A History of the Constitution

of Bangladesh
The Founding, Development,
and Way Ahead

Edited by Ridwanul Hoque and

Rokeya Chowdhury
3 The Constitution of Bangladesh
and international law
Kawser Ahmed*

Introduction
Despite the common perception that Bangladesh is a dualist1 country, there is a
divergence of opinions among scholars about the relationship between domes-
tic law and international law in the legal system of Bangladesh. According to
Karim and Theunissen, writing in 2011, the status of international law within
Bangladesh’s domestic legal order is unclear in many ways.2 Conversely, Azad,
after exactly ten years, comments that the position of international law, in gen-
eral, is quite clear in the legal system of Bangladesh.3 A scholar has recently
observed that the Supreme Court of Bangladesh is inching towards what might
be called ‘creeping monism’ through judicial activism.4 Scholars from all sides
have mainly relied on case laws and practices of the executive branch of the gov-
ernment in developing their respective views. To get a proper understanding
of the whole gamut of the relationship between domestic law and international
law in a given jurisdiction, it is essential to consider not only the state practices
but also a structural study of the Constitution. The general paradigm of the
relationship between domestic law and international law in Bangladesh, from
the constitutional point of view, may not appear that much unclear. Of course,
that does not mean that there are no grey areas in the framework of interaction
between international law and domestic law in Bangladesh.

* The author dedicates this chapter to Prof Kajalendu Dey, a former professor at the Depart-
ment of Bengali, Dhaka City College. He is grateful to Prof Ridwanul Hoque for his invaluable
guidance and comments. The author also wishes to thank Emraan Azad and Md Azhar Uddin
Bhuiyan for their support and assistance.
1 Alina Kaczorowska, Public International Law (4th edn, Routledge 2010) 147; Donald R
Rothwell et. al., International Law: Cases and Materials with Australian Perspectives (CUP
2011) 161; Gideon Boas, Public International Law: Contemporary Principles and Perspectives
(Edward Elgar Publishing 2012) 120.
2 Bianca Karim and Tirza Theunissen, ‘Bangladesh’ in Dinah Shelton (ed), International Law
and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (OUP 2011) 98.
3 Emraan Azad, ‘Customary International Law’ in Mohammad Shahabuddin (ed), Bangladesh
and International Law (Routledge 2021) 61.
4 M Ekramul Haque, ‘Current International Legal Issues: Bangladesh’ (2017) 23 Asian Yearbook
of International Law 3–16.
DOI: 10.4324/9781003276814-4
 The Constitution of Bangladesh and international law 45

Against this backdrop, this chapter explains how the Constitution envisages
the interface between international law and domestic law in Bangladesh. There
are two main theoretical questions in this regard: first, what is the status of
international law in a domestic legal system and, second, how is international
law given efect in a domestic legal order? The broad, difering approaches that
states adopt to address these questions are classified as dualism versus monism
in legal literature.5 With this dichotomy in view, the chapter begins with a brief
overview of the positioning of international law vis-à-vis the Constitution of
Bangladesh. It then provides an analysis of the status of international treaties
and customs within the constitutional normative framework of Bangladesh.
The following sections respectively discuss the modalities of domestic imple-
mentation and judicial invocation of international law. The chapter concludes
that, despite the absence of explicit constitutional provisions, the constitu-
tional design leaves no alternative to dualism for Bangladesh to follow.

International law and the debates over the making of the

Constitution
Both the terms, ‘international law’ and ‘treaty’ appear in the text of the Con-
stitution. The first reference to international law occurs in article 25 of the
Constitution, which provides that Bangladesh shall base its international rela-
tions, among others, on the principles enunciated in the UN Charter and re-
spect for international law.6 ‘International law’ appears for the second time in
article 47(3) of the Constitution. According to article 47(3), any law that pro-
vides for detention, prosecution, or punishment for genocide, crimes against
humanity or war crimes, and other crimes under international law will not
become void or invalid on the grounds of being inconsistent with the Consti-
tution.7 Article 47(3), therefore, makes it clear that the Constitution envisages
the application of ‘domestic law’ when it comes to the domestic implementa-
tion of any international legal norms concerning war crimes, crimes of geno-
cide, or other crimes under international law. Although article 47(3) is limited
to a specific branch of international law, the provision by implication indicates
that Bangladesh’s constitutional approach to international law is dualist.
The appearance of the term ‘treaty’ did not occur in the Constitution until
the insertion of article 145A by the Second Proclamation Order No. IV 1978,
which laid down that any international treaties with foreign countries should be

