The Bangladesh Constitutional Framework

and Human Rights

Dr. Muham mad Ekram ul Haque*

Introduction
The Constitution o f Bangladesh is the supreme law o f the land, which
contains provisions regarding human rights in different forms. The
inclusion o f human rights in the constitution o f a country obviously bears
special significance. Such constitutional inclusion provides human rights
with a higher degree o f protection. It keeps them beyond the reach o f
easier and frequent changes by the legislature. Constitutional inclusion o f
human rights standards also ‘provides a focus for discussing those issues
and their implications within the political system.
Incorporating certain provisions regarding human rights in the
constitution has become an established norm o f constitutionalism in the
2 0 * century. Human rights have been incorporated in national
constitutions i^oth in justiciable and unjusticiable forms. The Constitution
o f Bangladesh was adopted in 1972, the middle o f the latter h alf o f the
2 0 * century, when the International Bill o f Rights has already been
adorned by its three stage locket o f the Universal Declaration o f Human
Rights, 1948 (UDHR),2 International Covenant on Civil and Political
Rights, 1966 (ICCPR)^ and the International Covenant on Economic, Social
and Cultural Rights, 1966 (ICESCR)'*. At the time o f adoption o f the
Constitution o f Bangladesh, ‘there was a marked global increase in
awareness for the need to protect human rights and fundam ental
freedom s.'5 Since the advent o f the two Covenants in 1966, very few if any
national constitutions have been adopted that have failed to include
human rights provisions. The insertion o f different human rights
provisions into the Constitution o f Bangladesh was not a unique event in
the context o f the development o f human rights.

Associate Professor, Department of Law, University of Dhaka.

lawekramul@[Link]
David Feldman, ‘Constitutionalism, Deliberative Democracy and Human Rights’ in
John Morison, Kieran McEvoy and Gordon Anthony (eds), Judges, Transition, and
Human Rights (Oxford University Press, 2007) 443, 462.
GA Res 217A (III), UN GAOR, 3'-<‘ sess, 183^ plen mtg, UN Doc A/810 (10 December
1948) {‘UDHR’).
Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23
March 1976) (‘ICCPR’].
Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976) {‘ICESCR’).
Arjuna Naidu, “The Protection o f Human Rights in Srilanka: Some Lessons for
South Africa’ (1987) 3 South African Journal on Human Rights 52.
 Dhaka University Law Journal Volume 22, Number 1, June 2011

The Drafting of the Constitution of Bangladesh

The concept o f human rights is deep-rooted in the history o f Bangladesh.
Bangladesh was born as an independent state through a historic liberation
war conducted in exercise o f the people’s right to self-determination, an
im portant human right recognized in international hum an rights law.®
During the British colonial period in India, until 1947, the territory of
Bangladesh was a part o f the then British colony in the undivided India
which was governed by the Government o f India Act. In 1947, the British
Parliament passed the Indian Independence Act which created ‘two
Dominions - India and Pakistan - and two Constituent Assem blies for the
two D o m in io n s .^7 Thus, after gaining freedom from the colonial rule in
1947, British India was separated into India and Pakistan: Bangladesh,
being a part o f then Pakistan, was known as East Pakistan. The first
decade o f Pakistan (1947-58) was a period o f ‘change’ and “uncertainty’
when ‘many o f Pakistan’s integrating forces collapsed’ and the dem ocracy
was a ‘total failure.’® The period between 1958 to 1969 has been identified
as a period o f ‘total political dispossession o f East Pakistan and
regionalism ,’^ which resulted into the demand for full autonom y o f East
Pakistan. 10 Due to continued economic and political oppression^i by W est
Pakistan over East Pakistan, ‘the autonomy m ovem ent took the shape of
liberation struggles for com plete in d e p e n d e n c e .

Bangladesh declared its independence on 26 March, 1971.'3 The

Constituent Assembly, which was composed o f the m embers elected in
elections held from 7 December 1970 to 17 January 1971 in the then East
Pakistan, proclaimed the Proclamation o f Independence on 10 April, 1971
and formed the Government o f Bangladesh, i'* The Proclam ation of
Independence 1971 was the interim Constitution that was given
retrospective effect from 26 March 1971 ‘in due fulfilm ent o f the legitimate
right to self-determination o f the people o f Bangladesh.’'^ W hile
Bangladesh was not at that time a member o f the United Nations (UN), the
Constituent Assem bly o f the newly declared state affirmed in its interim
Constitution that the state ‘undertake[s] to observe and give effect to all

® Md. Rafiqul Islam, The Bangladesh Liberation Movement: Its International Legal
Implications (PhD thesis, Monash University, 1983) 48.
Mahmudul Islam, Constitutional Law o f Bangladesh (Mullick Brothers, Dhaka, S""*
ed, 2003) 5.
8 Islam, The Bangladesh Liberation Movement: Its International Legal Implications,
above n 6, 30.
9 Ibid, 31.
10 Ibid, ix.
11 Ibid, 45-46.
12 Ibid, 47.
13 The Constitution o f Bangladesh Preamble.
The Proclamation o f Independence.
15 The Proclamation o f Independence.

56 I P a g e
 Bangladesh Constitutional Fram ework and Human Rights

duties and obligations that devolve upon’ it ‘as a mem ber o f the family of
nations.’16 It was categorically added in the Proclamation that the newly
declared state would ‘abide by the Charter o f the United N a t i o n s . The
provisions o f the interim Constitution obliged the newly declared state to
observe all o f the Charter commitments, like a m em ber o f the UN,
including the com mitments regarding human rights.
The liberation war continued for nine months. At the end o f the ‘historic
struggle for national liberation’ll against Pakistan, Bangladesh achieved
victory on 16 December 1971. The Provisional Constitution o f Bangladesh
Order, 1972 was issued on 11 January, 1972 introducing a parliamentary
form o f governm ent replacing the existing presidential form and re­
defining the Constituent Assembly, In order to create a Constituent
Assem bly for the purpose o f making a constitution for the newly born
country, the “Bangladesh Constituent Assembly Order” (P.O. No. 22) was
prom ulgated on March 23, 1972.2° The first session o f the Constituent
Assem bly was held on April 10, 1972.
The long history o f exploitation and deprivation resulting in economic,
social and political injustices during the period o f British colonial rule and
Pakistani rule motivated the people of Bangladesh towards the inclusion of
all fundam ental human rights and freedom s in the Constitution. The
Constitution Drafting Committee, headed by the then M inister for Law and
Parliamentary Affairs, was set up on 11 April 1972.21 The Constitution Bill
was introduced in the Constituent Assembly by the Chairman o f the
Drafting Committee on 12 October 1972.22 The Constitution was adopted
on 4 November 1972 in the Constituent Assem bly and came into force on
16 December, 1972.23

Bangladesh became constitutionally obligated to secure all fundamental

human rights and freedoms to its citizens. The aspirations o f the people of
Bangladesh are reflected in the preamble of the Constitution of
Bangladesh. The preamble of the Constitution unequivocally affirmed the

The Proclamation o f Independence para 20.

ibid.
The Constitution o f Bangladesh Preamble.
Section 4 of the Provisional Constitution of Bangladesh Order, 1972 defines the
Constituent Assembly as ‘the body comprising of the elected representatives of the
people of Bangladesh returned to the N.A. [National Assembly] and P.A. [Provincial
Assembly] seats in the elections held in December, 1970, January, 1971 and
March, 1971 not otherwise disqualified by or under any law.’
Abul Fazal Huq, ‘Constitution-Making in Bangladesh’ (1973) 46 (1) Pacific Affairs
59, 60.
Ibid.
Bangladesh, Constituent Assembly Debates (GonoParishader Bitarka, Sarkari
Biboronij, Constituent Assembly, 1972, vol.2, 23.
The Constitution o f Bangladesh Article 153(1).

