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Emergency Provision Under Bangladesh Constitution
Bangladesh is a democratic country. And democracy is for the people. Every democratic country has a constitution so we have too. The name of our constitution is Peoples republic of Bangladesh. Constitution is for protect human right and the country. Constitution can protect human right only when the country exists. There are some times when country can fall in danger and to face this type of situation some constitution have emergency provisions. The present State of Emergency is one of the most widely discussed issues in the Socio-political context of Bangladesh today. Since our independence we have faced a state of emergency for five times, including the emergency declared on 11th January 2007. Though it is a very interesting subject-matter for discussion, it has not been clearly and legally defined anywhere by any law or in our constitution. There are emergency 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 connotes state of matters calling for drastic action. “ 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 in suspending the application of certain principles. Strictly speaking, the concept of emergency, from the view point of constitutional law, means the suspension of and restriction over certain fundamental rights of citizens in order to deal with a situation when 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 many part thereof is threatened by war or external aggression or internal disturbance.
2. Historical background of Emergency
The emergency provisions were not incorporated in the original text of the Constitution in 1972. In 1973 under the second amendment of the Constitution, these provisions were inserted and came into effect on 22nd September 1973. If there were an elected government, such declaration would require the countersignature of the Prime Minister. During the Care-taker government, the President has the sole power to declare emergency in the country.
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 where by the security of India was threatened whether by war or internal disturbances. The Indian constitution provides the provision of emergency under article 352 (1): “If the President is satisfied that grave emergency exists whereby the security of India or 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".
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. It is a matter of regret that the proclamation of emergency in both India and Pakistan were not for the welfare of the people.
In its twenty three year long history, Pakistan witnessed a series of actions taken by the ruling elite or sometimes by one individual in the office of the president under the garb of these emergency provisions4. Golam Mohammad and Iskandar Mirza used this emergency power 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 forcing Ayub Khan in 1969 to leave power. The experience of Pakistan shows 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. For this bad history of exercising the emergency power, the Awami League did not introduce emergency provision in the original constitution in 1972, but after nine months of being in power, they passed the provisions of emergency by a second Amendment.
3.1 Concept of emergency
Necessity of Emergency is a very controversial matter, for emergency may be right or wrong. It is true that providing the provision of emergency is democratic, but its abuse is an undemocratic one. 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".
So the state has to safeguard the liberties of all the people within its local area. As V.N. Shukla says in this regard- “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".
There are many examples in favor of keeping the provision for emergency. In present Palestine, emergency is declared owing to collision between Fatah and Hamas. In Bangladesh, because of internal disturbance and collision between the Four Party Alliance and the Fourteen Party Alliance, there was no other alternative to declaring emergency. The 2nd emergency was declared just to face an unexpected situation that occurred following President Ziaur Rahman,s death. But the 1st emergency declared by Shekh Mujibur Rahman and the last two by Ershad were unexpected and were declared only to oppress the opposition. In India emergency was declared on 6th December 1971 due to war. Once the Indira Gandhi Govt. also abused the emergency power in the manner it happened in Bangladesh. So, it depends on the concerned Government to use emergency provisions properly. Real responsibility lies on the Government for proper use of it. So emergency provision is necessary for some purposes. The practice of suspending some rights in time of war and economic emergency and not at the time of internal disturbance is used by the Govt. as a weapon to suppress the opposition and to perpetuate power. Almost all regional and international instruments of human rights make provisions for Sufian and Siddika.
Suspension of rights in case of emergency. There are indirect emergency laws prevalent in Malaysia, and our neighboring country Srilanka.
Tsunami affected Indonesia and other neighboring countries declared economic emergency at that time. So there are many positive sides of emergency, but it depends how we use it. But suspension of some fundamental rights for a longtime is not good.
3.2 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 there 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 352of 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.
On there basis of its nature emergency may be of following three types:
A. Emergency of War,
B. Emergency of Subversion: and
C. Economic Emergency.
Validity of a proclamation of emergency depends upon the satisfaction of the executive about the existence of two things: the first one is war, external aggression or internal disturbance and the second is the threat to the security or economic life of Bangladesh or any part thereof by such war, external aggression or internal disturbance.
On the basis of its nature, emergency may be of three types, they are:
Emergency of War: For War or external aggression, when emergency is declared, it is called emergency of war. For example, 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.
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. In Palestine also emergency was declared recently on 13 June (2007).
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.
