Chapter 1

INTRODUCTION

1.1 INTRODUCTION

A state of emergency is a governmental declaration that may suspend some normal

functions of the executive, legislative and judicial powers, alert citizens to change

their normal behaviors, or order government agencies to implement emergency

preparedness plans. It can also be used as a rationale for suspending rights and

freedoms, even if guaranteed under the constitution. Such declarations usually come

during a time of natural or man made disaster, during periods of civil unrest, or

following a declaration of war or situation of international or internal armed conflict.

Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on human rights and

freedoms and governmental procedure are regulated by the constitution and or a law

that limits the powers that may be invoked. Rights and freedoms may be suspended

during an emergency, for instance, freedom of movement, but not non-derogable

rights. In many countries it is illegal to modify the emergency law or the constitution

during the emergency[1]

1.2 HISTORICAL BACKGROUND

The exercise of emergency powers had long been a concern of the classical political

theorists, including the eighteenth-century English philosopher John Locke,

1 D. Prémont, C. Stenersen, I. Oseredczuk Bruylant, Non derogable Rights and States of

emergency,ed,( Brussells, 1996), p644

1

who had a strong influence upon the Founding Fathers in the United States. A

preeminent exponent of a government of laws and not of men, Locke argued that

occasions may arise when the executive must exert a broad discretion in meeting

special exigencies or “emergencies” for which the legislative power provided no

relief or existing law granted no necessary remedy. He did not regard this prerogative

as limited to wartime, or even to situations of great urgency. It was sufficient if the

“public good” might be advanced by its exercise. Emergency powers were first

expressed prior to the actual founding of the Republic. Between 1775 and 1781, the

Continental Congress passed a series of acts and resolves which count as the first

expressions of emergency authority. These instruments dealt almost exclusively with

the prosecution of the Revolutionary War.At the Constitutional Convention of 1787,

emergency powers, as such, failed to attract much attention during the course of

debate over the charter for the new government. It may be argued, however, that the

granting of emergency powers by Congress is implicit in its Article I, section 8

authority to “provide for the common Defense and general Welfare,” the commerce

clause, its war, armed forces, and militia powers, and the “necessary and proper”

clause empowering it to make such laws as are required to fulfill the executions of

“the foregoing Powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer thereof.” [2]

2 Thomas I. Cook, ed., Two Treatises of Government, by John Locke, (New York: Hafner, 1947), pp. 203-

207; Edward S. Corwin, The President: Office and Powers, 1787-1957, 4th ed (New York: New York

University Press, 1957), p. 147-148.

2

1.3 OBJECTIVES

1.3.1 GENERAL OBJECTIVE

The main objective of the research is to identify various aspect of emergency

practiced all around the world.

1.3.2 SPECIFIC OBJECTIVES

1. To identify the potential risk and situation of state of emergency provision

exits of the constitution of the various countries of the world.

2. Discuss about the types of emergency and emergency situation arises in the

world history.

3. Discuss about the state of emergency observed in North America and Western

Europe during the World War II.

4. State of emergency situation and constitutional provision in the Sub-

Continents especially in India, Pakistan, Sri Lanka, Nepal.

5. State of emergency declared in Bangladesh for five times.

3

Chapter 2

CONCEPT OF EMERGENCY

2.1 CONCEPT OF EMERGENCY

In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential

proximity between the state of emergency and sovereignty. But although his famous

definition of the sovereign as "the one who can proclaim a state of emergency" has

been commented on many times, we still lack a genuine theory of the state of

emergency within public law. For legal theorists as well as legal historians it seems as

if the problem would be more of a factual question than an authentic legal question.

The very definition of the term is complex, since it is situated at the limit of law and

of politics. According to a widespread conception, the state of emergency would be

situated at an "ambiguous and uncertain fringe at the intersection of the legal and the

political," and would constitute a "point of disequilibrium between public law and

political fact." The task of defining its limits is nevertheless nothing less than urgent.

And, indeed, if the exceptional measures that characterize the state of emergency are

the result of periods of political crisis, and if they for this very reason must be

understood through the ground of politics rather than through the legal or

constitutional ground, they find themselves in the illogical position of legal measures

that cannot be understood from a legal point of view, and the state of emergency

presents itself as the legal form of that which can have no legal form.

4

And, furthermore, if the sovereign exception is the original set-up through which law

relates to life in order to include it in the very same gesture that suspends its own

exercise, then a theory of the state of emergency would be the preliminary condition

for an understanding of the bond between the living being and law. To lift the veil

that covers this uncertain ground between, on the one hand, public law and political

fact, and on the other, legal order and life, is to grasp the significance of this

difference, or presumed difference, between the political and the legal; and between

law and life. Among the elements that render a definition of the state of emergency

thorny, we find the relationship it has to civil war, revolution and the right to resist.

And, in fact, since civil war is the opposite of the normal state, it tends to combine

with the state of emergency, which becomes the immediate response of the State

when faced with the gravest kind of internal conflict. In this way, the 20th century has

produced a inconsistent phenomenon defined as "legal civil war." [3]

2.2 STATE OF EMERGENCY IN HISTORY OF FAMOUS HISTORY

Let us look at the case of Nazi Germany. Just after Hitler came to power (or, to be

more precise, just after he was offered power) he proclaimed, on February 28, 1933,

the order for the Protection of the People and the State. This order suspends all the

articles in the Weimar Constitution maintaining individual liberties. Since this order

was never revoked, we can say that the entire Third Reich from a legal point of view

was a twelve year-long state of emergency. And in this sense we can define modern

dictatorship as the institution, by way of a state of emergency, of a legal civil war that

permits the elimination not only of political adversaries, but whole categories of the

population that resist being integrated into the political system. Thus the intentional

creation of a permanent state of emergency has become one of the most important

measures of contemporary States, democracies included. And furthermore, it is not

necessary that a state of emergency be declared in the technical sense of the term.

