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Law of Emergency and Related Questions
Md. Monirul Islam

My father, died on January 17, 2008, often said-'never bow down your head to the unlawful mean but if it is imposed by incumbency, that's an exceptional case'. But in this period of emergency, when the restrictions on even religious activities like milad, mahfil (religious discussions) etc. were imposed by the authority; he stated his revulsion on it.

A state of emergency is a governmental declaration that may suspend certain normal functions of government, may work to alert citizens to alter their normal behaviors, or may order government agencies to implement emergency preparedness plans.

It can also be used as a rationale for suspending civil liberties. Such declarations usually come during a time of natural disaster, during periods of civil unrest, or following a declaration of war (therefore, in democratic countries many call this martial law, most with non-critical intent).

In some countries, the state of emergency and its effects on civil liberties and governmental procedure are regulated by the constitution, or a law that limits the powers that may be invoked during an emergency or rights suspended. It is also frequently illegal to modify the emergency law or Constitution during the emergency.

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely as long as the regime lasts. In some situations, martial law is also declared, allowing the military greater authority to act.

Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben has criticized this idea, arguing how the mechanism of the state of emergency deprives certain people of their civil rights, producing his interpretation of homo sacer.

In the United Kingdom the Monarch (The Queen) or the Privy Council or a Senior Minister of the Crown 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.

In the United States, there are several methods for government response to emergency situations. A state governor or even a local mayor may declare a state of emergency within his or her jurisdiction. This is quite common at the state level in response to natural disasters.

Although the President, as head of the executive branch, has the authority to declare a state of emergency, the National Emergencies Act limits the President's ability to declare emergencies by requiring that they expire within two years unless specifically extended, and that the President specify in advance which legal provisions will be invoked.

The United States is officially in an ongoing (effectively permanent) state of emergency declared by several Presidents due to multiple problems. An example is one which began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton.

In accordance with the National Emergencies Act, the executive order's actual effect was not a declaration of a general emergency, but a limited embargo on trade with "Terrorists Who Threaten To Disrupt the Middle East Peace Process." This "national emergency" was expanded in 1998 to include additional targets such as Osama bin Laden, and has been continued to at least 2008 by order of President George W. Bush.

The U.S. Constitution says, "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." The Constitution also provides 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." These are the only emergency provisions in the Constitution.

The article (141A) of the Constitution of the People's Republic of Bangladesh provides that '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.

Presently, our country is under an 'Emergency Law' but it has not been put into practice with the obligation as provided in our constitution. Grave emergency existed and the security or economic life was jeopardized with the subversive impetus of 11 party-alliances until 1/11 came. To destroy the economy of Bangladesh, Mohiuddin, the mayor of Chittagong declared to tarnish Chittagong port from where a bulky part of our economic activities is worked. Only for seeking interests beyond state well-being, they adopted this policy of subversion.

Law of emergency might also be declared, according to our constitutional provision, if external aggression or internal disturbance occurs for country's concern. Internal disturbance centering on election was located fiercely with the mayhem approach between two alliances i.e. BNP led four party alliances and AL led eleven party alliances. A leader of eleven party alliances made a tremor of civil war among the people of the country although this sort of state-configuration was more blatantly induced by them.

The fact of external aggression didn't come into sight as an absolute format viz- invasion, but this impulsion starkly lay a hand on almost the internal affairs of country that was not okay in the question of sovereignty. The march of foreign diplomats, according to several so-called philanthropists within the state, was taken as positive fashion but it worried the genuine aficionado of state.

We may assume that the emergency became emergence to tackle the above state of affairs and the emergency gained its validity in upholding those rough circumstances. Since 1/11, the 'Law of Emergency' functioned; but not properly, because of the existence of govt. psyche's unlawful move in formulating party or even separate political wing on the way of the process of the de-politicization to oust two major dominant parties-BNP and AL and their leaders.

In this parlance, Govt. attempt of twos' access (Dr. Muhammad Yunus and Ferdous Ahmad Koreshi) and twos' ousting (Khalida Zia and Sheikh Hasina) was the daily circulation of all the local, national and International newspapers, journals. And army's influence in politics and the speech of army chief on some crucial and sensitive issues like the father of the nation, the announcer of our independence, the question of their recognition and the case of war criminality etc symbolized the 'dual role' in Bangladesh politics and foreign newspapers, from the inception to present of this govt. considers the government the army backed government.

The motorcycle race by Ferdous Ahmad Koreshi's party workers in the name of allocating relief for the flood affected people was the grand example of violating the 'Law of Emergency'. It was also intensified with the move or procession of Awami League workers when they were accumulated arrogantly to warmly receive their party leader-Sheikh Hasina in airport in the time of her arrival in Dhaka from London.

Presently, the issue of arresting the teachers of the University of Dhaka and their release highly fascinates the people of Bangladesh and in this process of their release, so many agitations were observed in country's scenario which ultimately is to be deemed as the greater violation of the 'Law of Emergency'.

For a simple statement of Hannan Shah-the advisor of Khaleda Zia was arrested for violating the 'Law of Emergency'. But the combined procession of teachers and students for releasing detained teachers of D.U violates the law of emergency, doesn't it? Wasn't this procession larger than that of the statement of Hannan Shah?

Now the students of Jahangirnagar University have declared the movement for the release of students who were arrested on August 21. If this process continues, the 'Law of Emergency' will lose its adequacy and furthermore, when it would be imposed on the people of the state, how much it will act is the question? In a sense, rule of law would be gone into confusion and it might be the constraint in establishing good governance in Bangladesh that we dreamt.

It is an observation that those who brought the 1/11 for their convenience, they are violating the rules of 1/11 i.e. 'Law of Emergency' whenever the situation is going against them. Dual approaches for the convenience never carry the bright future for Bangladesh.

It's the high time of tarnishing the surface of difficulties to take the thinking of upcoming election of 2008 in mind and it's the time to move beyond the 'Law of Emergency' as if it were not violated.

Otherwise, if the sleepy flame of anger among the people of country might be functioned, no emergency would be worked here and it has the possibility of slurring this sanctified "Law of Emergency'. This opinion is to be taken in mind of incumbency regarding the prospect of Bangladesh.

'Law' or 'Law of Emergency,' although it works against civil liberties in some cases, must be obeyed but its continuity for long time in most cases get the people consider the tedious thing of this implication. With these consequences, the law-abide people like my father will also reveal their repulsion on this mind-numbing thing. Now, 'Law of Emergency' is not emergence for Bangladesh and so, it should be withdrawn.

 
© Sonar Bangladesh, 2003, Dhaka, Bangladesh. E-mail: editor@sonarbangladesh.com. Last updated on February 11, 2008