Chapter 1

INTRODUCTION
The expression ‘state of emergency’ is being use in a generic sense to embrace the central
concept of a variety of legal terms in different legal systems to identify an exceptional
situation of public danger permitting the exercise of crisis powers in a particular state. This
terminology would therefore cover the status   of different regimes known as states of
emergency, of siege, of alert, of prevention of internal war, of suspension of guarantees, of
martial law, of special powers etc. The expression would include, for instance, what is
described as martial rule (which has a variety of pseudonyms, the most important being
martial law) as it is known in the common law countries of the erstwhile British Empire and
the USA, as well as the state of siege, as it is known in civil law countries of continental
Europe and Latin America.
 The justification for the proclamation of emergency power during a grave emergency is
provided by the maxim “SALUS POPALI SUPREMA LEX” -The welfare of the people is the
paramount law. It is generally assumed that the rights which citizens in normal time enjoy
should, in the time of emergency yield to the maxim ‘salus popali suprema’ lax. Relying on
the “principle of necessity” encompassed by this maxim, court in common law countries
have consistently been prepared to condone draconic executive action during the time of
national emergency. Although the constitutional system of common law would have long
recognized the maxim “salus popali suprema lex”, the tendency to entrench emergency
powers in constitution is recent.
The term state of emergency generally means an unforeseen combination of circumstances
or the resulting state that calls for immediate action or urgent need for assistance or relief
to handle the situation. One of the primary reasons for the incorporation of emergency
power in constitution is to affect, the operation of constitutional during an emergency. The
thrust of the argument in this regard has been that the existence of fundamental rights
ought not to be permitted to imperial the safety of the state. A second reason for defined
provisions on emergency powers is a concern to restrict judicial creativity in the
determination of the extent to which such power can be exercised. The general objective of
the constitutional emergency power is to bring about a re-allocation of state power in a
manner inconsistent with the constitutional limitations which ordinary prevail.

1.2 Classification of Emergencies

Emergencies can be classified from different dimensions. On the basis of its nature
emergency can be divided into three classes. These are follows:
a) Emergency of War,
b) Emergency of Subversion, and
c) Economic or Financial Emergency.
a) Emergency of War
For War or external aggression, when emergency is declared, it is called emergency of war.
For instance, India declared emergency of war first in October 1962 when China launched a
massive attack on India’s North Eastern border and, for the second time in December 1971
when Pakistan attacked India, under article 352 on the plea of external aggression.
b) Emergency of Subversion
If any state declares emergency for internal disturbances within the state to suppress civil
war, or anti-government movement, or riot, or to face natural disaster like storm,
earthquake, volcanic eruption, is called Emergency of Subversion. For example, in our
country, emergency was declared five times due to internal disturbance. Recently in 11th
March in a state of emergency has been declared due to a massive earthquake and tsunami
near the Japanese island Honshu; Richter scale measure: 8.9.
c) Economic or Financial Emergency
The emergency declared with a view to overcoming a situation in which the economy of the
state is about to breakdown is called economic emergency. For example, Roosevelt (USA)
adopted New Deal Policy to overcome worldwide financial depression under National
Industrial Recovery Act 1930. For another example, article 360 of Indian constitution and
article 235 of Pakistan constitution specifically provided the provision of Economic or
financial emergency. The Pakistan constitution also provides for the National and Partial
emergency.1

1.3 Need for 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
undemocratic one. Providing for emergency provision in the constitution is not an
undemocratic something. Because the security of the state as whole is of greater
importance than the liberty of some individuals. The state is to safeguard the liberties of all
the people within its territory. If the state itself is destroyed or in great peril the liberties of
the individual’s citizens stands annihilated. As V. N. Shukla says – “Events may take place
threatening the very existence of the state, and if there are no safeguard, against such
eventualities, the state together with all that is desired basic and immutable, will be swept
away. However precious the personal the personal liberty of the subject may be, there is
something for which it may well be, to some extent, sacrificed by legal enactment, namely
national success in the war, or escape from national plunder or enslavement

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The idea of suspension of some fundamental rights in time of emergency is common to all
legal systems. Somewhere the constitution itself and somewhere a special law makes
provision in legal terms for situation of crisis when states of emergency may be invoked.
The necessity for suspension of certain rights in times of emergency is internationally
recognized. Almost all regional and international instruments of human rights make
provisions for suspension of rights in case of emergency. Article 4(1) of the International
Covenant On Civil and Political Rights, 1966, Article 15 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, 1950 and Article 27 of the
American Convention on Human Rights, 1969 make, more or less, the same provision to
the effect that 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
obligation under the convention.
Thus providing for emergency measures suspending some fundamental rights is allowed
both nationally and internationally. But the problem is that there is a danger in inverting
such discretionary power with the executive authority. Because, such a provision carries
with it the risk of abuse of power if stern safeguards against its abuse are not provided for
specifically. Most governments in developing countries abuse emergency power for political
purpose; they use it as a necessary weapon to suppress the opposition and to perpetuate
power; they thereby destroy the democratic institutions. The Secretary General of the
International Commission of Jurists in his introduction on an ICJ report on States of
Emergency opined that the most serious human rights violations tend to occur in situations
of tension when those in power are or think they are threatened by forces which challenge
their authority if not the established order of the society. This is why that there is
understandable link between case of grave violations of human rights and state of
emergency.
There are many examples in favor of keeping the provision for emergency. In Palestine,
emergency is declared owing to collision between Fatah and Hamas. South American
countries have provided examples of, the paradigm state of emergency where emergency is
declared by a military government which after seizing power by means of a coup d state, has
suspended or dissolved parliament reduced the judiciaries power drastically and has
practiced flagrant abuses of human rights. To give an example of such a Latin American
country we may take the case of Colombia. Article121 of the Colombian Constitution of
1886 gives the President the in cases of external war or internal disturbance to a ‘State of
Siege’. This gives the Government the power to decree that certain crimes committed by
civilians will be tried by Military Court Martial under Military Penal Law. 2

