Presenter Type
UNO Graduate Student (Masters)
Major/Field of Study
History
Advisor Information
Mark Scherer, Professor, History Department, UNO.
Location
CEC RM #230
Presentation Type
Oral Presentation
Start Date
22-3-2024 10:30 AM
End Date
22-3-2024 11:45 AM
Abstract
American Police Power Doctrine: The Origin of the Reasonable Restriction Clause of the Bangladeshi Constitution
Bangladesh got independence through a bloody war in 1971. One of the commitments of the founding fathers of Bangladesh was to ensure fundamental rights for the people of East Pakistan. However, when the framers of the Constitution started drafting, they tried to put some limitations and restrictions upon fundamental rights. The Constitution of Bangladesh guaranteed fundamental rights, but it also put reasonable restrictions on freedom of assembly, freedom of association, and freedom of speech.[1] This paper is going to focus on freedom of speech.
According to Article 39(1) of the Constitution of Bangladesh, freedom of thought and conscience is guaranteed.[2] Freedom of speech and press are also ensured under Article 39(a,b) of the constitution.[3] On the one hand, freedom of speech is guaranteed, on the other hand, the Constitution puts reasonable restrictions upon freedom of speech imposed by law. According to Article 39 (2), “freedom of thought, conscience, and speech are subject to any reasonable restrictions imposed by law in the interests of the state, friendly relations with foreign states, decency or morality, or in relation to contempt of court, defamation or incitement to an offense”.[4]
The framers of the Constitution of Bangladesh had given many different explanations behind imposing restrictions on freedom of speech. They have provided examples from the Constitution of the Soviet Union, East Germany, Poland, and India. They justified the restrictions upon the freedom of speech by saying that the constitutions of almost every country around the world have reasonable limitations on freedom of speech. There is no country in the world that gives unlimited freedom of speech. However, one of the members of the parliament of Bangladesh argued that there were no restrictions on the Bill of Rights of the United States. Asaduzzaman Khan, one of the members of the Constitution Drafting Committee replied that it was true there was no restriction on the Bill of Rights in the American Constitution, but it had a Police Power doctrine which was used for controlling the unprotected speech of the people.[5] This paper is going to argue that the Police Power doctrine does not deal with freedom of speech in the United States, rather it deals with maintaining public health and safety. This paper also argues that the mentality of the Constitution’s writers for incorporating the Reasonable Restriction clause were shaped by their Cold War context, their colonial experience, and their changing mindset, which resulted in reasonable restrictions and limitations on freedom of speech.
[1] The Constitution of Bangladesh Article 37-39
[2] Ibid Article 39(1)
[3] Ibid Article 39(a.b)
[4] Ibid Article 39(2)
[5] Md Abdul Halim (Collector and Editor), Bangladesh Constituent Assembly Debate-1972, Dhaka: CCB Foundation, 2014, page 260
American Police Power Doctrine: The Origin of the Reasonable Restriction Clause of the Bangladeshi Constitution
CEC RM #230
American Police Power Doctrine: The Origin of the Reasonable Restriction Clause of the Bangladeshi Constitution
Bangladesh got independence through a bloody war in 1971. One of the commitments of the founding fathers of Bangladesh was to ensure fundamental rights for the people of East Pakistan. However, when the framers of the Constitution started drafting, they tried to put some limitations and restrictions upon fundamental rights. The Constitution of Bangladesh guaranteed fundamental rights, but it also put reasonable restrictions on freedom of assembly, freedom of association, and freedom of speech.[1] This paper is going to focus on freedom of speech.
According to Article 39(1) of the Constitution of Bangladesh, freedom of thought and conscience is guaranteed.[2] Freedom of speech and press are also ensured under Article 39(a,b) of the constitution.[3] On the one hand, freedom of speech is guaranteed, on the other hand, the Constitution puts reasonable restrictions upon freedom of speech imposed by law. According to Article 39 (2), “freedom of thought, conscience, and speech are subject to any reasonable restrictions imposed by law in the interests of the state, friendly relations with foreign states, decency or morality, or in relation to contempt of court, defamation or incitement to an offense”.[4]
The framers of the Constitution of Bangladesh had given many different explanations behind imposing restrictions on freedom of speech. They have provided examples from the Constitution of the Soviet Union, East Germany, Poland, and India. They justified the restrictions upon the freedom of speech by saying that the constitutions of almost every country around the world have reasonable limitations on freedom of speech. There is no country in the world that gives unlimited freedom of speech. However, one of the members of the parliament of Bangladesh argued that there were no restrictions on the Bill of Rights of the United States. Asaduzzaman Khan, one of the members of the Constitution Drafting Committee replied that it was true there was no restriction on the Bill of Rights in the American Constitution, but it had a Police Power doctrine which was used for controlling the unprotected speech of the people.[5] This paper is going to argue that the Police Power doctrine does not deal with freedom of speech in the United States, rather it deals with maintaining public health and safety. This paper also argues that the mentality of the Constitution’s writers for incorporating the Reasonable Restriction clause were shaped by their Cold War context, their colonial experience, and their changing mindset, which resulted in reasonable restrictions and limitations on freedom of speech.
[1] The Constitution of Bangladesh Article 37-39
[2] Ibid Article 39(1)
[3] Ibid Article 39(a.b)
[4] Ibid Article 39(2)
[5] Md Abdul Halim (Collector and Editor), Bangladesh Constituent Assembly Debate-1972, Dhaka: CCB Foundation, 2014, page 260