Rights

Ain-qanoon.com is dedicated to the rights of the people from past, present and future generations. Our mission and vision is to aware people of their rights and to show the right way of ensuring such lawful rights. We believe in equal rights for all and also to set standards for a respectful life of all human being. We think that state mechanisms are the most powerful actors in ensuring rights with the help of international organizations. However, individual capacity building is the catalysts or most important thing for all human rights activism. Self-respect and mutual respect are both necessary for ensuring rights.

Ain-qanoon.com shall include rights and human rights status of the country from time to time based on reports of NGO’s, newspapers and from other reliable sources.

Discussion

Right means a claim of some interests’ adversed by an individual or a group of individuals which has either moral or legal basis and which is essential for his development in the society.

Laski, “Every state is known by the rights that it maintains.” He also added that rights, in fact, are those conditions of social life without which no man seek in general, to be himself at his best.

Gilchrist, “Rights arise from the fact that man is a social being

Bosanquetm, “A right is a claim recognized by the society and enforced by the State.

T.H.Green, “Without society conscious of common moral interests, there can be no rights.

Barker, “Rights are those necessary conditions of the greatest possible development of the capacities of all individuals, which are secured and guaranteed by the states.”

Salmond, “Right means an interest recognized and protected by the law, respect for which is a duty, and disregard of which is a wrong.”

Holland, “Right means a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.”

According to salmond a right involves (i) a person invested with the right, or entitled; (ii) a person or persons on whom that right imposes a correlative duty or obligation; (iii) an act or forbearance which is the subject-matter of the right; (iv) an object, that is, a person or thing to which the right has reference; and (v) a title or reason for the right becoming vested in the owner. Rights are perfect and imperfect; positive and negative; real and personal; proprietary and personal; in re propria and in re aliena; principal and accessory; and legal and equitable.

Kinds of Right

Rights are primarily divided into two kinds except those as divided by Salmond:

  • Moral rights: Moral rights are those rights which have their basis on the rule of natural justice and the violation of which results in moral wrong.
  • Legal rights: Legal rights, on the other hand, are those rights which are recognized by the positive law of the country and can be claimed on legal basis and the violation of which results in legal wrong.

Human Rights

The word “human” evolved from latin word “humanus” which means “any view in which interest of human welfare is central.

Human rights which are typically called natural rights or rights of man are those rights that are inherent in human person and without which a man can not live as human being. Since human rights came with birth and every person is entitled to them because of the very fact that he or she is a human, they are applicable to all people throughout the world irrespective of their race, sex, colour, language, and religion, political or other opinion. Human rights are concerned with the dignity and worth of the individual.

It is important to mention the comment of Sridath Ramphal as to human rights, “they have their origin in the fact of the human condition, and because the have, they are fundamental and inalienable. More specifically, they are born not of man but with man.

Human rights, therefore, have two inherent characteristics – (i) universal inherence, and (ii) inalienability. But the term “inalienability” does not apply to all human rights, e.g. rights to property.

Everywhere human rights are being violated; there are some human rights which can be taken away by the State e.g. right to property, freedom of expression, right to assembly etc, on the ground of emergency or for the (so called) welfare of the citizen.

The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognized by a positive law of a State and is maintained through enforcement machinery only then it becomes legal and enforceable right. It is, therefore, better to describe human rights as universal moral rights. In this regard Article-2 (7) of UN charter may be adduce, “Nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter; but this principle shall not prejudice the application of enforcement measures under chapter VII.”

It is mentionable that chapter-VII discusses about “Action with respect to threats to the peace, breaches of the peace and acts of aggression.