3 [http://www.generation-online.org/p/fpagambenschmitt.htm ; Last visited in 12 September 2011].

5

At least since Napoleon's decree of December 24, 1811, French doctrine has opposed

a "fictitious or political" state of siege in contradistinction to a military state of siege.

In this context, English jurisprudence speaks of a "fancied emergency"; Nazi legal

theorists spoke unconditionally of an "intentional state of emergency" in order to

install the National Socialist State. During the world wars, the remedy to a state of

emergency was spread to all the belligerent States. Today, in the face of the

continuous progression of something that could be defined as a "global civil war," the

state of emergency tends more and more to present itself as the dominant example of

government in contemporary politics. Once the state of emergency has become the

rule, there is a danger that this transformation of a provisional and exceptional

measure into a technique of government will entail the loss of the traditional

distinction between different forms of Constitution.

2.3 CLASSIFICATION OF EMERGENCY

Validity of a proclamation of emergency depends upon the satisfaction of the

executive about the existence of two things: the first one is war, external aggression

or internal disturbance and the second is the threat to the security or economic life of

Bangladesh or any part thereof by such war, external aggression or internal

disturbance [4]. On the basis of its, nature, emergency may be of three types, they are:

(1) Emergency of war: For war or external aggression, when emergency is

declared, it is called emergency of war. For example, India declared emergency of

war first time in October 1962 when china launched a massive attack on Indians north

eastern border and for the second time in December 1971 when Pakistan attacked

India, under article 352 on the plea of external aggression.

(2) Emergency of subversion: If any state declares emergency for internal

disturbances within the state to suppress civil war, or anti-government upsurge, is

called Emergency of subversion. For example, in our country, emergency was

4 Mahmudul Islam, “Constitutional Law of Bangladesh”, 1995, P. 278.

6

declared five times due to internal disturbance [5]. In Palestine also emergency was

declared recently on 13 June (2007). [6]

(3) Economic or financial emergency: The emergency declared with a view to

overcoming a situation in which the economic of the state is about to breakdown is

called economic emergency. For example Roosevelt (USA) adopted New Deal

Policy to overcome world wild financial depression under National Industrial

Recovery act 1930.For another example, article 360 of Indian constitution and article

235 of Pakistan constitution specifically provided the provision of Economic or

financial emergency. [7]

From territorial point of view emergency may be of two type: the first is National

emergency and the second is partial emergency. For example, under article 352

emergency can be declared in India and under 356 partial emergency can be declared.

The Pakistan constitution also provide for the National and Partial emergency [8].

Besides, there is also another emergency called Double Emergency. While one type

of emergency is in operation, the declaration of another type of emergency is called

Double Emergency. For example, Indian Govt. declare war emergency in December

6, 1971 that continued unto 1977,when another emergency of subversion was

declared in June 26, 1975,threatened by another internal disturbance.[9]

But there is no such provision of declaring double emergency in Bangladesh

constitution as well as the constitution of Pakistan.

5 1st Emergency was declared by Sheikeh Muzib Govt. on 28th December 1974

2nd Emergency was declared by Sattar Govt. on 30th November 1981

3rd Emergency was declared by Ershad Govt. on 26th November 1987

4th Emergency was declared by Ershad Govt. on 27th November 1990

5th Emergency was declared by Eyazuddin Govt. on 11 January 2007

6 The Daily Ittefaq June 14, 2007.

7 Article 360 of the present Indian Constitution and article 235 of the present Pakistan Constitution.

8 Under Article 232, National Emergency and under article 234, partial emergency can be declared in

Pakistan.

7

9 Md. Abdul Halim, “ Constitution, Constitutional Law and Politics : Bangladesh Perspective”,1998, Dhaka, Ibid P

246

2.4 NECESSITIES OF EMERGENCY

Necessities of emergency are very controversial matters, for emergency

may be right or wrong. it is true that providing the provision of emergency is

democratic, but its abuse in an undemocratic one. Emergency means one kind of

unexpected occurrence when immediate action becomes necessary [10], because the

security of state is more important than the liberty of any individual. As lord Atkinson

has said in R.V Holliday case-

“However precious the personal liberty of the subject be there is something for which

may be, to some extent, sacrificed by legal enactment, on account of national success

in the war, or escape from national plunder or enslavement.”[11]

So the state has to safeguard the liberties of all the people within its local area. As

V.N Shukla says in this regard-

“Event may take place threatening the very existence of the state and if there are no

safeguard, against such eventualities, the state together with all that is desired to

remain basis and immutable, will be swept away.”[12]

There are many examples in favor of keeping the provision for emergency. In present

Palestine, emergency is declared owing to collision between Fatah and Hamas. [13] In

Bangladesh, because of internal disturbance and collision between four parties

Alliance and the fourteen party Alliance, there was no more alternative to declaring

emergency.[14] The 2nd emergency was declared just to face an unexpected situation

that occurred following President Ziaur Rahaman’s death.[15]

10 Bhagat Singh Vs. The King Emperor I.L.R Lahore Vol. 12; P 284

11 A.B.M. Mofizul Islam, “Liberty of the People : Britain and Bangladesh, Dhaka : Institute of Human

Rights and Legal Affairs 1987; P 29.

12 V.N Shukla, “ Constitution of India”, India ,( Eastern book company,1989), P 631.

13 bbc online.

