Emergency Provisions in Bangladesh: A Critical Analysis
Chapter 1
INTRODUCTION
Emergency provision was not in our original constitution. This notable exclusion was presumably the result of misuse of emergency provisions in our predecessor Pakistan’s constitution. Even in more or less credible Indian democracy use emergency provisions during Prime Minister Indira Gandhi’s rule in mid seventies was not bona fide, and proved ill-fated. Insertion of emergency provisions in our constitution by way of amendment in 1973 was dictated by apprehension of rising instability resulting from fast deteriorating socio-political and economic conditions then prevailing in Bangladesh. However, proclamation of emergency in 1974 and then under different circumstances in 1981, 1987 and 1990 could not correct the situation for which they were proclaimed. Now emergency has been proclaimed under qualitatively different situation, and not by any ruling party or person.
1.1 Definition of Emergency
The dictionary meaning of emergency is sudden, unexpected, or impending situation that may cause injury, loss of life, damage to the property, or interference with the normal activities of a person or firm and which, therefore, requires immediate attention and remedial action.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]
An emergency is a situation that poses an immediate risk to health, life, property or environment most emergencies require urgent intervention to prevent a worsening of the situation, although in some situations, mitigation may not be possible and agencies may only be able to offer palliative care for the aftermath.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
While some emergencies are self evident (such as a natural disaster that threatens many lives), many smaller incidents require the subjective opinion of an observer (or affected party) in order to decide whether it qualifies as an emergency.
The precise definition of an emergency, the agencies involved and the procedures used, vary by jurisdiction, and this is usually set by the government, whose agencies (emergency services) are responsible for emergency planning and management.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]
In the light of necessary flexibility of restrictions on rights on emergency situations is defined as ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life or the community of which the state is composed.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] State of emergencies cannot be invoked to prevent merely local or relatively isolated threats to law and order, nor as a pretext for imposing vague or arbitrary limitations.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
The Civil Contingencies Act, 2004 provides the following definition of emergency.
(1) Meaning of “emergency”
a) An event or situation which threatens serious damage to human welfare in a place in the United Kingdom,
b) An event or situation which threatens serious damage to the environment of a place in the United Kingdom, or
c) War, or terrorism, which threatens serious damage to the security of the United Kingdom.
(2) For the purposes of subsection-
1) an event or situation threatens damage to human welfare only if it involves, causes or may cause:(a) Loss of human life, (b) Human illness or injury, (c) Homelessness, (d) Damage to property, (e) Disruption of a supply of money, food, water, energy or fuel, (f) Disruption of a system of communication, (g) Disruption of facilities for transport, or (h) Disruption of services relating to health.
(3) For the purposes of subsection-
2) An event or situation threatens damage to the environment only if it involves causes or may cause :(a) Contamination of land, water or air with biological, chemical or radio-active matter, or (b) Disruption or destruction of plant life or animal life.
(4) The event or situation mentioned in subsection (1) may occur or be inside or outside the United Kingdom.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]
In Bhagat Sing v. King<href=”#_ftn7″ name=”_ftnref7″ title=””>[7], Emperor Lord Dunedin said, “a state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for the drastic action.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]
Stephen 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 in suspending the application of the certain principles.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]
In a word, emergency may be defined as an unexpected occurrence; an event not unusual or foreseen unforeseen combination of circumstances which calls for immediate action.
1.2 Classification of Emergency
From the view point of territorial extent emergency may be if 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 232 provides state emergency. The Constitution of Pakistan also provides the same provisions.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]
On the basis of its nature emergency may be of following types
i) 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 the emergency was declared by the British Government under the authority of Emergency power of (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 North – Eastern border. Emergency was declared under Article 352 on account of external aggression. Second on December, 1971 when Pakistan attacked India .
ii) Emergency of Subversion
When emergency is declared due to internal disturbances within the state e.g. to suppress civil war or any anti–government movement or a riot in any particular area if 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.
iii) Economic Emergency
When emergency is declared with a view to overcoming a situation in which the economy if 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, on addition to emergency of subversion, for the economic or financial emergency. For example, Article 360 of the Indian constitution specifically provides that if the president of the 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<href=”#_ftn11″ name=”_ftnref11″ title=””>[11] 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.
