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Imperative and rationale for ESCR in Sri Lanka: An analytical briefing

7 November 2017 12:59 am - 0     - {{hitsCtrl.values.hits}}

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BY Muttukrishna Sarvananthan

Sri Lanka is in the process of drafting its third constitution since independence from the British colonial rule on February 4, 1948, the first being the Republican Constitution of 1972 and the second being the 1978 Constitution. The current process of constitution drafting has been unique because of its public consultations throughout the country. 
There was a groundswell of support for the incorporation of economic, social and cultural rights (ESCR) in the proposed new constitution as a justiciable right (with judicial enforcement) in the course of these public consultations by the Public Representations Committee on Constitutional Reform. The specific rights incorporated in the ESCR are the (1) right to education, (2) right to health, (3) right to housing, (4) right to food and (5) right to work.


However, a small but vociferous group of legal professionals has been publicly campaigning against the incorporation of the ESCR in the proposed new constitution. The objections for the inclusion of the ESCR are: (1) enforcement and fulfilment of the ESCR are best left to the democratic process through the elected executive and legislature branches of the state and not through the non-elected judiciary branch of the state, (2) implementation of the ESCR would be financially costly to the exchequer and (3) non-elected judiciary should not be allowed to trespass into the policymaking process of a democratic polity.      


Objective


The broad/overall objective of this briefing paper is to advance evidence-based analyses and critically informed arguments in favour of incorporation of ESCR in the proposed new constitution of Sri Lanka towards building an inclusive society promoting shared prosperity grounded on meritocracy cum needs-based democracy (as opposed to the present matronage/patronage cum greed-based democracy) after a quarter century of savage civil war. Thus, we aim to argue a case for the inclusion of the ESCR in the proposed new constitution not only on its own right, but also as a means of peace-building in a war-torn country.   


The specific objectives of this briefing are to: (1) firstly outline the status of Sri Lanka vis-à-vis the ESCR as reflected in the Social and Economic Rights Fulfilment (SERF) Index compiled by the University of Connecticut in the United States of America, (2) secondly to provide statistical and other evidences pertaining to Sri Lanka to demonstrate the inadequacy of the SERF Index to gauge the real status of a country in terms of realisation of the ESCR and (3) finally to counter the arguments advanced by the antagonists of incorporation of the ESCR as a justiciable right in the proposed new constitution of Sri Lanka.  


Social and Economic Rights Fulfilment Index


The SERF Index is compiled at the University of Connecticut in the United States of America. The SERF Index was pioneered by Development Economist Prof. Sakiko Fukuda-Paar and her colleagues. 


The SERF Index, perhaps useful for benchmarking the fulfilment of social and economic rights in a country as a whole, may not capture the intra-country imbalances in such fulfilment. Therefore, the SERF Index should not be construed as an all-encompassing indicator of the realisation of social and economic rights of all the citizens of any country. 

 

the democratic governance in Sri Lanka has been by and large based on matronage/patronage cum greed (in terms of caste, class, ethnic, family, gender, religious, etc.) as opposed to based on merit cum need

 


Moreover, the quality of educational, health, housing, food and employment rights enjoyed by the citizens could not be captured by the SERF Index for understandable reasons, which is a drawback of this initiative. However, the SERF Index is a reasonably indicative measure for policy discourses.     


The SERF Index for Sri Lanka has increased from 70.48 in 1985 to 86.70 in 2015. While the improvement or rise in the SERF Index has been phenomenal between 1985 and 2005 (rising from 70.48 in 1985 to 82.01 in 1995 and 85.17 in 2005), the rise has moderated between 2005 and 2015 (marginally increasing from 85.17 in 2005 to 86.70 in 2015), mainly because of the effect of higher base.


According to the latest available data, Sri Lanka ranked 15th out of 79 developing countries in terms of the SERF Index in 2015.  


According to the sub-components of the SERF Index for Sri Lanka, the indices for education and housing rights fulfilments are the greatest out of the five sub-components such as the right to education, health, housing, food and work. 
Universal free education and free public health services coupled with many welfare programmes throughout the post-independence period have elevated Sri Lanka to such a high ranking on its own right and more so in comparison to other South Asian countries. 


