__MAIN_TEXT__

Page 1

THE RELATIONSHIP BETWEEN HUMAN RIGHTS & FUNDAMENTAL RIGHTS: SUSTAINABLE DEVELOPMENT Chapter 1 Introductory Introduction The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 outlines what is considered in this century to be the fundamental consensus on the human rights of all people in relation to such matters as security of person, slavery, torture, protection of the law, freedom of movement & speech, religion, and assembly, and rights to social security, work, health, education, culture, & citizenship. It clearly stipulates that these human rights apply to all equally "without distinction of any kind such as race, color, sex, language... or other status" (Art.2). Obviously, then, the human rights delineated by the Universal Declaration are to be understood as applying to women. However, tradition, prejudice, social, economic and political interests have combined to exclude women from prevailing definitions of "general" human rights and to relegate women to secondary and/or "special interest" status within human rights considerations. This marginalization of women in the world of human rights has been a reflection of gender inequity in the world at large and has also had a formidable impact on women's lives. It has contributed to the perpetuation, and indeed the condoning, of women's subordinate status. It has limited the scope of what was seen as governmental responsibility, and thus has made the process of seeking redress for human rights violations disproportionately difficult for women and in many cases outright impossible. The division between the so-called "public" has compounded the difficulties posed by women's peripheral status within international human rights mechanisms and organizations and "private" spheres prevalent in so many societies. The pervasive division of life into "public" and "private" spheres has its roots in the desire to limit the jurisdiction of the government. In many countries, this has meant that what individuals do in the "public" sphere is subject to regulation, while activities taking place in the "private" sphere are thought to be exempt from governmental scrutiny. Since this "public" sphere is seen as the focus of interaction between state actors and citizens, abuses of that relationship have been the focus of international human rights advocacy. Of course, the status of citizen has often been exclusionary, formally or informally entailing gender, racial and socio-economic bias and privileges. Thus, for those citizens-primarily men-who predominate in public and governmental realms and who enjoy gender, racial and economic privilege, the issues of primary concern have tended to be those abuses to which they are most vulnerable-abuses of civil and political aspects of human rights such as the violation of the right to speech, arbitrary detention, torture during imprisonment, and summary execution. While women have been able to invoke international human rights machinery when they have found themselves in such situations, some of their specifically gender experiences of such human rights abuse-for example, rape in detention-have not been visible within the prevailing definitions of abuse. This is because women have traditionally been relegated to the "private" sphere of the home and family; the typical citizen has been portrayed as male,


and thus the dominant notions of human rights abuse have implicitly had a man as their archetype. A major effect of the gender nature of the public/private split is that human rights violations of women that occur between "private" individuals have been made invisible and deemed to be beyond the purview of the state. It is particularly important to note that gender is a significant factor in the decisions of governments to intervene in the so-called private sphere to prosecute human rights violations. For example, many activities that take place in the private sphere, such as murder between siblings or the systematic enslavement African peoples in the Americas, are subject to government censure internationally. However, governments overlook much of what happens to women at the hands of men and male family members, for example domestic violence or confinement, even when there are laws against such abuse. Thus, abuses done to women in the name of family, religion, and culture have been hidden by the sanctity of the so-called private sphere, and perpetrators of such human rights violations have enjoyed immunity from accountability for their actions. 1.1 The Concept of Women's Human Rights During the United Nations Decade for Women (1976-1985), women from many geographical, racial, religious, cultural, and class backgrounds took up organizing to improve the status of women. The United Nations-sponsored women's conferences, which took place in Mexico City in 1975, Copenhagen in 1980, and Nairobi in 1985, were convened to evaluate the status of women and to formulate strategies for women's advancement. These conferences were critical venues at which women came together, debated their differences and discovered their commonalties, and gradually began learning to bridge differences to create a global movement. In the late eighties and early nineties, women in diverse countries took up the human rights framework and began developing the analytic and political tools that together constitute the ideas and practices of women's human rights. Taking up the human rights framework has involved a double shift in thinking about human rights and talking about women's lives. Put quite simply, it has entailed examining the human rights framework through a gender lens, and describing women's lives through a human rights framework. In looking at the human rights framework from women's perspectives, women have shown how current human rights definitions and practices fail to account for the ways in which already recognized human rights abuses often affect women differently because of their gender. This approach acknowledges the importance of the existing concepts and activities, but also points out that there are dimensions within these received definitions that are gender-specific and that need to be addressed if the mechanisms, programs, and the human rights framework itself are to include and reflect the experiences of the female half of the world's population. 1.2 What are fundamental rights Before understanding fundamental rights one should have idea about rights and human rights. Right means a claim of some interests ad versed 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 originates itself as an obvious result of mutual interaction between man and society. Rights are primarily divided into two categories—moral rights and 1ega1 rights. Moral rights are those rights which have their basis on the rule of natural justice and the violation of which results in moral wrong. Legal rights, on the other hand, are those rights which are recognized 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 so long it is not recognized by law. Whenever a law recognizes it and secures its protection, it transforms into a legal right. All legal rights in this sense are moral rights and


