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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 57
February 23 , 2008

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Law analysis

Implementation of social and economic rights

Kazi Ataul-Al-Osman

The United Nations has adopted two separate Covenants namely, International Covenant on Civil and Political Rights (Hereinafter ICCPR) and International Covenant on Economic, Social and Cultural Rights (Hereinafter ICESCR) in order to transform both of these rights into legally binding obligations. Most of the signatory nations of the United Nations implement these rights on the basis of hierarchy. The legality and enforceability of social rights in a court of law are supported by some legal scholars, judges, lawmakers and interest groups so as to ensure a fair distribution of goods such as housing, health care, education and social security to those within the domain of their jurisdiction. However, for others social rights are merely goal based and the protection and preservation of these rights in an egalitarian society are considered to fall exclusively within the realm of popularly elected representatives. Nonetheless, with the gradual development of international human rights the last mentioned view was always contested both theoretically as well as practically and has come under serious judicial scrutiny.

The social rights are often considered as statement of aspirations, goals or mere 'manifesto' claims. It is argued that if we consider them as 'rights' it will undermine the enjoyment of individual freedom, distort the functioning of free markets by justifying large-scale state intervention in the economy and thus, downgrade the importance of civil and political rights. The theoretical predicaments of social rights can best be evident from the New Right theorists where they have objected to welfare provision. According to the New Right theorists, welfare provision makes people less prudent in their decision about families, strike action, education, while encouraging them to run irresponsible risks. Further, the ramification of such welfare provisions undermines market discipline and other forms of regulation in the society.

Most of the states find it difficult to provide a minimal economic security for masses because of the lack of resources, so it hardly makes sense to consider these rights as a matter of universal human rights. The ICESCR as an international instrument for the protection and promotion of social rights does not possess a strong implementation mechanism unlike ICCPR. The distinctive formula of the ICESCR that states should 'take steps' towards the 'progressive achievement' of rights according to available resources makes the implementation process of these rights more complex and difficult. Furthermore, the implied classification of hierarchy of values between the rights enumerated in the ICESCR with that of ICCPR make them less effective. In addition, the political conflicts between the communist states and the western states during the World War II that developed as “North-South Dimension” made the institutional implementation of social rights more precarious and susceptible.

Last but not the least, most of the states maintain a divisional hierarchy between these two sets of rights as they consider social rights as the second generation rights while, giving civil and political more importance as the first generation rights. There is a view (Cranston's) that civil and political rights are the fundamental demands of justice, whereas social rights are only desirable facilities.

The universality and expediency of social rights are not mere rhetoric. If the indispensable rights for subsistence, basic health care and basic education are not protected, people mired in severe poverty will frequently placed as marginal be marginal. In such case, it will make the exercise of other rights vulnerable. The availability of these imperative rights protects various other rights such as, civil and political. For example it is obvious that, in a society where there is no sufficient access to educational opportunities, it will affect individual ability to participate actively in the political affair. Furthermore, where large number of a nation's population suffer from starvation, unemployment, housing and health care problems, promoting and securing various other fundamental rights that fall under the civil and political rights will never be done properly.

So both the social rights as well as civil and political rights are correlative to each other's vigorous implementation. Both these two sets of rights should be intrinsically interdependent in ensuring that they are fully respected. Moreover, governments of different states have a fundamental legal duty to proceed with the implementation of all these rights which are aimed at protecting the most fundamental dimensions of human life and the human person.

The legitimacy of social rights can be evident from the proponents of 'social democracy' which differs from 'classical liberalism' as applied in the Canadian judicial mechanism. Social democracy entails a duty upon the state as not only having a legitimate role, but also the best anticipation for attaining progressive social transformation. Social democracy does not valorise civil society for its own sake, but also mulls over scrutinising social and economic disparities where necessary. So in order to secure social rights, material inequalities should be removed as a prerequisite of political freedom. So to emphasise social rights as universal and inalienable with those of civil and political rights firstly, the rights enumerated in a constitution have to be redefined. Secondly, unless we make social rights justiciable, it would be difficult for any society to orient adjudication to more egalitarian ends.