Human Rights in International Arena

The Charter of the United Nations for the first time internationalized human rights and fundamental freedoms. Besides Islamic States, human rights law initially developed as a part of constitutional law of the individual States. Although some scholars claimed to be able to trace a rudimentary concept of human rights back to stoic philosophy of classical times via the natural law jurisprudence of Grotias and the jus natural of Roman law,[1] it seems evident that the origins of the modern concept are to be found in the English, American and French revolution of the seventeenth and the eighteenths centuries.[2] Magna Carta of 1215, the petition of Rights of 1628, the Bill of rights of 1688 (1689), the Act of Settlement, 1701, the American Declaration of Independence, 1776, the American Bill of Rights, 1791, the French Declaration of Rights of Man and of Citizen, 1789, were milestone in the road in which the individual acquired protection against the capricious acts of kings and despots and the right to lead a free life in a free society.[3]

The UN Charter was adopted and signed on 26 June, 1945, by the representatives of 50 states participating in the San Francisco Conference, and later by a fifty-first State, Poland, which had been unable to attend. [4] It is possible to speak that of the advent of systematic human rights protection within the international system is only with the entry into force of the United Nations Charter on 24th October 1945.[5] There are seven specific references in the charter of human rights and freedom but no where does it catalogue or define them. The specific references are mentioned in the preamble of the UN Charter and in article-1(3), article-13 (1) (b), article-55 (c), article-62 Para-2, article-68 and article-76(c) of the Charter.[6] It is pertinent to mention that article-10, article-56 and article-71 of the Charter also impliedly states for the promotion and protection of Human Rights.

The Universal Declaration of Human Rights (UDHR) adopted on 10th December 1948 gave the enumeration of “human rights and fundamental freedoms” which was not categorized or clearly defined in the Charter.[7] The Universal Declaration proclaims two broad categories of rights: civil and political rights on the one hand and economic, social and cultural rights on the other hand. Article-3 to 21 deals with civil and political rights while articles 22 to 27 deal with economic, social and cultural rights. The philosophical postulates upon which the Declaration is based are laid down as “All Human beings are born free and equal in dignity and rights”.[8] The Declaration is based on the Principle of equality and non-discrimination as regards the enjoyment of all the rights and freedoms set forth in it for all without distinction as to race, sex, colours, language or religion.[9] Everyone as a member of society, is entitled to the economic, social and cultural rights which are indispensable for human dignity and the free development of personality, is another cornerstone of the Declaration.[10] Thus the concept of human rights has got its formal and categorical shape from the UDHR adopted by the UN in 1948 where twenty five rights have got their place. These 25 rights are mostly referred to as human rights. Of theses 25 rights 19 are civil and political rights and 6 are economic, social and cultural rights. According to the Declaration the rights and freedoms enumerated therein would constitute for the moment the catalogue of rights and freedoms to which reference is made in the Charter. It is accepted that the Declaration, as distinct from the two covenants, is formally not a legally binding documents.[11]

The ICCPR and the ICESCR, 1966 [12] The ICCPR and the ICESCR on the assumption that UDHR would not impose sufficiently binding obligations, designed to become legally binding on the UN’s Member States, and was adopted in 1966. The division into of the single UDHR catalogue reflected certain ideological and political differences between two major groups of negotiating States. The division has also been supported by the argument that the grant or concession of most of the rights defined in ICCPR lies in the simple power of national government which are able if they wish to protect or guarantee them by legislation or administrative action whereas most of the rights described in ICESCR are said to depend for their realization on the progressive economic development of a country, which may take many years and does not lie extensively with in the power of its government.

The ICCPR contains 53 article whereas 27 articles defining and circumscribing in much greater detail then UDHR, a variety of rights and freedoms, and imposing absolute and immediate obligation on each of the State parties to ‘respect and ensure” there rights to all individuals within its territories and subject to its jurisdiction. The instrument also establishes a Human Rights Committee (HRC).[13]  

The ICESCR contains 31 articles whereas 15 articles defining a set of rights largely derived from UDHR. Unlike ICCPR, each of the state party only undertake to take steps … to the maximum of its available resources… with a view to achieving progressively the full realization of the rights recognized… by all appropriate means. ICESCR contains no provisions for interpretation and application; instead, it provides a reporting procedure.[14]  

Three Generations of Human Rights

The varied perceptions of human rights have also led to claim that there are “three generations” of human rights. The so called “first generation” of human rights is represented by civil and political rights and can be found in treaties such as ICCPR and ECHR etc. Theses rights have been given priority by the western states. The Social, economic and cultural rights are equated with the “second generation” of human rights. These rights have been canvassed very strongly by the socialist countries and by the developing world.[15]

It is generally viewed that civil and political rights could be implemented immediately whereas economic, social and cultural rights can be introduced only progressively.