the distinction between the two is one of degree rather than of form. 1.3 What is human right The term “human right” 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, color, sex, language or political or other opinion. These are, therefore, those rights that are inherent in human person and without which they cannot live as human beings.’ Jacques Maritain says, “The human person possesses 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 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.”1 Human rights, therefore, have two 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 inherent 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 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’ 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 came into being and for this they are natural and inalienable rights.2 It is noteworthy that if ‘inalienability’ is considered as an essential element of human rights, there is a danger and confusion. Because a perusal of all human rights will give the idea that this element does not apply to all human rights. For example, right to property which is recognized in Article 17 of both the French Declaration on Rights of Man and Citizen, 1789 and the Universal Declaration of Human Rights, 1948. But this right is undoubtedly an alienable right. Only one 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 categories—fundamental or basic human rights like right to life, food, shelter, and basic necessaries of life, speech etc. and other human rights.3 It is also important to indicate here that what has been told here so far about human rights is the only theoretical side of human right while the real 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 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. 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 rights 25 rights are civil and political rights and 6 are economic, social and political rights and 6 are 1

1. M Ershadul huque, Human Rights and Violation, 1st ed.(Dhaka: Shams Publication), p.19. 22 .Kazi Akter, Human Rights: Self-determination & The Right to Resistance, (Dhaka : Bhuiyan Academy, 1994), p.25. 3 3. Van Deurem, the International Demension on Human rights, Vol-1 pp. 43-59.


economic, social and cultural rights. 1.4 Concept of fundamental 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 fundamental rights. They are called fundamental rights in the sense that they are placed in the supreme or fundamental law of the land 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, 1789 and the American Declaration of Independence, 1776 and then the incorporation of a Bill of Right in the US Constitution in 1791 most of the democratic countries with written constitution are including a chapter for Bill of Rights or 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.”4 In Jibendra Kishor v. 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. The Indian Supreme Court in Golak Nath v. State of Punjab5 held— “The declaration of the fundamental rights of the citizens is 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, modern 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 4 .

4 In West Virginia State Board of Education v. Barnette, 319 US 638. State v. Dosso, Golak v. State, PLD 1957 SC (PAK) 9.

5


rights of the people are less guaranteed in Britain. What are fundamental rights under written constitution are all ordinary rights in Britain. There the protection of rights and freedoms rests not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law traditions. Though the British parliament, under the doctrine of parliamentary supremacy, can any time abridge, modify or abolish any right of the people, it is the deep-rooted democratic traditions and vigilant public opinion which act as 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 law and it is, under the 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” 1.5 Distinction between human rights and fundamental rights Firstly, all fundamental rights are human rights but all human rights are not fundamental rights. Fundamental rights are those of human rights which are placed in a written constitution. Human rights, therefore, are the whole of which fundamental rights are a part. Secondly, the source of a fundamental right is the Constitution whereas the source of human rights is the international law. Thirdly, Fundamental rights have territorial limitations, Such as they have no application as fundamental rights outside the territory of a particular state. But human rights have no territorial limitations; they have universal application. Chapter 2 Human Rights in the Constitution of Bangladesh 2.1 Enforcement of Fundamental Rights The insertion of fundamental rights in a constitution becomes meaningless 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 the fundamental rights, 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.”6 2.2 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. 7 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 in article 44 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, and Pakistan etc. In the US Constitution in favor 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 inc 1nsistent with fundamental rights unconstitutional. 2.3 Fundamental Rights in the Constitution of Bangladesh 18 fundamental rights have been enumerated in the Constitution commencing from Article 27 to 44. All of these rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups: a. Rights granted to all persons— citizens and non-citizens alike. These are six rights 66

