Democracy and Human Rights Surendra Kumar Sinha Senior most Judge of the Appellate Division and Chairman of Bangladesh Judicial Service Commission.

The topic that you have selected is a pressing issue of the

day in the national as well as in international area. Democracy,

according to the dictionary definition ‘is a form of government

in which the Supreme Power is vested in the people collectively,

and is administered by them or by officers appointed by them;

the common people; a state of society characterized by

recognition of equality of rights and privileges for all people;

political, social or legal equality’ 1 . Freedom and democracy are

often used interchangeably, but the two are not synonymous.

Democracy is one of the universal core values and principles of

the United Nations. In democracies, the use of arbitrary power

is considered as an anathema to the rule of law. Fundamentally,

constitutional limits on power, a key feature of democracy,

requires adherence to the rule of law. In short, democracy is

the institutionalization of freedom. For this reason, it is

possible to identify the time-tested fundamentals of

constitutional Government human rights and equality before the

law that any society must possess to be properly called

democratic.

One of the great mysteries of the twentieth century is why,

for its first forty years, there was virtual silence of

1 The Chambers Dictionary, 10 th Edition.

September 15, 2013

2

Universal Human Rights from European intellectuals, politicians

and public figures. Even as Jews in Germany were forced out of

jobs and professions then into labour camps, even at kulaks,

then old Bolsheviks and later millions of innocent citizens were

exterminated in the Soviet gulag, still the notion of protecting

human rights was not raised either at the League of Nations or

in academic journals or the popular press. The Universal

Declaration of Human Rights was drafted by the Human Rights

Commission after receiving a detailed report on the prosecution

evidence at the Nuremberg trials. The killing of ‘useless

eaters’, the Einsatzgruppen orders to kill indiscriminately,

the gas chambers, Mengele experiments, ‘night and fog’ decrees

and the extermination projects after Kristallnacht were at the

forefront of their minds and provided the examples to which they

addressed their drafts. 2 Thus the first draft of Article 3

“Everyone has a right to life, liberty and security of person’

(originally went on ‘except in cases prescribed by law’) until

it was realised how many had been put to death under perfectly

valid laws passed by the Nazis.

What emerged was not a legal guarantee but a ‘declaration’

made by the General Assembly, putting beyond doubt the nature

and meaning of the pledge to respect human rights contained in

Article 55c of the Charter. 3 What it did not do was to impose

any legal duty on member states to comply with human right

standards. This could have been accomplished, as several small 2 Johannes Morsink, ‘world war Two and the Universal Declaration’, HRQ 15 (1993) P.357 3 Charter of the United Nations, Chapter IX: Interna tional Economic and social Co-operation.

3

countries urged, by incorporating a bill of rights in the

Charter: the move was opposed by all the major powers, conscious

of the motes in their eyes. France and United Kingdom had no

desire at the time to grant any form of democracy to their

colonies; all the southern states of United States had ‘Jim

Crow’ laws discriminating against blacks; there was millions

still consigned without trial to sovict gulags. The Super powers

did not adhere to the declaration. This vagueness was quite

deliberate; no great power was prepared in 1945 to be bound by

the international law in respect of treatment of its own

subjects. The Universal Declaration of Human Rights was adopted

by forty-eight members of the General Assembly on 10 th December,

1948.

One man, one march, one speech, one dream that started

quest for social change by confronting United States a

differently. Martin Luther King Jr. who joined Jefferson and

Lincoln in the ranks of men who’ve shaped modern America. The

‘Dream’ speech, along with the Civil Rights Act 1964 and the

Voting Rights Act, 1965 allowed, finally broke the bonds of

segregation and Jim Crow that had imprisoned America’s final

dreams. On August 28, 1963 he said ‘I say to you today my

friends.. even though we face the difficulties of today and

tomorrow, I still have a dream,..It is a dream deeply rooted in

the American Dream. I have a dream that one day this nation will

rise up, live out the true meaning of its creed; ‘We hold these

truths to be self evident, that all men are created equal..I

4

have a dream that my four little children will one day live in a

nation where they will not be judged by the colour of their skin

but by the content of their character..’

