conventions and to treaties in the field of international humanitarian law including the minimum guarantees found in Common Article 3 to 1949 Geneva Conventions, and in the two 1979 Additional Protocols. At this point it is important to underline that ‘there is no concept of derogation in humanitarian law’ as such since international humanitarian law is designed in essence to operate in ‘emergency’ situations, hence, the obligations stemming from humanitarian law treaties generally cannot be derogated from.
Other obligations also include the 1951 Convention on the Status of Refugees and its 1967 Protocol, the 1989 Convention on the Rights of the Child, ILO Conventions on Forced Labour, Freedom of Association and Equal Rights of Workers. In addition, the Human Rights Committee has proposed examples of ‘other obligations’ as including the Rome Statute of the International Criminal Court, and certain rules of customary international law, such as the prohibition of refoulement. Article 5 (1) of the ICCPR states that ‘there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent’.
(e) Non-derogable rights:
The relevant treaty provisions provide a list of rights that in absolute terms cannot be derogated from. The list varies in different treaties, yet common to all treaties are: the right to life, the prohibition of slavery, prohibition of torture or to cruel, inhuman or degrading treatment or punishment and prohibition of retroactive penal measures. The HRC stresses that the list of non-derogable rights ‘does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists’. The addition of further non-derogable rights can be explained by the HRC’s professed authority to assess compatibility of derogations with states’ “other obligations under international law” and also due to the view of the HRC that derogations from certain rights could never be proportionate, so those rights are effectively non-derogable. In doing so, the HRC discerns elements of rights not listed under Article 4 that cannot be made subject to derogation.
Accordingly, derogations can never authorize acts of genocide or crimes against humanity. The HRC refers to elements of crimes against humanity such as deportation or forcible transfer of population through identifying non-derogable elements of Article 12 under ICCPR on freedom of movement. As ‘a norm of general international law not subject to derogation’, the HRC lists the right of all persons deprived of liberty to be treated with humanity (under Article 10(1)) supported by reference to its close connection with the prohibition of torture (Article 7). In the Committee’s opinion, this category also includes prohibition against taking of hostages, abductions, or unacknowledged detention. The Committee asserts that certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, there could be no justification for derogation from these guarantees during other emergency situations.
(f) Prohibition of discrimination
Article 4 (1) of the ICCPR requires that derogation measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. The inclusion of the criteria of national origin in non-discrimination clause was rejected on the ground that disparate treatment of alien nationals would be necessary during wartime. As evident from the wording of the provision, measures that discriminate “solely” on the grounds enumerated are prohibited, and that the provision does not cover measures with indirect impact on particular groups. Even though, provisions of the Covenant related to non-discrimination are not listed among the non-derogable rights elements of non-discrimination included in Article 4(1) cannot be derogated from in any circumstances.
Condition of the Politics and Media during emergency period:
The state of emergency, imposed for the five time since 1974, 1981,1987, 1990, and 2007, under a democratic setting is now a reality. Whatever might have been the rationale, the emergency was to many a last resort in the situation prevailing at the time when it was imposed.
Admittedly, the reasons behind so much drama were, no doubt, far too many, and much talked-about, especially when the last state o emergency was imposed. Our major foreign friends, along with many other observers at home and abroad, put things in true perspective. They categorically stated that the failure of our major political parties to resolve contentious issues had resulted in a development which was quite unimaginable in a progressive society.
In our forward march towards a progressive society, we have seen positive development from primitive orientations towards developed ones incorporating a shift from diffusion to specificity, from particularism to universalism and, more importantly, from ascribing to achievement. Those days, when people were held in high esteem for their ascribed status — whatever they had inherited, such as caste, colour, wealth and so on, rather than achieved status gained through efforts and perseverance, are, of course, on the decline.
Unfortunately, however, degeneration of politics as a derivative of dynasty syndrome involving some influential families who traded on the image or legacy of some former leaders has reached a new low in the country. Undeniably, politics has also become a profiteering business for the people to whom the countrymen look to for betterment of their lot. Truly, the nation is indeed ill-fated in terms of political leadership.
Though the leaders revel in their repulsive activities, the general people have utter abhorrence for the same. The perennial instability in our political arena is also very rightly attributed to power orientations of our leaders. Painfully, the leaders have little zeal to endear themselves to the people. It does reflect the leaders’ utter indifference for the people’s opinions and desires. The leaders also seem to have a profound belief that the electorate will continue to vote for them, no matter how they are treated. They have only one political agenda, and that is to gain power. And to gain and regain power, they have a tendency to go to any length. The people’s views about our political leaders are anything but positive, and rightly so.
However, during a state of emergency the attempted imposition of censorship on the media is, just not needed. It can be proved beyond doubt that the bulk of the media has turned out to be a great facilitator of democracy and progress in the country. Media activism in recent years, especially after 1991, has also contributed to enlightenment of the citizenry.
With the “computerization of society” and the dominance of a mass-media, knowledge has become fluid. The true seat of power is, thus, where the knowledge is controlled. Interestingly, under such a setting, the state becomes less powerful as more agents can wield this knowledge. Moreover, the state itself is subject to that which it controls, because the state’s actions are reported and effectively shown to the masses through them. Thus, the media have the definitive decision on what goes in and, therefore, what the masses are taught.
Meanwhile many of our intellectuals, who are capable of guiding the nation as well as the state machinery, cringe in front of the political leadership of their leanings so as not to miss out on licking up whatever trickles down from the latter, and just cannot rise above partisanship and shy away from calling a spade a spade lest the leaders get cross with them, a lot of — not, of course, all — dedicated media people have continued to be outstandingly true to their job despite many an odd.
However, the number of media men turning a blind eye to their political bosses’ misdemeanors is not few either. Blissfully enough, though, they are hardly in a position to manipulate the media, and their capacity to infringe on our right to know is also negligible. Notably, here, the media people were persistently termed during even the so-called democratic regimes as media terrorists, pen terrorists, and what not. The bloody eyes of the power-mongers during a state of emergency were, thus, always fixed upon them only because they let the people know of their misdeeds.
Rule of Law and Emergency Situation:
The Term ‘rule of Law’ is used as opposed to the concept of ‘rule of man’. The Primary meaning of rule of Law is that the ruler and the ruled must be bound by the same law, no separate law or system can be provided for the ruler. A.V. Dicays concept of rule of law included three things-
(i) Absence of arbitrary power, that is, no man is above law and the persons in authority do not enjoy wide, arbitrary or discretionary powers,
(ii) Equality before law, that is, every man, whatever his rank or position, is subject to ordinary laws and the jurisdiction of ordinary courts, and
(iii) Individual liberties.
The rule of law is a basic feature of the constitution of Bangladesh. It had been pledged in the preamble to the constitution of the People’s Republic of Bangladesh, that-
“It shall be a fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice political, economic and social, will be secured for all citizens”.
Now to clearly the positing of rule of Law during emergency situation we have to examine whether the proclamation of emergency, declared by president, suspends the rule of Law or not. As several Articles has been incorporated in the constitution of Bangladesh in order the ensure rule of law, we must determine those Arties position during emergency situation to explained the place of rule of law during emergency regime.
Article 27 of the constitution of Bangladesh, guarantees that all citizens are equal before law and are entitled to equal protection of law. But when the proclamation of emergency is in force, the president on the written advice of the prime Minister may suspend the enforcement of Article 27 if it is specified in the order. So this power of president is contrary to the concept of rule of law.
The Fundamental rights as contained in the part III of the constitution have been guaranteed under constitutional authority and constitutional arrangement for their effective enforcement has been ensured in Articles 44 and 102. But During emergency regime the enforcement of Articles 44 and 102 (i) will be suspended by the president. So the constitutional guarantee to enforce fundamental rights may be suspended up to the time when proclamation of emergency is in operation this also contrary to the concept of rule of law.
Article 7 of the constitution people impose limitation on the Legislative power that no law which is inconsistent with any provision of the constitution can be passed and Article 26 impose limitation that no law which is in consisted with fundamental rights can be passed. But the proclamation of emergency empowered the executive to take any measure against fundamental rights and the parliament to make any law inconsistent with fundamental rights. This amounts to allowed arbitrary exercise of power on the part of executive and parliament which is contrary to the concept of rule of law.
Article 31 of the constitution guarantees that to enjoy protection of the law and to be treated in accordance with law, is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Bangladesh and in particular no action determined to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. A general order suspending the entire part III of the constitution would also suspend force of Article 31 – Right to protection of law.
The proclamation of emergency may suspend Article 33 which deals with safeguard as to arrest and detention and permits preventive detention. The executive so can arrest any person without any lawful reason merely on the found of suspension that the arrested person may likely to commit any act against the emergency government. While in custody of rapid Action Battalion, a large number of persons arrested died and in all such cases RAB come out with the story of the arrested person doing in cross-fire when the confederates of such arrested person tried to snatch him from the custody of RAB. “Such a story can be accepted in one or two cases, writes the former attorney General, but when it is being advanced regularly to explain the cases of death in custody, it is totally unacceptable and it needs no saying that such death are gross and flagrant violation of rule of law in this country”.
However, an independent and impartial judiciary is a precondition to the rule of law. But during of state of emergency, there is a simultaneous curtailment of the rights of the people as well as the protective rule of the judiciary. Recent judicial decoctions show that while the high court division of the Supreme Court seems to be asserting self confidence vis-a vis the overweening emergency government, the appellate division of the supreme court has arguably paid undue deference to the executive. So the power of the judiciary to ensure rule of law during emergency situation is not at all satisfactory.
So from the above discussion, it is clear that if the Article of the constitution which are incorporated in the constitution to ensure rule of law, will be suspended by the president, though a proclamation a state of emergency, on the written advisee of prime minister as they are specified in the emergency order, the rule of law will also be suspended. But if president will not suspend those Article of the constitution, the rule of law may not be suspended also.
So in order to ensure rule of law even during emergency regime the president should not allow the suspension of all those Articles ensuring the Rule of law in the constitution of Bangladesh.
