Introduction:
A constitution is a set of rules, generally written, which identify and regulate the major institutions of the state and govern the relationship between the state and the individual citizen.[1] Basically it is a fundamental law that is determining the fundamental political principles of a government. In most countries the written constitution is the ultimate source of legal authority, where all actions of government and the lawmaking body [2] must conform to the constitution.
Whether the constitutions are written one or an unwritten one all the common features would be shared by both of the constitutions. Hence it will identify the principal institutions of the state which has three branches like the executive, the legislative and the judicial. Moreover the constitution will identify the rights and freedoms of citizens through a Bill of Rights which operates both to protect citizens and to restrict the power of state.
Constitution has many forms such as written and unwritten, republican and monarchical, unitary and federal, rigid and flexible, supreme and subordinate.
Constitution of Bangladesh:
Now if we will consider the example of our own country Bangladesh which has a written constitution like the other countries. The Bangladeshi constitution has been amended whenever a new government is replaced which has also been reflected in the state principles. While there was a commitment to Socialism in the original version of the constitution, it was as soon as 1977 under Zia-ur Rahman that it was defined as ‘economic and social justice”. In the same era, even the original principle of Secularism was removed from the preamble and absolute trust and faith in the Almighty Allah was inserted. In fact, the earlier existence of Islam and Socialism looks odd, considering that most communists and socialists are actually atheists and partially used to believe that there is a fundamental difference incompatibility between religion and socialism.[3] In Bangladesh, although there have been frequent regime changes-from democracy to one party rule, from parliamentary to presidential and back to parliamentary democracy.[4]
Body:
Fundamental principles of state policy:
1. The principles of absolute trust and faith in the Almighty Allah, nationalism, democracy [5] and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy.
1A. Absolute trust and faith in the Almighty Allah shall be the basis of all actions.
2. The principles set out in this Part shall be fundamental to the governance[6] of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.
Selected by the government but again the ultimate authority rests on the public as we have to take the final decision whom to support by giving votes. However, under a written constitution this background has a particular significance.[7]
Legal Bodies and areas:
In Constitution of Bangladesh Prohibits all forms of forced labor and provides for punishment accordingly. They are mentioning below:
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.
- by persons undergoing lawful punishment for a criminal offence; or
- required by any law for public purpose.[8]
Protection in respect of trial and punishment:
(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.[9]
Rules Of Law:
The notion of the “rule of law” stems from many traditions and continents and is disheveled with the progression of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law.[10] Core philosophy of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical civilization across the Asian continent, including in Confucianism.[11] In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.
Recent attempts to make bureaucrat its meaning have drawn on this rich history of diverse understandings. The modern outset of the rule of law has developed as a concept different from the “rule of man”, connecting a system of governance based on non-arbitrary rules as conflicting to one based on the power and whim of an utter ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the safety and absolution of rights and the prevention and penalty of wrongs. Long before the United Nations, States were working towards a rule of justice in international life with a view to establishing an international community based on law.[12]
Rule of Law means Equality:
The analysis of statutes or through improvement of the common law are a source of constitutional law where they have an result on the powers of the state the decisions of the judges through, the relationship between institutions of the state and the protection of citizens rights and freedoms.[13] Even AV Dicey agreed with this.[14] Though rule of law says equality before the law but Dicey is not saying that in the society everyone is getting the equal rights.[15] For an example we can consider the case of Malone v Metropolitan Police Commissioner.[16]
Define forced labor:
To be a slave is to be controlled by another person or persons so that your will does not settle on your life’s course, and rewards for your work and sacrifices are not yours to claim. According to Kevin Bales, one of the world’s leading experts on contemporary slavery, “people are enslaved by aggression and held against their wills for purposes of exploitation.” While people today most likely believe that slavery is a thing of the past, the practice is still flourishing wherever poverty, social conditions, and lack of caution can be exploited. Bale estimates that there are 27 million slaves in the world today.[17]
Situation of forced labor in Bangladesh:
Bangladesh is a developing country in South Asian region with 130 million of people. According to Labour Force Survey 2000 of the Bangladesh Bureau of Statistics (BBS)[18], the total estimated civilian labour forces of the country is 60.3 million and among them 37.81% are female.
The constitution of Bangladesh has predictable fundamental rights of the workers at work places including necessary social protection. Globalization and changing economic condition influencing traditional workplace values, nature of employment, working condition, welfare facilities, industrial relations and contemporary social protection system. The introduction of free market economic policies, unbalanced economic and industrial reforms posed serious challenges to job security and social protection of workers in different sectors.
The approximate ratio of formal and informal sector in Bangladesh is 20:80 and the ratio between public and private sector is 30:70. However 51% of employment is covered by agriculture – forestry and fishery sector, the production and transport sector cover 6.4% of employment, 1% of employed people in clerical occupation, 4.5% in sales and 1.2% in service sector.