5 M Shah Alam, ‘Enforcement of International Human Rights Law by Domestic Courts: A

Theoretical and Practical Study’ (2006) 53(3) Netherlands International L Rev 399, 403–405;
Ridwanul Hoque and Mostafa M Naser, ‘The Judicial Invocation of International Human
Rights Law in Bangladesh: Questing a Better Approach’ (2006) 46 Indian J of International L
151, 153–163. See further Abdullah Al Faruque, ‘Judicial Invocation of International Law’, in
Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021) 37.
6 The Constitution of the People’s Republic of Bangladesh 1972, art 25 (Bangladesh
Constitution).
7 ibid, arts 7 and 26.
46 Kawser Ahmed

placed before the parliament.8 However, the issue of the ratification of interna-
tional treaties arose before the Constituent Assembly.9 On 24 October 1972,
Mr Suranjit Sengupta, in his address to the Constituent Assembly, criticised
the draft Constitution for not having any provision concerning ratification of
treaties by parliament.10 Later, on 2 November 1972, Mr Sengupta proposed
the insertion of a new article (namely, article 65A) in the draft Constitution re-
quiring any treaty concluded with foreign countries to be submitted before the
parliament for approval, in order for such a treaty to have any binding efect.11
Mr Sengupta argued that the sovereignty of parliament would be compromised
if the executive authority was allowed to conclude treaties with foreign coun-
tries without the approval of the legislature.12 He further argued that the pub-
lic should have clear knowledge about international treaties subscribed to by
the nation so that they can express their opinion about those treaties.13 The
deputy speaker of the Constituent Assembly ruled out Mr Sengupta’s proposed
amendment without putting it on the vote, although such a provision would
surely add the values of participatory and deliberative democracy to Bangla-
desh’s treaty-making practice.14 As a result, the term treaty remained absent in
the Constitution as originally adopted on 4 November 1972. It is in this con-
text that the Appellate Division of the Supreme Court held in Kazi Mukhlesur
Rahman v Bangladesh that the treaty-making fell within the ambit of the execu-
tive power per article 55(2) of the Constitution even though this article does
not make any explicit reference to treaty-making power.15
The term treaty has not been defined in either the Constitution or in the
General Clauses Act 1897.16 Article 145A states that “all treaties with foreign
countries shall be submitted to the President, who shall cause them to be
laid before Parliament, provided that any such treaty connected with national
security shall be laid in a secret session of Parliament.”17 The Bengali text of
this provision makes it clear that “all treaties with foreign countries” actually

8 The Proclamation Order was a military decree. All changes to the Constitution by military
proclamations during the first military regime (1975–1979) were later ratified by the Consti-
tution (Fifth Amendment) Act, 1979. Article 145A was reincorporated again by the Constitu-
tion (Fifteenth Amendment) Act, 2011.
9 The Constituent Assembly was established under the Constituent Assembly of Bangladesh Or-
der 1972 for the purpose of adopting a Constitution for Bangladesh.
10 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the
Making of the Constitution, vol 1 (Pencil Publications 2021) 203.
11 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the
Making of the Constitution, vol 2 (Pencil Publications 2022) 163.
12 ibid.
13 ibid.
14 ibid 164.
15 (1974) 26 DLR (SC) 44, 54 and 58, paras 23 and 38.
16 On the definition of a treaty, see the Vienna Convention on the Law of Treaties 1969, art 2(1)
(a) (The VCLT).
17 On the meaning of “all treaties with foreign countries,” see Mahmudul Islam, Constitutional
Law of Bangladesh (3rd edn, Mullick Brothers 2012) 1025; and Shahnaz Huda and Manzoor
 The Constitution of Bangladesh and international law 47

means all treaties made with foreign countries.18 Article 145A does not ex-
pressly provide the executive branch with the power to enter into international
treaties. Despite this omission, the treaty-making power has been traditionally
exercised by the executive branch from the beginning.19

The status of international law in the Constitution

Scholars are largely in agreement that Bangladesh follows dualism in the do-
mestic application of international law,20 although there is a diference of opin-
ions about why the legal system of Bangladesh adheres to the dualist approach.
According to Karzon and Faruque, while Bangladesh adheres to dualism
regarding the domestic implementation of international treaties, the status of
treaties in the domestic legal system remains largely unsettled in the absence
of explicit constitutional provisions.21 To them, during the British colonial pe-
riod, courts followed the dualistic common law tradition regarding the status
of international law, which continued after decolonisation in 1947 during the
Pakistani era.22 Article 149 of the Constitution provides for the continuity of
the ‘existing laws.’ Before the commencement of the Constitution (16 Decem-
ber 1972), the Laws Continuance Enforcement Order 1971 similarly provided
for the continuity of the existing laws. Article 152 of the Constitution defines
‘existing law’ as any law in force in, or any part of, the territory of Bangladesh
immediately before the commencement of this Constitution.23 Karzon and
Faruque have argued that the term existing law includes the English common

