Emergency Provision

1.1 Definition of Emergency / What is Emergency:

The emergency provision is not well defined in the constitutions that adopted it. Generally emergency provision is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or man made disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict. Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-derogable rights.  In many countries it is illegal to modify the emergency law or the constitution during the emergency.

In Bhagat Singh vs. King Emperor, Lord Dunedin said, “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”.

According to the view of our constitution it means the existence of a condition whereby the security or economic life of Bangladesh or any part thereof is threatened by war, external aggression or internal disturbance.

1.2 Classification of Emergencies

From the view point of territorial extent emergency may be of two types:

a) National Emergency; and

b) Partial or State Emergency.

In the first case emergency is declared throughout the whole territory of the state.
On the other hand the second one is declared in a particular area of a unitary state or in a state of a federation.
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.

On the basis of its nature, emergency may be of three types,  they are:

a) Emergency of War,

b) Emergency of Subversion: and

c) Economic 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 world wide 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.

1.3 Double emergency:

Besides the above mentioned types, 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 up to 1977, when another emergency of subversion was declared in June 26, 1975, threatened by internal disturbance.  But there is no such provision of declaring Double emergency in Bangladesh constitution as well as the constitution of Pakistan.

2.1 Necessities 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. Any time unexpected situation may arise in any country. To give an example we may focus on the recent situation of some Middle East countries, i.e. Tunisia, Egypt, Bharine & Libya. These countries are not in a general situation, they are in emergency and the emergency provisions are needed to overcome such situation. But some times the governments declare the state of emergency to abuse their power. For instance in India in 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency.  On 11 January 2007 President Iazuddin Ahmed proclaimed a state of emergency and this ended on December 16, 2008. Which was totally unconstitutional and there was no such as situation to declaring emergency for such as a long period.  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 Government as a weapon to suppress the opposition and to perpetuate power. Almost all regional and international instruments of human rights make provisions for 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.

3.1 Historical background and Emergency in Different Countries:

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.  This provision which is fully alien to the British democratic system was kept candidly as a weapon by the British ruler in India to perpetuate their colonial design. But unfortunately this undemocratic and democracy-destroying provision continued to have place in the subsequent constitutions in the Sub-Continent although freedom was achieved and countries became independent sovereign states.

Keeping line with the 1935 Act, the Indian constitution provides the provision of National emergency under article 352, State emergency under article 356 and Financial emergency under article 360.

Following the same line, 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 provisions. 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 5 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.

3.2 India

In India, an external state of emergency was declared three times during wars:

• In 1962 Sino-Indian War

• In 1965 Indo-Pakistani War of 1965

• In 1971 Indo-Pakistani War of 1971

In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by a grand coalition in the 1977 elections.

3.3 Pakistan

In Pakistan, a state of emergency was declared four times in its history:

• In 1958 by President Iskander Mirza

• In 1969 by President General Yahya Khan

• In 1977 by President General Muhammad Zia-ul-Haq

• In 2007 by President General Pervez Musharraf

The first three were regarded as the imposition of direct martial law. In 2007 a 'state of emergency' was declared.

3.4 United Kingdom

In the United Kingdom, the Monarch, the Privy Council, or the Prime Minister can make emergency regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare, the environment, or in case of war or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament. A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action.

3.5 Examples:

3.5.1 Ongoing:

• Bolivia declared a national state of emergency on the 24th February 2011, because of floods that have been affecting the nine departments in Bolivia; thousands of people have been left homeless.

• New Zealand declared a national state of emergency on the 23rd February 2011, upgraded from a localized state of emergency the day before, in response to the Christchurch earthquake.

• Tunisia declared state of emergency January 2011, following unrest from economic issues.

• Israel has been in a state of emergency since the 1948 Arab–Israeli War.  Israel's parliament, The Knesset, re-extends the validity of the state of emergency annually.

• Syria has been in a state of emergency since the Baathist coup of March 8, 1963, although it was supposed to have been relaxed.

• Tonga's prime minister declared a state of emergency on November 17, 2006 due to civil unrest in the nation's capital.

