THE RIGHT TO FOOD LEGAL PROTECTION IN BANGLADESH
BLAST THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH
THE RIGHT TO FOOD: LEGAL PROTECTION IN BANGLADESH
Bangladesh Legal Aid and Services Trust (BLAST) Campaign for Right to Food & Social Security (RtF&SS)
1 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH
THE RIGHT TO FOOD: LEGAL PROTECTION IN BANGLADESH
© Bangladesh Legal Aid and Services Trust (BLAST) and Campaign for Right to Food & Social Security (RtF&SS)- 2015
This publication may be freely reviewed, abstracted, reproduced and translated, in part or in whole, but not for sale or for use in conjunction with commercial proposes. Any changes to the text of this publication must be approved by BLAST and RtF&SS. Due credit must be given to BLAST and RtF&SS to this publication. Enquires should be addressed to [email protected] or [email protected]. The contents of this document are the sole responsibility of BLAST and RtF&SS.
Prepared by Rajkiran Barhey Mohsina Hossain Tushi Edited by Sara Hossain Published May 2015 Design & Photo credit Barek Hossain Mithu Published by Bangladesh Legal Aid and Services Trust (BLAST) Campaign for Right to Food & Social Security (RtF&SS) ISBN : 978 984 33 9225 1 Secretariat of RtF&SS Nagorik Uddyog (Citizen’s Initiative) 8/14, Block-B, Lalmatia, Dhaka-1207 Bangladesh Printers Chowdhury Printers and Supply 48/A/1, Badda Nagar Lane, B.D.R Gate No. 1 Pilkhana, Dhaka-1205, Bangladesh The publication of this report was supported by Bread for the World & NETZ, Germany
2 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH CONTENTS
Acknowledgments 5 List of Acronyms 6 Executive Summary 7 Introduction 14 Concepts: The Right to Food and Food Security 16 The right to food 16 Food security 16 Rights-based approaches and needs-based approaches 17 The right to food and related rights 17 International Legal Framework for Securing the Right to Food 19 Treaty law 19 Existence of the right 19 Obligations imposed upon the state 20 Implementation 22 Monitoring, remedies and accountability 22 Other international treaties 23 Regional treaties 23 Reporting and treaty bodies 24 UN Special Procedures and the right to food 25 Customary international law 26 Social protection 28 Social Safety Nets 29 Rights-based Social Safety Nets 29 International law in Bangladesh 30 Treaties 30 Customary international law 31 National Framework for Securing the Right to Food 32 Context 32 Legal Framework 33 The Constitution of the People’s Republic of Bangladesh 33 Food Safety 34 Quality of food/nutrition 36 Sustainability 37 Agriculture and food production 37 Accessibility 38 Conclusion 39
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Policy Framework on the Right to Food 40 National Food Policy 2006 40 National Plans 42 Other recent food policies 43 The 100 Days Employment Generation Scheme 45 Public Food Distribution System 46 Social protection policies 47 Conclusion 50 Institutional Framework on the Right to Food 51 Judicial authorities 51 Legislative authorities 52 Executive authorities 52 Local authorities 53 Statutory bodies 56 Non-Governmental organisations 57 Conclusion 58 Legal Protection of the Right to Food 60 Public Interest Litigation 60 Right to Information applications 64 Proposals for Law Reform 67 Conclusion 68 Moving forward and recommendations 69 Questions for the campaign to consider 69 Recommendations for Government 70
4 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH ACKNOWLEDGMENTS
This report was written by Rajkiran Barhey, Research Intern at BLAST and Mohsina Hossain Tushi, Researcher at BLAST, based on earlier drafts by Dr. Zahidul Islam Biswas and Amirul Tuhin, Advocate, Supreme Court and both Consultants to BLAST. Thanks are also due to Ishita Dutta, Research & Documentation Officer, BLAST, Taka Juba, Intern, Fan Li, Intern and Khaled Saifullah, Intern, BLAST for contributing research assistance to previous drafts of the paper and to Rezaun Mercy, Intern for assistance in editing. Dr Naomi Hossain, a political sociologist and a research fellow in the Power and Popular Politics research cluster at the Institute of Development Studies and Zakir Hossain from Nagorik Uddyog (Citizen’s Initiative) must also be thanked for their comments and help. Many thanks are also due to the RtF&SS and its Secretariat, Nagorik Uddyog for providing information for the paper.
–––– Bangladesh Legal Aid and Services Trust (BLAST) Campaign for Right to Food & Social Security (RtF&SS)
5 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH LIST OF ACRONYMS ASK Ain O Shalish Kendra BELA Bangladesh Environmental Lawyers Association BIDS Bangladesh Institute of Development Studies BIGD BRAC Institute of Governance and Development BLAST Bangladesh Legal Aid and Services Trust BLC Bangladesh Law Chronicles BNHRC Bangladesh National Human Rights Commission BRAC Bangladesh Rural Advancement Committee BSTI Bangladesh Standards Testing Institution CAC Codex Alimentarius Commission’s CCTs Conditional Cash Transfers CESCR Committee on Economic, Social and Cultural Rights CHT Chittagong Hill Tracts CIP Country Investment Plan CPD Centre for Policy Dialogue CRC Committee on the Rights of the Child CSO Civil Society Organisation EGS Employment Guarantee Scheme FAO Food and Agriculture Organisation of the United Nations FPMU Food Planning and Monitoring Unit GoB Government of Bangladesh HRPB Human Rights and Peace for Bangladesh ICESCR International Covenant on Economic, Social and Cultural Rights ILO International Labour Organisation MDG Millennium Development Goal MDMS Mid-Day Meal Scheme MJF Manusher Jonno Foundation MoFDM Ministry of Food and Disaster Management NFP National Food Policy NGO Non-governmental Organisation NREGA National Rural Employment Guarantee Act PDS/PFDS Public Distribution System/Public Food Distribution System PIL Public interest litigation PoA Plan of Action PPRC Power and Participation Research Centre PUCL People’s Union for Civil Liberties RIB Research Initiatives Bangladesh RtF Right to food RtF&SS Campaign for the Right to Food and Social Security RTI Right to Information SSN Social Safety Net UN United Nations UNDP United Nations Development Organisation UP Union Parishad VGD Vulnerable Group Development WFP World Food Programme
6 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH EXECUTIVE SUMMARY
This research paper on the legal The campaign specifically aims to voice framework of the right to food (RtF) the needs of individuals in order to has been prepared in support of the increase effective implementation, Campaign on the Right to Food and distribution, and monitoring of Social Social Security in Bangladesh (RtF&SS).1It Safety Net (SSN) Programmes; to is hoped that the paper will be used by demand proper implementation of the campaigners, particularly lawyers, as Public Distribution System (PDS) ; to the paper focuses on legal protection of seek action against food syndicates and the right to food and how existing legal illegal hoarding of food grains in the mechanisms, such as public interest market; to monitor corruption within litigation (PIL) and Right to Information safety net distribution using the Right to (RTI) requests, can secure the right to Information Act; to advocate for policy food. and legal reforms related to securing right to food, social security, and disaster The RtF&SS campaign aims to engage responses; and to undertake appropriate organizations and individuals across legal action, including public interest Bangladesh who are committed to litigation, to secure the right to food and work towards establishing people’s social security. fundamental entitlements. This includes the right to food and social security as International Law necessary for creating a life free from hunger, malnutrition, and poverty, and ‘The fundamental right of everyone to be essential for human dignity. free from hunger’ was first established as a legal right in 1966 when the This work is vital in Bangladesh where International Covenant on Economic food security remains a pressing and Social Rights (ICESR) was adopted by problem. One quarter of the population the UN General Assembly. The Covenant of Bangladesh faces food insecurity. also refers, in Article 11, to, ‘the right Chronic under nutrition, or stunting, is of everyone to an adequate standard widespread, affecting an estimated 41% of living for himself and his family, of children below 5 years of age. One in including adequate food…’ providing the four women of reproductive age is too foundation of the right to food in a treaty thin for her height and more than one with164 parties. in five new-born babies have a low birth weight.2 Article 11 has been interpreted as encompassing food availability, adequacy and accessibility. Article
1 2 puts obligations upon each state, The website of the Rtf&SS campaign: http://www. notably the duty ‘to take steps, to the RtF&SS.org/. maximum of its available resources, with 2 WFP Household Food Security and Nutrition Assess- a view to achieving progressively the ment (2008-2009) and Bangladesh Demographic and Health Survey BDHS 2011; HIES 2010. See
7 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH right to food should be implemented, Despite the lack of an express monitored and what remedies should be constitutional right or a comprehensive available if it is breached. framework law securing the right to food, prevailing laws in Bangladesh The right to food as set out in ICESCR protect different facets of the right. For only binds the states who are party to example, several laws aim to ensure food the treaty. States which are not parties safety and punish food adulteration. to ICESCR, or any other treaty which Quality is protected in laws on grading; contains the right to food, may be bound laws on the environment, agriculture and by the right if it also exists in customary hoarding all address food sustainability, international law, which binds all states. accessibility and availability. The international consensus is that the right to be free from hunger is part of Policy Framework customary international law, but the broader right to food has not yet attained Research suggests that food policy has customary status. consistently been a top priority for the government. This is partly a legacy Bangladesh national law states that, in of the 1974 famine in which hunger general, international treaties are not led to millions of deaths and a loss of part of national law until they have been political legitimacy for the incumbent incorporated by a Bangladesh statute. government. Since then, subsequent Thus, an individual cannot go to court political leaders have been acutely and claim a right in international law aware that their own political power unless that right also exists in national depends in part on ensuring hunger law. Customary international law is part and famine is avoided. Thus, swift policy of the law of every country, including change to avert crises is not uncommon Bangladesh. As such the right to be free and, although nutrition levels are poor, from hunger is part of Bangladesh law. Bangladesh has remarkably low levels of hunger. Constitutional and Legal Framework The National Food Policy 2006 (NFP) is The Constitution of Bangladesh contains comprehensive, focusing on three key both judicially enforceable civil and dimensions: availability, access, and political rights. It also recognizes utilization of food for balanced nutrition. economic, social and cultural rights as Progress towards the NFP’s goals has fundamental principles of state policy. been positive. However, there are a Fundamental principles of state policy are number of criticisms of the policy: it is not judicially enforceable, but are critical not accompanied by a framework law in interpreting the Constitution and and thus does not provide any remedies are intended to guide the government for individuals when their food rights are and legislature. The right to food is violated, and it does not address issues enshrined as a fundamental principle of connected to the right to food such as an state policy in Article 15, and the right to insufficient minimum wage, land rights, safe food has been read into the right to inheritance rules that discriminate life, guaranteed under Article 32, by the against women etc. Supreme Court. The NFP is supplemented by programmes such as the 100 Days Employment
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Generation Scheme and policies a fundamental role in implementing the including the National Child Policy 2011 National Food Policy 2006 and Social (targeting food and nutrition issues for Safety Nets alongside local authorities children), the Education Policy 2010 such as City Corporations, Municipalities (contains provisions on mid-day meals for and Upazila and Union Parishads (UPs). schoolchildren) and the National Women Mobile Courts are a significant innovation Development Policy 2011 (focuses on by the executive; individuals breaching women’s nutrition and food security for certain food regulations and laws can vulnerable women) which also contain be tried and fined on the spot by such provisions that buttress the right to food. Courts. NGOs and statutory bodies are Plans such as the NFP Plan of Action two sets of institutions, often overlooked, (PoA) and the Country Investment Plan which also have responsibilities vis- (CIP) guide the implementation of the à-vis the right to food. NGOs such as NFP. the World Food Programme (WFP) have helped in the implementation of Several Social Safety Net Programmes Social Safety Nets and statutory bodies have been set up to facilitate access such as the Bangladesh Standards and to food for vulnerable groups such as Testing Institution (BSTI), the Fisheries widows, ultra-poor women, landless Research Institute and the Agricultural individuals in rural areas and disabled Research Institute, can provide key people. Discrimination in the delivery of research to assist the campaign and these safety net programmes is a huge have the potential to influence policy problem, however, particularly in terms development. of the selection of beneficiaries. Reports suggest thatthose who do not enjoy Public Interest Law Initiatives political patronage may be especially vulnerable to discrimination. In Bangladesh, public interest lawyers, environmental lawyers and consumer Institutional Framework activists have already brought a number of landmark public interest cases before The institutional framework on the the High Court Division of the Supreme right to food is extensive and complex. Court on food rights. In one case, the In terms of legal institutions, a range of Court relied on a harmonious reading courts could play an instrumental role in of Article 15, the right to food and basic legal protection of the right to food. The necessities, and Article 32, the right High Court Division of the Supreme Court to life, in concluding that the failure to can and has issued judgments and orders provide access to safe and potable water dealing with aspects of food rights. violated the right to life.3 In another The Information Commission set up by case the Court found that individuals the Right to Information Act, 2009, also had the right to safe food as part of the has a key role to play in helping individuals right to life and, therefore, a shipment of gain information which they can use to radiated milk powder could not be sold assert food rights. The Jatiyo Sangsad, or within Bangladesh.4 National Parliament, has passed laws and 3 Rabia Bhuiyan, MP v Ministry of LGRD & Others approved budgetary allocations to secure [2007] 59 DLR (AD) 176. the right to food. Key Ministries on Social 4 Farooque v Bangladesh, Writ Petition No. 92 of 1996, Welfare, and Disaster Management play 48 DLR (HCD) 438.
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Campaigners and organisations, initial interim orders directing states to particularly NGOs such as D.Net, ensure that all closed public distribution Intercooperation, Manusher Jonno shops were reopened within a week, laid Foundation, Nagorik Uddyog, Nijera Kori the groundwork for subsequent policy and Research Initiatives Bangladesh, have and legislative changes. also begun to make Right to Information applications relating to access to or Campaigns on the Right to Food distribution of food. These have been The lack of explicit recognition in the particularly useful in challenging Constitution of the right to food as corruption in the implementation of an independent enforceable right is a SSN programmes in Bangladesh. In one source of frustration for some within example, a woman eligible for benefits Bangladesh. The Bangladesh National under the government’s Vulnerable Human Rights Commission (BNHRC) Group Development (VGD) programme has observed that direct constitutional was denied a benefits card by the recognition of the right to food would Union Parishad (UP) Chairman. The insulate the right from the ambiguity woman submitted an RTI request, asking of judicial interpretation, provide whether she was eligible for the card and individuals with remedies when their how the cards were distributed. The UP right to food has been violated and responded, stating that she was eligible improve transparency and accountability and she therefore compelled them to by limiting governmental action, and provide her with a card. provide individuals with the confidence These initiatives have drawn on the and legitimacy to demand policies and strategies and approaches deployed by laws which allow them to realise their the powerful Right to Food campaign in right to food. India. The evolution of that campaign, NGOs, academic institutions, and civil leading to the passage of the Food Security society are increasing the pressure to Act 2013, following the public interest provide a legal framework for the right to litigation petition before the Supreme food. After RtF&SS launched the right to Court of India by the People’s Union for food campaign nationally in 2011, they Civil Liberties (PUCL) also suggests the have organised a range of awareness directions which a Bangladesh campaign raising events, public consultations, may take. The PUCL litigation emerged seminars and training events to catalyse from demands for state accountability the campaign. Now organisations such on behalf of the poor in Rajasthan who as Oxfam and Action Aid along with local had not been receiving the required rights NGOs such as Angikar Bangladesh employment and food relief mandated Foundation and the Campaign for by the Rajasthan Famine Code of Sustainable Rural Livelihoods, are 1962 despite mounting stocks of food holding national forums - including grains. The initial petition had sought briefings with parliamentarians - on enforcement of a constitutional right to food rights. The BNHRC and Oxfam have food under Article 21 of the Constitution also held training sessions for lawyers to of India, deriving the right to food from raise awareness of the need for judicial the right to life. The Supreme Court of safeguards on the right to food and India’s repeated interventions, following to help build the capacity of the legal
10 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH community to facilitate legal actions that o Need a participatory process and advance the right. public consultation to draft an amendment. Organisation and empowerment of farmers and labourers, employment • How can we use public interest creation, market intervention by the litigation to further indirect government to stabilize food prices, constitutional recognition of the right subsidized food, and adequate food to food, through interpretation into storage have all been identified as key the right to life, for example? goals in achieving food security. Events • such as the Youth Parliament on the How else might public interest Right to Food and the 2015 South Asian litigation be used to secure the right Right to Food Conference are further to food? What other issues could be mobilising actors across a wide range of targeted? sectors. • What can be done to improve Conclusion: Time to Act implementation of existing legislation, particularly food safety legislation? Overall, Bangladesh has a number of • existing institutions, laws and policies How many of the institutions set up to which are well placed to secure the right regulate aspects of the right to food to food. It is recommended that more use are still in existence and functioning? is made of these existing mechanisms, o For example, legal researchers particularly by lawyers, to advance the should analyse the existence and right to food. For example, the Right to effectiveness of Pure Food Courts. Information Act may be used more widely to ensure fair selection of beneficiaries o Technical researchers should of Social Safety Nets; rights organisations investigate how effective may incorporate the right to food into organisations such as the their advocacy and casework, as well as Fisheries Research Institute or the monitoring of existing laws, such as food Bangladesh Agricultural Research safety laws. Research is also needed to Council are. understand the existing situation more • Having examined and evaluated clearly, for example, regarding the extent existing institutions, how can they be of operation of Pure Food Courts operate improved? or their effectiveness. Finally, reform may be considered to entrench the right to • Out of these functioning institutions, food into the law of Bangladesh, to put which should the campaign target? in place remedies against discrimination. Which are best placed to effect Only then can the right to food be truly change? realised. • Which right to food issues should Questions for the campaign to consider be prioritised? (e.g. food safety, nutrition, sustainability etc.) • How should any future constitutional amendment be drafted? • What are the biggest challenges to the right to food in both the short and long term?
