JUSTIFIABILITY OF SOCIO-ECONOMIC RIGHTS: THE NEW STRATEGIC APPROACH BY COURTS

Introduction:

Economic, social and cultural rights (ESC) are socio-economic human rights, distinct from civil and political rights. Economic, social and cultural rights are included in the 1948 Universal Declaration of Human Rights (UDHR) and outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Examples of such rights include the right to food, the right to housing, and the right to health.

[1]According to Karel Vasak‘s theory of three generations of human rights, these rights are considered second-generation rights,[1] and the theory of negative and positive rights considers ESC rights positive rights.

Justifiability:

The Universal Declaration of Human Rights recognizes ESC rights as both natural and legal rights, defining human rights as inalienable by nature while also issuing legal protection. Signatories of the declaration are bound to the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”[2]

As of December, 2008, the International Covenant for Economic, Social, and Cultural rights had 160 parties.[3] A further six countries had signed, but not yet ratified the Covenant. Some states have not signed the ICESCR, and are therefore unwilling to enshrine purported economic, social and cultural rights as legal rights. Other nations, such as the United States, have signed but not ratified, on the basis that the government may provide services if resources are available, but such rights are merely social goals.

Lists of Socio Economic Rights- The new Strategic Approach by Courts:

1.      Right to Life: [4]The Constitution of Bangladesh does not explicitly provide for the right to healthy environment either in the directive principles or as a fundamental right. Article 31 states that every citizen has the right to protection from ‘action detrimental to the life liberty, body, reputation, or property’, unless these are taken in accordance with law. It added that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law. If these rights are taken away, compensation must be paid. Article 32 states: “No person shall be deprived of life or personal liberty save in accordance with law”. These two articles together incorporate the fundamental ‘right to life’. The following discussion suggests that this right to life includes the right to a healthy environment capable of supporting the growth of a meaningful ‘existence of life’.

  • In 1994, a public interest litigation was initiated before the Supreme Court dealing with air and noise pollution. The Supreme Court agreed with the argument presented by the petitioner that the constitutional ‘right to life’ does extend to include right to a safe and healthy environment. [5]In a recent case, the Appellate Division and the High Court Division of the Supreme Court have dealt with the question in a positive manner. The Appellate Division, in the case of Dr. M. Farooque v. Bangladesh [6]has reiterated Bangladesh’s commitment in the ‘context of engaging concern for the conservation of environment, irrespective of the locality where it is threatened.’ (Afzal, CJ, para. 17). This was a full court consensus judgment and the court decided:
  • “Articles 31 and 32 of our constitution protect right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.” (Chowdhury,J, Para.101)

2.      Right to Work: The right to work is the concept that people have a human right to work, and may not be prevented from doing so. The right to work is enshrined in the Universal Declaration of Human Rights and recognized in international human rights law through its inclusion in the International Covenant on Economic, Social and Cultural Rights, where the right to work emphasizes economic, social and cultural development.[7]

3.      Right to choice of employment: This refers to any right that a person has full authority to choose his affordable jobs according to his preferences.

4.      Right to own property: [8]Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things. Important widely recognized types of property include real property (land), personal property (physical possessions belonging to a person), private property (property owned by legal persons or business entities), public property (state owned or publicly owned and available possessions) and intellectual property (exclusive rights over artistic creations, inventions, etc.)

5.      Right to adequate standards of living: [9]Standard of living is generally measured by standards such as real (i.e. inflation adjusted) income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. The idea of a ‘standard’ may be contrasted with the quality of life, which takes into account not only the material standard of living, but also other more intangible aspects that make up human life, such as leisure, safety, cultural resources, social life, physical health, environmental quality issues etc.

6.      Right to access to education: Education is a fundamental human right and essential for the exercise of all other human rights. It promotes individual freedom and empowerment and yields important development benefits.

7.      Right to Social Security: 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:

  • [10]social insurance, where people receive benefits or services in recognition of contributions to an insurance scheme. These services typically include provision for retirement pensions, disability insurance, survivor benefits and unemployment insurance.
  • income maintenance—mainly the distribution of cash in the event of interruption of employment, including retirement, disability and unemployment
  • services provided by administrations responsible for social security. In different countries this may include medical care, aspects of social work and even industrial relations.
  • More rarely, the term is also used to refer to basic security, a term roughly equivalent to access to basic necessities—things such as food, clothing, shelter, education, money, and medical care.