I would like to go back to the moot question as to what is

a ‘right’ and what exactly is a ‘human right’. One cannot

comprehend the significance and utility of various Conventions,

Declarations or Treaties such as, The Declaration of St.

Petersburg of 1868, the first Hague Conference of 1899 followed

by Hague Rules of Air Warfare of 1923 and the Convention for the

Protection of Civilian Population Against New Engines of War

adopted by the International Law Association in 1938, brought

about semblance of some order, the Geneva Conventions of 1927

and 1949, The Treaty of Paris of 1856, The Treaty of Berlin of

1878, Polish Treaty of 1919 etc, on the subject unless one

appreciates these concepts in a proper perspective.

The ordinary meaning of the word ‘Right’ in the sense we

are discussing, concerns that which a person has just claim to,

or that which belongs to a person by law, privilege, tradition

or nature. When we talk of human rights, we are talking of a

concept that draws substantially from what we traditionally

refer to as the natural rights. The concept of traditional

natural rights is larger in scope, one of which the subject of

human rights is indeed a part. Natural rights are necessarily

those rights that have been bestowed upon human beings by nature.

The very fact that ‘A’ being created by nature vests in that

5

being certain rights. The most basic of these natural rights are

the right to life and the right of liberty.

Since humen are social beings, they establish for

themselves organisations known as society or, politically

speaking, the state. This naturally required a balance to be

created between individual’s rights and public interest. Human

rights thus came to be evolved as those of the natural rights

which are fundamental to the very existence and growth of a

human being and which every civilized society would like to

ensure into them, albeit its own larger interest. The concept of

human rights has to be of universal application. There can not

be a different set of human rights for one part of the humanity

and another for a different part of the humanity. Prof. Louis

Henkin of Columbia University in an article describes this trait

in the following words:

‘They do not differ with geography or history, culture

or ideology, political or economic system or stage of

development. They do not depend on gender or race,

class or ‘status’. To call them ‘rights’ implies that

they are claims ‘as of right’ not merely appeals to

grace, or charity or brotherhood or love; they need to

be earned or deserved. They are more than aspirations

or assertions of ‘the good’ but claims of entitlement

and corresponding obligation in some political order

under applicable law, if only in a moral order under a

moral law.’

6

The right to a healthy environment is now to be found in a

number of regional human rights instruments around the globe.

Article II of the Additional Protocol to the Inter-American

Convention of Human Rights (1994) popularly known as the San

Salvador Protocol States: (a) everyone shall have the right to

live in a healthy environment and to have access to basic public

services; (b) the state parties shall promote the protection,

preservation and improvement of the environment.’ The Convention

of the Rights of the Child 1989, article 24(2)(c) requires state

parties in the matter of combating disease and malnutrition to

take into consideration, “the damage and risks of environmental

pollution” . The African Charter on Human and People’s Rights

1981 proclaims in Article 24(1) a right to ‘a general

satisfactory environment favourable to their development.’ In

the final report on Prevention of Discrimination and Protection

of Minorities listed amongst other including: (a) the right to

freedom from pollution, environmental degradation and activities

which threaten life, health or livelihood; (b) protection and

preservation of the air, soil, water, flora and fauna; (c)

healthy food and water; a safe and healthy working environment.

In the Stockholm Declaration 1972, it was declared “Man has

the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits

a life of dignity and well being, and he bears a solemn

responsibility to protect and improve the environment for

present and future generations”. In the United Nations General

7

Assembly, resolution No.45/94 recalled the language of Stockholm,

stating that all individuals are entitled to live in an

environment adequate for their health and well-being. All global

and regional human rights bodies have accepted the link between

environmental degradation and internationally-guaranteed human

rights. The European Convention on Human Rights has also been

invoked in environmental matters. In Europe, most of the victims

invoke either the right to information or the right to privacy

guaranteed under the Convention. Under the said Convention and

Protocol, it has been recognized that pollution or other

environmental harm can result in a breach of one is right to

privacy and family life.

