SUSPENSION OF FUNDAMENTAL RIGHTS DURING EMERGENCY

There are some special provision in the Bangladesh constitution that is emergency under Article 141 of the Bangladesh construction. President can declare for emergency on the grounds of external aggression or internal disturbance.

What is Emergency

These provisions in the constitutions of some countries but nowhere it is exactly defined what emergency is. Normally emergency means an unexpected occurrence” requiring immediate action.[1] In Bhagat Singh V. King-Emperor Lord Dunedin said, “a state of emergency is something that does not permit of any exact definition. It connQtes a state of matters calling for drastic action.”1 Stiphen P. Marks says that emergency is a situation which results from temporary condition, which place institutions of the state in a precarious position, which leads the authorities to feel justified suspending the application of certain principles.

Strictly speaking, the concept of emergency, from the view point of constitutional law, means the suspension of and restrication over certain fundamental 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. From the Bangladesh constitutional point of view, emergency means the existence of a condition whereby the security or economic life of Bangladesh or any part thereof is threatened by war or external aggression or internal disturbance.

Need for Emergency Provisions

Providing for emergency provisions in the constitution is not an undemocratic something. Because the security of the state as a whole is of greater importance than the liberty of some individuals. The state itself is destroyed or in great peril the liberties of the individual citizens stands annihilated. As Shukia V.N. says—

“Events may take place threatening the very existence of the state, and if there are no safeguards, against such eventualities, the state together with all that is desired to remain basic and immutable, will be swept away.”[3]

It was also held in R. V. 1-lailiday,—

‘However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement.”[4]

The idea of suspension of some fundamental rights in time of erthrgency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provisions in legal terms for situations of crisis when states of emergency may be invoked.

The necessity for suspension of certain rights in times of emergency is internationally recognised. Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency. Article 4(1) of the International Covenant on Civil and Political Rights, 1966, article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and article 27 of the American Convention on Human Rights, 1969 make, more or less, the same provision to the effect that in time of war, public danger, or other emergency that threatens the independence or security of a state party, it may take measures derogating from its obligation under the convention.

Thus providing for emergency measures suspending sonic fundamental rights is allowed both nationally and internationally. But the problem is that there is a danger in investing such discretionary power with the executive authority. Because such a provision carries with it the risk of abuse of power if stern safeguards against its abuse are not provided for specifically. Most governments in developing countries abuse emergency power for political purpose; they use it as a necessary weapon to suppress the opposition and to perpetuate power; they thereby destroy the democratic institutions.

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 human rights violations tend to occur in situations of tension when those in power are or think they are threatened by forces which challenge their authority if not the established order of the society. This is why he thinks that there is an understandable link between cas of grave violations of human rights and state of emergency.

Classification of Emergencies

From the view point of territorial extent emergency may be of two types: National Emergency ; and Partial or State Emergency.

When emergency is declared, whatever may be the reason behind the declaration, throughout the whole territory of the state, it is called national emergency. On the other hand, when emergency is declared in a particular area of a unitary state or in a state of a federation, it is partial or state emergency. For example, article 352 of the Indian Constitution provides that emergency may be declared throughout India or any part thereof. Likewise, article 356 provides state emergency. The Constitution of Pakistan also provides the same provisions.2

On the basis of its nature emergency may be of following three types:

  1. Emergency of War,
  2. Emergency of Subversion: and
  3. Economic Emergency.

1.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 (Defence) Act. 1939. In independent India emergency of war was declared for two times. First in October, 1962 when China launched a massive attack on India’s North-Eastern border. Emergency was declared under article 352 on account of external aggression. Second in December, 1971 when Pakistan attacked India.

2.Emergency of Subversion

When emergency is declared due to internal disturbances within the state i.g. to suppress civil war or any anti-government movement or a riot in any particular area of the country or to face any natural disaster, it is called emergency of subversion. For example, in Bangladesh emergency ‘was declared four times due to internal disturbance.

3.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 constitutions and laws of some countries provide specifically, in addition to emergency of subversion, for economic or financial emergency. For example, article 360 of the Indian constitution specifically provides that if the president of India is satisfied that a situation has arisen whereby 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 Pakistan constitution. 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 Deal Policy to overcome world wide financial depression.

