Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond

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1 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond

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3 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond

4 ii Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond Published by: South Asians for Human Rights (SAHR) 345/18 Kuruppu Road (17/7 Kuruppu Lane) Colombo 08, Sri Lanka Telephone/Fax: Website: Printed and published in 2017 All rights reserved. This material is copyright and not for sale, but may be reproduced by any method for teaching purposes. For copying in the circumstances for re-use in other publications or for translation, prior written permission must be obtained from the copyright owner. ISBN:

5 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond iii Acknowledgements South Asians for Human Rights (SAHR) would like to thank the Ford Foundation and the Open Society Foundation for providing assistance for this research and publication. SAHR wishes to thank the following persons for providing country specific information: Dr. Nezamuddin Katawazi of the Peace and Human Rights Organization (PHRO) and Ambassador Enayat Nabiel; Saraban Tahura Zaman of the Bangladesh Legal Aid and Services Trust (BLAST); Noor Safar and Najam U Din of the Human Rights Commission of Pakistan (HRCP); Saba Shaikh of Dastak Foundation, Pakistan; Sara Hossain, Dr. Hameeda Hossain and Netra Acharya; SAHR thanks Salma Yusuf for conducting the initial research and Amal Sethi for his valuable comments; SAHR extends its deep gratitude to Kalpalata Dutta for writing this report; SAHR thanks the Secretariat staff for coordination of this research and its publication and the bureau members for their assistance in numerous ways, especially the SAHR Chairperson Ms. Hina Jilani for her continued guidance and advice in formulating the concept and bureau member D.J. Ravindran for editing and finalising the document.

6 iv Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond

7 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond v Contents Introduction 1 International Human Rights Framework on Economic, Social and 3 Cultural Rights Normative Content of Rights 4 State Obligations 9 Enforceability of ESC Rights 13 Constitutional Framework of ESC Rights in Countries in South Asia 15 Enforcement of ESC Rights in South Asia 25 Establishing the Power of Judicial Review over ESC Rights 25 Enforcing the Obligation to Provide the Minimum Core 28 Enforcing the Obligation to Respect 32 Enforcing the Obligation to Fulfil 43 Role of Civil Society Organisations in Advancing ESC rights 45 Right to Food Campaign, India 46 Conclusion 47 Appendix 48 List of Cases 48

8 vi Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond

9 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 1 Introduction South Asians for Human Rights (SAHR) commissioned a study to examine the status of implementation of Economic, Social and Cultural (ESC) Rights in South Asia, particularly with regard to the role played by the courts in realising them. As part of the study, a compilation was made of judicial decisions in the South Asian region, that strengthened or advanced the enjoyment of ESC rights. 1 The present report examines the nature of the constitutional guarantees of ESC rights in different countries in South Asia and the extent to which the judiciary has enforced such rights. The report follows the following structure: first, it presents the international human rights framework on ESC rights. It presents the main components of the different rights and discusses the nature of State obligations arising from the rights guarantees. Second, it presents a brief overview of the guarantees of ESC rights in the constitutions of countries in South Asia. Third, it presents some examples of cases on ESC rights that have been brought before the courts in South Asia and the contribution of such cases in strengthening the enforcement of ESC rights. Lastly, very briefly it discusses the role of civil society organisations in strengthening the enforcement of ESC rights. The objective of the study was to provide an overview of the extent of justiciability of ESC rights in the South Asian region. The study used publicly available information and sources provided by the SAHR Bureau and the Advisory Group. It is a reflection of the current state of information and analysis available on the subject in the public domain and is not intended to be exhaustive. 1 The SAHR database of judicial decisions on ESC rights can be accessed at:

