Economic Rights in the Constitution, through Legislation, through normal Policy framework of the Government in Power enacting their Manifestos.

ADVOCATA lecture, by Prof. Pratap Bhanu Mehta (Political Scientist) on Implications of Incorporating Socio-Economic Rights in the Constitution in Sri Lanka held at the Excel World Auditorium on Tuesday, 21st February 2017 @ 6pm

Additional Panelist Dr Harsha de Silva, Deputy Foreign Minister

Moderator Prof Rohan Samarajiva

Prof Pratap Mehta’s lecture was delivered in an informative and easy to follow manner, interspersed with many real life examples that clearly gave the audience the contrasts, with reference also to the recent examples of Constitutions such as South Africa and Brazil, though he was more familiar with the Indian one.

The bottom line here is how do we best protect our citizens’ rights? Then go through all the rights a civilized society must have, and then determine how many of those rights a particular Country can provide using the State Apparatus, within the financial means of that particular Economy at the time. Of these rights, go through what should realistically be enshrined within the Constitution, that can actually be practically protected, and the rest be left to legislation and changing policy framework depending on each Government’s particular interest represented by their Constituencies demands upon being Democratically Elected.

In this manner, we come to the best method of categorizing these rights, without trying to do the impossible out of DOGMA which results in a PERVERSE outcome, where the exact opposite of what was expected happens!

As some have reiterated, the ONLY rights other than the adoption of the Universal Declaration of Human Rights, an International Treaty, that I believe the Sri Lankan Government has signed onto, the SL Constitution should merely contain:

The Right to Breathe Clean Air, The Right to Eat Uncontaminated Food and the Right to Drink Pure Water. In short these rights would form part of a sustainable framework of Environmental Protection that will result in these guarantees being met, and the rest would automatically follow with out specificity.

It is quite clear the more specific one gets within a Constitution, the more difficult it is for that society to enforce remedies through the Courts, when those rights are violated. When there is a specific inclusion, then you can insist that this inclusion is given to ALL. If the State cannot fund that inclusion, then no amount of forcing is going to correct the situation. Here even the remedy cannot be guaranteed, except at the expense of other rights of a much larger number being sacrificed!

If one takes the case of the right to have Dialysis provided by the State: If this is enshrined in the Constitution, then, the Courts would award this to those who have been denied. Then the Health Ministry will be forced to use its limited funds to provide this FOR ALL WHO REQUIRE IT. Then it is possible that many other health benefits could be denied for 100 times as many people due to their lack of funds once this right is fulfilled as mandated.

In the case of the Indian Constitution, some general socio economic rights have been interpreted by the Courts to include many that were NOT envisaged. If this interpretation is enforced by the Courts, they effectively nullify it by NOT giving the remedy if it is violated, letting the State off the Hook in having to provide that which has been deemed to have been denied.

In the proposed changes to the Constitution, that Dr Harsha read out, he said they propose the right to Primary and Secondary Education as well as Tertiary rights to the extent that the State at the time is ABLE to provide, NOT forcing the state to provide to ALL who seek it. They additionally permit the right to Education within the private sector, an important addition which implies that people with means if they so choose, can forsake state subsidized education and instead avail themselves of getting all or part of their education from the private sector. 

The problem with this inevitably is that those who can pay will choose the best, and the best costs the most, so the best teachers will be paid the most to teach those who are willing to pay the most, who in the end could be the BEST educated people, due to their economic power. With the state’s inability to match salaries, you will get the second best, or the quality of teacher, commensurate with what you are paying for, which could mean that students in the State system get a very poor education if the state does NOT allocate sufficient resources to provide quality.

We have another serious issue in Sri Lanka, where State Teachers in schools and universities, supplement their income in the private sector, while ALSO drawing their state salaries. They give the Private Sector more of their time and energy in teaching, and due to less regulation on attendance etc. short change the state sector out of their time and effort, resulting in the State suffering further in quality due to the PERMISSABILITY of private education. This anomaly cannot be expressly denied in the Constitution from a FR point of view. This issue applies to Doctors too, which is where we come to the inevitable. Namely “YOU GET WHAT YOU PAY FOR!”

Property Rights and Eminent Domain were also discussed, in light of those who don’t even have any property, as to what rights do they have if any, especially when it comes to living in other people’s property, and are subjected to eviction. The reverse is that if the dispossessed cannot rent due to the landlord’s rights being denied, and the fair balance established, defining what exactly is fair.

What does it mean when you talk about the right to Life? What about the right to Education? Healthcare? Property? Food if you are starving? Welfare basics? Employment or minimum wage or minimum family income guaranteed?

It was said that more recent constitutions incorporate MORE Socio Economic Rights than older ones, however in order to fulfill these rights, the State must have a Higher Tax Base where a higher GDP ratio is raised by the State in Taxes. How high? Taxation does not enter into this debate, however in order to practically enforce additional rights in the Constitution, they can ONLY be fulfilled if the state has greater access to funds via more equitable taxation in order to pay for all these benefits on behalf of the people.

In looking at practical examples it is clear that, “Countries with less rigid inclusions in the Constitution and Legislation of what is basic”, actually have more and not less because of it. Electricity and Telecommunication is a case in point in Sri Lanka. EVEN WITHOUT specificity in the Constitution or Legislation, everyone has been provided with electricity, which they pay for based on their consumption, and it is the same for Telecommunications, and even more to the point, the Govt. collects tax on the use of Mobile phones which permeates ALL society, even though those who use these facilities may not have access to health, shelter and education!

This seriously begs the question, how free should be free? If we all HAVE to pay a minimum, then our health and education provision can be so much better, resulting in an overall benefit, on the premise that if you pay for something, even though it is a fraction of the cost, you MAY appreciate it, NOT abuse it, and actually make BETTER and more CONSIDERED choices increasing the overall productivity to the Economy. It will be a benefit to ALL.

To explain: Rs200 for one hospital visit may reduce frivolous use. Some may prefer to go private. This reduced demand on health services will permit better healthcare for those who seek it as there will be more resources for cure. Wellness programs will reduce incidence of illness. Ironically, a patient may pay Rs400 round trip for a three wheeler to go to a free hospital, when they could spend no money for travel and seen by a local doctor for Rs300, saving the patient both travel time and cost. If there is an entry fee of Rs 200, the patient will far more likely make the choice to see the local doctor, thereby saving all round!  

Clearly dogma must be set aside, and practically solutions in the best interest of society as a whole adopted to achieve the desired GOALS of a Country.   

The problem with Sri Lanka is that we are simply unable to have a unanimous agreement on what our Policy Goals should be in a holistic and macro sense for the overall benefit of the NATION