• Fiji is under a state of emergency as declared by Commodore Frank Bainimarama on December 5, 2006 in the 2006 Fijian coup d'état.

• Vanuatu declared a state of emergency on March 5, 2007 because of ethnic clashes in the capital Port Vila.

• In the Palestinian Occupied Territories, Palestinian President Mahmoud Abbas declared a state of emergency in the Gaza Strip and West Bank following Hamas's takeover of power in Gaza Strip.

• Somalia has been in a state of emergency since 2009.

• Egypt has been under a nearly-continuous state of emergency since 1967 (interrupted for 18 months in 1980-81); the People's Assembly renews it every two to three years.

• Japan March 11th in a state of emergency due to a massive earthquake and tsunami near the Japanese island Honshu; Richter scale measure: 9.1

• Bahrain declared a state of emergency on 15 March 2011 and asked the military to reassert its control over the capital, Manama, as clashes between Shia and Sunni groups spread across the country. Bahrain has been gripped by deepening political unrest and widespread protests for over a month, with the Shia majority and some Sunni liberals calling for democracy and an end to discrimination.

• Yemen declared a state of emergency on 18 March 2011.

3.5.2 Past states of emergency:

• February 22, 2011 - New Zealand declares State of Emergency in the city of Christchurch on February 22, 2011 after another powerful 6.3 magnitude earthquake damaged the city and surrounding areas. Civil Defence Minister John Carter declared a national state of emergency at 11.28am February 23, 2011

• October 5, 2010 - Hungary declares state of emergency due to a sludge flood, caused by an accident in Ajka at the local aluminia plant, killing at least four people and causing a long-lasting natural disaster.

• September 30, 2010 - Ecuador due to a coup by armed forces.

• September 4, 2010 - Christchurch City declared State of Emergency on September 4, 2010 after a powerful 7.1 magnitude earthquake damaged the city and surrounding areas. The state of emergency invoked provisions of the Civil Defense Emergency Management Act 2002. The State of Emergency was lifted 12 days later on September 16 upon passage of the Canterbury Earthquake Response and Recovery Act 2010.

• September 26, 2009 - A "state of calamity" for Metro Manila and 25 other nearby provinces in the Philippines was declared due to heavy flooding caused by Tropical Storm Ketsana (Local name: Ondoy).

• April 11, 2009 - Thailand's Prime Minister Abhisit Vejjajiva declared a state of emergency in the areas of Pattaya and Chonburi, in response to anti-government protestors breaking into the conference center of a hotel complex in the sea-side resort city of Pattaya, in the then-venue site of the ASEAN was being held, immediately resulting in its cancellation.  Another state of emergency on April 12, 2009, was announced in Bangkok and the surrounding areas, due to an heightened escalation of tension between the government and anti-government protesters, but was later lifted.

• January 2009 - Slovakia was in a state of emergency due to natural gas supply shortage.

• January 11, 2007 - Bangladesh was in a state of emergency due to electoral violence. This ended on December 16, 2008, when new parliamentary elections were organised.

• September 2, 2008 - A state of emergency was declared in Bangkok by Prime Minister Samak Sundaravej following civil unrest; it was lifted on September 14, 2008.

• July 1, 2008 - Mongolian president Nambaryn Enkhbayar declared a state of emergency in the capital Ulaanbaatar for four days after violent protests against the ex-communist Mongolian People's Revolutionary Party (MPRP). The MPRP had claimed a majority of seats in the 2008 parliamentary elections, but was accused of fraud and vote rigging by the less-successful parties.

• March 2008 - Armenia was in a state of emergency from March 2, 2008 to March 20, 2008, declared by President Robert Kocharian in response to protests over the 2008 Armenian presidential elections.

• November 3, 2007 - Pakistan was in a state of emergency from November 3, 2007 to December 15, 2007. President Pervez Musharraf declared emergency "to stop Pakistan from committing suicide". He lifted the state of emergency after he resigned from the army and took the oath of office as a civilian President of Pakistan.

