Fundamental right to Basic Necessities of Life: Problems of Adjudication in Bangladesh

Fundamental Right to Basic Necessities of Life: Problems of Adjudication in Bangladesh

M Jashim Ali Chowdhury

 

Published in the Indian Journal of Constitutional Law, Volume 5 (2011) pp 83- 105; Published by NALSAR University of Law, Hyderabad, India;

For Full Volume of the Journal See: 

https://www.nalsar.ac.in/sites/default/files/IJCL%20Volume-5.pdf  

Claiming a ‘Fundamental Right to Basic Necessities of Life’: Problems and prospects of adjudication in Bangladesh

M. Jashim Ali Chowdhury*

1. Prelude

The debate on whether socio-economic rights can or should be adjudicated and enforced by courts is ongoing since 1960s, when the rights in the Universal Declaration of Human Rights (UDHR) were divided into two separate covenants. Though the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic Social and Cultural Rights (ICESCR) 1966 differ from each other in many respects, the key point which makes the ICESCR drastically weaker than and subservient to the ICCPR[1] appears in its Article 2(1). Here the State party obligation and its realization have been made a progressive one subject to available resources. On the other hand, Article 2 of the ICCPR puts an immediate and justiciable burden upon the State. Since the civil political rights were figured prominently in the west while socio-economic rights were propagated by the socialist block, the ideological cleavages between socialism and capitalism shadowed the necessity of integration of socio-economic rights among justiciable fundamental rights and they were thereby avoided practically.[2] After the World War II most of the third world countries emerging free from capitalist colonial legacy adopted this formula of segregating the human rights and hence the socio-economic rights remained the poor cousins of their civil and political counterparts. In the sub-continent the Indian (1950) and Pakistani (1973) constitutions adopted this and so did the Bangladeshi one (1972).

1.1. Socialist illusions of the Constitution of Bangladesh

One of the fundamental principles inspiring our forefathers to lay down their lives in the Liberation War of 1971 was the emancipation of working class, peasants and toiling masses from all sorts of oppression and economic deprivations.[3] Accordingly the Preamble of the original constitution (1972) adopted ‘socialism’ as one of the guiding philosophies of the new state which was to be a scheme of social security from cradle to grave.[4] The motto was to eliminate inequality in income, status and standard of life by providing adequate shelter, education and medical care to all. Article 10 also approved the assertion by pledging, ‘A socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from exploitation of man by man.’  

However, the half-heartedness on the part of the framers regarding the exact capability of the State to take the burden in this regard prompted them to relegate the socio-economic ‘Rights’ to mere ‘Principles.’ Accordingly the sunny promises of the Preamble faded in the very first Article (Article 8) of Part II. Here the constitution creates a dichotomy between civil and political rights and economic, social and cultural right by making the former enforceable by the court and the latter non-enforceable.[5] Economic, social and cultural rights included in Part II under the head ‘Fundamental Principles of State Policy, includes the provision of basic necessities of life including food, clothing, shelter, education and medical care, etc.[6] While the ‘Fundamental Rights’ in Part III are justiciable,[7]

To make the situation worse, after the 1975 killing of the Father of the Nation, Article 10 of the Constitution harboring ‘socialism’ was substituted with something new: ‘Steps shall be taken to ensure participation of women in all spheres of national life!’ ‘Socialism’ in the Preamble was amended to mean economic and social justice. Thereby a political agenda was relegated to a mere economic program and a socialist economy turned into a bourgeoisie one. [8] A welfare state became a laizess faire and the fortune of the millions of dying destitute fell upon the mercy of cruel and rampant God of market.

1.2. In search of reform

Quite happily, the Supreme Court in a recent case[9] has given Bangladesh her socialist complexion back by reviving the original Preamble and Article 10. This is the case where the ill-legacy of military rule was condemned.[10] The invalidation of the 1975-79 military regime resulted in the auto invalidation of the constitutional amendments effected by the regime and hence the original constitution especially the Preamble and state policy related articles got much of their original look back. Thereafter the 15^th Amendment to the Constitution of Bangladesh effected in July 2011 accommodated most of the observations of the Supreme Court. It introduced some other vital changes regarding which the Court had no observations at all. However, the legislature did not take the chance to re-consider whether the 1972 confusions regarding the affordability of the fundamental right to basic necessities of life holds the field today or not. Hence the original equation of principles versus rights remains intact.

Given the situation, I take the chance to argue for placement of basic necessities of life, which now reside in Article 15 of Part II of the Constitution (Fundamental Principles), within the ambit of Part III (Fundamental Rights) to re-install and further invigorate the socialist promises of the Preamble.[11] Answer to the first and foremost ‘doubt’ on such a proposition arising from the Court’s suspected unfitness to judge a fundamental right to basic necessity claim is the focus of this exercise.

After briefly addressing the widely professed ‘problems’ relating to the justiciability of Socio-economic Rights (Para 2), the paper proceeds to unveil the ‘smuggling’ the Bangladeshi courts are doing now-a-days under the umbrella of Fundamental Rights (Para 3). Then, the inadequacies of the indirect and minimum enforcement regime developed through judicial activism are explained as part of a preliminary justification of a ‘fundamental right’ claim (Para 4). Thereafter, for a comfortable linguistic formulation of the proposed ‘fundamental’ right to basic necessities of life, I have taken the South African Bill of Rights as a model (Para 5). Then, to ease the hesitation regarding the resultant judicial activism, I’ve tried to chalk out the patterns of probable orders and judgments that the judiciary may render in a future claim to basic necessities as of right. At the same time I’ve tried to show that the judiciary of Bangladesh is already in the habit of making such orders and judgments in course of its engagement with Public Interest Litigations (PILs) and obviously they have done it with a considerable amount of success (Para 6). Lastly, the question as to whether Bangladesh is ready enough, economically and politically, to adapt herself with the proposed drastic change in ‘rights’ regime is dealt with, briefly though (Para 7). The ultimate purpose is to persuade that we don’t need to be worried of the court’s ‘institutional capacity’ to adjudicate such fundamental right claims.

2. Justiciability ‘concerns’ and the Replies

The key ‘problems’ rooted in the traditional perceptions of progressive and resource dependent ESC rights, their violations and resultant remedies may be summed up to the minimum within two major points: Firstly, their realization being progressive and therefore more difficult to judge the presence versus absence of, e.g. a right to education as compared to a right to vote; and being subject to the available resources, and therefore more difficult for States to guarantee to every citizen unconditionally, the theory of separation of power is inherently against their justiciability. Secondly, the courts do not have the institutional capacity to appreciate and attend all the polycentric interests involved therein.[12]

In fact the already settled responses to these readily preached ‘problems’ are so well known that a short assemblance of points should suffice. Lack of resource as an excuse fails in its totality when we see the violation of socio- economic rights as a problem of governance, not of resource.[13] A rights claim may not be ‘reasonably’ discharged simply on the basis of a bald assertion of resource constraints. Resource consideration is not totally ignored by the court judging a violation. What the court does is questioning ‘reasonableness’ of the resource already allocated to see that the decisions and their implementation remain fair, rational,[14] balanced, flexible, coherent, proportional,[15] progressive and purposeful.[16] It also takes care that the program pays appropriate attention to the crises, short, medium and long-term needs.[17] Under the doctrine of separation of powers, it is the job of courts, not legislatures, to consider allegations of rights violations. The ever present potential for an on-going tussle between the courts and the government should be seen as part of the process of constitutional dialogue rather than a threat to the constitutional order.[18] The institutional capability of the court to adjudge socio-economic rights litigations becomes undoubted in the sense that such litigations focus on structural or systemic violations requiring the weighing of competing interests in the scale of reasonableness and proportionality.[19] Institutionally no other organ of the State is better suited than the Judiciary to adjudicate the proportionality concern objectively.

