What are Human Rights ?
The term Human Rights which does not mean any right is used in a special sense. Human rights are those of legal and moral rights which can be claimed by any person for the very reason that he is a human being. These rights come with birth and are applicable to all people throughout the world irrespective of their race colour six language or political or other opinion. These are therefore those rights that are inherent in human person and without which they can not live as human beings. Human Rights are concerned with the dignity and worth of the individual.
Jaques Maritain says, The Human person possesses rights because of the very fact that it is a person possess rights because of the very fact that it is a person a whole a master of itself and its acts and which consequently is not merely a means to an end but an end which must be treated as such ——— these are things which are owed to man because of the very fact that he is man.
It is important to mention the comment of sridath Ramphal as to Human Rights the human condition and because the have they are fundamental and inalienable. More specifically they are born not of man but with man.
Human Rights have to inherent characteristics universal inherence and inalienability. These two characteristics distinguish the concept of Human Right from other right. Universal inherence means that these rights are universally in horrent in all human beings and anyone can claim these rights after his birth. Inalienability as an essential feature of Human Rights means that these rights can not be taken away. They can not be the object of sale or purchased or any kind of transfer. In this sense Human Rights are different from citizens rights which are protected by the positive law of the state and the state can any time take away or abolish any citizen’s right. But Human Rights are rights that existed before the state come into being and for this they are natural and inalienable rights.
What is Human Rights:
The word “human” evolved from Latin word “humanus” which means “any view in which interest of human welfare is central.
Human rights which are typically called natural rights of rights man are those rights that are inherent in human person and without which a man can not live as human being. Since human rights came with birth and every person is entitled to them because of the very fact that he or she is a human, they are applicable to all people throughout the world irrespective of their race, sex, colour, language, and religion, Political or other opinion. Human rights are concerned with the dignity and worth of the individual.
It is important to mention the comment of Sridath Ramphal as to human rights, “they have their origin in the fact o t e human condition, and because the have, they are fundamental and enable. More specifically they are born not of man but with man.”
Human rights therefore two inherent characteristics
- Universal inherence, and
But the term “inalienability does not apply to all human rights.
e.g. rights to property.
Everywhere human rights are being violated; there are some human rights which can be taken away by the State e.g. right to property, freedom of expression, right to assembly etc, on the ground of emergency or for the (so called ) welfare of the citizen.
The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognized by a positive law of a State and is maintained through enforcement machinery only then it becomes legal and enforceable right. It is, therefore, better to describe human rights as universal moral rights. In this regard Article-2(7) of UN charter may be adduce, “Nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit 1’ such matters to settlement under the present charter; but this principle shall not prejudice the application of enforcement measures under chapter VII.’
It is mentionable that chapter-VII discusses about “Action with respect to threats to the peace, breaches of the peace and acts of aggression.”
Historical Background of Human Rights:
The Charter of the United Nations for the first time internationalized human rights and Fundamental freedoms. Besides Islamic States, human rights law initially developed as a part of constitutional law of the individual States. Although some scholars claimed to be able to trace a rudimentary concept of human rights back to stoic philosophy of classical times via the natural law jurisprudence of Grotias and the jus natural of Roman law, it seems evident that of the modern concept are to be found in the English American and French revolution of the seventeenth and the eighteenths centuries. Magna Carta of 1215, The petition of Rights 1628 the Act of settlement. 1701. the American Declaration of 1776, e me can Bill of Rights. 1 of Rights of Man aged of Citizen. 1789. were miles in the road in which the individual acquired protection against the capricious acts of kings and despots and the right to lead a free life in a free society. The UN Charter ado the and signed on 6 June, 1 by the to a ten. It is possible to speak that of the advent of systematic within the in system is only with entry into force of that United Nations Charter on 24th October 1945. There are specifiable in the charter of human rights and freedom but no where does it catalogue or define them. The specific references are mentioned in the preamble of the UN Charter and in article-1(3). article- 13 (1) (b). article, article Para-2,article-68’ and article 76(C) of the Charter It is pertinent to mention that article10. article-56 and artic e-71 of the Charter also impliedly states for the promotion and protection of Human Rights. The Universal Declaration of Human Rights (PHR) adopted on_ 10(11 December 1984 gave the enumeration of “human rights and fundamental freedoms which was not ca exorcized or clearly defined in the charter. The Universal Declaration proclaims two broad categories of rights: civil and political rights on the one hand and economic, social and cultural rights on the other hand. Article-3 to 21 deals with civil and political rights while articles 22 to 7 deal wit economic, social and cultural rights. The philosophical postulates based are laid down as “All Human beings are born free and equal in dignity and rights”. The ‘Declaration is based on the Principle of equality and non-discrimination as regards the ‘enjoyment of all the rights and freedoms set forth in it for all without distinction as to race, sex, colours, language or religion. Everyone as a member of society, is entitled to t e economic, social and cultural rights which are indispensable for human dignity and the free development of personality, is another cornerstone of the Declaration.’0 Thus the’ concept of human rights has got its formal and cat al shape from’ the UDHR adopted by the UN in 1948 where twenty five rights have got their place. These 25’ rights of theses 25 rights are civil and political social and cultural rights according to the Declaration the rights and freedoms enumerate would. Constitute for the moment the catalogue of rights and freedoms to which reference is made in the Charter. It is accepted that the Declaration, as distinct from the two covenants, is or may not a legally binding documents.
