Application of UDHR by Supreme Court of Bangladesh: Analysis of Judgments

Sunday, January 13, 2013, 12:46 PM

Application of UDHR by Supreme Court of Bangladesh: Analysis of Judgments

Md. Mostafa Hosain

Introduction

Justice Powell remarked forty years ago that 'until international tribunals command a wider constituency, the courts of the various countries afford the best means for the development of a respected body of international law.’^[1] National courts are the guardian to ensure domestic legal order and it is their foremost mission to do such. In all national courts, higher judiciary is proactive not only to ensure domestic legal order but also to act as a vanguard towards the obligation of states to international legal norms. A judiciary which is independent of the national Government, employs international standards by resorting to technical, non-political, legal discourse, promises indeed to be a perfect forum to interpret, apply and develop international norms.^[2] Many view national judges as the best candidates within the national systems to grapple with this important task, because of their independent status and their apolitical role.^[3] The obligation of a State towards ensuring human rights of its citizen is the most cardinal approach it has to follow. Although many of the rights provided in UDHR have been incorporated in the Constitution of Bangladesh in Part III, a number of rights are yet to be given status of enforcement in case of violation. Moreover, the Supreme Court of Bangladesh has been playing the vanguard rule to uphold the commitment of the State under article 25 of the Constitution.^[4] This paper will look at the decisions of Supreme Court of Bangladesh involving application of UDHR and then attempting to find out the approach of the Court in all those cases and before drawing conclusion, statutory approach of the Court towards international law will be mentioned and in conclusion a few points for consideration towards application of provisions of UDHR, International human rights covenants and other international instruments will be pointed out for fulfillment of international obligation of State.

Supreme Court: the highest judicial body of Bangladesh

From the point of view of international law, national courts are state organs and thus are required to conform to international norms. Failure to do so may impose international responsibility on the state.^[5] The common practice of all states is that Higher Judiciary has the jurisdiction to deal with issues pertinent to international instruments. Bangladesh has the same. The Supreme Court is comprised of two divisions i.e. Appellate Division and High Court Division. Both divisions will be comprised of by the Chief Justice of Bangladesh and a number of other judges specified by the President.^[6] Appellate Division doesn’t have original jurisdiction, it hear matters brought before it from decisions of High Court Division and other tribunals specified by the Act.^[7] Though the higher Judiciary of Bangladesh is not empowered to make legislations, but it is free to interpret obligation of Bangladesh under international law, take international instrument to interpret domestic law and provide guidelines bases on international instruments.

UDHR: the baseline of international human rights

The UDHR is the universal document adopted in 1948 by UN General Assembly on the 10^th December of that year without any dissent.^[8] As it is resolution of General Assembly, it has no legally binding effect. But unlike all resolutions of General Assembly, UDHR is one of those exceptional Resolutions which has been passed unanimously without any dissent. For that reason, it has customary status like GA Resolution 1963 which is triggered as it achieved status of instant custom about outer space. The document was therefore not only an expression of collective will by states to guarantee or at least recognize human rights, but also an acceptance by states to carry out the contents of the resolution. It has been the foundation of much of the post-1945 codification of human rights, and the international legal system is replete with global and regional treaties based, in large measure, on the Declaration. Initially adopted only as "a common standard of achievement for all peoples and all nations," the Declaration today exerts a moral, political, and legal influence far beyond the hopes of many of its drafters.^[9] International Court of Justice declared supremacy of UDHR provisions over national legislations and state can’t eschew on the ground of its national legislation.^[10] The Universal Declaration has served directly and indirectly as a model for many domestic constitutions, laws, regulations, and policies that protect fundamental human rights.^[11] These domestic manifestations include direct constitutional reference to the Universal Declaration or incorporation of its provisions; reflection of the substantive articles of the Universal Declaration in national legislation; and judicial interpretation of domestic laws (and applicable international law) with reference to the Universal Declaration.^[12] The most authoritative place UDHR took is section 10.2 of the Constitution of Spain which provides, “Provisions relating to the fundamental rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and other instruments”. Thus argument of scholars triggers UDHR as not only a part of customary international law but it has achieved a status of Jus Cogens.

Application of UDHR by Supreme Court

Article 25 of the Constitution of Bangladesh, the paramount provision relating to international law contained principles of international law including ‘international law and the principles enunciated in the UN Charter’ will be respected by State. This article has no binding effect that in case of violation, one can go to the highest court for enforcement. But it has two important consequences: by virtue of Article 8(2) of the Constitution, the principles of Article 25 were to be ‘fundamental’ to the governance and law-making of the state, and they were to be ‘a guide to the interpretation’ of the Constitution and other laws. Hence, interpretation of the Constitution and national laws must be in conformity with the basic principles of international law.^[13] The general practice of the country is evident that international treaties are not automatically become part of the domestic law of Bangladesh unless and until it is incorporated into domestic legislation.^[14] So, international treaties are required to be inserted into the domestic law passed by due procedure and then it will be part of domestic law. The approach of the Court was reflected in the case of BNWLA v. Government of Bangladesh and others,^[15] where the Court vehemently declared-

“Our courts will not enforce those Covenants as Treaties and Conventions even if ratified by the State, as they are not part of the corpus juris of the State unless those are incorporated in the municipal legislation.”

