Professor Mehta explains paradox of constitutionalising socio-economic rights

Talks of constitution-making have again come to the fore. We, Sri Lankans, have seen our fair share of constitution-making since the independence. But it’s arguable whether such a requirement really came from the citizenry or the rulers wanted new constitutions to cement their political power. After all, constitutions don’t really matter; what matters is people we elect to safeguard them.
Sri Lanka’s coalition government is said to be in its last leg of doing the patchwork before presenting its new constitution to parliament. But the main constituent parties—the Sri Lanka Freedom Party and United National Party—seem to be at crossroads over key matters such as executive presidency, devolution of power, etc., which could derail the whole process.
But in this whole exercise, scant attention has been given to the social and economic rights of the citizens—whether such rights should or shouldn’t be incorporated into the new constitution in the making. These rights are the bedrock of any functioning democracy.
A notable absentee in this all-important discussion is the civil society organisations and good governance activists, who worked tirelessly for a regime change in January 2015. It appears that in their rush to push down a new constitution down the throats of the citizens, for reasons only known to them, they haven’t started a fruitful debate in society how to safeguard the social and economic rights of the people with or without a new constitution.   
Hence, in the absence of such a discussion, Mirror Business recently sat down with an expert in the field of constitutional law to inquire how best a country can safeguard the social and economic rights of the citizenry when drafting a new constitution.
Professor Pratap Bhanu Mehta is President and Chief Executive of Centre for Policy Research, one of India’s leading public policy think tanks. He is also a political scientist who has taught at Harvard University, Jawaharlal Nehru University and New York University School of Law.
Professor Mehta is a strong proponent of decoupling socio-economic rights from the whole constitution-making process and leaving such rights outside the country’s main law and we asked why.
These are the excerpts from a brief interview Mirror Business had with him during his visit to Sri Lanka a fortnight ago, where he met several policymakers including Constitutional Council Chairman Dr. Jayampathi Wickramaratne.

Why does this whole talk of constitutionalising or not constitutionalising of the socio-economic rights matter a country?
The fact of the matter is that most people in democracies, including Sri Lanka, want the state to do certain things for them—healthcare, education, jobs, development and so on. So, it has been part of a general discussion from a very long time. 
The only new thing about this discussion is that there is going to be a constitutional change in Sri Lanka. In this debate, the question one must ask is, ‘what is the problem we are trying to solve by constitutionalising the socio-economic rights?’ 
It is fair to say in the 21st century, any state needs certain legitimacy demands. And, part of that basic legitimacy demands will have to be the provision of opportunities for economic empowerment, right to health and education, maintaining the environment and so forth. It is hard to imagine any 21st century state that does not have to meet these objectives.

We all agree that it is good to have best healthcare for all citizens as equitable as possible. Nobody disagrees with the need to disseminate education as widely as possible. Very few people would also disagree that you need some sensible labour legislation.
The more specific question however is, ‘are those goals met by putting the socio-economic rights in the constitution rather than leaving them to the normal hurly-burley of representative politics?’ Now the short answer turns out to be a very boring answer that every social scientist gives that, ‘it depends’. 

And usually the answer throws up a paradox. Those countries that have achieved these goals—health, education and environmental and so forth—even in the absence of constitutionalising such rights anyway tend do even better when you constitutionalise them. 

So, if constitutionalising a right will guarantee its delivery is a false idea, why do people tend to believe otherwise in certain parts of the world?
In countries like in India—and I think it is probably true for Sri Lanka and for all the developing countries—part of the fascination of constitutionalising more and more rights come from a sense of deep state failure. 
We have a fascination with constitutionalising because we think that in the absence of making them a justifiable constitutional right, our legislature, ministers and parliament will not create the conditions to achieve these rights.   

Most countries that have achieved these rights such as social democracies of Scandinavia and advanced developed countries actually did this without constitutionalising them. The idea that constitutionalising these rights is a necessary condition for achieving particular goals is simply a false idea. 

This context is very important. The discourse on rights in developing countries emerges from a history of state failure. We want to go to courts because legislature does not give us these rights.
But the paradox is, if we live in a country where the legislature does not deliver these rights in the course of a normal give-and-take style of representative politics, it is highly unlikely that even if they are constitutionalised would make them justifiable. It is also unlikely to have the effective institutions to deliver on these rights.

So, what are the implications of constitutionalising socio-economic rights, because there has to be a reason for its rejection? 
The only thing constitutionalising such rights does is, it poses a risk; first of all, it increases the power of the courts over the legislature and the executive.
So, the question is that who do you want to be the final arbiter of this issue? Do you want the democratic process to be the arbiter of this issue or do you want the courts to be the arbiter?
The kinds of issues that come up in the process of judication of socio-economic rights are that they are polycentric, which involves lots of trade-offs.

If Sri Lanka spends more on social security, health or education, there is going to be trade-off. That’s a very different kind of judication process from the right to freedom of expression. Isn’t it?
Courts are typically not very good at making those trade-offs. Those trade-offs must be part of a negotiation between the elected representatives.

