Bangladesh

WRITS IN BANGLADESH

44. Enforcement of fundamental rights

102. Powers of High Court Division to issue certain orders and directions (Reported Judgements)

CONSTITUTION OF BANGLADESH


PART III: FUNDAMENTAL RIGHTS

26. Laws inconsistent with fundamental rights to be void (Reported Judgements)

27. Equality before law (Reported Judgements)

28. Discrimination on grounds of religion, etc. (Reported Judgements)

29. Equality of opportunity in public employment (Reported Judgements)
30. Prohibition of foreign titles, etc.
31. Right to protection of law (Reported Judgements)
32. Protection of right to life and personal liberty (Reported Judgements)
33. Safeguards as to arrest and detention (Reported Judgements)
34.Prohibition of forced labour
35. Protection in respect of trial and punishment (Reported Judgements)
36. Freedom of movement (Reported Judgements)
37. Freedom of assembly (Reported Judgements)
38. Freedom of association (Reported Judgements)
39. Freedom of thought and conscience, and of speech (Reported Judgements)

40. Freedom of profession or occupation (Reported Judgements)

41. Freedom of religion (Reported Judgements)

42. Rights of property
43.
Protection of home and correspondence (Reported Judgements)
44.
Enforcement of fundamental rights
45.
Modification of rights in respect of disciplinary law (Reported Judgements)
46. Power to provide indemnity
47. Saving for certain laws
47A. Inapplicability of certain articles

PART IXA: EMERGENCY PROVISIONS

141A. Proclamation of Emergency

141B. Suspension of provisions of certain articles during emergencies

141C. Suspension of enforcement of fundamental right during emergencies


WRITS IN BANGLADESH

Writ Actions in Bangladesh are regulated by Articles 44 and 102 of its Constitution. Though the Articles do not expressly mention the word “writ” or the specific names of the writs, it is clear upon a reading of the Articles, that they deal with Writs. In Bangladesh, Writs are granted for the enforcement of Fundamental Rights in terms of Articles 44 and 102 of the Constitution of Bangladesh.

102. Powers of High Court Division to issue certain orders and directions, etc.

(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order-

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect refered to in sub-clause (a) or sub-clause (b).

(5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.

CONSTITUTION OF BANGLADESH

PART III

FUNDAMENTAL RIGHTS

26. Laws inconsistent with fundamental rights to be void. (Reported Judgements)

(1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.

(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.

27. Equality before law. (Reported Judgements)

All citizens are equal before law and are entitled to equal protection of law.

28. Discrimination on grounds of religion, etc. (Reported Judgements)

(1) The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth.

(2) Women shall have equal rights with men in all spheres of the State and of public life.

(3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

(4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.

29. Equality of opportunity in public employment.

(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.

(2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.

(3) Nothing in this article shall prevent the State from –

(a) making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;

(b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

30. Prohibition of foreign titles, etc.

No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.

31. Right to protection of law. (Reported Judgements)

To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

32. Protection of right to life and personal liberty. (Reported Judgements)

No person shall be deprived of life or personal liberty save in accordance with law.

33. Safeguards as to arrest and detention. (Reported Judgements)

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person-

(a) who for the time being is an enemy alien; or

(b) who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.

(6) Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4) .

34. Prohibition of forced labour.

(1) All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall apply to compulsory labour.

(a) by persons undergoing lawful punishment for a criminal offence; or required by any law for public purpose.

35. Protection in respect of trial and punishment. (Reported Judgements)

(1) No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.

(4) No person accused of any offence shall be compelled to be a witness against himself.

(5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

(6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.

36. Freedom of movement. (Reported Judgements)

Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.

37. Freedom of assembly.

Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.

38. Freedom of association.

Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;

39. Freedom of thought and conscience, and of speech.

(1) Freedom or thought and conscience is guaranteed.

(2) Subject to any reasonable restrictions imposed by law in 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-

(a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.

40. Freedom of profession or occupation.

Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.

41. Freedom of religion. (Reported Judgements)

(1) Subject to law, public order and morality-

(a) every citizen has the right to profess, practice or propagate any religion;

(b) every religious community or denomination has the right to establish, maintain and manage its religious institutions.

(2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.

42. Rights to property.

(1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned save by authority of law.

(2) A law made under clause (1) shall provide for the acquisition, nationalisation or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.

(3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalisation or acquisition of any property without compensation.

43. Protection of home and correspondence. (Reported Judgements)

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health- (a) to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication.

44. Enforcement of fundamental rights.

(1) The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part of guaranteed.

(2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.

45. Modification of rights in respect of disciplinary.

Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force.

46. Power to provide indemnity.

Notwithstanding anything in the foregoing provisions of this Part, Parliament may be law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of other in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.

47. Saving for certain laws.

(1) No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part-

(a) the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently;

(b) the compulsory amalgamation of bodies carrying on commercial or other undertakings;

(c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein;

(d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil;

(e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or

(f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution.

(2) Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; 24 Provided that nothing in this article shall prevent amendment, modification or repeal of any such law.

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

47A. In applicability of certain articles.

(1) The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.

(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.

PART IXA

EMERGENCY PROVISIONS

141A. Proclamation of Emergency

(1) If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency:

Provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister.

(2) A Proclamation of Emergency-

(a) may be revoked by a subsequent Proclamation;

(b) shall be laid before Parliament;

(c) shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament:

Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament.

(3) A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance may be made before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.

141B. Suspension of provisions of certain articles during emergencies

While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III of this Constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

141C. Suspenion of enforcement of fundamental right during emergencies

(1) While a Proclamation of Emergency is in operation, the President may, 89 on the written advice of the Prime Minister, by order , declare that the right to move any court for the enforcement of such of the rights conferred by Part III of this Constitution as may be specified in the order, and all proceedings pending in any court for the enforcement of the right so specified, shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

(2) An order made under this article may extend to the whole of Bangladesh or any part thereof.

(3) Every order made under this article shall, as soon as may be, be laid before Parliament.

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