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Judicial Activism and Human Rights in Bangladesh: A critique,

Article  in  International Journal of Law and Management · October 2014

DOI: 10.1108/IJLMA-07-2013-0029

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Judicial activism and human Judicial activism

and human
rights in Bangladesh: a critique rights in
Awal Hossain Mollah Bangladesh
Department of Public Administration, University of Rajshahi,
Rajshahi, Bangladesh
475

Abstract
Purpose – The purpose of this paper is to evaluate the role of judicial activism as a golden mean
approach of judiciary in protecting and promoting human rights from illegitimate interferences of
government. With this aim, several case studies have been done on verdicts of higher judiciary in
Bangladesh.
Design/methodology/approach – This paper is an exploratory case study focused on Bangladesh.
The paper is qualitative in nature and based on secondary sources of published facts like books, journal
articles and Dhaka Law Reports. Information also gathered through Internet browsing.
Findings – Though judiciary is very effective to protect and promote human rights and rule of law in
a country through judicial activism or public interest litigation, the role of non-governmental
organizations (NGOs) are crucial in Bangladesh. Delay and disposal of cases is one of the great
impediments in the process of ensuring human rights in Bangladesh. Besides, negligence in implement
the verdict of judiciary and interferences of executive over judiciary is another finding of this paper.
Apart from these shortcomings, judicial activism is a very important potential instrument of judiciary
to protect and promote human rights and the rule of law in Bangladesh.
Research limitations/implications – The major limitation of this paper is it is based on secondary
sources of information. It would have more rich if periodical data can be used for comparing theory and
practice.
Practical implications – This paper would be helpful for making a policy for overcoming
limitations of judicial activism in Bangladesh to protect and promote human rights.
Social implications – Social awareness can be build-up through NGOs and readers by disseminating
and penetrating information of this paper’s findings and recommendations.
Originality/value – This paper would an unique and add new knowledge in the literature of public
interest litigation and Human Rights Law in the context of Bangladesh.
Keywords Bangladesh, Human rights, PIL
Paper type Case study

1. Introduction
The aim of this paper is to evaluate the role judiciary plays in ensuring human rights in
Bangladesh through judicial activisms. The role of judiciary has many facets such as
judicial review, judicial supervision, judicial activisms and advisory jurisdiction of
judiciary, but the present paper highlighted only judicial activisms. Violation of human
rights is a big concern overall in the world, and for protecting and promoting human
rights, many national and international legal instrumentalities have been initiated. International Journal of Law and
Judicial activism is one of them, and is being practiced from east (China) to west (USA) Management
Vol. 56 No. 6, 2014
and north (Norway) to south (South Africa) (Chayas, 1976; Anderson, 2003; Arantes, pp. 475-494
2003; Bhagwati, 1985; Charles, 1998; Cavallaro, and Schaffer, 2004; Okpaluba, 2003; © Emerald Group Publishing Limited
1754-243X
Petrova, 1996; Fuller, 1978; Gargarella, 2002, 2004; Gloppen, 2005; Hershkoff and DOI 10.1108/IJLMA-07-2013-0029
IJLMA McCutcheon, 2000; Hoque, 2003, 2006, 2011; Goldston, 2006; Krishnan, 2002; Cooper,
1993, 1998; Miles, 2000; Lobel, 1995; Hoque, 2001; Cappelletti, 1975; Anderson and
56,6 GUHA, 2003; Mohapatra, 2003; Mollah, 2008, 2010; Ahmed, 1998; Geldenhuys, 2006;
Hoque, 1993; Rahman, 1999; Tripathi, 1993). Violation of human rights is occurring in
various forms, such as deprivation of life and liberty, arbitrary arrest and detention,
extra judicial killing, punishment and killing by fotwa[1], violence against women, acid
476 throwing, rape and killing, violation of child labor rights, violation of environmental
rights, violation of minority rights, violation of refugee rights, trafficking women and
child, and so on. To be more specific, through analysis of some case laws, an attempt has
been made in this paper to explicate the role of judicial activism, which is being practiced
in Bangladesh in the form of public interest litigation (PIL) and suo-moto[2] rule to
protect and promote individual rights against misappropriation of the Government or
any other private power. The paper is qualitative in nature and based on review of
secondary sources of materials. Relevant cases are selected from Dhaka Law Reports
and Web sites of Bangladesh Legal Aid and Services Trust (BLAST), Ain-o-Salish
Kendra (ASK) and Odhikar. Besides, data have been used from different published
documents in the form of books, unpublished dissertation and journal articles. In
addition, information through Internet browsing and news published in different
newspapers has also been reviewed and used to extract cases of misappropriation of
power and exploitation of individual rights.

2. Why a study of human rights?

The definition of human rights is a debating issue, but it has been discussed as a burning
issue from time immemorial. Human rights are rights inherent to all human beings,
whatever our nationality, place of residence, sex, national or ethnic origin, color, religion,
language or any other status. We are all equally entitled to our human rights without
discrimination. These rights are all interrelated, interdependent and indivisible[3]. On
December 10, 1948, the General Assembly of the United Nations adopted and
proclaimed the “Universal Declaration of Human Rights” (UDHR) in its preamble
recognized that the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world[4]. It has also been repeated in both the preambles of the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights of 1966. According to UDHR:
All human being are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood (Article 1).
Everyone is entitle to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, jurisdictional or international status of the country or
territory to which a person belongs, whether it be independent trust, non self governing or
under any other limitation of sovereignty (Article 2).
Actually, UDHR incorporates all the aspects of human life (Articles 1-30) which are
essentials for the full development of a personality.
However, if these rights are violated, human rights is violated. It is very unfortunate
for Bangladeshis that they were ruled by the British as a colony for over two centuries
and who (British) ruled inhumanly to collect tax, ensure their commercial interest and
establish their dominance through violating human rights by extra-judicial punishment Judicial activism
and killing those who (Bangladeshis) were unable to pay tax duly due to drought,
famine, appetite and poverty. Though, India and Pakistan were independent and
and human
separated in1947 from the British rule, but Bangladesh was a colony of Pakistan named rights in
as East Pakistan. Pakistan ruled Bangladesh for around 30 years in a more malicious Bangladesh
manner than the British. In 1971, Bangladesh was independent but by then three million
people had lost their lives, ten million fled across the border to India and 200,000-400,000 477
women were raped, leading to approximately 25,000 pregnancies (Linton, 2010,
p. 194)[5]. Could anyone imagine how brutally human rights were violated in
Bangladesh? Although 42 years of independence have passed, however, violation of
human rights is still continuing in Bangladesh[6]. From this backdrop, I intended to
write this paper. In Bangladesh, the Constitution incorporates a long list of 18
fundamental rights in Part III, Articles 27-44. In this research, all those fundamental
rights are considered as human rights. In this paper, how far judicial activism is
effective to protect and promote human rights in Bangladesh has been evaluated.

