A state of emergency is a situation in which a government is empowered to perform actions that it would normally not be permitted to do. A government can declare such a state during a disaster, civil unrest, or armed conflict. Such declarations alert citizens to change their normal behavior and orders government agencies to implement emergency plans. Justitium is its equivalent in Roman law—a concept in which the senate could put forward a final decree (senatus consultum ultimum) that was not subject to dispute.
States of emergency can also be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country’s constitution or basic law. The procedure for and legality of doing so vary by country.
Authorities Without an Emergency Declaration
State officials have existing broad powers to address emergency situations by virtue of the statutory authorities granted to their positions without formally declaring a state of emergency. A state health officer’s existing authorities generally contain a broad grant of authority to, among other things, abate nuisances, investigate the causes of disease, and institute quarantine measures. Depending on the circumstances of an event, these existing powers may be sufficient to adequately respond or allow initial response measures to begin until an emergency is declared. Identifying authorities and capabilities to respond to emergencies without a declaration may be necessary should an event not meet the statutory definition required to trigger an emergency declaration.
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”