Hossain, The Bangladesh Parliament and International Conventions (Bangladesh Institute of

Parliamentary Studies 2000) 33–35.
18 Kawser Ahmed, ‘Pandemic, Emergency & the Bangladesh Constitution: A Reflection’ (IACL-
AIDC Blog, 2 June 2020) <https://blog-iacl-aidc.org/2020-posts/2020/7/2/pandemic-
emergency-amp-the-bangladesh-constitution-a-reflection> accessed 22 March 2022.
19 For example, article 7(2) of the VCLT provides that the Heads of State, the Heads of Gov-
ernment, and the Ministers for Foreign Afairs can ex ofcio perform all acts relating to the
conclusion of a treaty. Hence, the international and national practice, taken together, can be
interpreted to have efectively allocated the treaty-making power to the executive branch of
the government.
20 See, generally, Syed Mynuddin Hussain and Mohammed Mahbubul Haque Joarder, ‘Status of
International Law in Bangladesh Courts’ (1984) 7(2) Law and International Afairs 67, 77;
Sheikh Hafizur Rahman Karzon and Abdullah-Al-Faruque, ‘Status of International Law under
the Constitution of Bangladesh’ (1999) 3(1) Bangladesh J of Law 23; Sumaiya Khair, ‘Bring-
ing International Human Rights Law Home: Trends and Practices of Bangladeshi Courts’
(2011) 17 Asian Yearbook of International L 47, 50; Hoque and Naser (n 5) 166–169; Kamal
Hossain and Sharif Bhuiyan, ‘Bangladesh’ in Simon Chesterman, Hisashi Owada, and Ben
Saul (eds), International Law in Asia and the Pacific (OUP 2019) 604, 606–610; M Al-Ifran
Hossain Mollah, ‘The Law of Treaties and Treaty Reservations’ in Mohammad Shahabuddin
(ed), Bangladesh and International Law (Routledge 2021) 72, 73; Azad (n 3).
21 Karzon and Faruque (n 20) 47.
22 ibid 26. Notably, Karzon and Faruque did not substantiate the reasons behind their claim.
23 Bangladesh Constitution, art 152.
48 Kawser Ahmed

law tradition which was adopted as the law of Bangladesh under article 149
and enforced through the judicial decisions before the Constitution came into
force.24 Additionally, according to Karzon and Faruque, judicial decisions have
clarified that customary international law (CIL) forms part of Bangladeshi
laws provided that any given CIL norm is not contrary to the Constitution or
the statutory law.25
In a 2019 essay, Hossain and Bhuiyan arrived at a somewhat similar conclu-
sion albeit via diferent arguments.26 Unlike Karzon and Faruque, they have
argued that although the Constitution or any statute has not provided any
specific provision on the domestic application of international law, several judi-
cial decisions settle that Bangladesh follows the dualist approach to the domes-
tic application of international treaties.27 In respect of customary international
law, Hossain and Bhuiyan think that Bangladeshi courts should follow the
English common law (constitutional law) principle that CIL automatically
forms part of Bangladeshi law as long as there is no inconsistent domestic
legal provision.28
Karzon and Faruque’s explanation that Bangladesh’s adherence to dual-
ism stems from the influence of English common law tradition internalised
through the constitutional incorporation of all ‘existing laws’ in the domestic
law looks farfetched because no such intention of the framers can be identi-
fied from deliberations in the Constituent Assembly and also because the term
existing law in the Constitution arguably refers to all laws that were in force
immediately before Bangladesh’s independence on 26 March 1971, and not to
any tradition.29 On the other hand, Hossain and Bhuiyan’s argument, mostly
based on the Kazi Mukhlesur Rahman case, that the constitutional silence
about the domestic application of international treaties was settled by judicial
decisions does not bear extra force because Bangladesh has been following the
practice of dualism all along. For example, in 1973, Bangladesh enacted the
Asian Development Bank Order 197330 for the implementation of the Agree-
ment establishing the Asian Development Bank in 1965. In Kazi Mukhlesur
Rahman, in 1974, the Court did not decide any question of domestic imple-
mentation of international treaties; it merely endorsed the prevailing treaty-
making practice by the executive branch of the government.
More importantly, the aforementioned views miss one vital point, which
is that the Constitution is the supreme law as well as the single source of

