Advocate Md. Mizanur Rahman
Advocate Sonia Akter
Human rights are those rights that every person in this world belongs from birth until death. The term “Human Rights” have been discussed in different holy books like the Holy Quran, holy Bible, holy Tripitakas and the Hindu Vedas. Earlier the term “Human rights” can be found in different manuscripts and writings of different scholars, e.g. Cyrus Cylinder, Magna Carta, The MedinaCharter, the International Bill of Rights and so on. In our constitution “Human Rights” have been discussed in 3 (three) places, i.e. in the Preamble, part II (Fundamental Principal of the State Policy) and Part III (Fundamental Rights). The International Bill of Rights is considered the mother of human rights which has 3 components; the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR). In our constitution, the Fundamental Principle of the State Policy incorporated the Economic, Social and Cultural (ESC) rights, while part III of our constitution incorporated the Civil and Political (CP) rights.
David Landau, a Professor at Florida State University defined “Social Rights” are those rights of the people to achieve their basic human needs.” It includes the right to health, the right to recreation, the right to found and maintain a family, the right to housing, the right to food, the right to education, the right to social security, and the right to work. While“Economic Rights” mean the right to work, right to rest, right to an adequate standard of living, right to enjoy free trade union and right to a pension when someone is old or disabled. However, “Cultural Rights” have been discussed in Article 27 of UDHR and Article 15 of ICESCR which deals with the rights to take part in cultural events, the right to enjoy the benefits of scientific progress and the right of getting the protection of scientific research and creative activities. In our constitution, the Economic, Social and Cultural (ESC) Rights have been referred to as “Fundamental Principles of the State Policy”. All these rights have been discussed in articles 8 to 25 in Part II. It is especially mentionable that in our constitution article 8(2) has said that these are not judiciary enforceable.
The most significant issue is that in our constitution the ESC rights are not “Law”, rather these are just principles of the state policy. Now, it can be a question that what is the principle. The answer is “Principles” are those that cannot compel the state, even if they are not judicially enforceable. Although, article 7(2) has clearly mentioned, “This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”. So, here a specific contradiction can be seen that if the constitution is the law then the law must be judiciary enforceable, but Economic, Social & Cultural rights are not judiciary enforceable, so it is a crystal clear question that whether these are part of the constitution.
In the case of Kudrat E-Elahi v Bangladesh (44 DLR (AD) 319, P 346, para 84) Justice Mustafa Kamal clarified this issue that the fundamental principle of state policy of Bangladesh is not Laws, but Principles. Again, in a question if any Law violates a fundamental principle of the state policy, then what will be the fate of that law? There the Former Justice Naimuddin Ahmed’s answer was negative. His statement on that question was, “It does not mean that since the court cannot compel their enforcement, the executive and the legislature are at liberty to flout or act in contravention of the provisions laid down in part II of the constitution.”
It seems that Justice Naimuddin Ahmed tried to make the ESC rights enforceable, but the Appellate Division overruled his contention. Former Chief Justice Shahabuddin Ahmed clarified the Non-Justification nature of ESC rights. He opined, “The reasons for not making these principles judiciary enforceable is obvious. They are in the nature of people’s program for the socio-economic development of the country in a peaceful manner, not overnight, gradually. Implementation of these programs requires resources, technical know-how and many other things including mass education. Whether all these prerequisites for a peaceful socio-economic revolution exist is for the state to decide.”
In comparing the constitutional position of ESC rights with our constitution, the constitution of India, the USA and South Africa can be mentioned here significantly. The Indian constitution did not include ESC rights in their fundamental rights. In Indian Constitution, the ESC rights have been referred to as directives which are not judiciary enforceable. But in India, there is a huge difference in terms of directives. In our country education is not a fundamental right. But, in India, once education was a directive, but when the Indian judiciary asked their Parliament how many years they needed to implement all these, then the Indian judiciary gave dictation to the legislative organ to include all education in their fundamental rights. And now education is a fundamental right in India.
But, is it possible to implement it in Bangladesh? The answer is very easy that it is not possible in Bangladesh because article 7(B) said, “Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.”
However, In USAno space was given for ESC rights in their constitution. Even, today they have just included the CP rights in their constitutions, but not the ESC rights. In the USA, the Bill of Rights means 10 amendments. After the formation of their constitution, they included all the civil and political rights through these 10 amendments.
The USA constitution mainly focuses on the Natural Law School. Their constitution experts believe that by not specifying the ESC rights in their constitution they have kept the door open to include all these rights when necessary. At present the American people are entitled to enjoy all these rights. Because by writing or specifying one can include some rights, but if these rights are not specifically specified then there is an opportunity to include these rights at any time.
South African constitution is the best constitution in the aspect of ESC rights. South African constitution does not distinguish between CP rights and ESC rights in terms of their legal status. They provide all these rights equally. They did not make anything enforceable or non-enforceable or even it did not make distinguish by giving principles and rights. In the Soobramoney vs Minister of Health case, the Court said that the South African government is ready to provide all rights to its people, but on case to case basis.
It seems that almost all the countries assume that ESC rights require financial involvement, whereas the rights do not require any financial involvement. This is absolutely a wrong assumption, rather the modern view is that all rights, whether it is CP rights or ESC rights, are all the same. Here the most challenging issue is how the government treats these rights for its people, it completely depends on them. So, whenever we say both ESC rights & CP rights are the same, then their treatment will be the same, but when we say these rights are different, then their treatment will be different also.
In 1972, in the Gonoporishad, only Suranjit Sen Gupta and Manabendra Narayan Larma opposed why food, clothing, housing, healthcare etc. were not included in the Human Rights. Dr Kamal Hossain, the then Law Minister replied that the country was not financially in a good position to include these rights as fundamental rights, rather when the country is financially solvent then these rights will be fulfilled “gradually, progressively and slowly.”
At present, the government provides free textbooks to students from classes 1 to 9. The government has taken steps to provide houses to every poor. Moreover, under the universal Pension scheme, all citizens aged between 18 to 50 will enjoy pension facilities.
Basically, these are the steps taken by the government to the fulfilment of the fundamental principle of state policy. As our country is gradually developing, hence the government is taking some initiatives in favour of the people to fulfil the fundamental principle of state policy. But it does not mean these will be fulfilled overnight. Rather it is the principle of the state that these will be fulfilled slowly and gradually.
About the authors:
Md. Mizanur Rahman is an advocate of the Cumilla Judges’ Court and Sonia Akter is an Advocate of the Faridpur Judge’s Court.