1.1 Introduction
“Rights in fact are those conditions of social life without which no man can seek in general to be himself at his best” – (Laski).
Every State is known by the rights that it maintains. The citizen, therefore, has claims upon the State and the State must therefore observe his rights by creating conditions which would develop his personality and enable him to be at his best so that he may also contribute whatever he can to the social welfare.
But by possession of rights we do not mean the possession of claims that are empty of all duties for our rights are not independent of the rights of others. In order that my right against attack from others may well be protected it is necessary that I should desist from attacking others. My rights are powers conferred upon me so that I may with others strive for the attainment of the common good.
The demands for Fundamental Rights were encountered for the first time in primitive form in cities, during the middle ages because trade and industry flourished only in the cities and people were anxious to have certain civil rights. The first document to become a part of the history of democratic constitutionalism as a model of the declaration of Fundamental Rights was the VIRGINIA DECLARATION OF RIGHTS OF 1776 in which there was a declaration to the effect that all men are created equal ; that they are endowed by their creator with certain rights ; that among these are rights to life, liberty, and the pursuit of happiness ; that, to secure their rights, Governments are instituted among men, deriving their just power from the consent of the governed. American Bill of Rights, consists of ten .amendments and these, amendments are with regard to the Fundamental Rights. After this we have the French Declaration of the rights of man in 1789. This declaration was prefaced to the Constitution of 1789. In Germany after the revolution of 1848, the Fundamental Rights of citizens had been proclaimed. The first imperial Constitution of 1871, which lasted up to 1918, did not include articles concerning the Fundamental Rights.
During the later part of the 19th and the beginning of the 20th century, different States in the world, recognized in their Constitutions the Fundamental Rights of men. All these countries were conscious that if Fundamental Rights are not guaranteed, the citizens have no chance of ascertaining their rights which would develop their personalities. Since World War 1, Fundamental Rights and duties have been accepted as an indispensable condition of the peaceful progress of the world and during the Second World War and after, this faith has become stronger because we are now concerned in the establishment of a stable international society and from citizens we have not gone to the State. In order to achieve this it is essential that rights must be -embodied in the positive laws of the country as superior laws to the powers of any Government, so that they only can become effective guarantees against the action of the State. In the Universal Declaration of Human Rights, adopted in December 1948, these rights were also recognized.
By inspiring by the Universal Declaration of Human Rights, 1948 ; the constitution of Bangladesh enumerated some basic civil and political rights common to most liberal democracies and also insures the rights to constitutional remedies for the protection of these rights. In addition, the fundamental rights of the constitution of Bangladesh are aimed at overturning the inequalities of past social practice. It prohibits discrimination on the grounds of religion, race, sex, color, place of birth and forbid trafficking human being and forced labor. The framers of Bangladesh have been discussed in article basis starting from the preamble of the constitution, practically shown concern for necessity of protecting human rights and ensuring fundamental freedoms. In the preamble of the constitution they declared that it shall be a fundamental object of the state to realize through the democratic process a society free from exploitation, a society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economical and social rights will be secured for the citizens.
The Constitution of England is unwritten and hence there are no Fundamental Rights in the sense that we have in some of the written constitutions. In England rights are essentially founded upon traditions. The foundations of individual rights in England are almost negative in the sense that an individual has the right and freedom to take whatever action he likes, so long as he does not violate any rule of the ordinary law of the land. In the absence of any written document it is the duty of the law Courts to protect individual liberty by judicial decisions. It has been maintained that “The Law of England is the law of liberty.”
The four great charters which have guaranteed the rights of Englishmen since ages now are : The Magna Charta, Petition of Rights, Bill of Rights 8-nd the Act of Settlement. Since Parliament is sovereign, the subjects ir-%
England, cannot possess guaranteed rights such as are proclaimed and protected in many of the written Constitutions of the world. Therefore in England the absence of constitutional guarantees’renders’ it absolutely necessary that there should be strong public opinion in the matter of these basic freedoms. Apart from this the subjects in the U. K. owe their main protection to the following :
(0 The high development of the action of trespass in its various forms ;
(//) The prerogative writs and orders and particularly to writs of Habeas Corpus’,
(HI) the right for insisting upon having common law actions affecting the
subject’s most cherished rights ; (ik) All subjects are subject to the jurisdictions of the law Courts with the
exception of the Sovereign and the members of the .Judiciary who
can seek exemption from this rule ;
(v) All statutes and legislative acts are to be interpreted within the framework of the Fundamental Rights granted to the citizens.
Hence in England rights are not fundamental and at any given time, therefore, “The rights of the citizens in England are merely a residue, the extent of which at any given time can only be determined by examining the restrictions placed on the activities of the citizens and the enjoyment of their property. They are residuary because they are left after the legislative and executive powers have bien defined”-^(Hood Phillips). The general principle is that a person may do what he likes so long as he does not infringe the civil or the criminal law of the land. If a person has a right, the law provides a remedy to enforce it. “If the plaintiff has a right he must of necessity have a means to vindicate and maintain, and a remedy if he is injured in the exercise or enjoyment of it ; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal”— (Ashby v. White).
Fundamental Rights in the United States.—The framers of the American Constitution were apprehensive of the tyranny, not only of the executive but also of the legislature. The American Bill of Rights, contained in the first ten Amendments to the Constitution, are binding on the executive and the legislatuies as well. The Courts in the United States are competent enough to declare an Act of the Ccngresi as unconstitutional on the ground of contravention of any provision of the Bill of Rights. The Judiciary, therefore, is the guardian of the Fundamental Rights. Further, Fundamental Rights cannot be amended by the legislature in the ordinary course of legislation but only by a special procedure as laid.down in the Constitution.