In Argentina, its Constitution recognizes since 1994 the

right to a healthy and suitable environment. In Columbia, the

right to the environment was incorporated in 1991. Our

Constitution though does not explicitly provide for the right to

healthy environment, Article 31 states that every citizen has

the right to protection from “action detrimental to the life,

liberty, body, reputation, or property”, unless these are taken

in accordance with law. The words ‘action detrimental to the

life’ also encompasses any action which is detrimental to

healthy life. There are different subordinate laws on the

subject, such as, the Removal of Wrecks and Obstructions in

Inland Navigable Water-ways Rules, 1973; The Bangladesh Wild

Life (Preservation) Order, 1973; The Bidi Manufacture

(Prohibition) Ordinance, 1975; Bangladesh Paribesh Sangrakhan

8

Ain, 1975; Paribesh Sangrakhan Bidhimala, 1997 and The Jaladhar

Sangrakhan Ain, 2000 etc.

The Preamble of the Universal Declaration of Human Rights

is of utmost importance. It envisioned ‘the foundation of

freedom, justice and peace in the world’ and in the wake of

instances of ‘barbarous acts which have out-reached the

conscience of mankind’ showing ‘disregard and contempt for human

rights’ , the need for the advent of a world in which human

beings shall have inherent dignity and ‘equal and inalienable

rights, enjoying freedom of speech and belief and freedom from

fear and want. The principles proclaimed in the Charter had

shown recognition of ‘the inherent dignity and of the equal and

inalienable rights of all members of the human family’ as the

foundation of freedom, justice, and peace in the world. It

naturally flowed from the Universal Declaration of Human Rights

that the ideal of free human beings enjoying civil and political

freedom from fear and want could be achieved only if conditions

were created whereby everyone must enjoy his civil, political,

economic, social and cultural rights.

Article 31 of Bangladesh Constitution added that the

citizens and residents of Bangladesh have the inalienable right

to be treated in accordance with law. Environment is viewed more

as a resource basis for the survival of the present and future

generations. Man has the fundamental right to freedom, equality

and adequate conditions of life, in an environment of quality

that permits a life of dignity and well being and he bears a

9

solemn responsibility to protect and improve the environment for

the present and future generation. The persons who are

responsible to protect environment and ecosystem may be

unconcerned about the enormity of the injury which it inflicts

on the public health at large, the courts have no justification

for ignoring the seriousness of the subject.

So every person, organisation and institution has an

obligation and duty to protect environment. Every person and

institution has to play the assigned role to the best of one’s

capability to save Bangladesh’s forest, wetland and wild life.

Environmental degradation can be either localised, such as, the

depletion of the nation’s wetland, forest resources, open spaces

or global, such as destruction of the Ozone layer. There are

various laws and rules for protection and preservation of

environment, but protection and preservation of the environment

is still a passing issue of the day despite such laws. The main

cause for environmental degradation is lack of effective

enforcement of various laws. The international community has

increased its awareness of the relationship between

environmental degradation and human right abuses. Human rights

and environmental law have traditionally been envisaged as two

distinct independent spheres of rights. Now-a-days, the peoples’

perception is aroused to the notion that the cause of protection

of the environment can be promoted by setting it in the

framework of human rights, which has by now been established as

a matter of international law and practice.

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Our Supreme Court of Bangladesh, over a period of forty

one years, is growing into an institution wielding enormous

power in every sphere of human activity. After an initial

resistance, the Executive and Legislature yielded to the will of

the Apex Court of the country, which gradually attained a

position of preeminence among the three organs of the Republic.