Law of emergency permits preventive detention:
The constitution of the people’s Republic of Bangladesh, 1972 entrench both individual rights and emergency provision. Powers of preventive detention are also available under this constitution. A proclamation of emergency enables the promulgation of extra-ordinary executive decrees and legislative enactments. Emergency executive action and legislative measure provide not only for preventive detention, but also enable the exercise of other extra-ordinary powers encroaching on almost all aspect of the constitutional rights of citizens. Since by a proclamation of emergency under the constitution the executive and legislative are free to take any action in violation of human rights.
The Proclamation of emergency, by suspending the safeguards from arrest and detention, effectively legalize arbitrary arrests and detention. The implications of the emergency laws are that everyone is subject to the risk of endless detention without any legal avenues of redress. According to the information collected by local and international human rights groups, over 250,000 people have been arbitrarily arrested and detained in the country during the first 13 months of the state of emergency, with a high proportion of them having been subjected to ill-treatment or torture sometimes resulting in death, which remain endemic in the country.  These laws have in reality facilitated the process of torture of persons by the police, the armed forces, and paramilitary forces such as the Rapid Action Battalion (RAB) and the Bangladesh Rifles (BDR). Coercion, including torture, is used to make arrested persons sign blank documents, which the authorities then complete in order to suit any needs they may have, including exonerating themselves from wrongdoing, justifying their actions of falsely incriminating the concerned persons. Statements are also being forcibly extracted from victims and recorded using audiovisual equipment for the same reasons. This ‘evidence’ is then used against persons in court and, under the provisions of the emergency, cannot be challenged. Victims of torture or relatives of people who die in custody never receive any reparation or justice.
The attitude of the court in Bangladesh towards preventive detention during an Emergency situation was summed up by the High Court Division in its decision in Farid Rahman V Bangladesh concerning a detention order under the Emergency power rules while delivering the opinion of the court in this case, Masud J.observed.
“It is a well-settled principle that prevention detention which makes an inroad on the personal liberty of a citizen, without the safeguards inherent in a formal trial before a Judicial tribunal, must be zealously kept within the bounds fixed by the constitution and the relevant law. It is also a settled principle that the requirements of law providing for preventive detention must be strictly followed and scrupulously complied with.”
During the first emergency, the Court had often to engage in scrutiny of preventive detention orders, legal challenges to which were barred by Emergency rules. In personal liberty cases which nevertheless came before them, the Court offered a mixed response of evasion and creativity, travelling from mechanistic application of the law to a relatively broader course of legal interpretation. Thus, when the FR to invoke constitutional judicial review in order to enforce constitutional right remained suspended, the HCD gave remedies on sub constitutional grounds by, e.g., widening the scope of Section 491(1) of the Criminal Procedure Code, 1898 (hereinafter Cr.P.C.) that provided for habeas corpus-type remedies to secure release of any person detained “illegally or improperly”. This the Court attained by creatively dislodging the statutory bar that made this remedy inapplicable vis-à-vis preventive detention.
Similarly, when in emergency preventive detention challenges the government pleaded the Court’s lack of jurisdiction to review statute-compliant detention orders by virtue of statutory ouster of judicial review, the Court took a pro-active but strategic stance in holding that the ouster of judicial power is ineffective when an improper, colourable, unlawful or ‘arbitrary action’ is challenged. In arriving at these conclusions, the Court exercised sort of strategic activism in that they avoided being engaged in scrutiny of constitutionality of laws/actions during emergency, but rather acknowledged, although not uncontroversially, their legal inability to enforce constitutional rights.
In decision concerning Emergency preventive detention, there appears to have been some controversy in the High Court Division, regarding its respective power under Article 102 of the constitution and those available under section 491 (1) of the code of criminal procedure 1898. In Muklesur Rahaman V the state, it was held that the scope of Article 102 of the constitution was much wider than the section 491 of the code of criminal procedure.
Under Article 102, the court has got constitution powers to exercise the fact of the detention in order to satisfy itself that the detanee is not being detained without lawful authority or in an unlawful manner. But under section 491 of the code of criminal procedure determine what the court is required to do is to see whether a person has been illegally or improperly detained.
In kripa shindu Hazara V the state on the other hand it was held that the scope of sec 491 of the CrPC in granting relief to a detainee was wider than the constitutional Jurisdiction of the High Court Division under Article 102 of the constitution.
In this case Justice B.H.Chowdury observed that-
“The connection that the scope of Judicial inquiry under section 491 of the code of criminal procedure is limited and narrower than that available under article 102 of the constitution has no force. The scope of judicial inquiry under section 491 of the code is not hedged by constitutional limitations. The expression “whenever it thinks fit” in section 491 of the code confers an absolute discretion on the court to exercise its power there under having regard to the circumstance of each case. The expression “whenever it thinks fit” does not warrant any limitation on the court’s absolute discretion.”
However in the above case Chowdury J, granted relief to the detainee by extending to him the remedial protection of section 491, if not by enforcing his right to liberty. Short of placing a serious pressure on executive transgression under the shadow of emergency power. The court in Bangladesh by and large endeavor to uphold basic nations of legality Emergency rule.
In spite of the attempts by the Executive to erode the rights in the constitution the judiciary has been vigilant in trying to safeguard, as far as, possible within the limitations imposed by States of Emergency, the people’s rights. In the case of Akram Hossain Mondol vs.Govt. of Bangladesh, the additional District magistrate passed an order of detention with a view to preventing the detune from acting in a manner prejudicial to the security of Bangladesh and the maintenance of the public order within the meaning of rule 2(e)of the Emergency Power Rules, 1975.The grounds stated in the order of detention were prejudicial acts as defined by rules 2(e) and these prejudicial acts were grounds of preventive detention as they were include in 5(i) of the said rules. The detaining authority had mentioned the grounds of detention disjunctively as it was not quite sure as to which of the prejudicial acts the detenu was likely to act. It did not know definitely whether the detenu acted or was even likely to act prejudicially to the security of the state or the public safety or the maintenance of public order. This showed that the detaining authority passed the order without due application of mind and the order was passed rather casually and such order of detention could not be justified and accordingly would be declared to be made without lawful authority. This was only one of the cases where the judiciary of Bangladesh played a laudable rule in safeguarding the fundamental rights of the people.
Law of emergency and the caretaker Government.
In the original constitution of the People’s Republic of Bangladesh 1972, there was no provision regarding the on party Caretaker Government and the proclamation of emergency. By the Constitution (13th Amendment) Act 1996, the provisions of non-party Caretaker government were inserted in the constitution, while the provisions for proclamation of emergency were inserted by The Constitution (2nd Amendment) Act 1973. Under constitutional authority, the president issue a proclamation of emergency to tackle an unexpected situation while the non-party Caretaker Government is empowered to aid the election Commission to hold a fair free and credible election to elect the member of parliament.
When an elected Government is in charge of country, the president with the prior counter signature of the prime minister, may issue a proclamation of emergency, if he satisfied that a grave emergency exists in which either the security or the economic life of Bangladesh or any part thereof is threatened by war, external aggression or internal disturbance. But when the non-party Caretaker Government is in charge of the country the president can declare the proclamation of emergency without acquiring the prior counter signature of prime minister.
In Bangladesh, it is for the first time, the proclamation of emergency was declared by the president Iajuddin Ahmed when a non-party Caretaker government is in power of the country on 11 January 2007, though before that Bangladesh had experienced the emergency in four times in 1974, 1981, 1987 and 1990. When the nation has been battling its way hard through three months of turbulent waters of political and legal chaos, proclamation of emergency has apparently secured some breathing space for all.
When emergency provisions were inserted in our constitution and some amendments made to those provisions subsequently, there was no provision for non-party caretaker government. No emergency proclamation, therefore, could have been contemplated during the pendency of such a government. This had made the last proclamation of emergency somewhat unique and calls for investigation and analysis.
If law needs to be applied on correct appreciation of fact, there is no doubt emergency has been proclaimed on January 11 on sound constitutional foundation. For the first time in our memory proclamation of emergency and measures adopted there under have been so welcomed by the people at large and, with few exceptions, by the political parties as to characterize it as benevolent emergency. Bare facts which justified the proclamation were brought to light by political agitation accompanied by vigilant media and strong voice of the civil society.
There are instances in our sub-continent when extra-constitutional measures had been adopted to overcome political crisis, which were later justified and legalized by judiciary by the doctrine of state necessity and principle of efficacy, and in many cases they have been given constitutional protection by subsequent constitutional amendments. In most cases, it was usurpation of power, breach of democratic norms and rule of law, needing post-facto validation. In the last emergency, doctrine of necessity itself is the underlying rationale for Art. 141A under which emergency was proclaimed. Extraordinary powers of the executive including the power to suspend some fundamental rights (Art. 141B) and enforcement of these rights (Art. 141C) by judiciary have been provided for. However, while the express and implied powers of the executive during emergency are clear, the duration of exercise of these powers by the caretaker government is not as clear.
To repeat, emergency provisions in our constitution were not envisaged for a peculiar non-party caretaker government under Articles 58B, 58C, 58D and 58E. Under normal conditions, duration of emergency period under Art. 141A looks simple. It can extend up to 120 days unless further extended by the parliament. If emergency is proclaimed when parliament stands dissolved, or such dissolution takes place during emergency period, proclamation shall cease to operate thirty days after the reconstituted parliament first meets, unless, of course, further extended by the new parliament.
There is nothing to prevent the president from extending the limit of 120 days when parliament stands dissolved, except that he has the constitutional obligation to hold elections within 90 days, in which case emergency proclamation would automatically cease to operate at the expiration of thirty days of the reconstituted parliament, if not otherwise decided by the new parliament.
However, in case of caretaker government, a further question looms large that the constitution did not contemplate its duration beyond 90 days, and this impression is permeated in popular mind. But this duration has nowhere been specifically laid down, again except that elections have to be held within 90 days after which it shall hand over power to an elected government. This reverts us back to the issue of 90-day limit of holding general elections which was a burning constitutional controversy up to the time when emergency was proclaimed.
