Reporting procedure to the ICESCR.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) together with its sister Covenant, the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration, form the International Bill of Human Rights which is the pillar for human rights protection within the United Nations.

The ICESCR was adopted by General Assembly Resolution 2200 A (XXI) of 16 December 1966. The Covenant reflects the commitments adopted after World War II to promote social progress and better standards of life, reaffirming faith in human rights and employing the international machinery to that end.

Since the ICESCR is an international human rights treaty, it creates legally binding international obligations to those States that have agreed to be bound by the standards contained in it. As of November 2006, 155 States are parties to the ICESCR, thus, it can be seen as a treaty that reflects global consensus on the universal human rights standards that apply to the economic, social and cultural fields.

5.1. Overview of the Rights Envisaged in the ICESCR

The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the "inherent dignity of the human person" and that "the ideal of free human beings enjoying freedom of fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as civil and political rights." Furthermore, the overarching principles of the Covenant are: (1) equality and non-discrimination in regard to the enjoyment of all the rights set forth in the treaty; and (2) States parties have an obligation to respect, protect and fulfil economic, social and cultural rights.

The Covenant recognises the following rights:

• The right to work (Article 6);
• The right to just and favourable conditions of work (Article 7);
• The right to form and join trade unions and the right to strike (Article 8);
• The right to social security including social insurance (Article 9);
• The right to protection and assistance for the family and the prohibition of child labour (Article 10);
• The right to an adequate standard of living for oneself and one's family, including adequate food, clothing and housing and to the continuous improvement of living conditions (Article 11);
• The right to the highest attainable standard of physical and mental health (Article 12);
• The right to education, the freedom of parents to choose schools other than those established by public authorities (Articles 13 and 14); and
• The right to take part in cultural life and to benefit from scientific progress (Article 15).

5.2 States Parties to the ICESCR

States become parties to an international treaty through ratification or accession. When a country becomes a State party to the ICESCR, it voluntarily accepts a range of legally binding obligations to promote the realisation of economic, social and cultural rights at the national level. Moreover, upon ratification or accession to the ICESCR, a State party is also offering itself to the scrutiny of an international committee of independent experts (the Committee on ESCR) on the basis of these norms and standards.

It is also important to note that when governments become States parties to the ICESCR, they can identify that they will not be bound to particular provisions. This is known as "entering a reservation." Sometimes States parties can also make declarations and these have the same effect as reservations.

The Office of the United Nations High Commissioner for Human Rights has posted the full text of the ICESCR, including all of the reservations from different States on their website. The list of countries that have signed the ICESCR is also included. This site can be accessed here.

5.3 The Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights is the supervisory body of the International Covenant on Economic, Social and Cultural Rights. It was established under United Nations Economic and Social Council (ECOSOC) Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the ECOSOC in Part IV of the ICESCR.

The ECOSOC is the primary body dealing with the economic, social, humanitarian and cultural work of the United Nations system. ECOSOC oversees five regional economic commissions and six "subject-matter" commissions, along with a sizeable system of committees and expert bodies. ECOSOC is composed of 54 member States, elected by the United Nations General Assembly for three-year terms.

The Committee on Economic, Social and Cultural Rights is composed of eighteen independent experts. Members of the Committee are elected by ECOSOC by secret ballot from a list of persons who qualify as "experts in the field of human rights" and who have been nominated for that purpose by the States parties. Members are elected for four years and are eligible for re-election (Res. 1985/17 of 28 may 1985).
The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group. The Committee also publishes its interpretation of the provisions of the Covenant, known as general comments.

5.4. Overview of the Reporting Process

All United Nations human rights treaties includes a system of periodic reporting. States parties to these treaties are obliged to report periodically to a supervisory body on the implementation at the domestic level of the treaty in question. Pursuant to Articles 16 and 17of the ICESCR, States parties are obliged to submit periodic reports to the Committee on Economic, Social and Cultural Rights within two years of the entry into force of the Covenant and from then on every five years. The reports should reflect the extent to which the rights are being realized in the country concerned, including the "factors and difficulties affecting the degree of fulfillment of the obligations under the Covenant."