The Fundamental Rights enumerated in the Constitution are as follows:—
(1) Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition to Government for a redress of their grievances.
(2) The citizens have a right to keep and bear arms.
(3) No soldier, during the time of peace, shall be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. • »
(4) People have a right to be secured in their person, houses, papers, and effects against unreasonable searches and seizures.
(5) No person shall be held to answer for a capital or any infamous crime unless on a presentment of indictment of a jury.
(6) In all criminal proceedings the accused shall enjoy the right to a speedy aud public trial by an impartial Jury of the State.
(7) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fundamental Sights in Canada —The primary prelection of Fundamental Rights in Canada rests in the Common law tradition and in the political ethos of the people. Over and above these, there are rights of the minorities made explicit by the British North America Act. Finally, rights also receive protection from the division of competence between Dominion and Provincial Governments. ., •>
In respect to personal rights, there are important constitutional provisions ez Sections 92 (13) and 91 (27). Tbe former makes property and civil riphts’the exclusive concern of the Provincial Governments while the latter vests exclusive responsibility for criminal law in the Central Government.
Fundamental Rights ia Switzerland.—The Constitution of 1848 contains an impress catalogue of basic rights which were reaffirmed by the new Constitution and in which further new rights and ljbert.es were added, eg freedom of commerce and industry (Article 31) of conscience (Art. 49). The Federal Constitution guarantees such important rights as the inviolability of the persons and the horn;, freedom of practical importance and e:rtam individual freedoms as in the case of teaching. The federal legislation prescribes the limits within which a Swiss citizen may be deprived of his Fundamental Rights.
Fundamental Rights in Russia.-The Stalin Constitution of 1936 grants to th» Russian citizens many Fundamental Rights which are an important feature of this Constitution. The citizens are guaranteed the right to work, the right to rest, the right to material security in old age as well as sickness, the right to education and other rights.
Concept of Fundamental Rights
2.1 What is Rights?
Before understanding fundamental rights are should have idea about rights and human rights. Rights mean a claim of some interests adverted by an individual or a group of individual which has either moral or legal basis and which is essential for his development in the society. In a sense right not created by law it originates itself as an obvious result of mutual interaction between man and society. Rights are primarily divided in to two categories-moral rights and legal rights.[1]
2.2 What are Human rights?
The term “human rights” which does not mean any right is used in special sense. Human rights are those of legal and moral rights which can be claimed by any person for the very reason that is a human being. These rights come with birth and applicable to all people through out the world irrespective of their race, color, sex, language or political or other opinion. These are therefore those rights that are inherent in human person and without which they cannot live as human beings.[2]
2.3 What are fundamental rights?
The term fundamental right is a technical one, for when certain human rights are written down in a constitution and protected by constitutional guarantees they are called fundamental rights. They are called fundamental rights in that sense that they are placed in the supreme or fundamental law of the land which has a supreme society over all other law of the land. Article 26 to 47 of Bangladesh constitution confers a number of substantive fundamental rights on every citizen of Bangladesh e.g. the right to freedom of expression, assembly, association, movement and profession.[3]
2.4 Distinction between Human rights and Fundamental rights
There are some Fundamental distinction between directives and fundamental rights:
First, when certain human rights are written down in a Constitution, a supreme law, and protected by constitutional guarantees they are called fundamental rights. Directive principles, on the other hand, are polices relating to social, economic and cultural rights which are to be followed in governance of the country.
Second, fundamental rights are enforceable in a court of law and they create justiciable rights in favour of individuals. And the courts can enforce them against the government. Again, the courts are competent to declare as void any law that is inconsistent with any of the fundamental rights. The directives, on the other hand, are not enforceable in a court of law and they do not create any jucticiable rights in favour of individuals. The court can not compel the government to carry out any of the directives. Again, the courts cannot declare any void, which is otherwise valid, on the ground that it contravenes any of directives principles.
Third, fundamental rights are mandatory in nature whereas directives are declaratory in nature as they have expressly been excluded from the preview of the courts.
Fourth, the fundamental rights create negative obligation on the state, i.e., the state is required to refrain from doing something. The directives, on the other hand, impose positive obligation on the state i.e., to implement these principles the state will have to achieve certain ends by its actions.
Fifth, the directive principles may be described as inchoate fundamental rights while the fundamental rights are full-fledged i.e. the former requires legislation to become effective while the latter need not requires such legislation. And so long there is no law carrying out the policy laid down in directives neither the state nor an individual can violate any existing law or legal right under the colour of directive principles.
Sixth, Fundamental rights are primarily aimed at assuring political freedom to citizens by protecting them against excessive state action while directive principles are aimed at securing social and economics freedom by appropriate state action.
2.5 Nature of Fundamental Rights
The Fundamental Rights were intended to serve three important purposes, namely:
1. to prevent the Executive from acting arbitrarily;
2. to ensure some amount of security and protection to various types of minorities; and
3. to promote and foster social revolution by establishing the conditions necessary for achieving justice, social, economic and political.
