Bangladesh is the most compactly populated and least developed counties in the world. Poverty, corruption, scarcity of natural resources, natural calamities etc are so common in this country, where strong governance as one of the mechanisms for ensuring fundamental rights is very hard to examine. Since her independence in 1971, the Government of Bangladesh passed some important laws including fundamental rights and also accepted some other international fundamental rights laws to protect the fundamental rights to the people of the land.
There are four states of Emergency in Bangladesh, including the latest 2007 Emergency. Not too long after the introduction of constitutional provisions for emergency, the first state of Emergency was declared on the ground of internal turbulence on December 28, 1974 and it lasted till November 27, 1979.The next Emergency was on May 30, 1981 following the assassination of the President, while the third state of Emergency was invoked on November 27, 1987 obviously to contain political increase against the then unelected autocratic regime. As noted earlier, the latest and the fourth state of Emergency was declared in early 2007, which being proclaimed by a non-party, care-taker government, is a class by itself, putting new challenges for the Court in particular.
The 2007 Emergency regime initiated an array of reforms in politics, and legal and judicial spheres, but at the same time abrupt the rights of the people and the judiciary’s protective authority. 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 possibly paid undue deference to the executive.
It is argued here that the Bangladeshi judiciary’s 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 organization in achieving and improving justice and constitutionalism.
Meaning of fundamental rights:
Fundamental rights are a generally-regarded set of entitlements in the circumstance of a legal system, in which such system is itself said to be based upon this same set of basic, fundamental, or absolute entitlements or “rights.” Such rights thus belong without presumption or cost of privilege to all human beings such jurisdiction. The concept of human rights has been promoted as a legal concept in large part due to the idea that human beings have such “fundamental” rights, such that transcend all jurisdictions, but are typically reinforced in unusual ways and with different emphasis within different legal systems.
Fundamental Rights in Bangladesh:
The Fundamental Rights and Directive Principles had their origins in the Bangladesh independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Bangladesh state. There are six fundamental rights in Bangladesh constitution-
The Right to Equality:
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of Bangladesh. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.
Right to Freedom:
The Right to Freedom includes the freedom of speech and expression, freedom of assembly, freedom of association without arms, freedom of movement throughout the territory of Bangladesh,freedom to reside and settle in any part of the country of Bangladesh and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may impose on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalize any trade, industry or service to the exclusion of the citizens.
Right against Exploitation:
The Right against Exploitation, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. It provides prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription and community service.
Right to Freedom of Religion:
The Right to Freedom of Religion, provides religious freedom to all citizens. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other’s right to freedom of conscience. Article 26 guarantees all denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State’s power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian’s) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30 are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, and the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them.
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of Bangladesh, to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution.
Emergency and the constitution of Bangladesh:
It is interesting to note here that the Constitution of Bangladesh as adopted in 1972 did not stipulate provisions for a state of emergency. It was through a constitutional amendment in 1973 that the constitutional provisions granting the executive emergency powers were first introduced. According to the newly inserted Article 141A of the Constitution, the President may proclaim a state of emergency if he 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”. Such a state “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”. Importantly, however, in order for it to be valid, the Presidential Proclamation of Emergency needs to be countersigned by the Prime Minister except when a care-taker government is in charge of the country. The Constitution provides for two legal consequences of the invocation of emergency. First, during the period of operation of emergency, the State may make any law or take any executive actions in derogation of the six Fundamental Rights (hereinafter FRs) enshrined in Articles 36-40, and 42, meaning, by implication, that the laws and executive actions can not derogate from other constitutional FRs. Second, the President may declare that the right to judicially enforce such FRs as he may specify be suspended. On a closer look at the above emergency provisions, it appears that the Constitution is silent about (i) the justifiability of the President’s satisfaction as to the existence of reasons warranting imposition of emergency, and (ii) whether he can suspend the judicial enforcement of all constitutional rights on a wholesale basis. The latter issue concerns the question of the extent of derogation from FRs during a state of emergency. Also, the Constitution remained reticent as to how long, particularly when Parliament for long stands dissolved as was the case with the recent Emergency, the state of emergency can continue. During the waning hours of the recent Emergency, these questions made their way up to the Court. Interestingly, it is only during the first (1974) and fourth (2007) emergencies that the constitutional provision permitting the suspension of the right to judicially enforce certain FRs has been invoked. The first Emergency, however, coexisted with a graver situation of martial law, thereby occasioning little judicial engagement with constitutionality of Emergency legislative and executive actions, which is in contradistinction with the scope for judicial activity during the recent Emergency. As I shall discuss in passing below, the Court during the first Emergency nevertheless played a laudatory role by checking political and bureaucratic arbitrariness in curtailing the citizens’ liberty and their property right. Also, during the past emergencies the fundamental question of constitutional validity of one or the other proclamation of emergency was not posed for judicial determination. Unlike the 1974 emergency, thus, the 2007 emergency brought this constitutional question into sharp focus, albeit lately.
Suspension of enforcement of fundamental right during emergencies:
(1) While a Proclamation of Emergency is in operation, the fundamental rights are suspended during this period.
(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 Parliament.
Enshrined of fundamental rights during emergencies:
Illegal arrests, arbitrary detention, ill-treatment and torture in police custody are commonplace during emergency period and constitute the means through which the authorities exert their control. Torture and ill-treatment are a core component of interrogation and criminal investigation. The police routinely abuse their power to extract money and confessions from detainees by using force while a person is in their custody. The fabrication of charges against detained persons is also used to threaten and punish persons. This is enabled by the lack of institutional checks and balances, notably as concerns the judiciary. Colonial-legacy laws and institutions with regard to at the root of many problems, but the failure by the authorities to reform these, compounded by their willingness to abuse the powers granted as a result, make for an incendiary combination.
