Abstracts Law

Suspension of the fundamental rights and the unrestrained exercise of the power of preventive detention during the successive proclamations of emergency in Bangladesh: a legal study

by M. Ehteshamul Bari

The declaration of a state of emergency can be a legitimate constitutional method to take prompt preventive measures in protecting the interests of the society in times of crises threatening the life of the nation. However, emergency powers should be exercised in a manner that does not compromise a nation’s commitment to democratic values, such as maintaining the rule of law and safeguarding fundamental rights, particularly those rights from which no derogation should be made. The Constitution of Bangladesh, 1972, unlike the Constitutions of India and Pakistan, did not originally contain provisions concerning the proclamation of emergency, suspension of fundamental rights and the exercise of the power of preventive detention. However, on 22 September 1973, the Constitution (Second Amendment) Act inserted in the Constitution of Bangladesh provisions concerning these extraordinary measures, which are closely modelled on the parallel provisions contained in the Constitutions of India and Pakistan. Furthermore, following in the footsteps of the Constitutions of India and Pakistan, the Constitution of Bangladesh, as amended in 1973, does not stipulate any reliable system of checks and balances for diminishing the possibility of abuse of these exceptional measures. Consequently, in the absence of effective constitutional safeguards in Bangladesh for governing emergency regimes, the power to invoke emergencies has been resorted to as the means for substituting the rule of law with rule of man. Since the insertion of the provisions concerning emergency into the Constitution, emergencies have been proclaimed in Bangladesh on five occasions. In each case, these emergencies were invoked on the imprecise ground of internal disturbance. Two of these emergencies were even continued after the threat posed to the life of the nation was over. Furthermore, during the five periods of emergency rule in Bangladesh, either all or most of the fundamental rights guaranteed by the Constitution were suspended and the power of preventive detention under the Special Powers Act as well as under the temporary laws was misapplied and abused. Thus the constitutional provisions concerning emergency and preventive detention laws have actually served as a means for depriving the citizens of their fundamental rights. This thesis will seek to identify the flaws, deficiencies and lacunae of the constitutional provisions concerning emergency, suspension of fundamental rights and preventive detention in Bangladesh. Consequently, based on these findings, recommendations will be put forward from comparative constitutional law and normative perspectives for insertion in the Constitution of Bangladesh detailed norms providing for legal limits on the wide power of the executive concerning the proclamation, administration and termination of emergency. The incorporation of effective safeguards in the Constitution will ensure that emergencies are no longer resorted to as the means of discarding the rule of law and depriving individuals of their fundamental rights.