The presence of the fundamental rights in the Constitution (Part III) declares the fact that it is the welfare and desires of the people- illustrate and explain.
Constitution is the whole system of government of a country, the collection of rules which establish and regulate or govern the Government, as defined by Professor KC (1966). In our national life, the Constitution is the single most important document. It depicts the fundamental objectives of the state and declares the fundamental rights guaranteed to the people. It also states the rules governing the principal functionaries of the state. It is the embodiment of the supreme will of the sovereign people. One might think that sovereignty lies with the government of a state but in reality it lies with the people of the state. It is the people that make a nation, and it is for the people that the system should work for.
In the Constitution of Bangladesh Article 7(2) states that the Constitution is the solemn expression of the will of the people. The presence of the fundamental rights in the Constitution (Part III) declares the fact that it is the welfare and desires of the people that matters the most and no action could be taken by the government in derogation of such rights. To that extent, the power of Parliament and the executive was limited. However, certain laws were set apart which could not be challenged on the grounds of violation of fundament rights under some stated situations. Restricting these rights in extreme conditions may actually result in greater benefit for the citizens, thus the Constitution also provides articles regarding suspension of fundamental rights during a period of emergency rule.
Constitution is the Solemn Expression of the Will of the People
The great U.S. president Abraham Lincoln (1809-1865) defined democracy as, “Government of the people, by the people, for the people.” A government that dedicates its effort to the betterment and successes of its freedom loving people and not make misuse of its powers. It is also a government that should strive to work for the justice and needs of people. It is the people that make a nation, and it is for the people that the system should work for. Benjamin Franklin expressed the concept when he wrote, “In free governments, the rulers are the servants and the people their superiors and sovereigns.”
When writing a country’s Constitution, one thing that should always be kept in mind is the welfare, better future and safety of the people of the nation. Bangladesh being a democratic country thus keeps the provision in the Constitution under article 7 which declares the that all powers in the republic belong to the people, and their exercise on behalf of the people shall be affects only under, and by the authority of the Constitution and further that the Constitution, as the solemn expression of the will of the people, is the supreme law of the republic, and if any other law is inconsistent with this Constitution that law shall, to the extent of the inconsistency be void.
Constitution is the visual form of peoples’ desires and their willingness of getting a better, secured and peaceful life. Even before the Constitution was established, the law enforcers used to take people’s view about a peaceful society and then create the laws. Until and unless the written laws are accepted by the people of the state, it will not be accepted as a Constitution. Also people have to follow the rules of the Constitution and the rights and responsibilities of people are written in the Constitution.
Provisions of Fundamental Rights Stated in the Constitution
Bangladesh being a democratic country its Constitution enumerates a host of rights called the fundamental rights. No law could be made which is inconsistent with these rights and no actions could be taken by the government in derogation of such rights. Thus article 26 and 44 makes a strong impact on enforcement of these fundamental rights. Part III of the Constitution is especially dedicated to the fundamental rights of the citizens.
Part III of the Constitution states that every citizen of Bangladesh is equal before law and is entitled to the equal protection of law. There should be no discrimination based on religion, race, caste, sex or place of birth, each and every individual should have equal opportunity in public employment and the prohibition of forced labor. Every citizen can enjoy the protection of the law and no person shall be deprived of life or personal liberty save in accordance with law. Besides this there are many more right gifted to the citizens in Part III and some also included in part II of the Constitution.
Discussed below are certain rights mention in part III of the Constitution that can become void or nullified on the basis of some especial provision during the time of emergency ruling. According to article 141B certain fundamental rights like mentioned in article 36, 37, 38, 39, 40, 42 becomes void when the security of the state is at risk especially during emergency ruling. Below are briefly discussed some of those fundamental rights:
Article 36. Freedom of movement: right of locomotion is an important part of liberty. The right of a person to move freely, to reside where he will, and to work where he will is connected with his livelihood and pursuit of happiness. This right is protected by the due process clause of article 31.
Article 37. Freedom of assembly: this article provides the citizen with the right to assemble and participate in public meetings and procession peacefully and without armed as a part of their freedom of speech. However, this right can be restricted only by law imposed in the interest of public order or health.
Article 38. Freedom of association: the very existence of democracy is dependent on the right to form associations. Without that right, there cannot be any political party which is an essential institution of democracy. Restriction may be imposed on this right during the time of emergency ruling.
Article 39. Freedom of thought and conscience, and of speech: The freedom thus consists of the right to express freely one’s conviction and opinion on any matter orally or by writing. . Thus freedom of speech and expression is essential for the development and functioning of democracy. Without freedom of speech there cannot be any democracy.Freedom of speech and expression is perhaps one of the most exploited right we have, as a result of this, the right is subjected to legal restrictions.
Article 40. Freedom of profession or occupation: this right allows individuals to select any lawful profession, occupation, trade or business according to their qualification, subjected to any restriction by law. Restriction may be imposed on this right during the time of emergency ruling.
Article 42. Rights to property: subject to any restriction imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property. This right cannot be affected by administrative order. The article further provides that no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
Rights Enforcing the Fundamental Rights of People
Fundamental rights has also been enforced in the Constitution of Bangladesh under Article – 44 (Enforcement of fundamental rights), 26 (1) (Laws inconsistent with the fundamental rights to be void) and finally article – 102(1). Article 26 states that all laws that are inconsistent with the fundamental rights provided in part III shall become void on the commencement of the Constitution and state shall not make any law inconsistent with those rights. Article 44(1) provides that the right to move the Supreme Court for the enforcement of any of the fundamental rights is itself a fundamental right.
