The fundamental rights of the people of Bangladesh have been guaranteed in Part III (Article 26-44) of the constitution of Bangladesh.All past laws inconsistent with these rights are made void by the Constitution, and it directs the State not to make any law inconsistent with these rights. Article 44 of the constitution guarantees the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution. The jurisdiction of the High Court Division of the Supreme Court to enforce the fundamental rights is defined in Article 102 of Part Vl of the Constitution of 1972.
In Chapter three of the Bangladesh Constitution there has been introduced an entrenched Bill of Human Rights known as Fundamental Rights substantially in accord with the rules of the International Bill of Human Rights. Rights enshrined in this chapter include such rights as equality of all irrespective of religion, race, caste, sex or place of birth, and entitled to equal protection of law, non-discrimination iii all matters including opportunity in public employment, right to protection of law, of life and personal liberty, safeguards as to arrest and detention, protection in respect of trial and punishment under retroactive law, freedom of movement and assembly, freedom of thought, conscience and speech, freedom of profession or occupation, freedom of religion, right to property etc.
What is significant to remember is this, none of these rights could be abridged by ordinary legislation and all existing laws inconsistent with the Fundamental Rights provision shall to the extent of such inconsistency become void on the commencement of the Constitution.
The second significant point remember is that the High Court Division under Article 102 has been conferred the jurisdiction to enforce any of the Fundamental Rights guaranteed under the Constitution. So, we may safely say that to the extent Fundamental Rights are in accord with human rights have been made Constitutionally enforceable by the Court, these human right have become the legal rights of the citizens of Bangladesh. It is of course to be observed that the enforcement of fundamental human rights under this Article is, as I am aware, suffers from restrictive interpretation of the Court on the expression “person aggrieved” to exclude what is known as public interest’ litigation. But our neighbouring country like India has already given 2 liberal extended meaning to include such litigations. The problem is a challenge for the lawyers as a class to come forward and press this point home which I, presume if this goal is diligently pursued, a liberal interpretation can be obtained from our Supreme Court.
Mention has to be made of Part-Il of the Constitution containing fundamental principles of state policy. In Part-II the Rights given are promotional and this part of rights are not legally enforceable’ Art. 8 (2) says: ‘The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Construction and of other laws of Bangladesh, and shall form the basis of the work of the state and of its citizen but shall note Judicially enforceable.
The policies and enumeration rights set out of this part are: Promotion of local government institutions, partition of women in national life, democracy and human rights in which effective participation by the people through their elected representatives in administration at all levels shall be ensured, emancipation of peasants and workers: provision of basic necessities, rural development and agricultural resolution, free and compulsory education, public health and morality: work as a right and duty, and ensuring equal opportunity as given in Art. 9 (2) which says: ‘The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens and of opportunities in order to attain a uniform level of economic development throughout the Republic.
Before understanding fundamental rights one should have idea about rights and human rights. Right means a claim of some interests adversed by an individual or a group of individuals which has either moral or legal basis and which is essential for his development in the society. In a sense right is not created by law; it originates itself as an obvious result of mutual interaction between man and society.
Rights are primarily divided into two categories—moral rights and 1ega1 rights. Moral rights are those rights which have their basis on the rule of natural justice and the violation of which results in moral wrong. Legal rights, on the other hand, are those rights which are recognized by the positive law of the country and can be claimed on legal basis and the violation of which results in legal wrong. As mentioned earlier right originates in the society and remains as a moral right so long it is not recognized by law. Whenever a law recognizes it and secures its protection, it transforms into a legal right. All legal rights in this sense are moral rights and the distinction between the two is one of degree rather than of form.
The term “human right” which does not mean any right is used in a special sense. Human rights are those of legal and moral rights which can be claimed by any person for the very reason that he is a human being. These rights come with birth and are applicable to all people throughout the world irrespective of their race, colour, sex, language or political or other opinion. These are, therefore, those rights that are inherent in human person and without which they cannot live as human beings.’ Jaques Maritain says, “The human person possesses rights because of the very fact that it is a person, a whole, a master of itself and its acts and which consequently is not merely a means to an end but an end which must be treated as such these are things which are owed to man because of the very fact that he is man. It is also pertinent here to mention the comment of Sridath Ramphal as to human rights —“They have their origin in the fact of the human condition, and because the have, they are fundamental and inalienable. More specifically, they were born not of man but with man.”
Human rights, therefore, have two inherent characteristics— universal inherence and inalienability. These two characteristics distinguish the concept of human right from other right. Universal inherence means that these rights are universally inherent in all human beings and anyone can claim these rights after his birth. Inalienability as an essential feature of human rights means that these rights cannot be taken away; they cannot be the object of sale or purchase or any kind of transfer. In this sense human rights are different from citizens’ rights2 which are protected by the positive law of the state and the state can any time take away or abolish any citizen’s right. But human rights are rights that existed before the state came into being and for this they are natural and inalienable rights.