14 The Daily Prothom Alo 12 January 2007

8

15 Md. Abdul Halim, “ Constitution, Constitutional Law and Politics : Bangladesh Perspective”,1998 ,( Dhaka), Ibid P

250

But the 1st emergency declared by Shekh Mujibur Rahaman and the last two Ershad

were unexpected and were declared only to oppress the opposition. In India

emergency was declared on 6th December 1971 due to war. [16] Once the Indira Gandhi

Government also abused the emergency power in the manner it happened in

Bangladesh.[17] So it depends on concerned Government to use emergency provisions

properly. Real responsibility lies on the Government for proper use of it. So

emergency provision is necessary is necessary for some purpose. The practice of

suspending some rights in time of war and economic emergency and not at the time

of internal disturbance is used by the Government as a weapon to suppress the

opposition and to perpetuate power.[18] Almost all regional and international

instruments of human rights make provision for suspension of rights in case of

emergency.[19] There are indirect emergency laws prevalent in Malaysia[20]and our

neighboring country Sri Lanka[21]. Tsunami affected Indonesia and other neighboring

countries declared economic emergency at that time. So there are many positive sides

of emergency, but it depends how we use it. But suspension of some fundamental

rights for long time is not a good practice.

16 bbc online

17 Kuldip Nayer “ The Judgement” ,( Delhi ,Vikash Publishing House )1977.

18 bbc online

19 Article 4(1) of International Covenant on Civil and Political Right 1966 (ICCRR), article 15 of

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and article

27 of American Convention on Human Rights 1969.

20 In Malaysia - The Internal Security Act 1960; The emergency ordinance 1969

9

21 In Sri Lanka - Public Security Ordinance 1947, Temporary Provision 1979.

Chapter 3

PROVISION OF EMERGENCY UNDER THE CONSTITUTIONOF BANGLADESH

3.1 STATE OF EMERGENCY IN THE CONSTITUTION OF BANGLADESH

Articles 141A,141B and 141C of part of 9A of our constitution deals with emergency

provisions. But Articles 141A(1) specifically deals with declaration of emergency.

Articles 141A(1) states” if the president is satisfied that a grave emergency exists in

which the security or economic life of Bangladesh, or any part thereof, is threatened

by war or external aggression or internal disturbance, he may issue a Proclamation of

emergency”

Provided that such proclamation shall require for its validity the prior counter

signature of the Prime Minister. so we can say that the President after taking the

counter signature of the Prime Minister can declare two types of emergency-(1) War

emergency and (2)Emergency of subversion on three grounds. They are war, external

aggression and internal disturbance. Here Articles 141A(3) states-A proclamation of

Emergency ,declaring that the security of Bangladesh, or any part of thereof, is

threatened by war or external aggression or by internal disturbance may be made

before the actual occurrence of war or any such aggression or disturbance if the

President is satisfied that there is imminent of danger thereof.

The emergency may be withdrawn under the articles141A (2)-

10

Proclamation of emergency-

(a) may be revoked by a subsequent proclamation ;

(b) shall be laid before Parliament;

(c) shall cease to operate at the expiration of one hundred and twenty days, unless

before

the expiration of that period it has been approved by a resolution of parliament;

provided that, if any such proclamation is issued at a time when parliament stands

dissolved or the dissolution of parliament takes place during the period of one

hundred and twenty days referred to in sub-clause, the proclamation shall cease to

operate at the expiration of thirty days from the date on which Parliament first meets

after its re-constitution, unless before that expiration of the said period of thirty days a

resolution approving the proclamation has been passed by parliament.

According to articles 141B- Suspension of provisions of certain articles during

emergencies:

While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38,

39, 40 and 42 shall restrict the power of the State to make any law or to take any

executive action which the State would, but for the provisions contained in Part III

of this Constitution, be competent to make or to take, but any law so made shall, to

the extent of the incompetence, cease to have effect as soon as the Proclamation

ceases to operate, except as respects things done or omitted to be done before the law

so ceases to have effect.

141C. Suspension of enforcement of fundamental right during emergencies:

(1) While a Proclamation of Emergency is in operation, the President may, 89 on the

written advice of the Prime Minister, by order , declare that the right to move any

court for the en-forcemeat of such of the rights conferred by Part III of this

Constitution as may be specified in the order, and all proceedings pending in any

court for the enforcement of the right so specified, shall remain suspended for the

period during which the Proclamation is in force or for such shorter period as may be

specified in the order.

11

(2) An order made under this article may extend to the whole of Bangladesh or

any part thereof.

(3) Every order made under this article shall, as soon as may be, be laid before

Parliament. [22]

3.2 STATE OF EMERGENCY PERIOD IN BANGLADESH

The validity of a proclamation of emergency depends on three things: war, external

aggression and internal disturbances. First two grounds are specifically defined; so

there is no objection to them; but the third ground (internal disturbance) is not defined

anywhere. So it is a vague term and due to the absence of a definition the executive

can easily misuse the emergency power. In Bangladesh emergency has been declared

Five times as follows:

(1) 1st emergency was declared by Mujib govt. on 28th December 1974

(2) 2nd emergency was declared by Sattar govt. on 30th November 1981

(3) 3rd emergency was declared by Ershad govt. on 26 November 1987

(4) 4th emergency was declared by Ershad govt. on 27 November 1990

(5) 5themergency was declared by Eyazuddin govt. on 11 January 2007

Because of the faults of the provisions of emergency, all previous governments had

scope for abusing it as a weapon to oppress the oppositions and remain in power.

Nazim Kamran Choudhury has said in this regard “Our institutions are not strong

enough to shape leaders. At this new rebirth of democracy this nation looks upon its

leaders to create institutions. Special provisions are to be used with care and

discretion, and if we can not do so, perhaps we should not have this provision at

all”47. As this law has some limitations, it is the call of the day to amend the

emergency provisions in an acceptable

and logical manner. So, we hope that government will take necessary steps to amend

the emergency provisions as early as possible. [23]

12

22 Constitution of Bangladesh, published by Ministry of Law, 2008, Chapter IXA Article 141 (A) – 141

(C).

