Protection of Human Rights and Fundamental Principles of State Policy: An Analysis of the Bangladesh Constitution

- Md Sazzad Hossain & Md Rafiqul Islam Hossaini

1

Published On - October 4, 2017 [Vol. 7, Jul - Dec, 2017]

Introduction:

The protection of human rights is one of the most concerning issues across the world and Bangladesh is not an exception to this. Constitution of the People’s Republic of Bangladesh is known as the supreme law of the country. The Constitution manifests the rules and regulation by which the State and its citizen shall be governed. Part II (Articles 8-25) of the Constitution of the People’s Republic of Bangladesh broadly discusses the Fundamental principles of state policy. Protection of human rights is one of the core concepts in the Constitution of Bangladesh. Human rights are the rights that are “derived from the inherent dignity of the human beings.” The crucial ideas that need to be explicated at the level of conceptions are rights, persons, and (inherent) human dignity; once this is done, it is relatively easy, even if still controversial, to develop a list.[1]  The human rights of the people of the Bangladesh have been also vested in Part II as fundamental principal of state policy of the constitution of Bangladesh, apart from Part III of the Constitution of Bangladesh.

The Constitution of Bangladesh and the Fundamental principle of state policy:

In the original Constitution of 1972 there were 4 basic principles, they were- Nationalism, Secularism, Socialism and Democracy. However, another principle namely “Absolute trust and faith in the Almighty Allah shall be the basis of all actions” has later replaced the principle of Secularism. The principle of Secularism has been reincorporated by the 15th Amendment of the Constitution.  Article 8 (1) the principles that derives from Part II of the constitution and the principles of nationalism, socialism, democracy and secularism, shall constitute the fundamental principles of state policy. For making laws and for the interpretation of the Constitution and other laws of Bangladesh these principles shall play as a controlling mechanism. In addition to that, it is affirmed that these principles shall not be enforceable by the judiciary and shall be the basis of the work of the state and its citizens.[2] Article 9 provides that, the unity and solidarity of the Bangalee nation is the basis of Bangalee nationalism, which has been attained through sharing common language and culture and attaining independence and sovereignty of Bangladesh through a determined struggling war of independence.[3]

Fundamental Principle of State Policy, Equality and Human Rights:

The principle of Socialism and freedom from exploitation has been discussed in Article 10 of the Constitution. This Article provides that, in terms of economic system socialism shall be established to ensure justice and equality of all people, where there will be no exploitation of man by another man. To ensure justice, equality and human rights of all people and to stop exploitation of people, socialism is a fundamental principle of sate policy which ensures an economic system based on state ownership of capital.[4] By the proper implementation of this fundamental principle justice and equality as well as prevention of further exploitation of man can be assured, thus the constitutional protection of the human rights can also be achieved. But the State has not yet achieved this goal through the proper implementation of this principle. Vast work has to be done for the complete implementation of this principle.

The principle of Equality of opportunity, as a fundamental principle of state policy, has been ensured in Article19 of the Constitution. It is ensured that, it is the responsibility of the State to ensure equal opportunity for all of its citizens. The principal of equality is the one of the basic principle of the human rights regime and without ensuring the equality; it is not possible to uphold rule of law and human rights in the society. It is the duty of the State to take all necessary initiatives for removing social and economic inequality between its citizens. It is the duty of the State to ensure equitable distribution of wealth and opportunities to acquire uniform level of economic development of the Republic. In addition to that, it is the responsibility of the State to ensure equal opportunity and participation of female citizens of the State in all spheres of national life.[5] In most of the sectors of the State the equal opportunity for male and female citizens has been ensured but the expected level has yet not been achieved. However, in the recent philosophical literature on equality and the modern practice of Bangladesh, a mystifying connection can be found as the modern human rights movement is one of the most powerful manifestation of the commitment to equality. The new philosophical theories of egalitarianism have proceeded as if there were no human rights movement or as if the idea of human rights was not an important expression of the commitment to equality. Thus the minimalist egalitarianism of human rights and the more strong egalitarianism of contemporary philosophical views of equality can be reconciled. But the concerning issue of this concept is the failure to concern about global inequalities and abandoning the assumption that one can develop an adequate theory of equality for the national case without theorizing about global justice.[6]