It is noteworthy that if ‘inalienability’ is considered as an essential element of human rights, there is a danger and confusion. Because a perusal of all human rights will give the idea that this element does not apply to all human rights. For example, right to property which is recognized in Article 17 of both the French Declaration on Rights of Man and Citizen, 1789 and the Universal Declaration of Human Rights, 1948. But this right is undoubtedly an alienable right. Only one common characteristic, can, therefore, be found for human rights and that is ‘universal inherence’. It is rather better to divide all human rights into two categories—fundamental or basic human rights like right to life, food, shelter, basic necessaries of life, speech etc. and other human rights.
It is also important to indicate here that what has been told here so far about human rights is the only theoretical side of human right while the real picture is quite different. Because everywhere human rights are being violated; there are some human rights which can be taken away by the state, e.g, right to nationality, right to property etc. The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognized by a positive law of a state and is maintained through enforcement machinery only then it becomes legal and enforceable right. It is therefore; better to describe human rights as universal moral rights.
The concept of human rights has got its formal and categorical shape from the Universal Declaration on Human Rights adopted by the UNO in 1948 where 25 human rights have got their place. These 25 rights are mostly referred to as human rights. Of these rights 25 rights are civil and political rights and 6 are economic, social and political rights and 6 are economic, social and cultural rights.
Concept of Fundamental Right
The term fundamental right is a technical one, for when certain human rights are written down in a Constitution and are protected by constitutional guarantees they are called fundamental rights. They are called fundamental rights in the sense that they are placed in the supreme or fundamental law of the land which has a supreme sanctity over all other law of the land.
Following the footsteps of the French Declaration of Rights of Man and Citizen, 1789 and the American Declaration of Independence, 1776 and then the incorporation of a Bill of Right in the US Constitution in 1791 most of the democratic countries with written constitution are including a chapter for Bill of Rights or Fundamental Rights with special sanctity. Why is such a trend being followed invariably in written constitutions?
The object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they can not be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them. The object of the incorporation of fundamental rights in the US Constitution was pointed out by Justice Jackson—
“The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy; to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s fundamental rights may not be submitted to vote, they depend on the outcome of no elections.”
In Jibendra Kishor V. The Province of East Pakistan the Supreme Court of Pakistan held—
“The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law.”
The same view was reaffirmed by the Pakistan Supreme court in State V. Dosso. The Indian Supreme Court in Golak Nath V. State of Punjab4 held—
“The declaration of the fundamental rights of the citizens are inalienable rights of the people The Constitution enables an individual to oppose successfully the whole community and the state to claim his right.”
Rights and freedoms form the bedrock of democracy. No democracy can function successfully in the absence of some basic freedoms. Again, modern democratic government is a party government. The party winning majority in the election form, the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights of people and oppressing the opposition. The aim of having a declaration of fundamental rights in the Constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples’ basic rights according to its whims. When rights and freedoms are placed in the Constitution they become the part of the supreme law and the government cannot take them away except by constitution amending process which is always a rigid one. This is why insertion of a Bill of Rights in a written Constitution is considered to be one of the safeguards of democracy.
It is important to mention here that in Britain there is no Bill of Rights; no formal declaration of any fundamental right has ever been made. It does not, of course, mean that the rights of the people are less guaranteed in Britain. What are fundamental rights under written constitution are all ordinary rights in Britain. There the protection of rights and freedoms rests not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law traditions. Though the British parliament, under the doctrine of parliamentary supremacy, can any time abridge, modify or abolish any right of the people, it is the deep-rooted democratic traditions and vigilant public opinion which act as a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of law and it is, under the doctrine of rule of law, answerable to the courts for any action which is contrary to the law of the land. But these conditions do not prevail in other countries which are composed of diverse elements, having no deep-rooted traditions of individual liberty. Secondly, almost all the modern countries emerging from the bondage of colonialism had a painful experience of denial of people’s right. They, therefore, felt that mere custom or tradition alone cannot provide to some basic rights the same protection as their importance deserves. “The unique English tradition”, as Bowic says, “is not simply exportable and other nations have generally felt that their governments need the constant reminder which a bill of rights provides, while their people need the reassurance which it can supply”
Distinction between Human Rights and
Firstly, all fundamental rights are human rights but all human rights are not fundamental rights. Fundamental rights are those of human rights which are placed in a written constitution. Human rights, therefore, are the whole of which fundamental rights are a part.
Secondly, the source of a fundamental right is the Constitution whereas the source of human rights is the international law.
