Fundamental Rights & Reasonable Restriction: When the State Becomes
the Threat
Abstract:
Citizens of a state enjoy particular constitutional rights. The Constitution of
Bangladesh guarantees the highest safeguard for these rights so that people can
enjoy them without any interruption. However, these rights are subject to
reasonable restrictions imposed by the government from time to time to maintain
state security, public order, etc. On a plain reading, these restrictions appear
justified. This paper will focus on reasonable restrictions as to maintaining public
order and will argue that it is not only the citizens who disrupt public order;
sometimes, the government itself disrupts public order to a great extent, and this
disruption occurs when the government operates by bypassing or ignoring the
constitutional limits and democratic principles.
Key Words: Constitutional rights, public order, reasonable restriction, state power,
democracy.
I. Introduction
Bangladesh is a welfare state, born from the Liberation War of 19711, to ensure fundamental
human rights and freedom and also to ensure equality and justice for its citizens
economically, socially, and politically.2 The Constitution of Bangladesh keeps the people at
its center, and it is the people who choose the government and what should be the laws and
policies of the state.3 Kelsen’s theory of Grundnorm suggests, that as long as the constitution
has enough obedience of the people, it will operate as the will of the people.4 The
Constitution of Bangladesh guarantees fundamental rights, which contain equality before the
1
Preamble of the Constitution of Bangladesh.
2
ibid.
3
Article 7 of the Constitution of Bangladesh.
4
Raymond Wacks, Understanding Jurisprudence ( 4th ed. Oxford University Press 2015) 107.
law, the right to life, freedom of movement, assembly, association, speech, and press.5 These
rights are the expression of natural justice theory or it can be argued to be a reflection of the
social contract theory as well. While the former suggests individuals possess inherent rights
as a virtue of being humans from a higher source, which can be theological or secular6, the
latter suggests that individuals gave consent to form a state to protect their rights and provide
security.7 In exchange, citizens agree to follow the laws that the state creates. But, the state
must respect the fundamental rights of the people it governs, as these rights form the basis of
the social contract agreement.8 However, the Constitution of Bangladesh subjects all these
rights to reasonable restrictions. These restrictions might be imposed to maintain state
security, public order, etc. Public order, the main element of our paper, refers to a state of
peace, security, and stability within a country that is maintained through laws.9 On a plain
reading, these restrictions might seem necessary, but these restrictions often raise concerns
about government overreach and its suppression of dissent. The history of Bangladesh shows
that governments have often manipulated these provisions to suppress opposition rather than
to protect public order. This raises a critical question: when the state itself disrupts public
order by employing excessive crackdowns, political manipulation, or authoritarian policies,
can it still justify restricting free speech and other fundamental rights? This paper will
examine the State's part in maintaining and, at times, violating public order, challenging the
traditional notion that only individuals and groups threaten stability.
II. Case Studies: When the State Disrupts Public Order
In the following cases from the history of Bangladesh, we will see that it was the state that
deliberately disrupted public order, which led to violent protests, killings, and curtailment of
fundamental rights.
a. Language Movement of 1952
After the separation based on the two-nation theory10, Bangladesh became a part of
Pakistan.11 The majority of people of Pakistan belonged to East Pakistan and spoke in
5
Articles 31- 39 of the Constitution of Bangladesh.
6
John Finnis, Natural Law & Natural Rights (2nd ed. Oxford University Press 2011) 198; Wacks (n 4) 17-19.
7
Hilaire Barnett, Constitutional & Administrative Law (12th ed. Routledge 2017) 57.
8
ibid.
9
Madhu Limaye vs S.D.M. Monghyr, AIR 1971 SC 2486; Mahmudul Islam, Constitutional Law of Bangladesh
(3rd ed. Mullick Brothers 2012) 315.
10
“Two-Nation Theory - Banglapedia” <https://en.banglapedia.org/index.php/Two-Nation_Theory>.
11
ibid.
