emergency provision in the constitution of bangladesh.main thesis
TRANSCRIPT
Chapter 1
INTRODUCTION
1.1 INTRODUCTION
A state of emergency 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[1]
1.2 HISTORICAL BACKGROUND
The exercise of emergency powers had long been a concern of the classical political
theorists, including the eighteenth-century English philosopher John Locke,
1 D. Prémont, C. Stenersen, I. Oseredczuk Bruylant, Non derogable Rights and States of
emergency,ed,( Brussells, 1996), p644
1
who had a strong influence upon the Founding Fathers in the United States. A
preeminent exponent of a government of laws and not of men, Locke argued that
occasions may arise when the executive must exert a broad discretion in meeting
special exigencies or “emergencies” for which the legislative power provided no
relief or existing law granted no necessary remedy. He did not regard this prerogative
as limited to wartime, or even to situations of great urgency. It was sufficient if the
“public good” might be advanced by its exercise. Emergency powers were first
expressed prior to the actual founding of the Republic. Between 1775 and 1781, the
Continental Congress passed a series of acts and resolves which count as the first
expressions of emergency authority. These instruments dealt almost exclusively with
the prosecution of the Revolutionary War.At the Constitutional Convention of 1787,
emergency powers, as such, failed to attract much attention during the course of
debate over the charter for the new government. It may be argued, however, that the
granting of emergency powers by Congress is implicit in its Article I, section 8
authority to “provide for the common Defense and general Welfare,” the commerce
clause, its war, armed forces, and militia powers, and the “necessary and proper”
clause empowering it to make such laws as are required to fulfill the executions of
“the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.” [2]
2 Thomas I. Cook, ed., Two Treatises of Government, by John Locke, (New York: Hafner, 1947), pp. 203-
207; Edward S. Corwin, The President: Office and Powers, 1787-1957, 4th ed (New York: New York
University Press, 1957), p. 147-148.
2
1.3 OBJECTIVES
1.3.1 GENERAL OBJECTIVE
The main objective of the research is to identify various aspect of emergency
practiced all around the world.
1.3.2 SPECIFIC OBJECTIVES
1. To identify the potential risk and situation of state of emergency provision
exits of the constitution of the various countries of the world.
2. Discuss about the types of emergency and emergency situation arises in the
world history.
3. Discuss about the state of emergency observed in North America and Western
Europe during the World War II.
4. State of emergency situation and constitutional provision in the Sub-
Continents especially in India, Pakistan, Sri Lanka, Nepal.
5. State of emergency declared in Bangladesh for five times.
3
Chapter 2
CONCEPT OF EMERGENCY
2.1 CONCEPT OF EMERGENCY
In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential
proximity between the state of emergency and sovereignty. But although his famous
definition of the sovereign as "the one who can proclaim a state of emergency" has
been commented on many times, we still lack a genuine theory of the state of
emergency within public law. For legal theorists as well as legal historians it seems as
if the problem would be more of a factual question than an authentic legal question.
The very definition of the term is complex, since it is situated at the limit of law and
of politics. According to a widespread conception, the state of emergency would be
situated at an "ambiguous and uncertain fringe at the intersection of the legal and the
political," and would constitute a "point of disequilibrium between public law and
political fact." The task of defining its limits is nevertheless nothing less than urgent.
And, indeed, if the exceptional measures that characterize the state of emergency are
the result of periods of political crisis, and if they for this very reason must be
understood through the ground of politics rather than through the legal or
constitutional ground, they find themselves in the illogical position of legal measures
that cannot be understood from a legal point of view, and the state of emergency
presents itself as the legal form of that which can have no legal form.
4
And, furthermore, if the sovereign exception is the original set-up through which law
relates to life in order to include it in the very same gesture that suspends its own
exercise, then a theory of the state of emergency would be the preliminary condition
for an understanding of the bond between the living being and law. To lift the veil
that covers this uncertain ground between, on the one hand, public law and political
fact, and on the other, legal order and life, is to grasp the significance of this
difference, or presumed difference, between the political and the legal; and between
law and life. Among the elements that render a definition of the state of emergency
thorny, we find the relationship it has to civil war, revolution and the right to resist.
And, in fact, since civil war is the opposite of the normal state, it tends to combine
with the state of emergency, which becomes the immediate response of the State
when faced with the gravest kind of internal conflict. In this way, the 20th century has
produced a inconsistent phenomenon defined as "legal civil war." [3]
2.2 STATE OF EMERGENCY IN HISTORY OF FAMOUS HISTORY
Let us look at the case of Nazi Germany. Just after Hitler came to power (or, to be
more precise, just after he was offered power) he proclaimed, on February 28, 1933,
the order for the Protection of the People and the State. This order suspends all the
articles in the Weimar Constitution maintaining individual liberties. Since this order
was never revoked, we can say that the entire Third Reich from a legal point of view
was a twelve year-long state of emergency. And in this sense we can define modern
dictatorship as the institution, by way of a state of emergency, of a legal civil war that
permits the elimination not only of political adversaries, but whole categories of the
population that resist being integrated into the political system. Thus the intentional
creation of a permanent state of emergency has become one of the most important
measures of contemporary States, democracies included. And furthermore, it is not
necessary that a state of emergency be declared in the technical sense of the term.