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 Chapter 2
EMERGENCY PROVISIONS IN GLOBAL PERSPECTIVE

2.1 Emergency Provisions in India

In Indian Sub- Continent the history of emergency power of the executive traces back to the
Government of India Act, 1935. Under Article 102 of the Act the Governor- General could
declare emergency if in his opinion a grave emergency 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 Sub- Continent although freedom was
achieved and countries become independent sovereign states.
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.
Keeping in the line with the 1935 Act, the Emergency Provisions are mentioned from Article
352 to Article 360 of the Indian Constitution.
Article 352 of the Indian Constitution of 1950 proclaims that if the president is satisfied that
a grave emergency exists whereby the security of India or of any part of territory thereof is
threatened whether by war or external aggression or internal disturbance, he may, by
proclamation make a declaration to that effect. Article 359 of the Indian Constitution states
that when the proclamation of Emergency is in operation, the President may by order
declare that the right to move any court for the enforcement of such the rights conferred by
part III (which guarantees certain fundamental rights) as may be mentioned in the order and
all proceedings pending in any court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the proclamation is in force or for such
shorter period as may be specified in the order. During the States of Emergency declared,
preventive detention laws were used widely. State of Emergency was proclaimed in1962
which continued still 1967, in 1971again and in 1975 when the Government of Indira Ghandi
was in danger of being swept out of power.
2.2 Emergency Provisions in Pakistan
The Constitution of Pakistan of 1956 incorporated this emergency provision in Article 191.
The Constitution of Pakistan of 1962 contained the same provision. The experience of the
application of the emergency provisions of the Pakistan was extremely bitter. In its 23 years
long history Pakistan witnessed a series of action taken by the ruling elite or sometimes by
one individual in the office of the President under the grave of these emergency provisions.
The two Governor General of Pakistan Golam Mohammad and Iskandar Mirza used this
emergency power to perpetuate their rule a thereby destroyed political institutions. The
emergency which was proclaimed in 1965 due to war with India was not withdrawn till the
mass- upsurge forced Ayub Khan in 1969 to leave power whereas the war was over in three
weeks. During this continued emergency the political opposition parties were suppressed
and hundreds of citizens were put into prison for years together. Almost all the political
leaders of Pakistan particularly the prominent one in the former East Pakistan was
extremely critical of this harsh law. The Awami League in particular was committed since the
formation of the united front in 1954 to repay not only the black law but also to remove any
scope or prerogative enabling an individual to retard the process of democracy. The
experience of Pakistan showed 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.
In Pakistan, a state of emergency was declared four times in its history: (a) In 1958 by
President Iskander Mirza (b) In 1969 by President General Yahya Khan (c) In 1977 by
President General Muhammad Zia-ul-Haq (d) 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. However, there is little practical difference between martial law
and a state of emergency if the government controls the armed forces.
2.3 Emergency Provisions in the United States of America
In the United States of America, there are several methods to emergency situations. A state
governor or local mayor may declare a state of emergency within his or her jurisdiction. This
is common at the state level in response to natural disasters.
The president of the United States, as head of the executive branch, has the authority to
declare a federal state of emergency. The only emergency provisions in the U.S. Constitution
are The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it. And an exemption from the
privilege of a grand jury hearing for cases arising in the military when in service in a time of
“public danger”.
Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham
Lincoln in parts of Maryland and some Midwestern states, including southern Indiana. He
did so in response to demands by generals to set up military courts to rein in
“copperheads”, those in the Union who supported the Confederate cause. Lambdin P.
Milligan and four others were accused of planning to steal Union weapons and invade Union
prisoner-of-war camps, and were sentenced to hang by a military court in 1864. However,
their execution was not set until May 1865, so they were able to argue the case after the
Civil War. It was decided in the Supreme Court Case Ex Parte Milligan (71 US 2 1866) that
the suspension was unconstitutional because civilian courts were still operating, and the
Constitution only provided for suspension of habeas corpus if these courts are actually
forced closed.
On December 16, 1950, during the Korean War, President Truman issued Presidential
Proclamation No. 2914, declaring a state of national emergency. The Supreme Court ruling
in Youngstown Sheet & Tube Co. v. Sawyer established in 1952 during this emergency that
presidents may not act contrary to Acts of Congress during an emergency.
During the Watergate scandal which erupted in the 1970s after President Richard Nixon
authorized a variety of illegal acts, Congress investigated the extent of the President’s
powers and belatedly realized that the U.S. had been in a continuous state of emergency
since 1950. As a result, in 1976 the National Emergencies Act set a limit of two years on
emergency declarations unless the president explicitly extends them, and requiring the
president to specify in advance which legal provisions will be invoked. The Act terminated
the emergency of 1950 on September 14, 1978; however, even in the 21st century, the
federal courts have upheld harsh penalties (including deportation) for crimes that occurred
during the state of national emergency from 1950 to 1978, where the penalties were
escalated because of the existence of that emergency.
The International Emergency Economic Powers Act, 1977, allows freezing of assets, limiting
of trade, and confiscation of property during a declared emergency.
A federal emergency declaration allows the United States Federal Emergency Management
Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance
also becomes available to areas that are declared to be in a state of emergency. For FEMA,
emergency declarations are different from the more common disaster declarations done for
hurricanes and floods. Typically, a state of emergency empowers the executive to name
coordinating officials to deal with the emergency and to override normal administrative
processes regarding the passage of administrative rules.
The United States is formally in an ongoing limited state of emergency declared by several
Presidents for several reasons. A state of emergency began on January 24, 1995 with the
signing of Executive Order 12947 by President Bill Clinton. In accordance with the National
Emergencies Act, the executive order’s actual effect was not a declaration of a general
emergency, but a limited embargo on trade with “Terrorists Who Threaten to Disrupt the
Middle East Peace Process. This “national emergency” was expanded in 1998 to include
additional targets such as Osama bin Laden, and has been continued to at least 2008 by
order of President George W. Bush. Especially noteworthy are the ongoing states of
emergency declared on November 14, 1979 regarding the Iran Hostage Crisis., that declared
on March 15, 1995 with respect to Iran, and that declared on September 14, 2001 through
Bush’s Proclamation 7463, regarding the terrorist attacks of September 11, 2001. President
Barack Obama extended George Bush’s Declaration of Emergency regarding terrorism on
September 10, 2010.

