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Fundamental rights in the constitution of Bangladesh

Fundamental rights in the constitution of Bangladesh-

Part III (from article-26 to 47A) of the Constitution of the People’s Republic of Bangladesh deals with fundamental rights.

In fact, 18 fundamental rights have been enshrined in our constitution 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 rights are enumerated in articles 32, 33,34,35,41 and 44 of the constitution.

b. Rights granted to citizens of Bangladesh only. These are 12 in number enumerated in articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42 and 43.

The Bangladesh constitution has imposed some restrictions in enjoying some fundamental rights.

On the basis of this restriction all fundamental rights enumerated in the Bangladesh constitution may be classified into following three groups:

A. Absolute Rights

Parliament can not impose any restrictions over the following rights except as provided in the constitution:

1. Equality before law (art.27)

2. No discrimination on the ground of race, sex, caste, religion or place of birth; women shall have equal tights with men and special provisions for women, children or backward section of citizens; (art. 28)

3. Equality of opportunity in public employment subject to some restriction on religious institutions or office or employment suitable for members of one sex or special provisions for any backward section of citizens; (art. 29)

4. Prohibition of accepting foreign titles, honour, award or decoration without the approval of the President; (art.30)

5. Safeguards as to arrest and detention; every person shall have right to consult and defended by a legal practitioner after arrest and he must be produced before nearest magistrate within twenty four hours of such arrest excluding the time necessary for journey from the place of arrest; These provisions is not applicable to an alien enemy or a person who is arrested under any law providing for preventive detention; No person shall be in custody for more than six months under any law providing for preventive detention without the report of an advisory board consisting of 3-members (2-judges of the Supreme Court and 1-senior servant of the Republic); the authority making an order of preventive detention shall communicate to the detenu such grounds for detention except in the cases if it is against public interest; (art.33)

6. Prohibition of forced labour except by persons undergoing lawful punishment for a criminal offence; or required by any law for public purposes; (art. 34)

7. Protection in respect of trial and punishment; No retrospective affect of any law against a person; no double jeopardy i.e. no prosecution and punishment twice for the same offence; right to speedy trial by impartial and independent court; no person shall be compelled to be a witness against himself; no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment; (art.35)

8. Enforcement of fundamental rights either by the High Court Divisions under Article-102 or by any Court authorized by any enactment of Parliament; (Art.44)

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 and press (art. 39)

5. Freedom of religion (art.41)

6. Protection of home and correspondence (art 43)

The grounds for imposing restriction on these rights have been laid down by the respective sections:

1. in the public interest (art. 36)

2. in the interest of public order or public health (art. 37)

3. in the interest of public order or morality (art. 38)

4. in the interest of the security of the State, friendly relation with foreign State, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence (art. 39)

5. in the interest of public order or morality (art. 41)

6. in the interest of the security of the State, public order, public morality or public health. (art. 43)

Parliament can impose reasonable restriction on the above mentioned fundamental rights.

C. Fundamental rights which have been practically left to the legislature.

In respect of the following rights parliament can impose any restrictions it pleases.

I. Right to protection of law (art. 31)

2. Protection of right to life and personal liberty (art. 32)

3. Right to lawful profession, occupation, trade or business (art. 40)

4. Right to acquire, hold, transfer or otherwise dispose of property (art. 42)

A court cannot examine the reasonability of the restriction; it can see the following two things only:

I. if the law imposing restriction is a valid one;

II. if the right has been infringed or abridged in accordance with the law.

It is important to note that during emergency under Part-IXA (section-141C) of our constitution president may on the written advice of the Prime Minister issue a proclamation suspending the enforcement of the fundamental rights during which the proclamation is in force. But in time of Non-party Caretaker Government no such permission or approval from the Chief adviser is necessary to declare an emergency by the president.

When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equally efficacious remedy than one can apply under article-102 for the implementation of those rights to the High Court Division through writ petition.

• Writ jurisdiction:

The term “Writ’ is not properly defined anywhere. Initially it was the royal prerogatives and was exercised by the king or queen as the fountain of justice. The Constitution of the Peoples Republic of Bangladesh provides 5 kinds of Writ although their name is not specifically used i.e.

(a) Writ of Habeas corpus i.e. have the body before the court i.e. if any person is arrested and taken in custody illegally then the court will direct the govt. or concerning authorities to produce the person before the court to determine whether the person is taken in custody without lawful authority or in an unlawful manner;

(b) Writ of Mandamus i.e. to issue a Rule directing the govt. or concerning authorities to do something which he/ she is bound to do;

(c) Writ of Prohibition i.e. to issue a Rule directing to the govt. or local authorities to~ refrain or abstain from doing something which he/ she is not entitled to do,

(d) Writ of Certiorari i.e. to quash the proceedings which is done by the govt. or local authorities exceeding their jurisdiction and in violation of the principles of natural justice;

(e) Writ of Quo-Warranto i.e. to show cause under which authority he is doing so or holding the posts.

When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equal efficacious remedy than one can apply under article-102 for the; implementation of those rights.

Only an aggrieved person can apply for writ of prohibition, mandamus and certiorari and anyone can apply for writ of habeas corpus and quo warranto.

A writ can be filed either against the government or against the local authorities or any person performing any functions in connection with the affairs of the Republic.

The High Court Division shall have no power to pass any interim order or other order in relation to any law to which article-47 applies.

Article-47 states compulsory acquisition, nationalization or requisition of any property or the control of management etc thereof whether temporarily or permanently by passing any law. in the Parliament for the effective implementation of the fundamental principles of state policy.

The right to file a ‘writ’ may be suspended under the emergency period as derived from articles 141A, 141B & 141C of our constitution under Article 102(1) a writ may be filed against any person for the enforcement of fundamental rights.

A writ can be filed under Article 135 of our constitution for dismissal of a govt. servant.

if provisions of any law are violated and no equally efficacious remedy is available, a writ may be filed. Even in case of the violation of fundamental rights by any individual a writ can be filed against him under article-102(I). But fundamental rights are rarely violated by an individual.

Posted from
Shoaib Rahman
LL.M. Advocate

(লেখাটি স্বত্ব সংরক্ষিত, অন্যত্র কপি/নকল বারিত।তবে স্বত্ব উল্লেখপূর্বক হুবহু প্রিন্ট অথবা শেয়ার করতে বাধা নেই।)


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