3 [http://www.generation-online.org/p/fpagambenschmitt.htm ; Last visited in 12 September 2011].
5
At least since Napoleon's decree of December 24, 1811, French doctrine has opposed
a "fictitious or political" state of siege in contradistinction to a military state of siege.
In this context, English jurisprudence speaks of a "fancied emergency"; Nazi legal
theorists spoke unconditionally of an "intentional state of emergency" in order to
install the National Socialist State. During the world wars, the remedy to a state of
emergency was spread to all the belligerent States. Today, in the face of the
continuous progression of something that could be defined as a "global civil war," the
state of emergency tends more and more to present itself as the dominant example of
government in contemporary politics. Once the state of emergency has become the
rule, there is a danger that this transformation of a provisional and exceptional
measure into a technique of government will entail the loss of the traditional
distinction between different forms of Constitution.
2.3 CLASSIFICATION OF EMERGENCY
Validity of a proclamation of emergency depends upon the satisfaction of the
executive about the existence of two things: the first one is war, external aggression
or internal disturbance and the second is the threat to the security or economic life of
Bangladesh or any part thereof by such war, external aggression or internal
disturbance [4]. On the basis of its, nature, emergency may be of three types, they are:
(1) Emergency of war: For war or external aggression, when emergency is
declared, it is called emergency of war. For example, India declared emergency of
war first time in October 1962 when china launched a massive attack on Indians north
eastern border and for the second time in December 1971 when Pakistan attacked
India, under article 352 on the plea of external aggression.
(2) Emergency of subversion: If any state declares emergency for internal
disturbances within the state to suppress civil war, or anti-government upsurge, is
called Emergency of subversion. For example, in our country, emergency was
4 Mahmudul Islam, “Constitutional Law of Bangladesh”, 1995, P. 278.
6
declared five times due to internal disturbance [5]. In Palestine also emergency was
declared recently on 13 June (2007). [6]
(3) Economic or financial emergency: The emergency declared with a view to
overcoming a situation in which the economic of the state is about to breakdown is
called economic emergency. For example Roosevelt (USA) adopted New Deal
Policy to overcome world wild 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. [7]
From territorial point of view emergency may be of two type: the first is National
emergency and the second is partial emergency. For example, under article 352
emergency can be declared in India and under 356 partial emergency can be declared.
The Pakistan constitution also provide for the National and Partial emergency [8].
Besides, there is also another emergency called Double Emergency. While one type
of emergency is in operation, the declaration of another type of emergency is called
Double Emergency. For example, Indian Govt. declare war emergency in December
6, 1971 that continued unto 1977,when another emergency of subversion was
declared in June 26, 1975,threatened by another internal disturbance.[9]
But there is no such provision of declaring double emergency in Bangladesh
constitution as well as the constitution of Pakistan.
5 1st Emergency was declared by Sheikeh Muzib Govt. on 28th December 1974
2nd Emergency was declared by Sattar Govt. on 30th November 1981
3rd Emergency was declared by Ershad Govt. on 26th November 1987
4th Emergency was declared by Ershad Govt. on 27th November 1990
5th Emergency was declared by Eyazuddin Govt. on 11 January 2007
6 The Daily Ittefaq June 14, 2007.
7 Article 360 of the present Indian Constitution and article 235 of the present Pakistan Constitution.
8 Under Article 232, National Emergency and under article 234, partial emergency can be declared in
Pakistan.
7
9 Md. Abdul Halim, “ Constitution, Constitutional Law and Politics : Bangladesh Perspective”,1998, Dhaka, Ibid P
246
2.4 NECESSITIES OF EMERGENCY
Necessities of emergency are very controversial matters, for emergency
may be right or wrong. it is true that providing the provision of emergency is
democratic, but its abuse in an undemocratic one. Emergency means one kind of
unexpected occurrence when immediate action becomes necessary [10], because the
security of state is more important than the liberty of any individual. As lord Atkinson
has said in R.V Holliday case-
“However precious the personal liberty of the subject be there is something for which
may be, to some extent, sacrificed by legal enactment, on account of national success
in the war, or escape from national plunder or enslavement.”[11]
So the state has to safeguard the liberties of all the people within its local area. As
V.N Shukla says in this regard-
“Event 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 to
remain basis and immutable, will be swept away.”[12]
There are many examples in favor of keeping the provision for emergency. In present
Palestine, emergency is declared owing to collision between Fatah and Hamas. [13] In
Bangladesh, because of internal disturbance and collision between four parties
Alliance and the fourteen party Alliance, there was no more alternative to declaring
emergency.[14] The 2nd emergency was declared just to face an unexpected situation
that occurred following President Ziaur Rahaman’s death.[15]
10 Bhagat Singh Vs. The King Emperor I.L.R Lahore Vol. 12; P 284
11 A.B.M. Mofizul Islam, “Liberty of the People : Britain and Bangladesh, Dhaka : Institute of Human
Rights and Legal Affairs 1987; P 29.
12 V.N Shukla, “ Constitution of India”, India ,( Eastern book company,1989), P 631.
13 bbc online.