The country has never had an independent judiciary; it has had a disposable prosecution, with many members of the judiciary being replaced each time of one of the two main competing political parties comes to power. The justice system, as is the case with the police and other state institutions, is used as a weapon by the group in power against the other, with the people of Bangladesh caught in the crossfire. In September 2008, the authorities announced the establishment of a National Human Rights Commission (NHRC). In reality, the top three appointments of the NHRC, including its chairperson and two members, were only made in late November. The institution lacks staff, other than a few bureaucrats who have been assigned to it, and, in addition, the law establishing the commission does not allow the body to function effectively and competently. Ultimately, there is no competent institution in the country that is functioning to provide redress to the victims of human rights abuses.
The country began its three-year membership as a founding member of the UN’s Human Rights Council (HRC) in June 2006. However, during this period, human rights have been seriously undermined in the country. In 2008, the human rights situation in the country has degraded to a new low due to an ongoing unjustifiable and unconstitutional state of emergency, which has enabled the military to gain a stranglehold on power and the further subjugation of individuals rights. Under the state of emergency, fundamental rights have been suspended; mass arrests have taken place, with thousands having been subjected to ill-treatment or torture; and the pervasive militarization of state institutions leaves Bangladesh on the verge of absolute military control. The state of emergency was actually imposed on 11 January 2007, and has caused a significant decline in the human rights situation throughout 2007 and 2008.
The country is party to six major international human rights instruments, but its implementation of the rights enshrined therein remains superficial and the victims of violations of these rights have virtually no access to remedies at the domestic level. For example, the country is party to the International Covenant on Civil and Political Rights (ICCPR), but has extra judicially violated the right to life of hundreds of persons in recent years, with impunity. It has arbitrarily deprived hundreds of thousands of persons of their right to liberty. It is party to the Convention against Torture, but torture remains endemic and perpetrators go unpunished.
The emergency has provided an opportunity for the military to consolidate its power and control in the country. For example, the National Coordinating Committee (NCC) was formed comprising senior generals of the army and several top officials. This included of a retired general occupying the position of adviser to the government. In this role, the retired general in question decides which allegations of corruption against politicians and businessmen will be filed and who will be charged. The NCC, which exercises supreme authority over all other institutions of the country regarding corruption cases, was established without any legal provisions enabling it to take up this role. In this way, the NCC illegally superseded the Anti-Corruption Commission (ACC), which is the legally-mandated body concerned with fighting corruption in the country.
The armed forces remain deployed across the country. Military officers have insidiously taken up roles in the civil administration, diplomatic offices and at the local level. The whole nation, from the local operational administration to the national policymaking levels, is now under the grip of the armed forces. The development activities of all sectors of public administration have been curtailed. The justice delivery system has effectively collapsed, notably concerning any illegal actions perpetrated by the armed forces during their crackdown on the population.
Furthermore, in 2008 the higher judiciary created controversy by abdicating its inherent constitutional power to provide legal remedies concerning cases lodged by the State under the emergency instruments. Judicial standards and the rule of law have repeatedly been undermined as the result of the releases of high-profile political persons through executive order that bypass the courts. The freedoms of expression and opinion have not repeatedly been denied, notably for journalists and human rights defenders. The media has been monitored by the intelligence agencies and the armed forces, censoring any news and opinions critical of the actions of the government.
The Government of Bangladesh to ensure full protection for human rights defenders by taking the following steps.-
§ With regard to human rights violations including arbitrary arrest, arbitrary detention and torture by law enforcement officials:
§ Make a public commitment to ensuring protection for human rights defenders. Inform all law enforcement personnel, at all levels, of their obligations to respect and protect human rights, and make it clear that they will be held accountable for human rights violations perpetrated by them
§ Set up an independent and impartial commission of inquiry to examine the cases mentioned in this report with a view to: ensuring that the victims receive justice and redress; identifying failings in the criminal justice system which have led to human rights violations; and making recommendations for changes in legislation, procedures, discipline and training to ensure that law enforcement officials abide strictly by the law and international standards governing their behavior.
§ Ensure prompt and thorough investigations by an independent and competent authority into all reports of: arbitrary arrest, arbitrary detention and any allegation of torture or cruel, inhuman or degrading treatment or punishment;
§ Ensure that those suspected of perpetrating human rights violations are brought to justice through procedures that confirm with International Fair Trial Standards.
§ Provide restitution to victims of human rights violations, including adequate compensation.
With regard to the death threats, assaults and assassination of human rights defenders by non-state actors.
§ Ensure that all reports of death threats, assaults and assassination of human rights defenders are promptly and thoroughly investigated by the appropriate authorities and that suspected perpetrators are brought to justice.
The above shows 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.
The above factors can also be used as a tool to explain the judicial behavior in Bangladesh during the Emergency period under review here. As the above analysis shows, however, in addition to the atmosphere of judicial subjugation and other background factors that often influence the judge’s mind, it is the AD’s embracement of legal formalism, whether ignorantly or deliberately, that may count for its judicial failing during an Emergency. This preference can partially be explicated by a reference to the spill-over effects of the judiciary’s proestablishment role during the past undemocratic regimes (1974 to 1990). 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.
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18.Kazi Aktar Hamid, op. cit., p. 31.
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 Id., Article 141C.
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