24 See Karzon and Faruque (n 20) 27.

25 ibid 28–34 and 47.
26 Hossain and Bhuiyan (n 20) 604.
27 ibid 606.
28 ibid. In this regard, Hoque and Naser’s position can be described as a blending of the views of
Karzon et al and Kamal Hossain et. al. See Hoque and Naser (n 5) 166.
29 Before its incorporation in the Constitution, the term existing law was defined in section 2 of
the Bangladesh (Adaptation of Existing Laws) Order 1972 (President’s Order No. 3 of 1972)
as any Act, Ordinance, Regulation, Rule, Order, or By-law.
30 President’s Order No. 3 of 1973.
 The Constitution of Bangladesh and international law 49

legitimacy of legal order in Bangladesh. Therefore, any explanation of the

relationship between Bangladesh’s domestic law and international law must
necessarily be derived from the Constitution, even when there are no explicit
constitutional provisions on the subject. The question should be asked why
the courts or the administrative agencies in Bangladesh do not enforce or
implement international treaty provisions directly, despite that they are not
expressly barred from doing so by the Constitution. Against this backdrop, it
is worth undertaking a fresh investigation into the relationship between do-
mestic and international law in Bangladesh.
The most fundamental issue concerning the status of international law in
any given jurisdiction is enforceability. The classification of states under the
so-called dualism or monism is based on the issue of enforceability of interna-
tional law in the domestic sphere. International law does not define the rela-
tionship between domestic law and international law. Rather, the legal system
of a country determines the modality of such a relationship.31 Since the Con-
stitution is the grand source of legitimacy in the legal system of Bangladesh,
determining the status of international law will require a critical investigation
into the theory of legislation in the light of the Bangladesh Constitution. By
‘theory of legislation,’32 I mean the constitutional normative framework by
which it identifies what body of norms is to be recognised as laws in Bang-
ladesh.33 The issue of administrative implementation or the enforcement34 of
international law arises once any international legal norm or rule conforms to
such theory of legislation and attains the status of law. To determine any such
constitutional normative framework, a structural analysis of the Constitution
of Bangladesh is required.
The preamble of the Constitution declares that it shall be a fundamental
aim of the state to secure, among others, the rule of law for all citizens. Ac-
cording to the Constitution, the state comprises the parliament, the gov-
ernment, and the statutory public authorities.35 While the parliament and
the government36 are the creations of the Constitution, the statutory public
authorities are created under the authority of statutes. Their functions are
determined according to the Constitution and the other laws of the country.
Furthermore, the Constitution provides that every citizen of Bangladesh has

31 See Paola Gaeta, Jorge E Viñuales, and Salvatore Zappalá, Cassese’s International Law (3rd
edn, OUP 2020) 224–225.
32 Ronald Dworkin, Taking Rights Seriously (HUP 1978) vii–viii.
33 HLA Hart, The Concept of Law (OUP 1994) 94–95.
34 By ‘enforcement’, I mean judicial measures giving efect to international law.
35 Bangladesh Constitution, art 152.
36 Traditionally, the term government includes all three branches namely, the legislature, the
judiciary, and the executive. See HC Black, JR Nolan, and JM Nolan-Haley, ‘Government’
in Black’s Law Dictionary (6th edn, West Publishing Co 1990) 695. However, since the
definition of ‘state’ in article 152 of Bangladesh’s Constitution separately mentions ‘parlia-
ment’, the term government, therefore, should be understood to mean the executive and the
judiciary only.
50 Kawser Ahmed

an inalienable right to be treated in accordance with the law.37 Additionally,

the branches and the agencies of the government are obliged to perform
functions subject to the Constitution and the laws made or recognised there-
under. The Constitution is the supreme law of the land and any other law
inconsistent with it is void.38 Article 152(1) of the Constitution defines the
term law as any Act, ordinance, order, rule, regulation, by-law, notification,
or other legal instruments, and any custom or usage, having the force of law
in Bangladesh. These terms have well-defined meaning in the legal system of
Bangladesh, and they do not include international treaties.39 The Constitu-
tion does not recognise international treaties as a source of domestic law in
Bangladesh.
Now the question is whether it is the executive or the judiciary that can
directly apply treaties in the discharge of their functions under the Constitu-
tion. There is no denying that treaty-making power falls within the ambit
of the executive power of the government. However, the fact that treaty-
making power is vested in the executive branch does not make it entitled
to implement treaties directly in the domestic sphere because, according to
article 55(2) of the Constitution, the executive powers are subject to the
Constitution that excludes international treaties as a source of domestic law.
The resultant efect is that the administrative implementation of international
treaties in Bangladesh cannot be carried out in the absence of any enabling
domestic legislation. In the same vein, the establishment and jurisdiction of
courts and tribunals are governed by the Constitution and the laws of the
country.40 For instance, article 101 of the Constitution, which deals with
the powers and functions of the Supreme Court, provides that the Supreme
Court shall have such jurisdiction and powers as are conferred on it by the
Constitution and the domestic law. Thus, the Constitution does not envisage
that the courts and tribunals in Bangladesh will directly enforce international
treaties in Bangladesh. The aforesaid analysis makes it clear that international
treaties cannot be applied directly by any branch of the government in the
absence of implementing domestic legislation under the constitutional nor-
mative framework of Bangladesh.
However, to what extent the foregoing analysis applies to CIL would be an
open question. Although no court has ever applied CIL,41 there is a tacit judi-
cial endorsement that CIL forms part of the corpus juris of Bangladesh so long