Distinction between Emergency of War and Emergency of Subversion

  1. 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.
  2. Generally emergency of war is declared throughout the country but emergency of subversion may be declared to any part of the territory.
  3. Emergency of war is related to the question of sovereignty of a state because it is declared when the sovereignty of a state is threatened. But emergency of subversion has no relation with the question of sovereignty of a state.
  4. 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 or anti-government movement.

Double Emergency

Somewhere provisions of double emergency is visible. Emergency is of three kinds which have been discussed earlier. This double emergency is not a class apart. While one type of emergency 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 26 June, 1975 on the ground that 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.[6]

History of Emergency Power

In Indian Sub-Continent the history of emergency power of the executive traces back to the Government of India Act, 1935. Under article 102 of the Act the Governor-General could declare emergency if in his opinion a grave emergency existed whereby the security of India was threatened whether by war or internal disturbances.’ This provision which is fully alien to the British 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 constitutions in the Sub-Continent although freedom was achieved and countries became independent sovereign states.

Keeping in line with the 1935 Act, the Indian constitution in article 352 provides for emergency provisions to the following effect: “352. Proclamation of Emergency.

(1) If the President is satisfied that grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance beyond the power of a Provincial Government to control, he may issue a proclamation of emergency.”

Following the same line, the 1956 constitution of Pakistan incorporated this emergency provision in article 191. The 1962 Constitution of Pakistan also contained the same provision.

The experience of the application of the emergency provisions in Pakistan was extremely bitter. In its 23 year long history Pakistan witnessed a series of action taken by the ruling elite or sometimes by one individual in the office of the President under the garb of these emergency provisions.1 The two Governor-Generals of Pakistan Golam Mohammad and Iskandar Mirza used this emergency powers to perpetuate their rule and thereby they destroyed political institutions. The emergency which was proclaimed in 1965 due to war with India was not withdrawn till the mass-upsurge forced Ayub Khan in 1969 to leave power whereas the war was over in three weeks. During this continued emergency the political opposition parties were suppressed and hundreds of citizens were put into prison for years together.

Almost all the political leaders of Pakistan particularly the prominent ones in the former East Pakistan were extremely critical of this harsh law. The Awami Leaque 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 or prerogative enabling an individual to 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.[7]

With these experiences in mind, the Awami League Government did not want to leave any scope for such exercise of power by the president. As a result, in the original constitution of Bangladesh no provision was embodied for any emergency situations. The decision was bold, praise-worthy and conducive to the nourishment of living democracy. But sooner than 9 months had passed provisions for emergency were inserted in the constitution by the Second Amendment to the constitution of Bangladesh by the same party which made the constitution.1

Emergency Provisions in the Constitution of Bangladesh

Emergency provisions are dealt with part 9A of the Constitution. The part contains three articles 141A, 141B and 141C.Article l41A          says.

“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”.

Thus the president can declare emergency on three grounds —war, external aggression or internal disturbance. Two types of emergency, therefore, can be declared under the constitution of Bangladesh – emergency of war and emergency of subversion.

Who & under what circumstances declare Emergency?

Article 141A says that the president can declare emergency whenever he thinks that a grave emergency exists in which the security or economic life of Bangladesh or any art thereof is threatened by war, external aggression or internal disturbance.

Article I 41A(3) says that a proclamation of emergency may be declared before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof..

Again, the proviso of article 141A(l) says that the proclamation of 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 advises the president to declare emergency the president is bound to do see. The declaration of emergency, therefore, depends on the subjective satisfaction of the executive and the court cannot question the justifiability of such satisfaction.

