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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: 277
July 07, 2012

This week's issue:
Parliament Scan
Reviewing The Views
Human Rights Advocacy
Law In-depth
Law Week

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Parliament Scan

Budget for a just society

Md. Khairul Islam

An economist always argues for emphasis on trade-offs, and is very concerned with moderating claims. They are reluctant to consider the State obligation as to Human Rights. They see entitlements as a threat to the budget management, as they can lead to uncontrolled demands on public resources. On the other hand, a human rights activist considers the budgetary process as a step towards realisation of Economic, Social and Cultural (ESC) rights and an effort to make the poor capable of claiming those rights. This often leads to a dialogue of the deaf. It is the State whose duty is to reduce inequality through proper distribution of resources. Incorporation of Human Rights framework in the budgetary process would be the most effective instrument in this respect. Budget is a part of development process of a State, and determines, how and for what purpose all other development processes will run. The question may arise that is there any nexus between Human Rights and Budget? Bangladesh is under its constitutional obligation to fulfill all civil, political, economic, social and cultural rights of its people. However, the State party always argued for its resource constrain in realization of these rights. Since every action taken by the State has financial implications that are ultimately translated into the National Budget, the States' ESC rights obligations and the National Budget are intricately linked. National Budget is an expression of the State as to its obligations to respect, protect and fulfill ESC rights. Any public policy cannot be carried out without budgetary processes as well as any State action designed to create and facilitate an economic, social and political environment conducive to the enjoyment, exercise and realization of ESC rights cannot be undertaken without funds from the national treasury. Therefore, Budget is a major process by which the State's financial resources are planned and controlled.

Budget is mostly related to Economic, Social and Cultural (ESC) rights of the people. The people are not mere receiver of service of the State rather they are legally entitled to it. The Constitution confers the duty upon the State to ensure fundamental human rights (Article 11). Chapter II of the constitution incorporates some principles of the State policy which basically incorporate the ESC rights of the people. For example, Article 15 of the Constitution vests on the State the responsibility of meeting basic needs and social security of the people. The principles set out in this chapter are fundamental to the governance of Bangladesh and should be applied in the making of laws. Nevertheless, these provisions are not judicially enforceable. Now the question may arise does it really empower the State to feel free from any compulsion to realize these rights. In Anwar Hossain Chowdhury v. Bangladesh [1989 BLD (Spl.) 1, p. 61] it is clearly stated that the endeavor of the government must be to realize these aims and not to whittle them down.

Bangladesh's Constitutional guidelines are rooted in a framework aimed at raising the quality of life - a secured living that is foreseeable and safe, with access to productive resources, quality health and education through a balanced and equitable growth. The State must fulfill its constitutionally guaranteed socio-economic rights, but to what extent it is able to do so may be limited by constraints on resources. The State has the onus of proving that it has made every attempt realize these rights within the resources it has available. And the Budget reflects the extent to which the State has taken steps for fulfillment of its ESC rights obligation.

Principle of the international human rights framework entitled people to participate in (directly or through representative) contribute to, and enjoy civil, economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized. The scope of direct participation is hardly found in our administrative and legislative framework. Members of Parliament who represent the people have to approve a Budget in indirect democracy. But the cabinet usurps the power of the Members of Parliament. The power of the cabinet in respect of the Budget is in turn concentrated in the persons of the Prime Minister and Finance Minister. This is a highly centralized system where there is no scope for participation for either legislators or other stakeholders. Moreover, the main opposition party is found outside the parliament in most of our Budget sessions. No legislation involving any government expenditure shall be considered by the Parliament without the express consent by the executive as represented by the President (Articles 81 read with 82 of the constitution). The Parliament has been virtually subjected to the executive in respect of the budget. It can either accept or reject the budget as a whole. It cannot improve it even by making partial changes (Sub-article 2 of Article 90 of the Constitution). Therefore, lawmakers do not have any power to authorize any new expenditure in the budget.

In some cases the Parliament has no control on the receipts of the government, such as imposition of fees and prices of public utilities and enterprises; these are left at the discretion of the government. Notably, these receipts of government directly touch the life of general people. In addition to that, The Parliament cannot discuss Money bill without recommendations of the President (Article 82 of the Constitution). Budget is not discussed in the standing committees because they have no specific mandate.

Resource constraint is not always a bar in realization of human rights rather wastages of resources or improper use of resources, thereby may degrading the human rights condition in a society. The conventional wisdom posits that an increase in military sector growth is detrimental to promotion of human rights. High Military spending detract from citizens' quality of life by limiting spending on development or social programs are a major concern, particularly for developing countries. There is an inherent “opportunity cost” with all government spending money that is spent in one area cannot be spent on another. The choice between government spending on social issues and the military is sometimes referred as “guns or butter.” There is no doubt that security is important in all countries, regardless of the income level. A more accurate definition of security would include right to live without human rights abuses, war, poverty, hunger, and disease. In our country, budgetary allocation for military expenditure is increasing over the years. In Budget FY2011-12 in total Tk. 11,955 Crore allocated for defense sector, which is 7.3 per centum of the total Budget and Tk.2,633 Crore higher than the allocation of FY 2010-11. Therefore, it can be said that government uses more resources for armed forces than human rights realization. If half of the allocated money for armed forces use for improvement of public health, housing, education and other ESC rights then that may ensure a dignified life of the people which is ultimate object of human rights.

Foreign Assistance becomes a basic feature of our national budget. In Budget 2011 12, the total foreign assistance amounted to Crore 23623Tk. which is 11 per centum of the total budget and Crore 2,846 taka more than the previous fiscal year. However, Conditionality of foreign grants is criticized for undermining the State sovereignty by rendering governments accountable to external bodies rather than to their own people. Conditionality of IFIs binds the State to reduce its social expenditure in many cases.

Introduced of Value added tax (VAT) in 1991is another way to disregard human rights. Unlike income tax, VAT is an indirect tax which has to bear by a consumer at a flat rate and equally irrespective of his financial ability. Equal treatment of law is one of the basic principles of human rights. However, all persons are not alike and nothing can be greater inequality than to treat unequal as equal (S.A. Sabur v. Returning Officer, 41 DLR (AD) 30). In case of VAT a millionaire and a street bagger both have to pay an equal amount of tax when one purchases any commodities or services. The government gradually becomes more dependent on VAT for its resources generation which violate the doctrine of reasonable classification and adversely discriminatory to the marginalized group of people. A law which is non-discriminatory on the face of the record may even be proved to be discriminatory, if it, in effect, operates unevenly on persons or property in similar situation. Like should be treated alike. Imposition of uniform tax without taking into account financial capability of a person is violative to Article 27 of the constitution and also inconsistent to Article 14 & 19(2) of the constitution, Article 7 of the UDHR and 26, 27 of the ICCPR.

Our dream is of an ideal society where equality and human dignity would be ensured. Human Rights refer to human dignity and if that dignified life can be ensured through the budgetary process that might be the most desirable solution. We hope our dream of a just society will come true in some day.

The writer is Lecturer of Law at Northern University of Bangladesh.







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