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pledge that the establishm ent o f a society where fundam ental human
rights and freedom s were secured for all citizens was ‘a fundam ental aim
o f the state’. Human rights have accordingly been incorporated into the
Constitution in different chapters.
The Legal System of Bangladesh and the Constitutional Structure of
the Government
Bangladesh is a common law country. It has a written constitution which
is the supreme law o f the land. The constitution o f Bangladesh explicitly
recognizes the suprem acy o f the Constitution, in contrast to parliam entary
sovereignty. Parliament is a creation o f the Constitution; it is unicameral
and acts under the Constitution. The law m aking power o f the parliament
is restricted by the Constitution. The Parliament, known as the ‘House of
the Nation’, has legislative power which is subject to the Constitution.2^
The parliam ent cannot pass any law, under any circumstance, which
violates the basic structure o f the Constitution.25
The Constitution o f Bangladesh establishes a parliamentary form of
Government, where the President is Head o f the State, while the Prime
M inister is the Head o f the Executive. The Constitution o f Bangladesh
explicitly recognizes the principle o f separation o f power, with an
independent judiciary. There are two sets o f courts in Bangladesh, higher
and lower. At the higher level, there is one court named ‘the Supreme
Court o f Bangladesh.’ It has two divisions, the High Court Division and the
Appellate Division. The High Court Division has original jurisdiction
regarding constitutional and certain other specific matters. The Appellate
Division o f the Supreme Court o f Bangladesh stands at the top o f the
higher judiciary, with appellate authority. The judgm ents pronounced by
either Division o f the Supreme Court are binding on all lower courts.
Judicial precedents are recognized by article 111 o f the Constitution as
good laws. The lower courts consist o f separate civil and criminal courts
with different tiers, which are accountable to the Supreme Court o f
Bangladesh. The Supreme Court o f Bangladesh is treated as the guardian
o f the C o n s t itu t io n , 26 as it is the only body with authority to interpret and
enforce the constitutional provisions.
The Constitution o f Bangladesh in its Article 142^7 provided that the votes
o f at least two-thirds o f the total number o f members o f parliam ent are

2“' Article 65(1) of the Constitution.

25 Article 7B of the Constitution; Anwar Hossain Chowdhury v Bangladesh (1989) 41
DLR (AD) 165 (‘Constitution 8"' Amendment Case’).
26 Islam, Constitutional Law o f Bangladesh, above n 7, 16.
27 Article 142 of the Constitution is as follows:
‘ Notwithstanding anything contained in this Constitution—
(a) Any provision thereof may be amended by way of addition, alteration,
sulDstitution or repeal by Act of Parliament:
(i) no Bill for such amendment shall be allowed to proceed unless the long title
thereof expressly states that it will amend a provision of the Constitution;
58 I P a 2 c
 Bangladesh Constitutional Fram ew ork and Human Rights

required for an amendment o f any provision o f the Constitution. However,

new article 7B o f the Constitution, inserted by the Constitution 15^
Am endm ent in 2011, recognized the basic structures o f the Constitution
by declaring them as completely unamendable. It said:

Notwithstanding anything contained in article 142 o f the Constitution, the

preamble, all articles o f Part I, all articles o f Part II, all articles o f Part III,
subject to the provisions o f the articles relating to the other basic
structures o f the Constitution including article 150 o f Part XI shall not be
amendable by way o f insertion, modification, substitution, repeal or by any
other means.
The concept o f basic structure o f the Constitution was first recognized by
the Constitution Am endm ent case.^^ In this case, the 8 * Am endm ent o f
the Constitution, which created six perm anent Benches o f the High Court
Division, was challenged as being unconstitutional. It was argued that the
said am endm ent violated the unity o f the High Court Division by creating
different perm anent benches. In this case, the unity o f the High Court
Division was considered as a ‘basic structure’ o f the Constitution that was
violated by the impugned amendment. The said amendment, in spite o f its
com pliance with article 142, was declared to be ultra vires and invalid on
the ground o f its alleged violation o f the Tsasic structure’ o f the
C o n s titu tio n .29 The concept o f ‘basic structure’ was established in this
case by the judiciary. This principle regarding unam endable nature o f the
basic structure o f the Constitution was reaffirm ed in the Constitution
Am endm ent Case.3°

Human Rights Provisions in the Constitution o f Bangladesh Influence

of the International Bill of Rights
Though Bangladesh did not acquire m em bership o f the UN until 1974,3i
both the UN Charter and the International Bill o f Rights (com prising the
UDHR, ICCPR and the ICESCR) deeply influenced the drafting o f the
Constitution o f Bangladesh. Only a few constitutions in the world have

(ii) no such Bill shall be presented to the President for assent unless it is passed
by the votes of not less than two-thirds of the total number of members of
Parliament;
(b) when a Bill passed as aforesaid is presented to the President for his assent he
shall, within the period of seven days after the Bill is presented to him assent
to the Bill, and if he fails so to do he shall be deemed to have assented to it on
the expiration of that period.’
28 (1989) 41 DLR (AD) 165.
29 Ibid.
30 Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd., Dhaka [2010] SC
(AD) Civil Petition for Leave to Appeal Nos. 1044 &, 1045 OF 2009 (1 February 2010)
{‘Constitution 5'^ Amendment Case’).
Bangladesh acquired UN membership on 17 September 1974. United Nations,
<[Link]

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directly endorsed the UDHR32 and the UN Charter.^^ The Constitution of

Bangladesh does not explicitly mention the UDHR or the two covenants.
But the Constitution has directly endorsed, under article 25, the principles
enunciated in the UN Charter as the principles upon which Bangladesh
must base its international relations. Furthermore, the Constitution
substantially incorporated various provisions o f the International Bill o f
Rights in different forms in different chapters.
Following the ICCPR and ICESCR model o f splitting human rights
provisions into two distinct groups, many of the constitutions adopted
after 1966 inserted provisions regarding human rights in two distinct
places o f the constitution and likewise installed two different enforcement
mechanisms. For example, it appears that splitting human rights by the
UN into two covenants led the constitution-makers o f Bangladesh to slot
human rights into two different forms: civil and political (CP) rights are
immediately realizable and judicially enforceable, while economic, social
and cultural (ESC) rights are not judicially enforceable. The Constitution
in its Part III on “fundamental rights” incorporated CP rights. ESC rights
are incorporated as “fundamental principles o f state policy” (FPSP) in Part
II of the Constitution.