10 2 Introduction

11 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 3 International Human Rights Framework on Economic, Social and Cultural Rights The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948 as a common standard of achievement for all people and all nations. 2 The rights recognised in the UDHR were subsequently elaborated in two separate treaties, the International Covenant on Civil and Political Rights (ICCPR) 3 and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 4 The ESC rights include a range of rights that enable a person to achieve their capabilities and live a life of dignity. All countries in South Asia, except Bhutan, have ratified 5 the ICESCR and accepted to be legally bound by the terms of the treaty. Though Bhutan has not ratified the ICESCR, yet being a member State of the United Nations, it continues to be morally bound by the commitments made in the UDHR. The Optional Protocol to the ICESCR which provides a mechanism for individuals or groups of persons to submit complaints to the UN Committee on Economic, Social and Cultural Rights, was adopted in December However, only Maldives in South Asia, have ratified the Optional Protocol. 6 The understanding of the nature and scope of rights is incomplete without an assessment of the corresponding obligations. Each component of a right has a corresponding obligation attached to it, specifying the actions that the State ought to take (positive obligations) or refrain from taking (negative obligations) to ensure the full enjoyment of a right. Such normative content of the rights and obligations can be found in the text of the human rights treaties as well as the General Comments 7 elaborating upon them. 2 Preamble of the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly in December 1966 and the treaty entered into force on 23 rd March The International Covenant on Economic, Social and Cultural Rights was adopted by the United Nations General Assembly in December 1966 and the treaty entered into force in January The year of ratification/accession by different countries in South Asia to the ICESCR is as follows: Afghanistan (1983), Bangladesh (1998), India (1979), Maldives (2006), Nepal (1991), Pakistan (2008) and Sri Lanka (1980). The ratification status can be checked from the webpage of the Office of the United Nations High Commissioner for Human Rights (OHCHR) at: org/_layouts/treatybodyexternal/treaty.aspx 6 Maldives signed the Optional Protocol to the ICESCR in The implementation of a human rights treaty by the State party, is monitored by a committee of independent experts, known as the treaty body. Each of the core human rights treaties have a respective treaty body. In addition to monitoring, each treaty body publishes interpretations of the rights provisions contained in the treaty, in the form of general comments or general recommendations. The Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of the ICESCR, while the Human Rights Committee (CCPR) monitors the implementation of the ICCPR. The general comments / general recommendations are listed in the web pages of the different treaty bodies and can be accessed from: TBGeneralComments.aspx

12 4 Introduction Normative Content of Rights This section is divided into three parts. First, it gives a brief explanation of the normative content of the ESC and inter-related rights as summarized from the text of the relevant treaty and the corresponding general comments. Second, it gives an overview of the nature of state obligations associated with the rights. Third, it examines the concept of justiciability of ESC rights. Specific Rights Right not to be held in slavery, servitude and rights against forced labour The right guarantees freedom from slavery and forced labour. The practice of slavery and forced labour in all its forms is prohibited. The International Labour Organisation (ILO) in its Convention No. 29 has defined forced labour as, all work or service which is exacted from any person under the menace of penalty and for which the said person has not offered himself voluntarily (Article 2). Right to Work The right recognises the freedom of every person to accept or choose work according to one s liking and the claim of not being deprived of work unfairly. 8 Source in Intnational Law Article 8, ICCPR Article 6, ICESCR General Comment 18 Further, it includes the following essential and interdependent elements: 9 a. Availability: There must be specialised services to assist individuals in finding employment. b. Accessibility: Includes three dimension; i) equal access to opportunities and non-discrimination in employment, ii) physical accessibility to employment, especially for people with disabilities and iii) accessibility to the means of gaining access to employment. c. Acceptability and quality: including the right to just and favourable conditions of work, right to form trade unions and the right to freely choose and accept work. Right to Just and Favourable Conditions of Work The normative content includes provisions of: a. Remuneration, which provides all workers, as a minimum, with fair wages, equal remuneration for work of equal value, and decent standard of living for themselves and their families. b. Safe and healthy working conditions, which include prevention of occupational accidents and disease, access to safe drinking water, adequate sanitation facilities. c. Equal opportunity for promotions d. Rest, leisure, reasonable limitations on working hours, periodic holidays with pays and remuneration for public holidays. Article 7, ICESCR General Comment 23 8 Part II, General Comment 18, Committee on Economic, Social and Cultural Rights, E/C.12/GC/18 9 Ibid. Para. 12

13 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 5 Right to form trade unions and join a trade union of one s choice The right includes the freedom to form, as well as join, a trade union of one s choice. No limitations can be placed on these rights, other than those which are prescribed by law and which are necessary in a democratic society, to protect the interests of national security, public safety, public order, protection of public health or morals or the rights and freedom of others. Right to Social Security Article 8, ICESCR Article 22, ICCPR Article 9, ICESCR The elements of the right include: 10 a. Availability of a social security system that provides benefits for relevant social risks and contingencies such as health care, sickness, old age, unemployment, employment injury, family and child support, maternity, disability, survivors and orphans. b. Adequacy: Benefits that are provided must be adequate in amount and duration so that everyone is able to realise their rights to family protection and assistance, an adequate standard of living and an adequate access to health care. c. Accessibility: Benefits under the social security system must be accessible to all in terms of coverage, eligibility, affordability, participation and information and physical access. General Comment 19 Right to Adequate Food The right to adequate food is recognised as a component of the right to an adequate standard of living guaranteed in Article 11 of the ICESCR. Article 11, ICESCR General Comment 12 It includes the right to be free from hunger and have adequate access to the minimum essential food that is sufficient, nutritionally adequate and safe. 11 In addition, the core content of the right to adequate food includes: 12 a. Availability of food in sufficient quantity and quality to satisfy the dietary needs of individuals. Availability can be achieved by sourced directly from productive land or other natural resources, or through well functioning distribution, processing and market systems. b. Accessibility of food in terms of both economic and physical accessibility in ways that are sustainable and that do not compromise the enjoyment of other human rights. c. Acceptability, food should be free from adverse substances, contamination or adulteration. 10 Part A, para , General Comment 19, Committee on Economic, Social and Cultural Rights, E/C.12/GC/19 11 Para. 14, General Comment 12, Committee on Economic, Social and Cultural Rights, E/C.12/1999/5. 12 Ibid. Para

