Including economic, social and cultural rights in the new Constitution
Background
Sri Lanka is in the process of drafting its third Constitution since independence from the British colonial rule in 1948; the first being the Republican Constitution of 1972 and the second being the 1978 Constitution.
The current process of Constitution drafting has been unique because of its public consultations throughout the country. There was a groundswell of support for incorporation of Economic, Social, and Cultural Rights (ESCR) in the proposed new Constitution as a justifiable right ( with judicial enforcement) in the course of these public consultations by the Public Representations Committee on Constitutional Reform. The specific rights incorporated in the ESCR are the (1) right to education, (2) right to health, (3) right to housing, (4) right to food, and the (5) right to work.
However, a small but vociferous group of legal professionals have been publicly campaigning against the incorporation of the ESCR in the proposed new Constitution. The objections for inclusion of ESCR are that (1) the enforcement and fulfillment of the ESCR is best left to the democratic process through the elected Executive and Legislature branches of the state and not through the non-elected Judiciary branch of the state, (2) the implementation of ESCR would be financially costly to the exchequer, and (3) the non-elected judiciary should not be allowed to trespass into policymaking process of a democratic polity.
Objective
The broad/overall objective of this briefing is to advance evidence-based analyses and critically informed arguments in favour of incorporation of economic, social, and cultural rights in the proposed new Constitution of Sri Lanka towards building an inclusive society promoting shared prosperity grounded on meritocracy cum needs based democracy (as opposed to the present matronage/ patronage cum greed based democracy) after a quarter-century of savage civil war. Thus, we aim to argue a case for the inclusion of ESCR in the proposed new Constitution not only on its own right, but also as a means of peace-building in a war-torn country.
Progressive drop in public spending on education and health
The average annual public expenditure on education as a percentage of the Gross Domestic Product ( GDP) has been progressively declining from the peak of 4.24 per cent during the decade 19601969 to just 1.76 during the seven-year period 2010 - 2016. The average annual public expenditure on education as a percentage of the GDP has nearly halved from 3.14 per cent during the first decade after independence (1950-1959) to just 1.76 per cent during the seven years of post-civil-war period (2010-2016).
Similarly, the average annual public expenditure on health as a percentage of the GDP has declined from the peak of 2.13 per cent during 1960-1969 to 1.33 per cent during 2010-2016. The average annual public expenditure on health as a percentage of the GDP dropped from 1.95 per cent during the first decade after independence ( 1950- 1959) to 1.33 per cent in the first seven years after the end of the civil war (20102016). The average annual public expenditure on health as a percentage of the GDP has more than halved from 2.13 per cent during the second decade after independence (1960-1969) to just 1.33 per cent during the seven years of post-civil-war period (2010-2016)
Democratic deficit
Although Sri Lanka was the first country in South Asia to have exercised universal franchise in 1933 and one of the first countries in the world to let women exercise their franchise in the democratic process under colonial rule as well as during the post- colonial native rule (including the election of world's first woman Prime Minister), the democratic governance in Sri Lanka has been by and large based on matronage/patronage cum greed (in terms of caste, class, ethnic, family, gender, religious, etc) as opposed to being based on merit cum need.
Rule of the Panthangkarayos (boot-lickers)
The nefarious history of matronage/patronage based partisan policy making (in terms of caste, class, ethnicity, family, gender, geography/ place of origin, religion, etc) in the democratic process of Sri Lanka led to the first-ever armed rebellion in South Asia and the attempt to overthrow the democratically elected government in Sri Lanka in 1971. The popular slogan of rural youths at that time was "Colombata kiri ( milk) apata kakiri ( marrow/ cucumber)" (which is translated as milk for Colombo folks, but marrow/ cucumber for village folks). Subsequently, the youths of the largest ethnic minority community rebelled against the Sri Lankan state because of the marginalisation of their language, land, education, and employment rights since 1956 (if not before).
