The Right to Health Under Threat: Legal Challenges of Weak Public Health Systems in Developing Countries

Introduction

The right to health is one of the most fundamental human rights because it is intimately linked to human life, dignity, equality and social welfare. International law recognizes a right of everyone to the enjoyment of the best possible quality of bodily and mental health, but not a guaranteed right to be healthy [1][2][3]. Health is explicitly recognized as an issue of human dignity and state duty in Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights [2][3].

However, in practice this right is lacking in many developing countries. This dilemma is well illustrated by Bangladesh. The Constitution of Bangladesh recognizes healthcare and public health in Articles 15 and 18 although these articles are placed under the Fundamental Principles of State Policy and are not immediately enforceable in court [16][17]. This means that the right to health is often a policy commitment, not a legal entitlement.

This article discusses how poor public health systems jeopardize the right to health in Bangladesh and other developing nations. It claims that the gap between the legal recognition of the right to health and actual access to healthcare is due to the lack of legal justiciability, lack of resources, corruption, poor governance and lack of equal access. Thus, to make the right to health a real and enforceable one, constitutional, judicial, financial and governance reforms are needed.

1. Conceptual Meaning and the International Legal Regime of the Right to Health

1.1.1 Conceptual Meaning of the Right to Health

International human rights legislation recognizes access to health as a basic human right. It does not mean a “right to be healthy”, but a right of every individual to obtain the highest possible standard of physical and mental health in accordance with the available resources and the ability of the state. According to the Constitution of the World Health Organization, health is defined as a condition of complete bodily, mental and social well-being and affirms the right to the highest possible standard of health [1]. Likewise, the Universal Declaration of Human Rights’ article 25 associates health with a standard of living appropriate for health including medical care and necessary social services [2].

This right is further underpinned on a legal basis by Article 12 of the International Covenant on Economic, Social and Cultural Rights, which specifies that nations should take essential steps to ensure the safeguarding and promotion of health rights [3]. The Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination provide additional safeguards to ensure that vulnerable groups have equal access to healthcare [4][5][6].

1.2 WHO Framework and State Responsibilities

“The WHO initiatives have had a huge impact on global health governance. The Alma-Ata Declaration [7] defined primary healthcare as the main strategy to achieve health for all and this commitment was reconfirmed with an emphasis on Universal Health Coverage in the Astana Declaration [8]. Sustainable Development Goal 3 also focuses on ensuring healthy lives and promoting the well-being of all through accessible healthcare services [9]. The International Health Regulations also require states to build capacity for public-health preparedness and response [10].

The right to health puts three obligations on states: to respect, safeguard and fulfil health rights, according to General Comment No. 14 [11]. States are also bound to ensure health care through the AAAQ framework: availability, accessibility, acceptability and quality [11]. These commitments go beyond medical treatment and include sanitation, safe drinking water, nourishment, vital medicines and suitable living conditions.

1.3 Fragile health systems and gaps in implementation

While health rights are widely recognized internationally, there is a huge gap between legislative promises and actual execution. Weak health care infrastructure, lack of finance, shortage of health care experts and unequal distribution of services continue to limit health care access in many developing countries [12,13].

This difficulty is revealed by comparative judicial approaches. In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Indian Supreme Court extended the right to life to cover emergency medical treatment and placed positive obligations on the state [14]. By contrast, in Soobramoney v Minister of Health, although the right to health care was acknowledged, the judgment focused on the resource constraints and the policy discretion of the State [15].

These cases indicate that health rights are formally recognized, yet inadequate public health systems typically cause an implementation gap. This gap is one of the major legal difficulties that developing countries face and the main theme of this article.

2. Constitutional and Legal Framework on Health Rights in Bangladesh

The constitutional architecture of Bangladesh acknowledges health care as a major state responsibility through several constitutional clauses. The Constitution classifies rights into the justiciable Fundamental Rights under Part III and the non-justiciable Fundamental Principles of State Policy under Part II [16]. Part II contains most of the health care-related provisions, and so they are not directly enforceable.

Article 15 lays out the obligation of the State to provide for the basic needs like medical care and so on. Article 18 lists improvement of public health and nutrition as the main duties of the State. And Article 16 also demands the State to address the urban-rural gaps by measures such as enhancement of public health [17]. These sections together represent constitutional commitment towards healthcare and social welfare.

