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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: 269
May 12, 2012

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Do we follow human rights approach to plan our budget?

Syeda Nasrin

Is there really any human rights obligation under the national and international law on our Government in formulating national budget? Is our Government bound to comply with the human rights approach in formulating our national budget? Is there any specific provision of constitution or statute or any case law which compel our parliamentarians to follow human rights approach for planning our national budget? These questions lead us to legal query whether our parliamentarians do really know what human rights based approach is. We know national budget is the most important and biggest development project of our country. Regretting to acknowledge after interviewing more than 20 parliamentarians it was revealed that almost all of the parliamentarians have no knowledge about HRBA as a distinctive concept of human development. This is also evident from the pre/post budget debate of our both political parties and none of them raised any voice for human development through human rights based approach and its budgetary implementation. Human rights based approach (HRBA) is the most accepted and well valued development approach in the modern world. Reciting theoretical obligation of human rights law obliges governments (principally) and other duty bearers to do certain things and prevents them from doing others. According to Mary Robinson following three are the fundamental obligations of a State as primary duty bearer for enforcing people's rights: (i) to respect human rights means simply not to interfere with their enjoyment, (ii) to protect human rights means to ensure that third parties do not interfere with their enjoyment and (iii) to fulfill human rights means to take steps progressively to realise the right in question. Our budget is less concerned with ensuring of people's right by protecting their rights from third parties. Because, instances of violating rights are right by executive, legislative action is not so few. Even, curtailment of 'na vote' provision from election ballot paper is one of those instances. Existing budgetary protection of right does not ensure effective protection of right because ours is dependent on the political will of the political governance of the country. This is a conditional protection which can not be protected effectively by free participation of people. As long as its implementation lies on the mercy, political will or benevolence, no HRBA is possible to follow effectively in development project because rights are not gifts or charity in which people are allowed or permitted to entitle. This refers lack of recognized forum/mechanism and environment for protecting people's rights by themselves. But Bangladesh still lacks far behind in protecting human rights in its strict and effective means. It is people's entitlements for and by which they are automatically empowered to participate, free to hold the duty bearers accountable, compel them to disclose all those public matters, accounts, financial documents, showing cause behind every work of duty bearer, initiate movement, challenge their decisions, etc.

Photo: mylinkszone.blogspot

Narrating the statutory obligation under Article 2 (1) of The Bangladesh (Budgetary Provisions) Order, 1972 (President's Order No. 74 of 1972) “the President shall, in respect of a financial year, cause to be prepared before the commencement of that year an Annual Budget Statement specifying the estimated receipts into, and the estimated expenditure from, the CF and may cause to be prepared Supplementary Budget Statements and Excess Budget Statements as and when required”. The budget is the reflection of our demand and necessity which are needed to fulfill. Budget is the financial statement of the Government specifying the sources of income of Government and the developmental sectors where those incomes will be utilized. Two notions involve here i.e. "progressive realization" of rights and “minimum obligation”. Instead, every state has a minimum obligation to provide the maximum available resources towards progressively fulfilling these rights over time. This raises questions about what might count as "maximum available resources" of course; although it has been suggested that spending 20 per cent of a government's budget on social sectors (as stipulated in the 20/20 compact emerging from the Social Summit in Copenhagen) might provide at least a minimum standard.

Referring the social-contract obligation Benjamin Franklin said that 'two things are obvious in human life, one is Death and another is Tax'. The Budget of previous years basically targets its prime source of income from revenue including numerous direct and indirect taxes. There is no such thing as government money it is only taxpayer's money. The more we demand of government, the more government costs. And it follows the “Square law rule”. Government takes money that it earned from you, and gives it to someone else. This happens when the tax money you are forced to give to the government is given to others for their use. This is called “Income Redistribution”. Government is bound to disclose its activities, be accountable, transparent and reply to the every relevant query relating to any development project for the nation because it has no money and power of its own. It is valid because we make it valid. It possesses power because we confer such power and authorize to exercise it for and on behalf of us. “Government is of the people, for the people and by the people”. In fact, government has no income of its own, Kneeland has said very rightly that “...all dollars come from the people. Where do [you] think Coca-Cola gets the money to pay its taxes...or even Microsoft gets the money to defend itself? It all ultimately can come from only one place, and that's from individuals." It takes money from the people, accumulate those, make a big fund, design developmental project and then distribute it. So, primarily duty confers upon the Government to provide the roof to protect you from the rain, the heat to comfort you from the cold, and the coffee to fill your stomach when the damn, greedy capitalists are all gone?

Regarding penal and tortuous liability, the duty bearers of budgetary obligation can be held liable under penal law for stealing, misappropriating, manipulating public fund as Government has no money of its own. They are public servant; entitle to get remuneration from the public. They act as a trustee/agent like directors of a shareholding company. Thus, breach of Government's fiduciary duty of honesty, skill, loyalty, due care, due diligence, extra care etc, the duty bearers can be held liable for tortuous liability.

From historical and constitutional obligation, in view of our language movement, procession for right to self determination, national independent war, the overall spirit of our Constitution including Preamble, Article 7, Parts 2 and 3, Article 65, Chapter II and all other provisions and also for other statues which time to time adopted for ensuring the people's right along with international institutions clarifies the rights of the people and State as duty holder. Mr. Justice ABM Khairul Haque in BIMW Ltd vs. Bangladesh and others, 2006 said “….It is the people who make supreme sacrifices for the creation of their Nation. It is the people for which a Nation exists. It is the people for which all 'services' are required and are created by the Constitution. It is the people for which all high functionaries of the Republic do exist. Those high functionaries are created not for staying in ivory towers; rather they are created, so that they can serve the people better. The people do not exist for them, rather they including the Judges, [parliament i.e. legislatures] exist for the people and only for the people, however humble their station of life may be. The greatness of the State-functionaries depends not on their status or rank but how much and how far they can serve their people”. "A politician cannot spend one dime on any spending project without first taking that dime from the person who earned it. So, when a politician votes for a spending bill he is saying that he believes the government should spend that particular dollar rather than the individual who worked for it. For the first time separate statute (The Government Finance and Budget Management Act, 2009 (Act No. 40 of 2009) has been enacted by the parliament but this is not as much as comprehensive as is necessary for an effective enforcement of human rights through budgetary obligations. Its scope is symbolised in its preamble. This act does not elaborate anything regarding budgetary obligation for confirming constitutional rights through assurance of effective participation by the people, accountability.

The writer is a Legal Associate at Hoque& Associate.



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