Most noticeable aspect of the progress of the Supreme Court is

that it shed along the way of limitation inherent in the

exercise of judicial power. It, consequently, became a

powerhouse of judicial activism. The awesome power exercised by

the Supreme Court could be seen by its pronouncements

encompassing every sphere of the nation’s activity – political,

economic, social, environmental. There was no grievance too

insignificant to attract its palliative and curative

jurisdiction. Striking down laws and executive action was part

of its prerogative. The founding fathers never dreamt that

Parliament could be rendered accountable to the Supreme Court

for exercising its plenary power of amending the Constitution,

which according to Parliament was a constituent power, by the

court evolving the novel doctrine of ‘basic structure of the

Constitution’ nor did the Parliament ever contemplate that a

day could come when the Executive would no more have a

significant voice in the confirmation of the Judges of the High

Court Division contrary to the provisions of the Constitution,

11

which expressly vested the power of appointment and confirmation

in the President. 4

When the Executive fails to address the issues of the

nation, the Appellate Division took pivotal role and gave

direction to follow the rule of law. In Mohiuddin Farooque 5 it

extended the parameter of ‘Human Rights’ and ‘aggrieved person’.

In the absence of any provision like ‘The State shall endeavour

to protect and improve the environment and to safeguard the

forests and wild life of the country’ 6 in our Constitution, yet

the Appellate Division extended its jurisdiction taking aid of

Articles 27, 31 and 32 of the Constitution. It observed, ‘All

citizens are equal before law and are entitled to equal

protection of law in accordance with Article 27. Article 31

gives right to a citizen to enjoy the protection of law and to

be treated in accordance with law. In particular, it guarantees

that no action detrimental to the life, liberty, body,

reputation or property of any person shall be taken except in

accordance with law.... It encompasses within its ambit, the

protection and preservation of environment, ecological balance

free from pollution of air and water, sanitation without which

life can hardly be enjoyed.’

On the question of ‘aggrieved person’ it observed ‘Article

102(1) is, therefore, a mechanism for the enforcement of

Fundamental Rights which can be enjoyed by an individual alone

4 Idrisur Rahman (Md) V. Bangladesh, 61 DLR 523(FB). 5 Mohiuddin Farooque V. Bangladesh, 49 DLR(AD)1. 6 Article 48A of the Constitution of India.

12

insofar as his individual rights are concerned, but which can

also be shared by an individual in common with other when the

rights pervade and extend to the entire population and territory.

Article 102(1) cannot be divorced from part III of the

Constitution.’

In an another landmark judgment, in Metro Makers and

Development Ltd. 7 the Modhumati Model Town Project under

Bilamalia and Bailarpur Moujas under Savar police station was

declared unlawful and the Metro Makers are directed to restore

the wetlands of those two Moujas to its original position. The

Appellate Division noticed that the project near Ameen Bazar

within those Moujas is situated within sub-flood flow zone, and

the Modhumati Project started filling earth in the substantial

part of the Zone with an object to implement an unauthorised

non-permitted satellite township. The Appellate Division in

unequivocal terms observed amongst others:

(a) the rivers and flood plains are the provider of water

both for agricultural irrigation and for urban uses;

(b) land development within the designated flood areas of

DMDP8 structure plan should be controlled in order to

avoid obstructions of flood flow, otherwise there would

be adverse hydraulic effects, such as, the rise of flood

water levels and changes in flow direction – any

7 Civil Appeal No. 256 of 2009. 8 Dhaka Metropolitan Development Plan.

13

development work within flood plains should be made

without restricting flood flow;

(c) land development for residential, commercial and

industrial use by raising the level of land by filling

earth should be strictly prohibited in main Flood-Flow

Zone;

(d) any person, body, organisation, company makes

development and/or changes ‘wetland’ within the Master

Plan area without permission of the authority will be

treated as an offence and be punishable under section 8

of Act XXXVI of 2000............ .

The right to life has been used in a diversified manner in

Bangladesh. It includes, interalia, the right to survive as a

species, quality of life, the right to live with dignity and the

right to livelihood. However, these are negative rights, and not

positive, self-excutory rights, such as is available under the

Constitution of the Philippines. It states; ‘ The state shall

protect and advance the right of the people to a balanced and

healthful ecology in accord with the rhythm and harmony of

nature. 9 ’ In contrast Article 32 of our Constitution states; ‘No

person shall be deprived of life or personal liberty save in

accordance with law.’ Referring to the decision of the

Appellate Division in Mohsinul Islam 10 , the High Court Division

in Saleemullah 11 held that the state is bound to protect the

9 Section 16, Article II of the 1967 Philippine Const itution. 10 RAJUK V. Mohsinul Islam, 53 DLR (AD) 79. 11 SAlemullah V. Bangladesh, 55 DLR 1.

