By Mohamed Harees –

Lukman Harees

The economic crisis has been long in the making. In response to the crisis, the government implemented dramatic austerity measures. People’s protests were a challenge to the existing economic order, authoritarian rule and in effect the deficiencies of the constitution. It was apparent that austerity as the only solution to economic recovery has been further driving the economy down the abyss. Sri Lanka’s economic policies and the legal frameworks have been failing to secure the lives of ordinary people.

In fact, President Anura Kumara Dissanayake (AKD) says the lack of social justice a major reason for the mass outrage against the past rulers. ‘The inability to hold the economic butchers and corrupt rulers to account, whom the people held responsible for this painful crash, and impunity for perpetrators’,are both a failure of the formal justice process. Sri Lanka’s Supreme Court issued a symbolic ruling that the powerful Rajapaksa brothers – including two ex-presidents – were guilty of triggering the island’s worst financial crisis by mishandling the economy. However, the court was not inclined to order compensation for the millions who suffered as a result. There is a growing view that it’s this perceived disdain for regular people from both the political and financial elites that has brought the nation to its knees. And yet it’s the lower-middle and working classes that must bear the worst of the economic collapse. It is a fact that gross economic and social inequality is an enduring reality in countries of all levels of development.

The Sri Lankan government and IMF response to the economic situation undermined human rights in the country. More than 17 percent of the population are moderately or acutely food insecure and in need of humanitarian assistance, and 31 percent of children aged under 5 are malnourished, according to the United Nations. The IMF program focused on raising government revenues, and emphasized tackling corruption and improving social protection, but as structured it shifted the burden of recovery principally onto people with low incomes. The economic responses by the Ranil’s government thus further deepened the hardship of many of  the most vulnerable citizens, as poor Sri Lankans with no hope of finding local employment were forced to leave their families for nations in which they have few protections and little agency.

It is in this social context, that importance of social rights and access to justice for social rights violations become relevant. Social rights are the rights of people to achieve their basic human needs, and the freedoms, privileges, and entitlements that individuals and communities require to live a life of dignity. The Universal Declaration of Human Rights (UDHR), adopted in 1948 for the first time incorporated both the ‘Western concept’ of civil and political rights(CPR)  and the ‘socialist concept’ of economic, social and cultural rights (ESCR). ESCR are often called ‘second-generation’ rights, to differentiate them from CPR called as ‘first-generation rights’. In some constitutional traditions, other terms are more frequently used, such as ‘social rights’, ‘socio-economic rights’, ‘fundamental social rights’, ‘welfare rights’ or ‘welfare benefits.

UN General Assembly promoted two new documents- the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) in 1966. Together with the UDHR, the two Covenants built the “International Bill of Human Rights”, “the bedrock of the international normative regime for human rights.” Later on, in 1993, the Vienna Declaration and Programme of Action established in its Art. 5, that all human rights are “universal, indivisible, interdependent and interrelated.” In reality, the enjoyment of all human rights should be interlinked. Consequently therefore, when closely scrutinized, categories of rights such as CPR and ESCR make little sense. For this reason, analysts  even increasingly refer commonly as civil, cultural, economic, political and social rights. Protecting ESCR is important. Failing to protect them can have very serious consequences. For instance: the denial/ violations of ESCR;

* can have devastating effects

* can affect large numbers of people.

* have been among the root causes of conflicts, and failure to address systematic discrimination and inequities in the enjoyment of these rights can undermine the recovery from conflict.

* can lead to violations of other human rights.

Art. 2 (1) ICESCR also establishes that States parties in order to fulfil their obligations have to take steps, individually and through international co-operation, to the “maximum of [their] available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” State parties who have signed up to the international framework are under an obligation to protect these rights in the domestic context, this includes Sri Lanka. Given their financial constraints, states could thus make use of the existence of widespread indivisibility, in combination with the progressive implementation clause, to foster the efficient allocation of resources for human rights implementation

However, even some in the human rights field consider that only CPR, encapsulating human freedom, are properly human rights and that the promotion of ESC well-being may be a useful agenda for government policy but not for human rights. It is thought that only CPR, such as those set out in the International Covenant on Civil and Political Rights, are generally interpreted as imposing obligations of ‘immediate effect’. By contrast, it is said that the rights set out in the International Covenant on Economic, Social and Cultural Rights are subject to a doctrine of ‘progressive realisation’ (Article 2(1)) that enables them to be complied with over time in light of available resources)

Also, a traditional assumption sustains that the difference in language usually employed by CPR and ESCR statutes is explained by a hierarchical relation of the first over the latter. A more radical view disputes the feasibility of making ESCR justiciable for bringing ESCR judicial claims, arguing that only CPR, no matter the historical and legal tradition of the country concerned, can easily fit into a judicial proceeding. In legal discourse, this approach refers to CPR as concrete, self-executing individual freedoms with a correlative negative and binding obligation upon states. On the other hand, it defines ESCR as vague, non-obligatory collective aspirations with a correlative directive for governments.

