Our Constitutional Rights and way of enforcement

Most of our people even educated classes of our country don’t aware of their all rights construed in our constitution. Although some of them know about such constitutional rights but don’t know when and how to enforce these rights. But every citizen of a country should be well familiar with his/her constitutional rights as well as exercise the same in their national life. On the other hand, it is indispensable for an independent state to make such rights and privileges accessible to its all citizens so that they can develop a liberalized and a free life. And the constitution of People’s Republic of Bangladesh has ensured this pledge in its Part III captioned under name ‘Fundamental Rights’. Fundamental rights mean when a specific number of human rights are written down in a constitution and are protected by constitutional guarantees. In our constitution, there are such 18 fundamental rights construed in Article 27 to 44. In addition, about the legal enforcement of these rights is construed in Article 44 and 102 of the constitution. These rights mainly based on political and civil purposes. However, our people can enjoy or exercise these rights under some reasonable restrictions attributed by law. Here I am trying to thrash out these fundamental rights in a few words. The first right construed in the constitution is equality before law i.e. all citizens are equal before law and are entitled to equal protection of law. Accordingly, it is stated that state shall not discriminate against any citizen on grounds of religion, race, caste, sex and place of birth. Women have equal rights with men in the state and public life. No citizen can be restrained to access to any public place or to admit into any educational institutional on grounds of his/her religion, race, caste, sex and place of birth. But in this case state can make any special provision for children, women and backward section of citizen for their advancement. All citizens of the state have equal opportunity in government service suitable to men and women. On grounds of religion, race, caste, sex and place of birth no one will be discriminated here. But in this case, the state can also make any special provision for the backward section of citizens. Every citizen and every other person for the time being within Bangladesh has right to enjoy the protection of law. Everybody has the right to protection of life and personal liberty. No action shall be taken which is detrimental to the life, liberty, body, reputation or property of any person. An arrested person cannot be detained in police custody without notifying the grounds for such arrest. S/he has to be presented before a magistrate within a period of 24 hours of arrest. And without the authority of a magistrate, no person shall be detained in such custody more than 24 hours. In this regard, s/he has the right to consult with a lawyer of his choice and to be self-defended. These rights shall not applicable who is an enemy alien or who is arrested or detained under any law of preventive detention. No one shall be pressurized for forced labour. It is an offence and punishable under law. But this condition shall not apply to a lawful punishment for any criminal offence and for any law for public purposes. A person has also some constitutional rights to protection in respect of trial and punishment i.e. no person shall be convicted of any offence without lawful object, no one shall be ordered to a penalty greater than, or different the from, respective law for such offence, no person shall be prosecuted and punished for the same offence more than once. S/he has the right to be adjudicated by a speedy and public trial by an independent and impartial Court and he shall not be compelled to be a witness against himself/herself. A person cannot be tortured in such way that is cruel, inhuman or degrading punishment. Every citizen has the right to move freely throughout Bangladesh, to reside and settle in any place and to leave and re-enter Bangladesh and also to assemble and participate in public meetings and in processions peacefully. But these rights are enjoyable under reasonable legal restrictions for the interests of public order and morality. Every citizen has the right to form any association or union.
But s/he has no right to form or be a member of any association or union which aims are to destroy the religious, social and communal harmony among the citizens or to create discrimination among the citizens or to organize terrorist acts or militant activities against the citizens, state or any other country. Everyone has the rights of freedom of thought, speech, expression, and conscience. Freedom of the press is also guaranteed in our constitution. But these rights can be exercised under any reasonable restrictions imposed by law for the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Every citizen has the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business subject to any restrictions imposed by law. Every citizen has the right to profess, practise or propagate any religion. Every religious community has the right to establish, maintain and manage its religious institutions subject to law, public order and morality. Every citizen has the right to acquire, hold, transfer or dispose of property subject to any restrictions imposed by law and no property shall be compulsorily acquired, nationalised or requisitioned. However, compensation shall be paid for such acquisition, nationalisation or requisition but no question shall be raised in any court on the ground that such compensation is not adequate. Subject to restrictions imposed by law, every citizen has the right to be secured in his home against entry, search and seizure and to the privacy of his correspondence and other means of communication. However, all laws inconsistent with fundamental rights to be void. Therefore, for enforcement of the above-mentioned fundamental rights, Article 44 has guaranteed the right to move to the High Court Division of Supreme Court in accordance with Article 102 of our constitution. As pointed out by Article 102, when anyone’s fundamental rights are infringed by any party or any governmental body then s/he can seek remedy from the High Court Division. Besides, a citizen is entitled to the benefit of writ jurisdiction in accordance with the same Article. Here the High Court Division can exercise its power of judicial review by issuing writ jurisdiction e.g. prohibition, mandamus (do it), certiorari (lack or excess of jurisdiction), quo warranto (by what authority) and habeas corpus (present the body before the court). But these fundamental rights are not fully applicable in case of disciplinary law relating to the members of a disciplined force. Finally yet importantly, in a democratic state to divest its citizens of these fundamental rights is nothing other than repression and arbitrariness of the said state. It is true that our state has enumerated these fundamental rights in the constitution but these rights should be ensured by the state effectively and legitimately.

Writer: MD. ZAHID HOSSAIN, LL.B (Hons.), LL.M (CU) The Writer is an Independent Legal Researcher And a Young Columnist of Bangladesh, zahidhossainlaw@gmail.com