Thirdly, fundamental rights have territorial limitations i.e. they have no application as fundamental rights outside the territory of a particular state. But human rights have no territorial limitations; they have universal application.
Fourthly, fundamental rights are protected by constitutional guarantees and can be enforced through the state courts. But there is no effective enforcement machinery for human rights.
Fifthly, fundamental rights are largely applicable to the citizens while human rights are universally applicable to all human being.
Enforcement of Fundamental Rights
The insertion of fundamental rights in a constitution becomes meaningless if it is not provided by the Constitution for easy and effective procedure for their enforcement. And this easy and effective enforcement should be available not only against the executive but also against the legislative. If the executive does anything in violation of fundamental rights, the citizens must have a remedy. Similarly if the legislature enacts any law which is inconsistent with any of the fundamental rights, there must be procedure to declare that law unconstitutional. The idea of protection of fundamental rights can be best understood from the American Declaration of Independence, 1776 where it is stated—
“That all men are created equal, that they are endowed by their creator with certain inalienable rights; that among these are life, liberty and pursuit of happiness;
that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute a new one.”
The Declaration, therefore, has laid the utmost emphasis on the enforcement of rights that if the peoples’ rights for the protection of which the government is formed, cannot be enforced then the government would be useless. The importance of remedies to enforce fundamental rights has also got recognition in article 8 of the Universal Declaration of Human Rights, 1948 which states—
“Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law.”
To this respect the Pakistan Supreme Court in Moudoodi V. Government held—
The basic principle underlying a declaration of Fundamental Rights in a Constitution is that it must be capable of being enforced not only against the executive but also against the legislature by judicial process.”
Constitutional Guarantees or Remedies
Though it is a claim of a written constitution embodying fundamental rights that effective constitutional remedies for the enforcement of fundamental rights should be provided for by the Constitution itself, practical experience teaches us that some of the written constitutions do not specifically provide for the remedies in the Constitution. The US and the French Constitutions are two of them. But most of the written constitutions provide for the right to constitutional remedies in case of violation of fundamental rights. This right to constitutional remedy has two dimensions- judicial review and judicial enforcement.’ Judicial review in relation to fundamental rights is provided for with a view to enforcing fundamental rights against the legislature. In other words, if the legislature passes any law which is inconsistent with the fundamental rights, the highest seat of the judiciary must have the jurisdiction to declare that law unconstitutional. The Supreme Court of Bangladesh can exercise this jurisdiction under Articles 26 and 102 of the Constitution. Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority violates any of the fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution and it should be guaranteed as of an independent fundamental right. This right is guaranteed in article 44 and the High court Division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh constitution.
As mentioned earlier, the US Constitution incorporating a Bill of Rights does not specifically provide for constitutional remedies for the enforcement of fundamental rights. In other words, no right has been created, as has been in the Constitution of Bangladesh, India, Pakistan etc., in the US Constitution in favour of citizens to move the Supreme Court for the enforcement of any of the Bill of Rights. The direct enforcement procedure of fundamental rights in USA is dealt with the Judiciary Act of 1789 and the US Supreme Court hears the fundamental rights cases only in its appellate jurisdiction.3 In France the position is also a narrower one. The French Constitution provides neither any right to constitutional remedies nor is any court in France empowered to declare a law which is inc1nsistent with fundamental rights unconstitutional.
Fundamental Rights in the Constitution of Bangladesh
18 fundamental rights have been enumerated in the Constitution commencing from Article 27 to 44. All of these rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups:
- Rights granted to all persons— citizens and non-citizens alike. These are six rights enumerated in Articles 32, 33, 34, 35, 41 and 44 of the Constitution.
- Rights granted to citizens of Bangladesh only. These are 12 rights enumerated in Articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42 and 43.
Imposition of Restriction over Fundamental Rights
The enjoyment of rights can nowhere be seen in an absolute position, for the enjoyment of one’s right in the society is subject to the enjoyment of others’ right. Moreover, modern states are welfare states where collective interests are given priority over individual’s rights or interests. Unrestricted individual liberty becomes a licence and jeopardises the liberty of others. “Civil liberties as guaranteed by the Constitution imply the existence of an organised society maintaining public order without which liberty itsell would be lost in the excess of unrestrained abuses”.’ If individuals are allowed to have absolute freedom of speech and action, the result would be chaos, ruin and anarchy. On the other hand, if state has absolute power to determine the extent of personal liberty, the result would be tyranny. So restrictions may be imposed on the enjoyment of fundamental rights for the greater purpose of public welfare. This idea has got recognition in article 29(2) of the Universal Declaration of Human Rights, 1948
“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.
It is also worthy here to mention the judgment of Justice Mukharjee in Gopalan V. State of Madras —
“There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder. The possession and enjoyment of all rights….. ….. are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.”
