Separation of Judiciary in Bangladesh

Introduction

The Separation of Judiciary in Bangladesh consists of a Supreme Court, subordinate courts and tribunals.Rights of a person were established from the beginning of the world but it was violated from that time. In the earliest period only few people had right to enjoy their rights and all of the people was living under them or under the monarch. On that period people had no right to protection and safe guard and their different rights which was obligatory .Many religious rights were provides but on that period people had failed to enjoy their rights and there had no remedy for violation of the rights. However the rights had been enjoyed by Barons were confirmed in the Magna Carta of 1215.The French national Assembly in 1789 changed the whole perspective of rights of man. In 1776 USA declared certain rights to be self sufficient. Every constitution of the world include rights and provides remedy for their national people. In the present day our society is rapidly developing in to a rights inspired than a duty. In present situation our constitution provides some rights which known as fundamental rights but if any rights violate only few remedy provides by the constitution .Apart from the constitution and the codes numerous rights and obligations have been created by the statutes and those rights and remedies has given in Article 102 of the constitution but which is not sufficient for that purpose the Appellate division can also make an appropriate order for doing complete justice in any purpose. If any rights violates by the government or by any government employee the people against whom the violate occurs he can make writ in the High Court Division and if there have no remedy for violation of rights the High Court Division Has right to issue a order .But in our constitution have only few remedies so that it is essential to create new remedy as soon as possible.

The Law of Bangladesh is primarily in accordance with the English legal system although since 1947, the legal scenario and the laws of Bangladesh have drifted far from the West owing to differences in socio-cultural values and religious guidelines. In November 2007, Bangladesh has successfully separated the Judiciary from the Executive but several black laws still influence the rulers in creating Special Tribunals in using several black laws including the Special Powers Act.

Statement of Problem :

The question of rights and remedies of Bangladesh of Bangladesh is a matter of fact because in the constitution there are many rights but fundamental rights is the way to govern the peoples life of a country ,some the rights are violated and for that violation some remedies are granted by the constitution but this remedy is not sufficient . Article 27 to article 47A known as fundamental rights made by the lawmakers of our country. There have many problems in our constitutional article. So far many erudite article written by the highly intellectual persons of the relevant fields were published in the relevant fields were published in the leading news paper in our country .But the political leaders who the member of parliament they are trying to make the constitution by own their own wise and for getting their own interest. We must seek the reason why this important organ of the state has so far not been given as a good shape because for the constitution our people sacrificed their valuable life in 1971. But we have some common problem why we are not getting remedies for lack of consciousness, lack of political will , lack of interaction of other leaders, lack of strong civil society , lack of democratic culture, corrupted law makers etc .

Objective of the study :

To analyze the constitutional provisions regarding rights.
To examine the case laws relating to constitutional rights.
To indemnify the drawbacks of the laws relating to enforcement of the constitutional rights.

4. Constitutional remedies .

Research methodology :

The present study explores the situation of fundamental rights in the Bangladesh constitution .It is exploratory in nature and based in qualitative approach . some case laws has been applied .The study also uses content analyze and survey methods for collecting data and information. The study relies on review of secondary in formation . So it applied content analysis .Without research methodology it is difficult to search any materials for a research .

Importance of the research :

constitution is the main organ of a country to drive the nation of the country . Without constitution a state cant proceed in a proper way but for making a constitution many law makers involved like that every state has their own constitution as a country we have also a constitution where there have some fundamental rights which fundamental rights work for our nation . But in review of the constitution some problem has watched by me like article 28(a) which is inconsistent with article 12 and 2(a) so for that purpose it is important to me to research the constitution ,however not only to people right but also for the territorial, sovereignty research is important and some article is also essential to amend , but our constitution has been also amended in 15^th times and some mistake have done by the lawmakers. However for many problem I think it is important to me to research and make a research paper .

Sources and materials :

In this research I use different books, journal, article and online and articles of various columnist. I have few sources to research my thesis but I have tried to collect knowledge and references from different area and every materials helps me to complete the thesis paper.

Scope and limitation of the study :

Topic of my research is the constitutional rights and remedies in Bangladesh, the rights which are related with the fundamental rights of the constitution but the fundamental rights are frequently violated but for the remedy some laws are played and some law are also essential . The Penal code 1862 , The code of criminal procedure 1898 and the constitution also provide some remedy which is not enough.

Review of literature :

There are only few books and article consist with my research subject ,some of the book and article published in the different journals ;which are reviewed below :

Muhammad Habibur Rahman,On rights and remedies (a collection of opinion) .

The University Press limited ,Dhaka 1000;Published in 1997.

This book contain many opinion subject related to fundamental rights and remedies. But this book did not explain all the articles with case reference.

S.S Pirzada ,Rights and constitutional remedies of Pakistan.

Published in West Pakistan 1962.

This book provides few analytical article related with fundamental rights and it also compare this articles with Human Rights and with different countries Constitution. But did not provides all remedy.

Md.Ansar Ali,Law of writ in Bangladesh .

Publisher Kamrul Book House , Dhaka.

First Published August 2003.

