Your fundamental rights in High Court under Article 26
Do you know what fundamental rights under Article 26 you have in the High Court Division of the Supreme Court of Bangladesh? If you do not know, let’s go to know as this is the question your individual fundamental rights in order to take shelter by filling a Writ Petition.
Under Article 26 of the Constitution of Bangladesh, the High Court Division serves as the "guardian" of the people's rights. Article 26 essentially provides the substantive ground that a law is void if it contradicts fundamental rights. A Writ Petition can be filed under Article 26 for any issue where a law, rule, or government action interferes with the rights listed in Part III (Articles 27–44). Therefore, when a law, action of the State, or authority violates a fundamental right, an aggrieved person may seek remedy before the High Court Division through a Writ Petition under Article 102 of the Constitution of Bangladesh.
Article 26:
26.(1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.
Now, the specific matters on which a Writ Petition can be filed under the umbrella of Article 26 can be categorized into four primary areas. Below are the specific issues and practical examples:
Challenging the Validity or Constitutionality of a Law, section, rule, etc (Ultra Vires):
A Writ Petition can be filed to challenge two types of laws: 1) existing laws, and 2) new laws.
Existing Laws (Art. 26.1): Challenging colonial or pre-1972 laws that are still in force but violate fundamental rights enshrined in the Part lll. All existing law inconsistent with fundamental rights, to the extent of such inconsistency, become void.
Ground: The law was valid when passed (e.g., during the British or Pakistan period) but is now unconstitutional.
Example: If a pre-constitutional law allowed for the confiscation of property without compensation, it could be challenged as inconsistent with Article 42 (Right to Property).
Practical Example: The Anti-Corruption Commission (ACC) Amendment Act 2013 originally required prior government permission to file cases against public servants. In HRPB vs. Bangladesh, the HCD declared this provision void because it violated Article 27 (Equality before law), as it created a privileged class of citizens, public servants, who were "more equal" than others.
New Laws (Art. 26.2): Challenging an Act passed by Parliament that violates fundamental rights enshrined in the Part lll. The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
Ground: The Parliament has exceeded its legislative limit by infringing upon a protected right.
Example: In the 16th Amendment Case, the Supreme Court declared the amendment void because it undermined the independence of the judiciary, which is a basic structure linked to fundamental rights.
Practical Example: Suppose the government passes a "Digital Safety Act" clause that allows for the arrest of a journalist for simply criticizing a policy, without a warrant. This violates Article 39 (Freedom of Thought and Expression). A journalist can file a Writ to have that specific clause declared void under Article 26.
Challenge to "Delegated Legislation" (Rules, Ordinances, Notifications):
The definition of "Law" under Article 152 includes rules, regulations, bye-laws, and notifications. If any government circular or policy violates a fundamental right, it can be challenged.
Ground: Executive overreach or arbitrary use of power.
Example: A government notification (Gazette) restricts a particular section of citizen from applying for a job without a biological or logical reason. This violates Article 29 (Equality of opportunity in public employment). A Writ of Mandamus or Certiorari can be filed to cancel that notification.
Arbitrary Administrative Actions & Discrimination:
Under Article 27 (Equality before law), a Writ is frequently filed when the State applies a law in a discriminatory or arbitrary manner.
Service Matters: When a government employee is denied promotion or terminated without following the due process of law.
Tender/Contract Awards: When the government awards a public contract to a party that does not meet the criteria, violating the rights of other qualified bidders to equal treatment.
Practical Example: If a law requires a "prior sanction" only for certain classes of public officials before a corruption case can be filed (as seen in the ACC Act Amendment cases), it can be challenged for creating an "unreasonable classification."
Violation of Equality and Non-Discrimination:
When the State treats similarly situated persons differently without lawful justification by discrimination in recruitment in public service, government benefits given only to a particular group without legal basis, or unequal treatment in admission to public institutions in violation of the Article 27 – Equality before law, and Article 28 – Prohibition of discrimination, a writ petition can be filed to challenge them.
Denial of Protection of Law or Due Process:
When administrative or governmental action violates the rule of law by cancellation of license without hearing, arbitrary government orders affecting rights, administrative decisions without lawful authority in violation of Article 31 – Right to protection of law, a writ petition can be filed to challenge them.
Action Taken Without Jurisdiction by Public Authority:
When a public authority acts beyond its legal power, , a writ petition can be filed to challenge them by the Writ of Certiorari – to quash illegal decisions, Writ of Prohibition – to stop unlawful proceedings.
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MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
Fundamental Rights Activist