The Consequences of a Declaration of Emergency

  1. A proclamation of emergency may be revoked by a subsequent proclamation.
  2.      A proclamation of emergency shall be laid before parliament and shall cease to operate at the expiration of 120 days unless before the expiration of that period it has been approved by a resolution of parliament.
  3. If emergency is declared at a time when parliament stands dissolved or the dissolution of parliament takes place during the period of, the proclamation shall cease to operate at the expiration of 30 days from the date on which parliament first meets after its reinstitution, unless before the expiration of the said period of 30 days a resolution approving the proclamation of emergency has been passed by parliament.
  4. As soon as emergency is declared fundamental rights mentioned in articles 36, 37, 38,39,40 an42 hall automatically remain suspended a ey will remain suspended so long emergency will be in operation. As a result, the executive may take any measure against these rights and parliament may make any law inconsistent with these rights. As soon as emergency is withdrawn these rights will get their full constitutional status.
  5. While a proclamation of emergency is in operation, the president may by an order declare the suspension of enforcement of any of the fundamental rights conferred by Part Ill of the constitution.

The Misuse of Emergency Power and its Impact over the

Constitutionalism in Bangladesh.

Firstly, on three grounds emergency can be declared—war external aggression and internal disturbances 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 four times.[9] Every time it was declared on the ground of internal disturbance. Three times emergency was declared necessarily for political purpose i.e. to suppress the anti-government movement and to perpetuate rule. The emergency declared for the second time after the death of president Zia was not necessarily for perpetuating rule; it was declared just to face an unexpected situation which might have occurred following Zia’s death.

Like in Bangladesh the Indira Gandhi Government in India widely abused this emergency power. 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. Likewise, to prevent the abuse of this power in Bangladesh such a word should be inserted in place of the term ‘internal disturbance’.

Secondly, 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 approve is o be passed by a simple majority. Both these provisions are undemocratic. Because no mandatory time limit should be given for the continuance of emergency. It should be specifically provided for that once emergency is declared by the executive it shall be laid before parliament as soon as practicable for its approval and if parliament is not in session an emergency session must be summoned within a shorter period like 7 days or 10 days etc. And for such approval the resolution should be passed by two-thirds of the total number of members of parliament so that the executive cannot prolong the continuance of emergency.

To be mentioned here that 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 House. Otherwise after one month emergency will cease to operate. In both the 1956 and 1962 Constitutions of Pakistan there was no mandatory time limit for the expiry of the proclamation. Under these Constitutions the proclamation was to be laid before parliament as soon as practicable1. Under the present Constitution of Pakistan it is to be laid before parliament within 2 months.[10]

Another important feature of emergency provisions in democratic countries is that when emergency is declared an special or emergency session of parliament must be summoned immediately if it is not in session. During the emergency of the World War lithe British Parliament was in session till the war ended and emergency withdrawn. During the period of emergency parliament should continue to function so that it can directly exercise its control over the actions of the executive. Under the present Constitution of Pakistan joint sitting of parliament has to be summoned by the president to meet within 30 days of the declaration of emergency2. In India there is a provision for special sitting. But in Bangladesh Constitution no such provision was inserted.

Thirdly, another interesting point is that it is not indicated in the Constitution how long emergency will remain in force once parliament approves it. It, therefore, means that if emergency is once approved by parliament, it can continue in operation for an indefinite period. In India the provision is that if emergency is once approved, it shall remain in force not more than 6 months.[11]

Fourthly, it is provided in article 141B that with the proclamation of emergency 6 fundamental rights (Articles 36, 37, 38, 39, 40 & 42) will automatically be suspended. 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 German Constitution there are provisions for ‘state of tension’ (Article 80a) and ‘state of defence’ (Article liSa) 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 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.

Fifthly, once emergency is declared Article 141C empowers the President to suspend the enforcement of all fundamental rights. If the enforcement of a right is suspended, the right itself becomes meaningless as like as a car without its engine. Emergency of subversion was declared four times in Bangladesh and it is the fact that every time the enforcement of all fundamental rights was declared suspended and they remained suspended for months together. No democratic principle can justify such a situation. There are some rights e.g. right to property etc. which are in no way connected with the emergency of subversion. But still then the enforcement of all rights was kept suspended. It should, therefore, be specifically demarcated in the Constitution as to the enforcement of which particular rights would be suspended during the emergency of war and which during the emergency of subversion.

It is worthy of notice that in India through the 44th Amendment 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.