See, for example, the Constitution o f the Republic of Ivory Coast o f 1960
(Preamble), the Constitution o f the Republic o f Senegal of 1963, the Constitution of
the Democratic Republic of Sao Tom ’ and Principe of 1975 (Article 17), the
Constitution of Portuguese Republic of 1976 (Article 16), The Spanish Constitution
of 1978 (Article 10), the Constitution of Somali Democratic Republic of 1979 (Article
19), the Constitution of the United Republic of Tanzania o f 1984 (Article 9), the
Political Constitution of the Republic of Nicaragua of 1987 (Article 46), the
Constitution of the Republic of Haiti of 1987 (Preamble and Article 19), the
Constitution of Afghanistan of 2004 (Preamble), the Constitution of the Republic of
Benin of 1990 (Preamble), Fundamental Law of Equatorial Guinea of 1991
(Preamble), the Constitution of Romania of 1991 (Article 20), the Constitution of the
Republic o f Rwanda of 1991 (Preamble), the Constitution of the Gabonese Republic
of 1991 (Preamble), the Constitution o f Mali of 1992, the Constitution of Burkina
Faso of 1991 (Preamble), the Constitution of the Republic of Burundi of 1992
(Preamble and article 10), the Constitution of the Federal Republic of Comoros of
1992 (Preamble), the Constitution o f the Fourth Republic of Togo o f 1992
(Preamble), the Constitution of Cambodia of 1993 (Article 31), the Constitution of
the Republic o f Moldova of 1994 (Article 4), the Constitution of the Republic of
Niger o f 1996 (Preamble), the Constitution o f the Republic o f Chad o f 1996
(Preamble).
See, for example, the Constitution of Bangladesh of 1972 (Article 25),
Constitutional Law of the People’s Republic of Angola of 1975 (Article 31), the
Constitution of the People’s Democratic Republic of Algeria o f 1989 (Article 28), the
Constitution of the Republic of Benin of 1990 (Preamble), Fundamental Law of
Equatorial Guinea of 1991 (Preamble), the Constitution of the Federal Republic of
Comoros of 1992 (Preamble), the Constitution of the Republic of Ghana of 1992
(Article 40), the Constitution o f the Fourth Republic of Togo of 1992 (Preamble), the
Constitution of Cambodia of 1993 (Article 31), the Constitution of the Republic of
Moldova of 1994 (Article 8), the Constitution of the Republic of Chad o f 1996
(Preamble), the Constitution o f Afghanistan of 2004 (Preamble).

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However, the division into these two chapters is not fully identical with the
two sets o f human rights in the two covenants. W ith a few exceptions, the
rights inserted in Part III were recognized by the ICCPR. Three provisions
o f the ICESCR have also been incorporated in that chapter o f the
Constitution. For example, article 29(1), which speaks for equality o f
opportunity in public employment, reflecting article 7(c) o f the ICESCR,
has been guaranteed as a fundamental right within the constitutional
framework. On the other hand, the provision regarding participation o f the
people in the affairs o f the Republic through their elected representatives,
which has been inserted in the final half o f article 11 o f the Constitution
as an FPSP, was recognized by the ICCPR in its article 25(a). The provision
regarding people’s right to self-determination recognized by both the
ICCPR and ICESCR has been incorporated in the chapter on the FPSP in
article 25(b) o f the Constitution o f Bangladesh.
An Analysis of the Provisions Regarding Human Rights in the
Constitution o f Bangladesh
The Constitution o f Bangladesh contains provisions relating to human
rights in three different parts including the preamble. The preamble
asserts the pledge to secure fundamental human rights as an aim o f the
state. Specific human rights are listed in the Constitution either as
fundamental rights or as FPSP. Human rights contained in the FPSP
chapter (Part II) are not judicially enforceable, whereas the human rights
contained in the chapter on fundamental rights (Part III) are judicially
enforceable. As it has been mentioned earlier, according to the new article
7B o f the Constitution all provisions o f all o f these three parts fall within
the category o f basic structures o f the Constitution which are com pletely
unamendabie.

Provisions Regarding Human Rights in the Preamble: Constitutional

Pledge
The preamble o f the Constitution o f Bangladesh makes a general pledge to
establish a society where all fundamental human rights and freedom will
be secured for all citizens. It declares:
We, the people o f Bangladesh, ... Further pledging that it shall be a
fundamental aim o f the State to realise through the dem ocratic process a
socialist society, free from exploitation-a society in which the rule o f law,
fundamental human rights and freedom, equality and justice, political,
econom ic and social, will be secured for all citizens.
It has been noted that '[f]ew constitutions do have such a P r e a m b le '.34 in
Dr. M ohiuddin Farooque v Bangladesh (‘Locus Standi Cass’) , t h i s
distinctiveness o f the preamble was explained in the following words that
focused on the pledge made therein:

3“’ Constitution 8’^‘ Amendment Case, (1989) 41 DLR (AD) 165 , 197 (Chowdhuiy J).
35 (1997) 49 DLR (AD) 1.

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The Preamble o f our Constitution stands on a different footing from

that o f other Constitutions by the very fact o f the essence o f its
birth which is different from others. It is in our Constitution a real
and positive declaration o f pledges, adopted, enacted and given to
themselves by the people not by way o f presentation from skilful
draftsmen, but as reflecting the echoes o f their historic war of
independence.
The pledge made in the preamble has been further avowed as one o f the
FPSP in Article 11 o f the Constitution. It declared a constitutional
guarantee o f fundam ental human rights: “the Republic shall be a
democracy in which fundamental human rights and freedom s ... shall be
guaranteed’. Thus, the aim to secure human rights has not remained as a
mere pledge in the preamble; it has been further imprinted in the
Constitution in a way that imposes a duty on the state specifically to
guarantee fundam ental human rights.
The term ‘fundam ental human rights’ is not further defined anywhere in
the Constitution so as to distinguish a subset o f hum an rights as
‘fundamental'. The term fundam ental human rights’, long before its use in
the Constitution o f Bangladesh, appeared in the preambles o f the UN
Charter and the UDHR. The preamble to the UDHR says:
W hereas the peoples o f the United Nations have in the Charter reaffirmed
their faith in fundam ental human rights, ... Now, therefore, The General
Assembly, Proclaiftis this Universal Declaration o f Human Rights as a
com m on standard o f achievem ent for all peoples and all nations, ....
This particular recital o f the term ‘fundam ental human rights’ in the
preamble o f the UDHR implies that the rights subsequently included in it
are in fact those ‘[Link] human rights’. The rights inserted in the
UDHR have been further elaborated in the two covenants, ICCPR and
ICESCR. Thus it appears that the rights incorporated in the three
com ponents o f the International Bill o f Rights are ‘fundam ental human
rights’. It is submitted that in the absence o f any clear constitutional
definition o f the term ‘fundamental human rights’, the m eaning o f this
term as has been determined above in the light o f international human
rights law can be considered to be the m eaning o f the same term in the
preamble o f the Constitution o f Bangladesh. The preamble o f the
Constitution thus contain the pledge to establish a society where the
fundamental human rights, that is all o f the rights contained in the
International Bill o f Rights, will be secured for all citizens o f the state.