14 6 Introduction 6 Right to Adequate Housing The right to adequate housing is a component of the right to an adequate standard of living guaranteed in Article 11 of the ICESCR. The right to adequate housing implies the right to live somewhere in security, peace and dignity. In order to meet the requirements of adequacy, the right includes the following elements; 13 Article 11, ICESCR General Comment 4 General Comment 7 a. Legal security of tenure b. Availability of services, materials, facilities and infrastructure such as access to safe drinking water, sanitation and water facilities, emergency services etc. c. Affordability: personal or household financial costs associated with housing should be such that satisfaction of other rights are not compromised d. Habitability, in terms of providing adequate space and protection e. Accessibility, f. Location, must allow access to employment options, health care, schools, etc. g. Cultural Adequacy The right to adequate housing also includes the right not to be forcibly evicted. Due process requirements that must be followed in cases of eviction are; 14 i) Genuine consultation with those affected ii) Adequate and reasonable notice for all affected persons iii) Information on the proposed evictions iv) Government officials and their representatives should be present during eviction v) All persons carrying out eviction should be properly identified vi) Evictions should not take place in bad weather or in night vii) Provision of legal remedies viii) Provision of legal aid to the persons where needed Right to Water The right to water includes freedoms such as the right to access existing water supplies, right to be free from arbitrary disconnections and contamination of water supplies. 15 Article 11 and 12 of the ICESCR General Comment 15 The right to water also includes entitlement to a system of water supply and management that satisfies conditions of: 16 a. Availability: water supply for each person must be sufficient and continuous for domestic and personal use b. Quality: such water supply must be safe and free from contaminants c. Accessibility: water facilities must be within physical reach of all sections of population. Such facilities must be affordable for all. And there must be accessible information ensuring everyone the right to seek, receive and impart information concerning water issues. 13 Para. 8, General Comment 4, Committee on Economic, Social and Cultural Rights 14 Para. 15, General Comment 7, Committee on Economic, Social and Cultural Rights, 1997

15 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 7 Right to the Highest Attainable Standards of Health The right to health contains freedoms such as the right to control one s health and body and the right not to be subjected to non-consensual medical treatment or experimentation. 17 The right to health also contains entitlements such as the right to a system of health protection that provides opportunity to all people to enjoy the highest attainable standard of physical and mental health. Such system should satisfy the requirements of: 18 a. Availability: functioning public health care facilities, goods and services should be available to all. b. Accessibility: health care facilities, goods and services must be accessible to all without discrimination. They must be within physical reach of all sections of the population. Such facilities, goods and services, whether publicly or privately provided, must be affordable for all. And all persons must be able to seek, receive and impart information and ideas concerning health issues. c. Acceptability: Health care facilities, goods and services must follow the principles of medical ethics and should be culturally appropriate. d. Quality: Health care facilities, goods and services must be scientifically approved and of good quality. Right to Education The right to education includes the right to free and compulsory primary education. Further, the right contains the following interrelated and essential elements: 19 a. Availability: Functional education institutions should be available to all in sufficient quantity b. Accessibility: Education should be accessible to all without discrimination. It should be within safe physical reach of all and should be affordable to all. c. Acceptability: The form and substance of education, including curricula and teaching methods, have to be relevant, culturally appropriate and of good quality. d. Adaptability: Education has to be flexible so that it can adapt to the needs of the students from diverse social and cultural settings. Article 12, ICESCR General Comment 14 Article 10(2), ICESCR Article 13, ICESCR and General Comment 13 Article 14, ICESCR and General Comment Para. 10, General Comment 15, Committee on Economic, Social and Cultural Rights, E/C.12/2002/11 16 Ibid., Para Para. 8, General Comment 14, Committee on Economic, Social and Cultural Rights, E/C.12/2000/4 18 Ibid., Para. 12