Keeping in line with this idea restriction has been imposed on some fundamental rights under the Bangladesh constitution. On the basis of this restriction all fundamental rights enumerated in the Bangladesh Constitution may be classified into following three groups.
- Absolute Rights:
Some rights have been kept in an unfettered form in the sense that parliament cannot, except as provided in the Constitution, impose any restriction over them. They are following:
- Equality before law (Art. 27)
- Discrimination on grounds of religion etc. (Art. 28)
- Equality of opportunity in public employment (Art. 29)
- Prohibition of foreign titles etc. (Art. 30)
- Safeguards as to arrest and detention (Art. 33)
- Prohibition of forced labour (Art. 34)
- Protection in respect of trial and punishment (Art. 35)
- Enforcement of fundamental rights (Art. 44).
- Rights on which reasonable restriction can be imposed:
They are following:
- Freedom of movement (Art. 36)
- Freedom of Assembly (Art. 37)
- Freedom of Association (Art. 38)
- Freedom of thought and conscience and of speech (Art. 39)
- Freedom of religion (Art. 40)
- Protection of home and correspondence (Art. 43)
The grounds for imposing restriction on these rights have been laid down by the respective sections—
- in the public interest (Art. 36)
- in the interest of public order or public health (Art. 37)
- in the interest of public order or morality (Art. 38)
- in the interest of the security of the state, friendly relation with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art. 39)
- in the interest of the public order and morality (Art. 41)
- in the interest of the security of the state, public order, public morality or public health. (Art. 43).
In the case of above mentioned fundamental rights parliament can by law impose only reasonable restriction as mentioned in the respective articles. The reasonability of the law can be examined by the Supreme Court and if the restriction seems to be unreasonable the court can declare the law illegal. It was held in Chintainoni Rao V. State of Madhya Pradesh’ —
“Legislation which arbitrarily invades the right cannot be said to contain the quality of reasonableness The determination by the legislature of what constitute a reasonable restriction is not final or conclusive; it is subject to supervision of courts.”
A perusal of the nature of restriction over the above mentioned fundamental rights also reveals the idea that the Constitution of. Bangladesh has struck a balance between the guarantee of individual’s rights and the collective interests of the community. Because as mentioned above, the concept of public interest, morality, public order, security of the state, public health etc. all are collective interests. The maintenance of social order and peace depends principally on safe enjOyment of these collective interests which would remain unprotected leading to a realm of anarchy had there been no provision to impose reasonable restriction on individual’s liberty.
- Fundamental rights which have been practically left to the legislature:
There are some rights on which parliament can by law impose any restriction it pleases. They are following:
- Right to protection of law (Art. 31)
- Protection of right to life and personal liberty (Art. 32)
- Right to lawful profession, occupation or business (Art. 40)
- Protection of property right (Art.42)
It has been detailed in the Constitution that the enjoyment of these rights shall be ‘in accordance with law’, ‘except in accordance with law’, ‘subject to any restriction imposed by law’, etc. Therefore the parliament can impose any restriction over these four rights. And the court cannot examine the reasonability of the restriction; it can see only the following two things:
- i) if the law imposing restriction is a valid one;
- ii) if the right has been infringed or abridged in accordance with the law.
For example, it was the law that a person could not possess more than 300 bighas of land. Then a change was made in the law that one could not possess more than 100 bighas of land and the present law provides that one cannot possess more than 60 bighas of land. Even in near future parliament may make law that one will possess not more than 30 bighas. If the penalty for a particular offence is life imprisonment, the parliament can, by law, substitute it for death sentence, and the court cannot declare the law illegal howsoever unreasonable it is.
Suspension of Fundamental Rights during Emergency
There are some special provision in the Bangladesh constitution that is emergency under Article 141 of the Bangladesh construction. President can declare for emergency on the grounds of external aggression or internal disturbance.
What is Emergency
These provisions in the constitutions of some countries but nowhere it is exactly defined what emergency is. Normally emergency means an unexpected occurrence” requiring immediate action. In Bhagat Singh V. King-Emperor Lord Dunedin said, “a state of emergency is something that does not permit of any exact definition. It connQtes a state of matters calling for drastic action.”1 Stiphen P. Marks says that emergency is a situation which results from temporary condition, which place institutions of the state in a precarious position, which leads the authorities to feel justified suspending the application of certain principles. Strictly speaking, the concept of emergency, from the view point of constitutional law, means the suspension of and restrication over certain fundamental rights of citizens in order to deal with a situation when the security of the state is threatened or the national interest is in peril. From the Bangladesh constitutional point of view, emergency means the existence of a condition whereby the security or economic life of Bangladesh or any part thereof is threatened by war or external aggression or internal disturbance.
