NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [23]
BANGLADESH IN A PERMANENT STATE OF EXCEPTION? A
CRITICAL INQUIRY THROUGH AN AGAMBENIAN LENS
MD. TARIK MORSHED
TANIA SULTANA
ABSTRACT
This article examines how the legal and political order of Bangladesh operates based on
‘state of exception’ as theorized by Giorgio Agamben. It argues that Bangladesh has transitioned
from constitutional framework of emergency powers to a permanent state of exception, where
extraordinary measures are normalized within ordinary governance. It situates recent events
within an architecture of preventive detention, digital surveillance, and extrajudicial repression,
all deployed without any formal proclamation of emergency. Through a critical adaptation of
Agamben’s formulations of sovereignty, bare life and the camp to the postcolonial context, the
article traces the genealogy of exception to colonial technologies of governance and their
reinforcement through global counter-terrorism discourses. In doing so, it demonstrates how
political dissidents, refugees, and disadvantaged urban citizens are ruled in zones of legal
abandonment. The paper concludes that this entrenched exceptionalism is a weakening force for
democracy, fundamental rights, and the rule of law, calling for legal reform along with decolonial
transformation.
Keywords: state of exception, Giorgio Agamben, postcolonial governance, emergency
power, bare life.
***
I. INTRODUCTION
The history of liberal statecraft reveals a persistent tension between constitutional rule in
ordinary situation and the preservation of emergency power by the sovereign authority.
1
Where
Md. Tarik Morshed, Assistant Professor, Law Discipline, Khulna University, Khulna-9208. Email:
tarikmorshed@law.ku.ac.bd
Tania Sultana, Assistant Professor, Law Discipline, Khulna University, Khulna-9208. Email: tania@law.ku.ac.bd
1
See generally Clement Fatovic, ‘Emergencies and the Rule of Law’ in William R. Thompson (ed), Oxford Research
Encyclopedia of Politics (Oxford University Press, Online ed, 2019)
https://doi.org/10.1093/acrefore/9780190228637.013.93 ; Oren Gross, ‘Chaos and Rules: Should Responses to
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [24]
most of the states including Bangladesh are formally constitutional democracies which adhere to
the rules of constitutional government, their constitutions generally contain emergency powers by
which constitutional rights can be suspended. The legal and political history of Bangladesh,
however, indicates that the demarcating line between normal governance and emergency rule has
become blurred. The Constitution of Bangladesh provides provisions for emergency powers, but
in practice the state has rarely had to, at least in recent times, resort to these in order to wield
‘exceptional’ authority.
2
Instead, mechanisms of exception have been incorporated within the
normal legal and political apparatus, so that governments may act outside of constitutional legality
while maintaining the illusion that they are acting within it.
The student-led uprising of July 2024 that ultimately overthrew a sixteen-year-old
government, is the most recent and arguably the most important illustration for this discussion.
What initiated as a protest against the controversial job quota system, turned into a national
movement demanding end to the rule of an autocratic and corrupt regime.
3
The government’s
response from the very beginning was not outreach and political settlement with the protesters, but
an overwhelming degree of brute force: the deployment of police, paramilitary units, and ruling
party cadres; the imposition of a nationwide internet blackout and a shoot-on-sight curfew and the
killing of hundreds of protesters, many of them students and children.
4
This massive crackdown,
conducted without the formal declaration of emergency, reveals an embarrassing truth that the
state does not need to suspend constitutional rights to carry out these ‘hyper’ exceptional measures,
the legal and coercive instruments are all present in the fabric of its peacetime constitutional and
legal framework.
This article critically analyses this phenomenon drawing on the theoretical contributions
Violent Crises Always Be Constitutional?’ (2003) 112 Yale Law Journal 1011; David Dyzenhaus, ‘The Compulsion
of Legality’ in Victor Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press, 2008) 31.
2
For a comprehensive overview of the emergency regime in Bangladesh, see M. Ehteshamul Bari, States of
Emergency and the Law: The Experience of Bangladesh (Routledge, 1st ed, 2018).
3
Chaumtoli Huq and Chloe Miller, The Bangladesh Student Movement that Transformed a Nation, 10 September
2024 <https://lpeproject.org/blog/the-bangladesh-student-movement-that-transformed-a-nation/\> accessed on 23
August 2025.
4
Office of the United Nations High Commissioner for Human Rights, Fact-Finding Report: Human Rights Violations
and Abuses related to the Protests of July and August 2024 in Bangladesh, 12 February 2025
<https://www.ohchr.org/sites/default/files/documents/countries/bangladesh/ohchr-fftb-hr-violations-bd.pdf>
accessed on 23 August 2025.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [25]
of Italian philosopher Giorgio Agamben. The central argument of this article is that Bangladesh
has transitioned into what Agamben terms as ‘permanent state of exception.’
5
This hyper exception
operates not under the explicit constitutional provisions for emergency rule in Part IXA of the
Constitution of the People’s Republic of Bangladesh 1972, which have been employed on only
five occasions in the history of the country.
6
Rather, it is a permanent condition created by the
normalisation of hyper exceptionalism within ‘ordinary’ legal order. This parallel order is
composed of various special and exceptional laws that appears to operate within the scheme of
‘reasonable restriction’ of constitutional rights. They are not deployed on a temporary basis in
extraordinary circumstances but have become part of the normal apparatus of statecraft.
Agamben’s political philosophy analyses the historical trajectory of the state of exception
as a temporary crisis management tool toward being the dominant modern form of rule, and
provides a theoretical framework to dissect this reality.
7
His analysis sheds light on the process in
which the legal apparatus itself can be weaponized to produce a space of lawlessness, a ‘zone of
indistinction’ where citizens can be stripped of their legal protections and exposed to the
unmediated violence of the sovereign.
8
However, a straightforward application of Agamben’s
theory would be insufficient. His approach, experientially based on the European legal history and
Holocaust in particular, has been challenged for its Eurocentrism.
9
Hence, the article will critically
adapt the concepts of Agamben, given the postcolonial context of Bangladesh. It will consider how
the country’s hyper exceptional legal architecture is not just a contemporary creation but a direct
descendent of colonial technologies of rule that have been repurposed and re-legitimized by the
postcolonial regimes.
