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Abstract

A significant number of qualitative, and quantitative research has connected the constitutional incorporation of a right to health with improvement of public health. However, what remains to be seen is whether the constitutional incorporation of the right to health has any impact on a jurisdiction’s handling of a public health emergency, such as an infectious disease outbreak. This thesis, studying the COVID-19 pandemic as an example, investigates whether the constitutional incorporation of a right to health had any influence on the handling of such a public health emergency. It analyzes the legal & policy level measures addressing COVID-19 of three jurisdictions with diverse recognition of the right to health, a) Bangladesh (Non-justiciable constitutional right to health), b) Ireland (No constitutional right to health), and c) South Africa (Justiciable constitutional right to health). Methodologically, this thesis employs a combination of doctrinal, qualitative, and comparative methods to a) outline state party obligations concerning the right to health, b) outline the nature, scope, and content of the right to health of Bangladesh, Ireland, and South Africa, and c) compare the legal and policy level measures undertaken by the aforementioned three countries addressing COVID-19 pandemic to examine whether the constitutional incorporation of a right to health had any impact on their public health emergency response. This thesis finds that the constitutional incorporation of a right to health translates into an only partial realization of said right. Furthermore, the constitutional entrenchment of the right to health does not ensure an effective response mechanism to public health emergencies such as an infectious disease outbreak like the COVID-19 pandemic. The legal & policy level measures adopted by the three jurisdictions reveal a piecemeal approach, and lack of comprehensive framework including early pathogenic spread detection. This thesis calls for the constitutional incorporation of the right to health to be supplemented by appropriate legal, policy, and infrastructural development that combines scientific evidence with legal standards.