1.3 Need for Emergency
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 undemocratic one. Providing for emergency provision in the constitution is not an undemocratic something. Because the security of the state as whole is of greater importance than the liberty of some individuals. The state is to safeguard the liberties of all the people within its territory. If the state itself is destroyed or in great peril the liberties of the individuals citizens stands annihilated. As V. N. Shukla says –“Events may take place threatening the very existence of the state, and if there are no safeguard, against such eventualities, the state together with all that is desired basic and immutable, will be swept away.”<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]It was also held in R. v. Halliday<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]– “However precious the personal the personal liberty of the subject may be, there is something for which it may well be, to some extend, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement.”<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
The idea of suspension of some fundamental rights in time of emergency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provision in legal terms for situation of crisis when states of emergency may be invoked.
The necessity for suspension of certain rights in times of emergency is internationally recognized. Almost all regional and international instruments of human rights make provisions for suspension of rights in case 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 some fundamental rights is allowed both nationally and internationally. But the problem is that there is a danger in inverting 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 that there is understandable link between case of grave violations of human rights and state of emergency.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]
There are many examples in favor of keeping the provision for emergency. In Palestine , emergency is declared owing to collision between Fatah and Hamas. South American countries have provided examples of, the paradigm state of emergency where emergency is declared by a military government which after seizing power by means of a coup d state, has suspended or dissolved parliament reduced the judiciaries power drastically and has practiced flagrant abuses of human rights.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16] To give an example of such a Latin American country we may take the case of Colombia. Article121 of the Colombian Constitution<href=”#_ftn17″ name=”_ftnref17″ title=””>[17] of 1886 gives the President the in cases of external war or internal disturbance to a ‘State of Siege ’. This gives the Government the power to decree that certain crimes committed by civilians will be tried by Military Court Martial under Military Penal Law.
Chapter 2
EMERGENCY PROVISIONS IN GLOBAL PERSPECTIVE
2.1 Emergency Provisions in India
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.<href=”#_ftn18″ name=”_ftnref18″ title=””>[18] 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 provision continued to have place in the Sub- Continent although freedom was achieved and countries become independent sovereign states.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19]
In India, an external state of emergency was declared three times during wars: In 1962 Sino-Indian War, In 1965 Indo-Pakistani War of 1965, In 1971 Indo-Pakistani War of 1971. In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by a grand coalition in the 1977 elections.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]
Keeping in the line with the 1935 Act, the Emergency Provisions are mentioned from Article 352 to Article 360 of the Indian Constitution<href=”#_ftn21″ name=”_ftnref21″ title=””>[21].
Article 352 of the Indian Constitution of 1950 proclaims that if the president is satisfied that a grave emergency exists whereby the security of India or of any part of territory thereof is threatened whether by war or external aggression or internal disturbance, he may, by proclamation make a declaration to that effect. Article 359 of the Indian Constitution states that when the proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such the rights conferred by part III (which guarantees certain fundamental rights) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned 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. During the States of Emergency declared, preventive detention laws were used widely. State of Emergency was proclaimed in1962 which continued still 1967, in 1971again and in 1975 when the Government of Indira Ghandi was in danger of being swept out of power.
2.2 Emergency Provisions in Pakistan
The Constitution of Pakistan of 1956 incorporated this emergency provision in Article 191. The Constitution of Pakistan of 1962 contained the same provision. The experience of the application of the emergency provisions of the Pakistan was extremely bitter. In its 23 years 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 grave of these emergency provisions.<href=”#_ftn22″ name=”_ftnref22″ title=””>[22] The two Governor General of Pakistan Golam Mohammad and Iskandar Mirza used this emergency power to perpetuate their rule an thereby 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 one in the former East Pakistan was extremely critical of this harsh law. The Awami League in particular was committed since the formation of the united front in 1954 to repal not only the black law 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.<href=”#_ftn23″ name=”_ftnref23″ title=””>[23]
In Pakistan, a state of emergency was declared four times in its history: (a) In 1958 by President Iskander Mirza (b) In 1969 by President General Yahya Khan (c) In 1977 by President General Muhammad Zia-ul-Haq (d) In 2007 by President General Pervez Musharraf.<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]
The first three were regarded as the imposition of direct martial law. In 2007 a ‘state of emergency’ was declared. However there is little practical difference between martial law and a state of emergency if the government controls the armed forces.
