Discuss the provisions in relation to Exercise of fundamental rights in Emergency period in Constitution of Bangladesh

Discuss the provisions in relation to Exercise of fundamental rights in Emergency period in Constitution of Bangladesh.

Introduction

Fundamental rights are the rights of a citizen of a country which gives people the right to live in an environment where there is decorum and freedom and no restriction made on their physical and mental sphere. It is the goal of any modern bench to bring justice and peace in the society regardless of different classes of people with different interests. The Constitution of Bangladesh is a very strong and independent democratic institution which aims to protect the fundamental rights of the citizen of Bangladesh through its Articles mentioned in the Constitution. However, these fundamental rights can be restricted or invalid when there is an emergency in the country. An emergency in a country is any situation where an immediate step is required for which fundamental rights can be restricted. These provisions related to fundamental rights in emergency period are mentioned in the Articles of Bangladesh Constitution. Some of these fundamental rights have been also revised by the Second Amendment and Fifth Amendment in Bangladesh.[1]

Constitution of Bangladesh

The Constitution of Bangladesh is the foundation which lay the regulations and supreme law of Bangladesh. It is also known in Bengali as “Bangladesh Shongbidhan”. This constitution of Bangladesh was formed by Bangladesh Assembly on November 4, 1972 but it was fully established on the Victory day of Bangladesh which is 16th December 1972. This is the basic framework which lays out the fundamental rights of people in Bangladesh. However, these rights and articles have been revised several times through two acts (Omar, 2008).

The Second Amendment Act came into effect on 22 September 1973. Some changes were made under this act of some articles of fundamental rights. Under this act, povisions were stated which suspend some basic fundamental rights of citizens of Bangladesh in case of emergency.

The Fifth Amendment Act was approved by the Jatiya Sangsad on 6th April 1970. When this came into effect, one party system replaced multi-party system. Under this act, the Supreme Court lost its right to enforce and protect the fundamental rights of human beings in case of emergency.

Articles of fundamental rights

In Bangladesh, there are 23 Articles mentioned under the Constitution of Bangladesh regarding fundamental rights.[2] These rights are mentioned under Part 3 from articles 26 to 47A (Asian Human right Commission, 2011).

Article 26 states that “Laws inconsistent with fundamental rights to be void.” Due to these articles, all low which are inconsistent with this article and basic fundamental rights will be invalid. In addition, anything stated in this article will not be applied to any amendment mentioned in the Constitution under Article 142.[3]

Article 27 states that “Equality before law”. Under this law, all citizens of the country are treated equally and will not be discriminated to give any rights and protections.

Article 28 states that no citizen of Bangladesh can be discriminated on basis of religion, race, gender and color. Therefore, women will be given equal freedom and rights in every field as men. Also, everyone will given equal opportunity in office and academic right and will be not discriminated.

Article 29 statesEquality of opportunity in public employment.” This article states that any person has equal employment opportunity in any job and will not be discriminated in terms or race religion, gender, color and so on. However government can make certain provisions regarding some backward citizens and also regarding hiring religious employees in the Holy religious chapel.

Article 30 statesProhibition of foreign titles, etc.” No citizen is allowed to take any honors, titles or prizes from the foreign countries without the permission of president.

Article 31 statesRight to protection of law.” Every citizen in Bangladesh will be protected by the law and has to do everything with the accordance of law.

Article 32 statesProtection of right to life and personal liberty.” Every citizen has the right o love any way they right and have ultimate freedom to do anything without doing anything illegal.

Article 33 statesSafeguards as to arrest and detention.” Any criminal taken under custody will not be delayed to take their and will be taken to near magistrate within 24 hours. However, this will not applicable to dangerous enemies who are not allowed to take any detention.[4]

Article 34 states that “Prohibition of forced labor”. Under this article, it is clearly mentioned that any type of forced labor is unacceptable for which people will be subjected to punishment. However, there are certain exceptions to the case in which can applied to people who are serving punishment for unlawful activities and also public servants required to do things by law.

