Economic and social rights in Sri Lanka

 Economic and social rights in Sri Lanka

Introduction

Economic and social rights are not rights in the same way civil and political rights are.  They should influence policy but are not legally enforceable rights and hence cannot lay a claim to constitutional recognition.   Social and economic matters are best dealt with by the legislature and through democratic contestation.  It would violate the separation of powers doctrine should the judiciary be given the power to enforce them and determine governmental priorities. Including economic and social rights in the Constitution gives an unelected and unaccountable group of persons the power to adjudicate claims which are best left to the legislature and the executive.   Judges have no expertise to decide on economic and social issues.   

Evaluation of Socio Economic Rights in Sri Lanka

The most fundamental critique of the inclusion of social and economic rights in constitutions is the argument that they, being positive rights, are not rights at all and should not be recognized by the state.  According to this view, a negative right is a right to be free from government, while a positive right is a right to compel provision of a government service.   

The inclusion of judicially enforceable economic and social rights in a proposed constitution for Sri Lanka has very little to do with global trends although those trends help make the case. As it has been pointed out Sri Lanka, perhaps along with the state of Kerala, has been unique in the region in providing universal access to education and to healthcare since the early 1940s. 

Sri Lanka’s welfare policies of the early 20th century were accompanied by policies for social security and legislation to protect rights of employees.  It is perhaps in relation to the right to land and the right to housing that Sri Lanka has not developed significant national policy and/or legislation. Given that Sri Lanka has already made policy commitments to ensuring economic and social rights and implemented those policies for more than six decades, the judicial enforcement of those guarantees becomes a logical next step.  There are two reasons. 

One is that, even under the current constitution, these welfare policies are and can be enforced by the judiciary through the writ jurisdiction and the fundamental rights jurisdiction where there has been a violation of due process. Due process is used loosely here to denote administrative wrongs such as the failure to respect rules of natural justice and the arbitrary use of administrative discretion. Secondly, in the Sri Lankan context judicial enforcement, particularly in relation to education and health, does not amount to judicial determination of resource allocation. Considerable amounts of resources are already being allocated by the state towards these commitments. Judicial enforcement however will be a critical safeguard where the state attempts to go back on its commitments or is negligent in the actual provision of these services, as it is in the case of education services in Sri Lanka. 

 According to the right to be provided with assistance compels others the taxpayers from whom the government takes the needed funds to provide that service.   Roger pilon argues that this compulsion conflicts with the individual right to freedom that is the right to be free from compulsion and that rights that can exist in conflict are logically incoherent and therefore cannot be rights.   However supporters of social and economic rights have responded by arguing that rights cannot be easily divided into categories. 

They say that rights that are widely seen as negative also require government action for example the right to life requires the state to spend resources to protect its citizens from threats to their lives and the right to property requires the state to enforce laws against trespassing.   Thus such compulsion  of private citizens is not a unique property of so-called negative rights. Conversely, social rights can sometimes be negative. Frank Michelman offers the example of a court protecting the right to housing by striking down laws that artificially inflate the price, or reduce the availability, of housing. 

Another critique of economic and social rights is that they interfere with core democratic processes. Human Rights Watch, argues that the distribution of resources is a central political issue within any society, and should, therefore, be subject to democratic contestation.  The same problems do not arise by constitutionalizing civil and political rights because they are settled ethical questions that should not be subject to debate no government should be allowed to torture, for example, and there is no question that the legality of torture should not be open to political compromise. 

Socio Economic Rights as justicible rights in new constitution of Sri Lanka

Human Rights Commission of Sri Lanka recognizes the imperative need to address the following Concluding Observation of Convention on economic social and cultural rights. The Committee calls upon the State party to ensure that the Covenant enjoys full legal effects in the domestic legal order and prevails over domestic legislation in case of conflict.  It also urges the State party to bring its domestic legislation in conformity with the rights contained in the Covenant. The Committee calls upon the State party to improve human rights training programmers in such a way as to ensure better knowledge, awareness and application of the Covenant and other international human rights instruments, in particular among the judiciary, law enforcement officials and other actors responsible for the implementation of the Covenant.

The Need to incorporate Economic, Social and Cultural Rights in the Future Constitution of Sri Lanka.The Human Rights Commission of Sri Lanka calls on HE the President to give leadership in calling for, and the  Prime Minister and all members of the Constitutional Assembly to ensure, the incorporation of economic, social and cultural rights in the future constitutional chapter on rights as fully protected rights.  The HRCSL is deeply concerned by moves by some to prevent the inclusion of such rights in violation of the principle that human rights are all inter-connected and cannot be divided. 

The constitution making process must necessarily recognize the views articulated by the public in the public consultations process  demanding the constitutional protection of rights such as the right to education, an adequate standard of health, housing and fair conditions of labour in the future Constitution. Failure to do so is also a violation of legal obligations undertaken by Sri Lanka, particularly under the international Covenant on Economic, Social and Cultural Rights.  Sri Lanka's improving human rights record will be sullied by such a failure and would seriously undermine public confidence in the future Constitution. 

The HRCSL is deeply concerned by attempts made by some quarters closely associated with the current constitution making process to prevent the inclusion of economic, social and cultural rights (ESC rights), such as the right to education and an adequate standard of health, from the constitutional Bill of Rights as full-fledged rights for which judicial remedies are available. It has been argued that only civil and political rights should be guaranteed as full rights. The HRCSL the primary institution charged with the protection and promotion of human rights in the country rejects this artificial division of human rights. It calls on the Constitutional Assembly to ensure that the people's rights are fully guaranteed in the future Constitution. 

