The 2006–2008 Bangladeshi political crisis began as a caretaker government (CTG) assumed power at the end of October 2006 following the end of term of the Bangladesh National Party administration. Under the constitution, the CTG manages the government during the interim 90-day period and parliamentary elections. Political conflict began with the appointment of a Chief Advisor, a role which devolved to the President, Dr. Iajuddin Ahmed, because of the failure by the major parties to agree on a candidate from among five considered. The interim period was marked from the beginning by violent protests initiated by the Awami League, with 40 people killed and hundreds injured in the first month. The Bangladesh National Party had its own complaints about the process and the opposition.
After extensive negotiations as the CTG tried to bring all the political parties to the table and had agreement for a scheduled election, on 3 January 2007, the Awami League said that it and the smaller parties of its Grand Alliance would boycott the general election to be held on 22 January 2007. They complained about the lack of an accurate voters list. More widespread violence and political rioting followed.
The “bitter rivalry” between the Awami League and BNP has affected the nation for the last two decades, although their political positions are not so far apart. The parties are led by women who represent assassinated leaders: Sheikh Hasina, the eldest daughter of Sheikh Mujibur Rahman, since 1981 has been head of the Awami League. Khaleda Zia, the head of the BNP, is the widow of the popular Ziaur Rahman, who as President founded the party in the late 1970s; he was assassinated in 1981.
On 11 January 2007 the military intervened to support the caretaker government of President Iajuddin, who had already declared a state of emergency. He accepted the resignations of most of his advisors. He also resigned as Chief Advisor, being replaced on 12 January by Fakhruddin Ahmed, who had worked for the World Bank. The government suppressed political activity to try to restore stability. In the spring, it started to work on corruption cases, charging 160 persons, including both party leaders, other politicians, civil servants and businessmen for actions going back to the late 1990s. The nation has had an extreme reputation for corruption under both the major political parties. In addition, some observers speculated that the caretaker government was trying to force both party leaders into exile to stabilise the country and reduce the political polarisation. The CTG also charged Sheikh Hasina for alleged murder for the deaths of four persons during protests in the fall of 2006. The High Court held that Khaleda Zia could not be charged under emergency law for events that happened prior to the emergency but on appeal, in September 2007 the Bangladesh Supreme Court ruled that the Zia trial should proceed. Near the end of 2008, the caretaker government moved to restore democratic government and held elections in December. The Awami League and Grand Alliance won by a two-thirds majority, and formed a government in 2009.
The expression ‘state of emergency’ is being used in a generic sense to embrace the central concept of a variety of legal terms in different legal systems to identify an exceptional situation of public danger permitting the exercise of crisis powers in a particular state. This terminology would therefore cover the status of different regimes known as states of emergency, of siege, of alert, of prevention of internal war, of suspension of guarantees, of martial law, of special powers etc.[1] The expression would include, for instance, what is described as martial rule (which has a variety of pseudonyms, the most important being martial law) as it is known in the common law countries of the erstwhile British Empire and the USA, as well as the state of siege, as it is known in civil law countries of continental Europe and Latin America.
The justification for the proclamation of emergency power during a grave emergency is provided by the maxim “SALUS POPALI SUPREMA LEX” -The welfare of the people is the paramount law.[2] It is generally assumed that the rights which citizens in normal time enjoy should, in the time of emergency yield to the maxim ‘salus popali suprema lex’. Relying on the “principle of necessity” encompassed by this maxim, court in common law countries have consistently been prepared to condone draconic executive action during the time of national emergency. [3] Although the constitutional system of common law would have long recognized the maxim “salus popali suprema lex”, the tendency to entrench emergency powers in constitution is recent.
One of the primary reasons for the incorporation of emergency power in constitution is to affect, the operation of constitution during an emergency. The thrust of the argument in this regard has been that the existence of fundamental rights ought not to be permitted to imperial the safety of the state. A second reason for defined provisions on emergency powers is a concern to restrict judicial creativity in the determination of the extent to which such power can be exercised. The general objective of the constitutional emergency power is to bring about a re-allocation of state power in a manner inconsistent with the constitutional limitations which ordinary prevail.
