Absence of legal regime to apply treaties

Wednesday, November 4, 2015, 2:17 AM

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Absence of legal regime to apply treaties

In Bangladesh, there is no constitutional or statutory provision as regards the ratification of treaties, nor has the Constitution mentioned any clear provision for treaty implementation.

Mazharul Islam 

The position of Bangladesh, in relation to the domestic application of international law, is characteristised by the ambiguity of constitutional and statutory provision. The judges and the lawyers are reluctant to refer to international instruments owing to the lack of willingness to know about international law. There are two main provisions (articles 25 and 145A) in the Constitution of the People's Republic of Bangladesh regarding international law and relations. 

The provision of article 145A provides for one kind of obligation to present the treaty before the parliament only for discussion; and again if an international treaty relates to the question of national security, that treaty will be discussed in the secret session of the parliament. However, this article does not define the phrase 'secret session' anywhere in the constitution. This seems to be an incomplete provision of the constitution, raising more issues and creating more problem than it solves. So far, only one treaty titlted the Ganga Water Sharing Treaty, 1966 placed before the parliament in 1997 for discussion and debates by the members of the parliament.

In practice, the higher courts give effect to the domestic law and not to the instruments of international law, where there is a clear and specific domestic legislation on the disputed issue. In Bangladesh and othersSombon Asavhan [1977], the Supreme Court of Banglasdesh applied the provisions of the Bangladesh Territorial Waters and Maritime Zones Act of 1974, instead of applying the existing norms of international law. In the case of Saiful Islam Dilder v Bangladesh and Others [1998], the petitioner argued that the right of self-determination, as jus cogens of international law, has become universally accepted customary norm. This principle is binding upon all nations, and hence, extradition of a foreign accused (in this case Mr. Anup Chetia, the General Secretary of ULFA-India) would violate article 25 of the Constitution. Rejecting the petitioner's contention the court observed that the purpose of extradition of Mr. Chetia to Indian authority is to base its international relations by maintaining the principle of respect for national sovereignty, equality and non interference of international affairs of other countries under article 25(1) of the Constitution.

In the cases of Chaudhury and Kendra v Bangladesh [2008] and BNWLA v Government of Bangladesh and Others [2009], the Supreme Court held that the courts in Bangladesh cannot enforce treaties, even if ratified by the state, unless these were incorporated in the municipal laws. 

Regarding the application of international instruments, in the case of BNWLA v Government of Bangladesh and Others [2001], the Supreme Court declared that when there is a gap in municipal law in addressing any issue, the court may take recourse to the international conventions and protocols until the national legislature enacts laws in this regard. However, in the case of Bangladesh and Others v Hasiana [2008], the Supreme Court further strengthened by saying that the courts would not enforce international human rights treaties, even if ratified by Bangladesh, unless these are incorporated into municipal laws, but they would have looked into the core instrument while interpreting the provisions of the Constitution to determine the rights of life, liberty and others.

In Bangladesh, there is no constitutional or statutory provision as regards the ratification of treaties, nor has the Constitution mentioned any clear provision for treaty implementation. In a research article, Sheikh Hafizur Rahman Karzon, an associate professor of law at the University of Dhaka, rightly pointed out that international treaties signed and ratified by the Government of Bangladesh would require implementing legislation or constitutional amendment to apply them within its domestic jurisdiction, if: a) it involves alteration of the existing law; b) confers new powers to the executive; c) imposes financial obligation to the citizens; d) affects the right of citizens; and e) involves alienation or cession of any part of the territory of Bangladesh.

To determine the status of international law under the Constitution of Bangladesh, in a recent famous case of Chief Prosecutor Abdul Quader Molla [2013], Chief Justice Mr. Surendra Kumar Sinha pointed out that article 152 of the Constitution, which has given the following interpretation, that the violation of international law does not have any coercive sanction in Bangladesh. So, international law cannot be applied by a domestic tribunal if those are inconsistent with an Act of Parliament or prior judicial decisions of final authority.

Therefore, there is no constitutional or statutory binding provision on the status of the treaty and international law in our legal system, nor is there any procedure as to how these would be implemented in our domestic jurisdiction. How smoothly international instruments would be applied in our legal system, is a question of utmost national interest. It needs to be realised that our state institutions and individuals have both rights and obligations under international law. Hence, this necessitates drawing a clear picture for regulatory regime in regard to the application of international law in Bangladesh.

[The writer Mazharul Islam Ph.D is a Research Scholar in Law at South Asian University, New Delhi, India]


This article was published in Law & Our Rights section of the  Daily Star newspaper on September 8, 2015