37 Bangladesh Constitution, art 31.

38 ibid art 7(2).
39 Most of these terms have been defined either in the Constitution or the General Clauses Act
1897.
40 Article 94 of the Constitution provides for establishment of the Supreme Court. Besides,
articles 114 and 117 respectively provide for the establishment by law of subordinate courts
and administrative tribunals.
41 See Bangladesh Legal Aid and Services Trust v Bangladesh (2011) 63 DLR (HCD) 1, 8–9,
paras 37–40 (the BLAST). Also see Hossain and Bhuiyan (n 20) 614.
 The Constitution of Bangladesh and international law 51

as it is not inconsistent with domestic law.42 Although the Supreme Court in the
BLAST case recognised the prohibition of torture as a CIL norm, it remained
silent about the status of CIL norms generally in the legal system of Bangladesh
and decided the case based on domestic law alone.43 The other branches of the
government do not seem to have ever held any contrary views.44 The problem
is that the Supreme Court did not explain why and how CIL should be recog-
nised as part of the laws of Bangladesh. In this regard, Karzon and Faruque’s
argument that CIL forms part of Bangladeshi laws through judicial decisions
appears unsupported by evidence, because the two cases that they relied on
(Bangladesh v Unamarayen SA Panama45 and Bangladesh v Somboon Asava-
ham46) did not embark on any discussion about the relationship between CIL
and domestic law of Bangladesh. While, in the former, the Court said nothing
about CIL, the Appellate Division in the latter case commented that “where
there is municipal law on an international subject, the national court’s function
is to enforce the municipal law within the plain meaning of the statute.”47
To overcome the problem of inarticulation of the relationship between CIL
and domestic law, one solution could be to interpret the word custom in article
152 of the Constitution in an inclusive manner to cover CIL. No doubt, the
determination of whether a CIL norm exists at all depends on the evidence,
and that task belongs to international actors. At the domestic level, the Su-
preme Court will require a method by which the existence of any CIL norms
can be proved. Needless to say, the identification of CIL has been one of the
most complex tasks before the international courts and tribunals. The Evi-
dence Act 1872 contains a few provisions dealing with how the existence of a
custom may be proved before the Court.48 There is no reason not to extend
the applicability of the Evidence Act to prove the existence of international
customs with some necessary adaptations.

Modalities of domestic implementation of international

law in Bangladesh
The Constitution of Bangladesh does not provide for any particular class of
municipal law as necessary for the domestic implementation of international

42 See Chief Prosecutor v Abdul Quader Molla (2014) 22 BLT (AD) 8, 73, para 125. In the
majority opinion, the Appellate Division noted: “there remains no doubt that the Act of 1973
has primacy over [CIL] and [CIL] will be applicable so far as it is not inconsistent with the
Act.’ Cf Hossain and Bhuiyan (n 20) 615.
43 The BLAST (n 41).
44 Initial Report of Bangladesh on the International Covenant on Civil and Political Rights
(CCPR/C/BGD/1), para 8.
45 (1977) 29 DLR (HCD) 252. The name of the respondent has appeared as ‘Unimarine S.A.
Panama’ in the Appellate Division’s judgment and in several scholarly works.
46 (1980) 32 DLR (AD) 194 (Somboon Asavaham).
47 ibid 197–198, para 6.
48 The Evidence Act 1872, ss 13, 32 and 48.
52 Kawser Ahmed

law. As a result, international law can be implemented in Bangladesh through

both primary legislation and secondary legislation as well as the Constitu-
tion.49 The Government of Bangladesh, in its several initial state party re-
ports under certain international human rights treaties, has simply mentioned
that the Constitution together with other laws gives efect to those treaties in
the domestic sphere.50 In this connection, an interesting case in point would
be the implementation of the measures adopted by the Security Council un-
der article 41 of the UN Charter through a mixed regime comprising both
primary legislation and secondary legislation. The United Nations (Security
Council) Act 1948, a piece of primary legislation, empowers the government
to implement such measures by an order published in the Ofcial Gazette, that
is, through secondary legislation.51
The Constitution also does not require the enactment of specific legisla-
tion each time a new treaty is concluded. Laws already in force may sufce to
implement treaties made at a later point in time if their respective mandates
coincide. Moreover, a particular piece of legislation may be designed to imple-
ment multiple treaties.52 By contrast, a particular treaty can be implemented
through multiple legislations. For example, the Constitution along with other
laws gives efect to the provisions of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in
Bangladesh.53 It is also not required that the implementing legislation should
expressly mention which international law it intends to give efect to. Never-
theless, the parliament in recent years has passed several legislations specifying
in their preambles the international treaties they intend to implement.54 Inter-
estingly, the Overseas Employment and Migrants Act 2013 mentions several
international treaties in its preamble but, in practice, does not implement any
of them in full.
Lastly, I turn to the question of whether the courts of Bangladesh can de-
clare any norms of international law as part of the corpus juris of the state and
then enforce it. Article 111 of the Constitution provides: “The law declared
by the Appellate Division shall be binding on the High Court Division and the
law declared by either division of the Supreme Court shall be binding on all

