Are justiciable socio-economic rights worth including in the Constitution?

South Africa is the poster child for inclusion of socio-economic rights such as rights to housing and education in the Constitution. The retired judge who came to discuss the South African experience at the Lakshman Kadirgamar Institute concluded by saying he hoped there would not be a question about the relation between South Africa’s rising inequality and justiciable socio-economic rights but that he had an answer. 

The GINI coefficient, where a higher value indicates greater inequality, was 59.3 in South Africa in 1993, three years before the current Constitution took effect. By 2011 it had risen to 63.4 according to the World Bank. According to another source, it was 62.5 in 2013 and South Africa had the second highest level of income inequality in the world.

There was no point in asking a judge about inequality. The causal relation between justiciable socio-economic rights and rising inequality would require a complex analysis of a counterfactual. Many factors were at play. What would inequality be, had the socio-economic rights not been included in the Constitution? 

Will good things happen?

The claim that the justiciable right of access to adequate housing (provided by Article 26(1) of the South African Constitution) led to a greater emphasis on the provision of housing is unprovable. In the same way it is not possible to blame the rise of inequality in South Africa on the inclusion of justiciable socio-economic rights, we cannot attribute the claimed improvement in housing to the justiciable right. The political process may have improved housing independently of litigants enforcing the Constitutional right. 

The South African Constitution qualifies the State’s obligation to realise the socio-economic right. The measures must be within available resources and must also be progressive in realisation of the right. 

What would happen when a citizen appeals to the court to enforce his or her right? The government’s lawyers would come in with lots of paper to show budgetary constraints and demonstrate good intentions to progressively realise the right. The lawyers on the other side would counter with another set of arguments and paperwork challenging those claims.

According to the Judge, the court could order the government to file affidavits in after some specified time. More paperwork, more work for lawyers. Immediate benefits to the applicant? Unlikely. Harm to the environment caused by excessive use of paper? For sure.

We have much to learn from the South African experience. Faced with the same choice we have before us today, the drafters of the South African Constitution chose to include justiciable socio-economic rights. But they were realistic. They qualified those rights. If we do decide to include socio-economic rights, we should, like them, include reasonable qualifications. 

The true beneficiaries will be the lawyers who get to argue the cases. But generating greater earning opportunities for lawyers is definitely superior to the creation of unrealistic and unenforceable rights that would also result in unelected and not fully informed judges making and implementing policy. 

Will bad things happen?

Then there is the question of the quality and disposition of the judges who would give shape and form to the rights written into the Constitution. We had reasonable language in the 1978 Constitution. All was more or less good until the advent of Sarath Nanda Silva. The Constitution was bent out of shape. Political parties were emasculated by the cross-over rule. The time limit on instituting fundamental rights case no longer exists.

His distortions upon some legal provision. We must be careful about what kind of language we leave for a judge who may take the path of Sarath Nanda Silva.

The socio-economic rights included in the Brazilian Constitution have been used mostly to obtain judicially decreed access to medical treatment. Would it be desirable to have judges decide on a case by case basis who is to get dialysis treatment? Would a judicial bypass route not privilege those who had the wherewithal to retain counsel and move the courts? 

Even though South African judges have been respectful of the boundaries between the judicial, legislative and executive branches what are the guarantees that a future judge in the mould of Sarath Nanda Silva will not walk through the doors left open by the inclusion of justiciable socio-economic rights in the Constitution? 

Balancing the good and the bad

One must keep two things in mind when making public policy (and new Constitutions). We must strive to do good things. We must also exercise the greatest care to minimise the chances of bad things happening. Sometimes we have to eschew well-intentioned actions because of the need to minimise the chances of bad things happening.

The only way socio-economic rights can be included in the Constitution is with strong qualifications similar to those in South Africa. This is unlikely to yield immediate, tangible benefits to citizens, only indirect good effects on policy and implementation. The proponents will feel good and lawyers will get more work. The danger is that a future Sarath Nanda Silva will use the language, however carefully crafted, to do bad things. 

Is it worth it?