Emergency Powers and Martial Law under the Constitution of Bangladesh

The Constitution of Bangladesh 1972 did not originally contain any provisions for the executive to proclaim an emergency or a martial law. The frequent abuse of these extraordinary powers during the days when Bangladesh was a province of Pakistan led the framers not to incorporate such powers in the Constitution. However, the necessity to insert a new Part IXA in the Constitution, titled ‘Emergency Provisions’, was felt immediately after the Constitution came into force. Part IXA not only empowers the executive to proclaim an emergency to deal with actual or imminent threats posed to Bangladesh, but also to suspend the enforcement of fundamental rights during the emergency. This chapter demonstrates that in the absence of effective safeguards in the Constitution constraining the scope of the exercise of emergency powers, these powers have been conveniently used to subvert the rule of law and impose unwarranted restrictions on the fundamental human rights of individuals. It also sheds light on the fact that, notwithstanding the absence of any reference to the concept of martial law in the Constitution, Bangladesh witnessed two declarations of martial law in 1975 and 1982. Although the Supreme Court declared both proclamations of martial law illegal in 2010, it has not examined whether any of the five proclamations of emergency issued under Part IXA were without jurisdiction or mala fide. The chapter concludes with some suggestions for preventing the use of these powers for extraneous purposes.

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