Author: Md Azhar Uddin Bhuiyan
Introduction
Many have lived without the touchstone of love but none without water. This irreplaceable need for water is well understood by all, however, it is yet to be declared a constitutionally guaranteed fundamental right or a normative content of a Fundamental Right. The judiciary of Bangladesh first recognized a right to water under the guise of right to health in 1999, shortly before the adoption of the General Comment No. 15 of the UN Committee on Economic Social and Cultural Rights.[1] Meanwhile the United Nations recognized the right to water as an important element of a life with human dignity.[2]
The Constitution of Bangladesh does not guarantee an enforceable right to water in its text. This article is premised on the context of a suo motu order of the High Court Division of the Supreme Court of Bangladesh dated 25 March 2020 consisting of Justice Ashraful Kamal and Justice Sarder Md Rashed Jahangir where the Court issued a rule against the Government asking why the government shall not be obliged to provide safe drinkable water free of cost.
While we are awaiting the full judgment of the suo motu order, this article analyzes the options the judiciary of Bangladesh has to safeguard right to safe and clean water of the citizens under the current constitutional scheme. While doing so, it compares the Bangladeshi constitutional scheme with two established models of guaranteeing right to water, namely the explicit protection model and the implicit protection model to enquire how far “right to life” can be expanded in the current constitutional scheme of Bangladesh. It concludes that the special design of Bangladesh constitution, although based on the Indian model but significantly distinguished from India, facilitates the court to expand the meaning of the term ‘life’ to include ‘water’. Finally, it sheds light on the ‘minimum core’ contents of the right to water in light of Bangladesh’s International Legal Obligations.
Models of Justiciable Water Rights
There are two models of justiciable right to water so far. The first one is based on the Indian Constitution, that impliedly protects right to water via right to life. The second one is based on the South African Constitution, that explicitly guarantees right to water of the citizens. In the following a comparative evaluation of these two models shall lead a discussion to the Bangladeshi model.
a) The Implied Way: The Indian Model
The Constitution of India compartmentalized two kinds of human rights. The Civil and Political Rights were given the status of justiciable ‘Fundamental Rights’ and the Economic, Social and Cultural Rights were incorporated as ‘Directive Principles of State Policy’(DPSP). Tarunabh Khaitan argues that such compartmentalization stems from the idea of accommodating the dissenters.[3] However, such DPSPs are not enforceable by any court, but the principles are fundamental in the governance of the country.[4] In addition, the state shall apply these principles in the making of laws.[5] Although the text of Indian Constitution does not grant these socio-economic rights enforceability, the Indian judiciary has managed to make different socio-economic rights enforceable under the garb of right to life through interpretation showing reasoning that right to life will be meaningless without these socio-economic rights. In several cases,[6] the Indian Supreme Court has held that right to life includes right to clean and safe water. Thus, the constitutional framework for human rights impliedly grants constitutional protection to right to life.
b) The Explicit Way: The South African & the Nepalese Model
The Constitution of South Africa 1996 and in South Asia, the Nepalese Constitution 2015 grants judicial enforceability to both civil and political rights and economic, social and cultural rights. The South African Constitution explicitly recognizes right to water in their Bill of Rights[7] and the Constitution of Nepal[8] gives right to water a constitutional status as well. The South African Court in Residents of Bon Vista Mansions v Southern Metropolitan Local Council[9] held that access to water cannot arbitrarily be restricted even if the victim fails to pay for the water service provided that he adequately proves that he has no means to pay for it. This way the South African justiciable model of enforcement of human rights are being handled by their judiciary.
Bangladesh’s Model of Right to Water
Bangladesh Constitution is largely based on the Indian Model of Human Rights. The Constitution of Bangladesh makes two lists for two kinds of rights. The Civil and Political Rights are placed in Part Three of the Constitution under the title “Fundamental Rights” which are directly enforceable by the Court. The Economic, Social and Cultural Rights are placed in Part II of the Constitution under the title “Fundamental Principles of State Policy” (FPSP) which are not directly enforceable by the Courts. However, these FPSPs are quite distinctive from its Indian counterpart DPSPs.
While both DPSPs and FPSPs are judicially unenforceable and are fundamental in the governance of the country and are to be applied in the time of making laws; the FPSPs are, in addition, to be used as a guide to the interpretation of the Constitution and of the other laws of Bangladesh.[10] “Guide to interpretation” means the Courts shall draw contents from the Guide while interpreting the law. Such special arrangement in Bangladesh Constitution makes it easier for the Bangladeshi judiciary to expand right to life by interpreting ‘life’ in light of the FPSPs.