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• How do broad, long term challenges • Why have human rights NGOs and such as climate change affect the legal NGOs been inactive in using right to food and what measures can existing legislation to further the right we take to mitigate the effect of these to food? How can we make ourselves challenges? part of the discussion? • What monitoring mechanisms are • How can we incorporate the right to currently available to monitor the food and RTI into existing action on protection of the right to food? How rights and remedies? can they be improved? Recommendations for Government • What monitoring mechanisms would • the campaign like to see put in place? Following public consultations, amend the Constitution to entrench • What remedies are currently available the right to food as a fundamental when the right to food is violated and right by including it in Chapter II of how effective are they? the Constitution.
o For example, if an individual is not • After public consultations, promulgate receiving their benefits under a a framework law to secure the right to SSN Programme, who remedy do food, consistent with FAO guidelines. they have? Where, or with whom, do they lodge a complaint? o This law should give a detailed definition of the scope and • What remedies should be available content of the right to food, if the right to food is violated? For set out obligations for state example, should individuals have authorities and private actors, stronger remedies when their land establish essential institutional rights are violated, when their SSN mechanisms and provide the legal benefits are withheld or when they basis for subsidiary legislation are unable to access safe food? and other necessary measures to betaken by the relevant state • How else can the RTI Act be activated authorities. It should also contain to secure the right to food? a non-discrimination clause, provisions for monitoring and also o To improve beneficiary selection has been discussed as well as the remedies.5 broader issue of UP accountability, • Review existing legislation to ensure but how else can it be utilised? its compatibility with the right to food • How can individuals be empowered as defined in international law. to use the RTI Act themselves? o This review could be carried out by the National Human Rights o E.g. through training, awareness campaigns, etc. Commission, in collaboration with relevant NGOs and CSOs. • What is the role of lawyers/paralegals/ NGOs in bringing RTI requests? 5 FAO, ‘A Guide to Legislating for the Right to Food’ (2009)
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o The review should cover all principles, particularly transparency, legislation from all sectors, accountability and participation. including agricultural legislation, land legislation, environmental legislation, labour legislation, nutrition and health legislation, the Penal Code, etc.
o The review should conclude with a Plan of Action. • Consolidate all existing legislation on the right to food and ensure it is consistent and does not overlap.
o For example, the penalties for offences such as food adulteration should be the same in all applicable legislation to avoid confusion. • Review policies to ensure that they are compatible with human rights and the right to food, in particular the FAO’s PANTHER principles - participation, accountability, non- discrimination, transparency, human dignity, empowerment, and the rule of law.6
o For example, ensure that Social Safety Nets do not discriminate on the basis of nationality or refugee status. • Ensure that the National Food Policy is compatible with principles of good governance such as transparency and accountability. • Review all institutional mechanisms for securing the right to food. Ensure that they are fit for purpose and up to date with modern standards. Furthermore, ensure that they comply with human rights
6 FAO, ‘Integrating the Right to Adequate Food in National Food and Nutrition Security Policies and Pro- grammes’ (2014)
13 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH INTRODUCTION
This research paper on the legal framework of the right to food has been prepared in support of the Campaign on the Right to Food and Social Security in Bangladesh (RtF&SS). The campaign aims to ensure participation of concerned organizations and individuals across Bangladesh who are committed to work towards establishing people’s fundamental entitlements. This includes the right to food and social security as necessary for establishing a life free from hunger, malnutrition, and poverty, and essential for human dignity. © RtF&SS: Campaign for Right to Food & More specifically, the campaign aims to Social Security voice the needs of individuals in order This paper is intended to inform the to increase effective implementation, campaign in framing recommendations distribution, and monitoring of Social for policy and legal reforms related to Safety Net Programmes; to demand securing right to food. It is hoped that this proper implementation of the Public will facilitate interventions by campaign Distribution System; to seek action members and others to use existing laws, against food syndicates and illegal through public interest litigation or right hoarding of food grains in the market; to information applications, to secure to monitor corruption within safety the right to food and social security. net distribution using the Right to Information Act; to advocate for policy The paper first outlines a conceptual and legal reforms related to securing framework for the right to food and right to food, social security, and disaster then describes the international legal responses; and to undertake appropriate framework for securing the right to legal action, including public interest food. It then examines the national litigation, to secure the right to food and legal framework on the right to food, social security. encompassing the Constitution as well as laws on agriculture, the environment and food safety. Next, the paper examines the policy framework on the right to food, specifically the National Food Policy 2006, and discusses different Social Safety Net Programmes regarding food access and distribution. The paper also reviews the existing institutional
14 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH framework. It then analyses the extent to which public interest litigation and right to information applications are being used to secure the right to food in Bangladesh, and briefly examines and draws on lessons from the experiences of the Right to Food movement in India. The conclusion sets out suggestions for directions and approaches which the campaign may adopt in Bangladesh, including through activation of existing laws.
15 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH CONCEPTS: THE RIGHT TO FOOD AND FOOD SECURITY
The right to food and dignified life free of fear.’9 ‘The right to adequate food is realized ‘The right to food is, above all, the when every man, woman and child, right to be able to feed oneself in alone or in community with others, dignity. The right to food includes the has the physical and economic right to have access to the resources access at all times to adequate food and to the means to ensure and or means for its procurement.’7 produce one’s own subsistence, including land, small-scale irrigation When realised, the right to food protects and seeds, credit, technology and individuals from hunger, food insecurity, local and regional markets, especially and malnutrition. The right further in rural areas and for vulnerable and requires food to be ‘adequate’ as well as discriminated groups, traditional nutritious, safe and acceptable within a fishing areas, a sufficient income to given culture. Furthermore, in situations enable one to live in dignity, including where an individual is deprived of access for rural and industrial workers, and to food because of detention, war or access to social security and social natural disaster, the government has an assistance for the most deprived. The obligation to provide food directly to that right to food also includes the right to individual. have access to safe drinking water.’10 Dr Jean Ziegler,8 former United Nations Special Rapporteur on the Right to Food security Food, described the scope of the right as The World Food Summit of 1996 defined follows: food security as existing‘when all people ‘… the right to have regular, at all times have access to sufficient, permanent and unrestricted access, safe, nutritious food to maintain a either directly or by means of healthy and active life.’ The World Health financial purchases, to quantitatively Organisation adds that, generally, food and qualitatively adequate and security is defined as ‘including both sufficient food corresponding to the physical and economic access to food cultural traditions of the people to that meets people’s dietary needs as well as their food preferences’ and has three which the consumer belongs, and 11 which ensures a physical and mental, facets: individual and collective, fulfilling 9 UN Special Rapporteur on the right to food, ‘Promo- tion and protection of all human rights, civil, political, economic, social and cultural rights, including the right 7 UN Committee on Economic, Social and Cultural to development: Report of the Special Rapporteur on Rights (CESCR) ‘General Comment No. 12: The Right the right to food to Adequate Food (Art. 11 of the Covenant)’ (12 May ’ (9 January 2008) A/HRC/7/5, para 17. 1999) E/C.12/1999/5,para 6. 10 ibid, para 18. 8 Dr. Jean Ziegler (Switzerland), served as the United 11 World Health Organisation
• Food availability is the availability protection to the assistance, and has of sufficient quantities of food on a no obligations to the service-giver. A consistent basis. needs-based approach does not require • Food access is maintaining and legislation to implement it or coordinated possessing economic and physical group action. resources in order to obtain The other, more modern, approach appropriate food for a nutritious is a rights-based approach. This diet. approach creates a legal obligation on • Food use means the appropriate the state to ensure the right to food. It use of specific foodstuffs based on reconceptualises food as fundamental knowledge of basic nutrition and human right, inherent in the dignity of care, as well as adequate water and each person, and something which they sanitation. are due, rather than something which The Food and Agricultural Organization they are given. This is empowering for of the United Nations (FAO) eventually the individual, allowing them to hold added a fourth facet to demonstrate the public authorities to account when connectedness of the elements of food they fail to perform their duties and security: gives individuals a voice in the courts. Furthermore, conceptualising food as a • The stability of the first three 12 legal right introduces the concept of non- dimensions of food security. discrimination. Rights-based approaches and The right to food and related needs-based approaches rights 13 Researchers have identified two The right to food demonstrates the different approaches in the discourse interdependency of human rights. The around poverty alleviation and food. right to food is part of the right to an This distinction is key to understanding adequate standard of living and is a exactly what the right to food is and why prerequisite for the right to health. The it is important. The first is the ‘needs- right to health means that states must based’ approach which identifies the generate conditions in which everyone basic necessities for human life (food, can be as healthy as possible. This clean water, sanitation, shelter etc.) includes access to timely, acceptable, and focuses on delivering these basic and affordable health care of appropriate necessities through charity. According quality. to this approach, the recipient of the services is passive, has no legal right or The right to food is also closely connected to the right to social security 12 The Food and Agriculture Organisation of the United and social protection. Social protection Nations ‘Declaration of the World Food Summit on Food Security’ (Rome, 16-18 November 2009) WSFS 2009/2, schemes are essential to securing the footnote 1. right to food for many people either 13 Abdullah Al Faruque, ‘From Basic Need to Basic directly, through food transfer schemes, Right: Right to Food in Context’ (June 2014) prepared or indirectly, through work programmes for the National Human Rights Commission of Bangla- or cash transfers. The UN Committee desh
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(CESCR) explains this interconnectedness as below: ‘The right to adequate food is indivisibly linked to the inherent dignity of human person and is indispensable for the fulfilment of other human rights enshrined in the Bill of Human Rights. It is also inseparable from social justice requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfilment of all human rights for all.’14
14 CESCR, ‘General Comment No. 12’(12 May 1999) E/C.12/1999/5,para 4.
18 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH INTERNATIONAL LEGAL FRAMEWORK FOR SECURING THE RIGHT TO FOOD
Treaty law Economic, Social and Cultural Rights, was the first binding international treaty Existence of the right which recognised the right to food in Whilst providing food has long been 1966 (coming into force in 1976). Article seen as a moral obligation on the state, 11 states: the development of the concept of food ‘1. The States Parties to the present as a human right has resulted in a wider Covenant recognize the right of understanding of a legal obligation on the everyone to an adequate standard 15 state to provide food for individuals. of living for himself and his family, As early as 1945, the UN Charter16 including adequate food, clothing recognised the need to improve the and housing, and to the continuous living standards of the global population, improvement of living conditions. The and in 1948 the Universal Declaration States Parties will take appropriate of Human Rights recognised the right steps to ensure the realization of this to adequate living standards, including right, recognizing to this effect the food.17The International Covenant on essential importance of international co-operation based on free consent. 15 University of Minnesota, ‘Economic, Social and Cultural Rights Activism: A Training Resource’ section 5, 2. The States Parties to the module 12
equitable distribution of world food culture.’ Food must provide an individual supplies in relation to need.’18 with all the nutrients that they need to be healthy, taking into account their age, sex, The scope and content of Article 11 health, occupation, living conditions etc. has been interpreted by the CESCR (the It must also be safe and uncontaminated UN body of experts that monitors the with dangerous chemicals or pesticides. implementation of ICESCR). In General Finally, food must not be taboo within Comment 12, the Committee defined the the specific culture, thus a state cannot core content of the right as follows: give non-halal meat to Muslims, or beef ‘The availability of food in a quantity to Hindus. Adequacy is also connected and quality sufficient to satisfy with sustainability – the idea that food the dietary needs of individuals, should be accessible to future, as well free from adverse substances, and as present, generations. The principle acceptable within a given culture; of non-discrimination in terms of access to food, as well as to means and The accessibility of such food in ways entitlements for its procurement, is also that are sustainable and that do not fundamental to the right to food. interfere with the enjoyment of other human rights.’ Obligations imposed upon the state Availability requires that food should As well as giving individuals rights, be available in shops for individuals to human rights law imposes obligations, purchase. It also requires that food should particularly upon states. This is reflected be available from natural resources, in the preamble of the ICESCR which either through farming, fishing, hunting reiterates states’ duty under the UN or gathering. Charter to ‘promote universal respect for, and observance of, human rights and Accessibility requires a guarantee of freedoms.’ economic and physical access to food. Food should be affordable and individuals Article 2 of the ICESCR states: should not have to compromise on other ‘1. Each State Party to the present basic rights (healthcare, education etc.) Covenant undertakes to take steps, in order to secure food. Food should individually and through international also be physically accessible to those assistance and co-operation, for whom it could be hard to reach such especially economic and technical, as those living in remote areas, those to the maximum of its available affected by natural disasters, children, resources, with a view to achieving people with disabilities or the elderly. progressively the full realization of The idea of adequacy encompasses the the rights recognized in the present three requirements of ‘quantity and Covenant by all appropriate means, quality sufficient to satisfy the dietary including particularly the adoption of needs of individuals, free from adverse legislative measures. substances, and acceptable within a given 2. The States Parties to the present 18 International Covenant on Economic, Social and Covenant undertake to guarantee Cultural Rights (adopted 16 December 1966, that the rights enunciated in the entered into force 3 January 1976) 993 UNTS 3 (ICESCR) present Covenant will be exercised art 11.
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without discrimination of any kind Finally, states parties have a duty to as to race, colour, sex, language, ‘move as expeditiously and effectively as religion, political or other opinion, possible’20 towards full realization of the national or social origin, property, right to food for all. birth or other status. ‘To the maximum of its available 3. Developing countries, with due resources’ regard to human rights and their national economy, may determine to In order for a state party to be able to what extent they would guarantee justify its failure to meet its minimum the economic rights recognized in the core obligations by reference to a lack present Covenant to non-nationals.’ of available resources the state must show ‘every effort has been made to use ‘Take steps’ all resources that are at its disposition in an effort to satisfy, as a matter of Article 2(1) states that states parties priority, those minimum obligations.’21 must ‘take steps’ towards the realisation The Committee emphasises, however, of the right to food. Although the that even when resources are obviously process of ‘taking steps’ may be long, the inadequate, a state’s obligation to ensure Committee has stated that they must be 19 the widest possible enjoyment of all the ‘deliberate, concrete and targeted’ and rights in the Covenant remains, and the must be taken within a reasonably short obligations to monitor the fulfilment of time after the Covenant’s entry into the rights and to create new strategies force. States must use ‘all appropriate and policies do not disappear.22 means’ to take steps such as passing legislation as well as adopting new food Obligation to not discriminate policies or passing financial reforms. Article 2(2) clearly establishes the ‘With a view to achieving progressively fundamental principle that states may the full realization of the rights not discriminate in securing human recognized’ rights. However, ‘positive’ discrimination in order to correct historic and/or According to the Committee, the concept systemic disadvantage is not prohibited. of ‘progressive’ realisation reflects a Any discrimination in access to food as recognition that rights will not and cannot well as means for procurement of food be realised immediately. In contrast, they amounts to a violation of the Covenant.23 must be realised over a period of time, or Violations may be committed by the state progressively. Some obligations must be itself, or entities insufficiently regulated fulfilled immediately, however, such as by states.24 the obligation to not discriminate. Also states must ensure that the minimum, core content of each right is satisfied immediately. Thus, any state that fails 20 ibid, para 9. to ensure the minimum core content 21 ibid. of the right, breaches the Covenant. 22 ibid,para 11. 23 CESCR, General Comment No. 12, (12 May 1999) 19 CESCR, ‘General Comment No. 3: The Nature of E/C.12/1999/5,para 18. States Parties’ Obligations (Art. 2, Para. 1, of the Cov- enant)’ (14 December 1990) E/1991/23, para 2. 24 ibid, para 19.
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Respect, protect and fulfil Implementation According to the Committee, Article 11 In General Comment 12, the Committee imposes three types of obligations on elaborates upon ways in which states can states: (1) the obligation to respect (2) implement the right to food. It clearly the obligation to protect and (3) the states that each state has a significant 25 obligation to fulfil. margin of discretion but some steps are 1. Obligation to respect: A state has the essential. One such step is the adoption obligation not to destroy people’s of a national strategy, based on human access to food. Even the poorest rights principles, to ensure food and state must refrain from destroying nutrition security. In implementing or interfering with people’s access the national strategy, states should to food. ‘Respect-bound obligations’ also set benchmarks for national and are absolute and imperative. international monitoring. 2. Obligation to protect:A state has the Framework legislation is also key to the obligation to protect an individual’s implementation of a national strategy. access to food against destruction According to the Committee: by a third party, such as their neighbours, employers, or business ‘The framework law should include enterprises. provisions on its purpose; the targets 3. Obligation to fulfil:The obligation to or goals to be achieved and the time fulfil includes both the obligation to frame to be set for the achievement facilitate and obligation to provide. of those targets; the means by The obligation to facilitate requires which the purpose could be achieved the state to pro-actively engage described in broad terms, in particular in activities to solidify individual’s the intended collaboration with civil access to and use of resources and society and the private sector and means to ensure their livelihood. with international organizations; The obligation to provide states that, institutional responsibility for when a person or group, for reasons the process; and the national beyond their control, are unable to mechanisms for its monitoring, as secure food, the state must provide well as possible recourse procedures. for them. In developing the benchmarks and framework legislation, States parties Finally, according to international law, should actively involve civil society international law always prevails over organizations.’28 domestic law.26 Therefore, a state cannot rely on its domestic law as a defence for Monitoring, remedies and accountability breach of its international obligations.27 Finally, the Committee has noted that 25 ibid, para 15. states must set up effective monitoring 26 Applicability of the Obligation to Arbitrate under sec- mechanisms to monitor progress of tion 21 of the United Nations Headquarters Agreement implementation and ensure corrective of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12, administrative and legislative measures para 57. can be taken if necessary. 27 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory 28 CESCR, ‘General Comment No. 12’(12 May 1999) Opinion) [1932] PCIJ Series A/B No 44, page 24. E/C.12/1999/5, para 29.
