Authored by Suraya Ferdous
Image Courtesy: Dhaka Tribune
The outbreak of
COVID-19 has exposed the fragilities, insufficient preparedness, and
vulnerabilities of globalization, all of them led us to the realization that
the battle with the pandemic is far from over. While the outbreak triggered
life-threatening situations for all, it brought tremendous suffering to the RMG
workers of Bangladesh who belong to the most susceptible and disadvantageous group
in our society.[1]
Although they have to put their lives on the line by working during the
pandemic, their need for physical and mental wellbeing is actively being
overlooked. This article mainly contemplates national and international pledges
ranging from protecting workers’ health rights to violations and contradictions
of such pledges. Upon the
basis of the all-encompassing nature of health rights, its connection with the right
to life and the status of the state’s responsibility, shall be illustrated
through case law principles. And lastly, the article intends to detect
ambiguities within the leading legislation which is considered to be the
safeguard of workers, i.e. The Bangladesh Labour Act, 2006.
Right to Health Explored Under Domestic and International Commitments
The right to health is a basic human right that is
instrumental in realizing all other human rights.[2] Article
15, 16, and 18 of the Constitution of The People’s Republic of Bangladesh have
recognized the need to safeguard such rights. Health entitlements have made
their place in Part II of the Constitution as Fundamental Principles of State Policy
which are, however, not judicially enforceable. Despite that, such principles
are indispensable for the good governance and fulfillment of other rights
contained in Part III of the constitution.[3] Some
international instruments also concentrate on implementing health rights
introducing a much wider perspective. For instance, health rights, as
identified in Article 12 of The International Covenant on Economic, Social and
Cultural Rights (ICESCR), are not restricted to health care services, rather
embraces a wide range of socio-economic factors essential for physical and
mental wellbeing. [4] The Committee on ICESCR
has particularized this notion in General Comment No 14 emphasizing on
principal determinants of the right to health. Adequate food and nutrition, hygienic
housing arrangement, sanitized restrooms, access to safe and potable water,
sound working conditions are acknowledged by the Committee as contributory
factors of the highest attainable standard of physical and mental health.[5] The
International Convention on the Elimination of Racial Discrimination (CERD)
also imposes a duty upon States to ensure equal medical care, social security,
and services for all.[6] It
is worth noting that Bangladesh has signed and ratified both the ICESCR and
CERD.[7] To
what extent a State can be held liable for going beyond international
commitments will be discussed in another section of this paper.
Determining State’s Responsibility: Nexus between ‘Health and Life’
As it has already been
stated, the right to health is not mere health care facilities but an
all-encompassing right including other socio-economic determinants. However,
rights in the Constitution are compartmentalized where health rights have
secured their place as judicially unenforceable principles. If a remedial and
counteractive framework for health rights violations is absent from the
Constitution, should the state assume responsibility under international
instruments for not implementing such principles in favor of the RMG workers? The
role of international law within the municipal legal system has always introduced
complications with unanticipated situations.[8]
In the context of the judicial history of Bangladesh, international treaty
principles were ingeniously used for the very first time in Kazi Mukhlesur Rahman v Bangladesh[9]. The Supreme Court of
Bangladesh has always been able to maintain a well-defined position on the
question of priority to domestic laws over international treaty laws. Justice B
B Roy Chowdhury, in his separate opinion in Hussain
Muhammad Ershad v Bangladesh And Others[10], cautiously observed, “...where
the domestic laws are clear and inconsistent with the international obligations
of the state concerned, the national courts will be obliged to respect the
national laws, but shall draw the attention of the lawmakers to such
inconsistencies.” Being a dualist country based on a common law system, the
Supreme Court has always adopted a restrictive approach towards the application
of international treaty principles. The judges and lawyers still feel reluctant
to refer international principles on a given dispute unless they are
incorporated within domestic laws.[11]
Despite the restrictive
approach, a tendency is actively growing among the judges to rely on treaty
principles and use them as an instrument in interpreting constitutional human
rights. Where the Constitution remains silent on enforcing a particular right,
our Apex Court has managed to maintain an activist stance by pointing out
State’s obligation under international law. The Supreme Court announced in
Bangladesh National Women Lawyers Association (BNWLA) v Government of
Bangladesh and others [12], “It has now been settled
by several decisions of this subcontinent that when there is a gap in the
municipal law in addressing any issue, the courts may take recourse to
international conventions and protocols on that issue to formulate effective
directives and guidelines to be followed by all concerned until the national
legislature enacts laws in this regard” (paragraph 20). The observation of B B Roy Chowdhury J in “Hussain Muhammad Ershad v Bangladesh And
Others”[13]
also depicts the judiciary’s growing reliance on international principles -“The
universal norms of freedom of leaving the country and returning have been recognized
in Article 36 of the Constitution, and there was full application of Article 13
of the UDHR to the fact of this case” (paragraph 3).
