Thank you very much for that welcome,  It’s great to be here in Colombo. I’ve always liked the quality of intellectual dialog here very good.

I was briefed that I should speak on incorporating socio economic rights in the constitution. What I’m going to do is try and develop a conversation.

I realize this is a subject of live and passionate debate in Sri Lanka. I’m not going to directly talk about the Sri Lankan constitution for two reasons. First, because I’m not equipped to do so. It requires an intricacy that I do not possess. Second, when thinking about constitutions in general the most important thing to realize is that a constitution is a social contract within a particular group of people. Because it is a social contract it has to reflect the historical specificity of that people’s values, goals, aspirations and identities. There isn’t as it a thing like a cookie-cutter template for constitution making.

I often joke that one thing that saved India is the fact that it didn’t have an army of constitutional consultants, in 1948 suggesting best case solutions from everything from federalism to separation of powers and human rights. Constitutions are social contracts, and part of what that means is that it needs to be legitimate in the eyes of the people who are going to be governed by that constitution. In that sense, the constitution and the choices you make about a constitution is fundamentally a political negotiation.

*Prof. Pratap Bhanu Mehta

Always be very suspicious of anyone who tells you that there is such a thing called a “first-best” constitution; a conception of constitutional validity that’s independent of the legitimacy that the constitution exercises over its people. It’s up to your elected representatives and the people of Sri Lanka to, in a sense, negotiate their way into a settlement.

The test of an enduring constitution is simple: Ask the question “do all those governed by a constitution feel that it’s one that they have chosen?” And “are they exercising their rights as free and equal citizens?” It shouldn’t be up to experts or people with constitutional authority to prescribe an ideal form of a constitution.

What we could do is share what different experiences will look like, and what those experiences might mean when you think about a new constitution in Sri Lanka.

What I will speak on in the next 20 minutes or so is on the following:

• How should we frame the debates over economic and social rights in the constitution?
• About the Indian case and possible lessons from that for Sri Lanka or any other constitution making progress.
• End with a couple of suggestions regarding things to think about in the Sri Lankan debate.

Now historically, the way the debate over socio economic rights in the constitution have been framed in three ways. On the question should social and economic rights be constitutionalized, the first framing is kind of teleological, this is the standard textbook constitutional history that everybody is taught. It goes something like the following: they say, first generation constitutions, like the American constitution, are concerned with Civil liberties and rights, etc  — negative liberties — freedom of expression and representative government. But as the ambit of social citizenship expands, we add more rights to common basic core political rights. This expansion on the language of rights is very much reflected in rights discourse around the world. It’s reflected in International Human rights covenants, you have economic and social rights as part of the UN declaration of human rights, etc. So the later a constitution is written — for example South Africa or Kenya — the more likely it is to contain social and economic rights.  So one framing of the question of those rights is this is part of some natural progressive teleology of improvements in constitutional making. The first set of constitutions were concerned with tyranny, so they emphasized liberty. Later constitutions came to realize that you actually can’t emphasize liberty without capturing at least some form of substantive equality and that’s why this growing trend towards greater constitutionalization in economic and social rights is a natural teleology you can’t escape it, some argue. That’s the kind of a historian’s tracing.

There is a philosopher’s tracing of this; which is often a little bit skeptical of the idea of constitutionalizing economic and social rights. It’s a bit skeptical because traditionally philosophers have made distinctions between what we call civil and political rights and economic and social rights. This is largely on account on the content and character of the rights. So the basic intuition is, socio-economic rights are harder to constitutionalize because they are a lot more polycentric, you might say you have a right to health but it’s not clear what a right to health might amount to, it’s not clear how you would make it justiciable. So even if you agree with the principle, institutionalizing or realizing that right involves a more complicated set of considerations than say in freedom of speech. Where basically the court order itself provides itself provides you with protection and instantiation of that right. That’s a very conventional distinction and that’s how philosophers have framed it.

