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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
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. Proposals for judicial enforcement (also known as justiciability) of economic and social rights in the proposed constitution has generated some debate and disagreement (see for instance, Razeen Sally ‘Economic and Social Rights in the New Constitution: Why it’s a Terrible Idea’ Daily Financial Times, 4 October 2016, open letter by the Human Rights Commission, October 2016 and ‘Economic and social rights in the Constitution: An idea whose time has come’ Vijay Nagraj 14 October 2016).
This article considers some of these arguments and offers a justification for judicial enforcement of these rights for furthering justice in our society. This article draws from a recently published working paper by Mario Gomez et al ‘Constitutionalising Economic and Social Rights in Sri Lanka’ (CPA, 2016) of which the writer was a co-author but focuses specifically on judicial enforcement of economic and social rights. The first part of the article considers judicial enforcement specifically while the second part considers the reasons for arguing in favour of such judicial enforcement.
Report of the Sub-Committee on Fundamental Rights
The report is in fact a proposed draft bill of rights. The significance of this report and the improvements that it recommends ought to be dealt with in detail. Following the 2000 draft Constitution the sub-committee proposes the inclusion of enforceable ESRs – labour rights, right to education, right to health, social rights and right to environment and natural resources.
Social rights include right of access to sufficient food and nutrition, clean water and sanitation, adequate housing and shelter, appropriate social security and decent employment on the basis of progressive realisation. Further the sub-committee recommends the inclusion of a prohibition from arbitrary eviction.
Economic and social rights in contemporary constitutions
Newer and more progressive constitutions in different parts of the world provide for judicial enforcement of economic and social rights. Examples include the Kenyan Constitution 2010, the Colombian Constitution 2013 and the Constitution of Nepal 2015. Provisions for judicial enforcement of economic and social rights in these constitutions reflect an evolution in the ways in which bills of rights are viewed in constitution democracies.
The earlier view in both international law and in constitutional law was that only civil and political rights ought to be enforced by the judiciary. Civil and political rights were described as being subject to ‘immediate realisation’ under the International Covenant on Civil and Political Rights 1966 (Art 2). Economic, social and cultural rights on the other hand were considered to be more suitable as general commitments of states and only subject to ‘progressive realisation’ as described under the International Covenant on Economic, Social and Cultural Rights 1966 (Art 2).
Most written constitutions of that time 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’.
At that time, the thinking was that civil and political rights only cast ‘negative’ obligations on the state i.e. the duty ‘to not violate’. For instance, the state had to refrain from arbitrarily restricting the freedom of expression and the state was prohibited from subjecting persons in custody to torture. The thinking was that such ‘negative’ obligations do not affect a state’s decisions regarding resource allocations, etc. and could therefore be subjected to judicial enforcement. Conversely, economic, social and cultural rights were described as casting ‘positive’ obligations on the state i.e. the duty ‘to actively provide’. Classic examples would be the provision of healthcare services and education.
These rights therefore were understood to be requiring resource allocations and policy formulations and were therefore considered to not be suitable for judicial enforcement. Alongside of these views the judiciary was perceived in general to have a narrow scope for their decision making. Public interest litigation was yet to come and matters of ‘social justice’ were not considered to be central to the interpretation of the law by the judiciary.
Since then, significant advancements have been made with regard to judicial enforcement of economic and social rights through constitutions. As per a recent statistical study conducted by the Toronto Initiative for Economic Social and Cultural Rights, today 158 constitutions recognise at least one economic or social right. Of these constitutions, sixty-seven declare them to be justiciable while thirty declare them to be aspirational. The other constitutions fall between providing for justiciability and making aspirational statements for these rights.
The right to property is the most commonly enshrined and justiciable economic and social right, with the other four being education, health, social security and child protection. Regionally, justiciable economic and social rights are most common in Latin American and East European states. These statistics demonstrate that the inclusion of economic social rights as judicially enforceable rights is increasing across the globe.
In Sri Lanka too this shift is evident. 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.
Sri Lanka specific arguments
Be that as it may, the argument for inclusion of judicially-enforceable economic and social rights in a proposed constitution for Sri Lanka has very little to do with global trends although those trends help make the case. As it has been pointed out, Sri Lanka, perhaps along with the state of Kerala, has been unique in the region in providing universal access to education and to healthcare since the early 1940s. It is misleading therefore to consider Sri Lanka as being similarly situated with other states in which universal access has not been available.
Sri Lanka’s welfare policies of the early 20th century were accompanied by policies for social security and legislation to protect rights of employees. It is perhaps in relation to the right to land and the right to housing that Sri Lanka has not developed significant national policy and/or legislation. Given that Sri Lanka has already made policy commitments to ensuring economic and social rights and implemented those policies for more than six decades, the judicial enforcement of those guarantees becomes a logical next step. I say this for two reasons.