14 The Daily Prothom Alo 12 January 2007
8
15 Md. Abdul Halim, “ Constitution, Constitutional Law and Politics : Bangladesh Perspective”,1998 ,( Dhaka), Ibid P
250
But the 1st emergency declared by Shekh Mujibur Rahaman and the last two Ershad
were unexpected and were declared only to oppress the opposition. In India
emergency was declared on 6th December 1971 due to war. [16] Once the Indira Gandhi
Government also abused the emergency power in the manner it happened in
Bangladesh.[17] So it depends on concerned Government to use emergency provisions
properly. Real responsibility lies on the Government for proper use of it. So
emergency provision is necessary is necessary for some purpose. 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.[18] Almost all regional and international
instruments of human rights make provision for suspension of rights in case of
emergency.[19] There are indirect emergency laws prevalent in Malaysia[20]and our
neighboring country Sri Lanka[21]. 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 long time is not a good practice.
16 bbc online
17 Kuldip Nayer “ The Judgement” ,( Delhi ,Vikash Publishing House )1977.
18 bbc online
19 Article 4(1) of International Covenant on Civil and Political Right 1966 (ICCRR), article 15 of
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and article
27 of American Convention on Human Rights 1969.
20 In Malaysia - The Internal Security Act 1960; The emergency ordinance 1969
9
21 In Sri Lanka - Public Security Ordinance 1947, Temporary Provision 1979.
Chapter 3
PROVISION OF EMERGENCY UNDER THE CONSTITUTIONOF BANGLADESH
3.1 STATE OF EMERGENCY IN THE CONSTITUTION OF BANGLADESH
Articles 141A,141B and 141C of part of 9A of our constitution deals with emergency
provisions. But Articles 141A(1) specifically deals with declaration of emergency.
Articles 141A(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 (2)Emergency of subversion on three grounds. They are war, external
aggression and internal disturbance. Here Articles 141A(3) states-A proclamation of
Emergency ,declaring that the security of Bangladesh, or any part of 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 of danger thereof.
The emergency may be withdrawn under the articles141A (2)-
10
Proclamation of emergency-
(a) may be revoked by a subsequent proclamation ;
(b) shall be laid before Parliament;
(c) 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, 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 said period of thirty days a
resolution approving the proclamation has been passed by parliament.
According to articles 141B- Suspension of provisions of certain articles during
emergencies:
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 this 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.
141C. Suspension of enforcement of fundamental right during emergencies:
(1) While a Proclamation of Emergency is in operation, the President may, 89 on the
written advice of the Prime Minister, by order , declare that the right to move any
court for the en-forcemeat of such of the rights conferred by Part III of this
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.
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(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
Parliament. [22]
3.2 STATE OF EMERGENCY PERIOD IN BANGLADESH
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
Five times as follows:
(1) 1st emergency was declared by Mujib govt. on 28th December 1974
(2) 2nd emergency was declared by Sattar govt. on 30th 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) 5themergency was declared by Eyazuddin govt. on 11 January 2007
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”47. 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. [23]
12
22 Constitution of Bangladesh, published by Ministry of Law, 2008, Chapter IXA Article 141 (A) – 141
(C).
23 The Daily Jugantor 22 June, 2007
3.3 EMERGENCY POWER ORDINANCE AND EMERGENCY POWER
RULES 2007
The declaration of the state of emergency was followed by the promulgation of the
Emergency Powers Ordinance 2007 (EPO) and the Emergency Powers Rules 2007
(EPR). The EPO and EPR have suspended many fundamental rights. It also
suspended the rights of freedom of movement, freedom of assembly, freedom of
association, freedom of thought, conscience and speech, freedom of profession and
occupation, freedom to own property, and protection of home and correspondence.
All political activities, both private and public, including activities of the trade
unions, were banned. Political parties were required to close their offices and small
private meetings at private residences were also banned. Section 3 of the EPR
prohibits any kind of association, procession, demonstration or rally without special
permission from the authorities, and under section 3(4) any person found guilty of
holding any meeting or demonstration faces two to five years of rigorous
imprisonment. Additionally, Section 5 completely prohibits the publication of any
criticism of the activities of the government that is deemed to be ‘provocative’ by the
authorities, in news bulletins, video footage, talkshows, features, articles, editorials or
cartoons.
Section 16(2) of the EPR authorizes any member of the ‘law and order maintaining
force ............. to arrest any person on suspicion without a warrant’. Section 20
authorizes the use of force to execute any order and grants immunity to the
government from any prosecution. This section also authorizes the ‘law and order
maintaining forces’ to use force in order to execute any order issued under the EPR.