3. Why judicial activisms?

Recently, the term “judicial activism” is pronounced much more in the academic domain
of legal and political studies. However, many of us do not know the real meaning of it.
The term judicial activism can be traced back to the case of Marbury v. Madison
(1804)[7] decided by Chief Justice Marshall of the USA. He observed that “it is for the
court to say what the law is”. A law repugnant to the Constitution is void. If there was
conflict between a law made by the Congress and the provisions in the Constitution, it
was the duty of the court to enforce the Constitution and ignore the law. Thus, he laid
down the foundation of two concepts–judicial review and judicial activism (cited in Lal,
2004). Simply put, judicial activism depicts the pro-active role played by the judiciary in
ensuring that rights and liberties of citizens are protected. Through judicial activism,
the court moves beyond its normal role of a mere adjudicator of disputes and becomes a
player in the system of the country, laying down principles and guidelines that the
executive must carry out[8].
The theory of judicial behavior advocates the basing of decisions not on the judicial
precedents but on achieving what the court perceives to be for the public welfare, or
what the court determines to be fair and just on the facts before it[9]. By exercising
judicial activism, the Supreme Court is in a position of ensuring rule of law, making
government officials more responsible, accountable, transparent and efficient. It
connotes that the judiciary, being sentient of existing socioeconomic realities, voluntarily
implements social justice. In this process, judiciary looks at the interest of the public or
groups. It is not mandatory that the aggrieved person should have to be appeared before the
court directly for remedies. Any person or organization can be applied for remedies to the
High Court Division on behalf of the aggrieved or vulnerable group of society.
Therefore, this approach of judiciary would be an easy and effective mechanism for
ensuring social justice rather other traditional approach of judicial review. Besides,
judges can act as guardian of the vulnerable people of the society for protecting and
promoting their rights through judicial activism (Hoque, 2011). Hence, judicial activism
has been selected for this study.
IJLMA 4. Legal and procedural basis of judicial activisms in Bangladesh
Judicial activisms or PIL is not defined directly in any statute, act or provision of
56,6 Bangladesh Constitution. It has been interpreted by judges to consider the interest of
public at large. However, in Bangladesh, the constitution has not only guaranteed
fundamental rights and their judicial enforcement[10], but also sufficiently empowered
the HCD of Supreme Court to enforce them through appropriate directions or order to
478 any person or authority including public functionaries[11]. Besides, the Constitution of
Bangladesh incorporates 23 rights (both civic and political called fundamental rights) in
Part III, Articles 27-44. When these rights are violated by any public or private
individual or authority, human right is violated. Article 8 of the UDHR enumerates that
everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law[12].
Similarly, for the protection of these fundamental human rights of the citizen, Article
44(1) of the Bangladesh Constitution guarantees the right to move the HCD of the
Supreme Court (Mollah, 2008). By protecting the fundamental rights of the citizen, the
judiciary ensures the human rights. The HCD of Bangladesh has also been given power
to issue appropriate writs to remedy a legal wrong or to enforce legal obligation[13].
Thus, the judicial activism is permitted indirectly by the Constitution of the Republic of
Bangladesh. Judicial activism or PIL basically introduced for poor, socially vulnerable,
backward and minorities groups who have faced limited access to courts or failed to get
judicial remedies due to lack of legal knowledge and consciousness.
The vulnerable people of the society are always affected by the stronger people of the
society and are deprived from their rights of life, liberty, property and many other basic
human rights. However, PIL is an approach where any conscious person, lawyer, lawyer
association or human rights defender organizations can fight on behalf of aggrieved
persons and even Supreme Court can take PIL case on the basis of newspaper reports
issuing sou moto rule.
Though judicial activisms role of judges have started more than 50 years ago in the
USA and the UK, this concept has emerged as a rapidly rising and strong landmark
concept of social action or PIL in the Indian subcontinent around 1970s. In the context of
Bangladesh, PIL was introduced in 1990s, but primarily it was rejected by the court due
to lack of recognition of locas standi[14]. In Bangladesh, the case of Kazi Mukhlesur
Rahman v. Bangladesh[15] was first denied by the High Court of Bangladesh on the
ground of locus standi. Later, it was recognized by the Appellate Division of the Supreme
Court in the case of Dr Mohiuddin Farooque v. Bangladesh & others[16]. Primarily this
case was also denied by the HCD of Supreme Court (writ petition No. 998/94). In this case,
the Appellate Division of the Supreme Court of Bangladesh took a firm stand on the
modern liberal trend of PIL, leaving aside the traditional view of locus standi. The
Supreme Court decides to interpret the term “a person aggrieved” in a liberal mood and
with a progressive attitude and thus widens the writ Jurisdiction of the High Court
conferred on it by Article 102 of the Constitution of the People’s Republic of Bangladesh.
In Bangladesh, the Supreme Court plays the role of judicial activism through suo
moto (by own initiatives) rule and by PIL. Suo moto means on its own motion or
initiative, without external prompting or explicit demand. This is the where judiciary
plays its proactive role by Supreme Court based on media reports or informed by any
other ways. For instance, in Bangladesh, judicial activism started functioning for the
first time in 1992, when HCD issued a suo motu rule in the case of State v. DC,
Satkhira[17] on the basis of a newspaper report. On October 6, 1992, a news item under Judicial activism
the caption “Sab Mamla Hote Abbahoity, Athocho Baro Batshor Jabod Jailey” (Released
from all cases, yet has been kept in Jail for twelve years) was published in the Daily
and human
Ittefaq (Bengali daily newspaper). In this case, it was disclosed before the Court that rights in
Nazrul Islam was arrested by implicating him 12 criminal cases and he was detained for Bangladesh
11 years[17]. The HCD in its judgment declared that the detention of Nazrul Islam was
illegal and without jurisdiction. The Court directed the Government to inquire as to 479
whether any other person like Nazrul Islam was being held and the people responsible
for such illegal detention were to be brought to book[17]. Thus, the judiciary exercises
the power of judicial activism and ensures rule of law through protecting individual
rights on one hand and on the other hand it ensures accountability of the Government.
The words “public interest” refers to the common interest which is essential for the
well being of people and the word “litigation” means a legal action following all
procedures within, initiated in a court of law with a view to enforcing a right or seeking
a remedy (Khan, 2009).
Thus, the expression “public interest litigation” means those litigations executed for
the benefit of public or for amputation of some civic grievance. PIL refers to that activist
jurisprudence that allows any person without being actually aggrieved to activate the
judicial method to pursue a public cause or the rule of law, and allows the court to
provide unorthodox remedies (Hoque, 2011). A PIL does not necessarily have to be
introduced in the court of law by the aggrieved party. It can be initiated by any other
private party one behalf of the injured person. Such injury may arise from breach of
public duty or due to a violation of some provision of the Constitution. PIL is the device
by which public participation in judicial review of administrative action is assured[18].
PIL is the power given to the public by courts through judicial activism[19]. However,
the person filing the petition must prove to the satisfaction of the court that the petition
is being filed for a public interest and not just as a frisky litigation by someone. Such
cases may take place where the victim does not have the necessary resources to
introduce litigation or his freedom to move court has been suppressed or encroached
upon[20].
Judiciary in Bangladesh playing a vital role in protecting human rights in various
ways such as by protecting the rights of under trial prisoners, controlling abuse of
government power, upholding national interest, controlling illegal enforcement of extra
judicial arbitration, punishment and killings and protection of minorities rights, etc.
Some evidence and examples have been analyzed below.