49 Hossain and Bhuiyan (n 20).

50 CCPR/C/BGD/1 (n 44) paras 15 and 18; Initial Report of Bangladesh on the Interna-
tional Covenant on Economic, Social and Cultural Rights (E/C.12/BGD/1) para 19; Initial
Report of Bangladesh on the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT/C/BGD/1) paras 8–12.
51 The United Nations (Security Council) Act 1948, s 2. A more recent example includes the
Anti-Terrorism Act 2009 and the Anti-Terrorism Rules 2013.
52 As examples, the Bangladesh Labour Act 2006 and the Anti-Terrorism Act 2009 may be
mentioned.
53 CAT/C/BGD/1 (n 50) para 5. See also Bangladesh Constitution, art 35; and the Torture and
Custodial Death (Prohibition) Act 2013.
54 For example, the Children Act 2013 claims to give efect to the UNCRC, and the Rights and
Protection of the Persons with Disabilities Act 2013 claims to give efect to the UNCRPD.
 The Constitution of Bangladesh and international law 53

courts subordinate to it.” Arguably, the language of article 111 leans towards
the declaratory theory of precedent, which means the decisions of the judges
do not derive from their law-making power; they only constitute evidence of
what the law is.55 In other words, judges in Bangladesh are not supposed to
make law but only to find it.56 There are cases where the Appellate Division of
the Supreme Court has upheld this position and recognised that the plenary
legislative power lies with the parliament alone. For example, although the
High Court Division in Human Rights and Peace for Bangladesh v Bangladesh
declared ‘the Precautionary Principle’ and ‘the Polluter Pays Principle’ as part
of the corpus juris of Bangladesh,57 the Appellate Division on appeal over-
turned that ruling on the ground that it was absolutely within the domain of
parliament to enact or amend laws under the Constitution to incorporate such
principles of international environmental law.58

Judicial invocation of international law in Bangladesh

It has already been argued that the Constitution does not envisage interna-
tional treaties as a source of domestic law and that the application of interna-
tional treaties requires implementing legislation. Despite such constitutional
limitations, the Supreme Court did not shy away from referring to or citing
international treaties in its judgments from time to time. Therefore, the ques-
tion arises as to what extent the judiciary can ‘draw upon’59 international law in
the discharge of its functions. The answer to this theoretical yet constitutional
question may be demystified by evaluating the judgments of the Supreme
Court.
The first and foremost approach is that where there is municipal law on an
international subject, the national court’s function is to enforce the municipal
law within the plain meaning of the statute.60 The second approach is that al-
though the courts will not enforce international treaties unless these are incor-
porated into municipal laws, they can use them as an aid to the interpretation
of domestic law.61 In Sheikh Hasina, the Appellate Division held that Bangla-
deshi courts “will not enforce the covenants and convention even if ratified by
the State unless these are incorporated in municipal laws.”62 In this case, the

55 Rupert Cross and JW Harris, Precedent in English Law (OUP 2004) 25.
56 M Rizwanul Islam, ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher Judici-
ary in Bangladesh with Not So Benevolent Consequences’ (2016) 16 OUCLJ 219, 220–221.
57 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016, at 279 of
the judgment (the HRPB) (HCD’s judgment delivered on 30 January and 3 February 2019).
58 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh (HRPB), Appellate Divi-
sion, CPLA No. 3039 of 2019, judgment delivered on 17 February 2020, at 35–37.
59 Somboon Asavaham (n 46); Hussain Muhammad Ershad v Bangladesh (2001) 21 BLD (AD)
69, 70.
60 Ershad (n 59) 74–75, para 12 (AM Mahmudur Rahman J).
61 The BLAST (n 41) 8, para 38. Bangladesh v Sheikh Hasina (2008) 28 BLD (AD) 163.
62 Sheikh Hasina (n 61) 181, para 90.
54 Kawser Ahmed