Human rights in the constitution of Bangladesh:
18 fundamental rights have been enumerated in the Constitution commencing from Article 27 to 44. All of those rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups.
- Rights granted to all persons- citizens and no citizens alike. These are six rights enumerated in Articles 32, 33, 34, 35, 41 and 44 of the Constitution.
- 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.
- Fundamental Principles of State Policy:
- Participation of women in National life. Ant: Steps shall be taken to ensure participation of women in all spheres of national life.
- Democracy and human rights. The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed.
- The people shall own or control the instruments and means of production and distribution, and with this end in view ownership shall assume the following forms—
(a) State ownership, that is ownership by the State on behalf of the people through the creation of an efficient and dynamic nationalized public sector embracing the key sectors of the economy;
(b) Co-operative ownership, that is ownership by co-operatives on behalf of their members within such limits as may be prescribed by law; and
(c) Private ownership, that is ownership by individuals within such limits as may be prescribed by law.
- It shall be a fundamental responsibility of the State to emancipate the toiling masses—the peasants and workers—and backward sections of the people from all forms of exploitation.
- It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens
(a) The provision of the basic necessities of life, including food, clothing, shelter, education and medical care;
(b) the right to work, that is the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of work;
(c) the right to reasonable rest, recreation and leisure ; and
(d) the right to social security, that is to say, to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases.
- The State shall adopt effective measures to bring about a radical transformation in the rural areas through the promotion of an agricultural revolution, the provision of rural electrification, the development of cottage and other industries, and the improvement of education, communications and public health, in those areas, so as progressively to remove the disparity in the standards of living between the urban and the rural areas.
- The State shall adopt effective measures for the purpose of—
(a) Establishing a uniform. Mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law.
(b) Relating education to the needs of society and producing properly trained and motivated citizens to serve those needs;
(c) Removing Literacy within such time as may be determined by law.
- (1) The State shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and of drugs which are injurious to health.
(2) The State shall adopt effective measures to prevent prostitution and gambling.
- (1) The State shall endeavor to ensure equality of opportunity to all citizens.
(2) The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.
- (1) Work is a right, a duty and a matter of honour for every citizen who is capable of working, and everyone shall be paid for his work on the basis of the principle from each according to his abilities to each according to his work”.
(2) The State shall endeavor to create conditions in which, as a general principle, persons shall not be able to enjoy unearned incomes, and in which human labour in every form, intellectual and physical, shall become a fuller expression of creative endeavour and of the human personality.
- (1) It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property.
(2) Every person in the service of the Republic has a duty to strive at all times to serve the people.
- The State shall adopt measures to conserve the cultural traditions and heritage of the people, and so to foster and improve the national language, literature and the arts that all sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture.
- (1) The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference “in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter, and on the basis of those principles shall—
(a) Strive for the renunciation of the use of force in international relations and central and complete disarmament;
(b) Uphold the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice and
(c) support oppressed peoples throughout the world waging a just struggle against imperialism, colonialism or, racialism.
(1) The State shall endeavor to consolidate, preserve and strengthen fraternal relations among Muslim countries based on lslamic is solidarity.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
- All citizens are equal before law and are entitled to equal protection of law.
- (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.
- (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:
(c) 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.
No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.
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.
- No person shall be deprived of life or personal liberty saves in accordance with law.
(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-tour 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—
- 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:
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.
- (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 undergoing lawful punishment for a criminal offence or
(b) required by any law for public purposes.
- (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 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.
- Subject to any reasonable restrictions imposed by law in the public F interest, every citizen shall have the right to move freely throughout ~ Bangladesh, to reside and settle in any place therein and to leave and reenter Bangladesh.
- Every citizen shall have the right to assemble and to participate in F 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.
- 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:
- (1) Freedom of 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 to freedom of speech and expression and
(b) freedom of the press, are guaranteed.
- 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.
- (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. .
- (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 pf 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, nationalization or acquisition of any property without compensation.
- 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.
- (1) The right to move the High Court Division in accordance with clause of article 102, for the enforcement of the rights conferred by this Part is guaranteed.
(2) Without prejudice to the powers of the 2[High Court Division] under article 102, Parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
- Fundamental Principles of State Policy:
Modern states are welfare states and the principal purpose of such a state is public welfare. This trend of public welfare is being, to some extent, reflected in most of the written constitutions of states when they adopt some directive principles in their constitutions. The underlying philosophy behind the adoption of such principles is that they will obligate the state to take positive action in certain direction in order to promote the welfare of the people and achieve economic democracy.
