Enforcing economic and social rights through constitutional interpretation
As we remember the 52nd anniversary of its constitution, we are reminded of our nation's enduring pursuit of justice, equality, and freedom. However, the constitution's promises of economic and social rights, enshrined in our foundational principles, remain non-justiciable, ostensibly leaving the judiciary without a clear mandate to enforce them. It is a fitting time to explore how these rights, if properly interpreted and applied, could become enforceable by using internal and external interpretative aids, aligned with both the intentions of the constitution's framers and the needs of the people today.
The Preamble of Bangladesh's Constitution, as an internal aid to interpretation, captures both the struggles of the past and the aspirations for the future, offering a profound guide to interpreting economic and social rights. Declaring as a fundamental aim of the state the assurance of "fundamental human rights," the preamble does not differentiate between civil-political and socio-economic rights. This non-differentiation aligns economic and social rights—like social and economic freedom, justice, and equality—with the core duties of the state. Thus, implementing these rights is not an optional exercise but a fundamental obligation underlined by the preamble. The state's duty, as expressed here, is not limited to declarative aspirations; rather, it charges the judiciary, vested with the power of judicial review, to ensure the enforcement of these rights wherever possible.
For all latest news, follow The Daily Star's Google News channel. By referring explicitly to socio-economic ideals like social freedom, economic freedom, and justice "to be secured for all citizens," the preamble urges the judiciary to concretise these goals in real situations. The judiciary, therefore, has a critical role in interpreting and applying these principles, recognising economic and social rights as essential to achieving the preamble's broad aims.
The guiding function of Article 8(2) of the constitution, which mandates that the principles of state policy "shall be a guide to the interpretation of the Constitution and the other laws of Bangladesh," further empowers the judiciary. This phrase effectively grants the judiciary latitude to interpret any law or constitutional provision through the lens of these fundamental principles, bridging the gap between justiciable and non-justiciable rights. By engaging with the broad aims of Article 8(2), the judiciary can evaluate and analyse not only constitutional provisions but also the nation's laws to advance socio-economic rights.
This interpretive flexibility opens pathways for judicial action, allowing the courts to align statutory interpretations with the broader constitutional goals laid out in Article 8(2). The judiciary's responsibility extends beyond passive recognition of these rights; it encompasses an active role in evaluating provisions and laws in ways that fulfill Bangladesh's fundamental objectives. This interpretive scope requires judges to construe economic and social rights as integral components within the larger structure of justiciable rights and constitutional governance.
The conventional positivist approach interprets constitutional provisions in isolation, which has often restricted the enforceability of economic and social rights. In contrast, a structuralist approach, which emphasises the interdependence of constitutional provisions, reveals a more integrated understanding. Economic and social rights, when interpreted as essential components of broader, enforceable rights, enhance the holistic realisation of justice, equality, and social welfare. For instance, the right to life and personal liberty cannot be fully realised without adequate access to healthcare, education, and shelter—socio-economic rights that are essential to human dignity.
Judicial structuralism encourages a reading of the constitution that aligns enforceable and non-enforceable rights, allowing courts to implement the broader aims set forth by the framers. By interpreting the constitution as an interconnected whole, judges can move beyond the confines of positivism, recognising economic and social rights as foundational to fulfilling the constitution's promises.
While internal aids provide a starting point, external aids also play a crucial role in interpreting socio-economic rights. It is a common interpretative rule that, where language is clear, external aids are unnecessary. However, this approach guided by the positivist school, can overlook broader contextual meanings and legislative intent, potentially missing nuances essential to fulfilling constitutional objectives. Incorporating external aids enriches judicial interpretation, enabling a fuller understanding of statutory objectives, even when the text appears to have a straightforward meaning.
For Bangladesh, these external aids include the historical milestones that shaped the nation's identity and constitution. The War for Liberation in 1971 represents the culmination of a series of significant events, including the Language Movement (1948-1952), the United Front's victory in the 1954 provincial election, the 21-point programme, the 11-point demands, and the Proclamation of Independence. Each of these historical elements captures the evolving aspirations of the people, particularly the commitment to economic and social equality. Post-liberation documents, speeches, and debates from the Constituent Assembly also provide essential context to understanding these rights and underscore the importance of upholding the constitution's socio-economic ideals.
Certain constitutional terms—such as "material and cultural standard of living," "reasonable wage," "reasonable rest, recreation and leisure," and "progressively remove the disparity in the standards of living between the urban and the rural areas"—invite judicial interpretation to define their practical scope. The judiciary, guided by these broader contextual frameworks, has the responsibility to ascertain the most suitable remedies, as these rights speak directly to the needs and aspirations of the people. By grounding judicial interpretations in the historical and constitutional legacy of Bangladesh, judges can justifiably use external aids to interpret these terms in ways that fulfill constitutional objectives.
The framers' intention to address socio-economic justice as a core constitutional goal can be advanced by reading these principles alongside the constitution's mandates for justiciable rights, such as those in Articles 102(2), 111, and 104. Through this combined approach, the judiciary can recognise socio-economic rights as not merely aspirational, but as enforceable components that are vital to achieving the constitution's vision.
To ensure that economic and social rights become part of Bangladesh's enforceable legal framework, it is essential to interpret Article 8(2) in relation with Articles 102(2), 111, and 104. Article 102(2), which empowers the High Court Division to issue writs, allows for indirect protection of economic and social rights when aligned with fundamental rights. Article 111, ensuring binding precedents, enables the judiciary to create lasting interpretations. Article 104 further provides the Supreme Court discretionary powers to do complete justice in any cause or matter pending before it, a mandate that can encompass economic and social concerns.
Together, these provisions support a judicial approach that is both responsive and innovative, one that actively integrates economic and social rights as part of the broader constitutional commitment to justice. The judiciary, by exercising these powers, can embody the constitution's original aims, aligning its interpretations with the ideals of democracy, equality, and social progress.
Today discussions around reforming, or rewriting the original Constitution of 1972 are more prominent than ever. Whatever direction future changes may take, one principle must remain unwavering: the prioritisation of economic and social rights. These rights form the core of our constitution's commitment to justice, equality, and dignity. By embracing both internal and external aids to interpretation, the judiciary has a crucial role in transforming these rights from aspirations into enforceable guarantees, ensuring they retain the prominence our founders envisioned. Through this interpretative approach, the judiciary can honour the constitution's legacy while advancing Bangladesh's foundational commitment to the welfare of all its citizens.
Snehadri Chakravarty is advocate at the Supreme Court of Bangladesh. He can be reached at snehadrissf@gmail.com
Views expressed in this article are the author's own.
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