1. The Problem of Normative Gaps in Constitutional Design:
The Constitution of Bangladesh lays out a normative vision of a just and equitable society, underpinned by the principles of democracy, the rule of law, fundamental rights, and social welfare. However, there exists a foundational asymmetry between what the State promises and what it is legally obligated to perform.
While the Constitution articulates moral responsibilities (e.g., to provide education, health, shelter, and employment), these are located in Part II (Fundamental Principles of State Policy), which are expressly declared non-justiciable under Article 8(2).
This creates a normative void: the State bears no constitutional liability for failing to implement the very principles that form the backbone of the constitutional identity. It is a constitution of ideals without enforcement—a “constitution of hope” without a “constitution of action.”
2. The Absence of a Doctrine of State Liability:
Unlike many modern constitutional orders, Bangladesh does not incorporate a codified doctrine of state liability—a framework by which the State or its organs can be held legally accountable for harm caused by negligence, omission, or abuse of power.
This means:
- Tortious liability of the state is not explicitly recognized in constitutional or statutory law.
- There is no public compensation regime for administrative wrongs or systemic policy failures.
- Constitutional remedies under Article 102 are largely reactive and confined to violations of fundamental rights, not broader state duties.
This legal silence privileges state immunity over citizen protection, creating a jurisprudence of minimal accountability.
3. Legal Formalism vs. Substantive Justice:
The existing constitutional architecture reflects a tension between legal formalism and substantive justice.
Legal formalism confines enforceability to a narrow reading of the Constitution—what is written, what is declared justiciable, and what is not. Under this logic, since the Directive Principles are not justiciable, no legal duty arises from them.
However, this approach contradicts the teleological function of a constitution: to be a living instrument for justice, equality, and human dignity. A purely formalist reading defeats the spirit of the Constitution, transforming rights into rhetoric and obligations into aspirations.
4. Philosophical Considerations:
The Social Contract and Sovereign Duty (bold hobe)
From a philosophical standpoint, especially through the lens of social contract theory (Hobbes, Locke, Rousseau), the legitimacy of the State arises from the consent of the governed in exchange for protection of life, liberty, and welfare.
In this view:
State responsibility is not optional it is foundational.
The State that fails to secure minimum welfare violates its contractual legitimacy.
When the State is not legally accountable for failing its obligations, it breaches the moral and philosophical basis on which it claims authority.
Furthermore, thinkers like John Rawls emphasize the “basic structure” of society as a primary subject of justice. If the constitutional structure itself does not provide mechanisms to hold the State accountable, it perpetuates structural injustice.
5. Comparative Constitutional Insight:
Many welfare-oriented or democratic constitutions—such as those of Germany, India, South Africa, and Brazil—have:
- Codified state liability
- Public interest litigation (PIL) frameworks
- Constitutional tort doctrines
- Expanded judicial interpretation of socio-economic rights.
These jurisdictions demonstrate that constitutional accountability of the State is both possible and essential to a mature constitutional democracy.
In contrast, Bangladesh’s model lags behind, trapped between colonial-era administrative law and post-independence idealism, without a substantive bridge between the two.
6. Toward a Doctrine of Constitutional State Responsibility in Bangladesh:
A meaningful incorporation of state responsibility would require:
- Constitutional amendment to make select socio-economic rights enforceable (e.g., right to health, housing, education).
- The creation of a State Liability Act, clearly defining circumstances of liability, remedies, and citizen access to justice.
- Judicial recognition of a constitutional tort doctrine grounded in Articles 27, 31, and 32—protecting equality, legal protection, and the right to life.
This would mark a transition from a passive constitutional state to an active welfare state, where rights are matched by remedies, and power by accountability.
The Bangladeshi state remains morally committed but constitutionally unbound in many areas of public responsibility. The absence of enforceable state responsibility reflects not only a legal lacuna, but also a deeper philosophical failure: a betrayal of the very principles of democratic legitimacy, justice, and social contract.
If a constitution is to be more than a statement of intent, if it is to be a living framework for justice then state responsibility must not be a political courtesy, but a legal duty.
Legal Researcher and Educator
Founder Director, Shah Legal Aid and Research Centre
