ECONOMYNEXT - Inserting socio-economic rights into a constitution has backfired on the in several developing countries that has tried it, a political scientist has warned as Sri Lanka considers following on the same path.
Well intentioned people generally wanted to constitutionalize socio-economic rights after looking at areas like Scandinavia, where people have high living standards and the state appear to have a hand in it, which seems to be lacking in developing countries.
"We have a fascination with constitutionalising this because we think in the absence of a justiciable constitution right, our legislature, ministers, and the Parliament, will not create the conditions to achieve these rights," Professor Pratap Bhanu Mehta, told a forum organized by Advocata Institute, a freemarket think tank and Echelon Magazine.
"The idea that that constitutionalising these rights is a necessary condition for achieving a particular goal is simply a false idea."
"Most countries that have achieved these rights in Scandinavia and in advanced developed countries have done so without constitutionalising them."
Professor Mehta is a political scientist from India who has taught at Harvard University, Jawaharlal Nehru University, and the New York University School of Law. He leads the Centre for Policy Research, an India based think tank.
The first constitutions were built in the West to protect people from tyranny and contained robust measures to restrain the state or monarch (expand individual freedom) and provide absolute guarantees of equality (outlaw discrimination).
Among the most basic concepts governing individual freedom and sovereignty was the right to life, liberty and property. Such rights, allowed Western so-called capitalist nations to grow fast and their people attained high living standards.
Such rights were mostly negative rights, which prevented the armed (or violent) state and sections of society with more power (armed robbers or the rich and influential) to take way the most basic rights of others (usually weaker sections of society) by force.
Classical liberals and freedom advocates, have generally objected to socio-economic rights (a so-called positive right where the government gives something) as it empowers the state to grab property from one citizen and redistribute to others. They fear a drift towards a Marxist or socialist state, which were entirely built on such concepts.
The US constitution provide only one key such right, the right to a fair trial, for which the government has to build and maintain a court system.
If economic rights are included it is necessary to specify some mechanism to provide those rights at the same time, Mehta said.
In India, the architects of the constitution kept economic rights out of the constitution, but the Supreme Court has interpreted the constitution over time to include such rights.
One problem was that large sums of may be needed to give some economic rights, which may not be available without many new taxes being charged from everyone.
But one of the biggest dangers of socio-economic rights was that constitutionalizing economic rights with good intentions may result in basic rights of weaker sections of the population being undermined.
In India the right to property was interpreted to enable re-distribution of property. This has resulted in undermining property rights overall, threatening poor people in particular.
"But looking back over the last 70 years it allowed the state to dispossess the poor much more than it dispossessed the rich.
"The state used its powers of eminent domain to help all manner of property developers to evict the poor."
Eminent domain refers to taking over private property to build public infrastructure like roads with timely and adequate compensation. But it should not apply to private projects, which should be based on free exchange.
In Brazil, the healthcare system has been mired in litigation, after constitutionalizing such rights, with the rich and powerful going to court to demand the most expensive treatment, resulting in the system becoming regressive.
In Sri Lanka freedom advocates say the Urban Development Authority and the Board of Investment already has excessive powers to expropriate citizen's land for private purposes.
Sri Lanka is also a country which has a constitution which has expanded the arbitrary powers of the rulers, violating a basic principle of constitution making, other analysts have said.
The people were even denied a fair trial with rulers interfering in the judiciary. There is now a social pushback to re-draw a constitution of liberty to take back lost freedoms.
Mehta says the fascination with constitutionalising socio-economic rights "come from a feeling of deep state failure," but simply putting such rights will not make them happen.
"The discourse on economic rights in developing countries emerges from a history of state failure," Mehta says.
"We want to go to court because legislature does not give us these rights.
"Paradoxically if we live in a country where the legislature does not deliver these rights in the course of normal give and take of representative politics, it is highly unlikely to even if constitutionalised it is unlikely to have the effective institutions to deliver these rights."
In many countries, and also in Sri Lanka healthcare and education is provided through normal legislation. Mehta says this is the right way to do it as requirements may change over time.
Deputy Minister Harsha de Silva says in Sri Lanka education and healthcare has reached a large number of people using ordinary legislative procedures. He said more improvements are planned.
Both publicly supported education and healthcare started under British rule and has been progressively expanded.
Rohan Samarajiva, head of LirneAsia, a regional think tank, says he was once asked whether internet should not be made a basic right.
But a few decades ago, people may have said a sewing machine was a basic right, when internet was unknown, he pointed out. (Colombo/Feb25/2017)