Explain and illustrate the right to “Hartal” in the light of constitution

1. Introduction:

The right to expression of views, as well as dispute, through public demonstrations and social enlistment is a democratic right preserves in international law and adept throughout the world– from demonstrating against bilateral trade regimes, to rallying for the fortification of the environment, to protesting against illegal regimes. The articulation of differing views and political contest over policies is a healthy feature of any contemporary democracy. Open space for free political discuss and the miscellaneous ways in which people can state their views are the essence of democratic life and are what make decision construction work in democracies”. In this context, the right to call ‘a hartal’ – a particular form of objection used in Bangladesh and in other parts of South Asia – could be viewed is a justifiable democratic right. However, when this right impinge on the rights of individuals to earn a living and to go about their daily lives in peace and security, a situation of ‘conflict of competing rights’ occur. Hartals are often called in ‘the name of the people’, but it is common people whose movements are controlled, possessions endangered, and progress cramped. Children miss school, the unwell miss treatment, and business miss targets.  At the same time, hartals can also be viewed a ‘symptom’ of the dissatisfaction of opposition parties at the lack of space for them to play a beneficial role in democratic dialogue and the ‘winner takes all’ style of following Governments. In this respect, promoting a more constructive role for opponent in Parliament, and enabling greater liberty of expression through peaceful demonstrations and through the media could take away much of the motion for hartals. Politics of hartal had played important role in mobilizing people on the eve of the Bangladesh war of liberation. This research paper discuss about the definition of hartal, history of hartal, the right to hartal under constitution and proper way of demonstrate hartal.

2.1 Definition of Hartal:

The plain paraphrase of the word hartal[1], derived from Gujarati, is “closing down shops” or “locking doors”.

However, in Bangladesh today hartals are more often than not linked with the work to rule of vehicular traffic and shutting of markets, shops and offices for a specific period of time to articulate agitation (Huq, 1992). In today’s context of ‘contentious politics’ hartals can be explained as “The temporary suspension of work in business premises, offices and educational institutions and movement of vehicular traffic nationally, regionally or locally as a mark of protest against actual or perceived grievances called by a political party or parties or other demand groups”.

It is bunch objection often connecting a total shutdown of workplaces, offices, shops, courts of law as a structure of civil defiance. It is a form of engaging to the sympathies of a government to alter a detested or unacceptable judgment or decision.[2]

 2.2 History of Hartal in the perspective of Bangladesh:

After the 1947 when Bangladesh was part of Pakistan the first hartal was called by Tamaddun Majlish and the East Pakistan Muslim Student League on 11 March 1948 to demand the recognition of Bangla as a state language. Although it was called to take effect all over the country, the hartal was only observed in some of the major cities and towns, which suggests that hartals had yet to become a popular vehicle of protest. The Language Movement of 1952 triggered a number of hartals. In 1952, a hartal was observed for a longer period, from 22 to 24 February. Another hartal was observed on 21 February 1953, in reply to a call by the Central Language Parishad. There were no hartals during the next few years while the country was under the governor’s rule. During the twenty years Bangladesh was part of Pakistan, only 29 hartals took place; the number peaked during the mass movements of 1969. The month of March 1971 was marked by almost continuous hartals until the crackdown of the Pakistani army.

Far from what might be expected, the number of hartals has not decreased since the ushering in of Independence in 1971. Although there were comparatively few hartals in the early years subsequent Independence, the number of hartals began to escalate sharply from 1979, particularly during the Ershad period. There were about 100 hartals linking 1979 and 1986. The amount of hartals rose sharply after 1987 with some 245 hartals between 1987 and 1990. Since 1990, all through parliamentary democracy, the statistics of hartals have sustained to rise progressively, with the latest period for which data are available experiencing some 332 hartals (1999-2002). Thus, the self-governing period of the country has experienced by far the leading quantity of hartals. Hartals are called to protest many issues, and often a single hartal is called for multiple reasons. The main issues pouring hartals over the period 1947-2002 was the single most extensive issue, particularly at the local level, was political killings (212 hartals).

 2.3 The right to hartal under constitution:

The rights to freedom of speech and assembly as guaranteed under international conventions – the Universal Declaration of Human Rights (UDHR) signed in 1948 by 48 countries and the International Covenant on Civil and Political Rights (ICCPR) signed in 1966 and the fundamental rights guaranteed by the Constitution of Bangladesh. Bangladesh is a signatory to both these international treaties.