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States must also ensure victims of has stated that states must adopt violations of the right to food have access positive measures to protect the right to effective judicial or other appropriate to life, including measures to eliminate remedies at both international and malnutrition.33 The Committee against national levels. All victims of such Torture, which monitors the Convention violations are entitled to adequate against Torture and Other Cruel, reparation, which may take the form of Inhuman or Degrading Treatment or restitution, compensation, satisfaction Punishment, has also affirmed that lack or guarantees of non-repetition.29 of adequate food in prisons can amount to inhuman and degrading treatment.34 Other international treaties The Geneva Conventions, which state The right to food is also protected the fundamentals of international in a range of other international humanitarian law, also recognise the treaties, targeting specific groups. right to food in armed conflict in a range The Convention on the Elimination of of different provisions. For example, All Forms of Discrimination against the Third Geneva Convention requires Women recognizes the right of pregnant the state to provide prisoners of war and lactating women to nutrition in with adequate food.35 Another example article 12(2) in the context of maternity 30 is Article 55 of the Fourth Geneva protection. The Convention on the Convention which places an affirmative Rights of the Child also recognizes the duty on the occupying state to provide right of children to adequate nutrition in food and medical supplies for the article 24(2)(c) and (e) in the context of occupied population.36 the right to health and in article 27(3) in the context of the right to an adequate Regional treaties standard of living.31 The Convention on the Rights of Persons with Disabilities The right to food is recognised in Article recognizes the right to food in article 12 of the Protocol of San Salvador. 25(f) in the context of the right to health It also addresses the right in article 17 in the context of the protection of and in article 28(1) in the context of the 37 right to an adequate standard of living the elderly. The African Charter on 32 and social protection. 33 Human Rights Committee, General Comment No. 6: Article 6 (the right to life), (30 April 1982) HRI/GEN/1/ The Human Rights Committee, the body Rev.9 (Vol. I) p.176, para 5. established to monitor the International 34 Committee Against Torture, ‘Conclusions and recom- Covenant on Civil and Political Rights, mendations of the Committee against Torture: Argen- tina’ (10 November 2004) CAT/C/CR/33/1 para 6(h). 29 ibid, para 32. 35 Geneva Convention Relative to the Treatment of 30 Convention on the Elimination of All Forms of Prisoners of War (entered into force 21 October 1950) Discrimination against Women (adopted 18 December 75 UNTS 135 (Geneva III) arts 20, 26. 1979, entered into force 3 September 1981) 1249 UNTS 36 13 (CEDAW) art 12(2). Geneva Convention Relative to the Protection of Civilian Personnel in Time of War (entered into force 21 31 Convention on the Rights of the Child (adopted 20 October 1950) 75 UNTS 287 (Geneva IV) art 55. November 1989, entered into force 2 September 1990) 37 1577 UNTS 3 (CRC) arts 24(2), 27. Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and 32 Convention on the Rights of Persons with Disabilities Cultural Rights (entered into force 16 November 1999) (adopted 13 December 2006, entered into force 3 May OAS Treaty Series No 69 (1988) reprinted in Basic Docu- 2008) 2515 UNTS 3 (CRPD) arts 25(f), 28(1). ments Pertaining to Human Rights in the Inter-Ameri- can System OEA/Ser L V/II.82 Doc 6 Rev 1 at 67 (1992) (Protocol of San Salvador) art 12. 23 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH the Rights and Welfare of the Child the CRPD Committee,43 and the HRC recognizes the right of children to are under preparation. It has also nutrition in article 14(2)(c), (d) and (h) reported sporadically to the CERD in the context of the right to health and Committee.44Bangladesh has ratified health services.38The Maputo Protocol the Optional Protocol to the CRPD45 and recognizes the right to food in article 15. the Optional Protocol to CEDAW46 and, It also addresses the right of pregnant therefore, individuals can make direct and breastfeeding women to nutrition complaints to the CRPD and CEDAW in article 14(2)(b).39There is no regional Committees. Bangladesh has not ratified human rights treaty for the Asia Pacific, the Optional Protocols to ICESCR,47 CRC,48 or for South Asia.40 or ICCPR.49 However, the Bangladesh National Human Rights Commission Reporting and treaty bodies has recently reported to the UN Human Bangladesh consistently reports to Rights Council as part of the Universal the CEDAW Committee and41 the Periodic Review process, as have CRC Committee.42Its first reports to Bangladesh human rights organisation.50
43 Ministry of Social Welfare, Government of Bangla- 38 African Charter on the Rights and Welfare of the desh, ‘Implementation of the Convention on the Rights Child (entered into force 29 November 1999) CAB/ of Persons with Disabilities in Bangladesh’ (August LEG/24.9/49 (1990) arts 14(2)(c), 14(2)(d) and 14(2)(h). 2010)
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UN Special Procedures and the Right to for the realization of the right Food of everyone to adequate food and the fundamental right of The Special Rapporteurs (also known as everyone to be free from hunger special procedures) of the Human Rights Council are independent human rights so as to be able fully to develop experts with mandates to investigate, and maintain their physical and monitor, report and advise on human mental capacities; rights from a thematic or country-specific b) To examine ways and means perspective. Special Rapporteurs visit of overcoming existing and countries; provide support in individual emerging obstacles to the cases as well as act on concerns of a realization of the right to food; wider, structural nature by sending communications to states and others c) To continue mainstreaming a in which they draw attention to alleged gender perspective and taking violations or abuses; conduct thematic into account an age dimension studies; carry out advocacy; raise public in the fulfilment of the mandate, awareness, and provide advice for considering that women and 51 technical cooperation. children are disproportionately The mandate of the Special Rapporteur affected by hunger, food on the right to food was established insecurity and poverty; by the Commission in April 2000 by d) To submit proposals that Resolution 2000/10.52 Subsequent to the could help the realization of replacement of the Commission by the Human Rights Council in June 2006, the Millennium Development Goal mandate was endorsed and extended by (MDG) No. 1 to halve by the Resolution 6/2 of September 2007.53The year 2015 the proportion of present Special Rapporteur is Hilal Elver people who suffer from hunger, (since June, 2014), a research professor as well as to realize the right to from Turkey. She was preceded by Olivier food, in particular, taking into De Schutter (2008-2014) and Jean Ziegler account the role of international (2000-2008). The mandate of the Special assistance and cooperation in Rapporteur on the right to food includes: reinforcing national actions to implement sustainable food a) To promote the full realization of security policies; the right to food and the adoption of measures at the national, e) To present recommendations regional and international levels on possible steps with a view to achieving progressively the full 51 OHCHR, ‘UN Special Procedures’
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national plans to combat hunger; Whilst a treaty is only binding on its parties, customary international law f) To work in close cooperation with is binding on all states. Furthermore, all States, intergovernmental and treaties and custom may exist in parallel: non-governmental organizations therefore, although the right to food (NGOs), the Committee on is recognised in the ICESCR, it may also Economic, Social and Cultural exist in customary international law Rights, as well as with other and therefore bind states who are not relevant actors representing party to ICESCR. Whilst most states are the broadest possible range of bound by the right to food in treaty law, interests and experiences, within some, such as the United States and their respective mandates, Cuba have only signed but not ratified to take fully into account the ICESCR, meaning that they are not bound need to promote the effective to uphold its provisions. Other states, realization of the right to food such as Myanmar and Saudi Arabia have for all, including in the on-going neither signed nor ratified the treaty. It is negotiations in different fields; thus significant whether the right to food g) To continue participating in exists in customary international law. and contributing to relevant Proving the existence of treaty law is international conferences and straightforward – one merely needs to events with the aim of promoting find the treaty. Proving the existence of the realization of the right to 54 customary international law, however, food. is far more complex. Two requirements Customary international law must be fulfilled to prove a legal rule: (1) the existence of extensive and virtually It is almost unanimously accepted uniform state practice that complies with that Article 38 of the Statute of the asserted rule and (2) the existence the International Court of Justice of opinio juris, the belief on the part of definitively states the four sources states that an action was carried out of international law: a) international because it was a legal obligation. For treaties/conventions b) international example, in order to prove the right to custom, as evidence of a general practice food in customary international law, one accepted as law c) general principles of would need to show that states act in law d) judicial decisions and teachings conformity with the right to food (state of the most highly qualified publicists, practice), and that they do this because as a subsidiary means for determining they believe they have a duty in law to do the rules of law. The first two sources, this (opinio juris). treaties and customary international law, are generally recognised as the most These two requirements often merge important and widely used sources of into each other – evidence of state law. International human rights law is practice can sometimes also be evidence comprised of all four sources of law. of opinio juris and vice versa. Treaties, declarations, the behaviour of states in 54 international forums and UN General ibid.
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Assembly Resolutions55 are just a few At the 199658, 200259and 200960World types of evidence that can be used to Food Summits governments repeatedly prove the existence of both opinio juris 58 D�urin����g� ����������the 1996 W�or��l�d�� F�ood������ Summ��it,���� g�o�v�ern���� and state practice. ments adopted the Rome Declaration on World Food Security, affirming in Article 1: ‘We the Heads of State There are a range of declarations and and Government, or our representatives, gathered at the statements by states regarding the World Food Summit at the invitation of the FAO, reaffirm right to food, suggesting that it may be the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food and the emerging as a principle of customary fundamental right of everyone to be free from hunger.’ See international human rights law. However, Rome Declaration on World Food Security (13 Novem� that position remains controversial, ber 1996)
27 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH reaffirmed their commitment to the right State practice also supports the view to adequate food and the fundamental that there is a customary right to food. right to be free from hunger. States which do not have an obligation imposed by constitutional or national The World Food Summit’s declarations law still consistently respect the right were part of the process that led to the to food, particularly the right to be free Millennium Development Goals in which from hunger. Countries regularly send states pledged to halve, between 1990 food aid to foreign countries to alleviate and 2015, the proportion of people hunger and governments consistently who suffer from hunger. The MDGs subsidise food for vulnerable groups, were unanimously adopted by the provide social safety net programmes UN General Assembly61 and represent and provide food aid to their own almost universal acceptance of the right populations. Even the United States, a to be free from hunger. It has even been non-signatory of ICESCR, still respects posited that they represent customary the right to food through a number of international law themselves,62 but this Social Safety Net programmes, subsidies view is not widely held.In September and domestic and foreign food aid.65 2015 the draft Sustainable Development Goals (SDGs) should be officially adopted, Overall, whilst the position may not be building upon the MDGs. Goal 2 is conclusive, there is a wide range of state currently stated as, ‘end hunger, achieve practice and opiniojuris to support the food security and improved nutrition, idea that the right to food is emerging as and promote sustainable agriculture’ a right in customary international law. thus restating the importance of food to Social protection the international community.63 The right to social protection provides A number of UN General Assembly that all persons have the right to equal resolutions also affirm the existence of enjoyment of adequate protection from 64 an obligation to provide food. social risks and contingencies, through contributory (social insurance) or non- 61 Road Map Towards the Implementation of the United Nations Millennium Declaration (6 September contributory (social assistance) schemes, 2001) UN Doc A/56/326. without discrimination of any kind. It 62 is linked to the right to social security, Philip Alston, ‘Ships passing in the night: the current state of the human rights and development debate established in Article 9 of ICESCR. seen through the lens of the Millennium Development Social protection policies are crucial Goals’ (August 2005) 27(3) Human Rights Quarterly 755. to realising the right to food, as well as helping individuals out of poverty. 63 Sustainable Development, ‘Open Working Group proposal for Sustainable Development Goals’
This document is the first international Rights-based Social Safety Nets legal instrument to recognise the role of social security as both an economic The idea of a ‘rights-based social safety and social necessity and a human right. net’ has been emerging in discourse The Recommendation identifies four around Social Safety Nets, but exactly basic social security guarantees that, if what does it mean? According to the present, should allow individuals to live FAO: in dignity: ‘A rights-based social or food safety . Access to essential health care, net explicitly recognizes that its including maternity care; purpose is to fulfil rights rather . Basic income security for than provide discretionary charity. children; Such a safety net is designed and implemented with full regard for all . Basic income security for human rights and may be closely persons of working age who are related to the realization of other unable to earn sufficient income, rights, such as the right to health, in particular in cases of sickness, education, work and participation.’67 unemployment, maternity and disability; A rights-based social safety net confers . Basic income security for older upon an individual a justiciable right – if persons. a person is denied their benefit under a social safety net they can pursue legal Social Safety Nets action, claiming that their right has been breached.68 The Indian National Rural Social Safety Nets (SSNs) are a key Employment Guarantee Act, discussed poverty alleviation tool. They are usually further below, is an excellent example of non-contributory transfer programs such a social safety net, embedded in law. which protect vulnerable people from shocks which can lead to them falling into Finally, respect for the principle of non- (abject) poverty. SSNs can be delivered discrimination is fundamental in the by both the public and private sector. design and implementation of any rights- Types of SSNs include: based social safety net. As stated by the • Cash transfers Committee on Economic, Social, and Cultural Rights: • Food-based programs such as food stamps, vouchers, and …[A]ny discrimination in access coupons to food, as well as to means and entitlements for its procurement, • In-kind transfers 67 Intergovernmental Working Group for the Elabora- • Conditional cash transfers tion of a Set of Voluntary Guidelines to Support the • Price subsidies for food, Progressive Realisation of the Right to Adequate Food electricity, or public transport in the Context of National Food Security, FAO, ‘Safety Nets and the Right to Food’ (2-5 February 2004) IGWG • Public works/employment RTFG 3/INF 1. programmes 68 Devesh Kapur and Prakirti Nangia,‘A Targeted • Approach: India’s Expanding Social Safety Net’ (24 Sep- Fee waivers and exemptions tember 2013)
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on the grounds of race, colour, sex, and of resolutions by international language, age, religion, political institutions become binding as soon or other opinion, national or social as they are published.71Thus, once the origin, property, birth or other status state has signed and ratified a treaty, if with purpose or effect of nullifying an individual citizen believes that a right or impairing the equal enjoyment contained in that international treaty has of exercise of economic, social and been breached, they can bring a case in cultural right constitutes a violation their national courts against the state, of the Covenant.69 demanding fulfilment of their right. Targeting traditionally disadvantaged Dualist states, on the other hand, groups, i.e. ‘positive discrimination’, is require the national legislature to pass permitted, if not encouraged, to redress legislation incorporating the treaty into the balance between different groups national law. The UK, for example, takes based on class, race, gender or other this approach.72Thus, until the national factors.70 legislature has passed this legislation, individual citizens cannot rely on rights International law in Bangladesh in the treaty in their national courts. It is now clear that the right to food is Article 25 of the Bangladesh Constitution recognised in many areas of international states that Bangladesh will respect law. However, what is the relevance of a the principles of international law and right in international law in Bangladesh? UN Charter. Nevertheless, Bangladesh What is the relationship between adopts a strictly dualist position.73 international and national law? However, the Supreme Court has stated Treaties that treaties can be used as an aid to interpretation of provisions of domestic Once a treaty is signed and ratified, a law, including the Constitution: state is obliged order international law to follow the provisions of that treaty. ‘the court can look into these The situation in domestic law (the law of conventions and covenants as an aid that country) may be different from the to interpretation of the provisions position of international law, however. of Part III, particularly to determine the rights implicit in the rights like States generally adopt either a monist the right to life and the right to or dualist approach to international liberty, but not enumerated in the treaties. Monist states allow treaties Constitution.’74 to be incorporated automatically into domestic law, without requiring the Furthermore, if domestic law is silent on passage of any new domestic legislation. a particular issue, the courts can turn to The Constitution of the Netherlands, for international law: example, states that provisions of treaties 71 Constitution of the Netherlands, article 93. 69 CESCR, ‘General Comment No. 12’(12 May 1999) 72 JH Rayner (Mincing Lane Ltd) v Department of Trade E/C.12/1999/5, para 18. and Industry [1990] 2 AC 419. 70 Intergovernmental Working Group for the Elabora- 73 BNWLA v Government of Bangladesh and Others, 14 tion of a Set of Voluntary Guidelines, FAO, ‘Safety Nets BLC (2009) 703. and the Right to Food’ (2-5 February 2004) IGWG RTFG 3/INF 1. 74 ibid.
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‘The national courts should not… Customary international law straightway ignore the international obligations which a country It has been suggested earlier that the undertakes. If the domestic laws right to food, or at least the right to be are not clear enough or there is free from hunger, also exists at customary nothing therein the national courts international law. The orthodox should draw upon the principles position in Bangladesh is that, unless incorporated in the international there is clearly contradictory domestic instruments.’75 legislation, courts should give effect to international customary law.78 Although In Rabia Bhuiyan, MP v Ministry of LGRD a number of cases do refer to customary & Others76 the Supreme Court made law, there are very few examples of its extensive reference to provisions of direct application.79 ICESCR and comments of the Committee on Economic, Social and Cultural Rights, as well as the CRC, in defining the duties and responsibilities of the respondents. Finally, the Supreme Court has stated that: ‘Unless provisions of international instruments are contrary to our domestic laws, the beneficial provisions may profitably be referred to and implemented in appropriate cases.’77 Overall, international treaties have the potential to play a key role in domestic courts. For example, using the principle that international conventions can be used to interpret concepts such as the ‘right to life’ in the Constitution, one could argue that the right to food is a ‘right implicit in the right to life’ and therefore a right in domestic, as well as international law. This possibility is explored further in the following section.
