To foster the status of ESC rights
According to the World Bank, Bangladesh has recently achieved a momentous hallmark of shifting its image of 'lower income country' to 'lower-middle income country'. Bangladesh graduated last year along with three other countries, i.e. Myanmar, Kenya and Tajikistan. We celebrate as the decades-old lower income stigma has come to an end with a remarkable improvement in higher per capita income coupled with a stable economic growth. By overcoming the fixed threshold of $1,045, Bangladesh maintained a per capita income of $1,080 to achieve this goal.
With this noteworthy advancement in the field of economics, question arises, how far Bangladesh is considering Economic, Social and Cultural (ESC) rights that were time and again neglected on the plea of so-called 'State's resource constraint'? How sincerely the government is reconsidering its pledge to a socialist society, free from exploitation by ensuring fundamental human rights, economic and social justice as set forth in the preamble of the Bangladesh Constitution after achieving unprecedented economic advancement? On this outset, sharing the same economic footing with three aforementioned countries, let us critically and comparatively analyse how far Bangladesh is pursuing these goals.
The Constitution of Bangladesh does not recognise some human rights like right to food, clothing, shelter, education and medical care as the 'fundamental rights'. While adopting the 1972 Constitution, it was practically done because in the 1970s the newly independent country lacked sufficient resources with fragile economy. However, it categorically accommodated all of the rights in the non-judicially enforceable part of 'Fundamental Principles of State Policy (FPSP)', specifically in Article 15. It has manifestly been mentioned that it is the State's responsibility to attain a steady improvement through planned economic growth with a view to securing such basic necessities of life.
However, the constitutional jurisprudence regards FPSPs akin to a number of goals, which the State tries to achieve one by one with its headway of economic capability. The State applies these principles as 'ideals' in making and interpreting laws and it revisits the principles to reconsider whether the State can afford any of the rights from the list, to upgrade its standard into judicially enforceable 'fundamental rights'. But the recent scenario of the Constitution is no short of a disaster leaving behind no room for such up-gradation of FPSPs into fundamental rights.
In the 15th amendment, by inserting Article 7B, the Parliament has restricted any kind of amendment (by way of insertion, modification, substitution, repeal or by any other means) in Part II of FPSPs, inter alia, leaving no scope open to upgrade any of the commitment mentioned in that Part.
Consequently, it will be impossible to seek economic rights 'as of right' even after achieving more economic solvency. If such status uplifting does not offer any 'advanced' guarantee of basic necessities, what would be the benefit for the marginalised people who do not even earn one third of our per capita? How will it mitigate, if not in large scale, the gap between classes of people in the journey of ensuring equality?
The countries that joined Bangladesh in the recent list seem far better in treating those socio-economic rights. Article 43 of the Kenyan Constitution (2010) has made the highest attainable standard of health, housing, adequate food of acceptable quality, and education being fundamental rights. And the State is bound to comply it as long as its resources permit (Article 20). Moreover, the State is obliged to give priority in allocating resources to ensure widest possible enjoyment of the rights to the marginalised. Otherwise, the State is bound to report the Court that the resources are not available. Undoubtedly, Kenya's approach is more humanistic in accommodating the rights with clear and unambiguous commitment.
The Tajik Constitution is one of the finest examples of ensuring basic human rights as judicially enforceable despite resource limitations over the years. They have ensured right to housing, free medical assistance and social security for old, ill, disabled people.
Though the jurists treat FPSP being a reflection of continuous journey of the State, the Bangladesh Constitution has turned it crippled and static that undermines the notion of Dr. Ambedkar, father of the Indian Constitution, who described FPSPs being novel feature of the Constitution!
Unless we can come up with a positive shift in 'rights assurance contents and processes' of socio-economic paradigm, attaining the status of 'lower-middle income country' would not benefit the poor.
The writer is a Student of LLM, University of Dhaka.