2.4 Emergency Provisions in France

Three main dispositions concern various kind of “state of emergency” in France: article 16 of
the Constitution of 1958 allows, in time of crisis, “extraordinary powers” to the president.
Article 36 of the same constitution regulates “state of siege.” Finally, the April 3, 1955 Act
allows the proclamation, by the Council of Ministers, of the “state of emergency. The
distinction between Article 16 and the 1955 Act concerns mainly the distribution of powers:
whereas in article 16, the executive power basically suspends the regular procedures of the
Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law
extending the emergency must be voted by the Parliament. These dispositions have been
used at various times, in 1955, 1958, 1961, 1988 and 2005.
The state of emergency in France is framed by the Constitution of 1958, which states that it
can be decreed by the President de la republique in the Council of Ministers, but must be
confirmed by Parliament in order to be held after 12 days. State of emergency gives
authorities the power to: (a) Regulate or forbid circulation and gathering in some areas
(including by the use of curfew) (b) Close places of gathering (c) Conduct house-to-house
searches at any time without judicial oversight (d) Censorship.
It may also give the military authority the power to act in place of civilian authorities, if a
decree specifies it explicitly. It is unclear, however, how some of the legal possibilities can
be implemented due to various legal changes since the 1950.
Article 16 of the Constitution gives the head of government “extraordinary powers” in
exceptional cases, leading to an effective “state of exception”:
When the institutions of the Republic, the independence of the nation, the integrity of its
territory, or the fulfillment of its international commitments are under grave and immediate
threat and when the proper functioning of the constitutional governmental authorities is
interrupted, the President of the Republic shall take the measures demanded by these
circumstances after official consultation with the Prime Minister, the Presidents of the
Assemblies, and the Constitutional Council.
These measures must be prompted by a will to ensure within the shortest possible time that
the constitutional governmental authorities have the means of fulfilling their duties. The
Constitutional Council shall be consulted with regard to such measures.
The National Assembly may not be dissolved during the exercise of emergency powers. The
conditions are both that the state is confronted to exceptional circumstances and that the
regular institutions are disrupted and cannot effectively govern. This amendment to the
Constitution of the Fifth Republic has been qualified as “liberticidal” by critics. Invoked on 23
April 1961 during the Algerian War; normal functioning of institutions was quickly restored.
In the judgment Rubin de Servens of March 2, 1962, judged that he could not himself invoke
article 16, as that constituted an “act of government”. Furthermore, the State Council
considered that it could only pronounce on rulings which were not legislative acts carried
out during this period. Thus, a legislative measure (although the role of Parliament is not
specified, just that it is not to be dissolved) which breaches fundamental liberties cannot be
appealed against before the Conseil d’État.
Article 36 of the Constitution is concerned with the state of siege, which can be decreed by
the Council of Ministers for a period of twelve days which can only be extended with the
approval of the Parliament. A state of siege may be declared in case of an “imminent peril
resulting from a foreign war or an armed insurrection. Military authorities may take police
powers if they judge it necessary. Fundamental liberties may be restricted, such as the right
of association, legalization of searches in private places day and night, the power to expel
people who have been condemned for common law matters or people who do not have the
right of residence in the territory, etc.
Since 1955 a state of emergency has been decreed five times: (1) in 1955 in Algeria due to
independents unrest. (2) In 1958 due to the uprising in Algeria . (3) In 1961 after the
Generals’ putsch (invocation of article 16 from April 23 to September 29, 1961. (4) In 1984 in
New Caledonia due to independents troubles. (5) During the 2005 civil unrest in France
President Jacques Chirac declared a state of emergency on November 8, 2005. It was
extended for three months on November 16 by the Parliament, which was dominated by
the UMP majority. On December 10 France’s highest administrative body, the Council of
State, ruled that the three-month state of emergency decreed to guarantee calm following
unrest was legal. It rejected a complaint from 74 law professors and the Green party,
declaring that the conditions that led to the unrest (which began on October 27), the rapid
spread of violence, and the possibility that it could recur justified the state of emergency.
The complaint challenged the state of emergency’s necessity and said it compromised
fundamental liberties.
2.5 Emergency Provisions in Canada
The federal government of Canada can use the Emergencies Act to invoke a state of
emergency. A national state of emergency automatically expires after 90 days, unless
extended by the Governor-in-Council. There are different levels of emergencies: Public
Welfare Emergency, Public Order Emergency, International Emergency, and War
Emergency. The Emergencies Act, 1985 replaced the War Measures Act in 1988. The War
Measures Act was invoked three times in Canadian history, most controversially during the
FLQ Crisis. A state of emergency can also be declared by provincial, territorial, and municipal
governments.3

Chapter 3
PROVISIONS OF EMERGENCY IN THE CONSTITUTION OF BANGLADESH

Articles 141A, 141B and 141C of part 9A of our constitution deal with emergency
provisions. But Article 141A (1) specifically deals with declaration of emergency.

