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Law / Proclamation of Bangladesh Independence: Implications for International Law

« on: November 24, 2015, 07:26:13 PM »

Proclamation of Bangladesh Independence: Implications for International Law
S M Masum Billah
On 10 April 1971, the Mujibnagar government (Bangladesh government-in-exile during 1971 liberation war) adopted the Proclamation of Bangladesh Independence. The people of Bangladesh wanted to become the master of their own destiny. Therefore, they expressed their collective oneness of mind through the Proclamation. Formally read out in the Constituent Assembly (the elected representatives duly constituted themselves into a Constituent Assembly) at Mujibnagar on 17 April 1971, the Proclamation endorsed Bangabandhu’s declaration of independence made on 26 March 1971 on the face of Pakistan government’s military crackdown. As such, the lawmakers gave a retrospective effect of the Proclamation from 26 March 1971. The Proclamation established a de jure government of Bangladesh to take care of Bangladesh’s immediate needs. It attained a constitutional sanctity and introduced the new country to the world as “The People’s Republic of Bangladesh”.

The Proclamation bears significance for many reasons. It not only carries historical implications but also addresses the legitimacy question of Bangladesh’s birth. In the post-1971 era, it helped shaping Bangladesh’s constitutional jurisprudence. However, the document receives less credit than it deserves from the viewpoint of international law.  Here, I will examine some aspects of the Proclamation bearing the significance for international law. This will help understanding this glowing document afresh. This article will bring to light Bangladesh’s contribution to the development of international law relating to declaration of independence, right to self-determination and state recognition.

II

Bangladesh’s Proclamation of Independence was unilateral in nature. A declaration of independence without the consent of the parent state is known as unilateral declaration of independence (UDI).  The legality of the UDIs is a contentious issue under international law. Each nation wants to protect its territorial integrity.

The approach of international law in the 1960s on the secession issue was very rigid. The failure of the UDI of the Baifran Republic 1967 (against Nigeria) and South Rhodesia 1965 (against the UK) is a testimony to this. As such, legal responses to Bangladesh’s UDI were mixed and misleading. However, the uniqueness of the Bangladesh context was widely accepted in the legal arena. The UN and the international community viewed the violence and repression employed by Pakistan’s army as an irreversible roadblock to reunification.
The-Proclamation-Of-Independence

Text of the Proclamation of Bangladesh Independence, 1971. Photo Credit: mujibnagar.com

Professor Rafiqul Islam showed why Bangladesh case needs to be treated differently from the Baifran and South Rhodesian experience (Islam, IJIL, New Delhi, 1983). According to Professor Islam UDI is not illegal by itself. Moreover, the success of the Bangladesh revolution was a parameter of its validity. The ‘success’ hypothesis seemed to govern the law of UDI for a long time.

The Bangladesh practice was perhaps favorable for Kosovo’s secession from Serbia. In 2008, the question of UDI’s validity came before the International Court of Justice (ICJ) in the Kosovo Advisory Opinion. The General Assembly asked the ICJ to render its opinion about the validity of Kosovo’s declaration of independence against Serbia. The Court in its opinion said that Kosovo did not violate international law by declaring independence. In addressing the issue, the Court had to examine whether the proper authority of the provisional government of Kosovo made the declaration. The Court emphasized about the authority of the person declaring the independence.

By analogy, the Bangladesh Proclamation satisfied this test. For it was proclaimed by the ‘undisputed leader of 7 million people of Bangladesh’ and endorsed by the government constituted of people’s elected representatives. Moreover, the Proclamation furnished at least four justifications for the UDI: i) the occurrence of international crimes (war of aggression, genocide, etc.) by the Pakistani military; ii) legal personality of Bangladesh under international law; iii) legitimacy of the authority to take responsibility on behalf of the people in conducting the war and iv) Bangladesh’s willingness to comply with the UN obligations.

Thus, had it been judicially challenged by Pakistan, the Bangladesh UDI would have satisfied the tests of validity. What the ICJ found in 2008 Kosovo Opinion, was practiced by Bangladesh in 1971.  The Bangladesh Proclamation, in this way, was a trend setter for the study of UDI law, where a new member of the family of the nations after duly declaring its independence promised to the international community that they will obey the principles of the UN Charter. This was a stand which Bangladesh later adopted in Preamble of its Constitution: “we may prosper in freedom and make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind.”