By examining the constitutional framework for emergency, the landscape of exceptional
5
The foundational text of this theorization is Giorgio Agamben, State of Exception (trans Kevin Attell, University of
Chicago Press, 2005). The concept was further developed by him in Giorgio Agamben, Stasis: Civil War as a Political
Paradigm (trans Nicholas Heron, Stanford University Press, 2015). Though not explicitly theorized in Giorgio
Agamben, Homo Sacer: Sovereign Power and Bare Life (trans Daniel Heller-Roazen, Stanford University Press,
1998), this seminal text introduces the concept of bare life.
6
Bari, above note 2.
7
Roberto Esposito, Bíos: Biopolitics and Philosophy (trans Timothy Campbell, University of Minnesota Press, 2008).
8
Agamben, State of Exception, above note 5.
9
For the postcolonial critique of Agamben’s formulation of state of exception, see Simone Bignall, ‘Postcolonial
Redemption: Agamben’s Thought as Transformative Chrēsis’ (2014) 40(2) Concentric: Literary and Cultural Studies
29; Achille Mbembe, ‘Necropolitics’ (2003) 15 Public Culture 11; Scott Lauria Morgensen, ‘The Biopolitics of Settler
Colonialism: Right Here, Right Now’ (2011) 1 Settler Colonial Studies 52.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [26]
peacetime laws, and their specific use in crisis times and in governing the marginalized, this article
argues that the state of exception is not an anomaly in Bangladesh, it is the rule. And this is having
grave implications for democracy, civil liberties, the rule of law, indeed the very relationship
between citizen and state. The ultimate aim of this article is to provide a theoretically rigorous and
empirically grounded account of how a nation can exist in a perpetual state of emergency, even
when no emergency is officially declared.
II. THEORETICAL FRAMEWORK
Before analysing the politico-legal framework of Bangladesh through the lens of Giorgio
Agamben, it is essential to unpack the nuanced theoretical framework of his understanding of
modern state power. Giorgio Agamben’s work on the state of exception is not entirely sui generis
but a critical and radical development from the political theology of the German jurist Carl
Schmitt.
10
It is in the ‘intellectual’ dialogue between these two thinkers that the analytical
instruments for diagnosing the normalization of emergency powers were elaborated. This
framework extends beyond the mere jurisprudential analysis of the state of emergency (exception)
and opens up an analysis into sovereignty, law and life itself as a philosophical one.
A. Schmitt’s ‘Sovereign Decision’ to Agamben’s ‘Threshold of Indistinction’
The intellectual genealogy of the state of exception begins with Carl Schmitt’s vigorous
critique of liberal constitutionalism during the turbulent years of Weimar Republic. In his 1922
seminal book, Political Theology, Schmitt offered a definition of sovereignty which would become
canonical in the later years: “Sovereign is he who decides on the exception.”
11
As Schmitt
understands it, sovereignty has nothing to do with the mundane application of legal norms but is
rather effectively revealed where the order of norms breaks down. The exception is a “case of
extreme peril, a danger to the existence of the state” not susceptible of lawmaking not legally
codifiable or foreseeable. The decision by the sovereign to establish an exception and to suspend
the law is thus a “borderline concept” (Grenzbegriff), which positions the sovereign “outside the
normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the
10
Dilan Ates, ‘The State of Exception: An insight into its theoretical background’ (2023) 7 Global Campus Human
Rights Journal 114.
11
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans George Schwab, MIT Press,
1985) at 5.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [27]
constitution needs to be suspended in its entirety”.
12
Writing in the context of the Article 48 of the Constitution of the German Reich (Weimar
Republic), which allowed for the President to exercise emergency powers, Schmitt considered this
capacity a necessary though inherently risky tool to preserve the state from anarchy.
13
Where
Schmitt described the exception as creating a legal void to be filled by sovereign decision,
Agamben describes it as creating “paradoxical threshold of indistinction”.
14
And this is a threshold
space where the foundational distinctions of the legal order collapses and “it is impossible to
distinguish transgression of the law from execution of the law, such that what violates a rule and
what conforms to it coincide”.
15
To him, the law is already in force without significance. As such
it is still operative, but operative only insofar as it can withdraw its own protection, abandon a life
to an unmediated violence. This is the crucial theoretical move by Agamben: the exception is not
outside law; it is instead the opening up of law’s most intimate and violent foundation. In this
view, the primary role of the law is not to regulate anything but to capture life by producing an
external space that makes it possible to abandon it.
The sovereign decision, for Schmitt, is an act of pure will that temporarily suspends legality
in order to preserve the legal order itself. Giorgio Agamben uses Schmitt’s formulation as a point
of departure, but runs it to a much more radical conclusion. In State of Exception, Agamben argues
that the exception has ceased to be a “provisional and exceptional measure” reserved for periods
of civil war or political emergency, it has been transformed instead into a routine “technique of
government”.
16
Rather than an exception, the twelve-year Nazi state of emergency declared in
1933 was, for Agamben, provided the disturbing revelation that “modern totalitarianism can be
defined as the establishment, by means of the state of exception, of a legal civil war that allows for
the physical elimination not only of political adversaries but of entire categories of citizens who
for some reason cannot be integrated into the political system”.
17
12
Ibid, at 5, 7.
13
Ibid, at xvi–xvii.
14
Ibid, at 18.
15
Ibid, at 19.
16
Agamben, State of Exception, above note 5 at 2.
17
Agamben, Homo Sacer: Sovereign Power and Bare Life, above note 5 at 167.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [28]
B. Homo Sacer, Bare Life, and the Camp
To explain how this zone of indistinction operates on human subjects, Agamben develops
a triad of interconnected concepts: the homo sacer, the bare life, and the camp. The figure of homo
sacer hails from the archaic Roman law, which refers an individual who has been excluded from
community and thus “may be killed but not sacrificed”.
18
Roman sources, define homo sacer as a
person who has been banned, after having broken some serious religious or moral law. As the
killing of homo sacer is not murder sense of a crime, the killer acts of impunity, yet at the same
time, this life is “sacred” and can therefore not be used in a religious ritual or in a sacrifice.