Court, however, noted that it would look into the ICCPR and other relevant
conventions “while interpreting the provisions of part III [of the Constitution]
to determine [the scope of the] right to life, right to liberty and other rights
enumerated in the Constitution.”63 Arguably, the third approach is to treat, in
an appropriate case, international customary law principles as part of domestic
law.64 In the HRPB, the High Court Division declared ‘the Precautionary Prin-
ciple’ and ‘the Polluter Pays Principle’ as part of the corpus juris of the state,65
although the declaration was later overruled by the Appellate Division.66
At this juncture, to what extent the invocation of international treaties ei-
ther by the parties or the Supreme Court itself has influenced the outcome
of a case is worth examining. A careful reading of most of the reported judg-
ments of the Supreme Court does not demonstrate any direct nexus between
the Court’s treatment of international treaties and the outcome of the cases.
For instance, in BLAST67 and Bangladesh National Women Lawyers Association
(BNWLA) v Bangladesh,68 directions were sought from the Supreme Court for
the adoption of guidelines/policies respectively for preventing extra-judicial
punishments and sexual harassment of women and girls at workplaces and ed-
ucational institutions. In both cases, the Court cited several international trea-
ties and then remarked that it would not enforce international treaties as they
were not part of the corpus juris of the state, however, would look into these
conventions and covenants as an aid to interpreting the domestic law of the
country.69 Similarly, in the State v Md Roushan Mondal,70 the Supreme Court
dealt with the conviction and death sentence of a minor boy for his alleged
commission of rape and murder of a minor girl. Although the Court referred
to some provisions of the Convention on the Rights of the Child (UNCRC) in
its judgment, it set aside the conviction and sentence mainly on the grounds of
lack of jurisdiction of the trial court for its non-compliance with the Children
Act 1974.71 In the case of Saiful Islam Dildar v Bangladesh,72 the petitioner

63 ibid. Cf Professor M Samsul Alam v Bangladesh (2018) 10 SCOB (HCD) 205, 229–230, paras
75–77.
64 The HRPB (n 57) 279.
65 ibid.
66 Nishat Jute Mills Limited (n 58). Many authors maintain that ‘the precautionary and the pol-
luter pays principles’ have become CIL norms. See Alan Boyle, ‘Southern Bluefin Tuna Cases’,
Max Planck Encyclopedias of International Law [MPIL] (2008) para 9 <https://opil.ouplaw.
com/view/10.1093/law:epil/9780199231690/law-9780199231690-e210> accessed 26
April 2022; Svitlana Kravchenko, Tareq MR Chowdhury, and MJH Bhuiyan, ‘Principles of
International Environmental Law’ in Shawkat Alam et al. (eds), Routledge Handbook of Inter-
national Environmental Law (Routledge 2014) 43, 53.
67 The BLAST (n 41) 2, para 2.
68 (2009) 29 BLD (HCD) 415, 416, para 1 (the BNWLA).
69 The BLAST (n 41) 8, para 38; the BNWLA (n 68) 425, para 35.
70 (2006) 26 BLD (HCD) 549, 577, para 77 (Roushan Mondal).
71 ibid 578, para 77. The other reason cited was insufcient evidence on record to prove the
charge.
72 (1998) 50 DLR (HCD) 318, 324, para 7.
 The Constitution of Bangladesh and international law 55

sought to stop the deportation to the Indian authorities of Mr Anup Chetia,

the secretary-general of the United Liberation Front of Assam (ULFA), who
was charged with treason in India. The petitioner inter alia argued that Mr
Chetia was fighting for the right of self-determination of the Assamese people,
which had evolved as a principle of international law. He relied particularly on
the jus cogens nature of the right of self-determination.73 In fine, the petitioner
submitted that Bangladesh had a legal obligation to grant him a refugee status
(political asylum) under international law, emphasising that Mr Chetia’s extra-
dition would violate international law and articles 25, 31, 32, and 145A of the
Constitution.74 Given that self-determination is a core principle of CIL, what
was not clear from the petitioner’s submission is how the purported extradi-
tion of Mr Chetia would violate the right of self-determination of the people
of Assam, which refers to a collective right of a people. The Court, in its turn,
pointed out that the expression ‘self-determination’ does not occur in article
25 of the Constitution. The Court dismissed the petition on the domestic law
consideration namely, the Special Powers Act 1974 and the Extradition Act
1974. It did not address the petitioner’s submission that Bangladesh had a
legal obligation to grant Mr Chetia refugee status under international law.75
In several cases, the Supreme Court has referred to non-binding soft instru-
ments such as declarations, UN resolutions, recommendations, guidelines, and
so on if they were thought to have any persuasive authority.76 This trend has
been best portrayed in the case of Hussain Muhammad Ershad v Bangladesh.77
The appellant, in this case, challenged the confiscation of his passport on the
grounds of violation of fundamental rights as well as article 13 of the Universal
Declaration of Human Rights (UDHR). Justice AM Mahmudur Rahman who
wrote the majority opinion reasoned that the UDHR was not a part of munici-
pal law and, therefore, was not binding.78 On the contrary, Justice Bimalendu
Bikash Roy Choudhury in his separate opinion argued that article 13 of the
UDHR having been recognised in article 36 of the Constitution applied to
the facts of the case.79 While Justice Rahman and Justice Choudhury held mu-
tually exclusive opinions, Latifur Rahman, the chief justice, agreed with them
both, without ofering any reasoning at all.80
Also, it appears that there are cases in which the Supreme Court should
have been more careful in mentioning international legal terminologies and

73 ibid 319, paras 3–4.