The third framing is what you may call a more ideological framing of the story. The ideological framing implies that economic and social rights define the difference between left and right in politics. So we think of the right as — I’m speaking in terms of the ‘economic right’ — a bit more skeptical economic rights. Because socio economic rights in this view typically enhances state power. It licenses the state to intervene in order to produce much more substantive equality. A lot of heat and passion is generated around these debates.

What I want to submit to you very briefly is that I think all three of these are a wrong way of posing the question. We did some empirical work on the instantiation of social and economic rights as well. The proper question to ask is “What is the problem that constitutionalizing economic and social rights meant to solve?”

I think the ideological divisions  around social and economic rights can sometimes be exaggerated. I think it’s fair to say that In the 21^st century any state has to meet a basic legitimation demand.  And part of the basic legitimation demand will have to be the provision of opportunities for economic empowerment. Rights to health, education, maintenance of the environment and so forth. It’s hard to imagine any 21^st century state that does not have to meet these objectives as part of instantiating their own legitimacy. The question however is, are those goals met by putting  socioeconomic rights in the constitution?

So we could all agree — this is an important point to begin with — It’s good to have the best healthcare for all citizens as equitably as possible, nobody disagrees with the need to disseminate education as widely as possible, very few people would also disagree that you need some sensible labor regulation, workplace regulations and so forth. The specific question is “are you more likely to achieve those objectives, if you actually constitutionalize them”?. If you put them as part of the constitution rather than leaving it to the normal hurley burley of representative politics?” That’s the core question.

Now the short answer to this question if you look at comparative empirical evidence turns out to be, the very boring answer that most social sciences give to every question which is “it depends. Under what conditions”? and usually the answer throws up a paradox. It’s precisely those countries that would’ve achieved these goals — health, education, etc. —  even in the absence of constitutionalized social rights that also do better when you constitutionalize them.

What do I mean by this? In countries like India — I think it’s probably true of Sri Lanka and almost all developing countries — South Africa, Kenya, etc. Part of the fascination with constitutionalizing more and more rights comes from a feeling of deep state failure. Most countries that have achieved a lot of these rights like Social democracies of Scandinavia, advanced developed countries, actually did them without constitutionalizing these rights.

So the idea that constitutionalizing a right is a necessary condition for achieving a particular goal is simply a false idea. We have a fascination for constitutionalizing it because we think that in the absence of making it a justiciable constitutional right, our ministers, legislators and MPs won’t create the condition for this realization.

So this context is very important because the discourse of rights in developing countries emerges from a history of state failure. We want to go to courts because our legislatures  won’t give us these things; that’s the master narrative.

The paradox is, if you’re in a country where the legislators do not give you these as part of the normal give and take of representative politics, It’s highly unlikely that even if you constitutionalize them and make them justiciable, you’ll actually have the effective institutions that can deliver these rights in the first place.

So the idea that rights can be a substitute for broad scale governance reforms needs to be challenged frontally and squarely.

In India if you did a poll amongst academics particularly of those who favor constitutionalizing rights and those who don’t. Typically lawyers love to constitutionalize rights. They want more and more rights written into the constitution. Economists and political scientists are a lot more skeptical -I’m over generalizing a bit.  In part because economists and political scientists are concerned about the consequences.  So keep in mind this as a summary proposition. If you think that constitutionalizing rights is going to be a substitute for solving the governance problem where your legislator is not delivering, then I think you’re in for a rude shock. This is largely what the comparative evidence is telling us.

Taking India for example, in their debate over these rights in the year 1950, they did not constitutionalize socio economic rights. Instead there was something  called “directive principles of state policy.” It’s worth asking why India didn’t constitutionalized socio economic rights in 1950. 

B.R Ambedkar, the architect of the Indian constitution in his earlier work was inclined upon expansive constitutionalization of these rights. But when it came to the constituent assembly, he changed his position. There were two intuitions behind his change of positions that I think is very instructive for any debate on this question. He basically argued that these rights ought to be framed institutionally rather than philosophically or ideologically. What did he mean by that?  Two things. 

