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Tuesday, January 16, 2007

Constitutional perspective on proclamation of Emergency

141A. Proclamation of Emergency:

1. 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.

2. A 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 the 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 (c), 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.

3. A Proclamation of Emergency declaring that the security of Bangladesh, or any part 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 danger thereof.

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 the 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 enforcement of such of the rights conferred by Part III of the 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.

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 the parliament.


Restricted rights Under the State of Emergency


Under a state of emergency the state will not be restricted by the constitutional provisions for freedom of movement, freedom of assembly, freedom of association, freedom of thought, conscience and speech, freedom of occupation and rights to property.

Article 141 B of the constitution states:
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.

Article 36: Freedom of Movement
Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.

Article 37. Freedom of assembly
Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.

Article 38. Freedom of association.
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;

Article 39. Freedom of thought and conscience, and of speech
(1) Freedom or thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.
(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense- The right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.

Article 40. Freedom of profession or occupation
Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.

Article 42. Rights to property
(1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
20[(2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.
(3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalisation or acquisition of any property without compensation.

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