Bengali.12 However, the recognition of the Bengali language as an official language was
denied. Language is a fundamental right which can be derived from several international
conventions and declarations.13 The Pakistani government's suppression of the movement led
to violent clashes and the loss of lives, directly resulting in the disruption of public order.14
This is an instance of the state violating its constitutional limits by suppressing its citizens’
rights, which created public unrest. The state's response to these protests, that is, the use of
excessive force and violent repression, further deteriorated the situation, which shows how a
government’s actions can fuel public disorder.
b. Liberation War of 1971
Bangladesh Awami League won the general elections held in 1970 and was to lead the
Pakistan parliament but the actual representation of the people was denied by the martial law
administrator.15 On March 25, 1971, the Pakistan Army conducted a violent crackdown,
killing unarmed civilians.16 This act increased tensions and directly led to the Liberation War
of Bangladesh.17 It is another example where the state violated its constitutional limits, went
far beyond that, violated fundamental human rights, denied even the right to mere animal
survival, and conducted a genocide on people whom the state had a duty to protect.
c. Mass uprising of 1990
The Anti-Ershad movement occurred due to the deteriorating condition of democracy in
Bangladesh. There were no free and fair elections and no effective representation of the
people.18 As the people started to rebel against it, Under the pretext of maintaining public
order, the regime resorted to violence to keep Ershad in power. Though the autocratic regime
did not succeed in the end, it sure is an example that the government often creates public
disorder itself and imposes it on the people.19
12
Alam, S. M. S. (1991). Language as political articulation: East Bengal in 1952. Journal of Contemporary
Asia, 21(4), 469–487. https://doi.org/10.1080/00472339180000311.
13
Article 15(1)(a) of the ICESCR; Article 27 of the UDHR; Article 27 of the ICCPR; Article 5(e)(v) of the
International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
14
Rafiqul Islam, 'The Bengali Language Movement and the Emergence of Bangladesh' (1978) 11 Contributions
to Asian Studies 142.
15
7th Schedule, Article 150(2) of the Constitution of Bangladesh.
16
Akmam, W. (2002). Atrocities against humanity during the liberation war in Bangladesh: A case of genocide.
Journal of Genocide Research, 4(4), 543–559. <https://doi.org/10.1080/146235022000000463>.
17
7th Schedule, Article 150(2) of the Constitution of Bangladesh.
18
S. M. Shamsul Alam (1995) Democratic politics and the fall of the military regime in Bangladesh, Bulletin of
Concerned Asian Scholars, 27:3, 28-42, DOI: 10.1080/14672715.1995.10413048
19
ibid.
d. July Uprising of 2024
Several national and international observers have raised concerns regarding the fairness of the
elections held since 2014.20 Inflation and unemployment were at an all-time high and the
people suffered politically, economically, and in every other way possible.21 Criticism of the
government was met with allegations of being anti-national. The reservation of a 56% quota
in government services, primarily the 30% reserved for freedom fighters' descendants, was a
catalyst for mass protests.22 As a result, protests started, and the government cracked down
upon the students, shutting down the internet, forcibly disappearing the leaders of the protest,
and killing approximately 1400 people in the name of keeping public order and tranquility
within the state.23
Analyzing the cases mentioned, the definite question that arises is, if free speech, movement,
and assembly are restricted in the name of public order, but the government’s response leads
to greater chaos, does the restriction remain justified?
III. Theoretical Foundations: How States Manufacture Disorder
To establish how a state manufactures disorder, this paper will be relying on two theories,
Giorgio Agamben’s “The State of Exception”24 theory and Max Weber’s theory of “The
Monopoly of force.”25
a. The State of Exception
Giorgio Agamben’s state of exceptions refers to situations where the state itself creates
special situations to suspend general legal and constitutional rights, justifying them as special
or emergency conditions.26 Agamben argues that the problem lies dormant as the government
20
Riaz, A., & Parvez, S. (2021). Anatomy of a rigged election in a hybrid regime: the lessons from Bangladesh.
Democratization, 28(4), 801–820. https://doi.org/10.1080/13510347.2020.1867110; Mahmud F, “‘Dummy’
Candidates, Coerced Voting: Inside Bangladesh’s Election ‘Charade’” Al Jazeera (January 3, 2024)
<https://www.aljazeera.com/news/2024/1/3/dummy-candidates-coerced-voting-inside-bangladeshs-election-char
ade> ; By Anbarasan Ethirajan, “Bangladesh: The Election That Has Turned into a One-Woman Show” (January
1, 2024) <https://www.bbc.com/news/world-asia-67770784>.
