Right to peaceful assembly: Revisiting the national regulatory framework and international standards

Article 37 of the Constitution guarantees the right to peaceful assembly. Photo: TBS

As a cornerstone of any democratic society, the right to peaceful assembly empowers individuals to gather, voice their concerns and participate actively in shaping the course of their nation. For Bangladesh, a country with a rich history of social movements and citizen activism, the significance of this right cannot be overstated. 

From the Language Movement to the Liberation War, we witnessed how peaceful assemblies have been instrumental in galvanising collective action and inspiring change. However, in the contemporary landscape, as the dynamics of politics, technology, and societal norms evolve, questions arise about the delicate balance between preserving public order and safeguarding the right to peaceful assembly. 

This piece of writing analyses the legal framework of Bangladesh, focusing on safeguarding citizens' voices and ensuring stability. It also examines international standards and obligations, assessing how this influences the peaceful assembly approach of the country, fostering accountability and solidarity with the international community.

National legal framework 

The Right to Assembly in Bangladesh is enshrined in the constitution with other relevant laws and regulations, and is considered a fundamental right of its citizens. Article 37 of the Constitution guarantees the right to peaceful assembly. It states that "every citizen shall have the right to assemble peacefully and without arms," emphasising the non-violent nature of the assembly. This constitutional provision provides the basis for individuals and groups to come together and express their opinions, views and grievances through peaceful protests, demonstrations and gatherings. 

While the Police Act of 1861 does not explicitly address the right to assembly, it does contain provisions related to public order and the regulation of gatherings. The police, under this act, have certain powers and responsibilities to maintain public order and deal with unlawful assemblies. 

However, these powers are subject to the overarching framework of the Constitution and must be exercised in compliance with the principles of proportionality and the necessity to protect the right to peaceful assembly. As such, there must be a balance between maintaining public order and safeguarding the right to assemble peacefully. 

Article 144 of The Code of Criminal Procedure of Bangladesh contains provisions related to public order, unlawful assemblies, and the powers of the authorities in managing and dispersing unlawful gatherings. It is crucial for the authorities to use these powers judiciously and in accordance with the principles of human rights and the right to peaceful assembly. 

The Special Powers Act of 1974  grants the government sweeping powers in certain situations, including the declaration of curfews, to control public gatherings and maintain law and order. While such powers may be necessary in exceptional circumstances, it is essential to ensure they are exercised in line with the principles of proportionality, necessity and respect for human rights. 

In 2013, the Dhaka Metropolitan Police (DMP) required organisers of public gatherings to submit an application to the Police Commissioner seven days before the event. The Office usually informs applicants within five days of permission, with final decisions final. If denied, cases can be filed at the High Court Division of the Supreme Court of Bangladesh to contest the denial of permission. Section 29 of the 1976 DMP Ordinance criminalises organisers and participants of assemblies violating assembly laws. Violations result in imprisonment, fines, or both, with terms ranging from three months to five hundred takas.

International legal framework 

The right to assembly is recognised and protected under international human rights law. Adopted by the United Nations General Assembly in 1948, the UDHR proclaims the right to peaceful assembly as a fundamental human right. Article 20 of the UDHR states that "everyone has the right to freedom of peaceful assembly and association." This declaration serves as a foundational document in promoting and protecting human rights worldwide. 

Article 21 of the ICCPR reaffirms the right of peaceful assembly and emphasises that "no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others." 

Several international treaties, conventions, and declarations, for example, the European Convention on Human Rights (ECHR), African Charter on Human and Peoples' Rights (ACHPR), African Charter on Human and Peoples' Rights (ACHPR), Organisation of American States (OAS) Instruments set forth the regulatory framework regarding the right to a peaceful assembly at the global level. 