16 8 Introduction Rights to Culture United Nations Educational, Scientific, and Cultural Organisation (UNESCO) in its Declaration on Cultural Diversity has defined culture as: a set of distinctive spiritual, material, intellectual and emotional features of society or social group, (which) encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs. Cultural rights include: Rights of all persons to express themselves and to create and disseminate their work in the language of their choice, and particularly, in their mother tongue Right of all persons to quality education and training that fully respect their cultural identity Right of all persons to participate in the cultural life of their choice and conduct their own cultural practices Article 15, ICESCR Right to Participation It has been recognised that it is critical to ensure meaningful participation of people at community, national and international level, in all decision-making regarding the normative content of rights and corresponding State obligations. 20 The rights that make participation possible and meaningful include: Right to free speech and expression (Article 19, ICCPR) Right to information (Article 19, ICCPR) Right to peaceful assembly (Article 21, ICCPR) Right to association (Article 22, ICCPR and Article 8, ICESCR) Right to take part in the conduct of public affairs (Article 25a, ICCPR) Right to vote (Article 25b, ICCPR) 19 Para. 6, General Comment 13, Committee on Economic, Social and Cultural Rights, E/C.12/1999/10 20 See the following General Comments issued by the Committee of Economic, Social and Cultural Rights; Para. 11 of General Comment 14, Para. 24 of General Comment 15, Para. 23 of General Comment 12, Para. 26 of General Comment 19, Para. 25 of General Comment 23, Para. 42 of General Comment 18, and Para. 30 of General Comment 13

17 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 9 Right to Equality and Non-Discrimination All persons, without discrimination of any kind, based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, are entitled to the enjoyment of the rights enunciated in the ICESCR. The principle of equality and non discrimination is further elaborated upon in the: International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW), and Convention on the Rights of Persons with Disabilities (CRPD). Article 2, ICESCR General Comment 20, CESCR State Obligations As discussed earlier, every right has a corresponding obligation on the part of the State. Clarity regarding the nature of State obligations is important in understanding the ways in which the rights can be promoted and protected. The Generic Obligations to Respect, Protect and Fulfill At a general level, ESC rights impose three types of obligations on States - obligations to respect, protect and fulfill. Obligation to Respect: The obligation to respect requires States to abstain from interfering with the enjoyment of ESC rights. 21 This implies that a State has to refrain from performing, sponsoring or tolerating any practice, policy or legal measure which infringes upon the freedom of individuals to use material and other resources available to them for the enjoyment of ESC rights. 22 Thus, the obligation to respect requires States to refrain from taking any action: That discriminates against any person in the enjoyment of their ESC rights, on the basis of a prohibited ground. That arbitrarily interferes with the enjoyment of rights and freedoms such as practicing one s livelihood, enjoying the right to housing, exercising the freedoms of association, peaceful assemblies, speech and expression, etc. That interferes or diminishes the right of the people to meaningfully participate in decision-making on matters affecting them. 21 Guideline 6 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Economic, Social and Cultural Rights, Handbook for National Human Rights Institutions, United Nations, P. 15

18 10 Introduction That infringes on the right of the people to access legal remedies in cases where their rights have been violated. Obligation to protect: The obligation to protect requires State and its agents to prevent the violations of rights by third parties or non-state actors. 23 The obligation to protect requires States to; 24 Take immediate steps so as to ensure that violations of ESC rights by the State and its agents are prevented. Take immediate steps to ensure that violations of ESC rights by third parties are prevented. To take actions to ensure access to legal remedies to the victims in cases of alleged violations of ESC rights. Obligation to fulfill: The obligation to fulfill requires State parties to take appropriate legislative, administrative, budgetary, judicial and other measures to ensure the full realisation of the rights. 25 This obligation can be further classified into; 26 Obligation to facilitate, requiring States to take positive measure to assist individuals and communities in enjoying the right. Obligation to promote, requiring States to take action to impart information / education about how individuals can access and realise their rights. Obligation to provide, requiring States to provide direct or indirect services when individuals or a group of people are unable to realise the right themselves by the means available at their disposal, for reasons beyond their control. Examples include: Establishing legislative and policy recognition of ESC rights. Allocating an adequate proportion of public expenditure to the progressive realisation of rights. Developing targeted plans of action and strategies on ESC rights, with specific time frames and financial requirements with a view to the full realisation of these rights. Establishing benchmarks for monitoring rights including the use of appropriate indicators. Giving priority attention to and targeting strategies towards satisfying the ESC rights of disadvantaged groups including the elderly, children, the physically disabled, the terminally ill, HIV positive individuals, the mentally ill and victims of natural disaster. 23 Guideline 6 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Economic, Social and Cultural Rights, Handbook for National Human Rights Institutions, United Nations, P Guideline 6 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Economic, Social and Cultural Rights, Handbook for National Human Rights Institutions, United Nations, P. 19

