The Unjust Exercise of Emergency Powers in Bangladesh and heir Consequent Impact on the Fundamental Rights: A Critical Appraisal

Abstract

The declaration of a state of emergency can be a legitimate constitutional method to take prompt measures in protecting the interests of the society in times of crises threatening the life of the nation. But as it entails restrictions on the fundamental rights of the citizens, it must be used with utmost care and as a means of last resort only. The objective of this paper is to examine whether it has been justifiable to deprive the citizens of Bangladesh from the enjoyment of all or majority of the 18 fundamental rights guaranteed by the Constitution during the continuance of the five emergencies invoked for dealing with ‘internal disturbance’. In this paper, it has been found out that in the absence of effective mechanisms in the Constitution of Bangladesh to obviate the possibility of abuse of the procedure for invoking and clinging on to emergency powers, emergencies have been conveniently resorted to and continued by succeeding generations of executive for purposes other than that of securing the life of the nation at the expense of the core fundamental rights of individuals. Therefore, this paper recommends for insertion of the following safeguards in the Constitution of Bangladesh for not only reducing the possibility of abuse of the emergency powers, but also ensuring the maintenance of the rule of law: a) a list of concrete circumstances which truly endanger the life of the nation and thereby merit the proclamation of a state of emergency, b) the mechanisms for ensuring the effective scrutiny of a state of emergency and its timely termination, and c) a list of non-derogable rights to prevent the abuse of human rights.