5. How far human rights are ensured in Bangladesh through judicial

activism?
5.1 Protection of women rights
Violence against women is one of the brutal forms of violation of human rights. It has
been happening in various ways in Bangladesh. Violation of women rights through
extra-judicial or traditional arbitration (by fatwa) is one of them. Judiciary is now very
proactive in protesting against extra-judicial punishment and killing through its judicial
activisms. In the earlier section, it has been stated that through PIL or sou moto rule, the
judiciary protect the rights and liberty of vulnerable, poor, minorities group of society.
Some case examples are analyzed below.
IJLMA A series of incidence of violence took place on women and girls in the name of
“fatwas” by traditional dispute resolution processes (arbitration/shalish), often
56,6 involving village matbars and religious leaders, as reported by the various daily
newspapers in Bangladesh[21]. These incidents had reportedly resulted in women and
girls in villages across the country being caned, beaten, lashed or otherwise publicly
humiliated within their communities. ASK, BLAST), BRAC, Bangladesh Mahila
480 Parishad (BMP) and Nijera Kori, brought a PIL case BLAST and others v. Bangladesh in
2009 (BLAST and Others v. Bangladesh, Writ Petition No. 5863 [2009]). They challenged
the authorities’ failure to address extrajudicial punishments imposed by shalishes[22] in
the name of fatwas, opinions that are supposed to be issued by Islamic scholars. While
many of these incidents go unreported, ASK has assembled news reports of at least 330
such incidents in the past ten years. These private punishments significantly harm
women’s and girls’ lives and health instead of intervening and taking active measures to
prevent these abuses, the Bangladesh authorities have been mute bystanders. The HCD
of the Supreme Court issued its verdict in the case on July 8, 2010, criticizing the
Bangladesh Government for not protecting its citizens, especially women, from cruel,
inhuman and degrading treatment or punishment. In a landmark judgment for women’s
rights, the High Court declared that:
Imposition and execution of extra-judicial penalties including those in the name of execution of
Fatwa is bereft of any legal pedigree and has no sanction in laws of the land[22].
In this case, the Court cited the constitutional mandate of equality and the state’s
international human rights treaty obligations to ensure women’s right to live free from
violence. The Court further directed the law-enforcing agencies, Union Parishads and
Pourashavas (municipalities) to take preventive measures against the issuing of such
“fatwas” in their concerned areas, and to take legal steps for prosecution in case of such
occurrences, as appropriate[22]. They also directed to the Ministry of Local Government
to inform all law-enforcing agencies, Union Parishads and Pourashavas of the
unconstitutional nature of such penalties. In a particularly significant step, they directed
the Ministry of Education to introduce educational materials in the syllabi of all
educational institutions particularly in madrassaha on the supremacy of the
Constitution[22]. However, the incidence appeared again and the issue became
especially burning when a shalish in Shariatpur district in the Dhaka division ordered
100 lashes in January 2011 for Hena Akhter, an adolescent girl, for an alleged affair,
though by most accounts she had reported being sexually abused instead. She collapsed
during the lashing and ultimately died[23]. The court further on February 2 and on May
12, 2011, the High Court issued further orders directing the Government to publicize as
an urgent matter, through electronic and print media, that extrajudicial punishments are
unconstitutional and punishable offenses and no punishment, including physical
violence and/or mental torture in any form, can he imposed or inflicted on anybody in
pursuance of fatwa. The court further held that fatwas can be issued only by” properly
educated persons” and clarified that even where issued, they are not binding and cannot
be enforced[23]. In this way, the court gave another judgment on January 13, 2011, to
protest and prohibit corporal punishment imposed to school children by teachers in the
case of BLAST v. Ministry of Education[24].
However, these incidences are still continuing in Bangladesh. Most of the human
rights defenders organizations are solely dissatisfied to the role of government.
5.2 Right to secure life Judicial activism
Right to secure life and liberty are inalienable rights of human being. But these rights are
violating in Bangladesh through extra-judicial killing, which is another form of grave
and human
violation of rule of law and human rights. Rule of law does not permit any exercise of rights in
power arbitrarily or punished any person without fair trial by court. However, persistent Bangladesh
abuse of power and authority by the law-enforcing agencies, resulting extra-judicial
killing of the citizens in the name of cross-fire/encounter, are giving rise to gross 481
violation of fundamental rights. There are lot of incidence of extra-judicial killing that
have taken place in Bangladesh in various times by Rapid Action Battalion (RAB) or
any other law-enforcing agencies in the name of crossfire or encounter. These are the
grave violation of fundamental rights of citizens which need to get proper judgment by
law. Some specific incidence are mentioned here. On February 29, 2012, at around 8.00