However, the Fundamental Principles of State Policy are expressly said to be non-justiciable in Article 8(2) [16]. As a result, residents are not able to bring legal proceedings only on the ground of inadequate health service. This constitutional constraint underscores the greater point of this article: many developing countries legally acknowledge health rights, but fail to translate them into a practical reality.

But the judiciary of Bangladesh has developed indirect measures to safeguard health related rights. In Dr. Mohiuddin Farooque v. Bangladesh, the Appellate Division expanded the scope of locus standi under Article 102 and permitted public interest litigation on concerns concerning collective public welfare [18]. Although the case was an environmental issue, it established an important procedural precedent for future public health and healthcare-related claims.

Similarly, BLAST v. Bangladesh advocated broad and purposive constitutional interpretation and reliance on international human rights norms [19]. Although there is no clear link to health care, the rationale shows the willingness of the judiciary to interpret the constitutional safeguards expansively, perhaps allowing Article 32, the right to life and personal liberty, to act as a legal bridge for health rights.

This is further supported by the case of Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh where the Appellate Division reiterated that the vital Principles of State Policy are nonetheless vital for governance despite their being non-justiciable [20]. Thus, Articles 15 and 18 may continue to inform constitutional interpretation and strengthen the future acknowledgment of health rights.

Bangladesh’s constitutional structure, therefore, presents a serious paradox: health rights are recognized as constitutional requirements, but limited enforceability and institutional limitations create a gap between legal promise and practical fulfillment. This is emblematic of a larger problem in low- and middle-income nations where health rights are typically legally protected but poorly fulfilled.

3. Challenges of Poor Public Health System of Developing Countries

One of the key reasons why the right to health remains difficult to enjoy in underdeveloped nations is weak public health systems. The right to health is recognised in international law and is reflected in Bangladesh’s constitutional principles, but due to poor infrastructure, paucity of resources, corruption and unequal access, many people still cannot get proper treatment.

Bangladesh’s health sector has made considerable progress, but it still faces serious issues. Public hospitals are often short of doctors, nurses, medicines, ambulances, diagnostic gear and qualified health professionals. One analysis showed that just 50% of the major medical equipment delivered under the Health and Population Sector Program was in effective use, 17% was operational but not in use, 16% was not installed and 17% was out of order [21]. This suggests that the problem is not simply lack of resources but also inadequate management.

Another big concern is financial inequality. Bangladesh invests a modest fraction of GDP on health and out of pocket cost remains quite high [22]. Thus, the impoverished often cannot afford private hospitals or diagnostic institutes. In the rural areas, public health services are less accessible. As a result, rural people, women, slum dwellers and individuals living in haor and char areas suffer more [22].

The problem is also present in other emerging countries. In South Asia, coverage of maternal and neonatal health services has improved, but quality of care is poor [23]. Health programming are also plagued by administrative weakness, inadequate monitoring, paucity of manpower and out-of-pocket charges in India [24]. In South Africa, A research indicated that there were substantial public health concerns such as service fragmentation in 42 of 44 reports, staff shortage in 39 reports and financial problems in 39 reports [25]. Likewise, South Asian nations are dealing with the burden of population, unplanned urbanization, communicable diseases and rising non-communicable diseases together [26].

Weak public health systems are therefore not merely policy failures, but also legal obstacles to the right to health. Without enough finance, transparency, anti-corruption measures and equal rural-urban access, the constitutional and international promise of health rights would remain unfulfilled.

4. Legal and Policy Gaps: Recommendations for Reform

4.1 Constitutional Reform: Judicial Enforcement of the Right to Health

In Bangladesh, the major health-related tasks are enshrined in the Fundamental Principles of State Policy, specifically in Articles 15 and 18. Citizens cannot simply claim healthcare as a basic right because these concepts are not directly enforceable in court. Hence Bangladesh should amend the Constitution by either transferring the right to health from Part II to Part III or inserting a clear and enforceable right to health.

Kenya is a case in point. Article 43 of the Constitution of Kenya provides every person the right to the best possible quality of health, which includes the right to health care and reproductive health care. [27] No person shall be denied emergency medical treatment. South Africa is likewise a good example. Its Constitution recognises access to healthcare services, food, water and social security under Section 27 and forbids refusal of emergency medical treatment [28]. Bangladesh can learn from them and develop an enforceable constitutional right to health.