21
Emon Md M.H. A systematic review of the causes and consequences of price hikes in Bangladesh. Review of
Business and Economics Studies. 2023;11(2):49-58. DOI: 10.26794/2308-944X-2023-11-2-49-58
22
Office of the High Commissioner for Human Rights (OHCHR), “Office of the High Commissioner for Human
Rights (OHCHR) Fact-Finding Report: Human Rights Violations and Abuses Related to the Protests of July and
August 2024 in Bangladesh” (2025)
<https://www.ohchr.org/sites/default/files/documents/countries/bangladesh/ohchr-fftb-hr-violations-bd.pdf>.
23
ibid.
24
Giorgio Agamben, State of Exception (The University of Chicago Press, 2005)
25
W. Heitmeyer and J. Hagan (eds.), Dieter Grimm, The State Monopoly of Force, International Handbook of
Violence Research, 1043-1056.
26
Agamben (n 24) 4-6.
can use these emergencies as an excuse to gain more power and control over people. It can
even declare an emergency when there’s no real crisis.27 Over time, the emergency powers
could become permanent, and people’s rights could be limited all the time, not just in
emergencies.
For example, Ershad, to be in power, declared an emergency during the mass uprising of
1990 and used coercive force against the protestors.
b. The Monopoly of Force
Max Weber propounds that the state is the entity that has a monopoly on the use of physical
force within its jurisdiction.28 That is, only the state has the authority to legitimize the use of
force which is distinguishable from other organizations or individuals. The state gets the
authority from the people through elections and institutions of the state.29 Though this
monopoly of force is meant to serve the public interest, the state should also constantly justify
the legitimacy of the use of force. This check and balance is similar to the proportionality
test, where according to the importance and weight of the right, the amount of justification to
impose a restriction varies.30 This monopoly also creates the risk of abuse of power, which
makes justification and limitation necessary. Social contract theory purports to explain why
people surrendered their natural right to use force to the state in exchange for security31. If the
state fails to uphold it, its use of force loses legitimacy, justifying resistance. Over time, this
idea changed, and limitations of the state power were introduced through human rights and
the separation of powers.32 Constitutions further restrict the use of force by the principle of
proportionality.33 Which advocates that the force must serve a legitimate purpose, must have
the least restrictive impact on rights, and the harm caused must not outweigh the benefits.
However, though the Constitution regulates the use of force, it does not alter the monopoly of
force.34 This monopoly remains intact in both authoritarian and constitutional states.35 This
27
ibid.
28
W. Heitmeyer and J. Hagan (eds.), (n 25)
29
ibid.
30
Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2002) 66; Aharon Barak,
Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012).
31
David Boucher and Paul Kelly. "The social contract and its critics." The social contract from Hobbes to
Rawls. (Routledge, 2003) 11-44.
32
Jonathan L. Entin, "Separation of Powers, the Political Branches, and the Limits of Judicial Review." (Ohio
St. LJ 51 1990) 175.
33
Robert Alexy, (n 30).
34
W. Heitmeyer and J. Hagan (eds.), (n 25)
35
ibid.
creates an imbalance, as the government can disrupt public order while framing it as
‘restoration’ through legally accepted procedures.
IV. The Contradiction: Can a State That Creates Disorder Legitimately Restrict
Speech, Movement, and Assembly?
From the previous discussions, it is clear that the state can and does restrict fundamental
constitutional rights. It is justified through the name of maintaining public order, which is to
prevent chaos, ensure stability, protect national security, etc.36 The constitution and other laws
justify the monopoly of force for the state under certain circumstances.37 The jurisprudence
behind this is to make sure that the unchecked exercise of these rights does not create chaos,
unrest, or disorder.38
People are the source from which the state draws its power and legitimacy.39 As suggested by
the social contract theory, everyone surrendered a part of their right to form the state to
ensure their security and wellbeing. The state gains legitimacy through elections and the
constitution restricts the powers of the state. Fundamental rights that are guaranteed under our
constitution are similar to the basic liberties proposed by Rawls.40 It is also argued that these
liberties should be equal to all and cannot be curtailed for economic or social advantages. The
modern concept of sovereignty considers people as the sovereign and the state as a servant.41
The state has to serve its people. These all justify the restrictions imposed by the state.
