On the right to emergency healthcare

A comparative constitutional analysis shows a growing trend of recognising ‘Emergency Healthcare Service’ as a fundamental right. In several jurisdictions, constitutions explicitly guarantee the right to emergency medical care, while in other places, broader ‘health or life-related’ rights are relied upon, providing indirect protection. For instance, article 27(3) of South African Constitution states that no one may be refused emergency medical treatment. Later, in the case Soobramoney v Minister of Health (1998), it was clarified that the constitutional guarantee of emergency healthcare imposes an immediate obligation. However, where the circumstances do not call for emergency, the state is allowed more deference based on its resource constraints, thereby reflecting the principle of progressive realisation. A similar approach has been taken in countries like Kenya, Zimbabwe, Nepal, Egypt etc.

On the other hand, in Bangladesh, the Fundamental Principles of State Policy, particularly articles 15 and 18, directs the state to improve public health and medical service. However, the provisions cannot be judicially enforced directly due to article 8(2). The Supreme Court of Bangladesh, through several cases created room for interpreting emergency healthcare as part of, among others, the right to life. However, in my opinion, the absence of an explicit and distinct constitutional provision arguably weakens enforceability and leaves state accountability largely dependent on judicial interpretation.

It is the stark reality that the healthcare system of Bangladesh faces multiple structural and operational challenges, such as overcrowded government hospitals, demands for informal payments, discrimination based on socioeconomic status, etc. Without explicit constitutional status, emergency healthcare remains vulnerable to administrative inefficiency, corruption, discrimination, and denial of care based on socioeconomic status. Contrarily, reliance solely on judicially interpreted rights risks inconsistency, unpredictability, and excessive dependence on judicial discretion.

Overall, the comparative experience reflects that explicit constitutional recognition is best understood as enabling rather than a determinative factor. While such recognition does not guarantee judicial activism, it performs an important normative function by lowering doctrinal barriers to enforcement, clarifying the minimum content of state obligations, and shifting the justificatory burden onto the State. These observations highlight the value of explicitly incorporating emergency healthcare in the constitutional framework, as contemplated in the recent Constitution Reform Proposals for Bangladesh.

The Supreme Court of Bangladesh, through several cases created room for interpreting emergency healthcare as part of, among others, the right to life. However, in my opinion, the absence of an explicit and distinct constitutional provision arguably weakens enforceability and leaves state accountability largely dependent on judicial interpretation.

The Constitution Reform Commission has recommended expanding the scope of fundamental rights by unifying the civil, political, economic, social and cultural rights into a single charter of ‘Fundamental Rights and Freedom’ that would be enforceable in courts. Within this expanded charter, the commission proposes inclusion of the right to emergency healthcare explicitly, alongside other socioeconomic rights. It also emphasises that rights that require significant resources and time for realisation, such as health, should be implemented progressively based on resource availability, thereby balancing enforceability with practical constraints.

To conclude, the COVID-19 pandemic and the other public health emergencies have consistently exposed our systemic limitations in the emergency healthcare system, particularly the absence of an explicit constitutional guarantee to emergency healthcare services. It is high time we rethink and reform the current constitutional status of emergency healthcare.

Faria Mehjabin Medha
Student of Law 
University of Dhaka.