19
For
Agamben, this figure of paradox is the master key to understanding the nature of sovereign power.
Homo sacer is not an instance of life incompletely excluded from the juridical order; rather, it is a
life that belongs to the order by being entirely outside it.
20
The law applies to this life by
withdrawing from it, in abandoning it to a power of death. This relation of abandonment or the
ban, is the original political relations for Agamben.
21
This brings us to the concept of bare life. Agamben begins with the ancient Greek account
of two forms of life: zoe, the bare, natural fact of living that is shared by all animals, and bios, the
politically qualified life of a citizen participating in the polis.
22
He argues that the political of the
West was founded on the separation between these two, that is, to define the political life (bios)
by means of the exclusion of natural life (zoe).
23
Yet in modernity, this exclusion takes the form
of an “inclusive exclusion” and the bare life is no longer outside or simply excluded from politics,
but increasingly captured in the calculations and mechanisms of power itself.
24
He notes that the
“production of a biopolitical body,” a body the biological life of which is a political stake, becomes
the original activity of sovereignty.
25
Bare life is the left-over-after effect of a human-being after
18
Ibid, at 8.
19
Sextus Pompeius Festus, De verborum significatu (Wallace M. Lindsay ed, Teubner, 1913). Festus defines the term
as follows: At homo sacer is est, quem populus iudicavit ob maleficium; neque fas est eum immolari, sed qui occidit,
parricidii non damnatur. English Translation: “The sacred man is one whom the people have judged on account of a
crime. It is not permitted to sacrifice him, yet he who kills him is not condemned for parricide”.
20
Agamben, above note 17 at 28-29.
21
Ibid.
22
Ibid, at 1.
23
Ibid, at 8.
24
Ibid, at 28-29.
25
Ibid, at 6.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [29]
they have been stripped of political status (bios) and reduced to biological existence alone (zoe),
which is subject to the sovereign decision on life and death.
Ultimately, the camp embodies the state of exception; it is the space where the exception
becomes the rule. The Nazi concentration camp is Agamben’s paradigm, but he insists that the
camp is not only “a historical fact and an anomaly belonging to the past (even if still verifiable)
but in some way as the hidden matrix and nomos of the political space in which we are still
living”.
26
The camp is a site in which a group of people (for example, the Jews of Nazi Germany,
deprived of citizenship) are reduced to bare life. It is a space where the regular juridical order is
suspended, where anything is possible. In the camp, the distinction between law and fact, of the
juridical and the political, disappears.
While Agamben’s model is significant in its critique of modern sovereignty, it is not
without limitations, particularly when applied outside the European core of modernity. Quite
understandably, postcolonial theorists have criticised Agamben’s work for its Eurocentrism.
27
Bignall notes that his historical narrative traces its genealogy from ancient Rome up to Auschwitz,
where the Holocaust is finally disclosed as the biopolitical potential of the Western State. This
emphasis entirely bypasses the long and brutal history of European colonialism.
28
The central postcolonial argument is that the state of exception was not a crisis that
emerged within twentieth-century European modernity; it was the foundational and permanent
mode of governance of the colonial territories from the very beginning.
29
Colonial rule, by its very
definition, meant the suspension of the metropolitan rule or law and colonial subject was never
acknowledged entirely as a political subject (bios) but was always managed as one element within
a population of bare lives (zoe) vulnerable to casual violence, economic exploitation and racialized
exclusion.
30
From this perspective, the camp was not an invention of the Europeans but already
prefigured in the plantations, reservations, and colonial frontiers, where whole populations were
26
Ibid, at 175.
27
Above note 9.
28
Simone Bignall and Marcelo Svirsky, ‘Introduction: Agamben and Colonialism’ in Simone Bignall and Marcelo
Svirsky (eds), Agamben and Colonialism (Edinburgh University Press, 2012) 1, at 1-3.
29
Ibid.
30
Ibid.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [30]
put under a lawless law.
Hence, Agamben’s theory has to be adjusted critically when applied to a postcolonial state
like Bangladesh. This is not merely a matter of having recently been transformed into a state of
exception; we must acknowledge the continuous state of exception starting from the colonial time.
These apparatus of control in the legal and administrative arena did not begin afresh in the post-
independence period, but were derived from the British colonisers and then from postcolonial
Pakistan.
31
This inheritance of exception, is the ready-made platform, on which the post-colonial
Bangladesh establishes its own mechanisms of repression. But the challenging thing to do is to
take Agamben’s ideas and apply on this specific historical trajectory of Bangladesh recognizing
that for the colonized territories the exception has always been the norm.
III. EMERGENCY POWERS IN THE CONSTITUTION OF BANGLADESH
The Constitution of Bangladesh, being the supreme law of the land, has delineated
procedural and substantive provisions for the proclamation of emergency. This formal structure,
enshrined in Part IXA of the Constitution, represents the classical, de jure version of the state of
exception. Understanding historical context and the reactions of the judiciary to their interpretation
is essential for two reasons. First, it draws the official juridical line that demarcates the normal
from the exceptional within the Bangladeshi constitutional order. Second, and more significantly,
it highlights the profound gap between this formal architecture and the de facto reality of
governance. It paves the way for the argument that the constitutional emergency has been
functionally recast into a more invidious and permanent architecture of control.
The original Constitution of Bangladesh, enacted in 1972 following the liberation war from
Pakistan, a country that had used emergency laws time and again, contained no provisions for the
proclamation of an emergency. The framers intentionally made this omission to prevent the
overreach of executive power.
32
But it did not continue at principle for very long. In 1973, the
31
See generally Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (University of
Michigan Press, 2003); Hussain M. Fazlul Bari, ‘Evolution of the criminal justice system in Bangladesh’ (2019) 45(1)
Commonwealth Law Bulletin 25.
32
M. Ehteshamul Bari, ‘Emergency Powers and Martial Law under the Constitution of Bangladesh’ in M. Rafiqul
Islam and Muhammad Ekramul Haque (eds), The Constitutional Law of Bangladesh: Progression and Transformation
at its 50th Anniversary (Springer Nature Singapore, 2023) 367.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [31]
government, in view of deterioration in the political and social conditions of the country, inserted
Part IXA through the Second Amendment of the Constitution.
