Social and Economic rights in the Proposed Constitution
The recent article by Niran Anketell on the proposal to constitutionalize social and economic rights was interesting and certainly a welcome opening for a discussion on the issue especially on the verge of constitutional reforms on a national scale. The topic itself, would have raised a few eyebrows and I am sure, to the dismay of many who have lobbied for social and economic rights being incorporated in to the constitution.
Although no occasion for an in-depth analysis on different types of human rights, it would be imperative to outline as to what socio-economic or 2nd and 3rd generation rights are as opposed to civil and political rights, also called first generation rights , which are enshrined in the present constitution of Sri Lanka. It was Czech jurist Karel Vasak who introduced this classification of human rights to three generations namely civil and political, social and economic and finally collective or group rights. The politically charged cold-war atmosphere added a unique colour to this debate allowing the Soviet-led socialist bloc to emphasize on 2nd generation rights which they felt were the real basis on which the civil and political liberties could be made meaningful. The crux of this argument; it would be futile for a person without food, shelter or education to have freedom of expression or right to associate.
On the other extreme of the spectrum the classical liberal definition that civil and political rights are the ones which should be constitutionally recognized and judicially enforceable while socio-economic concerns should be a state prerogative in the form of public policy. Chapter 6 of our constitution deals with this aspect as it lays down Directive Principles of State Policy in achieving socio-economic equality and the judiciary is not empowered to interfere with it; in a sense giving substance to a definite separation of powers between the legislative and judicial arms of the state.
The perennial debate
Now the current debate ensues from the fact that the Public Representations Committee on constitutional reform, has suggested that socio-economic rights such as the right to education, decent living conditions, the right to work and fair wages, etc., be included making them justiciable. A cursory glance at the countries that have opted to follow this approach reveals the fact they are all developing nations having large segments of society in need of government interventions to fulfil their rights to a decent human life. South Africa, Brazil, Nepal, Kenya have taken steps in realizing that unequal and vicious distribution of wealth is an impediment to the realization of lofty ideals of any type of rights and at least theoretically made them justiciable as a starting point. Notable are relatively new constitutions such as those of Kenya (2010), Columbia (2013) and Nepal (2015) who have taken the path of making these rights justiciable and it would be interesting to know that 158 countries in the world have at least one social or economic right entrenched in their constitutions.
There seems to be, apprehensions with regard to 2nd and 3rd generation rights being justiciable in the Constitution and some of them warrant serious attention. The 2nd Republican or the 1978 constitution for the first time contained a fundamental rights chapter (chapter 3) including articles from 10 to 14 entrenching a persons inalienable right to his liberty and political rights. Conferring the Supreme Court with fundamental rights jurisdiction in terms of Article 126 was the mechanism of their vindication. The efficaciousness of such vindication might be open to debate; yet none would dare to question the wisdom of including them in the constitution.
It is from this perspective that the arguments presented by Mr. Anketell sounds illogical. True, vesting of social rights’ jurisdiction on the judiciary would, in a sense, detract from the prerogative of the legislature and to a certain extent the Executive, to form public policy. Yet the issue is whether the legislative supremacy or an overarching Executive Presidency had or more importantly, will fare any better or worse with whatever reforms in the future in terms of their sacrosanct duty for the well being of each and every individual of the national state.
Violation by omission rather than action
The misguided notion that only first generation or negative rights i.e. where the state is enjoined not to violate the civil liberties of citizens should be entrusted to the judicial wing of the state stems from a neo-liberal disposition that in essence, is vary of government intervention in economic policy-making. It finds its way in to constitutional and juristic thought through an inherent fear of holding the state accountable for equality in income distribution, ensuring fair play at workplace, upholding the right to living standards of the underprivileged and the marginalized segments as ultimately it leads to the redistribution of national wealth more equally and to leakage of the treasure chest of the very rich. They are rather happy with the lofty sounding rights such as those guaranteeing protection from arbitrary arrest, torture and cruel and inhuman treatment, etc., as it does not call in to question amassing massive hoards of wealth as large segments languish in starvation.
There seems to be, apprehensions with regard to 2nd and 3rd generation rights being justiciable in the Constitution and some of them warrant serious attention
The contention that making 2nd and 3rd generation rights justiciable and vesting the power on the judiciary to enforce them would make the judiciary deferential to the executive is not substantiated by any valid grounds. The judicial deference to the executive has been the rule rather than the exception since the day this constitution came to being and the fate of a handful of judges who were not so deferential is public knowledge. Yet one struggles to find a nexus between such deference and socio economic rights and to suggest so is actually whimsical as it could very well be the case even with merely civil and political rights. The reluctance to vindicate even those entrenched civil and political rights during the emergency rule specially with regard to suspected Tamil insurgents would be a valid example that proves this point.
A judge who is brave will always be so and in the alternate, a deferential and timid one will be so whether the rights chapter is a skeletal one with only 1st generation rights or an inflated one with socio-economic rights. To be over anxious on judges being deferential on this basis is premature.
Rights viz a viz Devolution
The next contention that justiciable socio-economic rights in the constitution would militate against a move towards devolution too is precocious, at best. True, a broad devolution to the periphery will entitle the peripheral unit to decide what is best suited to the development of their subjects based on the unique potentials each unit has and peculiarities in land, labour, investment opportunities at their disposal. At a glance it would seem counterproductive for a court, likely at the center , to impose on that provincial or local body , a national blue print in terms of socio-economic conditions that it would deem the entitlement of citizens and there could be some validity in the argument that it would embroil the courts in mundane distributive politics. Yet, it should always be borne in mind that nothing, should be allowed to deprive a citizen in the national state to enjoy life to the maximum and to be a beneficiary of normative concepts that hold any citizen should be on equal standing as any other in the country, irrespective of which part of the island he or she is in. To deny that would be to perpetuate certain inequalities and difference that exist among different segments of society sometimes aggravated by geographical dissimilarities. For example the Northern Provincial Council is entitled to emphasise more on education of its constituents more than industrial development yet that should not be at the expense of normative and universally recognized right to have a decent and an adequate standard of life. It is precisely why justiciable rights of this nature would hold them in good stead and not otherwise.
In conclusion let us not be oblivious to the socio economic realities that afflict broad sections of our society at a time when the income gap seem to be widening and resources are being concentrated on a select few and civil and political rights alone are but an utopia without substance. It is precisely why countries such as South Africa and Brazil having ventured to make these rights justiciable are constitutional beacons in ensuring fair play and equality in the lives of broad masses. I am confident that our judiciary, which has been tested yet not defeated , bent but not broken , will stand up to yet another call of duty in terms of vindication of the rights of the citizens of this country.