Historical background of emergency provisions in Bangladesh Constitution:
In Indian sub- continent the history of declaring a state of emergency came through the Government of India Act 1935. Under article 102 of the Act the Governor General could declare emergency if, in his opinion, a grave situation existed whereby the security of India was threatened whether by war or internal disturbances.
In conformity with the aforesaid article Pakistan introduced the provision of state of emergency in article 191 of the constitution (1956) and also included this provision in the constitution of 1962. The original Constitution of Bangladesh did not include emergency provisions. Emergency provisions were inserted in the Constitution of Bangladesh in 1973.
Concept of emergency:
Though many countries incorporated emergency provisions in their Constitutions, none has exactly defined emergency. Normally emergency means an unexpected occurrence requiring immediate action.
Emergency means one kind of unexpected occurrence when immediate action becomes necessary, because the security of a state is more important than the liberty of any individual. As lord Atkinson has said in R.V Halliday case- “However precious the personal liberty of the subject be, there is something for which it may be, to some extent, sacrificed by legal enactment, on account of national success in the war, or escape from national plunder or enslavement”.
Like the written constitution of most countries, the Constitution of the People Republic of Bangladesh also contains the provision for proclamation of emergency, but nowhere it is exactly defined that what a state of emergency means.
Lord Dunedin in the case of Bhagat Singh vs. King Emperor expressed his opinion thus,
“A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action.”
Stiphen P. Marks has said, “Emergency is a situation which results from a temporary condition, which place institution of the state in a precarious position, which leads the authorities to feel justified in suspending the application of certain principles”.
In general sense, the expression ‘state of emergency’ means an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.
In the legal sense, in order to be defined as an emergency, the incident should be one of the following:
Immediately threatening to life, health and property or environment. Have already caused loss of life, health detriments, property damage or environmental damage. Have a high probability of escalating to cause immediate danger to life, health, property or environment.
From the viewpoints of constitutional law, “the concept of emergency means the suspension of and restriction over certain fundament 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.”
In broad sense, a state of emergency is a governmental declaration that may suspend certain normal functions of government or may work to alert citizens to alter their normal behaviors or to order government agencies to implement their emergency preparedness plans. It can also be used as the rationale for suspending civil liberties; such declarations come during time of natural disaster or during periods of civil unrest or a declaration of war; dictatorial regimes often declare a state of emergency that is prolonged indefinitely as long as the regime lasts.
Classification of Emergencies:
Emergencies can be classified from different dimensions. On the basis of its nature emergency can be divided into three classes. These are follows: [8]
- a) Emergency of War,
- b) Emergency of Subversion, and
- c) Economic or Financial Emergency.
- a) Emergency of War
For War or external aggression, when emergency is declared, it is called emergency of war. For instance, India declared emergency of war first in October 1962 when China launched a massive attack on India’s North Eastern border and, for the second time in December 1971 when Pakistan attacked India, under article 352 on the plea of external aggression.
- b) Emergency of Subversion
If any state declares emergency for internal disturbances within the state to suppress civil war, or anti-government movement, or riot, or to face natural disaster like storm, earthquake, volcanic eruption, is called Emergency of Subversion. For example, in our country, emergency was declared five times due to internal disturbance. Recently in 11th March in a state of emergency has been declared due to a massive earthquake and tsunami near the Japanese island Honshu; Richter scale measure: 8.9.
- c) Economic or Financial Emergency
The emergency declared with a view to overcoming a situation in which the economy of the state is about to breakdown is called economic emergency. For example, Roosevelt (USA) adopted New Deal Policy to overcome worldwide financial depression under National Industrial Recovery Act 1930. For another example, article 360 of Indian constitution and article 235 of Pakistan constitution specifically provided the provision of Economic or financial emergency. The Pakistan constitution also provides for the National and Partial emergency.
Bangladesh: Provisions of Emergencies:
Emergency provision under Bangladesh constitution
Articles 141A, 141B and 141C of part 9A of our constitution deal with emergency provisions. But Article 141A (1) specifically deals with declaration of emergency.