Though most of the countries, including Bangladesh, may not be a signatory to most of these documents, these international instruments establish a strong legal foundation for the protection and promotion of the right to peaceful assembly worldwide. They emphasise that the right to assembly should be exercised peacefully and without discrimination, and any restrictions imposed on this right must be necessary and proportionate to safeguard public safety, national security and the rights of others. Governments are bound to respect, protect and fulfil the right to peaceful assembly as an integral part of the broader framework of human rights and fundamental freedoms.

Use of force and firearms in public assembly 

Over the years, there have been instances where law enforcement agencies have been accused of using excessive force, resulting in injuries and fatalities among protestors. Law enforcement agencies, primarily the police, are responsible for maintaining law and order during public assemblies and demonstrations. They have the authority to disperse unlawful assemblies and manage crowds to ensure public safety and prevent violence. The use of force, including batons, water cannons, tear gas, and rubber bullets, is sometimes employed to control crowds. 

The Code of Criminal Procedure contains provisions related to the use of force by the police in certain situations, including dispersing unlawful assemblies. Section 129 of the CrPC grants the authorities the power to disperse an unlawful assembly, using minimum force, if necessary, after giving due warning to disperse. However, this should be done in a way that minimises harm and ensures the safety of the individuals involved. 

The Police Act of 1861 provides the legal framework for the functioning of the police in Bangladesh. While the act does not explicitly address the use of force during public assemblies, it contains provisions related to the powers and responsibilities of the police in maintaining public order and dealing with unlawful assemblies. Law enforcement agencies are required to act in accordance with the principles of proportionality, necessity and legality while handling public gatherings.

Under international regulations and standards, the use of force and firearms during public assemblies is subject to strict guidelines to protect the right to peaceful assembly and safeguard human rights. Several international instruments address this issue, emphasising the principles of proportionality, necessity, and respect for human rights. 

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, provide comprehensive guidance on the use of force by law enforcement officials. In the context of public assemblies, it emphasises that force should be used only when strictly necessary and proportionate to the threat encountered. Law enforcement officials are encouraged to use non-violent means to disperse assemblies and should resort to the use of firearms only as a last resort when facing an imminent threat of death or serious injury. 

Furthermore, the United Nations Code of Conduct for Law Enforcement Officials, adopted in 1979, establishes the standards of conduct for law enforcement officials. It emphasises that the use of force during public assemblies should be in line with the principles of necessity and proportionality and should never be employed to suppress or punish individuals for the exercise of their right to peaceful assembly. 

The International Covenant on Civil and Political Rights (ICCPR) requires that any restriction on the right to assembly be lawful, necessary, and proportionate to achieve a legitimate aim. The use of force or firearms during public assemblies must comply with these principles and be in accordance with the state's obligations under the ICCPR. 

The Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR adopted in 1984, provide additional guidance on interpreting the ICCPR's provisions concerning the use of force during public assemblies. According to these principles, any restrictions on the right to peaceful assembly must be narrowly tailored, and the use of force should be exceptional, carefully regulated and proportionate to the legitimate objective pursued.

In summary, international regulations emphasise the importance of protecting the right to peaceful assembly and the need to avoid the excessive or arbitrary use of force and firearms during public gatherings. Though Bangladesh may not be a signatory to most of these documents, it is important to note that the country's obligations and commitments to international human rights standards, including those related to the use of force and firearms by law enforcement officials, are primarily governed by its status as a signatory to the International Covenant on Civil and Political Rights (ICCPR) and other relevant international treaties. 

Law enforcement officials must be well-trained in crowd management and non-violent means of dispersal as well as respecting the rights of individuals to assemble and express their views. Any use of force or firearms should be a measure of last resort, and its application must be strictly necessary and proportionate to the specific circumstances at hand to ensure the respect and protection of human rights. The legal framework of Bangladesh should be in harmony with its international human rights obligations. Transparency and accountability in cases of the use of force during public assemblies are also crucial to ensure the protection of human rights and the rule of law.

Farjana Yesmin is an Assistant Professor at the Department of Law, University of Chittagong.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.