Need for Emergency Provisions
Providing for emergency provisions in the constitution is not an undemocratic something. Because the security of the state as a whole is of greater importance than the liberty of some individuals. The state itself is destroyed or in great peril the liberties of the individual citizens stands annihilated. As Shukia V.N. says—
“Events may take place threatening the very existence of the state, and if there are no safeguards, against such eventualities, the state together with all that is desired to remain basic and immutable, will be swept away.”
It was also held in R. V. 1-lailiday,
‘However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement.”
The idea of suspension of some fundamental rights in time of erthrgency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provisions in legal terms for situations of crisis when states of emergency may be invoked.
The necessity for suspension of certain rights in times of emergency is internationally recognised. Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency. Article 4(1) of the International Covenant on Civil and Political Rights, 1966, article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and article 27 of the American Convention on Human Rights, 1969 make, more or less, the same provision to the effect that in time of war, public danger, or other emergency that threatens the independence or security of a state party, it may take measures derogating from its obligation under the convention.
Thus providing for emergency measures suspending sonic fundamental rights is allowed both nationally and internationally. But the problem is that there is a danger in investing such discretionary power with the executive authority. Because such a provision carries with it the risk of abuse of power if stern safeguards against its abuse are not provided for specifically. Most governments in developing countries abuse emergency power for political purpose; they use it as a necessary weapon to suppress the opposition and to perpetuate power; they thereby destroy the democratic institutions. The Secretary General of the International Commission of Jurists in his introduction on an ICJ report on States of Emergency opined that the most serious human rights violations tend to occur in situations of tension when those in power are or think they are threatened by forces which challenge their authority if not the established order of the society. This is why he thinks that there is an understandable link between cas of grave violations of human rights and state of emergency.
Classification of Emergencies
From the view point of territorial extent emergency may be of two types: National Emergency ; and Partial or State Emergency.
When emergency is declared, whatever may be the reason behind the declaration, throughout the whole territory of the state, it is called national emergency. On the other hand, when emergency is declared in a particular area of a unitary state or in a state of a federation, it is partial or state emergency. For example, article 352 of the Indian Constitution provides that emergency may be declared throughout India or any part thereof. Likewise, article 356 provides state emergency. The Constitution of Pakistan also provides the same provisions.2
On the basis of its nature emergency may be of following three types:
- Emergency of War,
- Emergency of Subversion: and
- Economic Emergency.
Emergency of War
When emergency is declared as a result of war or external aggression, it is called emergency of war. For example, emergency of war was declared in British India during the Second World War. This emergency was declared by the British Government under the authority of the Emergency Power (Defence) Act. 1939. In independent India emergency of war was declared for two times. First in October, 1962 when China launched a massive attack on India’s North-Eastern border. Emergency was declared under article 352 on account of external aggression. Second in December, 1971 when Pakistan attacked India.
Emergency of Subversion
When emergency is declared due to internal disturbances within the state i.g. to suppress civil war or any anti-government movement or a riot in any particular area of the country or to face any natural disaster, it is called emergency of subversion. For example, in Bangladesh emergency ‘was declared four times due to internal disturbance.
Economic or Financial Emergency
When emergency is declared with a view to overcoming a situation in which the economy of the state is about to breakdown or has broken down, it is called economic emergency. It is worthy of notice here that from the broader point of view economic emergency should be included in emergency of subversion but constitutions and laws of some countries provide specifically, in addition to emergency of subversion, for economic or financial emergency. For example, article 360 of the Indian constitution specifically provides that if the president of India is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened, he may declare emergency. Similar provision is provided for in article 235 of the Pakistan constitution. The constitution of Pakistan of 1956 also provided for such provisions (article 194). In USA economic emergency was declared by President Roosevelt under the authority of the National Industrial Recovery Act, 1930. By declaring emergency Roosevelt adopted New Deal Policy to overcome world wide financial depression.
Distinction between Emergency of War and Emergency of Subversion
- Emergency of war is connected with war or external aggression whereas emergency of subversion is connected with any type of internal disturbance within the territory of the state.
- Generally emergency of war is declared throughout the country but emergency of subversion may be declared to any part of the territory.
- Emergency of war is related to the question of sovereignty of a state because it is declared when the sovereignty of a state is threatened. But emergency of subversion has no relation with the question of sovereignty of a state.
- The immediate purpose of emergency of war is to defend the sovereignty and security of the state whereas the purpose of emergency of subversion is to suppress the civil war or anti-government movement.