The rising dependence on
treaty principles has also stimulated the enforcement of Fundamental Principles
of State Policy through its nexus with the right to life. The interconnection
between health and life has been pinpointed in Bangladesh And Others v Professor
Nurul Islam & Another[14]
where the court recognized “WHO Framework
Convention on Tobacco Control, 2005” as one of the most widely
embraced treaties in the history of the United Nations and relied on it in
order to substantiate its observations. In
this case, the Supreme Court, in an attempt to expand the right to life approvingly quoted Bandhua
Mukti Morcha v Union of India[15] and found that the right to life symbolizes
protection of health and strength of citizens preserving different status. Likewise
in Dr. Mohiuddin Farooque v Bangladesh and others (Flood Action Plan Case)[16] the court took resort to
The Rio Declaration on Environment and Development to determine the ground of
standing and effectively identified the bond between the right to life and the right
to a safe environment.
“Dr.
Mohiuddin Farooque v Bangladesh, represented by the Secretary, Ministry of
Commerce, Government of the People’s Republic of Bangladesh, Bangladesh
Secretariat and others”[17]
is a classic example of the enforcement of health rights through right to life where the Supreme Court observed- “ right to life
is not only limited to the protection of life and limbs but extends to the
protection of health and strength of workers, their means of livelihood,
enjoyment of pollution-free water and air, bare necessities of life, facilities
for education, development of children, maternity benefit, free movement,
maintenance and improvement of public health by creating and sustaining
conditions congenial to good health and ensuring the quality of life consistent
with human dignity.” This observation soundly embraces all the principal
determinants of health rights and affirms its undeniable connection with the right
to life. The court recognized its limitation in enforcing health rights under
Article 18 (1) of the Constitution but at the same time it acknowledged “state’s
obligation to protect the health and longevity of the people living
in the country as the right to life guaranteed under Articles 31 and 32 of the
Constitution includes protection of the health and normal longevity of a man
free from threats of man-made hazards unless that threat is justified by law.”[18] For this very reason,
despite the status of health rights in our Constitution, the state is bound to
realize it in favor of the RMG workers as it’s a fragment of their right to life.
Not only that but the court is also entitled to rely on treaty principles,
context-wise, in order to enforce such health rights as long as they are not in
conflict with the domestic laws.
It should be mentioned here that Bangladesh, as a state, itself would be in error in the eye of the international community if health care services are not made available, accessible, affordable, and acceptable to the RMG workers.[19] For instance, the European Court of Human Rights (ECHR) found Turkey liable in Asiye Genc v. Turkey as the Turkish government failed to take “sufficient care” to strengthen its health care system. The Inter-American Court of Human Rights (IACHR) also found in Poblete Vilches and Others v. Chile that the right to health is a right found within the economic, social, cultural, and environmental rights guaranteed by Article 26 of the American Convention on Human Rights, and it condemned the Chilean government for inadequate health care in its public hospitals that resulted in a tragic death. [20] Along with the positive obligation under ICESCR, there is a strong anticipation that Bangladesh, as a state, cannot take any detrimental action to the right to health and should refrain from interfering with the enjoyment of this right. International courts have referred to this negative duty of States to not infringe on the ability to access health care.[21]
Workers’ Entitlements under the “Bangladesh Labour
Act, 2006” and Reality Check
Based on the aforesaid
findings, Bangladesh as a state should assume the responsibility to protect the
workers from the further health crisis. However, the full realization of health
rights remains a distant goal considering other socio-economic factors.[22]
Organizing health care facilities for millions of workers cannot be
accomplished overnight. What we need right now is a genuine and benevolent
approach on the part of the government in strengthening existing health-related
legal frameworks. At the same time, identifying the shortcomings within the
existing laws is a crucial task.
The Bangladesh Labour Act, 2006 is the leading legislation protecting
workers’ rights in our country. The Covid-19 pandemic has unveiled some weak
spots within this law of which the employers took advantage and contributed to
the gross abuse of labor laws. For instance, owing to the emergencies pointed
out in section 12, if the stoppage of work exceeds three working days, the
employers can lay off the concerned workers under section 16.[23] The workers so laid-off
are entitled to compensation under 16 equal to half of the total amount of the
basic wages and dearness allowance and ad-hoc or interim wages if any, and
equal to the full amount of housing allowance.[24] However, the concerned
workers can avail the compensation only if they have completed a minimum of one
year of service in the establishment.[25] This legal bar has
prevented 20% of laid-off workers from getting any kind of compensation.[26] A study led by the
Centre for Policy Dialogue (CPD)[27] has disclosed that more than 3,50,000 workers
in the RMG sector have become jobless amid this pandemic while a majority of
them got laid off without proper compensation.[28] The study also reveals
that only 3.6% of establishments complied properly with the compensation
principles.[29]
If
the lay-off period gets extended after the first 45 days, the employer can
retrench workers from service on the ground of “redundancy”.[30] The employer will rely
on this ground when he considers his workers’ services unnecessary. Hence, this
consideration mainly evolves within the subjective assessment of the employers
leading to the unjustified termination of employment.[31] Section 21 of the Act
gives preference to retrenched workers in case of reemployments. However, the
CPD study has found that most establishments did not bother to comply with such
legal requirements while some even appointed retrenched workers at a lower wage
temporarily.[32]
The
wordings of sections 16 and 20 of the Act create room for discrimination,
unjustified work termination, undignified treatment, and the workers, in most
cases, do not have a say even though such treatment concerns them the most.
