Human Rights Law in Magna Carta, Constitution of Bangladesh and International Conventions
Md Samiul Alam : I want to start this writing with a quotation of Nelson Mandela. Once he said-“To deny people their human rights is to challenge their very humanity”. Human beings by the quality of being human, enjoy certain inalienable rights which are known as human rights. As these rights are held by them because of their very being, they become operational since their birth. These rights being the birthright, are hence, intrinsic in all the persons regardless of their caste, creed, religion, sex and nationality.
Definition of human rights
The term “human rights” signifies the class of rights, which are intrinsic in our nature and without which we cannot live as human beings. Human rights being an imperishable section of the nature of human beings are important for people to advance their personality, their human qualities, intelligence, and conscience and to fulfil their spiritual and other higher requirements. Moreover, it is expressed that the rights which are natural and intrinsic for life and happiness of every person and thus this right are known as human rights. These rights are indispensable for the welfare of human dignity and the individual. Man as a part of the community has some rights in order to him endure, sustain and nourish his possibilities.
The Magna Carta (1215)
Magna Carta, or “Great Charter,” penned in 1215 by the King of England, was a critical point in the progression of human rights. In 1215, after King John of England infringed a number of olden laws and customs by which England had been ruled, his subjects compelled him to sign the Magna Carta, which set forth what later came to be known as human rights. Amongst them was the right of the church to be free from sovereign intervention, the rights of all free citizens to own and inherit assets and to be shielded from disproportionate taxes. It recognized the right of widows who possessed property to choose not to marry again and recognized the principles of due process and equality before the law. It also had provisions forbidding bribery and official transgression. Commonly considered as one of the most significant legal documents in the development of modern democracy, the Magna Carta was a critical turning point in the fight to establish freedom and liberty.
In 1776, rebellious American colonists saw the Magna Carta as an example for their demands of liberty from the English monarchy. Its legacy is particularly apparent in the Bill of Rights and the U.S. Constitution , and nowhere more so than in the 5th Amendment which states that “Nor shall any persons be deprived of life, liberty or property without due process of law”. Further, many state constitutions also contain ideas and phrases that can be linked directly to this significant document.
Human Rights and Constitution of Bangladesh
The central document on human rights in the world is the UDHR of 1948. It provides a number of 25 human rights, including 19 civil and political and 6 economic, social and cultural rights. Civil and political rights are popularly called bourgeois/ capitalist rights and the economic ones are called socialist, due to their
origination and development in, accordingly, capitalist and socialist countries. To make the UDHR-rights of legal binding force in the State-Parties two covenants were adopted by the United Nations General Assembly on
16 December 1966, they are the ICCPR and the ICESCR. They contain principally the UDHR-rights, though there are some exceptions. As the economy of Bangladesh is capitalist, the capitalist human rights are
incorporated in Part III of the Constitution as fundamental rights, capable of being judicially enforced under Article 102. Economic, social and cultural human rights, on the other hand, are incorporated in Part II as fundamental principles of state policy, not capable of being judicially enforced as provided by Article 8(2).
Human Rights as Fundamental Principles of State Policy in the Present Constitution of Bangladesh
Part II of the Constitution, ranging from Articles 8 to 25, contains fundamental principles of state policy. Economic, social and cultural rights of the UDHR are prescribed here mainly in Article 15. Other Articles
embodying socialist human rights are 13(b), 17, 19(1) and 23. The aspirations of these Articles are found in the UDHR as follows:
(i) Article 13(b) and (c) of the Constitution admits, accordingly, co-operative ownership and private ownership. According to Article 17(1) of the UDHR everyone has the right to own property alone as well as in association with others.
(ii) Article 15(a) of the Constitution says, it shall be a fundamental responsibility of the State to secure to the citizens the basic necessities of life including food, clothing, shelter, education and medical care. This Constitutional right resembles to Article 25 of the UDHR which says that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.
(iii) Article 15(b) of the Constitution recognizes the right to work. It provides that it shall be a fundamental responsibility of the State to secure to the citizens the right to work, that is the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of works. The origin of the right is well found in Article 23(2) of the UDHR that provides that everyone, without any discrimination, has the right to equal pay for equal work.
