Since the late 19th century, socio-economic rights which are also called ‘second-generation rights’ started taking place in the constitutions of different countries worldwide. After World War II, international law started recognizing these rights. The Universal Declaration of Human Rights (UDHR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1948 because a plenty number of scholars and reformers believed that civil and political rights could hardly reach their goal without providing socio-economic rights. Socio-economic rights are indispensable for a human being to live with dignity. Incorporation in the constitution of all sets of human rights, especially Civil and Political Rights on the one hand and Economic, Social and Cultural Rights on the other hand evidences the state’s concern for not only protecting its individuals from state absolutism but also creating conditions that will allow every individual to develop his maximum potentials.[1] Thus, the framers of the Bangladesh Constitution stated in the Preamble of the Constitution that Bangladesh will secure the economic and social rights for all the citizens.
Fundamental Principles of State Policy (Part II) of the Bangladesh Constitution includes socio-economic rights consisting of Articles 8 to 25, such as the right to education, right to health, right to work, equality of opportunity, etc. Though these are the inalienable rights of a person, Article 8(2) of our Constitution makes these rights judicially unenforceable. These fundamental principles work as a guide to the interpretation of the Constitution.[2] The reason behind its unenforceability can be the limited resources as well as overload on the state’s capacity. As Bangladesh is still on the list of developing countries, having such a larger population, it can be difficult for the government sometimes to provide each and everyone with a proper amount of care. Judicial enforcement of socio-economic rights is contrary to the doctrine of separation of powers and because of this doctrine, the judiciary lacks the capacity to enforce socio-economic rights which are the concern of the executive.[3]
There are a few famous cases of Bangladesh to explain the level of judicial enforcement of these principles. In the Kudrat-E-Elahi Panir vs. Bangladesh (1992)[4], the High Court came to the conclusion that there is no enforceability of these principles, yet they can be enforced through Article 8(2) to declare any law void on the ground of inconsistency. But Justice Mustafa Kamal of the Appellate Division opined that it is the law of the Constitution itself that the Fundamental Principles of State Policy (FPSP) are not laws but principles. Therefore, to equate principles with laws is to go against the law of the Constitution itself. So other laws cannot be made void on the ground of inconsistency with these principles.[5] The case of Dr. Mohiuddin Farooque, et al. v. Bangladesh (2003) was on the environmental issue, particularly on hazardous smokes and noises created by vehicles. This Public Interest Litigation (PIL) was filed under Articles 18 and 32 of the Constitution. The court gave the judgment in favor of the petitioner and ordered the respondent to take preventive measures to reduce the pollution level and its effect. The court in most of the cases adopted the literal meaning of these principles as Article 8 says and kept these principles unenforced. But in the case of Anwar Hossain v Bangladesh, Justice Badrul Haider Chowdhury stated that these principles are fundamental in the governance of the country, and it is the duty of the state to apply these principles in making laws. The unamendable nature of these principles shows that the executives cannot flout the directive principles.[6] While implementing the fundamental rights stated in part III, these principles frequently come into the discussion and are always relatable. For instance, Article 27 speaks basically the same thing as Article 19; Article 32 reflects the idea of Article 18. So, for the enforcement of the fundamental rights, it is really essential to implement these socio-economic rights.
Making the socio-economic rights judicially enforceable will create an obligation on the state to fulfil them and utilize the resources well to bring an equitable atmosphere for its citizens and reduce the imbalance in the society. It is necessary because in many third world countries of the world, economic growth has happened but the living standard of the people has not improved. Bangladesh has also ratified the ICESCR which imposes an obligation to make these socio-economic rights justiciable in its territorial jurisdiction as much as it can according to its availability of resources. The government has to advance with proper planning to execute these rights as the territory of Bangladesh is not too big for its gigantic population.
The fulfilment of socio-economic rights is much dependant on socio-economic development, such as growth or decrease in GDP, advancement in commerce, and trade. According to the Bangladesh Ministry of Finance, in 2010 the per capita income was 781 US dollars. In 2019, the Law Minister of Bangladesh, Anisul Huq said in a conference that our per capita income touched 1909 US dollars.[7] Since independence, the country has improved significantly in its economic sector. Nonetheless feeding such a vast population and also providing shelter on this comparatively small territory is difficult. During the drafting of our constitution in 1972, the framers did not make these socio-economic rights enforceable because they knew the impediments coming in the way of implementation of these rights. In a country that just went through a liberation war, it is pretty obvious that time will be needed more or less, to rebuild all the sectors of that country in a planned manner. The new country after gaining independence faced many problems, including the restoration of transportation, communication, and international trade networks; the renewal of the power supply; the resurgence of education, health, and population programs; and the restart of agricultural and industrial production.[8] But after 49 years of independence, keeping in mind the overall development of the country, the judicial non-enforcement of these rights is a matter of concern. The government, lawmakers, and scholars should give a second thought on the enforceability of these rights as the country is moving forward to speedy upliftment.
Writer: Syeda Rukaiya Binte Imam Tunaz, LL.B (Hon’s), 3rd Year, Jahangirnagar University.
N.B. This essay had been submitted for the Essay Competition under the event ” Celebrating Constitution Day: Stepping into 50 ” organised by NILS Jahangirnagar University Chapter with the support of NILS Bangladesh in partnership with JUBAER AHMED AND ASSOCIATES and secured Third Position in the competition.
Endnote:
[1] Moha. Waheduzzaman, ‘Economic, Social and Cultural Rights under the Constitution: Critical Evaluation of Judicial Jurisprudence in Bangladesh’ (2014) Bangladesh Law Journal 14, 1 & 2
[2] The Constitution of People’s Republic of Bangladesh 1972, art 8(2)
[3] Tariq Bin Sarwar, ‘Judicial Enforcement of Socio Economic Rights in Bangladesh: Lessons from India and South Africa’ (2014) Society & Change, Vol VIII No 2
[4] Kudrat-E-Elahi Panir v Bangladesh [1992] AD 319, [1992] DLR 44
[5] Kudrat-E-Elahi Panir v Bangladesh [1992] AD 319, [1992] DLR 44 [85] (Mustafa Kamal J)
[6]Anwar Hossain v Bangladesh [1989] BLD 1
[7] ‘Bangladesh Makes Remarkable Progress in Socio-Economic Development’ The Daily Star (2 October 2019)
[8] Hugh Russell Tinker, ‘Bangladesh’ (Encyclopedia Britannica, 10 March 2021)<https://www.britannica.com/place/Bangladesh> accessed 17 November 2021