2.3 Emergency Provisions in the United States of America
In the United States of America, there are several methods to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters.
The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution<href=”#_ftn25″ name=”_ftnref25″ title=””>[25] are “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”<href=”#_ftn26″ name=”_ftnref26″ title=””>[26] And an exemption from the privilege of a grand jury hearing for cases arising in the military when in service in a time of “public danger”.
Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some Midwestern states, including southern Indiana . He did so in response to demands by generals to set up military courts to rein in “copperheads”, those in the Union who supported the Confederate cause. Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps, and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan (71 US 2 1866) that the suspension was unconstitutional because civilian courts were still operating, and the Constitution only provided for suspension of habeas corpus if these courts are actually forced closed.
On December 16, 1950 , during the Korean War, President Truman issued Presidential Proclamation No. 2914, declaring a state of national emergency.<href=”#_ftn27″ name=”_ftnref27″ title=””>[27] The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established in 1952 during this emergency that presidents may not act contrary to Acts of Congress during an emergency.
During the Watergate scandal which erupted in the 1970s after President Richard Nixon authorized a variety of illegal acts, Congress investigated the extent of the President’s powers and belatedly realized that the U.S. had been in a continuous state of emergency since 1950. As a result, in 1976 the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them, and requiring the president to specify in advance which legal provisions will be invoked. The Act terminated the emergency of 1950 on September 14, 1978 ; however, even in the 21st century, the federal courts have upheld harsh penalties (including deportation) for crimes that occurred during the state of national emergency from 1950 to 1978,<href=”#_ftn28″ name=”_ftnref28″ title=””>[28] where the penalties were escalated because of the existence of that emergency.
The International Emergency Economic Powers Act, 1977, allows freezing of assets, limiting of trade, and confiscation of property during a declared emergency.
A federal emergency declaration allows the United States Federal Emergency Management Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance also becomes available to areas that are declared to be in a state of emergency. For FEMA, emergency declarations are different from the more common disaster declarations done for hurricanes and floods. Typically, a state of emergency empowers the executive to name coordinating officials to deal with the emergency and to override normal administrative processes regarding the passage of administrative rules.
The United States is formally in an ongoing limited state of emergency declared by several Presidents for several reasons. A state of emergency began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton. In accordance with the National Emergencies Act, the executive order’s actual effect was not a declaration of a general emergency, but a limited embargo on trade with “Terrorists Who Threaten To Disrupt the Middle East Peace Process”<href=”#_ftn29″ name=”_ftnref29″ title=””>[29]. This “national emergency” was expanded in 1998 to include additional targets such as Osama bin Laden<href=”#_ftn30″ name=”_ftnref30″ title=””>[30], and has been continued to at least 2008 by order of President George W. Bush.Especially noteworthy are the ongoing states of emergency declared on November 14, 1979 regarding the Iran Hostage Crisis., that declared on March 15, 1995 with respect to Iran, and that declared on September 14, 2001 through Bush’s Proclamation 7463, regarding the terrorist attacks of September 11, 2001 . President Barack Obama extended George Bush’s Declaration of Emergency regarding terrorism on September 10, 2010.<href=”#_ftn31″ name=”_ftnref31″ title=””>[31]
2.4 Emergency Provisions in France
Three main dispositions concern various kind of “state of emergency” in France : article 16 of the Constitution of 1958 allows, in time of crisis, “extraordinary powers” to the president. Article 36 of the same constitution regulates “state of siege.” Finally, the April 3, 1955 Act allows the proclamation, by the Council of Ministers, of the “state of emergency”<href=”#_ftn32″ name=”_ftnref32″ title=””>[32]. The distinction between Article 16 and the 1955 Act concerns mainly the distribution of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law extending the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988 and 2005.