It appears now that proclamation of emergency had automatically resolved the 90-day controversy. In fact, anticipated grave consequences of likelihood of imposed general elections within 90-day limit on January 22 justified the proclamation of emergency. This vindicated the arguments of those who strongly advocated for rational interpretation of the Art. 123(3) that in case of act of God or otherwise arising of extraordinary circumstances, time could be extended beyond 90-day limit. They argued that, God forbids, if any flood, or cyclone or earthquake of hugely catastrophic severity strikes Bangladesh around the election time, would not the time be shifted? This time it was not the act of God, but of man, the possibility of impending catastrophe being no less. So the emergency and postponement of elections was truly justified, as general reaction of the citizens have shown. The constitutional inference from the proclamation of emergency and subsequent postponement and cancellation of elections was that doctrine of necessity could justify going beyond 90-day limit. This could also be done by a reference by the president to invoke advisory jurisdiction of the Supreme Court, in case proclamation of emergency was not opted for.
It was evident that the last caretaker government after the proclamation of emergency had not lost its caretaker character, nor it would lose such character after three months. It had constitutional validity and popular acceptability. While its duration was not constrained by time-limit, its acquired legitimacy would survive only on meticulously worked out schedule to provide for free, fair and credible elections within shortest possible time.
It was unexpected the caretaker Government under the emergency provisions (Articles 141B and 141C), suspend all the fundamental rights guaranteed in articles 36 to 40 and 42 and enforcement of these rights in all instances . Such emergency power was selectively used by such Caretaker government only to apprehend the criminals and those who impeded government s efforts to reach its constitutional objective. Freedom of press and right to information were not curtailed so far as it did not pose any hazard for honest running of the government.
The Rules of the Judiciary during a state of emergency:
The state of Emergency in Bangladesh put the country’s judiciary under certain challenges with a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The Emergency regime initiated an array of reforms involving politics, law and the judiciary. But there was a simultaneous curtailment of the rights of the people as well as the protective role of the courts. Hence, there was a resurrection of the old, but complex, questions of the proper role of the judge during an Emergency: will the judge take refuge to legal positivism as a convenient technique and abdicate his/her constitutional duty, or will s/he help the ‘law’ ‘speak the same language’ during an ‘emergency’ as in peace? In other words, the perennial but perplexing question is, what does the judge do? Does he merely apply rules to a dispute properly brought before him, or, does he seek to dispense justice through the judicial process of which he is in charge?
Recent Bangladeshi judicial decisions show that while the High Court Division (hereinafter HCD) of the Supreme Court (hereinafter SC) seems to be asserting self-confidence vis-à-vis the overweening Emergency government, the Appellate Division (hereinafter AD) of the SC has arguably paid undue deference to the executive. It is argued here that the Bangladeshi judiciary’s (in particular that of the AD) largely ambivalent and almost escapist position during Emergency has led it to suffer a severe crisis of public confidence which is likely to generate negative implications for its constitutional agency in achieving and improving justice and constitutionalism.
“The Supreme Court had to function under ‘severe stresses’ arising from the profound crisis in the public life created by the absence of democracy and the curtailment of people’s fundamental rights during the last two years of unelected government [Emergency].”
Traditionally, the courts facing emergencies or omnipotent executives across the world have often tended to defer to the executive, holding that, for ‘separation of powers’ it is for the executive, and not the courts, to decide what is in the best interest of the country or what constitutes the interests of national security. For example, in the oft-quoted case of A.D.M. Jabalpur v. Shivakant Shukla the Indian Supreme Court interpreted emergency as having excluded judicial review power even to examine whether the State was lawfully depriving its citizens of their unconditional constitutional right to life during the emergency. In this celebrated case, wrote a Bangladeshi scholar recently, “the majority adjudicated only legalistically, effectively giving unqualified sanctity to the Presidential Order of 1975 [emergency], and thus depriving the right of any person to move a court for the enforcement of the rights conferred by [the Constitution]”. The majority judges “overlooked the fact that sometimes a law can be formally legal but at the same time substantially, completely illegitimate”.
Similarly, in an early Pakistani case, Pakistan v. Moulvi Tamizuddin Khan the highest court of Pakistan in effect refused to decide on issues concerning emergency. Before Pakistan could adopt its first Constitution, the then Governor-General of the country, Ghulam Muhammad, unleashed his paternalistic dominance over the Constituent Assembly by issuing on October 24, 1954 a proclamation effectively to dissolve the Assembly. In Moulvi Tamizuddin Khan, the legality of this proclamation “was controversially upheld by the country’s highest court through a purely technical and unpersuasive interpretation of the [relevant] laws” and even without entering into merits. In this case and other subsequent legal proceedings which additionally concerned the legality of state of emergency that followed, the Federal Court indeed engaged in politicization of legal interpretations so as to legitimize unconstitutional actions of the omnipotent
executive. The court invoked the doctrine of civil/State necessity to establish the so called ‘legal bridge’ in order to close the legal gaps in the creation of which the Court significantly contributed itself.
As opposed to the traditional view of the Court in situations of emergency, some judges, imbued with dynamic judicial job perceptions, preferred the path of upholding high legal values through the judicial process. In the Sindh Chief Court case of Tamizuddin Khan v. Pakistan for example, the judges employed a dynamic interpretation of the legal text holding unlawful the proclamation dissolving the Constituent Assembly, thereby respecting the representative institution rather than the Governor General. Interestingly, the liberal jurisprudence of reviewing conditions leading to state of emergency dates back to the colonial British Indian era. In a lawsuit concerning the Governor General of India’s declaration of the state of emergency in 1930, the Lahore High Court held that the Court could inquire as to whether there existed valid reasons for declaring a state of emergency, while a Bombay Court further advanced this dictum by saying that the legality of actions taken during emergency is justifiable when the normalcy is restored.
Doubtless, under extra-constitutional regimes or in difficult political situations like the state of emergency, the judiciary has to act in a force-based or authoritative political system and often has to face moral dilemmas of standing against the regime or legalizing it. There are accusations that judges often end up in legitimizing such oppressive regimes or applying harsh and unjust laws, and thus breach their oaths to protect the Constitution. Against these accusations, arguments are often made that the judiciary then is deprived of the political guarantee of enforceability of its decisions, and is put at the risk of being retaliated and humiliated at the hands of an all-powerful executive. To avoid their judgments being defied and ignored, judges usually take strategic decisions fitted into political contexts. As Alexander rightly puts it, the judicial protection of human rights during periods of emergencies may thus remain illusory, among other things, because of these factors of executive non-cooperation and the threat perception among the judges. The level of pressure which any extra-constitutional situations may bring to a judge can be gauged from the following apologetic words of Justice Munir of the Pakistani Supreme Court who had been the architect of submissive judicial role during Emergency or extra-legal regimes: “The mental anguish caused to the Judges by these cases is beyond description and I repeat that no judiciary anywhere in the world had to pass through what may be described as a judicial torture.”
The judge’s dilemma during difficult situations of emergency or martial law, and the above common apologies were vividly described in a 1989 case by one of Bangladesh’s greatest legal minds, M. H. Rahman, J. in the SC of Bangladesh:
“The court carries the burden without holding the sword of the community held by the executive or the purse of the nation commanded by the legislature. When the Constitution is suspended or made subject to a non-law the Court is deprived of the aid of the relevant authorities of the Republic. When such an abnormal situation occurs a Judge has got two alternatives: either he would resign or he would hold on to his post. One who has not lost faith in the rallying power of law may prefer a temporary deprivation of freedom to desertion.”
To these two options, Oyhanarte J, an Argentine judge, added the third, which is to ‘simply accept the fact’, i.e., total surrender to autocracy. Earlier in 1988, Rahman, J., speaking extra-judicially, hinted that his preferable ‘temporary’ surrender of judicial freedom was not meant to be a complete surrender, but rather an engagement in ‘the worthwhile job’ of doing justice between citizens so as to lay the foundation for the days when the judge would be able to enforce justice against the mighty and the overbearing as well. Rahman, J. arguably preferred a strategic judicial silence for the grater cause of justice, preferring patience for a ripe time for judicial activism to leaving the administration of justice at the hands of submissive judges. It is, intermittent time, and exercise principled activism vis-à-vis injustices of the regime.
During the first emergency, the Court had often to engage in scrutiny of preventive detention orders, legal challenges to which were barred by Emergency rules. In personal liberty cases which nevertheless came before them, the Court offered a mixed response of evasion and creativity, travelling from mechanistic application of the law to a relatively broader course of legal interpretation. Thus, when the FR to invoke constitutional judicial review in order to enforce constitutional rights remained suspended, the HCD gave remedies on sub constitutional grounds by, e.g., widening the scope of Section 491(1) of the Criminal Procedure Code, 1898 (hereinafter CrPC.) that provided for habeas corpus-type remedies to secure release of any person detained “illegally or improperly”. This the Court attained by creatively dislodging the statutory bar that made this remedy inapplicable vis-à-vis preventive detention.
Similarly, when in emergency preventive detention challenges the government pleaded the Court’s lack of jurisdiction to review statute-compliant detention orders by virtue of statutory ouster of judicial review, the Court took a pro-active but strategic stance in holding that the ouster of judicial power is ineffective when an improper, colourable, unlawful or ‘arbitrary action’ is challenged. In arriving at these conclusions, the Court exercised sort of strategic activism in that they avoided being engaged in scrutiny of constitutionality of laws/actions during emergency, but rather acknowledged, although not uncontroversially, their legal inability to enforce constitutional rights.
During the emergency regime, citizens as well as legal actors have resorted to the instrumentality of legal actions in order to protect the FRs and ensure constitutionalism. Notably, the SC’s public interest jurisprudence, beginning in the mid- 1990s, has played a major role in changing the way the people and civil society see the judiciary. Although PILs on constitutional rights grounds have now become stalled due to the operation of emergency law, public-spirited citizens or ‘interested ‘politicians have been repeatedly accessing the Court under the operative part of the constitutional remedial clause to secure justice or to challenge the legality of several activities of the government. There have been some other instances of public interest court actions, including the ones challenging the lawfulness of Emergency provisions in the Constitution, that have been instituted to challenge un-constitutionalism, in which the ‘law’ has been used as a tool of governance and also as a legal pressure on the government to make it remain stick to its post-Emergency commitments of restoring democracy. Below, I analyze certain high-profile cases implicating‘emergency’ to fathom the judicial responses to the Emergency regime.
