On the 19th of November 2016 a panel of experts submitted a Sub-Committee report on Fundamental Rights to the Steering Committee of the Constitutional Assembly on the inclusion of economic and social rights in the new constitution. The Bar Association of Sri Lanka on the 10th January 2017 organized a public discussion on the perspectives of this subject matter with a diverse group of highly accomplished panellists consisting of both proponents and those arguing against the subject. I was one of the privileged few to acquire a seat in the audience.
What are economic and social rights?
Economic and social rights roughly include those that are needed for a decent standard of living such as : labour rights, right to education, right to health, right to environment and natural resources, right of access to sufficient food and nutrition, clean water and sanitation, adequate housing and shelter etcetera.
The Sri Lankan Constitution of 1978 does not recognize these as rights per se but offer them as guidelines for policy making under the heading of directive principles of state policy. The current constitution does accommodate civil and political rights but the progressive development of civil and political rights were permissible only under the current regime of Sri Lanka which created a healthy climate for the functioning of rights compared with the previous regime. An example is: right to information aimed at ensuring public participation in governance and creating accountability for the people. [The possibility to pass this legislation under the present government is a positive development]
Economic and social rights however are dependent on the state and they must be progressively realized. There are authoritative documents on social economic rights as laid down in the ‘convention on economic, social and cultural rights’ and some of them are incorporated into documents such as the CEDAW, Child Rights convention, and Disabilities convention etcetera.
Is it a terrible idea to constitutionalize such rights?
The first impression that I got when I heard that people can make demands from the government to provide with access to schools, universities, jobs, housing schemes and enforce them in the courts sounded terrible enough. Imagine the State University Students who protest demanding for government jobs being able to go to court over it and judges adjudicating such matters making our courts ‘populist actors’.
The constitution of 1978 states that Sri Lanka is a ‘socialist state’ and it is indeed social welfare oriented with access to free education and free healthcare services. Sri Lanka is one of the very few countries that provide free education up to tertiary level and thus a majority of this country’s people have always been heavily dependent on the state. The attitude that the State must provide its citizens with everything is deeply embedded in the psyche of the average Sri Lankan including most of the people today. This attitude the State should provide everything seems to prevent our country from developing grass roots business initiatives and entrepreneurial spirits of the people. Proponents of free market economy at the discussion opinionated that constitutionalizing social and economic rights will further prevent economic development.
I reflected much about this statement. Most left-wing political parties in Sri Lanka will go to town over justiciability of social and economic rights in the constitution. While many State University Student Unions argue that private universities have to be closed down, the state should provide free education etc only chaos will occur with many groups in societies always engaged in contention with the State and empowering the judiciary (a body that lacks democratic legitimacy) to usurp the powers of the parliament.
The arguments by supporters of free market economics in the panel stated remedies that exist in administrative law, judicial review, enforcing civil and political rights through public interest litigation more than suffice to prevent executive action that encroaches on the rights of the people. An example was drawn from the Eppawela Phosphate Mining case which was adjudicated based on civil and political rights under the remedies that exist in the current system.
MP Sumanthiran who was in the audience gave another brilliant example of how free market economy has provided opportunities for development: “A small scale entrepreneur had identified that the husks of areconuts in a large estate can be used as a substitute for plastics and went to court over the right to purchase the husks which are usually discarded as a residue product. His Right to Business was guaranteed by the free market and not by the State enforcing social and economic rights”
Hence, what should be the role of the State in guaranteeing ‘rights’ for its citizens?
Today we see a post conflict society in an era struggling to coexist and sustain peace and reconciliation. Shouldn’t all rights be recognized equally? The State should not be pressurized to provide its citizenry with free goods and services but facilitate rights and development. In that light, Right to development should be recognized in the constitution under which the state must ensure inclusive development. Take for example: Land grabbing in Paanama when the residents (who are most –part illiterate engaged in vulnerable livelihoods of farming and fishing) were continuously evicted from their lands and dis-included in the tourism development projects of the area. Shouldn’t the government compensate such people and take initiative to facilitate their development by enabling them access to their previous livelihoods of fishing and farming and make profit out of the produce?
These are the major flaws of the open-economy under the present government who are hell-bent on a neo-liberal agenda of development forgetting that a majority of the country’s citizenry are poor and vulnerable with limited access to resources. Poor people should not be victims of ‘social costs’ of development projects, instead they should be able to make profit out of it. The plural sector of the country such as NGOs which work to provide entrepreneurial training for self-resilient livelihoods must be encouraged to play a role that is complementary to that of the government. The Supreme Court is not accessible to a majority of the people in rural areas for litigation in case of breaches of such rights [right to land, right to livelihoods, right to profit from business] hence, protection of rights should be ensured at a devolved level.
It is not the duty of the courts to decide how resources should be allocated, but it is the duty of the government which they have failed in many cases. There is pending litigation on land grabbing in Sri Lanka especially in the North and the East. The government continues to regulate the economy in a manner which is favourable to the rich but not to grass-roots entrepreneurs and young people in rural areas targeted as tourism hubs of the country.
It is time that all rights which are important for a ‘decent standard of living’ are recognized along the lines of right to inclusive development in an era of reconciliation and the state facilitate such rights prioritizing the vulnerable people, those affected by the war and young people who are dropped out from the knowledge economy of the country.