Article 141 A (1) states- “if the President is satisfied that a grave emergency exists in which
the security or economic life of Bangladesh, or any part thereof, is threatened by war or
external aggression or internal disturbance, he may issue a Proclamation of Emergency”.

(a) A Proclamation of Emergency may be revoked by a subsequent Proclamation

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(b) Shall be laid before parliament

(c) Shall cease to operate at the expiration of 120 days, unless before the expiration of that
period it has been approved by a resolution of Parliament

(d) If any such Proclamation is issued at the time when the Parliament stands dissolved or
the dissolution of Parliament takes place during the period of 120 days, the Proclamation
shall cease to operate at the expiration of 30 days from the date on which the new
Parliament first meet, unless it approves continuation of the emergency.

According to Article 141 B- During emergency, article 36, 37, 38, 39, 40 and 42 shall not
restrict the state to make any law or to take any executive action which is contrary to Part III
of this constitution.

Any law so made shall, to the extent of the incompetency, cease to have effect as soon as
the Proclamation ceases to operate, except in respect of things done or omitted to be done
before the law so ceases to have effect. Article 141C says, when emergency is declared the
President may by an order suspend the right to move the High Court for enforcement of any
fundamental rights and this order may extend to the whole of Bangladesh or any part
thereof.4

Chapter 4

Who can declare the proclamation of emergency?

The Constitution of the Peoples’ Republic of Bangladesh empowered the president to

declare a proclamation of emergency to tackle an unwanted occurrence. Article 141A of the
constitution says that-

“If the president is satisfied that a grave emergency exists in which the security of 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.”

Thus the president can declare the proclamation of emergency on three grounds namely-

1. War
2. External Aggression
3. Internal Disturbance
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In Bangladesh the president of different periods, declared the proclamation of emergency in
five times due to internal disturbance.

The first emergency was declared by the president Muhammadullah on 28th December
1974.

 The second proclamation of emergency was declared by the president Abdus Sattar on 30 th
May, 1981.

The third proclamation of emergency was declared by the president Hossain Muhammad
Ershad on 26th November, 1987.

The fourth proclamation of emergency was declared by the president Hossain Muhammad
Ershad on 27 November, 1990 and,

 The last and fifth proclamation of emergency was declared by President Iazuddin Ahmed
on 11th January, 2007.

In Bangladesh the president also can declare the proclamation of emergency due to war and
external aggression. The president of India declared the state of emergency in October,
1962 when China attacked on India’s north eastern border. Again the president of India
declared emergency on December, 1971 when Pakistan attacked India on account of
external aggression.

 So, therefore two types of emergency can be declared by the president under the
Constitution of Bangladesh namely-

1. Emergency of War
2. Emergency of Subversion

Again the proviso of article 141A of the constitutions of Bangladesh says that “the
proclamation Emergency shall require for its validity the prior counter signature of the
prime minister.” Thus virtually the declaration of emergency depends on the wish of the
prime minister. Whenever the prime minister advice the president to declare the
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 satisfactions.

When the nonparty care taker government is in charge of the country the president can
declare the proclamation of emergency without acquiring the prior counter signature of the
prime minister. As article 58E of the constitution says that-

“notwithstanding anything contained in article 48 (3) 141A (1) and article 141C (1) of the
constitution during the period of non-party care taker government is functioning, provisions
in the constitutions requiring the president to act on the advice of the prime minister or
upon his counter signature shall be ineffective.”5

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4.2 When the president can declare the proclamation of emergency?

The President of Bangladesh can issue a proclamation of Emergency under article 141 (1) of
the Constitution of the People’s Republic of Bangladesh;

 Whereas it is expedient to take special measures for the purpose of ensuring the security
and the interests of the state and the population, and for the purpose of maintaining public
order and protecting the economic life, and for the purpose of ensuring the maintenance of
supplies and services essential to the life of the community.

Whereas the Parliament is not in session and the President is satisfied that circumstances
exist which render immediate actions necessary not only to handle a situation of war or
external aggression but also to combat internal disturbance with the power to suspend the
fundamental rights then he can issue a proclamation of emergency.

Article 141A (1) of the Constitution of the peoples’ republic of Bangladesh says that,

“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.”

Article 141A (3) of the Constitution of peoples’ republic of Bangladesh says that,

“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.”

So when the existing circumstance satisfies the mind of the president to take urgent
measure to tackle the threat of war or external aggression or internal disturbance, he may
issue a proclamation of emergency.6

4.3 When a proclamation of emergency is no more valid:

Under the Constitution of the People’s Republic of Bangladesh the proclamation of

emergency, declared by the president of Bangladesh shall cease to operate in the following
situation.

Firstly, the proclamation of emergency shall cease to operate under article 141A (2) (a) of
the Constitution of Bangladesh, if the proclamation of emergency shall be revoked by a
subsequent proclamation.

Secondly, Under article 141A (2) (c)

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“A proclamation of emergency shall cease to operate at the expiration of one hundred and
twenty 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 a time when Parliament stands dissolved
or the dissolution of Parliament takes place during the period of one hundred and twenty
days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration
of thirty days from the date on which Parliament first meets after its re-constitution, unless
before that expiration of the meets after its re-constitution, unless before that expiration of
the said period of thirty days a resolution approving the Proclamation has been passed by
Parliament.”

Thirdly, the proclamation of emergency shall cease to operate under the proviso of article
141A (1) if the proclamation of emergency shall fail to fulfill the condition of acquiring the
prior counter signature of the prime minister.

