Should a constitution guarantee socioeconomic rights?

Sri Lanka’s plans to rewrite its constitution grapples with fundamental questions like how much power the provinces should hold and what socioeconomic rights to guarantee

Few would argue against the state funding basic healthcare and secondary education for those who cannot afford these. A well-functioning state will prioritise these and other policies that encourage investment, create jobs and administer tax policy to fund services. It’s, however, not the purpose of the most successful constitutions to offer guarantees on economic and social matters like education, health, jobs, housing or living standards. These are all desirable socio-economic outcomes, but beyond the ability of a constitution to provide. Instead, constitution making is a searching examination of ideas, purpose and people’s aspirations.

A good constitution will make it harder for the state to ignore these needs. However, it is foolish to expect too much from one. Especially constitutionalising socio-economic rights creates the impression that even a state lacking the resources to deliver these must still somehow do so. The implications of incorporating socio-economic rights to Sri Lanka’s proposed constitution were the focus of a speech by Pratap Bhanu Mehta, a political scientist with extensive international and South Asian experience.

Here are excerpts from an interview.

How do you think Sri Lanka should approach constitution making given our handicap of an under-resourced and ill-equipped judiciary?
● The crucial thing, and it’s a controversial thing to say, is that you need an independent judiciary. Not just to be independent in structure, but the judiciary should have a culture of independence. Frankly, one of the weaknesses in all our countries is the judiciary not holding the executive to account on basic civil rights cases. The Indian judiciary has given the state far too many sweeping powers, using public interest and national security as arguments. On freedom of expression, I think the Indian judiciary’s record is mixed. So, the crucial question we need to ask is not just how you give judiciaries independence, but how you create a culture within judiciaries where they keep reasserting their independence. In fact, one of the dirty secrets about the Indian judiciary is that a reason they became gung-ho on social and economic rights is because it abdicated its role in civil rights during the emergency; so then, in order to reclaim popular legitimacy, it actually invented all these social and economic rights.

The core thing for a liberal democratic society is a judicial culture that is genuinely independent; and independence has to start with basic political and civil rights, because that’s under the judiciary’s control. Pronouncing the right to free expression comes under the judiciary; the judiciary can’t go out and build hospitals, but it can define the scope of your right to free expression. I think the paradox is that our judiciaries have been doing lots of things they are not very good at, and not doing the core things they should’ve been better at.

Pratap Bhanu Mehta, a political scientist with extensive international and South Asian experience

Sri Lanka is still at a relatively early stage in framing a new constitution, and as someone who understands the conditions under which this discussion is taking place, what advice would you give us?
● I have three general thoughts. One, the political culture needs to have a very clear understanding of what problems a constitution can solve and what problems you need a political process to solve. In successful constitutions, the most important is not the text, but the culture of the political negotiation built underneath it. India’s The Congress Party, post-partition, managed to keep India together because it built a political culture of accommodation and negotiation. Frankly, it was not the text of the constitution. If you overburden the constitution, you will end up with more conflicts.

Second, constitutions are often shaped by the biggest fears of that society. The American constitution was shaped by the fear of tyranny, so it has absolutism on liberty. The Indian constitution was shaped by the fear of inequality, so it empowered the state to enter civil society and restructure it to get rid of castes, etc. I think the Sri Lankan constitution will have to acknowledge the fact that it went through an incredibly tragic situation, and you will want to ensure that the new social compact gives everyone the confidence that those kinds of things won’t be repeated. So, the federalism question is important for Sri Lanka in some ways.

With the Indian experience, we’ve found that whenever the central government tried democratic incorporation of different linguistic groups, it has succeeded. Whenever it has been authoritarian or centralising, it has spawned a secessionist movement. India failed in Kashmir and failed partially in the North-East because of centralisation and authoritarianism, which produced resistance. India’s success in the language question was that we were never able to impose language policies. If we had gone for a single unified language policy, we would have broken the country. So, if you have confidence in liberality and democracy, you will actually produce more security in the longer run. The biggest mistake States make is to think that a powerful state is the best way to produce security. What produces security in people is their sense that this constitution is ours, and this should be the basis of negotiations.