The immutability and permanence of the Fundamental Rights were sought to be established first on the reasoning that these rights are rooted in the doctrine of natural law and were, therefore, natural rights as expressed in the traditional parlance and secondly, on the ground that they have been given a place of permanence by the constitution within its scheme. But the Fundamental Rights as contained in part III of the constitution, are neither rooted in the doctrine of natural law nor did they base on the theory of reserved rights. They are conferred rights and embody the social values of the present generation. As the social values are not static, the Fundamental Rights are subject to changes and modifications in order to fulfill the aspirations of man in the context of his changed conditions and environment in which he lives.[4]
2.6 Classification of Fundamental Rights
The Fundamental Rights enumerated in the Bangladesh Constitution may be classified in to following three groups:
A. Absolute Rights:
1. Equality before law, (Art. 27).
2. Discrimination on grounds of religion etc (Art.28).
3. Equity of opportunity in public employment (Art.29).
4. Prohibition of foreign titles etc (Art.30).
5. Safe guards as to arrest and detention (Art.33).
6. Prohibition of forced labour (Art.34).
7. Protection in respect of trial and punishment (Art.35).
8. Enforcement of Fundamental Rights (Art.44).[5]
B. Rights on which reasonable restriction can be imposed:
1. Freedom of movement (Art.36).
2. Freedom of Assembly (Art.37).
3. Freedom of Association (Art.38).
4. Freedom of thought and conscience and of speech (Art.39).
5. Freedom of religion (Art. 40)
6. Protection of home and correspondence.[6]
C. Fundamental rights which has been practically left to the legislature
1. Right to protection of law (Art.31)
2. Protection of right to life and personal liberty (Art.32)
3. Right to lawful profession, occupation or business (Art.40)
4. Protection of property right (Art.42)
Constitutional Provisions Of Fundamental Rights
3.1 Fundamental Rights in Bangladesh constitution
18 fundamental rights have been enumerated in the constitution commencing from Article 27 to 44. All of these rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups:
a. Rights granted to all persons-citizens and non citizens alike. These are six rights enumerated in Articles 32, 33, 34, 35, 41 and 44 of the constitution.
b. Rights granted to citizens of Bangladesh only, these are 12 rights enumerated in Articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42 and 43.[7]
Briefly discussion Article basis starting from Fundamental rights in Bangladesh constitution.
1. Laws in consistent with Fundamental rights to be void
Article, 26 Provides that all existing laws inconsistent with the fundamental rights as provided in part III shall to the extent of the inconsistency become void on the commencement of the constitution and the state shall not make any law inconsistent with those rights.[8] In our jurisdiction, the case of Anwar Hossain v. Bangladesh, popularly known as the constitution (Eight Amendment) case has also expressed the same view.
In that decision, Shahabuddin Ahmed, j. held at paragraph 381, as under: “As to the constituent power, that is power to make a constitution, it belongs to the people along. It is the original power. It is doubtful whether it can be vested in the parliament, though opinion differ, people after making a constitution give the parliament power to amend it in exercising its legislative power strictly following certain special procedures constitutions of Anwar Hossain v. Bangladesh popularly known as the constitution (Eight Amendments) case has also expressed the same view. In that decision, Shahabuddin Ahmed, j. held at paragraph 381, as under “As to the constituent power, that is power to make a constitution, it belongs to the people along. It is the original power. It is doubtful whether it can be vested in the parliament, though opinion differ, people after making a constitution give the parliament power to amend it in exercising its legislative power strictly following certain special procedures constitutions of some countries may be amended like any other status following the ordinary legislative procedure. Even if the constituent power is vested in the parliament the power is a derivative one and the mere fact that an amendment has been made in exercise of the derivative constituent power will not automatically make the amendment immune from challenge. In that sense there is hardly any difference whether the amendment is a law, for it has to pass through the order in validity test my considered opinion therefore is that an amendment of the constitution is not included in law” with in the meaning of Article 7 in the same way as it is not law in Article.[9]
2. Equality before law
Article 27 guarantees every citizen’s right to equality before the law and the equal protection of the laws. It combines the English concept of equality before law and the American concept of equal protection of law.[10]
“Equality before law” means that among equals law shall be equal and shall be equally administered. There shall not be any special privilege by reason of birth, creed etc. “Equal protection of law” means that all persons in like circumstances shall be treated alike and no discrimination shall be made in conferment of privileges or imposition of liabilities. The first part is negative while the second is positive in approach. Equality before law is involved in the enforcement of law, while equal protection of law involves the validity of a law. But these are not independent or severable concepts in their application and will often be found to overlap each other this article more than others firmly embodies the concept of rule of law the establishment of which is one of the prime objectives of the constitution.[11]
3. Discrimination on grounds of religion etc
Art. 28 has been introduced to make classification only or grounds of religion, race, caste, sex or place of birth parse unreasonable except when a provision is made in favor of women, children and backward section of citizens.[12]
As a matter of fact, this article projects the citizen against discrimination. The state can not discrimination only on the grounds as mentioned in Article 28, but with some other national factor, the discrimination would be valid. The crucial word in this Article is discrimination which means making an adverse destination with regard to or distinguishing unfavorably from others.[13]
4. Equality of opportunity in public employment
Clause (1) of Article 29 of the constitution guarantees equality of opportunity for all citizens in the matter of employment or office in the service of the Republic. The expression “the service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the government of Bangladesh and any other service declared by law to be a service of the Republic. Equality of opportunity in respect of employment under this clause means equality as between members of the same class of employees and not equality between members of separate classes. This clause gives effect to the doctrine of equality in respect of appointment as well as promotion. Inequality of opportunity for promotion between holders of posts in the same grade may be an infringement of this clause, but those who hold post in different grades are not entitled to invoke it. When an application for a post has been made, it must be considered on merits. Clause (2)