The idea of directive principles in the Constitution was first introduced in the Irish Constitution of 1937. Article 45 of the Irish Constitution provides some principles under the head~ of Directive Principles of Social Policy.” Following this Irish example the idea has got place in the Burma (Mayanmar) in 1949 of India in 1950, of Pakistan in 1956 and 1962 and so has been the case of the Bangladesh, Constitution of 1972. The principles have been adopted under the heading of “Directive Principles of state Policy’ in the Indian Constitution “Principle of State Policy in the Pakistan Constitution of 1962 and “Fundamental Principles of state Policy” in Bangladesh constitution.
“Directive or Fundamental Principles of State Policy” as a term of constitutional jurisprudence has not got any universal definition. But as the term indicates it means primarily those principles which are considered fundamental in the matters of policy formulating by the government. From the view point of Bangladesh Constitution it may be said that Fundamental Principles of State policy are those principles which act as fundamental guide to the policy making, be it social, economic, administrative or international, governance of the country, making laws and interpreting the Constitution and laws.
Nature of Directive Principles
‘A distinguishing feature of directive principles which is invariably found in all constitutions adopting these principles is that these are not enforceable in a court of law This non-justifiability of these principles have paved the way for critics to portrait them in variety of descriptions.
First, these are described as ‘beau ideal” in the Constitution, i.e., the highest standard of excellence in the Constitution. Because they embody the principles of high ideals like economic emancipation, eradication of poverty, illiteracy etc.
Second, these are described as ‘veritable dustbin of sentiment,’ for they are the best idealistic words written down in the Constitution without providing anything for their enforcement. They are, therefore, nothing but the mere expression of good sentiment of the Constitution makers.
Third, these are sometimes described as ‘decorative in the Constitution.’ Tushar Chatterjee a communist member of Indian parliament beanery harsh in assessing the utility of the directives, T1enfed that he could not but feel that these solemn declarations in the Constitution were not directives but mere decorative in the constitution.
Professor K.C. Wheare has described them as ‘paragraphs of generation Constitution. He has severely critcised insertion of such decoratives in the Constitution. He has doubted “whether there is any gain, on balance, from introducing these paragraphs. of generalities into a Constitution anywhere at all, if it is intended that the Constitution should command the respect as well as the affection of the people. If the Constitution is to be taken seriously, the interpretation and fulfillment of these general objects of policy will raise great difficulties for courts and for legislatures into conflict and disrepute. If these declarations are, however, to be neglected, if they are to be treated as Swords’, they will bring discredit upon the
Professor Ivor Jennings has also questioned the reasonableness of in inserting such directives in a Constitution when he describes them as “the ghost of Sidney and Beatric Webb Stalk through the pages of the text” and “expression of Febian Socialism without socialism.”
Fourth, these principles are also described as “a moral homily on the one hand, and as a manifesto of aims and aspiration of the other hand”,2 for they are all principles relating to economic, social and cultural rights which are not a matter of immediate achievement. They are goals to which the state has to reach and, keeping in line with the socio-economic progress, the state will implement them step by step. They, therefore, work as programmes of the government.
Economic Social and Cultural Rights are Enumerated in the Directive Principles of State policy:
It has been almost a common feature of all the constitutions containing directive principles that the part of these directives of the Constitution contains economic, social and cultural rights whereas the part of fundamental rights contains civil and political rights. Economic, social and cultural rights lave found their origin primarily in the Socialist and Marxist revolution of the early 20th century. Following the S6cialist October revolution this new of citizens’ rights first got constitutional recognition in the Soviet Constitution of 1918. Thenceforth they are – being gradually included~ in most modern constitutions as ‘programme’ or ‘manifesto’ rights of a promotional nature. They are rights of promotional nature in the sense that their implementation and enforcement depends on the economic progress and availability of resources in the country. If these rights are placed in the part of fundamental rights of the Constitution, then the state would be legally bound to enforce them and the citizens would have a legal right to get them enforced through the courts and it would virtually lead a developing state with limited resources into a precarious problem. This is why all economic, social and cultural rights are placed in the part of directive principle as rights of a promotional nature not with any constitutional guarantee to enforce them immediately but with pledge to take steps to the maximum of available resources with a view to achieving progressively the full realization of these rights. On the other hand, the enforcement of civil and political rights is not necessarily connected with the economic progress and natural resources; they can be enforced in almost every circumstance.
Significance of the Directive Principles
Whei1 he directive principles are not judicially enforceable it is very natural to comment that they are mere decorative in the Constitution and most of the prominent writers, as mentioned earlier, have strongly criticized their inclusion in the Constitution. But it is not proper to says that they are totally useless. They have some important significance.
