By Ali Mashraf
On May 16, 2017, Dhaka Law Review (DHLR), the first of its kind law journal of Bangladesh, organized a public lecture on ‘Use of International Law in Interpreting the Constitutional Rights in Bangladesh’. Professor Dr. Muhammad Ekramul Haque, Professor, Department of Law, University of Dhaka was the invited speaker for the lecture.
At the onset, Dr. Ekram thanked DHLR for taking the initiative to organize a wonderful program and added that such instances of public lectures on pressing legal issues would pave the way for further discourse and legal research. Commenting on the topic selected for the lecture, he added that the topic was a highly controversial one in USA although he was in favor of using international law to interpret constitutional rights.
Dr. Ekram clarified his standpoint by providing a few instances from parts II and III of our constitution where rights have been guaranteed but the contents of the rights were not clearly depicted. He then added that international law came into play in such cases where the contents of the rights had to be developed from the general comments of the international conventions and treaties.
Highlighting the importance of the day’s lecture, Dr. Ekram pronounced that it was impossible to study constitutional law detaching it from international law and claimed that the study of constitutional law must begin with the introductory concepts of international law.
In the first part of the lecture, Dr. Ekram mostly talked about the theoretical framework of the idea citing innumerable cases where our apex court relied heavily upon the provisions of international law, following similar past instances by foreign courts. Additionally, his portrayal of three forms of interpretation, i.e. originalism, textualism and intentionalism supporting this process of interpretation caught everyone’s attention and further proved his outlook.
Among the cases cited, he felt that two of them, namely Bangladesh vs. Sheikh Hasina and Another (2008) and Dr. Shipra Chaudhury and Another vs. Bangladesh (2009) completely changed the way courts dealt with the use of international law on the question of rights. In the former case, the Supreme Court affirmed the originalist view accepting the use of international law in interpreting constitutional rights whereas the latter case justified from both the originalist and textual perspectives of taking assistance from international conventions and treaties.
Furthermore, Dr. Ekram commented that while Bangladesh was a dualist country as affirmed by the judgment of the 2001 HM Ershad case, he purported the idea of ‘creeping monism’ since now, the court was looking into international conventions while interpreting provisions of part III of our constitution despite there being the provision that unless incorporated in municipal laws, international law will not be enforced by courts even if they are ratified by the State. He referred to the judgments from cases such as Mofizur Rahman Khan vs. Bangladesh as well as the very recent Asaduzzaman Siddiqui & Others vs. Bangladesh (popularly known as the 16th amendment case) to support this claim.
Dr. Ekram also referred to the South African constitution that clearly mandates its use of international law to determine the substantive meaning of its own Bill of Rights and quoted Professor Timothy Waters, who said, “By developing a wide range of so called interpretive incorporation techniques, judges are entrenching international treaty obligations into domestic law”, to further support his idea of creeping monism.
Mentioning cases, such as ASK vs Bangladesh where the court relied heavily upon international conventions regarding child rights in interpreting constitutional rights of BD children and the BNWLA eve teasing case where the court referred to provisions from ICCPR, ICESCR and CEDAW, Dr. Ekram further illustrated the practical description of the use of international law.
Towards the end, he posed the question as to whether the treaties that are inconsistent with the domestic laws could be followed to interpret our constitutional rights or not. He concluded by saying the culture of establishing rule of law needs to be grown first for us to ensure the rights contained in parts II and III of our constitution.
The program ended with a memento being presented to the speaker by the Editor-in-Chief of DHLR, Mr. Naveed Mustahid Rahman. Law students and faculty members from various public and private universities of Bangladesh as well as legal practitioners attended the lecture. DHLR aims to hold more public lectures to present cutting-edge research on topical issues to provoke further discussions and debates in near future.
Ali Mashraf is an LLB (Hons.) student at Department of Law, University of Dhaka and a Special Correspondent for the FutureLaw Initiative. To contact him, send an email to [email protected]