Hartal in Bangladesh has become, as though, a feature of everyday life of the citizens. Indeed the history of hartals in Bangladesh is quite extensive and can be traced back to numerous historic movements including the language movement in 1952, liberation war in 1971 and the movement against the autocratic regime in 1990. Hence, there are many people in our country who believe that hartal is quite justifiable. However, with the increasing violence and indiscipline that we can associate with hartals nowadays, conscientious sections of society cannot miss the question whether destruction in the name of hartal is a matter of democratic right?
Recently, the question of legality and illegality of hartal has entered into public discourse due to the anxiety, insecurity, uncertainty and threats associated with hartals. Top political and business leaders are proposing to enact a law banning hartal to put on end to its detrimental effects. An UNDP report, prepared around a decade back, showed that the majority of the people in the country are in favour of banning hartal (UNDP Bangladesh: Beyond Hartals, 2005).
Although there is no concrete judgment or rulings regarding the legality of hartal, the issue got already addressed and clarified by the Supreme Court of Bangladesh in its judgments. For the first time in 1999, the High Court Division of the Supreme Court issued a suo moto rule asking explanation as to why call for hartal and enforcement of hartal should not be declared illegal and a criminal offence. In this case, the Court declared hartal as a political and constitutional right. However, the Court also held that committing violence and coercion for or against hartal is a criminal offence (Khondaker Modarresh Elahi Vs. State, 21 BLD 352).
Considering the violence associated with hartal, the Court also interpreted Section 141, Clause 5 of the Penal Code 1860, which is about the offences against public tranquility and held that a procession or other activities of five or more persons in support of or to force hartal shall be deemed unlawful and punishable under Section 143 of the Code. Likewise, assemblies of five persons or more to oppose hartal is also unlawful. Activities of the members of these assemblies shall be cognisable offence under the relevant sections contained in chapter VIII of the Penal Code. The Division Bench then directed 'the Criminal Courts and the police to act accordingly.
However, this decision was challenged before the Appellate division of the Supreme Court and the Court partially agreed with the earlier decision i.e., on the point that 'hartal is a political and constitutional right'. But the Court turned down the prior decision that said, 'violence and coercion for or against hartal is a criminal offence' (Abdul Mannan Bhuiya and others Vs. State, 2008 MLR). As a basis, the Court reasoned that the nature of the crime and its punishment have already been clearly defined in the Penal Code. Hence, the High Court Division had no authority to intrude into the field of making law and to declare the pro-hartal and anti-hartal activities as cognisable offences. Undoubtedly, in strict sense, this ruling clearly has drawn a line for the Court reminding it about its power and also clarified that offence can be defined only by an Act of Parliament and not through Court verdict.
Even though at first sight, these findings seem to be remarkable, but practically, several questions jumble up in our mind to cause a 'politico-legal' confusion. Because on the one hand, the Court declared that hartal is a political and constitutional right of the citizens and hence it should be observed calmly with no illegal activities. Conversely, the Court noted a caution for the callers of hartal that they shouldn't commit any violence and infringe any one's right in the name of hartal, and directed the government to take action to ensure the rights of the citizens from the harm of hartal. Thus the obvious question: is it possible to observe hartal with no violation and harm to others' fundamental rights including the right to free movement, attend work places, conduct business and so on? If it is possible, then what will be the nature of that hartal? Or can that condition be defined as 'hartal' at all?
Given this dichotomy, it has to be realised that hartal is the extreme form of protest in a democratic society and it should not be resorted to unless all other democratic forms of expression of protest become ineffective. However, the best way, perhaps the only one to avert hartal and its consequences, is through dialogues between the government and the opposition parties to settle the scores peacefully.
The writer is a student of BRAC University, School of Law and also of the University of London International Programme, LL.B.
mhr25@student.london.ac.uk
