As we commemorate the 52nd anniversary of the Constitution, we also remind ourselves of our nation’s quest for justice, equality and freedom. However, the constitution’s promises regarding economic and social rights embodied in our fundamental principles remain non-justiciable, seemingly depriving the judiciary of a clear mandate to implement them. It is an appropriate time to explore how these rights, if properly interpreted and implemented, can be made enforceable using internal and external interpretive aids that are compatible both with the intentions of the framers of the constitution and with the present needs of the people.

As an internal aid to interpretation, the Preamble of the Constitution of Bangladesh provides a profound guide to the interpretation of economic and social rights, capturing both the struggles of the past and aspirations for the future. The preamble, which declares the protection of “fundamental human rights” as the primary purpose of the state, does not distinguish between civil-political and socio-economic rights. This non-differentiation aligns economic and social rights, such as social and economic freedom, justice and equality, with the fundamental duties of the state. Therefore, the implementation of these rights is not an optional practice, but a fundamental obligation underlined in the introduction. As stated here, the duty of the state is not limited to declarative requests only; Rather, it tasks the judiciary, which has the power of judicial review, to ensure that these rights are enforced wherever possible.

The preamble explicitly refers to socio-economic ideals such as social freedom, economic freedom and justice “secured for all citizens”, encouraging the judiciary to embody these goals in real situations. The judiciary therefore has a critical role in interpreting and applying these principles; It recognizes economic and social rights as indispensable for achieving the broad objectives set out in the preamble.

The guiding function of Article 8(2) of the constitution, which mandates that the principles of state policy “shall be a guide in the interpretation of the Constitution and other laws of Bangladesh” further strengthens the judiciary. This statement bridges the gap between justiciable and non-justiciable rights by giving the judiciary the freedom to interpret any law or constitutional provision within the framework of these fundamental principles. By engaging with the broad purposes of Article 8(2), the judiciary can evaluate and analyze not only constitutional provisions but also national laws aimed at promoting socio-economic rights.

This interpretive flexibility opens avenues for judicial action by allowing courts to align statutory interpretations with the broader constitutional objectives set out in Article 8(2). The responsibility of the judiciary extends beyond the passive recognition of these rights; It involves an active role in evaluating provisions and laws to meet the core objectives of Bangladesh. This interpretative scope requires judges to interpret economic and social rights as complementary components within the broader structure of justiciable rights and constitutional governance.

The traditional positivist approach often interprets constitutional provisions in isolation that restrict the applicability of economic and social rights. On the other hand, the structuralist approach, which emphasizes the interdependence of constitutional provisions, reveals a more holistic understanding. Economic and social rights, when interpreted as essential components of broader, enforceable rights, enhance the holistic realization of justice, equality and social well-being. For example, the right to life and personal freedom cannot be fully realized without adequate access to socio-economic rights such as health, education and housing, which are indispensable for human dignity.

Judicial structuralism encourages a reading of the constitution that harmonizes enforceable and unenforceable rights, allowing courts to implement the broader purposes set forth by the framers. By interpreting the constitution as an interconnected whole, judges can go beyond the limits of positivism and recognize economic and social rights as the basis for fulfilling the constitution’s promises.

While domestic aid provides a starting point, foreign aid also plays an important role in interpreting socio-economic rights. It is a common rule of interpretation that external aids are unnecessary when the language is clear. However, this approach, guided by the positivist school, can overlook broader contextual meanings and legislative intent and potentially miss the nuances necessary to achieve constitutional goals. The inclusion of foreign aid enriches legal interpretation and provides a more comprehensive understanding of legal objectives, even if the text appears to have a simple meaning.

For Bangladesh, this foreign aid also includes historical turning points that shape the country’s identity and constitution. The War of Independence in 1971, the Language Movement (1948-1952), the victory of the United Front in the 1954 state elections, the 21-article program, the 11-article demands and the Declaration of Independence. Each of these historical elements reflects people’s evolving aspirations, especially their commitment to economic and social equality. Post-liberation documents, speeches and debates of the Constituent Assembly also provide the essential context for understanding these rights and underline the importance of upholding the socio-economic ideals of the constitution.

Some constitutional terms, such as “material and cultural standard of living”, “decent wage”, “reasonable rest, recreation and leisure” and “gradually eliminate the disparity in living standards between urban and rural areas”, invite people to participate. Judicial interpretation to define scopes of practice. Guided by these broader contextual frameworks, the judiciary has the responsibility to find the most appropriate remedies; because these rights directly address the needs and wishes of the people. By basing judicial interpretations on Bangladesh’s historical and constitutional heritage, judges can rightfully use foreign assistance to interpret these terms to meet constitutional objectives.

The framers’ intention to treat socio-economic justice as a fundamental constitutional goal can be enhanced by reading these principles alongside the constitution’s prescriptions on justiciable rights in Articles 102(2), 111 and 104. Through this unified approach, the judiciary can recognize socio-economic rights not only as desirable but also as implementable components that are vital in achieving the vision of the constitution.

To ensure that economic and social rights become part of the applicable legal framework of Bangladesh, it is important that Article 8(2) be interpreted in conjunction with Articles 102(2), 111 and 104. Article 102(2) gives jurisdiction to the Supreme Court. The division of the decision to issue an edict allows for the indirect protection of economic and social rights when harmonized with fundamental rights. Article 111, which provides binding precedents, allows the judiciary to make permanent interpretations. Article 104 also gives discretion to the Supreme Court to do full justice in any case or matter pending before it; this is a mandate that can encompass economic and social concerns.

Together, these provisions support a judicial approach that is both responsive and innovative, effectively integrating economic and social rights as part of the broader constitutional commitment to justice. By using these powers, the judiciary can embody the original objectives of the constitution and align its interpretations with the ideals of democracy, equality and social progress.

Today, debates about reforming or rewriting the original 1972 Constitution are more prominent than ever. Whatever future changes take, one principle must remain unshakable: the prioritization of economic and social rights. These rights underpin our constitution’s commitment to justice, equality and dignity. By embracing both domestic and foreign assistance in interpretation, the judiciary has a pivotal role in transforming these rights from desires into enforceable guarantees and ensuring that they retain the importance envisioned by our founders. Through this interpretive approach, the judiciary can honor the constitution’s legacy while advancing Bangladesh’s fundamental commitment to the well-being of all its citizens.

Snehadri Chakravarty He is a lawyer in the Supreme Court of Bangladesh. He can be reached at: (email protected)

The views expressed in this article belong to the author.

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