In general, the reporting mechanism consists of the following stages:

The submission of the State's Report:

Each State party to the ICESCR must prepare their national report following the corresponding reporting guidelines and submit it for examination in a given timeframe. In addition to the State report, the treaty bodies receive information provided in particular by NGOs and agencies of the United Nations.

The pre-session working group and the "list of issues":

 Prior to each Committee session, a few members of the Committee meet in order to identify in advance the questions which will constitute the principal focus of discussion with State representatives during the constructive dialogue (the discussion between government representatives and Committee members). This "pre-sessional working group" prepares a list of issues to be taken into consideration when examining the State party report, which is transmitted to the permanent delegation of the State concerned. The idea is to provide the State with the opportunity to prepare answers in advance and thereby to facilitate dialogue with the Committee. States should provide written replies to the list of issues well in advance of the session, in order to make these available to the Committee members in the respective working languages.

The Constructive Dialogue:

 As mentioned, the discussion between government representatives and Committee members is called the 'constructive dialogue'. States are encouraged to be present at the meeting when their reports are examined.

The Concluding Observations:

 The final phase of the examination of State reports is the drafting and adoption of the Committee's "Concluding Observations". In general terms, in the Concluding Observations, the Committee gives an introduction to this document, recognizes some factors and difficulties that affect the implementation of the Covenant, highlights some positive aspects related to ESCR within the State and finally sets down some aspects of concern as well as recommendations.

5.5. General Comments by the Committee

General Comments are authoritative statements by the Committee on Economic, Social and Cultural Rights on the meaning of the provisions in the ICESCR. General Comments aim to clarify the understanding of substantive areas of the Covenant and on the obligations of the State. At a more practical level, General Comments also point to information that should be included in State Party reports.

List of general comments adopted by the Committee on Economic, Social and Cultural Rights

No. 1 (1989): on reporting by States parties;
No. 2 (1990): on international technical assistance measures (art. 22 of the Covenant);
No. 3 (1990): on the nature of States parties' obligations (art. 2, para. 1, of the Covenant);
No. 4 (1991): on the right to adequate housing (art. 11, para. 1, of the Covenant;
No. 5 (1994): on persons with disabilities;
No. 6 (1995): on the economic, social and cultural rights of older persons;
No. 7 (1997): on the right to adequate housing (art. 11, para. 1, of the Covenant): forced evictions;
No. 8 (1997): on the relationship between economic sanctions and respect for economic, social and cultural rights;
No. 9 (1998): on domestic application of the Covenant;
No. 10 (1998): on the role of national human rights institutions in the protection of economic, social and cultural rights;
No. 11 (1999): on plans of action for primary education (art. 14 of the Covenant);
No. 12 (1999): on the right to adequate food (art. 11 of the Covenant);
No. 13 (1999): on the right to education (art. 13 of the Covenant);
No. 14 (2000): on the right to the highest attainable standard of health (art. 12 of the Covenant);
No. 15 (2002): on the right to water (arts. 11 and 12 of the Covenant);
No. 16 (2005): on the right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the Covenant)
No. 17 (2005): on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (art. 15 (1) (c) of the Covenant)
No. 18 (2005) on the right to work (art. 6 of the Covenant).

No. 19 (2008): on the right to social security

No. 20 (2009): non-Discrimination in Economic, Social and Cultural Rights (art.2, para 2)

The full text of these general comments is available here.

http://www.escr-net.org/docs/i/425251

Can stringent provision alone protect the Constitution?

THE latest changes brought in the constitution have triggered widespread criticism on many grounds. The cancellation of the caretaker government system, imposition of a ban on amending over 50 articles, maintaining Islam's status as state religion despite restoration of secularism, among other crucial issues, are being debated widely. This debate seems to have already taken a strong root and will be continued for an indefinite period.