When these three conditions are established the proclamation of emergency shall leave its
force to operate and to suspend the provision of certain articles of the constitution and the
enforcement of fundamental rights as contained in part III of the constitution.7

The Consequences of a Declaration of Emergency

1. A proclamation of emergency may be revoked by a subsequent proclamation.

2. 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 aa resolution of parliament.

3. If emergency is declared at a time when parliament stands dissolved or the dissolution of

parliament takes place during the period of 120 days, the proclamation shall cease to
operate at the expiration of 30 days from the date on which parliament first meets after its
re-constitution, unless before the expiration of the said period of 30 days a resolution
approving the proclamation of emergency has been passed by parliament.

4. As soon as emergency is declared fundamental rights mentioned in articles 36, 37, 38, 39,
40 and 42 shall automatically remain suspended and they 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.

5. 5. 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 II
of the constitution.8

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 Chapter 5

Impact of Emergency on Administration: Bangladesh perspective:

Under Article 141A of the constitution of the People’s Republic of Bangladesh, if the
president declares a state of emergency to tackle an unexpected occurrence, he can
suspend the provisions of certain Articles (Under Articles 141B) and the enforcement of
Fundamental rights (Under Article 141c) as contained in the constitution. The term
‘suspension of Fundamental rights’ means that the enjoyment of those certain fundamental
rights are remained restricted during emergency period. No citizen of the country can
demand to get the benefit of that right until the proclamation of emergency is revoked by a
subsequent proclamation.

So the proclamation of emergency bear with it two effects:

(a) Suspension of provisions of certain Articles during emergencies:

As the constitution leaves the power to declare a proclamation of emergency to the
president, if he declares so, certain Articles of the Constitution of Bangladesh will be
suspended automatically. And this suspension will continue till the proclamation of
emergency is in force. In this regard, Article 141 B of the constitution says that

“While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40
and 42 shall restrict the power of the state to make any law or to take any executive action
which the state would, but for the provisions contained in Part III of the constitution, be
competent to make or to take, but any law so made shall, to the extent of the
incompetence, cease to have effect as soon as the proclamation ceases to operate, except
as respects things done or omitted to be done before the law so ceases to have effect.”

The above mentioned article deals with the following matter-

Article- 36, Freedom of movement:

Subject to any reasonable restrictions imposed by law in the public interest, every citizen
shall have the right to move freely throughout Bangladesh, to reside and settle in any place
therein and to leave and re-enter Bangladesh.

Article- 37, Freedom of assembly:

Every citizen shall have the right to assemble and to participate in public meetings and
processions peacefully and without arms, subject to any reasonable restrictions imposed by
law in the interests of public order health.

Article- 38, Freedom of association:

Every citizen shall have the right to form associations or unions, subject to any reasonable
restrictions imposed by law in the interests of morality or public order;

Article- 39, Freedom of thought and conscience, and of speech:

(1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable
restrictions imposed by law in the interests of the security of the State, friendly relations
with foreign states, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence- (a) the right of every citizen of freedom of speech
and expression; and freedom of the press, are guaranteed

Article- 40, Freedom of profession or occupation:

Subject to any restrictions imposed by law, every citizen possessing such qualifications, if
any, as may be prescribed by law in relation to his profession, occupation, trade or business
shall have the right to enter upon any lawful profession or occupation, and to conduct any
lawful trade or business.

Article- 42, Rights to property:

(1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire,
hold, transfer or otherwise dispose of property, and no property shall be compulsorily
acquired, nationalized or requisitioned save by authority of law. A law made under clause
(1) shall provide for the acquisition, nationalization or requisition with compensation and
shall either fix the amount of compensation. or

(2) Specify the principles on which, and the manner in which, the compensation is to be
assessed and paid; but no such law shall be called in question in any court on the ground
that any provision in respect of such compensation is not adequate. Nothing in this article
shall affect the operation of any law made before the commencement of the Proclamations
(Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the
acquisition, nationalization or acquisition of any property without compensation.

As the Article 141B empowered the executive to take any action, they utilize their power in
taking action even in violating the fundamental right as contained in the constitution and
without showing any humanity to the citizens of the country. The emergency Government
mostly takes any action to oppress the opposite party and to control the anti-government
movement.

At the same time the parliament can make any law which is inconsistent with the
Fundamental right as contained in part III of the constitution. Thus the Article 26 which
limits the state power to make any law inconsistent with fundamental rights is violated. The
parliament makes such law only to enable their government to perpetuate the rule and to
protest the opposite party.

The power of the executive and parliament given by Article 141B will continue until the
proclamation of emergency cease to operate.

(b) Suspension of enforcement of fundamental rights during emergency:

As soon as emergency is declared, the president in consultation of prime minister by order

can declare the suspension of enforcement of any of the fundamental rights conferred by
part III of the constitution. In this regard Article 141C of the constitution says that.

1. “While a Proclamation of Emergency is in operation, the president may, on the written

advice of the prime minister, by order, declare that the right to move any court for the
enforcement of such of the rights conferred by Part III of the constitution as may be
specified in the order, and all proceedings pending in any court for the enforcement of the
right so specified, shall remain suspended for the period during which the proclamation is in
force or for such shorter period as may be specified in the order.

2. An order made under this article may extend to the whole of Bangladesh or any part
thereof.

3. Every order made under this article shall, as soon as may be, be laid before the
parliament.”

Thus the Article 141c violates the Articles 44 of the constitution which deals with the
enforcement of fundamental rights. So if any person’s rights are violated by any of those
articles, (Article 141B and 141c) he, on an application to the high count Division, gets no
remedy under Article 102 (I) of the constitution. It the case of Kripa Shindu Hazrav vs. The
state C J Badrul Haider Chowdhury says that

“During emergency when the fundamental rights are suspended and the right to move any
court for the enforcement of the same has been taken away, neither article 102 of the
constitution nor section 491 of the CRPC is available to seek the enforcement of these
rights.”
As soon as, proclamation of emergency is withdrawn, all the constitution rights which are
suspended during emergency situation get their full constitutional status.