Constitutional Status and Enforcement of the Preamble

The preamble o f the Conj-':itution o f Bangladesh is not a mere introductory
note to the Constitution, t is a part o f the Constitution, the suprem e law
o f the land. Chowdhury i said in the Constitution Am endm ent Case^'^

36 Ibid [42].
37 (1989) 41 DLR (AD) 165, 197.

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 Bangladesh Constitutional Fram ework and Human Rights

that there is no ‘anxiety as to whether the Preamble is a part o f the

constitution or not as it has been the case in some other c o u n t r y . i n the
same case, Rahman J termed the preamble as ‘the pole star o f the
Constitution.’39 in this case, the majority judgm ent declared the impugned
am endm ent to be void on the ground o f violation o f a basic structure o f the
Constitution.40 Although the new article 7B declared the whole preamble
as an unam endable basic structure o f the Constitution, the Constitution
8th Am endm ent Case recognized certain parts o f the preamble as
unam endable basic structure o f the Constitution 22 years ago in 1989.
In this case, am ong the three concurring majority judges, Chowdhury J
said that the impugned amendment was void for, inter alia, it destroyed
the essential limb o f the judiciary “by setting up rival courts to the High
Court Division in the name o f Perm anent B e n c h e s . H o w e v e r , Chowdhury
J also considered the whole aim o f the state, contained in the preamble, as
a basic structure o f the Constitution. Chowdhury J observed:

That Constitution promises 'economic and social justice' in a society in

which 'the rule o f law, fundamental human right and freedom, equality
and justice' is assured and declares that as the fundam ental aim o f the
State. Call it by any name- 'basic feature' or whatever, but this is the basic
fabric o f the Constitution which can not be dism antled by an authority
created by the Constitution itself- namely, the Parliament."*^

Shahabuddin Ahmed J, the second concurring judge, declared the

amendment void on the ground o f violation o f the basic structure of
‘oneness o f the High Court D i v i s i o n . He did not seem to base his
judgm ent on the preamble.
The third concurring judge, Rahman J, declared the am endm ent void on
the ground o f violation o f the basic structure o f the ‘rule o f law ’ engraved
in the preamble o f the Constitution. He observed:
In this case we are concerned with only one basic feature, the rule o f law,
marked out as one o f the fundamental aims o f our society in the Preamble.
The validity o f the impugned amendment may be examined, with or
without resorting to the doctrine o f basic feature, on the touchstone o f the
Preamble itself.^4

38 The status of the constitutional prearible is controversial in India. It was held in

Re Berubari Union & Exchange o f Enclaves ([I960] AIR SC 845), in India, that the
preamble of the Constitution is not a part of the Constitution. Subsequently, the
Indian Court changed its position and recognized the preamble as a part of the
Constitution in Kesavananda Bharati v State o f Kerala [1973] AIR SC 1461.
39 (1989) 41 DLR (AD) 165, 274.
'*0 A.T.M. Afzcd J dissented.
« (1989) 41 DLR (AD) 165, 232.
« Ibid 221-22.
w Ibid 264.
Ibid 272.
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He found that the impugned am endm ent impaired the rule o f law
contained in the preamble:
The impugned am endm ent is to be examined in the light o f the Preamble. I
have indicated earlier that one o f the fundamental aims o f our society is to
secure the rule o f law for all citizens and in furtherance o f that aim Part VI
and other provisions were incorporated in the Constitution. Now by the
impugned am endm ent that structure o f the rule o f law has been badly
impaired, and as a result the high Court Division has fallen into sixes and
sevens-six at the seats o f the perm anent Benches and the seven at the
perm anent seat o f the Supreme Court.

Thus, it appears that Rahman J treated the ‘rule o f law ’ contained in the
preamble as a basic structure o f the Constitution and declared the
Am endm ent as void as it violated this basic structure. It is submitted that
if one part o f the preamble, for example, concerning the ‘rule o f law ’,'’^ is a
basic structure o f the Constitution, then the concept o f fundam ental
human rights and freedom ’ enshrined in the same m anner in the same
paragraph o f the preamble also seems to be entitled to be another basic
structure o f the Constitution.
It is clear from the above discussion that two o f the three concurring
majority judges indicated that the preamble, or at least part o f it, was part
o f the unamenclable basic structure o f the Constitution.
The preamble protected fundamental human rights as a constitutional
pledge where tne securing o f all fundamental human rights has been set
as an aim o f i:he state. The Constitution S"* Am endm ent Case arguably
elevated ‘fundam ental human rights’ to a higher constitutional status.
This part o f thu pream ble is not only enforceable by law but constitutes an
im portant bas;.c structure o f the Constitution o f Bangladesh. It is now
settled law in Bangladesh that according to new article 7B o f the
Constitution, the whole preamble is a basic structure o f the Constitution.
The pledge made in the preamble to secure fundamental hum an rights for
all citizens is elaborated in two chapters, namely, the FPSP and the
fundamental rights.

Fundamental Rights (Part III of the Constitution)

The Constitution o f Bangladesh in its part III contains a set o f judicially
enforceable fundam ental rights, which include equality before law,

“S Ibid 274.
'*6 Ibid.
However, in 's p it; of the above observations from the Appellate Division in the
Constitution 8"' Amendment case, the High Court Division in a subsequent case of
Aftab Uddin v Bangladesh made a negative comment regarding enforceability o f the
preamble. ((1996' 48 DLR 1). The Court said that ‘[i]t is true that the Preamble to
the Constitution is not enforceable.’(Ibid 11). The High Court Division did not
substantiate this sentence. It is submitted that this particular comment made by
the High Court Division in disregard of the earlier Appellate Division Judgment
does not have legal authority.
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 Bangladesh Constitutional Fram ework and Human Rights

principles o f non-discrimination, equality o f opportunity, right to

protection o f law, protection o f right to life and personal liberty, safeguards
as to arrest and detention, prohibition o f forced labour, protection in
respect o f trial and punishment, freedom o f movement, freedom o f
assembly, freedom o f association, freedom o f thought and conscience,
freedom o f speech, freedom o f profession or occupation, freedom o f
religion, rights to property, protection o f home and correspondence and
the right to enforce fundamental rights.
The chapter on fundamental rights basically includes the rights o f CP
nature. However, there are certain fundamental rights that fall within the
category o f ESC rights or fall within the both categories o f human rights.
The provisions regarding prohibition o f forced labour (Article 34(1)),
freedom o f association (Article 38) including the right o f form ing trade
unions, freedom o f profession or occupation (Article 40) and rights to
property (Article 42(1)) are rights with significant ESC aspects that have
been incorporated as fundamental rights. In fact, human rights cannot be
so easily divided into watertight compartments.
The rights in Part III are guaranteed either in absolute terms or subject to
different restrictions. For example, ‘equality before law ’ under article 27 of
the Constitution is an absolute fundam ental right, while “freedom of
m ovem ent’ under article 36 has been granted ‘[sjubject to any reasonable
restrictions imposed by law in the public interest’, and the rights to
property under article 42 have been made ‘[sjubject to any restrictions
imposed by law .’ Some fundamental rights belong to citizens only;'’® while
certain others belong to citizens and non-citizens alike who reside within
the territory o f Bangladesh.
Constitutional Status and Enforcement
Part III sets express restrictions on law-m aking power. Article 26 declares
all existing laws inconsistent with any fundam ental right to be void to the
extent o f inconsistency, and prohibits the state from m aking any law
inconsistent with any provision o f that [Link] The use o f the term ‘state’
instead o f merely ‘parliam ent’ is significant as the term clearly includes the
legislature, executive and all other statutory a u t h o r i t i e s . T h u s , it does

