The misuse of emergency powers

Barrister Nazir Ahmed
The original 1972 Constitution of Bangladesh did not provide for proclamation of emergency and suspension of fundamental rights during emergency and preventative detention.  As per the provision of Article 33, preventive detention was not possible.  It was felt by the then ruling Awami League Government that the Constitution should be amended to include those provisions.  Accordingly, the Constitution (Second Amendment) Act 1973 was passed which, among others, amended Article 33 providing for preventive detention and inserted Part IXA conferring power on Parliament and the executive to deal with emergency situations and providing for suspension of enforcement of the fundamental rights during the period of emergency.
Under the authority of this amended provision of Article 33, Parliament in February 1974 enacted the most hated draconian law – the Special Powers Act 1974 providing for preventive detention for all times.  Since the Act came into force, it has continuously been being used for apparent political purpose by the government of the day to suppress its political opponents. Birth of unaccountable govt.
Other significant change brought by the Second Amendment was the extension interval of time between the parliamentary sessions.  The original Constitution provided for maximum 60 days interval between two sessions of Parliament.  By the Second Amendment, it was extended to 120 days.  This change essentially weakened the spirit and concept of responsible government in two ways.  Firstly: extending the interval period to 120 days means Parliament will be in recess for a longer period which, in turn, means the government will be out of its responsibility in Parliament for a longer period.  Secondly: when the Parliament is in recess, the government will get an easy hand to promulgate ordinances by-passing Parliament.  Thus, it can safely be said that by extending the period between the two sessions of Parliament by the Second Amendment, the government of the day was given an easy way to be dictatorial – irresponsible and unaccountable government.
Bangladesh, as part of India, was a British colony for nearly 200 years, from 1757 to 1947.  It was subsequently a part of Pakistan for 23 years.   During those long period, the arbitrary application of preventive detention and usage of emergency provision were so bitter and nightmare that the British and Pakistani legacies left a good lesson for Awami League leaders.  To maintain its colonial rule, the British government used these laws under the Government of India Act 1935 as a necessary tool to crash the opposition and prolong its rule.  Hundreds of thousands of Indians and their political activists and leaders had to suffer imprisonment and detention without trial for an indefinite period.
After partition of the Indian sub-continent, the two Governor Generals of Pakistan, Golam Mohammed and Iskander Mirza, used the power of emergency to perpetuate their rule and military dictator in 1965 due to war with India was not lifted till 1969 when he was forced to leave power, even though the war was over within three weeks.  During this continued emergency for a long period, the opposition was suppressed and thousands of citizens were put into prison for years without trial.
The beginning and the end
This bitter and shocking experience led the Awami League to make a firm commitment since the formation of United Front in 1954 to repeal not only these black laws but also to remove any scope or prerogative enabling an individual to derail the process of democracy.  With this experience and commitment in mind, the Awami League government in Bangladeshi did not want to leave any scope for such exercise of power by the President.  As a result, in the original Constitution of Bangladesh neither had the provision of emergency nor had any provision for the preventive detention inserted.  This decision was a bold and admirable one and it was helpful to the nourishment of living democracy.  In this context, it can fairly be said that the 1972 Constitution was an excellent progressive document for the new born county, which had fought a bloody war and was, in fact, thirsty to practice proper democracy.
Unfortunately, this unique commitment and boldness could not be kept by the ruling party.  Within less than nine months, the Awami league government inserted the provisions for declaring emergency and preventative detention in the Constitution by the Second Amendment Act 1973.
Ideally, the provision for emergency in the Constitution is not an undemocratic phenomenon.  Almost all legal systems, someway or other, recognises the idea of suspension of some fundamental rights in times of emergency.  In some countries, provisions of emergency are incorporated in the Constitution, whereas in other countries special laws make provisions in legal terms for situations of crisis when state of emergency may be declared.
Abuse of emergency powers
The safety and security of the State are considered to be of primary and paramount consideration.  If the State itself is destroyed, no individual citizen will have any right or liberty.  Thus, the necessity for suspension of certain rights at the time of emergency is internationally recognised.  Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency.  For example, 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 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 Conventions.
However, there is an apparent danger in vesting discretionary power of declaring emergency and ordering preventing detention with the executive authority.  Such provisions carry with the real risk of abuse of power if suitable and proper safeguards against the abuse are not specifically provided for.  Most governments in the developing countries abuse emergency and preventive detention powers for political purposes.  They use these as a weapon to suppress the opposition and to perpetuate their rule.  To do these, they destroy the democratic institutions.
Emergency is normally declared on three grounds: war, external aggression and internal disturbance.  There appears to be no objection in relation to the first two grounds, for the concept of ‘war’ and ‘external aggression’ are well defined in the international law.  The misuse of emergency power lies in the third ground – ‘internal disturbance.’  The term ‘internal disturbance’ is nowhere defined.  It is a vague term and because of this vagueness the executive can easily misuse this emergency power.  Thus, emergency may be declared on the pretext of internal disturbance though there is no disturbance in reality.
Emergency declared five times
For example, in the constitutional history of Bangladesh, emergency was declared five times: the first emergency was declared on 28th December 1974, the second emergency was declared on 30th May 1981, the third emergency was declared on 26th November 1987, the fourth emergency was declared on 27th November 1990 and the fifth emergency was declared on 11th January 2006.  Each and every time it was declared on the ground of internal disturbance. In four times, the emergency was declared mainly for political purpose – to suppress the anti-government movement and to perpetuate the rule.  The second emergency declared after the death of President Ziaur Rahman was not necessarily for perpetuating rule.  It was declared just to face an unexpected situation which might have occurred following President Ziaur Rahman’s death.
The Constitution is a solemn document which gives its citizens some fundamental rights and liberties.  But the emergency provision and the provision of preventive detention take away those rights.  According to Justice Badrul Haider Chowdhury, former Chief Justice of Bangladesh, “in the constitution, to put it simply what was given by one hand was taken away by the other.”
The 1972 Constitution was an ideal and democratic in many respects.  But the Second Amendment of the Constitution, brought within less than nine month of its adoption, was a direct destructive blow on the democratic Constitution.  The irony is that the party, which led an intense movement for 23 years against all black laws and oppression, proceeded – in order to consolidate their power – for even more harsh laws and political repression sacrificing the ambitious and dreamed ideals embodied in the Constitution by this very party.  This is very unfortunate.  According to Barrister Moudud Ahmed, a renowned lawyer and writer, “In order to consolidate their position further the high degree of idealism embodied in the 1972 Constitution was at last sacrificed.   The Amendment Bill was passed within a short time without much debate.  The Opposition proposal including that of Mr Ataur Rahman Khan to refer the Bill to elicit public opinion was rejected” (‘Era of Sheikh Mujibur Rahman,’ P149).
Barrister Nazir Ahmed: a UK based Legal expert, analyst, writer and columnist.