Constitutional provisions:

Under clause 1 of Article 102 the HCD may issue directive or order against ‘any person or
authority including any person performing any function in connection with the affairs of the
Republic’ for the enforcement of the fundamental rights guaranteed in Part III of the
Constitution. Right to move HCD under Article 102(1) is itself a fundamental right [Article
44(1)]. Although writ jurisdiction is an equitable jurisdiction; however, power of the HCD
under clause 1 is not a discretionary power rather it is obligatory for the Court to grant
necessary relief to the aggrieved person.

Writ jurisdiction of High Court Division during emergency period:

Clause 2 deals with the rights, which are not fundamental in nature as mentioned in Part III
of the Constitution. If the High Court Division is ‘satisfied that no other equally efficacious
remedy is provided by law’ on an application by the ‘person aggrieved’, under clause 2(a) (i)
of the Article the Court may prohibit ‘a person performing any function in connection with
the affairs of the Republic or of a local authority’ from taking any illegal steps (writ of
prohibition) or coerce to do something which is ‘required by law to do’ (writ of mandamus).
Writ of prohibition stops the executives from taking any steps beyond the mandate they
were given (negative sense) whereas writ of mandamus orders the executives to do
something what they were required to carry out (positive sense).

Human rights violations become rampant in our country which is not only economically
backward but also politically unstable. Now I present a picture of violation of human rights
during the five state of emergency which Bangladesh had experienced.

Emergency power Rules and Torture:

During those state of emergency, the president made special Emergency Power Rules
containing several injurious sections to rule the country. These laws were contrary to a
range of international human rights standards and norms and as these sections of laws were
repeatedly abused by law enforcement agencies, the human rights of arrested persons were
violated by such agencies in the form of torture and verbal and physical abuse. Suspected
people, who were likely to commit any anti-Government act, were picked up by the law
enforcement agencies; detained, and tortured, while they were in custody or during remand
in order to extract evidence to use against them or others.

Extra judicial killings:

During those state of emergency, extrajudicial killings continued throughout the valid period
of Emergency. Between 12 January 2007 and 11 February 2008, 184 people have been extra
judicially killed by Bangladeshi law enforcement agencies. Among them a total of 69 people
died while in custody of law enforcement agencies. Of the 184 people extra-judicially killed,
it was reported that 131 people were killed in so-called
“crossfire”/encounter/gunfight/shootout, 29 people were tortured to death, 13 were shot
dead in circumstances other than crossfire”, encounter, gunfight, shootout and there were
11 deaths in other circumstances.

custodial deaths:

During the state of emergency, the custodial death become a common phenomenon. Since
the State of Emergency proclaimed on 11 January 2007 a total of 92 people died in jail
custody.

Bangladesh has ratified the UN Convention against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (CAT). However, there is as yet no law that prohibits
and criminalizes the practice, as well as no means to lodge a complaint. The Bangladesh
Government at the time of ratification assured that it would apply article 14(1) of the UN
Convention stipulating the right to redress, compensation and rehabilitation for victims in
accordance with existing laws. However, no step was ever taken to pass laws for redress,
compensation and rehabilitation. The practice of torture and custodial deaths has never
been specifically criminalized. Above all, the government has always protected the
perpetrators by granting immunity from future prosecution. Thus it seems that torture and
extrajudicial killings are deliberate government policy in Bangladesh, in spite of Bangladesh
being a member of the UN Human Rights Council as well as a party to key international
human rights covenants such as the CAT. Bangladesh is also in breach of its international law
obligation in failing to submit any periodic reports to the CAT Committee.

Criteria essential for valid derogation of human rights during emergency period:

Certain human rights treaties envisage a system of derogations allowing states parties to
adjust their obligations temporarily under the treaty in exceptional circumstances, i.e. in
times of public emergency threatening the life of nation. Examples of emergency situation
include, but are not limited to, armed conflicts, civil and violent unrest, environmental and
natural disasters, etc.

Although, exceptional measures are permissible, their validity is subject to the fulfillment of
a number of requirements set by the treaty law, such as qualifications of severity,
temporariness, proclamation and notification, legality, proportionality, consistency with
other obligations under international law, non-discrimination, and lastly, non-derivability of
certain rights recognized as such in the relevant treaty. In essence derogation clauses
express the concept that states of emergency do not create a legal vacuum. The derogation
regime aims at striking a balance between the protection of individual human rights and the
protection of national needs in times of crisis by placing reasonable limits on emergency
powers.

Derogation clauses are provided for in Article 4 of the International Covenant on Civil and
Political Rights (ICCPR), Article 15 of the European Convention on Human Rights (ECHR) and
Article 27 of the American Convention of Human Rights (ACHR). Therefore, different states
may be subject to different emergency derogation regimes, depending on the states’
adherence to these treaties as the list of non-derogable rights may vary from treaty to
treaty.

In addition to texts of treaty law, the most important interpretations of how derogations
may or may not be undertaken are provided by the case law of treaty bodies as well as the
interpretation adopted by Human Rights Committee (the treaty’s supervisory body,
hereinafter referred to as HRC) in General Comment 29. As a subsidiary source, it may also
be noted that several sets of standards for states of emergency have been elaborated by
expert meetings, these texts are not in themselves legally binding but they offer valuable
recommendations on interpretations of existing derogation provisions in legally binding
treaties and the interpretative texts are directed to national authorities and international
monitoring bodies.