The state of emergency in France is framed by the Constitution of 1958, which states that it can be decreed by the Président de la république in the Council of Ministers, but must be confirmed by Parliament in order to be held after 12 days. State of emergency gives authorities the power to: (a) Regulate or forbid circulation and gathering in some areas (including by the use of curfew) (b) Close places of gathering (c) Conduct house-to-house searches at any time without judicial oversight (d) Censorship.
It may also give the military authority the power to act in place of civilian authorities, if a decree specifies it explicitly. It is unclear, however, how some of the legal possibilities can be implemented due to various legal changes since the 1950s.<href=”#_ftn33″ name=”_ftnref33″ title=””>[33]
Article 16 of the Constitution gives the head of government “extraordinary powers” in exceptional cases, leading to an effective “state of exception”:
When the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfillment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assemblies, and the Constitutional Council.<href=”#_ftn34″ name=”_ftnref34″ title=””>[34]
These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.
The National Assembly may not be dissolved during the exercise of emergency powers. The conditions are both that the state is confronted to exceptional circumstances and that the regular institutions are disrupted and cannot effectively govern<href=”#_ftn35″ name=”_ftnref35″ title=””>[35]. This amendment to the Constitution of the Fifth Republic has been qualified as “liberticide” by critics. Invoked on 23 April 1961 during the Algerian War; normal functioning of institutions was quickly restored<href=”#_ftn36″ name=”_ftnref36″ title=””>[36].
In the judgment Rubin de Servens of March 2, 1962 , the Conseil d’État judged that he could not himself invoke article 16, as that constituted an “act of government”. Furthermore, the State Council considered that it could only pronounce on rulings which were not legislative acts carried out during this period. Thus, a legislative measure (although the role of Parliament is not specified, just that it is not to be dissolved) which breaches fundamental liberties cannot be appealed against before the Conseil d’État.
Article 36 of the Constitution is concerned with the state of siege, which can be decreed by the Council of Ministers for a period of twelve days which can only be extended with the approval of the Parliament. A state of siege may be declared in case of an “imminent peril resulting from a foreign war or an armed insurrection <href=”#_ftn37″ name=”_ftnref37″ title=””>[37]. Military authorities may take police powers if they judge it necessary. Fundamental liberties may be restricted, such as the right of association, legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, etc.
Since 1955 a state of emergency has been decreed five times: (1) in 1955 in Algeria due to independents unrest. (2) In 1958 due to the uprising in Algeria . (3) In 1961 after the Generals’ putsch (invocation of article 16 from April 23 to September 29, 1961 . (4) In 1984 in New Caledonia due to independents troubles. (5) During the 2005 civil unrest in France President Jacques Chirac declared a state of emergency on November 8, 2005 . It was extended for three months on November 16 by the Parliament, which was dominated by the UMP majority. On December 10 France’s highest administrative body, the Council of State, ruled that the three-month state of emergency decreed to guarantee calm following unrest was legal. It rejected a complaint from 74 law professors and the Green party, declaring that the conditions that led to the unrest (which began on October 27), the rapid spread of violence, and the possibility that it could recur justified the state of emergency. The complaint challenged the state of emergency’s necessity and said it compromised fundamental liberties<href=”#_ftn38″ name=”_ftnref38″ title=””>[38].