MOYEZUDDIN SIKDER V. STATE:
In a significant, early emergency-period decision, the HCD in Moyezuddin Sikder v. State effectively held that its inherent power and wider judicial authority to grant bail to the accused cannot be foreclosed by law even during the state of national emergency. The EPR 2007, Rule 19Gha, provided that notwithstanding the general legal provisions concerning bail, no application for bail can be made to ‘any court or tribunal’ by a person against whom an inquiry, investigation, or trial is pending concerning an offence under the EPR-2007 or certain EPR 2007-covered statues. Mr. Sikder, charged under a law covered by the EPR2007, sought bail from the HCD where the government unconvincingly argued that, in the face of the term ‘any court’ in the above-mentioned restrictive law, the Court lacked jurisdiction to entertain the petition. Employing a historical-contextual and liberal interpretation to the law in question and by relying on arguments made by amici curiae who referred to a series of comparative constitutional decisions, the Court held that the term ‘any court or tribunal’ in Rule 19Gha of the EPR2007 was not meant to include the SC, reasoning that in the absence of a clear ‘ouster’, the SC’s supervisory jurisdiction cannot be interpreted to be curtailed or limited by implication. In this bold, liberty-focused decision, the principle of rule of law was thus upheld against the prerogatives of a powerful, emergency-government.
Unfortunately, however, the AD in Moyezuddin Sikder v. State overruled the HCD’s decision. By narrowly interpreting the term ‘any court’ and the non-obstante clause in Rule 19D of the EPR-2007, it argued that there was a ‘manifest’ legislative intention to oust the HCD’s jurisdiction to grant bail in EPR-2007-cases.The Court read this legislative ‘intention’ readily from a laboured, textual interpretation of Section 498 of the CrPC that empowers the HCD to grant bail. In its view, since the EPR-2007 reserved the effect of Section 498, the term ‘any court’ should be meant to include the HCD. It is submitted that this legal-formalism inspired reasoning, which avoided constitutional arguments altogether, is open to question in terms of compatibility with wider constitutional norms. The following comment of the Court reveals its jurisprudential attachment to excessive legalism: “The question whether the lawmakers have disregarded justice in framing rule 19Gha of EPR-2007 is not for the Court to decide”. It seems that the AD in Moyezuddin Sikder skillfully abdicated its judicial duty of ensuring justice under the shadow of positivistic legal interpretations. The decision also stands at odd with earlier liberal constitutional decisions of the SC. Appreciably, however, the AD in Moyezuddin Sikder opened a small space for judicial justice by holding that bails in EPR-cases can nonetheless be granted if the concerned charge is in bad faith, or if it shows a case of ‘no jurisdiction’ and coram non judice. It appears that the AD created a high threshold for the accused to overcome, requiring him to prove a case of malafide or ultra vires, and thus narrowed the access to justice.
Despite the AD-endorsed jurisdictional bar to grant bail under ordinary legal provisions, however, the HCD innovatively granted bails in a number of EPR-2007 cases invoking its inherent power under Section 561A of the CrPC. to ‘secure the
ends of justice’ in any case. In a well-reasoned decision in AKM Reazul Islam v.
State, the HCD held that the Court ‘should not put its hands off’ when no remedy in law is available to the accused, but rather intervene so as to serve ‘the cause of justice’. This decision indicates that a justice-conscious and willing Court may discover appropriate legal technology to secure citizens’ liberty even in the face of restrictive legal provisions.
B. BANGLADESH V. SHEIKH HASINA
The next important case that brings in the issues of proper judicial role and judges’ dilemma during Emergency is Bangladesh v. Sheikh Hasina in which the AD has, not un-controversially, held that the retrospective operation of the EPR concerning trial of certain criminal offences is not unconstitutional.
The case arose from a judicial review at the HCD, Sheikh Hasina v.Bangladesh, in which the petitioner, a then former Prime Minister, challenged the legality of a governmental order putting within the purview of the EPR the trial of a criminal charge against her involving allegations that precede the promulgation of emergency. The effect of this governmental action was that Ms. Hasina was effectively deprived of the right to seek bail. The EPO authorized the government to initiate special measures to conduct effectively and speedily any investigation, trial, and appeal regarding any offence [emphasis added] during the continuance of Emergency, and provided that any byelaws (in this case the Rules) made in this regard may be given retrospective operation.
Accordingly, Rule 19Neo (19E) of the EPR 2007 provided that the government may sanction the placement within ambit of the EPR2007 any case concerning offences under certain laws. The HCD found the language of these provisions ‘clear and unambiguous’ and concluded that they contemplated only retrospective operation of the byelaws (in this case, the Rules) and did not clearly authorize trial of offences committed before the promulgation of Emergency. Moreover, the HCD further embarked upon a number of constitutional issues including the prohibition of ex post facto laws in Article 35(1) of the Constitution and the question of whether curtailment of judicial power by administrative legislations is constitutional, and finally concluded that the retrospective operation of the EPR2007 to conduct trial of pre-Emergency offences was unlawful, and that the criminal proceeding against the petitioner stood as quashed. Further, the HCD declared that the restrictive provisions of the EPR 2007 (Rules 10(2), 11, 19Gha) ousting its power to grant bails were unconstitutional for breaching the constitutional right to life and the guarantee of equal legal protection. Here, the Court qualified the extent of the constitutional emergency provisions, by holding that the constitutional prohibition in Article 26 against lawmaking in breach of FRs renders unlawful any Emergency-law breaching inviolable FR. The Court in Sheikh Hasina thus concluded with a forceful observation that “Emergency has not curtailed the power and authority of the Court to deal with the bail and other matters in accordance with existing laws in force”.
The reasoning that the HCD advanced in its judgment was logically attractive and was premised on constitutional values and the Constitution-inspired judicial role perception. The Court remarked that they took oath both to ‘preserve, protect, and defend’ the Constitution, and hence their (‘extra’) duty was to examine the Constitution-compatibility of executive actions when citizens’ rights are at stake even during emergency. On appeal, however, the AD followed quite a different path. Based on the mere text of Article 35 (1) of the Constitution, it found that the prohibition as to operation of ex post facto laws concerned only ‘conviction’ or ‘sentence’, and not the trial of the offence concerned. It argued that since the government applied the EPR only for the purpose of trial of an offence and since the EPR did not create any new offence in retrospection, there has been no violation of the rule against ex post facto criminal laws as provided for in the Constitution. The AD also blasted the HCD for not following the principle of judicial minimalism, i.e., for embarking on constitutional issues which it thought were not necessary for resolving the issue before the Court and also for giving ex gratia relief. It is submitted that the AD’s objection to the HCD’s decision on these technical grounds is of doubtful justification. For example, it was nearly impossible for the HCD to determine the legality of the governmental order in question without determining the constitutionality or otherwise of retrospectively applying the EPR to try pre- Emergency offences.
On a plain reading of the Constitution, disassociated with concerns for justice and fairness, the AD’s interpretation that the constitutional prohibition of ex post facto laws applies, not to a procedural law, but only to a substantive law, may appear blameless. The interpretation is, however, fraught with logical unsophistication, and is open to question on a number of counts. First, the AD ought to have noticed that the law did not in express words provided for retrospective operation of the EPR even for mere trial of offences. Second, the AD ignored a strong and sophisticated argument of the HCD that EPR’s retrospective operation effectively deprived the accused of her/his right to seek bail under existing statutes, which cannot be taken away by a subordinate legislation like the EPR. The AD’s response was that the accused does not have a right to ‘bail’; bail is a mere privilege. This reasoning appears to have missed the distinction between the right to obtain a bail and the right to access the court seeking bail, and to have sidelined constitutional implications of the wholesale statutory prohibition of bails. Denial of the latter doubtless runs contrary to such constitutional values as equal protection of law and human dignity and worth. Thirdly, the AD’s endorsement of retrospective operation of the EPR could be avoided in light of the possibility of violence to the norm of fair trial, as the accused may consider himself deprived of ‘justice’ and legal security and the administration may have misused their power of transferring cases to the EPR-regime.
The AD failed itself in understanding the constitutional objection concerning the underlying political objectives behind the selective or individuals based enforcement of the emergency laws. It will not be out of place, here, to quote Justice Jackson in the Supreme Court of the United States who famously observed in a 1949 case that “courts can take no better measure to assure that laws will be just than to require that laws be equal in operation”. The AD in the above case has failed apparently to require the law to be applied equally. Just and equal application of the law is a basic pillar of the rule of law itself, and this altruistic principle of constitutionalism was missing in the AD decision in Sheikh Hasina.
It is clear that judicial responses to the 2007 Emergency regime in Bangladesh in terms of protecting fundamental constitutional values, including individuals’ autonomy, are a mixed bag of assertion and passivity or submissive. While the HCD of the SC has resorted to a dynamic interpretation of the Constitution in most if not all cases concerning the Emergency laws, the AD in Emergency cases, including cases concerning preventive detentions, has followed a formalistic and conservative method of constitutional construction and has sometimes overly interfered in judicial freedom of the HCD. The AD’s approach stands at odds even with its previous style of legal interpretation involving issues of fundamental rights and constitutionalism. In almost every single decision, until at the very last hours of the Emergency regime, the AD unraveled its policy preference for not interfering with the executive. Surprisingly, there was not even any dissenting opinion in the discussed cases of doubtful logical correctness. It is unclear whether the AD of the Bangladeshi SC sought to extend, in a legal way, some amount of legitimacy to the allegedly extra-constitutional emergency government so as to support its purportedly noble mission of institutionalizing democracy, or it became subjugated to the external pressure coming from the government that imposed Emergency.