(a) Existence of a public emergency that threatens the life of the nation:

The existence of a situation amounting to public emergency is a fundamental requirement

for triggering the derogation clause. Absent specific definition of ‘public emergency’ in the
ICCPR and ECHR, interpretations of its meaning and scope were provided by the HRC and
jurisprudence of the ECHR. According to HRC ‘not every disturbance or catastrophe qualifies
as a public emergency which threatens the life of the nation’. Unlike the regional
conventions, the ICCPR does not make reference to war, yet civil war and other cases of
serious, violent internal unrest are by for the reasons most asserted for declaring a state of
emergency. An armed conflict, however, does not automatically satisfy the criteria a
derogation should meet as there is also a qualitative measure of severity that demands that
derogations are permissible ‘only if and to the extent that the situation constitutes a threat
to the life of the nation’.

Second, in response to an argument that ‘terrorism’ could not conceivably be a threat to

the UK’s institutions or the UK’s existence as a civil community, the Court held that it had
been prepared to take into account a much broader range of factors in determining the
nature and degree of the actual and imminent threat to the “nation” and has in the past
concluded that emergency situations have existed even though the institutions of the State
did not appear to be imperiled”. The existence of the ‘public emergency’ should be proved
by the state derogating from its obligations. Although, the ECHR has of granted a ‘margin of
appreciation’ to states in determining whether a ‘public emergency’ exists, nonetheless the
Court held that the discretion of states is ‘accompanied by a European supervision’. In
contrast the HRC has made no such reference to a margin of appreciation to that in
Landinelli Silva v Uruguay, found the State Party to be ‘duty-bound to give a sufficiently
detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the
Committee’s function ‘to see to it that States parties live up to their commitments under the
Covenant’.

(b) The requirements of proclamation and notification:

 The requirements of proclamation and notification are not ‘simply technical and
dispensable formalities’ as both procedural guarantees are important for the purposes of
national and international supervision. The ICCPR requires an official proclamation of the
existence of a public emergency, which is an essential technical prerequisite for the
application of derogation. General Comment 29 specifies that states ‘must act within their
constitutional and other provisions of law that govern such proclamation and the exercise of
emergency powers’. The duty to proclaim should be distinguished from the duty to notify
under Article 4(3) of ICCPR and Article 15(3) of ECHR. The duty to proclaim the state of
emergency is designed to prevent arbitrary or de facto derogation and to obligate
derogating states “to act openly from the outset of the emergency and to delegitimize after-
the-fact justifications for violation of fundamental rights” and also serves a domestic
supervision as opposed to international which is tied to the duty of notification. Although,
the ECHR does not contain the requirements of proclamation.

The notification requirement serves as a guarantee for supervision by international bodies

of the legality of the establishment of a state of emergency. States parties to the Covenant
are bound to inform the other parties immediately. Notwithstanding the silence of the
European Convention regarding the issue, in the Lawless case, the European Court found an
implicit requirement that notification be “without delay”.

Notification procedures impose the duty on the state to provide information about the
‘provisions from which it has derogated’ and the states parties are to include in their reports
“sufficient and precise information about their law and practice in the field of emergency
powers”. To this point, the approach of the supervisory bodies in determining whether
violation of the notification requirement renders derogation invalid has not been consistent.
The HRC, however in a number of individual applications under the first Optional Protocol
adopted an approach of declining to recognize the legitimacy of particular invasions of
protected rights in the absence of “submissions of fact or law to justify such derogation.”

(c) Measures strictly required by the exigencies of situation: the principle of

proportionality:

Derogation measures must be limited ‘to the extent strictly required by the exigencies of
the situation’, i.e. they need to be proportionate. The requirement of proportionality
constitutes one of the substantive limits to the emergency powers ‘requiring specific
scrutiny and specific justification of each measure taken in response to an emergency,
rather than an abstract assessment of the overall situation’.

The HRC highlights three factors in proportionality: severity, duration and geographic scope.
The HRC also submits that restrictions that are already allowed with the treaty provisions on
certain freedoms, e.g., to freedom of movement or freedom of assembly are ‘generally
sufficient’ to cover situations of ‘mass demonstration including instances of violence, or a
major industrial accident’. Further, the HRC is of view that ‘no provision of the Covenant,
however validly derogated from will be entirely inapplicable to the behavior of a State
party’. The HRC confirms that the legal obligation to narrow down all derogations to those
strictly required by the exigencies of the situation establishes both for States parties and for
the Committee a duty to conduct a careful analysis under each article of the Covenant based
on an objective assessment of the actual situation.

States parties to the ICCPR are required to provide careful justification, not only for their
decision to proclaim a state of emergency, but also for any specific measures based on such
a proclamation. By contrast, the European Court of Human Rights allows states a ‘wide
margin of appreciation’ in the context of proportionality as well. The Court in Ireland v. UK
held that it falls to the national authorities to decide ‘how far it is necessary to go in
attempting to overcome emergency’ and confirmed the approach in Brannigan and McBride
v. UK granting discretion to the state to determine ‘the nature and the scope of derogations
necessary’ the existence of an emergency.

(d) The Principle of Consistency:

Derogation measure should not be inconsistent with other obligation of the derogating state
under international law. The principle of consistency is another safeguard of the derogation
provision which is based ‘on the principles of legality and the rule of law inherent in the
Covenant as a whole’. The expression ‘other obligations under international law’ refers to
customary international law and to international treaty law, most importantly to other
human rights conventions and to treaties in the field of international humanitarian law
including the minimum guarantees found in Common Article 3 to 1949 Geneva Conventions,
and in the two 1979 Additional Protocols. At this point it is important to underline that
‘there is no concept of derogation in humanitarian law’ as such since international
humanitarian law is designed in essence to operate in ‘emergency’ situations, hence, the
obligations stemming from humanitarian law treaties generally cannot be derogated from.

