Interpreting Discrimination in the Constitutional context of Bangladesh

In Bangladesh, there is a prevalent common perception that unjust or unequal treatment results in discrimination. For example, the High Court Division in the HRPB v. Jatiyo Sangsad [67 DLR (2015) 191] held that section 32Ka of the Anti-Corruption Commission Act, 2004 was discriminatory because it created unjust classification (Para 26). The Court explained that the requirement of having prior sanction from the government to prosecute judges, magistrates or public servants for corruption under section 32Ka is inconsistent with article 27 of the Constitution, which provides that all laws should be non-discriminatory and reasonable (Para 30). Noticeably, the Court used the principles of non-discrimination and equality before law synonymously in its reasoning. This essay, however, relying on the textual interpretation of the relevant provisions of Bangladesh Constitution argues that discrimination, in the constitutional context of Bangladesh, occurs when prejudicial distinction is made strictly on the grounds of religion, race, caste, sex and place of birth. Distinction made on any other grounds or criteria does not amount to discrimination.

Article 27 of the Bangladesh Constitution provides that all citizens are equal before law and are entitled to equal protection of law. Article 28(1) of the Constitution provides that state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. If the aforesaid provisions are read together, it becomes crystal clear that an act of unjust or unequal treatment has not been envisaged as discrimination unless relatable to distinction made on the grounds of religion, race, caste, sex and place of birth. In other words, an act of discrimination among others should entail aspects of unjust or unequal treatment, but every unjust or unequal treatment per se is not discrimination. Moreover, benign classifications made on the grounds of religion, race, caste, sex and place of birth may not amount to discrimination if they do not result in any prejudicial consequence.

Most probably, the reason for treating non-discrimination and equality before law as synonymous concepts could be fairly attributed to the influence of international human rights instruments such as, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). For example, article 7 of the UDHR provides: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." Similarly, article 26 of the ICCPR provides: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." It deserves mention that both article 7 of the UDHR and article 26 of the ICCPR tried to conflate the principles of non-discrimination and equality before law. These instruments envisage non-discrimination as a means to achieve equal protection of law. However, unlike the UDHR or the ICCPR, non-discrimination as enunciated in article 28(1) of Bangladesh Constitution is a stand-alone concept and has not been linked up with the principle of equality before law. Similarly, the principle of equality before law as set out in article 27 has not been linked up with non-discrimination.

The writer is an Advocate, Supreme Court of Bangladesh.