III

The Proclamation was an advanced national document promoting the idea of self-determination. It was a signal to arouse the people of Bangladesh ‘to assume the blessings and security of self-government’. The 1966 leading international human rights treaties (the ICCPR and ICESCR) recognized the right to self-determination of all ‘peoples’ (common Article 1). Following these, the Bangladesh Proclamation tested this right for the first time.

However, Bangladesh’s claim of self-determination was questioned by international lawyers. There were mainly two objections: i) the Bengalese did not fulfil the criteria of being a ‘people’ in the eye of international law and ii) Bangladesh was not in a ‘colonial’ situation so as to justify its claim of self-determination.

It was claimed that the law of self-determination was only applicable for the people under a colonial setting. The Proclamation responded to these objections by highlighting the compelling reasons for Bangladesh’s claim to ‘freely determine its political status’ and ‘pursue its economic, social and cultural development’.

Subrata Roy Chowdhury’s book titled The Genesis of Bangladesh examined Bangladesh’s right to self-determination from international law perspective. Chowdhury showed how Bangladesh fulfilled the ‘colonial status’ criteria under Pakistani regime and how the distinctive ethnicity of the Bengalese constituted a ‘people’ under international law. Chowdhury’s work enriched international law of self-determination and created international legal opinion in favor of Bangladesh’s nationhood. Chowdhury’s work also appeared as a response to the International Commission of Jurists’ report of 1972 which gave a sceptical view about Bangladesh’s right to self-determination (see, The Events in East Pakistan 1971: A Legal Study, Geneva: ICJ, 1972). Michael Riesman substantially agreed with Chowdhury’s argument in 1974 (American Society of International Law, 1974). Eyal Benvenisti termed Bangladesh’s right to self-determination as ‘genuine and widely accepted’ in his 2012 book on International Law of Occupation. Even then, very few works have been accomplished dealing solely with the question of Bangladesh’s self-determination after Chowdhury. This could have contributed to the law of self-determination in line with a new understanding.

IV
Mujibnagar Day (1)

Members of the Mujibnagar Government. Photo Credit: mujibnagar.com

Another implication of the Proclamation is linked with the issue of state recognition. One of the prerequisites of statehood under international law is to form a government having control over its defined territory and population. Keeping this end in view, the Proclamation established a government consisted of the elected representatives of the Bengali people. It asserted the people’s right to have a ‘just government’ implicitly mentioned in the preamble of the Universal Declaration of Human Rights.

On 17 April 1971, at the formal reading out ceremony of the Proclamation, Tajuddin Ahmed, the first Prime Minister of Bangladesh, appealed to the nations of the world for recognition and assistance, both material and moral, in the Bengalese’ struggle for freedom. He said: “every day this is delayed, a thousand lives are lost and most of Bangladesh’s vital assets are destroyed.” Ahmed’s concern appeared true and Bangladesh had to pay the toll for the international community’s hesitation to accord recognition to Bangladesh. It can be rightly argued that the Proclamation helped shaping the international community’s approach to the recognition of Bangladesh.

India’s approach, for example, is of particular relevance. India accorded formal recognition to Bangladesh on 6 December 1971. However, in the eye of international law, India’s conduct towards Bangladesh during 25 March 1971 – 6 December 1971 can be interpreted as de facto recognition. Indira Gandhi, the Indian Prime Minister at the time, took a strategic approach in according recognition to Bangladesh. She explained her government’s stand on the issue in a parliament speech on 6 December 1971. Following aspects of law of recognition can be deduced from her speech:

(a) She applied the effectiveness test of government in considering the question of recognition. The test suggests a situation where no man would say that there was a reasonable hope for the parent state to recover its jurisdiction over the territory. With the unanimous revolt of the entire people of Bangladesh it was increasingly apparent that Pakistan was totally incapable of bringing the people of Bangladesh back under its control. In addition, it also became apparent that Mujibnagar Government had effective control over the population of Bangladesh;

(b) She invoked the Jeffersonian norms of recognition—‘will of the nation substantially declared’. The Mujibnagar government was represented by the overwhelmingly majority of the people denoting its legitimacy. By applying the Jeffersonian norms, Mrs. Gandhi established the non-representative character of the Pakistani military government on the one hand and reminded America and the rest of the world about America’s past glory of Jeffersonian democracy;

(c) She justified her decision to recognize Bangladesh as an aspect of humanitarian intervention. After 3 December 1971, Pakistan waged war against India. Following this event, India felt at par with the cause of Bangladesh, as because India was prompted to fight against Pakistani aggression and Bangladesh had been fighting for its independence against the same authority. Therefore, ‘normal hesitation’ in granting recognition which might come in the way of a peaceful solution or which might have been construed as India’s ‘intervention’ lost its significance.
86.lbangladesh (1)

Historical guard of honor to the Acting President of Mujibnagar government, Mr. Syed Nazrul Islam on 17th April 1971, led by SP Mahbub Uddin Ahmed, Bir Bikram. Photo Credit: mujibnagar.com

Thus, on the question of recognition of Bangladesh, India took a balancing approach refining the contemporary international law of recognition. It made a reconciliation of traditional theories of recognition and the principle of self-determination.