A significant principle of Emancipation of peasants and workers is considered in Article 14 of the Constitution of the Peoples Republic of Bangladesh. This Article of the Constitution affirms this principle as a fundamental responsibility of the state to emancipate the toiling masses, the peasants & workers and backward sections of the people from all forms of exploitation. This Article of the Constitution governs as a safeguard principle for the society as a whole. As per this Article it is a responsibility of the State to emancipate all sort of exploitation of peasants, workers and backward sections of the people.[7] This fundamental principle has also not been completely implemented as there is still exploitation of the workers and backward section of the society and the imprecation of child labour. The State is still striving for the implementation of this principle through different laws and mechanisms. However, Article 20 of the Constitution deals with the fundamental principle of Work as a right and duty. According to this Article, work is assured as a right and duty as well as a matter of honour for all citizens. Payment for the work of every citizen according to his abilities and according to his work has been confirmed by this significant Article. In this Article the principle of work has been given significant importance as the enjoyment of unearned incomes has been discouraged in this Article and all sort of human labour, intellectual and physical efforts has been given much more importance.[8]

Rural development and agricultural revolution as a principle of state policy has been discussed in Article 16 of the Constitution. Article 16 of the Constitution states, to remove the inequality in respect of standard of living between rural and urban areas, the State shall take effective measures for ensuring radical improvement in the rural areas through agricultural revolution. Moreover, for the purpose of rural development educational improvement, rural electrification, development of cottage and other industries, public health and communication in those areas should also be ensured by the State. Without the development of the rural areas the development of the country cannot be imagined. As the fundamental principles are enforceable by the State, it is the responsibility of the State to take all necessary initiatives for the development of rural areas in order to uphold human rights among the people of Bangladesh. The State has taken magnificent steps and still striving for the implementation of this principle but this principle has not been completely implemented because of several obstacles.

Fundamental Principal of State Policy, Freedom of Religion and Human Rights:

The concept of freedom of religion or believe has been well recognised as an international human rights. Thought recently there is controversy regarding its status as a human right by undermining the principles of universalism, freedom, and equality; for example: combating defamation of religions, preserving a state imposed interreligious harmony, or promoting ideological versions of state secularism.[9] However, the main idea of the freedom of religion is that individuals are free about their beliefs on religious matters against a wide, secure background regime of freedom of speech and expression and should be free to join together or not to join.[10] The principle of Secularism and freedom of religion has been considered in Article 12 of the Constitution of Bangladesh. Considering Article 12 of the Constitution, secularism can be acquired by eliminating all sort of communalism, by not granting political status in favour of any particular religion, by blocking abuse of religion for political purposes, by non-discrimination against any person practicing a particular religion. However, this Article of the Constitution ensures the removal of communalism and no particular religion shall be given political status. Moreover, abuse of religion for political purposes has been stopped and the freedom of the citizens to perform any religion has been guaranteed by this significant Article of the Constitution.[11] This fundamental principle has not also been completely implemented as there is still religion based political parties in the State and the religion is being abused for political purposes. Politicization of religion should be stopped for the proper implementation of this principle. Thus, secularism would help understand about the approach of the mutual understanding among the religious groups, within the nation, to respect one another without any discrimination that can uphold the human rights and peace in the society.[12]

Fundamental Principal of State Policy, Basic Necessities and Human Rights

The failure of the social and economic system to achieve a basic minimum condition of life, securing the access to basic social and economic goods and services, for millions of people in the third world became the concerning issue to the economists, philosophers and human rights advocates.[13] However, Article 15 of the Constitution of Bangladesh deals with the provision of basic necessities. Article 15 confirms that it is the responsibility of the Sate to attain constant increased production forces and to improve the material and cultural standard of living of the people through a planned economic growth. In this regard the State shall also secure the basic necessities of life including food, clothing, shelter, education and medical care. In respect of quantity and quality of work, the right to work that includes right to guaranteed employment at a reasonable wage should also be secured by the State for its citizens. Respecting workers, the State shall secure the right to reasonable rest, recreation and leisure of the workers. According to this principle the State shall secure for its citizens the right to social security and public assistance in case of unemployment, illness or disablement, or suffering widows or orphans or old age people or in other such cases. However, it is the fundamental responsibility of the State to ensure the basic necessities of the citizens, ensure employment for its people, and to provide social security and public assistance in case of hardship of the citizens.[14] The State has taken tremendous steps for the implementation of this fundamental principle through enforcing different laws and regulations but could not achieve the expected goal yet, thus the goal to protect the human rights of the citizens can be achieved.