Article 141 A (1) states- “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”.
(a) A Proclamation of Emergency may be revoked by a subsequent Proclamation
(b) Shall be laid before parliament
(c) 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
(d) If any such Proclamation is issued at the time when the 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 the new Parliament first meet, unless it approves continuation of the emergency.
According to Article 141 B- During emergency, article 36, 37, 38, 39, 40 and 42 shall not restrict the state to make any law or to take any executive action which is contrary to Part III of this constitution.
Any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except in respect of things done or omitted to be done before the law so ceases to have effect.
Article 141C says, when emergency is declared the President may by an order suspend the right to move the High Court for enforcement of any fundamental rights and this order may extend to the whole of Bangladesh or any part thereof.
Impact of Emergency on Administration: Bangladesh perspective:
Under Article 141A of the constitution of the People’s Republic of Bangladesh, if the president declare a state of emergency to tackle an unexpected occurrence, he can suspend the provisions of certain Articles (Under Articles 141B) and the enforcement of Fundamental rights (Under Article 141c) as contained in the constitution. The term ‘suspension of Fundamental rights’ means that the enjoyment of those certain fundamental rights are remained restricted during emergency period. No citizen of the country can demand to get the benefit of that right until the proclamation of emergency is revoked by a subsequent proclamation.
So the proclamation of emergency bear with it two effects:
(a) Suspension of provisions of certain Articles during emergencies:
As the constitution leaves the power to declare a proclamation of emergency to the president, if he declares so, certain Articles of the Constitution of Bangladesh will be suspended automatically. And this suspension will continue till the proclamation of emergency is in force. In this regard, Article 141 B of the constitution says that
“While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the state to make any law or to take any executive action which the state would, but for the provisions contained in Part III of the constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.”
The above mentioned article deals with the following matter-
Article- 36, Freedom of movement:
Subject to any reasonable restrictions 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, Freedom of assembly:
Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.
Article- 38, Freedom of association:
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;
Article- 39, Freedom of thought and conscience, and of speech:
(1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of 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 of freedom of speech and expression; and freedom of the press, are guaranteed
Article- 40, Freedom of profession or occupation:
Subject to any restrictions imposed by law, every citizen possessing such qualifications, 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, Rights to property:
(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. 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
(2) 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. Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalization or acquisition of any property without compensation.
As the Article 141B empowered the executive to take any action, they utilize their power in taking action even in violating the fundamental right as contained in the constitution and without showing any humanity to the citizens of the country. The emergency Government mostly takes any action to oppress the opposite party and to control the anti-government movement.
At the same time the parliament can make any law which is inconsistent with the Fundamental right as contained in part III of the constitution. Thus the Article 26 which limits the state power to make any law inconsistent with fundamental rights is violated. The parliament makes such law only to enable their government to perpetuate the rule and to protest the opposite party.
The power of the executive and parliament given by Article 141B will continue until the proclamation of emergency cease to operate.
(b) Suspension of enforcement of fundamental rights during emergency:
As soon as emergency is declared, the president in consultation of prime minister by order can declare the suspension of enforcement of any of the fundamental rights conferred by part III of the constitution. In this regard Article 141C of the constitution says that.
- “While a Proclamation of Emergency is in operation, the president may, on the written advice of the prime minister, by order, declare that the right to move any court for the enforcement of such of the rights conferred by Part III of the constitution as may be specified in the order, and all proceedings pending in any court for the enforcement of the right so specified, 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.
- An order made under this article may extend to the whole of Bangladesh or any part thereof.
- Every order made under this article shall, as soon as may be, be laid before the parliament.”
Thus the Article 141c violates the Articles 44 of the constitution which deals with the enforcement of fundamental rights. So if any person’s rights are violated by any of those articles, (Article 141B and 141c) he, on an application to the high count Division, gets no remedy under Article 102 (I) of the constitution. It the case of Kripa Shindu Hazrav vs. The state C J Badrul Haider Chowdhury says that
“During emergency when the fundamental rights are suspended and the right to move any court for the enforcement of the same has been taken away, neither article 102 of the constitution nor section 491 of the CrPC is available to seek the enforcement of these rights.” [9]
As soon as, proclamation of emergency is withdrawn, all the constitution rights which are suspended during emergency situation get their full constitutional status.