Prohibits discrimination in respect of employment an office in the service of Bangladesh on the grounds only of religion, race, caste, sex or place of birth. Where selection for promotion to the next higher grade is on the “basis of seniority cum-merit” a public servant is entitled to claim relief under this clause if he is placed in the placed in the list of seniority contrary to the rules governing seniority. Clause (3) provides an exception by restricting the operation of clauses (1) and (2) of Article 29. A provision an exception can not be so interpreted as to nullify or destroy the main provision.[14]
In the case of Bangladesh v. Azizur Rahman, will interpreting Article 29 of the constitution, Equal opportunity held at paragraph 44 as under: The guarantee of equal opportunity in respect of employment is available at the stage of initial appointment and of promotion. Merely because chances of promotion of the write petitioners may be said to have been affected by the impugned rules of 1990 would not amount to denial of equality of opportunity in respect of the employment, as chances of promotion are not conditions of service. As a matter of fact, no writ petitioners have been deprived of the right to be considered for promotion and as such, the submission that they have been denied the right of equal opportunity in respect of future employment is untenable and there is in fact no violation of Article 29(1) of the constitution.[15]
5. Prohibition of foreign titles, etc
Article 30 provides that No citizen shall, without the prior approval of the president, accept any title, honor, award or decoration from any foreign state.[16]
6. Right to protection of law
Article 31 deals with the protection of law to be enjoyed by citizens and persons residing in Bangladesh and in particular, in respect of life, liberty, body, reputation and property. The term in accordance with law is akin to American concept.[17]
7. Protection of Right to life and personal liberty
No personal shall be derived of life on personal liberty saved in accordance with law.[18] In the case of Islam Mahmud v. Bangladesh, H.m.Habibur Rahman, j. held that the detaining authority must have some jurisdictional facts for detaining an individual, since the detaining authority is curtailing the liberty of a citizen by detaining him on preventive detention; it is exercising a non-judicial authority. To curtail fundamental rights of personal liberty enshrined in the constitution it is essential that the detaining authority.
Must have report and materials that is jurisdictional facts for exercising power to detain the detune under the special power Act.[19]
8. Safeguards as to arrest and detention
Article 33 consists of two parts: Clauses (1) and (2) relate to persons otherwise than a preventive detention of law. Clauses from (3) to (6) apply to person arrested or detained under preventive detention. This Article provides for protection against unreasonable arrest and detention. This Article provides for some specific procedural safeguard as in clause (1) of 33, a person in detention is entitled to know the grounds of his arrest and he cannot be denied the right to consult or be defended by a lawyer of his/her choice. In clause (2) a person arrested must be produced before the nearest magistrate within twenty four hours excluding the tie for such journey. The Article provides for certain substantive and procedural safeguard in respect of deprivation of life and personal liberty as a matter of fact, disclosure of grounds of arrest and detention before a magistrate even mandatory, under clause (1) of Article 33. There are numerous judicial decisions of the supreme court of Bangladesh on the question of preventive detention and the safeguards to be observed have become a highly specialized subject. Clause (4) provides that no person can be detained at the first place exceeding six months and during this time he must be given an opportunity to be heard by an Advisory Board. This clause also speaks of the constitution of the board. Clause (5) of Article 33 provides for early communication of grounds of detention of such person, the provision of this clause also authorizes the detaining authority for not disclosure of facts in public interest.[20]
In the case of professor Ghulam Azam v. Bangladesh, Md. Abdul jalil, j. held at paragraph 25 asunder: From the facts and circumstances as discussed above we are of the opinion that the petitioner having been living in Bangladesh is entitled to the protection under Article 33(5) of the constitution and as such the detaining authority was under constitutional obligation to communicate grounds of detention as soon as may be, but no grounds were communicated within such long period of more than 1 year and 3 months.31
9. Prohibition of forced labour
Clause (1) of Article 34 prohibits all forms of forced labour and any contravention of this rule has been made punishable in accordance with law. Clause (2) prevents persons undergoing punishment for sentence given by a court of law from invoking the prohibition against forced labour provided in the proceeding clause and further the state is empowered to require compulsory services for public purposes. The Article does not expressly mention slavery as has been mentioned in the thirteen Amendments of the United States constitution, and though there is no longer the remotest likelihood of enforcing such institution the prohibition against forced labour would extend to it if at all any attempt is made to introduce it.[21]
10. Protection in respect of trial and punishment
Article 35 guarantees a cluster of rights in respect of trial and punishment. Clause (1) provides protection against ex post facto laws, clause (2) provides guarantee against double jeopardy, clause speedy and fair trial: clause (4) grants privilege against self incrimination and clause (5) prohibits torture and cruel, inhuman or degrading punishment. Clause (6) provides that nothing in clause (3) or clause (5) shall affect the operation of any existing law, which prescribes any punishment or procedure for trial.[22]
11. Freedom of movement
Rights of locomotion is an important part of liberty, the right of a person to move freely to reside where he will and to work where he will is connected with his livelihood and pursuit of happiness. Even though this right may be protected by the due process clause of art, 31, as an important segment of liberty, the frames of the constitution made special provision to protect the freedom of movement of citizens, Art.36 provides that subject to reasonable restrictions imposed by law in the public interest, every citizen has the right to move freely through out Bangladesh, to reside and settle in any place in Bangladesh, and to leave and re-enter Bangladesh.[23]
In the case of Dr. Mohiuddinfarooque v. bangldesh and others, Mustafa Kamal, j. held at paragraph 31 as under: These rights, attached to a citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching up to continental shelf.[24]
12. Freedom of assembly
Every citizen shall have the right to assemble and to 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.[25]
13. Freedom of Association
The very existence of democracy is dependent on the right to form associations, without the right there can not be any political party which is an essential institution of democracy. The right of free association is closely allied with the freedom of speech and which is a right to free speech, and foundation of a free society.