2.3.1 Laws Relating to the Freedom of Expression and Assembly

 

The part III of the Constitution of Bangladesh, framed in 1972, enumerates certain ‘fundamental rights’ of citizens. The Constitution states that all existing laws that are conflicting with fundamental rights shall be declared void, and that the state is forbidden to make any law inconsistent with fundamental rights. However, the fundamental rights are subject to “reasonable restrictions” in the interest of state security, public order, public health, morality or decency.

v     Constitution of Bangladesh (1972): In the constitution of Bangladesh, part III Fundamental Rights are such as:

1.         I.            The right to equality before the law.
2.      II.            The right to non-discrimination on grounds of religion, sex, race, color or place of birth.
3.    III.            Equality of opportunity in public employment.
4.   IV.            The right to protection of law.
5.      V.            The right to protection of life and personal liberty.
6.   VI.            Safeguards against illegal arrest and detention.
7. Prohibition of forced labor.
8. Protection with respect to trial and punishment.
9.   IX.            Freedom of movement, association, thought, conscience and speech.
10.      X.            Freedom of profession.
11.   XI.            Freedom of religion.
12. The right to property.
13. The protection of private correspondence.

In the Constitution of Bangladesh, Article 37 provides for every citizen’s right to assemble and participate in public events. However, this right is subject to two limitations: the assembly must be peaceful, and the associates of the legislative body must not bear arms. The right to diplomatic assembly also involves the right to safety against assaults when exercising the right. However, a law may enforce limitations on the exercise of this right in the concern of public order or public health. ‘Public order’ is considered to be the absence of all acts that are a danger to the security of the State and absence of insurrection, riots, turbulence or crimes of violence.

 On the other hand, Article 39(2) of the Constitution guarantees freedom of expression. This particular freedom consists of the right to express freely one’s beliefs and opinions on any matter, orally or by writing, printing, or any other form addressed to the eyes and ears of other persons. It includes the right to use diverse media. Furthermore, freedom of idiom is not limited to simple words. It extends to the display of symbols of opponent to structured government, or in complains against governmental action together with the right to hold nonviolent demonstrations. However, this right cannot be exercised on concealed property, but only in “public properties that are regarded as community,” such as streets and parks. At the same time, equilibrium must be strike among this liberty and government’s reasonable interest in the protection of such belongings.

 2.3.2 Laws restrict the right to Freedom of Expression and Assembly

The logical restrictions to these rights are detailed in laws including the Penal Code, the Special Powers Act (1974), and laws to deal with terrorism.

Table 6.2: National Laws Restricting the Right to Freedom of Expression and Assembly

• Bangladesh Penal Code:

 

1. a.      Section 124A: Sedition

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law, shall be punished.

1. b.      Section 141: Unlawful assembly

An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is –

i)                  To overawe by criminal force, or show of force, the Government or any public servant in the exercise of the lawful power of such public servant;

ii)                 To resist the execution of any law, or any legal process;

iii)               To commit any mischief or criminal trespass, or other offence;

iv)               By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

v)       By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

• Special Powers Act

 

Section 2(f) Prejudicial Acts

i)        Prejudicial to the sovereignty or Defense;

ii)       Prejudicial to the maintenance of friendly relations with foreign powers;

iii)     that prejudices the security of Bangladesh, endangers public safety or maintenance of public order;

 iv)     Creates or incites hatred, feelings of enmity between communities, classes or sections of people;

iv)     Incites or interferes with the administration and maintenance of law and order;

v)      Prejudices maintenance of supplies and services essential to the community;

vi)     causes fear of alarm in public;

viii)     Prejudices economic or financial interests of the State.

• Anti-Terrorism Act, 1992; Public Safety Act, 2000

 Terrorist actions

The use of coercion or use of force to obstruct or deviate the right of any vessel over land, air and water; or to intentionally cause damage to vehicles and the creation of fear in household and shops and markets or in vehicles in a planned or sudden way (unofficial translation).

 The status of Section 124A: Sedition & Section 141: Unlawful assembly is in force. The Special Powers Act (1974) also in force. But both the Anti-Terrorism Act and the Public Safety Act have been repealed.

 2.3.3 Court Decisions Regarding Hartals:

In Bangladesh, the hartal issue was taken to the courts in 1999 by way of a petition to the High Court bench of the Supreme Court. The petition, commonly referred to as writ petition, was filed under Article 102 of the Constitution[3]. In the case of Khondaker Modarresh Elahi vs. The Government of the People’s Republic of Bangladesh[4] the High Court Division of the Supreme Court of Bangladesh issued a Rule Nisi[5] calling upon the Government of Bangladesh to give reasons as to why the calling of a hartal on 18 April 1999 or on any other day should not be declared to be in violation of the fundamental rights as embodied in the Constitution, and therefore illegal.

While the Rule Nisi was pending, another hartal took place on 11 May 1999. The petitioner submitted additional supplementary affidavits giving further accounts of violent incidents.

