S. M. Wasti Fahim, Research Intern, Map of Justice
২৭ সেপ, ২০২৪
Introduction:
Freedom of association is a fundamental human right that guarantees the right of individuals to come together and collectively express, promote, pursue, and defend their common interests formally and informally. It is one of the cornerstones of democracy, which is one of the fundamental principles of the Constitution of the People’s Republic of Bangladesh. Hence, the very existence of democracy highly relied on the right to form association.[1] Article 38 of the Constitution of the People’s Republic of Bangladesh (1972 Constitution) enshrines the freedom of association with the provision that exercising this right must not be prejudicial to public order or morality. However, the wording of Article 38 evolved over time. Initially, it only forbids persons to form and take part in an association which is communal and which is solely based on religion, to stop using religion for a political purpose. This provision was deleted through the Fifth Amendment. Thereafter, Anwar Hossain Chowdhury v Bangladesh[2] declared this amendment unconstitutional. Thereafter, the Fifteenth Amendment of the Constitution reformulated this provision, albeit with different wordings. However, various international instruments recognise freedom of association as a fundamental human right. For instance, Article 20 of the Universal Declaration of Human Rights (UDHR) and Article 22 of the International Covenant on Civil and Political Rights (ICCPR) affirm and safeguard the freedom of association. As a state party of UDHR and ICCPR, Bangladesh acknowledged the right to freedom of association.
Significance of Freedom of Association:
The association is one of the essential democratic institutions that ensures the participation of different dissenting opinions in the political and policy-making process. It serves as a vehicle for the exercise of many other civil, cultural, economic, political, and social rights.[3] There is a concomitant relationship between democracy, the trade union movement, and the right to freedom of association.[4] Thus, freedom of association ensures the right of workers to join and form trade unions or organisations of their choosing, which was denied in the past. In 1937, the Supreme Court of the US recognised the legality of trade unions and guaranteed the participation of workers in joining them.[5]Thereafter, the International Labour Organisation (ILO) convention further ensures the freedom of association and the protection of the right to organise and bargain collectively. Moreover, the right to freedom of association is closely related to freedom of speech. Hence, these rights form the foundation of a free society[6] and contribute significantly to social and economic development. For instance, different types of political and professional associations, trade unions, and non-governmental organisations (NGOs) play a crucial role in promoting better education, healthcare, and economic policies. Furthermore, many associations and organisations often play a watchdog role by monitoring government actions, and policies, revealing corruption, and advocating for better institutional reforms. Freedom of association is enshrined as a fundamental right in the Constitution of Bangladesh and is subject to judicial enforcement.[7] If the right is curtailed arbitrarily, the aggrieved party may seek redress by filing a writ petition before the High Court Division under Article 102 of the Constitution.
Scope of Freedom of Association:
The scope of freedom of association is not limited to associations for any particular purpose[8]; rather, it can be any sort of political party, company, firm, society, club, or trade union.[9] It also protects the organisations that advocate for unpopular, controversial, and dissenting opinions; so far, they do not violate morality and public order.[10] Thus, freedom of association is not an absolute right, and it is subject to reasonable restrictions imposed by the law in the interests of morality or public order. Therefore, Article 38 specifically bans the formation of an organisation that destroys religious, social, and communal harmony, creates discrimination among citizens, organises terrorists or promotes terrorism, and which is inconsistent with the constitution. As such, it does not encompass the right to form an association that advocates immorality, obscenity, commission of crime, or illegal act.[11] In fact, any act or illegal activity to overthrow a government may be subject to prohibition[12]. However, trade union activities in any statutory body set up by an ordinance may be reasonably restricted to keep it outside the ambit of the labour law.[13] Although restrictions must not be imposed arbitrarily. In Madras v V. G. Row[14], it was established that a restriction that remains in force for an indefinite period is unreasonable. Also, a law authorising the government to declare an association unlawful based on its subjective satisfaction is unconstitutional. Again, an administrative order directing a medical institute to stop admitting students without passing necessary legislation is a violation of Article 38 of the Constitution.[15] Furthermore, a law imposing restriction that is disproportionate to the mischief sought to be remedied is unreasonable and unconstitutional.[16]
However, The right to form an association encompasses the right to continue it.[17] It shall be the right of citizens to choose the formation and composition of the association, and that cannot be altered by any legislative action[18], albeit laws can be passed to prevent discrimination in choosing members for an association.[19] Similarly, Article 38 of the Constitution includes the form of an insurance company, but it does not extend to select persons of their choice as directors, and the law can reasonably prohibit such practice.[20] Hence, the government may reasonably impose restrictions and prohibitions based on circumstances if it deems necessary.
Conclusion:
Freedom of association is a vital human right embedded in the Constitution of Bangladesh and international human rights frameworks. It ensures that individuals can collectively express and promote their common interests and views without contradicting public order or morality. Associations serve as an important institution in preserving democratic governance within Bangladesh. Therefore, it is incumbent upon the government to ensure the protection and effective exercise of the right to freedom of association.
[1] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023) 319.
[2] Anwar Hossain Chowdhury v Bangladesh, (1989) BLD (Spl) 1.
[3] Australian human rights commission, (Freedom of association) <https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-association>
[4] Ahmed Kawser , 'Promised but not Ensured: The Freedom of Association And Trade Union Right in Bangladesh' [2004] 2(39) Journal of Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3904652>
[5] National Labour Relations v Jone (1937) 301 U.S.I.
[6] Shelton v Tucker (1960) 364 US 479.
[7] Constitution of the People’s Republic of Bangladesh 1972, art 44.
[8] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023) 321.
[9] Progress of Pakistan Co Ltd v Registrar, Joint Stock Companies (1958) PLD (Lah) 887.
[10] Communist Party of Indiana v Whitcomb (1974) 414 US 441.
[11] Progress of Pakistan Co Ltd v Registrar, Joint Stock Companies (1958) PLD (Lah) 887.
[12] American Communications Association v Doud (1950) 339 US 382.
[13] Abu Hossain v Registrar of Trade Union (1998) 6 BLT (AD) 284.
[14] Madras v V G Row (1952) AIR (SC) 196.
[15] Dacca National Medical Institute v East Pakistan (1958) 10 DLR 343.
[16] Keyishian v Board of Regents (1967) 385 US 589.
[17] Asaduzzaman v Bangladesh (1990) 42 DLR (AD) 144.
[18] Damyanti v India (1971) AIR (SC) 966.
[19] Roberts v United States Jaycees (1984) 468 US 609.
[20] Nasreen Fatema v Bangladesh (1997) 49 DLR 542.