Somewhere provisions of double emergency is visible. Emergency is of three kinds which have been discussed earlier. This double emergency is not a class apart. While one type of emergency is in operation declaration of another type of emergency is called double emergency. For example, in India the proclamation of emergency of war made in December, 1971 was still in operation when another proclamation of emergency of subversion was made on 26 June, 1975 on the ground that security of India was threatened by internal disturbances. This double emergency continued for a long time. When Janata Party came to power in March, 1977 replacing the Indian National Congress the emergency of subversion declared in 1975 was withdrawn on March 22, 1977 and the emergency of war was withdrawn on March 27, 1977. The provision of this double emergency was inserted in the constitution by adding clause 9 to article 352.
History of Emergency Power
In Indian Sub-Continent the history of emergency power of the executive traces back to the Government of India Act, 1935. Under article 102 of the Act the Governor-General could declare emergency if in his opinion a grave emergency existed whereby the security of India was threatened whether by war or internal disturbances.’ This provision which is fully alien to the British democratic system was kept candidly as a weapon by the British ruler in India to perpetuate their colonial design. But unfortunately this undemocratic and democracy-destroying provisions continued to have place in the subsequent constitutions in the Sub-Continent although freedom was achieved and countries became independent sovereign states.
Keeping in line with the 1935 Act, the Indian constitution in article 352 provides for emergency provisions to the following effect: “352. Proclamation of Emergency.
(1) If the President is satisfied that grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance beyond the power of a Provincial Government to control, he may issue a proclamation of emergency.”
Following the same line, the 1956 constitution of Pakistan incorporated this emergency provision in article 191. The 1962 Constitution of Pakistan also contained the same provision.
The experience of the application of the emergency provisions in Pakistan was extremely bitter. In its 23 year long history Pakistan witnessed a series of action taken by the ruling elite or sometimes by one individual in the office of the President under the garb of these emergency provisions.1 The two Governor-Generals of Pakistan Golam Mohammad and Iskandar Mirza used this emergency powers to perpetuate their rule and thereby they destroyed political institutions. The emergency which was proclaimed in 1965 due to war with India was not withdrawn till the mass-upsurge forced Ayub Khan in 1969 to leave power whereas the war was over in three weeks. During this continued emergency the political opposition parties were suppressed and hundreds of citizens were put into prison for years together. Almost all the political leaders of Pakistan particularly the prominent ones in the former East Pakistan were extremely critical of this harsh law. The Awami Leaque in particular, was committed since the formation of the United Front in 1954 to repeal not only the black laws but also to remove any scope or prerogative enabling an individual to retard the process of democracy. The experience of Pakistan showed that whenever such power was enshrined in the constitution, however well intentioned the laws might have been, the tendency to use or in most cases misuse them was overwhelmingly predominant. These authoritarian powers were, therefore, considered contradictory to the concept of nourishing a living democracy.
With these experiences in mind, the Awami League Government did not want to leave any scope for such exercise of power by the president. As a result, in the original constitution of Bangladesh no provision was embodied for any emergency situations. The decision was bold, praise-worthy and conducive to the nourishment of living democracy. But sooner than 9 months had passed provisions for emergency were inserted in the constitution by the Second Amendment to the constitution of Bangladesh by the same party which made the constitution.1
Emergency Provisions in the Constitution of Bangladesh
Emergency provisions are dealt with part 9A of the Constitution. The part contains three articles 141A, 141B and 141C.Article l41A says.
“if the president is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof is threatened by war or external aggression or internal disturbance, he may issue a proclamation of emergency”.
Thus the president can declare emergency on three grounds —war, external aggression or internal disturbance. Two types of emergency, therefore, can be declared under the constitution of Bangladesh – emergency of war and emergency of subversion.
When can the President declare Emergency?
Article 141A says that the president can declare emergency whenever he thinks that a grave emergency exists in which the security or economic life of Bangladesh or any art thereof is threatened by war, external aggression or internal disturbance.
Article I 41A(3) says that a proclamation of emergency may be declared before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof..
Again, the proviso of article 141A(l) says that the proclamation of emergency shall require for its validity the prior counter signature ,of the prime minister. Thus virtually the declaration of emergency depends on the wish of the prime minister. Whenever the prime minister advises the president to declare emergency the president is bound to do see. The declaration of emergency, therefore, depends on the subjective satisfaction of the executive and the court cannot question the justifiability of such satisfaction.
The Consequences of a Declaration of Emergency
- 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, the proclamation shall cease to operate at the expiration of 30 days from the date on which parliament first meets after its reinstitution, unless before the expiration of the said period of 30 days a resolution approving the proclamation of emergency has been passed by parliament.
- As soon as emergency is declared fundamental rights mentioned in articles 36, 37, 38,39,40 an42 hall automatically remain suspended a ey will remain suspended so long emergency will be in operation. As a result, the executive may take any measure against these rights and parliament may make any law inconsistent with these rights. As soon as emergency is withdrawn these rights will get their full constitutional status.
