Originalism and Interpretation of Constitutional Provisions- The Bangladesh Landscape

Fiaz Rabbani
Junior LL.B. Student, University of Dhaka

As once said by Justice Latifur Rahman, “The Constitution of a country is dynamic in nature and cannot be morbid at all.” The words spoken by him are absolutely accurate as a Constitution is a living document. The Constitution of Bangladesh is no different, as it also contains every feature of being a lively and progressive pathway for the people of our country who laid down their lives to achieve our glorious constitution. A constitution is not formed for a specific period of time rather, it is formed aiming at eternal sustainability. A mere reading of the constitution’s words affronts its dignity as mere words are insufficient to display the enriched periphery and application of constitutional provisions. So, in order to do justice to the merit of our constitutional provisions, interpretation is an inevitable mechanism. In simple words, constitutional interpretation means to explain the provisions of a Constitution and determine the extent of its application from legal standpoints. This writing aims at addressing the utility of originalism in constitutional interpretations and sheds light on it by focusing on a few landmark judgments.

The palpable question is what is actually meant by originalism. It means to discover the original and initial viewpoint of the time when the constitution was being constructed by the makers, including all the ideas even if those are not explicitly manifested in the eventual constitution. The best way to define from the Bangladeshi constitutional perspective is to say that all the considerations that were taken into reckoning by our constitution makers are a part of our constitutional originalism. The High Court Division of Bangladesh has accosted our constitution makers as our “Founding Fathers.” It is highly pertinent to mention that; our Constituent Assembly Debate is also a pillar of our constitutional originalism. Now by reference to case laws, we shall comprehend the Bangladeshi constitutional originalism.

Tayeeb and Others Vs Government of Bangladesh (2011)

This case was the gateway of suo motu jurisdiction of the High Court Division of Bangladesh. The cardinal issue was whether the High Court Division could proceed with a writ petition without an application being filed by an aggrieved person as required by Article 102(1) and Article 102(2) of the Constitution of Bangladesh. A judge of the High Court Division was notified through a newspaper that an individual named Shaheeda was subjected to abhorrent treatment, and her constitutional rights have been deeply violated. Thus, he filed a writ petition to protect and restore the fundamental rights of Shaheeda. The appellate division, in its verdict, affirmed such a stance taken by the High Court Division and created the beginning point of  suo motu jurisdiction.

If we give a rigid meaning to the provisions of Article 102 of the Constitution, it may appear that for the  High Court Division to provide remedy to the aggrieved people, an application is a mandatory requisite. So, technically it’s not possible for the High Court Division to put in motion the sou moto power and forward the hands of justice to people like Shaheeda. Therefore, the Appellate Division, while vindicating the actions of the High Court Divison, took a resort to our constitutional originalism.

They firmly stated that whenever the object of the constitution is frustrated owing to procedural requirements, the fundamental rights of people will have no guardian, and such can never be desired by our Constitution makers. Originalism guided the judges to give proper meaning to the words written in the constitution otherwise, the requirement of an application would’ve made the high ideals expressed in our constitution a mere paper tiger. The Appellate Division echoed the visions of our Founding Fathers by believing that the constitution is there to aid all the unfortunate and helpless people like Shaheeda who are incapable of coming forward with their miseries or filing an application. The Appellate Division prevented justice from being confined to a particular class who can avail technical support and made justice an accessible aspiration to all.

Interestingly the Appellate Division justified the newspaper as an application because the purpose of an application is to notify what has already been served via the newspaper. Hence, the Appellate Division also showed adequate respect to the text of the constitution as well. The role of constitutional originalism must be highlighted with gratitude as the originalism perspective positively influenced the judges to take such a brilliant and creative step in the jurisprudence of suo moto jurisdiction.

A.F. Shahabuddin Vs Shooting Federation of Bangladesh and others. (2010)

This case is among the exceptional cases which resolved the issue of who can be subjected to a writ petition under Article 102(2) of the Constitution of Bangladesh. It is well established that a writ petition under Article 102(1) of the Constitution can lie against public persons along with private persons. But there were confusion regarding the enforceability of Article 102(2) against private persons. There was a view that under Article 102(2), there can be no writ petition against a private person. The air of ambiguity was cleared in this case as the High Court Division correctly confirmed that a writ petition under Article 102(2) shall also lie against private persons working in the public domain.

If we read  Article 102(2)(a) and (b) plainly and strictly abide by the textual meaning, we shall find the words ‘ a person performing any functions in connection with the affairs of the republic or local authority”. Nowhere does it mention about private persons. This is exactly where originalism steps in. The High Court Division opined that we would be in defiance of the intent of our founding fathers if we exclusively curtail the periphery of enforceability down to public servants or servants of local authorities.

This is because our Constitution makers were enriched enough to use the words “none other than public persons.” But they did not do so because their intention was not to restrict it exclusively to public persons. Very prudently, they added the aforementioned phrase of “a person performing any functions in connection with the affairs of the republic or local authority” and enabling to bring actions against private persons who work in the public domain. They were capable enough to envisage there would come a time when public affairs might be disposed of by private persons as well. Therefore, to impose liabilities on such private functionaries who shoulder the responsibility of state functionaries, they willingly kept a broad provision. The phrase is not an incidental addition but rather a well-devised one to bring bodies like private hospitals, and private universities that are serving public functions under the scope of judicial review. Owing to the constitutional originalism, the court was able to construe a wonderful interpretation and the implementation of it.

BNWLA v Government of  Bangladesh and others(2009)

In this case, the justification for the use of international law in interpreting constitutional rights was consolidated. A writ petition was filed to safeguard women from sexual harassment in workplaces, educational institutions, and in society as a whole. This case is famous for being the first instance of judicial lawmaking in our country, as the court issued guidelines in the form of directives. But we are not exploring this angle rather, we’ll evaluate the use of international law in pursuing constitutional originalism.

If it can be shown that the Constitution makers while adopting the constitution, were influenced by international laws or even believed in the spirit of it, the use of international law in interpreting our domestic laws can be validated. The High Court Division, in this case, stated the Constitution makers were “particularly impressed” by the basic rights in the Universal Declaration of Human Rights. A comparative analysis of Part- III of the Constitution of Bangladesh with the Universal Declaration of Human Rights will show huge reflections of those rights in our constitution. Some rights have directly found their spot in our constitution as well.

The court accepted the definition of sexual harassment from various international laws and, while forming the guidelines, was heavily influenced by CEDAW. We found a novel interpretation of interpreting our constitutional rights with the aid of international law. Once again, courtesy of constitutional originalism the court was allowed to extend the hands of the justice system to our womenfolk.

Conclusion

Constitutional originalism has empowered our Courts to answer complex disputes and give remedies to people who have been deprived of rights. It is a matter of pride for a country if they keep faith in their originalism. For Bangladesh, it is more glorified by the fact that our constitution is not a product of only juristic brilliance or crafty incorporation. Rather it is the document of the people who have written it by their blood and is a fruit of their great struggle. The more originalism is promoted, the lofty aspirations of our constitution shall be materialized. Utilizing originalism in interpretation is helping us to show more respect to our constitution. Sincerity towards originalism invites obedience towards the constitution, and the aim of establishing the rule of law can be achieved.