Other obligations also include the 1951 Convention on the Status of Refugees and its 1967
Protocol, the 1989 Convention on the Rights of the Child, ILO Conventions on Forced Labor,
Freedom of Association and Equal Rights of Workers. In addition, the Human Rights
Committee has proposed examples of ‘other obligations’ as including the Rome Statute of
the International Criminal Court, and certain rules of customary international law, such as
the prohibition of refoulement. Article 5 (1) of the ICCPR states that ‘there shall be no
restriction upon or derogation from any fundamental rights recognized in other instruments
on the pretext that the Covenant does not recognize such rights or that it recognizes them
to a lesser extent’.

[Impact on Enhancement of power of Executive

The division of powers among the organs of the State is central to the idea of the separation
of powers. The executive is the part of State that has sole authority for the daily
administration of the State. The executive branch executes the law. The power of the
executive in a democratic State is exercised within a well-balanced limit. But, this power of
the executive in Bangladesh, like other countries, increases during emergency. At that time
the executive can make any rules and take any actions. The rules so made and actions so
taken can’t be challenged on the ground that they are inconsistent with fundamental rights.
This power of the executive is completely against the balance of power among the judiciary,
executive and legislature. This type of exercising of power help diminish the constitutional
upholding of rights and thereby the corresponding duties as well.

Impact on Democracy

Democracy is a form of government in which all eligible citizens have an equal say in the
decisions that affect their lives. Democracy allows eligible citizens to participate equally,
either directly or through elected representatives, in the development and creation of laws.
It encompasses social, economic and cultural conditions that enable the free and equal
practice of political self- determination. But this freedom is encroached upon at the time of
emergency. So if democracy is taken in a holistic approach then it can be said that,
emergency is antithesis of democracy. In Bangladesh, as in other countries, democracy is
either regulated or destroyed at the time of emergency.

Impact of Emergency on the power of Parliament

The legislative power is vested in the Parliament under Article 65 of the Constitution.
Normally, Parliament can’t make any law inconsistent with fundamental rights. But during
emergency, Parliament can make any law in violation of fundamental rights. The law so
made can’t be called in question in any court. This is because at the time of emergency such
power of the Parliament is valid which can’t be exercised when the emergency does not
continue or at the normal circumstances. Thus, the Parliament of Bangladesh, like other
countries, exercises an unfettered and borderless power in making laws at the time of
emergency without any fear of judicial interference.

Loopholes of Emergency provisions in Bangladesh Constitution:

For the purpose of preventing the abuse of emergency such a term as ‘armed rebellion’ or a
specific definition of internal disturbance should be inserted in our constitution.

The system of continuing emergency beyond four months (120 days) after its declaration
without approval of parliament is an irregular one.

There is no provision in our constitution for summoning a special or emergency session of

the parliament to monitor and control the emergency situation. In contrary, Pakistan has
the provision in their constitution for joint sitting of parliament to be summoned by the
President within 30 days of the declaration of emergency. In India also there is provision for
special sitting of the parliament in the context of emergency.

In case of practices in western countries like the UK, there is also provision for joint sitting of
parliament. During the emergency at the time of the Second World War the British
Parliament called a special session of both the Houses of parliament and the session
continued until the war ended. In our constitution, such a provision should be inserted as
early as possible to stop the mishandling of emergency.
Another important shortcoming of our constitution is that if emergency is once declared and
it is approved by the parliament, the executive can continue it according to its whim. So it is
an undemocratic process. For stopping the misuse of this measure we should insert a fixed
time like 3-4 months and, after expiry of this period, the emergency shall need further
approval. And after such an approval the emergency shall remain in force for a further
period to be stipulated in the approval.

According to article 141B, six fundamental rights shall stand automatically suspended after
the declaration of emergency. The 44th Amendment of Indian Constitution provides that at
the time of war or external aggression the six fundamental rights will remain suspended, but
at the time of internal disturbance these will remain in force. Such provisions as these
should be introduced in the Constitution of Bangladesh.

Another minus point of our constitution is that according to the article 141C, the President
has the right to suspend other fundamental rights also.

In India, through the 44th amendment of article 359, the suspension of rights mentioned in
article 20 and 21 has been stopped. So it should be specifically pointed out in our
constitution which particular rights would be suspended during the emergency of war and
which during the emergency of internal disturbance.

The Supreme Court can order the payment of compensatory cost to the person arrested
illegally or intentionally at the time of emergency as in the case of Bilkis Akter Hossain vs.
Govt. of Bangladesh 1997, anyone who has been a victim of unlawful arrest or detention
shall have an enforceable right to compensation.9

Chapter 6

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.

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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 was 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 outgoing 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.10

Conclusion

In emergency situations, States are faced with conflicting obligations- on the one hand the
commitment of protection of individual rights of its citizen and on the other hand the
protection of the existence of the State itself in extreme conditions, or in less severe
conditions the safeguarding of public order and safety. It is widely recognized that the worst

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human rights violations occur in cases where individual rights can be curtailed on the excuse
that the security of State needs such curtailment.

It may be mentioned here that Bangladesh has ratified the International Covenant on
Economic, Social and Cultural Rights, 1966; the International Covenant on Civil and Political
Rights, 1966. As such, it is generally convincing that such ratification will ensure to a certain
extent that the country, Bangladesh, where frequent changes of government occur, will not
be able, on any plea whatsoever, to circumvent or take away the basic rights of its citizens.
Emergency provisions were inserted in the Constitution of Bangladesh in 1973 thinking to
protect the State in time of war or external aggression or internal disturbance or to protect
the security or economic life of Bangladesh. Later on these provisions have been misused.
Indeed, emergency provisions have both good and bad sides. If we use such provisions for
which these provisions were inserted in our Constitution the purpose will be fulfilled.