Are socio-economic rights, rights?

Featured image courtesy Gwenael Piaser/DBS Jeyaraj.com

AMAL DE CHICKERA on 04/12/2017

Through the ping of a tweet and a quick

scan of the media, Ive been alerted to a polarising constitutional
debate in Sri Lanka. The debate is on whether justiciable socio-
economic rights should be included in the new constitution. In this
article, I would like to unpack and respond to some of the
arguments put forward against their inclusion.
An ideological divide
There appears to be an underpinning but unspoken ideological
divide, which serves as the sub-text for this entire debate. This
divide is between those who consider socio-economic rights to be
rights, and those who do not. Therefore, the starting point of the
two arguments is very different. It means that there is a lot of
speaking past each other as opposed to speaking to each
other.
The claim that socio-economic rights are actually not rights has
not been strongly made. Instead, arguments have been made as
to why this class of rights should be treated as inferior by not
being made justiciable. It has even been proposed that not
making them justiciable is the best way to achieve them though
almost 70 years of independent governance shows otherwise.
There is no controversy under international law. Socio-economic
rights are rights. The International Covenant on Economic, Social
and Cultural Rights entrenches them. But other treaties,
dedicated to the rights of disadvantaged groups (women,
children, disabled people, for example) go further in
demonstrating that special measures must be taken to ensure
equal access to socio-economic rights for such groups.
Importantly, these treaties expose the fallacy of the
compartmentalisation of rights into civil and political on the one
hand, and socio-economic on the other. All rights are universal
and indivisible. This is not just a bleeding-heart-lefty-mantra, but
a fundamental principle and perspective through which to engage
and understand international human rights law.
If you are serious about freedom of expression, you have to be
equally serious about the right to education it isnt a repressive
regime, but illiteracy which is the biggest threat to free
expression. If you are serious about freedom from cruel, inhuman
or degrading treatment, you have to be equally serious about
freedom from hunger and poverty. More people suffer the
indignity and degradation of sleeping rough, acute hunger and
health endangering poverty, than torture at the hands of the
police. If you are serious about the right to privacy, you have to
be equally serious about the right to housing, for not having a
shell in which you can ensconce yourself is the biggest invasion of
your privacy. If you are serious about the right to life, you have to
be equally serious about the right to access healthcare, for people
dying or being debilitated by preventable and treatable illnesses
is unacceptable in a country as prosperous as Sri Lanka. If you are
serious about the right to property, you have to be equally serious
about well the right to property (common ground at last!) And
if you are serious about human rights in general, you have to
acknowledge the role of discrimination and historical
disadvantage in denying enjoyment of all other rights however
they may be categorised.
But back to the ideological divide while international law is
clear, this clarity breaks down at national level. The classical
liberal norms of the west uphold civil liberties and not socio-
economic rights. The opponents of justiciable socio-economic
rights in Sri Lanka are more likely to be proponents of classical
liberalism, to the exclusion of other ideologies. (Whereas to me it
is possible, sound and attractive to embrace the best of classical
liberal norms, while also critiquing and plugging its limitations and
normative gaps by drawing on other traditions.) Liberal ideology,
which is based on centuries of political philosophy which far pre-
date justiciable human rights, and which stems from the more
privileged and dominant regions of the world, has undermined
human rights discourse by picking and choosing which rights are
rights, and which are nice to haves (at best). The act of cherry
picking rights by less dominant actors is disparaged as cultural
relativism. But ideological relativism has never been truly
critiqued in the same way.
If we believe in human rights, all human rights should stand
above ideology for to undermine one right, is to start unpicking
them all. To say that some human rights are absolute and others
should only be implemented if they stand up to ideological
scrutiny, is to say that only the human rights which fit in with your
ideological worldview are actually rights.
My own experience with the stateless
All of our ideological positions are ultimately shaped by our
experience, and so, I think it is pertinent to share some of my
own. While I have instinctively believed in the indivisibility and
universality of human rights since my student days, my current
work has entrenched this belief. I work on the rights of stateless
persons around the world. The stateless people who have no
nationality can uncontroversially be described as being among
the most marginalised and excluded in the world. These are
people who have been politically disenfranchised, have no (or
very little) free movement, are vulnerable to arbitrary arrest (and
the list goes on).
Since 2008, I have interviewed, worked with and befriended many
stateless people and have read extensively on their situation. The
deprivation of their civil and political rights is beyond contention.
But for almost every stateless person I have encountered their
preoccupation, the biggest injustice they feel and the wrong they
most urgently want righted is their inability to access basic
socio-economic rights. While many of these people are politically
active and restless and understand the importance of civil and
political rights, it is their inability to access school and healthcare
and safe jobs that makes them feel most un-human.
One of the groups I have worked closest with are the much-
persecuted Rohingya from Myanmar. Looking at this community, it
becomes obvious why socio-economic rights are so important.
This community has been broken by denying them access to
education, healthcare and safe labour over generations. It is
impossible to separate the civil and political rights violations they
face from the socio-economic rights violations. They feed off of
each other and pave the way for ratcheting up of violations. An
approach which only looks at part of the problem will not help.
Some of the arguments against justiciable socio-economic
rights
One of the arguments made against making socio-economic
rights justiciable is that the constitution should only contain core-
principles, and that matters of policy should be resolved through
the democratic political process. Accordingly, the Constitution is
not the place for ideological jockeying. This argument extends to
the role of the courts and questions their place in the democratic
process, as evident in this recent headline: Socio-economic rights
in the constitution: should we trust courts over democracy? The
position that the drafting of a constitution falls outside the scope
of the democratic process, or that the courts are not part of
democracy is both flimsy and dangerous. In the UK, the courts