3. Smuggling Socio-economic Rights through the backdoor

While in spite of having similar constitutional disposition, the Indian judiciary appeared as a vanguard of social justice,[20] the Supreme Court of Bangladesh remained adamant not to change its stance over the non-justiciability of socio-economic rights finding place within the Principles of State Policy until recently.

In Re Wills Little Flower School[21] the High Court Division negated a requisition of land in favor of an English Medium Private School on the ground of its being not in ‘Public Purpose.’ Relying on Article 17 of the Constitution which mandates the State to work for the ‘mass-oriented uniform system’ of education, the Court held that use of governmental power for private English medium school having little interest in the culture and heritage of Bangladesh would never be an action aimed at ‘mass oriented’ ‘universal’ education. Unfortunately the Appellate Division turned down the effort by holding that Fundamental Principles of State Policy (where Art. 17 belongs) were not to be judicially enforced and thereby refused to use them even as aid to interpretation.[22]

Again, the Kudrat-E-Elahi Panir and Others v. Bangladesh concerned a challenge to Ordinance No. XXXVII of 1991 (that subsequently became Act No. II of 1992) which abolished the elected Upazila Parishads (the third tier of the local government) and vested in the government all rights, powers, authorities and privileges of the dissolved Upazilla Parishads. The appellants, some chairmen of dissolved Upazilla Parishads, unsuccessfully challenged the law in the High Court Division and then appeared before the Appellate Division by obtaining leave to appeal. One of the grounds was that the Ordinance being inconsistent with Articles 9 (as it was before the 15^th Amendment) and 11 ran against the spirit of the Constitution and became void by operation of Article 7(2). It was clear that the Ordinance was clearly against the gist of Articles 9 and 11.[23] But the problem was that the Articles 9 and 11 were in the Part II containing the Fundamental Principles. In the main judgment Shahabuddin Ahmed CJ held that Articles 9 and 11 being located in Part II of the constitution were not judicially enforceable. If the State does not or cannot implement these principles the Court cannot compel the state to do so.[24]

Interestingly, the Article 8(2) has five parts – The principles: a) shall be fundamental to the governance of Bangladesh; b) shall be applied by the State in making of laws; c) shall be a guide to the interpretation of the Constitution and other laws of Bangladesh; d) shall form the basis of the work of the State and its citizens; and e) shall not be judicially enforceable. It seems that while strictly asserting that principles are not judicially enforceable, judiciary is ready to enforce the fifth criteria only and not the other four criteria set out in article 8(2). It may be asked whether article 8(2) binds the judiciary only and leaves the executive and legislature out of its ambit. Once Justice Badrul Haider Chowdhury of the Appellate Division of the Supreme Court got almost near to the point but the vital question of justiciability remained unanswered and the Court ended in a mere general observation:

Though the directive principles are not enforceable by any court, the principles therein laid down are nevertheless fundamental in the Governance of the country and it shall be the duty of the state to apply these principles in making laws. …. This alone shows that the executive cannot flout the directive principles. The endeavour of the Government must be to realise these aims and not to whittle them down.[25]

However, there are instances of judicial enthusiasm and of late the trend has gained momentum. This part of the write-up explores the scopes prevailing within the constitutional set up of Bangladesh ‘to smuggle (if not possible to claim) the socio-economic rights through the backdoor and down the chimney or through the window.’[26] The courts are using some of the lee-ways while some other remains yet to be explored. The first strategy is asserting socio-economic rights under the umbrella of prominent Fundamental Rights like right to life and liberty, freedom of association, expression and opinion, right to information, equality and non-discrimination, etc.[27] Second of the options is to emphasize the domestic application of ICESCR to enforce socio-economic rights.

3.1. Resorting Fundamental Rights to claim Socio-economic Rights

The ‘right to life’ has been widely utilized by the courts to ensure medical services, food, shelter, healthy work en­vironment and housing etc of the people.[28] Stumbled by the plea of non-justiciability of Directive Principles, the Indian Supreme Court has shown its dire determination to enforce the socio-economic rights of the people by following this line. Article 21 of the Indian Constitution ensuring right to life has been interpreted to cover right to necessary conditions of life,[29] right to livelihood,[30] right to get adequate relief in starvation crisis,[31] right to receive timely medical aid,[32] right to live in healthy environment,[33] right to education[34] and even the access to better road communication facilities.[35]

In Bangladesh also the right to life has been resorted to address a wide range of welfare concerns such as slum dweller’s legitimate expectation of not to be evicted without alternative settlement,[36] protection and preservation of environment and ecological balance,[37] prohibition of advertisement of cigarettes,[38] ban on imposing VAT in case of health treatment at hospitals, clinics and doctors' chamber,[39] development of children, maternity benefits, creation and sustenance of conditions congenial to good health[40] etc.

Right to equality and non-discrimination has been another area of great strategic value. The activist judges around the world rely greatly on the principle of non-discrimination to strike at the roots of socio-economic inequality. The Supreme Court of Bangladesh has done the same whenever an opportunity came.[41]

4. The inadequacies of the piecemeal Protection

While the judiciary has developed a piecemeal protection for socio-economic rights using the fundamental rights, it is in no way sufficient in protecting socio-economic rights. Rather it will be beneficial to explicitly recognise socio-economic rights as capable of judicial enforcement. The problems prevailing in the minimal protection trend are manifold.

First, it is ironic, that though the courts have developed this protection using the concept of human ‘dignity’, they intervene only in cases of extreme and exceptional degradation. In overlooking the other less severe cases of destitution, they contravene the value they are trying to uphold. Moreover, practical question arises from this - how are authorities to determine when an individual’s situation meets the requisite level of severity, requiring them to redistribute resources to eliminate the disadvantage?[42]

Secondly, courts face fundamental difficulties in protecting civil rights where they are inextricably bound up in socio-economic issues that are held to be non-justiciable. Therefore, courts are reluctant to intervene in the resolution of resource allocation disputes even where civil and political rights are in issue, and the result is that both sets of rights go unprotected.

Thirdly, for the present level of justiciability, recognition of socio-economic rights in the Constitution in any format is not necessary at all. For example, the US Bill of Rights or the Canadian Charter of Rights and Freedoms do not contain express guarantees of socio-economic rights. Even in such countries, protection for such rights is indirectly derived from the protection given to civil and political rights such as the right to life or the right to equal protection of the law. Hence without clear recognition of socio-economic rights as ‘rights’, the present scheme of our constitution makes no difference at all.

