Pandemic, Emergency & the Bangladesh Constitution: A Reflection

Kawser Ahmed

Supreme Court of Bangladesh

Of late, several scholars and lawyers in Bangladesh have argued that a proclamation of emergency would have provided better legal grounds for dealing with the COVID-19 pandemic than the statutory powers on which the government in fact relied. In their opinion, the pandemic could amount to an ‘internal disturbance’ and hence satisfy the condition precedent for a proclamation of emergency under article 141A of the Bangladesh Constitution. This post disagrees with the above view for the reasons stated below.

At the outset, it should be noted that the Bangladesh Constitution is comprised of an authentic text in Bengali and an authentic translation in English. It deserves mention that the English term ‘internal disturbance’ has a well-established legal meaning, while its Bengali counterpart bears no such legal significance. Therefore, it stands to reason that the Bengali word for internal disturbance should be given the same meaning so as to avoid conflict between the two texts. The term internal disturbance has made recurrent appearance in the public law of the Indian subcontinent since the British colonial era. The Government of India Act 1935 incorporated internal disturbance for the first time alongside war as a precondition for declaration of emergency by the Governor General (Section 102). There is however no mention of internal disturbance in the earlier Government of India Act 1919 although it contains provisions making reference to emergency. After partition, the term internal disturbance found its place in the Constitutions of India (Article 352, prior to amendment in 1978) and Pakistan (Article 191) as a precondition for proclamations of emergency. Although internal disturbance has been replaced with armed rebellion in the Indian Constitution (Article 352), it continued to exist in the constitution of Pakistan (Article 232). It is to be noted that internal disturbance is placed in the aforesaid laws alongside war and external aggression – which are germane to the field of humanitarian law.

The International Committee of the Red Cross (ICRC) appears to have been using internal disturbance as a term of humanitarian law since the 1950s. In 1955, a Commission of Experts was convened by the ICRC to study the application of humanitarian principles in the event of internal disturbances. In the following years, the scope, significance and other aspects of internal disturbance continued to be discussed in the Red Cross conferences and also by various commissions. By 1971, internal disturbance began to be used as a term to denote serious disruption of domestic order resulting from acts of violence including riots or other acts of violence which lack the characteristics of an armed conflict. The term was later incorporated in article 1.2 of the Additional Protocol to the Geneva Convention of 12 August 1949 (Protocol No. 2 of 8 June 1977).

At least, two things are apparent from the above discussion: (1) the term internal disturbance has more or less a determinate legal meaning especially in the field of humanitarian law; and (2) in the colonial public laws of the Indian subcontinent as well as in the field of humanitarian law, the term internal disturbance does not include a pandemic. Now, the question is – how should one understand and interpret internal disturbance in the context of Bangladesh Constitution? That is to say, should we interpret internal disturbance in line with its entrenched and prevailing sense, or should we interpret the term in a broad and liberal manner? This post suggests that whenever a legal term attains a clear and widely accepted meaning in one context it should ordinarily be understood in this same sense when transposed to another context, unless there are indications of a contrary intention.

For example, article 145A of the Bangladesh Constitution relates to international treaties with foreign countries. The term ‘treaty’ has not been not defined either in the Constitution or in the General Clauses Act 1897. Therefore, a question arises as to whether the term treaty in the Bangladesh Constitution should be understood and interpreted to have its accepted meaning in international law or in a broad and liberal manner? If the term treaty is interpreted in a broad and liberal manner without paying attention to its international legal connotation, it would be impossible to achieve the object and purpose of article 145A of the Constitution. In a similar vein, it can be argued that the term internal disturbance in Bangladesh Constitution should be understood and interpreted in line with its prevailing sense and it should not include an epidemic or pandemic. Obviously, one reason is that the term has attained specific meaning long before it was incorporated into the Constitution. Moreover, nothing from the legislative proceedings suggests that the then parliament at the time of adopting the provisions concerning proclamation of emergency (Articles 141A-141C) by the second constitutional amendment actually intended to attribute a wider meaning to the term internal disturbance.

There is also a strong rule of law argument in favour of the above view. If internal disturbance is interpreted in a broad and liberal manner, it will widen the executive’s power to proclaim an emergency. In Bangladesh, fundamental rights have been suspended on all previous proclamations of emergency. Thus, cautions us that a broad interpretation of internal disturbance will eventually eat into the constitutional guarantee of fundamental rights and freedoms.

Finally, in practice, any government would need political justification besides legal reasons before making a proclamation of emergency. Those in favour of a proclamation of emergency for COVID-19 may have overlooked this point. People have largely accepted the usefulness of the COVID-19 public health measures imposed by the government to date, including a lockdown. In the circumstances, there are no plausible political grounds for a proclamation of emergency. If there exist any shortcomings in the current legal response to the pandemic, they can be addressed within the existing framework rather than through a constitutional proclamation of emergency.

Kawser Ahmed is an advocate of the Supreme Court of Bangladesh. In addition, he has served as legal consultant/counsel to the Government of Bangladesh as well as a number of national and international organizations on human rights and international law.

Suggested citation: Kawser Ahmed, ‘Pandemic, Emergency & the Bangladesh Constitution: A Reflection’ IACL-IADC Blog (2 June 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/2/pandemic-emergency-amp-the-bangladesh-constitution-a-reflection