Taking account of local social specificities is what the theory of judicial constitutional activism requires of judges willing to improve constitutional justice, but this needs to be distinguished from subverting the Constitution itself by unduly deferring to the executive operating under Emergency. The AD of the SC under-read the colonial pattern of the recent Emergency, while over-emphasizing the government’s declared objective of restoring democracy. Judges in an emergency-laden country must strike the delicate balance between respecting internal security concerns and protecting the rights of citizens and constitutional values. There has always been some impact of any regime or political change upon law, courts and judicial elites. The developmental history of judicial activism or the record of judges’ democratizing role in South Asia, prominently in India and Pakistan, testifies to this. While for the effective protection of rights and principles of constitutional justice the existence of judicial independence is an imperative, judges charged to dispense justice and with oaths to uphold and defend the constitution cannot afford to avoid their obligation pleading the doctrine of limited judicial power and the absence of enough judicial freedom.
Why is it that the AD throughout the 2007 Emergency regime played an executive-minded role? There are allegations that the current regime created an atmosphere of fear and humiliation for the top judges which allegedly compelled them not to ‘speak’. The question, then, is how one should evaluate the legal reasoning that underlies the Appellate Davison’s excessive deference and reprehensible decisional silence. On the other hand, a deeper analysis of the decisions of the HCD in which the Court asserted its constitutional authority against the misuses of Emergency laws and actions suggests that a willing and able court, informed of the limitations of legal formalism and traditional conceptions of mechanical judicial role, can protect values of constitutionalism even during hostile environment in the polity. How does one explain the differences in adjudicative approach of two Divisions of the one and same SC? Any investigative mind must also ask if there are threat perceptions amongst Bangladesh’s AD Judges, then how the judges in the HCD could overcome the threat factor. To be cynical, the HCD judges probably took the advantage of the fact that their assertion or otherwise would be subject to appellate scrutiny, thereby shifting the risk of executive retaliation. Here, analyses of a leading constitutionalist may be drawn upon. In seeking to address the question why top judges across the world take differing approach to constitutional interpretations and judicial role, Goldsworthy put forward as an explanation. Such factors as the legal culture in which judges receive their legal education, social backgrounds which are reflected in judicial appointments, political culture with which judges are imbibed, the nature and age of the constitution, and the fact that judges manage to adjust their constitutions to ‘the felt necessities of the time’.
There is no denying that particularly the senior judiciary in Bangladesh incurred a crisis of public confidence during the recent emergency, which in the coming days is more likely to have serious implications for the reputation and ability of the court. It will remain to be seen whether the court would be able to overcome this confidence-crisis and regain their reputation by becoming a much stronger institution acting for the people as was the case with the Indian judiciary in the post-Emergency period. For this to happen, the judges must now reflect on the importance of judicial vigilantism in protecting the rule of law, and not the rule by law, during Emergencies or constitutional crises.
Emergency out, rights in
Like the constitution of other welfare state, the constitution of the People ’s Republic of Bangladesh contains fundamental rights in part III of the constitution. Those rights are incorporated in the constitution in order to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
Part III of the constitution contains the following fundamental rights.
Laws inconsistent with fundamental rights to be void (26); Equality before law (27); Discrimination on the grounds of religion, etc (28); Equality of opportunity in public employment (29); Prohibition of foreign titles, etc (30); Right to protection of law (31); Protection of right to life and personal liberty (32); Safeguards as to arrest and detention (33); Prohibition of forced labour (34); Protection in respect of trial and punishment (35); Freedom of movement (36), assembly (37), association (38), thought and conscience, and of speech (39), profession or occupation (40); Freedom of religion (41); Right to property (42); Protection of home and correspondence (43); Enforcement of fundamental rights (44); Modification of rights in respect of disciplinary law (45); Power to provide indemnity (46); Saving for certain laws (47); and Inapplicability of certain articles (47A).
In the original constitution there is no provision regarding the proclamation of emergency. But by the constitution (Second Amendment) Act 1973 emergency provision were incorporated in the constitution, the declaration of which is a threat to the fundamental right of citizens. If the president declare a proclamation of emergency under Article 141A, he can suspend certain Articles of the constitution namely Article 36, 37, 38, 39 40 and 42 under Article 141B and also the enforcement of fundamental right under Article 141C. At this season, the citizen of the country cannot demand to enjoy the benefit of those rights and no aggrieved person will get any remedy for violation of his rights under Article 102 of the constitution.
The termination of a state of emergency shall be automatic upon the expiration of a given term without prejudice to the right of express revocation before such expiry to be exercised by the executive or the legislature, as the case may be. And the proclamation of emergency may be revoked by a subsequent proclamation or may be ceased to operate. The revoking ordinance carries some saving clauses meant to be helpful to the anti-graft measures taken under the emergency rules. Upon the termination of an emergency there shall be automatic restoration of all rights and freedoms which were suspended or restricted during the emergency and no emergency measures shall be maintained thereafter. Then executive cannot take any action and the parliament cannot make any law in consistent with fundamental rights, In this time, on an application for violation of fundamental rights one can get proper remedy under Article 102 of the constitution. Any person who was arrested during emergency period on the ground of suspension that he is likely to commit any anti-government act may be released from the jail if he otherwise is proved to be innocent or the suspension is proved to a fake one.
With the departure of the emergency rule, the government will seek to put in place foolproof security measures to deal with the post emergency period. The political part can carry out its duties without having to face any restriction.
So the withdrawal of emergency means that the fundamental rights regain their constitutional status which they lost during emergency.
The law of emergency and related legislation:
It is important that legislation be progressive and adheres to international standards of human rights. The drafting and passing of legislation is therefore an important process, to be done by competent and intelligent bodies. In democratic societies, this process is usually undertaken by the national parliament or legislative body, with input from civil society as well as political parties. Public participation and rigorous debate work to prevent harmful legislation from being enacted.
But it is of irony of fate that the government in power sometime uses some legislatures, with the departure from the actual insertion of incorporation of some laws, only to fulfill their political motives. For example, the law of emergency which is incorporated only to tackle the unexpected occurrence that threatens the security or economic life of the country is now used as a weapon to oppress the opposite party and to control anti government movement only on the lame plea of internal discordance. To clearly this point, I present some articles of two laws which were made by parliament during the last emergency regime to complete their ill intention to perpetuate rule.
Emergency Powers Ordinance 2007 :
1) Any order relating to any authority delegated by dint of, or under, this Ordinance shall not be challenged before any court.
(2)Under certain circumstances if any authority, by dint of, or under this Ordinance, passes any order, or any order is considered as signed under this Ordinance, then the courts shall deem that order passed or signed under the Evidence Act 1872 (Act no. X of 1872).
(1)Any action done or order passed under, or authorized by this Ordinance on good faith by any person designated by this Ordinance shall not be prosecuted or charged under any civil or criminal procedures, or any kind of litigation shall not be registered.
(2)Unless any evident provision under this Ordinance, no civil or criminal case, or any other legal proceedings shall be lodged against the government for any harm occurred as a result of any action, or any order done on good faith under the authority of this Ordinance.
Emergency Powers Rules 2007
Section 2 defines the law and Order Maintaining Forces to include the Bangladesh police department, the Armed Police Battalion, Rapid Action Battalion, Anzac (village defense) force, Battalion Ansar, Bangladesh Rifles (border security force), Coast Guard force, National Security Intelligence, members of the Defense Intelligence Agency and the Armed forces. This is a significant number of personnel given extraordinary powers of arrest and detention without warrant.
section 16 gives the ‘Law and Order Maintaining Forces’ the power to arrest any person on suspicion without warrant, while section 20 explicitly states that all personnel can take any step including the use of force to carry out any orders under these Rules.
Section 21 provides for the detention of these persons under the Special Powers Act of 1974. Moreover, according to section 10 all offences under the Emergency Rules are non-bailable. This provision is emphasized by section 19d, which states that regardless of sections 497 and 498 of the Code of Criminal Procedure, if any inquiry, criminal investigation or trial is in progress under sections 14 and 15 of the Emergency Rules, the accused persons shall not be entitled to appeal for bail before any court or tribunal.
In other words, disregarding basic human rights and principles of fair trial, state security forces can arbitrarily arrest and detain individuals without warrant or evidence; in fact, they can ‘produce’ evidence through the use of force. Such circumstances are conducive to widespread human rights abuse and corruption. Many human rights defenders are also being targeted by security forces and implicated in false cases.
While enormous power is given to security forces, basic rights of citizens are suspended. Section 3 of the Emergency Rules bans all rallies, processions and meetings, while section 5 places strict restrictions on news, photos, statements, opinions and comments, editorials, talk shows and other discussion forums.
The suspension of their rights to freedom of expression, association and their right to seek remedies mean that victims suffer in silence. They are unable to voice their grievances through ordinary channels of communication. They cannot seek relief from the courts or other agencies. With the ban on all political activity, as well as the fact that many political leaders and party members are detained in prisons and facing trials for corruption, there is no one to speak out against the military backed government. The few individuals left are too scared to do anything but praise the government.
Like the law of emergency in Bangladesh, some other legislatures also are used as a weapon to oppress the people only on the suspension that the suspected person may commit any anti government act creating a notable violation of human rights. During Emergency period their practice reaches at the top position.
Section 54 of the Code of Criminal Procedure 1898
Any police officer may, without an order from a Magistrate and without a warrant, arrest-
First, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;
Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the [Government];
Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property [and] who may reasonably be suspected of having committed an offence with reference to such thing;
Fifthly, any person who obstructs a police officer while in the execution of his duty, or has escaped, or attempts to escape, from lawful custody;
Sixthly, any person reasonably suspected of being a deserter from [the armed forces of];
Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;
Eighthly, any released convict committing a breach of any rule made under section 565, sub-section (3);
Ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
Furthermore, under section 132 of the Code of Criminal Procedure, no criminal complaint can be lodged against any official without prior sanction from the government. This means that complainants must first lodge a case with a magistrate, argue the case and have it investigated simply in order to get it opened. Furthermore, an accused person who is found to have been acting “in good faith” or on orders from a superior shall never be charged and his actions shall never be considered a crime. These provisions appear to have been incorporated into Bengal’s criminal procedure by the British colonial regime to protect its personnel at all costs from being pursued into a court by a “native” whom they had wronged. It is also an article that seems to have much more in keeping with antiquated French administrative regulations than with the common law tradition.
