The constitutional law of Bangladesh : progression and transformation at its 50th anniversary

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The constitutional law of Bangladesh : progression and transformation at its 50th anniversary

M Rafiqul Islam, Muhammad Ekramul Haque, editors

Springer, c2023

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Includes bibliographical references and index

内容説明・目次

内容説明

This book provides a supportive lending hand to researchers of constitutional law worldwide about the constitutional law of Bangladesh. Moreover, this book discusses the evolution and development of the constitutional law of Bangladesh over 50 years from its embryonic stage with reference to comparative constitutional law. This book is a very useful resource for the comparative constitutional researchers as readers will be able to easily interpret the constitutional law of Bangladesh from national, regional and global constitutional law perspectives. This book celebrates the fiftieth anniversary of the Constitution, the first of its kind to portray the journey of constitutionalism in Bangladesh comprehensively with intellectual observations and palatable recommendations for improvement. This book looks back to the constituent assembly debates, intention of the constitution makers and how have those dreams and aspirations have come into realities, what goals have been achieved, what caused some failures, and what should be its future directions. At such a momentous point in history, it is imperative that its native and foreign constitutional authoritative voices scholarly assess the constitutional design, understand the reasons for its successes and occasional failures, and ventilate their views towards its progressive development to elevate it to a new height in the 21st century and beyond. The book chapters discuss not only the text of the constitution and some judicial precedents, rather involve in a much larger task of unveiling the interpretative approach of the Constitution from a comparative constitutional law perspective. This book shall project the future roadmap for the journey of constitutionalism in Bangladesh throughout all chapters offering policy recommendations for the revision of the Constitution.

目次

  • Foreword:Professor Richard Albert Introduction: 50 Years of the Constitution of BangladeshM Rafiqul Islam and Muhammad Ekramul Haque Section 1: an analysis of the entire constitutional journeySection 2: summary of the chapters, Section 3: Way forward, roadmap for future constitutionalism 1. Constitution Making, Intention of the Constitution Makers and the Spirit of the Constitution of Bangladesh Kamal HossainThis chapter encompasses the context in, and process by, which the Constitution was framed after independence, how challenges pertaining to making a constitution in a newly independent country were overcome resulting in no constitutional gaps. Philosophical hindsight in making the constitution, intentions of the constitution makers, spirit of the constitution and how constitutions of different countries, international law, history of struggle of the Bangladeshi people had an influence on drafting the constitution are discussed. The chapter also examines what was the actual dream of the framers post adopting the constitution, and what they had imagined about the impact of the constitution in Bangladesh. Finally, it portrays how their dreams resonate in the 21st century Bangladesh. 2. The Constitution of Bangladesh, Philosophy and Legal Theories Shahdeen Malik The Constitution of Bangladesh was framed with the 'high ideals of nationalism, socialism, democracy and secularism'. The fusion of these broad-ranging philosophies lay down the foundation of the Constitution. In designing different parts of the Constitution, the framers blended different legal theories within its architecture fine-tuning with its high ideals. There is also an influence of diverse legal theories on different constitutional amendments introduced and enacted at different times. This chapter evaluates the influence of different legal theories and philosophies in the constitutional design of Bangladesh. It also critically looks at the impact of different legal theories and philosophies on the later development of constitutional jurisprudence in Bangladesh led by the Supreme Court while exercising its interpreting authority in constitutional adjudication. 