These justifications fail when the state itself becomes the primary source of disorder or
creator of a public disorder. When the government uses excessive force, manipulates laws,
suppresses dissent, and undermines free elections, it can be said that it is no longer
maintaining public order. Rather, it is creating disorder within the state and also creating
security threats itself.
People are the source of the state power.42 People gave up their different rights to security,
wellbeing, education, and economics to the state to act on their behalf.43 The government,
36
Mahmudul Islam (n ) 315.
37
W. Heitmeyer and J. Hagan (eds.), (n 25)
38
Mahmudul Islam (n 9) 315-17.
39
Article 7 of the Constitution of Bangladesh.
40
John Rawls, "The basic liberties and their priority." The Tanner lectures on human values (3 1982) 3-87.
41
Jacques Maritain, "The concept of sovereignty." The American Political Science Review (44(2) 1950)
343-357; Frederick Schauer, Free Speech: a philosophical enquiry (Cambridge University Press 1982) 39.
42
ibid.
43
Hilaire Barnett (n 7).
which runs the state, violates this contract when it suppresses speech, restricts movement,
violently cracks down on protests, or manipulates elections.44 In such cases, the use of force
becomes not an exercise of lawful authority but an act of oppression by the state.
Again, the Constitution of Bangladesh reflects the modern concept of sovereignty, keeping
people at its center.45 The constitution provides that the state aims to be a welfare state and to
look after its citizens and in no way rule them.46 How can a government that interrupts public
order claim the right to suppress speech and movement to restore order? If public order laws
are designed to protect democracy, but the state itself violates them, should laws still apply in
favor of the government?
To resolve this issue, laws that restrict fundamental rights must take state-led disruption into
consideration. Governments should not be allowed to use “public order” as a mean to
establish authoritarian control. Any restriction on speech, movement, or assembly should be
subject to strict judicial scrutiny to ensure that the state itself is not the source of the disorder
which it want to control. When it is deduced that, the governments reaction to protest creates
more chaos than the protest itself creates, the question converts from restricting fundamental
rights to holding the state accountable for its role in destabilizing the order which it claims to
protect.
V. Conclusion: Rethinking Public Order in Free Speech and Civil Liberties Debates
General understanding of state’s restriction on fundamental rights presumes that the state is a
neutral enforcer of the rights in order to maintain stability.47 However, the cases studies and
history clearly indicates that state is not always neutral— it can actively manufacture disorder
to justify greater control as it has previously used crises as an excuse to expand their
authority, suppress opposition, and restrict civil liberties. In order to control state abuse of
power, the laws restricting the rights should take into account the the role of the state in
creating a disorder. If the laws only focus on preventing public unrest without taking account
of government-led disorders, these laws possess a risk of being used as a tool of oppression
rather to maintain public order. People must critically evaluate the laws that are passed by the
legislature.
44
W. Heitmeyer and J. Hagan (eds.), (n 25).
45
Preamble and Article 7 of the Constitution of Bangladesh.
46
Preamble, Part II, Part III, Article 102 of the Constitution of Bangladesh.
47
Mahmudul Islam (n 9) 315-17.
To uphold justice, the laws must recognize that disorder is not always caused by individuals
or groups—it can also be caused by the state. To prevent the abuses, legal frameworks should
incorporate the following safeguards:
1. Judicial scrutiny of state actions: Courts are to implement Article 26 of the
Constitution strictly through proportionality tests and scrutinise crisis situations.
2. Accountability mechanisms for state violence: When governments justify crackdowns
as necessary for maintaining public order, there must be mechanisms to hold the
government accountable. This can be achieved through activating Human Rights
Commission effectively. If the state actors exceed their authority, they should be held
criminally liable.
3. Ensuring freedom of speech and press as guaranteed under Article 39 of the
Constitution.
4. Recognising protests not as a threat but as a democratic right: the laws should define
what constitutes a threat and disrupts public order. This can help in avoiding vague
interpretation which leads to abuse.
In conclusion, instead of viewing protests, dissent, and activism as cause of disruption of
public order, our perspective must be shifted to analyze how state actions—through
repression, excessive force, and political manipulation—can create greater instability.