The minimum basic duty should be specified as well. This means that the State must guarantee, with immediate effect, emergency treatment, primary healthcare, vital medicines, maternity and child healthcare, safe water, sanitation and basic public health protection. These should not be only future policy ambitions.

4.2 Judicial activism and PIL as an interim instrument

In the absence of constitutional revision, health rights can be protected under Article 32 of the Bangladesh Constitution, which protects a right to life and personal liberty. The right to life should be broadly defined to encompass access to basic health care, emergency treatment, drugs and safe public-health conditions.

Article 102 should also be used more firmly for public interest litigation.  The judgment in Dr. Mohiuddin Farooque v Bangladesh has already widened the scope of PIL for issues relating to public welfare [18]. Therefore, health-related PIL may be utilized in cases of hospital malpractice, medicines shortage, corruption, denial of emergency treatment and uneven access to public hospitals. Legal aid and pro bono help must also be reinforced so that poor people can bring health rights claims.

4.3 Fiscal and structural reforms

Legal change cannot be successful without adequate resources. The health sector in Bangladesh is still under-funded and recent reports suggest that people still pay a significant portion of treatment costs out of their own pockets [29]. Therefore, Bangladesh should enhance public health allocation gradually, minimize out of pocket expenditures and integrate health spending with the actual requirements of Universal Health Coverage.

Decentralize health care governance as well. Local government bodies, Upazila Health Complexes, district hospitals and community clinics should be given increased authority, funding and monitoring ability. Bangladesh should develop a clear plan for Universal Health Coverage associated with SDG Target 3.8, which needs access to excellent essential health care services and financial protection for all people [30].

4.4 Accountability and Anti -Corruption

Corruption is a key reason why health rights fail in practice. It undermines trust, wastes public money and hurts the poor who depend on public hospitals the most. Research reveals that corruption undermines health systems, violates human rights and causes challenges to Universal Health Coverage [31]. Bangladesh therefore needs an impartial health ombudsman with powers to hear complaints, examine hospitals, offer remedies and monitor service quality.

The government should disclose statistics on hospital performance, medicine stocks, procurement prices, doctor attendance, records of complaints and usage of funds. Bribery, pricing manipulation and misuse of resources can be reduced by transparency in procurement and hospital financing [32]. Whistleblower protection should be given also for health personnel and citizens that disclose corruption.

4.5 Lessons and Recommendations from International Experience

Bangladesh should take lessons from overseas models but tailor them to local realities. The UK NHS model illustrates the necessity of access to healthcare based on rights, equity and accountability [33]. Moreover, Nordic health systems have shown that substantial public finance and universal access can reduce inequality [34]. But the most practical lesson for underdeveloped countries is to first boost primary healthcare.

The Alma-Ata Declaration defined primary healthcare as the basis of “Health for All” [7]. This promise was repeated in the Astana Declaration, and primary healthcare was linked with the Universal Health Coverage [8]. The WHO Framework on Integrated People-Centered Health Services also proposes a change from hospital-centered systems to people-centered, coordinated and community-based health care [35].

Therefore, in Bangladesh, health should be viewed as a right that can be legally enforced rather than a policy aim. Constitutional change, PIL, health financing, decentralization, anti-corruption measures and strengthening of primary healthcare must go hand in hand to guarantee the right to health.

Conclusion

The right to health is universally recognized as a fundamental human right under WHO Constitution, UDHR, ICESCR Article 12 and General Comment No. 14 [1][2][3][11]. However, in developing nations such as Bangladesh, this right is typically weakly implemented in practice as legal recognition is not supported by effective enforcement. In Bangladesh, health is recognised in Articles 15 and 18, although these are non-justiciable principles and cannot be enforced directly in the courts [16][17]. At the same time, bad infrastructure, lack of doctors and drugs, insufficient budget, corruption and weak governance hamper actual access to healthcare [21][22][31]. Comparative examples from Kenya and South Africa suggest that a stated and enforceable constitutional right to health can enhance accountability [27][28]. Therefore, health must be seen not just as a policy aim but as a legally enforceable right in Bangladesh and similar states through constitutional reform, judicial activism, tougher laws, adequate funding and transparent governance.

Reference(S):

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[16] Constitution of the People’s Republic of Bangladesh, arts 8(2), 32, 44 and 102.

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[28] Constitution of the Republic of South Africa, 1996, s 27, Health Care, Food, Water and Social Security.

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