This approach was also a balance between ‘territorial integrity’ and ‘equal rights and self-determination’ concept enunciated in the UN Charter [Articles 2 (4) and 1(2)] reflected in the Bangladesh Proclamation. The approach was in the line with Professor Ian Brownlie’s stand that he took in the 1950s:

    The principle of self-determination will today be set against the concept of effective government, more particularly when the latter is used in arguments for continuation of colonial rule. The relevant question may now be: in whose interest and for what legal purpose is government effective?

Indian balancing approach of recognition to Bangladesh made a strong appeal to the international forums. The approach was later widely practiced by many countries to recognize new states, in spite of the fact that political consideration and self-interest principle always govern the international law of recognition. Following India’s decision, as of 29 February 1972, thirty one countries recognized Bangladesh as a sovereign independent state. The number increased to eighty six when Bangladesh was granted the UN membership in 1974.

Richard Kiwanuka’s (1988) view on the issue seems to be under-researched. He writes: “international recognition for Bangladesh occurred because of a set of circumstances that lent a cloak of legitimacy to what would otherwise be impermissible in international law.” James Crawford’s contention (2006) that Pakistan’s recognition was a prerequisite for Bangladesh’s admission to the United Nations also rests on a partial view.

The Proclamation of Independence, Prime Minister Tajuddin’s 17th April statement and India’s approach taken together dispels these misleading views. In fact, the law of statehood took a fine shape through the Bangladesh Proclamation which remained largely unrecognized.

V

The discussion suggests that the Bangladesh Proclamation of Independence is an instrument ‘pregnant with the fate’ of the Bengalese. It is the Bengali nation’s legal heritage that contributed to the ‘progressive aspirations of mankind’. Its international study can bring to light new implications for the law of UDI, self-determination and statehood. Unfortunately, the Proclamation remained under ‘monkish ignorance’ and ‘superstition’ at both national and international level. Most international law literature relating to Bangladesh’s independence discuss the issues without properly referring to the Proclamation. However, the failure lies primarily with Bangladesh’s part.

Firstly, the original Proclamation is reported to be lost though copies are available in print and online. Perhaps Bangladesh could not highlight the Proclamation in the United Nations General Assembly Session when for the first time Bangabandhu made his address to the world community. Moreover, soon after attaining the UN membership, Bangladesh lost a chance to archive this historical document in the UN documentation library. In this regard, our diplomats might have failed.

Secondly, undue political debate compromises the sanctity of the Proclamation. Recently, the text of the Proclamation has been annexed to the Bangladesh Constitution. But its study from the viewpoint of international law, as mentioned at the outset, remained unreasonably limited.

The Bangladesh Government should make every effort to recover the original copy of the Proclamation because Bangladesh has a perspective of international law. A wider legal scholarship of the Proclamation of Bangladesh Independence can be a starting point to fashion this perspective.

The author is thankful to Professor Mizanur Rahman and the DHLR Editorial Team for their comments and suggestions on an earlier draft of this article.

Citation:

S M Masum Billah, “Proclamation of Bangladesh Independence: Implications for International Law” (DHLR Blog, 17 April 2015) http://www.dhakalawreview.org/blog/2015/04/proclamation-of-independence-801

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Law / Human Rights and Unstable Constitutionalism: Quo Vadimus?

« on: November 24, 2015, 07:22:04 PM »

    “[The object of my government is] non-injury, restraint, impartiality, and mild behaviour […] to all creatures” [Emperor Ashoka, 3rd Century BC, Ashokan Studies, pp. 34-35, edict XIII.]

In this note I seek to navigate, no doubt ambitiously, the relationship between Bangladesh’s unstable constitutionalism and the trajectory of recognition, protection, and discourse of human rights in the country.

