South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Daily Star on Sep. 16 Mohammed Golam Sarwar ::

The underlying spirit of human rights jurisprudence is gaining momentous success in this modern era. Human rights by its divine virtue of human dignity have taken place with due emphasis in the modern legal system. Over the years there has been a gradual enlargement of the scope of human rights through reinterpretation of the concept of human rights to protect victims from abusers and perpetrators. But the fragmentation of human rights from freedom to fear and want still reflect the sorrow picture of human rights realisation.  This minimal realisation reveals particularly in the area of economic, social and cultural entitlements.

Though many human rights proponents argued about the indivisibility and interdependence of human rights but the reality suggests otherwise regarding Economic, social and cultural rights (ESC). The ESC rights are often remaining unrealised in the area of  human development.

ESC rights are recognised either explicitly or implicitly at both the international and national instruments dealing with human rights. Explicit recognition is found in a variety of international instruments ranging from hard-law treaties to soft-law documents, such as the International Covenant on Economic, Social and Cultural Rights, the European Social Charter and ASEAN Human Rights Declaration (AHRD). Implicit recognition of ESC rights is also found within the rubric of various civil and political rights contained in international instruments. For example the right to adequate housing has been read into the right to protection against inhumane and degrading treatment and the right to respect for private and family life which is found in European Convention on Human Rights.

At the domestic level ESC rights are also recognised in various ways. Like, in Bangladesh ESC rights are incorporated in the constitution under the head of fundamental directives which are not judicially enforceable.

Exploring ESC rights through judicial activism
The Judges are playing pro-active role by giving progressive interpretation to realise ESC rights. In India, People’s Union for Civil Liberties v Union of India and Others (2004,12 SCC108), the Court through interim order directed the authorities to see that food is provided to the aged, infirm, disabled, destitute men and women who are in danger of starvation, pregnant and lactating women, destitute children. Court also directed to identify the families below poverty line.

In Kapila Hingorani v State of Bihar (2003; 6SCC1), the Court approved that human being has the right to food and ‘hunger’ is a form of violation of human rights and state cannot escape the liability of starvation deaths.

In one of the Bangladeshi case,Dr. Mahiuddin Farooque v Government of Bangladesh 48 DLR, held that right to life includes right to adequate standard of living which includes clothing, shelter and medicine. In another case name Rajdhani Unnayan Kortripokkho (RAJUK) and another v Mohshinul Islam and another, the Appellate Division gave directions for protecting the environment of Dhaka city and providing an environment-friendly interpretation of urban development.

However, the technique of protecting economic and social rights is still a difficult issue remains to be conceptualised, as the legal effect of ESC rights is a matter of debate. The debate concentrates mainly on the recognition of ESC rights i.e. their source and content and their enforcement i.e. justifiability along with monitoring mechanisms for the protection of ESC rights.

Challenges for enforcement of ESC rights
The proper implementation and enforcement of ESC rights is facing many challenges. Though they are incorporated in the International covenants and declarations, still they have been kept in the inspirational and programmatic category and not making any decisive element of right.

As a result, the enforcement of ESC rights got further deceleration on the ground that they are too vague to have clear legal content, too costly to implement and thus involve number of positive measures to fulfill.

Regarding the cost and positive measures, UN Committee on Economic, Social and Cultural Rights in its General Comment No. 3, underscored for comprising obligations to take steps towards realising these rights. In this regard, the countries of Asia concentrated mainly on the implicit recognition of ESC rights. However by virtue of the device of judicial activism, the ESC rights receive significant indirect protection through the interpretations and applications of other constitutional rights.

Establishing linkage between ESC Rights and Human development
A careful analysis of the ESC rights suggests proper implementation of the basic necessities of a human being that includes, right to food, health and education. On the other hand the human development, by virtue of capability approach, can only be ensured when a particular individual is able to function as well as to avail those basic necessities. It is clear that, in order to attain the status of human development one has to avail the economic, social and cultural rights.

Let me refer the human development approach based on the framework of capability approach pioneered by Amartya Sen. He said, the capability approach refers two core normative claims: first, the claim that the freedom to achieve well-being is of primary moral importance; second, that freedom to achieve well-being is to be understood in terms of people’s capabilities, that is, their real opportunities to do and be what they have reason to value.

The capability approach purports that freedom to achieve well-being is a matter of what people are able to do and to be, and thus the kind of life they are effectively able to lead. In the development paradigm the capability approach enables a particular individual to assess his well being taking into account the social dynamics.

To realise the human rights, it is significantly essential to address the social, economic and cultural aspects of a particular individual which are inherently attached with that person. In the same way, the functioning’s (beings and doings) and capabilities (freedom and opportunities to achieve those beings and doings) of a person purported by human development approach cannot be understood without addressing the social and economic conditions of that person.

The question still remains that, whether the economic growth of a country can ensure human development through realisation of human rights particularly ESC rights. The practical evidence suggests the negative answer. This is true that economic growth facilitates to create an atmosphere where the indicators of development like, life expectancy, infant mortality and adult literacy secure incentive but economic growth alone, does not guarantee human development.

Over the years, Bangladesh has achieved commendable economic growth despite consistent political turmoil. It also secured success towards achieving the Millennium Development goals. However, this is an evident truth that human development remains a far cry in Bangladesh. The Court in some cases gave decisions regarding the Esc rights to be judicially enforceable, but amidst of persistent human rights violations across the country creates difficulties to realise ESC rights.

In this backdrop, the ESC rights should be integrated into the development process through constitutional and judicial commitment. The development stakeholders should overview the principles of ESC rights while undertaking a development project.

The writer is Lecturer of Law, Eastern University.