Judicial Enforceability of Fundamental Principles of State Policy in Bangladesh Constitution: An Appraisal

Abstract

The protection of economic, social and cultural (ESC) rights by the constitution is one of the most common features of the modern world. In most cases, these rights though incorporated in the constitution are termed as ‘principles’ making them unenforceable by the judiciary. There is debate about whether these rights should be given the same status as civil and political rights. The constitution of the People’s Republic of Bangladesh also contains ESC rights terming as fundamental principles of state policy in part two and these rights cannot be enforced judicially according to Article 8 (2). They will be fundamental in governing the state of Bangladesh. The state shall apply them while making laws and the court shall take them as a guide while interpreting the constitution and other domestic laws. Despite the bar by the constitution, the Supreme Court of the country while enforcing fundamental rights is enforcing rights which are predominantly economic, social and cultural. In recent years, activism from the Supreme Court has been noticeable as to indirect enforcement while enforcing ‘rights to life’ and ‘right to protection of law and liberty’. The judiciary is considered the protector and promoter of an individual’s human rights in a civilized society. If the hands of the judiciary are tied tightly, the government might not take any action that will go against their interest but should be taken to protect citizen's basic human rights. This thesis paper aims to investigate how much the Supreme Court of Bangladesh has applied Fundamental Principles of State Policy in its judicial decisions to explore and evaluate the narratives by the courts, and to get a brief illustration of the long judicial practice, from the past stretching up to present and perhaps in the future concerning enforcement of economic, social and cultural rights in Bangladeshi courts. The paper will examine the appropriateness of extending the meaning of fundamental rights to cover fundamental principles and enforcing them indirectly.