How far right to life can be extended in Bangladesh
The South Asian approach to right to life is very elastic and has continued to incorporate many things within the domain of ‘life’. However, there comes a complicated question of law as to the threshold of the extension of right to life, i.e. how far the courts in Bangladesh are permitted to expand right to life. To answer this question, this article analyzes the permissive interpretative approach of the Bangladesh Constitution.
a) Implication of FPSPs
The Constitution of Bangladesh expressly mentions that the provisions of Part II of the Constitution shall be used as a guide to the interpretation of other constitutional provisions.[11] The Supreme Court of Bangladesh has numerous times interpreted right to life[12] and other constitutional provisions[13] in light of the FPSPs.[14] Such use of the FPSPs will allow the right to life jurisprudence in Bangladesh to grow much more than the Indian counterpart since the Constitution of Bangladesh explicitly mentions the interpretative use of the FPSPs. Therefore, however may the scholars of constitutional law influenced by the west may criticize, following the trend, right to life jurisprudence shall develop so far, the FPSPs are concerned. The courts shall progressively include all the basic necessities in life under Article 15 as ingredient of right to life because without these basic necessities the life will be meaningless.[15]
Such indirect enforcement of provisions of FPSPs by the judiciary has raised concerns on the ground of its inconsistency with the constitutional philosophy of Bangladesh, i.e. bifurcation of two kinds of rights by the constituent assembly. The Constitutional design of Bangladesh leaves policy making in the hands of the executive and the legislature since they are the representative of the people and are better positioned to assess the resource ability of the state.[16] However, such a concern does not arise when the court enforces right to water via right to life and tries to ‘fulfill’ right to water because the legislature itself has enacted “Bangladesh Water Act 2013” where it says ensuring right to potable water, water for hygiene and sanitation is of highest priority[17] to the state from the date 06 November 2013.[18] At the same time, the Act makes a priority list of water usage following which the state shall ensure, i.e. fulfill the right to water of its citizens.[19] Thus there is no problem if the courts try to enforce right to water via right to life.
b) Implication of International Law
In Bangladesh’s Constitutionalism, for the last twenty years International Law obligation of the state is seen to have mattered. In the HM Ershad v Bangladesh[20], the court came to the conclusion that the national courts cannot straightway ignore the international obligations which the country undertook. From then on, the Bangladeshi Courts have started using international law as an aid to interpretation, to develop the contents of domestic law rights when there is no inconsistency of the international law with the existing domestics laws.[21] As a result of this, we have seen right to life jurisprudence only developing in an upward pattern. It is predictable that the right to life jurisprudence shall continue to develop in light of the international laws.
Minimum Core Obligation of the State and Right to Water
Like all other human rights obligations, the right to water involves respecting, protecting and fulfilling the right by the state. While respecting and protecting are negative obligation, the fulfillment is a positive obligation. A justiciable right to water under the garb of right to life thus requires the state to respect and protect citizen’s right to water from its own interference as well as interferences by third parties, and at the same time progressively moving towards fulfillment of the right to water.
With regard to right to water, the obligation to respect means the state shall refrain itself from any sort of discriminatory interference or curtailment of the enjoyment of the right. The obligation to protect refers to protecting the citizens from any sort of violation of the right by third party individuals or groups. These obligations to respect and protect does not require any additional allocation of state resources and only requires the goodwill of the state. Therefore, these obligations can be performed immediately of the grant of the right.
The main challenge lies in ‘fulfilling’ the right to water due to the vagueness of its normative contents. The ICESCR requires the states to progressively move towards the fulfillment of the ESC rights and not at once. That means the state shall have time to ensure the rights for its citizens. However, the General Comment 3 of the ICESCR[22] also holds that states must take steps towards full-realization of rights. These steps are required to be deliberate, concrete and targeted. From such approach towards the ICESCR, the concept of ‘minimum core obligation’ evolved. It means, towards the fulfilment, there are some obligations which are readily implementable and there are some normative contents of the obligation which can allow the state some time for their fulfillment. The readily implementable obligations, as identified by the CESCR, makes it easier for the judges of the national courts to adjudicate the state initiatives to ensure the right. The Indian Judiciary accepted the notion of ‘minimum core’ in their own words “the essential minimum of the right”.[23] On the other hand, the South African judiciary adopted a reasonableness approach over the ‘minimum core’ approach.[24] The International Obligation of Bangladesh with regard to the CESCR makes it obligatory upon Bangladesh to adjudicate socio-economic rights on the basis of ‘minimum core’ approach in the absence of its autochthonously developed approach to socio-economic right adjudication.