Section 86 of the Dhaka Metropolitan Police Ordinance was also frequently used by police in Dhaka to make arrests without valid reason after dark wherever someone is found without any ‘satisfactory explanation’. It carries a one year penalty, fine, or both.
Section 86 of the Dhaka Metropolitan Police Ordinances
If any person is found between dusk and dawn
a) Equipped with dangerous machinery without any satisfactory explanation; or,
b) Covering the face or disguised or masked without any satisfactory explanation; or,
c) Present in the house of anybody else or in a building of anybody else or on board a boat or in any vehicle without any satisfactory explanation; or,
d) Lying or moving in or on any street, any yard or any other place without any satisfactory explanation; or,
e) Entering into any house along with weapons without any satisfactory explanation; then, that person shall be imprisoned up to a maximum of one year or shall be fined up to two thousand Taka, or both.
The special power Act 1974 allows police to propose to the district commissioner–who is also the district magistrate–that any person shall be detained for a certain amount of time. This continues to be used in conjunction with the emergency regulations to arbitrarily detain individuals.
Moreover, section 46 of the Constitution empowers the government to extend immunity from prosecution to any state officer on any grounds:
Notwithstanding anything in the foregoing provisions of this part, Parliament may by the law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration or order in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area), to make the above-mentioned law.
Although this provision was originally intended with reference to the 1971 war for independence from Pakistan, it is now used to protect police and joint operations units from prosecution for human rights abuses. Notably, the Joint Drive Indemnity Ordinance 2003 removed from the hands of victims and their families the right to take legal action against soldiers, police and other security forces responsible for the gross abuses that occurred from 16 October 2002 to 9 January 2003 under Operation Clean Heart. The law legalizing the Rapid Action Battalion (RAB) is also problematic. The Armed Police Battalions (Amendment) Act 2003, which has its origins in the Armed Police Battalions Ordinance 1979, gives the RAB wide responsibilities, including “intelligence in respect of crime and criminal activities” and “investigation of any offence on the direction of the Government”. Section 6B (1) further states that “The Government may, at any time, direct the Rapid Action Battalion to investigate any offence”.
The Rapid Action Battalion, which was inaugurated on 26 March 2004 and began its operations on June 21 of the same year, is depicted by the government of Bangladesh as an elite joint-operations crime-fighting force. In fact, RAB personnel operate as hired guns for whichever political party happens to have its hands on the reins of power. Through systemic violence and trademark “crossfire” killings, their great success has been the spreading of more panic and lawlessness throughout Bangladesh: the very things needed to justify the RAB’s continued existence.
The government of Bangladesh told the UN Special Rapporteur on extrajudicial executions that under the 2003 act the RAB is “guided strictly by the Code of Criminal Procedure” (E/CN.4/2004/7/Add.1, para. 26). In reality, nothing could be further from the truth:
According to section 103 of the code, police who search a certain premises must first obtain two or more “respectable inhabitants” of the locality to witness the search and countersign any record of seized items. When RAB personnel take persons in their custody to search and retrieve weapons or other illegal objects from premises at 3am they completely ignore this obligation. It is under these circumstances that RAB personnel conveniently get into “crossfire” and the person in their custody dies. Perhaps the RAB members are not complying with the code out of concern for the safety of the respectable inhabitants. Anyhow, so far as Bangladesh is concerned the reference to the Code of Criminal Procedure is spurious for the reason that the code works primarily to block the possibility of any complaint against state officers [Nick Cheesman, ‘Fighting lawlessness with lawlessness (or) the rise & rise of the Rapid Action Battalion’, article 2, vol. 5, no. 4, (August 2006), p.32).
Moreover, the mingling of both personnel and law in the RAB has intentionally caused confusion. The majority of RAB personnel are soldiers.
Out of the nine of its 12 regional battalion commanders listed on its website at time of writing, eight are army lieutenant colonels. Only one is a police officer. Informed observers in Bangladesh tell that the overwhelming majority of the RAB command is from the military. In this, RAB is a replica of the joint-force used for the 86-Day Tragedy. However, RAB is part of the Bangladesh Police and technically under command of the police chief. Police personnel are obligated to follow the Police Regulation of Bengal and Police Act 1861. Yet the 2003 amended act makes no mention about whose guidelines it is meant to follow, and at the same time gives authority for the making of orders to the Ministry of Home Affairs rather than the chief of police. The multiplicity of persons apparently or actually in charge of the RAB, and duplication of command hierarchies, frees the RAB from any particular responsibility to anyone. Whereas the control of behavior in law enforcement depends upon a sequence of functioning posts and departments, when these are jumbled up, maintenance of internal order is lost. All that is left is a RAB on the loose [Chessman, ‘Fighting lawlessness with lawlessness (or) the rise & rise of the Rapid Action Battalion’, pp.32-3].
The systemic use of military personnel for policing has been the cause of repeated tragedies throughout Asia. The people of Bangladesh need only look to Nepal, Sri Lanka, Burma and Indonesia, among others, to obtain their lessons. Sri Lankan police were once relatively well-disciplined and law-abiding. Then they were told to hunt down insurgents and terrorists. The lessons learnt have carried on until today in horrendous forms of torture and killing for the most trivial reasons. In Burma, an army general is police commander. His men understand their duties only in terms of “security of the state”. In Indonesia the police force under the Suharto regime was a part of the military structure itself. Now the country faces the monumental task of teasing the two apart. And Nepal is just starting to come to terms with what was done by joint operation forces under the royal dictatorship there in recent years. None of these are desirable models to be followed by Bangladesh.
While some laws are bad, others are nonexistent. For instance, although article 35(5) of the constitution prohibits torture and the country has ratified the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), there is as yet no law that prohibits and criminalizes the practice, as well as no means to lodge a complaint. The Bangladesh government said it will only apply article 14(1) of the UN convention stipulating the right to redress, compensation and rehabilitation for victims in accordance with existing laws. As there are no existing laws for redress, compensation and rehabilitation, it is not difficult for the government to say that it has fulfilled its obligation by doing nothing. This inaction also applies to Bangladesh’s submission of periodic reports to the CAT Committee; its first report was due in 1999 and second in 2003, neither of which has been submitted.
The adoption and enforcement of the above laws clearly indicates that torture and extrajudicial killings are deliberate government policy in Bangladesh. This is the case even though Bangladesh is a member of the UN Human Rights Council, as well as party to key international human rights covenants such as the CAT. These international obligations are routinely ignored, while state and government officials take care to protect themselves under laws like the Joint Drive Indemnity Ordinance, or now, under the emergency regulations.
Relation between martial law and the law of emergency:
The term ‘Emergency’ means an unexpected occurrence requiring the extraordinary measures to deal with the crisis, thereby raising public awareness with regard to the seriousness of the situation. After independence, the framers of the 1972 Constitution never thought of inserting emergency provisions because they are too idealistic in considering that such provisions were contrary to principles democracy. However it appears they forgot the reality and adopted a utopian Constitution. Within two years three amendments were inserted to meet the reality including the emergency provisions in the Constitution.
The term ‘Martial law’ in its proper sense means that kind of law which is generally promulgated and administered by through military authorities in an effort to maintain public order in times of, riot or war when the civil government is unable to function or is inadequate to the preservation of peace, tranquility and enforcement of law and by which the civil authority is either partially or wholly suspended or subjected the military power. Therefore, it is an emergency measures and is the great law of social defense.
In constitution law, Martial law finds its justification in the common law doctrine of necessity for its promulgation and continuance; all measures taken in exercise of the emergency power must be justified by requirements of necessity alone, the necessity to restore law and order. Thus it can be declared in times of grave emergency, when society is disordered by civil war, insurrection or invasion by a forging enemy, for speedy restoration of peace and tranquility public order and safety in which civil authority may function and flourish. The dominant current of opinion in legal theory posits the ‘concept of necessity’ as the foundation of the state of emergency, admittedly a state of exception to the democratic government. So both the terms are based on the same common law principle that is ‘doctrine of necessity’.
But if a legal study of comparison between the law of emergency and martial law some differences may be found out.
Proclamation of emergency is different from Martial Law in the sense that in a state of martial law the whole Constitution is either dissolved or suspended ,whereas in a state of emergency only six article namely article-36,37,38,39,40and 42 and the enforcement of fundamental rights mentioned in part iii of the constitution are suspended.
Declaration of Martial law is an extra-constitutional event, whereas declaration of emergency is within the ambit of the Constitution. The Chief Martial Law Administrator can act or do, ignoring the provisions of the Constitution and has an unfettered power.
Though, there are some differences, the objects of the both are the same that is to maintain public order in a time of crisis.
The Draw-Backs of the Emergency provisions of the Constitution of Bangladesh and its Impact over the constitution in Bangladesh:
The provisions of the proclamation of Emergency as contained in the Constitution of the People’s Republic of Bangladesh carries with it the risk of abuse power by the leading government to crash down the opposition and anti-government movement.
Firstly, on the three grounds Emergency can be declared-war, external aggression and internal disturbance. As to first two grounds there is no objection because both the concepts of war and external aggression are specifically defined in international law. But the problem of misuse of Emergency power lies in the third ground-internal disturbance. The word internal disturbance is nowhere defined. It is a vague term and due to its vagueness the executive can easily misuse this Emergency power. Emergency may, therefore, be declared even at a peaceful time on the excuse of internal disturbance though there is no disturbance in reality. In fact, as had been the fact of Emergency declaration in Pakistan, the ruling elite uses this power as a ready weapon, due to the vagueness of the term internal disturbance to crash down the opposition and anti-government movement. In the constitutional history of Bangladesh Emergency was declared five times. Every time it was declared on the ground of internal disturbance but the true scenario is different. The third and fourth emergencies were declared for political purposes to suppress the anti-government movement and to perpetuate the un-democratic rule, during the regime of the autocratic president Ershad. But the first and second emergencies were declared due to other reasons of the two 2nd emergency was declared for facing an unexpected situation after president Ziaur Rahaman’s murder in 1981. But the fifth emergency was declared to stop political hazards created by the two big political parties and their alliances in connection with national election scheduled to be held on 22 January 2007. Senior Advocate Mahbubur Rahaman (ex-minister) has said that if the emergency had not been declared on 11 January 2007, civil war would have started. Like in Bangladesh, Indira Gandhi government was seen to have misused the emergency power during the period from 1971-1977.1 In Pakistan there were also the practices of declaring emergencies on the plea of internal disturbance as a weapon to suppress the opposition and anti-government movement.