Progressive decline in public expenditure on education and health


The average annual public expenditure on education as a percentage of gross domestic product (GDP) has been progressively declining from the peak of 4.24 percent during the decade 1960–1969 to just 1.76 during the seven-year period 2010-2016. The average annual public expenditure on education as a percentage of GDP has nearly halved from 3.14 percent during the first decade after independence (1950-1959) to just 1.76 percent during the seven years of the post-civil-war period (2010-2016). 
Similarly, the average annual public expenditure on health as a percentage of GDP has declined from the peak of 2.13 percent during 1960-1969 to 1.33 percent during 2010-2016. The average annual public expenditure on health as a percentage of GDP dropped from 1.95 percent during the first decade after independence (1950-1959) to 1.33 percent in the first seven years after the end of the civil war (2010-2016). 
The average annual public expenditure on health as a percentage of GDP has more than halved from 2.13 percent during the second decade after independence (1960-1969) to just 1.33 percent during the seven years of the post-civil-war period (2010-2016).


It is also noteworthy that the public expenditure on education has always been significantly greater than the public expenditure on health, especially during the four decades between 1960 and 1999. However, the gap between the public expenditures on education and health has significantly narrowed in the new millennium – i.e. from 2000 to 2016. 


In spite of the progressive decline of public expenditures on education and health since independence, the SERF Index of Sri Lanka has continued to rise, especially between 1985 and 2005.


There are inequalities in public expenditures on health in different provinces. According to Fernando, et al, (2009: 38), the per capita public health expenditure in 2006 was the lowest in the Sabaragamuwa Province (Rs.1,643), followed by the Eastern (Rs.1,717), North Central (Rs.1,768) and Southern Provinces (Rs.1,907), whereas the highest expenditure was in the Central Province (Rs.2,537) followed by the Western Province (Rs.2,318). 


However, the foregoing discrepancies in per capita public expenditures on health could be due to the different health conditions of the populations in different provinces rather than due to deliberate discrimination by the state. 


Democratic deficit


Although Sri Lanka was the first country in South Asia to have exercised universal franchise in 1933 and one of the first countries in the world to let women exercise their franchise in the democratic process under the colonial rule, as well as during the post-colonial native rule (including the election of world’s first woman prime minister), the democratic governance in Sri Lanka has been by and large based on matronage/patronage cum greed (in terms of caste, class, ethnic, family, gender, religious, etc.) as opposed to based on merit cum need. 


Rule of ‘Panthangkarayos’ (bootlickers)


The nefarious history of matronage/patronage-based partisan policymaking (in terms of caste, class, ethnicity, family, gender, geography/place of origin, religion, etc.) in the democratic process of Sri Lanka led to the first-ever armed rebellion in South Asia and the attempt to overthrow the democratically elected government in Sri Lanka in 1971.
The popular slogan of rural youths at that time was “Colombata kiri (milk) apata kakiri (marrow/cucumber)” (which is translated as milk for Colombo (folks) but marrow/cucumber for village (folks)). Subsequently, the youths of the largest ethnic minority community rebelled against the Sri Lankan state because of the marginalisation of their language, land, education and employment rights since 1956 (if not before).   
It is not only the governance of the state in Sri Lanka is grounded on matronage/patronage, professional associations, trade unions, past pupils’ associations of schools, cooperatives, non-governmental organisations (NGOs), private sector firms, think thanks, religious organisations, media institutions and the wider civil society are all governed by matronage/patronage and ‘panthangkarayos’ (bootlickers) as opposed to based on competence/efficiency and merit/equality of opportunities. 


There are numerous heads of cooperatives, NGOs/think tanks (e.g. Sarvodaya, MARGA Institute, recent past Institute of Policy Studies), trade unions (e.g. Ceylon Teachers’ Union (CTU), recent past Ceylon Mercantile Union (CMU)), religious organisations (e.g. All Ceylon Hindu Congress), as well as professional associations (e.g. Government Medical Officers’ Association (GMOA), recent past Sri Lanka Economic Association (SLEA)), who remain/have remained in power for well over a decade (sometimes for even decades), ostensibly re-elected perpetually. 


