RESEARCH TITLE Judicial Activism and Human Rights in Bangladesh

Judicial Activism and Human Rights in Bangladesh: A Study in context of Rohingya Crisis

Table of Contents:
1. Introduction.
2. Statement of the Problem.
3. Objective of the Study.
4. Research Question.
5. Significance of the Study.
6. Literature Review.
7. Research methodology.
8. Scope and Limitation of the Study.
9. Chapters.
10. Conclusion.
11. Bibliography.

Name of the Author:
Asfiha Akhter Astha
Student of 4th year
Department of Law
University of Asia Pacific?
Judicial Activism and Human Rights in Bangladesh:
A Study in context of Rohingya Crisis


1.1 Introduction:
Violation of human rights is a big concern overall in the world, and for protecting and promoting human rights, international legal instrumentalities have been initiated which relies on various treaty bodies operating under the UN supervision and in national perspective The Constitution. National protection of human rights also depends upon access to effective remedies for violation of rights. In this regard an effective remedy means “accessible, affordable, timely and effective” . Independence of judiciary, domestic legislation and right base institutions such as National Human Rights Organization, Anti-Corruption Commission, Legal Aid Organization etc. and effective coordination among executive, legislation and judiciary along with constitution protects the human rights in national arena. The judiciary is found to be acting as the protector of human rights through judicial review and judicial activism.
The role of judiciary has many facets such as judicial review, judicial supervision, judicial activisms and advisory jurisdiction of judiciary, but the present paper is highlighted only judicial activisms.
Identity crisis is a long bounded issue for the people of Rakhine state of Myanmar who are commonly known as “Rohingya”. Their contributions is unseen by their government to the economy and society yet their origin, ethnicity and identity have been questioned. They are deprived from their own citizenship, rights, education, home and even food.
Oppression and persecution of Rohingya frequently occurs in Rakhine province of Myanmar. In August 2017, Once again terrible violence was commenced by Myanmar’s military forces against Rohingya Muslim. They have fled Myanmar to Bangladesh and looking asylum in some other neighboring countries. The forced displacement in fact endorse the fact that they have been living in the country since hundreds of years, and it dispels the claim of the Myanmar government and some Buddhists Monks that they are migrants from Bangladesh.
The Myanmar government identifies them as “illegal Bengali immigrants to Myanmar”. The government of Bangladesh does not recognize them as Rohingya refugees from Myanmar and has defined them as “forcefully displaced Myanmar citizens”. Bangladesh has also become paranoid by the challenges of Rohingya Refugees, who were utterly ignored by all international communities, institutions and agencies for long time.
Human rights violations occur when associations by state (or non-state) actors abuse, ignore, or deny basic human rights (including civil, political, cultural, social and economic rights) and also when any state or non-state actor breaches any part of the UDHR(Universal Declaration of Human Rights ) treaty or other international human rights or humanitarian law.
In Bangladesh, human rights are violated under the headings of murder, political killings, extra judicial killings, mob lynching, unlawful arrest and detention etc. Though, Bangladesh has a deep-rooted awareness of human rights and fundamental freedom borne of the experience accompanying the nation’s birth. The problems seem to increase on the context of Rohingya Refugee. This paper is intended to discuss below on the judicial activism and human rights in Bangladesh on the Rohingya Refugee.

1.2 Statements of the Problem:
“Human Rights” is a set of legal and moral rights that can be claimed by any person as human being. Judicial Activism in a particular country can ensure the full-fledged exposure of Human Rights and can reach up to the mark the indivisibility of Human Rights. In present Situation Bangladesh is facing the obligation to achieve that mark due to the unwanted humanitarian crisis which emerged a big deal towards the whole nation internationally known as Rohingya Crisis. Procuring knowledge on judicial activism and Human Rights can bring a solvable solution of the Rohingya Refugee crisis which is the statement of our current problem.

1.3 Objectives of the study:
This research paper is intended to study the judicial activism and Human Rights of Bangladesh in context of afore mentioned Rohingya Crisis to bring out a brief sketch of assessment with the help of case study. In the process of doing above-mentioned assessment, it will also bring out possible grey areas of judicial activism and Human Rights in Bangladesh separately and dig-in in the Rohingya Refugee problem with mentioning the success stories in the past.
However, the specific objectives of the study may be as follows:
? To study the judicial activism itself and know in details about this phase of judicial phenomenon with the provision of adopting in real life.
? To briefly sketch Human Rights in Bangladesh and The Stand of Bangladesh in Human Rights.
? Brief History of Rohingya Refugees and their current situation in Bangladesh.
? Human Rights adhered towards the Rohingya Refugees in Bangladesh.
? Brief consideration in judicial activism and Human Rights in context of current Rohingya Refugee problem through few case study of present situation.
? To find out some reasonable assumption regarding Human Rights implementation and execution of judicial activism to bring a culpable solution to the profound Humanitarian crisis the Rohingyas and suggest some recommendations.