19 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 11 Minimum Core Obligations The Committee on ESC Rights in General Comment 3 has recognised that every State party has minimum core obligations to ensure satisfaction of the minimum essential levels of each of the rights guaranteed in the ICESCR. 27 For example, while discussing the normative content of the right to highest attainable standards of health, the Committee identified the following components as the minimum core obligations: Ensuring access to health care facilities, goods and services on a non-discriminatory basis, ensuring minimum essential food which is nutritionally adequate and safe in order to ensure freedom from hunger, ensuring access to basic shelter, housing, adequate supply of potable water and sanitation, providing essential drugs, ensuring equitable distribution of health facilities, goods and services, and adopting and implementing a national public health strategy and plan of action. 28 Obligation of Non-Discrimination A fundamental principle underlying the human rights framework is that, all persons are entitled to the enjoyment of all human rights without discrimination of any kind on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This right to equality and non-discrimination is recognised in the UDHR, ICCPR and ICESCR. Other core human rights treaties have elaborated upon the right to equality and nondiscrimination in relation to specific groups or issues, such as the ICERD, CEDAW, ICMW and the CRPD. The Committee on ESC Rights in its General Comment 20 has stated that non-discrimination is an immediate and crosscutting obligation in the Covenant. 29 As clarified in the Limburg Principles, Article 2(2) of the ICESCR imposes an immediate obligation on States to eliminate de jure discrimination by abolishing without delay laws, regulations and practices that discriminate on account of the prohibited grounds in the enjoyment of the guaranteed rights. 30 Further, States have to take appropriate measures, including affirmative action where needed, to eliminate de-facto discrimination in the enjoyment of ESC rights as speedily as possible. 31 The Committee has clarified that the meaning of discrimination implied any distinction, exclusion, restriction or preference, or other different treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights. 32 The prohibited grounds 27 Para. 10, General Comment 3, Committee on Economic, Social and Cultural Rights, Para. 41, General Comment 14, Committee on Economic, Social and Cultural Rights, E/C.12/2000/4 29 Para. 7, General Comment 20, Committee on Economic, Social and Cultural Rights, E/C.12/GC/20 30 Principle 37, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/CN.4/1987/17 31 Ibid., Principle 38 and Similar definition of discrimination can be found in Article 1 of ICERD, Article 1 of CEDAW and Article 2 of the CPRD. Human Rights Committee monitoring the implementation of the ICCPR has adopted a similar definition in its General Comment No. 18. Paragraphs 6 and 9.

20 12 Introduction of discrimination as mentioned in Article 2(2) are race, color, sex, 33 language, religion, political or other opinion, national or social origin, property, birth or other status. Obligation of Progressive Realisation The Limburg Principles has clarified that the obligation to achieve progressively the full realisation of the rights as enunciated in Article 2(1) of ICESCR, requires States Parties to move as expeditiously as possible towards the full realisation of the rights. 34 In this regard, States are required to develop targeted, legally consistent and sufficiently progressive policies to secure the rights in the Covenant. The Committee has clarified that in the achievement of progressive realisation of the rights, States must devote all available resources in the most effective way possible so as to achieve full realisation of the rights. 35 Adoption of regressive measures that has the impact of lowering the level of enjoyment of a right could be construed as a violation of the obligation of progressive realisation, such as when there is no apparent justification for a reduction in public expenditure on programs related to ESC rights. 36 Safeguards against Limitations on Rights Article 4 of the ICESCR states that a State may impose limitations on the enjoyment of rights for the purpose of promoting the general welfare in a democratic society. The Limburg Principles have clarified that the purpose of Article 4 was to be protective of the rights of individuals and it should not be construed to give permission to the State to impose limitations on the enjoyment of rights. Also, the State had to be mindful of the following principles, 37 that; Any limitation imposed should not jeopardise the essence of the right. No limitation should be imposed unless they are provided by law and such law is in force at the time the limitation is applied; The laws imposing limitations should not be arbitrary, unreasonable or discriminatory; and Laws should provide for adequate safeguards and effective remedies to protect against illegal or abusive imposition of limitations. Further, the burden was upon the State to demonstrate that the limitations did not impair the democratic functioning of the society. 33 The Committee has clarified that the inclusion of other status implies that the list is not exhaustive and other grounds may be incorporated in this category; Para. 15, General Comment 20, Committee on ESC Rights, E/C.12/GC/20 34 Limburg Principles, General Comment 3, The Nature of States parties Obligations, Committee on Economic Social and Cultural Rights, Ibid., Paragraph 9 37 Principles 46-56, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/CN.4/1987/17

