Need to incorporate economic, social and cultural rights in Sri Lanka’s future Constitution

Tuesday, 25 October 2016 00:01 -     - {{hitsCtrl.values.hits}}

The Human Rights Commission of Sri Lanka (HRCSL) calls on the President to give leadership in calling for and the Prime Minister and all members of the Constitutional Assembly to ensurethe incorporation of economic, social and cultural rights in the future constitutional chapter on rights as fully protected rights. The HRCSL is deeply concerned by moves by some to prevent the inclusion of such rights in violation of the principle that human rights are all inter-connected and cannot be divided. The constitution-making process must necessarily recognise the views articulated by the public in the public consultations process (201G) demanding the constitutional protection of rights such as the right to education, an adequate standard of health, housing and fair conditions of labour in the future Constitution. Failure to do so is also a violation of legal obligations undertaken by Sri Lanka, particularly under the International Covenant on Economic, Social and Cultural Rights (1956). Sri Lanka's improving human rights record will be sullied by such a failure and would seriously undermine public confidence in the future Constitution. Following is the full statement by the HRCSL:


The HRCSL is deeply concerned by attempts made by some quarters closely associated with the currentconstitution-making process to prevent the inclusion of economic, social and cultural rights (ESC rights),such as the right to education and an adequate standard of health, from the constitutional Bill of Rightsas full-fledged rights for which judicial remedies are available. It has been argued that only civil andpolitical rights should be guaranteed as full rights.

The HRCSL, the primary institution charged with the protection and promotion of human rights in thecountry, rejects this artificial division of human rights. It calls on the ConstitutionalAssembly to ensurethat the people's rights are fully guaranteed in the future Constitution. Failure to do so would seriouslyimpede full protection of human rights and undermine the legitimacy of the new Constitution in theeyes of the public. It is the opinion of the HRCSLthat such a move would also amount to a violation ofinternational human rights obligations undertaken by Sri Lanka.

In March of this year, the HRCSL made submissions before the Public Representations Committee on itsproposals for constitutional reform. The proposals were sent to the Hon. Prime Minister and the Hon.Speaker and were made available to the public in Sinhala, Tamil and English. In its proposals, the HRCSLendorsed the Draft Charter of Rights completed in 2009 for inclusion in the new constitution of SriLanka. The Charter, formulated by a group of experts appointed by an inter-ministerial committeeguarantees not only civiland political rights but also economic, socialand cultural rights as full-fledgedrights capable of attracting judicial remedies.

The HRCSL proposals also emphasised the need to, among other things, recognise the promotion ofsocialjustice as a fundamental constitutional principle. It reiterated the importance of incorporating astrong system of checks and balances, including judicial review of legislation to ensure the effectprotection of people's rights. Above all, the need to recognise the principle of supremacy of theconstitution was underscored.

The HRCSL proposals were made fully conscious of the unique opportunity this moment presents for SriLanka, especially as a post-war society, to acquire a modern constitution that addresses concerns of itspeople within a strong democratic State structure. This is a moment to right the wrongs of the past, andforge ahead to create a new Sri Lanka that is humane and just, as much as it is prosperous. Protection ofthe rights of the people in a strong and holistic manner is critical to achieving those goals. The post-conflictconstitutions of South Africa, Kenya and Nepal, for example, are illustrative of such efforts. SriLanka too should follow suit and not miss out on this unique opportunity.

The HRCSL points to the following in that regard:

1.Human rights are recognised in order for people to live in dignity realising their full potential. Asmuch as all aspects of human life are inter-connected, so also are human rights. It would befutile to divide rights and selectively protect only some of them. Today, the idea of indivisibilityof rights is a firmly established principle recognised by the community of nations. The ViennaDeclaration and Program of Action adopted by consensus by 171 States participating in theWorld Conference on Human Rights held in Vienna in June 1993 declares that 'All human rightsare universal, indivisible and interdependent and interrelated'.

2.The unique feature of the current constitution-making process in Sri Lanka is the importanceattached to public consultations. Such a process was missing in the making of the first tworepublican constitutions. The basis of constitution-making must be the will of the people inwhom sovereignty lies. No entity is more powerful than the people in a democracy. TheConstitution is for the people and must necessarily be by the people.According to the detailed report of the Public Representations Committee on ConstitutionalReform (May 2016), public representations had strongly demanded the strengthening of theexisting constitutional chapter on rights by including rights such as the right to education, anadequate standard of health, housing and just conditions of work (Chapter 12). It is clear thatsuch rights are no longer viewed by the people as welfare entitlements. They are recognised ashuman rights. It is worthy of note that the representations place strong emphasis on socialjustice in shaping the nature of the State. The demand is clearly not for cosmetic entitlements,but for full-fledged rights.

3.The need to secure social justice in a post-war society cannot be emphasised more. It is the gluethat could hold a fractured society together by building trust. People need to believe that theState is empathetic to their critical needs such as housing, food security, livelihoods, schoolingfor children and healthcare. Experiences in post-conflict societies everywhere, more recently incountries such as South Africa, Kenya, Nepal and Colombia, have proved that a constitutionalcommitment to social justice is needed to bring about political stability and instil credibility in governance.