This book defines some descriptive object but has failed to analyze all types of writs with particular case reference . However this book helps me to research my subject in many ways and that’s why I use that book .

F.k.M.A Munim , Rights of the citizen under the constitution and law .Published by A.F.M.Shamsul Bari in1975 from 21/1 Sheik Saheb bazar road Dacca -1.

Many case references and every fundamental rights has been defined in that book. Mr.Munin described every fundamental rights with particular reference but this book has not any modernity to help to establish a new thyme about fundamental rights.

Constitutional Provisions regarding fundamental rights.

Introduction :

Part 3 of the constitution of Bangladesh provides fundamental rights for the nation which are judicially enforceable in the high court division of the Supreme court .There are 18 rights from article 26 to 47A which is provides six(6) rights for foreigner and Bangladeshi citizen and another 12 rights for the citizen of Bangladesh. All rights are carrying human every day related rights and if any citizen wants he can go to the court to get his remedy by filling a writ petition.

Bangladesh National curriculum Text book Board vs.AM Shamsuddin and others 48 DlR(AD)184 Provides :fundamental rights are never be invoked for violating any provision of law or other mans right under the law.

fundamental rights under the constitution of Bangladesh:

Right 01 Article 27:Equality before law:

All citizens are equal before law and are entitled to equal protection of law.

*“All citizen” means every person of Bangladesh who has the citizenship of Bangladesh.

*“equal Before law” means there are not any lawful discrimination between any person and any citizen of Bangladesh.

*“equal protection of law” it has respectably said that the guarantee of the equal protection of laws means a person shall be denied the same protection of the laws which is enjoyed by other persons or classes in like circumstances.[1]

Discrimination on grounds of religion :

1.The state shall not discriminate against any citizen on grounds only of religion,race ,caste ,sex or place of birth.

2.women shall have equal rights with in all spheres of the state and of public life.

3.No citizen shall ,on grounds of religion, race , caste ,sex or place of birth be subjected to any disability ,labiality, restriction or condition with regard to access to any place of public entertainment or resort ,admission to any educational institution

4.Nothing in this article shall prevent the state from making special provision in favour of women or children or for the advancement of any backward section of citizens.

*“Discrimination” means unequal treatment between men and women about their race, caste ,sex, religion ,place of birth etc.

*The meaning of clause 2 is women shall have equal rights with men and every women will enjoy all rights of a men.

Equality of opportunity in public employment :

1.There shall be equality of opportunity for all citizens in respect of employment or office in the service of the republic.

2.No citizen shall ,on grounds only of religion, race, caste, sex or place of birth be ineligible for or discriminated against in respect of any employment or office in the service of the republic.

3.nothing in this article shall prevent the state from-

(a)making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the republic ;

(b)giving effect to any law which makes provision for reserving appointment relating to any religious or denominational institution to persons of that religion .

(c)reserving for members for one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

*“opportunity in public employment”means all citizen of Bangladesh has the right to join in the public service and all other service sector but qualification is required of the service.

*Any discrimination shall not be avoidable by the government and state shall ensure all opportunity of a service.

Prohibition of foreign title etc.:

No citizen shall without the prior approval of the President , accept any title ,honour ,award or decoration from any foreign state.

*When any citizen of Bangladesh awarded by any other country ,without the approval of the president he/she has no right to accept such award ,title so before taking such award he/she must be approved by the President about that award.

Right to Protection of law:

To enjoy the protection of the law and to be treated in accordance with law , and only in accordance with, is the in alienable right of every citizen , wherever he may be and of every other person for the time being within Bangladesh, and particular no action detrimental to the life ,body ,reputation or property of any person shall be taken except in accordance with law .

*“Protection of the law and in accordance with law” Every citizen or non citizen of Bangladesh shall enjoy his/her life in accordance with law , shall have right to take lawful remedy and if any action detrimental of his life, liberty, body or personal life state shall provide him all his remedy but for the purpose of law any action shall be taken against him/her.

Protection of right to life and personal liberty :

No person shall be deprived of life or personal liberty save in accordance with law.

Related provision: according to Universal Declaration of human rights under section 3 –

“Every one has the right to life ,liberty and security of person”.

*“To enjoy the protection of the law ” every citizen of Bangladesh and who is living in Bangladesh for a short time has inalienable rights to enjoy all laws of Bangladesh and if he falls any problem he has right to take lawful shelter.[2]

[3] *In interpreting the phrase “in accordance with law ”which occurs in Article 40 of the Irish constitution an attempt was made to reverse the unbroken trend of judicial opinion to the effect that the phrase meant in accordance with the ordinary legislation.

Safeguards as to arrest and detention:

1. No person who is arrested shall be detained in custody with being informed , as soon as may be , of the grounds for such arrest , nor shall he be denied the rights to consult and be defended by a legal practitioner of his choice .

2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest , excluding the time necessary for the journey from the place of arrest to the court of the magistrate , and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

3.Nothing in clause (1) and (2) shall apply to any person –

(a)Who for the time being enforce is an enemy alien ; or

(b)who is arrested or detained under any law providing for preventive detention .