First, he argued if you are constitutionalizing social and economic rights and making them justiciable, you are implicitly trusting courts to deliver on those rights more than legislatures.  The question to ask is, under what conditions is that trust justified? Why do we think we should trust judges more than we trust our politicians? This is not an easy question to answer. The reason lawyers and middle classes like these rights is because we think, somehow judges as a class as a virtue of that institution will be insulated from politics. Because they are insulated from politics, they can deliver those that things we want to deliver.

Ambedkar was skeptical of that idea. He was not saying judges are bad or that they can’t be trusted. But he felt if a society reaches a point where you feel like you need to put trust more on judges than your politicians, then there’s probably a deeper corrosion of democracy anyway — You are in much bigger trouble.

The second reason he changed his mind was,  he felt that in any society, there’s a difference in opinion over economic matters. In India’s constituent assembly for example,  we have communists, socialists, free market liberals, capitalists — people who want stronger property rights protection, etc.  and Ambedkar’s basic argument was that a constitution shouldn’t pre-judge many of these choices. We could all agree that having more health care, education, worker’s welfare are good ideas. But we might disagree on the institutional architecture that’s going to produce that outcome. His worry was that deep entrenchment of these rights in a constitutional structure, abridge that democratic and political discussion. That what that best solution should ultimately emerge out of democratic politics.

Second It should be open to iterative re-examination. So for example, sometimes we strengthen property rights,  but it doesn’t work and global economic circumstances change — we might have to change our stance. To take a controversial example. One of the rights that’s discussed a lot is workplace protection. In terms of increasing a worker’s bargaining power, now let’s say we could all as a society agree that this is a good thing. We could actually still disagree on what would best achieve that outcome.  If your economic analysis says for example,  as is currently discussed, say your employment elasticity of capital is falling. You have ‘Jobless growth’. Therefore you need a form of social protection that detaches income from employment –This is the debate over Universal Basic Income — you might come to a different view of what employer employee relationship should be. Your argument might be giving people a basic income actually enhances their bargaining power and that this is better than putting stringent minimum wage restrictions and placing the onus on the employer.  Now you have two different models of enhancing the workers bargaining power. How do you decide which is correct? Ambedkar’s basic point was, this a kind of thing that needs to be amenable to iterative learning.  The danger of constitutionalizing is that you may be doing so on premises that actually shift very fast. Because economies change and so forth.

My view judging by the Indian experience is that I think this way of thinking;  The two questions of  “Are courts going to be better guarantors of rights than legislators?”, and secondly “Is the nature of this problem such that it should be open to quick iterative learning and democracy rather than be fixed in stone by a set of constitutional principles?”   That is the reason why, we in India ended up with directive principles of state policy. 

The subsequent history of Indian legislation is kind of interesting. And offers an interesting lesson for Sri Lanka. So India ends up with the following Paradox.  India includes the right to property in the constitution in 1950, we did not constitutionalize socio economic rights.  But by the 1990s the reverse had happened.  The Supreme Court using its powers in a manner Ambedkar feared it might, started reading all these rights into the Indian constitution. The court took article 21 which says we have a right to life. The courts said that can’t simply mean the right to bare subsistence. And through that right it many began to read almost every right into the constitution. It promulgated a right to shelter, health, environment, education and we even the right to sleep – a famous supreme court judgement where there’s a right to sleep undisturbed.  So the courts read a whole series of rights into the constitution.

On the right to property something interesting happened. India weakened its power on the right to property, because it was thought to be a weapon that could be used to protect the privileges of the people. So they wanted to weaken this right to enable redistribution of property.

But looking back into the last 70 years, this is the biggest paradox.  By weakening the right to property, it allowed the state to dispossess the poor much more easily than they dispossessed the rich. The state used its power of eminent domain not just for infrastructure projects but for helping all kinds of  private developers.

In socio economic rights the Supreme Court has pronounced a whole series of rights. And the question to ask is has Indian governance improved as a result of the promulgation those rights? now this is a complicated empirical question, but my short answer would be — very little.

