Economic and social rights in the Constitution: An idea whose time has come

The importance of a rights-based approach is starkly underlined when one considers the experience of housing programmes in Colombo 

– Pic by Shehan Gunasekara

By Vijay K. Nagaraj 

Constitutional guarantees and protection of rights—civil, political, economic, social or cultural—always pose challenging questions that merit debate. But the powerful elite in Sri Lanka that is opposing constitutional recognition of economic and social rights is resorting to half-truths, bogeys, and scare mongering. Razeen Salley’s article on the subject in these pages last week is just the latest example.

Before getting into that however, it is important to consider current constitutional and judicial practice in this regard. Countries that recognise social and economic rights as fundamental rights in their constitution or basic law are many and varied in terms of their political, legal and economic systems. Some examples include Argentina, Brazil, Bolivia, Cuba, Ecuador, Ethiopia, Indonesia, Kenya, Nepal, Portugal, South Africa, South Korea, and Uganda.

According to ATD-Fourth World, 133 countries have enshrined the right to healthcare in their constitutions; even most European Union member states have some form of constitutional provision for economic and social rights. As recently as 2014, Ireland’s Constitutional Convention voted overwhelmingly—85 % of members in favour—calling for a constitutional amendment to expand and strengthen the protection of economic, social and cultural rights. 

Moreover, bodies that monitor United Nations treaties, regional courts in Latin America and Europe, as well as many national courts have established a large and growing corpus of standards, law and jurisprudence on economic and social rights. Recent research by the Equal Rights Trust has shown that courts in Australia, Canada, Colombia, Germany, India, Ireland, the United Kingdom and the United States of America, among many others, have upheld a range of economic and social rights through equality claims. 

All of this underlines that not only is the distinction between different groups of rights itself untenable but so are claims that economic and social rights are simply ‘aspirational’ in status and ‘soft’ law at best. The reality is that it is simply convenient for Salley and his fellow worshippers at the altar of the ‘free’ market to view economic and social rights as ‘aspirational’ and ‘soft’. 

Baseless claims and double standards

One of the most widely circulating baseless claims is that government and governance itself will be held hostage or undermined by judicial enforcement of economic and social rights. There is no evidence to suggest that constitutionalising and judicial recognition of economic and social rights has undermined governance or led to intractable systemic conflict between the judiciary and the executive or legislature. 

On the contrary courts have developed approaches to adjudicating economic and social rights cases that engage fiscal and other institutional constraints while embracing the rights imperative. Some examples include the South African Constitutional Court’s distinct dialogic approach and the innovative convening mechanism developed by the Supreme Court in the right to food case in India. 

Indeed, Sri Lanka, like many other countries, has witnessed its own share of tensions between the judiciary and the executive or legislature without economic and social rights being in question. And to some extent such tension is not wholly undesirable either—it is in fact foreseen and inheres in the separation of powers and the checks and balances. 

Libertarians cry wolf at the prospect of constitutional or judicial ‘restrictions’ on legislative and executive privilege to set economic and social policy. However, they are silent on the many conditionalities and restrictions imposed by international financial institutions, trade agreements, or even capital markets. This betrays not just the ideological but also the class character of some of the opposition to constitutionalising economic and social rights. 

Limitations of scheme-based entitlements 

Given Sri Lanka’s aggregate success in achieving basic levels of social development many question the need for constitutionally entrenched social and economic entitlements. The truth is that the aggregate success of what maybe called a scheme-based approach to entitlements like health and education hides many uncomfortable truths about its basic fragilities and egregious failures. 

This became apparent as far back as 1953 when the then government withdrew the subsidy on rice, leading to a sudden three-fold increase in its price. A far stealthier trend of erosion in access to these entitlements and entrenched patterns of exclusion has long been visible. The most compelling evidence of the failure of the scheme-based approach is the sustained wholesale exclusion of communities like the Up-Country Tamils and regions like Monaragala or Puttalam. 

That some regions or communities lag so far behind in many aspects of social development—from education to health to social protection to housing—is in no small measure also due the fact that none of these entitlements have been recognised as rights. And there is no duty imposed on the state to deliver them. For decades, and in some respects even now, the Up Country Tamils on plantations have known only rightslessness and exclusion from the purview of state responsibility itself. 