p.m., Mohammad Abdur Rahim Sheikh (60) of Sahapur Mistripara village under
Badarganj Municipality in Rangpur district was allegedly tortured by police of the
Badarganj Police Station and on March 2, 2012 at around 1.50 p.m. he died in the
Intensive Care Unit of Rangpur Medical College Hospital[25]. In another incidence, a
farmer named Nazrul Islam (38) was allegedly picked up by men identifying themselves
as members of RAB from Jhaol village under Kamarkhand Upazila in Sirajganj district,
but when the family members contacted RAB, they informed that RAB had not arrested
anyone named Nazrul Islam (Odhikar Report, 2012). Similarly, on April 18, 2012, former
Member of Parliament and Organising Secretary of the Central Committee of BNP, M Ilias
Ali, and his driver, Ansar Ali, were allegedly picked up by members of law enforcing
agencies from Banani in Dhaka city (Odhikar Report, 2012). Both Nazrl Islam and Mr Ilias
Ali are still not found. Besides, on April 4, 2012, Aminul Islam (41), a leader of the Bangladesh
Garments and Industrial Workers Federation and a staff of Bangladesh Centre for Workers
Solidarity, was allegedly picked up by members of the law enforcement agencies from
Ashulia, Dhaka, taken to an unknown destination and allegedly tortured to death. The
deceased’s body was recovered by police on April 5, 2012, from Ghatail under Tangail
district with signs of severe injury (Odhikar Report, 2012). On March 28, 2012, a lecturer of
the Finance Department of Dhaka University, Mohammad Saif Uddin Khan, was beaten by
a member of RAB, Lance Corporal Mohammad Nurul Amin, over the parking of a RAB van
in Uttara Dhaka. His right hand was broken and he was treated at the National Orthopedic
Hospital and Rehabilitation Institute[26]. However, the public outrage following the RAB’s
shooting of college student Limon Hossain in 2011 has resulted in a decrease in the number
of killings in the recent year[27].
To combat this problem, PIL case filed by non-governmental organizations (NGOs)
and the High Court take first initiative in the case of BLAST and Others v. Bangladesh
and Others (1998)[28], the petitioners referred to incidents of gross abuse of power,
including allegations of custodial death, torture and inhuman treatment, especially the
killing of a young student, Rubel, in remand after arrest under Section 54 of the CrPC.
The petitioners argued that the Court should enunciate safeguards to prevent or curtail
police abuse of powers and arbitrary actions by Magistrates, which constitute violations
of citizens’ fundamental rights to life and liberty, to equal protection of law, to be treated
in accordance with law and to be free from cruel, inhuman and degrading treatment and
punishment as guaranteed under articles 32, 27, 31, 33 and 35 of the Constitution. The
High Court initially issued a Rule Nisi, and upon full hearing delivered judgment on
April 74, 2003, observing that Sections 54 and 167 of the CrPC are not fully consistent
IJLMA with constitutionally guaranteed freedoms and safeguards. The Court laid down a
comprehensive set of recommendations regarding necessary amendments to both
56,6 sections of the CrPC, along with the Police Act, The Penal Code and the Evidence Act,
and directed that these should be acted upon within six months. It also laid down a set
of 15 guidelines with regard to exercise of powers of arrest and remand including no
police officer shall arrest anyone under Section 54 for the purpose of detention under
482 Section 3 of the Special Powers Act, 1974. Also, the police officer arresting under Section
54 or the investigating officer taking a person to custody or the jailor must inform the
nearest magistrate about the death of any person in custody in compliance with these
recommendations. The person arrested shall be furnished with reasons of arrest within
3 hours of bringing him/her to the police station[29]. It was a landmark verdict of High
Court, which may use a strong arm tactic to protect citizen rights from illegal and
abusive intervention of police. But the detention and arrest by using special power act is
still continuing in Bangladesh with a view to ensure political motive. This is the
limitation of judiciary that the verdict should be implemented by the Government, but in
practice, the Government violate the directions of court. In another case of ASK, BLAST
and Karmojibi Nari v. Bangladesh and others (2009)[30], the court issued a Rule Nisi
returnable within four weeks on June 29, 2009 calling upon the respondents to show
cause as to why the extra-judicial killing in the name of cross-fire/encounter by the
law-enforcing agencies should not be declared to be illegal and without lawful authority
and why the respondents should not be directed to take departmental and criminal
actions against persons responsible for such killing. Four years have passed, however,
the case is still pending and the result is not available.
Thus, it is clear to us that judiciary is not so proactive to protect and promote individual
rights from abuse of executive power which are the essential ingredients of rule of law.
Because extra judicial killing is a grave violation of human rights and only one case has been
filed by human rights defender organization and it is still pending for the final hearing and
verdict. Therefore, the problem of delay and disposal of cases should be removed from the
judiciary in Bangladesh and Government has to be more active in this regard.