First, directive principles have great political importance. If the government fails to carry out these directives no court can compel the government to implement them. Yet these principles have been declared to be fundamental in the governance of the country and a government which rests oh popular vote can hardly ignore them. “If any government”, as Dr. Ambedker said, “ignores them, they will certainly have to answer before the colectbrate at the election time”. It is, therefore, not correct to criticise these principles as meaningless and useless. The actions of the government under democratic system are subject to scrutiny by the masses and the opposition. If the government, being in favourable situation and proper means to implement these, pursues a policy not in accordance with the principles or fails to implement these, it would be a patent weapon at the hand of the opposition to discredit the government. If the government violates fundamental rights it has to answer before the court but if it neglects directives it has to answer before the highest tribunal—the public opinion which will bring its ultimate fall in the next election. Thus the sanction behind directive principles is a political one which has a greater importance than fundamental rights in respect of keeping a continuing responsible government.
Second, the directives have a great role to play in the interpretation of the Constitution and other laws. Though courts can not declare a law invalid on the ground that it contravenes a directive principle, nevertheless the constitutional validity of many laws can be maintained, as has been done in India,’ with reference to the directives so that they do not serve as ‘mere homily’. Article 8(2) of the Constitution specifically allowed to refer to these principles for understanding the meaning of the provisions of the constitution which are doubtful or ambiguous. Moreover, like the Magna Carta in England and the Declaration of Independence in. America these directives are behind to influence the judges to a great extent in interpreting the Constitution and law. In interpreting fundamental rights the expressions like ‘public interest’, ‘public purpose’, ‘reasonable restriction’ etc. may be explained by the courts in the light of and paying due emphasis on these directives since the Constitution holds, them fundamental in the governance of the country.
Third, directive principles have both idealistic and educative value. They have idealistic value in the sense that they outline the ideal of a welfare society. They emphasise, in amplification of the preamble, that the goal of the body polity of the state is a welfare state where it has a positive duty to ensure to its citizens social and economic justice and dignity of individuals. And by the proper implementation of these directives that goal can be realised. They have educative value in the sense that they are permanent reminder for those in power for the time being that the goal of the state is to introduce economic democracy.
Conventions and Directive Principles
Some authors ventures to find similarities between the conventions in British constitutional system and directives in written constitution on the ground that like conventions directives are unenforceable and both are considered as fundamental to the governance of the state.1 Again, sometimes question like — In which sense may conventions of the British Constitution be compared with the fundamental principles of state policy ? – is seen in competitive examinations of the law faculties in Bangladesh. Such a question obviously brings the answerer into a precarious problem, for in true sense conventions of British constitutional system can, in no way, be compared with directives of written constitutions. Directives may have a resemblance with conventions on point of unenforceability or like this. But this resemblance or comparison is a quite different perspective; it has neither any relevancy nor does it bear any significance in the field of constitutional law; it does, in no way, touch the substance or philosophy of the two. Because what are conventions in British constitutional system are like steering wheel of the whole structure of the governmental system without which the British constitutional system would be unthinkable. The directive in a written constitution has nothing to do with it; they cannot be considered even an appendage to the actual working of the governmental system. Secondly, conventions in constitutional jurisprudence are political practices which develop from long time constitutional activities. Directives, on the other hand, are some principles concerning social, economic and cultural rights which nothing to do with political practice.
Directive Principle under the Constitution of Bangladesh
Unlike other written constitutions the directive principles in the Bangladesh Constitution have got their place under the heading of “Fundamental Principles of State Policy”. Articles 8—25 of part 11of the Constitution contain all the principles. Under article &of—the original Constitution of 1972 (i) Secularism, (ii) Nationalism, (iii) Socialism; and (iv) Democrats four principles were ~ principles and all other principles derived from these four as set out in part II were to constitute the whole body of fundamental principles of state policy. Articles 9, 10, 11 & 12 elaborated those four major principles. But during the first martial law regime a drastic change was made in these four major principles. Under this change the term ‘socialism meaning economic and social justice’ was substituted for the principle Socialism and the almighty Allah’ was substituted for the principle ‘secularism’. The elaboration under articles 9, 10, 11 & 12 were omitted and some new principles have been introduced in the place. Article 8, however, as it stands now deals with the following four major fundamental principles: (i) Absolute trust and faith in the Almighty Allah, (ii) Nationalism, (iii) Democracy; and (iv) Socialism meaning economic and social justice.
Fundamental Principles – Where to be applied
According to Article 8(2) the fundamental principles shall be applied in the following spheres:
(i) they shall be fundamental in governance of the country;
(ii) they shall be applied in making laws;
(iii) they shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh; and
(iv) they shall form the basis of all works of the state and of its citizens.
But they shall not be enforceable in a court of law.
Short Description of the Fundamental Principles
All the fundamental principles as set out in the Constitution may, for the convenience of study, be classified into following four groups.
- Fundamental Principles Relating to Economic Ideal
- Eradication of social and economic inequality [Art. 19(2)]
- Equitable distribution of wealth among citizens (ditto).
- Uniform level of economic development throughout the Republic (ditto).
- Rural electrification (Art. 16).
- Development of cottage and other industries (ditto).
- Improvement of education (ditto).
- Improvement of communication (ditto).
- A constant increase of productive forces through planned economic growth (Art. 15).
- A steady improvement in the material and cultural standard of living of the people (ditto).