Moreover, free and compulsory education, which is another fundamental principle of state policy, is discussed in Article 17 of the Constitution. According to Article 17 of the Constitution, it is the responsibility of the State to take necessary steps to ensure uniform, universal system of education, and ensure free and compulsory education to all children to a certain stage as determined by law. Moreover, the  State shall  also  relate the education to the  need  of the  society and  also  make initiatives to  produce trained and motivated people to serve those  needs. In addition to that, as per Article 17 it is the responsibility of the State to take necessary steps for removing illiteracy within a prescribed period of time.[15] The state has take tremendous step for ensuring free and compulsory primary education and is very close to achieve the expected goal but the curse of illiteracy has not yet been overcome.

Furthermore, Public Health and Morality as a fundamental principle of state policy has been incorporated into Article 18 of the Constitution. As per this Article it is a primary duty of the State to raise the level of nutrition and improve public health. Moreover, taking effective measures to prevent consumption of alcohol and other intoxicating drinks and drugs which are injurious to health except for medical purposes and prescribed lawful purposes is another significant duty of the State. Furthermore, in terms of morality it is the duty of the State to adopt efficient measures to prevent prostitution and gambling.[16] For raising nutrition level and to improve public health, the mechanisms taken by the State cannot be ignored but this principle also has not achieved the expected goal yet. Moreover, the problem respecting abuse of drugs should also be assured through the proper implementation of laws.

Additionally, the protection and improvement of environment and biodiversity is another fundamental principle of State policy which is ensured in Article 18A of the Constitution. It is stated that, it is the duty of the State to take initiatives to protect and improve environment. For present and future citizens of the country, it is a duty of the State to preserve and safeguard natural resources, bio-diversity, wetlands, forests and wild life.[17] The State has passed several laws and has taken different steps for the protection of environment and the improvement of biodiversity but the State has not yet achieved the expected goal.

Culture, Heritage and monument and Human Rights:

Article 23 of the Constitution covers National culture as a fundamental principle of state policy.  This Article confirms a duty upon the State to preserve cultural traditions and heritage of the citizens and to improve the national language, literature and the arts. Moreover, it is confirmed that for the enrichment of the national culture all section of the people may have the opportunity to contribute and participate.[18] Even the United Nations calls for universal human rights in order to protect the heritage and culture of society as individuals belonging to various cultural groups. In this regards Elazar Barkan believe that although a universal minimum of human rights exists, “many ‘universal’ rights have meaning mostly as they are applied within local variation.”[19] However, Article 23A of the Constitution deals with the culture of tribes, minor races, ethnic sects and communities. This important Article assures that it a fundamental duty of the State to take necessary measures for the protection and development of unique local culture and tradition of the tribes, minor races, ethnic sects and communities. As such the culture of tribes, minor races, ethnic sects and communities has been significantly preserved by this Article of the Constitution. Moreover, UNESCO’s Declaration on the International Destruction of Cultural Heritage 2003 mentioned that “cultural heritage is an important component of the cultural identity of communities, groups and individuals, and or social cohesion; so that it’s intentional destruction may have adverse consequences on human dignity and human rights.”[20] Thus, Article 24 of the Constitution deals with National monuments. This Article of the Constitution confers a duty upon the State to ensure the protection of national monument, so that none can disfigure or damage or remove such monuments. Moreover, the objects or places of special artistic or historic importance have also been given protection by this Article.[21]

Promotion of International peace, security, solidarity and Human Rights:

Article 25 of the Constitution covers the Promotion of International peace, security and solidarity as a fundamental principle of State policy. This Article provides that it is a duty of the State to show respect for national sovereignty and equality and not to interfere in the internal affairs of other countries and to settle international disputes peacefully and to show respect for international law and principles enunciated in the United Nations Charter, where the main focus is to establish rule of law and uphold human rights. In this regard, the State shall not use force in international relations and shall strive for general and complete disarmament.[22] Moreover, the right of every person to freely determine and build up its own social, economic and political system by ways and means of its own free choice has been preserved by this Article. In addition to that, a just struggle against imperialism, colonialism or racialism may also be supported by the State.[23]