Section 21 authorized the government to detain any person indefinitely without any
charge under the Special Powers Act 1974. Above all, section 10 denies the right to
apply for bail if detained under the Emergency Rules. This provision is emphasized
13
by section 19d, which states that regardless of sections 497 and 498 of the Code of
Criminal Procedure (the sections dealing with bail), if any inquiry, criminal
investigation or trial is in progress under sections 14 and 15 of the EPR, the accused
persons shall not obtain bail before any court or tribunal. These provisions thus
threaten everyone with indefinite detention, without the traditional safeguards
developed over many centuries of difficult struggle. The government later amended
the EPR by adding new clauses. [24]
Section 18A(1) states that regardless of the provisions which exist in other laws or in
the rules in question, the government or the Anti-Corruption Commission, in the
public interest, may withdraw any case from the Sessions Court, Magistrate’s Court,
Special Judges’ Court or Tribunal in any part of the country and transfer the case to a
Special Judges’ Court for trial. Furthermore, section 18A(2) adds that the subsequent
trial of any such transferred case shall be conducted under the EPR and the Criminal
Law Amendment Act 1958. According to section 18B(2) the Special Judge is
authorized to try any cases concerning all crimes under the EPR. The territorial
jurisdiction of the Special Judges’ Courts has been widened to cover whole of
Bangladesh. Section 21A(1) empowers the government to introduce any kind of
administrative measures to assist inquiries, investigations, trials and any other actions
it undertakes concerning crimes under the EPR. This is, in effect, a blank cheque to
enable the government to carry out arbitrary arrest and detentions and then implicate
them using fabricated charges while they are in detention.
The police have now added section 16(2) by default to any complaints, meaning that
the alleged accused has breached the EPR 2007. This has been done to instill greater
fear in the minds of the accused and give the authorities unjustifiable powers over
these persons. Under these rules, the accused is subject to summary investigation and
trial. The courts are required to finish all legal proceedings including trial and
sentencing within 45 days of the commencement of the trial, unless ‘unavoidable
circumstances’ require an extension for a further 30 days. Generally, investigations
14
by the police, prosecution and subsequent trials take on average 5-7 years due to
inefficiency, political interference and corruption. Under the circumstances of
24 The Emergency Power Ordinance, 2007, Ordinance No. 1/2007 January 12h 2007
Bangladesh, completion of the investigation and subsequent trial within 45 days
raises many questions as to the credibility of those trials. These courts are seen like
‘kangaroo courts’, i.e., justice is meted out summarily.
Thus, by these amendments, the government has effectively bypassed the regular
courts and ensured that the Special Judges’ Courts, under the control of the specially
appointed judges, are able to take over any case selectively transferred to them. This
ensures that people who are being targeted by the government can be convicted under
the arbitrary sections of the EPR. Special Judges’ Courts have been established in
dormitories located within the greater compound of the national parliament, a
restricted zone for general public, in order to try people targeted by the government.
Access to these Special Judges’ Courts is restricted for common citizens. [25]
It may be mentioned that article 141B does not empower the president to suspend all
fundamental rights in Chapter III of the Bangladesh Constitution during emergency.
The authority of the president during emergency to suspend fundamental rights is
limited to suspension of fundamental rights mentioned only in articles 36-40 and 42.
In other words, the Constitution does not empower the president to suspend other
fundamental rights apart from these articles. However, these trials clearly violate the
inalienable right of every citizen to the protection of law under article 27 and to open
and public trial guaranteed under article 31(3) of the Constitution.
3.4 DIFFERENCE BETWEEN MARTIAL LAW & EMERGENCY
Proclamation of emergency is different from Martial Law where the Constitution is
either dissolved or suspended. Declaration of Martial law is an extra-constitutional
event, whereas declaration of emergency is within the ambit of the Constitution. The
15
Chief Martial Law Administrator can act or do, ignoring the provisions of the
Constitution and has an unfettered power.
25 The Emergency Power Rules 2007, Notification, January 25th 2007.
Emergency is declared to meet an unusual situation for a temporary period. It runs for
120 days in Bangladesh. The Constitution allows it.
Finally, after independence, the framers of the 1972 Constitution never thought of
inserting emergency provisions because they are too idealistic in considering that
such provisions were contrary to principles democracy. However it appears they
forgot the reality and adopted a utopian Constitution. Within two years three
amendments were inserted to meet the reality including the emergency provisions in
the Constitution. [26]
16
26 , The Torture of Tasneem Khalil, Human Rights Watch February 2008,
[http://hrw.org/reports/2008/bangladesh0208/2.htm#_ftn1, Last visited in 22 September 2011]
Chapter 4
EMERGENCY IN INTERNATIONAL PERSPECTIVE
4.1 STATE OF EMERGENCY DURING WORLD WAR II
World War II, or the Second World War was a global conflict lasting from 1939 to
1945, involving most of the world's nations—including all of the great powers—
eventually forming two opposing military alliances: the Allies and the Axis. It was
the most widespread war in history, with more than 100 million military personnel
mobilized. In a state of "total war", the major participants placed their entire
economic, industrial, and scientific capabilities at the service of the war effort,
erasing the distinction between civilian and military resources. Marked by significant
events involving the mass death of civilians, including the Holocaust and the only use
of nuclear weapons in warfare, it is the deadliest conflict in human history, resulting
in 50 million to over 70 million fatalities.
The war is generally accepted to have begun on 1 September 1939, with the attack of
Poland by Germany, and subsequent declarations of war on Germany by France and
most of the countries of the British Empire and Commonwealth. Germany set out to
establish a large empire in Europe. From late 1939 to early 1941, in a series of
17
campaigns and treaties, Germany conquered or subdued much of continental Europe;
amid Nazi-Soviet agreements, the nominally neutral Soviet Union fully or partially
occupied and annexed territories of its six European neighbors, including Poland.