Constitutional provisions:
Under clause 1 of Article 102 the HCD may issue directive or order against ‘any person or authority including any person performing any function in connection with the affairs of the Republic’ for the enforcement of the fundamental rights guaranteed in Part III of the Constitution. Right to move HCD under Article 102(1) is itself a fundamental right [Article 44(1)]. Although writ jurisdiction is an equitable jurisdiction; however, power of the HCD under clause 1 is not a discretionary power rather it is obligatory for the Court to grant necessary relief to the aggrieved person.
Writ jurisdiction of High Court Division during emergency period:
Clause 2 deals with the rights, which are not fundamental in nature as mentioned in Part III of the Constitution. If the High Court Division is ‘satisfied that no other equally efficacious remedy is provided by law’ on an application by the ‘person aggrieved’, under clause 2(a) (i) of the Article the Court may prohibit ‘a person performing any function in connection with the affairs of the Republic or of a local authority’ from taking any illegal steps (writ of prohibition) or coerce to do something which is ‘required by law to do’ (writ of mandamus). Writ of prohibition stops the executives from taking any steps beyond the mandate they were given (negative sense) whereas writ of mandamus orders the executives to do something what they were required to carry out (positive sense).
Human rights violations become rampant in our country which is not only economically backward but also politically unstable. Now I present a picture of violation of human rights during the five state of emergency which Bangladesh had experienced.
Emergency power Rules and Torture:
During those state of emergency, the president made special Emergency power Rules containing several injurious sections to rule the country. These laws were contrary to a range of international human rights standards and norms and as these sections of laws were repeatedly abused by law enforcement agencies, the human rights of arrested persons were violated by such agencies in the form of torture and verbal and physical abuse. Suspected people, who were likely to commit any anti-Government act, were picked up by the law enforcement agencies; detained, and tortured, while they were in custody or during remand in order to extract evidence to use against them or others.
Extra judicial killings:
During those state of emergency, extrajudicial killings continued throughout the valid period of Emergency. Between 12 January 2007 and 11 February 2008, 184 people have been extra judicially killed by Bangladeshi law enforcement agencies. Among them a total of 69 people died while in custody of law enforcement agencies. Of the 184 people extra-judicially killed, it was reported that 131 people were killed in so-called “crossfire”/encounter/gunfight/shootout , 29 people were tortured to death, 13 were shot dead in circumstances other than crossfire”, encounter, gunfight, shootout and there were 11 deaths in other circumstances.
Custodial deaths:
During the state of emergency the custodial death become a common phenomenon. Since the State of Emergency proclaimed on 11 January 2007 a total of 92 people died in jail custody.
Bangladesh has ratified the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). However, there is as yet no law that prohibits and criminalizes the practice, as well as no means to lodge a complaint. The Bangladesh Government at the time of ratification assured that it would apply article 14(1) of the UN Convention stipulating the right to redress, compensation and rehabilitation for victims in accordance with existing laws. However, no step was ever taken to pass laws for redress, compensation and rehabilitation. The practice of torture and custodial deaths has never been specifically criminalized. Above all, the government has always protected the perpetrators by granting immunity from future prosecution. Thus it seems that torture and extrajudicial killings are deliberate government policy in Bangladesh, in spite of Bangladesh being a member of the UN Human Rights Council as well as a party to key international human rights covenants such as the CAT. Bangladesh is also in breach of its international law obligation in failing to submit any periodic reports to the CAT Committee.
Criteria essential for valid derogation of human rights during emergency period:
Certain human rights treaties envisage a system of derogations allowing states parties to adjust their obligations temporarily under the treaty in exceptional circumstances, i.e. in times of public emergency threatening the life of nation. Examples of emergency situation include, but are not limited to, armed conflicts, civil and violent unrest, environmental and natural disasters, etc.