33
For a proclamation to be made, the President has to be “satisfied that a grave emergency
exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by
war or external aggression or internal disturbance”.
34
The provision also provides for a pre-emptive
proclamation if the President is satisfied that there appears to be an “imminent danger” of grave
emergency. Although the Constitution enumerates a number of procedural protections in
promulgating an emergency, their effectiveness has been questioned. Critics point out that because
the executive branch generally holds a majority in Bangladesh’s parliamentary system, the
approval is often little more than a formality and leaves the emergency in an “omnipotent” place.
35
The legal consequences of proclamation are stringent which are provided in Article 141B
and 141C. The Article 141B states that, during an emergency the power of making any law or
taking any executive action is not restricted by the derogable fundamental rights listed in the
Article. Even more consequentially, Article 141C permits the President, in accordance with the
written advice of the Prime Minister, to make an order suspending “the right to move any court for
the enforcement” of any of the fundamental rights guaranteed under Part III of the Constitution.
This provision can effectively end judicial scrutiny and redress for rights violations and render
members of the public with relatively little, if not no, recourse against arbitrary state action.
A. A History of Proclamations
Over the past five decades since the institution of Part IXA, formal state of emergency has
been proclaimed in Bangladesh on five occasions: in December 1974, May 1981, November 1987,
November 1990 and, most recently, in January 2007.
36
A closer analysis demonstrates that not one
of these proclamations was prompted by existential threats such as war or foreign aggression;
rather, the emergency powers were invoked solely on the basis of vague and politically malleable
33
Ibid.
34
Constitution of Bangladesh, Article 141A.
35
Ridwanul Hoque, ‘The Recent Emergency and the Politics of the Judiciary in Bangladesh’ (2009) 2 NUJS Law
Review 183.
36
Md Jahid Mustofa and Md Shahin Kabir, ‘A Comparative Overview of the Emergency Provision in Bangladesh’
(2020) 3 Southeast University Journal of Law 33, at 8.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [32]
grounds as “internal disturbance”.
37
The 1974 emergency, for instance, was proclaimed in the backdrop of growing political
instability and resulted in the creation of a one-party state under the BAKSAL system in 1975
while the 1980s and 1990s emergencies followed much the same pattern by military and autocratic
governments to suppress political disagreement and prolong their rule.
38
The latest one was
declared from 2007 to 2008 by a military-backed caretaker government, which deferred elections
for two years and initiated a controversial anti-corruption campaign.
39
In every instance,
emergency was not used in protection of the nation, but as an instrument to strengthen the power
of the ruling executive, at times through the weakening of democratic institutions and procedures.
This background has reinforced the perception that the constitutional power to proclaim a state of
emergency is mainly a political, rather than a security instrument.
B. Judicial Responses and the Limits of Review
The role of the judiciary in a state of emergency is constitutionally constrained. Although
Article 141C allows the suspension of the enforcement of fundamental rights, the Supreme Court
exercised some control over executive action during emergencies. The power of judicial review,
mainly based on Article 102(2) of the Constitution (1972), empowers the High Court Division to
examine the legality of activities of the public bodies even in times of declared emergencies.
Notwithstanding these actual and possible interventions, the basic framework of Part IXA still
inclines heavily towards executive supremacy.
40
The power to suspend judicial remedies for
fundamental rights violations under Article 102(1) effectively creates a legal order in which
judicial intervention to protect constitutional rights is crippled. Consequently, the formal
emergency framework continues to be an effective, though rarely employed, means through which
executive superiority is imposed.
The very existence of this detailed constitutional process for proclaiming an emergency
37
M. Ehteshamul Bari, ‘The emergency powers in Bangladesh: means for subversion of the rule of law?’ (2015) 20(2)
Deakin Law Review 1.
38
Hoque, above note 35.
39
Ibid.
40
See Hoque (n 37) for general analysis. For illustrative cases demonstrating deference, see Ataur Rahman v Muhibur
Rahman (2009) 14 BLC (AD) 62, 63; Pirzada Syed Shariatullah v Bangladesh (2009) 61 DLR (HCD) 647.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [33]
performs a crucial, and in a sense ‘deceptive’, ideological function. It makes it seem as if there are
clear, defined legal boundaries between the normal state of affairs, in which the rule of law and
fundamental rights are respected, and the exceptional state, in which both are temporarily set aside
to address an existential crisis. It is this legal distinction that allows the state into ‘pretending’ to
stay in constitutional normalcy in the times when there is no declared emergency. However, as the
following discussion will show, the scheme of powers associated with a declared state of
emergency, such as imprisonment without trial and the stifling of freedom of speech, have become
common powers utilised under other pieces of legislation that operate in normal times. Hence, it
can be argued that the constitutional emergency clause is not solely a deterrent against public
insecurity but also a ‘constitutional decoy’ and it distracts from the fact that the line between
ordinary and extraordinary has been erasing all along. The state can, therefore, represent itself as
functioning under the normal rule of law, maintaining constitutional order by never formally
declaring an emergency, while in practice deploying its various special or exceptional laws to
produce a permanent state of exception. This renders the actual content of the political order more
difficult to recognize, criticize, and oppose.
IV. EXCEPTIONAL LAWS IN ‘NON -EMERGENCY PERIOD’
While the actual constitutional provisions for declaring a state of emergency in Bangladesh
have been invoked only on a few occasions, a more enduring and pervasive architecture of
exception has governed legal landscape in normal periods. It is not built on a single statute but a
series of laws which, though formally grounded in criteria permissible in Part III of the
Constitution, like public order, national security, or public safety, give executive powers that are
overarching even in normalcy. In reality, these laws contain most of the effects of an emergency:
infringement of due process, arbitrary detention, and stifling of free expression, without the need
of a formal constitutional declaration. As such, they demonstrate how the state of exception has
taken a normalised and enduring form of governance in Bangladesh. This section explores the
major laws that underpin this structure, its genealogy within colonial assemblages and its
maintenance through contemporary global security discourses.
A. Special Powers Act: The Colonial Inheritance
Situated at the center of the normal state of exception in Bangladesh the provision of
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [34]
preventive detention: the power of the executive to imprison individuals not for crimes they have
committed but on the suspicion that they might commit a “prejudicial act” in the future. The
primary legal instrument behind this enormous power is the Special Powers Act (SPA) 1974.