In the last quarter of the twentieth century another generation of human rights, the third generation of rights emerged. This set of rights included collective group rights and such rights as the right to development, the right to self-determination and the right to environment.

Fundamental Rights[16]

The term fundamental right is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are called fundamental rights. They are called fundamental rights in the sense that they are placed in the supreme or fundamental law of the land which has a supreme sanctity over all other law of the land.

The object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they can not be taken away by ordinary process of law making. They are placed beyond the reach of the executive and legislative to act in violation of them.

In Jibendra Kishor vs. The Province of East Pakistan, the Supreme Court of Pakistan held , “The very conception of a fundamental right is that it being a right guaranteed by the constitution can not be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by the law.” The same view was reaffirmed by the Pakistan Supreme Court in State vs, Dosso. The Indian Supreme Court in Golak Nath vs. State of Punjab held-

The declarations of the fundamental rights of the citizens are inalienable rights of the people… The constitution enables an individual to oppose successfully the whole community and the State to claim his right.

The idea of protection of fundamental rights can be best understood from the American Declaration of Independence, 1776 where it is stated-“That all men are created equal, that they are endowed by their creator certain inalienable rights, that among these are life, liberty and pursuit of happiness; that to secure these rights government are instituted among men deriving their just powers from the consent of the governed.; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute a new one.

The idea of protection of fundamental rights was also mentioned in the Bill of Rights, 1689, French Declaration of the Rights of man and of Citizen, 1789 etc. This idea was primarily derived from various religious verses especially in the Holly Quran in the medieval period.

Article-8 of the Universal Declaration of Human Rights, 1948 states-

Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law.

To this respect the Pakistan Supreme Court in Moudoodi vs. Government held that, “The basic principle underlying a declaration of fundamental rights in a constitution is that it must be capable of being enforced not only against the executive but also against the legislature by judicial process.

Fundamental rights in the constitution of Bangladesh

Part-III (from article-26 to 47A) of the Constitution of the People’s Republic of Bangladesh deals with fundamental rights.

In fact, 18 fundamental rights have been enshrined in our constitution from article 27 to 44. All of these rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups:

  1. Rights granted to all persons- citizens and non-citizens alike. These rights are enumerated in articles 32, 33,34,35,41 and 44 of the constitution.
  2. Rights granted to citizens of Bangladesh only. These are 12 in number enumerated in articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42 and 43.

The Bangladesh constitution has imposed some restrictions in enjoying some fundamental rights. On the basis of this restriction all fundamental rights enumerated in the Bangladesh constitution may be classified into following three groups:[17]

Absolute Rights

Parliament can not impose any restrictions over the following rights except as provided in the constitution:

  1. Equality before law (art.27)
  2. No discrimination on the ground of race, sex, caste, religion or place of birth; women shall have equal rights with men and special provisions for women, children or backward section of citizens; (art. 28)
  3. Equality of opportunity in public employment subject to some restriction on religious institutions or office or employment suitable for members of one sex or special provisions for any backward section of citizens; (art. 29)
  4. Prohibition of accepting foreign titles, honour, award or decoration without the approval of the President; (art.30)
  5. Safeguards as to arrest and detention; every person shall have right to consult and defended by a legal practitioner after arrest and he must be produced before nearest magistrate within twenty four hours of such arrest excluding the time necessary for journey from the place of arrest; These provisions is not applicable to an alien enemy or a person who is arrested under any law providing for preventive detention; No person shall be in custody for more than six months under any law providing for preventive detention without the report of an advisory board consisting of 3-members (2-judges of the Supreme Court and 1-senior servant of the Republic); the authority making an order of preventive detention shall communicate to the detenu such grounds for detention except in the cases if it is against public interest; (art.33)
  6. Prohibition of forced labour except by persons undergoing lawful punishment for a criminal offence; or required by any law for public purposes; (art. 34)
  7. Protection in respect of trial and punishment; No retrospective affect of any law against a person; no double jeopardy i.e. no prosecution and punishment twice for the same offence; right to speedy trial by impartial and independent court; no person shall be compelled to be a witness against himself; no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment; (art.35)
  8. Enforcement of fundamental rights either by the High Court Divisions under Article-102 or by any Court authorized by any enactment of Parliament; (Art.44)

 Rights on which reasonable restriction can be imposed

  1. Freedom of movement (art. 36)
  2. Freedom of Assembly (art.37)
  3. Freedom of Association (art. 38)
  4. Freedom of thought and conscience and of speech and press (art. 39)
  5. Freedom of religion (art.41)
  6. Protection of home and correspondence (art 43)

The grounds for imposing restriction on these rights have been laid down by the respective sections:

  1. in the public interest (art. 36)
  2. in the interest of public order or public health (art. 37)
  3. in the interest of public order or morality (art. 38)
  4. in the interest of the security of the State, friendly relation with foreign State, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence (art. 39)
  5. in the interest of public order or morality (art. 41)
  6. in the interest of the security of the State, public order, public morality or public health. (art.43)

Parliament can impose reasonable restriction on the above mentioned fundamental rights.

Fundamental rights which have been practically left to the legislatur

In respect of the following rights parliament can impose any restrictions it pleases.

  1. Right to protection of law (art.31)
  2. Protection of right to life and personal liberty (art. 32)
  3. Right to lawful profession, occupation, trade or business (art. 40)
  4. Right to acquire, hold, transfer or otherwise dispose of property (art. 42)

A court can not examine the reasonability of the restriction; it can see the following two things only:

  1. if the law imposing restriction is a valid one;
  2. if the right has been infringed or abridged in accordance with the law.

It is important to note that during emergency under Part-IXA (section-141C) of our constitution president may on the written advice of the Prime Minister issue a proclamation suspending the enforcement of the fundamental rights during which the proclamation is in force. But during Non-party Caretaker Government no such permission or approval from the Chief adviser is necessary to declare an emergency by the president. The provisions of Non-party-Care taker Government is abolished now.

When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equally efficacious remedy than one can apply under article-102 for the implementation of those rights to the High Court Division through writ petition.

  • Writ jurisdiction[18]: The term “writ’ is not properly defined anywhere. Initially it was the royal prerogatives and was exercised by the king or queen as the fountain of justice. The Constitution of the Peoples Republic of Bangladesh provides 5-kinds of Writ although their name is not specifically used i.e. (a) Writ of Habeas corpus i.e. have the body before the court i.e. if any person is arrested and taken in custody illegally then the court will direct the govt. or concerning authorities to produce the person before the court to determine whether the person is taken in custody without lawful authority or in an unlawful manner; (b) Writ of Mandamus i.e. to issue a Rule directing the govt. or concerning authorities to do something which he/ she is bound to do; (c) Writ of Prohibition i.e. to issue a Rule directing to the govt. or local authorities to refrain or abstain from doing something which he/ she is not entitled to do, (d) Writ of Certiorari i.e. to quash the proceedings which is done by the govt. or local authorities exceeding their jurisdiction and in violation of the principles of natural justice; (e) Writ of Quo-Warranto i.e. to show cause under which authority he is doing so or holding the posts.

When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equal efficacious remedy than one can apply under article-102 for the implementation of those rights.