Apart from the governance of the state in Sri Lanka that is grounded on matronage/ patronage; professional associations, trade unions, past pupils' associations of schools, cooperatives, non- governmental organisations (NGOs), private sector firms, think tanks, religious organisations, media institutions, and the wider civil society are all governed by matronage/patronage and panthangkarayos (boot-lickers) as opposed to being based on competence/efficiency and merit/equality of opportunities.
There are numerous heads of cooperatives, trade unions ( e. g. Ceylon Teachers Union ( CTU), recent past Ceylon Mercantile Union (CMU)), religious organisations ( e. g. All Ceylon Hindu Congress), as well as professional associations ( e. g. Government Medical Officers' Association ( GMOA), recent past Sri Lanka Economic Association (SLEA)) who remain in power for well over a decade (sometimes for even decades), ostensibly re-elected perpetually.
Moreover, employment opportunities in large private companies in Colombo and other metropolitan cities and towns are overwhelmingly favoured for school leavers from the prominent schools in the respective cities and towns thereby structurally preventing the upward mobility of rural youths and youths from underprivileged communities who largely attend lesser known schools. Because of this structural bias in private corporate sector employee recruitment practices (e.g. the stranglehold of Royal/Thomian fraternity in Colombo), there is cut-throat competition for admissions to prominent schools in cities and towns across the country involving widespread bribery and corruption thereby permanently disadvantaging and dispossessing numerous communities of people. It is this crony capitalism that is holding back Sri Lanka from realising its full potential and not capitalism per se.
Gender deficit
In spite of the relatively higher educational levels of women in comparison to men in Sri Lanka and higher educational levels of Sri Lankan women in comparison to women in other South Asian countries, the labour force participation rate of women in Sri Lanka is one of the lowest in South Asia. The labour force participation of women in the Eastern and Northern Provinces is the lowest within the country.
Unequal human development
In spite of the highest human development in Sri Lanka compared to rest of South Asia, malnutrition/ undernourishment is very high among children and lactating women across the country, and human development is far below the national average in the hill-country among the plantation Tamil community, among the Muslim minority community throughout the country, and the former armed- conflict affected provinces and the adjacent areas.
Private lands seized by the state
The Sri Lankan government confiscated private lands (beyond a certain threshold) during the 1970s ostensibly to redistribute the confiscated land to landless peasants and the poor as part of a programme of land reform. Instead of redistributing the confiscated private lands to landless peasants and the poor, the state became the single largest owner of lands in Sri Lanka accounting for over three-quarter of the entire land area of the country. Subsequently, whilst certain stateowned agriculture lands in remote/ isolated areas were alienated ( on lease devoid of outright ownership) to the landless poor people and certain public servants ( as a perk because of their low salary) throughout the country, prime lands in prime locations were distributed to political activists and supporters of the respective ruling political party from time to time, to date, in addition to selected development projects.
Heist of the poor by the state
Historically, Sri Lanka's poverty alleviation programmes such as the Janasaviya and Samurdhi are notorious for not covering the real poor and the needy; instead the poverty alleviation programmes have been mostly handouts for supporters of the ruling political parties at different time periods.
The poverty alleviation programmes are yet another heist of public finances in Sri Lanka by privileged groups of people associated with ruling political parties. The taxation policy in Sri Lanka, at least since 1970, has shifted towards increasing the share of the consumption or indirect taxes as opposed to the income/ wealth or direct taxes. The consumption taxes are regressive and income/wealth taxes are progressive because, whereas the unit or rate/s of consumption taxes are applied uni- formly across different income groups of the population, income/ wealth taxes are applied as a proportion of the income/ capital gains/wealth of an individual or a company. Hence, the burden of indirect taxes is heavier on lower income groups of people which is very unfair on lower strata of the society.
Unproductive uses of state funds
The exorbitant public debt incurred by the Hambantota harbour and Mattala airport development projects are a couple of matronage/patronage based wasteful public expenditures as Hambantota is the hometown of the former President of Sri Lanka. The foregoing two examples of whimsical public expenditures demonstrate that the realisation of ESCR by the citizens of Sri Lanka only through democratic processes and directive principles is a pipe dream for 99 per cent of the population.
