Law Opinion
State of emergency and human rights conventions
Oli Md. Abdullah Chowdhury
While there is a state of emergency, certain fundamental rights are reserved. Constitution of the People's Republic of Bangladesh though guarantees fundamental rights, reserves the right during emergency, “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”. However, Bangladesh being a state party in a number of international human rights conventions has accountability towards international communities in ensuring human rights under international legal framework.
Human dignity has got paramount importance in all human rights conventions. Universal Declaration of Human Rights (UDHR) states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Article 7 of International Covenant on Civil and Political Rights (ICCPR) reaffirms the right, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. Bangladesh became a party to the ICCPR on December 06, 2000, nevertheless.
As there is a state of emergency currently prevailing in Bangladesh, ICCPR sets forth responsibility of the state parties. “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”, stated in Article 4 of International Covenant on Civil and Political Rights (ICCPR).
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) entered into force for Bangladesh on 4 November 1998, but the State party has not ratified article 22 of the Convention. The convention has defined torture superbly: "Torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Therefore, public official or other person acting in an official capacity are also subject of this convention.
Furthermore, CAT also deals about the state responsibilities during emergency. The convention asserts in Article 4, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”.
People are often deprived of their liberty during emergency and human rights conventions also cover the issue. Article 10 of ICCPR sates, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. The convention also focuses on the rights of the detained person. It asserts that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. It further includes that a person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
People of Bangladesh and international agencies hailed the decision when state of emergency was declared by the president on January 11, 2007. However, human rights and fundamental rights must be upheld in all situations and the government must ensure that law-enforcing agencies comply with laws of the land and international laws. Bangladesh as a state party needs to ensure that law enforcement personnel both civil and military are aware of their responsibilities. “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment”, stated in Article 10 of Convention against Torture.
The writer is a human rights activist.