“*8 For example, freedom of assembly guaranteed under article 37 of the Constitution.
For example, right to protection of law guaranteed under article 31 of the
Constitution.
50 Article 26 of the Constituti >n reads as follows: ’(1) All existing law inconsistent with
the provisions of this Part shall, to the extent of such inconsistency, become void
on the commencement of this Constitution.
(2) The State shall not muke any law inconsistent with any provisions of this Part,
and any law so made shall, to the extent f such inconsistency, be void. ... ’
Article 152 of the Constitution defines the term ‘state’ that includes ‘Parliament, the
Government and statutoty riublic authorities’. The term ‘statutory public authority’
has been further defined to mean ‘any authority, corporation or body the activities
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not only restrict the lawm aking power o f the legislature, but it imposes
equal restriction on the executive and other statutory authorities.
The duties o f the state regarding human rights recognized as fundamental
rights are immediately enforceable by individuals. Articles 44(1) and 102(1)
provide that an individual person who feels aggrieved can move to the High
Court Division for enforcement o f any o f his or her fundam ental rights
guaranteed in the Constitution. Under article 102(1), the said rights can
be enforced against any person including the persons who are ‘perform ing
any function in connection with the affairs o f the republic’. The court is
empowered to give any direction or order as it thinks ‘appropriate for the
enforcement o f any of the fundamental rights conferred by Part III o f this
Constitution’.
The prerequisite for enforcing any fundamental right under article 102(1)
is that the application has to be made by ‘any person aggrieved’. The
Supreme Court as early as in 1974, shortly after the adoption o f the
Constitution o f Bangladesh, liberally interpreted the m eaning o f that
phrase. The Court, in Kazi M ukhlesur Rahm an v BangladesYP^ expanded
the scope of ‘any person aggrieved’. In adm itting the locus standi o f the
petitioner, the Court said:
If a fundam ental right is involved, the impugned matter need not affect a
purely personal right o f the applicant touching him alone. It is enough if
he shares that right in common with o th e r s .^3
The judgm ent remained unnoticed until 1997 when the Appellate Division
finally relied on it in Locus Standi Case.^'^ In the words o f Kam al J, a
member of the Appellate Division:
W hat happened after Kazi Mukhlesur Rahm an’s case in Bangladesh was a
long period o f slumber and inertia owing not to a lack o f public spirit on
the part of the lawyers and the Bench but owing to frequent interruptions
with the working o f the Constitution and owing to interm ittent de-clothing
of the Constitutional jur isdiction o f the superior Courts.
In spite o f the precedent o f Kazi M ukhlesur Rahman, when the ‘Locus
Standi Case’ was heard first before the High Court Division, the High
Court Division did not allow the locus standi and construed the literal
construction and narrower meaning o f the term ‘aggrieved’ to include only
that person who was personally aggrieved. However, the Appellate Division
granted the locus standi saying that the High Court Division was ‘w ron g’ in
not allowing the locus standi, and remitted the case back to the High

of or the principal activit ies o f which are authorised by any Act, ordinance, order or
instrument having the force of law in Bangladesh’.
52 26 DLR (SC) 44.
53 Ibid, cited in Locus Standi Case (1997) 49 DLR (AD) 1,11 [32] (Kamal J).
5“ (1997) 49 DLR (AD) 1.
55 Ibid 12.

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Court Division for hearing.5^ Thus, Kazi M ukhlesur Rahm an was finally
endorsed in ‘Locus Standi Case’. The eventual im pact o f the ‘Locus Standi
Case’ judgm ent is that it has accelerated public interest litigation in
B a n g l a d e s h . P u b l i c interest litigation (PIL) is ‘a type o f litigation where
the interest o f the public is given priority over all other interests with an
aim to ensure social and collective justice, the court being ready to
disregard the constraints o f the adversary model litigation.’s® The general
rule o f locus standi that a person must be personally aggrieved to file
litigation is not applicable in PIL. It was established in ‘Locus Standi
Case’^^ that in Bangladesh, PIL, which is about any public wrong or
injury, can be filed by any person o f the society on beh alf o f the public at
large or a community, rather than only by a person who is personally
aggrieved. PIL standing would be granted also in cases o f ‘breach o f public
duty or for violation o f some provision o f the Constitution or the law .’^o It
is worth mentioning here that the PIL is not only restricted to cases where
violation o f any fundamental right is found; PIL can be filed for violation o f
any constitutional provision.

During the time o f emergency declared under article 141 A, the right to
enforce the fundam ental rights ,n any court may be suspended under
article 141C o f the Constitution, y .rticle 141C(1) says:
While a Proclamation o f emergen :y is in operation, the President may, on
the written advice o f the Prime W: nister, by order, declare that the right to
move any court for th ; enforcement o f such o f the rights conferred by Part
III o f this Constitut on as may be specified in the order, and all
proceedings pending in any court for the enforcem ent o f the right so
specified, shall rema n suspended for the period during which the
Proclamation is in force or for s jc h shorter period as may be specified in
the order.
It appears that the fur damentai rights do not disappear even during the
period o f emergency. However, the right to move to the court for their
enforcem ent can be removed for a limited period o f time.
Human Rights as the Fl’SP (Pa.’.t II of the Constitution)
ESC rights have been re ognize i as FPSP in Part II o f the Constitution of
Bangladesh. The Constiiution incorporated these rights in the form of
their corresponding duties, on t ie state. That is, they are expressed in the
language o f State duties rath;r than in the form o f individual human
rights.

56 Ibid 16.
5'^ Naim Ahmed, Public In1er[<si LiUgation (Bangladesh Legal Aid and Services Trust,
Dhaka, 1999) 45.
58 Ibid 51.
59 (1997) 49 D LR(AD ) 1.
60 Ibid 4 [8] ( Afzal CJ).

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Constitutional Status and Enforcement

The FPSP have a significant role to play in the making and interpretation
o f laws and the governance o f the country, but they have not been made
judicially e n f o r c e a b l e . T h e Constitution itself terms them as principles,
though Article 7 declares the whole Constitution to be the supreme law of
the land. However, the state is constitutionally obliged to im plem ent the
FPSP by following the directions given in the principles themselves.
Generally speaking, the state cannot be held liable, on the application o f
aggrieved persons, for non-im plementation o f the FPSP, unlike the
fundamental rights in Part III. Nevertheless, it has been observed by the
highest judiciary that the lack o f judicial enforceability does not mean that
the state can ignore implem entation o f these FPSP for an indefinite period
of tim e .62

International Human Rights Obligations and their Effect on

Bangladeshi Law
Apart from its constitutional obligations regarding human rights,
Bangladesh now incurs obligations under international human rights law
with regard to human rights. It acceded to the ICCPR in 2000 and the
ICESCR in 1998, and therefore it has obligations to im plem ent the rights
recognised in those treaties. Apart from treaties and conventions,
customary international law also acts as a significant source for human
rights obligations for Bangladesh.
Treaties are not self-executing in Bangladesh. Ratification or accession to
international treaties is not sufficient to oblige the Governm ent of
Bangladesh under its domestic law to perlorm the obligations arising out
o f those treaties. Until th ;y are incorporated into the dom estic legal
system o f Bangladesh, the state remains responsible only under
international law. The Constitution o f Bangladesh makes no express
com mitment regarding application o f international law (including
international human rights law). Ho-vever, the Proclamation o f
Independence o f 1971, which was the inteum Constitution o f Bangladesh,
explicitly affirmed the [Link] to perform all obligations that
Bangladesh incurred as a member o f ths international community. It
declared:
We further resolve that we undertake to observe and give effect to all
duties and obligations that devolve upon us as a member o f the family o f
nations and to abide by the Charter o f the United Nations.

The UN Charter contains some important provisions regarding human

rights. Thus, the interim Constitution through the above declaration
ultimately recognized those human righti; along with a com m itm ent to
perform related obligations. Unfortunately, no such com parable provision

S' See The Constitution o f Bangladesh art 8(2).