Britain and the Commonwealth remained the only major force continuing the fight
against the Axis in North Africa and in extensive naval warfare. In June 1941, the
European Axis launched an invasion of the Soviet Union, giving a start to the largest
land theatre of war in history, which, from that moment on, tied down the major part
of the Axis military power. In December 1941, Japan, which had been at war with
China since 1937, and aimed to dominate Asia, attacked the United States and
European possessions in the Pacific Ocean, quickly conquering much of the region. [27]
The Axis advance was stopped in 1942 after the defeat of Japan in a series of naval
battles and after defeats of European Axis troops in North Africa and, decisively, at
Stalingrad. In 1943, with a series of German defeats in Eastern Europe, the Allied
invasion of Fascist Italy, and American victories in the Pacific, the Axis lost the
initiative and undertook strategic retreat on all fronts. In 1944, the Western Allies
invaded France, while the Soviet Union regained all territorial losses and invaded
Germany and its allies. The war in Europe ended with the capture of Berlin by Soviet
and Polish troops and the subsequent German unconditional surrender on 8 May
1945. The Japanese Navy was defeated by the United States, and invasion of the
Japanese Archipelago ("Home Islands") became imminent. The war in Asia ended on
15 August 1945 when Japan agreed to surrender.
The war ended with the total victory of the Allies over Germany and Japan in 1945.
World War II altered the political alignment and social structure of the world. The
United Nations (UN) organization was established to foster international cooperation
and prevent future conflicts. The Soviet Union and the United States emerged as rival
superpowers, setting the stage for the Cold War, which lasted for the next 46 years.
18
Meanwhile, the influence of European great powers started to decline, while the
decolonization of Asia and Africa began.
27 Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc.
CCPR/C/21/Rev.1/Add.11 (2001)
Most countries whose industries had been damaged moved towards economic
recovery. Political integration, especially in Europe, emerged as an effort to stabilize
postwar relations. [28]
4.2 STATE OF EMERGENCY IN ASIA
In Asia political unrest called State of Emergency several countries. Here we are
discussion the situation of some countries:
Egypt
Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since
1967, except for an 18-month break in 1980. The emergency was imposed during the
1967 Arab-Israeli War, and reimposed following the assassination of President
Anwar Sadat. The law has been continuously extended every three years since 1981.
Under the law, police powers are extended, constitutional rights suspended and
censorship is legalized. The law sharply circumscribes any non-governmental political
activity: street demonstrations, non-approved political organizations, and unregistered
financial donations are formally banned. Some 17,000 people are detained under the
law, and estimates of political prisoners run as high as 30,000. [29]
28 Duggan, John P. Herr Hempel at the German Legation in Dublin 1937–1945 (Irish Academic Press)
2003
19
29 Shehata, Samer (Mar 26, 2004). "Egypt After 9/11: Perceptions of the United states". Contemporary
Conflicts. Social Science Research Council.[ http://conconflicts.ssrc.org/archives/mideast/shehata/.
Retrieved 29 January 2011].
Hong Kong
The Standing Committee of the National People's Congress can declare a state of
emergency and deploy troops from the People's Liberation Army Hong Kong
Garrison under the Law of the People's Republic of China on the garrisoning of the
Hong Kong Special Administrative Region.
The Chief Executive of Hong Kong along with the Executive Council can prohibit
public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft
and appoint special constable all under Chapter 245 ("Public Order Ordinance") of
Hong Kong Law.
Since 1997 no emergency measure have been enacted. Prior to 1997 emergency
measures have been used for 4 major incidents:
Hong Kong 1956 riots - with involvement of British Forces and Hong Kong
Police
Hong Kong 1966 riots - with involvement of British Forces and Hong Kong
Police
Hong Kong 1967 Leftist Riots - with involvement of British Forces and Hong
Kong Police
Hong Kong 1981 riots - with involvement of Hong Kong Police [30]
Malaysia
In Malaysia, if the Yang di-Pertuan Agong is satisfied that a grave emergency exists
whereby the security, or the economic life, or public order in the Federation or any
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part thereof is threatened, he may issue a Proclamation of Emergency making therein
a declaration to that effect.
30 [http://en.wikipedia.org/wiki/State_of_emergency#cite_note-19 Last visited in 22 October 2011]
In the history of Malaysia, a state of emergency was declared by the then-colonial
government of Britain. The state of emergency lasted from 1948 until 1960 to deal
with the communists led by Chin Peng.
States of emergency were also declared during the Indonesia-Malaysia confrontation
in 1962, the 1966 Sarawak constitutional crisis and 1977 Kelantan Emergency.
When a race riot broke out on May 13, 1969, a state of emergency was declared.
Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by
telephone on November 13, 2007 (the last day of his mission) that, "Today, this
country still lives under (a state of) emergency." Although not officially proclaimed
as a state of emergency, the Emergency Ordinance and the Internal Security Act had
allowed detention for years without trial. [31]
4.3 STATE OF EMERGENCY IN SOUTH ASIA
South Asia is always suffering political problem. So state of emergency declaration is
very common phenomenon here. I am discussing the case of India and Pakistan in
this presentation.