Being unable to attain rightful benefits under this Act, the workers have
failed to avail and ensure minimum health privileges amid Covid-19. The
policymakers must pay attention to these lacunas and address their potential
danger. These provisions should be amended with more clarity leaving no room
for prejudice and unfairness. Last but not least, strong monitoring mechanisms
must be ensured before more workers end up suffering from undignified
treatment.
Concluding Remarks
“Life
is something more than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed”[33]- these passionate
wordings from Justice Field make us realize that right to life is the
embodiment of all other human rights where health prerogatives function as the
essence of this epitome. Consistent records on RMG workers during this pandemic
have established the constant presence of an unwarranted threat to healthy wellbeing
leading to their eventual deprivation of the right to life. Our national and
international commitments regarding health rights will serve no purpose if we fail
to acknowledge the plight of RMG workers concerning their safe and sound
living. The preamble of our Constitution affirms the notion of keeping pace
with progressive aspirations of mankind while Article 2 of ICESCR insists on
progressive realizations of such aspirations. It is true that the socio-economic
scenario of Bangladesh bars the absolute realization of health rights and makes
it look like an unattainable determination. However, an endeavor to overcome
the shortcomings of resources, to plan more functional health schemes, and to assess
the loopholes within concerned legislations may pave the way to the aspired ‘progressive
realization of health rights in the future when we will be able to tackle
situations identical to pandemic with more potency and dynamism.
[3] Adiba Tahsin Raha, ‘Towards a Rights-Based Approach to Healthcare’, (The Daily Star, April 24, 2021)
<https://www.thedailystar.net/bot-law-our-rights/news/towards-rights-based-approach-healthcare-2083077> accessed 20 May, 2021
[6] International Convention On the Elimination of Racial Discrimination art. 5(e), Mar. 7, 1966, 660 U.N.T.S. 195
[7] Bangladesh ratified CERD on 11 June, 1979 and ICESCR on 5 October, 1998. See United Nations Human Rights Treaty Bodies, ‘UN Treaty Body Database’,
< https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=14&Lang=EN> accessed 25 May, 2021
[8] Christine Richardson, Md Mostafa Hossain, ‘Application of International Law In Bangladesh: An Analysis of the Supreme Court Judgments’, (2015) (Jagannath University Journal of law)
[9] (1974) 26 DLR (AD) 44
[10] (2005) II ADC 371 [3]
[11] Md. Mostafa Hosain, ‘Application of UDHR by Supreme Court of Bangladesh: Analysis of Judgments’, Chancery Law Chronicles, <https://www.clcbd.org/journal/13.html > accessed 12 July, 2021
[13] (2001) 21 BLD (AD) 69
[14] Bangladesh And Others Vs. Professor Nurul Islam & Another (2016) 2018(2) LNJ (AD)
[15] Bandhua Mukti Morcha vs Union of India & Others (1984) 3 SCC 161: AIR 1984 SC 802
[16] (1997) 17 BLD (AD) 33
[19] Office of The High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’ <https://www.refworld.org/pdfid/4538838d0.pdf> accessed 12 May, 2021
[22] Office of The High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’ <https://www.refworld.org/pdfid/4538838d0.pdf> accessed 12 May, 2021
[23] The Bangladesh Labour Act 2006, s 16
[27] Centre for Policy Dialogue (CPD) is a leading institution established in 1993 for in-depth research and dialogue to promote inclusive policymaking in Bangladesh, strengthen regional and global economic integration and to create an inclusive society based on equity, justice, fairness and good governance.
[29] Ibid
[30] The Bangladesh Labour Act 2006, s 20
[31] Mohammad Golam Sarwar, ‘Mainstreaming Human Rights in Business to Protect Workers’ Rights’, (The Daily Star, May 1, 2021) < https://www.thedailystar.net/law-our-rights/news/mainstreaming-human-rights-business-protect-workers-rights-2086893> accessed 10 July, 2021
[32] Ibid
Author Description:
Suraya Ferdous is a Final-Year Law Student at the University of Dhaka
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