    Only an aggrieved person can apply for writ of prohibition, mandamus and certiorari and anyone can apply for writ of habeas corpus and quo warranto.

    A writ can be filed either against the government or against the local authorities or any person performing any functions in connection with the affairs of the Republic.

    The High Court Division shall have no power to pass any interim order or other order in relation to any law to which article-47 applies. Article-47 states compulsory acquisition, nationalization or requisition of any property or the control of management etc thereof whether temporarily or permanently by passing any law in the Parliament for the effective implementation of the fundamental principles of state policy.  

    The right to file a ‘writ’ may be suspended under the emergency period as derived from articles 141A, 141B & 141C of our constitution under Article 102(1) a writ may be filed against any person for the enforcement of fundamental rights. A writ can be filed under Article 135 of our constitution for dismissal of a govt. servant. If provisions of any law are violated and no equally efficacious remedy is available, a writ may be filed. Even in case of the violation of fundamental rights by any individual a writ can be filed against him under article-102(1). But fundamental rights are rarely violated by an individual.

Distinction between Human Rights and Fundamental Rights

Firstly, all fundamental rights are human rights but all human rights are not fundamental rights; Fundamental rights are those of human rights which are placed in a written constitution. Human rights are therefore, are the whole of which fundamental rights are a Part.

Secondly, the sources of a fundamental right are the constitution whereas the source of human rights is the international law.

Thirdly, fundamental rights have territorial limitations i.e. they have no application as fundamental rights outside the territory of a particular state. But human rights have no territorial limitations; they have universal application.

Fourthly, fundamental rights are protected by constitutional guarantees and can be enforced through State mechanisms; but there is no effective enforcement machinery for human rights.

Fifthly, fundamental rights are largely applicable to the citizens while human rights are universally applicable to all human being.

It is pertinent to mention that human rights are sometimes used as fundamental human rights or human rights and fundamental freedoms but the terms are not properly defined anywhere. For academic interest we can consider fundamental human rights or human rights and fundamental freedoms as those rights which are most essential for a human being. In our constitution Article-11 states that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed (and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured).

Distinction between Human Rights Law and Humanitarian Law

Human rights is a matter of International Law which is mainly evolved from UN Charter, ICCPR, ICESCR, UDHR, CEDAW, Child Convention and many more regional treaties whereas International Humanitarian Law is based on 4-geneva Conventions of 1949, ICRC and Armed conventions. Human rights Law is applicable for all times but Humanitarian law is applicable during war time or external aggression or internal war. For violation Human rights there are ICJ or Regional Courts or even some commissions or committees or NGO’s are working either together or separately whereas for violation of Humanitarian Law, there is ICRC or ICC but that depends on the membership of the concerned states.

Those are, in brief, some basic differences between human rights and humanitarian law.

(The above discussions are part of the book titled as ‘Human Rights Law” written by Ahamuduz zaman, Founder of ain-qanoon.com. If you want to purchase the book, please go through our law books menu bar and follow the payment systems options).

[1] Vasak,K “Towards specific International Human Rights law” in Vasak,K (edt), The International Dimensions of Human Rights, vol.2, paris-1982,p-67.

[2] Davidson,S, Human Right, Buckingham, 1993, p-2.

[3] Dr.Mofizul I.Patwari, “Human Rights in contemporary International law, p-237.

[4] United Nations, Basic Facts About the United Nations, New York, 1992, p-3.

[5] Dr Khan, Borhan Uddin,”Fifty Years of the Univeral Declaration of Human Rights” p-23, edn-1998.

[6] Ibid, page-24, For details see the UN Charter adopted and signed on 26th June, 1945 and entry into force-24th Oct,1945.

[7] Dr Patwari, Mofizul I, “human Rights in contemporary International Law”, op cit, and Paul Sieghart, “The International law of Human Rights” page-24, edn-1985.

[8] The Universal Declaration of Human Rights 1948, Article-1.

