Many countries succeed without enshrining social and economic rights in constitutions
Constitution is a social contract within a particular group of people that reflects their historical background, their values, social goals, aspirations and identities, etc, according to Prof. Pratap Bhanu Mehta, President of the Centre for Policy Research at New Delhi.
He was delivering a lecture on the topic “Implications of incorporating social and economic rights in the Constitution” in Colombo recently. In a panel discussion that followed, Deputy Minister of Foreign Affairs Dr. Harsha de Silva and Prof. Mohan Samarajiva, Chair of LIRNEasia, an ICT policy and regulation think tank, were the discussants.
Referring to the Indian constitution, he said one of the things that saved India was the fact that did not have an army of constitutional consultants in 1948 suggesting the best case solutions for everything from federalism to separation of powers, etc. Constitution being a part of social contract, it has to be legitimate in the eyes of people who are going to be governed by the Constitution.
In that sense the choice that one makes about a Constitution is fundamentally a political negotiation. Are all those people who are governed by a Constitution feel that it wasn’t the Constitution they chose while exercising their rights as citizens?
He said it should not be up to the experts who call themselves as constitutional authorities to prescribe an ideal form of constitutions but people themselves with elected representatives should negotiate and decide after settling their differences to frame an enduring constitution.
As the ambit of social citizens expanded, more civil and political rights were included in constitutions like human rights, etc. However philosophers were somewhat skeptical when looking at constitutions with social and economic rights.
However it is hard to imagine a 21st century constitution that does not include social economic rights such as education, health, health, environment, etc.
He said philosophers earlier had made a distinction in political and human rights and economic and social rights such as right to health separately. But it is not clear whether such rights were justiciable in a court of law.
Social and economic rights typically enhance state power which licenses them to intervene in order to produce substantive equality.
Prof. Mehta asked whether enshrining social and economic rights in a constitution can achieve such objectives or whether to leave it for the politicians to decide such issues. In India, Sri Lanka and or other developing countries like South Africa and Kenya, part of the fascination to include social and economic rights in a constitution comes from a deep state of failure to achieve such objectives.
However most countries have achieved these rights without enshrining them in a constitution especially in developed Scandinavian countries.
He said if there a poll conducted among Indian academics whether social and economic rights should be included in the Indian constitution they would not agree. He said India did not include social and economic rights in the Indian constitution instead of setting them apart in a state policy in 1950 on the recommendation of the Indian constitutional expert Dr. B.R. Ambedkar.
Deputy Minister of Foreign Affairs Dr. de Silva answering a question posed by Prof. Samarajiva said that people always had access to emergency health care, the right to health from the very outset although it was not included in the Constitution.
“That is why we see many demonstrations to day when people were denied of such rights (earlier).”
He said from the time when free ambulance service started in Sri Lanka, a total number of 13,000 patients have been transferred to hospitals and this has saved more than 500-600 lives. “Whether we are to charge a fee from patients in future has not been decided as yet as free ambulances was a grant from India,” he said.