Constitutional Question


If any conflict arises between the fundamental rights and the fundamental principles of state policy, which one will prevail?

 

As a citizen of Bangladesh, it is important to know that, every citizen is a "respected citizen" of the state. The state carries the full responsibility of its citizens. But the state is not directly obliged to give an answer to the citizens about her(the state) state policies. If the state is legally asked whether it is granting the rights of its honorable citizens, the state will be obliged to answer this question. So, If any conflict arises between the fundamental rights and the fundamental principles of state policy, I believe "the fundamental rights" will prevail.

Firstly, Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, applied irrespective of race, place of birth, religion, caste, creed, gender, and equality of opportunity in matters of employment. Secondly, the fundamental principles of state policy are based on principles of nationalism, socialism, democracy, and secularism together with the principles derived from that shall constitute the fundamental principles of state policy in Part II. The principles set out shall be fundamental to the governance 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”.

So, we can see there are two important parts in these two definitions. In the last line of the definition of "The fundamental principle of state policy," we can see there is a code that is claiming "Shall not be judicially enforceable" (last line of section 2, Article 8). What does it mean? it means the parliament can only ensure and enforce this part through legislators which are not enforced through the courts. This policy works to create new policies and the state is not obliged to give the rights of the citizens in this part. 

 But if we see part three of the constitution which is "Fundamental Rights", we can see this part is ensuring people's rights and also it is ensuring judicial enforcement. we can get from this part is that the state is obliged to give the rights of the citizens. Article 27 is ensuring the law to all the citizens. Article (28-33) is ensuring the absolute rights of the citizen. The only punishment provision which is Article 34 of the constitution is written in this part. We can also see that Article (36-41) is ensuring the freedom of a citizen. By acknowledging all of the the articles of "Fundamental Rights" we can say that this is keeping the rights of citizens. Though nowhere is written directly that, "Fundamental Rights" are enforceable judicially, but However, its judicial enforceability can be seen by looking at Article 102 of the Constitution. There is a way of writ jurisdiction from which it is clearly understood that it has judicial enforceability. Separation from the executive branch of the judiciary has increased the guarantee of basic human rights(Part-II, Article: 22). As we can see from the case of In line with the landmark judicial decision by the Appellate Division in Masdar Hossain case back in 1999 the Caretaker Government headed by Dr. Fakhruddin Ahmed amended "the Criminal Procedure Code, 1898" in November 2007, and along with these changes, the lower judiciary was separated from the organs of the executive (Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82).

 

So, If any conflict arises between the fundamental rights and the fundamental principles of state policy, then "the fundamental principles of state policy" will not prevail because it is not judicially enforceable. With a vast view, we can see, the Constitution is giving peoples the right to submit "writ" in the Honorable court which is based on fundamental rights, according to Article 102 of the Constitution. As we can see just because of ensuring the independent judicial procedure "Part-ii" of the constitution separated our judiciary from the executive branch. So that It could be able to judge impartially and prevail in the state.

The purpose of "the fundamental principles of state policy" is to formulate and implement all the policies of the state, in which case the state may not be able to implement its objectives and the state will not be responsible for explaining the reasons to the people. But if the state deprives the people of "fundamental rights", the state must be held accountable. As a result, the public will be able to file a "writ petition" in the Honorable Court and seek justice for the deprivation of its "fundamental rights" & the state must explain the reason to the honorable citizens.

 

Finally, we can say that If any conflict arises between the fundamental rights and the fundamental principles of state policy, then "the fundamental rights" will prevail because it is judicially enforceable, the fundamental rights are ensuring people's rights, independent judiciary ensuring peoples justice, absolute rights ensuring peoples freedom by the constitution of Bangladesh. People are often confused about this. I think it is through knowledge about this legal subject that the citizens of the country can understand the realization of their rights and it will help in the development of knowledge.

 

MD Toslim Bhuiyan Prantik.

Student of Law Department at North South University.