So, whether it is health, education or labour, it is not just important for such a right to be an open-ended right in the constitution, it should very carefully put underneath a legislative framework that specifies what those national laws require.

Otherwise, you risk of having the worst of nightmares where the economy is governed by the courts, power is taken away from the democratic legislative process and a perverse outcome where the rights can be used more by the privileged than the poor and vulnerable for whom such rights are actually meant. 

What you are saying is that the courts should not have a role to play in ensuring the socio-economic rights in a democratic process.  

What I say is that in terms of socio-economic rights, you need to have an iterative institutional learning process—which is, today you try something in education and a few years down the line, this may become invalid and it must evolve.

By nature, court is not very good in designing or governing these institutions. And most importantly, ultimately the government has to implement whatever these rights are, whether the courts order or not.

So, if the legislature and executive are not central to that process, chances are that either these court orders will go unenforced or as it has been frequently happening in India, the court passes lots of orders but that are not being enforced.

What will the court do then? It will pass a contempt notice. But even if it passes too many contempt notices, it can’t jail an elected representative.

But the question is how a poor citizen can seek justice if a socio-economic right is denied to him or her, if that right is not constitutionalised. Isn’t the court his/her final arbiter?

The kind of sentiment you are expressing is widely shared. But there is a two-part answer to that question. We are (only) sceptical about constitutionalising these rights. We are not saying there should not be a legislative framework surrounding them to safeguard those rights.

Number two is that, most countries that have achieved these rights haven’t had to constitutionalise them. Even if constitutionalised, the courts will find it hard to fashion remedies beyond a particular point.

In the case of India, we have fashioned these rights but the courts can provide only weak remedies. How many directives can the court give or you want the courts to give directing to spend this much on X and Y?

My argument is that the judiciary is not going to be able to deliver. It does not have the power of enforcement. Ultimately the power of execution lies in the hands of the legislature and executive.
The judiciary can enforce the rights only if there is a substantial political consensus.

For me to give you an example, South Africa is considered as a most progressive nation on socio-economic rights in its constitution. After apartheid was abolished, they handed down a couple of radical decisions and celebrated.

But as the political consensus moved away because of the problems in the African National Congress (ANC), you actually find the courts becoming much more conservative. They are not giving orders to the legislature (anymore).

One of the things they fear is that the new ANC government will start attacking the judiciary if the judiciary goes too much against them.  

So, the bottom line is, constitutionalising socio-economic rights neither guarantees their delivery nor good governance. Are we right to say so?

If governance is generally weak, then constitutionalising does not ensure good governance. This is the paradox. If governance is strong, then you don’t need to constitutionalise them.

If you look at radical social democracies around the world, they have not actually constitutionalised these rights.

In our context, in South Asia, a lot of people look upon constitutionalising rights as a substitute for governance.

Look, if governance is weak, bureaucracies are weak, legislatures and executive have not delivered, if you give the courts the power, will they deliver? That’s unlikely to happen.

The idea that rights can substitute for broad governance reforms needs to be challenged. If we think that constitutionalising rights is a substitute for solving the governance problem, we are in for a rude shock.  

But there are countries where these rights are already embedded in their constitutions and some countries, like Sri Lanka, who may want to include them in their new constitutions. So, for them what is your advice to ensure effective delivery of such rights?

I think there will be some sort of socio-economic rights in any 21st century constitution.

My only recommendation for those who are considering or who have constitutionalised such rights is, they at the same time should put in place a clear legislative framework underneath it.

For an example, let’s say you have a right to health. According to the European drafting of this right, it says, “everyone has a right to preventive healthcare and the right to benefit from medical treatment under conditions established by the national law and practices”. This is the condition of the right.

So, what you need is to specify what this national law is or otherwise you will end up with the paradox where Brazil ended up with.

Brazil is a country where the right to health is most litigated. The courts are very active and tens of thousands of cases are heard every year.

Every study finds out now that the promulgation of right to health ended up benefitting the privileged more than the poor.

Why, because it is an unspecified right to health and you can show up in courts and say you want a specialised dialysis machine given the decease that I have.

And if a court is dealing with the case individually, it can use the right to life, right to health as a basis to grant that relief. But that relief comes at a cost.    

 
So, the more you rely on litigation, often the privileged ends up getting these rights. Take the case of a society where it spends a lot of money to save the lives of people over 90 years old because they are privileged when the resources are scarce.

If the court decides that this plaintiff came first and you need to give him/her the Rs.2 lakh drug, at some point it will have adverse impact on provision of basic public health (to the majority).

And litigation also happens to be a very powerful process for the middle class and above.To give you another example from the Indian context is where we weakened our right to property with the rationale of helping the poor because of being able to do some land redistribution.

But what eventually happened was that all the builders used the weakening of this eminent domain to construct development projects depriving the lands made available for the poor.