14

health and longevity of the people free from threats of man-made

hazards unless that threat is justified by law and as such,

action of authorities in converting open space for park into

residential plots is violative of the fundamental rights

guaranteed. In the same view, it has been held in Dr. Mohiuddin

Farooque 12 that the public functionaries are under an obligation

to preserve pollution free environment to protect life from all

its ill-effects and necessary direction was given to them to

take sufficient measures to control pollution by industries and

factories. For preservation of environmental and ecological

balance, the court directed RAJUK to maintain Gulshan-Baridhara

lake as per lay out plan. 13 The High Court Division found

imposition of Value Added Tax on receipts of medical and dental

treatment, pathological laboratory and fees of specialised

doctors to be ultravires Articles 18 and 32. 14

If the framers of the Constitution intended to apply the

same standard of reasonableness to a law involving deprivation

of life or personal liberty, making a separate provision as in

Article 32 was unnecessary.

In the American jurisdiction, statutes impairing life and

personal liberty are subjected to strict scrutiny by the court. 15

A law providing for deprivation of life or personal liberty must

be objectively reasonable and the court will inquire whether in

12 Dr. Mohiuddin Farooque V. Bangladesh, 48 DLR 438. 13 Human Rights and peace V. Bangladesh, 2010 DLD 125. 14 Advocate Zulhasuddin V. Bangladesh, 2010 BLD 1. 15 Lochner V. New York, (1905) 198 US 45.

15

the judgment of an ordinary prudent man the law is reasonable

having regard to the compelling, and not merely legitimate,

governmental interest. It must be shown that the security of the

state or of the organised society necessitates the deprivation

of life or personal liberty. A law is not arbitrary merely

because the authority may abuse the power. 16

Public Interest litigation is one of the many innovations

that give life to the Supreme Court of Bangladesh being the

bulwark for the maintenance of democracy and a bastion of civil

liberties. It is a patent instrument of social justice to bring

about equality in result. It is used only after careful scrutiny

of the issue in hand, and directions given only when necessary.

The only function of the court is to protect the rights of the

people, and all its actions are directed to further this

function. It must be realised that before criticizing the court,

which serves as the whip hand of the people towards any wrong

being done by the state, the other organs of governance latter

must make sure that their conduct is explanatory and without

fault, so as to deserve the trust of the people.

The final cause of law is the welfare of the society. The

rule that misses its aim cannot permanently justify its

existence. Ethical considerations can no more be excluded from

the administration of justice which is the end and purpose of

all civil laws than one can exclude the vital air from his room

16 Ahmed Noor Mohmed Bhatte V. Gujrat, AIR 2005 S.C. 2 115.

16

to live. Another aspect to be highlighted is the Latin maxim

Boni judicis est ampliare jurisdictionem, that law must keep

pace with society to retain its reliance. It must continue to

govern our justice delivery system. If the society moves but the

law remains static, it shall be good for neither of them.

It is sometimes said International Laws, particularly

Customary International law over the years of the commitment has

been constituted a comprehensive legally binding system for the

promotion and protection of human rights. International law is

perceived as a law between states whereas national law applies

within a state, regulating the relations of its citizens with

each other and with that state. Neither legal order has the

power to create or alter rules of the other. When international

law applies in whole or in part within any national legal system,

this is because of a rule of that system giving effect to

international law. In case of a conflict between international

law and national law, the dualist would assume that a national

court would apply national law, or at least that it is for the

national system to decide which rule is to prevail. 17

Once a national Court has determined that international law

is in some way applicable to a matter before it, it falls to the

court to determine how that law is to sit alongside any national

law that may also be applicable. Indeed, the increasing

penetration of international law into the domestic sphere has to

an extent muddied the distinction between the two. Thus

17 Browlie’s Principles of Public International Law, E ighth Edn. By James Crawford P.48

17

international law is increasingly finding its way into national

courts, and judges are increasingly finding themselves called

upon to interpret and apply it – or at least to be aware of its

implications.

