Judicial enforcement of social, economic and cultural right
Introduction
Law is a system discipline and ensuring equal right in the society.[1] Judicial enforcement is a process of enforcing legal power in the society to ensure equal right in the society. In our society most of the people are unable to getting their proper right. In this situation judicial enforcement of High court can ensure equal right and every one of the society can get social, economic and cultural right. Judicial enforcement must be implementing in such way that everyone in the society will able to enjoy their right and they will respect and admire the judicial system.
The legal meaning of the equity is that everyone in the society must be able to get their right and they should not be discriminated from their right by any mean. If the people of the society get right then it will also benefit legal system. Legal system will developed much more then way before.[2]
In research of my law 200 course, I will try to find out what is judicial system? How it can be implemented? How can judicial system ensure social, economic and cultural right for the well-being of people living in the society?
Judicial Enforcement
Judicial enforcement is mainly a legal process taken by highest authority of law in a county. Law is mainly created and maintained by the sovereign authority of the country.[3]These sovereign authorities also have the legal power to ensure equity right in the society. In terms of Bangladesh we have found that here judicial enforcement did occurred much and as a result majority of the people of Bangladesh are unable to get their legal right.[4] Judicial enforcement is also a major characteristic of the society. Judicial enforcement in USA is quite higher and for this reason the rate of discrimination to get proper right in the society of USA is quite low.[5]
“Naturally, despite a constitution that guarantees all citizens equal protection of law (Article 27), minorities in Bangladesh do not live with the confidence that their human rights will be respected. The minority population has dropped (through emigration) from 23% in 1954 to 11% in 2001.[6]” “The emergence of Bangladesh as an independent state was the result of a fight against violation of human rights in different ways. People’s struggle for establishing fundamental rights by brushing aside anomalies is always there in this part of the world. But unfortunately, the polity is yet to overcome the barriers to human rights.”[7]
The sovereign authority of nation can use and regulate the legal power to ensure no discrimination in the society. Judicial enforcement can be done to ensure Social right[8], economical right[9] and cultural right[10].
Judicial enforcement can be done in several aspect of the society to ensure all this right for the people of the society but whatever, the judicial enforcement must be done in such way that it will not violate the existing legal rules of the nation. It should be valid, effective and efficient to legal right in the society.
Judicial enforcement to ensure social right
For the people of the society social right means to live in society with the proper dignity and right to take part in election, right to receive services from the government, right to take part in election and other national activity. Mainly it is nothing but a collective interest of the people living in the society.[11]Only judicial enforcement can take vital step to ensure this right for all the people living in the society. “Social right refers to a set of benefits available (or not available) from the state, market, civil society and households, or through a combination of these agencies, to the individual/households to reduce deprivation.”[12]
How Social right can be ensured
1) Proper Definition of Social right: If judicial enforcement has an aim to ensure social right for everyone in the society, then at first it define what should meant by social right. The fundamental definition social right implies that this right should include and ensure peoples’ physical integrity and safety.[13]
2) Should not discriminated lower class People : Most of the time supreme judiciary get engaged to ensure social right for the upper class people of the society and for this reason people living in the lower class get discriminated by the enforcement. Judicial enforcement must be done in such way there will not be any discrimination in the society.[14]
3) Right to socially secure: Everyone in the society must be socially secured. If they are not secured socially than it is impossible to established social right in the society.[15]
4) Freedom of the people should not be violated: To ensure to social right in the society in some cases it might violate the freedom of the individual. This kind of enforcement will not bring anything good for the society. So Enforcement should be in done in such way that there will be not violation of freedom of the individual.[16]
5) Access to justice: Judicial enforcement must ensure that everyone in the society is getting access to legal system to get justice. Judicial system must take the fundamental step so that people living in the society will not get any fear about the legal system.[17]
6) Constitutional Reformation: By adopting appropriate measure to reform the constitution Social right is ensured. “Adopt all appropriate constitutional, legislative, administrative and other measures for the implementation of the right to equality.”[18]
7) Right to Equality: Judicial enforcement should ensure that connotations, administrations or other legal executives institute, which have a rightful attentiveness in the recognition of the precise to equality, may engross, either on behalf or in support of the persons seeking redress, with their approval, or on their own behalf, in any judicial and/or administrative procedure provided for the enforcement of the right to equality.