- To secure the basic necessities of life including food, clothing, shelter, education and medical care (ditto).
- To ensure the right to a guaranteed employment at a reasonable wage (ditto).
- To secure the right to reasonable rest, recreation and leisure (ditto).
- To secure the right to public assistance in cases of undeserved want arising from unemployment, illness or disablement or suffered by widows or orphans or in old age, or in other such cases (ditto).
- For economic development state will ensure three types of ownerships state ownership, co-operative ownership and private ownership (Art. 13).
- Right to be paid on the basis of the principle—form each according to his abilities to each according to his work (Art. 20).
- Fundamental Principles Relating to Social Ideal
- Raising of the level of nutrition and the improvement of public health (Art. 18).
- Prevention of consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and of drugs which are injurious to health (ditto).
- Prevention of prostitution and gambling (ditto).
- Free and compulsory education for all children (Art. 17).
- Removing illiteracy (ditto).
- Emancipation of peasants and workers from all forms of exploitation (Art. 14).
- To ensure equality of opportunity to all citizens (Art. 19).
- Fundamental Principles Relating to Legal and Administrative Reforms
- Separation of judiciary from the executive (Art. 22)
- Conserving the cultural traditions and heritage of the people (Art. 23).
- Improving the national language, literature and the arts (ditto).
- Protection against disfigurement, damage or removal of all monuments, objects
or places of special artistic or historic importance or interest (Art. 24).
- Promotion of local government institutions (Art.9).
- Participation of women in all walks of national life (Art. 10).
- Fundamental Principles Relating to International Relations
International relations of our state shall be based on the following principles as enunciated in article 26:
- Respect for national sovereignty and equality.
- Non-interference in the internal affairs of other countries.
- Peaceful settlement of international disputes.
- Respect for international law and the principles enumerated in the UN Charter.
- Renunciation of the use of force in international relations and general and complete disarmament.
- Respect and support for the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice.
- Support for the oppressed peoples throughout the world waging a just struggle against imperialism, colonialism or racialism.
- To consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.
Implementation of Fundamental Principles in Bangladesh
32 years have passed since we achieved our independence. But none of fundamental principles have been implemented to its full swing. Rural electrification, promotion of cottage industries, separation of judiciary from the executive, eradication of poverty and unemployment, population control— all these are yet to be done. It, however, would be wrong to say that nothing has yet been achieved. To some extent rural electrification, communication development, women education etc. have been done. State has also passed law fixing a ceiling for the land to be possessed by an individual; it has made primary education free and compulsory; laws have been made as regards prohibition of intoxicating drinks and drugs. Much effective work, however, had not been done. It cannot be denied, however, that the problems like eradication poverty, achieving full employment, equitable distribution of national wealth, raising living standard are colossal, indeed, and no government whatever be its complexion can achieve miracles. Several decades may take to achieve the goals set forth in the fundamental principles.
Decisions on Fundamental Principles of State Policy Indian Jurisdiction
In Indian jurisdiction there have been a quite good number of decisions on the relationship between Fundamental Rights and Fundamental Principles of State policy. A close observation of some of these decisions will give an idea that the Indian Supreme Court has taken the following two approaches regarding the Directive Principles.
- Strict Legalistic Approach:
At the initial stage the Indian Supreme Court took the view that Directive Principles do not have much legal value. In the case of conflict between the two Fundamental Rights will prevail. This is evident from Sankari Prasad’s case (1952) SCR 89, Madras v. Champakan (1951) SCR 525 and In re Kerala Education Bill 1957 (1959) SCR 995.
- Harmonious Construction Approach:
Since the Go/ak Nath Case in 1967 the Indian Suprem Court has taken this approach. In Golaknath Case (1967) SCR 762 it was held that Fundamental Rights and Directive Principles form an “integrated scheme” and they should be given effect to as far as possible. Any collision between the two should be avoided.
In Fundamental Rights case it was held “the framers of our Constitution had conferred Fundamental Rights on the people by enacting Part ifi. Those rights were not an end in themselves but were the means to an end, the end being specified in Part IV.”
In Minerva Mills case Chandrachud C.J. held that FRs are means to achieving the objectives set out in the DPs. “The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part ifi. It is in this sense that Parts Il and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.”
Before the enactment of the 25 Amendment of the Constitution of India in 1971 the provision was that Fundamental Rights prevailed over Directive Principles and that a law enacted to implement a Directive Principles could not be valid if it conflicted with a Fundamental Rights. Article 31C was inserted by the Constitution (25th Amendment) Act 1971 and it protected laws giving effect to the Directive Principles laid down in Article 39(b) and (c) from unconstitutionality on the ground of contravention of
Articles 14 and 19 and 31. Article 31C as it stood before the 42m1 Amendment in 1976 was as follows:
“Notwithstanding anything contained in Article 13 no law giving effect to the policy of the state towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 or 31;
and no law containing a declaration that it is for giving effect to such policy shall be called into question in any court on the ground that it does not give effect to such policy.”
