INTRODUCTION
Comparison is a natural human activity, and crossing the borders of one’s nation and travelling into other areas to enhance one’s own country’s system is always a fascinating experience. It is important to remember that “Comparative Law” is not a principle or set of rules of law, but rather a method or technique for studying law arising from the diversity of legal systems around the world and the various approaches taken to common problems, by comparing attitudes, institutions, or rules in any two or more legal systems. Furthermore, comparative research is useful for putting the study of any one legal system into context and improving one’s comprehension of it.
PRINCIPLES OF LEGAL RELEVANCE OF COMPARATIVE CONSTITUTIONAL LAW (CCL)
Functionalism: The term Functionalism[1] holds that “Different constitutional provisions serve the same function in different constitutional systems. In the case of Banu Vs Bangladesh & Others[2], the court uses or transplants the same concept from the Indian Court that a new interpretation of the term “Appropriate” to include “Compensation” as a public law remedy is a constitutional transplant. This concept serves the same function of Palliative remedy as likewise Indian Court.
Expressivism: In the case of Banu[3], the court provides Compensation as a public law remedy. As liberty and dignity are hampered by wrongful confinement there are no specific provisions regarding the violations of liberty and dignity. That’s why the court provides “Palliative Remedy”. In this case the court transplants this idea from the Indian Court. If it works the same as the Indian then it can be called Functionalism. And if the transplant idea gives the same result, then it can be called “Expressivism”.[4]
BRICOLAGE:
Comparative constitutional analysis can use the idea of bricolage in several ways. As per Mark Tushnet’s[5], it would be so tough to get the same function and result that is transplanted from foreign judgment. So, let’s try to make a new theory namely: Bricolage.
In the case of Tayeeb Vs Government[6], the court provides a remedy to victim Shahida by using or transplanting the idea from the SP Gupta case. The court issued a suo moto rule without thinking about the consequences. That means the idea of Bricolage is used in this Tayeeb Case.
APPLICABILTY OF CCL IN DIFFERENT CASES OF BANGLADESH
Use of CCL in Dr. Mohiuddin Farooque Case[7]:
According to paragraph number 51, The Court did not accept Mohiuddin Farooque’s submission because the association represents not only the present generation but also the generation yet unborn. Regarding this submission, the Court mentioned a case of the Philippines Supreme Court “Juan Antonio Oposa and others Vs Hon’ble Fulgencio Factoran and another”. In this case, the twin concepts of “Inter-generational responsibility” and “Inter-generational justice” were mentioned by the plaintiff minors. They also asserted that they represent their present generation and generation yet unborn. In this case, their locus standi was allowed because “the right to balanced and healthful ecology” was a fundamental right in their policy. Several laws declare for the conservation of forests that not only the present generation but also the future generation right also guaranteed.
Abusive Constitutional Borrowing happens in this case. Because the court did not consider or acknowledge Mohiuddin Farooque as an aggrieved person the court referred Philippines case. The court used the term aggrieved person in a narrow sense and did not provide appropriate reasoning in favour of rejection by the High Court Division[8].
According to paragraph number 24[9], Mr A.W. Bhuiyan learned Additional Attorney General appearing on behalf of the government respondent, mentioned the Side-Botham Case (1880) regarding the locus standi matter. But he could refer to the “Blackburn Vs Attorney General[10]” as to locus standi. The Attorney General referred several cases from England, Pakistan, India, etc relating to the locus standi but those are stage-01 type of case[11] and said Mohiuddin Farooque has no locus standi. So, in this circumstance, we can say that the Attorney General has made an Abusive Constitutional Borrowing.
USE OF CCL IN ARUNA SEN CASE
In the case of Mrs Aruna Sen[12], to prevent the detention by executive authority, the court considered the decision of Liversidge Case[13], where Lord Atkins said that “every imprisonment without trial and conviction is prima facie unlawful.”
Though the detention of Chanchal Sen, who had been taken away by Rakki Bahini, was challenged by a writ petition, under Article 102[14] by his mother, Aruna Sen. there is a provision of preventive detention under the Special Powers Act[15]. Moreover, Article 33(3)[16] provides that safeguards as to arrest and detention shall not be applicable under the following categories.
Such as:
- For the time being, is an Enemy alien
- The person who is arrested or detained under any law providing for preventive detention
But in this case, the court said the matter of satisfaction of the Advisory Board is to be scrutinized by the court. The advisory board can not apply or cannot extend the duration of detention depending on their will.
USE OF CCL IN TAYEEB CASE[17]:
According to paragraph Number 30, 33
The Supreme Court in the Marbury case while considering a prayer for Mandamus made under the provisions of the Judiciary Act of 1789, on his motion (Chief Justice John Marshall) considered the ultra-vires of the said provision. That is to say, John Marshall C.J suo moto declared the concerned provision of the Judiciary Act ultra vires the Constitution. It was the first suo moto decision in history[18].
Our honourable Supreme Court transplants or reliance the idea from this above-mentioned case and issued a suo moto rule regarding the news directing the concerned authority to show the cause of why this happened. Even though the language of Article 102[19] does not mention the suo moto jurisdiction of the Court. So, Reliance or Constitutional transplantation of foreign Constitutional Idea is occurred in this place.