So here’s the paradox. The court pronounced the right to education. We now have a right to education bill as a result. But this bill was passed the day India’s enrollment in primary education had already reached 100%. So the right came after the fact, but more importantly, the right focuses is largely on the input side of education. So you must have a school of such square foot area, but this has absolutely no bearing on learning outcomes. In fact India’s learning outcomes have worsened after that right was pronounced.

Similarly in the right to environment; ask yourself, how does India with the most progressive environmental laws in the world, ended up with the filthiest air and water in the world?

On the right to health, to be fair in the supreme court’s interventions, certainly puts a little bit of pressure on the executives to answer for administrative lapses. But the constitutionalization of that right has not led to the creation of a better public health system.  In short, what I’m saying is that the very governance pathologies that prevented us from doing well with those rights in the first place are reproduced when the courts try to administer these rights. Partly because beyond a certain point they don’t have the power to enforce these rights.

If you look at the contemporary moment in the constitutionalization, we face another paradox which  John Gardner calls as the paradox of legality versus Juridification. Society is becoming more juridified, we are bringing more things under the rubric of justiciable rights. Yet the domain of illegality is increasing, and part of the reason is — this is a feature of socio economic rights — that you can promulgate these rights, but beyond a certain point the courts don’t have the power to design appropriate remedies.

As an example, in India the court pronounced this magnificent right to livelihood and right to shelter. Great rhetoric. But what was the remedy the court provided?  Well, it’s basic few things like, adopt due process, before you evict people give them six weeks notice instead of four, etc. But the crucial point is, in social and economic rights around the world,  South Africa is presented as this magnificent example, it has the most progressive social rights constitution — the gap between rights and remedies the court prescribes gets wider. So you have this paradox, as a citizen thinks he or she is entitled to a right. But it’s subversion of rule of law to say I have the right but I don’t know what remedy is going to be attached to it.

I’m going to conclude with a couple of thoughts. In sum, empirically there’s very  little evidence to say that constitutionalizing social and economic rights makes a huge difference to governance. If it does, it does so at the margins. It does have expressive value, it can sometimes allow the courts to hold the executive to account for procedural matters.

But If you believe that constitutionalizing will compensate for those governance deficits ,and one reason we like to constitutionalize rights is because this is governance on the cheap.  The idea is all you have to do is put an article in the constitution. All lawyers will declare victory, civil society will be happy because there’s this great focal point.  What happens after that? That remains the unresolved question.

When I was reading the Sri Lankan select committee report, it had great emphasis on rights that need to be protected. Right to privacy and so on. One thing that struck me was, the fact that perhaps it’s inevitable to have some form of socio economic rights in any 21^st century constitution. The momentum in that direction is rather high.  My only recommendation for consideration is the following: If indeed a constitution does end up putting these rights in the constitution, it should at the same time provide a clear legislative framework to put underneath it.

Just to take one example, having the right to health, what does that right entail? The European drafting on this (ECHR) says everyone has the right to preventive health care. The right to benefit from medical treatment under conditions established by national law and practices. It’s a conditional right. What you need to do is specify what the national law and practices are.

Otherwise you might end with the same paradox Brazil ended up with. In Brazil the right to health is the most litigated. Every study is finding that promulgation of the right to health ended up benefiting the privileged more than it benefited the poor. Why? Because it’s an unspecified right to health.

You may show up in court saying “Look, I need an expensive dialysis machine, given the disease I have…” If the court is dealing with the case individually, it can use the right to health, right to life as a basis to grant you that relief. But that relief comes at a cost.

So unless a right, whatever the right maybe, it’s not just important that it’s not open ended in the constitution, it should very carefully put underneath it a legislative framework that specifies what those national law and priorities are.

Because otherwise you risk having Ambedkar’s worst nightmares. Where you have the economy governed by courts.  Power taken away the legislature and democratic process. And a perverse outcome where the right can be used more as it were to buttress the rights of the privileged rather than to protect the weak and vulnerable, which was what that right was meant to do.

*The transcription of Prof. Pratap Bhanu Mehta’s lecture organised by Advocata Institute in Colombo on the topic “Implications of incorporating Socio Economics Rights in the constitution”