62 See Masdar Hossain v Bangladesh (1998) 13 BLD (HCD) 558 (Md. Mozammel
Hoque J).

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is found in the present Constitution o f Bangladesh. However, ‘respect for

international law and the principles enunciated in the United Nations
Charter’ have been declared by the Constitution to be one o f the principles
on which the ‘state [should] base its international relations’ in Article 25. It
appears that obligations under international law have been endorsed by
the Constitution o f Bangladesh only in the matters relating to
Bangladesh’s relationship with other states, not for any other matter.
Implementation of International Human Rights Law into the
Domestic Law
There are two theories regarding the relationship between international
law and national law: monism and dualism. According to the monist
theory, international law and national law ‘are concom itant aspects o f the
one general system— law in general ’, ^ n d in case o f a conflict between the
two, ‘international law is said to prevail’.^^ Dualism treats international
law and national law as ‘two entirely distinct legal system s’^^ that are
applied by two different types o f courts respectively, international and
national ('ourts.^e The application o f the latter theory may give rise to a
situation where ‘a governm ent may be behaving perfectly lawfully within
its own territory, even though its conduct may entail international
responsibility.

Two other doctrines deal with the application o f international law in the
dom estic 1 gal sphere: ‘incorporation’ and ‘transform ation’.^a The doctrine
of incorporation implies ‘automatic adoption’ o f international law by
municipal law,®^ which suggests that ‘a rule o f international law becomes
part o f national law without the need for express adoption by the local
courts or le g is la tu r e ’, In contrast with this, the doctrine of
transformation ‘stipula^'es that rules o f international law do not become
part o f national law until they have been expressly adopted by the state,
Article 152 o f the Cons itution gives the definition o f “law” in Bangladesh,
and it does not include international law. Nor does the Constitution o f
Bangladesh say anything about the methodology o f incorporation of
international law in the domestic jurisdiction. Neither m onist nor dualist
theories have been adopted explicitly in the Constitution. However, the

I. A. Shearer. Starke 's International Law (Butterworths, 11'^*' ed, 1994) 63-4.
6'^ Martin Dixon, Textbook on International Law (Oxford University Press, ed, 2007)
88.
65 Shearer, above n 63, 64.
Dixon, above n 64, 90.
67 Ibid 89.
M Ibid 94.
M Ibid.
70 Ibid.
71 Ibid 95.

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Constitution unequivocally declares itself to be the supreme law o f the

country ,'^2 ^nd the Constitution vested the law m aking powers prim arily in
the parliam ent,73 and partially in the President'^'’ and the Supreme Court
o f Bangladesh.'75 jf provisions regarding law-making are considered en
bloc, it appears that unless a provision, whether international law or any
other law or rule, becomes a law o f the country by one o f those three
authorities, that provision does not acquire the status o f law in
Bangladesh. The approach o f the Constitution o f Bangladesh towards the
relationship between international law and national law is therefore
dualist. The Constitution o f Bangladesh does not recognize international
law as a part o f national law, so international law, to be applied in the
domestic legal sphere o f Bangladesh, has to be transform ed into the
domestic legal system through one o f the above mentioned three law
making authorities. Thus, the possibility o f application o f international law
in the national law of Bangladesh reflects the doctrine o f transformation.
Unless the provisions o f international law are specificsilly adopted by the
appropriate legislative authority or judicial process, they will not be
binding in the dom estic legal jurisdiction o f Bangladesh. Similarly, the
Constitution o f Bangladesh has maintained a silence about the application
o f customary international law, so, customary international law also has
to be transformed in the same way as the treaties in order to be applicable
in the dom estic legal jurisdiction o f Bangladesh.^s

All o f the existing constitutional provisions regarding human rights were

incorporated in the Constitution when it was first adopted in 1972, long
before the accession o f Bangladesh to the Covenants on human rights.
Since the accession o f Bangladesh to the ICCPR and the ICESCR, no
provision in those treaties has been incorporated further in the
constitutional law of Bangladesh. However, as has been already pointed
out, the constitutional provisions regarding human rights at the time o f
adoption o f the Constitution were made in line with the International Bill
o f Rights.

Ratification of an [Link] Treaty: Power and Procedure

Articles 145 and 1 ^5A o f the Constitution deal with the provisions
regarding the making o f contracts and deeds and the form alities regarding
international treaties. Under article 145(1), the pow er to make any

■72 The Constitution o f Bangladesh Article 7(2).

73 Ibid art 65(1).
■74 Ibid art 93.
■75 Ibid art 111.
It can be argued that customar. international law is applicable even in a dualist
country irrespective of is [Link] into the municipal law. (See Scott L. Porter,
The Universal Declars ion of Human Rights: Does It Have Enough Force of Law to
Hold States Party to ihe War i'l Bosnia-Herzegovina Legally Accountable in the
International Court cl Justicc’ (1995-1996) 3 Tulsa Journal o f Comparative &
International Law 141, 152-155.) However, this debate is beyond the scope of my
thesis.

70 I P a g e
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contract or deed on behalf of the state is vested in the executive authority

o f the state, and any such contract or deed ‘shall be expressed to be made
by the President’ and ‘shall be executed on behalf o f the President by such
person and in such manner as he may direct or authorise’J'^ However, this
power lies ultim ately in the hands o f the Prime Minister, as the executive
power under which such contract or deed can be made lies in the Prime
Minister as article 55(2) clearly mentions that ‘[t]he executive power o f the
Republic shall, in accordance with this Constitution, be exercised by or on
the authority o f the Prime M inister’. Again, the President o f Bangladesh
has to act ‘in accordance with the advice o f the Prime M inister’ in the
exercise o f all o f his functions except the appointm ent o f the Prime
Minister and o f the Chief J u s t i c e .

Thus, an international treaty can be ratified in exercise o f the executive

power o f the Prime M inister but that shall be expressed to be made in the
name o f the President. There is no legal requirem ent to discuss an
international treaty in the Parliament before ratification. Nevertheless,
there is a constitutional requirem ent under article 145A that, after
ratification, an international treaty has to be submitted to the President
and ultim ately has to be laid before the Parliament.'^®
The requirem ent to place a treaty before the Parliament is a mere
constitutional formality. The parliament does not have to discuss or to
decide anything about any treaties laid before it. It is worth mentioning
here that articles 145 and 145A deal with the procedural formalities
regarding contracts, deeds and international treaties, but they are totally
silent about the application o f such treaties in domestic law.
Role of the Supreme Court in the Protection of Human Rights
The Supreme Court o f Bangladesh is empowered to enforce human rights
that are incorporated in Part III o f the Constitution as fundam ental rights.
The court also can enforce the constitutional pledge relating to human
rights that is embedded in the preamble. The court also has limited
powers regarding the human rights incorporated in Part II o f the
Constitution.

Can the court judicially recognize or enforce international human rights

law directly or indirectly? International human rights law may be divided
in two to deternaine its relevance in the dom estic legal system— the first
category includes the conventions or treaties that have been ratified or
acceded to by Bangladesh and the second category consists o f all other
international instrum ents to which Bangladesh has not yet become a

See The Consiitution o f Bangladesh art 145(1).

■^8 Ibid art 48(3).
About international treaties Article 145A of the Constitution o f Bangladesh says:
‘Ail treaties with foreign countries shall be submitted to the President, who shall
cause them to be laid before Parliament: provided that any such treaty connected
with national security shall be laid in a secret session o f Parliament.’