21 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 13 Enforceability of ESC Rights Can ESC rights be enforced through courts? ESC rights have often been regarded as policy oriented rights which are unsuitable for judicial enforcement in any form. 38 It was argued that ESC rights involved issues of policy and thus were not justiciable, as decision-making over such matters should be left to the legislature and the executive. 39 Justiciability can be understood as; ability to judicially determine whether or not a person s right has been violated or whether the State has failed to meet a constitutionally recognized obligation to respect, protect or fulfill a person s right. 40 Debates over justiciability raise the question of whether the judiciary has institutional competence to review matters of ESC rights. The arguments in support of such resistance are summarised as: social rights are said to be positive rights and therefore requiring government action; resourceintensive and therefore expensive to protect; progressive and therefor requiring time to realise; vague in terms of the obligations they mandate; and involving complex, polycentric, and diffuse interests in collective good. 41 Development of International Law It can be said that the development of international law over the years has taken the edge off the arguments against justiciability of ESC rights. With the development of general comments by the Committee on Economic, Social and Cultural Rights and their adaptations at the national and local contexts, it cannot be said anymore that ESC rights are vague. As the review of state obligations revealed, ESC rights include both, positive facets that require state action as well as negative components, that require the States not to take action, or not to be arbitrary in their functioning, etc. Even in case of positive rights, it has been accepted that there are certain minimum core obligations, which every State in a democratic society should comply with. These developments are reflected in Article 8 of the Limburg Principles, which states, 38 Module 22, Strategies for Enforcing ESC Rights Through Domestic Legal Systems, from Circle of Rights, International Human Rights Internship Program, Malcolm Langford, Domestic adjudication and economic, social and cultural rights: a socio legal review, Sur. Rev. Int. direitos human. Vol. 6 no. 11 So Paulo Dec Craig Scott and Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution, University of Pennsylvania Law Review, Vol. 141, November No. 1, p Ibid. p. 24

22 14 Introduction Although the full realisation of the rights recognised in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time. What are the obligations that are immediate in nature? Based on the review of the normative content of rights and obligations, it is possible to identify some obligations, which are immediate in nature thus capable of being enforced in courts in a manner similar to civil and political rights. Below is an illustrative list: Obligation of non-discrimination, Obligation to not arbitrarily interfere in the enjoyment of freedoms, Obligation to not impose limitations on the enjoyment of rights, that are not prescribed by law and do not satisfy the requirements of reasonableness or proportionality, Obligation not to abrogate, interfere with or diminish the right of the people to meaningfully participate in decision-making over matters that affect them, Obligation not to infringe on the rights of the people to access justice and legal remedies, Obligation to provide for the minimum core such as, emergency health care, free primary education, minimum food to save oneself from hunger and starvation, night shelters for homeless, etc.

23 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 15 Constitutional Framework of ESC Rights in Countries in South Asia This chapter entails a summary of the rights guaranteed in the Constitutions of different countries in South Asia. Some common features are: Mostly all countries in South Asia except Afghanistan and Maldives have a chapter on fundamental rights and another on direct principles or principles of state policy. While the fundamental rights are enforceable in courts of law, the direct principles are in nature of guidelines to the State for ensuring good governance and cannot be enforced in courts. In most Constitutions, the rights contained in the chapter on fundamental rights mostly correspond to civil and political rights. At the same time, ESC rights which are negative in nature or which related to the minimum core are recognised as fundamental rights. For example, the right not to be discriminated against in the enjoyment of rights, the freedom to choose a trade, profession or occupation, rights against forced labour, right to free primary education and right to free primary health care, etc. The guidelines enunciated in the chapter on directive principles mostly focus on ESC rights, though some guidelines are also directed to providing for civil and political rights, such as provision of free legal aid, provision of justice through a fair, transparent and expeditions process, etc. The chapter on fundamental rights in the Constitution of Maldives guarantee both civil, political rights and ESC rights. However a distinction is made between obligations that are of immediate nature and those, which are progressive. For example, Article 23, titled economic and social rights clearly mentions that that the State has the obligation to take steps for the progressive realisation of the rights mentioned therein. Right to education, right to work, right to pension and right to participate in cultural life are enunciated separately from Article 23 and the obligations corresponding to these rights are immediate (obligation to provide free primary education) or negative, that is, the State should refrain from interfering with the enjoyment of the right (right to access education without discrimination).