75 HM Ershad v Bangladesh 21 BLD(2001) (AD) 69. 78 Bangladesh v Unimarine SA Panama 29 DLR (1977) 76 Rabia Bhuiyan, MP v Ministry of LGRD & Others 59 252; Bangladesh and others v Sombon Asavhan 32 DLR DLR (2007) (AD) 176. See section on public interest (1980) 198. litigation for full case summary. 79 M Shah Alam, Enforcement of International Law by 77 Anika Ali v Rezwanul Ahsan [2011] 40 CLC (AD) 5145 Domestic Courts (2007, New Warsi Book Corporation, para 17. Dhaka) p114.
31 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH NATIONAL FRAMEWORK FOR SECURING THE RIGHT TO FOOD
Context 2010.82 This is due to a combination of government policy and the very strong Almost immediately after the birth role of international and local NGOs such of Bangladesh in 1971, famine struck as BRAC. Although food grain production the country, peaking in 1974. The has increased and hunger is reducing, causes of the famine are complex, but other problems such as malnutrition are significant contributing factors include on the increase.83Further new challenges, the skyrocketing price of basic food such as increasing urbanisation and items such as rice, which, despite being climate change also require new available, were unaffordable for most approaches and research. people; the government’s failure to control the price hikes due to its lack Food and related issues are consistently of reserves; flooding and bad weather; a key concern for Bangladeshis. In a legislation preventing the movement 2011 baseline study by the Bangladesh and distribution of food grain around National Human Rights Commission the country; and the US government’s (BNHRC) people were asked to identify decision to deliberately withhold food aid major problems facing Bangladesh. until Bangladesh acceded to its political 80% identified price hikes of essentials demands, including the cessation of jute (including food) as the biggest problem.84 exports to Cuba. In 2008, the media reported that ‘food riots’, caused by global 2007-2011 food The government’s failure to deal with price hikes, had erupted in Bangladesh. the famine effectively led to the deaths Whilst the reasons behind these riots are of thousands and political turmoil. Since undoubtedly more complex, it is clear then, political instability has consistently that people’s inability to access food was been a feature of Bangladeshi politics, an important factor.85 leading to a number of military coups, election boycotts and hartals (strikes). 82 ibid. Nevertheless, development has been 83 80 BD News, ‘Bangladesh’s serious hidden hunger impressive. Poverty fell from 57%of problem’ (29 March 2015)
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As further evidence of the importance social, and cultural rights, which are of food, when asked by the BNHRC what not enforced judicially, are defined as services the government should provide fundamental principles of state policy. for free, just under 50% of individuals identified food.86Furthermore, food In general, constitutional recognition of safety has been identified as one of the right to food tends to occur in three the biggest human rights concerns in different ways: 1) direct recognition as 89 Bangladesh.87 In the same survey by a human right in itself or as part of BLAST, 82% of people identified food another human right 2) recognition as 90 rights as important. a directive principle of state policy 3) implicit recognition through expansive In India, a right to food movement began interpretation of other human rights in 2001 and quickly made significant (e.g. right to life).91The Bangladesh progress, leading to the passing of new Constitution recognises the right to legislation establishing a legal guarantee food in the second way, and there are of food to two-thirds of the population. suggestions that it may recognise the Bangladesh social policy has, in the right to food in the third way too. There past, tended to resemble India’s but it is is no direct recognition of the right to notable that, until now, there has been food, however, at present. no parallel right to food movement in Bangladesh.88 Fundamental rights Now, however, the food scene in The most important fundamental right in Bangladesh is undergoing another shift. relation to the right to food is the right The campaign to establish a right to to life. Article 32 of the Constitution of food is taking hold and change is on the Bangladesh states: horizon. ‘No person shall be deprived of life or personal liberty, save in accordance Legal Framework with law.’ The Constitution of the People’s Republic Fundamental principles of state policy of Bangladesh Fundamental principles of state policy are The Constitution of Bangladesh includes not judicially enforceable, but are critical two basic categories of individual rights: in interpreting the Constitution and are civil and political rights; and economic, intended to guide the government and social, and cultural rights. Civil and legislature. political rights, which are enforced directly by the judiciary, have been termed as fundamental rights. Economic, 89 Bolivia, Ecuador, South Africa and Columbia are several examples of countries that protect the right to food directly. 86 BNHRC, ‘A baseline survey on human rights in Ban- 90 Nigeria and Sri Lanka are two examples of countries gladesh’ (2011). that protect the right to food as a directive principle of 87 BLAST, ‘Baseline Perception Study of Access to state policy. Justice for the Marginalized and Excluded Through 91 FAO, ‘A Guide to Legislating for the Right to Food’ Community Legal Services’ (2014). (2009)
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The right to food is enshrined as a If the right to not be deprived of one’s fundamental principle of state policy in life is interpreted to include the right Article 15(a): not to die from hunger, malnutrition or poisoning then there is a possibility that ‘It shall be a fundamental a harmonious reading of Articles 15, 16, responsibility of the State to attain, 18 and 32 could produce a right to food. […] a steady improvement in the In a number of cases the High Court has material and cultural standard of taken this interpretation: these cases are living of the people, with a view explored in detail later.92 to securing to its citizens […] the provision of the basic necessities of The BNHRC has observed that direct life, including food, clothing, shelter, constitutional recognition of the right education and medical care.’ to food would protect the right from the ambiguity of judicial interpretation and Furthermore, Article 16 promotes rural empower individuals to demand policies development: and laws which allow them to realise 93 ‘The State shall adopt effective their right to food. Crucially, it would measures to bring about a radical also provide individuals with remedies transformation in the rural against the authorities when their right areas through the promotion of to food is violated. an agricultural revolution, the A number of other articles of the provision of rural electrification, the Constitution are relevant to the right to development of cottage and other food, particularly to campaigning for the industries, and the improvement right to food. Article 31 guarantees the of education, communications and right to protection before law, Article public health, in those areas, so as 33 sets out safeguards as to arrest and progressively to remove the disparity detention, Article 27 guarantees equality in the standards of living between before the law and Article 28 prohibits the urban and the rural areas.’ discrimination. Furthermore, Articles 37, 38 and 39 guarantee freedom of Finally, Article 18 requires the state to assembly, association, and thought and promote public health. conscience. ‘The State shall regard the raising Food Safety of the level of nutrition and the Access to safe food is a crucial facet improvement of public health of the right to adequate food. Food as among its primary duties, adulteration and contamination is a and in particular shall adopt prevalent problem in Bangladesh,94with, effective measures to prevent the consumption, except for medical 92 See section on public interest litigation in Bangla- purposes or for such other purposes desh. as may be prescribed by law, of 93 Faruque, ‘From Basic Need to Basic Right: Right to alcoholic and other intoxicating Food in Context’ (June 2014).
34 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH as noted earlier, food safety being The Consumer Rights Protection Act, identified as one of the biggest human 2009 addresses defines consumer rights concerns in Bangladesh.95 offences, or ‘acts against consumer rights’, such as ‘selling food containing The Penal Code, 1860 was the first law banned substances or selling expired to establish food adulteration as an products.’ It clearly stipulates the offence. Sections 272 and 273 make food punishments, the highest being adulteration, or the sale of adulterated three years imprisonment or a fine food or drink, punishable by up to six of Tk 2,00,000.It also provides for the months imprisonment, a Tk 1,000 fine or establishment of a National Consumer both. Rights Protection Council. The courts of The Pesticides Ordinance, 1971 requires first class magistrates or metropolitan pesticides to be registered and requires magistrates are empowered to try individuals intending to use them in any offences under this Act. Overall, the Act way (including sale, import, manufacture has the potential to ensure the right etc.) to obtain a licence. The Ordinance to safe food, but due to lack of public also establishes the Pesticide Technical awareness, it has not been implemented Advisory Committee which is still widely. functioning. It has also recently been The Mobile Courts Act was also passed updated by the Pesticides (Amendment) in 2009. Mobile courts are staffed Act 2009. by executive magistrates and are The Bangladesh Standards and Testing empowered to hear and try certain Institution Ordinance, 1985 establishes offences on the spot and impose up to the Bangladesh Standards and Testing 2 years imprisonment. Under the Act, Institution (BSTI) for establishing Mobile Courts have jurisdiction to try Bangladesh-specific standards of offences under sections 272 and 273 of quality and dimensions, to promote the Penal Code, and all offences under standardization, quality control, to the Safe Food Act, 2013, enumerated secure compliance with its standards, below.96 and to certify the quality of foods, among Executive Magistrates in charge of Mobile others. The law also empowers the Courts have the power to search, seize government to restrict the sale or import and dispose of perishable, dangerous or of certain goods that do not meet BSTI hazardous substances if necessary. standards, and to punish those in breach of its provisions. The BSTI may appoint The most recent comprehensive inspectors for inspecting the quality and legislation97 is the Safe Food Act, 2013. standard of articles and to take samples Repealing the Pure Food Ordinance, of any article to test it against the BSTI’s 1959,98 this aims to ensure the right standards. to safe food through the practice of safe food production, importation, processing, storage, logistics, marketing 96 Section 75 of the Safe Food Act, 2013. 97 See Annex 1 for a comprehensive list of all food 95 BLAST, ‘Baseline Perception Study of Access to Justice safety legislation. for the Marginalized and Excluded Through Community Legal Services’ (2014). 98 Section 90 of the Safe Food Act, 2013.
35 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH and sales. It establishes Food Courts99 to Though the Act provides for testing of try new offences of adding radioactive formalin, there is no adequate equipment ingredients, heavy metals, insecticides, available for testing which is a barrier for hormones, antibiotics, or harmful the proper implementation of the Act. chemicals to food, and the creation of health hazards in restaurants and Quality of food/nutrition hotels. It also includes offences such Several laws also regulate the quality as the storage, marketing and sale of food. For example, the Agricultural of toxic foodstuffs; the sale, import, Produce (Grading and Marking) Act, manufacture, storage or supply of 1937 requires that all products be given adulterated foodstuffs; and the sale, a visible designation so consumers can import, manufacture, storage or supply identify their quality and the Seeds of food articles which have expired. Ordinance, 1977 regulates the Seed The law also establishes the National Safe Certification Agency which carries out Food Management Advisory Council and quality control of seeds. Other laws such the Bangladesh Safe Food Authority. Any as the Fish and Fish Products (Inspection aggrieved person can lodge a complaint and Quality Control) Ordinance, with the Bangladesh Safe Food Authority. 1983regulate the processes of food production to ensure that the resulting It has also empowered Mobile Courts to 101 try cases according to the Mobile Court product is of high quality. Bangladesh Act, 2009. was one of the first countries in South Asia to ban iodised salt from the market The Formalin Control Act, 2015 provides due to concerns over iodine deficiency, for harsher penalties for production, which inhibits growth and brain function import, transport, stock, sale and in children and causes thyroid diseased use without license, including life in adults, with the Iodine Deficiency imprisonment and a Tk 20,00,000 fine as Disorders Prevention Act, 1989.102The the maximum punishment for importing, Breast-Milk Substitutes (Regulation producing or hoarding formalin without of Marketing) Ordinance, 1984was a licence. The Act has provision of 7 later followed by the Breast-milk years imprisonment, but not less than Substitutes, Baby Food, Commercially 3 years or a fine of Tk 5,00,000, but not Manufactured Supplementary Baby less than 2,00,000 for traders in case of Food and its Equipment (Regulation of the violation of the terms and conditions Marketing) Act, 2013, which updates the of the license. For transporting formalin restrictions on advertising breast milk or possessing it without having license, substitutes, baby food and commercially the specified punishment is 2 years manufactured supplementary baby food. imprisonment, a Tk 3,00,000 fine or both. These emerged from a health rights The Act also specifies punishments for movement, focusing on ensuring breast- filing false cases to harass individuals.100 feeding of children, given its proven
99 ‘Khaddo Adalots’ (Food Courts), see Section 64 of 101 See Annex 1 for further detail. the Safe Food Act. 102 UNICEF, ‘Review of National Legislation for Uni- 100 The Daily Star, ‘Formalin Control Bill passed’ (17 versal Salt Iodization: South Asia and East Asia and February 2015)
36 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH nutritional benefits, and resisting the More recently, the government has influx of expensive powdered milk of less passed the Bangladesh Environmental nutritional value. The significant overlap, Conservation Act, 1995 which aims between the health and food issues to reduce pollution and protect the raised by breast milk and iodised salt environment. demonstrates the interconnectedness of the right to food with other rights. Although it has not previously been prioritised as a right to food issue, the Sustainability notion of sustainability will continue to grow in importance as the effects of The notion ofsustainability is intrinsically climate change become more severe. linked to the notion of adequate food Bangladesh is, and will continue to or food security, implying food being be, more affected than most states by accessible for both present and future 103 climate change, and so it is essential generations. Bangladesh has a number that future food policies and legislation of laws that deal with sustainability such consider sustainability and resilience to as laws to protect against overfishing, natural disasters and extreme weather. laws to protect forest produce, and laws to preserve the environment.104 Agriculture and food production For example, the Protection and The availability of food refers to the Conservation of Fish Act, 1950 gives the possibilities either for feeding oneself government the power to make rules on directly from productive land or a range of issues including the use and other natural resources or for proper size of fishing nets, the use of poison distribution, processing and market or explosives in fishing, the seasons systems that can move food from the site during which fishing may take place and of production to where there is demand. the minimum size of fish which may be Manylaws dealing with food production, caught. The Act bans monofilament agriculture and land secure the first facet synthetic nylon fibre nets. Punishments of food availability in different ways. for violation of any of its provisions include up to 3 years imprisonment For example, the Agriculturists’ Loans and a Tk 10,000 fine. This Act has been Act, 1884 allows the government to amended recently, and supplemented loan money to farmers in order to help by among others the Marine Fisheries them purchase seed and cattle, and Ordinance, 1983 which also makes several Acts set up Institutes to research provision for the conservation of marine better methods of farming. A century fisheries and prohibits certain types of on, the Land Reforms Ordinance, 1984 fishing. sought to reform the law relating to land The Forest Act, 1927givesthe government tenure, land holding and land transfer the power to designate certain forests as with a view to maximising production protected or reserved, and consolidates and ensuring a better relationship between landowners and bargadars the law relating to forests and transit of 105 forest-produce. (share croppers). For example, it 105 A bargardar or sharecropper is a person who 103 CESCR, ‘General Comment No. 12’(12 May 1999) cultivates another person’s land on the condition that E/C.12/1999/5,para 7. he delivers a portion of the produce of that land to the 104 See Annex 1 for further detail. owner.
37 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH requires bargardar relationships to be distribution, disposal, acquisition, use, formalised through a contract and sets trade or commerce of certain essential out specific circumstances in which such items. contracts may be terminated. It also sets out how produce cultivated by the The Essential Commodities Act, bargardar should be divided between 1957allows the government to regulate the bargardar and the landowner. the production, movement, transport Finally, if the landowner decides to sell and sale of an essential commodity to someone other than his family, the across Bangladesh and to regulate bargardar has a right to be asked if he prices in order to secure the equitable would like to buy the land, before it is distribution of an essential commodity offered to other buyers. between different areas in Bangladesh and availability at fair prices. This was The Agricultural Labour (Minimum extended to the Chittagong Hill-Tracts Wages) Ordinance, 1984provides (CHT) in 1970 by a further Ordinance. for a minimum wage for agricultural workers and the Bangladesh Labour Act, The Agricultural Produce Markets 2006provides for minimum wages and Regulation Act, 1964 regulates the working conditions (including health and purchase and sale of agricultural produce hygiene) – all of which are relevant to the and the markets in which such produce capacity to purchase food and maintain is bought and sold. It also establishes health. Market Advisory Committees. Accessibility Immediately after the 1974 Famine, the Special Powers Act, 1974was Even before the 1974 famine, food enacted, and provides for the harshest scarcity was a pervasive problem in punishments for food hoarding and Bangladesh, leading to a number of laws adulteration, including the death penalty. preventing food hoarding and regulating It also establishes Special Tribunals the quantities of certain essential food to try these crimes through fast-track items that individuals could buy. For procedures and put limits on the rights example, the Famine Insurance Disaster of the accused, including restrictions Fund, 1937requires the government on bail, and the scope for preventive to earmark a fund for famine and detention. disaster relief. The Essential Articles (Price Control and Anti-Hoarding) Act, The Rice Collection and Control Order, 1953 gives the government the power 2008 allows the government to intervene to fix the maximum prices of some in the rice market to set reasonable essential articles and set limits on the prices and ensure an adequate rice stock. quantities of certain essential articles This order was passed during the 2008 that families can possess. The Control food crisis, caused by the large spike in of Essential Commodities Act, 1956 food prices internationally. It allows the further strengthens the government’s government to collect sufficient amounts power to intervene in the food market of rice from the owners of licensed through the regulation or prohibition rice mills and to compel mill owners to of the production, treatment, keeping, supply rice at set prices and quantities. storage, movement, transport, supply, It prevents unlicensed rice mill owners from operating in the rice business and
38 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH sets out requirements and regulations the various facets of the right to food. for the buying, selling and distribution of Taken together, these various laws rice.106 create a strong national legal framework for protection of the right to food. The In general, the history of Bangladesh’s multiplicity of such laws, particularly food markets is marked by strong on food safety, results in a number of government intervention to stabilise overlaps and lack of clarity regarding food prices, prevent hoarding and ensure responsibilities and powers. The offence distribution throughout the country of of food adulteration, for example, is essential products. Now, however, the created by at least three different laws. most recent food policy (analysed below) Each law, however, frames the offence envisages a different, more market differently, with different punishments, oriented future. which can lead to confusion, both for Between 1980 and 2008 approximately those seeking remedies, and those 219 natural disasters took place, and enforcing them. annually around 10 million people in Further, enforcement and Bangladesh were affected by a natural implementation of the law in Bangladesh disaster. The Disaster Management is a perennial problem. More effective Act, 2012 aims to reduce the risks policing and courts are required for and effects of natural disasters. Its progress in this area. Another issue provisions intend to achieve effective in terms of activation of the legal implementation of post disaster mechanisms in place is the lack of emergency response; rehabilitation accountability and transparency. There and recovery measures; provision of are no effective monitoring systems and emergency humanitarian assistance to remedies available to individuals if their the most vulnerable community people; right to food is violated. strengthening of institutional capacity for effective coordination of disaster Direct constitutional recognition of management involving government and the right to food is one way in which non-government organisations, and effective remedies could be afforded establishing a disaster management to individuals. Another option is the system capable of dealing with all promulgation of a framework law which hazards for the country.107 could set out clearly the obligations of all state actors; set out the rights of each Conclusion individual and remedies available in case Although Bangladesh does not directly of their violation; set up enforcement and protect the right to food in a specific monitoring mechanisms and institutions; and set out the financial arrangements law or the Constitution, there are huge 108 ranges of laws which indirectly protect needed to implement these provisions.
