Mahia Rahman, Advocacy Intern, Map of Justice
১ জুল, ২০২৪
Every person is entitled to some basic rights just by the virtue of being human, irrespective of their nationality, gender, race, religion, or other personal attributes. These rights are known as fundamental human rights.[1]
Bangladesh's Constitutional Fundamental Rights:
The Constitution of the People's Republic of Bangladesh was adopted only 325 days after the liberation of Bangladesh, on November 4, 1972.[2] The Constitution of Bangladesh is regarded as the supreme law of the country, and other laws are deemed to be void to the extent of its inconsistency with the Constitution.[3] It comprises of XI different parts, of which Part III is titled: “Fundamental Rights”.[4] Articles 26 to 47A fall under the purview of Part III of the Constitution, where 18 fundamental rights have been recognised in Articles 27 to 44.[5] All of these rights are guaranteed to a citizen of Bangladesh. Still, certain rights can be granted to all persons, whether citizens or non-citizens, specifically the rights under Articles 32, 33, 34, 35, 41 and 44, which are the protection of the right to life and personal liberty, safeguards as to arrest and detention, prohibition of forced labour, protection in respect of trial and punishment, freedom of religion and enforcement of fundamental rights. However, the Constitution guarantees certain rights specifically for citizens of Bangladesh, which includes: equality before law, discrimination on grounds of religion, etc, equality of opportunity in public employment, prohibition of foreign titles, right to protection of law, freedom of movement, freedom of assembly, freedom of association, freedom of thought and conscience, and of speech, freedom of profession or occupation, rights to property and protection of home and correspondence.
Comparing the Constitution with International Legal Instruments:
It seems that the way basic rights are formulated under the Universal Declaration of Human Rights (UDHR) influenced the framers of the Constitution of Bangladesh.[6] If a comparison is drawn between the UDHR and the Constitution of Bangladesh, then it can be noticed that most of the rights enunciated in UDHR are found in Part III Fundamental Rights, whilst some others can be found in Part II.[7] Subsequently, this declaration is followed by two covenants – The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and both of them are ratified by Bangladesh, but even after ratification, people are deprived of exercising their fundamental rights.[8]
Enforceability of the Fundamental Rights:
The fundamental rights enunciated under Part III are judicially enforceable.[9] Enforcement of the fundamental rights are guaranteed under Article 44 of the Constitution, [10] through Writ Jurisdiction of the High Court Division of Bangladesh under Article 102.[11] Anyone who feels wronged or aggrieved and whose fundamental rights have been violated, and who believes that the violation was caused by someone acting in a capacity related to the operations of the Republic, may file a Writ Jurisdiction.[12] However, it is not necessary to be directly affected to be "an aggrieved person". Having "sufficient interest" in the subject of the dispute establishes that one is "an aggrieved person" even if one is not always immediately impacted.[13] A person seeking justice from the Court for any public wrong or injury where he is deemed to have "sufficient interest"—even if he has no personal interest at all—has the locus standi to move the High Court Division without attempting to obtain any personal benefits or oblique considerations.[14]
Conclusion:
In conclusion, it is important to note that these fundamental rights are not absolute as they can be restricted upon various grounds, such as the public interest under Article 36, the interest of public order or public health under Article 37, the interest of public order or morality under Articles 38 and 41, the security of the State, friendly relations with foreign states, public order, decency, or morality, or in relation to contempt of court, defamation, or incitement to an offence under Article 39.[15] The reason for this is if the exercise of these rights is absolute and guaranteed without limitation, then it may be destructive to each other’s similar rights.[16]
[1] Moses John, & Nucha Suntai Gambo, ‘Fundamental Human Rights’ (2023) MustardPrints Tech <https://www.researchgate.net/publication/369762562_Fundamental_Human_Rights> accessed 1 July 2024.
[2] Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46 (1) Pacific Affairs, 59.
[3] The Constitution of the People’s Republic of Bangladesh 1972, art 7(2).
[4] ‘FAOLEX Database’ Food and Agriculture Organization of the United Nations <https://www.fao.org/faolex/results/details/en/c/LEX-FAOC117108/> accessed 29 June 2024.
[5] The Constitution of the People’s Republic of Bangladesh 1972, art 26-47A.
[6] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023), 127.
[7] ibid.
[8] Faizunnessa Taru, 'Application of Fundamental Rights of Bangladesh Constitution: An Analysis on the Light of International Human Rights Instruments' (2016) 46 Journal of Law, Policy and Globalization 40.
[9] ‘Human Rights in the Constitution of Bangladesh’ The Daily Star (Dhaka, 4 November 2022) <https://www.thedailystar.net/supplements/50-years-our-constitution-original-ideals-vs-reality/news/human-rights-the-constitution-bangladesh-3160256> accessed 29 June 2024.
[10] The Constitution of the People’s Republic of Bangladesh 1972, art 44.
[11] ‘Human Rights in the Constitution of Bangladesh’(n 6).
[12] The Constitution of the People’s Republic of Bangladesh 1972, art 102.
[13] Nasiruddin V Secretary, LGRD, (1991) 51 DLR (AD) 213; Dr. Mohiuddin Farooque v. Bangladesh, (1998) 50 DLR 84.
[14] Kazi Mukhlesur Rahman v. Bangladesh (1974) 26 DLR (AD) 44, Dr. Mohiuddin Farooque vs. Bangladesh and others (1997) 49 DLR (AD) 1; Ekushey Television Ltd v. Chowdhury Mahmood Hasan (2002) 54 DLR (AD) 130; Bangladesh Retired Government Employees Welfare Asson. v. Bangladesh (1994) 46 DLR (HCD) 426; Engineer Mahmudul Islam v. Bangladesh (2003) 55 DLR 171.
[15] Rumana Islam, ‘Human Rights in the Constitution of Bangladesh’ The Daily Star, 4 November 2022 <https://www.thedailystar.net/supplements/50-years-our-constitution-original-ideals-vs-reality/news/human-rights-the-constitution-bangladesh-3160256> accessed 29 June 2024.
[16] Maneka Gandhi v India, (1978) AIR SC 597, 620.