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Right to Freedom of Profession or Occupation: A Fundamental Right under The Constitution of Bangladesh

Jannatul Ferdous, Advocacy Intern, Map of Justice

২৩ অক্টো, ২০২৪

Introduction:

The right of Freedom of profession or occupation means each person has the right to choose any lawful profession, occupation, trade, or business after fulfilling the necessary qualifications for that work, but this freedom can be limited by law for the sake of public interest or others.[1] This right is recognised internationally as a human right in Article 23 of the Universal Declaration of Human Rights (UDHR), which states that each person has the right to choose their profession freely by ensuring a comfortable workplace, as well as protection from being jobless.[2] Article 6(1) of The International Covenant on Economic, Social and Cultural Rights (ICESCR) states that every person has the right to choose their profession freely for their livelihood.[3] Since Bangladesh is a member of UDHR and ICESCR, to fulfil the obligations of these treaties, it incorporates the right to freedom of profession into the national legal framework through Article 40 of the Constitution of the People’s Republic of Bangladesh (Constitution) as one of the fundamental rights with judicial enforceability .[4]

 

Significance:

As per Article 40 of the Constitution of Bangladesh, “Subject to any reasonable restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law concerning his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and conduct any lawful trade or business”.[5] By incorporating this article as a fundamental right, Bangladesh aligns with the obligations of being a party of UDHR and ICESCR. Besides this, Bangladesh is also a member of several international organisations that ensure individuals' freedom of profession or work. The organisations are as follows-International Labour Organisation (ILO),[6] United Nations (UN),[7] World Trade Organisation (WTO),[8] World Bank,[9] International Monetary Fund (IMF),[10] World Intellectual Property Organisation (WIPO), etc..[11]These international organisations aim to promote social justice, economic development, and political rights by ensuring a decent workplace, fair wages, and freedom of choice regarding lawful professions.

 

Several case decisions of developed countries reflect how the states are concerned with ensuring the right to freedom of profession in their territories. In one of the cases named Viking Line ABP vs International Transport Workers Federation 2007- the European Court of Justice ruled that trade unions could make collective decisions for the welfare of the workers, but that decision could not violate the right to freedom of profession in case of conducting the business which promotes the right to freedom of profession.[12] As Bangladesh is now a developing country, the right above is inherently connected with economic freedom and social security in Bangladesh. The right above ensures individuals seek employment, and engage in entrepreneurship through which each individual could participate in the economic development of Bangladesh.[13] There is a case named Chairman, Rural Electrification Board and another vs Abdul Jalil and another 1992-in this case the Court held that the decision given by the Chairman, Rural Electrification Board to prevent all ex-employees of the said board from participating in any tender is a violation of Article 40 of The Constitution of Bangladesh. The Court held that preventing from engaging economic lawful opportunities not only violates personal economic freedoms but also barriers to the social welfare in Bangladesh.[14]

 

Scope:

Freedom regarding choices of a profession is one of the significant human rights as well as an internationally recognized right. For each citizen, it is very important how he/she would like to build their future by choosing the right profession. Though Bangladesh incorporates the right to freedom of profession in the Constitution still, it is not an absolute right. In case of application of the aforementioned right, there is an exception that is subject to any reasonable restriction such as public interest which means the executive body or legal authority has the power to restrict the freedom of profession for the sake of the welfare of the society for example public health, safety, morality, economic stability, national security and so on which relates to public benefits.[15]

 

Furthermore, as per the aforementioned right, only a lawful profession is permissible, that means the profession which is unlawful and immoral doesn’t have access to enjoy the aforementioned right, for example, Prostitution, though many countries recognised it as a lawful profession still in Bangladesh it is an unlawful profession as a result the workers of such profession could not enjoy the aforementioned constitutional right which also established in the case named Bangladesh Society for the Enforcement of Human Rights (BSEHR) and Ors v. Government of Bangladesh and Ors 2000.[16]

 

There are several cases in Bangladesh filed under Article 102 of The Constitution of Bangladesh because of the violation of the aforementioned fundamental rights. In the case named Eastern Money Changer vs Bangladesh Bank (2015)- due to the vagueness of the term ‘reasonable restriction’ Bangladesh Bank canceled the license of the Eastern Money Changer. The High Court division held that the decision to cancel the license is a total violation of Article 40 of the Constitution of Bangladesh as there may be other less severe remedies which Bangladesh Bank could apply.[17]

 

In another case, Md Jahangir Alam & Others vs Deputy Commissioner, Munshiganj & Others (2016),- the High Court division held that the executive magistrate has no legal authority to seal the factories rather the magistrate could impose a fine. The Court also held that by sealing the factories, the executive magistrate violated the right to freedom of profession under Article 40 of the Constitution of Bangladesh.[18]

 

From the fact of the both cases, it is clear how the legal authority or higher authority misused the term reasonable restrictions against the application for the right to freedom of profession. Though an aggrieved person may file a writ under Article 102 of The Constitution of Bangladesh because of any violation of fundamental rights still the vagueness of the term plays a big barrier for the aforementioned rights implications.[19]

 

Conclusion:

The right to freedom of profession or occupation in case of lawful business, trade, or any profession builds the future of a citizen as well as a State. A person who willingly chooses his profession gives more effort than a person who is forcefully dragged into a profession which impacts on economic as well as the development of a State. That’s why the right to freedom of profession must be established smoothly for the empowerment, social justice, fairness, and economic development in our country without any vague terms such as “Subject to any reasonable restriction” so that no one could take advantage of it.


 

[1]Faizunnessa Taru,Fatema-tuj-zuhra ‘APPLICATION OF FUNDAMENTAL RIGHTS OF BANGLADESH CONSTITUTION: AN ANALYSIS IN THE LIGHT OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS’ (2016) 2 (1) Journal of Asian and African Social Science and Humanities <https://www.aarcentre.com/ojs3/index.php/jaash/article/view/49/240> accessed 5th September 2024.

[2]Universal Declaration of Human Rights (UDHR), art 23.

[3]The International Covenant on Economic,Social and Cultural Rights (ICESCR), art 6(1).

[4]Constitution of the People’s Republic of Bangladesh, 1972, art 40.

[5]ibid.

[6]International Labour Organisation (ILO).

[7]United Nations (UN).

[8]World Trade Organisation (WTO).

[9]World Bank.

[10]International Monetary Fund (IMF).

[11]World Intellectual Property Organisation (WIPO).

[12]Viking Line ABP vs International Transport Workers Federation (2007) C-408/05

[13]Faizunnessa Taru,Fatema-tuj-zuhra, n 1.

[14]Chairman,Rural Electrification Board and another vs Abdul Jalil and another (1992) 3 BLC (AD) 79.

[15]Md. Rafiqul Islam Hossaini, Mohammad Shoeb Mahmud “Public Interest Litigation in Bangladesh: A Long Way to Go” Social Change,Vol. 9, No. 1, 2019, pp - 61-70 <https://ypsa.org/ypsa/wp-content/uploads/2021/08/Public-Interest-Litigation-in-Bangladesh.pdf>

[16]Bangladesh Society for the Enforcement of Human Rights (BSEHR) and Ors v. Government of Bangladesh and Ors (2000) 29 CLC (HCD).

[17]Eastern Money Changer vs Bangladesh Bank (2015) 3 SCOB HCD

[18]Md Jahangir Alam & Others vs Deputy Commissioner,Munshiganj & Others [2016] 7 SCOB HCD (142)

[19]Constitution of the People’s Republic of Bangladesh, 1972, art 102.

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