Constitutional Framework of Emergency Provisions and Curfew in Bangladesh
Abstract
The constitutional framework of emergency provisions in Bangladesh is primarily governed by Articles 141A, 141B, and 141C of the Constitution. These provisions empower the President to declare a state of emergency in situations of war, external aggression, or internal disturbance that threaten the security or economic life of the country. Once declared, fundamental rights guaranteed under the Constitution may be suspended, and the executive is granted broad powers to maintain public order and national security.
On the other hand, curfew, although not explicitly mentioned in the Constitution, is basically mentioned in the Special Powers Act, 1974.
This framework reflects a balance between safeguarding state sovereignty and maintaining constitutional governance. However, the exercise of emergency powers in Bangladesh has historically raised concerns regarding potential misuse, particularly in suppressing political opposition and limiting civil liberties. Judicial oversight and constitutional safeguards remain critical in ensuring that such extraordinary powers are not abused. Therefore, while emergency provisions and curfew serve as necessary tools for crisis management, their application must align with democratic principles, rule of law, and respect for human rights.
Need for Emergency Provisions
The provision of a state of emergency is not undemocratic. It can be included in the constitution or law of any country to deal with crisis situations concerning state security and national interest. If the state survives, then fundamental rights will also survive; but if the state does not survive, then fundamental rights will also be abolished. Therefore, provisions for emergency should exist so that, while dealing with such crisis situations threatening state security, fundamental rights are not unnecessarily obstructed.
In the case of R v Halliday, it was stated:
“However valuable the personal liberty of citizens may be, in times of war or emergency concerning state security, it may be curtailed to some extent through legal measures.”
The conventions such as the 1950 European Convention on Human Rights, the 1966 International Convention on Civil and Political Rights, and the 1969 American Convention on Human Rights all recognize that, during war or national emergency threatening state security or national interest, fundamental rights may be suspended or restrictions may be imposed upon them.
Therefore, it is appropriate for any country’s constitution to include provisions for emergency. However, such provisions should be framed in a way that prevents abuse of power by the executive branch.
There are two kinds of emergency provisions:
- National Emergency
- Partial or State Emergency
Emergency Provisions in the Constitution of Bangladesh
During the 23 years of Pakistani rule, the provisions relating to emergency were widely abused. This bitter experience influenced the framers of the Constitution of Bangladesh to initially decide that no provision regarding emergency would be included in the Constitution. However, within a few years after the Constitution came into force, through the Second Amendment in 1973, provisions relating to emergency were incorporated into the Constitution.
For the inclusion of emergency provisions, a new Part (Part IXA) was added to the Constitution, and three new Articles (141A, 141B, 141C) were inserted.
Article 141A 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, external aggression, or internal disturbance, he may proclaim a state of emergency.”
Therefore, the President may declare a state of emergency on three grounds:
- War
- External aggression
- Internal disturbance
On these grounds, two types of emergency may be declared:
- War emergency (due to war or external aggression)
- Internal emergency (due to internal disturbance)
It should be noted that the President cannot declare an economic emergency solely on the ground of economic crisis. However, since the term “internal disturbance” is not specifically defined, if the President believes that the economic condition of Bangladesh has collapsed or is about to collapse, he may declare an emergency on the ground of internal disturbance. In such cases, it would be termed as an internal emergency, not an economic emergency.
When can the President declare a state of emergency?
The President may declare a state of emergency whenever he is satisfied that, due to war, external aggression, or internal disturbance, the security or economic life of Bangladesh or any part thereof is threatened.
Secondly, Article 141A(3) provides that if the President is satisfied that such danger is imminent due to war, external aggression, or internal disturbance, he may declare a state of emergency even before the actual occurrence of war, aggression, or disturbance.
Thirdly, under Article 141A(1), it is stated that a proclamation of emergency requires the prior countersignature of the Prime Minister. Therefore, in practice, the declaration of emergency depends on the decision of the Prime Minister. The requirement of the Prime Minister’s countersignature was introduced for a valid reason, to prevent misuse of power by the President. Without the countersignature of the Prime Minister, the President cannot declare a state of emergency. This provision was included to avoid undesirable situations.