23 The Daily Jugantor 22 June, 2007

3.3 EMERGENCY POWER ORDINANCE AND EMERGENCY POWER

RULES 2007

The declaration of the state of emergency was followed by the promulgation of the

Emergency Powers Ordinance 2007 (EPO) and the Emergency Powers Rules 2007

(EPR). The EPO and EPR have suspended many fundamental rights. It also

suspended the rights of freedom of movement, freedom of assembly, freedom of

association, freedom of thought, conscience and speech, freedom of profession and

occupation, freedom to own property, and protection of home and correspondence.

All political activities, both private and public, including activities of the trade

unions, were banned. Political parties were required to close their offices and small

private meetings at private residences were also banned. Section 3 of the EPR

prohibits any kind of association, procession, demonstration or rally without special

permission from the authorities, and under section 3(4) any person found guilty of

holding any meeting or demonstration faces two to five years of rigorous

imprisonment. Additionally, Section 5 completely prohibits the publication of any

criticism of the activities of the government that is deemed to be ‘provocative’ by the

authorities, in news bulletins, video footage, talkshows, features, articles, editorials or

cartoons.

Section 16(2) of the EPR authorizes any member of the ‘law and order maintaining

force ............. to arrest any person on suspicion without a warrant’. Section 20

authorizes the use of force to execute any order and grants immunity to the

government from any prosecution. This section also authorizes the ‘law and order

maintaining forces’ to use force in order to execute any order issued under the EPR.

Section 21 authorized the government to detain any person indefinitely without any

charge under the Special Powers Act 1974. Above all, section 10 denies the right to

apply for bail if detained under the Emergency Rules. This provision is emphasized

13

by section 19d, which states that regardless of sections 497 and 498 of the Code of

Criminal Procedure (the sections dealing with bail), if any inquiry, criminal

investigation or trial is in progress under sections 14 and 15 of the EPR, the accused

persons shall not obtain bail before any court or tribunal. These provisions thus

threaten everyone with indefinite detention, without the traditional safeguards

developed over many centuries of difficult struggle. The government later amended

the EPR by adding new clauses. [24]

Section 18A(1) states that regardless of the provisions which exist in other laws or in

the rules in question, the government or the Anti-Corruption Commission, in the

public interest, may withdraw any case from the Sessions Court, Magistrate’s Court,

Special Judges’ Court or Tribunal in any part of the country and transfer the case to a

Special Judges’ Court for trial. Furthermore, section 18A(2) adds that the subsequent

trial of any such transferred case shall be conducted under the EPR and the Criminal

Law Amendment Act 1958. According to section 18B(2) the Special Judge is

authorized to try any cases concerning all crimes under the EPR. The territorial

jurisdiction of the Special Judges’ Courts has been widened to cover whole of

Bangladesh. Section 21A(1) empowers the government to introduce any kind of

administrative measures to assist inquiries, investigations, trials and any other actions

it undertakes concerning crimes under the EPR. This is, in effect, a blank cheque to

enable the government to carry out arbitrary arrest and detentions and then implicate

them using fabricated charges while they are in detention.

The police have now added section 16(2) by default to any complaints, meaning that

the alleged accused has breached the EPR 2007. This has been done to instill greater

fear in the minds of the accused and give the authorities unjustifiable powers over

these persons. Under these rules, the accused is subject to summary investigation and

trial. The courts are required to finish all legal proceedings including trial and

sentencing within 45 days of the commencement of the trial, unless ‘unavoidable

circumstances’ require an extension for a further 30 days. Generally, investigations

14

by the police, prosecution and subsequent trials take on average 5-7 years due to

inefficiency, political interference and corruption. Under the circumstances of

24 The Emergency Power Ordinance, 2007, Ordinance No. 1/2007 January 12h 2007

Bangladesh, completion of the investigation and subsequent trial within 45 days

raises many questions as to the credibility of those trials. These courts are seen like

‘kangaroo courts’, i.e., justice is meted out summarily.

Thus, by these amendments, the government has effectively bypassed the regular

courts and ensured that the Special Judges’ Courts, under the control of the specially

appointed judges, are able to take over any case selectively transferred to them. This

ensures that people who are being targeted by the government can be convicted under

the arbitrary sections of the EPR. Special Judges’ Courts have been established in

dormitories located within the greater compound of the national parliament, a

restricted zone for general public, in order to try people targeted by the government.

Access to these Special Judges’ Courts is restricted for common citizens. [25]

It may be mentioned that article 141B does not empower the president to suspend all

fundamental rights in Chapter III of the Bangladesh Constitution during emergency.

The authority of the president during emergency to suspend fundamental rights is

limited to suspension of fundamental rights mentioned only in articles 36-40 and 42.

In other words, the Constitution does not empower the president to suspend other

fundamental rights apart from these articles. However, these trials clearly violate the

inalienable right of every citizen to the protection of law under article 27 and to open

and public trial guaranteed under article 31(3) of the Constitution.

3.4 DIFFERENCE BETWEEN MARTIAL LAW & EMERGENCY

Proclamation of emergency is different from Martial Law where the Constitution is

either dissolved or suspended. Declaration of Martial law is an extra-constitutional

event, whereas declaration of emergency is within the ambit of the Constitution. The

15

Chief Martial Law Administrator can act or do, ignoring the provisions of the

Constitution and has an unfettered power.

25 The Emergency Power Rules 2007, Notification, January 25th 2007.

Emergency is declared to meet an unusual situation for a temporary period. It runs for

120 days in Bangladesh. The Constitution allows it.

