Problems in implementation of right to water in Bangladesh

 Asma Begum

 Lecturer of Law Department

 BGC Trust University, Bangladesh

Water is universally treated as essential right to human condition. Because, this right is intrinsically linked to other fundamental human rights. As such, right to water is a right to the enjoyment of a variety of facilities and conditions that are inevitable for proper existence of human being. Therefore, the Bangladesh govt. must guarantee a satisfactory supply of water as a right for sustaining human existence. For this purpose, the govt. though adopted various initiatives; they are not free from various difficulties which are crucial to be solved by it in strong hand to ensure the development of human rights.

The write up is an attempt to examine the present condition of lacunas in different policy, strategy and enactments regarding water and the consequence thereof and to find out the solutions of these problems.

Problems in existing law to ensure right to water in Bangladesh:

Though the Bangladesh govt. has taken different measures for water management and water supply, they are full of various problems as a result of which different effects have been found to be occurred in Bangladesh. The lacunas contained in policy, strategy, legislation and consequences arising there from are depicted below:

There is no specific provision of right to water in Bangladesh constitution However, article 15 states that it shall be a fundamental responsibility of the state to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard  of living of the people, with a view to securing to its citizens a) the provision of the basic necessities of life including food, clothing, shelter, education and medical care.Broad interpretation of basic necessities of life may include water. But the provision is included in fundamental principles of state policy and as such is not judicially enforceable. The GOB National Policy for Safe Water Supply and Sanitation, 1998 has divided water supply policy broadly for rural and urban areas. The rural water policy highlights that communities shall be the focus for all water supply activities. For this purpose, the local govt. is under obligation of planning, implementation and maintenance of rural water supply projects by this policy. But, in practice, it is the Department of Public Health Engineering who implements most of the water projects. Consequently, although communities have been made focus on water policy, in practice consultation with communities take place as optional and not regularly. Besides, the policy has considered water as an economic good and has prescribed community ownership of water machines like hand, shallow and deep tube wells. Here, there is a contradiction in the policy . The policy matrix no. 10 of the GOB poverty reduction strategy deals with water resource development, and management. The strategic goals in this sector are: expand utilization of surface water, rationalize utilization of ground water, protect flood, improve drainage and reduce vulnerability, enhance access of the poor to water and common property resources, augment surface water retention, protect wetlands including the sundarbans, institutional development of water sector agencies and control erosion of major rivers to protect large and small towns. The matrix has elaborated actions taken and planned but is silent about water as a right. One of two responsibilities regarding water management and water supply of a Zila parishad under the Zila Parishad Act, 2000 is optional responsibility which can be performed by it on the instruction of the govt. Optional activities of the Zila parishad covered by 1st schedule of this Act have been divided into seven categories of which public works is one category including four tasks of which the second one is to ensure water supply, drainage, preservation of surface water reservoirs and preservation of rain water. But Zila parishad is under no legal obligation to perform its optional activities for fulfilling people’s right to get water. According to section 73(2) of Paurashava ordinance 1977, a Paurashava may and if  required by the prescribed authority shall, in the prescribed manner, frame and execute a water supply scheme for the construction and maintenance of such works for the provision, storage and distribution of water as may be necessary. Sub-section-3 states that where a piped water supply is provided, the Paurashava may supply water to private and public premises in such manner and on payment of such charges as the bylaws may provide.

In the above provision, it is seen that a) Paurashava do not need to consult with local communities in developing water supply schemes which is against right based approach. b) Supply piped water on commercial basis and imposed charge for that indicates water an economic good. But, it  is a social good as well.But, price of supplying piped water by Paurashavas can be decided commercially but in consultation with communities based on their needs, capacities and consensus.

 Besides, to undertake water supply projects by Paurashava with permission of department of public health engineering (DPHE) is another problem to meet demand for water supply from communities.