The third issue is that successful constitutions depend on successful institutions. Ultimately, a constitution is a piece of paper. You have to have public backing respecting the independence of different institutions. Even judiciaries are successful only when the people are behind them. Right now, the US is seeing a classic conflict where many people are looking to the judiciary to save the US from an overbearing executive. If the judiciary succeeds, it’s not because of the letter in the constitution, but because it managed to mobilise the sentiments of the public behind it, and it will do that only if the institutions are credible. You must have judges whom the public looks up to and trusts, and independent investigators that have credibility. So, more than a constitution, building strong institutions is actually the greater challenge, and this is not just for Sri Lanka.

Is there a danger in constitutionalising many socio-economic rights, which can lead to a situation like in Brazil, where the judiciary and exchequer are overburdened? How do we guard against this?
● There are two ways. One is to look at these comparative experiences and understand that the judiciary cannot be a shortcut to a country’s success. Countries often use the judiciary this way; India tried this as well. But there are almost no instances of this, as the great American judge Learned Hand once said, where a judiciary can make a country successful. The second issue is, if you want a successful judiciary, they require investment. Judiciaries cost a lot of money. In India, we have a colossal backlog of cases – we’ve made a mockery of the rule of law – because there is no political support for investment in the judiciary.

The question of what you should burden the judiciary with is an open one. Different societies will come at it differently. The worst possible outcome is if you overburden it and under-resource it, because then you generate double skepticism. Most governments are not willing to invest in the rule of law. Whenever there is an assessment done of a law, right or administrative matter, it’s important to figure what is likely to be the burden on the judiciary adjudicating the matter.

My advice is that, for a lot of the goals we want in a constitution like education and health, the government should make a credible commitment to actually create legislative, administrative and other kinds of remedies that give confidence to the people that you don’t need to constitutionalise it. The reason we want constitutionalisation is because we don’t see these other remedies. But the other remedies will allow for a more constructive conversation.

Does a weak judiciary elevate the danger that it may choose to intervene in fiscal direction on socio-economic problems?
● Most judiciaries realise their limitations after a point. If they place too much of a fiscal burden on the state, the legislature will rebel. One of the things you have to understand about judiciaries is that even the most impartial ones don’t want to interfere in a way that evokes societal backlash. South Africa is a good example of incredible constitutional rights, but the judiciary has been reticent about imposing fiscal burdens. I think that’s good, because the judiciary isn’t good at financial allocations. So, at one level, there is an inbuilt limitation, although it’s not formally written. Judges know that if they pass too absurd an order that is un-implementable, at some point, it will set up a backlash against the judiciary. So there is a political constraint that even the best of judiciaries feel under. I think the bigger problem is if judiciaries pass an order that constraints the legislature’s room to maneuver what rules and policies it can design. Then, I think it’s a bigger challenge for the legislature.

Looking at India’s experience with enshrining socio-economic rights in its constitution, has this led to a weakening of the state’s ability to determine how resourcesshould be allocated?
● Here’s the paradox of what’s happened in the relationship between the executive and the judiciary in India. In the social and economic rights sphere, the courts have pronounced big rights, but by and large they have not held the state accountable. They very rarely give fiscal direction, so then the state goes on its own way.

The biggest mistake States make is to think that a powerful state is the best way to produce security. What produces security in people is their sense that this constitution is ours

Ironically, the place where the judiciary has stymied economic decision-making is in areas, for example, like in the allocation of natural resources. I think the court was right to say that there has to be transparency in the allocation of natural resources. But was the court right in suggesting that there can only be one model, namely allocation through auctions? Auctions are mostly a good thing, but in principle, they should say we should be open to different ways of achieving transparency.

Many politicians say one of the reasons the Indian economy is in trouble is because the courts have handed down so many decisions that have made policymaking and law making uncertain. I think that’s the place where Indian courts can be criticised. If there is no clear rationale in court rulings, then you make the policy framework uncertain. Legislators have passed X law, but if you don’t know how the courts are going to interpret it, it creates an added layer of uncertainty. And if I’m an investor, I have to cope with that uncertainty.

My worry about the Indian judicial system is that its jurisprudence has not been disciplined enough to create consistency and predictability; and where there is no consistency and predictability, you don’t have rule of law. You have rule by judges. This uncertainty imposes a regulatory cost.