Although, exceptional measures are permissible, their validity is subject to the fulfillment of a number of requirements set by the treaty law, such as qualifications of severity, temporariness, proclamation and notification, legality, proportionality, consistency with other obligations under international law, non-discrimination, and lastly, non-derogability of certain rights recognized as such in the relevant treaty. In essence derogation clauses express the concept that states of emergency do not create a legal vacuum. The derogation regime aims at striking a balance between the protection of individual human rights and the protection of national needs in times of crisis by placing reasonable limits on emergency powers. [10]
Derogation clauses are provided for in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the European Convention on Human Rights (ECHR) and Article 27 of the American Convention of Human Rights (ACHR). Therefore, different states may be subject to different emergency derogation regimes, depending on the states’ adherence to these treaties as the list of non-derogable rights may vary from treaty to treaty.
In addition to texts of treaty law, the most important interpretations of how derogations may or may not be undertaken are provided by the case law of treaty bodies as well as the interpretation adopted by Human Rights Committee (the treaty’s supervisory body, hereinafter referred to as HRC) in General Comment 29. As a subsidiary source, it may also be noted that several sets of standards for states of emergency have been elaborated by expert meetings, these texts are not in themselves legally binding but they offer valuable recommendations on interpretations of existing derogation provisions in legally binding treaties and the interpretative texts are directed to national authorities and international monitoring bodies. [11]
(a) Existence of a public emergency that threatens the life of the nation:
The existence of a situation amounting to public emergency is a fundamental requirement for triggering the derogation clause. Absent specific definition of ‘public emergency’ in the ICCPR and ECHR, interpretations of its meaning and scope were provided by the HRC and jurisprudence of the ECHR. According to HRC ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation’. Unlike the regional conventions, the ICCPR does not make reference to war, yet civil war and other cases of serious, violent internal unrest are by for the reasons most asserted for declaring a state of emergency.[12] An armed conflict, however, does not automatically satisfy the criteria a derogation should meet as there is also a qualitative measure of severity that demands that derogations are permissible ‘only if and to the extent that the situation constitutes a threat to the life of the nation’.
Second, in response to an argument that ‘terrorism’ could not conceivably be a threat to the UK’s institutions or the UK’s existence as a civil community, the Court held that it had been prepared to take into account a much broader range of factors in determining the nature and degree of the actual and imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperiled”.[13] The existence of the ‘public emergency’ should be proved by the state derogating from its obligations. Although, the ECHR has of granted a ‘margin of appreciation’ to states in determining whether a ‘public emergency’ exists, nonetheless the Court held that the discretion of states is ‘accompanied by a European supervision’.[14] In contrast the HRC has made no such reference to a margin of appreciation to that in Landinelli Silva v Uruguay, found the State Party to be ‘duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the Committee’s function ‘to see to it that States parties live up to their commitments under the Covenant’.
(b) The requirements of proclamation and notification:
The requirements of proclamation and notification are not ‘simply technical and dispensable formalities’ as both procedural guarantees are important for the purposes of national and international supervision. The ICCPR requires an official proclamation of the existence of a public emergency, which is an essential technical prerequisite for the application of derogation. General Comment 29 specifies that states ‘must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’. The duty to proclaim should be distinguished from the duty to notify under Article 4(3) of ICCPR and Article 15(3) of ECHR. The duty to proclaim the state of emergency is designed to prevent arbitrary or de facto derogation and to obligate derogating states “to act openly from the outset of the emergency and to delegitimize after-the-fact justifications for violation of fundamental rights” [15] and also serves a domestic supervision as opposed to international which is tied to the duty of notification. Although, the ECHR does not contain the requirements of proclamation.
The notification requirement serves as a guarantee for supervision by international bodies of the legality of the establishment of a state of emergency. States parties to the Covenant are bound to inform the other parties immediately. Notwithstanding the silence of the European Convention regarding the issue, in the Lawless case, the European Court found an implicit requirement that notification be “without delay”.
