Bangladesh Constitution: The judicial enforceability of economic, social and cultural rights

Illustration: TBS

The term human rights can be found in different historical declarations and writings of various scholars, e.g, Cyrus Cylinder, Magna Carta, the Medina Charter, the International Bill of Rights, and so on. In our constitution, human rights have been discussed in three places, i.e, the Preamble, Part II (Fundamental Principles of the State Policy), and Part III (Fundamental Rights). 

The International Bill of Rights is considered the mother of human rights and includes three components: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). 

In our constitution, the Fundamental Principle of State Policy incorporates economic, social, and cultural (ESC) rights, while Part III of our constitution incorporates civil and political (CP) rights.

David Landau, a professor at Florida State University, defined social rights to include the right to health, the right to recreation, the right to 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. 

Meanwhile, economic rights mean the right to work, the right to rest, the right to an adequate standard of living, the right to enjoy a free trade union, and the 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, dealing with the rights to participate in cultural events, the right to enjoy the benefits of scientific progress, and the right to protect scientific research and creative activities. 

In our constitution, the economic, social, and cultural  rights have been referred to as the "Fundamental Principle of State Policy" and discussed between Articles 8 and 25 in Part II. It is especially mentionable that in our constitution, Article 8(2) states that these are not judicially enforceable.

The most significant issue in our constitution is that ESC rights are not laws but just principles of state policy. Now, what is a principle? The answer is that principles are those that cannot compel the state, even if they are not judicially enforceable. 

Although Article 7(2) has 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: if the constitution is law, then it must be judicially enforceable, but economic, social, and cultural rights are not judicially enforceable, so it is a crystal clear question whether these are parts of the constitution.

In the case of Kudrat E-Elahi v. Bangladesh, Justice Mustafa Kamal clarified that the fundamental principle of state policy in Bangladesh is not laws but principles. Again, if any law violates the fundamental principle of state policy, then what will be the fate of that law? 

There, former Justice Naimuddin Ahmed gave a remarkable statement: "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 judicially enforceable are obvious. They are in the nature of people's programmes for the socio-economic development of the country in a peaceful manner, not overnight, but gradually. Implementing these programmes 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."

However, the Indian Constitution did not include ESC rights in its fundamental rights. In the Indian Constitution, the ESC rights have been referred to as directives that are not judicially 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: 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 IX(A), 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."

In the USA, their constitution gave no space for ESC rights. Even today, they have just included the CP rights in their constitutions but not the ESC rights. The South African constitution is the best in terms of ESC rights. The South African constitution does not distinguish between CP rights and ESC rights in terms of their legal status. They provide all these rights equally. 

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 a case-to-case basis.

It seems that almost all the countries assume that ESC rights require financial involvement, whereas CP rights do not require any financial involvement. This is a wrong assumption; rather, the modern view is that all rights, whether CP rights or ESC rights, are the same.

In 1972, in the Gonoporishad, only Suranjit Sen Gupta and Manabendra Narayan Larma opposed why the Fundamental Rights did not include food, clothing, housing, healthcare, etc. 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; instead, when the country is financially solvent, then these rights will be fulfilled "gradually, progressively, and slowly."

The government currently provides free textbooks to students in grades 1–9. The government provides housing to the landless. As our country is gradually developing, the government is taking some pragmatic steps in favour of the people to fulfil the fundamental principle of state policy. But it does not mean these will be implemented overnight; rather, slowly and gradually.

Md Mizanur Rahman is an advocate of the Cumilla Judges' Court.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.