8.      Right to social and medical assistance: In this segment there are several rights regarding social and medical assistance. Those are given below:

  • [11]Food for education: covered 30% of primary schools and 40% of Children aged 5-10, at a costs of $0.10 per student per day; Children must attend 85% of classes each month; not food in school but grain for parents.

  • Old age allowance of $2.9 per month for 1.6 million people in Bangladesh.

9.      Right to Adequate Nutrition: Rates of malnutrition in Bangladesh are among the highest in the world. More than 54% of preschool-age children, equivalent to more than 9.5 million children, are stunted, 56% are underweight and more than 17% are wasted. Although all administrative divisions were affected by child malnutrition there were important differences in the prevalences of the three anthropometric indicators. The prevalence of underweight ranged from 49.8% in Khulna to 64.0% in Sylhet which also showed the highest prevalence of stunting (61.4%) and wasting (20.9%). Despite the high levels, rates of stunting have declined steadily over the past 10 years.

Significant progress has been made in cereal production in Bangladesh over the past decades. However, the rapid population growth and resulting high and growing food requirements pose a difficult challenge given the limited availability of cultivable land in Bangladesh. Re-occurring disasters further complicate the stability of food production. Recently the gouvernment of Bangladesh and interested organisations have started to encourage non-cereal food production and consumption along with food self-sufficiency. Greater attention is being given to supportive policies for agriculture input, research on non-cereal crops, and commercial and homestead promotion of poultry and fruits/vegetables are receiving greater attention. There is a clear need to diversify food sources both in terms of land/environmental sustainability, development of the rural economy and increased consumption to achieve improvements in the nutritional status of the people of Bangladesh.

However, The supreme court of Bangladesh had declared to give the right of having adequate nutritional food for the development of people of Bangladesh.

10.  Right to Social Welfare Benefits: [12]According to the Global Hunger Index (GHI), Bangladesh (24.7), with a rank of 67 out of 84, remains among the countries with the highest indexes in the world. With a population of 150 million, Bangladesh is one of the world’s most densely populated countries. It remains one of the poorest countries, with 49 percent living below the national poverty line. Child malnutrition rates lie at 48 percent and account for the second highest in the world, much of which is attributed to the low social status of women in Bangladeshi society.

[13]In addition, the Government has increasingly taken steps to acknowledge the needs of the elderly population. In 1978, the Government introduced a policy of Universal Health Care. Currently, the Ministry of Health and Family Welfare (MOHFW) is responsible for developing health policies and implementing the Health, Nutrition and Population Sector Program. Under this program, older people are entitled to use the national healthcare services. However, because of the lack of quality and accessibility of state health services, only 8 percent of the rural people in Bangladesh reportedly use state healthcare.

In 2006, the Government made a significant step by producing the National Policy on Older People. Government initiatives include: the Old Age Allowance, the Widow’s Allowance Scheme, and the Allowances for Insolvent Persons with Disabilities Programme. All three initiatives provide social cash transfers of 220 BDT (USD 3) per month to those older people living below the poverty line. However, although these government schemes make a difference to those receiving the benefits, there are still millions of older people who require assistance. But they are not yet targeted. This is evident in the above mentioned cases.

11. Right to have equality of opportunity:

  • [14]The State shall endeavor to ensure equality of opportunity to all citizens.

  • The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.

12. Promotion of international peace, security and solidarity:

  • [15]The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter, and on the basis of those principle shall-
  • The State shall endeavor to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.
  1. Strive for the renunciation of the use of force in international relations and for general and complete disarmament;
  2. uphold the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice; and
  3. support oppressed peoples throughout the world waging a just struggle against imperialism, colonialism or racialism.

13.  Right of having fundamental principles: 1. [16]the principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy.

1A. Absolute trust and faith in the Almighty Allah shall be the basis of all actions.]

2. The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.

14.  Provision of basic necessities: [17]It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens-

  • the provision of the basic necessities of life, including food, clothing, shelter, education and medical care;
  • the right to work, that is the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of work;
  • the right to reasonable rest, recreation and leisure; and
  • The right to social security, that is to say to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases.

15.  Promotion of local Government institutions: The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.

16. Public health and Morality:

  • The State shall regard the raising of the level of nutrition and the improvement of public health as moving its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and drugs which are injurious to health.

  • The State shall adopt effective measures to prevent prostitution and gambling.

