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Constitutional interpretation and our Supreme Court: a critical appreciation

The supreme court of Bangladesh is charged with duty to protect and uphold the Constitution of Bangladesh, and thereby it also functions as the guardian and interpreter of our constitution. In other words, it is one of the major functions of the honourable Supreme Court to interpret and construct the constitution in order to meet the needs of changing conditions of our society, as to make it a living constitution.

The power to interpret the constitution is not explicitly provided in any provision of our constitution. This authority to interpret the constitution is actually derived from the power of judicial review, which is conferred upon the court by our constitution under article 102. Moreover, according to article 7(2) of the Constitution, if any law is made inconsistent with any provision of constitution, that law shall to the extent of such inconsistency be void. In true sense, that law shall be declared void by the Supreme Court, if it considers the Law as inconsistent with any provision of the constitution. This power gives the court an implied authority to interpret the constitution.

The supreme court of Bangladesh has been playing a very active role in the interpretation of our constitution since the emergence of Bangladesh. Lots of unique and noble interpretations of the constitution were given by our Supreme Court the through pronouncement of many leading judgments in many cases. There are some settled rules and theories for interpretation of the constitution, followed by the judges and jurists throughout the world. The judges of the supreme court of Bangladesh also kept those rules and theories in their minds while interpreting the constitution. But in no cases the judges did clearly mention the particular theory to which they belong. This work is an attempt to concentrate on the forms, shapes and the basis of some of those remarkable interpretations, evaluating the merits of their theorization by the Supreme Court.

Some principal rules for constitutional interpretations 

Now here before going to the crux of this work, I would like to define some established rules for constitutional interpretations.
Originalist: An originalist is a person who believes that the meaning of the constitution does not change or evolve over time, but rather that the meaning of the text is both fixed and knowable. An originalist believes that the fixed meaning of the text should be the sole guide for a judge when applying or interpreting a constitutional provision.
Textualist: A textualist is an originalist who gives primary weight to the text and structure of the Constitution. The text means what it would have been understood to mean by an ordinary person at the time it was written. Textualists often are skeptical of the ability of judges to determine collective “intent.”

Intentionalist: An intentionalist is an originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision “wrong” on originalist terms because it promotes stability or in some other way promotes the public good.

Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.

Equitable interpretation: It means decisions taken on the basis of an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. It is often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers.

Constitutional interpretation in some leading cases

Dr. Mohiuddin farooqi v. Bangladesh, 1997. 49 DLR
In the famous case of Dr. Mohiuddin Farooqi v. Bangladesh, which is known as locus standi case, the court added a wider meaning of the term ‘person aggrieved’ while interpreting the article 102 the constitution. Before the pronouncement of locus standi case, only the person affected directly could move to the Supreme Court for enforcement of any fundamental right guaranteed in the constitution, under article 102 of constitution. But in the locus standi case of 1997 the court has given a more liberal interpretation oh term ‘person aggrieved’.
It was held in the said case, ‘if a fundamental right is involved, the impugned matter need not affect a purely personal right of the applicant touching him alone. It is enough if he shares that right in common with others’
After this milestone judgment, in case of public wrong, any person of the society on behalf of Public at large, rather than only the person aggrieved personally could move the court for enforcement of Fundamental rights.
So, in this case the court did not take the narrow literal meaning of the Term ‘aggrieved’, rather the court showed a non-originalist approach to constitutional interpretation, coming out from its old narrow meaning to meet the needs of society and for public good. Because, if the court took the old narrow meaning of the term ‘aggrieved’, many of those who do not have the access to court and whose rights have been violated, would remain outside the shadow of justice and they could not seek remedy for their losses. Taking into consideration the consequences of the old restricted interpretation, the court went for wider meaning of the term ‘aggrieved’. As a result, now the people having no Locus standi could go for enforcement of fundamental rights standing on behalf of common people. This type of interpretation is also called pragmatism, which is actually a branch of non-originalism. But interestingly in terms of this judgment the court mentioned that they are belonging to that particular theory of interpretation and the judges did not specify the particular theory by which they are abide by.

Anawar Hossain Chowdhury v. Bangladesh, 1989. 41 DLR
This is one of the land mark decisions ever pronounced by our Supreme Court, which is known as the 8th amendment case. In this case, the judges have given a totally new interpretation of article 142 of our constitution. Before insertion of article 7B by the 15th amendment Act in 2011, neither there was any specific provision regarding the basic structure of the constitution nor any provision regarding unamendability of those basic structures. The concept of basic structure was first introduced by the court in this 8th amendment case by giving an exclusive interpretation of term ‘Amendment’ in article 142.
As Justice Shahbuddin Ahmed said, “Amendment is a change or alteration, for the purpose of bringing an improvement in the statute to make it more effective and meaningful, but it does not mean its abrogation or destruction or a change resulting in the loss of its original identity and character”.
So, in this case the court followed the originalist theory while interpreting the article 142. As the court tried to find the original meaning of the term ‘amendment’ from the text of the statute and the structure of the constitution. Keeping similarity with the earlier mentioned case the court did not specify the particular theory which they are belonging to.