The objective behind Article 31C was to establish socialistic society. Article 3 1C had two parts. The first part protected a law giving effect to the policy of the state towards securing the principles specified in Article 39(b) and (c) from challenge on the ground of infringement of the rights under Articles 14, 19 and 31. The second part of Article 31C sought to oust the jurisdiction of the courts to find out whether the law in question gave effect to the principles of Article 39(b) and (c). Thus Article 31C paved way for enacting review proof legislation if such legislation was enacted to promote the policy laid down in Article 39(b) and (c) and the courts will not be able to scrutinise whether the law is enacted in fact to promote that policy.
The validity of the 25th Amendment introducing Article 3 1C was questioned in Keshavananda Bharti V. State of Kerala (Fundamental Rights case) AIR 1973 SC 1461. The SC held valid the first part of Article 3 1C which provided that a law giving effect to the principles laid down in clauses (b) and (c) of Article 39 would not be questioned on the ground that it is inconsistent with or took away the rights conferred by Articles 14, 19 and 31. However, the second part of Article 31C which provided that “No law containing a declaration that it is for the giving effect to such policy shall be called into question in any court of law on the ground that it does not give effect to such policy” was declared invalid.
Positive Aspect of Keshavananda:
(1) By upholding the first part of Article 31C the legislators in India have been conceded greater power to implement the socialist and socio-economic programmes.
(2) Invalidation of second part of Article 31C avoids the possibility of the state legislatures immunising all sorts of laws from judicial scrutiny.
(3) To prevent each and every legislature to enact review proof legislation in the name of Article 39(b) and (c) could have led to socio-economic chaos in the country.
(4) There should be a nexus between Articles 39(b) and (c) and the object of acquisition: where the inputs of valuation prescribed by the statutes are wholly irrelevant or unconnected with the social good, Article 31C may not be saved by the statute.
This means that a law enacted to implement Article 39(b) and (c) would not be challengeable under Articles 14 and 19, but the courts have the power to go into the question whether the law in question does really achieve these objectives or not. Thus when a law is challenged, the courts would. Have the power to consider whether it could reasonable be described as a law giving effect to the policy of the state towards securing the said aims.
In 1976 by the Constitution (42~’ Amendment) Act 1976 the scope of Article 31C was further extended. The first part of Article 3 1C now says that no law giving effect to any of the Directive Principles shall be deemed to be void on the ground of inconsistency with Articles 14 and 19. Thus primacy was given to Directive Principles over Fundamental Rights and the protection was extended to legislation for implementing of all or any of the Directive Principles’ enumerated in Part IV. The validity of this change in Article 31C came up in the Minerva Mills case AIR 1980 SC 1789. The Supreme Court struck down section 4 of the Constitution (42w’ Amendment) Act 1976 amending Article 31C giving primacy to Directive Principles over Fundamental Rights. Chandra HUD C.J. broke the doctrine that Directive Principles and Fundamental Rights supplement and complement each other; in case of conflict
Fundamental Rights must prevail. So the amended Article 31C which gave priority to laws implementing Directive Principles in Article 39(b) and (c) was held void because it “tore away the heart of basic fundamental freedoms.” Under the pretext of furthering the objectives found in the Directive Principles, the Fundamental Rights enshrined in Part H of the Constitution cannot stand abrogated and thereby relegated as becoming unenforceable and that would certainly amount to subverting the Constitution by destroying its basic features.
In Unni Krishnan Vs. State of A. P. (AIR 1993SC 2178) the Supreme Court held that Fundamental Rights and Directive Principles are supplementary and complementary to each other and Fundamental Rights must be construed in the light of the Directive Principles. The Court also held that Funamental Rights are but a means to achieve the goal indicated in the Directive Principles.
Bangladesh Supreme Court
The Directive Principles as they appear in the Constitution of Bangladesh have almost the same status compared to Indian Constitution. Article 8(2) specifically provides that these principles shall not be judicially enforceable. Again, Article 47(1) provides that parliament can make review proof legislation in certain specified matters stipulated in Article 47(1) with a view to implementing any of the Fundamental Principles in the Constitution. Unlike the Indian scheme this has been done in the very original Constitution of Bangladesh. Thus with reference to implementation of any of the Fundamental Principles parliament can make law or amend any existing law regarding six specified matters stipulated in Article 47(1) and if such law comes into conflict with any of the fundamental Rights, such law will not be void. In other words, parliament may make fundamental Rights subordinate to the Fundamental Principles in certain cases. This has been done with a view to adopting welfare measures in the country. There has so far been a very few cases dealing with the Fundamental Principles or the relationship between Fundamental Principles and Fundamental Rights. In Kudrat-e-Elahi V. Bangladesh 44 DLR (AD) 319 (1992) the appellant sought enforcement through Fundamental Principles.
Pressing in aid of the provision of Articles 7(2). The AJ~ held that these principles are not law and there is no question of application of Article 7. Article 9 and fundamental Principles are not judicially enforceable. They are in the nature of programme for social development.