Under section 16(9) of the Gram Sarkar Act, 2003, to assist relevant authorities in implementing programmes for ensuring supply of pure drinking water and sanitation by Gram Sarkar indicates another weakness. Because there is no option of Gram Sarkar to take initiative on its own for ensuring supply of drinking. Besides, dependant on other local govt. bodies like union council or a government department of public health engineering to repair a tubewell or to build up a reservoir for preserving rain water by Gram Sarkar indicates another weakness. In addition to abovementioned laws, there are some other enactments such as Water supply and Sewerage authority Act, 1996, The Embankment and Drainage Act, 1952 and the Ground Water Management Ordinance, 1985 of which proper implementation cannot be ensured by govt. till now.

 

Owing to the above policy , strategy and legislation not being right based approach and Bangladesh Govt’s failure to adopt water safety plan on the recommendation of WHO to implement the principles as to right to water included in general comment no. 15 of ICESCR ,the following consequences has been raised:

Lack of good quality of water is another problem in Bangladesh. Water borne diseases like diarrhoea, dysentery, cholera etc. still constitute major health burden in Bangladesh. The health injury reports on children in 2005 reveals that 36,000 children under 5 years die in every year from diarrhoea. BBS and UNICEF has estimated that children under 5 suffer from 3-5 episodes of diarrhoea each year each of which lasts for 2-3 days and sometimes more than two weeks. Water scarcity is another problem in Bangladesh. Because WASA has a capacity to supply 1.27 billion liters per day against a demand of 1.60 billion litres of residents in the capital. Afterwards, the extent of water supply is not enough to cover drinking water of all people in Dhaka in Bangladesh. Because every human being needs at least 20 litres of clean water a day according to international demand. Bangladesh is facing the problem of arsenic poisoning in drinking water which causes degenerative heath problems and eventually liver failure leading to death. A report shows that between 77 and 95 million people are affected, including approximately 35 million children, in 61 out of 64 districts of Bangladesh. So, it is a complex problem.

 

Recommendations:

Despite the Bangladesh govt. having a constitutional and international legal obligation to ensure that all its citizens have access to safe drinking water; the present scenario indicates that the govt. failed to do so. However, to overcome the constraints, the govt. should observe the following recommendations:

Despite right to water not being judicially enforceable there is a strong constitutional commitment of the govt. to the welfare of Bangladesh people. The preamble of Bangladesh constitution states, “we the people of Bangladesh having solemnly resolved ….to secure to all its justice social, economic and political assuring the dignity of the individual ….” The constitution guarantees protection for a wide spectrum of human needs encompassing social, economic and political rights. So, the govt. should observe such commitment for supplying safe drinking water. Besides, to ensure right to water, like India, the govt. can amend the constitution for including a provision whereby the fundamental principles of state policy and fundamental rights will be treated as supplement and complement each other. As a result, the fundamental rights will not be an end in themselves but will be the means to an end, the end being specified in part II of our constitution. The constitutional activists should take public interest litigation before the HCD under in case of govt’s failure to ensure it. Because, water is essential to sustain life. That is, the other name of water is life. In the context, the HCD by interpretation of right to life enshrined in article 32 can order the govt. to ensure right to water. The govt. should ensure effective enforcement of existing policy, strategy and legislation. The govt. must increase the role of the local government for developing water supply schemes and projects. The govt. should enact appropriate legislation by observing the provisions included in ICESER whereby a satisfactory (adequate, safe and accessible) water supply must be available to all. Because, improving access to safe drinking water can result in tangible benefits of health. The govt. should increase investment for ensuring safe drinking water. Along with it, a comprehensive policy to evaluate the outcome of investment in water sector should be adopted. What measures (such as a national survey, testing tubewells and so on) are required for sustainable arsenic mitigation in drinking water according to the existing situation should be instantly adopted by the Bangladesh govt. Top level coordination and research must be encouraged to understand the whole problem. The govt. should take action to raise people’s awareness and vigilance about arsenic contamination of ground water and water related diseases.

 

On the above discussion, it can be said that water problem is a national problem today. So, taking massive actions against this problem are a must to sustain human existence. Therefore, it is expected that for the public interest the Bangladesh govt. should comply with above stated suggestions to ensure safe drinking water.

 

                                                                                                                                           




By: Asma Begum