3. Constituent Assembly Debates on Framing the Bangladesh Constitution: Intentions, Insight and Apprehension Md Nazrul Islam The Constituent Assembly of 1972 carried out a lively, meaningful and in-depth debate on the objectives, principles, contents and institutions of the Bangladesh Constitution. Among other things, the debate mostly centered on the design of the constitution regarding the enforceability of fundamental principles of state policy, desirability of putting restrictions on the enjoyment of fundamental rights, independence of the judiciary, parliamentary sovereignty and accountability of the executive. Although the 1972 Constitution is the outcome of this debate, it is impossible to unveil the underlying meaning of many of its provisions without making resort to this debate. The constituent assembly debate reflects important guidelines for appreciating the intentions, insights, and apprehensions of the framers of the Constitution and for chalking down the subsequent constitutional discourse. It thus merits special importance in the interpretation of constitutional and legal provisions as well as in taking measures for strengthening the constitutional architecture. This chapter examines the constituent assembly debate to outline those guidelines and articulates both constitutional development and deviation so far. Finally, it identifies the areas which future constitutional discourse should evolve and contribute to strengthening the constitutional and democratic institutions in Bangladesh. 4. Secularism as a State Policy, State Religion, and Minority Rights in the Constitution: Benign or Malign for Communal Harmony in Bangladesh? Mohammad Golam Sarwar Secularism was a driving force in the liberation struggle leading to the independence of Bangladesh. The original Constitution of Bangladesh 1972 recognised such spirit of the liberation movement and incorporated secularism as a fundamental principle of the state policy. The concept of 'secularism', being propounded by the father of the nation Bangabandhu Sheikh Mujibur Rahman, had its autochthonous meaning and implication in Bangladesh and was understood not as hostility to any religion rather inclusive of all religious practices. Bangabandhu's secularism was a clear objection to the politicisation of religion and embodied in the Constitution as one of the state policies. With political paradigm shifts over the years, the original form of secularism was first removed and subsequently restored in a compromised form. The simultaneous recognition of Islam as the state religion and retention of secularism as the high ideal and fundamental principle of state policy indicates a vague and contradictory aspect which, arguably, compromises the secular character of the Constitution and the state. The incompatibility of secularism and state religion leaves room to manipulate the minority rights threatening communal harmony in Bangladesh. This chapter analyses the unpleasant journey of secularism starting from its original position to the present-day context. It assesses the compatibility of the concurrent position of state religion and secularism in the Constitution and evaluates the implications of such position considering the rights of religious minorities. The chapter argues that the changing paradigm of secularism, being different from its indigenous understanding, indicates a tendency of 'religionisation of politics' leaving serious implications of intensifying religious hatred and communal violence. 5. Constitutional Recognition of Customary International Law Principles in Bangladesh Nakib M Nasrullah After the colossal growth of international law and practices in 1950s onwards, the international law principles either made of treaty or international customs have become increasingly a relevant consideration in constitutional ideas, concepts and rulemaking. Due to the restraint based on the conflict between monism and dualism in the application of treaty principles, states are often seen to have paid their attention to the inclusion of customary principles in their constitutions to fulfill their constitutional commitments towards the protection of the rights of the citizens, compliance with the obligation of jus cogens norms, ensuring full democratisation and participation in global peacebuilding. The Constitution of Bangladesh is not an exception to this global trend. As a constitution of a newborn state in 1972, Bangladesh considered in its rulemaking process the inclusion international legal norms and ideas derived from international customary principles in different approaches such as mandatory, recommendatory and as a basis for pro-people oriented democratic administration. This chapter is an in-depth search for how far the international customary principles have direct and indirect effect in or are used as guidance for the constitution-building in Bangladesh. It primarily focuses on the textual/contextual interpretation of the relevant constitutional provisions using the lenses of customary principles of international law. It draws a conclusion on the influential role of the customary principle on the constitution-building process in Bangladesh. 6. Constitutional Changes in Bangladesh: A Socio-Economic and Political Analysis Md Parvez Sattar and Naveed Mustahid Rahman Constitutional changes are not asocial or apolitical. Therefore, to paint a more comprehensive academic picture, the doctrinal exploration of constitutional amendments needs to be complemented with analyses of the larger socio-economic and political factors that play a role in the legislative changes, followed by judicial responses to the changes. With this approach, this chapter explores fifty years of constitutional changes in Bangladesh to identify the major political and socio-economic themes or factors underlying the 17 amendments made to the Constitution of Bangladesh and the accompanying jurisprudence developed by the Supreme Court of Bangladesh. In this regard, the 8th Amendment and its invalidation by the Supreme Court through the basic structure doctrine, which is zealously adopted later by the Parliament itself through the 15th Amendment, is certainly one of the most significant changes introduced in the constitutional practice in Bangladesh. The chapter identifies and analyses certain common socio-economic and political factors that run through the background when it comes to constitutional amendments and related judicial interventions. Finally, the chapter presents a theoretical perspective of these factors influencing the constitutional change in Bangladesh. 