8) Right to get information: Judicial enforcement should take some step so that everyone in the society knows about present condition of the society.[19] It should ensure that everyone in the society must know what is going on inside the government office. Whether there is any corruption going on not? Whether government is telling the truth or not in national crisis. This entire thing should be ensured by judicial enforcement.[20]
9) Implementation of Rule of law: Rules of law is one of the most important factors of legal system. Ensuring proper rule of law can ensure correct form of social right. Rule of law is also a main characteristic of Democratic government.[21]
10) Right to participate: One of the most important social rights is right to participate. Mainly, all the citizen of society possesses that in every national event all the citizen of country can participate and evaluate the quality of the event.[22]
11) Right to education: Education is vital human right for living in the society. Everyone in the possess the right to be educated. Judicial enforcement must ensure this to implement proper social right in the society. Education is vital human right for living in the society. “Article 17 sets out the scope of the prohibition of discrimination in relation to education. It provides that discrimination is prohibited in: the creation of public or private educational institutions; the financing of public education institutions; the content of principles and criteria of educational activity, including teaching; and the treatment of students or pupils, including admission, evaluation, discipline or expulsion. The denial of access to an educational establishment on the basis of a prohibited ground is also specifically outlawed (Article 17(2)).”[23]
12) Right to get proper treatment: All citizen proses the right to treated whenever they got sick. This is one of the most valuable criteria of basic human rights. Judicial Enforcement must be done to ensure the right to get health care.[24]
Judicial enforcement to ensure economical right
In the beginning economics rights first classified under human right. Then by the passage of time the right to become economically Beneficiary established and as a result we got another right named Economic Right. Mainly economics right deal with right to have a job, right to work, right to established and form any organization. By passage of time right to strike and right social security also become the part of economic right.[25]
Embedded or unambiguous Economical rights can be enforced by modifying the situation either through unbending understanding and control approaches. It has been proposed by All type of legal rights are closely connected, codependent and linked, and the proper implementation and securitized of one right disturbs that of others. This is accurate among all rights and among or within detailed types of rights. In this case we can say that, economic rights are closely connected to social & cultural rights. The right to work, for example, is connected to that of ensuring minimum standards of living, etc. Which is also can be classified as social right.
However, this assumes that it is possible to internalize all environmental benefits, that owners will have perfect information, that scale economies are manageable, transaction costs are bearable, and that legal frameworks operate efficiently. Strengthening markets and creating and strengthening property rights could reduce, but not eliminate, such problems.”[26]
How Economical right can be ensured By implementing following enforcement, Judicial enforcement can take correct step to ensure economical right for every one living in the society.
1. Administrative reformation: By taking administrative reformation and matching administrative penalties to economics damage disruption economical right can be ensured.[27]
2. Correct Measurement against poverty: Poverty is a curse for the society. It also violates the economics right of the people living in the society. It may be or may not consequence or compensation of economical right. There should be effective measurement to reduce the rate of poverty so that it will not violate the economical right of the people. Judicial enforcement can take some step so that people below the poverty line can change their life style and their source of income. So that rate of poverty can decline effectively and efficiently from the nation.[28]
3. Right to get employed: One of the fundamental economic rights is that citizen of country must get a job and they must be employed. Proper form employment can reduce the crime rate in the city. This will increase the peace in the society. As a result people living in the society will admire and respect judicial branch of the legal system, which is very beneficiary for the legal system.[29]
4. Received proper goods & Services: The prohibition of discrimination in respect to goods and services includes housing, health services, banking, entertainment facilities and transport violate the economical right. “The Bill provides that people should not be denied goods or services based on any of the grounds laid, nor should they be provided with goods or services in a different manner to the way in which they are provided to the public in general. The Bill applies to any natural or legal person who offers goods or services to the public.”[30]
Judicial enforcement to ensure Cultural right
Word meaning of culture is not directly or clearly mentioned in law. Oxford dictionary define culture as the arts and other manifestations of human intellectual achievement regarded collectively.[31]
