Notes on Fundamental Rights

Distinction between Fundamental Rights and Human Rights:

Fundamental rights certain rights or civil liberties that are the guaranteed to all persons and citizens by the Constitution of Bangladesh, i.e. the rights and privileges prescribed in Part III of the Constitution of Bangladesh. On the other hand, human rights are certain inalienable rights inherent to all human beings. Human rights are expressed and guaranteed by law through treaties and conventions, customary international law, and general principles of international law. International conventions and declarations such as the Universal Declaration on Human Rights, 1948; the International Covenant on Civil and Political Rights, 1966 and its optional Protocols; and the International Covenant on Economic, Social and Cultural Rights, 1966 govern international human rights law and are reflected in domestic legislations. It is evident that there are many similarities and overlaps between fundamental rights and human rights; however, it can be argued that there is no necessary connection between the two bodies of rights.

 

Role of International Law in Part III:

The Court can consider international conventions and covenants to aid the interpretation of provisions of Part III, particularly to determine the implicit rights in the fundamental rights like the right to life and liberty which are not enunciated in the constitution.[1]

“The national courts should not… straightaway ignore the international obligations which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments.”[2]

 

Reasonable Restriction:

The HCD has held that the term restriction also includes ‘prohibition’.[3] On the question of when a restriction can be said to be reasonable, the HCD has opined that the reasonability of a restriction will be depend on the circumstances of each case but it must be an objective standard based on the ordinary prudent man test for a given circumstance.[4]

 

Due Process:

Article 31 and 32 of the Constitution is an analogue enunciation of the concept of ‘due process’ in the United States.[5]Only a natural person is entitled to the protection prescribed by Article 31 of the Constitution.[6] Article 31and 32 also protects individuals who are not Bangladeshi citizens but for the time being are in Bangladesh.[7]

The right to life is also relevant in case of children of poor families, who do hazardous work to provide for their families. The HCD in Ain-O-Salish Kendra v. Bangladesh, issued recommendations in line with Article 31 and international conventions relating to rights of children by stating that the state has the duty to provide children with a healthy atmosphere, education and a good living standard for their families.[8] Similarly on the question of eviction of residents of slums, on the basis of Article 31 and 32, the HCD has directed that they must not be evicted until an alternative arrangement of rehabilitation plots made and allotted to the residents of the slum.[9] The wholesale eviction of sex-workers thus depriving them of their livelihood was held by the HCD to be a violation of Article 31.[10]

The right to life also includes the right to security of life,[11] protection against natural disasters,[12] protection of health,[13] right to unadulterated food,[14] protection of the environment.[15]

 

Right to Equality:

Art 27 of the Constitution provides every citizen with the right to be treated equally before the law and the right to equal protection of the law. Therefore, any discriminatory measure or treatment by the state may be challenged on grounds of violation of Article 27. However, in order for a claim of violation of Article 27 to succeed the petitioner must first establish before the court that his claim is legal.[16] Furthermore, a complaint of discrimination can only be made before the court by a person whose right to equality has been impinged.[17]

Doctrine of Classification:

Article 27 of the Constitution does not guarantee absolute equality requiring the law to treat all persons in the same manner.[18] Therefore, the right to equality basically means that persons under like circumstances should be treated alike in case of both conferment of privileges and imposition of liabilities.[19] This Doctrine was applied by the AD in S.A. Sabur to justify why someone can be disqualified from running for public office (elected office).[20] Similarly, in Secretary, Ministry of Establishment v. Md. Jahangir Hossain, the AD held that appointment of only some and refusal to appoint others from the list of Mujibnagar employees which was prepared by the government was discriminatory and violation of Article 27.[21] However, alternatively, there are multiple situations where the AD has rejected the argument that a certain specific collection of individuals form a ‘class’ and hence, they were ineligible to argue that they were discriminated against.[22]