Finally, after independence, the framers of the 1972 Constitution never thought of

inserting emergency provisions because they are too idealistic in considering that

such provisions were contrary to principles democracy. However it appears they

forgot the reality and adopted a utopian Constitution. Within two years three

amendments were inserted to meet the reality including the emergency provisions in

the Constitution. [26]

16

26 , The Torture of Tasneem Khalil, Human Rights Watch February 2008, 

[http://hrw.org/reports/2008/bangladesh0208/2.htm#_ftn1, Last visited in 22 September 2011]

Chapter 4

EMERGENCY IN INTERNATIONAL PERSPECTIVE

4.1 STATE OF EMERGENCY DURING WORLD WAR II

World War II, or the Second World War was a global conflict lasting from 1939 to

1945, involving most of the world's nations—including all of the great powers—

eventually forming two opposing military alliances: the Allies and the Axis. It was

the most widespread war in history, with more than 100 million military personnel

mobilized. In a state of "total war", the major participants placed their entire

economic, industrial, and scientific capabilities at the service of the war effort,

erasing the distinction between civilian and military resources. Marked by significant

events involving the mass death of civilians, including the Holocaust and the only use

of nuclear weapons in warfare, it is the deadliest conflict in human history, resulting

in 50 million to over 70 million fatalities.

The war is generally accepted to have begun on 1 September 1939, with the attack of

Poland by Germany, and subsequent declarations of war on Germany by France and

most of the countries of the British Empire and Commonwealth. Germany set out to

establish a large empire in Europe. From late 1939 to early 1941, in a series of

17

campaigns and treaties, Germany conquered or subdued much of continental Europe;

amid Nazi-Soviet agreements, the nominally neutral Soviet Union fully or partially

occupied and annexed territories of its six European neighbors, including Poland.

Britain and the Commonwealth remained the only major force continuing the fight

against the Axis in North Africa and in extensive naval warfare. In June 1941, the

European Axis launched an invasion of the Soviet Union, giving a start to the largest

land theatre of war in history, which, from that moment on, tied down the major part

of the Axis military power. In December 1941, Japan, which had been at war with

China since 1937, and aimed to dominate Asia, attacked the United States and

European possessions in the Pacific Ocean, quickly conquering much of the region. [27]

The Axis advance was stopped in 1942 after the defeat of Japan in a series of naval

battles and after defeats of European Axis troops in North Africa and, decisively, at

Stalingrad. In 1943, with a series of German defeats in Eastern Europe, the Allied

invasion of Fascist Italy, and American victories in the Pacific, the Axis lost the

initiative and undertook strategic retreat on all fronts. In 1944, the Western Allies

invaded France, while the Soviet Union regained all territorial losses and invaded

Germany and its allies. The war in Europe ended with the capture of Berlin by Soviet

and Polish troops and the subsequent German unconditional surrender on 8 May

1945. The Japanese Navy was defeated by the United States, and invasion of the

Japanese Archipelago ("Home Islands") became imminent. The war in Asia ended on

15 August 1945 when Japan agreed to surrender.

The war ended with the total victory of the Allies over Germany and Japan in 1945.

World War II altered the political alignment and social structure of the world. The

United Nations (UN) organization was established to foster international cooperation

and prevent future conflicts. The Soviet Union and the United States emerged as rival

superpowers, setting the stage for the Cold War, which lasted for the next 46 years.

18

Meanwhile, the influence of European great powers started to decline, while the

decolonization of Asia and Africa began.

27 Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc.

CCPR/C/21/Rev.1/Add.11 (2001)

Most countries whose industries had been damaged moved towards economic

recovery. Political integration, especially in Europe, emerged as an effort to stabilize

postwar relations. [28]

4.2 STATE OF EMERGENCY IN ASIA

In Asia political unrest called State of Emergency several countries. Here we are

discussion the situation of some countries:

Egypt

Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since

1967, except for an 18-month break in 1980. The emergency was imposed during the

1967 Arab-Israeli War, and reimposed following the assassination of President

Anwar Sadat. The law has been continuously extended every three years since 1981.

Under the law, police powers are extended, constitutional rights suspended and

censorship is legalized. The law sharply circumscribes any non-governmental political

activity: street demonstrations, non-approved political organizations, and unregistered

financial donations are formally banned. Some 17,000 people are detained under the

law, and estimates of political prisoners run as high as 30,000. [29]

28 Duggan, John P. Herr Hempel at the German Legation in Dublin 1937–1945 (Irish Academic Press)

2003

19

29 Shehata, Samer (Mar 26, 2004). "Egypt After 9/11: Perceptions of the United states". Contemporary

Conflicts. Social Science Research Council.[ http://conconflicts.ssrc.org/archives/mideast/shehata/.

Retrieved 29 January 2011].

Hong Kong

The Standing Committee of the National People's Congress can declare a state of

emergency and deploy troops from the People's Liberation Army Hong Kong

Garrison under the Law of the People's Republic of China on the garrisoning of the

Hong Kong Special Administrative Region.

The Chief Executive of Hong Kong along with the Executive Council can prohibit

public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft

and appoint special constable all under Chapter 245 ("Public Order Ordinance") of

Hong Kong Law.

Since 1997 no emergency measure have been enacted. Prior to 1997 emergency

measures have been used for 4 major incidents:

Hong Kong 1956 riots - with involvement of British Forces and Hong Kong

Police

Hong Kong 1966 riots - with involvement of British Forces and Hong Kong

Police

Hong Kong 1967 Leftist Riots - with involvement of British Forces and Hong

Kong Police

Hong Kong 1981 riots - with involvement of Hong Kong Police [30]

Malaysia

In Malaysia, if the Yang di-Pertuan Agong is satisfied that a grave emergency exists

whereby the security, or the economic life, or public order in the Federation or any

20

part thereof is threatened, he may issue a Proclamation of Emergency making therein

a declaration to that effect.

30 [http://en.wikipedia.org/wiki/State_of_emergency#cite_note-19 Last visited in 22 October 2011]

In the history of Malaysia, a state of emergency was declared by the then-colonial

government of Britain. The state of emergency lasted from 1948 until 1960 to deal

with the communists led by Chin Peng.