- While a proclamation of emergency is in operation, the president may by an order declare the suspension of enforcement of any of the fundamental rights conferred by Part Ill of the constitution.
The Misuse of Emergency Power and its Impact over the
Constitutionalism in Bangladesh.
Firstly, on three grounds emergency can be declared—war external aggression and internal disturbances as to first two grounds there is no objection because both the concepts of ‘war’ and ‘external aggression’ are specifically defined in international law. But the problem of misuse of emergency power lies in the third ground—’ internal disturbance’. The word ‘internal disturbance’ is nowhere defined. It is a vague term and due to its vagueness the executive can easily misuse this emergency power. Emergency may therefore be declared even at a peaceful time on the excuse of internal disturbance though there is no disturbance in reality. In fact, as had been the fact of emergency declaration in Pakistan, the ruling elite uses this power as a ready weapon, due to the vagueness of the term ‘internal disturbance,’ to crash down the opposition and anti-government movement. In the constitutional history of Bangladesh emergency was declared four times. Every time it was declared on the ground of internal disturbance. Three times emergency was declared necessarily for political purpose i.e. to suppress the anti-government movement and to perpetuate rule. The emergency declared for the second time after the death of president Zia was not necessarily for perpetuating rule; it was declared just to face an unexpected situation which might have occurred following Zia’s death. Like in Bangladesh the Indira Gandhi Government in India widely abused this emergency power. To prevent this widespread misuse of emergency power the 44th Amendment of the Constitution of India has inserted the word, ‘armed rebellion’ in place of ‘internal disturbance’. Thus the scope of abuse of emergency power now has come to a minimum one. Likewise, to prevent the abuse of this power in Bangladesh such a word should be inserted in place of the term ‘internal disturbance’.
Secondly, under the provision of the Bangladesh Constitution once an emergency is declared, it can be continued to be in operation for 4 months (120 days) without the approval of parliament. And a resolution for such an approve is o be passed by a simple majority. Both these provisions are undemocratic. Because no mandatory time limit should be given for the continuance of emergency. It should be specifically provided for that once emergency is declared by the executive it shall be laid before parliament as soon as practicable for its approval and if parliament is not in session an emergency session must be summoned within a shorter period like 7 days or 10 days etc. And for such approval the resolution should be passed by two-thirds of the total number of members of parliament so that the executive cannot prolong the continuance of emergency. To be mentioned here that in India once emergency is declared it has to be approved by a resolution of parliament within one month and such a resolution has to be passed by a majority of the total membership of each House and not less than two-thirds of the total number of members present and voting in each House. Otherwise after one month emergency will cease to operate. In both the 1956 and 1962 Constitutions of Pakistan there was no mandatory time limit for the expiry of the proclamation. Under these Constitutions the proclamation was to be laid before parliament as soon as practicable1. Under the present Constitution of Pakistan it is to be laid before parliament within 2 months.
Another important feature of emergency provisions in democratic countries is that when emergency is declared an special or emergency session of parliament must be summoned immediately if it is not in session. During the emergency of the World War lithe British Parliament was in session till the war ended and emergency withdrawn. During the period of emergency parliament should continue to function so that it can directly exercise its control over the actions of the executive. Under the present Constitution of Pakistan joint sitting of parliament has to be summoned by the president to meet within 30 days of the declaration of emergency2. In India there is a provision for special sitting. But in Bangladesh Constitution no such provision was inserted.
Thirdly, another interesting point is that it is not indicated in the Constitution how long emergency will remain in force once parliament approves it. It, therefore, means that if emergency is once approved by parliament, it can continue in operation for an indefinite period. In India the provision is that if emergency is once approved, it shall remain in force not more than 6 months.
Fourthly, it is provided in article 141B that with the proclamation of emergency 6 fundamental rights (Articles 36, 37, 38, 39, 40 & 42) will automatically be suspended. This is undemocratic. Because the proclamation of emergency does not always mean the suspension of fundamental rights; more restriction instead of suspension may be imposed over them. In German Constitution there are provisions for ‘state of tension’ (Article 80a) and ‘state of defence’ (Article liSa) which are equal to emergency of subversion and of war respectively. But it is specifically mentioned in article 19 that in no case may the essence of a basic right (fundamental rights) be encroached upon. Thus even in emergency period there is no provision for suspension of rights. The Constitution of Singapore provides for emergency provision (Articles 150 and 151) but no power -has been given to suspend fundamental rights’. In India the provision as amended by the 44th Amendment is that in time of emergency of subversion no fundamental right can be suspended and in time of emergency of war and external aggression only six fundamental rights as mentioned in Article 19 shall be suspended.