4.No law providing for preventive detention shall authorize the detention of a person for a period exceeding six months unless an advisory Board consisting three persons, of whom two shall be persons who are, or have been ,or qualified to be appointed as , Judges of the Supreme court and the other shall be a person who is a senior officer in the service of the republic , has, after affording him an opportunity of being heard in person, reported before the expiration of six months that there is in its opinion , sufficient cause for such detention.

5. when any person is detained in pursuance of an order make under any law providing for preventive detention, the authority making the order shall , as soon as may be , communicate to such person the grounds on which the order has been made ,and shall afford him the earliest opportunity of making a representation against the order : provided that the authority making any such order may refuse to disclose facts which such authority considers to be against the public interest to disclose.

6. Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4).

Clause (1)

provides when any person arrest he has right to know in which grounds he has been arrested and if he wants he can choose a legal practitioner to consult and he has right to discuss his matter with his legal practitioner and the State shall ensure those above mentioned things.

Clause (2)

provides who has arrested and detained under the custody he will be send to the nearest magistrate within twenty four hours it is his inalienable right and if the magistrate think the accused can be detained more than twenty four hours , the accused shall be detained .

Prohibition of forced labour :

(1) All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law .

(2) Nothing in this article shall apply to compulsory labour –

(a)By persons under going lawful punishment for a criminal offence; or

(b)Required by any law for public purposes.

*Clause (1) provides any kind forced labour shall be punishable under the law and this article is applicable for all the citizen of Bangladesh and short term living foreigner .

*374 of Bangladesh Penal code which lays down that “whoever unlawfully compels any person to labour against will of that person shall be punished……………….”

*Clause (2) of article 34 has subjected the prohibition against forced labour to the State’s requirement of compulsory service for public purposes. Where under a statute the State legislature has to levy taxes for the purpose of the State revenue ,it would be justified in imposing obligation upon the citizens concerned to assist in the collection of those taxes as under Article 23(2) of the Indian constitution the State was enabled to impose compulsory service for public purposes. It would seems that compulsory work to build public highways come within the exception provided under clause (2) of Article 34.[4]

Protection in respect of trial and punishment :

(1)No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than ,or different from , that which might have been inflicted under the law in force at the time of the commission of the offence.

(2)no person shall be prosecuted and punished for the same offence more than once.

(3)Every person accused of a criminal offence shall have the right to a speedy trial by an independent and impartial court or tribunal established by law.

(4) no person accused of any offence shall be compelled to be a witness against himself.

(5)No person shall be subjected to torture or to cruel ,inhuman ,or degrading punishment or treatment .

(6)Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.

*This Article establish some important right for every accused person that every offence shall be identified by the law , if same offence committed by a accused within a year for three times only one charge shall be made against him under article 235 of the Code of Criminal procedure ,and he shall be punished according to the charge this is called double jeopardy.

Clause 3

provides every accused shall have the right to free , independent ,impartial speedy and public trial and torture ,inhumane cruel is prohibited against himself because it is the violation of human rights.

Provides the right guaranteed by this clause is a right to pertaining to a person accused of an offence and provides a protection against compulsion to be a witness against himself and also affords protection against such compulsion which may result in his giving evidence against himself.[5]

Freedom of Movement :

Subject to any reasonable restriction imposed by law in the public interest ,every citizen shall have the right to move freely throughout Bangladesh ,to reside and settle in any place therein and to leave and to re-enter Bangladesh.

Related Article :

13(1)of UDHR (1)every one has the right to freedom of movement and residence within the boarders of each state.

(2)Every one has the right to leave any country, including his own ,and to return to his country.

Genesis of freedom of movement :

Free movement means free passage ,but free passage is process covering both entry and departure .This concept broken down for technical reasons in to immigration.

Article 11(1) of west Germany Constitution provides: All Germens shall enjoy freedom of movement throughout federal territory.

Homes j. used to say: ‘In a complicated society there are no absolutes ’. In England there are individuals right to free movement is denied in the case of prohibited places and protected areas under the official secrets Act.[6]

*If the State wants for the purpose of public interest can impose reasonable restriction to move in the country and another country, But State shall ensure the mentioned right.

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.

*It is the inalienable right of every citizen of Bangladesh to assemble to get their right and to participate in processions with another peacefully but arms and any kind of violation is prohibited .

Dicey gives an ingenious theory of the origin of the right of assembly in England he said:

‘It can hardly be said that our constitution knows of such a thing as any specific right of public meeting ………the right of assembling is nothing more than a result of the view taken by the courts as to individual liberty of person and individual liberty of speech’.

Constitutional regard three things for assembly :

(1)The assembly must be peaceful ;

(2)The members of the assembly must be unarmed ;

(3)For the public interest any reasonable restriction may be imposed.

Freedom of association :

Every citizen shall have the right to form associations or unions ,subject to any reasonable restrictions imposed by law in the interests of morality or public order :

Provided that no person shall have the right to form ,or be a member of the said association or union, if –

(a)it is formed for the purposes of destroying the religious ,social and communal harmony among the citizens.