24 16 Constitutional Framework of ESC Rights in Countries in South Asia Constitution of the Islamic Republic of Afghanistan, 2004 Guarantees of ESC Rights in the Constitution of Afghanistan are contained in Chapter 1, titled State and Chapter 2, titled Fundamental Rights and Duties of Citizens. Chapter 1 enunciates principles that should be adopted by the State in the governance of the country. Chapter 2 enumerates the fundamental rights and duties of citizens. It includes mostly civil and political rights, though some of the economic and social rights as mentioned below are also guaranteed. Chapter 2: Fundamental Rights and Duties of Citizens Right to Equality and Non-Discrimination Art. 22: Right to Equality and Non-Discrimination ESC Rights Article 32: Freedom from debt-bondage Article 40: Right to property Articles 43-46: Rights to education including right to free education up to B.A. Level Article 47: Rights to culture Article 48: Rights to work and Rights in work Article 49: Rights against forced labour Article 51, 57 and 58: Rights to remedies Article 52: Right to health care including right to free preventive health care Article 53: Rights to social security benefits to the vulnerable sections in society Chapter 1: State Article 6 provides that the State has the obligation to create a prosperous and progressive society based on social justice, preservation of human dignity, protection of human rights, realisation of democracy, attainment of national unity and equality amongst all people. Article 7 provides that the State shall observe amongst others, the United Nations Charter and the UDHR. Article 13 provides that the State shall design effective programs for developing industries, expanding production as well as protecting activities of craftsmen to raise standard of living. Article 14 provides that the State shall design and implement effective programs to improve livelihoods and housing. Article 15 provides that the State shall adopt measures to protect and improve forests as well as the living environment. Participation Rights Article 34: Freedom of expression Article 35: Right to form associations Article 36: Right to peaceful assemblies Article 50: Right to information Other Interrelated Rights Article 23: Right to life Article 24: Right to liberty and human dignity Article 33: Right to elect and be elected.

25 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 17 Constitution of the People s Republic of Bangladesh, 1972 Guarantees of ESC Rights in the Constitution of Bangladesh are contained in Part II, titled Fundamental Principles of State Policy and Part III, titled Fundamental Rights. Part II enunciates principles that are fundamental to the governance of Bangladesh and are to be applied by the State in the making of laws and as guide to interpretation of the Constitution. However, as stated in Article 8(2), the principles contained in part II are not judicially enforceable. Part III enumerates the fundamental rights. It includes mostly civil and political rights, though some of the economic and social rights as mentioned below are also guaranteed. The right to enforce the fundamental rights before the courts of law is also guaranteed under Part III. Part III: Fundamental Rights Right to Equality and Non-Discrimination Article 27: Right to equality before the law and equal protection of the law Article 28: Rights to non-discrimination ESC Rights Article 29: Equality of opportunity in public employment Article 34: Prohibition of forced labour Article 40: Freedom of profession or occupation Article 42: Right to property Article 44: Right to enforce the fundamental rights Participation Rights Article 37: Freedom of peaceful assembly Article 38: Freedom of association Article 39: Freedom of thought and speech Other Interrelated Rights Article 32: Right to life and personal liberty Part II: Fundamental Principles of State Policy Article 11 states amongst others that fundamental human rights and freedoms and respect for human dignity shall be guaranteed in the Republic. The different Articles enunciate the following responsibilities of the State: To emancipate the toiling masses, peasants, workers and backward sections from all forms of exploitation (Article 14). To secure for its citizens the basic necessities of life, including food, clothing, shelter, education and medical care, the right to work at reasonable wages and the rights to reasonable rest, recreation and leisure, including the right to social security (Article 15). To undertake rural developmentand promote agriculture (Article 16). To adopt effective measures to achieve the goal of free and compulsory education (Article 17). To take effective measures to raise the level of nutrition and for improvement of public health (Article 18). To endeavour to ensure equality of opportunity and remove social and economic inequality (Article 19). To adopt measures to conserve the cultural traditions and heritage of the people and to foster the national language, literature and the arts (Article 23).

26 18 Constitutional Framework of ESC Rights in Countries in South Asia The Constitution of the Kingdom of Bhutan, 2008 Guarantees of ESC Rights in the Constitution of Bhutan are contained in Article 7, titled Fundamental Rights and Article 9, titled Principles of State Policy. Article 7 enunciates the fundamental rights, which mostly corresponds to the civil and political rights. Article 9 enunciates the principles that the State ought to apply in the governance of the country and include the ESC rights. Article 7, Fundamental Rights Right to Equality and Non-Discrimination Article 7.15: Right to equal protection of law and right to non-discrimination ESC Rights Article 7.8: Right to equal access and opportunity to join public service Article 7.9: Right to own property Article 7.10: Right to practice lawful trade, profession or vocation Article 7.11: Right to equal pay for work of equal value Article 7.14: Right not to be deprived of property except for public purpose and on payment of fair compensation Article 7.23: Right to enforce the fundamental rights Participation Rights Article 7.2: Right to freedom of speech, opinion and expression Article 7.3: Right to information Article 7.5: Freedom of press Article 7.6: Right to vote Article 7.12: Right to peaceful assembly and freedom of association Other Interrelated Rights Article 7.1: Right to life, liberty and security of person Article 5: State has obligation to conserve the environment, prevent ecological degradation and secure sustainable development and ensure a safe healthy environment. Article 9, Principles of State Policy Article provides that the State shall endeavour to apply the Principles of State Policy to ensure a good quality of life to the people of Bhutan and particularly, based on the rule of law, protection of human rights and dignity and; To ensure the fundamental rights and freedoms of the people (Article 9.3). To provide justice through a fair, transparent and expeditious process (Article 9.5). To provide legal aid (Article 9.6) To take measures to minimize inequality of income and concentration of wealth (Article 9.7). To ensure that all are treated with equity (Article 9.8). To promote the circumstances that will enable citizens secure an adequate livelihood (Article 9.11) To ensure the right to work and just and favourable conditions of work (Article 9.12) To ensure the rights to rest and leisure, and periodic holidays with pay (Article 9.13) To ensure right to fair and reasonable remuneration for ones work (Article 9.14) To provide education and free education to all up to tenth standard (Article 9.16) To eliminate all forms of discrimination and exploitation against women (Article 9.17) To protect children from all forms of exploitation (Article 9.18) To provide free access to basic public health services (Article 9.21) To provide social security (Article 9.22)

