THE Human Rights Commission of Pakistan recently convened a national roundtable on enshrining the right to health in the Constitution — a great initiative and a step in the right direction. Most participants saw this as a constitutional gap and agreed to address this effectively.

There were also a few voices of caution against creating a constitutional entitlement and then not being able to underwrite it with the resources required to translate the right into needed healthcare.

A senior legal expert also warned about the preconditions, complexity and procedural length of a constitutional amendment. There is also a, somewhat rightful, cynicism that has engulfed us in Pakistan — nothing is possible here; ‘then-what’ attitude; and what is the state of other rights provided in the Constitution. These are understandable cautionary flags. Nevertheless!

In modern republics, it is important to have a firm and explicit social contract between people and the state. Our 1973 Constitution begins beautifully: “[we, the people of Pakistan] … do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.” So, it is we, the people, who have already given ourselves 23 rights (listed in articles nine to 28) provided in the chapter on “Fundamental Rights” in Part II of the Constitution.

A right is enforceable only after it is established as a fundamental right in the Constitution. Also, any other existing law that is inconsistent with the right conferred has to be voided but also, “The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.”

The time has come to start a national campaign to include the right to health in the Constitution.

From a jurisprudential perspective, it is understood that the right to health is associated with the right to life (Article 9) and the right to dignity (Article 14), as there is no life and dignity if human health is not protected.

There is a considerable body of supportive constitutional jurisprudence available in Pakistan in this regard. One can argue, hence, that implicitly the right to health is available. However, an explicit right is not available. From effective enforcement perspective, an unambiguous and independent fundamental right to health in the Constitution is critical.

At present, some piecemeal mention of various aspects of healthcare are provided in chapter 2 of Part II of the Constitution, ie Principles of Policy. These are principles, not enforceable but have a guidance value. Article 37 is titled ‘Promotion of social justice and eradication of social evils’.

Under this article, section e reads: “The State shall … make provisions for securing just and humane conditions of work … and for maternity benefits for women in employment”. Article 38, section d, reads: “The state shall … provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, … on account of infirmity, sickness and unemployment.” Article 24 (3a) and Article 151(4) on protection of property rights and inter-provincial trade, respectively, also mention “public health” in a very indirect and roundabout away.

These cursory and oblique references to medical relief and public health do not constitute a right to health. The concept of healthcare is much broader and multidimensional and it goes far beyond the narrow provision of medical relief to sick citizens.

Founded in 1948, the constitution of WHO defined health in physical, mental and social well-being terms and also established it as a fundamental human right without any discrimination of race, religion, political belief, economic or social condition.

It was also considered fundamental to peace and security. Unequal development in different countries in the promotion of health and control of disease, especially communicable disease, was considered a common danger, as became profoundly evident during the recent Covid-19 pandemic. And, governments were considered responsible for the health of their peoples. Signing this comprehensive syntax of health as members of WHO, one after another, member states started sanctifying the right to health in national constitutions and laws.

Until January 2020, according to one analysis, 74 per cent of national constitutions explicitly protect some aspect of the right to health for all citizens. Pakistan has been a member of WHO from the beginning but it has not included right to health as a fundamental right in any of its constitutions, ie the constitutions of 1956, 1962 and 1973.

The International Covenant on Economic, Social and Cultural Rights was adopted in 1966 and Pakistan ratified it in 2008. ICESCR borrowed the language from the WHO constitution in its Article 12 which recognizes the right of citizens to enjoy the highest attainable standard of physical and mental health. In 2000, the Committee on Economic, Social and Cultural Rights adopted and issued a General Comment 14 on Article 12 of the ICESCR and elaborated on its scope in great detail. General Comment 14 must be an essential reading by discussants on the right to health, in any setting. The comment clearly explains that the state parties are obliged to protect, respect and fulfil the right to health.

As a dualist state, Pakistan has to translate its international legal obligations into national law; only then do these obligations become enforceable.

Given the health crises in the country (read my article titled ‘Dubious distinctions’ published on these pages on Jan 13, 2023) and the chronic state neglect in this regard, the time has come to start a national campaign on the right to health as a constitutional right.

“The state shall provide free and compulsory education to all children…”. The Constitution of Pakistan was amended to include this right to education as a fundamental right in 2010 through the 18th Amendment. Why not the right to health?

Sooner or later Pakistan will be going to general elections. All political parties should be lobbied to include this commitment in their manifestos, and once the newly elected government takes over, a constitutional amendment should be made with multipartisan unanimity for establishing the right to health for the people of Pakistan as their constitutional entitlement.

The writer is a former SAPM on health, professor of health systems at Shifa Tameer-i-Millat University and WHO adviser on UHC.

zedefar@gmail.com

Published in Dawn, July 14th, 2023