14. Freedom of thought, conscience speech and press
Freedom of thought and conscience is essential to the development of human personality and every person should be free in his thought and conscience. On the other, freedom of speech is essential for the development and functioning of democracy. Without freedom of speech there can not be any democracy and the first thing and autocrat does is to curb the freedom of speech
In the case of Bangladesh National curriculum and Text Board v. A.Msamsuddin and others, A.T.M.Afzal, c.j. held at paragraph 32 while interpreting Article 32(2) as under: The right to freedom of speech and expression as claimed by the writ petitioners does not extend to the right of printing and publishing of note books or textbook prepared and published by the textbook board under stationary authority the court was not justified in declaring the impugned Act to be ultra vires of Article 39(2) of the constitution.
15. Freedom of profession or occupation
Article 40 provides that every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business.
16. Freedom of religion
Article 41 ensures that every citizen has the right to profess, practice or propagate any religion and every religious community on group can establish, maintain and manage its religious institutions subject to reasonable restriction imposed by law on the ground of public order and morality.
17. Rights to property
Article 41 guaranteed that every citizen has right to acquire, hold, transfer or otherwise dispose of property, subject to restrictions imposed by law compulsory acquisition, nationalization and requisition of property is not permissible without the authority of law.
18. Protection of home and correspondence
Article 43 ensures the citizens right to be secured in his home against entry, search and seizure and also to the privacy of his correspondence and other means of communication.
Restriction can be imposed on such rights on the ground of security of the state, public order, public morality and public health. This article guarantees the privacy of home and correspondence and communications.
19. Enforcement of fundamental rights
Article 44(1) provides that the right to move the Supreme Court for enforcement of any of the fundamental rights is itself a fundamental right. Art. 44(2) enables parliament to confer the jurisdiction to enforce fundamental rights on any other court, but such conferment cannot be in derogation of the power of the Supreme Court under Art. 102(1) which means that such other court may be given concurrent, but not exclusive, power of enforcement of fundamental rights. The Court must always have the power of enforcement of fundamental rights.
20. Modification of rights in respect of disciplinary law
Article 45 is a modification of rights in respect of disciplinary law. The provisions of part III will not be applicable to the members of disciplined forces for ensuring proper discharge of their duties or maintenance of discipline in that force, disciplinary law is kept out of the ambit of enforcement of fundamental rights.
21. Power to provide indemnity
Article 46 grants indemnity by law in respect of acts dines during the national liberation struggle or the maintenance or restoration or order in any area in Bangladesh.
22. Saving for certain laws
47 certain laws have been saved and Clause (1) of this Article grants immunity form challenge on the ground of violation of fundamental rights. Clause (2) gives the protection of certain laws in first schedule in spite of the inconsistency with any provision of the constitution. Clause (3) of this article provides for detention, prosecution and punishment for genocide, war crimes against humanity under international law and in case of conflict with any provision of this constitution, the law made for such detention, prosecution or punishment of any person under international law shall not be void.
23. Inapplicability of certain Articles
The persons in respect of whom Clause (3) of Article 47 applies shall be precluded from moving the Supreme Court for any remedy under the constitution. It provides for inapplicability of certain Article of this part mentioned in Article 47(A) of the constitution.
In the above-named the Article basis starting from the preamble, Security for the fundamental rights in Bangladesh constitution.
3.2 Supremacy of the Fundamental Rights
Supremacy of the Fundamental Rights is safeguarded by the constitution of Bangladesh. It is a rigid constitution; it can be amended by two third majorities of the parliament members.
The constitution but not parliament is supreme. It is stated in the preamble that it is our sacred duties to safeguard protects and defend this constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh. Article 7 states all powers in the Republic belong to the people and their exercise on behalf of the people shall be affected only under and by the authority of this constitution. This constitution is as the solemn expression of the will of the people. The supremacy of law of republic and if any other law is inconsistent with constitution that other law shall to the extent of the inconsistency to void. Article 26 states that all existing laws inconsistent with the provisions of this part i.e. Fundamental Rights, shall to the extent of such inconsistency become void on the commencement of this constitution. The state shall not to make any law inconsistent with the provision of this part and any law so made shall to the extent of such inconsistency is void. Under article 102 the Supreme Court has been empowered to scrutinize the government actions done is violation of Fundamental Rights. Again under Article 7 and 26 the Supreme Court exercises the power of judicial review i.e. to examine the constitutionality of any law passed by the parliament.
3.3Imposition of Restriction over Fundamental Rights
The enjoyment of rights can now where be seen in an absolute position, for the enjoyment of one’s right in the society is subject to the enjoyment of other’s right. Moreover, modern states are welfare states where-collective interests are given priority over individual’s rights or interests. Unrestricted individual liberty becomes a license are jeopardizes the liberty of others. Civil liberties as guaranteed by the constitution imply the existence of an organized society maintaining public order without liberty it sells would be lost in the excess of unrestrained abuses. If individuals are allowed to have absolute freedom of speech and action, the result would be chaos, ruin and anarchy. On the other hand, if state has absolute power to determine the extent of personal liberty, the result would be tyranny. So restrictions may be imposed on the enjoyment of fundamental rights for the greater purpose of public welfare. This idea has got recognition in article 29(2) of the Universal Declaration of Human Rights, 1948-
‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality public order and the general welfare in a democratic society. It is also worthy here to mention the judgment of justice Mukharjee in Gopolan v. State of Madras. There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, healthy, peace, general order and morals of the community.