4.It is significant that recent public representations have referred to Sri Lanka's internationalhuman rights obligations in articulating their demands (Report on Public Representations onConstitutional Reform (2016), Chapter L2). Reference has been made, among others, to legalobligations under the international Covenant on Economic, Social and Cultural Rights (ICESCR)which Sri Lanka ratified way back in 1980.

5.    States that have ratified the ICESCR are under an obligation to realise the rights through'progressive realisation utilising the maximum of available resources' (Article 2). The State has todemonstrate that available resources are used maximally to realise ESC rights of the people.The State must ensure equal access to services. The State must ensure that the qualitativenature of services is commensurate with available resources. The economic development modelof the State is irrelevant for those purposes. What is important is that the State discharges itsobligations and demonstrates results.

1.Often, what is at issue is not the unavailability of resources but the failure to use availableresources in a responsible and reasonable manner to realise the rights of the people.International human rights obligations compel States to utilise resources in a disciplined andaccountable manner for public benefit.

6.Where there is a right, there is a remedy' (ubi jus ibi remedium) is a sacred legal maxim. Criticsof full recognition of ESC rights argue that canvassing such rights before courts would permitunelected judges to pronounce upon policy matters involving allocation of public resources and,therefore, should not be constitutionally recognised as rights for which judicial remedies wouldbe available. That position is unacceptable for conceptual reasons and is also in violation of theinternational obligations of Sri Lanka. Judges would not called on to initiate policy making in that regard, but are called on to reviewquestionable policies. That is an essential feature of any functional democracy. The ICESCRobligates Sri Lanka to provide remedies, including judicial remedies, for violation of ESC rights[Committee on Economic, Social and Cultural Rights, General Comment No.9 on 'DomesticApplication of the Covenant', ElC.Lzl L998124 (1998)]. The UN Committee on Economic, Socialand Cultural Rights, which supervises the implementation of ICESCR, has declared that it is nolonger possible to deny remedies, including judicial remedies, in regard to ESC rights.Human rights discourse at both national and international levels has moved on to new frontiers,recognising that ESC rights as well as civil and political rights entail positive as well as negativeState obligations and that the realisation of all rights have financial implications for the State.

2.In fact, the right to vote and the right to a fair trial (civil and political rights)are two of the mostexpensive rights entailing the formulation and implementation of complex policies. That doesnot mean, therefore, such rights should be denied judicial remedies. However, sceptics arguethat the right to education and right to health, for example, should not have judicial remedies asthey entail both State resources and policy implications. Therefore, such should be leftto the whims of the political branches without judicial review. The HRCSL finds such a position tobe illogical and internally contradictory. As the ESC rights Committee points out, such reasoningnegates the linkage between rights (indivisibility of rights) and seriously curtails the possibility ofcourts to protect the rights of the most vulnerable and disadvantaged in society (GeneralComment No.9 (above), para 10).

7.Reluctance to fully recognise ESC rights has much to do with one's economic policy orientations.Human rights of the people cannot be contingent on the shifting vagaries of the market orofficial economic policy priorities that may change from time to time.

8.The Responsibility of private economic actors to respect human rights is also increasinglyrecognised both at nationaland international levels. The UN Guiding Principles on Business andHuman Rights (Ruggie Principles) (2011) recognise that States are obligated to enforce laws thatrequire private business entities to respect human rights. The much respected Constitution ofSouth Africa (L996) extends human rights obligations to private actors as well.In Sri Lanka too public representations have been made to that effect (Report of the PublicRepresentations Committee (2016), p 1271. HRCSL proposals on constitutional reform haverecommended that human rights obligations be extended to private actors. The right toproperty and the right to engage in an occupation of one's choice should be balanced withobligations to larger society. Rather than be deterred by such obligations, private businessentities should welcome the opportunity to earn public goodwill and credibility. Many arediscoveringthat socially responsible business practices are good for business. It is evidenced bythe 8,000+ companies that have joined the UN Global Compact.

9.It is also argued that full constitutional recognition of ESC rights would encroach on devolvedpowers. Devolution of power is not a license to violate or diminish people's rights, but is ameans to better protect rights. Recognised human rights norms recognise minimum standardsthat should be respected and protected by all constituent units of a state.

The world is watching the reform agenda in Sri Lanka with great anticipation, especially in regard todeepening of democratic governance and protection of human rights. Regression of the kindproposed by the critics of ESC rights would be a serious rolling back of progressive constitutionaltrajectories established by more recent constitutions such as those of South Africa, Kenya andNepal. It would be a black mark against Sri Lanka's improving human rights record. Not only shouldthe people of Sri Lanka make use of this unique opportunity to secure a strong constitution forthemselves, but also ensure that a healthy precedent is established for other countries to emulate.Accordingly, the HRCSL calls on His Excellency the President to give leadership in this regard. Weurge the Hon. Prime Minister and all members of the Constitutional Assembly to ensure that theongoing constitutional reform process ensures the inclusion also of ESC rights in the futureconstitutional chapter on rights as fully protected rights capable of vindication by courts, respectingthe principle of indivisibility of rights that would enable the full enjoyment of human rights by thepeople of Sri Lanka.

The HRCSL calls on concerned citizens and civil society organisations to step up advocacy for fullconstitutional recognition of all human rights so that there will be no future regrets on missedopportunities.