Protection of economic, social and cultural rights: a critical analysis of the fundamental principles of state policy in the constitution of Bangladesh

Abstract

This thesis examines the possibilities for the justiciability of economic, social and cultural rights in the Constitution of Bangladesh. Economic social and cultural rights are part of the “fundamental principles of state policy” which are recognized in Part II of the Bangladeshi Constitution. Article 8(2) of the Constitution explicitly states that those principles are judicially unenforceable. At the international level, human rights were formally split into two different covenants in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The latter, unlike the former, contained no enforcement mechanism. This differential treatment of the economic, social and cultural rights reflected the traditional assumption that economic social and cultural rights were not capable of judicial enforcement. Those assumptions were later reflected in the Bangladeshi Constitution. This thesis critiques the main objections to the justiciability of economic social and cultural rights in the light of contemporary developments in the international human rights regime, regional human rights systems and different domestic jurisdictions. It is posited that economic social and cultural rights have evolved so that their justiciability is now generally accepted. Indeed, the ICESCR (to which Bangladesh is a party) now casts an obligation on States Parties to make them justiciable in their domestic jurisdictions. The thesis examines the substantive constitutional provisions and the relevant case law, and argues that there is in fact enough scope to judicially enforce economic, social and cultural rights contained in the Constitution of Bangladesh, despite the bar of article 8(2). In this respect, comparative case law in India will also be examined, as India has similar constitutional provisions. Such new interpretations of the Bangladeshi Constitution, if adopted by Bangladesh’s courts, will act as guidelines for the development of judicial protections for economic, social and cultural rights at the municipal level in Bangladesh. Such a reformulation of constitutional law will also facilitate the fulfillment of Bangladesh’s obligations under the ICESCR, and the enjoyment of economic, social and cultural rights by its people.