Right to equality before law is a constitutional obligation
Al Asad Md. Mahmudul Islam
In a recent move to High Court Division under its special original jurisdiction in writ petition no 2060 of 2001, Bangladesh Legal Aid and Services Trust (BLAST), a leading NGO of the country working for the protection and promotion of human rights through legal aid services and public interest litigation and advocacy, prayed for the enforcement of the fundamental right guaranteed under Article 27 to equality before law against the discriminatory practice of non-collection of arrears of telephone bills from the Members of 5th and 7th Parliament by the Bangladesh Telegraph and Telephone Board (BTTB).
The petitioner, BLAST, argued that BTTB was bound by law to collect the arrears of telephone bill due with the Members of Parliament as like as they collect telephone dues from ordinary citizens-subscribers of telephones and failure of BTTB to perform such duty led to the denying and subverting and undermining of the right to equality before law. The respondent, BTTB, appeared by affidavit-in-opposition and argued that it did its best and was still trying to realise the outstanding phone bills from the Members of Parliament. BTTB, however, said that it could not take the drastic and harsh action as per the concerned law against the member of 5th and 7th Parliament. After hearing from both parties, on 27 April of 2006 the Honourable High Court Division directed the BTTB to take appropriate measures to realise the outstanding phone bills of defaulting Members of Parliament within a period of six months and issued the following eight observations:
1. Bangladesh is a sovereign democratic republic, governed by the government of laws and not of men.
2. The people of Bangladesh are the owners of the state, and all functionaries and members of all services must serve their cause and only in their interest.
3. The law is not a respecter of persons, it does not discriminate between the ordinary citizens and functionaries of the state, however high and mighty they may be.
4. The privileges of the functionaries of the state are not allowed because they occupy such an exalted and high position but only so that they can perform their functions better in the interest of the people.
5. The government is an agent and a trustee for and on their behalf.
6. The honourable Members of Parliament are bound by the laws enacted by themselves just like any common citizens of this country.
7. Telephone bills owed to the BTTB is a debt to the country and the concerned authorities are obliged to realise their dues from the defaulting Members of Parliament past and present just like any other defaulting subscribers of telephones of this country. Otherwise the concerned authority shall be liable for dereliction of their duties.
8. If the Honorable Members of Parliament fail to pay their telephone bills in spite of issuance of notice to pay, the concerned authorities would be obliged to take action against them in accordance with the law for the time being in force in Bangladesh.
It is reported in the daily newspapers that following the direction of the High Court Division many Members of Parliament made payment to their due telephone bills and BTTB took legal actions including filing suit against many of those Members of Parliament who were still defaulter of such telephone bill. I believe this public interest litigation shall act as a catalyst for the enforcement of article 27 towards equality before law in our country.
In fact, Article 27 of the constitution does not speak about the right to equality before law alone, it includes right to equal protection of law too. It means every person is equal in the eye of law of the land and shall be treated equally in every function of the state and shall not be discriminated against on ground of religion, race, caste, sex, political belief, wealth, power, and other differences that might appear. With this notion, Article 28 of the constitution reinstates and elaborates the foregoing principle of right to equality before law, it says: (1) the state shall not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth; (2) women shall have equal rights with men in all spheres of the state and of public life; (3) No citizen, on grounds only of religion, race, caste, sex, or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. Article 29 guarantees equality of opportunity in public employment.
Of course, right to equality means right not to be discriminated against. But it does not prohibit the state to give additional privilege to the backward section for their advancement. Article 14 of the constitution says that it shall be a fundamental responsibility of the State to emancipate the toiling masses -- the peasants and workers -- and backward sections of the people from all forms of exploitation. Accordingly, Article 28(4), 29(3) authorise the state to make special provisions in favour of women or children or for the advancement of any backward section of citizens. They empower the government to introduce quota system in public service, to allocate extra fund and to adopt programme for particular social and cultural group, for the language, religious and ethnic minorities. It is often regarded as positive discrimination. This type of positive discrimination results in the development of the country. Because driving to the mainstream puts them on equal footing, equal platform and level the ground enabling them to the enjoyment of other rights.
However, enforcement of right to equality before law does not only mean to look at people of different walks of life equally in policing and dispensing justice between and among them for punishing criminal activities and disposing of civil disputes or for controlling the law and order situation of the state. It encapsulates the whole activities of the state -- economic, social and political. State is required to reflect the principle of right to equality in its every action and omission, in its every service delivery system. State must comply with its obligation to people's right to equality before law in framing laws, policies and administering laws through its functionaries and agents.
In a democratic country where establishment of rule of law forms one of the constitutional goals, enforcement of right to equality before law is always deserved from the state functionaries, especially from persons in authority and responsibility of the governmental office. They are entitled to give effect to the people's right to equality before law. Law as an embodiment of people's will serves only the cause of public and their interest and no other else. Hence, enforcement of people's right to equality before law is always regarded as a primary task for every government for ensuring and establishing rule of law, fundamental human rights.
How far Bangladesh, as a democratic republic, protects and promotes this right to equality before law? Before looking into the existing reality to the state endeavour , we must note the full fledged commitment of our Constitution to the right to equality before law.
If we look at the preamble of our constitution we see, its third para explicitly outlines the aim of the state. It promises us that the fundamental aim of the state shall be to realise the democratic process of a socialist society, free from exploitation -- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic, and social -- will be secured for all citizens. Article 8 speaks about “democracy and socialism meaning social justice” as one of the four fundamental principles of state policy. Again Article 11 says, “The republic shall be a democracy in which fundamental human rights and freedom and respect for the dignity and worth of the human person shall be guaranteed.” Last but not the least, as per Article 19, (1) the state shall endeavour to ensure equality of opportunity to all citizens, (2) the state shall adopt effective measures to remove social and economic inequality between man and man to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.
Thus we have seen that it is a recurrent theme of our constitution to ensure economic, social and political justice, fundamental human rights through providing equal opportunity, conferring equal privilege and imposing equal liabilities and to endeavour to remove social, economic and political inequality, violation of fundamental human rights through taking care of the needs of the weak, poor and backward sections of people.
In order to the furtherance of the aim and objective of the state and to give effect to the provision of the fundamental right to equality before law as stated in article 27, 28 and 29, Article 44 guarantees the right to move the High Court Division under Article 102. In spite of it, we are far away from the establishment of this right. It is because of the fact that, a large number of people still do not know about their rights guaranteed by the Constitution, by different statutes and international human rights treaties. Though very few know about these rights, they do not have an access to justice. The increasing disparity between the poor and the rich is also posing serious threat to the realisation of right to equality before law for each and everybody.As a result, if we look at the practice of the state functionaries and state run organisations, we get very horrible depiction of unequal treatment between the rich and the poor, the powerful and powerless, the men and women, politician and non-politician. Rampant corruption, nepotism, misuse of public money and property, abuse of power have given rise of serious mistrust in the function of the state. Today the state functionaries are accused of biasness to the powerful, rich, and corrupt.
Under these circumstances, we need to take judicial, legislative and administrative reformations for the fulfilment of people's right to equality before law. Without ensuring people their right to access to justice, reforming the criminal justice system, incorporating Right to Information Act, appointing an independent ombudsman and establishing an independent human rights commission, the right to equality before law shall not be enforced. Government is under constitutional obligation to respond positively to these issues for the complete fulfilment of the right to equality before law.
The writer is an assistant researcher to Public Interest Litigation and Advocacy Cell, Bangladesh Legal Aid and Services Trust (BLAST).