From territorial point of view emergency may be of two types: the first is
National Emergency and the second is Partial Emergency. For example, under article 352 emergency can be declared in India and under article 356 partial emergency can be declared. The Pakistan constitution also provides for the National and Partial emergency. Besides, there is also another emergency called Double emergency. While one type of emergency, is in operation, the declaration of another type of emergency is called Double emergency. For example, Indian Govt. declared war emergency in December 6, 1971 that continued upto 1977, when another emergency of subversion was declared in
June 26, 1975, threatened by internal disturbance12. But there is no such provision of declaring Double emergency in Bangladesh constitution as well as the constitution of Pakistan.
4.1 Emergency provision under Bangladesh constitution
Articles 141A, 141B and 141C of part 9A of our constitution deals 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".
Provided that such proclamation shall require for its validity the prior counter signature of the Prime Minister. So we can say that the President after taking the counter signature of the Prime Minister can declare two types of Emergency-(1) War emergency and (ii) Emergency of subversion on three grounds. They are war, external aggression and internal disturbance. Here Article 141A (3) can be highlighted in connection with declaration of emergency. Article 141A (3) states-A Proclamation of
Emergency, declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance, may be made before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance may be made before the actual occurrence of war or any such aggression or disturbance if the president is satisfied that there is threat of imminent danger thereof. The emergency may be withdrawn under the article 141A (2)-
The Genesis and Review of Emergency
(a) a Proclamation of Emergency may be revoked by a subsequent
(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: Provided that if any such Proclamation is issued at the time when the declaration of the Parliament stands dissolved or the dissolution of Parliament takes place during the period of 120 days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of 30 days from the date on which
Parliament first meets after its re-constitution, unless before that expiration of the said period of 30 days a resolution approving the
Proclamation has been passed by Parliament.
According to Article 141 B- While a Proclamation of emergency is in operation, nothing in article 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 this constitution, be competent to make or to take, but 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 effect25.
Article 141 C says, when emergency is declared the President may by an order suspend any fundamental rights conferred by part III of the constitution and this order may extend to the whole of Bangladesh or any part thereof.
4.2 When can the President declare Emergency?
Article 141A says that the president can declare emergency whenever he things that a grave emergency exists in which the security or economic life of Bangladesh or any part thereof is threatened by war, external aggression or internal disturbance.
Article 141A(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(1) says that the proclamation of emergency shall require for its validity the prior counter signature or the prime minister. Thus virtually the declaration of emergency depends on the wish of the prime minister. Whenever the prime minister advise the president to declare emergency the president is bound to do so. The declaration of emergency, therefore, depends on the subjective satisfaction of the executive and the court cannot question the justifiability of such satisfaction.
4.3 Emergency after the independence of BD
Emergency provision was not in our original constitution. This notable exclusion was presumably the result of misuse of emergency provisions in our predecessor Pakistan's constitution. Even in more or less credible Indian democracy use of emergency provisions during Prime Minister Indira Gandhi's rule in mid seventies was not bona fide, and proved ill-fated. Insertion of emergency provisions in our constitution by way of amendment in 1973 was dictated by apprehension of rising instability resulting from fast deteriorating socio-political and economic conditions then prevailing in Bangladesh. However, proclamation of emergency in 1974 and then under different circumstances in 1981, 1987,1990 and 2007 could not correct the situation for which they were proclaimed. Now emergency has been proclaimed under qualitatively different situation, and not by any ruling party or person.
4.4 Human rights condition under emergency
5. Emergency in International perspective
Misuses of Emergency Power and Recommendations for Its prevention
Firstly, the validity of a proclamation of emergency depends on three things: war, external aggression and internal disturbances. First two grounds are specifically defined; so there is no objection to them; but the third ground (internal disturbance) is not defined anywhere. So it is a vague term and due to the absence of a definition the executive can easily misuse the emergency power. In Bangladesh emergency has been declared Sufian and Siddika
it was declared on the ground of internal disturbance, but the true scenario is different. The 3th and 4th
emergencies were declared for political purposes to suppress the anti-government movement and to perpetuate the un-democratic rule, during the regime of the autocratic President Ershad. But the 1th and 2th emergencies were declared due to other reasons. Of the two the 2nd emergency was declared for facing an unexpected situation after President Ziaur Rahman’s murder in 1981.But the 5th murder in 1981. created by the two big political parties and their alliances in connection with national election scheduled to be held on 22 January 2007. Senior advocate Mahbubur Rahman (ex-minister) has said that if the emergency had not been declared on 11 January, 2007, civil war would have started For example, Indira Gandhi was seen to have misused the emergency power during the period from 1971-77. In Pakistan there were also the practices of declaring emergencies on the plea of internal disturbance as a weapon to suppress the opposition and anti government movement. In India, to prevent this sort of widespread misuse of emergency Prime Minister Morarji Desai inserted the word ‘armed rebellion’ in lieu of internal disturbance by the 44th amendment of the constitution The following in our country.