7. Role of Parliament in Ensuring Democratic Accountability: Setting the Agenda for Strengthening the Parliamentary System of Bangladesh Abdullah Al Faruque This chapter traces the evolution of the Bangladesh Parliament over the last fifty years highlighting its role in ensuring democratic accountability and recommends suggestions for strengthening the parliamentary system. While the law-making remains the primary function of parliament, it is also entrusted to ensure accountability of the government through the supervisory role of its committees. The parliamentary committees are considered 'mini legislature' in many countries and play a significant role in making the parliamentary system effective by monitoring government activities and holding various government agencies accountable. But the parliamentary committees are largely dysfunctional in Bangladesh due to various reasons. This chapter evaluates both the legislative and supervisory role of parliament performed through its standing committees. Both horizontal and vertical accountability that parliament promotes in developed countries are considered to explore the constraints on such accountability mechanisms in Bangladesh. In this context, the chapter critical examines (a) how far the recommendations of the standing committees are taken into account by the government, (b) the barriers in ensuring individual accountability of the ministers, (c) the prohibition of floor-crossing under Article 70 of the Constitution, and (d) the experiences of laws made through the private members' bill and its challenges in Bangladesh. 8. Separation of Powers and Judicial Independence in a Comparative Context-Bangladesh as a Test Case A F M Maniruzzaman Separation of powers - an incantation against the concentration of powers in the same hands and a bulwark against the abuse of power - is a fundamental constitutional principle, constitutive element of a democratic government, and the foundation of modern constitutionalism that draws its inspiration from great philosophers such as Aristotle, Locke, Montesquieu and others. It has, however, proved time and again that the doctrine of separation of powers is not meant to be stricto sensu or a watertight concept. In the Common Law traditions, the doctrine appears to be a relative concept, and it provides checks and balances between the three organs of government: the legislative, executive and judiciary with the requisite allowances being made. The judicial independence as the crown of the judiciary stands as the arch stone maintaining the balance of the other two. Unfortunately, the judicial independence in this trilogy of separation of powers has proved to be an enigma as it remains undeveloped in many ways. This chapter appraises the scenario in a comparative constitutional law context and use Bangladesh as a test case to see where it stands in its constitutional journey over the last five decades since its independence in 1971. 9. Constitutionalisation of Good Governance and Human Rights Sumaiya Khair Acknowledging that good governance and human rights are mutually reinforcing, the UN, its different agencies and international development partners urge States to aspire to reach the highest standards of good governance and human rights in respective national contexts. Indeed, most human rights are recognised by national constitutions, and they constitute the core of the constitutional order of modern States. They determine not only interactions between citizens and the State, but also inform the State structures, influence decision-making and oversight processes by holding public officials accountable for acts or omissions that are contrary to the constitution. As such, the constitution functions as the foundation of a country's governance system, in addition to being a bill of rights. This chapter looks at how the Constitution of Bangladesh maintains a fine balance between fundamental rights and fundamental principles of state policy in ways that supplement each other to ensure democratic governance, preserve the rule of law and pave the way for a just, free, and egalitarian society.10. Development of the Mechanisms for Judicial Accountability in the Contemporary World: Whither Bangladesh? Sarkar Ali Akkas Judges exercise judicial power to administer justice according to the law of the land. To ensure proper administration of justice, performance of judicial duties and judicial conduct are two important requirements that are to be satisfied by judges so that public confidence in