Enforceability of ESC rights in Bangladesh constitution

Enforceability of ESC rights in Bangladesh constitution

The International Covenant on Economic, Social, and Cultural Rights (ICESCR) is a multilateral treaty that sets out a number of human rights related to economic, social, and cultural standards. Bangladesh ratified the ICESCR in 1999.
Debates still remain as to whether the economic, social, and cultural (ESC) rights should be contained in constitutions. The Constituent Assembly of Bangladesh faced a serious debate
while it was drafting the Constitution. Suranjit Sengupta, the lone opposition member in the Assembly, did not support the inclusion of ESC rights in the Constitution (Constituent Assembly Debates 1972, Part II). The Constituent Assembly of Bangladesh ultimately included ESC rights in the Constitution considering their ‘progressive realization’ contingent upon the availability of state resources The Constitution of Bangladesh recognizes ESC rights in Part II as Fundamental Principles of State Policy (FPSP).

 However, Article 8(2) of the Constitution specifies that these principles "shall not be judicially enforceable." This means that ESC rights cannot be directly enforced in the courts. Despite this, the Supreme Court of Bangladesh has played a commendable role in protecting ESC rights through the harmonious interpretation of fundamental rights and FPSPs in several cases on social, economic, and cultural issues. The Supreme Court has held that ESC rights, while not directly enforceable, have a fundamental core that is justiciable. The Court has also developed a number of principles to guide the interpretation and application of ESC rights, including the principles of progressive realization, non-discrimination, and minimum essential levels.

The specific articles in the Bangladesh Constitution that address ESC rights include:-

[Article 15:] This article of the Bangladesh Constitution recognizes the principles of the state policy, which include then commitment to achieving the well-being of the people by
securing economic and social justice. It sets the tone for the inclusion of ESC rights in the state's policies and actions.

[Article 17:] This article outlines various principles, including the fundamental principle that it shall be a fundamental responsibility of the state to attain, through planned economic growth, a constant increase in public well-being.

[Article 18:] This article mentions that the state shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties.

[Article 19:] It recognizes that the state shall provide for all citizens, within available resources, the free and compulsory
education for children.

[Article 20:] This article addresses the right to work and education.
Some ESC rights are immediately enforceable without any delay and not subject to the qualification of ‘progressive realization’. For example, obligations in terms of health care,
basic shelter, and housing for evicted homeless people are obligations of immediate effect though they relate to ESC rights.

It is a common misunderstanding that ESC rights are strictly ‘positive rights’ requiring the state to undertake positive actions considering the availability of resources and resource constraints is a good plea for the state in terms of non-fulfillment of ESC rights. It is now established that ESC rights also have ‘negative dimensions’, for example, a state cannot arbitrarily deprive a particular community of access to health care, housing, basic shelter, basic education, and so on, and also it cannot take measures to evict people from a particular place without providing them with adequate basic shelter or housing.

The Optional Protocol (OP) to the International Covenant on Economic, Social, and Cultural Rights (ICESCR) that came into force on 5th May 2013 also affirms the equality, interdependence, and indivisibility of all human rights. It is an important tool to strengthen access to justice globally in relation to ESC rights.

Here are some examples of cases in which the Supreme Court of Bangladesh has used harmonious interpretation to protect ESC rights:
(1)Human Rights and Peace for Bangladesh v. Government of Bangladesh (2010): The Court held that the right to education under Article 17 of the Constitution includes the right to free
and compulsory primary education.

(2)Bangladesh Environmental Lawyers Association v. Government of Bangladesh (2011): The Court held that the right to a healthy environment is a fundamental right under the Constitution.

(3)Ain o Salish Kendra v. Government of Bangladesh (2012): The Court held that the government has a positive obligation to protect the rights of slum dwellers, including their right to
housing and access to basic services.

(4)Bangladesh Legal Aid and Services Trust v. Government of Bangladesh (2017): The High Court Division of the Supreme Court directed the government to take steps to ensure the right
to education for all children in Bangladesh.

(5)In the Bangladeshi landmark cases Modhumala vs. Director House Building Research Institute & Ors [16],

(6)Kalam & Ors vs. Bangladesh & Ors[18],

(7)Aleya Begum vs. Bangladesh[19],

(8) The Supreme Court of Bangladesh in the case Major General K.M. Shafiullah & Anr vs. Bangladesh[20]

(9)The Appellate Division (AD) of the Supreme Court of Bangladesh in the landmark decision Dr. Mohiuddin Farooque vs. Bangladesh (FAP 20 case,

(10) ‘Right to health and medical care’ in Advocate Zulhasuddin vs. Bangladesh[7]

In these cases, the Supreme Court of Bangladesh has ordered the government to take various measures to protect the ESC rights of its citizens. The Court has also ordered the government to provide compensation to victims of ESC rights violations. Although other states, remarkably India, Ireland, Bangladesh, Pakistan, Myanmar, etc., have listed ESC rights in their constitutions as directive or fundamental principles of state policy; courts and regional bodies there have routinely
adjudicated upon ESC rights claims proving these rights judicially enforceable. States that are parties to the International Covenant on Economic, Social, and Cultural rights (ICESCR) and its Optional Protocol are obliged to take deliberate, concrete, and targeted.

Here are some of the challenges to the enforceability of ESC rights in Bangladesh:

1. The FPSPs are not directly enforceable.
2. The government has a wide range of discretion in implementing the FPSPs.
3. There is a lack of awareness of ESC rights among the public and government officials.
4. There is a shortage of resources to implement ESC rights. Despite these challenges, the Supreme Court of Bangladesh has shown a commitment to protecting ESC rights. The Court's progressive jurisprudence has inspired other courts in the region to take a more proactive approach to the enforcement of ESC rights.