74 ibid 319, 322, paras 3, 6.
75 ibid 322–324, paras 6–7.
76 See the BNWLA (n 68) 424, para 33; Ershad (n 59) para 3; Professor Nurul Islam v Bangladesh
(2000) 20 BLD (HCD) 377, 386, para 9; Dr Shipra Chaudhury v Bangladesh (2009) 29 BLD
(HCD) 183, 186, para 24.
77 Ershad (n 59).
78 ibid 74–75, para 12. Bangladesh was not yet a party to the ICCPR when the case was decided.
79 ibid 70, para 3.
80 ibid (per Latifur Rahman CJ).
56 Kawser Ahmed

concepts in the judgments. For example, the Court has mentioned Bangladesh
as a ‘signatory’ vis-à-vis certain treaties in several cases whereas Bangladesh is
a ‘party’ to those treaties.81 The diference between a ‘party’ and a ‘signatory’
is that while the former denotes a state which has consented, via ratification,
accession, etc, to be bound by a treaty, the latter generally signifies that a state
that may formally assume the treaty obligations in the future subject to the
ratification of the treaty concerned.82 In the BLAST case,83 the Supreme Court
characterised the infliction of lashes on a woman by some village leaders/opin-
ionators as a form of ‘torture’ under the UNCAT and the International Cov-
enant on Civil and Political Rights (ICCPR), overlooking the fact that the two
treaties do not conceive of torture in the same manner.84 Especially, it begs the
question of whether the infliction of lashes by persons who are not themselves
public ofcials nor did ostensibly commit the alleged act at the instigation of
any public ofcial constitutes torture under the UNCAT.
It is also noticeable that the Court, while referring to treaty provisions,
sometimes omitted to take account of Bangladesh’s reservations and objec-
tions of other states (if any) to those reservations.85 For example, the Court’s
reference to article 16 of the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) in Dr Shipra Chaudhury could
have been couched in a diferent language had it considered Bangladesh’s res-
ervation to paragraph 1(c) of the said provision.86 Moreover, the Court, in
some cases, omitted to mention international treaties which were more di-
rectly relevant to the subject matter of the case. For example, the reference to
UNCAT would have been more relevant than CEDAW in the BNWLA case
because of the subject matter of the case (i.e., sexual harassment of women and
girl children at workplaces and educational institutions).87

Conclusion
The relationship between domestic law and international law in Bangladesh,
despite the absence of any specific constitutional provision regarding the

81 See Professor Nurul Islam (n 76) 397 para 20; Dr Shipra Chaudhury (n 76) 186, para 23;
Roushan Mondal (n 70) 572, para 67; State v Metropolitan Police Commissioner (2008) 60
DLR (HCD) 660, 665, para 27. See also Hoque and Naser (n 5) fn 45.
82 The VCLT, art 2(1)(g). See, e.g., The United Nations, Treaty Handbook (eISBN-13 978-92-
1-055293-6, U.N. Sales No. E.12.V.1, 2012) 5.
83 The BLAST (n 41) 3, para 5.
84 See Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture,
or Other Cruel, Inhuman or Degrading Treatment or Punishment) (44th Session, 1992) pa-
ras 2–4 and 13. See generally, Nigel S Rodley, ‘The Definition(s) of Torture in International
Law’ (2002) 55(1) Current Legal Problems 467.
85 Kawser Ahmed, ‘Reservations to Human Rights Treaties: Doubtful Commitment to Human
Rights’, The Daily Star (Dhaka, 13 December 2016) 12.
86 Dr Shipra Chaudhury (n 76) 186, para 23.
87 The BNWLA (n 68) 423–424, paras 28–30.
 The Constitution of Bangladesh and international law 57

subject, is not unclear. Based on the structural and purposive interpretation

of the Constitution, it has been argued in this chapter that the constitutional
design leaves no choice for Bangladesh but to follow dualism. The analyses of
Constituent Assembly debates, legislative practice, and judicial decisions show
that neither does the constitutional normative framework approve of interna-
tional treaties as a source of domestic law, nor has the judiciary directly ap-
plied international treaties. Consequently, the chapter strongly disagrees with
the view that Bangladesh is inching towards ‘creeping monism’ in its practice
regarding the implementation of international law.88

88 Haque (n 4).