The constitutional status of economic, social and cultural (ESC) rights has been the subject of intense debate among scholars and practitioners in Sri Lanka. This debate is featured in ongoing discussions on constitutional reform. The question of whether to make ESC rights ‘justiciable’ under the new constitution now vexes Sri Lanka’s constitution-makers.
This article is the first of a two-part series that confronts the question of constitutionalising ESC rights in Sri Lanka. It presents a case for constitutionally recognising the obligations of the state with respect to ESC rights, and discusses the people’s aspirations for such rights as reflected in the findings of the Public Representations Committee on Constitutional Reform (PRC).
The state’s obligation to make ESC rights justiciable
ESC rights and civil and political rights are largely ‘indivisible’ and ‘interdependent’. For example, the right to education (which falls into the category of ESC rights) equips individuals with the ability to exercise their freedom of expression (which is a civil and political right). The freedom of expression in turn enables advocacy for the right to education. Yet the state’s obligations concerning ESC rights are more complex than those relating to civil and political rights, as ESC rights often require scarce resources for their fulfilment. For example, the right to education involves allocating resources towards building schools and training teachers, while the freedom of expression may not necessarily involve such costs.
Due to this complexity, two concepts have been developed to define the state’s obligations towards ESC rights. First, the concept of ‘progressive realisation’ offers states leeway in terms of how soon ESC rights should be fulfiled. For example, the State is not required to provide adequate housing to all persons immediately.
It instead has an obligation to use ‘available resources’ to fulfil that right ‘progressively’ until it is fully realised. Secondly, the concept of ‘minimum core obligations’ stipulates that a certain core portion of each ESC right must be fulfiled without regard to the availability of resources. Hence a State is bound to fulfil basic needs such as primary healthcare, basic shelter, and basic education.
The State’s obligations to fulfil ESC rights include the obligation to make them enforceable.
Yet ‘enforceability’ is distinguishable from ‘justiciability’, which specifically relates to judicial enforcement. Some constitutional scholars and practitioners in Sri Lanka have argued strongly against the justiciability of ESC rights.
First, it is argued that, as unelected officials, judges lack democratic legitimacy, and should not adjudicate on the allocation of scarce resources. Second, it is argued that the judiciary lacks the necessary resources and expertise to interpret and enforce ESC rights. It is argued that the executive and legislative branches of government have superior fact-finding and reporting tools to make decisions on resource allocation.
But these objections are based on certain presumptions about the effectiveness of the democratic political process and the ability of courts to access expertise. On the one hand, it is presumed that the legislative and executive function according to the principles of equality and non-discrimination. This presumption is easily rebutted if one considers the Sri Lankan experience.
The idea that a separate ‘independent’ organ could play a ‘counter-majoritarian’ role to check legislative and executive power therefore seems reasonable. So even if the courts play only a limited role in fulfiling ESC rights, there is no basis to deny the constitutionalisation of such rights altogether. On the other hand, it is often presumed that the courts cannot access adequate expertise and develop competencies regarding resource allocation.
However, a number of countries, including the UK, South Africa, and India, have seen courts successfully handle questions of resource allocation. Thus, depending on the nature of the claim, ESC rights can and should be just as justiciable as their civil and political counterparts.
The people’s aspirations for ESC rights
The Sri Lankan constitution does not contain justiciable ESC rights. Instead, it lists certain directive principles of State policy that refer to certain ESC rights such as ‘adequate food, clothing and housing’ and ‘the right to universal and equal access to education at all levels’.
Article 29 of the Constitution specifically states that the violation of a directive principle cannot be presented to a court for adjudication.
Sri Lanka’s current constitutional reform initiative presents us with an opportunity to make the state’s obligations towards ESC rights enforceable. The PRC was appointed in late 2015 to ascertain the public’s views on constitutional reform, and its final report offers important insights into the public’s aspirations regarding ESC rights.
This report clearly reflects the people’s demand for ESC rights, including the right to healthcare, education and housing, to be enumerated in the constitution. If we believe that the constitution of a country should reflect its people’s basic aspirations, such demands justify making ESC rights enforceable under the constitution.
A variety of mechanisms may be used to enforce ESC rights – for example, democratic elections. In Sri Lanka, the people have prioritised ESC rights at successive elections. The recent manifestos of Maithripala Sirisena and the 60-Month Plan of the UNFGG clearly refer to ESC rights. In fact, the President’s manifesto includes specific chapters on healthcare and education, and commits to providing housing for those in need of shelter. These demands and promises form part of the long history of the Sri Lankan welfare state. Hence the democratic process has made ESC rights enforceable to some extent even without the explicit constitutionalisation of such rights.
Yet political processes may be insufficient to ensure the meaningful realisation of ESC rights, and may lead to situations where a government reneges on its own promises. This danger is reflected in the campaign launched by the Federation of University Teachers’ Associations to protest government under-spending on education. Though the campaign succeeded in drawing attention to the issue, it did little to increase spending in subsequent government budgets.
Hence, there is a case for making judicial remedies available where political processes are inadequate.
In this context, the PRC has observed: ‘There were strong submissions from people requesting that the Directive Principles should be justiciable.’ Hence there is little doubt that the Sri Lankan people demand the justiciability of ESC rights. Such justiciability must be an essential constitutional feature if reformers wish to ensure that the new constitution of Sri Lanka meaningfully reflects the people’s aspirations.
To be continued next week.