THE NEED FOR JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS

Socio-economic rights are fundamental to every human being. The concept of socio-economic rights encompasses a vast array of rights. They include the basic needs of human beings such as rights to housing, health care, food and social security, education and human dignity. Living a life deprived of these basic necessities would be miserable and impossible.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the most comprehensive international treaty addressing this area of human rights law, which is also, the most widely applicable. Of the 193 united-nations member States it is said that 168 States have ratified the ICESCR, implementation of which is monitored by the UN Committee on Economic, Social and Cultural Rights (CESCR). Besides this treaty, there are many other international and regional international instruments which specifically address economic, social and cultural rights.

Chapter VI of our Constitution sets out the Directive Principles of State Policy containing certain socio-economic rights, which should guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka paving way for the establishment of a just and free society. Therefore, the Sri Lankan government has an obligation to respect, protect and fulfil economic, social and cultural rights enumerated under this Chapter and cannot interfere with enjoyment of those rights. The government is obliged to actively take steps to create the conditions necessary for people’s full enjoyment of those rights, despite the fact that they are not justiciable under the Constitution and their non-compliance cannot be taken as a claim for enforcement against the state.

Our Constitution has drawn a distinction between fundamental rights which are justiciable under the constitution and directive principles of state policy which are not. But the non-enforceability of the principles does not mean that they are of no importance. They can be considered supplementary to the Fundamental Rights which guarantee Civil and Political rights and other freedoms, which have been set out under Chapter III of the Constitution so that people can lead a peaceful life. Fundamental rights apply to all citizens without any form of discrimination on the basis of race, caste, creed, sex and religion.

Therefore, it is important that our elected representatives should appreciate the true nature and the significance of the directive principles of state policy as set out in the Constitution for the purpose of attaining the constitutional goals. They are the mandates of the people to the government in formulating laws and policies. The principles laid down therein though not enforceable by any court are fundamental to the governance of the country.

Although we cannot expect the State to implement all the economic, social and cultural rights immediately, the States that have ratified major international treaties encompassing those rights would still have an obligation to guarantee and fulfil them to the people and should work towards gradual implementation of those rights.

Today there is a significant controversy surrounding whether an independent judiciary should intervene whenever there is violation of socio-economic rights, which demands legislative or executive response. The pervading notion is that socioeconomic rights are incapable of judicial enforcement. Underlying this notion is that socio-economic rights involve complex resource allocation issues which are best decided upon by elected representatives. It is argued that as socio-economic rights constitute the core of political policy, it should be left to the realm of elected representatives rather than an unelected judiciary. These rights are considered as a part of a broad institutional programme of legislation and policy. It is also argued that elevating socioeconomic rights to a status of legal enforceability would threaten traditional notions of democracy and separations of powers

But rights to the material, goods and services needed for a dignified existence should no longer be restricted to the domain of statute or policy as these rights are important for human freedom, equality, and dignity. Shelter, health care, nutrition and education are some of the material conditions ordinary people need for dignified living. Not everyone in the society has access to these basic needs. Therefore, few can contest the importance of these rights.

Today there is a significant controversy surrounding whether an independent judiciary should intervene whenever there is violation of socioeconomic rights, which demands legislative or executive response

But rights to the material, goods and services needed for a dignified existence should no longer be restricted to the domain of statute or policy as these rights are important for human freedom, equality, and dignity

Judicial review of a socio-economic right does not necessarily involve the determination of a particular level of resources to be spent by the state or the exact way they are to be spent

Although socio-economic rights are considered as unenforceable principles distinct from civil and political rights in many jurisdictions, socio-economic rights have been indirectly incorporated via the interpretation of civil and political rights by the judiciary in many countries.

Judicial review of a socioeconomic right does not necessarily involve the determination of a particular level of resources to be spent by the state or the exact way they are to be spent. A judgement can simply consist of pointing out where a violation has occurred and instructing that it should be remedied in whichever way the public authority deems most appropriate or simply pointing out that an appropriate inquiry should be held.

In Sri Lanka the need for a constitution that respects and guarantees socio-economic rights with justifiability has become particularly important, following the devastating socio-economic crisis that ripped the nation apart.

There have been mass public protests and agitations and political instability and the poorest have been the hardest hit owing to food inflation and job losses. Economic crisis has affected the daily life of a vast majority of the population.

With the surge in prices of essential items, poor people have been unable to afford essential items in order to meet their basic needs such as food, medicine, fuel, fertilizers and millions of people were in urgent need of assistance. Some have migrated to foreign countries to escape the effects of the crisis.

This has led to the perception that the absence of a justiciable constitution with regard to socioeconomic rights means that the executive or legislative branch of the government will not create conditions to achieve these rights.

Conditions of immense poverty, insecurity, and social distress have created a feeling among people that the State would fail to fulfil basic socio-economic rights for the amelioration of human condition. This in turn has intensified the need for constitutionalizing socioeconomic rights with the right to justifiability.

Economic and social rights have been enshrined in some of the world’s constitutions and most of the main socioeconomic rights enumerated in the ICSESR have been given explicit justiciable status. Therefore, any constitutional review process should concentrate on inadequacies of the present one and should consider the feasibility of adopting a constitution with basic entrenched justiciable socioeconomic rights which will solve at least some of the concerns which have led to the mass protests in the country.

In this connection, it should be stated that there is a clear nexus between the government providing citizens their basic socio-economic needs and citizens being able to exercise their civil and political rights. A Constitution that promises certain rights, but does not provide a means for the government to be held accountable for actually not providing them is not a strong constitution in which citizens can repose their confidence.

An independent judiciary which is the sine qua non of a vibrant democratic form of government should be able to stand as a bulwark for the protection of socio-economic rights if they are made justifiable in the interests of the marginalized distressed people. The Judiciary as the guardian of the constitution is in a better position to oversee the executive, administrative and legislative branches of government fulfilling the basic socio-economic rights when circumstances demand it, by identifying social and economic conditions that have contributed mostly to marginalization and distress of the people in the country. Enforceability of socio-economic rights enable the judiciary to resort to at least selective enforcement of socio-economic rights.

In its general comment, The U.N. Committee on Economic, Social and Cultural Rights (CESCR) has stated that regardless of whether or not domestic courts in a particular legal system are able to enforce all, or only some aspects of social and economic rights, these rights must still be subject to effective remedies.

The covenant norms must be recognized in appropriate ways within the domestic legal order and appropriate means of redress or remedies should be made available to any aggrieved individual or group, and the appropriate means of ensuring governmental accountability must be put in place.

Conditions of immense poverty, insecurity, and social distress have created a feeling among people that the State would fail to fulfil basic socio-economic rights for the amelioration of human condition

States have adopted a variety of approaches in fulfilling the socioeconomic rights enumerated in the Covenant. States which have taken measures have transformed the covenant into domestic law by supplementing or amending existing legislation. Others have adopted or incorporated it into domestic law by retaining it intact and by giving it formal validity in the national legal order by means of constitutional provisions. While some states have desisted from taking any measures at all.

Today, international opinion is that socio-economic rights deserve constitutional protection. Everyone is entitled to socio-economic rights and the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.