Secondly, under the provision of the Bangladesh Constitutions once emergency is declared it can be continued to be in operation for four months (120 days) without the approval of the parliament of the parliament and a regulation for such an approval is to be passed by a simple majority. Both this provisions are undemocratic because no mandatory time limit should be given for the continuance of the emergency. Another shortcomings of our constitution is that there is no provisions for summoning a special or emergency sessions of the parliament when it is not in sessions.
Thirdly, There is no provisions regarding that emergency will remained enforce even it’s being approved by the parliament. It means that If emergency is once declared and it is approved by the parliament, the executive can continue it according to its own desire. so it is an undemocratic process.
Fourthly, War shall not be declared and the Republic shall not participate in any war, as Art. 63 provides, without the assent of the Parliament. How about a situation when the parliament stands in a state of dissolution? Art. 72(4) provides: ‘If after a dissolution and before the holding of the next general election of members of Parliament the President is satisfied that owing to the existence of a state of war in which the Republic is engaged it is necessary to recall the Parliament, the President shall summon the Parliament that has been dissolved to meet. Otherwise how would the President obtain the assent required under article 63? Art. 141A, which confers the authority to proclaim emergency on the President, treats internal disturbance’ as a ground for emergency on par with the other two grounds, ‘war’ and ‘external aggression’. Why not then call the dissolved Parliament in such a Situation too?
Fifthly, it is provided in article 141B that with the proclamation of emergency 6 fundamental rights as contained in article 36, 37, 38, 39, 40 and 42 will be suspend. This is undemocratic because the proclamation of emergency does not always mean the suspension of fundamental rights, more restriction instead of suspension may be imposed over them. In many countries, during the emergency of subversion no fundamental rights will be suspended and only in the time of emergency of war or external aggression some specific fundamental rights will be suspended.
Sixthly, once the emergency is declared article 141C empowered to the enforcement of all fundamental rights .if the enforcement of a right is suspended, the right itself becomes meaningless as like as car without its engine .Emergency of subversion was declared 5 times in Bangladesh and it was the fact that every time the enforcement of fundamental rights was suspended .No democratic principles can justify such a situation. There some rights which have no connection with emergency, such as rights to property .this rights is also suspended with other rights and it cannot be accepted by any civilized nation.
Form the above discussion it becomes clear that the emergency provisions were inserted in the constitution with an express intention to perpetuate rule and to suppress the opposition. This draconian law has been a permanent stigma on our good constitution made by the same AL government which piloted the constitution making. this law is nothing but a necessary weapon to weaken the political institution in the country ,to neglect the supremacy of parliament, to hamper building a normal democratic system .this authoritarian power are always contradictory to the concept of nourishing a living democracy. Unlike in other constitutional system in the world declaration of emergency in Bangladesh factually means the total negation of fundamental rights, for during emergency period they into a meaningless reality.
General principle to prevent the abuse of emergency power:
After the freedom of India it was jawharlal nehrue, who as prime minister for 17 years nurtured the institution of parliamentary democracy with his vigilant leadership quality. It took another man of great stature, Prime Minister Mororji Desai to restore to the Indian constitution the values and safeguards for which he, had struggled so hard. To prevent this sort misuse of emergency power he inserted the word armed rebellion in lieu of internal disturbance by the 44th amendment of the constitution.
So in order to prevent the abuse of emergency power the following recommendations appear to be pertinent in the circumstances now obtainable in our country.
(1)For the purpose of preventing the abuse of emergency such a term as ‘armed rebellion’ or a specific definition of internal disturbance should be inserted in our constitution.
(2) If parliament is not in session or parliament remains dissolved, special session may be called by the President for obtaining approval of the parliament.
(3)The system of continuing emergency beyond four months (120 days) after its declaration without approval of parliament is an irregular one. A resolution for such an approval is to be passed by not a simple majority, but by at least two-third majority. Passing of the resolution for the approval of the extension by a simple majority is not reasonable. Mandatory time limit should be given for the continuance of emergency. That is why the past executive authority misused the emergency when it was promulgated for the time in 1987. So there must be a fixed time after which the executive shall place it before the parliament for approval. The fixed time may be within 30 to 60 days. For its approval the resolution should be passed by two-third majority of present MP’s of the emergency session. In support of our recommendation we want to highlight the system of India and Pakistan relating to this matter. In India, once emergency is declared it has to be approved by parliament within one month and this resolution must be passed by two third majorities in each house, otherwise, after one month, emergency will cease to operate. In Pakistan the proclamation of emergency is to be laid before the parliament as soon as practicable in accordance with the constitution of 1956 and 1962. But under the present constitution of Pakistan it is to be put up before the parliament within two months.
(4)The provision for special or emergency session should be inserted to monitor and control the emergency situation. For example our neighboring country, Pakistan has the provision in their constitution for joint sitting of parliament to be summoned by the President within 30 days of the declaration of emergency. In India also there is provision for special sitting of the parliament in the context of emergency. In case of practices in western countries like the UK, there is also provision for joint sitting of parliament. During the emergency at the time of the Second World War the British Parliament called a special session of both the Houses of parliament and the session continued until the war ended. In our constitution, such a provision should be inserted as early as possible to stop the mishandling of emergency.
(5) For stopping the misuse of this measure we should insert a fixed time like 3-4 months and, after expiry of this period, the emergency shall need further approval. And after such an approval the emergency shall remain in force for a further period to be stipulated in the approval.
(6)According to article 141B, six fundamental rights shall stand automatically suspended after the declaration of emergency. However the proclamation of emergency does not always mean the suspension of fundamental rights. At any rate, suspension of fundamental rights is an undemocratic process and, as our country is a democratic country, we should not resort to it. After achieving independence, what the people aspired after was a constitution where the fundamental rights would be ensured. In Germany, there is provision for declaring emergency but there is no provision for suspension of fundamental rights. Almost the same provisions have been included in the constitution of the Amendment of Indian Constitution provides that at the time of war or external aggression the six fundamental rights will remain suspended, but at the time internal disturbance these will remain in force. Such provisions as these should be introduced in the Constitution of Bangladesh. Actually government should take more care of our citizens’ rights at the time of emergency. If it becomes necessary after a period, the suspension of the six fundamental rights should be withdrawn.
(7)According to the article 141C; the President has the right to suspend other fundamental rights also. Previously, at the time of all emergencies in our country, the enforcement of other fundamental rights were declared suspended for months No democratic principle can justify such a situation. There are some rights which have no connection with emergency; such as right to property. This right is also suspended with other rights and it cannot be accepted by any civilized nation. In India, through the 44th amendment of article 359, the suspension of rights mentioned in article 20 and 21has been stopped. So it should be specifically pointed out in our constitution which particular rights would be suspended during the emergency of war and which during the emergency of internal disturbance.
(8)We have no specific law by which the Caretaker Govt. can declare emergency, or continue it for an indefinite period, without the sanction of the Parliament the King or Queen of UK has no special power to declare emergency. But emergency may be declared under Emergency Powers Act of 1920 and 1964 by the Queen. In USA there is also no provision for declaring emergency in the constitution without the authority of law made by the Congress. So we need a special law passed by the parliament to declare emergency and continue in case of necessity.
(9)During the time of emergency, the provision for the writ of habeas corpus remains suspended until the withdrawal of emergency; but it is a wrong provision. Arbitrary arrest and detention by the executive without speedy trial is also a wrong process. If the detention is not in conformity with the provision of law which a man is purported to be detained, he should have the right to agitate the court of law in the proper way. In the UK, at the time of emergency, the writ of 41habeas corpus is not suspended and the Emergency Power Act expressly prohibits the alteration of the existing procedure of criminal cases and no punishment is inflicted on any person without trial.
(10)The suspension of politics and political activities should be withdrawn as early as possible. This is because stoppage of political activities for an indefinite period is not good for democracy as well as for the international field. The outgoing US ambassador Butanes has said, “Ban on internal politics should be withdrawn as early as possible.” This opinion is of very great importance.
(11)The High Court Division may Suo-Motu proceed in any matter relating to law. The Justices on the basis of newspaper- comments precede Suo Motu.
(12)The Supreme Court can order the payment of compensatory cost to the person arrested illegally or intentionally at the time of emergency as in the case of Bilkiss Akter Hossain vs. Govt. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.
(13)The detainee should be given all reasonable opportunities to immediate and regular access to a lawyer, family members and a unbiased medical board.
(14)The government should obey the orders of the courts entirely and immediately. A high power judicial review board can be made by the government to justify the functions of government relating to law and order.
(15)The government can appoint experts as temporary advisors only for the emergency period to monitor government functions. The government can also make a recommendation committee by selecting members from top political parties. It can be asserted at last that it is the duty of the executive authority to make the environment normal as by withdrawing the emergency and handing over the power to the elected government or make a sound environment for holding a free and fair election.
From the foregoing discussion and analysis it is clear that the emergency provisions have both some good and bad sides. Because of the faults of the provisions of emergency, all previous governments had scope for abusing it as a weapon to oppress the oppositions and remain in power. Nazim Kamran Choudhury has said in this regard “Our institutions are not strong enough to shape leaders. At this new rebirth of democracy this nation looks upon its leaders to create institutions. Special provisions are to be used with care and discretion, and if we cannot do so, perhaps we should not have this provision at all”. As this law has some limitations, it is the call of the day to amend the emergency provisions in an acceptable and logical manner.
