Challenging abortion laws in Bangladesh: In need of a multi-pronged judicial strategy

In May 2020, a writ petition was filed with the High Court Division of the Supreme Court of Bangladesh challenging the constitutionality of Sections 312-316 of the Penal Code 1860, a legacy of the British colonial rule in the Indian subcontinent. To understand the gravity of the case, one must look at the current legal framework. Under Section 312, anyone who voluntarily causes a woman to miscarry, including the woman herself, is punishable for criminal offence. The only exception to this broad prohibition is where the procedure is carried out in good faith to save the woman’s life.

Using Foreign Court Decisions and International Human Rights Law

The rights jurisprudence in Bangladesh owes a significant part of its growth to comparative discussions of foreign judgments. Many of the seminal constitutional law decisions based their reasoning on decisions from other jurisdictions. Foreign decisions, though not binding, hold considerable persuasive value for the Supreme Court of Bangladesh when considering constitutional matters, among others. In this context, reference to jurisdictions such as the UK, USA, and India have been consistent in many cases.

Additionally, in Bangladesh, when deciding constitutional rights cases, recourse has also been made to international human rights framework. The tendency of the Court to apply international human rights law in interpreting constitutional rights has grown to such a level that it now is seen as a step towards ‘creeping monism’ through judicial activism. As with the reception of foreign cases, the Supreme Court in Bangladesh has not established a doctrinal view on the relevance of international human rights law in the context of the domestic cases.

Key Judicial Precedents and Principles

Several cases highlight how the judiciary integrates broader legal principles into domestic law:

• Ershad v Bangladesh: In this case, the Court observed that international human rights obligations cannot be ignored outright by the Court. The Court opined that ‘if the domestic laws are ambiguous or if there is nothing therein, the national [Court] should draw upon the principles in the international instruments’.
• BNWLA v Bangladesh: The Court categorically observed that in the absence of domestic laws and principles, the international covenants and treaties signed by the state are to be read into the fundamental rights of the Constitution.
• Bangladesh v Sheikh Hasina: The Supreme Court expressed similar views regarding the application of international principles when local laws are inconsistent.

Contextualizing the Current Petition

What is remarkable is that while there is lengthy reference in the petition to Roe v Wade, the seminal 1973 US Supreme Court decision establishing women’s constitutional right to the procedure, there is no reliance on Bangladesh’s obligations under international human rights law. While the petition is still underway, and the Court is yet to decide on the constitutionality of the impugned sections, I argue that it could be precarious in the long run to rely solely on this comparativist approach.

Should the Court decide the over-broad criminalization of abortion is unconstitutional, I argue it should be based on jurisprudence borrowed from both international human rights obligations and foreign courts. Despite both sources often being referred to by the Supreme Court, the absence of international human rights law in the present instance is both notable and potentially problematic.