(b)It is formed for the purpose of creating discrimination a among the citizens ,on the ground of religion ,race, caste, sex, place of birth or language;

(c)It is formed for the purpose of organizing terrorist acts or militant activities against the state or the citizens or any other country,

(d)Its formation and objects are inconsistent with the constitution.

*Related article is article 20 of the Universal declaration of Human Rights –“Every one has the right to freedom of peaceful assembly and association”.

The Constitution of Bangladesh provides every citizen of Bangladesh has the right to peaceful assembly but if the state think for the public interest, can impose restriction ,the freedom of association includes the right to form company under the companies Act ,1993, can form Partnership firm under the Partnership Act,1932 and Trade unions under the Industrial Relations ordinance,1969.It includes the right of continuance and the word “form “does not limit the right to the commencement of the association .[7]

Freedom of thought and conscience and of speech :

(1) Freedom or thought and conscience is guaranteed.

(2) Subject to any reasonable restrictions imposed by law in the interests of 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-

(a) The right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.

*Every citizen has the right to thought and has right to express their thought , every citizen has right to comment for their own interest and public interest and its their inalienable right.

Mark Twain once made a light hearted comment which has been recently quoted by the American Supreme Court: It is by the goodness by god that in our country we have three unspeakable precious thing, Freedom of speech ,freedom of conscience and the prudence ,never to practice either of them.

Freedom of profession or occupation:

Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.

*There are three important aspects in article 40(a)the right granted is in respect of a trade or occupation which is lawful .

(b)Qualification can be prescribed by law for entry in such ,trade or business or occupation ;and

(c)Parliament may by put restrictions on the exercise of the right.[8]

*For the purpose of public interest state can impose reasonable restriction and if any lawful business is harmful for public interest state can impose restriction .

Freedom of religion:

(1) Subject to law, public order and morality-

(a) Every citizen has the right to profess, practice or propagate any religion;

(b) Every religious community or denomination has the right to establish, maintain and

manage its religious institutions.

(2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.

*‘Religion’ is the Latin word it means religious awe or fair of god.

*Clause (1) provides every citizen of Bangladesh shall have the right to enjoy their own religion and if they want they can change their religion but no one has no right to force any one and has no right to hart another religion .

*Every citizen of Bangladesh has right to make religious community subject to law and can establish religious institutions.

Clause (2) provides no educational institute can force ,instruct any one about his religion. So every one has the right to enjoy his religion without any prohibition except in law.

Rights to property:

(1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired ,nationalized or requisitioned save by authority of law.

(2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principle son which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.

(3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977),in so far as it relates to the acquisition, nationalization or acquisition of any property without compensation.

*“Shall have the right” means every citizen have right to hold ,acquire land or property lawfully but without lawful manner he has no right and according to law every citizen has right to dispose his property and he can sale or can will his property to any one.

*State can requisite any property for necessity but state will bear the compensation to the citizen but state can impose any law for necessity.

Protection of home and correspondence.

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health-

(a) to be secured in his home against entry, search and seizure; and

(b) to the privacy of his Correspondence and other means of communication.

*The right of the people to be secured in their persons ,houses, papers and effects against unreasonable search and seizures ,shall not be violated ”.The right of a man to retreat into his own house and there be free from unreasonable governmental intrusion .[9]

*section 96 of CRPC conclude search warrant for reasonable purpose but before search every citizen has right to know why this is imposed to him .

*Telephone tapping to be a serious invasion of an individual’s privacy.

Enforcement of fundamental rights.:

(1) The right to move the High Court Division in accordance with clause (I) of article 102

for the enforcement of the rights conferred by this Part of guaranteed.

(2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.

*Every one has the right to move the High court division to enforce their right under article 102(1) of the Bangladesh constitution.

*The Parliament can provide power to any other court without prejudice the power of the High court division and this article is a inalienable right of every citizen and state is bound to ensure every fundamental rights for every citizen.

Conclusion:

This 18 Article provides by the Bangladesh Constitution ,only parliament is empowered to make another article for public interest and if the High division of Supreme think can make a Suo moto rule for public interest .This 18 Article is the fundamental rights of every citizen of Bangladesh.

Case references regarding fundamental rights.

Introduction :

Without case reference or case law a law related thesis can not be fulfilled. Every cases has taken from ‘Dhaka law report ’and From ‘Bangladesh legal decisions’ .This all case references are related with fundamental rights which there are 18 fundamental rights and in that thesis I have discussed some cases which has collected by me .

Case laws of fundamental rights are given below: “Equality before law”

Equality before law:

All citizens are equal before law and are entitled to equal protection of law.

Sheikh Abdus Sabur vs. Returning officer ,District education officer -in –charge, Gopalgong others(2011)41 DLR(AD)30: “Equality before law ” is to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding deferent conditions and circumstances in which they are placed or special qualities and characteristics which some of them may posses but which are lacking in others . The term “protection of equal law”is used to mean that persons or things are not equal in all cases and person similarly situated should be treated alike .Equal protection is the guarantee that similar people will be dealt with in similar way and that people different circumstances will be not treated as if they were the same ,single law therefore can not be applied uniformly to all persons disregarding their basic differences with others ;and if these differences are identified ,then the persons or things may classified into different categories according to this distinction ;that is what is called ‘permissible criteria’. The legislature while proceeding to make law with certain object in view ,with is either remove some evil or to confer some benefit ,has power to classification on reasonable basis ,classification of persons for purpose of legislation is different from class legislation ,which forbidden. To stand the test of ‘equality’ a classification besides being based on intelligent differentia ,must have reasonable nexus with object the legislature intends to achieve by making the classification.

