By Lukman Harees –

Lukman Harees

“The true civilization is where every man gives to every other every right he claims for himself” ~Robert G. Ingersoll

The World Day of Social Justice, which falls on February 20th, annually reminds a rapidly polarizing world that society must be based on social justice, a respect for human rights and fundamental freedoms—and on the right to social protection for all. Social Justice is at the core of the global mission to promote development and human dignity. The adoption by the ILO of the Declaration on Social Justice for a Fair Globalization was just one recent example of the UN system’s commitment to social justice. The Declaration focuses on guaranteeing fair outcomes for all through employment, social protection, social dialogue, and fundamental principles and rights at work. The failure to actively pursue social justice is not without consequences. From the comprehensive global perspective shaped by the United Nations Charter and the Universal Declaration of Human Rights, neglect of the pursuit of social justice in all its dimensions translates into de facto acceptance of a future marred by violence, repression and chaos.

It is relevant to quote what Leonardo Boff, Brazilian Theologian & Human Rights Activist (1938) said, which aptly sums up the state of the world today. ‘Today social justice represents one of the most serious challenges to the conscience of the world. The abyss between those who are within the world ‘order’ and those who are excluded is widening day by day. The use of leading-edge technologies has made it possible to accumulate wealth in a way that is fantastic but perverse because it is unjustly distributed. Twenty-percent of humankind control eighty percent of all means of life. That fact creates a dangerous imbalance in the movement of history’.

Social justice is based on notions of equality and equal opportunity in society. It focuses on the full and equal participation of all citizens in economic, social and political aspects of the nation. Social justice can also refer to advantages and disadvantages distributed in a society. It derives its authority from the codes of morality in each culture and differs from culture to culture. United Nation’s objectives of social justice policies include social, economic and cultural rights, including right to an adequate standard of living; right to work and equal pay for equal work; right to education; and right of minorities to enjoy their own religion, language and culture. Social justice is required, desired, and talked about for human dignity, peace, and progress, but at the same time it is so widely missing in the management of societies in the present world. The likely reasons for the absence of this social justice is the formation of social structures, cultures, and life styles based on wrong founding elements.

In today’s context, human rights has been engraved in people’s minds to such an extent, that there is a common misconception that human dignity can only be achieved through human rights alone. This is however not true as there are other conduits as well especially in the contexts of other non-Western cultures. Two scholars Naim and Deng states, ‘Concepts of human dignity can be expressed by many terms: social justice, dharma, human rights. The particular form in which the international community, under Western influence, has chosen to express human dignity, however, is the concept of human rights’. Social Justice is thus referred to in the present context as ‘the Neglected Offspring of the Modern Human Rights Movement’. Social Justice is also one of the conduits through which human dignity can be achieved. What must however be borne in mind is that these conduits are not mutually exclusive, but complement each other in achieving the ultimate goal: to bring the dignity to the people.

In the modern context, those concerned with social justice see the general increase in income inequality as unjust, deplorable and alarming. It is argued that poverty reduction and overall improvements in the standard of living are attainable goals that would bring the world closer to social justice. However, there is little indication of any real ongoing commitment to address existing inequalities. In today’s world, the enormous gap in the distribution of wealth, income and public benefits is growing ever wider, reflecting a general trend that is morally unfair, politically unwise and economically unsound. Injustices at the international level have produced a parallel increase in inequality between affluent and poor countries.

Indivisibility of Rights and Social Justice in UDHR ! Real or Fictional?

UDHR adopted by UN included civil, political, economic, social and cultural rights in an integrated account of human dignity. Then the two foundation Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) translated UDHR principles into binding international law, almost 20 years later. The two Covenants were a clear manifestation of the ideological debates of the time with the Western countries insisting on freedom, and civil rights while the eastern countries insisted on economic and social rights. They were however adopted simultaneously thanks to a consensus between all the United Nations Member States, which recognised both approaches. Since 1948 and despite proclamations to the contrary, the two sets of rights have been essentially separated ,with the result that civil and political rights have taken Centre stage in the program of human rights globalization. Civil and political rights are still frequently referred to-and in a hierarchical sense, are believed to be-“first generation” rights. Economic, social and cultural rights are considered to be “second generation” rights.