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party. The latter instrum ents do not give rise to any specific treaty
obligations. But the first category o f international instrum ents gives rise to
specific treaty obligations under international law. However, there is no
law in Bangladesh according to which the courts can enforce those
obligations in the dom estic jurisdiction. As explained above, international
human rights law does not become strictly binding, and thus enforceable,
by the courts o f Bangladesh unless transformed into the dom estic law.
Nevertheless, the courts in Bangladesh at different times have taken notice
various provisions o f international human rights law. W hile the Courts are
not explicitly em powered to apply provisions o f international law, they are
not barred from applying the provisions of international law provided there
is no conflict with dom estic laws.^o

The Constitution by its article 25 plainly endorsed the application o f the

principles o f the UN Charter in matters relating to international
relationships o f Bangladesh. On the basis o f this constitutional mandate,
the courts tested the validity of certain governm ental actions concerning
international relations in light o f the UN Charter. For example, in M
Saleem Ullah v Bangladesh,^^ the court held that the decision o f the
Governm ent o f Bangladesh to send troops to the UN Mission in Haiti was
in conform ity with Chapter V ll o f the UN Charter .^2

In Locus Standi Case,^^ Dr. Mohiuddin Farooque, the General Secretary of

the Bangladesh Environmental Lawyers Association (BELA) appealed
before the Appellate Division against the decision o f the High Court
Division to refuse him locus standi in the writ petition filed to declare ‘all
the activities and implem entation o f FAP-20 |Flood Action Plan-20]’ as
unlawful and “to be o f no legal effect'. The Appellate Division set aside the
decision o f the High Court Division and sent it back to the same court for
hearing on merit. To grant the locus standi in favour o f the General
Secretary o f BELA, ATM Afzal CJ in the Appellate Division relied on, inter
alia, ‘Principle 10’ o f ‘the Rio Declaration on Environm ent and
Developm ent’. He observed that ‘[p]rinciple 10 ... seems to be the
theoretical foundation for all that have been vindicated in the w rit petition
and also provides a ground for standing.’^'* Here, the Appellate Division

80 M. Shah Alam, ‘Enforcement of International Human Rights Law by Domestic

Courts: A Theoretical and Practical Study’ (2006) Netherlands International Law
Review 399, 425.
81 47 DLR (1995) 218,
82 Ibid 224
83 (1997) 49 DLR (AD) 1,
S'* Ibid 6. ‘Principle 10 of the Rio declaration says; ‘Environmental issues are best
handled with the participation of all concerned citizens, at the relevant level. At the
national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including
information on hazardous materials and activities in their communities, and the
opportunity to psirticipate in decision-making processes. State shall facilitate and
encourage public jiwareness and psirticipation by making information widely
72 I P a 0 e
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relied on a principle embodied in an international declaration as one o f the

grounds for the decision without even investigating the status of that
declaration in the municipal law o f Bangladesh. In fact, the declaration
relied on has not been incorporated in the municipal law o f Bangladesh.

In the same case, B. B. Roy Choudhury J, another mem ber o f the

Appellate Division, in arriving at the same decision, described the nature
o f certain FPSP with reference to article 1 o f the UDHR, using it as an aid
to interpret the constitutional provisions in order to liberalize the locus
standi for the institution o f suits involving public welfare. He observed:

They firm ly recognize human sensitivity for fellow-citizens and State

hum an responsibility for protection o f human rights enshrined in Article 1
o f the Universal Declaration o f Human Rights (to which Bangladesh is a
signatory) that “all human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit o f brotherhood” .

It was held in this case that an organization that had been working for the
protection o f public interest regarding environm ent had locus standi to file
a viTit petition in the m atters relating to environment, though the person
concerned was not aggrieved directly. The Court relied on international
declarations, namely the UDHR and the Rio Declaration, to reach this
conclusion.

The High Court Division continued its venture o f applying international

law in Professor Nurul Islam v Bangladesh, w h e r e it relied on resolutions
adopted by the W orld Health Organization (WHO) regarding tobacco
control. The petitioner sought enforcement o f the existing laws regarding
tobacco in order to prohibit advertisements regarding tobacco and tobacco
related products. The Court ultimately decided the case on the basis of
article 31 on the right to life and issued directions for banning the
advertisements regarding tobacco and tobacco related products. In
arriving at its final decision, the Court cited the WHO resolution in
support o f its stand taken against the advertisem ents o f tobacco. The
Court observed:

In view o f the resolution o f the W orld Health Organisation and admitted

bad effects as aforesaid in the matter o f advertisement, promotion of
tobacco based products and the provision in Article 25 o f our Constitution,
we are o f the view hat the government should have taken appropriate
steps for banning / 1 sstricting advertisement etc. as was provided by
Ordinance No 26 o f 1990.^7

available. Effective .access to judicieJ and administrative proceeding, including

redress and remedy, fihall be provided
85 Ibid 24.
86 (2000) 52 DLR 413.
Ibid 421-22.

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2. The local laws, both constitutional and statutory, are not always in
consonance with the norms contained in the international human
rights instruments. The national courts, should not, I feel,
straightway ignore the international obligations, which a country
undertakes. If the domestic laws are not clear enough or there is
nothing therein the national courts should draw upon the
principles incorporated in the international instruments.
3. But in the cases where the domestic laws are clear and
inconsistent with the international obligation of the state
concerned, the national courts will be obliged to respect the
national laws, but shall draw attention o f the lawm akers to such
inconsistencies.
4. In the instant case the universal norms o f freedom respecting
rights o f leaving the country and returning have been recognized in
Article 36 o f our Constitution. Therefore there is full application of
article 13 o f the Universal Declaration of Human Rights to the facts
of this case.
Thus, he advocated application o f international obligation in the domestic
jurisdiction in two situations: first, where the domestic law is unclear or
silent on a point, and secondly, if the domestic law is in consonance with
internation; .1 obligations. Application o f international obligations is barred
in only one situation: v/hen domestic law is clear on a point but is
inconsistent: with international obligation, domestic law will be applied in
disregard o f international obligation. However, in such a case, the court is
advised to draw the attention o f the lawmakers to the said inconsistencies
between dom estic law ' and international obligation, with a view to
prom pting legislative change. This judgm ent is significant as it has, to a
limited extent, created room for application o f international obligation in
the domestic jurisdiction.
One remarkable feature o f the above obiter is that it recognized the use of
international law in the interpretation o f constitutional provisions o f
Bangladesh. Thus, it has created a scope for developm ent o f the
constitutional law o f Bangladesh in the light o f international law.
In 2009, in BNWLA v Bangladesh, t h e Court reiterated the view
regarding the use o f international law in interpreting m unicipal and even
constitutional laws:

The internatinnal conventions and norms are to be read into the

fundamental rg h ts in the absence o f any domestic law occupying the field
when there is t o inconsistency between them. It is now an accepted rule of
judicial construction to interpret municipal law in conformity with
international law and conventions when there is no inconsistency between
them or there is a void ii: the domestic law.^^

96 (2009) 14 BLO 694.