Keer, Donald, The Law of the Australian Constitution, 1st ed. (Dhaka: The law Book Company of Australia Ltd. 1991), p.218. 7 Abraham Henry, The Judiciary, 5th ed, (England: Allyn & Bacon, Inc, 1960), p.258.


enumerated in Articles 32, 33, 34, 35, 41 and 44 of the Constitution. b. 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. Chapter 3 Restriction 3.1 Restriction over Fundamental Rights The enjoyment of rights can nowhere be seen in an absolute position, for the enjoyment of one’s right in the society is subject to the enjoyment of others’ right. Moreover, modern states are welfare states where collective interests are given priority over individual’s rights or interests. Unrestricted individual liberty becomes a license and jeopardizes the liberty of others. “Civil liberties as guaranteed by the Constitution imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excess of unrestrained abuses”.’ If individuals are allowed to have absolute freedom of speech and action, the result would be chaos, ruin and anarchy. On the other hand, if state has absolute power to determine the extent of personal liberty, the result would be tyranny. So restrictions may be imposed on the enjoyment of fundamental rights for the greater purpose of public welfare. This idea has got recognition in article 29(2) of the Universal Declaration of Human Rights, 1948. “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. It is also worthy here to mention the judgment of Justice Mukharjee in Gopalan v. State of Madras8 — “There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.” Keeping in line with this idea restriction has been imposed on some fundamental rights under the Bangladesh constitution. On the basis of this restriction all fundamental rights enumerated in the Bangladesh Constitution may be classified into following three groups.9 3.2 Absolute rights Some rights have been kept in an unfettered form in the sense that parliament cannot, except as provided in the Constitution, impose any restriction over them. They are following: 1. Equality before law (Art. 27) 2. Discrimination on grounds of religion etc. (Art. 28) 3. Equality of opportunity in public employment (Art. 29) 4. Prohibition of foreign titles etc. (Art. 30) 5. Safeguards as to arrest and detention (Art. 33) 6. Prohibition of forced labour (Art. 34) 7. Protection in respect of trial and punishment (Art. 35) 8. Enforcement of fundamental rights (Art. 44). 8

8. Gupalan v. State, (1941) 321 US 569 At. p.574. This Grouping has been Done According to The Judgment of the Supreme Court of Pakistan in Abu AlMaudoodi v. Government of West Pakistan, PLD 1957 PAK 1957, p.101. 9


3.3 Rights on which reasonable restriction can be imposed They are following: 1. Freedom of movement (Art. 36) 2. Freedom of Assembly (Art. 37) 3. Freedom of Association (Art. 38) 4. Freedom of thought and conscience and of speech (Art. 39) 5. Freedom of religion (Art. 40) 6. Protection of home and correspondence (Art. 43) The grounds for imposing restriction on these rights have been laid down by the respective sections— 1. in the public interest (Art. 36) 2. in the interest of public order or public health (Art. 37) 3. in the interest of public order or morality (Art. 38) 4. in the interest of the security of the state, friendly relation with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art. 39) 5. in the interest of the public order and morality (Art. 41) 6. in the interest of the security of the state, public order, public morality or public health. (Art. 43). In the case of above mentioned fundamental rights parliament can by law impose only reasonable restriction as mentioned in the respective articles. The reasonability of the law can be examined by the Supreme Court and if the restriction seems to be unreasonable the court can declare the law illegal. It was held in Chintainoni Rao v. State of Madhya Pradesh— “Legislation which arbitrarily invades the right cannot be said to contain the quality of reasonableness the determination by the legislature of what constitute a reasonable restriction is not final or conclusive; it is subject to supervision of courts.” A perusal of the nature of restriction over the above mentioned fundamental rights also reveals the idea that the Constitution of. Bangladesh has struck a balance between the guarantee of individual’s rights and the collective interests of the community. Because as mentioned above, the concept of public interest, morality, public order, security of the state, public health etc. all are collective interests. The maintenance of social order and peace depends principally on safe enjoyment of these collective interests which would remain unprotected leading to a realm of anarchy had there been no provision to impose reasonable restriction on individual’s liberty. 3.4 Fundamental rights which have been practically left to the legislature There are some rights on which parliament can by law impose any restriction it pleases. They are following: 1. Right to protection of law (Art. 31) 2. Protection of right to life and personal liberty (Art. 32) 3. Right to lawful profession, occupation or business (Art. 40) 4. Protection of property right (Art.42) It has been detailed in the Constitution that the enjoyment of these rights shall be ‘in accordance with law’, ‘except in accordance with law’, ‘subject to any restriction imposed by law’, etc. Therefore the parliament can impose any restriction over these four rights. And the court cannot examine the reasonability of the restriction; it can see only the following two things: i) if the law imposing restriction is a valid one. ii) if the right has been infringed or abridged in accordance with the law.