5.3 Rights to minorities

Protection of minorities rights also a fundamental state policy in Bangladesh. The
Constitution of Bangladesh is designed to protect the human rights of all persons living
in the country, regardless of race, religion or sex. Article 11 of the Constitution explicitly
states: “The Republic shall be a democracy in which fundamental human rights and
freedoms and respect for the dignity and worth of the human person shall be
guaranteed” Article 28 further provides that: “The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex or place of birth”, while Article 31
declares that the protection of the law is “the inalienable right of every citizen, wherever
he may be”. The Constitution also provides freedom of religion to all of its citizens under
Article 41, which states, “Every citizen has the right to profess, practice or propagates
any religion [and] every religious community or denomination has the right to establish,
maintain and manage its religious institutions”.
Despite constitutional assurances of equal protection, minorities, human rights activists
and journalists continue to face violence and persecution. Rape is used as a weapon to
subjugate and terrorize Hindu and tribal women. The attacks on Hindu temples, the
destruction of Hindu deities and the disruption of Hindu festivals are in direct violation of
this basic constitutional guarantee of religious freedom (Appendices 1–4). Moreover, the Judicial activism
recent passage of the 15th amendment to the Constitution, retaining Islam as the state
religion, weakens the protection of religious freedom provided under Article 28.
and human
Hindus and other minorities in Bangladesh face widespread persecution and rights in
religiously motivated violence. For example, the commission probing acts of violence Bangladesh
during the 2001 elections has confirmed the role of political parties in the violence. It is
now estimated that over 26,000 people participated in committing more than 18,000 483
crimes, the majority of them against Hindus. Of the 5,571 complaints lodged with the
commission, 3,625 were probed, and they included 355 incidents of political murder,
while 3,270 involved arson, rape, looting and other crimes[31].
War crime is another brutal and inhuman offence and violation of human rights and
now it is a mass agitation for trial. But recently, after the verdict of Delwar Hossain
Sayedee for being sentence to death by International Crimes Tribunal-1, many Hindu
temples, festivals and religious sites came under serious attack in 2013 (Appendices
1–4)[32]. In many instances, the Government and police failed to take appropriate action
to arrest and prosecute those responsible for the crime. Odhikar, a human rights
organization, reported that in 2011, 672 girls and women were victims of sexual
harassment and assaults. Of them, 29 committed suicide, six were killed, 59 injured, 91
assaulted, 12 abducted and 15 were the victims of attempted rape. In protesting against
such attacks, 13 men were killed, 201 men and 39 women were injured and 3 were
assaulted by the attackers[33].
The violation of minorities rights have been happening since independence, however,
what judicial activism or PIL intervention took place for combating this problem? After
42 years of independence, the High Court on March 3, 2013, issued a suo moto rule
following newspaper reports regarding the incident of activists of Jamaat-e-Islami and
Islami Chhatra Shibir to set fire to Hindu houses and temples in Noakhali, hours after
Jamaat leader Delwar Hossain Sayedee was awarded death sentence by the
International Crimes Tribunal-1. The court ordered the Government to undertake repair
of the houses of the affected Hindu families. It issued a rule asking why no orders should
be given to take legal measures and arrest those responsible for the attacks. The court
has asked the Senior Assistant Secretary of the Home Ministry, Inspector General of
Police, the Deputy Commissioner and Superintendent of Police of Noakhali district and
Begumganj Police Station Officer-in-Charge to respond to the rule within ten days. The
court also directed to the concerned authority to submit a report on the progress of their
action over the court’s direction (The Daily News Today, 2013). It is a matter of hope that
though judiciary issued a suo moto rule after a long time since independence in the issue
of violation of minority’s issues, but the light of hope fully depends on effectiveness of
executive branch. The Government should take effective measures to give adequate
rehabilitations facilities of shelters, housing and religious temple, church, etc. Moreover,
judiciary should be more proactive so that PIL or suo moto intervention initiates any
public interest affected areas of the society.