• August 25, 2007 - Greece was in a state of emergency from August 25, 2007 to August 28, 2007 due to the highly destructive forest fires that occurred throughout the country.

• June 2007 - Oman declared a state of emergency as the country was hit by the strongest named cyclone in the northern Indian Ocean, Cyclone Gonu.

• January 2007 - Santa Clara County in California was under a state of emergency due to extremely cold temperatures.

• May 14, 2006 - The U.S. states of Massachusetts and New Hampshire declared a state of emergency as a result of massive flooding from the strongest rains to hit the regions in almost 70 years.

• October 13, 2006 - Buffalo, New York declared a state of emergency when the "most devastating snow storm in U.S. history hit the city. Schools and businesses were closed for a week, and Buffalo and surrounding towns and cities were declared major disaster areas by President Bush.

• February 24, 2006 - the Philippines declared a state of emergency via Philippine Proclamation 1017 for one week until Philippine Proclamation 1021, in response to a supposed coup against President Gloria Macapagal Arroyo's government in the midst of the 20th anniversary of the 1986 People Power Revolution that toppled the rule of Ferdinand Marcos.

• August 27, 2005 - Louisiana Hurricane Katrina

• Mid-August 2005 - Sucumbios and Orellana, two provinces of Ecuador, because of indigenous protests against oil firms

• Friday April 15, 2005 - Quito, capital of Ecuador

• February to April 2005 - Nepal

• December 2004 - Sri Lanka, Indonesia and Maldives because of a tsunami.

• November 2004 - Iraq

• October 2004 - the Gaza Strip and West Bank

• April 2004 - Ryongchon, North Korea following a major explosion

• November 2003 - Georgia, following weeks of civil unrest.

• August 2003 - Michigan, Ohio, New York, US and Ontario, Canada, in response to the 2003 North America blackout

• August 2003 - Philippines

• August 2003 - Portugal, in response to forest fires

• July 2003 - Mexico, in response to a West Nile virus outbreak (estado de emergencia)

• May 2003 - Peru (estado de excepción or estado de sitio depending on the source)

• April 2003 - Mato Grosso, Brazil, in response to torrential rainfall (estado de emergência)

• March 2003 - Serbia after assassination of Zoran Đinđić (vanredno stanje)

• January 2003 - Canberra, the national capital of Australia during the Canberra bushfires of 2003

• September 2002 - Moscow, Russia, in response to smoke pollution from forest fires

• July 2002 - Paraguay (estado de excepción)

• December 2001 - Argentina (estado de sitio), in response to public unrest.

• November 2001 - Nepal, in response to increased guerrilla activity

• September 2001 - the U.S., in response to the September 11, 2001 attacks.

• November 30, 1999 - Seattle, Washington, stemming from protest of the WTO Ministerial Conference of 1999 and police reaction to it.

• August 5, 1995 - Trinidad and Tobago to remove Speaker of the House Occah Seapaul who refused to resign.

• Winter 1995 - Sault Ste. Marie, Michigan after a severe snowstorm buried the city in 6 feet (1.8 m) of snow.

• April–May 1992 - United States, California. State of Emergency was declared in response of the 1992 Los Angeles Riots.

• March 1992 - Republic of Moldova, in response to ethnic conflict between Romanian and Russian minorities

• 1992 to 2011 - Algeria endures a 19-year state of emergency enacted at the beginning of the 1992 coup. The state of emergency, which suspended citizens' rights in lieu of military power, was lifted after the Algerian Government gave in to protestor demands during the 2011 Jasmine Revolution.

• August 1991 - Soviet Union, enemies of Mikhail Gorbachev's reforms evoked the state of emergency because Gorbachev, according to them, was destroying both communism and the state itself. The leader of the coup was Gennady Yanayev.

• July–August 1990 - Trinidad and Tobago declared a state of emergency when a group stormed Parliament and a TV Station holding government officials, including the Prime Minister at ransom. See Jamaat al Muslimeen coup attempt

• July 1985 to February 1990 - South Africa, in response to increasing civil unrest and township violence opposing apartheid rule.