Women are more and more entering into job market mostly in ready-made clothing and allied sector, tea gardens, NGOs, fitness care services, food giving out industry, export processing zones, services sectors and commercial enterprises and informal sector i.e. construction, agriculture etc.
The core labour laws of the country are Industrial Relation Ordinance, 1969,[19] Worker’s Compensation Act, 1923 [20], Payment and Wages Act, 1936 [21], Maternity Act, 1939 [22], Factory Act 1965, Shops & Establishment Act 1965, Employment of Labour (SO) 1965 etc. Majority of the labour laws are backdated with week enforcement by concerned establishment and most important face of it is that in does not covered all section of staff.
Forced labor in context of legislation:
Many countries enshrined the prohibition of forced labour in the constitution or in national human rights legislation. Prohibition of forced labour through general or international legal norms is very difficult to enforce and put on trial unless there is a corresponding illegal offence created in the national law. Despite the requirement for the states that ratified relevant ILO[23] Conventions[24] to ensure that ‘the illegal exaction of forced or compulsory labour shall be carrying a punishment of as a penal offence’[25] not many countries have introduced straightforward criminal legislation against forced labour.
The introduction of criminal offences of forced labour has been marked by two quite different approaches:
Some countries introduced legislation on slavery, servitude and/or forced labour. Others legislate against forced labour only as an outcome of trafficking in their anti-trafficking laws.
The approach to outlaw forced labour within the anti-trafficking laws has been more prominent in the past fifteen years, reflecting the increasing concern of the international community about trafficking in human beings. A illegal offence of trafficking in human beings for the reason of forced labour was introduced into criminal legislation in a number of countries. Thus, in these countries, forced labour is punishable only as an outcome of trafficking. In other countries it is still possible to prosecute forced labour even in cases where trafficking is not present. Often the two concepts are confused – to the disadvantage of those who might have been wounded of forced labour but who were not trafficked. These people are excluded from protection and assistance programmes designed for victims of trafficking, and where there is no stand-alone forced labour offence, often even not standard as victims of crime. Trafficking and forced labour are two linked but distinct concepts, and it is important to understand that not all forced labour is a result of trafficking.
Suggestion from my point of view:
In constitution of Bangaldesh basically don’t prohibits all type of forced labor because in constitution there are mentioned that forced labor is illegal but nothing is specified. Child labor, Sex workers, and women workers are also forced many times for risky work which is not right. In constitution there should be specific mentioned about that those people who are very insensitive but they are forcing towards risky works. As population growth in Bangladesh there are high unemployment rate so that for earning money child are forcing towards work from early stage at very low wage rate which should be prohibited by constitution for the sack of people of the country and for their future as fundament rights. I think, every worker’s working environment should be satisfying and preferable for business. If any Factory following this policies, it may be good for workers. Factory follows the factory law about child labor and does not take any child labor, which are under 18 years of ages. Factory does not force to work anybody. Factory pays at least minimum wage as per the current minimum wages ordinance. Also provide yearly bonus, increments and some entertainment things like picnic. Factory does not does not use threats, any physical, sexual or verbal abuse. Factory main taints reasonable employee works hour based on the limits on regular and over time hours allowed by local laws. Factory pays wages and benefits without regard to race, color, gender, nationality, religion, age and marital status. Factory recognizes and respects the right of employee to freedom of association and collective bargaining. Factory maintains a safe, clean and healthy environment. Also, free giving treatment to workers. Factory continuously monitors production process and takes step to the negative impacts. Women are not getting proper maternity leave the pregnancy period and they are forced in their job to do work during that period. Many organizations are not exercising Maternity Act. So these kind of sensitive issues are not mentioned in the constitution which should be included. And according to that act law enforcement shod do their work to apply those punishments are included in act and law. Organizations should follow the Shops & Establishment Act[26] and Employment of Labour [27]. Bangladesh is a source and transit country for men, women, and children subjected to trafficking in persons, specifically forced labor and forced prostitution. A significant share of Bangladesh’s trafficking victims are men recruited for work overseas with deceitful employment offers who are subsequently exploited under conditions of forced labor or debt repression. Children – both boys and girls – are trafficked within Bangladesh for commercial sexual exploitation, bonded labor, and forced labor. Some children are sold into bondage by their parents, while others are induced into labor or commercial sexual exploitation through fraud and physical coercion. Women and children from Bangladesh are also trafficked to India for commercial sexual management.[28] As expansion of fundamental rights we should add more prohibits and punishment about forced labor in our constitution.
Bibliography:
Kavanagh , D. (1990). British Politics: Continuities and Change. Oxford University Press.