5.4 Protection of prisoners’ rights

Violation of any civic or political rights is the violation of human rights. The
Constitution of Bangladesh incorporates 23 rights (both civic and political called
fundamental rights) in Part III, Articles 27-44. When these rights are violated by any
public or private individual or authority, human right is violated. The basic right of
IJLMA prisons as human beings is trail duly to delivery fair justice but if the authority neglect
and delayed for years that would be violation of human rights. By protecting the
56,6 fundamental rights of the citizen, the judiciary ensures the administration’s
accountability, human rights and the rule of law. For better understanding of the role of
the Supreme Court in protecting under trial prisons’ rights through judicial activisms,
some cases decided by the HCD are discussed below.
484 A landmark judgment of HCD first delivered for some foreign prisoners in the case of Dr
Faustina Pereira v. The State [2001][34]. In this case, HCD issued a “suo moto” rule in
pursuance of a letter by an advocate of Supreme Court to the Chief Justice of Bangladesh,
drawing his attention to a news report that 29 foreign nationals had been languishing in jail
for about five years even after the expiry of their sentences. The Court punctually sought a
report on similar situations from the Inspector General of Prisons, and following a hearing
not only released those foreign prisoners but also directed the relevant authority to take steps
for the release of other foreign prisoners across the country and to submit to the Court a
progress report. Further, the court appreciably formulated guidelines for the Government
departments to follow this method when handling similar situations in the future. Later, in
the case of Bangladesh Legal Aid Service Trust (BLAST) v. Bangladesh [2005][35], the HCD
of the Supreme Court gave a historic verdict in August 3, 2004, with a view to protecting
rights of over hundreds of women and children prisons who were under trial for indefinite
times in various jails in Bangladesh. In this case, the court issued a rule based on a news
report published by the “Daily Star” on December 23, 2003, entitled “behind bars, sans trial
for years: 155 Dhaka Central Jail inmates languish with no witness to pin them down”. In the
case, it has been found that some juvenile and women prisoners were in custody for
unlimited times (some 1-11 years)[35]. This was a grave violation of the petitioner’s
fundamental rights to personal liberty and to a speedy trial as guaranteed by Articles 31, 32
and 35(3) of the Constitution. The Court issued orders against the Government to ensure the
release of cases against several thousand under trial prisoners languishing in jails pending
their trials for years. The court also added:
[…] it is expected that this petitioner and National legal Aid and others will come forward to
solve the problem with maximum promptitude and expedition by implementing the aforesaid
directions to make fundamental right of the prisoners meaningful. It is noted that children are
entitled to trial before the Juvenile Courts and positive step should have been made to make
their trial in accordance with of Juvenile Court and not to be tried jointly with the adults[35].
The Court also directed to send copy of this judgment to be communicated to the Office
of the Attorney General and the Secretary of Prime Minister Office for necessary action.
These decisions of court illustrated that judiciary is safeguarding individual rights by
combating violation of prisons rights and checking against arbitrary use of executive power.
Similarly, violation fundamental rights of citizens are also violation of human rights. In the
case, of Ain O Salish Kendro (ASK) v. Bangladesh [1999][36], the court gave a historic verdict
with a view to protecting fundamental rights of poor slum dwellers from being evicted
suddenly without first being given notice as a matter of constitutional propriety. The Court
also gave directions to the Government for providing alternative shelters. In many other PIL
cases, judiciary directed the Government to protect individual rights and uphold the socially
vulnerable sections. Thus, judicial activism ensures that human rights can be protected
through an impartial and fair justice system and the power of state are accountable for their
actions. Inherent in the concept of rule of law are the notions of impartiality, fairness and
equality, and in this regard, an independent and impartial judiciary is indispensable for
dealing its business. Efficient exercise of judicial powers and functions has, therefore, a Judicial activism
far-reaching impact on governance. Hence, there is a crucial link among the human rights,
rule of law, judiciary and good governance. Yet, violation of fundamental rights or human
and human
rights is still continuing. What are the causes behind it? Later it has been analyzed. rights in
Bangladesh
6. Role of NGOs in PIL intervention:
Over 1,000 NGOs are working in Bangladesh for socio-economic development including 485
protecting and promoting human rights especially that of poor, minorities and socially
backward groups[37]. In Bangladesh, there is a human right forum where 17 human rights
defender organizations are working for years. In this study, I have mentioned few
organizations of them like BLAST, ASK and Bangladesh Environmental Lawyer
Associations (BELA). Though it is a short study, however, it has been found that most of the
PIL cases are initiated by these organizations. Apart from the PIL initiative, these
organizations are working for legal- and right-based awareness program to uphold the
status and dignity of the weaker section of society through ensuring their rights. Most of
these organizations are funded by Donor Agencies. They examine laws, policies and
continuities in practice, focusing on civil, political, economic, social and cultural rights.
Currently, these 17 organizations are working for war crimes relating to holding inquiries
into or trials for genocide, war crimes, crimes against humanity and the crime of aggression
that occurred during the 1971 War of Independence. For the right to life, liberty and security,
they pressure the Government to make a clear commitment to cease extra-judicial killings
and when and what action will it take to hold prompt, adequate and impartial investigations
into allegations of human rights’ violations, in particular extra-judicial killings and torture
under every government – by members of the security forces, including the police, armed
forces, and the RAB – to prosecute those responsible, and provide reparations to victims?
What action will the Government take to ensure that such trials can be held in civilian courts?
Besides, what action will the Government take to implement the High Court’s directives
regarding arrests without warrant and police remand (Sections 54 and 167 of the Code of
Criminal Procedure)? What measures will the Government take to reduce prison
over-crowding, including through release of under-trial prisoners in minor offences on bail or
use of parole, and to allow human rights organizations to undertake regular inspection of
prisons? Will the Government cease forcible evictions of slums and markets, peasants and
villagers from Khas lands, roadside and embankments without prior alternative
resettlement and what actions does it propose to ensure effective rehabilitation of the urban
poor? What steps will the Government take to reform gender-discriminatory personal laws
– including Hindu, Muslim and Christian personal laws – affecting rights to inheritance,
entry into and rights within marriage, divorce, maintenance, child custody, guardianship,
adoption and inheritance? How will the Government fully implement existing quotas for
women and minorities in public services and ensure non-discriminatory recruitment for the
public services, security forces and judiciary?
From review of this section, it is clear that in previous sections we discussed various
issues of human rights through PIL cases where court ordered the Government to take
immediate and necessary actions, but in most of the cases, the Government delayed
implementing the verdict of judiciary, and in some cases, judiciary has also logjam to
delivery its verdict. Further, it is noticeable that PIL cases are initiated by NGOs or
human rights defender organizations and they also pressure collectively to execute and
implement those verdicts to ensure various aspects of human rights in Bangladesh.
IJLMA NGOs are still working many other issues like worker rights, children rights and
environmental issues through various meeting, sitting, seminars, symposium and
56,6 conferences. BELA is a pioneer organization to protect environmental rights and healthy
environment in Bangladesh. It is evident that over 100 PIL cases are initiated by BELA[38].
PIL as a concept and tool of ensuring social justice has been established in Bangladesh by the
initiatives and struggle of BELA, which has been disclosed earlier of this paper.
486 However, many sensitive issues of human rights are still lagging behind, which should be
under consideration of PIL cases initiated by both NGOS and judiciary. Recently, hartal
(strike) appears as regular phenomena in Bangladesh. In a study, it has been disclosed that
during a three-day hartal in April 2012, at least five persons were killed and around 1,500
others were injured and several vehicles were damaged, costing the overall economy several
billion dollars (Mollah, 2012). Currently, each week at least two-day hartals are continuing by
opposition political parties including various religious and cultural groups demanding of
war crime trials, Hafajote Islam and caretaker government issues. Each hartal damages the
lives of citizen, destroying various religious institutes, houses, vehicles and the overall
economy of the country. Though hartal is used to ensure rights of citizens, it is nowadays
being used to ensure political interest, which adversely affects the life liberty and property of
citizens. In this juncture, human rights defender organizations and judiciary can play a
pivotal role to take PIL and suo moto action by directing government for taking policy
measures alternatives of hartal.