Case 2 related with Article 28 “discrimination on grounds of religion ” Discrimination on grounds of religion, etc.:-

(1) The State shall not discriminate against any citizen on grounds only of religion, race ,caste, sex or place of birth.

(2) Women shall have equal rights with men in all spheres of the State and of public life.

(3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

(4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.

Case reference :In the case of Bangladesh Biman vs.Rabia Bashri Irane ,(2007)55 DLR (AD)132,Md Ruhul Amin ,j .while interpreting Article 28 of the constitution observed that since some employees of the corporation intrse standing in the similar situation have not been treated in the similar manner or,in other words ,have been treated differently from the others .The contention of the writ petitioners that they have been discriminated against has rightly been found by the High court Division .

Article 29. Equality of opportunity in public employment.

(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.

(2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.

(3) Nothing in this article shall prevent the State from –

(a) making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;

(b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

Case reference :

Bangladesh vs.Azizur Rahman,(2001),46 DLR(AD)19,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 writ petitioner maybe said to have been affected by the impugned Rules of 1990 would not amount to denial of equality of opportunity in respect the employment ,as chances of promotion are not condition 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.

Right to protection of law:-

To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

Case reference:-

ETV LTD.Vs.Dr.Chowdhury Mahmood Hasan ,(2004),54 DLR (AD)130,K.M.Hasan,J.while interpreting Articles 31 and 32 of the constitution held as under : “ It is a simple case of investment ,and like every investment the investment in ETV has its own risk .The third party rights exist and fall with the Ekushey Television ,since their interest are merged with that ETV. The substantive legal principle in this regard is that every person “subject to ordinary law within the jurisdiction .Therefore ,all persons within the jurisdiction of Bangladesh are within Bangladesh rule of law .The foreign investors in ETV are no exception to this principle.”

Protection of right to life and personal liberty.:-

No person shall be deprived of life or personal liberty save in accordance with law.

Case reference:-

M .Saleemullah ,Advocate and others vs. Bangladesh ,(2008)55 DLR 1 ,Question was raised as to whether the respondents could convert the open space meant for park and in interpreting Article 31 and 32 of the constitution ,M.M.Ruhul Amin J. Held that state is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the constitution includes protection of health and normal longevity of a man free from threats of man made hazards unless that threat is justified by law.It was further observed in that decision that right to life under article 31 and 32 of the constitution being a fundamental right it can be enforced by this court to remove any unjustified threat to the health and longevity of the people as the same are included in the right to life longevity of a man free from threats of man made hazards unless that threat is justified by law.It was further observed in that decision that right to life under article 31 and 32 of the constitution being a fundamental right it can be enforced by this court to remove any unjustified threat to the health and longevity of the people as the same are included in the right to life.

Safeguards as to arrest and detention.:-

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person-

(a) who for the time being is an enemy alien; or

(b) who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the

Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.

(6) Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4) .

Case Reference:-

Professor Ghulam Azam vs.Bangladesh ,(1998)46 DLR 29 ,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 3months.

Protection in respect of trial and punishment.

(1) No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.

(4) No person accused of any offence shall be compelled to be a witness against himself.

(5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

(6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.

Case relates with that Article:-Habiba Mahumud vs.Bangladesh ,(1995)45 DLR (AD)89, it is needless to add,than in case of malafde the matter of nondisclosure will be justicable one .But for the clear constitutional sanction provided in Article 33(5) a non disclosure of fact that was considered to the prejudice of the detenu ought to be regarded as violation of basic principle of natural justice.

Freedom of movement.:-

Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.

Case reference:-Dr.Mohiuddin Farooque vs. Bangladesh and others (2009)49 DLR1, 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.

Article 38Freedom of association.:

Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;

Case reference :-Air craft engineers vs. registrar ,trade union ,DLR (AD)122,an argument was raised on behalf of the appellant unions that they will lose their international affiliations if they lose registration.

Mustafa Kamal ,j. answered this as under :-“The short answer will be that the consequences if any ,will no doubt be unfortunate but the right to constitute a separate trade union for workers with international affiliations is simply not provided for ,either un amended ,ordinance,1969 or in the Amendment Act ,1990 the amended legislation cannot be said to be violative of the fundamental right guaranteed under Article 38 of the constitution on the ground of loss of international affiliation”.

Freedom of thought and conscience, and of speech.

(1) Freedom or thought and conscience is guaranteed.

(a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.