Notification procedures impose the duty on the state to provide information about the ‘provisions from which it has derogated’ and the states parties are to include in their reports “sufficient and precise information about their law and practice in the field of emergency powers”. To this point, the approach of the supervisory bodies in determining whether violation of the notification requirement renders derogation invalid has not been consistent. The HRC, however in a number of individual applications under the first Optional Protocol adopted an approach of declining to recognize the legitimacy of particular invasions of protected rights in the absence of “submissions of fact or law to justify such derogation”.[16]
(c) Measures strictly required by the exigencies of situation: the principle of proportionality:
Derogation measures must be limited ‘to the extent strictly required by the exigencies of the situation’, i.e. they need to be proportionate. The requirement of proportionality constitutes one of the substantive limits to the emergency powers ‘requiring specific scrutiny and specific justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation’.[17]
The HRC highlights three factors in proportionality: severity, duration and geographic scope. The HRC also submits that restrictions that are already allowed with the treaty provisions on certain freedoms, e.g., to freedom of movement or freedom of assembly are ‘generally sufficient’ to cover situations of ‘mass demonstration including instances of violence, or a major industrial accident’. Further, the HRC is of view that ‘no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party’. The HRC confirms that the legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.
States parties to the ICCPR are required to provide careful justification, not only for their decision to proclaim a state of emergency, but also for any specific measures based on such a proclamation. By contrast, the European Court of Human Rights allows states a ‘wide margin of appreciation’ in the context of proportionality as well. The Court in Ireland v. UK held that it falls to the national authorities to decide ‘how far it is necessary to go in attempting to overcome emergency’ and confirmed the approach in Brannigan and McBride v. UK granting discretion to the state to determine ‘the nature and the scope of derogations necessary’ the existence of an emergency.
(d) The Principle of Consistency:
Derogation measure should not be inconsistent with other obligation of the derogating state under international law. The principle of consistency is another safeguard of the derogation provision which is based ‘on the principles of legality and the rule of law inherent in the Covenant as a whole’. The expression ‘other obligations under international law’ refers to customary international law and to international treaty law, most importantly to other human rights conventions and to treaties in the field of international humanitarian law including the minimum guarantees found in Common Article 3 to 1949 Geneva Conventions, and in the two 1979 Additional Protocols. At this point it is important to underline that ‘there is no concept of derogation in humanitarian law’ as such since international humanitarian law is designed in essence to operate in ‘emergency’ situations, hence, the obligations stemming from humanitarian law treaties generally cannot be derogated from.
Other obligations also include the 1951 Convention on the Status of Refugees and its 1967 Protocol, the 1989 Convention on the Rights of the Child, ILO Conventions on Forced Labour, Freedom of Association and Equal Rights of Workers. In addition, the Human Rights Committee has proposed examples of ‘other obligations’ as including the Rome Statute of the International Criminal Court, and certain rules of customary international law, such as the prohibition of refoulement. Article 5 (1) of the ICCPR states that ‘there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent’.
[Impact on Enhancement of power of Executive
The division of powers among the organs of the State is central to the idea of the separation of powers. The executive is the part of State that has sole authority for the daily administration of the State. The executive branch executes the law. The power of the executive in a democratic State is exercised within a well-balanced limit. But, this power of the executive in Bangladesh, like other countries, increases during emergency. At that time the executive can make any rules and take any actions. The rules so made and actions so taken can’t be challenged on the ground that they are inconsistent with fundamental rights. This power of the executive is completely against the balance of power among the judiciary, executive and legislature. This type of exercising of power help diminish the constitutional upholding of rights and thereby the corresponding duties as well.
Impact on Democracy
Democracy is a form of government in which all eligible citizens have an equal say in the decisions that affect their lives. Democracy allows eligible citizens to participate equally, either directly or through elected representatives, in the development and creation of laws. It encompasses social, economic and cultural conditions that enable the free and equal practice of political self- determination. But this freedom is encroached upon at the time of emergency. So if democracy is taken in a holistic approach then it can be said that, emergency is antithesis of democracy. In Bangladesh, as in other countries, democracy is either regulated or destroyed at the time of emergency.
