Strike should be banned

Published on May 2016 | Categories: Types, Legal forms | Downloads: 51 | Comments: 0 | Views: 533
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Hartal: An Extreme Form of Democratic Expression
Mohammad Habibur Rahman
Hartal in Bangladesh has become a vital feature of the everyday life of the citizens of
Bangladesh. Indeed the history of hartals in Bangladesh is quite extensive and is associated with
numerous important movements including language movement 1952, liberation war and
movement against autocratic ruler in 1991. Hence there are many people in our country who
believe that hartal is quite justifiable and they are called for appropriate causes. However, with
the increasing violence and indiscipline that we can associate with hartals nowadays, a question
arises from various groups that how such hartal can be legal, and how the destruction in the name
of hartal can be a matter of right?
Recently the question of legality and illegality of hartal enters into a public discourse due to the
'anxiety', 'insecurity', 'uncertainty', 'threat' 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 on hartal showed that, the majority of the public agreed that the hartal should be
banned (UNDP Bangladesh; Beyond Hartals, 2005). Thus this issue needs to be resolved as the
common people of Bangladesh hold a confused perception about the legality of hartal.
Generally most of the people of our country regard hartal as lawful and identify it as a
democratic right. Even they feel that banning hartal means imposing limitation on every
fundamental democratic right, and in the end it will not bring any positive result for the nation.
There is a high amount of possibility exist that it will assist to revolve a democratically elected
government to an autocratic one. They strongly believe that without establishing a trustworthy
and sustainable democratic culture which definitely based on the mutual tolerance, accountability
and independent judiciary; such decision will be desperately detrimental for the whole nation and
its democracy.
Although there is no concrete judgment or rulings subsist regarding the legality of hartal,
however, legality issue was already answered and clarified by the Supreme Court of Bangladesh
in distinct judgments. For the first time in 1999 the HCD of the Supreme Court issued a suo
moto rule asking explanation as to why call for hartal and enforcement of hartal would not be

declared illegal and criminal offence. In this case the Court declared the hartal as a political and
constitutional right, however 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, moreover the Court also interpreted the section
141 clause 5 of the Penal Code 1860 which is on 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 unlawful assembly punishable under Section 143 of the Code. Likewise, all assemblies of five
persons or more to oppose hartal shall be an unlawful assembly. Activities of the members of
these assemblies shall be cognizable offence according to their behavior 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’. Again the Court overturned the prior decision on the point i.e '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 has
already been clearly defined in the Penal code. Hence, the High Court Division had no authority
in entering into the field of making law and to declare the pro-hartal and anti-hartal activities as
cognizable offence. Undoubtedly in strict sense this ruling clearly has drawn a line for the Court
reminding them about their power and also clarified that offence can be created only by an act of
the Parliament and not through the declaration of the court.
Even though at the first sight these findings seem to be remarkable, but practically, several
questions come to pass in our mind and create a complex politico-legal state. Because at the one
hand the Court declared that the hartal is a political and constitutional right, hence it should be
tolerable to be observed calmly with no illegal activities. Conversely they made a pre-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 to the government to take initiative to ensure the rights of the
individual from the harm of hartal. Consequently a complication, hence a common question peep
on people’s mind that, by any means; Is it possible to observe hartal with no violation and harm

to others fundamental rights including right to liberty, movement, work, 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?
Finally a question remains to answer that how the hartal as a democratic right can be observed
legally without violating others' rights, and how we will afford such harmful, violent and
destructive hartal. Simultaneously, we cannot disregard the argument of the people who think
that, banning hartal will be damaging to the democratic process itself in time. For that reason, we
have to realize that the hartal is the extreme form of expression of protest in a democratic society
and it should not be resorted to unless all other democratic forms of expression of protest become
ineffective. Alternatively another way to resolve political hartals is to reach understanding and
argument through dialogue and negotiation between the government in power and the opposition
parties to determine the issues that sparked off the hartals.

Writer is a student of BRAC University, School of Law; and also the Student of University of
London International Programme, LL.B.
E-Mail: [email protected]

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