Continued from Thursday, March 23 This article is the second of a two-part series on the question of constitutionalising ESC rights in Sri Lanka. The first part presented a case for recognising the obligations of the state towards ESC rights. It argued that these obligations were reinforced by the aspirations of the Sri Lankan people, as reflected in the report of the Public Representations Committee on Constitutional Reform (PRC). The report confirms that the people demand not only that ESC rights be enumerated in the constitution but also that judicial remedies be made available for their enforcement.
This part attempts to set out certain parameters within which courts should enforce ESC rights. It argues that the new Sri Lankan constitution must make such rights justiciable, provided that the role of judges is defined precisely and cautiously.
Defining the scope of justiciability
At the outset, the constitutional framework on ESC rights must differentiate between the state’s minimum core obligations and its general obligations to progressively realise each ESC right. This differentiation is somewhat reflected in the PRC’s recommendations. For instance, on the right to healthcare, it states that ‘every citizen has the right to a standard of living adequate for…health and well-being including access to medical care…’ This right is subject to the availability of resources and can be progressively realised. The PRC then recommends that ‘no person may be denied emergency medical treatment’. Emergency medical treatment is therefore a part of the ‘minimum core obligations’ of the state and cannot be denied on the basis of resource availability. This distinction has a vital bearing on the justiciability of ESC rights in practice and should be reflected in the constitution.
Such differentiation is also essential in light of two concerns relating to resource constraints. The first is what some scholars call ‘queue jumping’, which is the strategic use of litigation to jump to the head of a queue in accessing scarce resources. For example, a number of communities in Sri Lanka need electricity; yet its provision depends on the availability of resources. The executive branch of a democratically elected government may be best suited to determine how to allocate scarce resources to progressively ensure that all communities receive electricity. Hence litigating the issue on behalf of one community could result in that community unfairly – and undemocratically – jumping to the head of the queue. The second is the issue of trade-offs. Unlike queue jumping, where individuals or groups compete for the same interests, trade-offs involve competition for the allocation of resources towards different interests. For example, one group may want a hospital in their area, whereas another may demand a new road. These claims involve complex trade-offs in resource allocation, as more money for road development means less for health. Courts should therefore play no part in the policy choices of the government, as such choices are better determined through a democratic political process.
Courts still have a role to play in fulfilling ESC rights where the political process is inadequate. The concepts of ‘arbitrariness’, ‘reasonableness’ and ‘non-discrimination’ are useful in this context, as they help determine the parameters of the justiciability of ESC rights. On the one hand, a court may have to determine how ‘reasonable’ a resource allocation is, particularly when it involves a minimum core obligation. For example, it could assess whether adequate resources have been allocated for primary education in a particular district. On the other hand, a court may intervene when a person has faced discrimination in the state’s allocation of resources. For example, it may intervene if a particular individual has been denied healthcare on the basis of her race.
Reflecting the parameters of justiciability in the constitutional text
The constitutional text should include two elements that reflect the proper parameters of the justiciability of ESC rights. First, a separate chapter on ESC rights must be included in the Sri Lankan constitution. The framing of each ESC right should include a minimum core and a general obligation to progressively realise it. For example, the clause on the right to education could state that every person has a right: (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. The first sub-clause entails the minimum core obligation of the state, whereas the second sub-clause entails the state’s obligation in terms of progressive realisation.
Second, a proviso should be included to limit the scope of the justiciability of each right enumerated in the ESC rights chapter. The proviso could read as follows:
Every person shall be entitled to apply to the Supreme Court in respect of an infringement or imminent infringement, by executive or administrative action, of a right to which such person is entitled under the provisions of this Chapter, provided that an infringement or imminent infringement of article 12 of the Constitution has also taken place.
The proviso ensures that the jurisdiction of the Supreme Court could be invoked only where the state’s action is ‘arbitrary’ or ‘unreasonable’, or amounts to ‘discrimination’. On the one hand, the Supreme Court has held that ‘arbitrariness’ or ‘unreasonableness’ amounts to a violation of the right to equality guaranteed by article 12(1) of the constitution. For example, the denial of primary education to a person may be considered ‘unreasonable’. On the other hand, discrimination is a direct violation of article 12(2), which guarantees the right to non-discrimination. Hence the proposed proviso compels the petitioner to demonstrate an ‘arbitrary’, ‘unreasonable’ or ‘discriminatory’ denial of an ESC right in order to be heard by the Supreme Court. The petitioner would need to plead a violation of article 12 in conjunction with the violation of the specific ESC right. This framework would provide for the justiciability of ESC rights while cautiously confining the scope of justiciability to instances where the political process has been inadequate.
ESC rights must be made justiciable under the Sri Lankan constitution, provided that the scope of such justiciability is precisely defined. It is therefore crucial that constitution-makers in Sri Lanka confront the complexities of enforcing ESC rights. It is strongly recommended that the constitutional text differentiates between a state’s minimum core obligations and its general obligations to progressively realise ESC rights. Moreover, the text must ensure that the Supreme Court’s jurisdiction can be invoked only when state action is ‘arbitrary’, ‘unreasonable’, or ‘discriminatory’.
Such a formulation may help bridge the divide between proponents and opponents of the justiciability of ESC rights. It is essential that ESC rights be enumerated in the constitution to reflect both the state’s obligations and the people’s aspirations. It is equally essential that the justiciability of such rights be confined to instances where democratic political process has failed to conform to the principles of equality and non-discrimination. A constitutional text that can reflect such a delicate balance will be crucial to the recognition and fulfilment of ESC rights in Sri Lanka.