Moreover, the employment opportunities in large private companies in Colombo and other metropolitan cities and towns are overwhelmingly favoured for school leavers from the prominent schools in the respective cities and towns thereby structurally preventing the upward mobility of rural youths and youths from underprivileged communities who largely attend lesser known schools.


Because of this structural bias in private corporate sector employee recruitment practices (e.g. the stranglehold of Royal/Thomian fraternity in Colombo), there is cut-throat competition for admissions to prominent schools in cities and towns across the country involving widespread bribery and corruption, thereby permanently disadvantaging and dispossessing numerous communities of people.  
It is not a coincidence that numerous ministers, deputy ministers and state ministers in the present government are alumni of Royal College of Colombo. It is this crony capitalism that is holding back Sri Lanka from realising its full potential and not capitalism per se. 


Gender deficit


In spite of the relatively higher educational levels of women in comparison to men in Sri Lanka and higher educational levels of Sri Lankan women in comparison to women in other South Asian countries, the labour force participation rate of women in Sri Lanka is one of the lowest in South Asia. (See Nayar, et al, 2012) The labour force participation of women in the Eastern and Northern Provinces are the lowest within the country. (See Sarvananthan, 2015: 23)

 

Because of this structural bias in private corporate sector employee recruitment practices (e.g. the stranglehold of Royal/Thomian fraternity in Colombo), there is cut-throat competition for admissions to prominent schools in cities and towns across the country involving widespread bribery and corruption, thereby permanently disadvantaging and dispossessing numerous communities of people

 


We accept the fact that the labour force participation rate is not the only criterion by which the impediments to upward mobility of women in the economy and society should be judged. However, due to the brevity of space, it is the only impediment highlighted here as an example. 


Unequal human development


In spite of the highest human development in Sri Lanka, compared to the rest of South Asia, malnutrition/undernourishment is very high among the children and lactating women across the country and human development is far below the national average in the hill country among the plantation Tamil community, among the Muslim minority community throughout the country and the former armed-conflict- affected provinces and the adjacent areas. (See UNDP, 2012&1998) 


Heist of private lands by state


The Sri Lankan government confiscated private lands (beyond a certain threshold) during the 1970s ostensibly to redistribute the confiscated land to the landless peasants and the poor, as part of a programme of land reform. Instead of redistributing the confiscated private lands to the landless peasants and the poor, the state became the single largest owner of lands in Sri Lanka, accounting for over three-quarter of the entire land area of the country.


Subsequently, whilst certain state-owned agriculture lands in remote/isolated areas were alienated (on lease devoid of outright ownership) to the landless poor people and certain public servants (as a perk because of their low salary) throughout the country, the prime lands in prime locations were distributed to political activists and supporters of the respective ruling political party from time to time, to date, in addition to selected development projects.


During the course of the civil war, the private lands owned by the internally displaced persons (IDPs) were forcibly occupied by the armed forces to establish military camps throughout the Eastern and Northern Provinces as well as in the City of Colombo. 
Although significant extents of such forcibly occupied lands by the armed forces have been returned to their owners, still considerable extents of private lands are illegally occupied by the armed forces throughout the Eastern and Northern Provinces as well as in some other parts of the country.


During the post-civil war (post-2009) period, more private lands were forcibly confiscated for widening of main roads and highways throughout the country (including in the former armed conflict-affected provinces such as in Sampur in the Trincomalee District), for mega development projects such as the Mattala airport in the Hambantota District, for mega real estate development projects such as luxury condominiums cum shopping malls in the City of Colombo (e.g. in Slave Island and Wanathamulla) and its suburbs and in other metropolitan cities and for tourism development projects along the eastern, north western and southern coastal areas without payment of adequate compensation by the government, depriving the inalienable right of the citizens to private property.       

   
(To be continued tomorrow)


(Muttukrishna Sarvananthan, Principal Researcher, Point Pedro Institute of Development, Point Pedro, Northern Province, can be reached at sarvi@pointpedro.org)

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