Leading approaches in the Court of Bangladesh for the Enforcement of Fundamental Principles of State Principles

An overview of how economic, social and cultural rights are recognized in national constitution finds that there are three main approaches[1]. First, these are recognized as justiciable rights. Second, they are recognized in a separate “Bill of Rights”, while third they are recognized as DPSP or FPSP[2].

It must also be understood that in some instances, Courts are better equipped than legislatures to assess complex evidence; particularly in relation to the effects of policies on disadvantaged groups who may have been ignored by the legislators. It has also become clear that social and economic rights claimants do not move towards the courts for some kind of superior expertise in social and economic policy. Rather, they rely on the traditional competence of courts to provide affair hearing and to review facts and to evaluate government decisions or policies against the requirements of law.

Courts of Bangladesh have also been encouraged to give effect or enforcement of certain Fundamental Principles of State Policies, through being obliged by seeing the international responses towards the enforcement of Fundamental Principles of State Policies. The question arises then when it’s been asked by the nation that why these Fundamental Principles of State Policies are not given the right of enforcement through the judiciary under the supreme law of the country; likewise In the midst of the severe political, economic and social challenges that our country continues to face, where should we place human rights in the development discourse?
These are some of the questions that arise whenever one brings up the controversial issue of socio-economic rights and their place in human rights discourse.

Although human rights have become a salient feature in international plane in recent years, speaking about food, housing, health and similar matters in rights language still often encounters resistance or causes confusion. There are a number of reasons why attempts to litigate economic, social and cultural rights may not result in judicial enforcement and why, even if enforcement is achieved in formal terms, this may not necessarily protect or fulfill the right in practice. In Bangladesh context evaluating empirically the impact of social rights litigation is challenging and has rarely been done in a systematic fashion. Bridging the gap between justifiability of civil and political rights and that of ESC rights is key if both sets of rights are to be considered on an equal footing[3].

Arguably, Bangladesh Constitution generates a dichotomy between civil and political rights and economic, social and cultural right by crafting the former enforceable by the court and the latter non-enforceable.
Economic, social and cultural rights are included in Part II of the Constitution as “fundamental principles of state policy” (articles 8 to 25). These include the equal rights of women, principles of ownership, provision of basic necessities of life including food, clothing, shelter, education and medical care, and worker’s rights.

Article 8(2) explicitly states that these principles are not judicially enforceable. It reads as follows:

“The principles set out in this part shall be fundamental to the governance of Bangladesh, shall be applied by the state in making of laws, shall be a guide to the interpretation of the constitution and of the other laws of Bangladesh, and shall form the basis of the work of the state and of its citizens, but shall not be judicially enforceable.”
Part III of the Constitution embodies the ‘fundamental rights’, encompassing mainly civil and political rights (Articles 26 to 47). Unlike Part II, the rights in Part III are justiciable. Citizens have the right to approach the High Court Division to redress any infringement of the rights[4].

  • Courts role as to Interpretation of the Fundamental Principles of State Policies

The status of the Fundamental Principles of State Policy within the framework of the constitution has come under judicial scrutiny in Kudrat-E-ElahiPanir and others v Bangladesh[5] where the appellants relying on article 7 of the Constitution attempted to convince the court that a law inconsistent with any of the FPSP is void. Article 7 deals with the supremacy of the Constitution, and clause 2 provides that

if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”.

Under the said case a challenge to Ordinance No. XXXVII of 1991[6] was made, which abolished the elected Upazila Parishads (the third tier of local government) and vested in the government all rights, powers, authorities and privileges of Upazila Parishad. The appellants, some chairman of dissolved Upazila Parishad, unsuccessfully challenged the law in HCD and then obtaining appeared before the Appellate Division by leave to appeal.

One of the main grounds was that the Ordinance being inconsistent with Article 9 and 11 as well as it runs against the sprite of the Constitution and becomes void by the operation Article 7(2). It was clearly against the gist of Articles 9 and 11. But the problem was that Articles 9 and 11 are in the Part II containing the Fundamental Principles[7].