However, we will focus on another strong debate on a crucial provision introduced in the constitution by the latest amendment. This provision provides punishment for offence of abrogation, suspension, etc of the constitution. It [Article 7A] says:

"(1) If a person, by show of force or use of force or by any other unconstitutional means (a) abrogates, repeals, or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article; or (b) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article, his such act shall be sedition and such person shall be guilty of sedition.

"(2) If any person (a) abets or instigates any act mentioned in the clause (1); or (b) approves, condones, supports or ratifies such an act, his such act shall also be the same offence.

"(3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws."

The government introduced the above provision in the constitution following a Supreme Court verdict that scrapped the Constitution 5th Amendment Act, which validated the first martial law regime.

The Appellate Division (AD) of the Supreme Court in the landmark ruling upheld the High Court Division's historic verdict of 2005 and strongly denounced martial law and suspension of the constitution. It recommended meting out suitable punishment to the perpetrators and said it is up to the Parliament to enact laws to prevent martial law. It also says: "The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their constitution, their government, established by them with their consent."

In light of the apex court's observation, the parliamentary special committee on constitutional amendment drafted this provision and recommended that the House make it a part of the constitution to bring an end to extra-constitutional take over. Law Minister Shafique Ahmed, who piloted the Constitution 15th Amendment Bill in parliament, also echoed the same view in his brief statement tagged with the copies of the bill.

In and outside of the Parliament, Prime Minister Sheikh Hasina also strongly defended this provision.

But the way the provision was introduced in the constitution drawn much criticism. And its interpretation triggered widespread debate.

Some legal experts are claiming that this provision is a serious threat to freedom of speech and expression and also to freedom of press. According to them, nobody is now allowed to criticise any of the articles of the constitution due to the stringent provision.

Some others legal experts, however, are arguing that this provision discourages "use or show of force or unconstitutional means." The constitution itself in Article 39 guarantees the freedom of speech and expression and freedom of press. So, one can still criticise any articles of the constitution by following the restrictions imposed by Article 39, they argued.

Article 39 says: "(1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed."

However, implications of Article 7A require serious consideration as our political leaders exercising state power are not saints. They are experts in misusing state power and laws to suppress their political opponents. So, no one can surely say that they won't misuse this provision for their own political purpose.

As Dr. Borhan Uddin Khan, Professor, Department of Law, University of Dhaka, says: "The words 'show of force' and 'unconstitutional means' are not only wide terms but are highly contestable. It provides arbitrary scope of bringing legitimate public discussion, debate and even academic argument against the desirability of a constitutional change under the purview of 'unconstitutional means' should that be interpreted in that way. An 'unconstitutional means' is always subject to interpretation."

Interestingly, the government has yet to clarify the provision or come up with any explanation to stop growing controversy and anxiety. It has yet to make any statement assuring people that it will not misuse this provision.

Therefore, we will have to wait further to see how this provision is used, which will make it clear whether it hampers people's freedom of speech and expression.

It should be mentioned here that a similar provision was introduced in Pakistan's constitution long ago. But such stringent provision could not prevent military takeover. Military usurpers General Ziaul Haque and General Parvez Musharraf did not face charges of "high treason."

In the constitution fifth amendment case, Bangladesh's apex court denounced extra-constitutional takeover and stated: "Let us bid farewell to all kinds of extra constitutional adventure forever."

The AL-led government seems to have tried to translate those expectations into the stringent constitutional provision. But is it possible to prevent extra-constitutional takeover only by making stringent provision? The answer is -- an emphatic "no."

Introduction of the stringent provision could not remove fear of extra-constitutional takeover; it rather triggered people's anxiety and appeared as a possible threat to freedom of speech and freedom of press, which in no way strengthens the democracy. Proper practice of democracy by upholding the constitution is the bold way to fight undemocratic forces and to prevent extra-constitutional takeover.