the judiciary can be engendered and sustained in an appropriate manner. However, Bangladesh lacks an efficient system and transparent procedure for making complaints against a transgressing judge. Consequently, it is almost impossible for the public to file a complaint against a judge for his/her incapacity or misconduct including corruption. As against this backdrop, this chapter advocates for the reform of the mechanisms for judicial accountability in Bangladesh. It argues that for the sake of public confidence in the judiciary, particularly to ensure justice free from illegality and corruption and to maintain high standards of conduct and propriety of judges, there should be an accessible system to make complaints against judges. This chapter makes suggestions for the reform of the existing mechanisms in Bangladesh. 11. Fifty Years of Electioneering in Bangladesh: The Collapse of a Constitutional Design M Jashim Ali Chowdhury Orderly transfer of power through regular, participatory, free, fair and credible election is the most fundamental, though not the only, requirement of democratic constitutionalism. Bangladesh's fifty years long experience of electioneering represents a constitutional design spoiled by a culturally illiberal value system. This chapter argues that problems of elections in Bangladesh are twofold. The formal institutional design of electioneering is (a) weakened by the deinstitutionalising tendencies of its clientelist and autocratic party system, and (b) troubled arguably by the lack of institutional imagination on part of the framers and subsequently reformers of the Bangladesh Constitution. The 'institutional imagination' prong of the chapter begets three additional arguments. First, while adopting the UK's majoritarian first-past-the-post system of election, the framers overlooked the merits of a proportional representation system prevalent in consociational democracies across the continental Europe and elsewhere. Secondly, the framers' imagination of an 'independent' Election Commission was less than visionary in articulating its constitutive and administrative autonomy. The Commission as designed in the original Constitution is prone to easy co-optation by the executive branch. And thirdly, the later day political reformers of Bangladesh performed even worse in terms of institutional imagination. The high-profile introduction and demise of the Caretaker Government and some other sub-constitutional reforms of the Election Commission that were attempted by the later day politicians were convenience driven and therefore lacked any serious consideration of the Constitution's structural balances and foundational principles. This chapter concludes by reemphasising the first of Bangladesh's two electioneering problems - a formal institutional design deinstitutionalised by an illiberal political system. 12. Restrictions within the Fundamental Rights in the Bangladesh Constitution: Wednesbury Unreasonableness, Proportionality, Margin of Appreciation Md Azhar Uddin Bhuiyan The design of the Bangladesh Constitution provides that some fundamental rights are absolute while others are qualified on different grounds. Such an architecture of the autochthonous Constitution leaves discretion in the hands of the court to interpret and develop contents of fundamental rights jurisprudence, and policy space in the hands of the executive and legislature to effectively govern the country. While interpreting these constitutional texts, the Supreme Court of Bangladesh has quite unanimously run the 'wednesbury unreasonableness test' and expressly declined to transplant its non-identical cousin the 'proportionality test'. This chapter enquires into the application of the 'wednesbury unreasonableness' test and in-application of the 'proportionality test' by the Supreme Court. By showing the difference between the utility of these two tests, the chapter argues that the proportionality test provides a more transparent and clearer framework to review executive and legislative actions involving fundamental rights of the people. It also investigates the unique political history of Bangladesh that contributed to the judicial reticence in accepting the 'doctrine of proportionality' and the fear that any higher test than the Wednesbury test would transgress the jurisdiction of the executives and legislature. Finally, it argues that such discomfort of the different branches of the government may be cured if the court, taking a functionalist approach, borrows another doctrine - the 'margin of appreciation'. 