At the domestic level too, the great majority of legal provisions protecting human rights (whether constitutional, legislative or judge-made) address civil and political rights rather than economic, social and cultural rights. This preponderance is most marked regarding Western human rights charters and laws in both civil code and common law jurisdictions. Thus, since the courts of the West have produced the bulk of the case-law on domestic human rights protection, the dominance of civil and political rights is further entrenched.

However, since the Vienna Declaration in 1993 ,which unequivocally affirmed the indivisibility and equal importance of all human rights, there can be little credible basis for asserting that civil and political freedoms are the deserving “core” of the human rights agenda. Since Vienna, outdated arguments regarding the non-justiciability of economic and social rights, their vague or exclusively programmatic nature, and the impossibility of measuring progress have all been significantly eroded through practice. In other words, it makes no sense to provide radically different enforcement regimes for the right to freedom from torture and the right to education. Without respect and remedy for one, the other cannot be protected. The freedom of expression would offer very little meaning where the right to be free from hunger is not subjected to judicial enforcement. 

Developments at the international level including the adoption of the Human Development Index (HDI) and the adoption of the Sustainable Millennium Development Goals (SDGs 2015) further establishes the idea that addressing economic and social rights of people is a core obligation of the state. Providing judicial remedies for these rights is an effective method of giving expression to this obligation.  The newer international human rights treaties such as the Convention on the Rights of Persons with Disability (CRPD) include civil and political rights as well as economic, social and cultural rights. These treaties reflect the reality that both sets of rights require protection if human dignity is to be respected.

Sri Lankan Scenario

The Constitution of Sri Lanka has attempted to attune the apparently conflicting claims of socio-economic justice and of individual liberty and fundamental rights by putting some relevant provisions. Most written constitutions of that time however reflected this ‘division’ of human rights as in the case of Sri Lanka (1978) and India (1949). Provisions were made for judicial enforcement of civil and political rights while economic, social and cultural rights were described as Directive Principles of State Policy in both constitutions and thereby the later was relegated to the realm of ‘aspirations’

In Sri Lanka too, a shift is evident over recent times ,in erasing the ‘traditional division of human rights. Economic and social rights were described as justiciable in the Draft Constitution of 2000 and had the support of both the People’s Alliance and the United National Party. The Draft Bill of Rights that was subsequently proposed under President Rajapaksa in 2009 too included the judicial enforcement of economic and social rights. The Sub-Committee report on Fundamental Rights that was submitted to the Steering Committee of the Constitutional Assembly(19 November 2016) provides for, among other things, judicial enforcement of economic and social rights in the proposed constitution. Human Rights Commission of SL proposals to the New Constitution, also emphasized the need to, among other things, recognize the promotion of social justice as a fundamental constitutional principle. It reiterated the importance of incorporating a strong system of checks and balances, including judicial review of legislation to ensure the effective protection of people’s rights

Sri Lanka has been a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) since 1980, when it was ratified by the state. But as stated by the monitoring UN Committee on Economic, Social and Cultural Rights in its concluding observations of 2010, “the Covenant has not been given full effect in the domestic legal order and although some of its provisions are justiciable before the Supreme Court, they are rarely invoked.” This is directly relevant for the majority of people in Sri Lanka, as they are confronted with a deficient legal basis and their access to justice is significantly hindered. It also reinforces the necessity of bringing the ICESCR standards into the new constitution.

Of course, there are arguments to the contrary too, as put forth by academics like Razeen Sally. However, it is imperative at look at the ultimate outcome- the distributive justice, as another legal academic Dinesha Samararatne in a recent FT article says. ‘The debate on justiciability of economic and social rights must ultimately deal with the question of distributive justice. Under a self-proclaimed ‘democratic and socialist’ society it is desirable and mandatory that the judiciary must ensure that the state is accountable for the way in which it respects economic and social rights. While being limited in scope, judicial enforcement will have a normative impact on the Executive and Legislative branches of the state and provide more opportunities for citizens to be heard and to participate in processes of resource allocation. Such a constitutional arrangement can qualitatively improve democracy and justice in our society’.