4.3.1State of Emergency in India
A state of emergency in India refers to a period of governance under an
altered constitutional setup that can be proclaimed by the President of India, when he
perceives grave threats to the nation from internal and external sources or
21
from financial situations of crisis. Under the advice of the cabinet of ministers and
using the powers vested in him largely by Part XVIII of the Constitution of India,
31 "Malaysia lives under state of emergency - EU envoy". Reuters. November 13, 2007.
[http://in.reuters.com/article/13?pageNumber=1 Last visited in 22 October 2011].
the President can overrule many provisions of the constitution, which
guarantee fundamental rights to the citizens of India and acts governing devolution of
powers to the states which form the federation. In the history of independent India,
there were three periods during which a state of emergency was deemed to have
existed.
1. Between 26 October 1962 to 10 January 1968 during the India-China war —
"the security of India" having been declared "threatened by external
aggression".
2. Between 3 December 1971 to 1977 originally proclaimed during the Indo
Pakistan war, and later extended along with the third proclamation — "the
security of India" having been declared "threatened by external aggression".
3. Between 26 June 1975 to 21 March 1977 under controversial circumstances of
political instability under the Indira Gandhi's prime ministership — "the
security of India" having been declared "threatened by internal disturbances".
The President can declare three types of emergencies:
National emergency
State emergency
Financial emergency
National emergency under article 352
22
National emergency is caused by war, external aggression or armed rebellion in the
whole of India or a part of its territory. Such an emergency was declared in India in
1962 (Indo-China war), 1971 (Indo-Pakistan war), and 1975 (declared by Indira
Gandhi to maintain law and order in the country).
The President can declare such an emergency only on the basis of a written request by
the Council of Ministers headed by the Prime Minister. Such a proclamation must be
approved by the Parliament within one month. Such an emergency can be imposed
for six months. It can be extended by six months by repeated parliamentary approval.
In such an emergency, Fundamental Rights of Indian citizens can be suspended. The
six freedoms under Right to Freedom are automatically suspended. However, the
Right to Life and Personal Liberty cannot be suspended according to the original
Constitution. It modifies the federal system of government to a unitary one.
The Parliament can make laws on the 66 subjects of the State List (which contains
subjects on which the state governments can make laws). Also, all money bills are
referred to the Parliament for its approval. The term of the Lok Sobha can be
extended by a period of one year but not more than six months from the date when
the emergency has ceased to exist.
State emergency under article 356
State emergency is declared on failure of constitutional machinery in a state. Nearly
every state in India has been under a state of emergency at some point of time or the
other. The state of emergency is commonly known as 'President's Rule'.
If the President is satisfied, on the basis of the report of the Governor of the
concerned state or from other sources that the governance in a state cannot be carried
out according to the provisions in the Constitution, he can declare emergency in the
state. Such an emergency must be approved by the Parliament within a period of two
months.
23
It is imposed for six months and can last for a maximum period of three years with
repeated parliamentary approval every six months. If the emergency has to be
extended for more than three years, it can be done by a constitutional amendment, as
has happened in Punjab and Jammu and Kashmir.
During such an emergency, the President can take over the entire work of the
executive, and the Governor administers the state in the name of the President. the
Legislative Assembly can be dissolved or may remain in suspended animation. The
Parliament makes laws on the 66 subjects of the state list. All money bills have to be
referred to the Parliament for approval. In this situation ministers of state legislature
are not allowed to perform action in state.
a. Financial emergency under article 360
If the President is satisfied that there is an economic situation in which the financial
stability or credit of India is threatened, he or she can declare financial emergency.
Such an emergency must be approved by the Parliament within two months. It has
never been declared. Such a situation had arisen but was avoided by putting the gold
assets of India as collateral for foreign credit.
It remains enforced till the President revokes it.
In case of a financial emergency, the President can reduce the salaries of all
government officials, including judges of the Supreme Court and High Courts. All
money bills passed by the State legislatures are submitted to the President for his
approval. He can direct the state to observe certain principles (economy measures)
relating to financial matters.
The phrase Emergency period used loosely, when referring to the political history of
India, often refers to the third and the most controversial of the three occasions. [32]
32 V.N Shukla, “ Constitution of India”,( India : Eastern book company), 1988; P 122- 128
4.3.2 State of Emergency in Pakistan
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In Pakistan, a state of emergency was declared five 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 1998 by President Rafiq Tarrar
In 2007 by President General Pervez Musharraf
The first four were regarded as the imposition of direct martial law. In 2007 a 'state of
emergency' was declared.In the constitution of Pakistan has the provision of State of
Emergency as well as Martial Law.
State of Emergency
Articles 119 and 120 of the 1982 Constitution state on the reasons for the
announcement of a state of emergency:
ARTICLE 119. In the event of natural disaster, dangerous epidemic diseases or a
serious economic crisis, the Council of Ministers... may declare a state of emergency
in one or more regions or throughout the country for a period not exceeding six
months.