13. Protection through Constitutional Guarantees: The Case of Women, Children and 'Backward Sections' of the People Borhan Uddin Khan and Md Al Ifran Hossain The Bangladesh story of constitutional guarantees towards fundamental rights protection is riddled with socio-political turbulences marked by coup d'etat, shadow authoritarianism and executive's unchecked deference within the democratic system of governance. Despite initial setbacks, Bangladesh has successfully managed to maintain a slow, yet sustained trend of elevation when it comes to the effective realisation of rights guaranteed under the constitutional architecture. The Constitution of Bangladesh recognises different categories of rights within the purview of the Fundamental Principles of State Policy (Part II) and Fundamental Rights (Part III). The twin principle of equality (both formal and substantive) and non-discrimination have been assertively enumerated under Articles 27 and 28 of the Constitution which requires the State, not to discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. However, it has also repeatedly stated the necessity of affording special protection to women, children and 'backward sections' of the people. The term 'backward sections' of the people used in different provisions of the Constitution has neither been defined in it nor in any other laws but left to the judicial construction to be adjudicated by the Supreme Court of Bangladesh holding differentiated yet exclusive right to enforce and interpret constitutional provisions both in theoretical and practical situations. Consequently, the constitutional journey towards upholding and protecting the rights of women, children and 'backward sections' of the people is intrinsically intertwined with the intervention of the higher judiciary. This particular approach has also turned the 'backward sections' of the people as an undertheorised concept. In this backdrop, this chapter explores the constitutional trend, development and challenges relating to the effective realisation of rights for women, children and 'backward sections' of the people in Bangladesh. 14. Realising the Rights to Property and Land under the Constitution of Bangladesh: Myths and Realities Mohammad Towhidul Islam The Constitution of Bangladesh aims for a socialist society achieved through democratic means as one of its main objectives. To effectuate the objective, it talks about three types of ownership, namely, state ownership, cooperative ownership, and private ownership. Thus, it tends to establish ownership of properties on one hand and control property rights on the other hand by providing the legal process for compulsory acquisition, nationalisation, or requisition of any property, or through temporary or permanent control or management thereof under the provisions of law. The Constitution has also allowed private ownership of land subject to restrictions imposed by law. This chapter analyses how the land legislation enacted before adopting the Constitution and still in effect and legislation enacted post-independence have maintained this balance of right to property and achievement of the fundamental aim of realising a socialist society. The discussion refers to the constitutional provisions as to the right to property and land, and the relevant Constituent Assembly debates. It also analyses the land legislation in force and major judicial decisions regarding property and land rights. It concludes with a finding on whether the land legislation have been able to achieve the constitutional aim of a socialist society and ensure that the right to property has been secured.15. Digital Constitutionalism, Emerging Technologies and Global Trends: Demystifying Bangladesh's Moves Mohammad Ershadul Karim The understanding of classical constitutionalism has been taking a paradigm shift in the context of burgeoning groundbreaking technological innovations and applications especially after the end of the cold war. While the incredible effects, impacts, prospects, promises and contributions of the information and communication technologies (ICTs), the hallmark of the third industrial revolution, coupled with the Internet have been hailed as catalyst in ensuring citizens' fundamental rights and thus, are recognised as enabler in attaining almost all the UN Sustainable Development Goals 2030. The ownership and technological operations of these applications by non-state actors sitting beyond the state's territorial limits in this borderless world have been posing some rudimentary concerns and challenges as well frustrating the equilibrium of freedom and security. While countries around the world have been confronting these evolving challenges, these present additional problems for the stakeholders in emerging democracies such as Bangladesh en route to their aspiration to progress and meaningful development. In these backdrops, this chapter explores the theoretical aspects of constitutionalism, sovereignty and governance of ICTs in the context of digital atmosphere, and the impacts of emerging technologies in this regard. By sharing the opportunities and threats of these technologies in attaining fundamental rights of the citizens, the chapter debunks the experiences of other jurisdictions to project their experiences in dealing with associated legal and regulatory issues. These issues are evaluated highlighting the practices in the Digital Bangladesh to assist the stakeholders in setting their future policy moves. 