Fifthly, once emergency is declared Article 141C empowers the President to suspend the enforcement of all fundamental rights. If the enforcement of a right is suspended, the right itself becomes meaningless as like as a car without its engine. Emergency of subversion was declared four times in Bangladesh and it is the fact that every time the enforcement of all fundamental rights was declared suspended and they remained suspended for months together. No democratic principle can justify such a situation. There are some rights e.g. right to property etc. which are in no way connected with the emergency of subversion. But still then the enforcement of all rights was kept suspended. It should, therefore, be specifically demarcated in the Constitution as to the enforcement of which particular rights would be suspended during the emergency of war and which during the emergency of subversion.
It is worthy of notice that in India through the 44th Amendment it has been provided in article 359 that even in time of emergency of war or external aggression the enforcement of rights mentioned in Articles 20 and 21 i.e. protection in respect of conviction of offence and protection of life and personal liberty cannot be suspended.
It is also to be mentioned here that in Britain the Queen has no inherent power to declare emergency. Two types emergency are known to the British constitutional system — peace time emergency and war time emergency. For peace time emergency, there is Emergency Powers Act of 1920 and of 1964. Under this law the Queen can declare state of emergency to face any riot or natural calamity. But if emergency is declared —
- i) it must be forthwith communicated to parliament. If parliament is not in sitting, it must be summoned within 5 days.
- ii) it will remain in force only for one month.
iii) so long emergency is in force, regulations may be made by Orders-in-Council for securing the essentials of life to the community. The regulations must be laid before parliament and expire after 7 days unless a resolution is passed by both Houses providing for their continuance.
- iv) the writ of habeas corpus will not be suspended and the Emergency Powers Act expressly prohibits the alteration of any existing procedure in criminal cases or the conferring of any right to punish by fine or imprisonment without trial.
Emergency of war in Britain cannot be declared without the authority of parliament. Parliament makes laws on the basis of which emergency may be declared. Only in time of emergency of war arbitrary arrest and imprisonment by the executive is legalised by Acts of parliament. During the World War I the Defence of the Realm Acts of 1914—1935 and during the World War Ii the Emergency Powers (Defence) Acts of 1939 & 1940 were passed by the British parliament. Under these Acts extensive power was given to the executive for preventive detention. As soon as war ended these laws themselves also ended respectively. But even in such grave emergency the writ of habeas corpus was not suspended. Likewise, in USA the executive cannot declare any emergency without the authority of law made by the Congress.
From the above discussion it becomes clear that the emergency provisions were inserted in the Constitution with an express intention to perpetuate rule and to suppress the opposition. This draconian law has been a permanent stigma on our good Constitution made by the same AL government which piloted the Constitution making. This law is nothing but a necessary weapon to weaken the political institutions in the country; to neglect the supremacy of parliament; to hamper building a normal democratic system. These authoritarian powers are always contradictory to the concept of nourishing a living democracy. Unlike in other constitutional system in the world declaration of emergency in Bangladesh factually means the total negation of fundamental rights, for during emergency period they turn into a meaningless reality. After the freedom of India it was Jawharlal Nehrue, who as Prime Minister for 17 years nurtured the institutions of parliamentary democracy with his vigilant leadership quality. His daughter Prime Minister Indira Gandhi, in 20 months of emergency curbed the very fundamental rights for which her father had fought. It took another man of great stature, Prime Minister Morarji Desai, to restore to the Indian Constitution the values and safeguards for which he, as a young man, had struggled so hard. So that a state of so-called emergency would not be easily repeated in India to destroy further the institutions of democracy Article 352(1) of their Constitution amended to replace ‘internal disturbance’ with ‘armed rebellion’ as possible cause for declaring emergency. To end with the words of a commentator “our institutions are not strong enough to shape leaders. At this new rebirth of democracy this nation looks upon its leaders to create institutions. Special provisions are to be used with care and discretion, and if we cannot do so, perhaps we should not have this provision at all”
In conclusion we can say, attention must be drawn to some legislation which are in flagrant conflict with the basic rules of the International Bill of Rights, and the earlier they are repealed, the better for the prevalence of the Rule of law. The laws are Indemnity ordinance 1975, the Vested Property that which is nothing but the alter ego of the Enemy Properties Ordinance of Ayub’s dictatorial regime, and the Special powers Act 1974.Though there are many provisions in Bangladesh constitution for protecting human rights but these right can not protected by the state. We can see the MP’s, Ministers or VIP’s get special facilities in trial and jail. So we can say all are not equal in the eye of law. President can suspend the fundamental rights in emergency. So we can say fundamental rights it self is not fundamental. We hope parliament and the government should make policy for established human rights and fundamental freedom like that all the people enjoy these rights equally and none can suspend these right in any cause.