Article 35 states “Protection in respect of trial and punishment “. This article specifically states that people will not be subjected to any punishment until or unless they break any law. Also, no can accused of a crime give a witness for himself in a trial. Beside, it also said that people who are regarded as criminals will be brought to justice quickly by the law. All these things mentioned in the article will not affect the current operating law.[5]

Article 36 states “Freedom of movement.”It clearly mentions that any citizen can leave Bangladesh any time and reside in another country or moved to any other place in Bangladesh with very minimal restrictions.

Article 37 states that Freedom of assembly. Any citizen has right to participate in public meeting or any meeting unless or until it disrupts nation harmony and is illegal.

Article 38 states “Freedom of association.” Any citizen has the right to form their own unions or associations unless or until it hampers public health and interest.

Article 39 states“Freedom of thought and conscience, and of speech.” This article protects human beings right to express their ideas and opinions freely. However, certain restrictions are imposed in case of child pornography, false publicity and other things which are illegal and disrupt peace.

Article 40 states that “Freedom of profession or occupation.” Any citizen who has the right qualifications can enter any profession of his or her choice or engage in a business which is accepted by the law.

Article 41 states “Freedom of religion.” Every citizen has the right to worship, practice and talk about his or her religion. In addition, the also have the right to maintain the religious institutions. Lastly, no one will be allowed to learn any other religion except for their own in education institutions.

Article 42 states “Rights to property.” Every citizen has the right to buy, sell and dispose their properties in any amount without interference from the government.

Article 43 states that “Protection of home and correspondence”. This means that every human being has the right to be sage in his home and to have complete privacy. However, government or the states has the right to intervene in their privacy to protect the harmony of the nation or to find the cause of a crime.

Article 44 states that “Enforcement of fundamental rights.”This article talks about bringing high court to exercise the fundamental rights under clause of article 102.

Article 45 states that “Modification of rights in respect of disciplinary”.This states that the certain provisions made under this law will not be applicable to certain field of disciplinary law members to protect their interests and maintain their discipline.

Article 46 states “Power to provide indemnity”. This states that provisions will be made to people who have previously caused crime or has done something to destroy national harmony regarding liberation war.

Article 47 states “Saving for certain laws”. This article discusses that certain freedom of rights may not be applicable when someone takes away national properties or other properties regarding which they have no rights. It is also not applicable to directors and managers whose rights are no longer valid.

Article 47A states that “In applicability of certain article”. These fundamental rights which are mentioned under article 31 of section one and three of article 35 and article 44 will not be applicable to any person to whom a law can be applied mentioned in section three of article 47. This person also will not have any right to bring Supreme Court to bring any changes to the Constitution.[6]

Emergency situation defined

Before describing the provisions related to emergency period, it is useful to describe what actually emergency means. An emergency can be defined as any situation where immediate action is required. Therefore, emergency is any temporary situation which places the authorities of a country in an uncertain state where they have right to suspend some of the fundamental rights of people. From the perspective of constitutional law, emergency is any situation where the Government restricts certain fundamental rights to protect the country from danger and promote nation interest. Under the Bangladesh constitution, when there is any disturbance in the economic life or security of the country caused by war or any other external or internal stimuli , the Government has right to suspend the fundamental rights of the citizen of Bangladesh to protect the national interest of the country.[7]

Classification of Emergency

Emergency can be classified by territorial subdivisions in two types which are National Emergency and Partial or State Emergency. For national emergency, the emergency needs to be applicable throughout the whole territory of the country. On the other hand, if emergency is acknowledged only in a particular area or state then it is known as partial or state emergency. In Bangladesh, there are separate articles mention in the constitution for the state and national emergency. However, for emergency to be valid there need to be a war or the presence any external or internal disturbance or there must be disturbance in the security and economic life of the country by the presence of any troubling stimuli. Therefore, according to the type of occurrence, the emergency of Bangladesh constitution can be classified into three types (Sufian, 2011):-

Emergency of war– whenever there is a war in Bangladesh or any disturbance caused by an external attack then it is known as emergency of war. For example- Under the Article 141 A in the Constitution of Bangladesh, there will be an emergency called by president if there is an way in Bangladesh due to external or internal stimuli,