Again, Part III of the original Constitution did not permit preventive detention; the permission was
inserted by the Second Amendment to the Constitution.
41
The SPA (1974) permits the state to
arrest any individual for an initial period of six months, extendable indefinitely through the
recommendation of an Advisory Board without formal charges or a trial.
The justification for such detention rests on the Act’s expansive and ambiguous description
of a “prejudicial act”.
42
This includes any act which is likely to prejudice the sovereignty, security
or defence of Bangladesh; friendly relations with foreign states; and the maintenance of public
order and disrupt supply of any services essential to the community. The vague terms such as
“public order” provides the executive with broad discretion to detain individuals, which may seek
to silence, including political opponents, activists, and turn legitimate political activity into a
crime. In addition, ‘curfews’ are typically imposed under this Act which allows the District
Magistrate or Police Commissioner to order that no one can be outdoors during specific hours.
43
A portion of the Second Amendment (not relating to the provision dealing with preventive
detention) was once challenged in court, but the challenge was ultimately unsuccessful.
44
Much of
this was due to the protective design of the amendment and the Supreme Court’s cautious
approach. By the insertion of Article 26(3), the amendment kept the Court out of reviewing
whether the constitutional amendments are in conflict with the fundamental rights. Later, in the
landmark Eighth Amendment case in 1989, the Supreme Court introduced the “basic structure”
doctrine, ruling that Parliament can amend, but not destroy the core principles of the Constitution,
such as democracy, judicial independence, and the rule of law.
45
Although this doctrine was later
used to strike down several amendments, the Second Amendment remained untouched. As the
41
M. Ehteshamul Bari, ‘Preventive detention laws in Bangladesh and their increased use during emergencies: a
proposal for reform’ (2017) 17(1) Oxford University Commonwealth Law Journal 45.
42
The Special Powers Act, 1974, Section 2(f).
43
Ibid, Section 24.
44
See Hoque, above note 35. For specific case reference, For specific case reference, M Asafuddowla and Others v
Bangladesh (W.P. of 24 November 2008) (unreported).
45
Kawser Ahmed, ‘Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, the
Asaduzzaman Case, and the Fall of the Basic Structure Doctrine’ (2023) 56(2) Israel Law Review 263.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [35]
constitutionality of SPA is tied to the Second Amendment, the Supreme Court is obliged to show
restraint in reviewing its vires, and instead takes a rather passive role in reviewing certain executive
actions under SPA.
46
The SPA is not a post-independence innovation, but a direct continuation of a long colonial
legacy of oppressive governance. Its provisions have their antecedents in the history of laws
enacted by the British and Pakistani governments to stifle anti-colonial and pro-democracy
campaigns. That includes the colonial statutes such as the Bengal State Prisoners’ Regulation of
1818, the Defence of India Act of 1915, and the East Pakistan Public Safety Ordinance of 1958.
47
These colonial-era laws were formulated on the basis of governing the colonial subject and the
logic of executive supremacy and suspension of due process
48
, which were simply carried over in
their totality by the newly independent Bangladesh.
B. Surveillance and Censorship
With the rise of digital technologies, the state of exception has proliferated both physical
and digital domains. The legislative genealogy of digital censorship starts from the widely
criticised Section 57 of the Information and Communication Technology (ICT) Act, 2006. This
prototype was later replaced by the framework established by the Digital Security Act (DSA), 2018
brought an online state of exception into being which has been designed as a ‘digital panopticon’
to exceptionally limit freedom of expression. The law has received widespread criticism for its
broad and ambiguous language criminalizing wide array of online speech. For example, under
section 21, any “propaganda or campaign against the liberation war, the father of the nation, the
national anthem, or the national flag” could be punishable, a clause so open-textured that it could
have been applied to “stifle important debate on matters of public interest”.
49
Other sections also
46
See generally H. M. Younus Sirazi and Md. Sadekur Rahman, ‘Incompatibility of the Special Powers Act with
Constitutional Jurisprudence and Human Rights Norms: A Comprehensive Analysis’ (2018) 17(1) BiLD Law Journal
7. For cases dealing with statutory review of preventive detention, see Aruna Sen v Government of Bangladesh (1975)
27 DLR (HCD) 122; Abdul Latif Mirza v Government of Bangladesh (1979) 31 DLR (AD) 1; Bilkis Akhter Hossain
v Government of Bangladesh (1997) 17 BLD (HCD) 395.
47
Md. Ferdows Hossen, ‘Constitutionalizing Preventive Detention in Bangladesh: An Unconstitutional but Effective
Means to Curtail Individual Liberty’ (2022) 8 Commonwealth Law Review Journal 254.
48
Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Oxford University Press, 1998).
49
Office of the United Nations High Commissioner for Human Rights, OHCHR Technical Note to the Government of
Bangladesh on review of the Digital Security Act (June 2022) 2.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [36]
criminalized publication of material that was likely to be ‘offensive to religious feelings,’ that may
‘promote enmity, hatred or ill will between different classes,’ or that may affect the ‘sovereignty
and integrity of the State’.
50
The Act also afforded the executive wide-ranging powers, including
the right to arrest and enter premises without a warrant.
51
These resulted in the arrest and lengthy
imprisonment of hundreds of “politicians, journalists, businesspeople, students, and private
employees”, frequently for comments made on social media sites like Facebook.
52
Apart from this, internet shutdowns are based on the Telecommunications Act, 2001 that
allows the government control communication “during war declared, or a situation of war created,
by a foreign power against Bangladesh, or during internal rebellion or disorder, or in a situation
where the defence or other security of Bangladesh or any other urgent state-affair needs to be
ensured”.
53
The provision relies on vague and undefined terms like ‘urgent state-affair’ and
‘internal disorder,’ and grants the executive unfettered discretion to impose arbitrary internet
shutdowns. Though not explicitly referred in the verbal or written instructions by the
Government
54
, this section may have functioned as the empowering provision to shutdown internet
during the 2024 student led protests.