Legal comparison among the emergency provisions of the constitution of Bangladesh and the emergency provisions of the constitution of other countries:
When the Parliament incorporated the emergency provisions in the constitution of Bangladesh, they experienced the emergency provisions of other state’s constitution to introduce an acceptable and reasonable emergency provision in the constitution. The interesting features are that they are closer to the provisions of 1956 and 1962 Constitution of Pakistan than to the constitution of India. The Indian constitution provided that the duration of such emergency could not exceed two months unless before the expiry of that period the proclamation was approved by both the Houses of Parliament. In both the 1950 and 1962 Constitutions there was no mandatory time limit for the expiry, of the Proclamation, Under these Constitutions the proclamations was to be laid before the National Assembly “as soon as practicable”. In the 1956 Constitution once the National Assembly disapproved the Proclamation it would cease to operate but in the 1962 Constitution even the National Assembly had no power to disapprove the Proclamation (Article 30 (6). The Constitution of Bangladesh fixed the timelimit at 6 months and the Proclamation would cease to exist if it was not extended by the parliament for its continuance before that period.
Another distinguishing feature not contained in any of the other constitutions was the proviso to Article 141A (l) that the proclamation “shall require for its validity the counter-signature of the prime Minister”. This was incorporated in order to safeguard the misuse of power as had been experienced in the past by the President under a Parliamentary system. It also, however, meant that the power to proclaim emergency in reality rested with the Prime Minister.
Though , the emergency provisions was incorporated in order to tackle an unwanted situation threatening the security or economic life of the country but these provisions were in past days used as a weapon to perpetuate the rule and to control the anti- government movement. In Pakistan, Government in many times used the emergency provisions with the same ill intention. In India the Indira Gandhi Government widely abused this emergency power .
In India, to prevent this widespread misuse of emergency power the 44th Amendment of the Constitution of India has inserted the word,‘ armed rebellion’ in place of ‘internal disturbance’, Thus the scope of abuse of emergency power now has come to a minimum one. But in Bangladesh, there is no such attempt to prevent the misuse of emergency power and here emergency provisions are declared only on a lame plea of internal disturbance.
Under the constitution of Bangladesh, Economic emergency or Financial emergency cannot be declared but both the constitution of India and Pakistan allow such emergency. . For example article 360 of the constitution of India, specifically provides that if the president of India is satisfied that a situation has arisen where by the financial stability or credit of India or any part of it is threatened, he may declare emergency. Similar provision is provided for in article 235 of the constitution of Pakistan. The constitution of Pakistan of 1956 also provided for such provisions (article194).
Under the provision of the Bangladesh Constitution once an emergency is declared, it can be continued to be in operation for 4 months (120 days) without the approval of parliament. And a resolution for such an approval is to be passed by a simple majority. In India once emergency is declared it has to be approved by a resolution of parliament within one month and such a resolution has to be passed by a majority of the total membership of each House and not less than two-thirds of the total number of members present and voting in each to operate. In both the 1956 and 1962 Constitutions of Pakistan there was no mandatory time limit for the expiry of the proclamation was to be laid before parliament as soon as racticable. Under the present Constitution of Pakistan it is to be laid before parliament within 2 months.
In German Constitution there are provisions for ‘state of tension’ (Article 80a) and ‘state of defiance’ (Article 115a) which are equal to emergency of subversion and of war respectively. But it is specifically mentioned in article 19 that in no case may the essence of a basic right (fundamental rights) be encroached upon. Thus even in emergency period there is no provision for suspension of rights. The Constitution of Singapore provides for emergency provision (Articles 150 and 151) but no power has been given to suspend fundamental rights. In the time of emergency the Singapore parliament can pass preventive detention law and that law is limited to emergency period only and under that preventive law a detenue has been given 3 rights so that even in emergency citizens are not unnecessarily harassed. In India the provision as amended by the 44th Amendment is that in time of emergency of subversion no fundamental right can be suspended and in time of emergency of war and external aggression only six fundamental rights as mentioned in Article 19 shall be suspended. It is worthy of notice that in India it has been provided in article 359 that even in time of emergency of war or external aggression the enforcement of rights mentioned in Articles 20 and 21 i.e. protection in respect of conviction of offence and protection of life and personal liberty cannot be suspended. But in Bangladesh, during emergency the president can suspend the provisions of certain Articles (Under Articles 141B) and the enforcement of Fundamental rights (Under Article 141C).
It is also to be mentioned here that in Britain the Queen has no inherent power to declare emergency. Two types emergency are known to the British constitutional system – peace time emergency and war time emergency. For peace time emergency, there is Emergency Powers Act of 1920 and of 1964. Under this law the Queen can declare state of emergency to face any riot or natural calamity.
But if emergency is declared –
i) It must be forthwith communicated to parliament. If parliament is not in sitting, it must be summoned within 5 days.
ii) It will remain in force only for one month.
iii) So long emergency is in force, regulations may be made by Orders-in-Council for securing the essentials of life to the community. The regulations must be laid before parliament and expire after 7 days unless a resolution is passed by both Houses providing for their continuance.
iv) The writ of habeas corpus will not be suspended and the Emergency Powers Act expressly prohibits the alteration of any existing procedure in criminal cases or the conferring of any right to punish by fine or imprisonment without trial.
Emergency of war in Britain cannot be declared without the authority of parliament. Parliament makes laws on the basis of which emergency may be declared. Only in time of emergency of war arbitrary arrest and imprisonment by the executive is legalized by Acts of parliament. During the World War 1 the Defense of the Realm Acts of 1914-1935 and during the World War II the Emergency Powers (Defense) Acts of 1939 & 1940 were passed by the British parliament. Under these Acts extensive power was given to the executive for preventive detention. As soon as war ended these laws themselves also ended respectively. But even in sue grave emergency the, writ of habeas corpus was not suspended. Likewise, in USA the executive cannot declare any emergency without the authority of law made by the Congress. But in Bangladesh, during emergency the president can suspend the writ of habeas corpus of the High court division.
It is clear, therefore, that although emergency provisions find place in most National, International and Regional treaties and though they aim at confronting situations which threaten national security, they are used usually in many countries including Bangladesh as a tools to oppress the opposite party and to control anti Government movement in order to remain in power of the country. The imposition of restrictions on the media and the suspension of certain fundamental rights, especially political rights, run contrary to the principles of public accountability and contrary to any democratic norms.
The situation gives rise to a number of questions about the capacity of the current Provisions concerning emergency to protect civil liberties while also responding to the circumstances of an emergency. When the emergency comes to an end, the constitution should require a legislative post-mortem, involving parliamentarians, judges and representatives of wider civil society, on the administration of the entire emergency. A public report with formal recommendations should then be widely debated and discussed to enhance public awareness and to achieve some sort of consensus and, consequently, legitimation and wider acceptability. The inquiry should be a meaningful one and not just a witch-hunt, and the people in violation of the constitution should be brought to justice so that it becomes a lesson for the future. This broader inquiry should also look into the conduct of the higher judiciary so as to restore confidence in the judiciary.
The post-mortem should look into whether the political constitution has been effective in regulating the way in which an emergency has been met. Though the Bangladesh Constitution allows for a declaration of emergency by the president, it sets a number of procedural limitations. The exercise of the power of the president in a parliamentary system of government, like in Bangladesh, is contingent upon the advice of the prime minister. Upon promulgation, it has to be presented to the parliament for approval. If the parliament is not in session, then the president is required to present emergency measures before the new parliament in its first session and must obtain approval within the first 30 days. Failure to comply with these conditions would make the proclamation of an emergency unconstitutional. The president, being the nominee of the party in government, has no popular accountability. Consequently, in exercising the power, the president is required to do so in a manner that would be acceptable to the elected prime minister and parliament, had they been functioning.
Above all, people in power must be prevented from exploiting situations or creating themselves emergency-like situations to impose long-lasting limitations on liberty. The post-mortem should also consider ways to control/guide the executive government in continuing the emergency beyond agreed time frameworks. Each renewal must make it harder and harder for the continuation of emergency rule. The Constitution must make it difficult for emergency actions to destroy the framework of the government that they were supposed to protect. The overriding constitutional aim is to create an emergency regime that remains subordinate both in symbol and in actual fact to the principles of liberal democracy.
In light of the above discussion, the fundamental question is what should proper emergency constitution contain? Professor Bruce Ackerman presents some suggestions for the redesign of constitutions in order to increase a government’s ability to deal with future emergencies and, at the same time, protect individual freedom. He takes a three dimensional approach. The first dimension focuses on an innovative system of political checks and balances and he makes specific suggestions with regard to constitutional mechanisms that enable effective short-run responses without allowing states of emergency to become permanent fixtures. His second dimension integrates economic incentives and compensation payments into the systems. In his third dimension, he proposes a framework that permits courts to intervene effectively to restrain predictable abuses.
Judges can play very important roles during emergency in protecting the detainees’ core rights to decent treatment. ‘Decency, not innocence, should be their verriding concern,’ writes Ackerman. Judges should enforce it rigorously in cases involving torture against detainees. The fact that many of the detainees are almost certainly innocent makes the ban more pressing. Mass preventive detention during emergency has violated the rights of thousands of innocent people and, in the name of emergency; they have been deprived of enjoying the rights guaranteed to the normal criminal defendant. It is impossible for them to get any legal relief or to gain quick release by establishing their innocence. Arbitrary arrest on mere suspicion, especially when it is followed by months and years of detention, is a very traumatic experience, especially when the person is innocent. Though nothing can compensate for the loss of freedom and the traumatic experience of victims and their families, a financial payment is the least the state should do to minimize the harmful effects. Awarding compensation to people wrongly detained would discourage future abuse of power. So it is not only simple justice that requires compensation, but bureaucratic efficiency as well. Given the dependence of most developing countries, including Bangladesh, upon other developed countries and donor agencies controlled by them, an international consensus must also be developed so that, irrespective of the nature and extent of an emergency, certain universal standards are maintained.
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