Case reference :Bangladesh National curriculum and text Board vs.Samsuddin and others ,48 DLR (AD)184,

A.T.M. Afzal ,C.J.held as under

“It is true that Article 39(2)it has been specifically mentioned regards the grounds upon which reasonable restriction may be imposed by law on the right of citizen to freedom of speech and expression ,the basis assumption for the exercise of the said right is and must be it may not offend any law or any right of other person under law .To give a free hand to the publishers to publish any kind of ‘note book’ or text book’ without any control from the Board is to prepare and publish or approve text books for which the text book board was vested with the authority to prepare and publish or approve text book for such”.

“The right to freedom of speech and expression as claimed by the writ petitioners does not extend to the right of printing and publication of ‘not book ’and text book prepared and published by the Text Book Board under statutory authority .The court was not justified in declaring the impugned Act to be ultra virus of Article 39(2) of the constitution.

Freedom of profession or occupation.:

Case references :-

Abdul jalil vs. Chairman ,REB ,45 DLR 24 ,The petitioners fundamental right as enjoined In article 40 of the constitution has been violated and he has been prejudiced thereby, the action of the board which is a statutory body is ,therefore unauthorized .

Freedom of religion.:-

(1) Subject to law, public order and morality-

(a) every citizen has the right to profess, practice or propagate any religion;

(b) every religious community or denomination has the right to establish, maintain and manage its religious institutions.

Case reference :Bangladesh Anjuman-e-Ahmadiya vs. Bangladesh,45 DLR 185 ,the right of the Ahmadiya community to preach their religious belief is, however ,subject to law ,public order and morality ,By the aforesaid passages in our view the author and publisher are deliberately maliciously propagating a matter which is outrageous to the religious feeling of the bulk of Muslims of the country .The petitioner has submitted that Ahmadiya jays also being Muslim the order stating that the book has outraged the feelings of the Muslims of Bangladesh is not correct.

Rights to property.:

(1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned save by authority of law.

(2) A law made under clause (1) shall provide for the acquisition, nationalisation or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.

(3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalisation or acquisition of any property without compensation.

Case reference: Syeda Chand Guttara and others vs. Bangladesh ,48 DLR 547,

The very fact that the inclusion of the disputed property in the ‘Kha’ list had been found by us to be ex-facie void for want of jurisdiction and in violation of Article 42 of the constitution it is our view that the petitioners can come directly to this court for protection of their fundamental rights even though an alternative remedy is available.

Enforcement of fundamental rights.

(1) The right to move the High Court Division in accordance with clause (I) of article 102

for the enforcement of the rights conferred by this Part of guaranteed.

(2) Without prejudice to the powers of the High Court Division under article 102, Parliament

may be law empower any other court, within the local limits of its jurisdiction, to exercise

all or any of those powers.

Case reference :Anwsr Hossain Chowdhury Vs.Bangladesh ,41 DLR (AD)165,The mandate is clear and express if Article 44 and 114 are read together .it is well settled principle in interpreting the constitution is to be looked in to and if amendment to the constitution does not fit in with the constitution itself then the amendment is to be declared ultra vires because constitution is a logical whole.

Another case reference Serajul Islam vs.D.G.Food ,43DLR 237As already stated ,without exhausting all available remedies before the administrative authorities including Administrative Appellate authority, the Administrative tribunal and the Administrative Appellate Tribunal generally speaking the petitioner is not entitled to any relief before this court for the enforcement of any fundamental right under Article 44 read with Article 102(1) of the constitution. In the case of State of UP Vs. Nooh ,AIR 1958(SC) 86 and Abrahan vs.ITO ,AIR 1961(SC)609 it was held that the principle of exhaustion of statutory remedy is applied as a general rule ,in the matter of issuing certiorari and the superior court will ordinarily decline to interfere until the aggrieved party has exhausted his Statutory remedies .

Drawbacks of the laws relating to enforcement of the fundamental rights.

Introduction :

Very limited drawbacks is in the part 3 of the Bangladesh constitution but this drawbacks sometime plays difficult role which is harmful for the Bangladeshi and for that drawback people’s are depriving about their fundamental rights .

“To are is human ”this phrase we can use for the purpose of the fundamental rights .Because our constitution is a parliament made constitution for that reason its not impossible to create some mistake.

what are the drawbacks :

There are 18 fundamental rights but every rights are not carrying the drawbacks but article 44 provides ‘enforcement of fundamental rights’ this article provides to enforce fundamental rights every citizen shall go to the High court Division for that all citizen’s are not enjoying there rights properly .Every people of Bangladesh are not rich or has not sufficient knowledge about law and the poor man has not ability to file a write petition in the High court Division another problem is that every citizen are not living in the capital for that when their rights violate they can not go to the court within a day , if any individual person face problem in the district level he cant go to the High court division and if any poor women who is living in a village how she will get her remedy? Writ petition can be filed only in the High court division and article 102 only one article which provide remedy for fundamental rights. So to enforce fundamental rights State should empower every the district court and provide another constitutional article. If the district become empowered , many citizen will get their remedy very early and it will be very helpful for every citizen.

Another drawback is the constitution of Bangladesh shall not provide Prisoner voting right the U K constitution also establish the prisoner voting right because prisoner is the citizen of a country so its an important part to think and state should provide that right.