97 Ibid 700-701
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The above judicial observation made clear the following two principles.
First, all municipal laws would be interpreted in conform ity with
international law and conventions if there is no inconsistency between
international law and the domestic law. Secondly, if there is any lacuna in
domestic law then that should be filled in by the provisions of
international law.^s The term ‘municipal law ’ or ‘domestic law ’ used above
includes the Constitution o f Bangladesh, thus endorsing the similar view
from Hussain M oham m ad Ershad. Therefore, these cases recognize the
use o f international law in the interpretation o f constitutional provisions of
Bangladesh. This view creates scope for development o f the constitutional
law o f Bangladesh in the light of international law.
However, the idea o f application o f international law in the matters
regarding constitutional law of a country is controversial in some
countries.^® For example, in Australia, Kirby J on its High Court supported
the idea o f using international law to interpret a constitutional
p r o v i s i o n , w h i l e McHugh J, on the same Court, vigorously opposed it.i°i
Indeed, Kirby J is the only Australian High Court judge to have adopted
this approach so far.
Again, in the USA, though the Supreme Court has relied ‘on international
law as persuasive authority and use[d] it to support their c o n c l u s i o n s ’ i° 2
in some cases, the idea o f using ‘international law in interpreting the

58 See also Bangladesh Environmental Lawyers Association (BELA), represented by its

Director (Programs) Syeda Rizwana Hasan v Bangladesh, represented by the
Secretary, Ministry o f Shipping (Writ petition No. 7260 of 2008, Judgment delivered
on 05.03.2009 and 17.03.2009, unreported) is a recent case on environmental
hazards in the matters regarding ship breaking .in the territorial water of
Bangladesh. The petitioner argued that since Bangladesh ratified the Basel
Convention 1989 on 1 April 1993, it was ‘bound to implement the provisions and
safeguards [Link] therein.' The Court decided that the provisions of the Basel
Convention were binding on the government authorities concerned, and ordered the
Ministry of Environment ‘to frame Rules and regulations for the proper handling
and management of hazardous materials and wastes, keeping in view’, inter alia,
‘the Basel Convention, 1989.’ It is arguable that the court adopted a monistic
technique in applymg international law in a dualistic country. For details of this
technique, see M jlissa A. Waters, ‘Creeping Monism: The Judicial Trend Toward
Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law
Review 628, 699-705.
99 Sarah Joseph and Melissa Castan, Federal Constitutional Law: A contemporary view
(Lawbook Co, 3rd ed, 2010) 51-56. See also Devika Hovell and George Williams, ‘A
Tale o f two Syste: is: The Use of International Law in Constitutional Interpretation
in Australia and £ outh Africa’ (2005) 29 Melbourne University Law Review 95.
100 Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513, 657-61; Kartinyeri
V Commonwealth (1998) 195 CLR 337, 417-18.

101 A l kateb v Godwin (2004) 208 ALR 124, 140.

102 Russell G. Murph\' and Eric J. Carlson, ‘"Like Snow [Falling] on a Branch ”:
International Law Influences on Death Penalty Decisions and Debates in the United
States’ (2009-2010) 38 Denver Journal o f International Law and Policy 115, 141.
1“ Daniel Bodansky, The Use o f International Sources in Constitutional Opinion’
(2004) Georgia Journal o f International and Comparative Law 421.

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U.S. Constitution is arguably the most controversial jurisprudential issue

in recent years.’lO'* The US Supreme Court in its m ost recent authority
recognized a limited applicability 1°^ o f international law in interpreting
constitutional p r o v i s i o n s ,

However, this controversy is beyond the scope o f my article, as this idea is

not controversial in Bangladesh. It is submitted that one reason behind
the willing acceptance in Bangladesh o f the use o f international law to
interpret its Constitution is, in part, due to its later entry into the
com m unity o f nations, compared to Australia or the US. Bangladesh
expressly com mitted to international law from the mom ent o f its birth as
an independent state, which is evident from its declaration in the interim
Constitution promulgated during the continuation o f the liberation war in
1 9 7 1 107 International law was much developed in 1971 when Bangladesh
was born. On the other hand, the domestic legal systems o f both Australia
and the US became highly developed independently w ithout resort to
international law, as extensive international law developments,
particularly in the area o f human rights, came many years after their
Constitutions. It is submitted that Australian or US judges are less
accustomed to going to international law in order to find a solution instead
o f ju stifyin g or analysing a given situation in the light o f their country’s
own jurisprudence. In the context o f their highly developed legal systems,
in contrast to Bangladesh, they could afford to more readily ignore
international law due to a greater wealth o f precedent and pre-existing
faith in their own legal doctrines. In contrast, the jurisprudence in
Bangladesh has de^ eloped after the advent o f human rights developments
in international lav , and Bangladeshi judges have always kept them in
mind in developing their jurisprudence, including their constitutional
jurisprudence.

Conclusion
The Constitution o f Bangladesh created an extensive scope for the
protection o f human rights. The constitution makers accom modated
different types o f human rights within the constitutional fram ework with
diversified apparatuses o f protection. The hum an rights provisions o f the
Constitution o f Bangladesh can be distinguished into two types— rights
and principles. The rights (largely CP) have been made judicially

'O'* Yitzchok Segal, The Death Penalty and the Debate Over the U.S. Supreme Court’s
Citation of Foreign and International Law’ (2006) 33 Fordham Urban law Journal
142, 142.
105 This is so when an international law is found to be supportive of the Court’s
independent rationale. See Chris Jenks, ‘Introductory Note to the United States
Supreme Court: Graham v. Florida 86 the federal Court Australia; Habib v.
Australia’ (2010) 49 International Legal Materials, 1029.
106 Terrance Jamar Graham v Florida, [2010] U.S. LEXIS 3881.
‘07 The Proclamation o f Independence para 20.

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 Dhaka University Law Journal Volume 22, Number 1, June 2011

enforceable, whereas the principles (largely ESC) are not enforceable by

law. However, both impose significant constitutional obligations on the
state. It is submitted that justiciability is not the sole criterion to assess
the magnitude o f a constitutional obligation. Non-justiciability o f these
rights does not autom atically degrade their constitutional status so as to
make the principles com pletely valueless.
The Constitution has no explicit provision endorsing the domestic
applicability o f international human rights law. Nevertheless, the judiciary
has developed scope for the recognition o f the provisions o f international
human rights law under certain circumstances. It is com mendable that
the Supreme Court o f Bangladesh has been increasingly recognizing
international human rights law. The growing tendency o f the highest
judiciary in Bangladesh is in favour o f applying the norms o f international
law, evident from the cases cited above. The Supreme Court in the above
cited cases has referred to international law to ju stify governm ental action,
to create awareness am ong the governmental authorities about im portant
human rights and sometimes to strengthen its judicial reasoning and
analysis. International law, including international human rights law, has
in fact the potential to influence and guide the interpretation and proper
evolution o f different constitutional provisions.

The eventual im pact o f the judicial observations made by B. B. Roy

Choudhury J, in H ussain M uhammad Ershad, is that international human
rights law can be applied in three possible constitutional situations. The
first situation is where a constitutional provision is found to be analogous
to international human rights law. It appears that many constitutional
provisions regarding human rights are analogous in substance to different
provisions o f the international bill o f rights. Such analogies thus have
created scope to apply international human rights law covered by the
constitutional provisions. Secondly, if the constitutional law is silent on a
point on which a solution has been provided by international human
rights law, international human rights law can be applied there to fill that
lacuna. Thus, constitutional law regarding human rights can be developed
further by way o f interpretation more in line with international human
rights law. The third possible situation is when there is a conflict between
municipal law and international law. In that case, though m unicipal law
will be applied, the court will give directions to the legislative authority to
remove such anomalies by bringing necessary changes to the m unicipal
law. Such directions are on the judicial record, even if the governm ent
does not ultim ately comply. Therefore, international human rights law
cannot be ignored totally. The venture for incorporation and
im plem entation o f different norms o f international law and international
human rights law by the domestic judiciary can go ahead running on the
pioneering wheels o f this precedent.

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