DSA was replaced with the Cyber Security Act in 2023, and in 2025, the Cyber Security
Ordinance (CSO), which has been passed by the Interim Government, replaced the CSA. Human
rights organizations have claimed that the CSA is “same law, new name”.
55
Although some
offences were abolished and penalties reduced in CSO, the basic surveillance network and
architecture of digital control were preserved by retaining “excessive and unfettered powers of
50
The Digital Security Act, 2018, Sections 27, 28, 31.
51
Ibid, Section 43.
52
Transparency International Bangladesh, Position paper on Digital Security Act 2018 and Draft Cyber Security Act
2023, 2023 <https://www.ti-bangladesh.org/upload/files/position-paper/2023/Position-paper-on-Digital-Security-
Act-2018-and-Draft-Cyber-Security-Act-2023.pdf> accessed on 24 August 2025.
53
The Telecommunications Act, 2001, Section 97.
54
Digitally Right and Open Observatory of Network Interference, The Longest Silence: Internet Shutdowns During
Bangladesh’s 2024 Uprising, 31 July 2025 <https://ooni.org/post/2025-bangladesh-report> accessed on 24 August
2025.
55
Amnesty International, Bangladesh: Interim Government must restore freedom of expression in Bangladesh and
repeal Cyber Security Act, 8 August 2024 <https://www.amnesty.org/en/latest/news/2024/08/bangladesh-interim-
government-must-restore-freedom-of-expression-in-bangladesh-and-repeal-cyber-security-act/> accessed on 24
August 2025.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [37]
regulatory authorities and law enforcement agencies”
56
, and the cyber state of exception became,
in effect, a permanent condition.
In colonial India, surveillance and censorship were key instruments of control, shaping
practices that resonate in today’s digital restrictions. Nationalist leaders, intellectuals, and students
were all closely observed by an expanding system of intelligence, while newspapers, pamphlets,
and plays that were critical imperial rule were censored.
57
The Press Act of 1910 permitted seizure
of “seditious” materials and Section 124A of the Penal Code criminalized “disaffection” with the
state. During the movements against British Raj, pre-publication censorship, postal interception
grew in scope and magnitude.
58
These tactics institutionalized a culture of treating expression as a
security threat, which was eventually reflected in laws such as the DSA and CSA.
The international political atmosphere following September 11, 2001 attacks offered an
added source of legitimacy and legal template for extending exceptional powers in Bangladesh.
The discourse of ‘war on terror’ and international framework for counter-terrorism have pushed
and incentivised states to introduce stringent national security laws.
59
In this context, the Anti-
Terrorism Act (ATA) was enacted in Bangladesh in 2009 followed by further amendments to
broaden its scope and increase penalties.
60
The ATA has a sweeping definition of “terrorist
activities” under section 6 which includes any act which causes “panic among the public” or
“damages state property, or compels the government to do or abstain from any act”. This definition
is so broad that it can be easily stretched to include political demonstrations, labour strikes, and
any other form of civil disobedience, and blur the boundary between dissent and terrorism. The
ATA demonstrates how a paradigm of geopolitical security can be co-opted for domestic
instrumentalization, enabling the state to re-package its colonial practices of control now
legitimised in postmodern global counter-terrorism.
56
Tech Global Institute and Bangladesh Legal Aid and Services Trust, Joint Statement: Cyber Security Ordinance,
2025 and the Concerns That Remain (Tech Global Institute, 11 June 2025).
57
Ramnath Subramanian, ‘Media and Internet Censorship in India: A Study of its History and Political-Economy’
(2024) 33(1) Journal of International Technology and Information Management Article 1.
58
Ibid.
59
Bangladesh, Statement by Bangladesh on agenda item 105: Measures to eliminate international terrorism, 26
October 2015 <https://www.un.org/en/ga/sixth/70/pdfs/statements/int_terrorism/bangladesh.pdf> accessed on 24
August 2025.
60
Ibid.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [38]
V. AGAMBEN IN THE CONTEXT OF BANGLADESH
Having laid out the theoretical perspective and comprehensive discussion of the legal
framework of Bangladesh, this section attempts to integrate the two. It moves beyond analogy to
entail the direct application of Agamben’s concepts to the context of Bangladesh, arguing that the
conditions observed are not simply similar to what he describes, but represent a distinct,
postcolonial manifestation of his paradigm. By the use of analytical tools such as homo sacer, bare
life and the camp, one can diagnose how various marginalised and targeted populations are
produced and handled in the nation’s generalised state of exception. Such an analysis also requires
a critical engagement with the limitations of Agamben’s model and the specific trajectories of
history that have shaped the exception in a postcolonial state.
A. The Exception without Emergency
The preceding analysis raises the argument that Bangladesh operates in a permanent state
of exception. The underlying legal tools of an emergency regime, arbitrary detention, suspension
of fundamental rights, and the extension of the executive power, have decoupled from the
constitutional requirement of a formal proclamation of emergency. The exception has been sewn
into the fabric of normal, peacetime legislation such as the Special Powers Act, the Digital Security
Act (and its successors), the Anti-Terrorism Act and the Telecommunication Act among others. The
State has transitioned from a short-term emergency response, into a permanent form of
government, a situation entirely aligning with Agamben’s central thesis. The state no longer has
to go outside of the law to act with impunity; such lawlessness has actually been internalized as
part of the legal framework.
B. The Production of Bare Life in Bangladesh
Agamben’s concept of bare life, life stripped of its political and legal qualifications and
exposed to sovereign power, provides a powerful lens through which to understand the status of
various groups in Bangladesh. The state of exception is not an abstract legal condition; it is a
concrete political machine that produces and manages populations of bare life.
i. The Political Dissidents as Homo Sacer
The enforced disappearance and the extrajudicial killing (commonly described as deaths in
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [39]
“crossfire” or “gunfight” by the security forces)
61
are perceived as among the most striking
examples of the production of homo sacer in the country. Human rights groups have documented
hundreds of such cases of victims, most of whom are political opponents or activists, taken by
government agents and disappeared, never to be found or found murdered.
62
Their disappearance
or killing is met with official denial and state impunity, rendering their deaths unpunishable
homicides.
63
They are reduced to the level of Agamben’s homo sacer: lives that can be killed
without juridical consequence, abandoned by the juridical order that is supposed to include them.