The application of international instruments including UDHR in the domestic arena has been well announced further by the Supreme Court in BNWLA vs. Government of Bangladesh and others^[16] where it was announced that

“It has now been settled by several decisions of this subcontinent that when there is a gap in the municipal law in addressing any issue, the courts may take recourse to international conventions and protocols on that issue for the purpose of formulating effective directives and guidelines to be followed by all concerned until the national legislature enacts laws in this regard (Para 20).”

Looking at UDHR, it has been brought before the Supreme Court in many cases. Sometimes parties referred provisions of UDHR to enforce and in some other cases the Court itself referred to the provisions of UDHR for ensuring and complying with international standards.

In the case of Ershad v Bangladesh and ors,^[17] the Court asserted that there was full application of Article 13 of the UDHR to the facts of the present case. Article 13(1) of the UDHR entails the right to freedom of movement and residence within the borders of a state. Article 13(2) reads: “Everyone has the right to leave any country, including his own, and to return to his country.” The judgment reaffirmed that the right to leave a country is a fundamental human right and consistent with the freedom of movement of a citizen guaranteed under the Constitution and international human rights law. The judgment reflects the prevailing trend in the judicial invocation of international human rights law in Bangladesh that courts refer to non-binding instruments on human rights law not as a binding source of law, but as an interpretative guide in domestic litigation. B B Roy Chowdhury J, in a separate opinion clarified that-

“Although universal human rights norms, whether given in the UDHR or in the Covenants, are not directly enforceable in national courts, they are enforceable by domestic courts if such norms are incorporated into the domestic law. However, national courts should not ignore the international obligations which a country undertakes. National courts should draw upon the principles incorporated in the international instruments if the domestic laws are ambiguous or absent. Where the domestic laws are clear, but inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect national law. The universal norms of freedom of leaving the country and returning have been recognised in Article 36 of the Constitution, and there was full application of Article 13 of the UDHR to the fact of this case” (paragraph 3).

The approach of the Court further strengthened in the case of BNWLA v. Government of Bangladesh and others^[18], where it was held that the Court can look into UDHR, ICCPR, ICESCR and other conventions and covenants as an aid to interpretation of provisions of Part II, particularly to determine the rights implicit in the rights like the right to life and the right to liberty but not enumerated in the Constitution. The Court found non compliance with the provisions of UDHR is a violation of the obligation of the international obligation of member states. In the case of Advocate Md. Salauddin Dolon v. Government of Bangladesh and others^[19], it was held-

“The University Declaration of Human Rights, in article 1 states that “all human beings are born free and equal in dignity and rights”. Article 2 provides that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Article 3 provides hat “everyone has the right to life, liberty and security of person.” Article 5 provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The nondiscrimination clause in Article 2, taken together with Articles 3 and 5, means that any form of violence against women which can be construed as a threat to her life, liberty or dignity or security of person or which constitutes torture or cruel, inhuman or degrading treatment is not in keeping with the Universal Declaration and is therefore a violation of the international obligations of Member States.”

In the case of BNWLA vs. Government of Bangladesh and others, 2001, 40 CLC (HCD) the Court declares that “……..The Universal Declaration of Human Rights 1948 (UDHR) recognizes the equal rights of men and women (Preamble articles 1 and 2)………………..where Bangladesh is obliged to implement those provisions (Para 19).”

In the case of Tayazuddin and another v Bangladesh,^[20] the court invoked Article 3 of the UDHR relating to personal liberty and protection of life to substantiate its judgment. The court interpreted Article 3 of the UDHR in conjunction with the fundamental right to life guaranteed by the Constitution. Through the reference to Article 3 of the UDHR, the court explained that the right to life, liberty and security of a person applies as much to the victim as to the accused, so that the court could weigh the liberty of the accused against the sense of security of the victim. Considering the gravity of the crime alleged, the court held that right of victims to security and freedom from fear would prevail over that of the accused. It was held-

“The Government is responsible for ensuring a free and fair trial not only to the accused but also to the victim of a crime. In essence, the fair trial of the accused also implied that the victim must be able to give evidence without fear and insecurity. In support of this judgment, the court had recourse to the universal human rights norm of the right to life, liberty and security of a person. Article 32 of the Constitution, 1972 states that no person shall be deprived of life or personal liberty saves in accordance with law. Article 3 of the Universal Declaration of Human Rights, Resolution 217A (III); UN Doc A/810 91, UN General Assembly, 1948 (‘UDHR’) provides for the right to life, liberty and security of a person. Articles 27, 31 and 32 of the Constitution impose a duty and obligation on the state to protect and safeguard a citizen of the Republic and ensure his security. (paragraph 26).”