3.4 The Enforcement of the Fundamental Rights
The insertion of fundamental rights in a constitution in a constitution becomes meaningless rights if it is not provided by the constitution for easy and effective procedure for their enforcement. And this easy and effective enforcement should be available not only against the executive but also against the legislative. If the executive does anything in violation of fundamental rights, the citizens must have a remedy. Similar if the legislature enacts any law which is inconsistent with any of the fundamental rights, there must be procedure to declare that law unconstitutional. The idea of protection of fundamental rights can be best understood from the American Declaration of Independence, 1776 where it is stated that all men are created equal that they are endowed by their creator with certain in alienable rights, that among these are life, liberty, and pursuit of happiness; that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is right of the people to alter or abolish it and to institute a new one. The declaration, therefore, has laid the utmost emphasis on the enforcement of rights that if the peoples rights for the protection of which the government is formed, can not be enforced than the government would be useless, the importance of remedies to enforce fundamental rights has got recognition in article 8 of the universal declaration of human rights, 1948 which states-
“Every one has the right on an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law”.
EFFECT OF VIOLATION OF FUNDAMENTAL RIGHTS
Art. 26(1) provides that all existing law inconsistent with the provisions of Part III shall, to the extent of inconsistency, become void on the commencement of the Constitution, while art. 26(2) provides that the State shall not make any law inconsistent with any provisions of Part III, and any law so made shall, to the extent of inconsistency, be void. Questions arise as to whether a law inconsistent with the provisions of Part III becomes void ab initio or simply unenforceable and whether the effect of inconsistency is the same in respect of the pre-constitution and post-constitution laws.
The American Constitution does not contain any provision similar to art.7 or art.26 of the Constitution. Applying the general principles of constitutional law the American Supreme Court held early that an unconstitutional law is in reality no law and is wholly void; it imposes no duties and creates no rights and it confers no power or authority and justifies no act performed under it. But an all-inclusive statement of a principle of absolute retroactive invalidity was later found to be not justified.It was held that an unconstitutional statue is not necessarily a nullity; it may have consequences binding upon people.Proceeding on the principle that a statue declared unconstitutional is void in the sense that it is inoperative or unenforceable and remains in a dormant state or hibernation, it was held by the federal Court of Appeal that a statue once declared unconstitutional and later held to be constitutional does not require re-enactment to restore its operative force.
The Indian Constitution contains art.13 which is similar to art.26 of the Constitution. So far as the pre-constitutional laws are concerned, the Indian Supreme Court held that the provisions relating to fundamental rights are not retrospective in operation on the commencement of the Constitution, and any pre-constitution law, to the extent of inconsistency with fundamental rights, is void in the sense that it is unenforceable; when it was passed it was valid and with
The commencement of the constitution its operation is eclipsed by the provisions of the constitution. If the constitution is so amended as to remove the inconsistency, the law becomes operative without re-enactment. But the law remains valid all the time as against those who are not entitled to fundamental rights. So far as post-constitutional law the Indian Supreme Court held the view that such a law is void ab initio and anything done under the unconstitutional law, whether closed, completed or inchoate, will be wholly illegal; such a law is not revived by any subsequent event. The court seems to have shifted form this position in Gujarat v. Shri Ambica Millswherein it took the view that where fundamental rights have been conferred only on some persons, natural or justice, a pre-constitution or post-constitution law contravening those rights is void qua those persons on whom the rights have been conferred, but is valid qua other person on whom those rights have not been conferred and it cannot be said that such a law is still-born or non est; the doctrine of eclipse equally applies to pre-constitution and post-constitution laws which violate rights conferred only on some persons.
The Pakistan Constitution of 1956 contained provisions similar to art.26 of the Constitution. In East Pakistan vs. Mehdi Ali Khan the Pakistan Supreme Court was dealing with a pre-constitution law and following the line adopted by the American Supreme Court made a distinction between the legislatures inherent luck of power to enact a law in which case the law is void ab initio and a limitation put on the power of a competent legislatures which renders the law void only to the extent of inconsistency in the sense that it cannot be applied to a particular case. Art.6 of Pakistan Constitution of 1962 contained a similar provision.
Critical Analysis
5.1Prohibition of Foreign Title
The modern State is a sovereign State. It is, therefore, independent in the face of other communities. It may infuse its will towards them with a substance which need not be affected by the will of any external power. It is, moreover, internally supreme over the territory that it controls. It issues order to all men all association within that area; it receives orders from none of them. Its will is subject to no legal limitation of any kind. What it purposes is right by the mere announcement of intention.
But such a theory of sovereignty has at least three aspects from which it demands a careful scrutiny. It needs in the first place, historical analyses. The State as it now is has not escaped the categories of time. It has become what it is by virtue of an historical evolution. That development both explains the character of its present power and, at the last, offers hints as to its possible future. It is, secondly, a theory of law. It makes of right merely the expression of a particular will, without reference to what that will contains. Such a definition, as will be seen, has about it an unquestionable logic; but the assumptions upon which it is compelled to build make it valueless for political philosophy.
The modern theory of sovereignty is, thirdly, a theory of political organization. It insists that there must be in every social order some single centre of ultimate reference, some power that is able resolve disputes by saying a last word that will be obeyed. From the political angle, such a view, as will be argued, is of dubious correctness in fact; and it is at least probable that it has dangerous moral consequences. It will be here argued that it would be of lasting benefit to political science if the whole concept of sovereignty were surrendered. That, in fact, with which we are dealing, is power; and what is important in the nature of power is the end it seeks to serve and the way in which it serves that end. These are both questions of evidence which are related to, but independent of, the rights that are born of legal structure. For there is historically, no limit to the variety of ways in which the use of power may be organized. The sovereign State, historically, is merely one of those ways, an incident in its evolution the utility of which has now reached its apogee. The problem before us has become, because of the unified interests of mankind, that of bending the modern State to the interests of humanity. The dogmas we use to that end are relatively of little important, so long as we are assured that the end is truly served.