For example, it was the law that a person could not possess more than 300 bighas of land. Then a change was made in the law that one could not possess more than 100 bighas of land and the present law provides that one cannot possess more than 60 bighas of land. Even in near future parliament may make law that one will possess not more than 30 bighas. If the penalty for a particular offence is life imprisonment, the parliament can, by law, substitute it for death sentence, and the court cannot declare the law illegal howsoever unreasonable it is. Chapter 4 Emergency 4.1 Suspension of Fundamental Rights during Emergency There is some special provision in the Bangladesh constitution that is emergency under Article 141 of the Bangladesh construction. President can declare for emergency on the grounds of external aggression or internal disturbance. 4.2 What is Emergency These provisions in the constitutions of some countries but nowhere it is exactly defined what emergency is. Normally emergency means an unexpected occurrence� requiring immediate action.10 In Bhagat Singh v. King-Emperor Lord Dunedin said, “a state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action.�10 Stephen P. Marks says that emergency is a situation which results from temporary condition, which place institutions of the state in a precarious position, which leads the authorities to feel justified suspending the application of certain principles. 11 Strictly speaking, the concept of emergency, from the view point of constitutional law, means the suspension of and restriction over certain fundamental rights of citizens in order to deal with a situation when the security of the state is threatened or the national interest is in peril. From the Bangladesh constitutional point of view, emergency means the existence of a condition whereby the security or economic life of Bangladesh or any part thereof is threatened by war or external aggression or internal disturbance. 4.3 Need for Emergency Provisions Providing for emergency provisions in the constitution is not an undemocratic something. Because the security of the state as a whole is of greater importance than the liberty of some individuals. The state itself is destroyed or in great peril the liberties of the individual citizens stands annihilated. The idea of suspension of some fundamental rights in time of erthrgency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provisions in legal terms for situations of crisis when states of emergency may be invoked. The necessity for suspension of certain rights in times of emergency is internationally recognized. Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency. Article 4(1) of the International Covenant on Civil and Political Rights, 1966, article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and article 27 of the American Convention on Human Rights, 1969 make, more or less, the same provision to the effect that in time of war, public danger, or other emergency that threatens the independence or security of a state party, it may take measures derogating from its obligation under the convention. Thus providing for emergency measures suspending sonic fundamental rights is 10 11

Jain MP 581-A, 169, 172, Ibid, p.111. Shahnaz Huda, Human Rights under Emergency Situations,3rd ed,(Dhaka: Shames publication, 2008), p.160.