In this case, parties in did not mention the provisions of UDHR. By referring to the UDHR, the court took a rather activist stance in invoking universal human rights norms. By grounding its decision in universal human rights norms, the court set an important precedent in the protection of victims' rights in the domestic court's. Although the UDHR is a non-binding instrument, the courts reference to Article 3 of the UDHR may have reflected the fact that the court recognised it as a principle of customary international law. Through widespread and universal practice, Article 3 of the UDHR has assumed the character of norm of customary international law.

The Court clarified further its position and approach by stating in Bangladesh v Metropolitan Police Commissioner that universal human rights norms contained in international instruments would be enforceable if the provisions are incorporated into the domestic law and the courts should not ignore the international obligations which a country undertakes. If domestic laws are not clear enough on the issue in question, the national courts should draw upon the principles incorporated in the international instruments.^[21] In the case of Bangladesh and another v Hasina and another, 2008, 37 CLC (AD)^[22] the Court used provisions of UDHR and ICCPR in applying right to life, liberty and other rights mentioned in the Constitution. The Appellate Division was very restrictive in this decision. It missed the opportunity to render judgment in light of the international human rights obligation. It was held that-

“The courts would not enforce international human rights treaties, even if ratified by Bangladesh, unless these were incorporated in municipal laws, but they would have looked into the ICCPR while interpreting the provisions of the Constitution to determine the right to life, liberty, and other rights (paragraph 86).”

In the case of Chaudhury and Kendra v Bangladesh and ors,^[23] the Court recalled article 16 of UDHR under which man and woman of full age have right to marry regardless of religion, race or nationality etc. Although provisions of UDHR has been incorporated in part III of the constitution, but the Court further repeated its restrictive approach that it will not look at international instrument even if ratified by Bangladesh, unless these are incorporated in the domestic law of Bangladesh. The High Court Division of the Supreme Court of Bangladesh held that-

“where there is a gap in the municipal law in addressing any issue, the courts may take recourse to international conventions and protocols on that issue for the purpose of formulating effective directives and guidelines to be followed by all concerned until national legislature enacts laws in this regard.”^[24]

This verdict of the Court proves that if there is no national legislature to encompass any issue, international conventions and protocols on that issue may be taken which implies that there is no bar to directly apply international law to resolve any case. Moreover, the guidelines provided by the Court on the basis of provisions of UDHR have significant value and importance.

The Court in BNWLA vs. Government of Bangladesh and others, 2001, 40 CLC (HCD) declared that-

“We hold that the definition and directive guidelines given, and / or to be given by this court in this case, are law of this country, and in view of Article 111 of the Constitution, they are binding on all concerned and are to be implemented everywhere until an effective legal measure is evolved and/or enacted by our legislature (Para 23).”

The UDHR norm has been respected by the Supreme Court of Bangladesh in many cases. But when question of application or enforcement has come before the Court, It always took reserve position as like classical common legal system oriented institution. In all circumstances, the clear argument of the Court is that it will not apply this international instrument unless through domestic legal procedure, the provisions of this instrument are enacted into domestic law. It appears the Supreme Court of Bangladesh where references were made to UDHR and other international laws, did not take any serious, substantive and doctrinal view of the domestic relevance of these laws to render international human rights as basis for decision.^[25] It has to be kept in mind that some of the human rights treaties are so fundamentally universal that provisions contained therein have seemingly attained the character of customary or self-executing norm. This allows to speak of a legal concept of common law of human rights for mankind.^[26] Many of the modern developments and achievements of the states and progress of human civilization are judged in terms of progress of human rights that individual states and the world community at large have made. This brings to forefront the issues of implementation of international human rights law by domestic courts.^[27] One way of enforcing UDHR is recognising it as part of customary international law. Then question comes as to state practice. It is clear that Bangladesh being a common legal system based country, in case of application of customary international law, Bangladesh follows British practice.^[28] Although from all above cases, it is clear that UDHR provisions are not directly enforceable by the Court but even it has some influence that legislatures has to take into consideration of UDHR and other instruments in making any law and in interpreting constitutional provisions, the Court will consider UDHR provisions and other international instrument as an aid.

Conclusion

Bangladesh based on Common law system is no different from other common law countries. Bangladesh’s position in relation to domestic application of international law is characterized by paucity of case laws, ambiguity of constitutional and statutory provisions and reluctance of our judges as well as the lawyers to refer to international instruments. These characteristic are largely the results of traditional and stereotyped thinking of our legal community, lack of willingness to know more of international legal development, lack of sufficient emphasis on international law in law school curriculum, and finally rigid adherence to common law principles with little or no interest to take anything from civil law system, or even with little interest to have a look at other common law jurisdictions which are now devoting more time and toil to accommodate international law within domestic jurisdiction.^[29] Thus, in the era of globalization where the concept and application of human rights is universally accepted international standard for all nations to follow, it is highly necessary to take international instruments relating to human rights including UDHR as a source of domestic law by the Supreme Court and that can contribute to ensure rule of law. Secondly, where it is a common feature in every regime of government that human rights of individual has been violated in a large scale, politicians of opposition party has been tortured; direct enforcement of UDHR and other international human rights instrument must be taken by Judges of the Apex Court who are the best persons sitting in the best forum to ensure justice and rule of law and promote dignity of human being.