106 Naomi Hossain and Ferdous Jahan, ‘The Food Riots that Never Were’ (2014) Annex. 107 Bangladesh Awami League, ‘Disaster Management – Institution, Policies And Legal Framework’
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Policy Framework on the Right to by poor water and sanitation, that ensure Food chronic malabsorption of nutrients. Thus, in order to ensure better nourishment, Food policy has frequently been a measures to improve sanitation and priority for the Bangladesh government. water quality are essential. Hossain and Jahan109 have argued that it is the spectre of the 1974 famine that National Food Policy 2006 has kept food policy at the top of the The National Food Policy 2006 (NFP) is a government’s agenda. The 1974 famine comprehensive approach to food security led the incumbent government to lose encompassing three key dimensions: popular support and so, in order to availability, access, and utilization of prevent a similar outcome, subsequent food for balanced nutrition. It follows the governments have been keen to rapidly Bangladesh National Plan of Action for change and adopt policies necessary to Nutrition 1997 which aimed to ensure prevent acute mass hunger (rapid onset that malnutrition would no longer be events). Hossain argues, however, that a public health problem. The Ministry there is less political pressure on the of Food and Disaster Management government to address issues such as is responsible for formulation and malnutrition and chronic hunger and, as a implementation of the NFP. result, they remain significant problems. A primary goal of the NFP 2006 is to The first Food Policy of 1988 aimed improve nutrition. Other changes are to achieve food security for all by notable in the NFP which reflect changes increasing food production and focused in the food scenario of Bangladesh more primarily on the availability of food widely such as a move towards a more grain. In the decades since, with vastly liberalised market orientated system. improving food availability, government policy is moving to focus on improving The goal of the NFP is to ensure a nutrition, particularly for women dependable food security system for all and children,110and food security in a Bangladeshis at all times. The specific context of an increased population and objectives of the food policy are: a decrease in cultivable land. It should 1) to ensure adequate and stable also be noted that it is increasingly supply of safe and nutritious acknowledged that a significant cause of food; malnutrition in tropical countries such 2) to enhance purchasing power as Bangladesh is not lack of food, but of the people for increased food parasites and similar conditions caused accessibility; and 109 Naomi Hossain and Ferdous Jahan, ‘The Food Riots 3) to ensure adequate nutrition that Never Were’ (2014). for all, especially women and 110 See, for example, the government’s a new cash children. incentive policy for poor pregnant women and children. Women must attend child nutrition classes and must The Food Planning and Monitoring check their child’s growth to receive the money. BD News 24, ‘Bangladesh introduces cash incentives for Unit’s (FPMU) reports suggest less poor pregnant women and children’ (23 March 2015) than consistent progress in policy
40 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH undernourishment, child underweight as a basic need, but not as a right.113 and child stunting. Bangladesh met It also provides no remedy for the the MDG target for undernourishment failure to implement various strategic in the early 2000s. No progress was interventions or programmes. The made for the next decade, however, policy does not refer to the obligations and undernourishment has risen in of Bangladesh under the ICESCR to the last three years, reaching 16.3% in protect, fulfil and respect the right to 2012/13. Underweight and stunting food through, for example, preventing declined between 2007/08 and 2011/12. the destruction of access to food. The Estimates for 2012/13 show child obligation to respect the right to food underweight at 35.1% and child stunting is particularly important in Bangladesh at 38.7%. Overall, if the improvement as many development projects destroy recorded for stunting and underweight existing access to food and the livelihood can be maintained, the targets for 2015 of the population. should be met.111 Further, the NFP does not address any According to the FAO: requirements for the private sector to ensure preserving natural habitats and ‘The National Food Policy 2006… is a developing sustainably. It addresses some good document outlining important sustainability issues including expanding strategies for managing food using bio-fertilizers, water conservation, security, and supported by a plan of and soil and water testing to conserve action. Effective implementation of and protect the environment. the strategies of the food policy is, however, important as many such The NFP has not been accompanied by policies in developing countries are the framework legislation mandated by mostly rhetoric… The NFP provides international standards. As noted earlier, the standards set by the Committee on a holistic framework for addressing the Covenant on Economic, Social and food security challenges at national, Cultural rights require a framework household and individual levels, law with provisions on purpose, target embracing all key dimensions of and goals to be achieved alongside the food security- availability, economic, means by which this purpose could be social and physical access, and best achieved. It should also include 112 nutrition/food utilization.’ monitoring procedures and remedies The NFP is focused on ensuring national as well as setting out institutional food security rather than securing responsibility for each process.114 people’s right to food. It recognises food Discrimination International standards mandate that 111 FPMU, Ministry of Food, GoB, ‘National Food Policy Plan of Action and Country Investment Plan: Monitor- any national strategy should prohibit ing Report 2014’ (June 2014)
41 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH guarantees of full and equal access to and governmental actors responsible economic resources, particularly for for implementation of the policy and women, including the right to inheritance suggests indicators and a strategy for and the ownership of land and other monitoring progress as well as policy property, credit, natural resources and targets. It also sets out guidelines on appropriate technology; measures to inter-ministerial coordination and respect and protect self-employment sectoral planning and budgeting, with and work which provides a remuneration the aim of promoting implementation ensuring a decent living for wage earners effectiveness. and their families.115 Bangladesh law, however, still discriminates against The PoA was formulated after women in terms of inheritance meaning several rounds of consultations with that women own as little as 3.5% of all representatives of relevant partner land in Bangladesh.116. ministries/agencies, including selected regional and local representatives, Accountability as well as non-government experts The Committee on Economic, Social and practitioners. This is in line with and Cultural rights has stated that the CESCR’s recommendation that the implementation of national food all national strategies shoulddevise ‘ strategy should comply with a number appropriate institutional mechanisms to of principle of good governance, notably secure a representative process towards accountability, transparency, people’s the formulation of a strategy, drawing on participation, decentralization, legislative all available domestic expertise relevant 118 capacity and the independence of the to food and nutrition.’ judiciary.The NFP 2006, however, falls Special emphasis was placed on short of compliance with these principles aligning the PoA with Bangladesh’s in certain ways. For example, as stated Poverty Reduction Strategy Paper titled earlier, there is no discussion of measures required for scope for participation of ‘Unlocking the Potential: National poorer people and transparency and Strategy for Accelerated Poverty accountability are limited.117 Reduction’ and related monitoring framework. This demonstrates a degree National Plans of compliance with international NFP Plan of Action2008-2015 standards, which mandate that a national food strategy should ‘address The NFP Plan of Action (PoA) translates critical issues and measures in regard to the NFP into 26 ‘Areas of Intervention’ for all aspects of the food system, including the 2008-2015 period (see Annex 2). The the production, processing, distribution, plan identifies both non-governmental marketing and consumption of safe food,
115 as well as parallel measures in the fields ibid,para 26. of health, education, employment and 116 The Economist, ‘Who Owns Bangladesh?’ (20 social security.’119However, more could August 2013).
42 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH measures in the fields of education, Public Food Distribution System. It states employment and health. that food grain must be bought directly from farmers, and prohibits intervention Country Investment Plan2010-2015 by any middlemen or businessmen.122 The ‘Bangladesh Country Investment National Industrial Policy 2010 Plan: A Road Map towards Investment in Agriculture, Food Security and Nutrition’ The National Industrial Policy prioritises (CIP) is the investment arm of the NFP the agro-based and food processing 2006 and the PoA (2008-2015). It is a five- industry within the ‘thrust sector year plan (2010-2015) which identifies industries.’ These industries are 12 investment programmes, with 40 sub- specifically considered in order to provide programmes, to ensure implementation special incentives, tax exemptions, and of the PoA. It is a country-led planning, financial assistance.123 fund mobilisation and alignment tool which supports more effective public National Education Policy 2010 investment to improve food availability The National Education Policy 2010 in a sustainable way and increase access orders the provision of free lunches to to food and nutrition security.120It was street children, rural children and other coordinated by the Ministry of Food and underprivileged children in order to Disaster Management with support from incentivize attending primary school and the FAO.121 avoid dropping out.124 However, there are The Sixth Five Year Plan (2011-2015) no specific provisions regarding nutrition education, which is a key strategy for The Sixth Five Year Plan (2011-2015) food utilization outlined in the NFP. titled ‘Accelerating Growth and Reducing Poverty’ also provides strategic Fair Price Policy 2010-2014 directions, a policy framework, sectoral This policy aims to ensure the poor strategies, programs, and policies for receive food at reasonable prices, to attaining various goals including national develop a price monitoring system and food security. to develop a method of identifying those most vulnerable to the existing market Other recent food policies system. Specifically, it aims to develop Internal Food Collection Policy 2010 a system for the poorest to use ration cards to purchase food at an affordable This policy aims to ensure adequate profit cost. Committees in each division, for farmers, stabilisation of the food district and union are empowered to grain market, adequate stock to ensure select beneficiaries.125 food security and sufficient supply to the 122 Naomi Hossain and Ferdous Jahan, ‘The Food Riots 120 Ministry of Food and Disaster Management, GoB, that Never Were’ (2014), Annex. ‘Country Investment Plan’
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National Women’s Development Policy disaster, which can include the provision 2011 of adequate food (paragraph 6.2). Several paragraphs focus on women’s Open Market Sales Policy 2012 food and nutrition security. Paragraph 16 details the objectives of the This policy provides the basic guidelines National Women Development Policy. for the Fair Price Policy. Its aims were to Specifically, objective no. 14, paragraph develop a guideline to distribute products 16 guarantees that proper measures through the public distribution system, control food price rises and stabilise the are taken to ensure the good health and 126 nutrition of women; and objective no. 18 market. focuses on food security for physically School Feeding Progamme challenged, aged, women without guardians, deserted women, unmarried, The school feeding programme provides or childless women. Paragraph 17.7 a nourishing mid-morning snack to speaks of equal access to social security school children across Bangladesh aiming measures whereas 18.2 emphasizes non- to contribute to the government’s goal of discriminatory treatment in fulfilling universal primary education by improving needs of female children like food, access to basic education for school nutrition, and health services. Paragraph aged children, particularly those living in 23.4 provides for creating a Social poverty prone areas.127The Government Safety Net for women and paragraph of Bangladesh (GoB) and World Food 23.7 provides for equal opportunity in Programme (WFP) together, currently employment. Ultra-poor women have support 2.7 million school children been included in the Social Safety Net in with high-energy nutritional biscuits paragraph 24.1 and the needed inclusion everyday they come to class.128Under of poor women in mainstream economy this programme school children are and the increase of national budget provided with a packet of eight biscuits allocation for women have been stated weighing 75 grams, which provide 338 respectively in paragraphs 23.1 and kilocalories per day to primary school 23.4. Food security for women has been children and 225 kilocalories per day to particularly articulated in paragraph 30. pre-primary school children and meet The role of women in agriculture, health 67 percent of their daily micronutrient and nutrition provisions of women, and requirements.129 The vitamin and mineral disaster response for women and children biscuits encourage children to attend have been discussed in paragraph 31, 34, school and give students the energy and 37 respectively. and micronutrients to concentrate and National Child Policy 2011 126 ibid. 127 School Feeding Factsheet (WFP) (July 2012) This Policy contains government pledges
44 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH focus on their studies and help address The 100 Days Employment Generation widespread micronutrient deficiencies. Scheme The programme has been successful in The most significant programme is improving primary school enrolment the 100 Days Employment Generation and attendance, reducing dropouts and Scheme. Its stated objective is ‘to bring alleviating micronutrient deficiencies rural extreme poor and capable people and hunger among pre-primary including marginal farmers under a schoolchildren and primary school Social Safety Net during the time they children in food insecure and high remain unemployed.’ This programme poverty prone areas. For families who was launched by the GOB in September cannot afford enough nutritious food 2008. Though the entire country was every day, school feeding is a powerful to be covered, priority was to be given and effective incentive to enroll their to river erosion, flood affected, monga- children and also ensure they attend prone, haor, baors and char areas. The class every day. programme is intended to run during two lean season cycles for 60 days from Since 2013, the WFP and GOB launched September to November and for 40 a cooked meals initiative to provide a hot days from March to April with a view to lunch instead of biscuits with a view to tackling seasonal unemployment. The making school feeding more sustainable scheme provides employment to combat and enhancing the programme. Now monga (seasonal food shortage among cooked meals are being provided in the poor in selected areas) especially two upazillas of Barguna and Jamalpur 130 in the greater Rangpur and Dinajpur districts. These meals are freshly districts. prepared from fortified rice and oil, protein rich pulses, vegetables and The 100-Day EGS is consistent with spices. the main policy frameworks dealing with poverty and food security. For example, the NFP highlights greater geographical targeting of safety nets to specific distress-dense areas of the country, especially those with less employment opportunities, lower levels of development and a propensity to natural disasters. Flood prone areas are considered as the most nutritionally distressed areas of the country. The Ministry of Food and Disaster Management (MoFDM) is implementing the programme in partnership with local governments. The selection criteria as Source: WFP.org per the implementation guidelines are: • The extreme poor including 130 WFP in Bangladesh (Issued: August 2014) marginal farmers, who are
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residents of rural areas including into Bombay in 1939 and covered river erosion, monga prone, much of British India by 1946.132 The haor, baor and char areas. Public Food Distribution System (PFDS) • Unemployed and unskilled poor played an important role during the persons, who are eager to work. 1943 Bengal Famine by attempting to provide a minimum amount of cereals • The landless (with 0.5 or less at stabilised prices to consumers. acres of cultivable land) who After the liberation of Bangladesh in have a low income and have 1971, food grain distribution increased no pond for fish culture and no massively, largely due to the famine, and animal resources. subsequent natural disasters reaffirmed • Any person who is “capable” and its importance. aged between18 and 50. Today, the PFDS in Bangladesh has four • Individuals considered for the key functions: programme should not be covered by any other safety net. (1) to supply food grains to food- based Social Safety Nets; Notably, the 100-day EGS programme (2) to provide incentive prices to differs from the NFP, in the sense farmers to encourage increased that it is ‘gender neutral’ and does production; not specifically give priority to poor women, a major target group of the (3) to maintain a security stock of NFP with regard to income generating food grains in case of emergency; activities. The NFP Plan of Action calls for (4) to stabilize market prices in order increasing coverage and improving the to prevent excessive price rises. effectiveness of employment generation focused safety net programs – with a The government obtains food grain from special reference to Food-for-Work and the domestic market and imports from Cash-for-Work in monga-prone areas abroad, then distributes it through both and other disadvantaged regions. Finally, monetised and non-monetised channels. the National Strategy for Accelerated Monetized channels include:133 Poverty Reduction (NSAPR II) also advises (1) Essential priorities (EP) for the support to monga-prone areas through armed forces, Bangladesh Rifles, agricultural diversification and food police, Ansars (paramilitary assisted infrastructure development group), and jail staff; during difficult seasons.131 (2) Other priorities (OP) for Public Food Distribution System government employees, jail Public distribution of grain has its roots and hospital inmates, students’ in the British system of rationing during hostels, and so forth; World War II. Rationing was introduced 132 FAO, ‘Public Distribution System in India’
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(3) Large employers (LE) for deteriorated to some extent and such industrial and tea garden informal safety nets ceased to exist in workers; the same way. Along with an increased (4) Open market sales (OMS), recognition in the development world channels that sell food grains of the value of safety nets and increased to the general population at pressure on the state to fulfil its welfare subsidized prices. responsibilities, the idea of public, state safety nets became more important in Non-monetized channels serving the Bangladesh.136 poor include:134 After the 1974 famine, the government (1) Food-for-Work (FFW) scaled up the Food For Work programme, (2) Vulnerable Group Development using it as a way of combating monga (VGD) (seasonal poverty) and, in society, the Grameen micro-credit scheme was (3) Vulnerable Group Feeding (VGF) born. Later, at the end of the 1980s, (4) Test Relief (TR) rationing was phased out because of (5) Gratuitous Relief (GR) its inefficiency at reducing poverty and (6) Others severe flooding in 1987-88 encouraged the government to extend the Food A number of factors, however, are For Work model to combat other issues reducing the need for strong government aside from monga.137 intervention in the market through the PFDS. Increased domestic food In the 1990s, a new type of safety production, lower real food prices, crop net, called Conditional Cash Transfers diversification leading to less seasonal (CCTs), which had become particularly variation in prices and the lifting of popular in Latin America, spread restrictions on trade have all led to big to Bangladesh. One of the earliest changes in the agriculture and food CCTs focused on girls’ education and sector of Bangladesh. Furthermore, the introduced the idea of empowerment private sector is starting to play a much and long-term development into safety larger role in stabilising food prices.135 net programmes. In the late 1990s, groups who had traditionally been Social protection policies cared for by their extended families were now provided with state help - e.g. In the past, safety nets in Bangladesh the elderly and destitute women such focused on two main areas – disaster as widows. Finally, the 1990s saw the relief and food rationing. Many people formalisation of the post-disaster relief also benefitted from informal safety safety net system. After the devastating nets, created by their own families or 1998 floods, the government introduced communities. However, over time, the Vulnerable Group Feeding (VGF) cards traditional extended family structure 136 Hossain Zillur Rahman, Liaquat Ali Chowdhury, 134 ibid. and Khondoker Shakhawat Ali, ‘Social Safety Nets in Bangladesh: Volume I’ (2011) Power and Participation 135 Ahmed, Dorosh, Shahabuddin and Talukder, ‘In- Research Centre and United Nations Development come Growth, Safety Nets and Public Food Distribution’ Programme (UNDP), pages 23-29. (May 2010) Prepared for the Bangladesh Food Security Investment Forum, page 14. 137 ibid.