The birth of Bangladesh is premised on the people’s longing and commitment for human rights that they were crudely denied in the pre-1971 regime. Quite naturally, therefore, the nation’s Constitution turned out to be one of the finest human rights instruments with the status of a supra-law. Bangladesh’s Constitution constituted “a democracy”, establishing a duty for the State and the individuals to respect human rights and the dignity of humans, and envisaged a rule-of-law-based society. More importantly, its Bill of Rights (Part III) contained the major civil-political rights and provided for an effective judicial power to remedy any breaches thereof. Yet the history of human rights protection in Bangladesh is a chequered one. Within 9 months of the Constitution’s entry into force, the 2nd amendment of it (22 Sept 1973) enacted provisions authorising preventive and hence extra-judicial detention of citizens, and provisions for emergency powers, which, put together, laid a wide template for a series of violation of personal liberty rights in the subsequent years. It also accorded immunity from judicial scrutiny to constitutional amendments on the ground of being inconsistent with “any provisions” of the fundamental rights part of the Constitution. By virtue of the 4th amendment later in January 1975, the people’s right to participate in the governance of the State was curtailed and their right to judicially enforce fundamental rights was done away with.[1]

In the above setting of a constitutional environment largely hostile to human rights, the country entered into a rather long journey of complete autocracy that blatantly misruled it until early 1991 since when (‘elected’) democracy has been in existence except for the two years of 2007-08 emergency. During these past years, human rights conditions in Bangladesh were shaped, influenced, or depreciated by the practice or absence of constitutionalism.  One is not taken by surprise by seeing no meaningful discourse of human rights during the extra-constitutional regimes. But how does one explain the controlled or, sometimes, restrained status of human rights entitlements during the ‘democratic’ regimes? The undeniable mutual influence of constitutionalism and human rights notwithstanding, it is quite intriguing to explain the relegated status of human rights in Bangladesh during democratic periods, sometimes reaching a level that is no better, but rather worse than that under autocracies. One would immediately recall the recent phenomenon of lawlessness often manifested in such instances as forced disappearances, unlawful and clueless detention of suspects, extra-judicial killings in an unprecedented pace and the associated illegitimate defence by senior law-enforcing officials of transgression by their forces, and so on.

Isn’t the human rights protection a matter of culture and ethics, and of substantive democracy that is based on morality in politics, not merely a set of positive laws prescribing norms without deeply dealing with the ‘facts’? As regards human rights, Bangladesh’s legal system seems to tolerate and even generate a gap “between facts and norms” (Habermas, 1996). This can be explained a little further by referring to certain examples of norms-facts gaps. As against the constitutional as well as legal prohibition of torture and other cruel, Inhuman or degrading treatment or punishment (art. 35(5) of the Constitution; the Torture and Custodial Death (Prevention) Act 2013), one sees the nasty legacy of torture and inhuman/degrading treatment of citizens by both State agencies and private individuals. Despite the unconditional constitutional ‘right to life’ and the legal prohibition of extra-judicial killing (in the Penal Code 1860, the anti-torture law of 2013 and other laws), therefore, the State continues to immunize, not infrequently, those who would have been otherwise held liable (note, e.g., the Joint Drive Immunity Act 2003, and the complete absence of State prosecution of allegations of extra-judicial killing by law-enforcing agencies). In the same vein is the example of establishing human rights or good governance institutions and their co-existence with the grim ‘facts’ on the ground. The establishment of the National Human Rights Commission is particularly interesting. Apparently responding to the pressure of international human rights bodies and of local rights groups, the government agreed to establish the Human Rights Commission, but its constitutive legislation was so designed that this independent body would have no power whatsoever in any real sense of the term to enforce human rights.

I now turn to another example of modern Bangladesh’s backward-looking stance in the area of human rights promotion and protection. In recent times, a whole new challenge for governments across the world has emerged in the context of nine eleven in the USA. The challenge for Bangladesh is to strike a right balance between the security/terrorism concerns and the need for protecting the liberty, lives, and rights of citizens. This is a difficult challenge indeed, at the least because those in power often tend to assume an exaggerated role of maintaining ‘peace and order’ at the cost of everything else. As the recent developments in Bangladesh vis-à-vis human rights reveal, the State has shown clear traits of failure to meet the challenge of managing the tension between security or ‘law and order’ concerns and the need for citizens’ protection. The same type of failure is glaringly conspicuous in the field of criminal justice administration, where the basic constitutional guarantees of those suspected or arrested are more often than not violently denied. The balancing task has become apparently difficult for Bangladesh as the country has arguably embraced, and is now nurturing, a culture of force-based power as opposed to “communicative” or transformative power.