Again, the approach of a national court to international

law will be largely determined by the rules of the jurisdiction

in question. But certain issues common to many or all

jurisdictions may be identified.

(a) Courts may be called upon to adjudicate in conflicts

between a municipal law on the one hand, and a rule of

customary international law on the other. Many

municipal systems now appear to have in one way or

another accepted customary international law as ‘the

law of the land’ even where no constitutional

provision is made, but questions remain as to how it

fits within the internal hierarchy of a national

system. As a general (but by no means absolute) rule,

an extant statute will prevail over a rule of

customary international law if no reconciliation is

possible by way of interpretation. (Italics Supplied).

(b) In other (‘dualist’) systems where the conclusion of a

treaty is an executive act, it will be for the

legislature to implement the treaty as part of

domestic law – insofar as this may be required. In

such a system the treaty is applied by the courts as

mediated by the legislation, and legislation will

18

prevail, again unless the issue can be resolved by

interpretation.

(c) When applying international law rules, municipal

courts may find it necessary to develop the law,

notably where it is unclear or uncertain. This will

include consideration of how the international rule is

applicable in a domestic context, a process which has

been notable, for example, in the field of state

immunity.

(d) Even in monist systems, the court may need to

determine the extent to which a rule of international

law may be directly applied. For example, a treaty

(even if duly ratified and approved in accordance with

constitutional processes) may be held ‘non-self-

executing’, that is to say, inapplicable without

further specification or definition by the legislature.

(Italics suppliedd).

(e) A further question is the extent to which the

executive may intervene in the court’s application of

international law. Thus, when considering issues such

as the recognition of states and governments, state

immunity and diplomatic immunity the courts may accept

direction from the executive. Caution must be

exercised, however, particularly in the European

context, with the European Court of Human Rights

holding in Beaumartin V. France that the practice in

19

extreme forms is incompatible with the right of access

to ‘an independent and impartial tribunal’.

(f) A court may be called upon under the rules of private

international law to apply foreign law. If it is

alleged that the applicable law is in conflict with

international law, the court may be required to

determine whether the act or law of a foreign state

is contrary to its international obligations.

(g) Finally, the court, confronted with an intricate issue

of international law, may simply concede that it is

beyond its capacity to decide, that is, non-

justiciable. As will be seen, the doctrine exists in

England and in other common law jurisdictions. 18

Courts are not representative bodies. They are not designed

to be a good reflex of a democratic society. Their essential

quality is detachment, founded on independence. History teaches

that independence of judiciary is jeopardized when courts become

embroiled in the passions of the day and assume primary

responsibility in choosing between competing political, economic

and social pressure. 19

In all democratic constitutions, or even those Societies

which are not necessarily democratic or not governed by any

Constitution, the need for competent, independent and impartial

judiciary as an institution has been recognised and accepted. It

18 Ibid. P.57-59 . 19 Dennis V. U.S. 341 US 494, 525.

20

will not be an exaggeration to say that in modern times the

availability of such judiciary is synonymous with the existence

of civilized society. There are constitutional rights, statutory

rights, human rights and natural rights which need to be

protected and implemented. Such protection and implementation

depends on the proper administration of justice which in its

turn depends on the existence and availability of an independent

judiciary. An independent judiciary is the backbone of a good

judicial governance. Rule of law and judicial review are the

basic features of our Constitution and independence of judiciary

is an essential attribute of rule of law. Administration of

justice requires judiciary committed to the Constitution and law

of the land. Judiciary must, therefore, be free from pressures

or influence from any quarter.