16. From 'Colonial' to 'Constitutional' Criminal Justice in Bangladesh: A Transition Yet to be Accomplished Muhammad Mahbubur Rahman The criminal justice in pre-independent Bangladesh, both in law and practice, was primarily aimed at asserting colonial or quasi-colonial dominance over its native subjects. Accordingly, the criminal justice policies not only relied on wide discretion of criminal justice agencies so that the colonial masters could ensure selective application of criminal law, but also promoted a culture of 'governance through crime' so that the coercive apparatus of the state could be effectively used in favour of those in power. With the independence of Bangladesh, it was hoped that 'colonial' criminal justice would be transformed to 'constitutional' criminal justice since the Constitution of Bangladesh transformed colonial subjects to free and independent citizens. Analysing the journey of the criminal justice system from colonial to present times, this chapter demonstrates and argues that although the Constitution and its application by the judiciary have contributed to this desired transition, there are many miles still to go. While the incorporation of fundamental rights in the Constitution, the gradual judicial enforcement of international human rights norms, and the emergence of public interest litigation have ensured positive developments in this regard, there are many challenges, articulated in this chapter, still to be addressed for getting rid of colonial legacies in the criminal justice system of Bangladesh. 17. Environmental Constitutionalism in Bangladesh: From Recognition to Practice in the 21st Century Shawkat Alam The unprecedented degradation of the planet's ecosystems is one of the most pressing issues confronting the international community. In an era characterised by rapidly expanding global ecological crisis and climate change, there is a greater acknowledgment of the need for domestic recognition, implementation and efforts of states to combat and mitigate their impact on human society and Anthropocene. States through their constitutions have recognised environmental rights and protections within the parameters of international law and policy. A reflection on 50 years since the inception of the Bangladesh Constitution also presents a watershed moment: the UN Conference on the Human Environment and the birth of the indivisibility between environmental and socio-economic development. Against this backdrop, sustainable development has continued to influence and shape Bangladesh's constitutional tradition in important and lasting terms. From the landmark decision of Dr. M. Farooque v Bangladesh to the insertion of Article 18A, the Bangladesh Constitution has continued to demonstrate an inextricable link between the right to a safe and clean environment with other human rights and constitutional protections. This chapter explores the 'greening' of the Bangladesh Constitution that has occurred against the global movement towards sustainable development. It considers how fundamental rights to a safe and clean environment have been read into the Constitution and provides a critical appraisal of the 2011 amendment which included an explicit protection to the right to an environment. The chapter also provides an analysis of the regulatory framework that gives effect to these rights and provide an evaluation of its enforceability. It finally observes that the Bangladesh Constitution has evolved with international protections to the right to an environment, from single-issue instruments and safeguards to a wider recognition to a clean environment that encompasses many ecosystem interactions, which is currently under threat due to anthropogenic biodiversity loss and climate change. 18. Towards a Constitutional Law Framework for Foreign Direct Investment and Intellectual Property Law Reform in Bangladesh Shima Zaman and Rumana Islam When Bangladesh is moving towards a smooth graduation from LDC to a developing country and aims to accomplish the global target of SDGs by 2030, there are certain areas that the country needs to pay particular attention. This chapter aims to focus on two of such important areas that directly contributes towards escalating the growth of the economy, namely foreign direct investment (FDI) and intellectual property (IP). It examines within the constitutional law framework what reforms needs to be undertaken for FDI and IP law to meet the challenges faced by Bangladesh in fulfilling its target especially in the post covid world. With this aim this chapter focuses on how (a) a normative framework can be developed on the basis of the constitutional law framework analysis of FDI
  • and (b) the bilateral investment treaties and international investment agreements signed by Bangladesh become legal yardsticks for domestic law and national policy regulating the FDI in the country and therefore they can be something of a 'quasi-connotational' function. It also (a) emphasises on the recognition of IP law within the Constitutional framework of Bangladesh
