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Constitutionalising Economic, Social and Collective Rights The Way forward for Social Justice

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18 April 2018 12:00 am - 0     - {{hitsCtrl.values.hits}}

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Some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naive trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system 
- Pope Francis

To say that the constitutional reform process set in motion by the good governance regime has been side-tracked is an understatement; in fact the whole process has met with sudden death with the political turmoil the country is going through at present. As such, many salutary proposals of the Public Representations Committee seem destined to an embryonic death. Among such casualties is the constitutinalising of economic, social and collective rights making them justiciable i.e. enforceable by way of fundamental rights jurisdiction.   


Although the 2nd Republican Constitution introduced Fundamental Rights for the first time into the Sri Lankan constitutional milieu, those rights enshrined in Chapter 3, remain skeletal, recognizing only those first generation civil and political rights, such as those which protect citizens from torture and degrading treatment, arbitrary arrest, discrimination, etc., the types promoted by the International Covenant on Civil and Political Rights (ICCPR).   


A laissez-faire attitude


The socio-economic structure the Constitution sought to underpin was a laissez-faire, free market open economy and it was hardly surprising that the authors were wary of opening up litigation based on economic and social rights, which under normal circumstances would be the real substance that gives meaning to first generation civil and political rights.   


The duty of the State, specially in a context where social democracy underpinned norms of governance since independence, to uphold social economic and cultural welfare, is of paramount importance in the face of unequal distribution of wealth, increasing income gap, scant opportunities for good employment, education, etc. Although the Directive Principles of State Policy requires the State to endeavour to promote an environment that ensures the citizenry good living standards, housing, employment, education, etc. they remain non-justiciable. In the context of conservative and deferential judicial attitudes, state policy principles have not been made to hold the State bound to those lofty notions enshrined in Chapter 6 of our Constitution. 

 
Need for constitutinal reforms


The recent visit to Sri Lanka of Virginia Bras Gomes, Chairperson of the UN Committee on Social Economic and Cultural rights, was an opportunity for our policy makers to be reminded, and if not enlightened, on the need to proceed in earnest in making these rights justiciable. One of the main concerns expressed by Mrs. Gomes was the uncertainty that has arisen with regard to constitutional reforms including constitutionalising of Socioeconomic and Cultural rights.   


In countries with dualist legal systems such as ours, mere ratification of international instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not entail such obligations becoming part and parcel of the domestic law. Hence, Sri Lanka’s ratification of the ICESCR is no guarantee that social, economic and cultural rights promoted therein are part of our legal system or that they are justiciable. In other words it does not entitle a citizen to invoke the Fundamental Rights Jurisdiction of the Supreme Court in terms of Article 126 of the Constitution or any other legal remedy. As much as successive governments have attempted to uplift the socioeconomic level of their subjects, non-justiciability of such rights creates a lacunae without a doubt and Directive Principles remain a State prerogative and not a citizen’s right. 

Sri Lanka’s ratification of the ICESCR is no guarantee that social, economic and cultural rights promoted therein are part of our legal system or that they are justiciable

 
Obligations of the State


The ICESCR imposes obligations on a State party on three levels. First, it is not to act against the spirit of the rights promoted and protected by the Covenant. In that sense, the obligation is akin to Civil Political rights, where the State is required only to refrain from doing acts which violate those rights. The second level of obligation is to ensure that such rights are not violated by third parties; the rub lies here as under civil and political rights, there is no obligation on the State with regard to violent acts by third parties. Thirdly, the State party is compelled to take positive measures, legislative as well as executive, to ensure that social and economic rights of citizens are protected, promoted and upheld.   


It is disappointing indeed that Sri Lanka has not been able to constitutionally recognise social and political rights despite being a representative democracy for more than 80 years. Although there exists a plethora of statutes and legislative provisions which guarantee social security, secured and safe employment, standards of education, etc., more often than not, they remain at the individual level and not as collective rights.   
Even in countries where these rights are not constitutionally recognized, progressive, bold and benevolent judicial attitude has expanded the notions of social justice contained in State policy imperatives by interpreting them to be binding on the State and thus vindicating citizen grievances from a constitutional and legal view-point. But it is not to be misunderstood that there is universal support for this endeavour to uphold second and third generation rights, from a legal perspective in general and by constitutional justiciability in particular. In Sri Lanka, the proposals for justiciable socioeconomic rights before the Public Representations Committee has been met with objections by certain quarters such as entrepreneurs, employers, investors, jurists, etc. Although time and space does not allow an in-depth evaluation of the merits of such apprehensions expressed, suffice it to say that those objections are real and substantial. 

 
The fact that Sri Lanka has been able to reach a lower middle income status in terms of per capita income is not an excuse to dodge constitutionalising socioeconomic rights. Many countries which are even considered developed and 1st World have proceeded to do that. Neither should it be a valid ground to say that it would put the State in a precarious situation where it is unable to meet these rights, demands once justiciable in terms of resources which are at the disposal of a government. Bold and progressive recognition of these rights by countries such as South Africa, Brazil, Nepal and Kenya shows that economic resources alone is not the criteria on this account in making policy. In jurisdictions with little transparency and participatory opportunities for the citizen, a comprehensive fundamental rights jurisdiction remains a major component of their right to be represented in governance and to be placed in a position to be able to enjoy the fruits of national economic growth.   


Discontentment with neo-liberalism


Continuous and never-ending indignation, protest and dissatisfaction with neo-liberal economic policies should serve as a reminder that our society still expects State intervention on behalf of those segments of society in need of special care. While modern-day realities of profit-driven competitive market economy should not be lost sight of, it also warrants policy makers to be mindful of the large sections of society clamouring for their social and economic rights to be ensured by the State.   


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