It is because of the adoption of proceduralist approach to democracy and ‘power’ that the law in Bangladesh continues to be used increasingly as a disproportionate limit on individual rights and autonomy, to the extent that is unwarranted in a democracy. Take, for example, the scope of s. 57 of the Information and Commutation Technology Act 2006, which provides for a minimum seven years’ term for “tarnishing the image of any person or the State” or for the act of “defamation” through publishing anything electronically. What is especially noticeable is that such a draconian punishment for an almost undefined offence was inserted quite recently, in 2013.[2] Not surprisingly, the abuses of this anti-liberty law have already become more real than apparent, leading, also, to a virtual negation of the rights of freedom of expression or conscience.

Against the odds of human rights conditions as glimpsed above, however, there are few positive developments. First notable of them is Bangladesh’s commitments, expressed at the international level, to live up to the global human rights standards. Bangladesh has ratified almost all core human rights instruments, which has brought her within a certain level of international oversight of responsibility. The ratification of human rights treaties has also empowered the civil society actors, social impact organizations, and the senior judiciary with an additional tool to apply in the realization of their respective roles vis-à-vis human rights. Second, the government has in recent years resorted to making a number of rights-based laws such as those guaranteeing the right to information, or the laws relating to women’s and children’s rights including the ones against human trafficking or domestic violence.

Good efforts notwithstanding, the human rights discourse in Bangladesh continues to remain deficient in an ameliorative vision, a preferred theoretical approach, and in qualitative insights. At one level, the State seems to be refuting the existence of human rights beyond and except under its ‘authority’, a rigid Machiavellian approach. At another level, the individuals and the non-state institutions engaged in the promotion and protection of human rights seem to be preoccupied with the cases concerning breaches of entrenched rights only, especially the civil and political rights violated by State-agencies. Within this nebulous discourse, therefore, one does not see any significant focus on the rights of the most vulnerable people such as dalits, Bangladeshi migrant workers abroad, workers in the garment and other industries, aboriginals, minorities, the persons with disability, and so on. This is reflected in State inertia in the field of affirmative action programmes meant for un-advanced people under article 28 of the Constitution. Nor is there any meaningful voice or action regarding the people’s rights to democracy, to a clean administration, and to a multiparty election for substantive democracy.[3] Moreover, apart from few social welfare or poverty alleviation programmes, taken inconsistently over the years, the social, economic, and cultural rights of the people are put almost in a state of denial. The poor themselves are so busy in making livelihood that they cannot afford the luxury of claiming a space in the governance and some civic rights for them. This phenomenon has, silently, added extra fuel to the government’s ‘authority’ to rule without assigning any notable prominence to human rights – civil and social.

In fine, I would attribute the current state of human rights to the absence of substantive democracy, or, to what can be called unstable or authoritative constitutionalism in Bangladesh. With regard to the protection of human rights in Asia (particularly in South-East Asia), some claim particularism as opposed to universalism, citing the so-called ‘Asian values’ that are defined to emphasize responsibilities over rights and social order over individual autonomy. While these aspects of ‘Asian values’ are innocent and truly protective in approach, the claim of ‘Asian values’ is often made in fact to deny the people’s participation and supremacy and to exert the State authority or “despotism” instead. It is this approach to power of the people conjoint with the rulers’ lack of willingness to be bound by the principle of participation that has rendered human rights concerns so shallow. By contrast, successive governments in Bangladesh, both autocratic and elected, have often failed to realise the rich ‘(South) Asian values’ of promoting “tolerance”, defending “freedom”, and supporting “equality” (Sen, 1997: 183), which were endorsed by ancient native rulers of this land such as the Emperors Akbar and Ashoka.

If one has to elevate the impoverished state of human rights in Bangladesh, one must regard the promotion and protection of human rights as an inseparable part of democracy and must direct all State measures, policy actions, and the lawmaking towards the closure of the gap between ‘norms’ and ‘facts’ that currently exists in Bangladesh.[4] Human rights protection should be seen not only as an attribute of the rule of law, but rather as a means to achieve it.

————–

[1] See the Constitution (Second Amendment) Act 1975, ss. 3 and 16 substituting respectively articles 44 and 102 of the original text with new provisions that made the enforcement of fundamental rights dependent upon a law to be made by parliament and removed the judicial power to enforce these rights.