The right to culture in human rights law is mainly about the celebrate, observe and protection of social ingenuity and customs. This is fundamental basic human right that an individual to enjoy culture and to enhancement culture and knowledge without any disruption from the state is a human right. Under international human rights law governments also have a bounded to promote and save cultural activities and objet d’art, particularly those which has universal value. Culture is devastatingly commended as positive in the vast majority of human rights methods. Nevertheless, some edicts recognize that assured different of cultural and social applies may have a hurtful impact on an individual’s health and well-being. “Anthropologist sometimes choose not to study some cultures beliefs and rights, because they believe that it may cause misbehavior, and they choose not to turn against different diversities of cultures.”[32]
The fundamental and basic cultural rights in where we can find judicial enforcement are following:
1. Right to celebrate: Every citizen of nation must possess right to celebrate and observe their tradition. Judicial enforcement must ensure that everyone in the society are celebrating their function effectively and efficiently. “In Bangladesh this right is implementing properly and efficiently. As a result being a Muslim oriented country Hindu people of the country do not face any trouble to celebrate their Durga Puja[33].[34]
2) Culture must be conserved: Judicial enforcement should also take necessary step so that tradition and custom of the society remain safe. It should also be developed by passage of time so that people will not feel bored to celebrate it. If people get bored to celebrate any culture then one point in time the tradition and culture will diminish from the society.[35]
3) Right to protect culture: Every individual must possess to protect their culture from any harmful element. Judicial enforcement must ensure this that any specific cultures it takes necessary step to save culture from any harmful event or crisis.[36]
4) Right to enjoy: All the citizen of the country possesses the right to enjoy a celebration. If there is no right to celebrate a tradition there will be social conflict. By this so many problem might arises. There might be some clash between to social group due to absence of this right to celebrate.[37]
Conclusion
In every society there is violation which implies its citizen not get proper social right, economical right and cultural right. Proper implementation and adoption of judicial enforcement can reduce this violation rate and established social peace. Step mentioned in the above might not perfect but it might be small starting and ensure social, culture & economical right for the people living in the society.
Bibliography
1. http://www.stir.ac.uk/undergraduate-study/course-information/courses-a-to-z/law-llb
2. http://www.equalrightstrust.org/endorse/index.htm
3. http://www.oecd.org/dataoecd/34/41/1919985.pdf
5. Enforcing the Right to Health: by Iain Byrne
6. http://www.asiantribune.com/news/2010/02/04/violation-human-rights-bangladesh-last-34-years
7. Fabre, Cecile. “3. Constitutional Social Rights.” Social Rights Under the Constitution 1: 67-110
8. http://www.banglarights.net/HTML/HR-Situation.htm
9. http://www.hrusa.org/thisismyhome/project/glossary.shtml
10. http://en.wikipedia.org/wiki/Cultural_rights
11. Oxford Dictionary
12. http://assets.cambridge.org/97805217/93391/sample/9780521793391ws.pdf
13. Folklore and book culture By Kevin J. Hayes
14. The Culture of Military Innovation: By Dima Adamsky
15. The civil law tradition:By John Henry Merryman, Rogelio Pérez-Perdomo
16. Principles of Economics By N. Gregory Mankiw
17. The skeptical economist: revealing the ethics inside economics By Jonathan Aldred
18. The Economics of public finance By Alan S. Blinder
19. www.unesco.com
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[1] Law combines social science, ethics and political philosophy. It’s not just a body of rules or knowledge – it also has its own methods, philosophies, culture and language. Of course, it’s also what vital institutions the legal profession, the judiciary, courts, etc.( http://www.stir.ac.uk/undergraduate-study/course-information/courses-a-to-z/law-llb
[2] The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. (http://www.equalrightstrust.org/endorse/index.htm)
[3] http://www.oecd.org/dataoecd/34/41/1919985.pdf
[4] http://ilr.org.uk/?p=66
[5] Enforcing the Right to Health: Innovative Lessons from Domestic Courts by Iain Byrne
[6] http://www.asiantribune.com/news/2010/02/04/violation-human-rights-bangladesh-last-34-years
[7] http://www.banglarights.net/HTML/HR-Situation.htm
[8] Social rights, therefore, are rights to which the individual citizen is entitled, which he/she can exercise only in his/her relationship with other human beings, as a member of a group and which can be made effective.( http://www.enelsyn.gr/papers/w13/Paper%20by%20Sarantis%20Orfanoudakis.pdf
[9] An economy right is the exclusive authority to determine how a resource is used, whether that resource is owned by government or by individuals. All economic goods have a property rights attribute. This attribute has four broad components.( http://en.wikipedia.org/wiki/Property_rights_%28economics%29)
[10] Cultural Rights – The right to preserve and develop one’s cultural identity, as well as the right to protect endangered cultures.( http://www.hrusa.org/thisismyhome/project/glossary.shtml)
[11] Fabre, Cecile. “3. Constitutional Social Rights.” Social Rights Under the Constitution 1: 67-110
[12] http://en.wikipedia.org/wiki/Social_security
[13] Adopting expansive definitions of civil rights, some of which tend to be widely, if not universally, guaranteed under national law, e.g. rights to life or not be subjected to cruel, inhuman or degrading treatment. This approach has been sanctioned to differing degrees by both the UN Human Rights Committee16 and the European Court of Human Rights.(Enforcing the Right to Health: Innovative Lessons from Domestic Courts by Iain Byrne)
[14] http://www.equalrightstrust.org/endorse/index.htm
[15] Social security is primarily a social insurance program providing social protection, or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to: social insurance, Income maintenance, services.