1.4 Research Question:
? What is The Judicial Activism?
? What is the stand of Human Rights in Bangladesh?
? What are the impacts of Rohingya crisis?
? What is the stand of judicial activism and Human Rights in the Rohingya crisis solution?

1.5 Significance of the study:
The Paper is intended to bring out detail study regarding the judicial activism which is a less visited arena of judiciary. It is also acknowledged by brief study of Human Rights. The Constitutional stand on Human Rights and its jurisdiction are brought out to study also. The practical case study of the present Rohingya crisis followed by brief analyzing is the main significance of the paper.

1.6 Literature Review:
The paper is based on Bangladesh Legal Aid Service Trust (BLAST), Article 101(2) of Bangladesh Constitution, Article 8 of the UDHR, Article 102(2) of Bangladesh Constitution, DLD, BLD, BELA, PIL and various other books and publications. The paper is a study on the previously mentioned topics in objectives of the study and it is normally followed over the topic conveniently. Simple, brief and conciseness was in the pretext for the paper to focus on the topic only.

1.7 Research Methodology:
The paper depends on the available information at hand in order to obtain a clear picture of the relevant issues. The sources of data are, Government Gazettes, High Court Circulars, Law Journals, Law Books, and Law Publications like Dhaka Law Reports (DLR), International publications, International Humanitarian journals etc.
Different Publications of ongoing Rohingya crisis, Humanitarian Reports, International News links, Internet are the main sources of data on Rohingya Refugee. Another source on Rohingya crisis is Bangladesh Army as they were bestowed the responsibility of handling the Refugee situation.
Preparation is assisted by the teachers, different books and different websites for collecting the topics related information and statistics.

1.8 Scope & Limitation of the Study:
The scope of this study is to study and learn in details about judicial activism and its impact on human rights which can be compared with the other instances around the globe.
The main limitation of this study is insufficiency of time. Due to the shortage of time, detail survey including home and abroad couldn’t be done which would have added extra feather to the learning.

1.9 Conclusion:
Human Rights is a vast arena to step-in but through judicial activism what are the conscious practice of it that can be determined in context of one of the present big blue The Rohingya Refugees. This paper is a short study on the rare stepped ground of law that is judicial activism, long stepped arena in the world the human rights and their combined execution towards Rohingya Refugees who are yet get back to their homeland.


2.1 Definition of Judicial Activism:
The term “Judicial Activism” was first was introduced by Arthur Schlesinger Jr . in a Fortune magazine of 1947. From the beginning the term is lacking behind a definite and concrete definition. Many Scholars have tried to put it in a place but all that gathered about this is few different but virtually same concept.
Often Judicial Activism is defined as Ruling the law as per personal views/opinions and legislating from the bench rather than existing reference of the government law. On the other hand some scholars put it as justice power and means to achieve social or national beneficiary under legislation of national constitution.
Schlesinger writes in his “supra note” that-“The Court cannot escape politics: therefore, let it use its political power for wholesome social purposes.”
Renowned Black’s Law Dictionary has put it i.e. judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
Constitutional scholar and leading law professor of U.S. David A. Strauss showed that Judicial Activism can be placed in three forms :
The act of overturning laws as unconstitutional.
Overruling judicial precedent.
Ruling contrary to a previously issued constitutional interpretation.

To summarize we can say that, “Judicial Activism” is a legal term which renders to the judgment of a case which is partially or fully based on that case’s judge’s personal or political judgments or rather consideration defying the existing law .

2.2 Uses of Judicial Activism
While the scholars have hardship on pining down the certainty of the origin of the word “Judicial Activism”, there is no doubt that it is first used by Joseph C. Hutcheson, Jr. He created history by the first recorded use of the term “judicial activism” in an opinion overruling a trial court decision in the case Theriot v. Mercer .
When courts do not make certain the interpretation of the law in particular cases where other judges would make, it may seem that court is making law rather than following existing law. Similarly judicial Activism sometimes decrees a rule over a certain issue which is not brought up in court in the present case.

2.3 Judicial Activism in Bangladesh
Judicial Activism is sighted very often in the law world. Almost every country having a constitution and a judicial system has sure case of Judicial Activism.