47 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH which individuals could use to claim their SSNs typically target those that are land/ entitlements.138 asset poor; have a per capita monthly income of approximately Tk 650; suffer Four key developments have occurred in from nutritional insecurity rather than Bangladesh in more recent years. Firstly, hunger; and are vulnerable to crises e.g. safety nets target certain geographic illness and natural disaster.142 Widows, areas more explicitly e.g. monga ultra-poor women, landless individuals prone areas. Secondly, safety nets are in rural areas and disabled people are increasingly engaging with long-term usually caught by these safety nets. development goals. Thirdly, safety nets Annex 4 describes a number of Social are focusing more on employment: the Safety Net programmes along with the 2008 100 Days Employment Generation concerned ministries and beneficiaries. Scheme is evidence of this. Finally, a more integrated and comprehensive safety net The test of non-discriminatory access framework has been created.139 and distribution The government is currently developing As noted earlier, non-discrimination in the a National Social Protection Strategy. This formulation and implementation of social policy is an attempt to streamline and protection policies is fundamental. It is strengthen SSN programmes in order to important to ask whether existing SSNs make them more efficient, and to further satisfy the test of non-discrimination. broaden the scope of social protection to The Campaign for the Right to Food include employment policies and social and Social Security (RtF&SS) conducted insurance.140 a study into two SSNs - the Vulnerable Group Development (VGD) Programme Social Safety Net Programmes and the Old Age Allowance Programme- There are approximately 84 SSN and found that there was significant programmes in Bangladesh.141These discrimination in both programmes.143 programmes include food-based Vulnerable Group Development programs as well as cash programs. Programme They are consistent with the NFP 2006 which states that improving coverage The VGD programme is one of the of vulnerable and disadvantaged people largest SSNs, set up by the government and areas, especially monga-prone to address the needs of vulnerable areas, is a priority. and poor women. Beneficiaries of the VGD Programme are generally female, between 18 and 49 years old, own less 138 ibid. than 0.15 acres of land and have no 139 ibid. adult male earning family member and 140 General Economics Division, Planning Division, GoB, no other source of income. Beneficiaries National Social Protection Strategy of Bangladesh: Third Draft’(26 January 2014). 142 Hossain Zillur Rahman and Liaquat Ali Chowdhury, ‘Social Safety Nets in Bangladesh: Volume II’ (2012) 141 Ferdous Ara Rumee, Campaign for Right to Food Power and Participation Research Centre and United and Social Security, ‘Beneficiary Selection under Safety- Nations Development Programme, page 45-55. Net (VGD and Old Age Allowance) Programme: Prob- lems and Way Forward’ (May 2012); FPMU ‘National 143 Ferdous Ara Rumee, ‘Beneficiary Selection under Food Policy Plan of Action (2008-2015) Monitoring Safety-Net (VGD and Old Age Allowance) Programme’ Report 2010’ (December 2009) page101. (May 2012).
48 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH receive a card with which they can claim to play a key role in selecting the primary their allocation of wheat or rice (30kg/ list of VGD card beneficiaries but, in month) and skills training.144 reality, it plays an insignificant part. In practice, male UP members selected 60% The campaign’s research found that those of beneficiaries and female UP members benefitting from the VGD programme selected 27% of beneficiaries. rarely met the eligibility criteria. For example, although single and destitute Those affiliated with the ‘right people’ are the main target group under this were often given favourable treatment programme, around 93% of beneficiaries and corruption and malpractice was also are women living with their husbands. discovered in the implementation and Only 7% of current beneficiaries met the distribution of the benefits themselves. programme’s eligibility criteria.145 Examples include: The study also found that at least 20% • Sale of wheat on the black market; of beneficiaries said they received • benefit cards because they had worked Distribution of two months allocation for a particular candidate during of wheat in one month; elections. 3% said they were given • Distribution of an amount greater benefit cards because they are relatives than the allotted amount per person; or acquaintances of the UP member or chairman. 13% stated that they were • Wheat distributed to individuals selected because they were poor. The using names of deceased persons; majority of respondents (64%) said • Threats to exclude individuals who that they applied themselves to the UP protested irregularities; member or chairman to receive a card. • Bribes; 56% claimed that they had to pay between Tk 1,000 and 2,500 for their • Distribution of wheat unfit for human card. Others stated that they received consumption. the benefits after visiting government offices and UP chairman or members Further, individuals struggle to collect several times. Of the VGD beneficiaries the full benefits under the programme who paid money, 47% gave money to – reports estimate that beneficiaries usually receive around 21% less wheat male UP members and 29% to female UP 146 members. It was found that although UP than their allocated amount. It has members took money directly, the UP been argued, however, that this is not predominately due to corruption, but chairman typically received the majority 147 of the money. rather other forms of leakage. For example, some of the wheat shortfall According to the government’s policy, occurs at local supply depots and a small the Union VGD committee is supposed percentage also goes to local handlers at union distribution points. Some is also 144 Bangladesh Shorkarer Prodhan Prodhan Nirapat- lost because recipients are sometimes tajal Karmashuchi O Nitimala (Shongkhipto), PPRC (December 2010). 146 Naomi Hossain, ‘The politics of what works: the case of the Vulnerable Group Development Programme 145 Ferdous Ara Rumee, ‘Beneficiary Selection under in Bangladesh’ (2007) page13. Safety-Net (VGD and Old Age Allowance) Programme’ (May 2012) page 9. 147 ibid, page 14.
49 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH required by UP officials to share cards. It were women and 11 were men. The is estimated that 10-16% of women share majority of them (77%) could not work cards. However, cards are usually shared due to old age. Others worked because with other poor individuals, and so it does they had no other choice, and the not evidence corruption as such. Finally, allowance ofTk300 was inadequate for wheat is sometimes distributed to those their living expenses. The majority, 57%, who are not beneficiaries but simply turn worked in agriculture, while 7% were up to the union distribution point on the involved in different professions, and day of delivery (around 7%).148 others earned their livelihoods through handiwork, day labour, or by begging. Beneficiaries under the programme The majority of the beneficiaries (63%) are entitled to receive 150 hours of were women. employment training during the two years of the programme. However, The study also noted several irregularities almost all the respondent’s in the RtF&SS over how beneficiaries were selected. study stated that despite the passing of 23% said they had been selected by the nearly 15 months, they had not received UP members or Chairman. 50% said they any training. had to apply to get the allowance while 13% said they were approved as they had Old Age Allowance Programme ‘helped during elections.’ 46% said they The Ministry of Social Welfare introduced had to ‘purchase’ the benefit cards which an Old Age Allowance programme in would entitle them to the allowance.150 1998 for vulnerable people older than 65 20% said they used to giveTk20-30 to the years who have no or little income. The office assistants in order to collect their initial allowance ofTk100 has now been allowance, while all of them said office increased toTk300 per month per person. assistants often demanded money from To be eligible an individual must have an them but they refused to respond to annual average income underTk3000; these demands. and must not be a professional labourer, a vagrant, a retired government employee, Almost everyone felt that the allowance or in receipt of any allowance from any was too small to be useful. 46% said at private or social welfare organisation. least Tk 1,500 should be given as monthly
149 allowance while 30% said a minimum An RtF&SS study on the process ofTk2,000 monthly would be adequate. of beneficiary selection under the VGD Scheme found that 40% of the Conclusion respondents were aged between 71 and 75 years old. 23% of respondents were The Government of Bangladesh has been between the ages of 76 and 80. Although swift at responding to impending food the minimum age for this allowance crises and, particularly in comparison is 65 years, it was found that 3% of to other countries in the region, rates of recipients were below 65. Of the 30 total hunger and food scarcity in Bangladesh beneficiaries included in the survey, 19 are low. Rates of malnutrition, however, 148 are incredibly high, particularly in children ibid. and women. The NFP aims to reduce 149 Ferdous Ara Rumee, ‘Beneficiary Selection under malnutrition and improve food security Safety-Net (VGD and Old Age Allowance) Programme’ (May 2012) page 13. 150 ibid.
50 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH as well as enhance people’s purchasing Bangladesh151, the import and marketing power. The policy reflects the changing of highly radioactive milk were restricted. nature of Bangladesh’s food markets, In another PIL152 filed by Ain o Shalish and acknowledges the greater, emerging Kendra (ASK), the High Court directed the role of the private sector. A range of Government to provide proper notice other targeted plans, programmes and and rehabilitation measures before schemes have a role to play in securing displacement as the right to shelter is one the right to food, particularly for women of the basic needs to protect the right and children. Social protection schemes to life. The Bangladesh Environmental are also critical in helping the most Lawyers Association (BELA) filed a vulnerable people access food and case153 demanding compensation from the Bangladesh government has been the Canadian Company, Niko Resources active in setting up and implementing a Bangladesh Ltd. For the blowouts at range of Social Safety Net programmes Magurchhara and Tengratila under the that reach landless women, widows, Chhatak gas field in 2005. In this case, school-age children etc. However, the Court directed the Government discrimination in the implementation of to take necessary steps to realize such programmes and leakage is a threat compensation from Niko for degradation to their effectiveness. of the environment, and damage to lives, properties and natural resources. Institutional Framework on the As discussed below, individuals and Right to Food organisations that are not personally Judicial authorities affected or aggrieved may also seek such remedies, through public interest Supreme Court litigation, on behalf of those who are The Supreme Court of Bangladesh is unable to do so directly due to social or comprised of the High Court Division and economic disadvantage. the Appellate Division. Any individual Subordinate courts alleging a breach of a fundamental right guaranteed by the Constitution may seek Several courts have specific powers to remedies before the High Court Division. provide legal protection connected to the They may also question decisions right to food. This includes the Sessions or actions or inaction on the part of Court, various Special Tribunals and the the government or public authorities Environmental Court. The Special Tribunal regarding fulfilment of their legal duties. can try offences under the Special Powers Act, 1974 such as hoarding, smuggling, The Supreme Court may issue orders to and the adulteration of food and sale secure fundamental rights through an of adulterated food, drinks or drugs. order of prohibition (order not to do Environmental Courts can try offences an action), mandamus (order to take or perform an action where there is a 151 Farooque v Bangladesh, DLR (HCD) (1996) 438. duty to perform), certiorari (directions) 152 Ain o Shalish Kendra (ASK) and Others v Bangladesh and in some cases through an order and Others, 19 BLD (HCD)(1999) 488. of compensation. For example, in the 153 Bangladesh Environmental Lawyers Association case of Dr. Mohiuddin Farooque vs. (BELA) and others v. Bangladesh and Others, Writ Peti- tion No. 6911 of 2005.