5.2 Necessity in prohibiting foreign title.
It’s not needed to prohibit the foreign title because, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. So every person shall have the right to move freely throughout in the world. The present civilization is not closed in any special territory. In this present era of information and technology, all types of works have fallen into the same boundary. Thought of people are not limited. As this is the time of globalization, the problem and solution of all people should be solved in the same way.
And that’s why it is not necessary to prohibit the foreign title.
5.3Suspension of Fundamental Rights during emergency.
There are emergency provisions in the constitution of some countries but nowhere it is exactly defined what emergency is. Normally emergency means an unexpected occurrence requiring immediate action.The idea of suspension of some fundamental rights in time of emergency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provisions in legal terms for situations of crisis when states of emergency may be involved.
The necessity for suspension of certain rights in times of emergency is internationally recognized. Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency. Article 4(1) of the international covenant on civil and political rights, 1966, article 15 of the European convention for the protection of Human Rights and Fundamental Freedom 1950 and article 27 of the American convention on Human Rights, 1969 make, more or less, the same provision to the effect that in time of war, public danger, or other emergency that threatens the independence or security of a state party, it may take measures derogating from its obligation under the convention. Bangladesh has been under a state of Emergency since January 11, 2007. This is the fifth time this has happened since the independence issued by the president clearly declared that “the right to lodge cases with the courts in order to reinstate the fundamental rights ensured in part III of the constitution shall remain suspended during the State of emergency” according to the Article 141B and 141C of the constitution of Bangladesh. Article 141B concerns the suspension of provisions of certain article during emergencies and Article 141C concerns the suspension of enforcement of fundamental rights during January 25, 2007. Both the ordinance and the rules have empowered the “law and order maintaining force” to arrest citizen without a warrant, Around 55,000 military personnel were already deployed on December 9, 2006- 33 days before the store of Emergency to “aid the civil administration for the maintenance of law and order in the country according to the Home Ministry’s proclamation”
1.While a proclamation of Emergency is in operation, the president may, on the written advice of the prime Minister, [by order], declare that the right to move any court for the enforcement of such of the rights conferred by part III of this constitution as may be specified in the order, and all proceedings pending in any court for the enforcement of the right so specified, shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.
2. An order made under this article may extend to the whole of Bangladesh or any part thereof.
3. Every order made under this article shall, as soon as may be, be laid before parliament.
5.4Amendment Relating to Enforceability of Fundamental Rights
Two very significant events have taken place which have had significant events taken place which have had significant consequence upon the operation and enforcement of the fundamental rights. One is the proclamation of emergency throughout the country on December 28, 1974 whose effect, however is bound to be short lived. As consequences of this proclamation an order was passed on the court of law during the continuance of the emergency. As soon as the emergency ends, these rights will be revived. The other event which is of permanent nature is the enactment of the constitution (Fourth Amendment) Act, 1975 on January 25, 1975. So far, the changes effected by the forth amendment to the constitution relater to the enforcement of the fundamental rights, its is unusualness is as attractive as it is full of significance, if not for any other reason, at least for introducing a unique and unprecedented departure from the normal constitutional pattern followed elsewhere. Under unlamented provisions of articles 44 and 102 of the constitution, any citizen or in some cases, any person aggrieved by an infraction of any of the fundamental rights could move the supreme court for the necessary relief. Besides, being in conformity with the constitutional principles followed in countries which declared similar rights in their constitutions, the provisions relating to enforcement of fundamental rights by the supreme court as originally incorporated in article 44 and 102 of the constitution were considered necessary for three reasons, namely, rights of citizens declared under the constitution should, in fitness of thing and in accord with constitutional propriety, be adjudicated upon by one of the principal organs of government, namely, the highest tribunal, the supreme court of Bangladesh, for, in many cases involving the breach of fundamental rights the respondent against whom remedy would be sought is one or the remaining two organs of the government, namely, the executive or the legislature. Since the constitution declared the fundamental rights, they are limitation on the powers of the legislature as well as the executive and whether such limitations have been transgressed by them determination, by an independent and impartial body or tribunal, involving high policy considerations. Secondly, such adjudication by the highest tribunal in the country was preferred because it is likely to command respect both of the rulers and the governed, perhaps, quite understandably, more than any other tribunal or court set up under an act of parliament. Thirdly, such means of enforcement would ensure speedy remedy, the number of appeals against an order made by the court would be minimized; under the un amended provision of articles 44 and 102 only one appeal from such an order lay to the appellate division of the court. If leave to appeal was granted to be it under article 103(3), or a certificate to appeal was granted by the High court Division under article 103(2) of the constitution.[57]
Changes made by the 5th Amendment:
The 5th Amendment brought, inter alias, the following important changes in the constitution:
- Part VIA of the constitution dealing with one party system as introduced by the 4th Amendment was omitted.
- The independence of judiciary which was completely destroyed by the 4th Amendment was restored partially (Articles 96 and 116).
- The jurisdiction of the High court Division of the Supreme Court to enforce fundamental rights was restored to its original position as was in the original constitution (Article 44 and 102).]
- Provision of supreme judicial council in respect of security of tenure of the judges of the Supreme Court was interested (Article96).
- The provision of absolute veto power of the president introduced by the 4th Amendment was abolished (Article 80).