States of emergency were also declared during the Indonesia-Malaysia confrontation

in 1962, the 1966 Sarawak constitutional crisis and 1977 Kelantan Emergency.

When a race riot broke out on May 13, 1969, a state of emergency was declared.

Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by

telephone on November 13, 2007 (the last day of his mission) that, "Today, this

country still lives under (a state of) emergency." Although not officially proclaimed

as a state of emergency, the Emergency Ordinance and the Internal Security Act had

allowed detention for years without trial. [31]

4.3 STATE OF EMERGENCY IN SOUTH ASIA

South Asia is always suffering political problem. So state of emergency declaration is

very common phenomenon here. I am discussing the case of India and Pakistan in

this presentation.

4.3.1State of Emergency in India

A state of emergency in India refers to a period of governance under an

altered constitutional setup that can be proclaimed by the President of India, when he

perceives grave threats to the nation from internal and external sources or

21

from financial situations of crisis. Under the advice of the cabinet of ministers and

using the powers vested in him largely by Part XVIII of the Constitution of India,

31 "Malaysia lives under state of emergency - EU envoy". Reuters. November 13, 2007.

[http://in.reuters.com/article/13?pageNumber=1 Last visited in 22 October 2011].

the President can overrule many provisions of the constitution, which

guarantee fundamental rights to the citizens of India and acts governing devolution of

powers to the states which form the federation. In the history of independent India,

there were three periods during which a state of emergency was deemed to have

existed.

1. Between 26 October 1962 to 10 January 1968 during the India-China war —

"the security of India" having been declared "threatened by external

aggression".

2. Between 3 December 1971 to 1977 originally proclaimed during the Indo

Pakistan war, and later extended along with the third proclamation — "the

security of India" having been declared "threatened by external aggression".

3. Between 26 June 1975 to 21 March 1977 under controversial circumstances of

political instability under the Indira Gandhi's prime ministership — "the

security of India" having been declared "threatened by internal disturbances".

The President can declare three types of emergencies:

National emergency

State emergency

Financial emergency

National emergency under article 352

22

National emergency is caused by war, external aggression or armed rebellion in the

whole of India or a part of its territory. Such an emergency was declared in India in

1962 (Indo-China war), 1971 (Indo-Pakistan war), and 1975 (declared by Indira

Gandhi to maintain law and order in the country).

The President can declare such an emergency only on the basis of a written request by

the Council of Ministers headed by the Prime Minister. Such a proclamation must be

approved by the Parliament within one month. Such an emergency can be imposed

for six months. It can be extended by six months by repeated parliamentary approval.

In such an emergency, Fundamental Rights of Indian citizens can be suspended. The

six freedoms under Right to Freedom are automatically suspended. However, the

Right to Life and Personal Liberty cannot be suspended according to the original

Constitution. It modifies the federal system of government to a unitary one.

The Parliament can make laws on the 66 subjects of the State List (which contains

subjects on which the state governments can make laws). Also, all money bills are

referred to the Parliament for its approval. The term of the Lok Sobha can be

extended by a period of one year but not more than six months from the date when

the emergency has ceased to exist.

State emergency under article 356

State emergency is declared on failure of constitutional machinery in a state. Nearly

every state in India has been under a state of emergency at some point of time or the

other. The state of emergency is commonly known as 'President's Rule'.

If the President is satisfied, on the basis of the report of the Governor of the

concerned state or from other sources that the governance in a state cannot be carried

out according to the provisions in the Constitution, he can declare emergency in the

state. Such an emergency must be approved by the Parliament within a period of two

months.

23

It is imposed for six months and can last for a maximum period of three years with

repeated parliamentary approval every six months. If the emergency has to be

extended for more than three years, it can be done by a constitutional amendment, as

has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the

executive, and the Governor administers the state in the name of the President. the

Legislative Assembly can be dissolved or may remain in suspended animation. The

Parliament makes laws on the 66 subjects of the state list. All money bills have to be

referred to the Parliament for approval. In this situation ministers of state legislature

are not allowed to perform action in state.

a. Financial emergency under article 360

If the President is satisfied that there is an economic situation in which the financial

stability or credit of India is threatened, he or she can declare financial emergency.

Such an emergency must be approved by the Parliament within two months. It has

never been declared. Such a situation had arisen but was avoided by putting the gold

assets of India as collateral for foreign credit.

It remains enforced till the President revokes it.

In case of a financial emergency, the President can reduce the salaries of all

government officials, including judges of the Supreme Court and High Courts. All

money bills passed by the State legislatures are submitted to the President for his

approval. He can direct the state to observe certain principles (economy measures)

relating to financial matters.

The phrase Emergency period used loosely, when referring to the political history of

India, often refers to the third and the most controversial of the three occasions. [32]

32 V.N Shukla, “ Constitution of India”,( India : Eastern book company), 1988; P 122- 128

4.3.2 State of Emergency in Pakistan

24

In Pakistan, a state of emergency was declared five times in its history:

In 1958 by President Iskander Mirza

In 1969 by President General Yahya Khan

In 1977 by President General Muhammad Zia-ul-Haq

In 1998 by President Rafiq Tarrar

In 2007 by President General Pervez Musharraf

The first four were regarded as the imposition of direct martial law. In 2007 a 'state of

emergency' was declared.In the constitution of Pakistan has the provision of State of

Emergency as well as Martial Law.

State of Emergency

Articles 119 and 120 of the 1982 Constitution state on the reasons for the

announcement of a state of emergency:

ARTICLE 119. In the event of natural disaster, dangerous epidemic diseases or a

serious economic crisis, the Council of Ministers... may declare a state of emergency

in one or more regions or throughout the country for a period not exceeding six

months.