Constitutional Supremacy

Introduction

No country can realize the ideal of stable and prosperous polity without an efficient and independent judiciary. The role of judiciary in Bangladesh in up holding the Constitution and rule of law has not been impressive. Consequently there is not only frequent violation of the constitution but also a general decline in the integrity and performance of the judiciary, which ultimately affect every segment of the society.

The concept Constitutional supremacy and continuity involves numerous aspects including the judiciary, political parties, bureaucracy, military and other organs of the state and government. Not all the aspects of Constitutional supremacy and continuity are examined in this study.

This article identifies the strengths and weaknesses of the system of Constitution, Constitutional supremacy and role and the accountability of the judiciary. It also outlines the possible solutions to strengthen Constitutional supremacy and role of the judiciary.

Strengths

The constitution of Bangladesh ensures Constitutional supremacy. In addition there are some other features of the Constitution of Bangladesh which strengthen Constitutional supremacy and judicial accountability to ensure Constitutional supremacy as the guardian of the Constitution. An overview of these features is as follow:

1. The Constitution of the People’s Republic of Bangladesh is the supreme law of  the land. This Supremacy is a Special and Unique feature in our constitution. The preamble of the constitution also stipulates its aims and objectives and speaks about Supremacy. The preamble of Bangladesh Constitution has laid down in clear terms the aims and objectives of the constitution and it speaks of representative democracy, rule of law, and the Supremacy of the embodiment of the will of the people of Bangladesh.

2. There is a well-organosed judiciary which plays a significant role in establishing the rule of law and Constitutional supremacy as the guardian of the constitution. This ensures the supremacy of the Constitution of Bangladesh.

3. The latest 15th Amendment of the Constitution of Bangladesh clearly ensures that Martial law or any other unconstitutional way to seat in the government is void-ab-initio and it is a punishable offence.

4. In Fifth Amendment and Seventh Amendment case the declared that all kind of Martial law and extra-constitutional power as punishable and illegal.

Findings

The foregoing study identifies the various incidents and factors which undermined the independence of the judiciary in Bangladesh. The factors which are detrimental to the Constitutional supremacy and continuity and as well independence of the judiciary in Bangladesh have been critically discussed and examined. 

Although the Constitutional supremacy is guaranteed by the Constitution of Bangladesh, there are numerous weaknesses which undermine the Constitutional supremacy and continuity, as well as the Democracy also. Some of my findings are summarised below.

1. Lack of the norms of parliamentary democracy.  The democracy of our country can not be properly nourished, for this the proper democratic culture can not be yet grown up. For these the political parties can not tolerate the opinion of others, and they have existed fraction and lastly the military take the chance.

2. For the lack of a non-partisan strong civil society. A non-partisan civil society, one of the foremost pre-conditions of the success of liberal democracy, which is able to pressure create and bargain and, negotiate with the state without the influence of political parties in favour of the citizen is yet to flourish in Bangladesh. Most of the CSOs, specifically in the post-military phase, are guided by the vision of the political parties, instead of pursuing an independent policy.

3. Lack of bold and independent decisions of the judiciary at the times of constitutional crisis. The role of the superior judiciary at the testing times of the Constitutional crisis in Bangladesh, it has been very disappointing and detrimental to the development of political institutions based on the universal principles of democracy and popular sovereignty. The judiciary has consistently compromised on its own powers and independence.

A consensus appears to be among analysts that judges of the superior courts in Bangladesh, save few exceptions, could not resist external pressure, particularly of executive, and always judged over constitutional questions to appease the government of the day, at the cost of the fundamental rights of the citizens of Bangladesh and surrendering the political sovereignty of the people of Bangladesh.

4. The role of the individual judges in achieving extra benefit by the extra-constitutional government. It’s a strategy by them to take the judges into trap and use them in their own interest. It has been seen in Bangladesh in several times.