  • and (b) explores the constitutional sources (and possible limitations) and international obligations on the State's power to make IP law. Finally, it identifies the gaps and challenges of the legal regime of FDI and IP within the Constitutional law framework of Bangladesh and recommends if any reform is required to address those challenges to meet the needs of time. 19. Refugee Protection under the Constitution of Bangladesh: The Rohingya Refugees in Context Jobair Alam This chapter critically examines the scope of refugee protection in the Constitution of Bangladesh. It applies this protection framework to the Rohingya refugees in Bangladesh to see if it is adequate to ensure three important tools of refugee protection: refugee status, refugee rights, and solution to the refugeehood by consolidating the permanent methods with a particular emphasis on local integration. Finally, it provides recommendations to overcome the challenges associated with ensuring the constitutional means of refugee protection in Bangladesh. The significance of this chapter lies in unveiling a constitutional propensity to refugee protection in contradiction to insular national politics and other associated impasses which often gainsay the legitimate claim of these vulnerable groups of refugees. 20. Ocean Governance and Blue Economy: Emerging Constitutional Rights of the People and Nature in Bangladesh Md Saiful Karim For safeguarding intergenerational and intra-generational equity, Bangladesh needs to ensure sustainable utilisation and conservation of the marine area. Following the delimitation of the maritime boundary with the neighbouring countries, blue economic development is now a major policy agenda for Bangladesh. However, sustainable blue economic development may be impeded due to pollution, unsustainable resources exploitation and serious impact of climate change on the marine and coastal areas of the country. As the ocean is remarkably absent in the constitutional literature of Bangladesh, this chapter highlights the role of the Constitution in ensuring the rights of the people and nature in the process of blue economic development. The Constitution of Bangladesh apparently creates an absolute state ownership of everything in the marine area of Bangladesh. Thus, it is pertinent to examine how the Constitution will safeguard the rights of the ocean-dependent people. In several decisions, the Supreme Court of Bangladesh liberally interpreted the fundamental right to life to include the right to healthy environment. This chapter critically examines the implications of these decisions in relation to rights of the ocean-dependent people in the process of blue economic development. Moreover, rights of the nature have received much attention in Bangladeshi constitutional jurisprudence with the fifteenth amendment of the Constitution, several prominent judgments of the Supreme Court of Bangladesh. Against this backdrop, this chapter examines whether a constitutional legal framework for the right of nature has been emerged by the decisions of the Court through liberal interpretation of the relevant constitutional provisions. Finally, the implications of these constitutional developments for the blue economy policy of the country by looking at the relevant international legal obligations of Bangladesh are considered. 21. Economic, Social and Cultural Rights: Transformation of Non-justiciable Constitutional Principles to Justiciable Rights in Bangladesh Muhammad Ekramul Haque The Constitution of Bangladesh has split human rights into justiciable and non-justiciable groups: civil and political rights as judicially enforceable fundamental rights, while economic, social and cultural (ESC) rights as judicially unenforceable fundamental principles of state policy. This chapter argues that the traditional assumption regarding the non-justiciable nature of ESC rights, which led many constitutions to classify human rights into 'justiciable' and 'non-justiciable' groups, has been outmoded. The constitutional law of Bangladesh, in the last fifty years since its adoption, has witnessed a transformation of the non-justiciable constitutional principles on ESC rights to justiciable constitutional rights through judicial interpretations. The chapter explores how the judiciary in Bangladesh has extended the scope of judicial enforcement of constitutional principles on ESC rights despite having an express constitutional bar against justiciability of these principles. 22. Writ Jurisdiction in Bangladesh: In Search of an Impeccable Framework Md. Abdul Halim The writ jurisdiction entrenched in the Constitution of Bangladesh provides for the power of judicial review of administrative, legislative, quasi-judicial and in some cases judicial actions and inactions. The writ jurisdiction also provides further power to enforce some fundamental rights to the citizens and non-citizens of the country. Although Article 102 does not contain the names of various writs in specific, when exercising the power of judicial review or interpreting procedure of writ powers the Supreme Court has, directly or indirectly, adhered to some strategic methods by which it has either extended or limited this power. Given that provisions in Article 102 are indeterminate, the judges are reposed with a duty to read specific meanings into them and determine their scope and extent. It is within this context that the Supreme Court has leveraged to engage in judicial activism or inactivism. This chapter analyses the process and strategy by which the Supreme Court has, since 1972, exercised the power of writ jurisdiction, in light of the theory that the Supreme Court is the guardian of the Constitution. The chapter locates the power of judicial review within the concept of separation of state powers and enforcement of fundamental rights of people and argues that the strategies adopted by the Supreme Court in enforcing judicial review has not always been coherent in line with the constitutionalism
