Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited

Md Mustakimur Rahman

Abstract


This research analyses the Bangladesh’ Court Decision on the case of Ataur Rahman vs. Mahibur Rahman with regrad to fundamental rights in times of emergency. It is argued that the decision of the court in Ataur Rahman vs. Muhibur Rahman is erroneous decision. This is because while Article 141C of Bangladesh Constitution gives the Presidnet the power to suspend certain fundamental rights, yet Articles 27 to 35 and 41 of the Constitution cannot be suspended. In Bangladesh’s legal system, fundamental human rights are commonly viewed as a set of legal protections. Part III of the Constitution of Bangladesh has confirmed these rights for the citizens of Bangladesh. Some fundamental rights are even universally recognized rights which are contained in the United Nations Universal Declaration of Human Rights (UDHR), the UN International Covenant on Civil and Political Rights (ICCPR), or the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 4 of the ICCPR deals with the state of emergency and Article 4(2) provides a list of non-derogable rights. Such as the right to life, the prohibition of torture, slavery etc. These rights are completely non-derogable in nature and cannot be derogated at all including during a state of emergency. Furthermore the Apex court of Bangladesh tried to justify that the President can derogate any fundamental right during an emergency. Such a proposition is contradicting core parts of our Constitution as well as several international instruments.

This research uses normative legal research with statute approach and case approach, especialy analysing Ataur Rahman vs. Muhibur Rahman case.


Keywords


Fundamental Rights; Emergency; Bangladesh; Constuitutional Law; International Law

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References


Book

Emilie M. Hafner-Burton, Laurence R. Helfer, and Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, (International Organization of Duke University: 2011), 676

M. Ehteshamul Bari, The Unjust Exercise of Emergency Powers in Bangladesh and Their Consequent Impact on the Fundamental Rights: A Critical Appraisal, (Mykolas Romeris University: 2014)

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Journal Articles

Muhammad Nasrullah Virk, ‘Doctrine of Necessity-Application in Pakistan- Cases of Immense Importance- A Critical Review’ (2012) 2 (2) International Journal of Social Science and Education, 83

Joan Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 Harvard International Law Journal, 6

Gennady M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’, (1991) 2 European Journal of International Law, 42

International Convention

International Covenant on Civil and Political Rights 1966

United Nations Universal Declaration of Human Rights (UDHR)

UN International Covenant on Civil and Political Rights (ICCPR)

UN International Covenant on Economic, Social and Cultural Rights (ICESCR).

Legislations

European Convention on Human Rights 1950

Bangladesh Constitution

legislation of 1958 Martial Law

Cases

The State[Pakistan] vs. Dosso and Another [1958] PLD SC (PAK.) 533

Ataur Rahman v. Muhibur Rahman 14 BLC (AD) 62, 69, para 16 (2009)

Internet Sources

George Williams, The Case that Stopped a Coup? The Rule of Law in Fiji (27th November 2003) s< http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/ publications/OP_Williams.pdf > (accessed 15 September 2016)

Harshit Khare, Position of Fundamental Rights during Emergency, (15 March 2011) (accessed 15 September 2016)




DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.04

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