FINDINGS
The Constitution of Bangladesh is made at the end of the making of modern constitutional law[20]. That’s why this Constitution is more influenced by comparative constitutional law than any other country. Moreover, the USA, UK, Russian, France, etc constitutions are considered as mother constitutions. The Mother’s Constitution is widely used worldwide.
For instance, the Development of the Garments business emerges during the 90’s decade. So, if anyone, presently, starts a garments business then he or she cannot be called a pioneer of that business.
The influence of the Comparative study occurred on the 10th day of April (Proclamation of Independence[21]). In this proclamation, there is no clear provision regarding “freedom of speech[22]” but if we look into the constitutional culture, constitutionalism then it will be easily understandable to us that people want to talk, people want freedom. This idea also is found in the American Constitution. During the making of the American Constitution, some sort of fundamental rights including freedom of speech and the Bill of Rights are not included in their constitution. Rather they said if the same sort of rights are included then the rest will be missing. They also said that “Rights evolved in our system. It’s very difficult to enumerate specifically[23].” So, in this way, the influence of foreign constitutional law is used in the constitutional law of Bangladesh.
In the Kazi Mukhlesur[24] case, the court used the terms “aggrieved person” and “sufficient interest” and relied upon the cases of the Mia Fazl Din case and Blackburn Case. These terms are widely used in this case. In this case, it is proven that it’s not needed to be a direct aggrieved person and the person who has sufficient interest can move to the court upon reliance on the foreign cases.
CONCLUSION
The constitution is the supreme law of Bangladesh. Remarkably, generations of Bangalees built it. On every page of the Constitution are the names of those who battled for it. Public law compensation has been another significant legal development in Bangladesh, in line with the modern, avant-garde, and revolutionary developments in the constitutional law forum. This has been made possible by the Court’s decisions in the cases of Bilkis (1997), Z I Khan Panna (2015), and CCB Foundation (2016), wherein the Court liberally interpreted Article 102 of the Constitution while taking into consideration several Indian cases, including Rudal Shah (1983) and Nilabati Behara (1993)[25].
These are only a few examples of how Bangladesh has developed its constitutional law over the past 50 years by borrowing influence from international constitutions. To strengthen the parliamentary form of government, incorporate newly emerging constitutional rights like the right to scientific benefits, and ensure that ESC rights are upheld by the courts, it is still very helpful to draw ideas from other countries’ constitutions when developing new constitutional issues related to the form of government, election system, powers, and functions of parliament.
Authors Name:
Kanak Kanti Karmakar (Bangladesh University of Professionals, Dhaka, Bangladesh)
Pritom Kanti Karmakar (Stamford University of Bangladesh, Dhaka Bangladesh)
Reference(s):
[1] Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 The Yale Law Journal 1225 available at Research Gate: <https://www.researchgate.net/publication/269908737_The_Possibilities_of_Comparative_Constitutional_Law> accessed on 22 January 2024
[2] Banu Vs Bangladesh & Others, Writ petition no: 7297 of 2019 <https://supremecourt.gov.bd/resources/documents/1638236_WP_7297_of_2019_2.pdf> accessed on 18 January 2024
[3] ibid
[4] Mark Tushnet (n 1)
[5] ibid
[6] Tayeeb &Ors Vs Government of the People’s Republic of Bangladesh and Ors(2015) 67 DLR 57 (AD)
[7] Dr. Mohiuddin Farooque vs Bangladesh and others (1997) 49 DLR (AD) (Flood Action Plan Case)
<https://www.academia.edu/31466042/_Mohiuddin_Farooque_vs_Bangladesh_1997_> accessed on 12 January 2024
[8] Muhammad Ekramul Haque, ‘Constitutional Borrowing and Transplants: Use of World Constitutions in the Making and Development of the Constitution of Bangladesh’ The Daily Star (Dhaka, 4 November 2022) Research Gate: <https://www.researchgate.net/publication/365082239_Constitutional_Borrowing_and_Transplants_Use_of_World_Constitutions_in_the_Making_and_Development_of_the_Constitution_of_Bangladesh> accessed on 24 January 2024
[9] Dr. Mohiuddin Farooque (n 7)
[10] Blackburn v Attorney General [1971] 2 All ER 1380
[11] Muhammad Ekramul Haque (n 8)
[12]Mrs. Aruna Sen v Government of Bangladesh (1975) 27 DLR 122 (HCD)
[13] Liversidge v Anderson [1942] AC 206
[14] The Constitution of the People’s Republic of Bangladesh 1972, art 102 (2) (b) (i)
[15] The Special Powers Act 1974, s 3
[16] The Constitution of the People’s Republic of Bangladesh 1972, art 33(3)
[17] Tayeeb (n 6)
[18] Marbury Vs Madison (1803)
[19] ThnInstitution the People’s Republic of Bangladesh 1972, Art 102
[20] Muhammad Ekramul Haque (n 8)
[21] The Constitution of the People’s Republic of Bangladesh 1972, art 150 (2) and SEVENTH SCHEDULE <https://albd.org/articles/news/31163/10th-day-of-April,-1971:-The-Proclamation-Of-Independence> accessed on 22 January 2024
[22] The Constitution of the People’s Republic of Bangladesh 1972, art 39
[23] Muhammad Ekramul Haque (n 8)
[24]Kazi Mukhlesur Rahman Vs Bangladesh and another (1974) 26 DLR 44 (AD)
[25]Muhammad Ekramul Haque (n 8)
