States of Emergency and the Law

During the period of intense resistance to colonisation in the Subcontinent, the use of emergency powers was correctly seen as a key method used by colonial authorities to stifle incipient nationalism and independence efforts. Virtually all leaders of decolonisation movements railed against such emergency legislation and vowed to abolish it immediately upon achieving independence. Unfortunately, too many saw the value of maintaining such laws, whether in constitutional or legislative form, to cement and perpetuate their own grip on power. In this book, Dr M. Ehteshamul Bari offers a masterful account of this phenomenon, focusing mainly on Bangladesh, which has had five states of emergency imposed since independence, but also comparing and contrasting the position with other constitutional democracies. Dr Bari provides a clear and compelling analysis of the critical need to maintain the rule of law and fundamental human rights, no matter the security challenges faced by a state. In an increasingly uncertain world, I commend this very important work without reservation to jurists, legislators and policymakers. Prof David Weisbrot AM FAAL DLitt Chair, Australian Press Council Former President of the Australian Law Reform Commission (1999-2009). A wide-ranging contribution on theory of 'states of emergency', in constitutional law and in political practicewith detailed attention to British India, modern India, Pakistan and, particularly, Bangladesh. A 'standard constitutional model of emergency powers' is suggested. Dr M. EhteshamulBari provides an instructive analysis of how it may be possible to guard against grasping guards. A/Professor Iain Stewart (Honorary Fellow, Macquarie Law School, Macquarie University) Dr Bari's work is a deep exploration of emergency powers and the rights of individuals subject to those powers in Bangladesh's fragile democratic system. Notably, Bari situates the Bangladeshi law against a masterful analysis of comparable jurisdictions such as India and Pakistan thereby filling a gap in legal scholarship. Bari's work is a must-read for scholars of constitutional law in South Asia and indeed anyone interested in human rights within a multi-religious societal context. Professor Sandeep Gopalan, Pro Vice-Chancellor (Academic Innovation), Deakin University.

Auteur

Dr M. Ehteshamul Bari is a Lecturer in Law and the Director of the JD Program at Deakin University, Melbourne, Australia. He did his PhD in Law from Macquarie University, Sydney, in 2015 on an International Macquarie University Research Scholarship. Ehteshamul has published research articles on various aspects of constitutional law, human rights law and public international law in quality peer reviewed journals, such as the Oxford University Commonwealth Law Journal, San Diego International Law Journal, Commonwealth Law Bulletin and the Journal of East Asia and International Law.

Résumé

In Bangladesh, the absence of effective constitutional safeguards for governing emergency regimes has resulted in each of the five emergencies being invoked on the imprecise ground of internal disturbance. Two of these emergencies were even continued after the alleged threat posed to the life of the nation was over. Furthermore, during these five periods of emergency, either all or most of the fundamental rights guaranteed by the Constitution were suspended and the power of preventive detention was abused. Since no systematic and structured research has so far been carried out evaluating the Bangladeshi Constitution's provisions concerning the proclamation of emergency,suspension of fundamental rights and preventive detention, and the invocation of these extraordinary measures, this book will enhance knowledge by identifying the flaws, deficiencies and lacunae of the constitutional provisions concerning these exceptional measures. Consequently, based on these findings, recommendations will be put forward to rectify these defects from comparative constitutional law and normative perspectives. The outcome of this book will not only establish the best means for ensuring the maintenance of the rule of law but also for preventing undue intrusion on the fundamental human rights of individuals during emergency situations in Bangladesh.

This book will be of great interest and use to scholars and students of comparative constitutional law, human rights law and Asian law. Given the law reform analysis undertaken in this work, it will also be beneficial for the policy makers in Bangladesh and for the policy makers of constitutional polities facing similar problems with the issue of constraining the exercise of emergency powers.

Contenu

Contents

Acknowledgments

Table of Cases

Table of Constitutions/Statutes

Table of Legislative Instruments

1 Introduction

2 General Issues Concerning the Powers of Emergency and the Evolution of these Powers in the Indo-Pak-Bangladesh Subcontinent

3 Suspension of the Fundamental Rights and the Exercise of the Power of Preventive Detention during Emergencies in the Indo-Pak-Bangladesh Subcontinent

4 Devising and Developing a Standard Emergency Model

5 The Emergencies Proclaimed in Bangladesh on Five Occasions from 1974 to 2007 and their Justification

6 Impact of the Five Proclamations of Emergency in Bangladesh on the Fundamental Rights of Individuals

7 Preventive Detention Laws in Bangladesh, their Exercise during the Five Proclamations of Emergency and Judicial Response to Such Exercise

8 Conclusion