States of emergency should not put democratic values at risk: Deakin expert

14 August 2017

When dealing with serious threats to national security, nations should not compromise democratic values such as respect for the rule of law and fundamental human rights, according to a Deakin University constitutional law expert.

Dr M. Ehteshamul (Tanim) Bari, Deakin Law School lecturer and Director of the JD Program, has investigated the way states of emergency have been approached in Bangladesh and believes there are lessons for Australia, and other countries, in his findings.

“The security challenges faced by a nation should never be used as a rationale for ignoring the critical need to maintain the rule of law and the fundamental human rights of individuals, yet this is what has occurred in Bangladesh and without appropriate safeguards could also happen in Australia,” Dr Bari said.

Australia has been obsessed with anti-terror laws. Post 9/11, successive federal governments have enacted more than 60 anti-terror laws.

“These laws confer on the executive branch of government wide powers concerning preventive detention. This is particularly troubling considering Australia does not have any form of national bill of rights guaranteeing, for instance, the right to freedom from arbitrary detention.

“Although the expectation is that the extraordinary powers concerning preventive detention will be used in exceptional circumstances for preserving national security, my research demonstrates that the existence of wide powers often enables democratically elected governments to become tyrannical and to resort to these powers as a convenient means of furthering their parochial interests.

“In light of this, adequate safeguards should be incorporated in the Australian Anti-Terror Laws for restricting the scope of the exercise of the power of preventive detention, thereby removing the possibility of its abuse.”

The results of Dr Bari’s research are published in his new book States of Emergency and the Law: The Experience of Bangladesh (Routledge, 2017) which was launched in Melbourne this month.

The five states of emergency proclaimed since emergency provisions were added to Bangladesh’s constitution in 1973 saw either all or most of the 18 fundamental rights enshrined in the Constitution suspended. These included core rights such as the right to life, the right not to be subjected to retroactive penal law, and the right not to be subjected to torture or cruel, inhuman or degrading punishment or treatment, and the misapplication and abuse of the power of preventive detention.

The impact of these emergencies on the people of Bangladesh included the killing of hundreds of people by law-enforcement agencies, arrest of many hundreds of thousands of people, torture of countless people and strict censorship of the press.

Dr Bari’s analysis revealed that the constitutional provisions concerning emergency and preventive detention laws in Bangladesh have served as a means of maintaining power and depriving the citizens of their fundamental rights.

“The experience in Bangladesh highlights how the absence of effective safeguards for governing emergency regimes can be abused for extraneous purposes,” Dr Bari said.

“In each case, the five emergencies were invoked on the imprecise ground of internal disturbance with not one occasion being on the grounds of war or external aggression.

“With the exception of the 1981 emergency proclaimed after the assassination of the Head of State, the emergency powers were used by the governments of the day to consolidate their power by suppressing political adversaries.

“Two of these emergencies were even continued after the threat posed had passed which is the antithesis of the temporary nature of an emergency regime designed to fend off the extraordinary threats posed to the life of the nation.”

States of Emergency and the Law: The experience of Bangladesh by Dr M. Ehteshamul Bari is published by Routledge.

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