Article 44(2) enables parliament to confer the jurisdiction to enforce fundamental rights on any other court, but such conferment cannot be in derogation of the Supreme Court under Article 102(1). The articles provide:
Article – 44. (1) The right to move the High Court Division in accordance with [clause (1)] of article 102, for the enforcement of the rights conferred by this Part is guaranteed.
(2) Without prejudice to the powers of the High Court Division under Article – 102, Parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
Article – 26. (1) All existing law inconsistent with the provision of this part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
Article – 102. (1) High Court Division has the power to issue orders and directions at the time of violation of fundamental rights.
Restrictions of Fundamental Rights during the Period of Emergency Rule
The Constitution of the People’s Republic of Bangladesh under the articles 141A gives certain power to the President of the nation with prior counter signature of the Prime Minister to issue proclamation of emergency if he/she is satisfied that a grave emergency exists in which either the security or the economic life of the country or any part thereof is threatened by (a) war or external aggression or (b) internal disturbance. However, counter signature is not necessary when care-taker government operates.
According to article 141B the issuance of the proclamation shall automatically suspend the operation of fundamental rights guaranteed by articles 36, 37, 38, 39, 40, 42 and a law made during the continuance of the emergency shall not be void because of inconsistency with the provisions of these articles for so long as the proclamation remains operative. Apart from this, the President, with the written advice of the prime minister, may by order suspend the enforcement of any or all of the other fundamental rights guaranteed in Part III of the Constitution and such a suspension shall remain in force for so long as the proclamation remains in force.
The proclamation of emergency may be revoked by the President by a subsequent proclamation. The proclamation of emergency must be laid before the parliament and it shall cease to be operative at the expiration of 120 days unless before the expiration is approved by parliament by a resolution.For issuance of the proclamation actual occurrence of armed conflict is not necessary for war situation may exist even before actual armed hostility and may continue even after armed hostility has stopped, but in case of proclamation of emergency for internal disturbance, there must be actual disturbance which threatens the security or economic life of Bangladesh.
State of emergency in Bangladesh During 1/11
On 11 January 2007, the President of Bangladesh Iazuddin Ahmed announced a state of emergency, and within a matter of 24 hours a group of bureaucrats and retired military generals sat in power in the name of caretaker government in Bangladesh. The so-called reason for this takeover was the violence and instability out breaking the country was facing due to clashes between the two strong parties BNP and Awami league. Within the time frame of one year between October 2006 to January 2007 there were many fatalities and casualties due to the hostility, while transportation and other strikes made the whole capital immobile.
The state of emergency during 1/11 prohibited all political association, as well as basic civil liberties. Moreover, military officials quickly started to come into power; given this power the military and other law enforcement officials misused this power to issue arrest without warrants. This had led to significant rise in arrests, torture and ill treatment of ordinary citizens, from human rights activists and professionals, to shopkeepers and agricultural workers. Most persons mainly suffered under the 1974 Special Powers Act, which gives the power to police to propose to the district commissioner that any person can be held for a certain amount of time.
According to article 141A of the Constitution of Bangladesh, when the country’s security or economic life is at risk, or any part thereof, is threatened by war or external aggression or internal disturbance emergency ruling of state can be proclaimed by the president. Such a state shall an expiration period of one hundred and twenty days, unless before an extension to this time period has been approved from the parliament. Bangladesh’s emergency ruling of state should therefore have ended within 4 months by April. Moreover, according to the Constitution general elections need to hold within 90 days after the parliament is dissolved, however this was also not fulfilled.
Stated in the Constitution is that during the time of emergency ruling of state certain fundamental rights should become void for the time being. However, the legal rights of citizens were not suspended during the emergency period as declared by the High Court Division of the Supreme Court and concluded that form February 26 it will begin to hear individual habeas corpus cases.
Personal Opinions (Conclusion)
If actually the Constitution is the solemn expression of the will of the people and if actually the Constitution of Bangladesh is made for the people then the farmers of the Constitution really need to think about repealing the restriction of fundamental rights during the emergency provision. It seems very much unfair, offensive and inequitable for the general masses of people that certain important fundamental rights, such as the freedom to movement, assembly, association, speech and expression, occupation and property are not enforceable during the state of emergency. Bangladesh being a democratic country in which the wants and the desires of the people should be given supreme authority; but presence of certain articles in the Constitution like article 141A, 141B, 141C are actually going against the fundamental principle of the Constitution. On the other hand certain articles like art. 44, 26 and 102 that are dedicated to enforce fundamental rights are also being overtaken or nullified based only on this one article. According to a ruling given in the Pakistani Supreme Court stating –
“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 statement above ensures that the most important rights are the fundamental rights which are needed for a true democracy, and restricting it can itself be an offence. Thus in order to provide a natural justice to the people of the country the emergency provision restricting fundamental rights need to be repealed or at least need to be amended with giving more power to the enforcement of fundamental rights.
However, provisions such as stated in article 141B exists in the Constitution in order for the safeguard and security of the country if it is threatened by war or external aggression or internal disturbance. If a state is at a risk of losing its security or under attack it is more important to save the nation first rather than trying to protect the rights of the people. On the other hand, rights like this also help to protect the country from particular interest groups existing within the country trying to destroy the peace and serenity of the nation. On top of that emergency ruling exist once or twice in a life time and its timing is also limited by constitution, in general lasting only hundred and twenty days.
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 For more details, see AHRC UA-067-2007