27 Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond 19 The Constitution of India, 1950 Part III of the Constitution enunciates the fundamental rights, which mostly correspond with the civil and political rights. Part IV of the Constitution enumerates the Directive Principles of State Policy. Article 37 provides that the Directive Principles shall not be enforceable. Part III: Fundamental rights Right to Equality and Non-Discrimination Article 14: Right to equality before the law and equal protection of the laws. Article 15: Prohibition of discrimination Article 17: Abolition of untouchability ESC Rights Article 16: Equality of opportunity in public employment Article 21 A: Right to free compulsory education to all children from 6-14 years of age Article 23: Prohibition of traffic in human beings and forced labour Article 24: Prohibition of children in factories, mines or other hazardous employment Article 29-30: Cultural and educational Rights Article 32: Right to constitutional remedies Participation Rights Article 19: Right to freedoms such as that of speech and expression, peaceful assembly, association and movement. Other Interrelated Rights Article 21: Right to life and personal liberty Part IV: Directive Principles of State Policy Article 37 states that the Directive Principles shall not be enforceable in courts but shall be fundamental in the governance of the country. Further, the Directive Principles provide that the State shall strive to promote the welfare of the people by securing and protecting a just social, economic and political order (Article 38). In particular, the State shall strive towards securing; Right to adequate means of livelihood (Art. 39 a) Equitable distribution of ownership and control of material resources of the community (Art. 39 b) Equal pay for equal work for both men and women (Art. 39 d) Protection of children from exploitation (Art.39 f ) Equal justice and free legal aid (Art 39. A) Organization of village panchayats (Art. 40) Right to work, education and to public assistance in certain cases (Art. 41) Just and humane conditions of work and maternity relief (Art. 42) Living wage, etc. for workers (Art. 43) Participation of workers in management of industry (Art. 43A) Early childhood care and education to children below 6 years of age (Art. 45) Adequate level of nutrition and standard of living and improving public health (Art. 47) Educational and economic interests of scheduled castes and scheduled tribes (Art. 46) Protection of environment, forests and wildlife (Art. 48 A)

28 20 Constitutional Framework of ESC Rights in Countries in South Asia Constitution of Maldives, 2008 Chapter II of the Constitution guarantees the fundamental rights, which is inclusive of civil, political, economic, social and cultural rights. Article 63 provides that any law or part of law, which is contrary to the fundamental rights or freedoms guaranteed in the constitution shall be considered to be void to the extent of such inconsistency. Right to Equality and Non-Discrimination Article 17: Non-Discrimination Article 20: Equality before the law and right to equal protection and equal benefit of the law ESC Rights Article 23: The State has the obligation to take steps for the progressive realisation of the following rights by reasonable measures within its ability and resources: Adequate and nutritious food and clean water; Clothing and housing; Good standards of health care, physical and mental; A healthy and ecologically balanced environment; Equal access to meaningful communication, the State media, transportation facilities and the natural resources of the country; The establishment of a sewage system of a reasonable adequate standard on every inhabited island; The establishment of an electricity system of a reasonable adequate standard on every inhabited island. Article 25: Prohibition of forced labour Article 31: Right to strike Article 35: Special protection and assistance to children, young, elderly and disadvantaged people Article 36: Right to education that includes right to access education without discrimination, right to free primary and secondary education, right to access opportunities for higher education. Article 37: Right to work which includes, freedom to engage in any employment or occupation and different rights in work Article 38: Right of pension Article 39: Right to participate in cultural life Article 40: Right to acquire and hold property Article 65: Application to court to obtain a remedy Participation Rights Article 26: Right to vote, run for public office and take part in the conduct of public affairs, directly or indirectly through freely chosen representatives Article 27: Freedom of expression Article 28: Freedom of the media Article 29: Freedom of acquiring and imparting knowledge Article 30: Freedom to form political parties, associations and societies Article 32: Freedom of assembly Other Interrelated Rights Article 21: Right to life, liberty and security of person Article 16: Limitations on Rights