[2] The original text of this statute provided for any term in prison not exceeding ten years, and thereby keeping a margin of appreciation for the court intending to apply discretion.

[3] Vidmar (2014) has recently shown that human rights courts have clearly established a requirement for multiparty elections as a condition for democracy or democratic rights under relevant human rights treaties. The current inclusion of certain political parties in the governance of Bangladesh seems to be generating autocratic pluralism in the sense that they have in effect become subsumed in the ruling party, with no effective opposition at any rate.

[4] In order to suggest the closure of norms-facts gaps, Habermas (1996) took an ambitious project of reconciling law, justice, rights, and democracy, placing legitimate laws at the centre of the web of other phenomena.

The writer is Dr. Ridwanul Hoque, Associate Professor, Department of Law, University of Dhaka.

3

Law / Re: Preventing street harassment

« on: November 24, 2015, 07:07:38 PM »

Taking judo karate training of the female to prevent such harassment is very needed.

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Law / Re: ফেসবুক, টুইটারে উত্যক্ত করলেই শাস্তি

« on: November 24, 2015, 07:04:56 PM »

very pragmatic initiative to reduce cyber crime...

5

Law / Re: Anticipatory Bail

« on: November 24, 2015, 07:01:35 PM »

Now the jurisdiction of granting anticipatory bail is handicapped for temporary period..

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Law / Re: Hindu Marriage Registration Act 2012

« on: November 24, 2015, 06:57:37 PM »

Hindu marriage registration should make mandatory. Everybody should raise his or her voice regarding this.

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Law / Re: Is studying law boring?

« on: November 24, 2015, 06:53:05 PM »

Studying law is not boring. It seems to me it is a reflection of the doctrine of hedonism.

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Law / Re: Video Tips on Law & Court : Career Advancement for Lawyers

« on: November 24, 2015, 06:45:23 PM »

very good

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Law / Re: Agony of Teaching and Learning Law in Bangladesh

« on: November 24, 2015, 06:43:03 PM »

Good write up..

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Law / Commentary on Current status of legal protection to consumers in Bangladesh

« on: November 24, 2015, 06:41:18 PM »

The current system of legal protection to the consumers in Bangladesh is inadequate and outdated. Further whatever little laws are available, they are not strictly enforced for the protection of the rights of the general consumers. The consumers in Bangladesh are thus deprived of their rights at every sphere of their lives.

The Constitution of Bangladesh, under its 'fundamental principles of state policy' part, recognizes the rights of consumers to a limited extent. The provisions of consumer protection can be found at Articles 15 and 18 of the Constitution. However, these provisions are mainly focussed on the vital issues of 'health' and 'food' than on other consumer rights. Moreover, the said provisions are mentioned under the 'fundamental principles of state policy' part and not under the 'fundamental rights' part of the Constitution. Hence, they remain mostly non-enforceable in the courts of law.

Apart from the said Constitutional provisions, Bangladesh also has a few specific consumer protection legislations. However, Rahman argues that such specific legislations are 'scanty,' 'scattered over a whole range of enactments' and are 'only indirectly related to the protection of consumer interests' [Mizanur Rahman, 'Consumer Protection in Bangladesh: Law and Practice' (1994) 17(3) Journal of Consumer Policy 349]. Some of such specific legislations include the Control of Essential Commodities Act 1957, the Pure Food Ordinance 1956, the Price and Distribution of Essential Commodities Ordinance 1970, the Bangladesh Drugs Control Ordinance 1982, the Breast-Milk Substitute (Regulation of Marketing) Ordinance 1984, the Tobacco Goods Marketing (Control) Act 1988, the Pure Food (Amendment) Act 2005 etc.

Further, there are certain legislations, part of which has got direct bearings on consumer protection. For example, sections 264-267, 272-276, 478-483 of the Bangladesh Penal Code 1860, the Poison Act 1919, the Dangerous Drug Act 1930, the Trade Mark Act 1940, the Animals Slaughter (Restriction) and Meat Act 1957, the Special Powers Act 1974, the Standards of Weights and Measures Ordinance 1982, the Bangladesh Standards and Testing Institute Ordinance 1985, the Narcotics (Control) Act 1990, and the Safe Blood Transfusion Act 2002, etc.