Petitioners challenged the Constitutional validity of the Bangladesh Local Govternment (Upzilla Parishad and Upzilla Adminstration Re-organisation) (Repeal) Ordinance 1991 on the ground that this Ordinance is inconsistent with Articles 9, 11, 59 and 60 and as such it is void in terms of Article 7(2) of the Constitution.
Before understanding fundamental rights one should have idea about rights and human rights. Right means a claim of some interests adverse by an individual or a group of individuals which has either moral or legal basis and which is essential for his development in the society. In a sense right is not created by law; it or itself as an obvious result of mutual interaction between man and society Rights are primarily divided into two categories—rural rights and legal rights Moral rights are those rights which their basis The rule of natural justice and the violation of which results wrong Legal rights, on the other hand, are those rights which are recognised by the positive law of the country and can be claimed on legal basis and the violation’ of which results in legal wrong As mentioned earlier right originates in the society and remains as .a moral right go long it is not recognised by law. Where a law recognises it and secures its protection, it transforms into a legal right. All legal rights in this sense are right and the distinction between the two is one of degree rather than of form.
The term “human right which does not mean any right is used in a special sense Human rights are those of J al and moral right which can be claimed by any person for the very reason that he is a human being These rights come with birth and are applicable to all people thought the world irrespective of their race, colour sex language or political or other opinion. These are therefore those rights that are inherent in human person an without which they can not live as human beings. Jaques Marital says, “The human person possesses rights bossed of the very fact that it is a person, a whole, a master of itself and its acts and which consequently is not merely a means to an end but an end which must be treated as such these are things which are owed to man because of the very fact that he is man.” It is also pertinent here to mention the comment of Sridath Ramphal as to human rights —“They have their origin in the fact of the human condition, and because the have, they are fundamental and inalienable. More specifically, they were born not of man but with man.”
Human rights, therefore, have characteristics— universal inherence and inalienability These two characteristics distinguish the concept of human right from other right Universal inherence means that these rights are universally inherent in all human rights if bears and none can claim these rights after his birth Inalienability as an essential feature of human rights means that these rights cannot be taken away; they cannot be the object of sale or purchase or any kind of transfer. In this sense human rights are different from citizens’ rights2 which are protected by the positive law of the state and the state can any time take away or abolish any citizen’s right. But human rights are rights that existed before the state came into being and for this they are natural and inalienable rights.
It is noteworthy that if ‘inalienability’ is considered as an essential of human right danger and confusion. Because a perusal of all human rights will give the idea that this element app1y to all human rights. For example, right to property which is used in Article 17 of both the French Declaration on Rights of Man and Citizen, 1789 and the Universal Dec1artion of Human Rights, 1948 But that is undoubtedly at alienable common characteristic can therefore be found for human rights and that is ‘universal inherence. It is rather better to divide all human rights into two or basic human rights like right to life, food, shelter, basic necessaries of life, speech etc. and other human rights.
It is also important to indicate here that what has been told here so fir about human rights is the only theoretical side of human right while threat picture is quite different. Because everywhere human rights are being violated; there are some human rights which can be taken away by the state, e.g, right to nationality, right to property etc. The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognised by a positive law of state and is maintained through machinery then it becomes legal and enforceable right it is, therefore, better to describe human rights as universal moral rights.
The concept of human rights has got its formal and categorical shape from the Universal Declaration on Human Rights adopted by the UNO in 1948 where 25 human rights have got their place. These 25 rights are mostly referred to as human rights. Of these 25 rights 19 are civil and political rights and 6 are economic, social and cultural rights.
The term fundamental right is a technical one, for when certain human rights are written down in a Constitution and are protected by constitutional guarantees they are called. They called fundamental rights in the sense that they are place in the fundamental Taw of the 1aid which has a supreme ‘sanctity over all other law of the land.
Following the footsteps of the French Declaration of Rights of Man and Citizen 789 and the American Declaration of Independence, 1716 and then the Incorporation of a Bill of Right in the US Constitution in 1791 most of the democratic countries with written constitution ~ including a chapter for Bill Fundamental Rights with special sanctity. Why is such a trend being followed invariably in written constitutions?
The object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they can not be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them. The object of the incorporation of fundamental rights in the US Constitution was pointed out by Justice Jackson-
‘The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy; to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s fundamental rights may not be submitted to vote, they depend on the outcome of no elections.”
In Jibendra Kishor Y. The Province of East Pakistan the Supreme Court of Pakistan held
The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law.’
The same view was reaffirmed by the Pakistan Supreme court in State V.Dosso.3 The Indian Supreme Court in GolakNath V. State of Punjab held.
The declaration of the fundamental rights of the citizens are inalienable rights of the people ———The Constitution enables an individual to oppose successfully the whole community and the state to claim his right.”