• 1975 to 1977 - India. Indira Gandhi declared a state of emergency in 1975 in response to political opposition and her own conviction on charges of electoral fraud. The Emergency lasted for 19 months;

• 1972 to 1976 - Mauritius, due to ethnic and labor-related unrest. Elections were suspended during this period, and political rights were broadly circumscribed.

• 1971 - Queensland, Australia in response to fears over increasing protest over the 1971 Springbok tour

• 1970 to 1972 - Trinidad and Tobago a state of emergency was declared to deal with the Black Power Revolution which also included a mutiny in the Military.

• 1972 - the United Kingdom in response to increasingly militant industrial action.

• October 1970 - Quebec in response to the October Crisis kidnappings of government officials.

• July 1967 - Detroit in response to the 12th Street riot started on Sunday morning during a blind pig raid.

• 1948 to 1960 - Malayan Emergency in Malaysia and Singapore

• 1950 to 1978 - United States due to the Cold War, specifically the threat of "world conquest by communist imperialism."

• 1939 to 1952 - United States due to World War II

• 1941 to 1942 - Moscow due to the German Advance to within 19 miles (31 km) of the city

• March 18, 1907 - Moldavia and Wallachia in Romania during the 1907 Romanian Peasants' Revolt.

4.1 Emergency Provisions in Our Constitution and Their Consequences:

Articles 141(a), 141(b) and 141(c) of part 9A of our constitution deals with the 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)-

(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: 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 incompetencey, 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 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 Misuses of Emergency Power in Bangladesh 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 for the 5 time.  Every time it was declared on the ground of internal disturbance, but the true scenario is different... The following recommendations appear to be pertinent in the circumstances now obtainable 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.

(2)   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.

(3)  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 3 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 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 majorities 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.

(4)  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      [article 232(7) of the present Pakistan Constitution]. 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.

(5)  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.

(6)   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 citizen’s rights at the time of emergency. If it becomes necessary after a period, the suspension of the six fundamental rights should be withdrawn.

(7)  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 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.

(8)  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.

(9)  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.

(10)  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.

(11)  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.

(12)  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.

(13)  Thirteenth point is that the detainee should be given all reasonable opportunities to immediate and regular access to a lawyer, family members and an unbiased medical board.

(14)  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.

 (15) The government can appoint experts as temporary advisors only for the emergency period to monitor government functions. The government can also make a recommendation 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 handing over the power to the elected government or make a sound environment for holding a free and fair election.

5.1 Conclusion:

From the foregoing discussion and analysis it is clear that the emergency provisions have both some good and bad sides. Because of the faults of the provisions of emergency, all previous governments had scope for abusing it as a weapon to oppress the oppositions and remain in power. Nazim Kamran Choudhury has said in this regard “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 can not do so, perhaps we should not have this provision at all”.  As this law has some limitations, it is the call of the day to amend the emergency provisions in an acceptable and logical manner. So, we hope that government will take necessary steps to amend the emergency provisions as early as possible.

Appendix I

1) 1st emergency was declared by Mujib govt. on 28 December 1974.

2) 2nd emergency was declared by Sattar govt. on 30 November 1981.

3) 3rd emergency was declared by  Ershad govt. on 26 November 1987.

4) 4th emergency was declared by Ershad govt. on 27 November 1990.

5) 5th emergency was declared by Eyazuddin govt. on 11 January 2007.

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Appendix II

1) Article 4 (1) of International Covenant on civil and Political Right 1966 (ICCPR):

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2) Article 15 of European Convention for the Protection of Human Rights and Fundamental Freedoms 1950:

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

3) article 27 of American Convention on Human Rights 1969:

SUSPENSION OF GUARANTEES

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article :23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.

Bibliography:

1. Islam, Mahmudul. Constitutional Law of Bangladesh.

2. Shamsul Huda, A.K.M. The Constitution of Bangladesh.

3. Abdul Halim, Md. Constitution, Constitutional Law and Politics: Bangladesh Perspective.

4. V. D. Mahajan. Constitutional Law of India.

5. Anupchand Kapur Select Constitution.

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