In the main judgment of the said case the court held that, those articles are not judicially enforceable as they are located in Part II of the Constitution. It was contended by Shahbuddin Ahmed CJ in the judgment that,

“if the State does not or cannot implement these principles the Court cannot compel the State to do so and other such fundamental principles also stand on the same footing[8]

With concurrence of the contention of Shahabuddin Ahmed CJ, Mustafa Kamal J stated two points of that case; these are as follows:

  1. there lies a specific provision in the Constitution in relation to Fundamental Rights and their inconsistency with other laws[9]
  2. Article 7(2) of the Constitution only says or is only applicable when any law is inconsistent with the Constitution. And the Constitution itself recognizes Part II as ‘Principles’ not as ‘Laws’. Equating ‘laws’ and ‘principles’ will go against the laws of the constitution[10].

Although, the Court was not willing to accept the enforceability of the FPSP by the judicial system in the judgment of the said case but many of the logical points in this regard can be showed which in reality proclaims the judgment of the said case to be reconsidered[11].

Some of those logical points are enumerated below:

  • No discrepancy between ‘Principles’ and ‘Laws’

The Constitution of the Peoples Republic of Bangladesh does not necessary provides any discrepancy or distinction between the ‘principles’ and ‘laws’. Moreover, under Article 7 of the constitution it starts the line with the term “this constitution”; which specifically indicates constitution does differently equates between ‘laws’ and ‘principles’.

  • Interpretation of the clause “shall not be judicially enforceable”

In harmonious meaning it should mean that, the Court cannot compel the State to take progressive measures. But if the State becomes destructive of these principles, then the court can and should always pin down such kind of retrogression[12].

In this regard, Justice BadrulHaiderChowdhury of the Appellate Division of the Supreme Court in Anwar Hossain v Bangladesh[13] has stated that,

“Though the Directive Principles are not enforceable by any Court, the principles therein laid down are nevertheless fundamental in the Governance of the Country and it shall be the duty of the state to apply these principles in making laws. It is a protected article (article 8) in our Constitution and the legislature cannot amend this article without referendum. This alone shows that the executive cannot flout the Directive Principles. The endeavor of the Government must be to realize these aims and not to whittle them down[14]

An interpretation of constitution that allows repealing laws inconsistent with the fundamental principles will be in template harmony with the vision and mission of the Constitution enshrined in the Preamble[15].

  • Invoking in Practice

Some other prominent cases of Bangladesh dealing with the issues of FPSP are mentioned underneath:

  • ASK and ORS V Government OF Bangladesh and ORS[16]

In Dhaka city, a large number of inhabitants of bastis, or (informal settlements,) were evictedwithout notice. Their homes were demolished with bulldozers. Three non-governmental organisations concerned with human rights and upholding the rule of law, and two slum dwellers in Dhaka filed a writ petition under Art 102 of the Constitution, challenging the Government’s demolition of ‘Basties’ (slum-dwellings) in Dhaka and the eviction of their inhabitants. The petitioners alleged that implementing the project, without proper notice or provision of alternative housing, would, inter alia, violate the fundamental rights to equality, life, liberty and livelihood (Articles 27, 31 and 32 of the Constitution) of hundreds of thousands of people as well as principles contained in the Fundamental State Policy in the Constitution. The Supreme Court recognized that such inhabitants are often the victims of misfortune and natural calamities, migrants who earlier fled from rural areas where profession, food or shelter were scarce. Slum dwellers also contributed significantly to the national economy. The Court believed, however, that some dwellers took to crime.