Fourthly, the use by courts of Directive Principles and other forms of open-ended constitutional rhetoric is often only possible in societies where there is general acceptance of the legitimacy of judicial activism. Judicial activism being a fluid and fluctuating concept it makes the enforceability of socio-economic rights an uncertain issue. It is significant that the Irish courts have not followed the approach of the sub-continent courts in relation to the very similar set of Directive Principles shared by both the Irish and Indian Constitutions. The Irish Supreme Court has taken the view that the limited role of the courts in a system based upon a firm concept of the separation of powers prevents them making use of the non-legally binding Principles.[43]

Fifthly, the present scheme narratives of social justice, redistribution, economic efficiency, development and growth compete, clash and combine with the principles of laissez-faire economic libertarianism and individual self-realization. Hence socio-economic rights remain largely on the sidelines of the political, social and economic debates. As Alicia Yamin has commented, “perhaps the greatest obstacle to advancing ESC rights—on both the external and internal level—is that there is a lack of consciousness about ESC rights as rights, and a concomitant lack of indignation at their systematic violation.”[44]

Therefore more direct judicial enforcement is needed instead of hitching socio-economic entitlements on the backs of political and civil rights. Such an action would transform the ‘target duties’ into ‘specific duties’. A programmatic model of socio-economic rights enforcement, which is elaborated by reference to the South African Constitution, may be incorporated in the Constitution. The ‘target duties’ coupled with aspects of the ‘programmatic’ model would require that socio-economic entitlements be considered in  the process of policy making, local authority decisions and legislation. It would require public authorities to target available resources on groups of greatest socio-economic need.[45] Additionally the ‘severity test’, aided by the reasonableness approach, developed in relation to the right to life would be applied to these explicit socio-economic rights. Extreme rights-denial would convert the ‘target duty’ into a ‘specific duty’ that is enforceable by the individual affected by the breach of the right/duty.[46]

5. Promoting ‘Principles’ to ‘Rights’: The South African Model

In spite of their indirect enforcement by the Supreme Court, there is a forceful necessity of elevating the status of basic necessities of life from mere aspirational goals to concrete Fundamental Rights. To this end the South African Constitution which is groundbreaking in entrenching protection of Socio-economic rights under the umbrella of judicial review,[47] may be looked into. The language applied therein crystallizes the normative contents of the otherwise ‘vague’ socio-economic rights.

The Constitution of Bangladesh nowhere acknowledges any ‘right’ to any social security benefits. She is full of promises having fine literary value. In terms of placing legal burden or duty upon the State, Articles 15-19 of the Constitution remain completely nugatory. The whole socio-economic rights talk, on the excuse of resource constraint, dwells on a charity based approach. The language applied in Article 15 of the Constitution, for example, delineates the contents of the basic necessities of life in a state charity fashion. It is accepted to be a ‘fundamental responsibility’ of the State ‘to attain’, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing, shelter, education and medical care, etc.’ Article 16 – 19 also are full of vague terms hardly specifying any concrete right holder or duty bearer.

Conversely, while not brushing aside the same resource constraints, the South African Constitution has rightly adopted a ‘Rights Based Approach’ to socio-economic rights.  The Bill of Rights entrenched in Chapter 2 of the South African Constitution (Act 108 of 1996) protects three categories of socio-economic rights: rights with internal limitations, rights without internal limitations and the negative rights, respectively.

The first category of rights includes the right of everyone to have access to adequate housing,[48] health care services, including reproductive health care, sufficient food and water and social security, including appropriate social assistance if they are unable to support themselves and their dependents.[49] All these rights are all subject to an internal limitation by which the state is required to take reasonable legislative and other measures, within its available resources, to achieve their progressive realization.[50]

The second category of rights includes children’s rights to basic nutrition, shelter, basic health care services and social services.[51] It also includes everyone’s right to basic education including adult education[52] and the rights of detained persons to adequate accommodation, nutrition, reading materials and medical treatment.[53] Their realization is immediate and not subject to reasonable legislative and other measures within the state’s available resources.

The third category, the negative rights, prescribes a number of prohibitions which include prohibition of refusal of emergency medical treatment to anyone,[54] eviction from or demolition of home without an order of court and permissive legislation.[55]

The South African mode of linguistic formulation dispels the much feared vagueness, separation of power and institutional suitability concerns. The rights in the second and third category are not less concrete than any of the civil political rights finding place in the fundamental rights part of our constitution. Had we adopted the formula, only the first category of rights may pose some, if there are any, ‘problems’. However, the next part of my write-up will show why there is no reason to be worried.[56]

6. Developing remedies for violation of ‘Fundamental’ Socio-economic Rights

To deal pragmatically with the perceived problems of polycentric decision making, the courts usually give some creative remedies such as Damages, Declaratory Orders (Prohibitive or Mandatory) and Structural Interdicts.[57] The appropriateness of such remedies, alone and in combination, depends on a range of contextual factors discussed below:

6.1. Damages

In socio-economic rights cases, damages present themselves as an attractive remedy. Though the damages awarded to an individual may deprive the state of resources that may have been used to provide services for the general good of society as a whole, it has a distributive justice effect as well.[58] In most cases it appears as the most appropriate remedy due to the poverty, disability or socio-economic disadvantaged position of the victim.[59] The High Court Division of the Supreme Court of Bangladesh has already developed a practice of giving palliative remedy of damages in its Special Original Writ Jurisdiction to try fundamental rights cases. The court’s extra-ordinary and inherent jurisdiction to pass any order as it deems fit and proper[60] has duly empowered it to award simple cost of the case as well as monetary compensation considering the facts and circumstances in each case.[61] The assertion of the Court’s power to do complete justice by giving appropriate, just and equitable relief has been so drastic as to require someone not party to the original suit to personally pay damages to the victim.[62] So it will not be any new remedy to be invented for socio-economic rights cases.

6.2. Declaratory Relief

Declaratory relief presents itself as appropriate when the government is committed to the rule of law and accords the court order the respect it deserves. Here the court simply declares whether or not the state is in short of performing its constitutional obligation. Its strength lies in its deferential nature which gives the state the latitude to choose the most appropriate way of undoing a constitutional violation.

In Ain O Shalish Kendra & ors v. Government of Bangladesh,[63] the petitioner argued that wholesale eviction of slum dwellers without prior notice and alternative rehabilitation was violative of their fundamental right to life which included the right to acquire livelihood.[64] The court, though took note of all the poverty alleviation schemes propagated to be undertaken by the government, declared eviction in any circumstance without alternative settlement illegal.[65] The immediate result of the order was that the eviction process was stopped.