Under such patronising political culture embedded in greed- based democracy ( as opposed to needbased democracy), enshrining of ESCR as justiciable rights become sine qua non because the non-elected judiciary could play the role of an arbitrator between the citizens and the partisan and matronising/ patronising elected Executive and the Legislature.
Inequality
Reducing income and other inequalities have become prime development goals in developing countries. Inequality manifests in many different forms.
Inequality among different peoples could be partly because of the ability of different people and/or efforts made by different people, and partly because of some people unfairly (and sometimes criminally) appropriating income and wealth more than what they are eligible/qualified for and for the level of efforts they make. Governmental actions to reduce inequality should target the latter and not the former in order to reap maximum welfare for the people.
Directive principles vs justifiable rights
Legal and other professionals who oppose the incorporation of the ESCR in the proposed new Constitution argue that the ESCR should be realised through directive principles of the state rather than enshrining ESCR as justifiable rights in the Constitution. However, the antagonists of ESCR do not seem to accept the fact that the Official Languages Act of 1987 in Sri Lanka (proclaiming Tamil as an official language in addition to Sinhala) is not fully implemented even today after 30 years of its enactment.
In the circumstance of the Official Languages Act of 1987 not being implemented due to administrative and political apathy, how can the citizens of Sri Lanka expect or trust the directive principles of the state to be implemented faithfully? Whilst we do accept that enshrining ESCR as justiciable rights in the proposed new Constitution would not guarantee sincere implementation of the same, we would argue that enshrining ESCR as justiciable rights is necessary but not sufficient.
Alleged incompetence of the judiciary
The antagonists of the ESCR as justiciable rights claim that the judiciary in Sri Lanka does not have the competencies to adjudicate on economic policies of the government. While we partially agree with such claim, we would argue that the judiciary is relatively much better educated, and relatively much more level-headed and rational than most of the politicians in Sri Lanka. Probably, exclusive courts could be set-up with specially trained justices to adjudicate on the matters of ESCR (through consumer affairs courts).
Furthermore, the proposed constitutionalisation of economic, social, and cultural rights has to be specific as much as practically possible, in order not to give leeway to the judiciary as well as the wider legal fraternity to arbitrarily and whimsically interpret the law.
Conclusions
Although there have been marginal improvements in both the political rights and civil liberties ratings of Sri Lanka in 2015 and 2016, it continues to be only a "partly free" country, according to the Freedom of the World ranking.
The civil and political rights (CPR) of human beings are intrinsically interconnected with economic, social, and cultural rights (ESCR); which are what the human rights scholars term "indivisibility of rights". There is a two-way relationship between the CPR and ESCR; the former rights cannot be fully realised without the realisation of the latter and vice versa.
Whilst accepting the validity of the legal maxim of "where there is a right, there is a remedy", we would propose an economic maxim as well wherein 'rights comes with responsibilities', which should be inculcated to the citizenry from childhood. In the proposed new Constitution, Sri Lankans should be inculcated with the knowledge and virtue that citizenship is a double- edged sword wherein the entitlements to public services by the citizens must be equally and indivisibly matched by the obligations to paying taxes (especially income and wealth taxes) by the citizens in order to finance such public services entitlements.
The market economy in Sri Lanka does not have perfect competition because of its matronage/patronage and greed based corporate, political, and professional cultures (as opposed to merit and need based cultures) as noted above. The ongoing Commission on the alleged bond scam and widely perceived insider trading in the capital market of Sri Lanka are slurs on the market economy of Sri Lanka.
Hence, an equal opportunities law (in terms of caste, ethnicity, gender, religion, sexuality, etc) and enshrining of ESCR as justifiable rights in the proposed new Constitution of Sri Lanka are sine qua non for developing a perfectly competitive market economy in addition to fostering an inclusive economy and shared prosperity for ALL the citizens in the country.
(The writer is Principal Researcher, Point Pedro Institute of Development, Point Pedro, Northern Province. This is an abridged version.The longer version could be obtained from
sarvi@pointpedro.org)