However, twenty-first century human rights thinking has evolved beyond the Cold War divide and ―the sterile opposition between the two sets of human rights. The practical grounds for treating the two groups differently based on modes of implementation, including the use of the courts, reference to violations, and allocation of resources, have also lost their cogency since both sets of human rights require immediate and progressive measures, both have justiciable and programmatic elements, both are advanced by reference to cooperation and violations, and both involve the use in varying degrees of action by and resources of the state. The essence of human rights is to define priorities based on what is most valued by the society. The values represented by one set of human rights are no less valuable than those of the other, including under times of stress when national security or economic prosperity are threatened and under attack. The false dichotomy of ESCR and CPR has outlived its usefulness. It is time to move on to a more holistic and integrated understanding and practice of human rights.

From the Sri Lankan context, ESCR is a crucial area of human rights law that has long been marginalised. The point was highlighted in a recent article by Sri Lankan commentators Ahilan Kadirgamar and Swasthika Arulingam, who complained about the over-emphasis on C&PR solutions in the reform processes in Sri Lanka, saying ‘its predominant thrust has been to prioritise war crime prosecutions-heavily influenced by international actors-at the cost of addressing continuing economic inequalities and exploitation’. They assert that the ‘processes of reform are overwhelmingly influenced by international knowledge industries in transitional justice and comparative constitutional making. … But how long can human rights experts ignore the repeated socio-economic concerns that citizens are raising in the consultative processes?’

The 1978 Sri Lankan Constitution does not contain enforceable ESC rights. Instead, it contains a chapter on the Directive Principles of state policy (DPSP), which lists certain policy priorities of the state. These directive principles 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’. However, the Constitution does not provide a route through which the contents of these directive principles could be enforced. In fact, Article 29 of the Constitution states that they ‘do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal’ and that ‘[n]o question of inconsistency with such provisions shall be raised in any court or tribunal’. Thus a violation of any directive principle cannot be presented to a court for adjudication.

The explicit prohibition of judicial enforcement of DPSP however has not prevented the judiciary from using these principles to substantiate the judicial enforcement of human rights. (Centre for PolicyAlternatives:2016). In practice, the directive principles have been referred to, and to some extent, have been relied upon in certain fundamental rights cases. A good example of this practice is the Eppawela case, although the directive principle considered in the case dealt with the environment rather than a conventional ESC rights. It is also interesting that Sri Lanka’s Supreme Court has further recognized that an action that is ‘unreasonable’ is also a violation of Article 12. This provision has already repeatedly been used to challenge discrimination in the realization of economic and social rights.However, this is not the ideal route.

The Public Representations Committee on Constitutional Reform (PRCCR) formed, consequent to an initiative taken by the government in 2015, found there has been a groundswell of support for the incorporation of ESCR in the proposed new Constitution as a justiciable right. Legal author Gehan Gunatilleke, argues that Sri Lanka’s new Constitution ought to make ESC rights justiciable, and that the role of judges ought to be defined precisely and cautiously. Gunatilleke recommends that the constitutional text differentiate between a state’s minimum core obligations, which are not contingent on the availability of resources, and its general obligations to progressively.

Human Rights Commission of Sri Lanka has also taken up the position that Sri Lanka has a dualist legal system and has to incorporate international human rights standards via domestic legislation. HRCSL has actively advocated the inclusion ESC rights as justiciable rights in the future Constitution of Sri Lanka. In its recommendations for constitutional reform, the Commission endorsed an existing draft Charter of Rights that fully recognized indivisibility of rights. Further, their recommendations called for an expanded non-discrimination clause which is pivotal to the equal enjoyment of all rights including ESC rights, and also judicial review of legislation (not currently permitted).

As Centre for Policy Alternatives (CPA) contends ‘The question for modern legal systems is not whether economic and social rights should be part of a constitutional Bill of Rights. That question has been answered positively by many of the world’s recent constitutions. Rather the questions that modern legal systems face are; how should the courts interpret these rights? how should the legal regime balance progressive realization with immediate implementation? how does the court ensure that claimants in similar positions are not discriminated against as a result of the court’s order? what new remedies should the courts explore? and how can the legal system ensure that remedies are implemented as a matter of practice?

As CPA recommended, “Sri Lanka should take the bold step of including a set of directly enforceable economic and social rights in its new constitution and buttress this with a constitutional remedy that will allow both victims and public interest petitioners to seek relief where these rights are violated”, on grounds of “humaneness, criticality, process, budget accountability and budget priorities. The treaties impose an immediate obligation to take appropriate steps towards the full realization of economic, social and cultural rights. A lack of resources cannot justify inaction or indefinite postponement of measures to implement these rights. States must demonstrate that they are making every effort to improve the enjoyment of economic, social and cultural rights, even when resources are scarce”.

As Gunatilleke says, ‘it is crucial that constitutional reformers in Sri Lanka confront the complexities involved in the enforcement of ESC rights, and design a Bill of Rights that can facilitate a complex approach to ESC rights adjudication’.

Enshrining of ESCR as justiciable rights is ‘sine-qua-non’ for Sri Lanka to foster an inclusive economy and shared prosperity for all the citizens of the country. AKD government should take action to do so, in keeping with their policy and resolve to ensure social justice to the people of Sri Lanka.