5. Lack of the democratic institutional norms and values, and patience to honor others opinion.

6. The Conspiracy of the anti liberation stream by the foreign backed is also one of the causes of such extra-constitutional martial law.  

7. Through out corruption of the politician and executive is also one of the main causes of such extra-constitutional martial law.

8. Lack of cohesion within the ruling political party and the oppositions.

 Suggestions

This study does not deal with all the weaknesses mentioned above. It concentrates only the issues related to the violation of Constitution in the higher level of the state policy. A few initiatives that might be helpful for the improvement of the present condition of Constitutional supremacy in Bangladesh have been discussed in this study. In addition, as part of the initiative, an attempt has been made to question the justification for the omnipresence of liberal democracy as the one and only form of ruling. In respect of the issues, my suggestions are follows-

1. Democratization of the political parties needs to be considered as a major precondition in order to materialize the scope of Western liberal democracy in Bangladesh that was created in 1990. Some measures can be taken, with a view to minimize the malpractices and to strengthen intra-party democracy. This can stable the democracy as well as the Constitutional continuity and supremacy. Without democratic government the constitutional supremacy and continuity can not be maintained.

2. A special parliamentary committee can be formed to examined the constitution and prepare proposal to this effect People expectation. The special committee will work efficiently to establish supremacy of the constitution which will be the embodiment of the people’s will.

3. In the verdict of 7th and 5th amendment case the court declared the extra-constitutional way to come into power as void ab-initio and as punishable offence. And in the 15th Amendment the parliament ensures the constitutional supremacy again by inserting an Article. However, the reality of Bangladesh can be  completely different, if the political parties are not sincere about it.

4. The people of Bangladesh have to play a major role in protecting independence of the judiciary as well as to constitutional supremacy. Public opinion must be sensitive and reactive to any interference in the judicial affairs. The political parties, civil society organizations, bar associations, press and media can effectively and easily mould public opinion in this regard.

5. Independence of judiciary cannot depend solely on the structure of the government and the judiciary’s formal role within it. It depends on the judges’ character also. Judges should develop judiciary as an institution. They must collectively as well as individually resist any external interference in the Constitutional affairs as the guardian of the Constitution.

6. To achieve the independence of the judiciary as the guardian of the constitution and to have efficient judges of integrity, the whole system of the judicial appointment needs overhauling. The system of appointment of judges is of paramount importance to ensure independence of judiciary because it is primarily the human being that makes or mars the institution. The judicial appointment must be made more competitive and more transparent. The executive’s power to appoint judges to the superior courts must be limited.

7. The corruption of the executives and politician must be stopped.

8. The anti-` liberation streams of politics should be banned, the fact is that the ‘anti-` liberation forces are gaining strength in the guise of ‘pro-religious` campaigns and they are widening the national divide. There is another factor that may have the potential to weaken the democracy: the rise of religious fundamentalism, which has foreign backers.

In analyzing the outcomes of democracy in Bangladesh, we need to consider democracy as something multi-dimensional. Democracy should not be treated as a means of political governance only. Whether the current practice of democracy is contributing to minimizing the problems of irrational distribution and marginalization process, is it tolerant to the different ways of life and diversity, is this system of governance ensuring the constitutional safeguards for the minorities, and finally, can this democracy materialize development. All these questions need to be taken into consideration in defining and exercising democracy in Bangladesh.

In spite of several failures in materializing the project of Constitutional supremacy and continuity, if we consider several trends and positive outcomes of the civil regimes, it must be an exaggeration to comment that ‘Constitutional supremacy and continuity has exhausted itself’ in Bangladesh. Though the judicial history of Bangladesh is not so impressive, but some recent landmark judgments has been changed the total view. The political parties must join hands with the lawyers and civil society to “fully secure” judicial independence as to ensure constitutional supremacy. If the current movement of the judiciary and rule of law is succeeded, then, consequently, we will be able to have a new Bangladesh with true democracy, rule of law and good governance. Otherwise the future of the nation may be uncertain.

