Incorporating Economic, Social and Cultural Rights
Every citizen shall be entitled to apply to the Human Rights Court, in respect of any infringement or imminent infringement, by legislative, executive or administrative action, of a fundamental human right enunciated in sections from 1 to 9 to seek personal redress. If the infringement is outside the premises of the public authorities, the Human Rights Court may refer the matter to the Human Rights Commission for redress or settlement.
by Laksiri Fernando
( March 18, 2016, Sydney, Sri Lanka Guardian) One of the key challenges of drafting a new constitution might be (1) whether and how ‘economic, social and cultural rights’ could be constitutionalized, and (2) what are the ways and means of operationalizing them in some meaningful way in a new constitution. It is understood that legal remedies cannot easily be sought in the case of ‘economic, social and cultural rights,’ like in the case of ‘civil and political rights.’ What might be achieved is ‘public interest litigation,’ in addition to the already accepted provision for filing individual fundamental rights cases in respect of ‘civil and political rights.’
If ‘economic, social and cultural rights’ are written only as ‘decoration,’ then there is a possibility of incorporating most or all of them in a constitution, as recognized in international instruments. However, considering that even allowing ‘public interest litigation’ is serious business, what is proposed here limits to (1) the right to work, (2) right to education, (3) right to health care and (4) cultural rights, both as individuals and groups.
The Public Representations Committee (PRC) on Constitutional Reforms had requested the public to submit proposals on ‘Fundamental Rights and Duties,’ among other 20 titles, the 15th of March being the deadline. The PRC also requested people to submit proposals on ‘Directive Principles on State Policy.’ It was my proposal, published previously, to give prominence to duties under a chapter on “Fundamental Duties of the State, Political Parties and Citizens,” instead of a chapter on State Policy, but incorporating some of the important public policy matters.
On the question of ‘Fundamental Human Rights and Freedoms’ following are the proposals submitted which are self-explanatory. In addition to the incorporation of some key ‘economic, social and cultural rights,’ the right to life, abolition of capital punishment, media and academic freedom, non-discrimination on sexual preference, dual citizenship, and the emphasis on responsibilities along with rights, as appropriate, can be considered some of the new proposals.