Human rights are recognized in order for people to live in dignity realizing their full potential. As much as all aspects of human life are interconnected so also are human rights. lt would be futile to divide rights and selectively protect only some of them. Today, the idea of indivisibility of rights is a firmly established principle recognized by the community of nations.  The Vienna Declaration and Program of Action adopted by consensus by 171 States participating in the World Conference on Human Rights held in Vienna in June 1993 declares that  All human rights are universal, indivisible and interdependent and interrelated. 

The unique feature of the current constitution making process in Sri Lanka is the importance attached to public consultations. Such a process was missing in the making of the first two republican constitutions. The basis of constitution making must be the will of the people in whom sovereignty lies. 

According to the detailed report of the Public Representations Committee on Constitutional Reform public representations had strongly demanded the strengthening of the existing constitutional chapter on rights by including rights such as the right to education, an adequate standard of health, housing and just conditions of work.  

The need to secure social justice in a post-war society cannot be emphasized more. It is the glue that could hold a fractured society together by building trust. People need to believe that the State is empathetic to their critical needs such as housing, food security, livelihoods, schooling for children and healthcare. Experiences in post-conflict societies everywhere, more recently in countries such as South Africa, Kenya, Nepal and Colombia, have proved that a constitutional commitment to social justice is needed to bring about political stability and instill credibility in governance.It is significant that recent public representations have referred to Sri Lanka's international human rights obligations in articulating their demands.   States that have ratified the ICESCR are under an obligation to realize the rights through 'progressive realization utilizing the maximum of available resources.  The State has to demonstrate that available resources are used maximally to realize ESC rights of the people.

 The State must ensure equal access to services. The State must ensure that the qualitative nature of services is commensurate with available resources; the economic development model of the State is irrelevant for those purposes. What is important is that the State discharges its obligations and demonstrates results.

The ICESCR obligates Sri Lanka to provide remedies, including judicial remedies, for violation of Economic Social.  The UN Committee on Economic, Social and Cultural Rights, which supervises the implementation of ICESCR, has declared that it is no longer possible to deny remedies, including judicial remedies in regard to Socio Economic Rights. 

Socio Economic rights in other jurisdictions

South Africa

  The constitutional Court of south Africa found that the language contained in Section 27 of the South African Constitution  requiring that the state take reasonable legislative and other measures, within its available resources  to realize the right to health, allowed the judiciary to determine whether the state’s refusal to provide dialysis to everyone in need of it was, in light of resource constraints, reasonable.  Mirja Trilsch CJ argues that this allowance for reasonable realization is fully consistent with the ICESCR, and that the drafters of the South African Constitution, in fact, clearly drew inspiration from the Convention. 

The language of the PRC’s proposal also seems to allow courts to employ a reasonableness test. The right to enjoy “the highest attainable standards of health care  leaves unclear the question of what standard is attainable, which would allow Sri Lankan courts to balance the right to health against the resources available to state health care providers.  The final constitutional language framing economic and social rights will determine the degree of freedom that courts will have in finding this balance.     

India 

The Indian Supreme Court is notable for experimenting with structural remedies to rights violations. In People's Union for Civil Liberties v. Union of India & Others, an NGO challenged the Indian government’s grain distribution policies, arguing that they violated the right to be free from hunger.  To protect the farming industry the government was refusing to distribute grain reserves despite famine conditions existing in parts of the country. The Indian Supreme Court held in favor of the NGO, and then took the additional step of establishing its oversight of grain distribution. The Court ordered the creation of a series of distribution programs to ensure that the grain reached poor families.  

The Arguments against Socio Economic Rights

Constitutionalizing economic and social rights does raise several questions. The following is a summary of some of the objections against economic and social rights. Economic and social rights are ambiguous and cannot give rise to concrete legal claims.  They vary depending on the state of economic progress of a country. Economic and social rights are not rights in the same way civil and political rights are.   They should influence policy but are not legally enforceable rights and hence cannot lay a claim to constitutional recognition.   Social and economic matters are best dealt with by the legislature and through democratic contestation.  It would violate the separation of powers doctrine should the judiciary be given the power to enforce them and determine governmental priorities. Including economic and social rights in the Constitution gives an unelected and unaccountable group of persons the power to adjudicate claims which are best left to the legislature and the executive.   Judges have no expertise to decide on economic and social issues. The following section deals with some of the competing arguments around economic and social rights.  

 

Conclusion

The world is watching the reform agenda in Sri Lanka with great anticipation, especially in regard to deepening of democratic governance and protection of human rights. Regression of the kind proposed by the critics of ES rights would be a serious rolling back of progressive constitutional trajectories established by more recent constitutions such as those of South Africa, Kenya and Nepal. lt would be a black mark against Sri Lanka's improving human rights record. Not only should the people of Sri Lanka make use of this unique opportunity to secure a strong constitution for themselves, but also ensure that a healthy precedent is established for other countries to emulate.Accordingly, the HRCSL calls on His Excellency the President to give leadership in this regard. We urge the Hon. Prime Minister and all members of the Constitutional Assembly to ensure that the ongoing constitutional reform process ensures the inclusion also of ESC rights in the future constitutional chapter on rights as fully protected rights capable of vindication by courts, respecting the principle of indivisibility of rights that would enable the full enjoyment of human rights by the people of Sri Lanka.