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Anwar Hussain .Vs. Bangladesh or 8thAmendment Case

The case of Anwar Hussain .Vs. Bangladesh popularly known as 8^th Amendment case is a historic judgment in the constitutional history of independence Bangladesh. This is the first judgment whereby the Supreme Court of Bangladesh as striking down an amendment to the constitution made by the parliament. By two Writ petition the amended Art 100 & the notification of the Chief Justice were challenged as ultra vires. A division bench of the HCD dismissed the petition summarily. Leave was granted by the Appellate Division by a majority of 3 to1 striking down the 8^th amendment. The principle argument of the judgment is that, the constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for; if these pillars are dismissed or damaged then the whole constitutional structure will be down.

Basic structures are:

1. Sovereignty belongs to the people.

2. Supremacy of the Constitution.

3. Democracy.

4. Republican government.

5. Independence of Judiciary.

6. Unitary state.

7. Separation of powers.

8. Fundamental rights.

These structural pillars of the constitution stand beyond any change by amendatory process. If by exercising the amending power these principles are curtailed more than one permanent seat of the Supreme Court thus destroying the unitary character of the Judiciary. The amended Art 100 is ultra vires because it has destroyed the essential limb of the judiciary by setting up rival courts to the HCD in the name of permanent Benches conferring full jurisdiction, power and function of the HCD. This amended Art 100 is inconsistent with Art 44, 94. 101 & 102 also reduced Art 108, 109, 110 &111 of the constitution. It directly violated Art 114 this amended is illegal because there is no provision of transfer which is essential requisite for dispensation of justice. If any provision can be called the ‘pole star’ of the constitution, the nit’s Preamble. The impugned amendment is to be examined on the touch stone of the preamble with or without restoring to the doctrine of basic structure. The preamble is not only a part of the constitution; it now stands an entrenched provision that cannot be amended by the parliament.

Though this amendment it simply destroy the objectives of rule of law which is enunciated is our preamble. The above quotations from the judgment make it clear that the centre point, on which the majority relied to declare the amendment illegal, which was the basic structure of the Constitution. The Doctrine of Basic Structure is not well settled principle of the constitutional law; rather it is recent trend in and a growing principle of constitutional jurisprudence. The concept of basic structure of the Constitution can be found in the Sub-Continent, as Dr. Kamal Hossain submitted in the 8^th amendment case, in a decision of the Dhaka High Court.

This decision was upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury .Vs. Abdul Hague.

But in its Development stage in Indian jurisdiction the first formal judicial formulation of this doctrine came out in Golak Nath. Vs. State of Punjab case, 1967. Where it was decided that parliament has no power to amend fundamental right so as to take away any of them. The Indian Parliament passed 24 Amendment, 1971.Which laid down that, the parliament might in the exercise of its constituent power amend any provision of the Constitution be it of fundamental right or of any other one. The validity of the amendment which curtailed the power of judicial reviews was challenged in Kesavananda .Vs. State of Kerala case,1973.

The court by majority overruling the Golak Nath’s case, held that parliament had the power to amend any or all the provision of the constitution. Following Kesavananda principle, the court in the case of Indian Nehru Gandhi .Vs. Raj Narayan, 1979 held that the 39 amendment affected and destroyed certain structure of the constitution. The scope of the application of the doctrine of basic structure again came up for discussion in the case of Minerva Mills Ltd .Vs. Union of India, 1980.

Thus proposition that parliament cannot amend the Constitution so as to destroy its basic features was again repeat and applied by the Supreme Court in Woman Rao .Vs. Union of India, 1980. The Doctrine of Basic Structure successfully passed the acid test in 5cases in India. And Bangladesh court in the 8^th Amendment case followed the Indian decision as regard the Doctrine of Basic Structure.