Emergency of Subversion– In case of subversion, emergency can be called for many political situations, natural disasters and disturbances in the country. If there is any earthquake, volcanic eruption, flood then it will be an emergency. On the other hand, if against the present government someone calls for an anti-movement force then it can be also stated as an emergency under this category. Also, when there are any emergencies mentioned by the Government for the internal disturbances within the country to stop war then it can be also count as emergency.[8]

Emergency of financial emergency– Whenever there is a financial crisis in the economy and it has no growth and is decreasing down the government can call this situation as economic emergency. Under the Article 141 A, there are specifications mentioned related to economic or financial emergency.[9]

Another type of emergency in Bangladesh which has come to attention is known as double emergency (Ali, 2008). When it comes to double emergency, one type of emergency status may be on while another type of emergency is already declared. For example- In the case India declared at first war emergency on 1971 till 1977. During that time, emergency of subversion was declared by India related to internal stimulus. It should be however noted there are no previsions of double emergency in constitution of Bangladesh.

Emergency Provisions in Bangladesh Constitution

According to the Constitution of Bangladesh, articles which are141 A, 141 B and 141 C talks about provisions related to fundamental rights in emergency period.

These three provisions are mentioned below

Article 141 A is divided into three parts (Odhikar report, 2008). The first part mainly talks about the definition of emergency by the President which is whenever there is any way or disturbance in the harmony of nation by certain inside and outside factors. It also states that if the president is confident that emergency exists due to any kind of threat or disturbance as mentioned in part I then he will issue the state of emergency. Next, the part two describes under certain circumstances the emergency may not be valid which are a announcement further validating the declaration of emergency, it should be presented before the parliament and it will expired 120 days unless or until parliament has approved it before.[10]

Article 141 B discusses about the removal of provisions of certain articles in the period of emergencies. It states 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 this 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” (Constitution of Bangladesh, n.d).

Article 141 C states that when the emergency status is on, the President after taking the approval from Prime Minister may suspend any fundamental rights mentioned in that Part II of the constitution. This sanction will be applied to whole Bangladesh and any other part. Also, every order maintained under this article has to be presented before Parliament to make it valid.[11]

My Opinion

The provisions for emergency relate to fundamental rights are necessary to control many situations. When there is a crisis, these provisions help many managers and executive in a country to make decisions and raise awareness among public about the seriousness of the issue. Above all, it helps government to make to show that the peace and harmony of the nation can be maintained as it can handle any situation by itself. In case of emergency, certain fundamental rights are suspended or restricted. Some of these emergency provisions can be misused by the government to maintain its current position and power. Also, sometimes it can be used to hold back the opposite parties while denying their basic rights. In many cases certain aspects of these provisions related to emergency are questionable. When the nation is in war or its financial and economic state is threatened where government have to take extra measures to punish the criminals who are accused. This however should be done without the usual criminal law protections. It is very clear that when the state is in a situation of emergency immediate action is required to correct the situation. So, the government must have all the tools in addition to the declaration of emergency necessary to restore the peace. However, if the government itself is depressed of its rights then the provisions will be wastage and also if the government too much control then also it will lead to misuse and abuse. The recent dilemma about the provisions is the too much power might be achieved by some people. Due to this, some parties may be reluctant to give up the power. Another danger to that situation is that present government might use this power to make too many situations which are emergencies which also may led to too many cruel actions which may be unnecessary due to the presence of a standard law involving punishing criminals(International Relations and Security Network, n.d). The present judiciary plays a very important role behind these panic situations which results due to government’s misuse of human rights. It is not right to only depend on the judiciary but a set of principles is also needed to make things more precise. Above all, the judiciary should be independent of government which will act in public interest and protect their fundamental rights and any orders given by constitutions. There will be also serious consequences for the government if they break any laws regarding these fundamental rights. Judges should be also fair and promote these rights without any abuse (Haque, n.d). Any institute acting without the interest of public for fundamental rights should be punished.