ARTICLE 120. In the event of serious indications of widespread acts of violence

aimed at the destruction of the free democratic order established by the Constitution

or of fundamental rights and freedoms, or serious deterioration of public order

because of acts of violence, the Council of Ministers, after consultation with the

National Security Council, may declare a state of emergency in one or more regions

or throughout the country for a period not exceeding six months. [33]

33 [www.pakistani.org/pakistan/constitution/ Last visited in 01 November 2011]

25

Martial law

Article 122 of the 1982 Constitution provides:

ARTICLE 122: The Council of Ministers, under the chairmanship of the President of

the Republic, after consultation with the National Security Council, may declare

martial law in one or more regions or throughout the country for a period not

exceeding six months, in the event of widespread acts of violence which are more

dangerous than the cases necessitating a state of emergency and which are aimed at

the destruction of the free democratic order or the fundamental rights and freedoms

embodied in the Constitution; or in the event of war, the emergence of a situation

necessitating war, an uprising, or the spread of violent and strong rebellious actions

against the motherland and the Republic, or widespread acts of violence of either

internal or external origin threatening the indivisibility of the country and the nation. [34]

4.4 EMERGENCY IN UNITED KINGDOM AND USA

UK

In the United Kingdom, the Monarch, the Privy Council, or the Prime Minister can

make emergency regulations under the Civil Contingencies Act 2004 if there is a

serious threat to human welfare, the environment, or in case of war or terrorism.

These regulations last for seven days unless confirmed otherwise by Parliament. A

state of emergency was last invoked in 1974 by Prime Minister Edward Heath in

response to increasing industrial action. [35]

34 [ http://en.wikipedia.org/wiki/Martial_law Last visited in 20 November 2011]

35 The Civil Contingencies Act 2004 (c 36) is an Act of the Parliament of the United Kingdom

USA

26

In the United States, there are several methods for government response to emergency

situations. A state governor or local mayor may declare a state of emergency within

his or her jurisdiction. This is common at the state level in response to natural

disasters.

The president of the United States, as head of the executive branch, has the authority

to declare a federal state of emergency. The only emergency provisions in the U.S.

Constitution are: "The Privilege of the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may require it.” and

an exemption from the privilege of a grand jury hearing for cases arising in the

military when in service in a time of "public danger". [36]

36 V. Article of Amendment to the Constitution of the United States, as encoded in United States Statutes

at Large (Washington, D.C.: Government Printing Office, 1874), p. 21 (of 755). Retrieved from 16:06, 4

July 2008 (UTC).

27

Chapter 5

RECOMMENDATION AND CONCLUDING REMARKS

5.1 DISCUSSION

The basic significance of the state of emergency as an original structure through

which law incorporates the living being - and, this, by suspending itself - has emerged

with full clarity in the military order that the President of the United States issued on

November 13, 2001. The issue was to subject non-citizens suspected of terrorist

activities to special jurisdiction that would include "indefinite detention" and military

tribunals. The U.S. Patriot Act of October 26, 2001, already authorized the Attorney

General to detain every alien suspected of endangering national security.

Nevertheless, within seven days, this alien had to either be expelled or accused of

some crime. What was new in Bush's order was that it radically eradicated the legal

status of these individuals, and produced entities that could be neither named nor

classified by the Law. Those Talibans captured in Afghanistan are not only excluded

from the status as Prisoners of War defined by the Geneva Conventions, they do not

correspond to any jurisdiction set by American law: neither prisoners nor accused,

they are simply detainees, they are subjected to pure de facto sovereignty to a

detention that is indefinite not only in its temporal sense, but also in its nature, since it

is outside of the law and of all forms of legal control. With the in detainees at

Guantamo Bay, naked life returns to its most extreme indetermination.

In Bangladesh the Constitution has been abused badly in the last 18 months. The past

Caretaker Government had taken advantage of the perceived ambiguity of the

Constitution in Article 58B on length of Caretaker administration. It has also

28

flouted precedents set twice by two previous Caretaker governments, of holding

parliamentary elections within 90 days. The Constitution provides that there shall

be a Non-Party Caretaker Government during the period from the date on which

the Chief Adviser of such government enters upon office after Parliament is

dissolved or stands dissolved by reason of expiration of its term till the date on

which a new Prime Minister enters into office after the constitution of Parliament.

The past Caretaker Government had to hold parliamentary elections, even after a

year and half - a job done in three months by its predecessors.

What people believe that by not following earlier precedents and holding

general elections within three months, the past Caretaker Government had set a very

bad precedent about the tenure of such governments. The question now is what would

be length of next Caretaker Government, if any? Who would be held accountable

for damaging the Constitution?

5.2 RECOMMENDATION

1. It is the state’s responsibility to take preventive measures to protect the

interests of society in time of war or other public emergency threatening the

life of the nation. Emergency measures must not exceed what is strictly

required by the situation and cannot be inconsistent with the state’s other

obligations under international law.

2. In very specific circumstances, the declaration of a state of emergency can be

a legitimate legal method to respond quickly to such threats. But as it entails

restrictions on the rights and freedoms of individuals, it must be used with

utmost care and as a means of last resort only. Declaring a state of emergency

must not become a cause to unduly restrict the exercise of fundamental human

rights.

29

3. Allegations of abuse of such derogations must be effectively and thoroughly

investigated, and the government must be fully accountable.

4. In order to enhance national oversight of the use of emergency legislation, the

Assembly is convinced that the legislature should have effective control of the

decision-making process.

5. The Assembly notes that an abusively declared or improperly conducted state

of emergency often results in excessive use of force, and, in particular, the

stifling of the freedoms of assembly and of expression.