( http://en.wikipedia.org/wiki/Social_security)
[16] See footnote 11
[17] Persons who have been subjected to discrimination have a right to seek legal redress and an effective remedy. They must have effective access to judicial and/or administrative procedures, and appropriate legal aid for this purpose. States must not create or permit undue obstacles, including financial obstacles or restrictions on the representation of victims, to the effective enforcement of the right to equality.
( http://www.equalrightstrust.org/endorse/index.htm)
[18] See footnote 11
[19] To give full effect to the right to equality States must collect and publicize information, including relevant statistical data, in order to identify inequalities, discriminatory practices and patterns of disadvantage and to analyses the effectiveness of measures to promote equality. States must not use such information in a manner that violates human rights.( http://www.equalrightstrust.org/endorse/index.htm)
[20] Barnett, Hillarie, Constitutional and Administrative Law, Cavendish Publishing Limited, 2nd Edition.
[21] http://en.wikipedia.org/wiki/Rule_of_law
[22] All persons, particularly those who have experienced or who are vulnerable to discrimination, should be consulted and involved in the development and implementation of laws and policies implementing the right to equality.( http://www.equalrightstrust.org/endorse/index.htm)
[23] http://www.equalrightstrust.org/newsstory25feb2010/index.htm
[24] http://www.doaskdotell.com/rights/rights/rights6.htm
[25] http://www.metagora.org/training/encyclopedia/economic.html
[26] Guerin, K. (2003). Property Rights and Environmental Policy: A New Zealand Perspective. Wellington, New Zealand: NZ Treasury
[27] Sanctions generally serve two purposes: the first is to match the punishment to the offence committed (the retribution aspect); the second is deter those who may be tempted to do the same (the exemplary aspect).
( http://www.oecd.org/dataoecd/34/41/1919985.pdf)
[28] As poverty may be both a cause and a consequence of discrimination, measures to alleviate poverty should be coordinated with measures to combat discrimination, in the pursuit of full and effective equality.( http://www.equalrightstrust.org/endorse/index.htm)
[29] In respect to employment, Article 12 provides that any distinctions, limitations or exclusions based on any of the protected grounds are prohibited in the field of employment. This includes any adverse treatment relating to job opportunities, the recruitment of staff and the treatment of staff within the workplace.( http://www.equalrightstrust.org/newsstory25feb2010/index.htm)
[30] http://www.equalrightstrust.org/newsstory25feb2010/index.htm
[31] The ideas, customs, and social behavior of a particular people or society.(Oxford Dictionary )
[32] http://en.wikipedia.org/wiki/Cultural_rights
[33] Durga Puja, the largest Hindu festival for Bangalees, brings blessings to people as well as business with the invocation (bodhon) of the goddess
[34] http://www.thedailystar.net/newDesign/news-details.php?nid=158294
[35] The obligations of states to respect and protect world cultural heritage sites have particularly been strengthened through treaties adopted under the auspices of UNESCO. Special provisions have been adopted regarding the responsibilities of belligerant parties at times of war. (www.unesco.com)
[36] Cultural Rights, Fribourg Declaration, Adopted in Fribourg on May 7th 2007
[37] http://assets.cambridge.org/97805217/93391/sample/9780521793391ws.pdf