Justiciable welfare rights would threaten the gains of further devolution
When Sri Lanka embarked on a process of constitutional reform under the auspices of the Yahapalanaya government, the three broad areas for discussion were clearly identified: The executive system; Devolution; and electoral reform.
Nevertheless, as the promise of a new constitution beckons, a raft of other issues, such as the reform of personal laws, and reconfiguring the superior courts have entered the debate.
Of these, none is more controversial than the idea that Sri Lanka follows South Africa and other African and Latin American States in allowing justiciable (That is, judicially enforceable) socio-economic rights.
According to this radical idea, any person could allege a deprivation of a social or economic right such as health, food water and move the courts to order the Government to make adequate provision.
The Public Representations Committee (PRC)commissioned to undertake consultations on the new constitution—comprising many proponents of the idea of enforceable socio-economic rights—unsurprisingly recommended the inclusion of a radical new bill of rights which would include among others the right to sustainable development, ‘wellbeing’, social security, food and health. It also recommended that animal rights be enshrined as a Fundamental Human Right. A number of civil society advocates have also followed suit.
However, opposition to justiciable socio-economic rights has also grown, particularly among classical liberals, proponents of devolution and the business sector.
The Traditional Left has also been lukewarm in its reception of the idea. I would like to highlight a few of the arguments that militate against the radical new approach outlined in the PRC Report.
"Justiciable welfare rights have the benefit of appearing to be a move towards progress. It most certainly is not"
These concerns are not motivated by an opposition to socio-economic advancement of the people; on the contrary, they are based on the belief that justiciable socio-economic rights would exacerbate inequalities, weaken pluralism and social accommodation, and severely retard progress towards the kind of free society required to deliver people out of poverty and social exclusion.
First, justiciable socio-economic rights simply do not work. Instead, they are often counterproductive. Whatever ideological persuasion one may have, the record of countries that have experimented with socio-economic rights demonstrates that they had not improved the socio-economic welfare of the people. Instead, they have in fact made things worse.
Despite leading the pack in terms of justiciable socio-economic rights, South Africa today, measured according to its Gini Coefficient indices, is more unequal than it was during the latter stages of apartheid.
The records of other countries that have gone down the same route—Kenya, Zimbabwe, Haiti, South Sudan, East Timor, Somalia, Bolivia, South Africa, Nepal, Niger, and Venezuela—speak for themselves.
Empirical studies from Brazil and South Africa have shown that judicially enforceable welfare rights have disproportionally benefited the rich and middle classes—as they are better placed to pursue expensive litigation—at the cost of the poor.
As Professor Suri Ratnapala notes in his recent article in the 2017 Summer Issue of the ‘Policy’: “The less privileged sections of society who form the majority of people in developing countries have greater bargaining power at the ballot box than in the court room. This is the virtue of representative democracy.” Second, justiciable welfare rights would embroil the courts in everyday distributional politics and thus undermine their independence.
This is particularly concerning because even proponents of socio-economic rights argue—in an attempt to counter the argument that judges would take over political decision making—that in interpreting socio-economic rights, judges should be deferential to the executive. This deference is in fact inevitable—judges are unlikely to take it upon themselves bear the brunt of responsibility for social and economic policies. Yet, this attitude of deference is precisely what should be guarded against.
The role of the judiciary in a constitutional democracy is to act as a tenacious guardian of citizens’ rights against the State; to balance the imbalance of power between the state and the citizen.
The most celebrated judges in this country and elsewhere have brought to their work a deep suspicion of State power. And yet, we are now being told to accommodate socio-economic rights, and with it, judicial deference to the executive.
This course, particularly in Sri Lanka where the struggle for the independence of the judiciary has been and continues to be hard fought, is utterly dangerous.
Third, justiciable welfare rights would severely threaten the delicate balance between centre and provincial powers that would characterise the envisaged devolution scheme. It is essential that each province—given the finite resources at its disposal—is allowed the space to expend those resources according to law but also in accordance with the democratic expressed choices of its voters. Thus, the North may opt invest heavily in education, whilst the North-Centre leads with health.
Provinces with a heavy Leftist political imprint may decide to privilege State spending, while others may choose a more Liberal economic dispensation.
These are matters of policy for which Governments in the Province would be answerable to their voters.
This is the promise of devolution: that ground-based decision making would replace one-size fits all prescriptions from Colombo.
Justiciable welfare rights would threaten the gains of further devolution, allowing judges and lawyers the power to dictate provincial policy. They would also result inevitably in creeping centralisation where the province finds itself unable to finance the policy prescriptions ordered by the courts.
Justiciable welfare rights have the benefit of appearing to be a move towards progress. It most certainly is not. In a country wracked by an ethnic conflict defined by a contestation over the adequacy of autonomy arrangements, and having just come out of an almost terminal threat to judicial independence, the priorities of contemporary constitution making ought to be to address those areas in which our governance structures have let us down. Despite all these governance failures however, our delivery of welfare has remained admirable, driven entirely by representational politics, not judicial enforcement. In this context, some American wisdom would not be out of place: If it ain’t broke,
don’t fix it.