allowed both nationally and internationally. But the problem is that there is a danger in investing such discretionary power with the executive authority. Because such a provision carries with it the risk of abuse of power if stern safeguards against its abuse are not provided for specifically. Most governments in developing countries abuse emergency power for political purpose; they use it as a necessary weapon to suppress the opposition and to perpetuate power; they thereby destroy the democratic institutions. The Secretary General of the International Commission of Jurists in his introduction on an ICJ report on States of Emergency opined that the most serious human rights violations tend to occur in situations of tension when those in power are or think they are threatened by forces which challenge their authority if not the established order of the society. This is why he thinks that there is an understandable link between case of grave violations of human rights and state of emergency.12 4.4 Emergency Provisions in the Constitution of Bangladesh Emergency provisions are dealt with part 9A of the Constitution. The part contains three articles 141A, 141B and 141C.Article l41A says. “If the president is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof is threatened by war or external aggression or internal disturbance, he may issue a proclamation of emergency�. Thus the president can declare emergency on three grounds —war, external aggression or internal disturbance. Two types of emergency, therefore, can be declared under the constitution of Bangladesh - emergency of war and emergency of subversion. 4.5 Who & under what circumstances declare Emergency Article 141A says that the president can declare emergency whenever he thinks that a grave emergency exists in which the security or economic life of Bangladesh or any art thereof is threatened by war, external aggression or internal disturbance. Article 141A (3) says that a proclamation of emergency may be declared before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. Again, the proviso of article 141A (l) says that the proclamation of emergency shall require for its validity the prior counter signature, of the prime minister. Thus virtually the declaration of emergency depends on the wish of the prime minister. Whenever the prime minister advises the president to declare emergency the president is bound to do see. The declaration of emergency, therefore, depends on the subjective satisfaction of the executive and the court cannot question the justifiability of such satisfaction. 4.6 The Consequences of a Declaration of Emergency 3. A proclamation of emergency may be revoked by a subsequent proclamation. 2. A proclamation of emergency shall be laid before parliament and shall cease to operate at the expiration of 120 days unless before the expiration of that period it has been approved by a resolution of parliament. 3. If emergency is declared at a time when parliament stands dissolved or the dissolution of parliament takes place during the period of, the proclamation shall cease to operate at the expiration of 30 days from the date on which parliament first meets after its reinstitution, unless before the expiration of the said period of 30 days a resolution approving the proclamation of emergency has been passed by parliament. 4. As soon as emergency is declared fundamental rights mentioned in articles 36, 37, 38, 12

. ICJ report on states of emergency: their impact on human rights, (Geneva, 1983) quoted by huda , shahanaz , ibid, p.101.


39, 40 and 42 halls automatically remain suspended an eye will remain suspended so long emergency will be in operation. As a result, the executive may take any measure against these rights and parliament may make any law inconsistent with these rights. As soon as emergency is withdrawn these rights will get their full constitutional status. Chapter 5 Violation 5.1 Political Violence The killing of political leaders and workers by rival political forces or by rival groups within the same political party is becoming a common phenomenon in Bangladesh. Violent and armed confrontations between two opposing political parties or opposing groups of the same political party have cost many lives and huge bloodshed in Bangladesh in 2003. Odhikar, a human rights organization, reported that 195 people were killed and 2,675 injured in attacks on political activists during the first six months of the year.’ While there were incidents of routine political violence throughout the year, the second half was marked by the assassinations of several influential political leaders across the country. One of the most alarming incidents took place in violence-prone Khulna District. On 25 August, 2003, unknown gunmen killed on brushfire Advocate Monzurul lmam, the President of Khulna City Awami League and a widely respected political figure. The rickshaw-puller who was driving He and his fellow passenger Advocate Bijan Bihari Mondol also lost their lives. 28 this killing instantly sparked violence in the city, which later spread to other areas of the country. Following the murder, in a typical pattern, the main opposition party the Awami League and the riling BNP blamed each other for the brutal killings, and both denied the allegations at different press conferences." However, an activist of an outlawed political group called Purba Banglar Communist Party was arrested by the police and was reported to have given a confessional statement regarding his involvement in the killing He told the police that the killer gang was hired for money to assassinate Advocate lmam and only the leader of the gang knew the persons who engaged them. The leader and the other members of the gang, how ever have managed to evade arrest. A brief account of the political killings in the month of August' 2003 alone reflects the magnitude of political violence throughout the year. An AwamlLeague lender, Akhter Hussein' was killed by his rivals in iguana on 22 -August. Another activist of the same party, Abdul Kader, was shot dead at Narayanganj allegedly by his political opponents on 25 August. President of the Kapasra Jubo League (the youth Wing of the Awami League), Jalal uddin are, was killed by irolitical rivals on 17 August. A former worker of Jubo Dal (youth wing bi neap), bearcat Mullah, tears shot dead in Dhaka on 18 August' A BNP activist, Abu Zafar Mohammad Hossain, was shot dead in Dhaka on 8 August. An Awami League leader, Motiur Rahman, was killed in Sirajganj on 6 August. A BNP leader, Nurul Biswas, was shot dead in Pabna on 1 August."' This picture shows that political workers belonging both to the opposition and the ruling party were slain almost on a daily basis, presumably due to their political activities. In almost in all cases, those responsible for the killing evaded the reach of law. Information collected from media reports for the year 2003 shows that 32 persons were killed and over 600 injured in clashes in which the parties involved could be identified as two different political parties or different groups of