One is that, even under the current constitution, these welfare policies are and can be enforced by the judiciary through the writ jurisdiction and the fundamental rights jurisdiction where there has been a violation of ‘due process’. ‘Due process’ is used loosely here to denote administrative wrongs such as the failure to respect rules of natural justice and the arbitrary use of administrative discretion. Secondly, in the Sri Lankan context judicial enforcement, particularly in relation to education and health, does not amount to judicial determination of resource allocation. Considerable amounts of resources are already being allocated by the state towards these commitments. Judicial enforcement however will be a critical safeguard where the state attempts to go back on its commitments or is negligent in the actual provision of these services, as it is in the case of education services in Sri Lanka.
Report of the Public Representations Committee
Further arguments can and must be made in justifying judicial enforcement of economic and social rights in Sri Lanka. As was pointed out by the Human Rights Commission, the public consultations on proposed constitutional reforms make it clear that the public expect judicial enforcement of economic social rights. The report of the Public Representations Committee in fact proposes a long list of human rights to be included in the Constitution as judicially enforceable and recommends unanimously that the full gamut of economic and social rights be included. In fact, many in Sri Lanka seem to be under the impression that education and health care are in fact constitutionally enshrined guarantees.
Research in Sri Lankan society demonstrates, quite readily, that individuals and communities are unable to seek realisation of aspects of their economic and social rights for instance in relation to social security, housing, and decent work. Often these issues arise not due to lack of resources or due to lack of state involvement but due to abuse of power, inefficiency, negligence, corruption, etc. For instance, many farmers are without official documentation for land in Sri Lanka. Many women are solicited for sexual favours when they seek public services. These are issues that can be addressed even under the prevailing constitutional scheme through the right to equality and non-discrimination.
However, there are instances in which making the case for the recognition of the substantive right becomes essential for a better vindication of the rights that were violated. For instance if a school principal solicits a sexual bribe from a divorced mother for admitting her child to school, sexual harassment assumes greater significance due to the violation of the right to education of the victim’s dependent.
Judicial discretion
Furthermore, if any arguments are to be made against judicial enforcement of economic and social rights on the basis that the judiciary is not equipped to enforce these rights, the same argument can be made in relation to judicial enforcement of civil and political rights. In fact, Sri Lanka’s experience under the 1978 Constitution amply demonstrates that judicial personalities, their discretion, etc. can largely determine the degree of protection afforded to fundamental rights through judicial enforcement.
In fact it is possible to argue that the specific provision for judicial enforcement of economic and social rights better supports the concerns regarding unpredictability in the exercise of judicial discretion. At present, in India and in Sri Lanka the Constitution does not expressly recognise economic and social rights except the right to education (India only) and the freedom to form a trade union (India and Sri Lanka). In these jurisdictions, even in the absence of express provisions, the judiciary has vindicated certain aspects of economic and social rights.
The right to education in relation to admission to schools and State universities is an example. In Sri Lanka for instance, the judiciary has reviewed the policy of allocating district quotas for university admissions (Seneviratne v UGC) and the policy decision for calculating the cut off mark for university admission (the Z Score case). In India, this trend even attracted considerable criticism from certain quarters for different reasons.
In comparison, the South African Constitutional Court, which has been mandated to enforcement certain economic and social rights has in general been fairly conservative and concerned itself mainly with policy. The Constitutional Court has respected decisions made by the state within limited resources. It seems then that explicit provision for judicial enforcement of these rights would promote judicial accountability and would better define the scope of judicial enforcement.
Judgements from comparative jurisdictions
Case law from other jurisdictions demonstrate that contrary to the concerns raised, that the judiciary are in general cautious and conservative in their interpretation of judicially enforceable economic and social rights. For instance in the case of Soobramoney (1997) the South African Constitutional Court held that life prolonging dialysis treatment did not fall within the right to emergency health care guaranteed under S 27(3) of their Constitution. Court arrived at this decision primarily in consideration of the limited resources available at state hospitals for providing dialysis. In another case however Grootboom (2000) the Court determined that eviction of slum dwellers by the state can only take place where suitable alternative housing is provided.
In the Treatment Action Case the South African Court ordered the state to extend universal access to a drug which could prevent the transmission of HIV/AIDS from mother to child. At that time, the state was offering this drug only through selected pilot sites. It must be noted that in making this order the Court went on the basis that ensuring universal access to this drug was within the resources of the state.