Courts of law are essential to act and assume their role as

guardians of the rule of law and a means of assuring good

governance. Though it can be said that the source of judicial

power is the law but, in reality, the effective exercise of

judicial power originates from two sources. Externally, the

source is the public acceptance of the authority of the

judiciary. Internally and more importantly, the source is the

integrity of the judiciary. The very existence of the justice

delivery system depends on the judges who, for the time being,

constitute the system. Faith, confidence and acceptability

cannot be commanded; they have to be earned. And that can be

21

done only by developing the inner strength of morality and

ethics.

I would like to add a few words to you all present here.

Students are architects of a nation. Your legal education will

help determine how skilled and what type of a lawyer/judge you

become. I think discussing legal education is especially

pertinent to today’s topic because what education law students

receive will also deeply shape how justice will be dispensed in

the country in the years to come.

You should embrace the inter-disciplinary elements of your

education to get a well-rounded perspective on the world. Holmes

has told us in a sentence which is now classic that ‘the life of

the law has not been logic’ it has been experience.’ But Holmes

did not tell us that logic is to be ignored when experience is

silent. Whether through your classes or your own personal

efforts, learn about history, philosophy, science, literature

and art. These disciplines will serve you well as a lawyer or a

judge. The law is grounded in history and philosophy. Many of

the biggest controversies in society today involve science.

Literature and art will help you learn that the world can be

understood in many different ways. Second, think about theory

while you are here. When you read a case don’t just examine the

facts and the finding, but reflect upon the theory and context

behind the decision. There are still many areas of law that need

to be more fully explored by scholars and students. When you

22

study the theory behind the law you are learning principles you

can apply to any case.

Third, learn about law and globalization while studying law

at any level. Harold Koh asks law students to consider three

aspects of law and globalization; the law as globalization, the

law of globalization and the law in globalization. 20 Let us

examine what Koh wanted to say to the students.

The Courts of different countries look to the decisions of

other courts for guidance to a topic before them. This increased

interconnectivity brings advantages and disadvantages. It is an

advantage because we can learn from their experiences. We can

take into consideration of the reasoning of courts in similar

situations. We can become overwhelmed by the shear immensity of

information we are presented with. The development of law in

those countries may be partly relevant or not relevant at all.

It is also a learning from a globalized world that makes a good

lawyer or a judge. The globalization comes with its own unique

set of law and legal institutions, whether it is human rights,

treaties, labour law or trade law. It is imperative that we

understand and shape this emerging law.

The law as globalization – means that the spread of law

worldwide is a feature of globalization just like global

communication or global culture. The sharing of legal knowledge

between countries is not new. When the Constituent Assembly

drafted our Constitution, they looked to other countries for

20 Harold Koh, Deans of Yale Law School - welcoming sp eech 2006, 30 August 2006.

23

inspiration. Our Constitution’s political structure was

influenced by United Kingdom and India, the Fundamental Rights

by the United States and India, and the Directive principles by

India and Ireland. Law of globalization means that globalization

comes with its own unique set of laws and legal institutions,

whether it is human rights treaties or other trade law. An

increasing number of cases involve by this law of globalization.

We understand and shape this emerging law. The law in

globalization – here the word ‘law’ is used normatively, in that

law is not just a set of rules – dictators and tyrants can

impose those through force – but instead law has a moral

authority, law brings justice. We must understand how we can use

the law to blunt the harsh edges and control the dark sides of

globalization. 21

The struggle for securing human rights is an ongoing

process. It would not be wrong to call it an eternal struggle.

With all this, let us on this august occasion on the

‘International Day of Democracy’ renew our pledge to serve the

society, particularly the poor and disadvantaged sections and

ensure equal justice to all by promoting the human rights. I

express my sincere thanks to Sandra Feigning, Chief of Party-

USAID’s justice for all and Professor Shahnaz Huda, Chairperson

of the Department of Law, Dhaka University, for affording me

this opportunity to say a few words on this occasion. Thank you

all.

21 Y.K.Sabharwal, C.J. – ‘My dream of an ideal justice dispensation system’.