Do you think that rights enunciated in the bill of rights are similar with the fundamental rights of Bangladesh as prescribed in the third part of the constitution of Bangladesh?

          

1. Introduction:

 John Locke was a major contributor to the English Bill of Rights, passed in a Parliamentary Act of 1689. Other contributors in the period leading up to the Act were Henry Neville, George Savile, Algernon Sidney, and the Marquis of Halifax.[1]

This Bill rights asserted certain basic rights for the citizen of United Kingdom which is not applied in England and Wales but also in each of the jurisdiction of Commonwealth Realms. On the other hand the fundamental rights of the people of Bangladesh have been enshrined in the constitution of the country. All past laws inconsistent with these rights were made void by the Constitution, and it enjoined upon the State not to make any law inconsistent with these rights. Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. It is argued many times that whether there is any similarities between the British Bill of Rights and the fundamental rights given in the third part of the constitution of Bangladesh. I have went through both bill of rights and fundamental rights of Bangladesh and then critically analyse these two to find out any similarities.

2. Bill of Rights of 1689 :

 The Act containing the Bill of Rights declared that King James II by illegal actions had attempted to overturn the laws and customs of the country and to destroy the Protestant religion. For this reason, the Bill of Rights declares explicitly that specific activities are illegal, and makes clear that the king is subject to the law, and that laws are instituted by Parliament. With the departure of the king, Parliament ruled that no Roman Catholic could succeed to the throne of England. Future kings would have to subscribe to the Test Act, which forbade anyone from holding office under the crown until he had accepted the Anglican sacrament and rejected the concept of transubstantiation. Therefore late King James the Second having abdicated the government and the throne was replaced by his Highness the prince of Orange.

 *Assertion of Ancient Rights and Liberties in Bill of Rights 1689[2] :

Article 1:   And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

Article 2:  That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

Article 3: That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

Article 4: That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

Article 5: That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

rticle 6:  That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

Article 7:  That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

Article 8: That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Article 9:  That election of members of Parliament ought to be free;

Article 10:  That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

Article 11:  That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Article 12:  That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

Article 13:  That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

Article 14: And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently

 3.Fundamentals Rights Described in Third part of Bangladeshi Constitution:

 The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the high court  division of the Supreme Court to enforce the rights is defined in Article 102 of Part Vl of the Constitution of 1972[3].

Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law, and the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 29 provide that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic irrespective of religion, race, caste, sex or place of birth. Nothing in this article shall prevent the State from 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.

Article 33 provides that no person who is arrested shall be detained in custody without being informed 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. 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, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for preventive detention.

Article 34 guarantees that all forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. 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 purposes.

Article 35 provides that no person shall be convicted of any offence except for violation of a 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. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

Article 36 provides that 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.

As per Articles 37 and 38 every citizen shall have the right to form associations or unions, 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 morality, public order or public health. Freedom of thought and conscience is guaranteed in Article 39 of the Constitution. 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 the right of every citizen to freedom of speech and expression, and freedom of the press are guaranteed.

Article 40 provides that subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. As per Article 42 of the Constitution 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.

Article 41 provides that every citizen has the right to profess, practice or propagate any religion, and every religious community has the right to establish, maintain and manage its religious institutions.

According to Article 43 every citizen shall have the right to be secured in his home against entry, search and seizure, and to the privacy of his correspondence and other means of communication.

Article 44 guarantees the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution.

 4. The similarities between Bill of Rights and Fundamental rights described in third part Bangladeshi constitution:

The Bill of Rights is more concerned with the limitation of the power of Crown than describing the rights of the citizen of United Kingdom. They were designed with a view to limiting the power of Crown and convey the true power of  ruling the United Kingdom to the parliament. On the other hand the fundamental rights described in the third part of Bangaldeshi Constitution are designed to protect the rights of the citizen of Bangladesh. They are more concerned to deliver the rights to the citizen which can be pointed out as basic rights of human being. Still there are some similarities between Bill of Rights 1689 and Fundamental Rights Bangladesh.

i) In article 10[4] it was stated that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

And in Article 39[5] of Bangladesh Constitution is concerned about  Freedom of thought and conscience, and of speech. And there it is stated that :

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 offense-

1. the right of every citizen of freedom of speech and expression; and
2. freedom of the press, are guaranteed

Here In Both Article 10 bill of rights and article 39 of Bangladesh Constitution  it is clearly declared that people would have their right of freedom of speech and expression.

ii) In Article 11[6] of Bill of Rights it was held that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In a Article 35(1)[7]  of Bangladesh Constitution in respect of trial and punishment  it was stated that :

 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

Here in both Bill of Rights and Bangladesh constitution , they laid down the rules and law regarding trial and punishment.

 5.Conclusion:

Though the similarities between Bill of rights and Fundamental rights of Bangladesh is rarely found, still the Bill of Rights hold a important role in laying down all the rights to people of any country. The Bill of Rights paved the way for Human Rights Act 1998 which is a matter of  great importance in respect pointing out to the rights to be offered to the general people. It can be said that the fundamental rights Bangladesh are more similar to Human Rights Act 1998 rather than Bill of Rights of 1689 but in my view the importance of Bill of Rights of 1689 can not be degraded.

 BIBLIOGRAPHY

1. Constitutional and Administrative law, Hilary Barnet, Seventh Edition.
2. Public Law study pack of University of London, 7^th Edition.
3. Subject guide of University of London, Hilary Barnet
4. The Avalon Project, Yale Law School, New Haven, Connecticut
5. Electronice Sources:

Westlaw

             Lexis-Nexis