7. Problems and challenges of NGOs and judicial activism

The Bangladeshi judicial administration was inherited from the colonial legacy,
however, Western scholars certified that PIL or judicial activism of South Asia
including Bangladesh are different from the Western PILs because they are basically
right-based, while the South Asian PILs are both right- and obligation-based (Anderson
and Guha, 2000; Menski, 2000). However, this approach is still facing and suffering from
some problems and challenges. Firstly, it is institutionally not institutionalized even
after many years. The Court and judges have not yet adequately developed cooperative
mode of adjudicating the public officials within implementation processes (Hoque,
2011). Secondly, grassroots people are still under light of PIL, they do not have adequate
knowledge and do not know what it is and what benefit can be received from this.
Thirdly, most of the PIL cases are governed by Elitist groups like lawyers of political
parties, member of civil society and NGOs workers to ensure their own or urban people’s
interest instead of vulnerable sections of societies. Finally, implementation of verdicts is
solely depended on executives, and as a result, many crucial cases are still pending even
after years. Besides, most of the PIL cases are initiated by NGOs or human rights
defenders but they have faced many challenges. In India and Bangladesh, human rights
defenders belonging to ethnic minorities, tribal communities and indigenous people who
have been especially targeted for defending land rights and protesting injustices
perpetrated by state actors[39]. The Observatory group for the Protection of Human
Rights Defenders, a joint program of the International Federation for Human Rights and
the World Organization against Torture, expresses concerns about the restrictive
environment for human rights defenders in Bangladesh, after completing a fact-finding
mission in the country on November 22, 2012[40]. Some editors, reporters and
journalists, who denounce unlawful practices or disclose sensitive information about
corruption, reported facing indirect or direct threats to their safety. This sometimes has
led to self-censorship. For instance, journalist Mutafizur Rahman Sumon of Just News Judicial activism
BD was imprisoned in July 2012 and ill-treated for campaigning against the impunity for
crimes against journalists – such as the murder of journalists Sagar Sarowar and
and human
Meherun Runi on February 11, 2012[40]. Judicial harassment is another major concern, rights in
as a number of lawyers, journalists, trade unionists or environmentalists reporting on Bangladesh
human rights violations have faced numerous spurious charges – often brought before
a biased judiciary. Such cases, which can even take years, are used as another means to 487
silence the denunciation of human rights violation[40].
A number of legal and practical obstacles to the activities of human rights NGOs, whose
projects are often delayed or arbitrarily refused by the Government’s NGO Affairs Bureau.
Such obstacles could potentially intensify against human rights organizations as an NGO
Bill on “foreign funding” is currently being drafted. In addition, the trade union environment
is polarized along the two main political parties, and the few independent unions that exist,
face obstacles to their work. In particular, the legislative and political framework presents
many obstacles to the formation and functioning of trade unions. Sometimes these human
rights defender organizations faces financial crisis as these organizations are
donation-based and non-profit in nature. Therefore, both national and international donors
should come forward to strengthen their working hand.

8. Concluding remarks
From review of the overall discussion and analysis, it has been found that there is a close
relationship between “judicial activism” and “human rights”. Judiciary is a very vital
institution of a government which not only contributes to establish the rule of law in a
country but also contributes to ensure and compel any public or private individual or
organization to abstain from misuse of power or any other forms of corruption with a
view to protecting and promoting individual rights, liberties and properties. Analyzing
various case laws, it has been found that judicial activisms is one of the golden mean
approach in protecting various aspects of human rights such as fundamental rights,
security of life, liberty and properties, rights of women and minorities and overall
protection of public interest. All those are the basis of rule of law and good governance
of a country. In most of the cases, it has been found that judicial activism is such an
approach where there is no need to file a writ by the affected person directly. Any person
or organization has the right to writ on behalf of affected rights or public interest-related
concern. In this study, it has been found that a number of cases delivered by the judiciary
for protecting and upholding human rights in Bangladesh in the form of judicial
activisms but most of the cases are initiated and filed by human rights organizations like
BLAST, ASK, BELA, BMP, Nejara Kori and so one or legally conscious persons and few
initiatives are taken by the higher judiciary through suo moto provision. But it is a
matter of sorrow that these initiative are very limited in the context of number of
incidents that are happening in Bangladesh. A lot of extra-judicial killing and
punishment has been happening, but the cases are limited; only two have been identified
as PIL cases. Similarly, violation of minorities rights in the forms of rape and killing,
physically and sexually assault, kidnapping, destroying and damaging houses, temples
and looting of gold and other ornaments are happening since the War of Independence,
but the number of PIL or suo moto cases are limited. Even, verdicts of those cases are not
implemented effectively. Delay and disposal of cases is one of the very crucial problems
to discharge the verdict of the judiciary which found in extra-judicial killing case of this
IJLMA study. Apart from this, deterioration of law and order, violation of human rights,
corruption, arbitrary use of power by the law and order enforcing agencies are still
56,6 continuing. Therefore, what measures can be taken to eradicate this problem. Along
with judiciary, other existing watchdog or regulatory public institutions such as
Anti-Corruption Commission, Human Rights Commission, CAG, Parliamentary
committees, Ministry of Home Affairs, etc. should be more proactive, independent,
488 accountable and transparent to ensure individual rights and interest from illegitimate or
arbitrary exercise of any executive or political power. Aside from this, NGOs, human
rights defender organizations, civil society and the initiatives of International Human
Rights Organizations that are closely related to establish rule of law and national
interest should be accepted and promoted by the government.
It needs to be mentioned that PIL does not work in isolation. It is a part of the greater
movement for legal aid or a constituent of the greater theme of public interest law. So, in
the hand of the social activist lawyer, PIL is one of many strategies which the concerned
citizens and activists in Bangladesh are now using in combination. There is a realization
is not a cure-all for all types of issues and problems. Retaining a close nexus with the
press, the voluntary sector organization is increasingly using new strategies including
publication, lobbying and representation. The future of PIL in Bangladesh is very
bright. Because PIL is an expression of social consciousness of the fortunate few, its
progress is of our social responsibility.
Finally, the empowerment of affected people to exercise and insist on their rights is
equally important for the establishment of rule of law and protecting human rights. In this
regard, mass consciousness program on human rights and rule of law can be taken by both
public and private organization and educational curriculum so that citizens might be aware
about their rights, duties and responsibilities to uphold national interest and rule of law.