2.5 Emergency Provisions in Germany
The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was often invoked during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.<href=”#_ftn39″ name=”_ftnref39″ title=””>[39]
After the February 27, 1933 Reichstag fire, an attack blamed on the communists, Adolf Hitler declared a state of emergency using Article 48, and then had President von Hindenburg sign the Reichstag Fire Decree, which suspended the Weimar Constitution for the whole duration of the Third Reich: the Weimar Constitution was never actually repealed by Nazi Germany, but “indefinitely suspended”. After the prohibition of the Communist Party of Germany on March 1, 1933 the NSDAP (Nazi Party) had hands free to vote in the March 23, 1933 Enabling Act, which enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag. These two laws implemented the Gleichschaltung, the Nazis’ institution of totalitarianism.<href=”#_ftn40″ name=”_ftnref40″ title=””>[40]
In the postwar Federal Republic of Germany the Notstandgesetze state that some of the basic constitutional rights of the Grundgesetz may be limited in case of a state of defence (war), a state of tension, or an internal state of emergency or disaster (catastrophe). These amendments to the constitution were passed on May 30, 1968 despite fierce opposition by the Außerparlamentarische Opposition (extraparliamentary opposition; German student movement).<href=”#_ftn41″ name=”_ftnref41″ title=””>[41]
2.6 Emergency Provisions in Canada
The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council.<href=”#_ftn42″ name=”_ftnref42″ title=””>[42] There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency. The Emergencies Act, 1985 replaced the War Measures Act in 1988. The War Measures Act was invoked three times in Canadian history, most controversially during the FLQ Crisis. A state of emergency can also be declared by provincial, territorial, and municipal governments.<href=”#_ftn43″ name=”_ftnref43″ title=””>[43]
Chapter 3
PROVISIONS OF EMERGENCY IN THE CONSTITUTION OF BANGLADESH
3.1 Emergency Provision in the Constitution of Bangladesh
Emergency provision is dealt part 9A of the Constitution of Bangladesh. This part contains three articles 141A, 141B and 141C. The provisions of such articles are as follows:
Article 141A
1) 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.
Provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister<href=”#_ftn44″ name=”_ftnref44″ title=””>[44].
2) A proclamation of emergency-
a) may be revoked by a subsequent Proclamation;
b) shall be laid before Parliament ;
c) shall cases to operate if any such Proclamation is issued at a time when Parliament stands dissolved at 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 e-constitution unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by parliament.
3) A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbances 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.
Article 141B
While a Proclamation of Emergency is in operation ,nothing in articles 36 ,37, 38, 39 ,40 and 42 [Article 36: Subject to any reasonable restriction 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: Every citizen shall have the right to assemble and to participate in public meetings peacefully and without arms, subject to any reasonable restriction imposed by law in the interests of public order or public health ; Article 38: Every citizen shall have right to from associations or unions, subject to any reasonable restriction imposed by law in the interests of morality or public order; Article 39 (1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interest of the security to 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 to freedom of speech and expression; and (b) freedom of the press are guaranteed; Article 40: Subject to any restriction imposed by law ,every citizen possessing such qualification ,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: (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(2) 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 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 (4) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamation (Amendment ) Order ,1977 (Proclamation Order No.1 of 1977) ,in so far as it relates to the acquisition , nationalization or acquisition of any property without compensation.<href=”#_ftn45″ name=”_ftnref45″ title=””>[45] shall restrict the power of the state to maker any law or to take any executive action which the state would, but for the provision contained in Part III of this Constitution, be competent to make or take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation cases to operate, except as respect things done or omitted to be done before the law so ceases to have effect.
Article 141C
1) While a Proclamation of Emergency is in operation, the President may, on the writing advice of the Prime Minister, by order<href=”#_ftn46″ name=”_ftnref46″ title=””>[46], declare that the right to move any court for the enforcement of such of the rights conferred by Part III of this Constitutions as may be specified in the order, and all proceedings pending in any court for the enforcement of the rights so specified, shall remain suspended for the period as may be specified in the order.
2) An order made under his 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.
3.2 Consequences of a Declaration of Emergency
An emergency situation can be declared in the following consequences:
- A proclamation of emergency may be revoked by a subsequent proclamation.
- 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.
- If emergency is declared at a time when parliament stands dissolved or the dissolution of parliament takes place during the period of 120 days, the proclamation shall cease to operate at the expiration of 30 days from the date on which parliament first meets after its re-constitution approving the proclamation of emergency has been passed by parliament.<href=”#_ftn47″ name=”_ftnref47″ title=””>[47]
- As soon as emergency is declared fundamental rights mentioned in articles 36, 37,38,39,40 and 42 shall automatically remain suspended and they 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.
- While a proclamation of emergency is in operation, the president may by an order declare the suspicion of enforcement of any of the fundamental rights conferred by Part III of the Constitution<href=”#_ftn48″ name=”_ftnref48″ title=””>[48].
Chapter 4
RELEVANT MUNICIPAL LEGISLATIONS REGARDING TO EMERGENCY PROVISIONS IN BANGLADESH
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.