1. 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.
Sometimes the executive misuses the power of declaring emergency with the assent of the parliament. If parliament is not in session or parliament remains dissolved, special session may be called by the President for obtaining approval of the parliament.
The system of continuing emergency beyond four months (120 days) after its declaration without approval of parliament is an irregular one. A resolution for such an approval is to be passed by not a simple majority, but by at least two- third majority. Passing of the resolution for the approval of the extension by a simple majority is not reasonable. Mandatory time limit should be given for the continuance of emergency. That is why the past executive authority misused the emergency when it was promulgated for the 3th time in 1987. So there must be a fixed time after which the executive shall place it before the parliament for approval. The fixed time may be within 30 to 60 days. For its approval the The Genesis and Review of Emergency resolution should be passed by two-third majority of present MP’s of the emergency session. In support of our recommendation we want to highlight the system of India and Pakistan relating to this matter. In India, once emergency is declared it has to be approved by parliament within one month and this resolution must be passed by two third majority in each house, otherwise, after one month, emergency will cease to operate. In Pakistan the proclamation of emergency is to be laid before the parliament as soon as practicable in accordance with the constitution of 1956 and 1962. But under the present constitution of Pakistan it is to be put up before the parliament within two months.
Another interesting point is that there is no provision in our constitution for summoning a special or emergency session of the parliament when it is not in session. But the provision for such emergency session should be inserted to monitor and control the emergency situation. For example our neighboring country, 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 there is a provision that emergency will remain in force even its being approved by the parliament. It means 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. However the proclamation of emergency does not always mean the suspension of fundamental rights. At any rate, suspension of fundamental rights is an undemocratic process and, as our country is a democratic country, we should not resort to it. After achieving independence, what the people aspired after was a constitution where the fundamental rights would be ensured. In Germany, there is provision for declaring emergency but there is no provision for suspension of fundamental rights. Almost the same provisions have been included in the constitution of the Republic of Singapore. 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 internal disturbance these will remain in force. Such provisions as these, should be introduced in the Constitution of Bangladesh. Actually government should take more care of our citizens rights at the time of emergency. If it becomes necessary after a period, the suspension of the six fundamental rights should be withdrawn.
Another minus point of our constitution is that according to the article 141C; the President has the right to suspend other fundamental rights also. Previously, at the time of all emergencies in our country, the enforcement of other fundamental rights were declared suspended for months No democratic principle can justify such a situation. There are some rights which have no connection with emergency; such as right to property. This right is also suspended with other rights and it cannot be accepted by any civilized nation. In India, through the 44 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.
We have no specific law by which the Caretaker Govt. can declare emergency, or continue it for an indefinite period, without the sanction of the Parliament The King or Queen of UK has no special power to declare emergency. But emergency may be declared under Emergency Powers Act of 1920 and 1964 by the Queen. In USA there is also no provision for declaring emergency in the constitution without the authority of law made by the Congress. So we need a special law passed by the parliament to declare emergency and continue in case of necessity.
During the time of emergency, the provision for the writ of habeas corpus remains suspended until the withdrawal of emergency; but it is a wrong provision. Arbitrary arrest and detention by the executive without speedy trial is also a wrong process. If the detention is not in conformity with the provision of law under which a man is purported to be detained, he should have the right to agitate the court of law in the proper way. In the UK, at the time of emergency, the writ of habeas corpus is not suspended and the Emergency Power Act expressly prohibits the alteration of the existing procedure of criminal cases and no punishment is inflicted on any person without trial.
The suspension of politics and political activities should be withdrawn as early as possible. This is because stoppage of political activities for an indefinite period is not good for democracy as well as for the international field. The out going US ambassador Butanes has said, “Ban on internal politics should be withdrawn as early as possible". This opinion is of very great importance.
The High Court Division may Suo-Motu proceed in any matter relating to law. The Justices on the basis of newspaper- comments proceed Suo Motu.
The twelfth point is that 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 Bilkiss Akter Hossain vs. Govt. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.
Thirteenth point is that the detainee should be given all reasonable opportunities to immediate and regular access to a lawyer, family members and a unbiased medical board.
Fourteenth point is that the government should obey the orders of the courts entirely and immediately. A high power judicial review board can be made by the government to justify the functions of government relating to law and order.
The government can appoint experts as temporary advisors only for the emergency period to monitor government functions. The government can also make a recommendating committee by selecting members from top political parties. It can be asserted at last that it is the duty of the executive authority to make the environment normal as by withdrawing the emergency and handingover the power to the elected government or make a sound environment for holding a free and fair election.
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