The person bringing the action argued that hartal days are not peaceful in nature. On the contrary, it was put forward that hartals are illegal because citizens are physically restrained from attending their various daily activities, commercial life is paralyzed, workers are unable to report to their workplaces, and incidents of vandalism take place affecting both government and private property. The petitioner further argued that law enforcement agencies are not able to provide the level of protection necessary and, therefore, citizens are left with little choice but to remain indoors for their own safety.

The petitioner also contended that political parties can express their dissatisfaction with the government in ways other than calling hartals, including demonstrations and meetings. The petitioner argued that, in terms of contending rights, which the rights of citizens cannot be infringed upon by the exercise of the rights of political parties.

The petitioner referred to an Indian bandh case (Bharat Kumar K Plicha and another vs. State of Kerala and others[6]; where the Kerala High Court ruled that no political party or organization could attempt to paralyze industry or commerce in the entire nation or in any of its states. Thus, the calling and holding of bandhs was declared by the Indian court to be unconstitutional.

However, in the arguments before the High Court Division of the Supreme Court of Bangladesh, it was pointed out that the Kerala High Court had made an important distinction between a bandh and a strike. It had been declared by the Kerala court that bandh is a Hindi word meaning “closed” or “locked”. In other words, when a bandh is called the organizers expect all activities to come to a standstill. The petitioner, in Elahi case, submitted that a hartal in Bangladesh is same as a bandh in India. The petitioner’s main point rested on the premise that the definition of bandh put forward in Kumar Case has a striking resemblance with that of hartal in the context of Bangladesh. Therefore, the calling of hartals by political parties in Bangladesh should also be considered unlawful.

The court disagreed with the petitioner’s argument, observing that it is not always the intention of the caller of a hartal to bring all activities to a standstill.

If the calling of a hartal is confined to the idea of expressing solidarity with a particular cause without any express or implied threat or warning, then it cannot amount to interference with the basic rights of citizens as embodied in the Constitution. On the contrary, in such circumstances, the calling of a hartal would fall within the ambit of constitutional provisions guaranteeing the freedom of expression under Article 39(2). However, the court did point out that the legal expression of solidarity can become an illegal act if “the call for a hartal becomes more than a call which by use of language of threat or show of force or warning of consequence for violating the call is expressed or implied which is likely to create fear and apprehension in the mind of ordinary citizen….” Regarding such implied or expressed threat or warning of consequences, the court stated that, depending on the circumstances, it could be tantamount to intimidation. The Penal Code of Bangladesh (Section 503) would come into operation if the offence of intimidation is committed.

Although the Court confirmed that calling a hartal cannot be declared illegal as a hartal is a democratic right, it also stressed that hartals should be observed peacefully — with no illegal activities or provocation on the side of those calling the hartal, or overreaction and aggression by anti-hartal parties.

2.4 Proper way of Demonstrate Hartal:

While identify hartal as a democratic right, there is a need for certain ethics to be followed by all political parties in vision hartals so that our supreme interest, that is caring our national economy and social stability, is not seriously bothered and debilitated and normal life of individuals and the community is not severely dislocated; causing miseries to the people. It is, therefore, essential in our national interest, for all political parties, to create and agree on a Code of Ethics for political hartals. Some thoughts about such a Code of Ethics for hartals are specified below:

1. Hartals ought to not be called for more than 6 hours a day.

 2. Continuous hartals should be evaded;

3. Essential services like water & gas supply, hospitals & medical services, doctors, food-shops and restaurants, fire services, newspaper, transportation and burial of dead, etc. maybe exempted.

 4. Main export industries like to garments, jute and additional export-oriented industries should be exempt;

5. Operations at international maritime ports and airports must be exempt. International air passengers should be allowable to travel from home to airport and vice-versa;

6. All kinds of violence should be avoided by all parties concerned; normally other means of protest like public meetings, processions, demonstrations, hunger-strike, media-publicity etc. should be resorted to for securing political demands.

3. Conclusion:

To conclude, a right can be described as a claim of an individual or group that has received wider social appreciation and is politically acknowledged by the state. The right of assembly and right of expression are constitutionally recognized fundamental human rights. The state provides for their enforcement through the judicial process. However, these rights are not unqualified rights and are subject to certain restrictions that are necessary for the internal and external well being of the state. At the same time, the obligation of restrictions on these rights should also be matter to the law.

Politics of hartal have been constantly looked down upon by succeeding ruling parties, and a large section of the public is also of the sight that hartal as a political weapon, however effective it might have been during colonial times, is inconsistent in a modern national state. But most politicians in the opposition camp still prefer hartal to maximize pressure on the government. According to them, in the existing socio-political environment hartal is still a influential weapon to create public opinion in favor of a national issue.

In this age of globalization, hartals are not only economically damaging to the country but politically ineffective and are hardly enjoy any popular support. The end of hartals demands a new vision and the commitment of the political elite. The time has come to practice the essential characteristics of an effective democracy is tolerance.

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