Wasti Fahim, Research Intern, Map of Justice
২ সেপ, ২০২৪
Introduction:
Freedom of assembly is one of the most celebrated human rights in the world, through which individuals can express their collective views on political, social, and economic issues, and advocate for change. It is a cornerstone of a strong democratic society, ensuring accountability of government and its organs. Freedom of assembly is enshrined in various international instruments including the Universal Declaration of Human Rights (UDHR) under which Article 20 illustrates that everyone has the right to freedom of peaceful assembly and association. Furthermore, Article 21 of the International Covenant on Civil and Political Rights (ICCPR) reaffirms the right to freedom of assembly. Different regional conventions, including the African Charter on Human and Peoples' Rights (ACHPR) and the European Convention on Human Rights (ECHR), also recognise the freedom of assembly.
Being a state party of UDHR and ICCPR, Bangladesh is obliged to ensure this right in its national legislation. In fact, freedom of assembly is a fundamental right guaranteed in the Constitution of the People's Republic of Bangladesh, 1972. The Article 37 of the Constitution states, 'Every citizen shall have the right to assemble and participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order or public health.’
Significance of Freedom of Assembly:
Freedom of assembly plays a significant role from the Bengali Language Movement of 1952 to the Anti-Discrimination Students Movement of 2024. The right to assembly is construed as freedom of speech in Nasarullah Khan v West Pakistan[1], although freedom of speech is guaranteed by a different provision of the constitution of Bangladesh, Such as Article 39. The right of peaceful assembly encompasses the right to hold meetings, sit-ins, strikes, rallies, events, or protests, both offline and online.[2] It promotes a vibrant public discourse, which is essential for a strong democratic society. This right allows individuals and groups to come together and participate in the political process.[3] However, a strike is not a fundamental right under the purview of Article 37 of the Constitution of Bangladesh[4], but a call of hartal without any threat to use force and while observing there is no intention to use force may attract the protection under Article 37.[5] Thus, in Abdul Mannan Bhuiyan v Bangladesh,[6] it was held that hartal and strike observed without any threat, intimidation, or force of violence is a democratically recognised right of citizens.
Freedom of assembly constitutes a fundamental right enshrined in the Constitution of Bangladesh and is subject to judicial enforcement[7], any aggrieved individual may seek redress by filing a writ petition before the High Court Division under Article 102 of the Constitution. Hence, the significance of freedom of assembly cannot be overstated, as it underpins many other rights and freedoms that are essential to ensuring a just and equitable society.
Scope of Freedom of Assembly:
Freedom of assembly is not an absolute right. Thus, it can not be construed as a license for violent and armed assembly. This right is subjected to two conditions: (i) assembly must be peaceful and (ii) the participants of the assembly must not carry any arms.[8] However, The term ‘public order’ or ‘public health’ encompasses all acts that pose a threat to the security of the state, including riots, turbulence, and assembly with weapons, but not those acts that merely disturb the serenity of others.[9] Thus, restrictions may be imposed to avert danger to property, human life and safety, and public tranquillity, but such restrictions must have a close and proximate connection with the expression of ‘public order’.[10]But any restrictions imposed by executive authority that don't directly relate to public order or public health cannot be reasonable.[11]
A peaceful use of a highway for an assembly is protected under Article 37 of the Constitution of Bangladesh unless it substantially obstructs the traffic of the road.[12] However, the right to assemble peacefully is safeguarded under the law and encompasses the right to security against any kind of assault while exercising the right. Thus, an individual cannot be prohibited from applying rights in a peaceful manner just because some others threaten to forcibly prevent them from peacefully assembling.[13]
It is the duty of the government to ensure security unless in case of an emergency, where the situation necessitates imposing prohibition.[14] In Oali Ahad v Bangladesh[15], the High Court of Bangladesh held that the term ‘restriction’ also includes ‘prohibition’. Hence the government may impose prohibition on exercising the right to freedom of assembly. However, where the prohibitive order neither has no nexus with the apprehended danger to public order nor nexus was established in the affidavit of the government, the order was held to be violative of the freedom of assembly. It was also established that an order, that banned the exercise of fundamental rights, including freedom of assembly, for an indefinite period, was unreasonable and not in the interest of public order. Additionally, a religious procession which is peaceful in nature is also protected under Article 37 of the Constitution of Bangladesh. In Manzur Hasan v S. M. Zaman,[16] it was established that there is always a right to lead a religious procession, so long as it complies with public order or public health. Again, the executive authority is not allowed to use excessive force to disperse an assembly.
