{"id":2241,"date":"2014-07-27T09:46:20","date_gmt":"2014-07-27T08:46:20","guid":{"rendered":"http:\/\/english.thesunrisetoday.com\/?p=2241"},"modified":"2015-06-21T01:18:12","modified_gmt":"2015-06-21T00:18:12","slug":"the-misuse-of-emergency-powers","status":"publish","type":"post","link":"https:\/\/english.thesunrisetoday.com\/index.php\/the-misuse-of-emergency-powers\/","title":{"rendered":"The misuse of emergency powers"},"content":{"rendered":"

\"Barrister<\/a>Barrister Nazir Ahmed<\/strong>
\nThe original 1972 Constitution of Bangladesh did not provide for proclamation of emergency and suspension of fundamental rights during emergency and preventative detention.\u00a0 As per the provision of Article 33, preventive detention was not possible.\u00a0 It was felt by the then ruling Awami League Government that the Constitution should be amended to include those provisions.\u00a0 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.
\nUnder the authority of this amended provision of Article 33, Parliament in February 1974 enacted the most hated draconian law \u2013 the Special Powers Act 1974 providing for preventive detention for all times.\u00a0 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.
\nOther significant change brought by the Second Amendment was the extension interval of time between the parliamentary sessions.\u00a0 The original Constitution provided for maximum 60 days interval between two sessions of Parliament.\u00a0 By the Second Amendment, it was extended to 120 days.\u00a0 This change essentially weakened the spirit and concept of responsible government in two ways.\u00a0 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.\u00a0 Secondly: when the Parliament is in recess, the government will get an easy hand to promulgate ordinances by-passing Parliament.\u00a0 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 \u2013 irresponsible and unaccountable government.
\nBangladesh, as part of India, was a British colony for nearly 200 years, from 1757 to 1947.\u00a0 It was subsequently a part of Pakistan for 23 years.\u00a0\u00a0 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.\u00a0 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.\u00a0 Hundreds of thousands of Indians and their political activists and leaders had to suffer imprisonment and detention without trial for an indefinite period.
\nAfter 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.\u00a0 During this continued emergency for a long period, the opposition was suppressed and thousands of citizens were put into prison for years without trial.
\nThe beginning and the end
\nThis 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.\u00a0 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.\u00a0 As a result, in the original Constitution of Bangladesh neither had the provision of emergency nor had any provision for the preventive detention inserted.\u00a0 This decision was a bold and admirable one and it was helpful to the nourishment of living democracy.\u00a0 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.
\nUnfortunately, this unique commitment and boldness could not be kept by the ruling party.\u00a0 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.
\nIdeally, the provision for emergency in the Constitution is not an undemocratic phenomenon.\u00a0 Almost all legal systems, someway or other, recognises the idea of suspension of some fundamental rights in times of emergency.\u00a0 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.
\nAbuse of emergency powers
\nThe safety and security of the State are considered to be of primary and paramount consideration.\u00a0 If the State itself is destroyed, no individual citizen will have any right or liberty.\u00a0 Thus, the necessity for suspension of certain rights at the time of emergency is internationally recognised.\u00a0 Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency.\u00a0 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.
\nHowever, there is an apparent danger in vesting discretionary power of declaring emergency and ordering preventing detention with the executive authority.\u00a0 Such provisions carry with the real risk of abuse of power if suitable and proper safeguards against the abuse are not specifically provided for.\u00a0 Most governments in the developing countries abuse emergency and preventive detention powers for political purposes.\u00a0 They use these as a weapon to suppress the opposition and to perpetuate their rule.\u00a0 To do these, they destroy the democratic institutions.
\nEmergency is normally declared on three grounds: war, external aggression and internal disturbance.\u00a0 There appears to be no objection in relation to the first two grounds, for the concept of \u2018war\u2019 and \u2018external aggression\u2019 are well defined in the international law.\u00a0 The misuse of emergency power lies in the third ground \u2013 \u2018internal disturbance.\u2019\u00a0 The term \u2018internal disturbance\u2019 is nowhere defined.\u00a0 It is a vague term and because of this vagueness the executive can easily misuse this emergency power.\u00a0 Thus, emergency may be declared on the pretext of internal disturbance though there is no disturbance in reality.
\nEmergency declared five times
\nFor 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.\u00a0 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.\u00a0 The second emergency declared after the death of President Ziaur Rahman was not necessarily for perpetuating rule.\u00a0 It was declared just to face an unexpected situation which might have occurred following President Ziaur Rahman\u2019s death.
\nThe Constitution is a solemn document which gives its citizens some fundamental rights and liberties.\u00a0 But the emergency provision and the provision of preventive detention take away those rights.\u00a0 According to Justice Badrul Haider Chowdhury, former Chief Justice of Bangladesh, \u201cin the constitution, to put it simply what was given by one hand was taken away by the other.\u201d
\nThe 1972 Constitution was an ideal and democratic in many respects.\u00a0 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.\u00a0 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 \u2013 for even more harsh laws and political repression sacrificing the ambitious and dreamed ideals embodied in the Constitution by this very party.\u00a0 This is very unfortunate.\u00a0 According to Barrister Moudud Ahmed, a renowned lawyer and writer, \u201cIn order to consolidate their position further the high degree of idealism embodied in the 1972 Constitution was at last sacrificed.\u00a0\u00a0 The Amendment Bill was passed within a short time without much debate.\u00a0 The Opposition proposal including that of Mr Ataur Rahman Khan to refer the Bill to elicit public opinion was rejected\u201d (\u2018Era of Sheikh Mujibur Rahman,\u2019 P149).
\nBarrister Nazir Ahmed: a UK based Legal expert, analyst, writer and columnist.<\/em><\/p>\n

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