Impact of Emergency on the power of Parliament
The legislative power is vested in the Parliament under Article 65 of the Constitution. Normally, Parliament can’t make any law inconsistent with fundamental rights. But during emergency, Parliament can make any law in violation of fundamental rights. The law so made can’t be called in question in any court. This is because at the time of emergency such power of the Parliament is valid which can’t be exercised when the emergency does not continue or at the normal circumstances. Thus, the Parliament of Bangladesh, like other countries, exercises an unfettered and borderless power in making laws at the time of emergency without any fear of judicial interference.][18]
Loopholes of Emergency provisions in Bangladesh Constitution:
[For the purpose of preventing the abuse of emergency such a term as ‘armed rebellion’ or a specific definition of internal disturbance should be inserted in our constitution.
The system of continuing emergency beyond four months (120 days) after its declaration without approval of parliament is an irregular one.
There is no provision in our constitution for summoning a special or emergency session of the parliament to monitor and control the emergency situation. In contrary, Pakistan has the provision in their constitution for joint sitting of parliament to be summoned by the President within 30 days of the declaration of emergency. In India also there is provision for special sitting of the parliament in the context of emergency.
In case of practices in western countries like the UK, there is also provision for joint sitting of parliament. During the emergency at the time of the Second World War the British Parliament called a special session of both the Houses of parliament and the session continued until the war ended. In our constitution, such a provision should be inserted as early as possible to stop the mishandling of emergency.
Another important shortcoming of our constitution is that if emergency is once declared and it is approved by the parliament, the executive can continue it according to its whim. So it is an undemocratic process. For stopping the misuse of this measure we should insert a fixed time like 3-4 months and, after expiry of this period, the emergency shall need further approval. And after such an approval the emergency shall remain in force for a further period to be stipulated in the approval.
According to article 141B, six fundamental rights shall stand automatically suspended after the declaration of emergency. The 44th Amendment of Indian Constitution provides that at the time of war or external aggression the six fundamental rights will remain suspended, but at the time of internal disturbance these will remain in force. Such provisions as these should be introduced in the Constitution of Bangladesh.
Another minus point of our constitution is that according to the article 141C, the President has the right to suspend other fundamental rights also.
In India, through the 44th amendment of article 359, the suspension of rights mentioned in article 20 and 21 has been stopped. So it should be specifically pointed out in our constitution which particular rights would be suspended during the emergency of war and which during the emergency of internal disturbance.
The Supreme Court can order the payment of compensatory cost to the person arrested illegally or intentionally at the time of emergency as in the case of Bilkis Akter Hossain vs. Govt. of Bangladesh 1997, anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.][19]
Conclusions:
In emergency situations, States are faced with conflicting obligations- on the one hand the commitment of protection of individual rights of its citizen and on the other hand the protection of the existence of the State itself in extreme conditions, or in less severe conditions the safeguarding of public order and safety. It is widely recognized that the worst human rights violations occur in cases where individual rights can be curtailed on the excuse that the security of State needs such curtailment.
[The validity of the proclamation of emergency can be challenged on the ground that there was no satisfaction at all or that it was wholly malafide or based on totally irrelevant or extraneous grounds.][20]
[On the termination of the state of emergency the fundamental rights that have been suspended must be automatically resorted and opportunity must be given to all persons, who have grievances and allegations of abuses of human rights, to go to court.
It may be mentioned here that Bangladesh has ratified the International Covenant on Economic, Social and Cultural Rights, 1966; the International Covenant on Civil and Political Rights, 1966. As such, it is generally convincing that such ratification will ensure to a certain extent that the country, Bangladesh, where frequent changes of government occur, will not be able, on any plea whatsoever, to circumvent or take away the basic rights of its citizens.][21]
Emergency provisions were inserted in the Constitution of Bangladesh in 1973 thinking to protect the State in time of war or external aggression or internal disturbance or to protect the security or economic life of Bangladesh. Later on these provisions have been misused. Indeed, emergency provisions have both good and bad sides. If we use such provisions for which these provisions were inserted in our Constitution the purpose will be fulfilled.