Conclusion :

This above mentioned problem should remove as early as possible because we are the citizen of a poor country ,we have limited number of judges so the state has liability on behalf of his citizen .Under article 102 (2)of our constitution provides if there are not any other remedy than one can go to the High court division , so it is an biggest problem if that problem not removed we can face many problem.

Constitutional Remedy

Introduction:

A right without a proper and efficacious remedy, would be meaningless consequently the constitution not only confers right but also provides for remedy in case of their infringement . The Constitution of Bangladesh provides remedy under article 102 and under that article citizen can get their fundamental remedy from the High court division of the Supreme court ,whether an aggrieved person may take recourse to article 102,the learned judges of the High court Division can reject the writ petitions and refused to exercise their jurisdiction under article 102 of the constitution and where an alternative statutory remedy is available ,an application under article 102 may not be entertained to circumvent to statutory procedure. This chapter is the remedial aspects of constitutional rights

Remedial measures in the constitution of Bangladesh :

Article 102:Powers of High court Division to issue certain orders and directions, etc:

(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) Declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) On the application of any person, make an order-

(i) Directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) Requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorized by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b).

(5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defense services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.

*“Any person aggrieved” – interpreting the words “any person aggrieved” meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the constitution .

*A chairman of Pauroshava can not be said to be an aggrieved person ,when his words dimilated by a gazette notification.

*A person is entitled to file an application for enforcement of any of the fundamental rights only he is aggrieved by an order or proceedings taken against him by an authority or person performing any function in connection with the affairs of the republic or of a local authority.

To enforce the fundamental rights there are five types of writs which definition are given below : Writ Petition legal instrument of the superior courts for remedies to persons, natural or jural, against the arbitrary or illegal actions of any authority or the lower court.

There are five kinds of writs, namely:

Certiorari,
Habeas corpus,
Mandamus,
Prohibition and
Quo warranto.

This writs Originated first in England, these writs were exercised by the Judges of the King’s Bench and called prerogative writs exercised by that Court on behalf of the King. Article 102 of the Constitution of Bangladesh provides for granting remedies similar to that of the above writs, though it does not speak of any of such writs in specific terms.

(a)Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus.

(b)Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari.

(c)Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and

(d)sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo warranto.

1.Certiorari means ‘be certified’ of the proceedings of any lower court or tribunal to be investigated by the superior court. Records of any pending or concluded proceedings before any authority or court including a tribunal can be called for by the High Court Division of the Supreme Court of Bangladesh for its examination as to the legality or otherwise of the said proceedings.

Under sub-clause (ii) of clause (a) of article 102, not only legality of a proceedings but also any act done by a person, performing functions in connection with the affairs of the Republic or a local authority, can be declared to have been done without any lawful authority and with no legal effect. Thus remedy under the aforesaid sub-clause (ii) is wider than that of the remedy available in a writ of certiorari. In a writ of certiorari, superior court interferes when the lower court or tribunal acts without any jurisdiction or in excess of its existing jurisdiction or in cases where it fails to exercise its jurisdiction – for example, when it decides a case without giving an opportunity to the parties to be heard or violates the principle of natural justice or if there is an error apparent on the face of the record of such proceedings. But under sub-clause (ii) of clause (a) of article 102, the High Court Division can also declare any act done by any authority, which is neither a judicial nor a quasi-judicial, to be without lawful authority.

Case reference:-

Kazi Muklesur Rahman V .Bangladesh(1979) 26 DLR (sc)44:

“That the question of locus standi does not involve the court’s jurisdiction to hear a person but of the competency of the person to claim a hearing ,so that the question is one of discretion which the Court exercises upon due consideration of the facts and circumstances of each case”.

2.Habeas Corpus means ‘have his body’. This is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody since 1640. The King’s Bench issues writ of habeas corpus to examine as to whether a person was illegally detained in custody.

Case reference :

In the case of Sajeda parvin v.State (1998) 40 DLR (AD)178,

In that case in repelling that contention spens c.j. made the following observation on the nature of habeas corpus proceeding :

“The analogy of civil proceedings in which the right of parties have ordinarily to be ascertained as on the date of the institution of the proceeding cannot be invoked here. If at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for direction .The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the court can direct the release of the petitioner.”

Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a write of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.

3.Mandamus means ‘we command’. By writ of mandamus, the superior court directs any person, corporation, lower court or government to do something, specified therein, which pertains to his or their office and is in the nature of a public duty. This writ is issued when the lower tribunal has declined to exercise jurisdiction vested in it or any public authority declined to do what he is required by law to do. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing functions in connection with the affairs of the Republic or a local authority to do what he is required by law to do. This remedy is available when any right of a person, arising from any law and not from any contract, is violated. The applicant must show that he has a legal right to the performance of legal duty by the person or authority against whom the writ is prayed for.

Case reference :

in the case of Masudul Hasan v.Khadim Hussain (1963)PLD (SC)203, “ Cornelius c.j. questioned whether it was appropriate in a proceeding of a writ of Mandamus to make a finding on the validity of an order of dismissal by a municipal authority ,not a party to the case .However in that case the order of the High court was maintained on the ground of the circumstances casting a doubt upon the validity of the dismissal ”.