ARTICLE 120. In the event of serious indications of widespread acts of violence
aimed at the destruction of the free democratic order established by the Constitution
or of fundamental rights and freedoms, or serious deterioration of public order
because of acts of violence, the Council of Ministers, after consultation with the
National Security Council, may declare a state of emergency in one or more regions
or throughout the country for a period not exceeding six months. [33]
33 [www.pakistani.org/pakistan/constitution/ Last visited in 01 November 2011]
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Martial law
Article 122 of the 1982 Constitution provides:
ARTICLE 122: The Council of Ministers, under the chairmanship of the President of
the Republic, after consultation with the National Security Council, may declare
martial law in one or more regions or throughout the country for a period not
exceeding six months, in the event of widespread acts of violence which are more
dangerous than the cases necessitating a state of emergency and which are aimed at
the destruction of the free democratic order or the fundamental rights and freedoms
embodied in the Constitution; or in the event of war, the emergence of a situation
necessitating war, an uprising, or the spread of violent and strong rebellious actions
against the motherland and the Republic, or widespread acts of violence of either
internal or external origin threatening the indivisibility of the country and the nation. [34]
4.4 EMERGENCY IN UNITED KINGDOM AND USA
UK
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. [35]
34 [ http://en.wikipedia.org/wiki/Martial_law Last visited in 20 November 2011]
35 The Civil Contingencies Act 2004 (c 36) is an Act of the Parliament of the United Kingdom
USA
26
In the United States, there are several methods for government response 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". [36]
36 V. Article of Amendment to the Constitution of the United States, as encoded in United States Statutes
at Large (Washington, D.C.: Government Printing Office, 1874), p. 21 (of 755). Retrieved from 16:06, 4
July 2008 (UTC).
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Chapter 5
RECOMMENDATION AND CONCLUDING REMARKS
5.1 DISCUSSION
The basic significance of the state of emergency as an original structure through
which law incorporates the living being - and, this, by suspending itself - has emerged
with full clarity in the military order that the President of the United States issued on
November 13, 2001. The issue was to subject non-citizens suspected of terrorist
activities to special jurisdiction that would include "indefinite detention" and military
tribunals. The U.S. Patriot Act of October 26, 2001, already authorized the Attorney
General to detain every alien suspected of endangering national security.
Nevertheless, within seven days, this alien had to either be expelled or accused of
some crime. What was new in Bush's order was that it radically eradicated the legal
status of these individuals, and produced entities that could be neither named nor
classified by the Law. Those Talibans captured in Afghanistan are not only excluded
from the status as Prisoners of War defined by the Geneva Conventions, they do not
correspond to any jurisdiction set by American law: neither prisoners nor accused,
they are simply detainees, they are subjected to pure de facto sovereignty to a
detention that is indefinite not only in its temporal sense, but also in its nature, since it
is outside of the law and of all forms of legal control. With the in detainees at
Guantamo Bay, naked life returns to its most extreme indetermination.
In Bangladesh the Constitution has been abused badly in the last 18 months. The past
Caretaker Government had taken advantage of the perceived ambiguity of the
Constitution in Article 58B on length of Caretaker administration. It has also
28
flouted precedents set twice by two previous Caretaker governments, of holding
parliamentary elections within 90 days. The Constitution provides that there shall
be a Non-Party Caretaker Government during the period from the date on which
the Chief Adviser of such government enters upon office after Parliament is
dissolved or stands dissolved by reason of expiration of its term till the date on
which a new Prime Minister enters into office after the constitution of Parliament.
The past Caretaker Government had to hold parliamentary elections, even after a
year and half - a job done in three months by its predecessors.
What people believe that by not following earlier precedents and holding
general elections within three months, the past Caretaker Government had set a very
bad precedent about the tenure of such governments. The question now is what would
be length of next Caretaker Government, if any? Who would be held accountable
for damaging the Constitution?
5.2 RECOMMENDATION
1. It is the state’s responsibility to take preventive measures to protect the
interests of society in time of war or other public emergency threatening the
life of the nation. Emergency measures must not exceed what is strictly
required by the situation and cannot be inconsistent with the state’s other
obligations under international law.
2. In very specific circumstances, the declaration of a state of emergency can be
a legitimate legal method to respond quickly to such threats. But as it entails
restrictions on the rights and freedoms of individuals, it must be used with
utmost care and as a means of last resort only. Declaring a state of emergency
must not become a cause to unduly restrict the exercise of fundamental human
rights.
29
3. Allegations of abuse of such derogations must be effectively and thoroughly
investigated, and the government must be fully accountable.
4. In order to enhance national oversight of the use of emergency legislation, the
Assembly is convinced that the legislature should have effective control of the
decision-making process.
5. The Assembly notes that an abusively declared or improperly conducted state
of emergency often results in excessive use of force, and, in particular, the
stifling of the freedoms of assembly and of expression.
6. National authorities should ensure appropriate training for law-enforcement
officials with respect to the non-derogable rights, in particular the rights to
life, freedom from torture and inhuman and degrading treatment and to the
principle of ‘no punishment without law’ – and the use of potentially lethal
force only as a last resort when all other means fail. Security forces should
have at their disposal the full panoply of non-violent and non-lethal means of
crowd control and should remain subject to stringent administrative and
judicial supervision.
7. The Assembly condemns any attempt to set up legislation concerning
demonstrations which would inevitably lead to emergency-like situations by
excessively limiting the rights of freedom of movement or expression and by
setting up inappropriate impediments to receiving authorization for such
demonstrations to take place.
