Ban on political activities: Does the Constitution support EC’s action?

Gulam Rabbani  :
The Home Affairs Ministry, following Election Commission’s instructions, has ordered not to hold any kind of rallies except election campaigns from December 18, ahead of Bangladesh’s next general election.

The Ministry of Home Affairs issued a notification in this regard on Thursday.

Election Commission may take decisions on holding a free and fair election. However, after the move, a question has raised whether the EC has the authority to cut any fundamental right prescribed by the Constitution.

The decision taken by the EC will surely cut the fundamental rights of the people prescribed in the Article 37 of the Constitution that said, “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 or public health.”

Without declaring a proclamation of emergency no one has any authority to cut any fundamental rights of the people prescribed by the Constitution.

Article 141(B) of the Constitution said, “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 incompetency, 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 141(C)(1) of the Constitution said, “While a Proclamation of Emergency is in operation, the President may, [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 this 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.”

In response to the question whether fundamental rights can be suspended without declaring a state of emergency, former Law Minister Barrister Shafique Ahmed said, “Fundamental rights cannot be suspended without declaring an emergency.

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It is a fundamental right to hold assembly. But the ban given by the EC is related to electoral issues.”

Senior Supreme Court lawyer Manzill Murshid said, “Holding rallies is a fundamental right.

But the people of the country are deprived from many of such rights.

The Commissioner of Police may ban the assembly at a specified place for a specific period.

However, the ban that has been imposed after EC’s instruction is unconstitutional and violative of fundamental rights.”

Former Secretary of the Supreme Court Bar Association (SCBA) and also Joint Secretary General of the BNP Barrister A M Mahbub Uddin Khokan said the Election Commission doesn’t have any authority to suspend people’s fundamental rights prescribed by the Constitution.

Barrister Khokan said without declaring emergency no one has jurisdiction to cut the fundamental rights of the countrymen.

“Is there a state of emergency in the country? If state of emergency has not been imposed, how can fundamental human rights can be suspended? EC does not have this authority. EC should withdraw this decision immediately,” the lawyer said.

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