However, on the face of executive recalcitrance mere declaration of delinquency may be ineffective and the courts may need to explore the appropriateness of other remedies. In the Upazila Parishad case[66] concerned a challenge to an Ordinance which abolished the elected Upazila Parishads (the third tier of the local government) and vested in the government all rights, powers, authorities and privileges of the dissolved Upazilla Parishads. The Court declared any sort of local governance by non-elected actors to be inconsistent with the constitution. The court opined that the government ‘should’ replace the non-elected persons by election ‘as soon as possible – in any case within a period not exceeding six months from date.’[67] Unfortunately this was not paid heed to and was ultimately forgotten. The case evidences the colossal failure of a mere directory declaration in absence of a mandatory order. This leads us to explore other remedies like interdicts.

6.3. Mandatory Interdict

Where there is evidence of likely non-compliance, it would be appropriate for the court to render a Mandatory Interdict. The nature of a mandatory interdict may be examined in light of Campaign for Fiscal Equity case[68] where the plaintiffs challenged New York State’s funding of New York City's public schools. In January 2001, Justice Leland DeGrasse of the State Supreme Court of New York handed down his decision. He found that the defendants’ method of funding education in New York violated the Education Article of the New York Constitution because it fell below the constitutional floor set by that article. He did not prescribe a detailed remedy at that point; instead, he ordered the State Legislature and Governor to devise and implement necessary reform of the State’s public school financing system. The State failed to devise and implement necessary reform and, on 14 February 2005, Leland DeGrasse J proposed his own solution after receiving a report from a panel of special referees. He ordered that an additional US$ 5.6 billion in annual operating expenses be provided within four years to ensure that the city's public school children will be given the opportunity to obtain the sound basic education. DeGrasse J's decision was subsequently upheld by the Court of Appeal.[69]

Such examples of judicial assertiveness in issuing directives to the legislature and the executive are not quite unseen in Bangladesh. In Fire Accidents in Garment Industries case,[70] the petitioner prayed for appropriate directions to address the frequent fire incidents in various garments factories claiming lives of hundreds of garments workers. The Court found sheer negligence on the part of the authorities concerned including the owners of garments factories and ordered the formation of a National Committee comprising various Ministries and representatives of garments owners and workers. Quite interestingly BGMEA, the organization of the owners of garments factories, was ordered to fund the office and the necessary staff, including a full-time secretary of the committee.

It is not only private organizations or individuals that against whom the court issues mandatory directions. The State itself may be subject to such mandatory directions. In Two Stroke Motor Vehicle case[71] the petitioner sought to reduce environmental hazards from the smoke of motor vehicles and audible signaling giving unduly harsh, shrill, loud and alarming noise endangering the people’s right to live in a healthy environment. Considering the scale of environmental pollution, the Court found ad interim directions necessary. Accordingly it ordered the government to - enforce the laws relating to control of hydraulic horns, conduct tests of vehicles and convert all government vehicles into CNG operated ones within six months and establish more CNG stations, phase out exiting two stroke wheelers and replace them by alternative transport within December 2002. Quite interestingly the writ petition was kept pending for the purpose of monitoring[72] and the respondents were asked to submit report of actions and results once every six months.[73] This seems clearly to be something more than the judicial role as understood in its traditional sense.

6.4. Prohibitory Interdict

Prohibitory interdict is most appropriate as a remedy for infringements of negative obligations shown in the third category of the South African Model. It is utilized to stop either the government, or any other person, from taking away the existing socio-economic rights vested in the applicants and similarly situated people. It is also very effective in preventing future infringements where the plaintiff shows a likelihood of violating protected rights. In this sense it becomes a preventative interdict. The High Court Division of Bangladesh has already taken the stance that the declaration that the directives are ‘not enforceable by any court’ only means that the state can’t be legally forced to carry them out, if it can’t do. This is not to say that it can throw them to the winds, and can enact laws openly in opposition to them. The first can’t be objected to, but the latter can’t be permitted.[74] So the tendency to issue at least a writ of prohibition in non-justiciable socio-economic rights claims is already there.[75] Supplying justiciability to the right to basic necessities of life will simply bolster the tendency.

6.5. Structural Interdicts

Remedies such as declaratory orders, prohibitory or mandatory interdicts and damages are inappropriate to remedy ‘systemic failures or the inadequate compliance with constitutional obligations’ arising especially out of institutional or organizational behavior.[76] Adequate response to systematic failures of institutional actors requires something more than deterrence or compensation. To this end Structural Interdicts warrant special attention. Here the court disregards the traditional functus officio doctrine which requires that once the litigation is closed the dialogue is also automatically closed. Rather retention of jurisdiction over the case propels the government to act more cautiously because of the knowledge that any lackluster conduct would easily be brought to the attention of the Court and might also spark the electorate frenzy. The Court arrives at more specific and detailed directions on the basis of the evidence brought to it by parties and by the attitude of the government.[77]

Monitoring compliance with its order by keeping a suit pending is not uncommon in Bangladesh. Bangladeshi courts have done it with great success by a device known as continuing mandamus.[78] Some examples will clarify the wrangle the Court had to fight to enforce its continuing mandamus. In Separation of Judiciary case[79] around 441 judicial officers of Bangladesh sought separation of Subordinate Judiciary from the Executive as per Article 22 of the Constitution which happens within Part II Principles. They prayed for a mandamus on the government to frame necessary Rules facilitating the separation. The High Court Division upheld the contention and ordered framing of rules. The government preferred an appeal. The Appellate Division meticulously examined various provisions of the Constitution and gave a number of directions to achieve the desired separation.[80] Among the directions were framing of Rules, creation of a separate Judicial Service Commission and a separate Judicial Pay Commission and insurance of financial independence of the Supreme Court from the executive.[81] It was in May 1997 that the High Court Division issued the directives to be implemented within eight weeks. The decision was upheld by the Appellate Division in November 2000 and reconfirmed upon review in June 2001.[82] The government’s reluctance to separate the judiciary was evidently noticed from the very beginning. It began to take time extension and passed the time granted effortlessly. Three successive governments took as many as 22 time extensions over a period of 8 years. Finally another Caretaker Government coming to office made necessary arrangements and the lower judiciary was separated from the clutches of the executive on 1^st November, 2007.

This is a classic example of a relentless court involvement making things ultimately happen. It is evidence of the fact that where the government fails to act in a timely manner in the face of a structural interdict, the Court is prepared to continue to engage the government until full compliance is obtained. If a structural interdict may buy independence for the judiciary, it may also buy socio-economic rights for the people.

6.6. Various Models of Structural Interdicts

Courts have adopted different models of structural interdict in different cases. The most commonly used models of structural interdicts, as suggested by Susan P Sturm, include the bargaining or consensual remedial formulation model, the legislative or administrative hearing model, the expert remedial formulation model and the report-back-to-court model. [83]

6.6.1. Bargaining or Consensual Remedial Formulation Model

The bargaining model involves making remedial decisions through negotiation by the parties involved in the case. The biggest advantage of this model is that it produces a remedy that is acceptable to all the parties, thereby easing its implementation. An independent third party may be appointed to help the parties reach consensual agreement on the remedy. If the parties fail to agree, or if the agreement reached fails to conform to the requirements of substantive law in issue, the judge may intervene and fashion the remedy.