Legal implementation
The acquaintances between rights and needs are not merely instrumental, rather they are constitutive too. It is a fact that civil and political rights are meaningless if people are unable to meet their basic needs for subsistence. Adjudication of social rights is more complex as it requires the judges to decide whether a right-bearer has been illegitimately denied resources he is entitled to. With the gradual development of international human rights norms various states have significantly adopted number of judicial measures for the implementation of the social rights. While emphasising the importance of social rights under the provisions of South African constitution, it was strongly observed “A constitution containing only civil and political rights projects an image of truncated humanity. Symbolically, but still brutally it excludes those segments of society for whom autonomy means little without the necessities of life”. The constitutional adjudication is an important instrument for the implementation of various rights incorporated in the constitutional text. The South African constitution protects a number of social rights and empowers the courts to determine whether the state is meeting its obligation with respect to such rights. Further, the Constitutional Court has adopted a 'reasonable approach' so as to protect social rights.

While measuring the standard of 'reasonable approach', in Government of the Republic of South Africa v. Grootboom [2000 (11) BCLR 1169 at 20] the Court stated “... reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or public money could have been better spent ...It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met”. Though such approach has been criticised by the legal scholars on various occasions, it is considered to be an appropriate model to balance the protection of rights with respect for democratic priority setting.

Though one cannot declare such approach as a perfect method but still according to Dennis Davis “... where the Court has employed administrative law principles to deal with socio-economic rights, its judgement has been based on a deep-seated concern about the limited role of judiciary and the dangers of polycentricity. The tests of reasonableness, sometimes employed interchangeably with rationality, have enabled the Court to strike an uneasy balance between the existence of a right and its limited input on the nature and extent of policy”.

In the United Kingdom social and economic goods such as housing and health are not protected as rights under the constitutional scheme yet, entitlements to social welfare benefits are protected in ordinary legislation and decisions made in terms of such legislation are judicially reviewable. At the beginning the Court took a narrow approach while explaining the term of reasonableness which can be evident from R. v. Cambridge DHA Ex. p. B [(No. 1) [1995] 1 W.L.R. 898]. But in the later cases decisions regarding allocation of resources and medical priorities were “rationally based upon a proper consideration of the facts”. Such decision was apparent in the Court of Appeal's approach in North-West Lancashire Health Authority v. A, D and G (Available from the www.pfc.org.uk) where 'reasonableness' took a wider shape. In R. v. Secretary of State for Social Security Ex p. Joint Council for the Welfare of Immigrants [(1997) 1 WLR 275] the Court of Appeal took a far reaching stand than the Lancashire decision. In this case Simon Brown L. J. used both a principle of proportionality and the language of minimum obligation as here the basic human rights were involved.

In R. (on the application of Razgar) v. Secretary of State for the Home Department ([2004] UKHL 2; [2004] 2 A.C. 368) a significant point was observed by Lord Bingham. He was of the view that proportionality is always a balancing exercise between individual rights and the interest of the community. He further observed that a lawful policy would only give rise to a lack of proportionality between means and end in rare cases and that proportionality as an inquiry always pits the individual's rights against societal or community interests.

From the above discussion along with the help of the judicial case laws, there is no doubt that the judiciary plays a key role in enforcing and implementing social rights in an egalitarian society. So in order to emphasise better promotion and protection of human rights we must get rid of stereo-type camouflage that is, to implement rights on the basis of equilibrium rather than hierarchy. Meaning thereby, to secure a minimum level of welfare or minimum threshold as a universal entitlement, below which individuals will not be allowed to fall, as contended by Jeremy Waldron.

Kazi Ataul-Al-Osman is doing his LL.M at University of Leicester, U.K.


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