Bangladesh: a rethinking about the right to health through lessons learnt from the COVID-19 pandemic

Author: Mohammad Pizuar Hossain | Senior Lecturer, East West University

(This post is part of the blog series from the participants of the 15th International Winter Residential School on Economic, Social, and Development Rights  organized by Kathmandu School of Law and supported by asiablogs.)

The COVID-19 pandemic exposes the incapacity of the healthcare system of several less developed countries, including Bangladesh. This poverty-stricken country of South Asia has reportedly decreased population growth and progressed in health and education sectors in recent years. However, it can be put across that Bangladesh is burdened with many challenges at the local and national levels while, in particular, various studies suggest that its healthcare system requires ascertaining trustworthiness, sensitivity, and empathy. The COVID-19 pandemic posed additional challenges to its healthcare system and made the whole nation question its inadequacy to provide proper healthcare to the general people on numerous occasions. Legal experts and scholars have also raised a concern about the constitutional safeguard of the right to health in Bangladesh. Hence, this small piece of writing evaluates the right to health, referring to the constitutional provisions, its legal development in Bangladesh, and international human rights law.

The Constitution of Bangladesh implicitly guarantees the protection and promotion of healthcare as a constituent of human rights under the auspices of articles 15 (provision of basic necessities), 16 (rural development and agricultural revolution), and 18 (public health and morality). However, these provisions are not judicially enforceable, which creates a bar for the aggrieved person to resort to any judicial forum of Bangladesh. On the other hand, an interpretation of the right to life that the Constitution of Bangladesh guarantees under articles 31 and 32 as a fundamental right for the citizens constructs a scope to enforce the right to health judicially. The two pertinent connotations of the term right to life are “classical meaning” and “progressive meaning.” The first connotation indicates merely the right to survive, while the latter points toward the right to survive with human dignity and decency that embraces the right to security of life, right to health, and right to housing and security against natural disasters.

Many case decisions of the Supreme Court of Bangladesh (SCB) directly reflect the essence of progressive interpretation of the right to life to incorporate the right to health as a fundamental right. For example, the High Court Division (HCD) of the SCB held in the case concerning Dr. Mohiuddin Farooque [writ petition no. 891 of 1994] that the right to life pledged under articles 31 and 32 of the Constitution of Bangladesh does not simply involve the protection of life. Rather, it incorporates some other rights, namely, the protection of health and the usual durability of the common people. Regarding the State’s responsibility, in the case concerning Advocate Zulhasuddin [2010 BLD 1], the HCD of the SCB depicted that the constitutional provisions relating to the right to life and public health amount constitutional directions to the State to ensure these rights to all citizens. It means that even though, as per the Constitution of Bangladesh, the right to life is a fundamental right and the right to health is a fundamental principle of State policy; the State cannot disregard anyone of them.

Despite the constitutional safeguards and the legal developments towards the right to health, Bangladesh has signed several international treaties, including the two most significant Covenants: the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 6(1) of the ICCPR stipulates a non-derogable right that, ‘Every human being has the inherent right to life …’ Again, the ICESCR’s article 12(1) depicts that, ‘The state parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The ICESCR General Comment No. 14, with reference to article 12, reiterates that it is imperative to enjoy the right to health to exercise other human rights.

Along with the specific international instruments on human rights, the general aspects of international law also underline the right to health as an indispensable right for every individual. While drafting the 1945 United Nations (UN) Charter, the drafting committee recognized the inevitability of protecting health. Therefore, it empowers the UN General Assembly to promote international cooperation in the field of health under its article 13. Further, article 25 of the 1948 Universal Declaration of Human Rights provides that, ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing and medical care.’ Besides, the 1946 Constitution of the World Health Organization specifies in its preamble that every human being has the right to benefit from the ‘highest attainable standard of health’ as one of the basic rights.

The discourses, as mentioned earlier, make it perceptible that the right to health has been given significant attention in the international human rights law and the domestic sphere of Bangladesh. Nonetheless, when the question of implementation of this right arises, its status as a fundamental principle of State policy in the Constitution of Bangladesh often plays a disruptive role. As many citizens of Bangladesh had to face considerable trouble to get access to the public health facilities during the COVID-19 pandemic for not only coronavirus but also other diseases, the constitutional impediment to explicitly enforce it as a fundamental right made the people be concerned about the constitutional protection of the right to health. Therefore, this write-up concludes that the lessons learned through the healthcare crisis in Bangladesh during the COVID – 19 pandemic should be considered a step to rethink the right to health under the purview of the Constitution of Bangladesh.

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