the same political party. At the same time, a total 174 political persons were killed by armed assailants who could not be identified but who were suspected to be either of a rival political party or faction. Workers belonging to almost all the major political parties were among those killed by unidentified assailants. However, the number of cases in which criminals were brought to justice is insignificant. The situation demonstrates the rising scale of political violence, where eliminating a rival, political or otherwise, has become a routine task for criminals. Even professional killers can be hired without the murderers themselves or the actual operators being traced, let alone being brought to book. 13 5.2 Woman, violence and gender injustice in Bangladesh perspective For the most part, events relating to women's lives and livelihoods, 2003 echoed trends set in earlier years. Violence, discrimination and injustice towards women and girls, in domestic and public domains, remained unabated. Class, ethnic and religious disparities exacerbated such gender-based vulnerabilities. Law enforcement agencies, riddled with corruption and tied down by political pressures, appeared unable or unwilling to pursue justice on behalf of women. Landed, in some cases, law enforcement agencies themselves perpetrated crimes against women. Meanwhile, the state continued to proclaim its rhetoric of empowering women. In practice, many government actions, such as certain changes introduced through an amendment to the Nari O Shishu Nirjaton Domon Ain (Suppression of Violence against Women and Children), 2000, directly undermined women's interests. The hollowness of state rhetoric was revealed most clearly in an attempt to limit the powers of newly elected female ward commissioners. As in the past, and on a more positive note, women's groups were highly active in speaking out and mobilizing civil society members to resist regressive state policies and interventions. Feminist activists also continued to pressure the government to live up to its CEDAW commitments and its election pledge tallow for direct elections to seats reserved for women in the Parliament. According to the Declaration, any Act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including treats of such act, coercion or arbitrary,. Deprivation of liberty, Father occurring in public or private life, constitutes violence. Against women the eight different rights of women as specified in Article 3 the Declaration are as follows: 1. The right to life. 2. The right to liberty and security of person. 3. The right to equal protection under the law. 4. The right to the highest standard attainable of physical and mental health. 5. The right to just and favor able conditions of work. 6. The right not to be subjected to torture, or other cruel, inhuman or Degrading treatment or punishment. 7. The right to equality. 8. The right to be free from all forms of discrimination. The Declaration distinguishes itself by its unique scope' and the recognition. That violence is as much a socio-cultural issue as it is a legislative. One it encompasses a much broader definition of violence against women than is commonly understood. The Declaration also requires specific state actions. In Bangladesh, some rights are often Raridomly ignored, and the absence of proper monitoring leaves perpetrator a

13

Tanim Hussain Shawon, Violation and Gender Injustice in Bangladesh, Human Rights in Bangladesh, 1st ed. (Dhaka: ASK, 2004), p.60.


Unpunished in many cases. Other forms of gender inequality, Such as in matters of Personal Law, which directly contravene the Right to new free from all forms of discrimination, have yet to be fully overturned legally.14 5.3 Violence against Women This section examines the major forms of violence against women and Girls that took place during the year. Violence can be seen as a mechanism through which men as a group and as individuals attempt to exert control over women and maintain their social dominance As such, women in Bangladesh experience violence in numerous forms and circumstances. Among these, domestic violence is arguably the most prevalent. Because of shame, fear and lack of alternatives, Women, Violence and Gender injustice. 97 women themselves often minimize the effects of the domestic violence they experience. What is more, many people tend to dismiss its importance, Subscribing to the idea that such violence is a normal and socially acceptable occurrence. For both these reasons, domestic violence is a hidden pandemic in the country. It follows that data on domestic violence is limited.15 Chapter 6 Recommendation 6.1 Institutional reforms ASK calls on the government to confirm its commitment to the protection and promotion of human rights by 1. Endorsing and taking further the measures taking by the care taker government to establish the national human rights commission, provide access to freedom of information, ensure separation and independence of the judiciary, take steps against corruption, under take police reforms, adopt women’s policy and draft guidelines on sexual harassment. 2. Ensuring full independence and accountability of the entire judiciary and consider establishing a judicial reform commission to review outstanding concerns regarding appointment and related matters. 3. Activating the NHRC, to enable able it to carry out its function independently and effectively, by amending the national human right commission ordinance conform to the Paris principle for national human rights and providing the NHRC with sufficient resources and capacity. 4. Reviewing policing practices and procedures to bring them into conformity with human rights standards, including though enactment of a law to replace the Police Act, 1861, following further public consultations on the draft police bill. 4. Reviewing laws relating to the defense services and to RAB to ensure that any offences committed by personal may be prosecuted by the Civil Courts. 5. Ensuring effective implementation of existing quotas in public service and implementation of faire requirement policies and non discriminatory practices (on grounds including sex, race, religion, disability, age, language) in both public and private bodies. 6. Enabling the functioning of independent and impartial human rights monitoring organizations. 14