51 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH under the Environment Conservation Various Ministries and Departments are Act such as pollution of water which responsible for implementing SSNs. This adversely affects the production of is partially due to the range of persons food. Although Pure Food Courts exist the programmes target and types of in theory, in reality few have been set programme (e.g. cash transfers, in up. This inaction by the government kind transfers, subsidies etc.). Annex 4 has been the subject of public interest contains a partial list of SSN programmes litigation discussed below. and the responsible ministry for each programme. Legislative authorities Mobile Courts While Parliament can and does enact laws protecting food rights, Mobile Courts empower executive Parliamentary Standing Committees magistrates to hear and try certain are tasked with examining legislative offences on the spot and impose up to proposals, considering bills, inquiring or 2 years imprisonment. Mobile Courts investigating into the performance of may try offences under sections 272 the ministries, and reviewing measures and 273 of the Penal Code (under the for enforcement of laws for proper Mobile Courts Act 2009), and all offences governance (Article 76, Constitution of under the Safe Food Act, 2013156 (such as Bangladesh). They thus have the power food adulteration, sale of expired foods to inquire into and ensure that any draft etc.). Mobile Courts may search, seize legislation as well as the actions /inactions and dispose of perishable, dangerous or of Ministries are rights compliant. hazardous substances if necessary. Executive authorities The number of Mobile Courts and their effectiveness is unclear as little research Ministries has been done into their operations or Some 18 ministries are responsible achievements. An anti-adulteration drive for certain areas of intervention on was reportedly conducted in 2009 in food rights, as set out in the National response to a PIL filed by the rights body Food Policy Plan of Action.154Annex Human Rights and Peace for Bangladesh II sets these out. The Food Planning (HRPB) in a climate of increasing concern and Monitoring Unit of the Ministry over food adulteration. Mobile Courts of Food monitors progress regarding did find traders illegally using toxic implementation of the Plan of Action chemicals in local and imported fruits, and produces an annual report; the 2014 fishes, vegetables, eggs, baked goods report was written in collaboration with and juice but, the drive did not last for 17 partner divisions from 13 ministries long.157 with technical assistance from FAO, Investment Plan: Monitoring Report 2014’ (June 2014). under the National Food Policy Capacity
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In many cases, it has been found that Union Parishads punishments imposed by Mobile Union Parishads (UPs) are the Courts have been stayed by the High smallest rural administrative and local Court. Moreover many lawyers also government units in the country. Each is recommend that the function of the composed of 9 wards,161 with each ward Mobile Court should be carried out by usually comprising of a village. Each UP judicial magistrates instead of executive consists of a Chairman and 12 members; magistrates to ensure compliance with 3 members must be women elected the principle of separation of the judiciary. from reserved seats. They are formed Where Mobile Courts are operational, according to the Local Government reports suggest that they mainly monitor (Union Parishad) Act 2009.162 hygiene and test food for the presence of formalin, so that individuals using UPs are essential in securing the right any of a wide range of other dangerous to food through their involvement with chemicals escape scrutiny and implementing SSN Programmes. UPs are punishment.158 Some critics suggest that responsible for selecting beneficiaries the inability of Mobile Courts to impose of SSNs (Schedule 2, 2009 Act). Ward more severe punishments hampers their Shabhas are required to make lists of effectiveness; others note that they are beneficiaries with reference to specific limited in their reach and rarely operate criteria and then pass these on to the outside of Dhaka.159 Recent reports UPs, who will verify the list of selected suggest that there are renewed efforts to beneficiaries. enforce the Safe Food Act 2013 through greater use of the Mobile Courts.160 Individuals may contact the UP Chairman or Members for any information Local authorities regarding SSNs and the UPs have a duty to provide such information. UPs In Bangladesh, there are different types are also tasked with determining what of local government institutions in the action should be taken, at a local level, rural and urban areas. In rural areas, in emergencies such as natural disasters, the main local government institutions epidemics or food shortages. Schedule are called Union Parishads. In urban 2 of the 2009 Act also tasks the UPs to areas, there are two types of institution carry out functions for the development – City Corporations and Municipalities of agriculture, fisheries, livestock and Paurashauva ( s). economy, ensure safe water and prevent pollution of sources of drinking water, 158 New Age, ‘Mobile courts can only check formalin- treated fruits, foods’ (3 July 2014)
53 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH regular performance audits. Furthermore, Corporation, by regulation, can: prohibit the head of any government department the production, manufacture or sale of and selected technical officers may any particular food or drink at any place inspect any development projects or house without license; prohibit the implemented under that department. import or sale of any particular food The Deputy Commissioner or any other or drink by any person except persons authorized officer may inspect any UP having licenses; prohibit to ferry food or documents, and both completed and drinks at any specific places mentioned on-going development projects. The in the regulations; control the time and government or any officer authorized manner of transport of specific foods by the government can ask for any UP and drinks; regulate the issuance and records, registers or any documents. withdrawal of licenses and the amount These performance audits and reports of fees payable for licenses; detain and could be a valuable source of information destruct any diseased animal, poultry or for the campaign. fishes or any toxic food or drinks. If it appears to the government that any The schedule also states that no person UP member has failed to perform their shall rear any cattle for the purpose of respective duties or functions prescribed the sale of milk or import or sell milk or by the 2009 Act, the authorities may manufacture butter or ghee or any dairy order the person to discharge such products or use their homes for similar duties within specific time. If they fail to purposes without any license or except do so, they may be asked to explain why, the conditions of the licenses issued by and a new officer may be appointed to the city corporation. The City Corporation discharge the duties. can formulate and implement dairy supply schemes and projects according The Union Parishad Governance to the rules with the prior approval of Project, launched by the UNDP involves specific authorities and also can make conducting in-depth performance rules to ensure the adequate supply of assessments of participating Union pure milk for the people. Parishads, which includes assessing how much each UP spends on helping The City Corporation can establish and vulnerable groups.163 maintain general markets for the sale of foodstuff, drinks and animals. No private City Corporations market can be established or maintained The Third Schedule of the Local without a license or except following the Government (City Corporation) Act, conditions specified in the licenses issued 2009 describes the functions of city by the City Corporation. The owners of corporations in detail. The schedule every private market where foodstuff or specifies that the City Corporation will drinks or animals are sold or maintained, be responsible for supplying adequate must apply for licenses under this act. If pure water for the public. The schedule the City Corporation thinks necessary, it also confers upon the city corporation may close or acquire any private market a number of responsibilities regarding for the protection of public interest. food and drink. It specifies that the City The City Corporation also shall arrange and maintain slaughterhouses for the 163 UNDP, ‘Union Parishad Governance Project: Project Document’ (2011). slaughter of animals and sale of meat in
54 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH the municipal area. at any specific places mentioned in the regulations, control the time and manner The Fifth Schedule of the Act mentions of transport of specific foods and drinks; offences under this act, including: regulate the issuance and withdrawal of carrying out an act without a licence or licenses and the amount of fees payable permission of the city corporation where for licenses; detain and destruct any a licence or permission is required; diseased animal, poultry or fishes or any doing anything which contaminates or toxic food or drinks. makes water unusable; using water from any source which has been banned for The Schedule also states that no person drinking by the municipality; feeding any shall rear any cattle for the purpose toxic, dirty or waste products to cattle of sale of milk or import or sell milk reared for milking or dairy products; or manufacture butter or ghee or any slaughtering animals or selling meat dairy products or use their homes for except in specified places; selling food similar purposes without any license or or drink which does not meet consumer except the conditions of the licenses. standards etc. Any person found The Municipality can formulate and violating the provisions of this Act shall implement dairy supply schemes and be punished with a maximum fine of Tk projects according to the rules with the 5000, or, where no specific punishment prior approval of specific authorities has been specified and in case of and also can make rules to ensure the repetition of the same offence, shall be adequate supply of pure milk for the fined with a maximum of Tk 500 for each people. The Schedule also has provisions day of involvement. regarding general markets (bazar) and private markets. The municipality Municipalities(Paurashavas) has the responsibility of construction, The functions of municipalities with management and development of respect to food are very similar to government markets. No private market those of City Corporations. The Local can be established or maintained Government (Paurashava) Act, 2009 without any license or without meeting combines the rules and regulations the conditions specified in the licenses related to municipalities and repeals issued by the municipality. The owners of the Paurashava Ordinance, 1977.The every private market where foodstuff or Second Schedule of the Act describes the drinks or animals are sold or maintained, functions of the municipalities in detail. must apply for licenses under this act. If the municipality thinks necessary, it Each municipality is responsible for may close or acquire any private market supplying pure water for the people of for the protection of public interest. The the respective municipality. The schedule municipal shall also arrange and maintain specifies that each municipality can, slaughterhouses for the slaughter of by regulation, prohibit the production/ animals and sale of meat in the municipal manufacture or sale of any particular area. food or drink at any place or house without license; prohibit the import or The Second Schedule of the Act also sale of any particular food or drink by states that municipalities may adopt any person except those having licenses; such measures as may be prescribed for prohibit the ferrying of food or drinks the promotion of the welfare of women,
55 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH child and backward classes, and adopt play in legal protection of the right to any other measures likely to promote food through monitoring and providing social development and social welfare. remedies for violations.164 This may include measures such as SSNs. Information Commission The Fourth Schedule of the Act sets out offences including: carrying out an The Information Commission (IC), act without a licence or permission of was established under the Right to the city corporation where a licence or Information Act, 2009, to improve permission is required; doing anything transparency and accountability. The IC which contaminates or makes water enforces and oversees the RTI Act and unusable; using water from any source rules and regulations made under the which has been banned for drinking Act. Under the Act, every citizen has the by the municipality; feeding any toxic, right to obtain information (RTI) from an dirty or waste products to cattle authority and every designated authority reared for milking or dairy products; is required, on demand from a citizen, slaughtering animals or selling meat to provide such information (Section 4). except in specified places;selling food This right is subject to certain conditions, or drink which does not meet consumer such as protection of national security standards etc. Any person violating the and relations with foreign countries provisions of this Act shall be punished (Section 7). The designated officer of with a maximum fine of Tk 2000 and, in every authority must respond to any RTI case of repetition of the same offence, request made in form and on payment shall be fined with maximum Tk 200 for of a prescribed fee within 20 working each day of involvement. days, unless it requires information from multiple authorities, in which case the Statutory Bodies time limit is 30 working days (Section 9). If any person fails to receive information Many institutions empowered to set or within the specified period, he/ she monitor standards and quality regarding can appeal to the appellate authority food have been established, or are (Section 24). required to be set up, by statute. For example, the Safe Food Act 2013 sets The Information Commission may up the National Safe Food Management receive complaints from individuals if, for Advisory Council and the Bangladesh example, they are charged an exorbitant Safe Food Authority. Other statutory fee by the responsible officer, or if they bodies include the Bangladesh Standards do not receive the information sought; and Testing Institution and the National it may also conduct inquiries (sections Consumer Rights Protection Council 11 – 13).165 Use of the RTI Act is explored which also both have fundamental roles further in the final section of the report. in monitoring food safety and quality. Similarly, the Fisheries Research Institute Ordinance 1984 created the Fisheries Research Institute and the Pesticides 164 Annex 1 provides a comprehensive list of legislation Ordinance 1970 establishes the Pesticide and the relevant institutions set up by each piece of Technical Advisory Committee. These legislation. bodies can, and do, have a key role to 165 Information Commission
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Bangladesh National Human Rights Non-Governmental Organisations Commission (BNHRC) NGOs increasingly play an important role Established in 2009,166 the BNHRC in securing the right to food. Certain SSN promotes the protection and fulfilment Programmes are delivered in partnership of human rights. It monitors the human with NGOs and therefore they play a rights situation in Bangladesh, receives key role in processes such as beneficiary complaints from individuals alleging selection. For example, the VGD Program violations of their rights, conducts is a intervention jointly managed advocacy and campaigns, organises and implemented by the Ministry of training and conferences and engages Women’s and Children’s Affairs and the in capacity building. The Commission’s World Food Programme. Local selection ability to receive and act upon committees composed of government complaints from individuals renders it officials, elected local government particularly powerful in securing the representatives, and representatives right to food. It can also conduct fact- of nongovernmental organizations finding investigations in response to select the female beneficiaries using a complaint, exposing violations of prescribed criteria.170 Further, under the human rights. The Commission also has scheme women are entitled to receive a the potential to play a role in standard package of development services which setting and monitoring compliance with is delivered by another NGO, BRAC.171 these standards. As noted earlier, the Commission has also begun reporting to Other examples of SSN Programmes the UN Human Rights Council.167 which are entirely run by, or rely on collaboration with, NGOs are the Dushtha The Commission has jointly held a public Shasthya Kendra Micro-Insurance hearing with Oxfam on the right to food, Scheme and the Shakti Foundation for calling for constitutional recognition of Disadvantaged Women’s microfinance the right to food and the formulation of scheme.172 a law to ensure food security.168 Further, the BNHRC has spoken out at a mock WFP plays a key role in monitoring Youth Parliament event organised by the food situation in Bangladesh. In Oxfam on the importance of recognising particular, it monitors food prices of the the right to food as a human right.169 most commonly eaten staple foods and, as a result, the cost of the average food basket. Through its Seasonal Monitor, 166 By the National Human Rights Commission Act WFP monitors satellite imagery of rainfall 2009. 167 BNHRC, ‘Annual Report 2013’
57 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH and vegetation in order to calculate and the 2015 South Asian Right to Food the progress of the growing season and Conference are further mobilising actors how conditions could affect the across a wide range of sectors. population. In 2014 WFP also established a food security monitoring system. This Several NGOs and lawyers have utilized collects data on crop production, food public interest litigation for the realization prices trends and household food access. of the right to food. Following a PIL filed It also analyses environmental conditions by BELA in 1994, the concept of PIL and macro-economic indicators.173WFP is was recognized by the Judiciary. Other working with the government to finalise organizations such as the Bangladesh its National Social Security Strategy and Legal Aid and Services Trust (BLAST), provides capacity support for the Ministry Ain o Shalish Kendra (ASK), and Human of Women and Children Affairs.174 Rights and Peace for Bangladesh (HRPB) have also undertaken PILs relevant to the NGOs also have a central role in right to food. demanding law reform. In Bangladesh, the right to food campaign was catalysed Research Organisations through awareness raising events, public Some organizations such as the consultations, seminars and training Power and Participation Research events organised by RtF&SS.175 Now Centre (PPRC), the BRAC Institute of Oxfam, Action Aid and local rights NGOs Governance and Development (BIGD), such as Angikar Bangladesh Foundation the Centre for Policy Dialogue (CPD) and and the Campaign for Sustainable Rural the Bangladesh Institute of Development Livelihoods, are holding national forums, Studies (BIDS) have carried out extensive including briefings with parliamentarians, research on various aspects of the right on food rights.176 The BNHRC and Oxfam to food including safety net provision. have also held training sessions for Such research provides evidence to link lawyers to raise awareness of the need food security programmes and initiatives for judicial safeguards on the right to with more effective policy making. For food and to help build the capacity of the example, PPRC has conducted extensive legal community to facilitate legal actions research on social safety net programs in that advance the right. Events such as the Bangladesh.178 Youth Parliament on the Right to Food177 Conclusion 173 WFP, ‘Publications’
58 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH responsibilities and functions and review whether the institutions in question are functioning or whether they merely exist on paper. Following this, the usefulness of these institutions to the campaign can then be assessed.
© RtF&SS: Campaign for Right to Food & Social Security
59 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH LEGAL PROTECTION OF THE RIGHT TO FOOD
Public interest litigation (PIL) and RTI had no such legal duties to fulfil. The applications can be useful tools to Supreme Court disagreed, finding that implement and enforce the right to food the government had a number of duties and social security, pending enactment in law, including the Constitution. of any framework law. PIL may be used to seek judicial recognition of the right The Court held: to food as an enforceable right whilst ‘Non-compliance with the statutory RTI applications can be used to ensure duties…to ensure access to safe and implementation of government SSN potable water constitutes a violation programmes. Use of public interest of the right to life as guaranteed by litigation Articles 31 and 32 of the Constitution Public Interest Litigation read together with Articles 15 and 18 of the Constitution.’ In Bangladesh, human rights and environmental lawyers, as well as As water is not specifically mentioned consumer activists have already brought in Article 15, it follows that the Court a number of landmark public interest derived the right to water from the cases before the Supreme Court relating reference to ‘basic necessities of life, to the right to food, particularly safe including food’ in the Article. food. The Court ordered them to take a number The Bangladesh Supreme Court has of measures, including implementing interpreted the right to food as part the National Arsenic Mitigation Policy of the right to life. For example, a case 2004 and the National Action Plan for brought by a senior lawyer of the Arsenic Mitigation, testing of tube wells Supreme Court, Rabia Bhuiyan, MP v for arsenic, a mass awareness campaign Ministry of LGRD & Others,179 concerned on the dangers of drinking contaminated the government’s failure to fulfil its legal water, sealing of contaminated tube duties under existing laws (including the wells and yearly reporting to the Court Environment Conservation Act 1995 and regarding implementation of the Plan the Environment Conservation Rules and 2004 Policy. 1997) to take action to seal tube wells In 2004, in BLAST v Bangladesh,180the contaminated with arsenic; to test water High Court examined the issue of the sale quality; and to ensure that the contents of non-iodised salt. Iodine deficiency was of arsenic in the groundwater did not common in Bangladesh, leading to the exceed a particular quantity (stipulated prevalence of two diseases: cretinism in the Environment Conservation Rules and goitre. The Iodine Deficiency 1997).The government claimed that it Diseases Prevention Act 1989 was
179 Rabia Bhuiyan, MP v Ministry of LGRD & Others 180 BLAST v Bangladesh, Writ Petition No. 1043 of [2007]59 DLR (AD) 176. 1999, 25 BLD (HCD) (2005) 83.