Ahmed and Rahman comments that the current regime of legislative protection to the consumers in Bangladesh is 'so outdated that little or no protection is provided to the consumers' [Borhan Ahmed and Khalilur Rahman, 'Consumer Rights: Bangladesh Perspective' CAB publication]. They further criticize the current legal regime for consumer protection on the following grounds:
(a) The current laws are faulty and do not meet the present needs;
(b) Under the existing legal regime, the aggrieved consumers themselves cannot go to the court to sue against the violators. It is only the designated government officials empowered under these laws, who can initiate and sue against the violators.
(c) The provisions of penalty or punishment under the current laws are so negligible that nobody cares to abide by such laws; and
(d) Finally, the laws are not effectively enforced.

Afroz too claims that, under the current legal regime, the general consumers in Bangladesh cannot take proper legal action against the fraudulent and unfair trade practices of the unscrupulous businessmen and traders [Tureen Afroz, 'Protecting the Rights of the Consumers in Bangladesh' (17 March 2002) The Daily Star]. She further states that the current statutory protections to the consumers in Bangladesh are not comprehensive and thus, fail to meet the contemporary requirements of the consumers.

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Law / Rights of a consumer

« on: November 24, 2015, 06:31:41 PM »

The declaration made by former US President John F. Kennedy in 1962 outlined only four basic consumer rights: (1) the right to safety; (2) the right to be informed; (3) the right to choose; and (4) the right to be heard.

Worldwide consumer movement led by Consumers International (CI), a global federation of over 250 consumer organizations, added four more rights: (5) the right to satisfaction of basic needs; (6) the right to redress; (7) the right to education; ( the right to a healthy environment. Together these eight rights form the basis for current consumers’ movement worldwide.”

Now-a-days, consumer rights include more sectors like banking, telecommunication etc. In Bangladesh a lot of laws (around 61 laws) are prevailing on consumer rights that aims to ensure safety products and security in service.

In negative sense, a list of consumer rights can be found from the explanation of the term “Acts against consumer rights”.
 Section 2 (20) of the Consumer Rights Protection Act, 2009 states that “Acts against consumer rights” mean:
 a) Selling or offering to sale at a price higher than the price prescribed by any law or Rule for any product, medicine or service;
 b) Knowingly selling or offering to sale any adultered product or medicine;
 c) Selling or offering to sale any product which has mixture of any object that is dangerously harmful for human health and mixture of such object with food is prohibited by any Act or Rule;
 d) Deceiving people in general by false and untrue advertisement with the purpose of selling any product or service.
 e) Not to supply properly the product or service as promised in exchange price;
 f) To sale or supply in a weight lesser than that has been promised at the time of such sale or supply;
 g) The scale or instruments of weighing using for sale or supply of any product of a business establishment showing over weight that in actual weight;
 h) Using less than in promised weight in time of sale or supply of a product;
 i) The using ribbon for measuring length in any business establishment showing more length than in actual size;
j) To make or manufacture any counterfeit product or medicine;
 k) To sale or offer to sale any date expire product or medicine;
 l) Commission of any act which is dangerous to the life or safety of the service consumer that is prohibited under any Act or Rule;

 We, therefore, may come to a conclusion that the prevention of the above „acts against consumer rights‟ means to ensure consumer rights.

12

Law / Slum-dweller Eviction Case or/and Zulhash Uddin Case: The fruit coming from the

« on: November 24, 2015, 05:53:46 PM »

The case of Masdar Hossain allows the seedling of policy activism to be grown as a full-bloom tree under which the nation’s entitlement to the socio-economic rights seems to get a meaningful genre. We can realize the ramifications of these developments by looking closely at the core of the attitude of our judiciary towards the realization of fundamental principles. In the recent case of Advocate Zulhash Uddin, our judiciary has come to shield the health rights of the masses by declaring excessive imposition of VAT over medicine and health service as unconstitutional being contrary to the right to life and fundamental principle of state policy. 
 
In conclusion, we can find that the judicial activism in favor of the realization of socio-economic rights in Bangladesh has been passing a transition from complete passivity to the growing activity. Though in India the directive principles are also not judicially enforceable, interestingly, the Supreme Court issued a number of directions to the government and administrative authorities to take positive action to remove the grievance which have been caused by non-implementation of the directives.
Thus in comparison with that of India, the role of our judiciary has been nugatory.

However, the constitution of Bangladesh has created an enhanced and productive scope of judicial activism in favor of the socio-economic rights. And by this time, we have already passed the phase of nurturing the seeds; allowing the seedling to be grown like trees. So let’s long for the fruits. 
   

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Law / The Masdar Hossain case: the seedling becomes a tree!