With the recent increase in draconian laws around the region, human rights are being systemically denied however. The following are a few such laws in place in Bangladesh.
4.1 The Emergency Powers Ordinance, 2007
Section 5
(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).
Section 6
(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.<href=”#_ftn49″ name=”_ftnref49″ title=””>[49]
4.2The 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, Ansar (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 tosection 10 all offences under the Emergency Rules are non-billable. 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.
Even prior to the state of emergency in Bangladesh, the country had numerous repressive pieces of legislation.<href=”#_ftn50″ name=”_ftnref50″ title=””>[50]
4.3The Code of Criminal Procedure, 1898
Section-54: 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.<href=”#_ftn51″ name=”_ftnref51″ title=””>[51]
4.4The Dhaka Metropolitan Police Ordinance, 1976
Section-86: 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.<href=”#_ftn52″ name=”_ftnref52″ title=””>[52]
4.5The Special Powers Act, 1974
The Special Powers 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.<href=”#_ftn53″ name=”_ftnref53″ title=””>[53]
4.6 The Armed Police Battalions (Amendment) Act, 2003
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”. 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 behaviour 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 [Cheesman, ‘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.<href=”#_ftn54″ name=”_ftnref54″ title=””>[54]
Chapter 5
ABUSE OF EMERGENCY POWER AND IT’S 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 abuse of emergency power lies in the third ground – ‘internal disturbance ’. It is vague term and due to its vagueness the executive can easily abuse this emergency power. Emergency may, therefore, be declared even at a peaceful time in 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 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.<href=”#_ftn55″ name=”_ftnref55″ title=””>[55]Every time it was declared on the grounds of internal disturbance. Three times emergency was declared necessarily for political purpose i.e. to suppress the anti- government movement and to perpetuate rule.
Secondly, under the provision of the Bangladesh Constitution <href=”#_ftn56″ name=”_ftnref56″ title=””>[56]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. Both these provision 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 the members of parliament so that the executive cannot prolong the continuance of emergency. To be mentioned here the 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 then two- third 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 Constitution of Pakistan <href=”#_ftn57″ name=”_ftnref57″ title=””>[57]there was no mandatory time limit for the expiry of the proclamation .Under these constitution the proclamation was to be laid before parliament as soon as protractible<href=”#_ftn58″ name=”_ftnref58″ title=””>[58].Under the present Constitution of Pakistan it is to be laid before parliament within 2 months.
Another important feature of emergency provision in democratic countries is that when emergency is declared a special or emergency session of parliament must be summoned immediately if it is not in session. During the emergency of the World War II the 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 deceleration of emergency<href=”#_ftn59″ name=”_ftnref59″ title=””>[59]. In India there is a provision for special sitting. But in ourConstitution no such provision was inserted.
Thirdly, another interesting point is that it is not indicated in the Constitution hoe long emergency will remain in force once parliament approves it. It, therefore, means that if emergency is once approved by parliament, it continues 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.
Fourthly, it is prove in Article 141B that with the proclamation of emergency 6 fundamental rights (Article 36, 37, 38, 39,40and 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 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 suspicion of rights. The Constitution of Singapore provides for emergency provision (Articles 150 and 151) but no power has been given to suspend fundamental rights<href=”#_ftn60″ name=”_ftnref60″ title=””>[60]. In India the provision as amended by the 44th Amendment is that in time of emergency of subversion no fundamental rights 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 together. No democratic principle can justify such a situation. There is 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 provide in article 359 that even in time of emergency of war or external aggression the enforcement of rights mentions 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 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 Power Act of 1920 and 1964.Under his law the queen can declare state of emergency to face any riot or natural calamity. But if emergency is declared-
- It must be forthwith communicated to parliament .If parliament is not in sitting, it musty be summoned within 5 days.
- It will remain in fore only for one month.
- So long emergency is in force, regulation may be made by Orders-in-Council for securing the essentials of life to the community. The regulation must be laid before parliament and expire after 7 days unless is passed by both Houses providing for their continuance.
- The writ of Habeas Corpus will not be suspended and the Emergency Power 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 trail<href=”#_ftn61″ name=”_ftnref61″ title=””>[61].
Emergency of war in Britain cannot be declared without the auth