KUDRAT-E-ELAHI PANIR V. BANGLADESH, 44 DLR
In this case, Justice Naimuddin Ahmed has given a unique interpretation of article 8(2) of the constitution. According to his opinion, the phrase ‘shall not be judicially enforceable’ shall not prevent the court from declaring any law as void on the ground of it’s being made in clear violation of fundamental principles of state policy. According to his statement, article 7(2) is not in conflict with article 8(2) of our constitution. He tried to make a distinction between enforceability and inconsistency. So, if any law is directly contrary to any provision any of the fundamental principles of state policy, the law may be declared void in spite of the non-enforceability clause of article 8(2) of the constitution. According to his lordship: “the constitution makers were conscious that implementation of the noble principles laid down in part II may not be possible in the prevailing socio-economic condition of the country and as such , they very wisely enacted article 8(2) making these principles unenforceable through courts, but, that by no means, implies that the constitution-makers intended to circumvent the mandate of article 7(2) and permit the legislature to enact laws in violation of those principles.” As such an enactment made by parliament in opposition to, and in derogation of the principles laid down in part II of the constitution is violative of the mandate provided in article 7(2) of the constitution and therefore, void.
However, in this case the court took an originalist view, as the judges tried to discover the original meaning of the said term from the structure of the constitution. Because, a Sharpe analysis of all the provisions of the constitution and how they are apparently intended to function as a harmonious system, lead us to the above mentioned meaning of Judicial enforceability.
But not a single statement could be found in the whole judgment which specify the theory which has been followed by the court in course of this interpretation.

Sheikh Abdus Sabur v. Returning officer, district education officer in charge, Gopalganj and others, 41 DLR (AD) 1989 (30)

In this famous case, appeallate division has given a wider meaning of the Term ‘equality before law’ while interpreting article 27 of the constitution. It was held by the court that, ‘‘all citizens are equal before law and are entitled to equal protection of law. Equality before law does not mean absolute equality and is not be interpreted in its absolute sense, to hold that all people are equal in all respects disregarding different conditions and circumstances or special qualities and characteristics, which some of them may possess but which are lacking in others,”
So, in this case the court has shown an originalist approach in interpretation of the constitution. As the court tried to enunciate the original and actual meaning of Equality before law as the framers of the constitution did not intend to treat the people of all classes in the same manner and in the same style disregarding their differences. This interpretation also can be enrolled in the category of equitable interpretation, which is based on innate sense of justice, balancing the interest of the parties and what is right and what is wrong.
Lack of theorization is also available in this judgment.

Ain o Shalish kendro v. Bangladesh
In this landmark case, the court has given a comprehensive meaning of right to life while interpreting article 31 and 32 of the constitution. The court held that right to life means something more than mere animal existence. It includes right to live consistently with human dignity. The court said, “when rootless people have taken shelter in slums and somehow making a livelihood, their wholesale eviction without any scheme of their rehabilitation has been found to offend the mandate of article 31 and 32.”
However, in this case the court did not go through fixed literal meaning of the term ‘right to life’, rather the court widened the scope of this right by giving a broader meaning of the Term.

These are some examples of constitutional interpretation from many leading cases of the Supreme Court. A critical appreciation of these cases makes the point clear that the supreme court of Bangladesh has been very active in the field of constitutional interpretations and of judicial activism as well. The judges also proved themselves as very smart and efficient in discharging the significant task of constitutional interpretation along with maintaining the international standard in this regard. But the main problem has been with them the lack of theorization of those interpretations given in their judgments, which has created a hazy situation as it becomes very difficult for a law student to understand the judgment. On the other hand, if we look at the supreme court of USA or any other developed state, we can see that whenever their judges interpret the constitution, they specify the theory which they are belonging to. Unlike the US Supreme Court, our Supreme Court always have been silent in this regard.

Naeem Hassan

Naeem Hassan

Student at Department of Law, University of Dhaka
Naeem Hassan is currently studying LLM at University of Dhaka. He is a Senior Editor of the Bangladesh Law Digest (BDLD). He also works as the Vice President at Bijoy Ekattor Hall Debating Club - BEHDC of University of Dhaka.
Naeem Hassan

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