8. The Assembly considers that the following safeguards – in addition to those
stated in Article 15 of the European Convention on Human Rights – should
always be provided for in a state of emergency:
8.1 Clear time limits and effective legislative oversight of any state of
emergency – for example through a “sunset clause” with the possibility of
extension subject to new parliamentary approval –, while ensuring that the
opposition can play its role;
30
8.2 Judicial scrutiny of the validity of a state of emergency and its
implementation.
9. The integrity of the judicial system – its competence, independence, and
impartiality – should be safeguarded, especially as concerns access to a court
and to an effective remedy.
5.3 CONCLUDING REMARKS
1. Declaring a state of emergency may be a legitimate State action, but such an
action must be conducted with the utmost care. Governments must exercise
emergency powers with the understanding that states of emergency are
intended to preserve democracy and the rule of law. It is not an excuse to flout
those norms.
2. National authorities should take care to properly train their first responders on
legally acceptable behavior – i.e. respect for the non-derogable rights to life
and freedom from torture and inhuman treatment – and the use of force as an
extreme last resort. Security forces should also have as many non-violent and
non-lethal means of crowd control as possible. Police forces should always
remain operationally independent of the government, subject to administrative
and judicial sanctions for misconduct, and the public should be assured of
their neutrality in any emergency operation.
3. There is a presumption of freedom of assembly in all situations and all
restrictions upon that qualified right instituted pursuant to an emergency must
be lawfully initiated. Thus, restrictions on time, place, or manner of assembly
are preferable to an outright ban.
4. Reporting facts and expressing opinions as such should not be regarded as
constituting a threat to national security. Thus any restrictions of the freedom
of expression must be shown to be necessary in a democratic society to
protect a legitimate national security interest. Such restrictions should be as
31
clear and limited as possible. The public should have constant access to
independent media, and those who manipulate the media in times of public
crisis should face sanctions.
5. Safeguards on the national level are of the highest importance. States should
be able to deal with crises without threatening their own people, and be able to
respond to the threat of human rights violations, preferably without
international intervention.
6. There should be clear time limits and effective legislative oversight of any
state of emergency – perhaps through a sunset provision with extension
subject to periodic, regular parliamentary approval – and civil society or
voices of opposition should not be unduly suppressed. Judicial approval of the
constitutionality of a state of emergency may also be appropriate. The
integrity of the judicial system – its competence, independence, and
impartiality – should be safeguarded as far as possible, with special attention
given to preserving access to the courts and to an effective remedy.
5.4 LIMITATIONS
Main limitation with the thesis is source of information is only available from various
newspaper and internet. The major Problem was of tracing and getting an interview
with the respondents. This emerged since they were very busy and with large
commitments and responsibilities. It was difficult to get them and later have they
agree to allocated time. Judges should enforce it rigorously in cases involving torture
against detainees. The fact that many of the detainees are almost certainly innocent
makes the ban more pressing. Mass preventive detention during emergency has
violated the rights of thousands of innocent people and, in the name of emergency,
they have been deprived of enjoying the rights guaranteed to the normal criminal
defendant. It is impossible for them to get any legal relief or to gain quick release by
establishing their innocence. Arbitrary arrest on mere suspicion, especially when it is
followed by months and years of detention, is a very traumatic experience, especially
32
when the person is innocent. Though nothing can compensate for the loss of freedom
and the traumatic experience of victims and their families, a financial payment is the
least the state should do to minimize the harmful effects. Awarding compensation to
people wrongly detained would discourage future abuse of power. So it is not only
simple justice that requires compensation, but bureaucratic efficiency as well. Given
the dependence of most developing countries, including Bangladesh, upon other
developed countries and donor agencies controlled by them, an international
consensus must also be developed so that, irrespective of the nature and extent of an
emergency, certain universal standards are maintained.
.
REFERENCES
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BOOKS
1. The Constitution of Bangladesh, Ministry of Law, Judiciary and
Parliamentary Affairs, 2008.
2. Thomas I. Cook, ed., Two Treatises of Government, by John Locke (New
York: Hafner, 1947),
3. Mahmudul Islam, “Constitutional Law of Bangladesh”, 1995
4. Md. Abdul Halim, “ Constitution, Constitutional Law and Politics :
Bangladesh Perspective”,1998, Dhaka,
5. V.N Shukla, Constitution of India, India : Eastern book company,1988
6. A.B.M. Mofizul Islam, “Liberty of the People : Britain and Bangladesh,
Dhaka : Institute of Human Rights and Legal Affairs 1987
7. Daily News Paper: The Daily Ittefaq, The Daily Prothom Alo, The Daily
Jugantor (Internet Version)
8. “The Judgment” by Kuldip Nayer which was published by Vikash Publishing
House, Delhi in 1977.\
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ELECTRONIC DATA
1. http://en.wikipedia.org/wiki/State_of_emergency; Last visited 24 December,
2011
2. http://www.bbc.co.uk/news/world-south-asia-12651483; Last visited 14
December, 2011
3. www.usatoday.com/news/world/2007-01-11-bangladesh_x.htm; Last visited
30, November 2011.
4. www. thedailystar.net/2007/01/12/d7011201011.htm; Last visited 27
December, 2011.
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