In Bangladesh the Code of Civil Procedure (Amendment) Act 2003[84] and a large number of other statutes[85] incorporate the bargaining or consensual remedial formulation model in civil, family, industrial, financial and labour matters. This type of mediation, negotiation and conciliation may be undertaken at any stage – trial or appellate – of a suit. Regarding the Supreme Court’s opportunity to use such devices, it is boldly asserted that the Special Original Writ Jurisdiction being an extra-ordinary one, the High Court Division has got extra ordinary and inherent jurisdiction to pass any order as it deems fit and proper. Again considering the widest possible latitude of discretion allowed to the High Court Division in regulating its own procedure there is no reason why the Court may not adopt a bargaining or consensual model if the merit of a case before it requires so.

6.6.2. Legislative or Administrative Hearing Model

The legislative or administrative hearing model resembles a legislative committee process providing for public hearings and direct informal participation by interested parties. This model allows persons not originally party to the litigation to participate in the formulation of remedy. The informal nature of the process also makes accessibility much easier especially for the weak and vulnerable. In Bangladesh as well the courts frequently permit voluntary organizations to place their findings and report before it and consider their suggestions and recommendations in formulating its decision. The Court sometimes welcomes the opinions of the experts and asks for their suggestions.[86] In Post Divorce Maintenance case,[87] say for example, considering the utmost Islamic importance of the question involved, almost 18 individuals and NGOs were allowed as intervener. Individuals included some renewed lawyers, two Professors from University of Dhaka and even an ordinary house wife, while the Khatib (Chief Imam) of the National Mosque and Editor of a renowned Islamic monthly were invited as amicus curie. The court specially relied on the opinion of the Khatib of the National Mosque in formulating its decision.

6.6.3. Expert Remedial Formulation Model

The expert remedial formulation model involves the appointment of either an individual expert or a panel of experts with a mandate to develop a remedial plan. The court-appointed experts in structural litigation differ from those we usually see in fundamental rights cases.

In Bangladesh the Code of Civil Procedure 1908 allows commissions to be formed for the purpose of examining witnesses, making local investigations, examining accounts and making partitions. However, this list is not exhaustive and does not limit the inherent power of the High Court Division to appoint commissioners in a writ petition for the ends of justice. The petitioner in a constitutional rights case may not be able to produce enough evidence in support of his case. When impartial assessment of facts is needed swiftly, the official machinery of the state becomes unreliable, inefficient and probably biased. Again, reporting in most cases has to be done against the state machinery and in that case the court having no investigative machinery of its own, must take resort to a commission of experts lest the disadvantaged sections of the community have their petitions rejected and fundamental rights continued to be violated.[88]

6.6.4. Report-back-to-court Model

This is the most commonly-used model implemented by requiring the defendant to report back to the court with a plan on how he intends to remedy the violation. Usually a fixed date is set for the filing of the plan and the other party is given an opportunity to comment. It is only when the court is satisfied with the plan that it will concretize it as part of its decree. In fact, the court reserves the right to reject the plan if considered inadequate.  

The S v Zuba[89] case arose from the absence of juvenile reform schools in the Eastern Cape. The Court ordered the Department of Education to file a report disclosing its short, medium and long term plans for the incarceration of juvenile offenders. It was also ordered that a task team, to work on the establishment of a reform school, be identified and its reports be submitted on a regular basis to the inspecting judge as regards progress until the school is established.

The Bangladeshi brand of Report-back-to-court Model is a little more intrusive than the one discussed above. The instances we have in Bangladesh shows that here the Court itself has defined the plan of action, requiring the government to report back on the progress of implementation. Though the Bangladeshi judgments pose a bit different report-back-to-court model, these are nonetheless persuasive in the sense that seeking report fashioning appropriate remedy is less intrusive than seeking report on compliance with court formulated remedy. In Faustina Perera v. State[90] a suo moto rule was issued on the basis of a letter written by Dr. Faustina Perera. There attention of the Chief Justice was drawn to the fact that 29 foreign foreigners were languishing in different jails of Bangladesh for about five years even after serving out their sentence. The regional representative of International Organization for Migration was invited to share his experience. The realistic problem regarding the release of the prisoners is that if they are immediately released they will be in difficulties not being able to show necessary papers. Most importantly there are no shelter centre in Bangladesh to give necessary protection to them. The Court ordered the Government to increase its engagement with International Organizations working with migrants and to establish a separate cell in the Ministry of Foreign Affairs to deal with foreign prisoners.[91] The Jail Authority was ordered to facilitate their release and make necessary arrangement for their safety and shelter at best within 2 months. The Superintended of Central Jail was to report the Court within 3 months about the release of the 29 prisoners. The IG Prison was to report within 7 days with full particulars of the remaining 822 foreign prisoners across the country and of the steps taken regarding their release.[92]

In Environment Pollution Case[93] Dr. Farooque sought mandamus upon 1176 industries to enforce their duties under the Environment Pollution Control Ordinance 1977 and the Bangladesh Environment Conservation Act 1995. Quoting Krishna Iyer J. with approval the Court asserted that it would not ‘sit idly by and allow the government to become a statutory mockery’.[94] The Director General Directorate of Environment was ordered to classify ‘red’ industries and adopt sufficient control mechanism within one year and report compliance within six weeks thereafter. Some factories and industries were ordered to take measure within 2 years and report to the court soon thereafter.[95] The petitioner was set at liberty to bring incidents of violations of law to the Court and to approach for direction wherever necessary.[96]

Very recently in Pure Food Case[97] the High Court Division directed the government to set up a food court in every district and to appoint sufficient food analysts and food inspectors in all districts within one year in order to prevent food adulteration. It observed that necessary rules and regulations should be framed in order to ensure safety, purity and proper nutrition values of foods. The court also directed the government to inform the court by July 1, 2010, about its progress in complying with the directions.

7. Is Bangladesh ready to take the burden?

As to the question whether Bangladesh is ready yet for the dramatic regime change I propose in here in this paper, the first stance I would like to take is already well established. This is to see the poor implementation of socio-economic rights as a problem of ‘governance’ not of ‘resources’. Why people go hungry? Why famine occurs? Is it the unavailability of food that always plays the role? The classic example of 1974 famine may be an eye opener. The availability of food in 1974 was much higher in any other year during 1971-76. Yet Bangladesh laced famine. All four of the famine districts were among the top five in terms of food availability per head. Hence food is not the problem, but access to food is the marginalized, that’s it.[98] Considering these rights as a consequence of economic development results in the theory – first expand the cake, then concern with its distribution. It advocates suppression of ESC rights for its future realization. The pain in the present is guaranteed; the gain in the future is speculative and illusory. Few worlds freely opt for such a bargain.[99]