- A provision of referendum in respect of amendment of certain provisions of the constitution was inserted and to that end a new clause IA was created in Article 142.
- Religious words ‘BISMILLAHIR RAHMANIR RAHIM’ was inserted in the beginning of the constitution i.e. above the preamble.
- In the original constitution it was provided in Article 6 that citizens of Bangladesh would be known as ‘BANGALEES’ But this was changed and it was provided now that citizens would be known as Bangladeshis.
- One of four major fundamental principles of state policy ‘SECULARISM’ was omitted and in its place a new one the principle of absolute trust and faith in the Almighty Allah was inserted (Article 8).
- One of four major fundamental principles of state policy socialism was given a new explanation to the effect that socialism would mean economic and social justice (Article 8).
- A new article 145A was created where it was provided that all international treaties would be submitted to the president who should cause them to be laid parliament.
- Another new Article 92A was created where by the president was given power to expend public moneys in certain cases.
- Article 58 was amended to the effect that four-fifths of the total number of minister should be taken from among the members of parliament. It was also provided that the president would appoint as prime Minister the Member of Parliament who appeared to him to command the support of the majority of the members of parliament.
Some Case studies On The Fundamental rights:
Case Reference no.1
Dr. Nurul Islam v. Bangladesh
Fact of the case
The appellant Dr. Nurul Islam was appointed an assistant surgeon in 1952(in East Bengal) and by successive promotions he became the Director and professor of medicine of the Institute of post-graduate and Research in 1971(in Bangladesh).In November, 1978 the Govt. issued a notice where by the appellant was relieved of his duties as professor of Medicine; he was to continue as Director of the institute which was made a non-practicing post. The appellant challenged this notice in the High Court Division by write petition no. 571 of 197889 and a bench of the High Court Division on 6-12-79 declared the notice to have been issued without lawful authority. The government as found by the Supreme Court , reacted to the High Court declaration by ordering the retirement of the appellant from service under sub-section(2)of section 9 of the public servants Retirement Act, 1974 which is to the effect that the Govt. is empowered to retire a govt. servant on the completion of 25 years service . The appellant again challenged this order in a fresh write petition to the High Court Division on the ground, amongst others, that the retirement order is just a measure of punishment on him for his successful challenge of the Governments previous notice declared to have been issued without lawful authority. The High Court Division in the present instance refused with the Govt.’s decision in retiring the appellant 4/s 9(2) of the public service retirement Act and gave him no relief where upon the appellant move the Appellate Division as against the aforesaid decision of the High Court Division alleging, inter alia,malafide in the Government in causing his premature retirement; he further stated that there are in the cadre as many as 34 doctors who have completed 25 years service and many of whom were senior to the appellant in service but none of them had been retired . It was therefore contended that the impugned notification issued on June 5, 1980 was issued for collateral purposes the provisions of Article 27 and 29 of the constitution appellant was not given any opportunity of being heard before the impugned notification was issued it was violated of Article 135 of the constitution.
Judgment of the case
Article 27 of the constitution which speaks of entitled to equal protection of law interpreted by R.Islam, J.at paragraph 87 as under:
“The principle on which the doctrine of equal protection of laws is founded is that persons in similar circumstances must be governed by the same laws. The legislative classification by itself does not offend against the principle of equal protection of the laws provided the laws operate equally in all members of the said class or group. For valid legislation, classification must be reasonable for the purpose of legislation, should be based on proper and justifiable distinction, should not clearly arbitrary and should have all reasonable relation to the objects and to the public purpose sought to be achieved by the legislation.
Case reference no 2
University of Dhaka v.Dr.S.Hussain and another
Fact of the case
The principle of protection as provided in Article 35 of the constitution was invoked in as much as presidents order No. 67 of 1972 does not contain any express words giving retrospective effect, but the statute is prospective in nature only. Dr. Sayed Sajjad Hossain, who was the vice chancellor of the DhakaUniversity during the war Liberation. His case was referred to the First screening Board constituted under the presidents order No. 67 of 1972. The screening Board found him guilty. Accordingly, the respondent was dismissed from his service. The dismissal order was challenged before the High Court Division. The High Court Division upheld the order of dismissal.
Judgment of the case
B.H.Chowdhury, J. in paragraph 45 as held as follows:
In view of the matter the opinion of the activities attributed to the respondent Dr. Sajjad Hossain and Dr. Mohar Ali allegedly were performed in 1971 do not come within the mischief of the presidents order No. 67 of the 1972. Such activities are punishable under presidents order No. 8 of 1972 which was given retrospective effect. Both the respondents were given clemency and in the write petition they quoted the statement of the prime minister as mentioned in the press note. After assurance of such clemency, it was not permissible for initiation of any proceedings. Presidents order NO.67 of 1972, however, has no manner of application because it was not given respective effect.
Conclusion
7.1 Recommendations & Concluding Remarks
We have been observed that the constitution of Bangladesh has included all the basic attributes of fundamental rights. But practically sometimes the government is compelled to violate the fundamental rights of the people in Bangladesh due to some unavoidable circumstances. The ruling class should be truly respectful to the fundamental rights of the people. There should not be any international barrier Created by government for political interest and to oppress the opposite. It is the responsibility of the government to limit the events to violate the fundamental rights of the people and try their best respond these rights in some very rare cases where there is no really no other alternative and which is truly done for the sake of the country s overall benefit with no purpose of self interest of the ruling party some more restriction and controlling can be developed in the constitution of our country to regulate and prevent the indiscriminate and whimsical violation of the rights by the ruling power further more, the consciousness rights. So their rights can not be violated by the ruling class for their self interest.