60 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH passed to set a minimum iodine content interpreted into the right to life, surely in salt to tackle the problem. The Court food rights could be too? Furthermore, found the Ministry of Health to be in the Court recognised that access to safe breach of the Act and ordered it to: (1) food is a key element of the right to life. ensure manufacturers conformed to 182 the quality standards set in the Act; (2) The FAP- 20 case is another landmark prevent unregistered manufacturers in our legal history. Dr. Mohiuddin from producing, marketing and selling Farooque challenged the validity of salt; (3) to submit a list of registered flood action programmes undertaken manufacturers; (4) and to collect by the government in 1995 on the samples of salt and submit an analysis ground that the project would adversely report to the Registrar of Supreme Court affect more than a million people by bi-annually. way of displacement, damage to the soil, destruction of natural habitats and The Bangladesh Environmental Lawyers create a drainage problem, threatening Association (BELA) also succeeded human health and also worsening through public interest litigation181in sanitation and drinking water supplies preventing the import and sale of milk and causing environmental hazard and powder, samples of which tested positive ecological imbalance. The Appellate for radiation. BELA sought redress Division held that Article 32 of the against the inaction of the authorities in Constitution which protects the right to taking effective measures in dealing with life as a fundamental right encompasses a consignment of skimmed milk powder. within its ambit, the protection and They argued that consumers must be preservation of environment, ecological protected from the harmful effects of the balance free from pollution of air and radiated milk to give true meaning to the water and sanitation without which life right to life in the Constitution. The High can hardly be enjoyed. Therefore, any act Court agreed, stating: or omission contrary thereto will violate of right to life. ‘The natural right of man to live free from all the man made hazards In 2009, a lawyers organisation, Human of life has been guaranteed under Rights and Peace for Bangladesh (HRPB) the aforesaid Articles 31 and 32 filed a writ asking the High Court to subject to the law of the land. Use order the government to set up Pure of contaminated food, drink, etc., Food Courts, as mandated by section be it imported or locally produced, 41 of the (now repealed) Pure Food undoubtedly affects health and Ordinance 1959, and to appoint a public threatens life and longevity of the food analyst.183 The High Court directed people.’ the Government to do so, and Food Courts have reportedly been formally The Court directed the respondents to develop better methods of testing for 182 Dr. Mohiuddin Farooque v Bangladesh, 17 BLD (AD) radioactivity. Of critical importance is (1997) 1. the way the court interpreted Articles 183 Human Rights and Peace for Bangladesh v Ministry 31 and 32 to include the right to health of LGRD Writ Petition No. 324 of 2009
61 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH established in some districts following government to submit a report stating the Law Ministry’s publishing a gazette the steps that have been taken for notification in this regard. However, lack infrastructure development in the areas of public awareness of their existence, affected by Aila and also issued a Rule as well as lack of awareness among upon the government to explain why it lawmakers, has rendered them largely should not be directed to take necessary ineffective.184 Non-appointment of food steps for infrastructure development in analysts also makes it difficult to activate the affected areas including repairing of these courts.185 embankments and for enacting a new law on disaster management.187 More recently another NGO, Shishuk, filed a writ to prevent the sale of While PIL in Bangladesh has focused potentially harmful genetically-modified on safe food, there has been no eggplants. This was initially unsuccessful, direct engagement with laws around but eventually led to an order from the food scarcity, distribution, SSNs, etc. High Court directing the Government to In the neighbouring jurisdiction of not release genetically modified crop ‘bt. India, however, PILs have demanded Brinjal’ without assessing possible health enforcement of a range of different laws. risks and also requiring independent Thus, examining the experience of India research into the harmfulness of the may help illustrate how PIL could be used crop, based on the Codex Alimentarius in a wider range of situations, particularly Commission’s (CAC) standards.186 as the extensive and well-rooted Indian campaign has won major successes in Advocate Shahidul Islam, a Supreme the courts. court lawyer filed another writ petition challenging the alleged failure of the Lessons from India Government in providing adequate rehabilitation and repairs to the 40 The Right to Food Campaign in India, lakh people in eleven districts affected which led most recently to the passage by cyclone Aila on May 25, 2009 as of the Food Security Act, 2013, emanated being violative of the rights to life and from a PIL petition filed before the livelihood and property protected by the Supreme Court of India in 2001. The Constitution. The High Court directed the Indian experience is demonstrative of practical ways in which a socio-economic 184 The Daily Star, ‘Food Courts there but not func- right, such the right to food, can become tional’ (August 2014) http://www.thedailystar.net/< legally enforceable as a fundamental food-courts-there-but-not-functional-36464> accessed 4 March 2015; The Daily Star, ‘Govt sits on setting up right through judicial interpretation and food courts’ (July 2013)
62 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH
In April 2001, the People’s Union for Civil destitute children, especially in cases Liberties (PUCL) filed a PIL demanding where they or members of their accountability from the Indian State family do not have sufficient funds to on behalf of the poor in the state of provide food for them.190 Rajasthan. The community had not been receiving the required employment and The Supreme Court also passed an food relief mandated by the Rajasthan interim order directing states to ensure Famine Code of 1962 resulting in that all closed public distribution shops persistent hunger and starvation in were reopened within a week.191 Rajasthan despite mounting stocks of It went on to issue several significant 188 food grains. The petitioners argued that interim orders, which in effect converted people were starving and facing recurring eight food and social security schemes droughts whilst the government was into legal entitlements.192 These interim keeping overflowing warehouses full of orders directed various authorities at rotting food grains. The petition sought the central and state level to protect the to enforce a constitutional right to food right to food through: under Article 21 of the Constitution of India, deriving the right to food from the (1) Effective implementation of all right to life. nutrition-related schemes In response, the Union of India and (2) Cooked mid-day meals for all various state governments claimed children in government schools before the Supreme Court that a (3) Reform and expansion of the number of schemes were already being public distribution system, implemented to adequately secure including the provision of grain to the right to food. These included: (1) all entitled families on a regular feeding programmes for infants, children basis as per official guidelines attending school, expectant and nursing (4) Implementation of food-for-work mothers; (2) subsidized cereals retailed programmes in all scarcity areas through a countrywide network of ration (5) Social audits in various food and shops; (3) pensions for the aged; and (4) employment schemes wage employment for the able-bodied.189 190 PUCL v Union of India and others, Civil Writ Peti- The Supreme Court accepted the tion 196 of 2001 from Harsh Mander, Food from the petition, and on 23 July 2001 observed Courts, Seminar (2012)
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(6) Adoption of specific measures 2004 to widen the applicability of the to ensure public awareness scheme as well as ensure its speedy and transparency of these implementation. Now, through the programmes.193 enactment of NREGA, any person willing Other notable orders handed out by the to engage in unskilled manual labour at Supreme Court in the PUCL litigation the statutory minimum wage is entitled have significantly contributed to defining to public works employment within 15 the scope of the constitutional guarantee days (subject to a limit of 100 days per to the right to food in India. These orders household per year), or failing that, to an include: (1) the preservation of the public unemployment allowance. NREGA thus distribution system, through which creates definitive legal entitlements in grains are delivered to people of extreme respect of the right to work. poverty; (2) the universalization of the Subsequently the Supreme Court passed Integrated Child Development Scheme orders in 2009-2010, broadening the (ICDS), which allows all children to access extent of the rights enforced by the services provided at ICDS feeding centres; PUCL litigation. The Commissioners (3) mandated continuance of the Mid- submitted reports to the Supreme Court Day Meal Scheme (MDMS) in schools; about the number of homeless persons and (4) issuance of court directives who die in Delhi every winter from cold prohibiting modification or termination and malnourishment. As a result, the of any food scheme covered in previous Supreme Court ordered the Government orders without prior permission of the of Delhi to increase the number of night 194 Supreme Court. shelters for the destitute. This resulted The litigation ultimately also contributed in doubling the number of night shelters 196 to creating the environment for that originally existed. enactment of the National Rural Right to Information Applications Employment Guarantee Act 2005 (NREGA). Employment issues had been The Right to Information (RTI) Act has considered by the Supreme Court in started to be used as an effective tool its orders relating to the Universal to implement SSN programmes in Rural Employment Programme,195 one Bangladesh, and to challenge corruption. of eight schemes addressed by the Many NGOs have been involved in Supreme Court. The Supreme Court disseminating information about passed several orders from 2002 to rights and remedies under the Act. Consequently there are active groups 193 Global Health Watch, Applying Public Interest who are empowered by this knowledge Litigation to Secure the Right of Food: A Case Study of to bring requests themselves, with India
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For example, a local college student, Using this training, he was able to file an Shamina, was the president of Ekota RTI application to find out how much rice Youth Network, a youth group which individuals were entitled to under the took part in training on civic engagement government’s Vulnerable Group Feeding and participatory local governance Programme. He discovered that corrupt through Inter-cooperation‘s SHARIQUE officials who were attempting to give project. Her network participated in RTI beneficiaries less than they were due training and learned about their right and organised a protest; as a result the to information. Later, Shamina learned community were given their fair share that many extremely poor women were of rice. Another national NGO, Nagorik being excluded from the list compiled by Uddyog, has used RTI training to help the Upazila Administration of potential individuals demand pesticide equipment beneficiaries of the government’s and training from their Upazila Vulnerable Group Development social Agricultural Office which they are entitled security programme. Shamina filed to via the Integrated Pest Management an RTI application with the concerned club and Integrated Crop Management. Union Parishad to request the list Nijera Kori has used RTI to challenge of beneficiaries. The Union Parishad unfairness in the distribution of maternal delayed their response to Shamina. health vouchers for poor women and Meanwhile, the Upazila Nirbahi Officer help landless poor access information (Upazila Executive Officer) established about the distribution of khas land. a small committee to review the list. Research Initiatives Bangladesh (RIB) has The Committee suggested the removal also helped a farmer access information of ineligible persons and the inclusion on the rules for obtaining agriculture of eligible persons. They presented cards which entitled him to vital farming the revised list to the VGD selection equipment and older people from the committee who approved it. Eventually, Rabidas community access information Shamina received the revised list from the on the eligibility rules for the Old Age Union Parishad. She and her colleagues Pension allowance.198 can now review the list to ensure that all the beneficiaries are eligible according Lessons from India to the official criteria and ensure that Important lessons can be drawn from the benefits are distributed fairly, and to the use of RTI in India as an effective those who need them.197 tool to secure implementation of social Other NGOs, such as the Manusher safety net programmes in India. Multiple examples of such actions can be cited;199 Jonno Foundation (MJF), record similar 200 success stories. MJF trained a local in just one example, Parivartan, a farmer on a range of accountability and Delhi-based movement, supported an governance issues, including the RTI Act. 198 ibid. 199 India Together, ‘Delhi’s citizens acting en-masse’ (1 197 World Bank Institute ‘The Power of Using the Right September 2003)
65 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH individual to obtain a duplicate ration card, by filing an RTI application seeking information regarding the status of his application and the names of officials involved in processing his application, after the authorities initially failed to respond to his seeking a new card.201
201 Parivartan, ‘Exercising Your Right to Information: A User’s Guide’ (2004)
66 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH PROPOSALS FOR LAW REFORM
Arguably, the Bangladesh government has to Food & Social Security launched a secured the right to food in effect, even national campaign to demand legal though it has not formally recognised recognition of the right to food. As noted it in law. For example, between 1990 earlier, NGOs such as Oxfam, Action and 2014, Bangladesh has achieved Aid, Angikar Bangladesh Foundation one of the biggest improvements in its and the Campaign for Sustainable Global Hunger Index score.202Similarly, Rural Livelihoods are all involved with underweight in children has reduced the campaign, amplifying calls for from a massive 62% in 1990 to 37% in constitutional recognition of the right to 2011.203Schemes such as the 100-Day food. Employment Guarantee Scheme and the range of Social Safety Nets available Furthermore, there have also been calls further demonstrate the government’s for public interest litigation to demand commitment to protecting the right to the Supreme Court to explicitly recognise food. the right to food as part of the right to life. There is also scope for the campaign Nonetheless, the BNHRC has observed to call for a framework law in which all that direct constitutional recognition the legal duties and rights of the state of the right to food would protect the and citizens could be established. right from the uncertainty of judicial interpretation, improve accountability by limiting the actions and policies of the government and providing remedies, and empower individuals to demand policies and laws which allow them to realise their right to food.204
There is now pressure from a range of NGOs, academic institutions, and civil society to provide a legal framework for the right to food. In 2011, after a number of consultations, the Campaign for Right
202 In terms of absolute progress. See International Food Policy Research Institute, ‘2014 Global Hunger Index’
67 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH CONCLUSION
The idea of food as a human right, rather the issue of remedies and monitoring. than just a basic necessity of life, has become increasingly accepted over the One notable concern which reappears past few decades in the international throughout this report is the lack of community. In Bangladesh, while there remedies and monitoring. Individuals have been remarkable achievements in who have been failed by the authorities terms of social development indicators, rarely seek any recourse. In large due to the contributions of some measure, this is due to lack of awareness of the world’s leading development and understanding of rights and organisations, they have been wary remedies. It is also due to the failure of of adopting a rights discourse around relevant authorities to make available to food. In recent years, with increasing the public, information about rights but attention to social and economic rights, also about services and organisations internationally and nationally, the and agencies that can provide remedies. demand for recognition of food as part of Whilst the advent of the RTI Act brings a human right has increased. Arguably, some hope, it is not a panacea. Greater this shift in focus from food as a need utilisation of institutions such as the to a right can be partially explained by Information Commission and the BNHRC a parallel shift from concern over food may help, as well as the increasing use scarcity and famine to concern around of the courts as they fashion appropriate nutrition and safety. In situations of judicial remedies through public interest famine and scarcity, food is more likely litigation. It is essential, however, that to be conceptualised as an essential mechanisms already existing under the necessity, whereas when issues such as law are activated. For example, the Food quality, safety, nutrition and sustainability Courts exist on paper, but very few have, are at the forefront, the idea of food as in reality, begun to receive or hear cases. a right is potentially more potent as it Society is no longer satisfied with the encompasses these issues. mere passing of a law to secure a right. Legal developments, particularly in Rather, campaigners want participation constitutional case law, hint at the in the process, the chance to have their recognition of the right to food. A huge say and work collaboratively with the range of sectoral legislation protects state to achieve solutions. We hope that different facets of the right to food such this report will be a tool for campaigners as safety, sustainability and availability. who wish to engage in this process by Much of it remains to be activated. providing them with information to help Similarly, in the area of policy, there them participate effectively. are encouraging signs. The National Food Policy 2006 sets out a strategy for dealing with food insecurity and hunger, in line with Bangladesh’s international obligations, though it does not address
68 THE RIGHT TO FOOD : LEGAL PROTECTION IN BANGLADESH MOVING FORWARD AND RECOMMENDATIONS
Questions for the campaign to • Research need to be done on: consider . Access to SSN in urban areas and • How should any future constitutional beneficiary groups amendment be drafted? . Urban coverage of SSN . Need a participatory process and programmes i.e. old age public consultation to draft an allowance, education policy etc. amendment. . Impacts of migration, climate • How can we use public interest change, river erosion etc. on litigation be used to further indirect food security/ realisation of the constitutional recognition of the right to food. right to food, through interpretation . Transparency in the use of public into the right to life, for example? money budgeted for the SSN • How else might public interest programmes. litigation be used to secure the right . Analysis from budgetary to food? What other issues could be perspective- budget allocation. targeted? . Mapping of duty bearers, their • What can be done to improve responsibilities and functions implementation of existing under different related laws. legislation, particularly food safety legislation? • Having examined and evaluated existing institutions, how can they be . How many of the institutions improved? set up to regulate aspects of the right to food are still in existence • Out of these functioning institutions, and functioning? which should the campaign target? Which are best placed to bring about . For example, legal researchers change? should analyse the existence and effectiveness of Pure Food • Which right to food issues should Courts. be prioritised? (e.g. food safety, nutrition, sustainability etc.) . Technical researchers should investigate how effective • What are the biggest challenges to organisations such as the the right to food in both the short Fisheries Research Institute or and long term? the Bangladesh Agricultural • How do broad, long term challenges Research Council are. such as climate change affect the right to food and what measures
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can we take to mitigate the effect of legal NGOs been inactive in using these challenges? existing legislation to further the right to food? How can we make • What monitoring mechanisms are ourselves part of the discussion? currently available to monitor the protection of the right to food? How • How can legal service and rights can they be improved? organisations take a more proactive role? How can they incorporate food • What monitoring mechanisms would rights into their work, including their the campaign like to see put in place? work on disability rights with DPOs, • What remedies are currently and on Adibashi rights, or Dalit available when the right to food is Rights? How can it be linked to their violated and how effective are they? work on Family Courts, providing information on SSNs to clients . For example, if an individual through legal aid offices? is not receiving their benefits under a SSN Programme, what • How can such groups incorporate remedies do they have? Where, the right to food and RTI into existing or with whom, do they lodge a action on rights and remedies and complaint? access to SSN Programmes? • What remedies should be available • Monitor the enforcement of and if the right to food is violated? For compliance with judgments already example, should individuals have given by the Supreme Court in past stronger remedies when their land public interest litigation, through rights are violated, when their SSN fact-finding and writing of biannual benefits are withheld or when they reports. are unable to access safe food? • How can rights groups monitor and • How else can the RTI Act be activated provide feedback on the functions of to secure the right to food? responsible ministries? . To improve beneficiary selection • Arrange workshops for- has been discussed as well . Critical analysis and as the broader issue of UP determination of the main accountability, but how else can focuses of the RTF&SS campaign. it be utilised? . Dissemination of papers/ • How can individuals be empowered documents related to RTF&SS to use the RTI Act themselves? campaign widely. . E.g. through training, awareness Recommendations for Government campaigns, etc. • Following public consultations, • What is the role of lawyers/ amend the Constitution to entrench paralegals/ NGOs in bringing RTI the right to food as a fundamental requests? right by including it in Chapter II of • Why have human rights NGOs and the Constitution.
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• After public consultations, for offences such as food promulgate a framework law to adulteration should be the same secure the right to food, consistent in all applicable legislation to with FAO guidelines. avoid confusion.
o This law should give a detailed • Review policies to ensure that they definition of the scope and are compatible with human rights content of the right to food, and the right to food, in particular set out obligations for state the FAO’s PANTHER principles - authorities and private actors, participation, accountability, non- establish essential institutional discrimination, transparency, human mechanisms and provide dignity, empowerment, and the rule the legal basis for subsidiary of law.206 legislation and other necessary measures to betaken by the o For example, ensure that Social relevant state authorities. It Safety Nets do not discriminate should also contain a non- on the basis of nationality or discrimination clause, provisions refugee status. for monitoring and also • Ensure that the National Food Policy remedies.205 is compatible with principles of good • Review existing legislation to ensure governance such as transparency its compatibility with the right to and accountability. food as defined in international law. • Review all institutional mechanisms for securing the right to food. o This review could be carried out by the BNHRC, in collaboration Ensure that they are fit for purpose with relevant NGOs and CSOs. and up to date with modern standards. Furthermore, ensure o The review should cover all that they comply with human rights legislation from all sectors, principles, particularly transparency, including agricultural legislation, accountability and participation. land legislation, environmental legislation, labour legislation, nutrition and health legislation, the Penal Code, etc.
o The review should conclude with a Plan of Action. • Consolidate all existing legislation on the right to food and ensure it is consistent and does not overlap.
o For example, the penalties 205 FAO, ‘A Guide to Legislating for the Right to Food’ 206 FAO, ‘Integrating the Right to Adequate Food in (2009)
71 Bangladesh Legal Aid and Services Trust (BLAST) BLAST is the leading non-governmental dedicated legal services organization in the country, and the only one that provides access to legal aid across the spectrum, from the frontlines of the formal justice system at the village court, to the highest court. Established in 1993, following a resolution of the Bangladesh Bar Council, it now involves over 300 staff working in 19 district offices, and legal clinics, and a2500+ network of pro bono lawyers. BLAST priorities support to women, men and children living in poverty or facing disadvantage or discrimination. It provides legal aid, advice and representation across a range of areas, including civil, criminal, family, labour and land law, as well as on constitutional rights and remedies, providing access to judicial remedies alongside alternative dispute resolution wherever appropriate. Alongside individual legal aid, BLAST undertakes strategic litigation, or public interest litigation, as a key part of its advocacy for law, policy and institutional reforms to ensure effective legal protection of rights.
Campaign for Right to Food and Social Security (RtF&SS) The RtF&SS campaign is a national network of concerned organizations and individuals committed to work towards establishing people's fundamental entitlements and realizing the right to food. Launched on World Food Day, 16 October, 2011, the network involves its members in - Campaigning and advocacy to ensure effective and non-discriminatory implementation, distribution and monitoring of social safety net programs - Advocacy to reform laws and policies to secure the right to food, particularly for marginalized communities, and to implement pro-poor laws and policies - Monitoring land reform measures seeking distribution of government land to landless people - Monitoring and promoting disaster-risk reduction and monitoring relief and rehabilitation operations after disasters.
Nagorik Uddyog (Citizen's Initiative) Since its establishment in 1995, Nagorik Uddyog has worked to increase access to justice and strengthen local governance in Bangladesh through raising public awareness about basic human rights and, building people's capacity to pursue and realize these rights. Nagorik Uddyog recognizes that effective democracy requires empowerment of poor, marginalized and disadvantaged women and men to participate in and contribute to all decision-making processes that affect their lives. It seeks to create and strengthen processes to enable people to set up institutions and mobilize to claim rights and justice. BLAST
Secretariat : Head Office : Nagorik Uddyog (Citizen's Initiative) 1/1 Pioneer Road, Kakrail House No. 8/14, Block-B Dhaka-1000, Bangladesh Lalmatia, Dhaka-1207 Telephone: +88 (02) 8391970-2 E-mail: [email protected] Fax: 88 (02) 8391973 Website: www.rtfss.org Email: [email protected] www.blast.org.bd
ISBN : 978 984 33 9225 1