Secondly, it may emphatically be asked whether the doubt in the minds of the founding father regarding the economic strength of the newly independent Bangladesh remains valid even today. Is Bangladesh not ready to take at least a ‘minimum’ ‘reasonable’ burden of socio-economic rights? In fact, the economy of Bangladesh has come a long way since 1971. The most basic achievement relates to economic growth, which is a necessary pre-condition for achieving progressive realisation of rights as expeditiously as possible. Bangladesh’s rate of growth is not spectacularly high, especially in comparison with the rates achieved by the high-performing countries of East and South-East Asia. From an average of 1.7 per cent in the 1980s, the growth of per capita income jumped to 3.0 per cent in the 1990s and jumped again to 4.4 per cent in the 2000s. Since 2005, per capita income has been growing at more than 5 per cent per annum, representing a three-fold increase compared to the 1980s. The end result of all this is that the current generation of Bangladeshis is almost exactly twice as rich as was the preceding one.[100]

Thirdly, the basic problems in the welfare managements of Bangladesh lie not in the availability of welfare benefits, rather it is predominantly in the accessibility of those benefits for the poor. Take the Right to Food, for example. For much of the period in the first two decades after independence, overall food grain availability just about kept pace with population growth, so that per capita availability has remained virtually stagnant.[101] However, a large share of budgeted resources appears not to reach the intended beneficiaries, indicating serious accountability problems. As per the World Bank estimation of 2003, as much as 35 per cent of the food grains allocated to the VGF (Vulnerable Group Feeding), 41 per cent of the VGD (Vulnerable Group Development), and an overwhelming 75 per cent of allocations to the FFE (Food-for-Education) did not reach any household—eligible or otherwise. Diversion of resources at such a massive scale detracts from the success the government can otherwise claim in fulfilling its duty “to provide” by pursuing a pro-poor public food distribution system.[102]

Fourthly, in Bangladesh specially, what we need to emphasis is on spending capability of the government which is the basic challenge. The National Budget for FY2009-10 allocated a total of Tk.7,561.41 crore for social sector development, which is about 19 per cent higher than the allocation for FY2008-09 (Tk. 6,346.96 crore). However, ADP utilisation statistics for this sector over the first five months of FY2009-10 (July November 2009) portrays a rather gloomy picture (29% total expenditure as percentage of ADP allocation) when compared to the full fiscal of FY2008-09 when 87 per cent of the budgeted allocation was spent.[103] The poor implementation scenario is evident in health sector as well. Although the National Budget for FY2009-10 allocated Tk.70 crore for the purpose, only about 26 per cent has so far been utilised till November 2009.[104]

Lastly, while judging the ‘fundamental right to basic necessities of life’, the Court will concern itself, as already shown in Paras 2 and 6, more with questioning the reasonableness of the already allocated resources rather than requiring excess resources to be allocated. What the Court shall try to uphold, in particular, in the process of progressive realization will include the following issues. First, the State must begin immediately to take steps to fulfil the rights as expeditiously as possible by developing and implementing a time-bound plan of action. The plan must spell out, inter alia, when and how the State hopes to arrive at the full realization of rights. Second, the plan must include a series of intermediate— preferably annual—targets. These intermediate targets will serve as benchmark, against which the success or failure of the State will be judged.[105]

8. Concluding Remarks

At the end of this reading a question regarding appropriateness of the Bangladeshi decisions cited above may seriously be asked. It is accepted that all of the decisions are not always essentially related to any socio-economic rights claim. Then how do I assume that these shall be ‘appropriate’ for a future ‘fundamental right to basic necessities of life’ claim? To this question my answer is plain. The golden thread of this paper, if it is to be summed up within one line, is dispelling the dogmatic perception of socio-economic rights by making evident that the court is ‘institutionally capable’ to deal with the resource issues and the ‘separation of power’ issue never puts a hindrance to the court’s way.  If the courts can deal with resources and engage in tussles with the executive in civil-political rights cases, then what prevents them from exploring the path in a basic necessity claim? That is why I confidently argue for the recognition in Bangladesh of the basic necessities of life as constitutionally protected fundamental rights.

                                                                                              

---

* Lecturer, Department of Law, University of Chittagong, Bangladesh; I would like to thank my respected teacher Professor Md. Zakir Hossain, Dean of the Faculty of Law, University of Chittagong, who made intuitive comments on many of the points I pointed out in an earlier draft of this paper. Critical comments of the respected reviewers of the Indian Journal of Constitutional Law also have greatly helped me in clarifying and pin pointing some of the crucial arguments I present here.

[1] Yubaraj Sangroula, Right To Adequate Standard of Living, Development and Social Respect and Dignity in SOCIAL RESPONSIVE HUMAN RIGHTS LEGAL EDUCATION (A Compendium of Conference Proceedings and Papers) SALS Forum, 2004,pp,62-73, at p.70

[2] Abdullah Al Faruque, Realization of Economic, Social and Cultural Rights: A Survey of Issues in HUMAN RIGHTS AND EMPOWERMENT, 85, 85 (Mizanur Rahman ed., 2002).

[3]   Bangladesh Italian Marble Works Ltd v. Bangladesh, 14 BLT (Spl) 1 p 230-231

[4]   A.K.M SHAMSUL HUDA, THE CONSTITUTION OF BANGLADESH (VOL. 1) 206 (Rita Court, 1997)

[5]   BAN. CONST. art 8 (2), Sri Suranjit Sen Gupta, the lone opposition member from National Awami Party (pro-Moscow) in the Constitution Drafting Committee of 1972 alleged that the draft did not adequately provide for the establishment of socialism. He suggested that the words ‘shall not be judicially enforceable’ should be deleted. Ultimately he refused to sign the Constitution on demand that at least the right to receive education upto Class 8 be accepted as Fundamental Right. See: Abul Fazl Huq, Constitution-Making in Bangladesh, PACIFIC AFFAIRS, Vol. 46, No. 1 (Spring, 1973), pp. 59-76, University of British Columbia, Stable URL: http://www.jstor.org/stable/2756227, Accessed: 24/02/2010.

[6]   Id, art. 15

[7]   Id, arts. 44 & 102

[8]   In the original Constitution, it was ‘Socialism’ unqualified and simple. Later on the qualifying phrases meaning economic and social justice were included. The rationale behind the change was obviated due to the emergence of capitalist forces having a strong US leaning to the power. The socialistic inspirations of the revolutionary leadership were in marked distinction with the free-market de-regularized economy professed by the erstwhile Pakistani military elite. The military establishment usurping power in Bangladesh in 1975 was in no way comfortable with a ‘basically socialist’ Constitution. Hence it was thought better to concoct the original socialism to a mere socialism in ink and paper. An individualist capital economy was given priority over the greater purpose of social and political justice. Consequently, in a bid to attract direct foreign capital most of the nationalized industries were de-nationalized. State-owned banks, financial institutions, trading concerns fall to private hands. The shares until recently held by the government in many enterprises were sold to the private individuals or companies. See - REHMAN SOBHAN, BANGLADESH PROBLEMS OF GOVERNANCE 36 (UPL Dhaka, 1995)

[9]   Khandker Delwar Hossain v. Bangladesh Italian Marble Works Ltd (Civil Leave to Appeal Petition No 1044/2009) commonly known as the 5^th Amendment Case (Dec. 12, 2010) http://supremecourt.gov.bd/judgement/C.P.%20Nos.%201044%20&%201045%20of%202009%20(5th%20Amendment).pdf (Accessed on: May 12, 2010)

[10] Dr. Shah Alam, Constitutional Issues are political as well as legal: Implementing the SC 5^th Amendment Judgment, THE DAILY STAR, LAW & OUR RIGHTS, August 28, 2010.