The minimum core contents of a right are supposed to be met even in the most developmentally challenging circumstances. The core content of right to water refers to the quantity of clean and safe water to support our basic needs in order to prevent dehydration and disease. The CESCR General Comment 15 provides that the in allocation of water, priority must be given to the right to water for personal and domestic uses. Bangladesh Water Act also gives a list of priority for water usage.[25]
There still remains confusion as to the normative contents of such entitlements. For example, how much water would the state need to allocate per person is yet to be determined by a government decision or a direction of the court taking into consideration health expert opinions. In the Rabia Bhuiyan Case[26], even though the Court said the right to water is intrinsic to the right to life, the court failed to come up with any normative direction as to ensure right to water. The Court did hold right to safe water a content of right to life but did not prescribe how much water the state needs to ensure for each person. At this moment, it is expected that the court shall come forward to define the normative contents of the right and prescribe how those can be realized. While doing so, the Court can use the concept of minimum core obligation of the state or develop its own test. In any case, the full judgment of the suo motu order shall be a landmark in Bangladesh’s human rights history.
Endnotes
[1] Rabia Bhuiyan v Ministry of LGRD, Bangladesh (1999) 27 BLD (AD) 261.
[2] General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant) Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11)
[3] Tarunabh Khaitan, ‘Directive principles and the expressive accommodation of ideological dissenters’ (2018) 16(2) International Journal of Constitutional Law 389–420.
[4] Constitution of India, Article 37.
[5] Ibid.
[6] Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 2 S.C.R. 516; A.P. Pollution Control Bd. II v Prof. M.V. Nayudu (2001) 2 S.C.C. 62, 69; Vellore Citizens’ Welfare Forum v Union of India (1996) 5 S.C.C. 647, 660.
[7] Constitution of South Africa 1996, Article 27.
[8] Constitution of Nepal 2015, Article 35(4).
[9] Residents of Bon Vista Mansions v Southern Metropolitan Local Council (2002) 6 BCLR 625 (W)
[10] Constitution of Bangladesh, Article 8(2).
[11] Constitution of Bangladesh, Article 8(2).
[12] Ain O Salish Kendro v Bangladesh (1999) 19 BLD 488 [interpreting right to life includes right to shelter], Dr. Mohiuddin Faruque v Bangladesh [right to life includes right to environment].
[13] Kudrat-e-Elahi v Bangladesh (1992) 44 DLR (AD) 319 [interpreted article 59 in light of articles 9 and 11].
[14] See for details, Muhammad Ekramul Haque, ‘Legal and Constitutional Status of the Fundamental Principles of State Policy as Embodied in the Constitution of Bangladesh’ (2005) 16(1) Journal of the Faculty of Law, The Dhaka University Studies Part F 45-81.
[15] But for some adjudicatory challenges see, M. Jashim Ali Chowdhury, ‘Claiming a ‘Fundamental Right to Basic Necessities of Life’: Problems and Prospects of Adjudication in Bangladesh’ (2011 & 2012) 5 IJCL 184-208.
[16] Shah Abdul Hannan v Bangladesh (2011) 16 BLC 386.
[17] Bangladesh Water Act 2013, Section 3(2).
[18] SRO No. 348- Law/2013 Dated 06 November 2013.
[19] Ibid, section 18.
[20] H M Ershad v Bangladesh (2001) 21 BLD (AD) 69.
[21] Bangladesh National Women Lawyers Association v Ministry of Home Affairs (2009) 61 DLR 371; State v Metropolitan Police Commissioner (2008) 60 DLR 660.
[22] UN Committee on Economic, Social and Cultural Rights (‘CESCR’), “General Comment No. 3: The Nature of States Parties’ Obligations”, 14 December 1990, E/1991/23 <https://www.refworld.org/pdfid/4538838e10.pdf> accessed 14 September 2020.
[23] Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) AIR SC 2426, 2429; People's Union for Civil Liberties v Union of India & Ors, In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No.196 of 2001.
[24] Peter Danchin, ‘A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case’ (EJILTalk!, 13 January 2010) <https://www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%E2%80%99s-decision-in-the-mazibuko-case/> accessed 14 September 2020.
[25] Bangladesh Water Act 2013, Section 18.
[26] Rabia Bhuiyan (n 1).
Author Description
Md Azhar Uddin Bhuiyan is the Editor in Chief, Dhaka University Law and Politics Review.
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