Importance of rights-based entitlements

The importance of a rights-based approach is starkly underlined when one considers the experience of housing programmes in Colombo. Neither the major public housing schemes of the 1980s nor the in-situ upgradation schemes before or since actually ensured security of title for all beneficiaries. Thus while most of Colombo’s urban working class poor accessed better housing, their right to these homes were not always recognised. Decades later, 2010 onwards, thousands of these very homes were demolished without any compensation, wiping out decades of large-scale public and private investment all because the regime in power launched a new scheme. 

Constitutional or judicial enforcement of economic and social rights are no panacea—indeed South Africa and India underline that clearly. But they also underline equally that such rights guarantees matter because they can animate a politics of demand and obligation, the essence of democracy. The large scale public mobilisation around the right to access medicines (anti-retroviral case) by the Treatment Action Campaign in South Africa and the right to food case in India are just two of many examples. 

Thus, contrary to another misguided claim, judicial enforcement of rights does not undermine democratic politics or popular mobilisation. Every Constitutionally backed guarantee of rights is a potential locus of struggle and a pivot for active citizenship and assertion of meaningful democracy. It is precisely because they can enable a recasting of state power and its character that such rights become important. 

It is a scheme-based and not a rights-based approach that has rendered basic entitlements in Sri Lanka gift horses for politicians and entrenched patron-client relationships. Often highly ethnicised, these relationships have also contributed to sustaining the majoritarian character of the state. The absence of a rights-based approach to social protection has been central to Janasaviya becoming Samurdhi becoming Divineguma now again being re-incarnated as Samurdhi. Every change bringing new rules designed to bend the scheme to fit the political exigencies, ideologies, and patronage circuits of the ruling dispensation.   

Beyond fundamental rights 

Questions of economic justice cannot however be abbreviated into economic and social rights alone. Despite its significance, a focus on the bill of rights or fundamental rights alone will not ensure economic democratisation and safeguard a distributive ethos. This calls for a spectrum of Constitutional obligations that taken together can enable inclusion, equity (including between peoples and regions) and an economic order that safeguards the interests of people and the environment rather than just the market or the state. 

These obligations range from an autonomous Finance Commission to transparent and participatory budgetary processes at national, provincial and local levels to more effective legislative and public oversight of public finance. Equally critical is substantial devolution of fiscal powers along with social accountability mechanisms. This is especially important in relation to access to natural resources and environmental safeguards. 

Moreover, executive power to contract foreign debt and enter into bi-lateral or multi-lateral financial and trade agreements must also be subject to strong checks and balances. Last but not least, a right of access to justice and effective remedies, sound legal aid and a Constitutional Court backed by an inclusive writ jurisdiction also devolved to Provincial High Courts are also critical. 

Towards political and economic justice 

Contrary to liberal fantasises, early modern European and Asian Tiger states intervened actively in the economy. In the latter, even property rights, a much-cherished liberal ideal, were restricted as land reforms were pushed through, and protectionism was in fact the norm. What Salley and his ilk are in effect demanding is a constitution that obliges the state to intervene actively in the economy in favour of a ‘free’ market.  

Intellectually jaded distinctions between ‘negative’ and ‘positive’ rights are smokescreens to disguise bending the constitutional order and the state in favour of dominant class interests. Arguments of the kind made by Salley are nothing but disingenuous claims to dignify demands for a constitution that will fail to oblige the state to end poverty and precariousness and guarantee a decent life for all citizens. 

But this debate is not only about the class character of the constitution or the state. It is also about a constitutional order that enables disruption of dominant economic and social relations—class, caste, and patriarchy in particular, and furthers redistribution and the rights of excluded others. This is also crucial to dent majoritarianism by undermining its political economic foundations and to help alter relations of dominance within majority and minority groups. 

Those who think political equality should be only goal of a constitutional order would do well to heed Dr. B.R. Ambedkar’s warning to India’s Constitutional Assembly that political equality without social and economic equality could eventually “blow up the structure of political democracy.” 

On 20 September hundreds of us, men and women—including farmers, fishers, workers, teachers, lawyers, human rights activists, and persons with disabilities—from all communities around the country marched to Temple Trees demanding a constitution that guarantees political, economic and social justice. And we will be back, and in even larger numbers, to claim what is rightfully ours!

(The author works with the Law & Society Trust, Colombo.)