4.Prohibition means ‘to forbid’ from doing something. In other words, it is a writ issued by the superior court to a lower court, tribunal or administrative authority prohibiting it from doing something which it is not authorized by law to do. Prohibition is a preventive writ and issued to stop illegal exercise of power of jurisdiction to the detriment of any legal right of a person.

Sub-clause

(i) of clause (a) of sub-article

(2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing any functions in connection with the affairs of the Republic or local authority to refrain from doing what he is not permitted by law to do.

Case reference:-

Arun kumar Sutradhar And Another v. The Joint District Judge , Artha Rin Adalat And Another ,(2012)32 BLD (HCD)38,40,

IT is the cardinal principle of interpreting of statute that any provision of law, which takes away the man’s freedom ,should be construed Strictly.

“In order to appreciate the second limb of his argument ,we have examined the order sheets of the Artha Decree Execution case . It appears that an attempt to sell the mortgaged property was made before disposal of the Miscellaneous case under order xxi rule 58 of the code of civil procedure .But after allowing the Miscellaneous case and amendment of the schedule of the execution case ,no subsequent step whatsoever was taken to sell the remaining portion of the mortgaged property. under the circumstances, we hold that the decree holder bank was required to take step afresh for selling the mortgaged property after amendment of the schedule of the execution case ,failing which ,it cannot be said that section 34(9)of the Artha Rin Adalat ,2003 was complied with. IT is the cardinal principle of interpretation of statute that any provision of law ,which takes away the man’s freedom ,should be construed strictly.”

5.Quo Warranto means ‘by what warrant or authority’. Writ of quo warranto provides remedy against illegal occupation or usurpation of any public office or franchise or liberty. It enables inquiry into the legality of the claim, which a person asserts to an office or franchise and to oust him from such position, if he is an usurper. The holder of the office has to show to the court under what authority he holds office. Such remedy is available under sub-clause (ii) of clause (b) of sub-article (2) of article 102 of the Constitution from the High court division.[10]

Case reference :G.M.Abu Hena v.Govt .of Bangladesh And Others.

‘The proposition of law is well settled that the burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the defendant.’

“ On a careful perusal of the averments of the plaint together with the deposition of pw-1,it appears that the plaintiff –respondent in support of his case that the wife of the defendant –appellant No.1 took retirement from the post of Family planning inspector under the revenue budget for joining to the higher post under the development project could not produce any scrap of paper .It is also found from the evidence of pw-1 that he did not produce any document to show prior the suit he obtained permission from the government.”

Conclusion:

This above mentioned writs is the remedy for the violation of fundamental rights. These five writs can give remedial measure for all of the fundamental rights .Any one can file writ petition by his legal representative or by himself to the High court division .But if there are any efficacious remedy High court division shall not exercise such writ petition.

General conclusion :-

The constitution of Bangladesh first published in 1972, there are 11 part and 7 schedule .There are 18 fundamental rights in Part(iii) of Bangladesh Constitution .Fundamental rights and remedies is my thesis topic so I have research those fundamental rights which is given in part Three ,I have analyzed this rights sentence by sentence and I find some problem that is people of Bangladesh every citizen has not enough knowledge about there fundamental rights and also about the constitution so for that I have analyzed those things and solved these drawbacks successfully. I take help from different books and 17 case reference I have included their to analyze the rights .Constitutional remedy is found in Article 102 and these Article provides remedies if there are not any efficacious remedies any person or any aggrieved person can go to the High Court Division to get his remedy by writ petition ,I have discussed the five writ petition with relevant case references. Exercise the jurisdiction of fundamental rights has provided by article 44 .However I have fulfilled all the criteria of my thesis ,I find the drawbacks and provides the remedy and I collect the relevant case references and discus all the writs.

Before go to the High court division Aggrieved party must make an appeal to the Appellate tribunal and if the judges received then the aggrieved party can go to the High court Division.

The part of Fundamental Rights provides equality before law ,equality opportunity ,Freedom from discrimination and others which I have discussed above chapters.

Bibliography :-

Rahman ,MH(1997)On Rights and Remedies (A collection of opinions).Dhaka -1000:University press Ltd.

Khan ,Md.Ansar Ali (2003)Law of writs in Bangladesh .Dhaka -1100.Kamrul book house.

Munim .F.k.M.A.(1975).Rights of the citizen under the Constitution And law. Dhaka.

Pirzada,S,S (1962)Rights and constitutional remedies .west Pakistan.

Bangladesh Biman Vs.Rabia Boshri Irane(2004)55DLR (AD)132.

Bangladesh Vs.Azizur Rahman (1995)46DLR(AD)19.

ETV Ltd.Vs.Dr.Chowdhury Mahmood Hasan,(2003)54,DLR(AD)130.

M.Saleemullah,Advocate and others vs. Bangladesh(2004),55 DLR 1.

Professor Ghulam Azam vs.Bangladesh (1995)46DLR29.

HHabiba Mahmud vs.Bangladesh (1994)45DLR(AD)89.

Kazi Mukhlesur Rahman Vs.Bangladesh (1979)26DLR 44.