Law reform
Application of international human rights norms by domestic courts
Samaha M Karim
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Source: banglapedia.net |
The Judiciary of Bangladesh is devoted to the common law system. They have a tendency to follow a conservative judicial practice of non-application of the international law. In many cases the judiciary has referred to international law, both customary and treaty, but failed to base their decisions on the same as seen in the case of Hussain Mohammad Ershad v. Bangladesh and Others 21 (2001) BLD (AD), p.69.
Bangladesh as a member of the common law community is no different from other common law countries where incorporation of the international law into the domestic law and application of international instruments are becoming increasingly frequent.
In Professor Nurul Islam v Government of Bangladesh 52 (2000) DLR (HCD) 413 the High Court Division clarified interpretation of constitutionally guaranteed right to life and heavily relied on the resolution of World Health Organization (WHO) on the issue of health hazards of the consumption of tobacco. The Government was reminded by the High Court of its constitutional obligations under Article 25 to respect principles and norms of international law contained in the United Nations Charter and in the instruments of its allied organizations such as the WHO.
Further non-implementation of the International human rights law can be observed in two women's rights related cases, namely Dalia Parveen v Bangladesh Biman Corporation 48 (1996) DLR (HCD) 132 and Shamima Sultana Seema v Government of Bangladesh 57 (2005) DLR (HCD) 201. The High Court Division, upholding women's rights, based its decision solely on the Constitution, although they had a great opportunity to rely on the Convention on Elimination of All forms of Discrimination against Women (CEDAW) as the Convention was already ratified by Bangladesh. Had the international women's human rights instruments been used by the judiciary, the constitutional provisions of non-discrimination of women could have been further developed and ensure decisions made more effective.
Unimplemented international conventions could be taken into account by our judiciary upon ratification. Even if there is no legislative approval or ratification by parliament, there appears to be no legal barrier in considering application of international law in domestic sphere. If there is no domestic law contradicting any particular norm of international law, direct application of that norm is rather logical. In the absence or ambiguity of relevant domestic law, these can be a very significant source of law. An easier proposition would be the legislative approval of treaties or parliamentary involvement in treaty ratification which would make international law part of domestic law. This way it can be applied directly within jurisdiction.
In the case Tayazuddin v the State, 21 BLD (HCD) 2001, 503 the court interpreted Article 3 of the Universal Declaration of Human Rights (UDHR) in conjunction with the fundamental rights guaranteed under the constitution of Bangladesh i.e. right to life and liberty. By referring to the UDHR, in this case, the court has taken rather an activist position to invoke universal human rights norms. The court sets an important precedent in protection of victims' rights in the domestic courts by relying its decision on universal human rights norms. The court took the interpretation of the provisions on fundamental human rights under the constitution in line with the UDHR norms. By such activities of incorporation and statutory interpretation, the courts can protect rights of victims under different international instruments. This kind of use of international human rights standards in domestic courts can enhance fairness and credibility of administration of justice in Bangladesh. Human rights have emerged to be one of the core fundamental rights since it gives positive rights to citizens of a state as individuals. Individual rights have to be attended as they provide concrete human rights such as right to freedom from torture and inhuman treatment, right to liberty, right to freedom of movement, freedom of speech and more. Most importantly it provides the right to life.
In order to access more details regarding this topic, please refer to “Enforcement of International Human Rights Law by Domestic Courts” by Dr. M. Shah Alam.
Samaha M Karim is a student of LLB under University of London.