Associate professor, Department of Sociology and Woman’s Studies, University of Dhaka Bangladesh, Human Rights in Bangladesh,1st ed. (Dhaka: ASK, 2003), p.47. 15 Hameda hossain, Violence against Women, Human Rights in Bangladesh,1st ed.(Dhaka: ASK,2003), p.96.


7.

Ratification of the statute of the international criminal court.

8. Adopting specific legislation on redress including compensation for victims of arbitrary arrest torture. 9.

Amending existing laws providing extensive powers on censorship of books and films

10. Ensuring equal application of laws on holding meetings and assemblies for all people without discrimination. 11.

Making public information on availability of khas land in urban areas.

12. Creating effective mechanism for the maintenance of quality control of food products and pharmaceutical. 13.

Increasing the budgetary allocation for primary education.

14.

Establish a uniform regulatory body for the educational system.

15. Taking up specific plans and programs to secure women’s right pursuant to the national women’s development policy 2008.16 Chapter 7 Conclusion In conclusion we can say, it is evident from the above that Sustainable Development has become an umbrella concept for a variety of development models. i However, the draft international Covenant on environment and Development, initiated by the International Lawyers Association, has stipulated in article 1 that the objective of the Covenant is to achieve sustainable development and environmental conservation by integrating rights and obligations. It may be recalled that an Expert Group convened to advice the UN commission on sustainable development in September 1995 has covered in its report the right to development, the right to a healthy environment, the eradication of poverty, equity, empowerment of the masses through participation in decision making over sustainable use of natural resources, prevention of environmental harm etc. Thus, the concept of sustainable development in a real sense expands the traditional notion of human rights (freedom of expression, freedom of association, right to justice etc). to cover the more substantive areas , such as the right to a comprehensive development of human persons. So, to promote sustainable development in our country programmers, governments, international financial institutions and donor agencies need to be persuaded to change course and to develop strategies for the integrated implementation of human rights in conformity with the Rio Principles of Sustainable Development.

References Books: 1

Abraham Henry, The Judiciary, 5th ed. (England: Allyn & Bacon, Inc, 1960).

2

Keer, Donald, The Law of the Australian Constitution, 1st ed. (Dhaka: The law Book Company of Australia Ltd. 1991).

3

Kazi Akter, Human Rights: Self-determination & The Right to Resistance, 2nd ed. (Dhaka: Bhuiyan Academy, 1994).

16

Institutional Reforms, Human Rights in Bangladesh,1st ed.(Dhaka: ASK, 2008).pp.257-6.


4

M Ershadul huque, Human Rights and Violation, 1st ed. (Dhaka: Shams Publication).

5

Tuhin malik, Human Rights in Bangladesh, 1st ed. (Eastern Book Company: Dhaka).

6

Van Deurem, the International Demension on Human rights, Vol-1.

7

Wade and bradly, Constitutional Law, 8thed. (London Longman, 1970).

Journals: 1. A.B.M. Mafijul, Islam Liberty of the People Britain and Bangladesh Legal Affairs, 1987. 2. Shahnaz Huda, Human Rights under Emergency Situations, 3rd ed. (Dhaka: Shames publication, 2008) 3. Tanim Hussain Shawon, Violation and Gender Injustice in Bangladesh, Human Rights in Bangladesh, 1st ed. (Dhaka: ASK, 2004) 4. ASK institutional reforms, human rights in Bangladesh, 2008. Website: [http://www.icrc.org/web/eng/siteengs.nsf.iwp, accessed on 8\10\09]


i

Profile for regan  ahmed

Human Rights and fundamental rights  

Human Rights and fundamental rights  

Advertisement