Notes
1. Fotwa is an Islamic Shariah term which is used to settle disputes of Muslims who believes in
Islam as a religion.
2. The terms judicial activism, PIL and suo moto have been operationalized later.
3. Defined by office of the Commissioner of Human Rights (United Nations), online available at
the link: www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx, (accessed 10 October
2012).
4. Retrieved from: www.un.org/en/documents/udhr/index.shtml (accessed 10 October 2012).
5. Also see Brownmiller, 1975, Ziauddin, 1996. These accounts are verified by more recent
Bangladeshi scholarship, but are contested by the Pakistanis, including the Hamoodur
Rahman Supplementary Report, infra note 9.
6. According to the Odhikar report July 2012, an average seven people were killed
extra-judicially every month.
7. Retrieved from: http://usa.usembassy.de/etexts/democrac/9.htm.
8. Stated by Justice A M .Ahmadi, dimensions of judicial activism, retrieved from:
www.iosworld.org/J_ahmedi.htm (accessed 25 August 2012).
9. Law Dictionary-Judicial Activism, Retrieved from: www.answers.com/topic/judicial-activism
10. Article 44(1) of Bangladesh Constitution.
11. Article 101(2) of Bangladesh Constitution. Judicial activism
12. Article 8 of the UDHR, online available at: www.un.org/en/documents/udhr/index.shtml and human
13. Article 102(2) of Bangladesh Constitution. rights in
14. Locus standi is a legal phrase referring to whether someone has the right to be heard in court. Bangladesh
Normally, an aggrieved person or organization has the rights to file a case before a court with
a view to getting remedies. However, in PIL any person or organization can move on behalf of
an affected person or where public interest is affected by government or any other bodies. In
489
the case of Mohiuddin Farooque v. Bangladesh & others (FAP-20 case, Civil Appeal No. 24 of
1995), Supreme Court extends writ jurisdiction through which voluntary societies,
representative organizations, trade unions and constitutional activists and individuals
having no personal interest in the cause would be able to test the validity of a law or an action
of a public official affecting the general public by making the power of judicial review of the
Supreme Court on their own standing.
15. 26 DLR (AD) 44, 1974.
16. FAP-20 case, Civil Appeal No. 24 of 1995.
17. 45 DLR, 1993; 643-44.
18. Retrieved from: www.ngosindia.com/resources/pil.php (accessed 1 May 2011).
19. The expression “Judicial Activism” signifies the anxiety of courts to find out appropriate
remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the
event of lawlessness or uncertain laws. Black Law Dictionary defines it as a philosophy of
judicial decision making whereby the judges allow their personal views about public policy,
among other factors, to guide their decisions. The Judicial Activism in India can be witnessed
with reference to the review power of the Supreme Court under Article 32 and I (belt Courts
under Article 226 of the Constitution particularly in Public Interest Litigation. See Kamal,
2009; Retrieved from: www.ngosindia.com/resources/pil.php (accessed 1 May 2011).
20. Retrieved from: http://en.wikipedia.org/wiki/Public_Interest_Litigation, accessed on
01.05.2012.
21. See the report of ASK: www.askbd.org/web/wp-content/uploads/2010/11/fatwa_
judgement.pdf (accessed 6 September 2012). .
22. Traditional dispute resolution methods.
23. See Human Right Watch article on ‘Bangladesh: Protect Women Against ‘Fatwa’
Violence-Despite Court Orders Government Has Failed to Intervene’. Weblink: www.hrw.org/
news/2011/07/06/bangladesh-protect-women-against-fatwa-violence
24. Writ Petition No. 5684 of 2010.
25. Fact finding report of Odhikar, 06/03/2012
26. The daily Prothom Alo, 30/03/2012 and 01/04/2012.
27. For more information please visit: www.extrajudicialkilling.info/2012/03/daily-new-age-
report.html
28. Writ Petition No. 3806 of 1998; HCD of the Supreme Court of Bangladesh.
29. For details Please see Odhikar Human Rights Monitoring Report July 2012.
30. Writ Petition No. 4152 of 2009. Cited in AKS: www.askbd.org/web/?p⫽1506 (accessed 6
September 2012).
IJLMA 31. See Odhikar Report on annual human Rights, 2011.
56,6 32. BBC news Asia, www.bbc.co.uk/news/world-asia-21712655
33. See Odhikar Report on annual human Rights, 2011.
34. 53, DLR; 2001.
35. Writ Petition No. 7578 of 2003, 57 DLR; 2005, pp. 11-14.
490 36. 19 (1999) BLD; 488.
37. Most of the information of this part took from Human Rights Forum Bangladesh, Weblink:
idsn.org/fileadmin/…/list_of_key_issues_BangladeshUPR.doc
38. PIL cases of BELA, Article on public interest litigation in Bangladesh, http://
shailallb.blogspot.com/2009/02/article-on-public-interest-litigation.html
39. For details please visit: www.hrschool.org/doc/mainfile.php/Lesson59/208/
40. For details please visit: www.fidh.org/BANGLADESH-Restrictive-environment-12567

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Further reading
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Corresponding author
Awal Hossain Mollah can be contacted at [email protected]

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Appendix 1 Judicial activism
and human
rights in
Bangladesh
493

Plate 1.
March 2013, Hindu
artifacts were destroyed
in the mob attack in
Aladin Nagar, in Noakhali
District of Bangladesh

Appendix 2

Plate 2.
March 2013, the destroyed
Hindu house in Aladin
Nagar, in Noakhali
District of Bangladesh
IJLMA Appendix 3
56,6

494

Plate 3.
March 4, 2013, burned
minorities Houses

Appendix 4

Plate 4.
Stop violence against
Hindus, says Bangladeshi
daily

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