17.  Right to secure national culture: The State shall adopt measures for the protection against disfigurement, damage or removal of all monuments, objects or places of special artistic or historic importance or interest.

18. Duties of citizen and Public service:

  • [18]It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property.

  • Every person in the service of the Republic has a duty to strive at all times to serve the people.

Conclusion: Bangladesh is a democratic country. People elect the government by their own preference giving votes which is held after every five years. The government’s duty is to serve people and taking curricular activities for the socio and economic development of the country. And for doing so, government make rules and implement them for better way of life. The high court and Supreme Court of Bangladesh help the government to make laws and regulations. The courts have the authority to change any laws and can add new laws according to the state’s necessity. It’s the duty of any countries govt. to implement the right laws and regulation for the socio, economic and also cultural development of the citizens.

Bibliography:

1.      http://en.wikipedia.org/wiki/Economic,_social_and_cultural_rights

2.      Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 14-16 January 2002, Geneva: Background Paper No. 4

3.      http://www.helplinelaw.com/law/bangladesh/constitution/constitution02.php

4.       “UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights”.UN. 2009-02-24. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en. Retrieved 2009-02-25.

5.      Karel Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights”, UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.

6.      Constitutional analysis of right to environment by S. M. Masum Billah “ The daily star”.

7.      http://www.cesr.org/section.php?id=63

8.      The Bangladesh Development StudiesVolume XXXII, March 2009, Number 1Star Model for Measuring Inflationary Pressure in BangladeshBy Mustafa Mujeri, Md Shahiduzzaman & Md Ezazul Islam.

9.      Kamal Hossain, “Interaction of Fundamental Principles of State Policy and Fundamental Right” in Public Interest Litigation in South Asia, Rights in Search of Remedies, ed. Sara Hossain et al, pp.43-44

10.  Human Rights in Bangladesh Report, 1997 (prepared by four human rights organisations),Dhaka: University Press, 1998, p.5.

11.  Ahmad, Q.K.(1992) ‘Policies and Strategies for Sustainable Development in Bangladesh.’ Futures.November1992, pp. 879-893.

12.  Rashid, H. (1991) Geography of Bangladesh. University Press Limited, Dhaka.

13.  BADERIN, M. 2007. Economic Social and Cultural Rights in Action. Oxford: OUP.

BELLAMY, R. 2008. The Democratic Constitution: Why Europeans Should Avoid American Style Constitutional Judicial Review. European Political Science, v. 7, n. 1,p. 9-20.

14.  2007. Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights. Oxford: Oxford University Press.

15.  COOMANS, F. 2006. (Org). Justifiability of Economic and Social Rights: Experiences from Domestic Systems. Antwerpen: Intersentia and Maastricht Centre for Human Rights.

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[1] Karel Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights”, UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.

[2]Universal Declaration of Human Rights, preamble

[3] “UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights”. UN. 2009-02-24. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en. Retrieved 2009-02-25.

[4] Ahmed, N., Public Interest Litigation: Constitutional Issues and Remedies (1999, BLAST, Dhaka)

[5] Dr. M. Farooque v. Secretary, Ministry of Communication, Government of the People’s Republic of Bangladesh and 12 Others (Unreported) . The case involved a petition against various ministries and other authorities for not fulfilling their statutory duties to mitigate air and noise pollution caused by motor vehicles in the city of Dhaka.

[6] (1997) 49 Dhaka Law Reports (AD), p.1. The legality of an experimental structural project of the huge Flood Action Plan (hereinafter, FAP) in Bangladesh was questioned. The petitioner alleged that FAP is an anti- environment and anti- people project. That FAP is adversely affecting and injuring more than a million people by way of displacement, causing damage to soil and destruction of natural habitat, of fishes, flora and fauna.

[7] Article 23.1 of the Universal Declaration of Human Rights states: “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.”

6“property definition”, BusinessDictionary.com

[9] Industrial Revolution and the Standard of Living by Freddy Madero

[10] Social security Web portal of the International Social Security Association

[11] Social Assistance in Asia and Pacific – ADB July 2009

[12] Right to Food Programme (foodjustice@ahrc.asia)

[13] Asian Human Rights Commission (ua@ahrc.asia)

[14] Fundamental Principles of State Policy.

[15] Article 25 of Fundamental principles of society policy

[16] Article 8 of Fundamental principles of society policy.

[17] The Universal declaration of human rights “Bangladesh Police”.

[18] Article 21: Fundamental principles of society’s policy in Bangladesh.

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