Under the Awami League government, the ATA was invoked against opposition
politicians, journalists and civil society activists, demonstrating the ease with which the sovereign
can reclassify political adversaries as security threats.
64
Following the fall of the Hasina
government on 5 August 2024, the same statute was turned against its former wielders: the
Bangladesh Chhatra League (BCL), the Awami League’s student wing, was designated a terrorist
organization under ATA section 18(1) on 23 October 2024, and the Awami League itself was
banned on 12 May 2025 under an ordinance amending the Act.
65
This symmetry, not of political
program but of legal form, is the Agambenian point. The ATA functions not as a law that belongs
to any particular political actor but as a sovereign technology characterized by structural
indifference to who deploys it and against whom. It produces bare life, the legally stripped,
politically abandoned subject, as a function of its own architecture, regardless of the political
complexion of the government in power.
61
Human Rights Watch, World Report 2024: Bangladesh, 2024 <https://www.hrw.org/world-report/2024/country-
chapters/bangladesh> accessed on 24 August 2025.
62
Ibid.
63
US Department of State, 2018 Country Reports on Human Rights Practices: Bangladesh, 2019
<https://www.state.gov/wp-content/uploads/2020/02/BANGLADESH-2019-HUMAN-RIGHTS-REPORT-1.pdf>
accessed on 03 April 2026.
64
Shudipta Sharma, ‘Instrument to Rule? Examining the Impact of Bangladesh’s Counter-terrorism Laws on Freedom
of Expression’ in Téwodros Workneh and Paul Haridakis (eds), Counter-Terrorism Laws and Freedom of Expression:
Global Perspectives (Lexington Books, 2021) 351.
65
See generally, Human Rights Watch, Bangladesh: New Crackdown Under Anti-Terrorism Law, 8 October 2025
<https://www.hrw.org/news/2025/10/08/bangladesh-new-crackdown-under-anti-terrorism-law> accessed on 03 April
2026. For specific provisions, Extraordinary Gazette Notification, Government of Bangladesh, SRO No 369-
Law/2024, 23 October 2024 (designating Bangladesh Chhatra League a banned organisation under The Anti-Terrorism
Act, 2009, Section 18(1)); Anti-Terrorism (Amendment) Ordinance, 2025, published 10 May 2025; Gazette
Notification (Bangladesh), 12 May 2025 (banning all activities of the Bangladesh Awami League).
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [40]
ii. The Rohingya in the Camp
The refugee camps in Cox’s Bazar, which host close to a million Rohingya people, who
left Myanmar to escape persecution, provide perhaps one of the potent manifestations of
Agamben’s concept of “the camp”. Stateless for being stripped off citizenship in Myanmar and
not accorded refugee status by the government of Bangladesh, they are referred to as “Forcibly
Displaced Myanmar Nationals”.
66
They lack access to fundamental rights, such as the freedom of
movement, the right to work, and formal education.
67
Their existence is governed as a biopolitical
problem, a population of bare lives to be administered, housed, fed and contained, but rendered
utterly devoid of any political existence (bios).
68
The camp is a material site that suspends the rule
of law and reduces life to its biological minimum: it is subject to the administrative decisions of
the state and humanitarian agencies. The Rohingya (along with other stateless minorities) are
confined within a double bind, as individuals occupying a “space of exception”, where they are
subject to violence and exploitation without recourse to legal protection.
iii. The Slum Dweller on the Threshold
Another less obvious form of bare life is embodied in the legal and physical precarity of
millions of the impoverished inhabitants of the urban slums. They occupy a threshold space, both
economically connected to the city as cheap labour supplying the likes of garment manufacture,
but also legally and physically excluded from the formal city.
69
The Bangladesh Supreme Court
has found that the right to life as guaranteed by the Constitution includes the right to livelihood,
and, thus, the right to shelter or housing.
70
Nonetheless, slum dwellers remain under the imminent
threat of displacement by state authorities with little or no prior notice or rehabilitation plans.
71
66
Mohammad Sajedur Rahman and Nurul Huda Sakib, ‘Statelessness, Forced Migration and the Security Dilemma
along Borders: An Investigation of the Foreign Policy Stance of Bangladesh on the Rohingya Influx’ (2021) 1 SN
Social Sciences 160.
67
Ibid.
68
Md. Lab Hossain, Md. Ishtiaq Ahmed Talukder, Mohammed Jahirul Islam, and Mohammadullah Faruk Mia,
‘Navigating ‘bare life’: a study of the Rohingya in the spaces of exception’ (2025) 27(1) Asian Ethnicity 166.
69
Mahmuda Binte Latif, Anjuman Irin, and Jannatul Ferdaus, ‘Socio-economic and health status of slum dwellers of
the Kalyanpur slum in Dhaka city’ (2016) 29(1) Bangladesh Journal of Scientific Research 73.
70
Arafat Hasanat, ‘Judicial Protection of Housing Right for the Landless People in Bangladesh’ in Matir Chona
(Dhaka, 2015) 39. Ain o Salish Kendra (ASK) v Government of Bangladesh & Ors (1999) 19 BLD (HCD) 488; Kalam
and Others v Bangladesh and Others (2001) 21 BLD (HCD) 446; BLAST and Another v Bangladesh and Others (Writ
Petition No 567 of 2003) (unreported).
71
M. Rezaul Islam and Ndungi wa Mungai, ‘Forced eviction in Bangladesh: a human rights issue’ (2015) 59(4)
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [41]
rendering the judgments merely symbolic. They are subjects of inclusive exclusion: included into
the economy of the nation but eternally excludable from the spatial and legal order of the nation,
leading to lives reduced to a state of bare life that can be displaced at any point of time.
The production of these diverse but related forms of bare life is not a set of unconnected
policy failures, but discloses an overarching technique of sovereign power. These excluded groups
serve to define the boundaries of the “normal” political community. The Rohingya are the external
other, their statelessness reinforcing the definition of the Bangladeshi national political
community. The slum-dweller is the internal economic other upon whose precariousness the
project of the urban is founded as well as that of the flexible labour force. The dissident is the
internal political other, whose elimination marks the absolute limit of acceptable dissent and
reinforces the sovereign's ultimate power over life and death. They are, however, also mutually
reinforcing. The instruments of spatial confinement and surveillance exercised in the Rohingya
camps can be reimagined and applied in practice against the protesting citizens within the cities.