« on: November 24, 2015, 05:51:00 PM »

The Masdar Hossain case: the seedling becomes a tree!
 
Next to the Mohiuddin Farooque Case  comes the landmark of the case of Masdar Hossain  which actually shows the juncture of our constitutional transitions towards socio-economic rights. In this case, though the court does not seem to enforce the principle directly, it severely criticized the state for non-implementation of one of the fundamental principles of state policy, namely Article 22 of the constitution of Bangladesh, Focusing on the failure of separate the judiciary from the executive, the court observed:
“Article 22 of the constitution provides that the state shall ensure the separation of the judiciary from the executive organs of the State. though more than 29 years have elapsed since making of the constitution and its coming into force no effective steps have been taken to separate the judiciary from the executive organs of the State.”

In the above case, the court further adds that article 22 contemplates separation of judiciary from the other organs of the state and it is for the legislature to decide on this issue. However, by issuing certain directions to the executive in order to separate the judiciary, the Apex court of our country has come to play a significant role not only in clarifying the constitutional mandate of progressive realization of these principles but also in identifying the authority of “judicial evaluation” to be exercised as a mandated function.

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Law / Case- Saiful Islam Dildar vs. Government of Bangladesh and others

« on: November 24, 2015, 05:46:14 PM »

The case of Saiful Islam Dildar vs. Government of Bangladesh and others, [50 DLR (1998) 318], can also be cited as an example which comes next to Mohiuddin Farooque Case, where the court considers the provisions of fundamental principles in order to justify the constitutionality of any action or decision of the Government.  in this court, the Court made it clear that the fundamental principle of state policy is not judicially enforceable. But, on the other hand, when the learned advocate relying upon article 25 of the constitution contented that Anup Chetia, if extradited to India the government would violate the mandate of article 25, the court in response to this argument observed that the said extradition does not go against article 25, one of the fundamental principles of state policy. Thus, the court rejected the writ petition relying on inter alia, that the said extradition does not violate article 25, one of the fundamental principles of state policy. This approach of the Court clearly suggests that if Article 25 were violated, the decision of the case would otherwise be different.

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Law / Dr. Mohiuddin Farooque Case: The Seed of (policy) activism grows

« on: November 24, 2015, 05:42:08 PM »

The case of Dr. Mohiuddin Farooque vs. Bangladesh  concerning “the issues of standing” is, perhaps, the most plausible example of judicial policy activism in Bangladesh. In this case, our judiciary has been successfully involved in the “right-based policy activism” by putting the status of non-justiciable principle in a new height. We can see the growing seeds of activism in the courageous step of our judiciary from a two-fold dimension:
In the first place, we can understand that the court has approached to develop and shape up its interpretive ethics with an essential and uncompromising reference to the ideals of our fundamental principles. Thus in determining the locus standi of the Appellant as being the person aggrieved, the court goes to interpret as follows:       
“The preamble and article 8 also proclaim principles of absolute trust and faith in Almighty Allah as s fundamental principles of state policy. Absolute trust and faith in the Almighty Allah necessarily mean the duty to protect his creation, and environment. The Appellant is aggrieved, because Allah’s creations and environment are in the mortal danger of extinction and degradation.”
By interpreting a constitutional issue in such a way, the court has not only focused on the interpretative value of the fundamental principles but more obviously creates or recognize “an implementation agenda” by holding that that an act done contrary to the fundamental principles of state policy can make the concern person aggrieved. Thus it goes beyond the orthodoxy of non-justiciability doctrine and makes us keep the eye on how the seed of right-based activism grows on.
In this respect, it is, however, important to note that in proving himself as an aggrieved person, the Appellant also invoked the enforceability of another provision of fundamental principles, namely Article 21(1) of the Constitution which speaks for constitutional obligation of performing public duties and to protect public property.   
In the same case, Justice Lutifur Rahman focused on the interpretive value of the fundamental principles by pointing out that court has the obligation to interpret the constitution in line of the fundamental principles as enshrined in the same. In connection to his conviction, he thensays:
“The principles, primarily being social and economic rights, oblige the state, amongst other things, to secure a social order for the promotion of welfare of the people…A constitution of a country is a document of social evolution and it is dynamic in nature. It should encompass in itself the growing demands, needs of people and charge of time. A constitution cannot be morbid at all. The language used by the framers of the constitution must be given a meaningful interpretation with the evaluation and growth of our society. An obligation is cast on the constitution in a manner in which social, economic and political justice can be advanced for the state and its citizens.”