Barnett , H. ( sixth edition). Constitutional & Administrative Law. Routledge.Cavendish
From Wikipedia, the free encyclopedia, Constitution of Bangladesh. Retrieved June 7,2011, from http://en.wikipedia.org/wiki/Constitution_of_Bangladesh
Background and Justification by Bangladesh Institute of labor studies 2005 BILS http://www.bils-bd.org/tor.html
Constitution pdf http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf
http://www.unrol.org/article.aspx?article_id=3
http://www.radioaustralianews.net.au/stories/201105/3224749.htm?desktop
[1] Characteristics of the UK Constitution, pg-19
[2] The legislature
[3] With the help of this misconception it has been forced to accommodate quite opposing views of and ideals
[4] See the notes of Political science, written by Faculty AZM, pg -4
[5] government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.
[6] the term that symbolizes the paradigm shift of the role of governments
[7] Chief Justice Marshall in Marbury v Madison (1803) explained the power of constitution: It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these two alternatives, there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and , like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative is true, then a legislative act contrary to the constitution is not law; if the latter part be true , then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable
[8] Article 34 of the Constitution of the People’s Republic of Bangladesh addresses one aspect of human trafficking: “[a]ll forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
[9] This mentioned Constitution of the People’s Republic of Bangladesh under Part3 Fundamental Rights No.35
[10] supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons
[11] Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius (Kng F?z, or K’ung-fu-tzu, lit. “Master Kong”, 551–478 BC). Confucianism originated as an “ethical-sociopolitical teaching” during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han Dynasty
[12] For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))
[13] See the chapter :Sources of The Constitution, pg-31, Public Law
[14] “Rights and freedoms are best protected under the common law”
[15] For Dicey’s own words, see http://www.constitution.org/cmt/avd/law_con.htm
[16] Malone v Metropolitan Police Commissioner [1979] 1 CH344.James Malone was on trial on suspicion of dealing in stolen goods. In the course of the trial it became clear that the police had intercepted Malone’s telephone calls, thereby obtain evidence of alleged criminality. Sir Robert Megarry V-C ruled that there had been no trespass committed by the police, but that the interception of communications was ‘a subject which cries out for legislation’.
[17] (Kevin Bales, Disposable People: New Slavery in the Global Economy, University of California Press, 1999)
[18] Bangladesh
[19]Industrial Relations Ordinance, 1969. (Act No. XXIII of 1969). CONTENTS. Parts. Particulars. 1. Preliminary. 2. Rights and Privilages of Registered Trade Unions and Collective Bargaining Agents 3. Labour Courts, etc. 4. Penalties and Procedures 5. Miscellaneous
[20] The Workmen’s Compensation Act, aims to provide workmen and/or their dependents some relief in case of accidents arising out of and in the course of employment and causing either death or disablement of workmen.
It provides for payment by certain classes of employers to their workmen compensation for injury by accident
[21] An Act to regulate the payment of wages to certain classes of employed persons.Where as it is expedient to regulate the payment of wages to certain classes of persons (employed persons);
[22]Prohibits employment of a woman worker 6 weeks before delivery and 6 weeks after. If a woman has been employed for nine months before the day of delivery, she shall be entitled to maternity benefit. Prohibits dismissal of a woman worker during manternity leave.
[23] International Labour Organization’s is the international organization responsible for drawing up and overseeing international labour standards. It is the only ‘tripartite’ United Nations agency that brings together representatives of governments, employers and workers to jointly shape policies and programmes promoting Decent Work for all. This unique arrangement gives the ILO an edge in incorporating ‘real world’ knowledge about employment and work.
[24] There are a number of other international treaties that include articles on prohibition of forced labour or have relevant provisions included, such as the European Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights.
[25] Convention No.29, Article 25.
[26] To regulate conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public entertainment and other establishments. Provisions include Regulation of Establishments, Employment of Children, Young Persons and Women, Leave and Payment of Wages, Health and Safety etc.
[27]provided that the provisions of this Act shall not apply to any shop or commercial or industrial establishment, owned and directly managed by the Government and the persons employed therein are governed by the Government Servants Conduct Rules.
[28] Bangladeshi men and women migrate willingly to Saudi Arabia, Bahrain, Kuwait, the United Arab Emirates (UAE), Qatar, Iraq, Lebanon, Malaysia, Liberia, and other countries for work, often under legal and contractual terms. Most Bangladeshis who seek overseas employment through legal channels rely on the 724 recruiting agencies belonging to the Bangladesh Association of International Recruiting Agencies (BAIRA). These agencies are legally permitted to charge workers up to $1,235 and place workers in low-skilled jobs typically paying between $100 and $150 per month. According to NGOs, however, many workers are charged upwards of $6,000 for these services
http://en.wikipedia.org/wiki/Human_trafficking_in_Bangladesh