“Could we have a dignified life without the right to healthcare and right to education?”

DEEPIKA UDUGAMACHAIRPERSON OF THE HUMAN RIGHTS COMMISSION (HRC)

Deepika Udugama, the Chairperson of the Human Rights Commission (HRC) said that ESC rights should be included in the constitution.“this is the third constitution we are living under since independence. It is not a secret that the constitutions of this country have not been a major part of our lives. We don’t appeal to the constitution of the country as our saviour, as our protector. It is to a very great extent a very peripheral document. Lawyers do take cases before the Supreme Court on fundamental rights. Human Rights Advocates refer to constitutional provisions of rights which champion rights of all of us. But in terms of the public imagination the constitution is not a central part of our life. I think the constitution building process is about making the constitution part of our public imagination. This is what is very important,” she said adding that the actual challenge laid in making the constitution a living part of public life.

Referring to the three generations of rights she said they were a product of cold war debates and discussions. “The first, second and third generation of rights are considered to be universally recognized human rights, although their development could have seen in the various generations emerge. I think what we need to recognize is not just the theoretical debates that took place in the United Nations and the world over, at a local level. I think there is nothing more important than analyzing these guarantees from our own life experiences.”

You need to tag this debate to life experiences than the technicalities, because the technicalities can be painfully theoretical and really don’t do justice to life itself. After all, human rights are about life. Why do we need human rights? To live a good, dignified and free life. Often we are chided for being theoretical, too conceptual and conceptually vague and so on

“Would it be possible for someone to argue that the right to food security and the right to clean drinking water are less important than the right to be free from arbitrary arrest? Could we have a dignified life without the right to healthcare and right to education?” she quizzed.

Stressing that ESC rights was about life experiences she pointed out that the PRC report clearly showed the aspirations of the people in relation to the various dimensions of rights. She argued that people did not want only their civil and political rights protected, but they also wanted other rights such as the access to healthcare, education, a clean environment etc ensured.

“You need to tag this debate to life experiences than the technicalities, because the technicalities can be painfully theoretical and really don’t do justice to life itself. After all, human rights are about life. Why do we need human rights? To live a good, dignified and free life. Often we are chided for being theoretical, too conceptual and conceptually vague and so on,” she said.

“Technicality also has a very practical dimension. Sri Lanka has recognized at an International level that economic and social rights are very important rights by ratifying the International Covenant on civil and political rights. That is also about good faith obligationsan obligation which recognizes that Sri Lanka is legally bound and that we should discharge our legal obligations in good faith,” she added.

She further pointed out that Sri Lanka is required to present the legal status of ESC rights at the United Nations Economic, Social

If you look at so many cases involving equality there are huge resource implications for the state. Does it mean to say that the state does not then provide interpretation for the equality clause on the basis that there are resource implications? That really is not the case. So this is about an ideological divide that has nothing to do with the arguments raised about resource implications or the role of the judiciary,

and Cultural Rights Committee in November in Sri Lanka’s fifth periodic report.

Highlighting that this was the ideal opportunity to get a balanced bill of rights she said that as sovereignty lay in the people and as human rights were part of sovereignty of the people, all these rights must be protected in a democracy. “We also know that both sets of rights-if you categorize them as civil and political rights and economic, social and cultural rights- entail positive and negative obligations. For example, we are told, how could the judiciary require the state to provide a certain type of education to the public because that is going to entail a great degree of public expenditure, and that is not the role of the judiciary. In dealing with torture are we going to say that the obligation of the state is merely negative, that is to say, that the state should not torture and to stop at that?”

She added that the most important dimension in this respect was to practically provide training to the police about modern methods of investigation and provide the technology to engage in investigations without torture. “This sounds very simplistic, but it’s fundamentally a very important dimension of the fight against torture. This costs a lot of money,” she said.

“If you look at so many cases involving equality there are huge resource implications for the state. Does it mean to say that the state does not then provide interpretation for the equality clause on the basis that there are resource implications? That really is not the case. So this is about an ideological divide that has nothing to do with the arguments raised about resource implications or the role of the judiciary,” she said.

Speaking on the role of the judiciary and countering the argument of critics of justiciable ESC rights as to whether unelected judges can make decisions she pointed out how the common law tradition built bodies of jurisprudence through the judgments of unelected judges. “In the United States constitution there is judicial review of legislation through interpretation. In India the secular nature of the state was pronounced upon by the judiciary. This is the tradition in the common law system. So there is nothing new about it.”

“If Sri Lanka goes into the history books at this point as the country that turned its back on all these decades of development in the human rights field, I think its impact is going to be very serious. All the changes that the people of this country worked for will remain unfinished,” she remarked. PICS BY WARUNA WANNIARACHCHI