Where Is My Right To Health?
As members of the human society, we are conscious about our health and the health of those we care about. We consider health to be an essential life asset because ill health can prevent us from participating in community activities and attending to our familial responsibilities. Internationally, health is considered a human right irrespective of age, gender, culture or religion and it has been made mandatory for all states to recognize the right to health as a fundamental right and ensure healthy standards of living for citizens.
Fundamental rights are highly protected rights which are meant to be guaranteed by every state to persons living within that state. Mostly, these rights have constitutional protection and higher courts may possess exclusive jurisdiction to take sou moto action against the infringement of such rights.
The Constitution of World Health Organization defines health in the following words:
“…state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”
Many conventions and international documents on human rights also contain the right to health in one way or another.
Article 25 of the Universal Declaration of Human Rights (UDHR) 1948 states the following:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and his family…”
The International Covenant on Economic, Social and Cultural Rights (ICESCR) incorporates the definition of health in Article 12(1) and compels state parties to recognize the right to health. In addition, the Convention on the Rights of the Child (CRC) and the African Charter on Human and Peoples’ Rights also recognize the same. The Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) oblige member states to take necessary actions for the elimination of discrimination in the enjoyment of the right to public health and medical care.
Many states under their international obligations have recognized the right to health. The World Health Organization conducted a survey in Southeast Asia to examine whether the right to health was an inclusive concept in the Constitutions of member states. According to the survey, the right to health is not an unknown concept in the Constitutions of Southeast Asian states. The right to health has been guaranteed under the Constitutions of Indonesia, Nepal, Korea, Thailand, Timor-Leste and Maldives in their local language. Timor-Leste, a small country occupying half the island of Timor with a population of approximately 1.3 million, is the only state in the region to use the phrase “right to health” in its Constitution. The Constitutions of other Asian states like Bhutan, India, Myanmar, Sri Lanka and Bangladesh compel their governments through state policy to adopt adequate measures for providing healthcare to citizens.
Pakistan on the other hand, being a member of the WHO and signatory to all the above-mentioned covenants and declarations, has failed to specifically recognize the right to health. Fundamental rights are enshrined in Chapter 1 of the Constitution of Islamic Republic of Pakistan. Every person has certain rights and entitlements to be enjoyed in accordance with the law, such as the right to life and liberty, freedom of movement, freedom of speech, freedom of trade, etc. A few more rights pertaining to the provinces have also been incorporated after the Eighteenth Amendment to the Constitution, including the right to education, fair trial and information.
Unfortunately, the right to health is nowhere to be found in the Constitution of Pakistan. Article 38 (under the heading of Principles of Policy) does talk about the promotion of social and economic well-being of the people in the following words:
“… provide basic necessities of life, such as food, clothing, housing and medical relief, for all such citizens irrespective of sex, caste, creed or race.”
However, these are merely guidelines for the organs and authorities of the state to carry out their business and cannot be called into question before a court of law, as has been held in Government of Sindh vs Farad Naseem in the following words:
“…there can be no cavil to the proposition that the principle of policy contained in the constitution cannot be enforced through courts… the courts are not concerned at all with the principles of policy contained in Part II, chapter 2 of the constitution.”
The system of public health services in Pakistan is a trichotomy comprising Basic Health Units and Rural Health Centers as primary care providers and Tehsil Headquarter Hospitals (THQs) and District Headquarter Hospitals (DHQs) as secondary care service providers. The number of doctors and nurses has been gradually increasing over the past few years, yet public hospitals lack modern medical technologies, causing the public to suffer. Consequently, people prefer to visit private healthcare hospitals.
Even if the state fails to comply with the already indirect provisions of the Constitution, there will be no liability as such on its part. The question then is, where is my right to health? What if I do not get satisfactory medical treatment from a public hospital? What if I am not able to bear the expenses of treatment? Will the state be held responsible in any scenario?
At a minimum, the right to health includes measures to protect the health of the population and coverage of diagnosis and treatment for those unable to pay. The right to health and the right to healthcare have different meanings in a rights-based approach. The right to health not only includes the absence of disease but also a state of physical and mental well-being. Many states have incorporated this right within their Constitutions through amendments. It is time for Pakistan to do the same and provide a constitutional cover to this right.
Health is a provincial subject according to our Constitution but traditionally both federal and provincial governments have been working in this sector. The federal government allocated PKR 13 billion to the health sector in 2019’s Finance Budget which was less than one percent of whole budget. The government should give priority to the health sector and address the issue of quality of health facilities. The inadequate and unsatisfactory structure of public health services has invited the private sector to fill up the space. To have a purposeful result, focus should be on international best practices.
 Article 24(1) CRC, Article 16 ACHPR
 Article 5(e) CERD, Article 11(1) CEDAW
 Section 57 (Health), Constitution of the Democratic Republic of East Timor
 Government of Sindh vs. Farad Naseem and others, 2002 P Cr. L J 1765
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.