Citizens, Public Servant and judicial responsibility:

Duties of citizens and of public servants, as a fundamental principle of state policy, have been considered in Article 21 of the Constitution of the Peoples’ Republic of Bangladesh. Several duties are conferred to the citizens and public servants by this Article, which is also linked with the human rights of the citizens of Bangladesh. According to this Article, every citizen of the State also has a duty to show respect towards the Constitution and other laws of the State and to maintain discipline and to perform public duties as well as to protect public property. Moreover, this Article confirms that it is the duty of every person in the service of the Republic to give full effort to serve the people at all times.[24]

However, the separation of Judiciary from the executive, a fundamental principle of State policy, is ensured in Article 22 of the Constitution. In this Article it is assured that it is a fundamental duty of the State to ensure separation of judiciary from the executive organs of the State.[25] The historical Masder Hossain case which is also known as “judicial independence” or the “separation of judiciary” case has given significant guidelines to the government for ensuring separation of judiciary from the executive. As the Supreme Court is the guardian of the Constitution and the fundamental principles are not enforceable by the judiciary, the Appellate Division provided directions to the State for its enforceability.[26]

Conclusion:

In conclusion it can be said that, it has been about 45 years since we have achieved our independence and got a sovereign country. But only few of the fundamental principle of state policy have been assured completely till today, thought under the fundamental rights the limit seems more extensive. Implementations of vast works are yet to done for the complete implementation of the fundamental principles of state policy. The State has taken significant steps in respect of implementation of most of the fundamental principles of state policy; for example: power supply in rural area, free and compulsory primary education, equality of man and woman. Some of the fundamental principles of the state have yet to be achieved in order to get the targeted human rights protection and the State should ensure complete implementation of those principles; for example- emancipation of peasants and workers, basic necessities, public health and morality, protection and improvement of environment and bio-diversity, equality of opportunity. Though the State is striving, much more effective works have not been done yet for the complete implementation of the fundamental principles of state policy. In this regard the socio-economic perspective of the Republic cannot be ignored. The fundamental principles of the state policy can never be implemented with a miracle. Several decades may be needed to achieve the goal of complete implementation of the fundamental principles as there are still some unavoidable problems in the State like-poverty, unequal distribution of property, unemployment, unequal opportunity and participation.[27]

Notes:

[1] Cole, M. ed., 2011. Education, equality and human rights: issues of gender,’race’, sexuality, disability and social class. Routledge. Pp 1-6.

[2] Article 8, the Constitution of the People’s Republic of Bangladesh

[3] Article 9, the Constitution of the People’s Republic of Bangladesh

[4] Article 10, the Constitution of the People’s Republic of Bangladesh

[5] Article 19, the Constitution of the People’s Republic of Bangladesh

[6] Buchanan, A., 2005. Equality and human rights. Politics, philosophy & economics, SAGE Publications Ltd

London, 4(1), pp.69-90.

[7] Article 14, the Constitution of the People’s Republic of Bangladesh

[8] Article 20, the Constitution of the People’s Republic of Bangladesh

[9] Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), pp.33-68.

[10] Arneson, R.J., 2016. Freedom and Religion. In The Oxford Handbook of Freedom.

[11] Article 12, the Constitution of the People’s Republic of Bangladesh

[12] Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), pp.33-68.

[13] Stewart, F., 1989. Basic needs strategies, human rights, and the right to development. Human Rights Quarterly, 11(3), pp.347-374

[14] Article 15, the Constitution of the People’s Republic of Bangladesh

[15] Article 17, the Constitution of the People’s Republic of Bangladesh

[16] Article 18, the Constitution of the People’s Republic of Bangladesh

[17] Article 18A, the Constitution of the People’s Republic of Bangladesh

[18] Article 23, the Constitution of the People’s Republic of Bangladesh

[19] Silverman, H. and Ruggles, D.F., 2007. Cultural heritage and human rights. Cultural heritage and human rights (pp. 3-29). Springer New York.

[20]ibid.

[21] Article 24, the Constitution of the People’s Republic of Bangladesh

[22] Article 25, the Constitution of the People’s Republic of Bangladesh

[23] Islam, Mahmudul, Constitutional Law of Bangladesh, (Dhaka: Bangladesh Institute of Law and International Affairs, 1995).