In this The Court held some logical points, these are given underneath:

Even though in the circumstances the slum dwellers could not be properly notified of the planned evictions, respect for human dignity requires that they must be undertaken in the spirit of the Constitution and under a specific rehabilitation programme. The Government may proceed with the eviction process but it should be done in stages and with reasonable notice. A master plan or pilot project to rehabilitate slum dwellers in phases, taking account of the availability of other housing, should be undertaken. Otherwise, the total eviction of one slum may simply cause another to develop. Slum dwellers should be given the option of returning to their home villages, or leading an urban life. If they choose to stay in urban areas, they should be provided with loans for constructing houses, food, and in some cases vocational training. Special arrangements should be made for vulnerable population groups such as the sick and elderly, including the provision of food, shelter and medical facilities.

  • Impact of the Judgment

In terms of rehabilitation, the Government has occasionally made land temporarily available for evictees, for example, when it had an urgent need for squatters’ land for a building site. But it remains limited to getting temporary protection. There is no recognized right to shelter. As observed by Dr. Kamal Hussain who was central in the above mentioned case,

“all we have is a protection against some forcible evictions. But this temporary reprieve can be used to pursue other alternatives.”

 After getting the first judgment, whereby the court recommended that rehabilitation programmes should be made available, the judges suggested that we pursue the executive branch of the Government: they’re the ones that will give you land.

  • DrMohiuddinFarooque v Bangladesh &Ors[17]

A consignment of powdered milk imported by a respondent company exhibited a radiation level above the acceptable limit in some (but not all) of the examinations conducted by various government testing bodies. The petitioner, who was the Secretary General of the Bangladesh Environmental Lawyers Association (BELA), argued that the actions of the relevant government officers in not compelling the importer to send the consignment back to the exporter had violated the constitutional right to life of the people of the country, including himself, who were potential consumers of such goods[18]. He sought an order directing that measures be taken to send the consignment back. The exporter had already initiated a civil suit against the Government in a lower court seeking a re-examination of the consignment and a declaration that an order sending it back was illegal.

The Supreme Court of Bangladesh considered Indian Supreme Court decisions and held that the right to life is not limited to the protection of life and limb but also includes, amongst other things, the protection of the health and normal longevity of an ordinary human being. Even though the directive principle[19] of raising the level of nutrition and improving public health cannot be enforced, the State can be compelled by the courts to remove any threat to public health unless such a threat is justified by law. The Court made specific directions for the better implementation of radiation standards and ordered the Government to properly contest the suit filed by the exporter challenging the return of the consignment so that the matter can be properly adjudicated.

In denying the relief sought but issuing specific directions to improve testing procedures, it was held by the court that:

  1. The right to life is not limited to the protection of life and limb necessary for the full enjoyment of life but also includes, amongst other things, the protection of the health and normal longevity of an ordinary human being (various Indian Supreme Court decisions considered).
  2. Health and the normal expectation of longevity can be threatened by man-made hazards, including the consumption and even marketing of food or drink injurious to health.
  3. The state can be compelled by the courts to remove any threat to public health, unless such a threat is justified by law, even though its primary obligation under Art 18 of the Constitution, as a Fundamental Principle of State Policy, to raise the level of nutrition and improve public health cannot be enforced.
  4. 4. The Government’s enactment of the Nuclear Safety and Radiation Control Act 1993 and publication of the Import Policy Order 1993-95 show that it was conscious of the threat posed to the life of people in Bangladesh by the consumption of foods containing an excessive level of radiation and was, by providing for radiation testing, taking steps to control any risk. Nevertheless, the confusion which has led to the present situation was created by the actions (and inaction) of officers of the various testing bodies.
  5. It is not considered advisable, however, to give any direction to the importer to send back the consignment in question as the relief sought by the petitioner is under judicial consideration by the court below in the separate suit brought by the exporter. The Government is directed to contest the suit in the lower court by filing a written statement and producing relevant evidence so that the matter can be properly adjudicated.

Therefore, to avoid confusion and to ensure enforcement of the right to life, specific directions should be given to the testing bodies for the better implementation of the provisions of the Import Policy Order in regard to radiation levels in food. Until foolproof effective methods are evolved by the authorities, the testing bodies are directed to follow the procedures set out in the present judgment.