6. National authorities should ensure appropriate training for law-enforcement

officials with respect to the non-derogable rights, in particular the rights to

life, freedom from torture and inhuman and degrading treatment and to the

principle of ‘no punishment without law’ – and the use of potentially lethal

force only as a last resort when all other means fail. Security forces should

have at their disposal the full panoply of non-violent and non-lethal means of

crowd control and should remain subject to stringent administrative and

judicial supervision.

7. The Assembly condemns any attempt to set up legislation concerning

demonstrations which would inevitably lead to emergency-like situations by

excessively limiting the rights of freedom of movement or expression and by

setting up inappropriate impediments to receiving authorization for such

demonstrations to take place.

8. The Assembly considers that the following safeguards – in addition to those

stated in Article 15 of the European Convention on Human Rights – should

always be provided for in a state of emergency:

8.1 Clear time limits and effective legislative oversight of any state of

emergency – for example through a “sunset clause” with the possibility of

extension subject to new parliamentary approval –, while ensuring that the

opposition can play its role;

30

8.2 Judicial scrutiny of the validity of a state of emergency and its

implementation.

9. The integrity of the judicial system – its competence, independence, and

impartiality – should be safeguarded, especially as concerns access to a court

and to an effective remedy.

5.3 CONCLUDING REMARKS

1. Declaring a state of emergency may be a legitimate State action, but such an

action must be conducted with the utmost care. Governments must exercise

emergency powers with the understanding that states of emergency are

intended to preserve democracy and the rule of law. It is not an excuse to flout

those norms.

2. National authorities should take care to properly train their first responders on

legally acceptable behavior – i.e. respect for the non-derogable rights to life

and freedom from torture and inhuman treatment – and the use of force as an

extreme last resort. Security forces should also have as many non-violent and

non-lethal means of crowd control as possible. Police forces should always

remain operationally independent of the government, subject to administrative

and judicial sanctions for misconduct, and the public should be assured of

their neutrality in any emergency operation.

3. There is a presumption of freedom of assembly in all situations and all

restrictions upon that qualified right instituted pursuant to an emergency must

be lawfully initiated. Thus, restrictions on time, place, or manner of assembly

are preferable to an outright ban.

4. Reporting facts and expressing opinions as such should not be regarded as

constituting a threat to national security. Thus any restrictions of the freedom

of expression must be shown to be necessary in a democratic society to

protect a legitimate national security interest. Such restrictions should be as

31

clear and limited as possible. The public should have constant access to

independent media, and those who manipulate the media in times of public

crisis should face sanctions.

5. Safeguards on the national level are of the highest importance. States should

be able to deal with crises without threatening their own people, and be able to

respond to the threat of human rights violations, preferably without

international intervention.

6. There should be clear time limits and effective legislative oversight of any

state of emergency – perhaps through a sunset provision with extension

subject to periodic, regular parliamentary approval – and civil society or

voices of opposition should not be unduly suppressed. Judicial approval of the

constitutionality of a state of emergency may also be appropriate. The

integrity of the judicial system – its competence, independence, and

impartiality – should be safeguarded as far as possible, with special attention

given to preserving access to the courts and to an effective remedy.

5.4 LIMITATIONS

Main limitation with the thesis is source of information is only available from various

newspaper and internet. The major Problem was of tracing and getting an interview

with the respondents. This emerged since they were very busy and with large

commitments and responsibilities. It was difficult to get them and later have they

agree to allocated time. Judges should enforce it rigorously in cases involving torture

against detainees. The fact that many of the detainees are almost certainly innocent

makes the ban more pressing. Mass preventive detention during emergency has

violated the rights of thousands of innocent people and, in the name of emergency,

they have been deprived of enjoying the rights guaranteed to the normal criminal

defendant. It is impossible for them to get any legal relief or to gain quick release by

establishing their innocence. Arbitrary arrest on mere suspicion, especially when it is

followed by months and years of detention, is a very traumatic experience, especially

32

when the person is innocent. Though nothing can compensate for the loss of freedom

and the traumatic experience of victims and their families, a financial payment is the

least the state should do to minimize the harmful effects. Awarding compensation to

people wrongly detained would discourage future abuse of power. So it is not only

simple justice that requires compensation, but bureaucratic efficiency as well. Given

the dependence of most developing countries, including Bangladesh, upon other

developed countries and donor agencies controlled by them, an international

consensus must also be developed so that, irrespective of the nature and extent of an

emergency, certain universal standards are maintained.

.

REFERENCES

33

BOOKS

1. The Constitution of Bangladesh, Ministry of Law, Judiciary and

Parliamentary Affairs, 2008.

2. Thomas I. Cook, ed., Two Treatises of Government, by John Locke (New

York: Hafner, 1947),

3. Mahmudul Islam, “Constitutional Law of Bangladesh”, 1995

4. Md. Abdul Halim, “ Constitution, Constitutional Law and Politics :

Bangladesh Perspective”,1998, Dhaka,

5. V.N Shukla, Constitution of India, India : Eastern book company,1988

6. A.B.M. Mofizul Islam, “Liberty of the People : Britain and Bangladesh,

Dhaka : Institute of Human Rights and Legal Affairs 1987

7. Daily News Paper: The Daily Ittefaq, The Daily Prothom Alo, The Daily

Jugantor (Internet Version)

8. “The Judgment” by Kuldip Nayer which was published by Vikash Publishing

House, Delhi in 1977.\

34

ELECTRONIC DATA

1. http://en.wikipedia.org/wiki/State_of_emergency; Last visited 24 December,

2011

2. http://www.bbc.co.uk/news/world-south-asia-12651483; Last visited 14

December, 2011

3. www.usatoday.com/news/world/2007-01-11-bangladesh_x.htm; Last visited

30, November 2011.

4. www. thedailystar.net/2007/01/12/d7011201011.htm; Last visited 27

December, 2011.

35