[24] Article 21, the Constitution of the People’s Republic of Bangladesh

[25] Article 22, the Constitution of the People’s Republic of Bangladesh

[26] http://www.thedailystar.net/independence-of-the-judiciary-the-masdar-case-14760

[27] Halim, M., A. “Constitution, constitutional law and politics: Bangladesh perspective.” (Dhaka:2008).

REFERENCES:

Arneson, R.J., 2016. Freedom and Religion. In The Oxford Handbook of Freedom.

Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), pp.33-68.

Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), pp.33-68.

Buchanan, A., 2005. Equality and human rights. Politics, philosophy & economics, SAGE Publications Ltd. London, 4(1), pp.69-90.

Cole, M. ed., 2011. Education, equality and human rights: issues of gender,’race’, sexuality, disability and social class. Routledge. Pp 1-6.

Halim, M., A. “Constitution, constitutional law and politics: Bangladesh perspective.” (Dhaka:2008).

Halim, Md., Constitution, constitutional law and politics: Bangladesh perspective, (Dhaka:2008).

http://www.thedailystar.net/independence-of-the-judiciary-the-masdar-case-14760

Islam, Mahmudul, Constitutional Law of Bangladesh, (Dhaka: Bangladesh Institute of Law and International Affairs, 1995).

Islam, Mahmudul, Constitutional Law of Bangladesh, (Dhaka: Bangladesh Institute of Law and International Affairs, 1995).

Mustafa Kamal J, Bangladesh Constitution: Trends and Issues (Dhaka: UPL, 1994)

Stewart, F., 1989. Basic needs strategies, human rights, and the right to development. Human Rights Quarterly, 11(3), pp.347-374 and human rights (pp. 3-29). Springer New York.

The Constitution of the People’s Republic of Bangladesh.

About The Writer

Article Author Image

Md Sazzad Hossain & Md Rafiqul Islam Hossaini

//

Md Sazzad Hossain - "LLM-International Human Rights and Development(London South Bank University, UK), LLB Hon’s (University of London, UK)" and Md Rafiqul Islam Hossaini - "M.Phil Researcher (University of Dhaka), LLM ( Jagannath University, Dhaka), LLB Hon’s (University of London, UK)"

Share:  



Welcome To "Law Journal BD"

Rafiqul Haque

“Law Journal BD” is a timely and innovative step towards the growth and development of law. The Journal is a combination of articles from experts which will broaden the scope of our legal instrument and jurisprudence. I sincerely hope the initiative will help the lawyers to be more informed & committed to struggle for justice. It would be more appropriate to consider it as a work of compilation of contributions from various jurists, practitioners and academicians. The “Law Journal BD” publishes articles on all aspects of law.

I deeply appreciate the efforts of the Editor and the whole team of “Law Journal BD”. It is a great contribution to Bangladesh judiciary. The journal publishes articles on all areas of law and I believe the articles will be very helpful to researchers, legal scholars, practitioners, law consultants and moreover to Law students. I am really thankful to both , who are contributing their valuable articles for publication and who are reading the articles for enhancing knowledge of law.


Thanks to all the readers of “Law Journal BD”.


Barrister Rafique - Ul Huq

Senior Advocate, Supreme Court of Bangladesh

Chief Advisor, “Law Journal BD”

Mahfuzur Rahman

The “Law Journal BD” is the first Online Law journal in Bangladesh which specifically publishes law articles only. You will find here different kind of research based articles on various Law topics. The primary function of the journal is to publish lengthy comprehensive treatments of articles generally written by law academicians, Judges, or legal practitioners. A significant feature is that the distinguished writers analyze judicial decisions, contemporary developments of law, legislation and current law reform.

The important features of the journal are the sections of Book Review and Biography of renowned person in legal field. The articles are published as a six months volume & then it will be found in the “Previous Publications” section. The “Law Journal BD” has the efficient team of learned advisors and experienced team of editors. All articles are subjected to a rigorous editorial process in order to strengthen substance, polish tone and ensure citation accuracy.



We thank you sincerely for reading “Law Journal BD”.


Barrister Md. Mahfuzur Rahman (Milon)

Advocate, Supreme Court of Bangladesh

Editor, “Law Journal BD”