The legal abandonment of the slum dwellers normalizes the idea that the rights of some citizens
can be rendered as contingent and revocable. The impunity for the killing of dissidents creates the
climate of fear that sustains the entire system. This demonstrates the state of exception, not as a
set of random measures, but as an integrated set of strategies of population management and
political government.
C. Parallels and Deviations from Agamben’s European Model
The state of exception in Bangladesh is not, as Agamben’s narrative would suggest, a post-
1948 or 1971 disruption of the liberal-democratic order, but a seamless progression of colonised
governance. The legal tools of preventive detention, the administrative mindset for controlling
“dangerous” populations, and the very logic of exception were not invented after 1971; rather they
were inherited from the British Raj and the Pakistani state.
72
The ‘othering’ of populations, which,
for Agamben, is concentrated in the crisis of the European nation-state, was the a priori of
colonialism, upon which the differentiation between coloniser (with rights) and colonised (as bare
International Social Work 1.
72
See Yael Berda, ‘Managing ‘dangerous populations’: How colonial emergency laws shape citizenship’ (2020) 51(6)
Security Dialogue 557; Above note 33.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [42]
life) was predicated.
Agamben’s concepts help us to understand how different groups are rendered excluded or
vulnerable in Bangladesh, but fail to grasp the variety of situations in the field. The Rohingya
camps come closest to his concept of “the camp”, but political dissidents or slum dwellers do not
fit as perfectly. Dissidents are crushed by violence and impunity, but they are not simply eliminated
from political community. Those living in slums have at least some legal rights, even if weakly
enforced, so they are not in a state of outright abandonment but of perpetual vulnerability. This is
evidence that the postcolonial state of exception does not function as a homogeneous, unified
paradigm but as a spectrum of distinct exclusions.
This colonial inheritance has been combined with a contemporary force: the global ‘war
on terror’. This global security paradigm has created a new, global language and legal justifications
for modernising and intensifying the older forms of exception.
73
Laws like the ATA were drafted
in accordance with international resolutions and garner support from international community,
giving older authoritarian techniques a modern veneer of legitimacy.
74
In this sense, the
Bangladeshi state of exception is a hybrid construct at once embedded in a long colonial past and
the present securitized, globalized world, a fact that Agamben’s Eurocentric description fails to
capture completely.
VI. CONCLUSION
This article has demonstrated that the state of exception is an ongoing and lived
phenomenon in Bangladesh, and not a distant theoretical abstraction. From the perspective of
Giorgio Agamben’s works, we have traced how the legal and political order of the country is
framed in terms of a permanent suspension of rights and freedoms. The truth is very evident: while
constitutional provisions to proclaim emergency are in place, they remain rarely used and the
governance relies on interlocking series of ‘peacetime’ legislations like the Special Powers Act,
73
Mark Condos, ‘Emergency, Exception, and the Colonial Rule of Law: The Case of British India’ (2023) 14(1) First
World War Studies 29.
74
Cian C Murphy, ‘Transnational Counter-Terrorism Law: Law, Power and Legitimacy in the ‘Wars on Terror’’
(2015) 6(1) Transnational Legal Theory 31; Above note 59.
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [43]
1974, the Anti-Terrorism Act, 2009, and the Digital Security Act 2018 (along with its successors),
that naturalize the exception as a routine technique of governing. Such mechanism has established
a system in which preventive detention, surveillance, censorship, and extrajudicial violence no
longer represent deviations from, but rather ‘legal’ forms of powers by the state.
The consequences are far-reaching. The violent repression of political and student
movements, in the absence of any formal proclamation of emergency, has demonstrated that the
state can use its repressive powers at any moment to silence dissent. Such is the nature of sovereign
power that the line of distinction between lawful authority and lawlessness blurs in such situations.
Political dissidents and marginalised groups, are put in a position of precariousness: they can be
arrested, detained, disappeared or displaced without proper legal protection. Refugees are confined
in camps; slum dwellers exist in perpetual juridical limbo; political opponents are subject to
arbitrary violence. This kind of exclusion is not an accident; rather, it is central to the functioning
of power and to the determination of who will be accepted as a member of the political community,
and who will be classified as falling outside it.
Agamben’s concepts offer us a useful framework to think through these dynamics. His
theorization of the exception as the dominant paradigm of modern governance allows us to see
connections between seemingly unconnected phenomena: the regulation of digital expression, the
treatment of refugees, and the use of lethal force by security agencies. At the same time, applying
Agamben demonstrates that his framework has some limitations when cast into postcolonial
contexts. His analysis is grounded in European history, particularly the Holocaust, and argues that
the state of exception is a novel phenomenon in the twentieth century. In postcolonial territories
like Bangladesh, however, spaces of exception are not a historical rupture. Rather, they can be
traced back to colonial forms of control and have been adapted under global security discourses,
including the “war on terror.” In order to account for this history, Agamben’s account should be
supplemented with postcolonial perspectives that emphasize the colonial genealogy of states of
exception and their continued political developments.
The central implication of this analysis is that a permanent state of exception poses a
serious risk to democratic prospects of Bangladesh. It erodes institutional legitimacy, enables
impunity and produces a culture of fear which is supposed to be incompatible with constitutional
NSU Law Review Bangladesh in a Permanent State of Exception [Vol: 1]
https://doi.org/10.47126/nsulr.v1i1.02 [44]
democracy. Rather, the uprising of 2024 demonstrated that the people, particularly the youth, are
no longer willing to trade their freedom for the state’s security guarantees. Democracy restoration
is not just about change of government, which requires both the dismantling of the legal and
political structure that permits exceptional rule and revision of repressive laws and ensuring the
judicial independence. It is also, most importantly, about completing the unfinished business of
decolonisation by building a political order in which the constitution, fundamental rights, and
justice, not the will of the sovereign, will be central to governing. And then Bangladesh can
reoccupy its democratic space, and ensure that no life remains abandoned at the margins of law.
DECLARATION
All authors declare that they have no conflicts of interest.