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 —

  1. i) it must be forthwith communicated to parliament. If parliament is not in sitting, it must be summoned within 5 days.
  2. 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.

  1. 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.[12]

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 legalised by Acts of parliament. During the World War I the Defence of the Realm Acts of 1914—1935 and during the World War Ii the Emergency Powers (Defence) 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 such 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.

From 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 institutions in the country; to neglect the supremacy of parliament; to hamper building a normal democratic system. These authoritarian powers 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 turn into a meaningless reality. After the freedom of India it was Jawharlal Nehrue, who as Prime Minister for 17 years nurtured the institutions of parliamentary democracy with his vigilant leadership quality. His daughter Prime Minister Indira Gandhi, in 20 months of emergency curbed the very fundamental rights for which her father had fought. It took another man of great stature, Prime Minister Morarji Desai, to restore to the Indian Constitution the values and safeguards for which he, as a young man, had struggled so hard.

So that a state of so-called emergency would not be easily repeated in India to destroy further the institutions of democracy Article 352(1) of their Constitution amended to replace ‘internal disturbance’ with ‘armed rebellion’ as possible cause for declaring emergency. To end with the words of a commentator “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”

Conclusion:

In conclusion we can say, attention must be drawn to some legislation which are in flagrant conflict with the basic rules of the International Bill of Rights, and the earlier they are repealed, the better for the prevalence of the Rule of law. The laws are Indemnity ordinance 1975, the Vested Property that which is nothing but the alter ego of the Enemy Properties Ordinance of Ayub’s dictatorial regime, and the Special powers Act 1974.Though there are many provisions in Bangladesh constitution for protecting human rights but these right can not protected by the state. We can see the MP’s, Ministers or VIP’s get special facilities in trial and jail. So we can say all are not equal in the eye of law. President can suspend the fundamental rights in emergency. So we can say fundamental rights it self is not fundamental. We hope parliament and the government should make policy for established human rights and fundamental freedom like that all the people enjoy these rights equally and none can suspend these right in any cause. [14]

Bibliography

  • Books i.e.
  • Quoted by Hamid, Dr. Kaji Akter, Human Rights, Self-determination and the Right to resistence, (Dhaka: Bhuiyan Academy, 1994).
  • Quoted by Md. Yousuf Ali Khan, Constitution, Constitutional Law and Politics: Bangladesh, Md. Abdul Halim. 1998.
  • Human Rights Law, Tuhin Malik.
  • International Human Rights Law, Dr. Mizanur Rahman.
  • Human Rights in International Law, AB Kaliah.
  • Human Rights in the World, A.H. Roberton.
  • The Concept of Human Rights in International Law: in Columbia Law Review 1982.
    • Journals
    • Articles
    • News papers
    • Class Lectures
    • Notes

[1] . 581-A, 169, 172, Source, Jain, M.P. Ibid, P.111

[2] . Quoted by Shahnaz Huda, Human Rights under Emergency Situations.

[3]. Shukla, V.N, Constitution of India, Ibid, P.631.

[4] . Quoted by Patwari, A.B.M. Mafizul Islam, Liberty of the People: Britain and Bangladesh, (Dhaka: Institute of Human Rights and Legal Affairs, 1987), P.29

  1. ICJ Report on States of Emergency: Their impact on Human Rights, (Geneva 1983) Quoted by Huda, Shahnaz, Ibid, P.101.
  2. National emergency is dealt with Article 232 of Pakistan Constitution and state emergency is provided for in Article 234.
  3. Reference. Keith, Arthur Beoriedale, A Constitutional history of India 1600- 1935, 2nd ed, (London: Methuen & Co.Ltd. 1969), P.364
  4. Ahmed, Moudud, Banglades: The Era of Sheikh Mujibur Rahman, Ibid, P.102
  5. Ahmed, Moudud, Ibid, P.102
  6. See further P.104
  7. 1st emergency was declared on 28th December, 1974.
  8. A terrible picture of abuse of emergency power in India by Indira Gandhi Government has been depicted in the book, Judgment by Kuldip Nayar which was published by Vikas Publishing House, New Delhi in 1977.

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