Constitution, fundamental rights and remedies

The constitution functions as the backbone of a country. It is a set of fundamental rules and conventions that determine the relationships between different branches of a state’s government, i.e., the legislative, executive, and judiciary. It outlines the powers of the rulers, describes the fundamental rights of the ruled, defines the relationship between ruler and ruled, and establishes the judiciary for redress when the ruler exceeds their authority and infringes upon the rights of the ruled. The Constitution of Bangladesh was adopted on November 4, 1972 and came into effect on November 16, 1972.

 

The name of the Constitution of Bangladesh is “The Constitution of the People’s Republic of Bangladesh.” Different countries around the world have different types of constitutions. However, our constitution is written and codified and includes the framework of a parliamentary democratic government, the fundamental principles of state policy, the fundamental rights of the people, the scope of the executive branch, the legislature, and the judiciary, as well as regulatory provisions for constitutional institutions. The Constitution of Bangladesh contains 153 articles, among which Article 7(1) states that all powers of the Republic belong to the people, and such power shall be exercised on behalf of the people under and by the authority of the constitution only.

 

According to Article 7(2), this constitution, being the solemn expression of the will of the people, is the supreme law of the Republic, and if any other law is inconsistent with this constitution, then to the extent of such inconsistency, that law shall be void. From the above discussion, it is clear that the constitution is a written document adopted by the government to run the state. On the other hand, constitutional law is the fundamental principle and process of good governance in the country. Furthermore, the fundamental rights of the people are protected and guaranteed by Articles 26–44 of the Constitution, which lawmakers cannot amend, alter, or repeal, whereas constitutional rights are usually protected by law and lawmakers can amend, alter, or repeal them.

 

If anyone's fundamental rights are violated, the aggrieved person can apply for redress to the High Court Division under Article 102 of the Constitution. On the other hand, if a constitutional right is violated, one can seek remedy in an ordinary court. Notably, if human rights are violated, redress cannot be sought through a writ petition filed with the High Court Division. This is because fundamental rights apply equally to citizens of a country, whereas human rights apply equally to all people around the world. Briefly discussing writs, it can be said that the writ first originated in England and gradually developed in the 12th century.

 

Initially, writs were the royal prerogative. The King or Queen, as the source of justice, used to issue writs. Later, as representatives of the King or Queen, two types of courts were formed in England: The Chancery Court and the King’s Bench. As similar types of cases continued to arise in these courts, a standard form of writ was developed. Later, under the Regulating Act of 1773, the Supreme Court was established in Calcutta through the royal charter issued on March 26, 1774 by King George III, granting the judges the jurisdiction of England’s King’s Bench, thereby initiating the advancement of the writ process in this subcontinent. Subsequently, through various developments, writs were incorporated into our constitution as well. Notably, the writ process in common law countries is of a similar nature. A writ is a written order that judges of the High Court Division may issue.

 

An analysis of Article 102 of the Constitution reveals that if there is no other means to implement the fundamental rights described in Part III of the Constitution of Bangladesh, an aggrieved person may seek redress by filing a writ petition. A writ may be filed against any person or authority responsible for matters related to the Republic, but, with some exceptions, not against private individuals. Generally, there are five types of writs:

 

1) Writ of Mandamus (directive writ): Under Article 102(2)(a)(i) of the Constitution, a directive by the High Court Division to a concerned person or persons to perform a certain act is called a Writ of Mandamus.

 

2) Writ of Prohibition (prohibitory writ): A directive prohibiting a concerned person or persons from doing an unlawful act is called a Writ of Prohibition.

 

3) Writ of Certiorari (corrective writ): Under Article 102(2)(a)(ii) of the Constitution, a declaration by the High Court Division that an act done unlawfully by a concerned person or persons is without legal effect is called a Writ of Certiorari.

 

4) Writ of Habeas Corpus (produce the detained person): Under Article 102(2)(b)(i) of the Constitution, a directive by the High Court Division to produce a detained person before the court to ensure that the person is not being held unlawfully is called a Writ of Habeas Corpus.

 

5) Writ of Quo-Warranto (show cause writ): Under Article 102(2)(b)(ii) of the Constitution, a directive by the High Court Division requiring a person to show under what authority or power they are holding a position in a government or autonomous institution is called a Writ of Quo-Warranto.

 

Except for some exceptions, only aggrieved persons can file a Writ of Mandamus, Writ of Prohibition, or Writ of Certiorari. On the other hand, a Writ of Habeas Corpus and Writ of Quo-Warranto can be filed by any person.

 

In conclusion, it can be said that out of loyalty to the state, it is the sacred duty and responsibility of every citizen to abide by the constitution of the country, just as it is the duty of the state to remain committed to protecting the fundamental and constitutional rights of every citizen.

 

Md J R Khan Robin: Advocate, Appellate Division, Supreme Court of Bangladesh