[11] Though the Constitution of Bangladesh, like that of the Union of India, incorporated the Socio-economic Rights in a somewhat utopian manner covering a broad range of socio-political and economic agenda, I am inclined to advocate for recognition only of the basic minimum necessities of life enshrined in Article 15 as fundamental rights. Articles 8 to 25 finding place within Part II (Fundamental Principles of State Policy) of the Constitution cover a vast array of socio-economic guarantee for the citizens such as Emancipation of peasants and workers (Art. 14), Rural development and agricultural revolution (Article 16), Preservation of Public health and morality (Article 18), Equality of opportunity for all in access to resources and opportunities (Article 20), preservation of National culture and heritage (Section 23) and Promotion of international peace, security and solidarity (Article 25) etc.

Presently, Article 15 imposes a ‘fundamental responsibility’ on the State to attain a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens - the provision of the basic necessities of life, including food, clothing, shelter, education and medical care; the right to work meaning the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of work; and including the right to reasonable rest, recreation and leisure; and finally the right to social security, meaning the right to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases. I wish to see an immediate, instead of presently deferred, burden on the State regarding these core Socio-economic rights.

[12] CHRISTOPHER MBAZIRA, LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA: A CHOICE BETWEEN CORRECTIVE AND DISTRIBUTIVE JUSTICE 17 (Pretoria University Law Press, 2009)

[13] Md. Zakir Hossain, Good Governance: Road to Implementation of Human Rights in HUMAN RIGHTS AND GOOD GOVERNANCE, 107-118, 115 (Mizanur Rahman ed., 2004)

[14] Soobramoney v. Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC)

[15] Khosa and Others v Minister of Social Development 2004 6 BCLR 596 (CC)

[16] TAC v Ministers of Health  2002 (10) BCLR 1033 (CC)

[17] Grootboom v Ostenberg Municipality and Others 2000 3 BCLR 277 (CC)

[18] Sandra Liebenberg, South Africa’s Evolving Jurisprudence On Socio-Economic Rights (Jan. 2, 2011) http://www.communitylawcentre.org.za/clc-projects/socio-economic-rights/research/socio-economic-rights-jurisprudence

[19] MBAZIRA, supra note 12, at 43

[20] Anirud Prasad, Human Rights and Socio-Economic justice: A Study with special reference to India, 12 Civil & Military L.J., 84, 85 (1976)

[21] Wnifred Rubie v. Bangladesh 1 BLD 30

[22] Bangladesh v. Mrs. Winifred Rubie and Others 2 BLD (AD) 34

[23] Article 9 and 11 emphasized on maintaining democratically elected local government institutions.

[24] Kudrat-E-Elahi Panir and Others v. Bangladesh 44 DLR (AD) 319, Para 22; Two other important cases where the non-justiciability was mechanically preached are – Dr.Ahmed Hussein v. Bangladesh 44 DLR (AD) 109 and Farida Akter v. Bangladesh 57 DLR (2005) 201

[25] Anwar Hossain v Bangladesh 1989 BLD(Spl) 1, Para 53

[26]  Albie Sachs, Social and Economic Rights: Can They Be Made Justiciable? in HUMAN RIGHTS AND EMPOWERMENT, 77, 79 (Mizanur Rahman ed., 2002)

[27] GHULAM RABBANI, CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH: EASY READER (BANGLA), 49 (Samunnoy, 2008).

[28] Kamal Hossain, Interaction of Fundamental Principles of State Policy and Fundamental Rights in PUBLIC INTEREST LITIGATION IN SOUTH ASIA: RIGHTS IN SEARCH OF REMEDIES, 50 (Sara Hossain and Ors ed., 1994)

[29] Francis Coralie v. Union of  Delhi, AIR 1981 SC 746

[30] Olga Tellis v. Bombay Municipal Corporation AIR 1981 SC 180

[31]  Orissa Starvation Death Proceedings, National Human Rights Commission of India (HRC), Case No. 37/3/97-LD, 17 January 2003) and People’s Union for Civil Liberties v. Union of India & Ors (Rajstan Starvation Death Case, 2003) (Jan. 11, 2011) http://www.communitylawcentre.org.za/ser/casereviews.php

[32] Paschim Bang Khet Mazdoor Samiti v. State of WB (1996)4 SCC 37; Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42; Parmanand Katara v. Union of India (1989) 4 SCC 286.

[33]  Ratlam Municipality v. Vardichand AIR1980 SC 1622

[34]  Mohini Jain v. State of Karnataka (1992) 3 SCC 666; Unni Krishnan J.P v State of Andra Pradesh AIR1933 SC 2187

[35] State of Himachal Pradesh v. Umed Ram Sharma (1986) 2 SCC 68

[36]  Ain O Shalish Kendra and others v. Govt of Bangladesh 4 MLR (HC) 358

[37] Dr. Moohiuddin Faruque v. Bangladesh and Ors 49 DLR 1997 (AD) 1 (FAP 20 Case), Dr. Mohiuddin Farooque (BELA) v. Bangladesh 55 DLR (HCD) 69 (Environment Pollution Case)

[38] Professor Nurul Islam v Govt. of Bangladesh & others 52 DLR 413

[39] Chairman, NBR v. Advocate Julhas Uddin 15 MLR (AD) 457

[40] Dr. Mohiuddin Faruque v. Bangladesh 48 DLR (1996) 438 (Radio Active Milk powder case)

[41] Retired Government Employees Welfare Association v. Bangladesh 46 DLR 426.

[42] Asha P James, The forgotten rights - the case for the legal enforcement of socio-economic rights in the UK national law, 7; Available Online: http://www.ucl.ac.uk/opticon1826/archive/issue2/VfPLAW_SE_rights.pdf (Accessed on: November 20, 2011)

[43] Colm O’Cinneide, Bringing Socio-economic Rights Back into the Mainstream of Human Rights: The Case-law of the European Committee on Social Rights as an Example of Rigorous and Effective Rights Adjudication,  8; Available at SSRN: http://ssrn.com/abstract=1543127 (Accessed  On: November 20, 2011)

[44] A. E. Yamin, The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social, and Cultural Rights into the Mainstream Human Rights Agenda, 27(3) HUMAN RIGHTS QUARTERLY, 2005, pp. 1200-1244, at 1242.