 

  • Bangladesh v. Winifred Rubi and Others[20]

In this case a question arose as to whether land requisition for a private school was for ‘public purpose’ and there also arose an incidental question as to whether a private school which charges a very high tuition fees could be regarded as acting in furtherance of State Policy relating to Education as contained Article 17 of the Constitution[21]. The Appellate Division of the Bangladesh Supreme Court held that such an incidental inquiry was ‘unwarranted by law in the Constitution on the ground that, the Constitutional mandate  provides in the Chapter on Fundamental Principles of State Policy that these are not enforceable in Court of law’.

  • Rabeya Bhuiyan v. Bangladesh[22]

In this case the Appellate Division of Supreme Court of Bangladesh held that the failure to ensure the access to arsenic free and safe drinking water constituted a violation of rights to life as guaranteed by Articles 31[23] and 32[24] of the Constitution, read together with Articles 15 and 18[25]; which provides for State obligation to ensure basic necessities and improve public health. This case is an excellent example of ‘rights-linked’ perception and enforcement of socio-economic principles under Articles 15 and 18 on the basis of their constitutive and instrumental relevance with judicially enforceable fundamental rights to life under Article 32 of the Constitution. Tafazzal Islam, J. was quite vocal on the point of this relevance, as His Lordship observed- “hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environmental protection[26]

[1] M. Ssenyonjo, Economic, Social and Cultural Rights in International Law, Diamond Publishers, 2009, P- 152

[2] Hans M. Haugen, Human Rights Principles- Can They be Applied to Improve the Realization of Social Human Rights?, Max Plank Yearbook of United Nations Law, Koninklijke Brill N.V, Volume 15, 2011, P- 425; Source:  

[3] Towards Judicial Enforcement of Socio-Economic rights, Mohammad NayeemFiroz, The Independent News, <http://www.theindependentbd.com/index.php?option=com_content&view=article&id=226110:towards-judicial-enforcement-of-socio-economic-rights&catid=169:op-ed&Itemid=201> 

[4] Article 44, Constitution of the Peoples Republic of Bangladesh.

[5] Kudrat-E-ElahiPanir and Others v Bangladesh, 44 DLR (AD) 319

[6] That subsequently became Act No. II of 1992

[7] See Annexure A for details

[8] Supra Note 77, Para 22

[9] The Constitution of the People’s Republic of Bangladesh, Article 26

[10] Supra Note 77, Para 84

[11]Supra Note 30, P- 133.

[12] Justice GolamRabbani, GonoProjatontriBangladesherShognbidan: Sohoj Path, Samunnoy, Dhaka, 2008, P-38

[13] Anwar Hossain v Bangladesh, 1989 BLD (Spl) 1

[14] Ibid, Para 53

[15]  M Jashim Ali Chowdhury, DoesInconsistency with Fundamental Principles invalidate a Law? BRAC University Journal, Vol V No 1, Dhaka 2008, PP.(72-75)

[16] ASK and ORS V Government OF Bangladesh and ORS (Writ Petition No. 3034 of 1999); (1999) 2 CHRLD 393

[17] Dr Mohiuddin Farooque v Bangladesh &Ors 48 DLR(1996) (HCD) 438; (1996) 2 CHRLD 107

[18] Constitution of the Peoples Republic of Bangladesh, Article 31 and Article 32

[19] Ibid, Article 18

[20] Bangladesh v. Winifred Rubi and Others, 34 DLR (AD) 164

[21] See Annexure A for details.

[22] Rabeya Bhuiyan v. Bangladesh, 59 DLR 176

[23] Right to Equal Protection before Law

[24] Right to Life, Liberty and Security

[25] See Annexure A for details

[26] Ibid, P-184

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Rizvi Hasan Porosh

Adult from childhood, deliberate,self-motivated,cautious, voracious reader, black-and- white thinker, talks in extremes, can’t bear to fail, has very high expectations for self, more comfortable with people who are older or younger. I tend to charm strangers easily and i usually can get what i want from them.

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