Rights and freedoms form the bedrock of democracy. No democracy can function successfully in the absence of some basic freedoms. Again, modem democratic government is a party government. The party winning majority in the election form the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights of people and oppressing the opposition. The aim of having a declaration of fundamental rights in the Constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples’ basic rights according to its whims. When rights and freedoms are placed in the Constitution they become the part of the supreme law and the government cannot take them away except by constitution amending process which is always a rigid one. This is why insertion of a Bill of Rights in a written Constitution is considered to be one of the safeguards of democracy.
It is important to mention here that in Britain there is no Bill of Rights; no formal declaration of any fundamental right has ever been made. It does not, of course, mean that the rights of the people are less guaranteed in Britain. What are fundamental rights under written constitution arc all ordinary rights and freedoms rests not on constitutional guarantees but on supremacy of law i e the rule of public opinion and strong common law traditions. Though the British parliament, under the doctrine of parliamentary supremacy, can any time abridge or abolish any right of the it is the deep-rooted democratic traditions vigilant public opinion which act a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of doctrine of rule of law, answerable to the courts for any action which ‘Is contrary to the law of the land. But these conditions do not prevail in other countries which are composed of diverse elements, having no deep-rooted traditions of individual liberty. Secondly, almost all the modern countries emerging from the bondage of colonialism had a painful experience of denial of people’s right. They, therefore, felt that mere custom or tradition alone cannot provide to some basic rights the same protection as their importance deserves. ‘The unique English tradition”, as Bowic says, “is not simply exportable and other nations have generally felt that their governments need the constant reminder which a bill of rights provides, while their people need the reassurance which it can supply”.
Enforcement of Fundamental Rights
The insertion of fundamental rights in a constitution becomes meaning 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. Similarly if the legislature enacts any law which is inconsistent with any of 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 inalienable 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 the 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, cannot be enforced then the government would be useless. The importance of remedies to enforce fundamental rights has also got recognition in article 8 of the Universal Declaration of Human Rights, 1948 which states— “Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law.”
To this respect the Pakistan Supreme Court in Moudoodi V. Government held—
The basic principle underlying a declaration of Fundamental Rights in a Constitution is that it must be capable of being enforced not only against the executive but also against the legislature by judicial process.”
Constitutional Guarantees or Remedies
Though it is a claim of a written constitution embodying fundamental rights that effective constitutional remedies for the enforcement of fundamental rights should be provided for by the Constitution itself, practical experience teaches us that some of the written constitutions do not specifically provide for the remedies in the Constitution. The US and the French Constitutions are two of them. But most of the written constitutions provide for the right to constitutional remedies in case of violation of fundamental rights. This right to constitutional remedy has two dimensions—judicial review and judicial enforcement. Judicial review in relation to fundamental rights is provided for with a view to enforcing fundamental rights against the legislature. In other words, if the legislature passes any law which is inconsistent with the fundamental rights, the highest seat of the judiciary must have the jurisdiction to declare that law unconstitutional. The Supreme Court of Bangladesh can exercise this jurisdiction under Articles 26 and 102 of the Constitution.2 Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority violates any of the fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution and it should be guaranteed as of an independent fundamental right. This right is guaranteed and the High court Division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh constitution.
As mentioned earlier, the US Constitution incorporating a Bill of Rights does not specifically provide for constitutional remedies for the enforcement of fundamental rights. In other words, no right has been created, as has been in the Constitution of Bangladesh, India, Pakistan etc., in the US Constitution in favour of citizens to move the Supreme Court for the enforcement of any of the Bill of Rights. The direct enforcement procedure of fundamental rights in USA is dealt with the Judiciary Act of 1789 and the US Supreme Court hears the fundamental rights cases only in its appellate jurisdiction.3 In France the position is also a narrower one. The French Constitution provides neither any right to constitutional remedies nor is any court in France empowered to declare a law which is inconsistent with fundamental rights unconstitutional.
- Evolution and Development of Human Rights
The catalyst to which we owe the Universal Declaration of Human Rights and indeed much of new international law of Human Rights radically changed the theory and practice of the law of nations was the gross violations of human rights that were committed in and by certain countries during and immediately before the Second World War. For it was these atrocities that fostered the climate of world £opinion which made it possible for the Francisco make the promotion of respect for hump rights and fundamental freedoms “for all without distinction as to race, sex, language or religions, one of the pillars on which the United Nations was erected and a stated purpose of the Organization. It was on these foundations that the new international law of human rights was built.
The international efforts made in the realm of human rights before the adoption of the UN Charter were not universal in nature. Besides Islamic States human rights law initially developed as a part of the constitutional law of the individual states. The classic doctrine of international law had no place for human rights at all. According to Oppenheim “The so-called rights of man can not enjoy any protection under international law, because that law is concerned solely with the relation between states and can not confer rights on individual.”
Two overlapping propositions.
Before 2nd world international lack of interest in human rights was often expressed in twp overlapping propositions individual is not a subject, of international law: (ii) how a state treats its own inhabitants is its own concern or affair.
In ancient time the concept of human rights was scattered and originated through various religion.
The factors which influenced the development of human rights law in’ the medieval period are (a) Christianity, (b) Chivalry and (c) Islam.
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