Ahmed Ragib Chowdhury

 Ahmed Ragib Chowdhury  

(LLM Candidate, Faculty of Law, University of Dhaka, Bangladesh)

The term human rights came into being in the aftermath of the atrocities of the Second World War. As a result, the Universal Declaration of Human Rights (UDHR) was drafted which posited both civil and political (CP) rights and economic, social and cultural (ESC) rights as equals. However, CP and ESC rights were differentiated by the International Covenant on Civil and Political Rights (ICCPR, immediate realization of state party obligations) and International Covenant on Economic, Social and Cultural Rights (ICESCR, progressive realization to the maximum of available resources). The right to health is enumerated in article 12 of the ICESCR wherein it is mentioned that the State parties are to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Christian Tomuschat pointed out, “the incorporation of the Covenant obligations in the form of a domestic statute is the simplest way to ensure that everybody is able to the rights guaranteed by the Covenant giving it a higher degree of stability and reliability.”

Incorporation of the Covenant obligations in the national constitution is one way of implementing them in the domestic legal order. National Constitutions are the embodiment and reflection of the will of the people. They are a crucial part of a States domestic legal framework and are pivotal in standardization of human rights. A weak constitutional framework exhibits its inadequacies when faced with adverse situations threatening human rights. The COVID-19 Pandemic has been such an adverse calamity that has impinged upon multiple rights such as right to life and right to health amongst others. Unlike right to life, which is enshrined as a fundamental, enforceable right in the Constitutions around the world, right to health, unfortunately has been regarded as judicially unenforceable (albeit being a guaranteed right).

The Pandemic has taken its toll on the majority of the countries around the world. Some have responded adequately, some have not. Interestingly, the Constitutional status of right to health has been noted to have been connected to the pandemic response performance. Devi Sridhar in her book “Preventable: How a Pandemic Changed the World & How to Stop the Next One” noted Senegal as a success story in terms of pandemic response. The Constitution of the Republic of Senegal, through an amendment in 2009, ensured the protection of the right to health of all citizens. The Constitution of Latvia included right to health as a fundamental right and is 8th in ranking in terms of pandemic response according to the Lowy Institute. On the other hand, The Constitution of the Kingdom of Bhutan (ranked 1st in pandemic response by the Lowy Institute) mandates the Royal Government to ensure a healthy environment and includes free access to basic public health services as a Principle of State Policy (articles 5 and 9). New Zealand (ranked 2nd by the Lowy Institute) does not have a written constitution; however, The Healthy Futures Act 2022 looking to revamp the public health system has not explicitly incorporated the right to health. The United States of America ranks 96th having no explicitly recognized right to health with India (87th) and Bangladesh (88th) which recognize right to health as a Directive or Fundamental Principle of State Policy are ranked above the USA despite disparity in infrastructure and institutional capacities.

Therefore, aside from success in pandemic response, the countries abovementioned exhibit diversified legal framework when it comes to right to health ranging from positive protection to negative enforcement or none at all. Nonetheless, it exhibits that the countries which have invested in either positive protection (right to health as an explicit/ fundamental right) or negative enforcement (respect and fulfillment of right to health) have performed better in responding to the pandemic than those with no recognition at all. A country’s pandemic response is driven by numerous other factors than just by the legal status of right to health. However, it provides a legal framework to hold the Government liable and possibly ensure a rights-based approach. While this is not a panacea, it can arguably serve as a case for judicial recognition of the right to health and for a rights based healthcare system.