recently decided that Parliament must have a say in the triggering
of Article 50 to initiate the Brexit process. Enemies of the People
blared populist newspaper headlines. The court simply held that
Parliament cannot abdicate its responsibility or its sovereignty.
Sections of the media accused the court of undermining
democracy. The government, which suffered some
embarrassment as a result of this judgment, did little to defend
the courts integral democratic role.
Constitutional democracy requires the courts to play a key role. It
also requires that a constitution reflects norms, principles and
values, which among other things, protect minorities and under-
represented groups from the shortcomings of parliamentary
democracy. In that sense, the drafting of a constitution is the
ultimate democratic act. The people should be consulted, and
their views fed into the constitution. The Public Representations
Committee consulted the people and the overwhelming response
was for the inclusion of justiciable socio-economic rights. This
consensus is backed by the Centre for Policy Alternatives recent
research. The people have been consulted. This is democracy in
action. It is not merely an ideological debate.
A second argument is that justiciable socio-economic rights do
not work. They may even make things worse. While statistics from
other countries are bandied about in support of this argument,
these stats show no causal link between the justiciability of socio-
economic rights and their subsequent erosion. This line of
reasoning is extended by claiming that those with more economic
and political clout will be advantaged, and will be able to claim
their rights, whereas those who need them most will not be able
to do so. This will further inequality, not reduce it. This is at first
sight, a compelling argument. But unfortunately, this is the way
all litigation works. The poor, minorities are more likely to be
arbitrarily detained, tortured, denied their right to vote, unfairly
dismissed, and are less likely to be able to enforce their rights in a
court. Our prisons are overflowing with remand prisoners who are
too poor to obtain legal representation, whereas our hospitals
house rich convicted criminals. This injustice is not in itself a good
enough reason to do away with criminal law, though it points to
where reform is urgently needed. The legal system clearly favours
the more advantaged this must be fixed. This is why equality
before the law and access to justice are so important. But this is
not a reason to not make a right justiciable. If it were, then we
should have no rights at all.
A third argument is that of resource limitation and the place of the
courts in relation to questions that are better answered by
accountable political actors. The lazy answer to this argument
would be to point to the fact that our politicians are actually not
that accountable. But this would be attacking a straw man, for the
solution is to find ways to strengthen accountability. This is
exactly where the judiciary comes into play. To go back to the
Brexit judgment discussed above, the courts merely held that
parliament has to do its job. It is this same role that the courts
can play with regard to socio-economic rights. The role of
ensuring that politicians and policy makers perform their
constitutional role of ensuring socio-economic rights in
compliance with basic principles of public law.
Those concerned with judicial overreach also present the opposite
argument, that courts may overcorrect and become too
deferential, and that this will undermine their independence in
relation to other rights. This is a basic point that the judiciary
must get the balance right. Even in the absence of justiciable
socio-economic rights, the courts have got the balance wrong, as
seen during the Rajapaksa regime. This really is not an argument
against judicial enforcement of socio-economic rights, but one for
better quality adjudication. We can all agree! However, as with
many of the arguments against, this betrays a sub-text, that
socio-economic rights are not real rights, and additional judicial
deference in this terrain can spill over into, and undermine the
protection of real rights.
A fourth argument, is that entrenching justiciable socio-economic
rights will undermine devolution and consequently have an
impact on the political autonomy and rights of the Tamils in
particular. In the context of Sri Lankas deeply divisive and
damaging ethnic conflict, any such concern must be taken
seriously. However, this argument too fails to withstand deeper
scrutiny. In a federal (or however devolved) system, while the
division of power between the centre and the regions will always
be a negotiation, to say that judicial oversight undermines this
process is misleading. Of course, in a new constitution,
fundamental rights jurisdiction may also be devolved to regional
courts and there may be an argument for rules to ensure a more
representative supreme court. Furthermore, if the contention is
the supreme courts legitimacy to be the ultimate arbiter, this
concern should remain in place for all fundamental rights. But
there is another matter. The rights of the Tamil community and
the historic discrimination they continue to face must be
politically and legally addressed. But doing so must not be to the
detriment of other minorities and disadvantaged groups. The idea
of federalism is not to replace one discriminatory majoritarian
political system with nine equally unfair and discriminatory ones.
Protected groups, wherever they may be, and whatever
characteristic they may have, must have equal access to
constitutionally protected human rights. The guard dog of these
rights is the law and the courts, not politicians.
A way forward
Any serious and honest engagement with human rights (including
socio-economic rights) will reveal that resources are most often
not the real problem. Instead, discrimination, arbitrariness,
exclusion, abuse of power, a lack of proportionality, wastefulness,
corruption and other factors play a much bigger role in denying
access to rights. These are often the outcomes of parochial and
partisan politics of the majority. Constitutions stand to safeguard
all of the people from majoritarian politics. This is why
constitutions must articulate and make justiciable all human
rights.
A compromise position has been put forward to bridge the divide
between the two camps. Accordingly, socio-economic rights
claims should be contingent on establishing related arbitrariness,
unreasonableness or discrimination. This is more than just a
compromise, it is normatively sound. This is the basis on which
conventions like the Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW) the Convention on the
Rights of the Child (CRC) and the Committee on the Rights of
Persons with Disabilities (CRPD) were agreed that
disadvantaged and minority groups, or those like children with
unique needs, must have equal access to all rights (including the
socio-economic). I hope this proposal is given serious
consideration.
I conclude by pointing to the obvious there is a lot wrong with
our system. Justiciable socio-economic rights will not be the
panacaea to all that is broken. But they should not be held
hostage until the broken is first fixed. My answer to the question
are socio-economic rights, rights? is a resounding yes.
Posted by Thavam