  • rather it has occasionally been driven by some extra-judicial factors. 23. Emergency Powers and Martial Law under the Constitution of Bangladesh M Ehteshamul Bari The original Constitution of Bangladesh did not contain any provisions permitting the executive to proclaim either an emergency or a martial law. The framers claimed that frequent abuse of these extraordinary powers during the days when Bangladesh was a province of Pakistan persuaded them not to incorporate such powers in the Constitution. However, the necessity to insert a new Part IXA in the Constitution, titled 'Emergency Provisions', was keenly felt only nine months and seven days after the Constitution came into force. The provisions contained in Part IXA not only empower the executive to proclaim an emergency to deal with actual or imminent threats posed to the nation, but also to suspend the enforcement of the fundamental rights during the continuance of an emergency. This chapter demonstrates that in the absence of effective safeguards in the Constitution constraining the scope of the exercise of emergency powers, these powers have been conveniently used to subvert the rule of law and to impose unwarranted restrictions on the fundamental human rights of individuals. It also sheds light on the fact that, notwithstanding the absence of any reference to the concept of martial law in the text of the Constitution, Bangladesh witnessed two declarations of martial law in August 1975 and March 1982. Although the Supreme Court declared both the proclamations of martial law illegal in 2010, it has not examined whether any of the five proclamations of emergency issued under Part IXA were without jurisdiction, coram non judice or mala fide. The chapter concludes with some suggestions for preventing the use of these powers for extraneous purposes. 24. Legislating from the Bench? The Whole-life Sentence in Bangladesh and its constitutionality Ridwanul Hoque In a recent decision, the Appellate Division of the Supreme Court of Bangladesh established that imprisonment for life, when commuted from the award of a death penalty, shall mean the whole-life imprisonment. In Bangladesh, a life term has historically been a sentence of around 30 years. The decision also has the effect of amending by stealth, or setting at naught, several statutory provisions. Relying on constitutional theories concerning judicial function and separation of powers, this chapter shows and argues that the Appellate Division's whole-life sentence ruling is a constitutionally indefensible form of judicial law-making. In order to bolster the central argument, the chapter draws on comparative constitutional law materials from South Asia, the UK, and South Africa. 25. Judicial Lawmaking in Bangladesh: Looking Back and into the Future Md Rizwanul Islam The line between interpreting and making the law by the judiciary is often a controversial one. While the former would, in one way or the other, often transform into the latter, reasonable minds can differ when such an exercise is indispensable or otherwise. Taking a functional approach, this chapter critically engages with the reported cases of the Supreme Court of Bangladesh to demonstrate that the judicial lawmaking by the Supreme Court has been a mixed experience in Bangladesh. At times, the Court has, through its creative interpretations, contributed to the protection of people's rights and development of law. In contrast, in some other cases, it has moved into terrains that could arguably be better left to the Parliament. The chapter also surmises what the past may indicate about the future impact of the jurisprudence developed by the Supreme Court since the emergence of Bangladesh. 26. Public Interest Litigation and the Constitution of Bangladesh: Past, Present and Future Sara Hossain The autochthonous architecture of the Constitution of Bangladesh provides a foundational back-up to an activist legal fraternity. Right at the very beginning phase of its journey, the idea of 'public interest litigation' started developing with Kazi Mukhlesur Rahman Case in 1974, even before India started its 'social interest litigation'. After a long hiatus, the Supreme Court of Bangladesh finally expanded the ambit of 'locus standi'. Later on, such socially motivated gateway to the Court has been massively abused to the extent that the Court had to intervene to differentiate between 'public interest litigation' and 'private interest litigation'. Finally in 2016, the Supreme Court of Bangladesh came up with a framework for establishing locus standi in a public interest litigation. This chapter critically evaluates the journey of the public interest litigation in Bangladesh and lays a roadmap for the future.

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