From the above discussion, it can be said that the declaration of emergency depends on the subjective satisfaction of the President, in reality, the Prime Minister. Whether an emergency actually exists, or whether the security or economic life of Bangladesh or any part thereof is under threat, is ultimately determined by the President. Courts cannot question the validity of such satisfaction. However, the court can examine whether the required countersignature of the Prime Minister was obtained before the declaration of emergency.
Termination of Emergency Provisions
The Constitution provides clear mechanisms for the termination of a state of emergency. These include:
- Revocation by the President
- Expiry of 120 days
- Non-approval by Parliament
After declaration, the emergency must be placed before Parliament for approval. If Parliament fails to approve it, the emergency ceases to exist. In cases where Parliament is dissolved at the time of declaration, the proclamation must be presented within 30 days of the first sitting of the newly constituted Parliament.
Impact on Fundamental Rights
Fundamental Rights are enshrined in Part III of the Constitution (Articles 26–47A). These rights are essential to ensuring individual liberty and justice.
However, during a state of emergency, the government is empowered to restrict certain rights under Article 141B. These include:
Freedom of movement (Article 36)
Freedom of assembly (Article 37)
Freedom of association (Article 38)
Freedom of thought and speech (Article 39)
Freedom of profession (Article 40)
Right to property (Article 42)
Additionally, under Article 141C, the President may suspend the enforcement of fundamental rights, meaning citizens cannot seek judicial remedy for violations during the emergency period. However, such restrictions automatically cease once the emergency is lifted.
Historical Instances of Emergency in Bangladesh
Since independence, Bangladesh has experienced several emergency declarations, primarily due to internal disturbances. Notable instances include:
- 1974: Declared amid severe food crisis and political instability
- 2007: Imposed during political conflict under a caretaker government
These emergencies were largely justified on grounds of internal disorder and threats to state stability.
Concept of Curfew
A curfew is a governmental or military order that restricts public movement for a specified period, typically during nighttime. It requires citizens to remain indoors and prohibits unnecessary movement in public spaces.
Curfews are usually imposed during:
- War or emergency situations
- Political unrest or mass protests
- Situations threatening public order and safety
Key Features of Curfew
- Fixed time duration, for example, from 10 PM to 4 AM
- Restriction on movement, citizens must stay indoors
- Closure of institutions, schools, offices, and businesses remain closed
- Legal enforcement, violations are punishable under law
Legal Basis of Curfew in Bangladesh
In Bangladesh, curfew provisions were formally introduced under the Special Powers Act, 1974. According to Section 24(1) of this Act, the District Magistrate or, in metropolitan areas, the Police Commissioner may issue orders restricting movement in specified areas without written permission. Violation of such orders may result in punishment, including imprisonment for up to one year, a fine, or both, as stated under Section 24(2).
Examples of Curfew in Bangladesh
Curfews have been imposed at different times in Bangladesh, including:
1974: Following political unrest
1990: During the anti-Hussain Muhammad Ershad movement
2007: Under the caretaker government
Recent quota reform protests
These measures were aimed at maintaining law and order during periods of instability.
Relationship Between Emergency and Curfew
Emergency and curfew are both extraordinary measures taken by the state to maintain public order and national security. While a state of emergency allows the government to limit certain constitutional rights, a curfew is a more specific and strict measure that directly restricts public movement.
Conclusion
Emergency and curfew are essential tools for safeguarding state security and maintaining public order. However, their misuse or prolonged application can undermine democratic values and human rights. Therefore, it is crucial for the state to exercise these powers with restraint, within constitutional limits, and with due respect for fundamental rights. Maintaining a balance between national security and individual freedom is the hallmark of a true democratic system.
Author Ragib Afsary Shaheb is a Student, Department of law, Dhaka International University.