Article 3 of the UN Code of Conduct for Law Enforcement Officials directs law enforcement agencies to use force only when it is extremely necessary, and Article 4 of the UN Basic Principles on Use of Force and Firearms directs the use of non-violent means as far as possible. Hence, law enforcement agencies should apply proportionate and reasonable force to disperse an assembly if it deems necessary.
Conclusion
In conclusion, freedom of assembly is a vital human right recognised worldwide and enshrined in both international and regional legal instruments, as well as in the Constitution of Bangladesh. Hence, the government must ensure the right to freedom of assembly while maintaining public order and morality and not to prejudice anyone.
BIBLIOGRAPHY
BOOK:
Islam M, Constitutional Law of Bangladesh (Third edn, Mullick Brothers 2023)
NEWSPAPER ARTICLE:
Yesmine F, Right to peaceful assembly: Revisiting the national regulatory framework and international standards’ The Business Standard (Dhaka, 17 September 2023) <https://www.tbsnews.net/thoughts/right-peaceful-assembly-revisiting-national-regulatory-framework-and-international> accessed 28 August 2024
LIST OF CASES (BANGLADESHI JURISDICTION)
Kh Modarres Elahi v Bangladesh (2001) BLD 352
Abdul Mannan Bhuiyan v Bangladesh (2008) 60 DLR (AD) 49
Modarresh Elahi v Bangladesh (2001) BLD 352.
Oali Ahad v Bangladesh (1974) 26 DLR 376.
LIST OF CASES (FOREIGN JURISDICTION)
Nasarullah khan v West Pakistan (1965) PLD lah 642.
Radhey Sham v P M G (1965) AIR (SC) 311.
Madhu Limaye v S D M Monghyr (1971) AIR (SC) 2486.
Ghosh v Josheph (1963) AIR (SC) 812.
Beatty v Gillbanks (1882) 9 QBD 308.
Babulal Parate v Maharashtra (1961) AIR (SC) 884.
Manzur Hasan v S M Zaman (1925) AIR (PC) 36.
STATUTES/CONVENTION
Article 37, Constitution of Bangladesh.
Article 44, Constitution of Bangladesh.
Article 102, Constitution of Bangladesh.
Article 20, Universal Declaration of Human Right (UDHR).
Article 21, International Covenant on Civil and Political Rights (ICCPR).
Article 3, UN Code of Conduct for the Law Enforcement Officials.
Article 4, UN Basic Principles on Use of Force and Firearms.
[1] Nasarullah khan v West Pakistan (1965) PLD lah 642.
[2] United nation human rights, 'About the right of peaceful assembly' (OHCHR and the right of peaceful assembly) <https://www.ohchr.org/en/peaceful-assembly> accessed 28 August 2024.
[3] Farjana Yesmin, ‘Right to peaceful assembly: Revisiting the national regulatory framework and international standards’ The Business Standard (Dhaka, 17 September 2023) <https://www.tbsnews.net/thoughts/right-peaceful-assembly-revisiting-national-regulatory-framework-and-international> accessed 28 August 2024.
[4] Radhey Sham v P M G (1965) AIR (SC) 311.
[5] Kh Modarres Elahi v Bangladesh (2001) BLD 352.
[6] Abdul Mannan Bhuiyan v Bangladesh (2008) 60 DLR (AD) 49.
[7] Constitution of the People’s Republic of Bangladesh 1972, art 44.
[8] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023) 314.
[9] Madhu Limaye v S D M Monghyr (1971) AIR (SC) 2486.
[10] Mahmudul Islam, Constitutional law of Bangladesh (3rd end, Mullick Brothers 2023) 315.
[11] Ghosh v Josheph (1963) AIR (SC) 812.
[12] Modarresh Elahi v Bangladesh (2001) BLD 352.
[13] Beatty v Gillbanks (1882) 9 QBD 308.
[14] Babulal Parate v Maharashtra (1961) AIR (SC) 884.
[15] Oali Ahad v Bangladesh (1974) 26 DLR 376.
[16] Manzur Hasan v S M Zaman (1925) AIR (PC) 36.