The AD has held that the exclusion of some candidates who passed the BCS written examination without providing any reason to that affect nor allowing any opportunity to any of them to be heard is tantamount to discrimination.[23] The inequality in the payment of PA-cum-stenographers of the Supreme Court was held to be discriminatory by the AD.[24]The HCD has held that two similarly situated companies must be treated in the same manner and are entitled to the same benefits.[25]

The classification that is made must be reasonable and must further the purpose for which it is made. Likewise, the restrictions on the sponsors and directors of banks and financial institutions and their family members from sponsoring or being appointed as directors or CEOs of any insurance company has been held to be a reasonable classification; made for the purpose of preventing monopolies in the capital market.[26]

There is a presumption of constitutionality of a legislative classification and it is the burden of the petitioner who is challenging the said legislation to prove discrimination.[27]

[1] Bangladesh National Women Lawyers Association v. Ministry of Home Affairs, (2009) 61 DLR 371; H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70; State v. Metropolitan Police Commissioner, (2008) 60 DLR 371.

[2] H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70.

[3] Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[4] Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[5] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111 (per Rahman J).

[6] Elias Brothers (Md) Pvt. Ltd. v. Bangladesh, (2011) 16 BLC 327.

[7] HFDM De Silva v. Bangladesh, (1997) 2 BLC 179.

[8] Ain-O-Salish Kendra v. Bangladesh, (2011) 63 DLR 95.

[9] Alauddin Khan v. Bangladesh, (2009) 14 BLC 831; Ain-O-Shalish Kendra v. Bangladesh, (1999) BLD 488.

[10] B.S.E.H.R. v. Bangladesh, (2001) 53 DLR 1.

[11] Bangladesh Jatiya Mahila Ainjibi Samity v. Ministry of Home Affairs, 2008 BLD 580 (concerning child trafficking)

[12] Human Rights for Peace v. Bangladesh, (2011) 63 DLR 71.

[13] Dr. Mohiuddin Farooque v. Bangladesh, (1996) 48 DLR 438.

[14] Human Rights for Peace v. Bangladesh, (2010) BLD 125.

[15] Dr. Mohiuddin Farooque v. Bangladesh, (2003) 55 DLR 69 (concerning environmental pollution); BELA v. Bangladesh, 2010 BLD 185 (concerning the extraction of stones from river beds); Salimullah v. Bangladesh, (2003) 55 DLR 1; Human Rights for Peace for Bangladesh v. Bangladesh, (2009) 14 BLC 759 (concerning the protection of river channels from obstruction).

[16] NCTB v. Shamsuddin, (1996) 48 DLR (AD) 184; Abdur Rahman v. Ministry of LGRD, (2005) 10 BLC (AD) 179.

[17] BRAC v. Professor Mozaffar Ahmed, 2002 BLD (AD) 41.

[18] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[19] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[20] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[21] Secretary, Ministry of Establishment v. Md. Jahangir Hossain, (1999) 51 DLR (AD) 148.

[22] Secy. Aircraft Engrs. of Bangladesh v. Registrar of Trade Union, (1993) 45 DLR (AD) 122; Bangladesh Retired Government Employees Welfare Association v. Bangladesh, (1999) 51 DLR (AD) 121; AHM Mustain Billah v. Bangladesh, (2005) 57 DLR (AD) 41; CCIE v. Faruk Ahmed, (2007) 12 BLC (AD) 44; Delwar Hossain Mollah v. Bangladesh, (2007) 15 BLT (AD) 124.

[23] Dr. Abeda Begum & others v. Public Service Commission, (2007) 59 DLR (AD) 182.

[24] Bangladesh v. Shamsul Haque, (2007) 59 DLR (AD) 54.

[25] Bangladesh Edible Oil Ltd. v. National Board of Revenue, (2006) 11 BLC 35.

[26] Nasreen Fatema v. Bangladesh, (1997) 49 DLR 542 (affirmed in (1998) 3 BLC (AD) 190).

[27] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

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