On the other hand, in jurisdictions where economic and social rights are not explicitly recognised as judicially enforceable, Courts have readily enforced economic and social rights. In the United Kingdom for instance, a woman with severe disability was recognised by Court to have the right to be located in a particular nursing for life although the relevant authorities argued that it was not an efficient allocation of resources (Coughlan case 1999). In India, the judiciary has been enforcing the right to food over a few years by revising and monitoring public distribution programme (Right to Food case 2001).
Judicial enforcement of ESRs
Concerns regarding the capacity and suitability of the judiciary to enforce economic and social rights perhaps stems from a lack of appreciation for what enforcement actually entails in this specific context. Where the state can provide reasonable explanations for its actions or inaction, the question of judicial enforcement would not arise. However, even in such situations, judicial enforcement may be necessary to the extent that the judiciary would call upon the state to be accountable for its actions or inactions.
In general, judicial enforcement of economic and social rights can be an adaption of any of the following formulations.
As expressly stated in the Kenyan Constitution (S 20(5)), judicial discretion will not lie in enforcing economic and social rights simply because the judiciary may have arrived at a different conclusion to that of the state. Where the state is able to demonstrate that it has been reasonable in its resource allocation, judicial enforcement should not lie. In fact in the Treatment Action Case the South African Constitutional Court observed that ‘Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community.
The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.’ (Para 38, Treatment Action Case).
In the Grootboom case it was observed that ‘[t]o be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.’
PART II Democratic process
One of the seemingly strongest arguments against judicial enforcement of economic and social rights is made on the basis that respect for these rights must be ensured through the democratic process. Seeking judicial enforcement is made out to be a short cut that would undermine the rebuilding or the strengthening of this process.
This argument envisages judicial enforcement as being distinctive from the ‘democratic process’. This view is questionable in that an independent judicial arm of the state that interprets the law is a sine qua non of a democratic system of governance. The judiciary is required to act as arbiter between the different arms of the state as well as between the state and its people. Democratic accountability in the political process is tenable only where resort can be made to the judiciary in certain instances.
The argument that economic and social rights are more suitable for the democratic process could be made of other matters that are currently subject to judicial enforcement such as school admissions, judicial review of development projects, etc. Rather than viewing the judiciary as being separate from the legislature and the executive it is essential that a democratic society views these three branches of the state as being integrated, inter related and inter dependent in its promotion of democracy.
Human rights as indivisible and interdependent
Lived experiences of people, and improved appreciation of human needs and freedoms has led to a shift away from a narrow approach to fundamental rights. In international human rights law, as was pointed out by Sri Lanka’s Human Rights Commission, since the Vienna Declaration of 1993 it is now accepted that human rights are indivisible and interdependent. 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.
The different human rights that are recognised today are dependent on each other and are indivisible in that each derives meaning from the other. 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. Furthermore it must be noted that the Universal Declaration of Human Rights, the parent document of contemporary human rights treaties, does not categorise human rights in any way but rather declares them as different aspects of human dignity.
The Committee responsible for monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights has explicitly stated that state parties must guarantee the rights described in the treaty by ‘all appropriate means’. The Committee goes on to point out that where judicial enforcement is not available, the state concerned has to offer a reasonable justification for it (General Comment 9, 1998).
While noting the contestations regarding the relationship between domestic law and constitutions on the one hand and international law on the other, it remains a fact that Sri Lanka has ratified the major human rights treaties without any reservations. Thus successive governments have accepted an obligation to guarantee the rights described in these provisions through the domestic law including through the Constitution. Judicial enforcement on the one hand will be a fulfilment of this obligation and on the other it provides a reasonable, transparent and participatory process by which the internationally developed standards for economic and social rights can be particularised to the Sri Lankan context.
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.
Philosophical thoughts on human rights and development
The above mentioned developments in international human rights law are also reflected in philosophical thought. For instance John Rawls argued that measures that result in economic inequalities in society must be for the greatest benefit of the least privileged in society (A Theory of Justice 1971). Amartya Sen more recently has argued that development ought to be viewed through human freedoms which necessarily involve economic, social and cultural rights (Development as Freedom 1999). Sen has convincingly argued that protection of one set of rights requires the guarantee of the other set of rights.
Cass Sunstein in his work has argued that the categorisation of rights as casting ‘negative’ and ‘positive’ obligations on the state can be misleading. Guaranteeing respect for the freedom of expression and the right to be free from torture too has a resource allocation aspect to it as well as policy implications. Both sets of rights can be costly, impact on policy and can impose minimum guarantees in terms of resource allocation. These philosophical arguments make it increasingly difficult to defend a primarily ‘liberal’ view (or the so called ‘neo-liberal’ view) that only civil and political rights require judicial enforcement.
Distributive justice
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.
(The writer is a Law Lecturer, University of Colombo.)