(iv) Article 15(c) of the Constitution provides that it shall be a fundamental responsibility of the State to secure to the citizens the right to reasonable rest, recreation and leisure. It resembles to the right given in Article 24 of the UDHR which provides that everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
(v) Article 15(d) of the Constitution provides that it shall be a fundamental responsibility of the State to secure to the citizens the right to social security, that is to say, to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases. Articles 22 and 25(1) of the UDHR provide for almost the same. Article 22 says that everyone, as a member of society, has the right to social security; and Article 25(1) says that everyone has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(vi) Article 17 of the Constitution arranges for free and compulsory education to all children. Article 26(1) of the UDHR says similarly that everyone has the right to education; education shall be free, at least in the elementary and fundamental stages and elementary education shall be compulsory.
(vii) Article 19(1) of the Constitution provides for equality of opportunity to all citizens. This is a reflection, though slightly, of Article 21(2) provision of the UDHR which says that everyone has the right to equal access to public service in his country.
(viii) Article 23 of the Constitution says that the State shall adopt measures to conserve the cultural traditions and heritage of the people, and so to foster and improve the national language, literature and the arts that all sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture. Article 27(1) of the UDHR says in the same line that everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. There is no internationally recognized definition of fundamental principles of state policy. Generally they form part of a state-constitution as a guideline. They are considered and applied by the state while making laws, they remain fundamental to the governance of the state as well as to the interpretation of the constitution and other laws and finally they form the basis of the work of the state and of its citizens. But they cannot be judicially enforceable. Such non-enforceability by the court is the basic feature of fundamental principles of state policy. So one may ask as to how these are enforced.
Human Rights as Fundamental Rights in the Present Constitution of Bangladesh
Among a number of 18 fundamental rights guaranteed in Articles 27-44 under Part III of the Constitution of Bangladesh 17 are taken from the Universal Declaration of Human Rights of 1948. A number of 6 out of them are applicable to and enjoyable by all persons, citizen or non-citizen, living or staying within the jurisdiction of the country. The rest 12 are for the citizens only. The six fundamental rights showing the resemblance to Articles of the UDHR are as follows:
(i) Right to life and personal liberty save in accordance with law (Constitution Article 32, and UDHR Article 3),
(ii) Right to safeguard as to arrest and detention (Constitution Article 33, and UDHR Article 9),
(iii) Right not to be subjected to forced labor (Constitution Article 34, and UDHR Article 4),
(iv) Right to protection in respect of trial and punishment (Constitution Article 35, and UDHR Article 10),
(v) Right to freedom of religion subject to law, public order and morality (Constitution Article 41, and UDHR Article 18), and
(vi) Right to enforcement of fundamental rights (Constitution Article 44, and UDHR Article 8).
The fundamental rights, 12 in number, applicable to and enjoyable only by the citizens of the country only, are, with resemblance to Articles of the UDHR, as follows:
(i) Right to equality before law and to equal protection of law (Constitution Article 27, and UDHR Article 7),
(ii) Right not to be discriminated against on ground of religion, race, caste, sex or place of birth (Constitution Article 28, and UDHR Article 7),
(iii) Right to equality of opportunity in public employment (Constitution Article 29, and UDHR Article 21.2),
(iv) Right not to accept any title, honor, award or decoration without the prior approval of the President of Bangladesh (Constitution Article 30, from outside the UDHR),
(v) Right to protection of law and to be treated in accordance with law (Constitution Article 31, and UDHR Article 7),
(vi) Right to freedom of movement subject to reasonable restrictions imposed by law (Constitution Article 36, and UDHR Article 13),
(vii) Right to assembly subject to reasonable restrictions imposed by law [Constitution Article 37, and UDHR Article 20(1)],
(viii) Right to form associations or unions subject to reasonable restrictions imposed by law [Constitution Article 38, and UDHR Article 20(1)],
(ix) Freedom of thought and conscience as well as right to freedom of speech and expression and freedom of press subject to reasonable restrictions imposed by law (Constitution Article 39, and UDHR Article 18),
(x) Right to enter upon lawful profession or occupation subject to any restrictions imposed by law [Constitution Article 40, and UDHR Article 23(1)],
(xi) Right to acquire, hold, transfer or dispose of property subject to any restrictions imposed by law (Constitution Article 42, and UDHR Article 17), and
(xii) Right to be secured in home and to privacy of correspondence and other communication subject to reasonable restrictions imposed by law (Constitution Article 43, and UDHR Article 12).
Writer : Student, Department of Law, Northern University Bangladesh
References
Human Rights Law in Magna Carta, Constitution of India and International Conventions; blog.ipleaders.in; Constitution of Bangladesh and Human Rights: A Comparative Study by Md. Shahjahan Mondol & Reba Mondol; IOSR Journal Of Humanities And Social Science (IOSR-JHSS).