Conclusion

The present government has been following the articles related to fundamental rights since its inception. The present provisons regarding emergency is very important framework for the government to restrict freedom of rights to restore the peace when the country is in danger. Many developing countries in the world have implemented these emergency provisions after the September 11, 2011 attack including Bangladesh. When the state of emergency is on, the government may use many tools like search warrants, arrests, interview suspects, hold criminals in custody and many other things to fight crimes and terrorism. It is very well known that the emergency situation is a grave situation as certain freedom of rights is restricted in this situation. In a country like Bangladesh, the emergency constitution is taken very seriously. However, it is believed that government misuses this right and use to repress the opposing party. It has also come to attention that it is mainly used as a political move to violate the human rights and torture some parties. However, the state of emergency should be taken very seriously in our country. A proper judiciary which is independent should act in the interest of public as this emergency constitution applies to many international and criminal law. Therefore, any misuse to this is depriving human beings of their rights and also is a serious offence.

Reference:

Ali, H.S.G. (2008, June 14). Consumer rights and Bangladesh Constitution. Retrieved from http://www.thedailystar.net/law/2008/06/02/investigation.htm

Asian Human Rights Commission. (n.d). Bangladesh’s state of emergency and related legislation, Retrieved from http://www.hrschool.org/doc/mainfile.php/lesson52/193/

Constitution of Bangladesh. (n.d). Articles of fundamental rights in Bangladesh constitution. Retrieved from http://www.pmo.gov.bd/pmolib/constitution/part3.htm

Haque, A.K.M. Emergency Powers and Caretaker Government in Bangladesh. Retrieved from http://www.austlii.edu.au/au/journals/JlALawTA/2008/9.pdf.

Hasan, M. (2011, May).Of Democracy and Media Freedom. Retrieved from http://www.thedailystar.net/forum/2011/May/democracy.htm.

International Relations and Security Network. (n.d). Retrieved from http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf

Odhikar report. 13 months of emergency in Bangladesh. Retrieved from http://www.odhikar.org/documents/13_months_emergency.pdf

Omar, I. Right, emergencies and Judicial Review. (2008). (pp.81-96). Retrieved from <href=”#v=onepage&q=emergency%20provisions%20related%20to%20fundamental%20rights%20in%20Bangladesh%20constitution&f=false”>http://books.google.com/books?id=v_PIX6WBZgcC&pg=PA80&lpg=PA80&dq=emergency+provisions+related+to+fundamental+rights+in+Bangladesh+constitution&source=bl&ots=jXl7NCrNSv&sig=dNfws_8Zrwrxd2gj0aBayhdEOLc&hl=en&ei=9uO_TtHVIIzrrQelkYzOAQ&sa=X&oi=book_result&ct=result&resnum=10&ved=0CGYQ6AEwCQ#v=onepage&q=emergency%20provisions%20related%20to%20fundamental%20rights%20in%20Bangladesh%20constitution&f=false

South Asian for Human Rights. Promoting Democracy uploading human rights. Retrieved from http://www.southasianrights.org/?page_id=3142

Sufina, M.A. (2008, June). The genesis and review of emergency in Bangladesh. Retrieved from http://www.bdresearchpublications.com/admin/journal/upload/08018/08018.pdf

U.S Department of State. (2011, April 8). 2010 Human Rights Report: Bangladesh. Retrieved from http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154478.htm.


[1] See the Second and Fifth Amendment Act under the Constitution of Bangladesh.

[2] Articles of Fundamental rights 26 to 47 A.

[3] Nothing in this article shall apply to any amendment of this Constitution made under article 142.

[4] Parliament may be law prescribes the procedure to be followed by an Advisory Board in \an inquiry under clause (4).

[5] See Article 35 of human rights in constitution of Bangladesh.

[6] Proclamations Order No. I of 1977.

[7] See Articles 141 A related to provisions of emergency.

[8] See Article 141 A.

[9] This also includes war and economic turmoil.

[10] See exceptions to this provisions under article 141 A.

[11]Part III of Bangladesh Constitution.