[45] Asha P James, Supra Note 42, at 8

[46] Alicia Ely Yamin, & Oscar Parra Vera, The role of courts in defining health policy: The case of the Colombian Constitutional Court, HARVARD WORKING PAPER SERIES, Available Online: http://www.law.harvard.edu/programs/hrp/documents/Yamin_Parra_working_paper.pdf (Accessed On: October 15, 2011)

[47] Mark Tushnet, Enforcing socio-economic rights Lessons from South Africa, 6:3 ESR REVIEW. 3-4 (2005)

[48] S.A. CONST. § 26

[49] Id. § 27

[50] Id. § 26(2) & 27(2)

[51] Id. § 28(1)(c)

[52] Id. § 29(1)

[53] Id. § 35(2)(e)

[54] Id. § 27(3)

[55] Id. § 26(3)

[56] Tara Usher, Adjudication of Socio Economic Rights: One Size Does Not Fit All, UCL HUMAN RIGHTS REVIEW, vol. 1, no. 1, 2008 pp. 154-171,  p 166, Online at http://www.uclshrp.com/review ( Accessed on: October 25, 2011)

[57] Marius Pieterse, Coming to terms with Judicial Enforcement of Socio-Economic Rights, 20 SOUTH AFRICAN JOURNAL OF HUMAN RIGHTS, 383 -417, 385 (2004).

[58] In Modderklip Boerdery (Pty) Ltd and Others v President of RSA and Another 2005 8 BCLR 786 (CC) eviction of illegal occupants of a private property posed a complicated scenario. The occupant’s right not to be evicted without alternative settlement and the plaintiff’s right to hold and acquire property were in direct conflict. The Court adjudged the conflicting claims by awarding damages in favor of the plaintiff. The distributive effect of the judgment lies in the fact that both the plaintiff’s right to property and the occupant’s right against eviction without resettlement were upheld at the same time. The State on the other hand benefited from not having to provide alternative accommodation instantaneously. MBAZIRA, supra note 12, at 160.

[59] MC Mehta and another v. Union of India and others AIR 1987 SC 1086

[60] BAN. CONST. art. 104

[61] Bilkis Akter Hossain v. Bangladesh and others 17 BLD (1997) 395 at p 407

[62] Shah Azhar Uddin Ahmed v. Government of Bangladesh 33 DLR 171; Here the Court suo moto proceeded to require a delinquent Minister who was not party to the original suit and against whom no remedy was claimed  pay damages out of his personal account.

[63] 4 MLR (HC) 358

[64] Id, Para 4

[65] Id, Para 17

[66] Kudrat-E-Elahi Panir and Others v. Bangladesh 44 DLR (AD) 319

[67] Id, Para 41

[68] Campaign for Fiscal Equity v. State of New York et al. 36 719 N.Y.S.2d 475

[69] Campaign for Fiscal Equity et al. v. State of New York et al. 100 N.Y. 2d 893

[70] Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) v. Government of Bangladesh and others, W/P No. 6070/1997; Judgment delivered on 31 May, 2001 (Unreported). A short description of the judgment is available in Tanim Hossain Shawon, Role of the Judiciary in ensuring Rule of Law and Justice in HUMAN RIGHTS IN BANGLADESH 2001, 45 (ASK, 2002).

[71] Dr. Mohiuddin Farooquee v. Bangladesh 55 DLR (2003) 613

[72] Id, Para 14

[73] Id, Para 15

[74] Ahsan Ullah and 3 others v. Bangladesh 44 DLR 179Para 68s

[75] BLAST v. Bangladesh 13 BLC (2008) 384 Para 14

[76] Grootboom v Ostenberg Municipality and Others  2000 3 BCLR 277

[77] Sibiya and Others v DPP, Johannesburg High Court and Others [2006] ZACC 22

[78]Maj. Gen (Rtd) K M Shafiullah v. Bangladesh, W.P 4313/2009 (HCD) 340; (Dec. 25, 2010) http://supremecourt.gov.bd/judgement/WRIT%20PETITION%20NO.%204313%20OF%202009.pdf

[79] Masder Hossain v. Secretary, Ministry of Finance 18 BLD 558

[80] Secretary, Ministry of Finance v. Masdar Hossain 52 DLR(AD) 82

[81] Id, Para 49

[82] M Rafiqul Islam, Apex court ruling on separation of judiciary:  A case of enforcer becoming violator, THE DAILY STAR, LAW & OUR RIGHTS, October 7, 2006.

[83] Susan P Sturm, A normative theory of public law remedies, (1991) 79 GEORGE TOWN LAW JOURNAL, 1368-1375; Available Online http://www.changecenter.org/research-publications/sturm-publications/A%20Normative%20Theory%20of%20Public%20Law%20Remedies.pdf/at_download/file (Accessed on: October 18, 2011)

[84] §§ 89A, 89B & 89C, THE CODE OF CIVIL PROCEDURE, 1908

[85] The Bank Companies Act 1991, The Acquisition and Requisition of Immovable Property Ordinance 1982, The Family Courts Ordinance 1985, The Muslim Family Laws Ordinance 1961, The Industrial Relations Ordinance 1969 and The Cooperative Societies Rules 2004 etc are a few of the many statutes empowering the court to render a bargaining or consensual model of structural interdict.

[86] NAIM AHMED, PUBLIC INTEREST LITIGATION IN BANGLADESH CONSTITUTIONAL ISSUES AND REMEDIES, 151 (BLAST, 1999)

[87] Hefzur Rahman v. Shasun Nahar Begum and another 51 DLR (AD)(1999) 172

[88] SK AGRAWALA, PUBLIC INTEREST LITIGATION IN INDIA: A CRITIC, 26 (Tripathi & Indian Law Institute, 1985)

[89] (2004) 4 BCLR 410 (E)

[90] 53 DLR 414

[91] Id, Para 10

[92] Id, Para 11

[93] Dr. Mohiuddin Farooque (BELA) v. Bangladesh 55 DLR (HCD) 69

[94] Id, Para 56

[95] Id, Para 59

[96] Id, Para 61

[97] Human Rights and Peace for Bangladesh v. Bangladesh (W/P No 324/2009) 30 BLD (HCD) 125

[98] R. Kunnemann, The Right To Food: The Twelve Misconceptions in HUMAN RIGHTS SUMMER SCHOOL MANUAL (Mizanur Rahman, ed) 2001) 129-144, 131

[99] David Beetham, Democracy and Human Rights: Civil, Political, Economic, Social and Cultural in HUMAN RIGHTS AND EMPOWERMENT (Mizanur Mizanur ed., 2002) 19-39, 30

[100] SR Osmani, Realizing the Right to Development in Bangladesh: Progress and Challenges, THE BANGLADESH DEVELOPMENT STUDIES  Vol. XXXIII, March-June 2010, Nos. 1 & 2, 25- 90, 35 -37

[101] Id, 45- 46

[102] Id, 52

[103] Independent Review of Bangladesh’s Development (IRBD), State of the Bangladesh Economy in FY2009-10: From Stability to Accelerated Growth, CENTRE FOR POLICY DIALOGUE (CPD), Dhaka, 11 January 2010; 69 Available:www.cpd.org.bd/downloads/IRBD_FY10_1stInterim.pdf  (Accessed on: October 22, 2011)

[104] Id, 70-71

[105] SR Osmani, supra note 100, 35