[9] Ibid, Article-2

[10] Ibid, Article-22.

[11] Dr Khan, Borhan Uddin,”Fifty Years of the Univeral Declaration of Human Rights” p-38, edn-1998

[12] The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966 by the United Nations General Assembly (UNGA) and came into force on 23 March, 1976; The International Covenant on Economic, Social and Cultural Rights(ICESCR) adopted in 1966 by the UNGA and entry into force on 3 January, 1976.

[13] International Covenant on civil and Political Rights, 1966 see-article-2 and 28.

[14] Internation Covenant on Economic, Social and Cultural Rights, 1966 part 1,2,3 and section-2 with 16-25.

[15] Javaid Rehman, “International Human Rights law” p-6-7, edn2003.

[16] Halim, Md.Abdul, “Constitution, constitutional law and politics: Bangladesh perspective.”(feb,1998),pp-86-95,passim.

[17] This grouping has been done according to the judgement of the Supreme Court of Pakistan in Abul A’la Maudoodi vs. Government of West Pakistan, quoted by Pirzada, Sharifuddin, AIR, 1950 SC p.101

[18] For details please see-Mahmudul Islam, “Constitutional law of Bangladesh”, pp. 457 to 610, Reprint, Nov.2003;


(Readers/ visitors are requested to go through the 'International Human Rights Law' book (go to...Law Books) written by our founder, Ahamuduz zaman for details).

You are also suggested to visit following sites/ links for Human Rights related reports (see/ visit...Crime Reports) in the context of Bangladesh:

NGO’s and Government bodies working for Human Rights and other issues  in Bangladesh

 

http://ngonewsbd.com/ngo-list-of-bangladesh/ (NGO’s Lists)

http://www.nhrc.org.bd/ (National Human Rights Commission)

http://odhikar.org/ (Odhikar-Protecting Human Rights in Bangladesh)

http://www.askbd.org/ask/ (Ain-o-shalish kendro)

http://bnwlabd.org/ (Bangladesh National Women’s lawyers Association)

www.belabangla.org (Bangladesh Environment Lawyers Association)

http://www.hrpb.org.bd/ (Human Rights and peache for Bangladesh)

http://www.hrpb.org.bd/Article-Published (Articles written by Justices and…)

http://www.hrpb.org.bd/Public-interest-litigation (PIL by HRPB)

http://www.hrpb.org.bd/Judgement (case references and judgements …)

http://www.blast.org.bd/ (Bangladesh Legal Aid and services Trust)

http://www.mlaabd.org/ (Madaripur Legal Aid Association)

http://hrls.brac.net/ (Human Rights and Legal Aid program of BRAC)

http://www.weforum.org/ (World Economic Forum on Human Rights Indexes)

http://www.unhcr.org/ (United Nations High Commission For Refugees)

http://www.ohchr.org/ (UN HRC)

http://www.coe.int/en/web/tirana/european-court-of-human-rights

https://www.icrc.org/ (International Committee of the Red Cross/ Crescent)

http://www.un.org/ (United Nations)

https://www.usaid.gov/ (United States Agency for International Development)

http://www.international.gc.ca/ (Canadian International Development Agency)

www.renewableenergy.org.vn (German)

www.um.dk/en/ (Danish ,DANIDA)

http://www.ilo.org/ (ILO)


Recommendations of Law Commission for quick dispossal of cases: (Please go to:)

http://lc.gov.bd/reports/Acces%20Bichar%20Bivag_for%20parliament.pdf

http://lc.gov.bd/

http://lc.gov.bd/Current%20Activities.htm (Current activities of law commission on medical negligence, dalit, withdrawal from CEDAW and family laws)

 

(Compiled by: Ahamuduz Zaman, Founder: ain-qanoon.com)

 

 

Law Guru

Founder: Ahamuduz Zaman (academician, researcher, author, columnist, lawyer, mentor, human rights activists).

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