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| Sunday, 13 February 2005 |
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Public lecture series "Facing tsunami challenge" Human rights: issues and challenges The Sri Lankan Foundation Institute (SLFI) and the Sunday Observer are jointly conducting a series of public lectures and panel discussions under the theme " Facing tsunami challenge" Here we carry excerpts of the lecture delivered by the Deputy Solicitor General Palitha Fernando on the inaugural day of the series.
We have spoken more than enough about human rights. However, against the background of what has happened with the tsunami disaster, I feel it is apposite to speak of human rights. You might wonder what these human rights are. If you examine the meaning of human rights, you will understand its relevance. If a person is born as a human being he has inherent rights which are called human rights. So human rights are defined as rights to which people are entitled to by virtue of the fact that they are born human beings. Second World War I will explain in brief why we have focused so much attention on human rights. After the Second World War the world community wanted to ensure that there would not be an occurrence of another world war. They felt that if there was another world war, the weapons of mass destruction that were at their disposal would wipe out mankind. So much so that they will not live to see a fourth world war. So the most important issue faced by the world after World War Two was, how they should take precautions to prevent another world war. In the aftermath of the Second World War the international community got together to decide what they should do to prevent a third world war. You may have heard of fundamental rights. Human rights are those set out in the Universal Declaration of Human Rights, to which all persons are entitled by virtue of the fact that they are born human. Fundamental Rights are those rights which have been taken from the Universal Declaration of Human Rights and incorporated into the Constitutions of individual countries where the States ensure that these rights are guaranteed to the people and justiciable in a Court of Law. That is, if the rights are violated they can be challenged in a Court of Law. There are many human rights but these do no all come within the ambit of the Constitution. Human rights have to be included in the Constitution of a country if they are to become part of the law of that country. For eg. Fundamental Rights The Universal Declaration of Human Rights recognise the right to life, but our Constitution has not included this right into its Chapter on Fundamental Rights. So the right to life is not a fundamental right under our Constitution. The States have been given the discretion to take whatever rights that are in the Declaration and incorporate them into each country's domestic law. I will now try to explain how these rights become relevant to the post tsunami situation in Sri Lanka. If we look at the Constitution of the Democratic Socialist Republic of Sri Lanka and the relevant Chapter on Fundamental Rights you will find included in it several human rights to which the people are entitled to and it states, that if these rights are violated or if there is an imminent violation of these rights, that the people can seek relief from the Courts. Now all these rights are civil and political rights. It is not only in our country, but in most other countries this is so. Therefore, in our country a citizen can go before a Court of Law and challenge the violation of a human right only in the case of a civil and political right recognised in the Constitution. Constitution If we look at our Constitution you will see the fundamental rights that are recognised by the law of the country. Freedom of thought, Freedom of conscience, freedom from torture, equality before the law, freedom of association and assembly et al. If such a fundamental right is violated or if there is an imminent infringement of such a right, a person is entitled to go before a Court and seek relief in respect of that matter. However, remember that right is available only if that fundamental right is violated by the executive or administrative action of the State. For eg. If a person is given a promotion on grounds of his political loyalty, in such an instance a person could go before a Court of Law and take necessary action. That is because the fundamental right against discrimination is guaranteed under the Constitution and you are entitled to go before a Court of Law and get an order from Court if there is a violation of that fundamental right. State responsibility Then what would you say about other rights, such as economic, social and cultural rights. If we do not get adequate health care, how would we address them? In many countries such rights are not included in the Constitution. The reason for the omission is due to the fact that countries find it difficult to fulfil these obligations. To fulfil these obligations requires a country to be economically strong. If we guarantee the economic and social rights of the Universal Declaration of Human Rights to our people, then the State is responsible for providing dwellings for every citizen. Every citizen would be entitled to an excellent health care system and adequate remuneration for work. Sri Lanka does not have the economic strength to fulfil such obligations to its citizens. Even when the Universal Declaration of Human Rights was adopted by the United Nations, they did not expect the member States to fulfil these obligations. However, in our Constitution Article 27 on Directive Principles of State Policy and Fundamental Duties states, "that when planning State policy, the State is obliged to follow the economic, social and cultural rights recognised by the Universal Declaration of Human Rights. Violation This is what it says, "the promotion of the welfare of the people by securing, and protecting as effectively as it may a social order in which justice (social, economic and political) shall guide all the institutions of national life". That is a right which has been recognised under the Universal Declaration of Human Rights as an Economic, and Social Right, that has been included in Chapter 27 of our Constitution. If there is a violation or an imminent violation of that right, you are not entitled to go to Courts, because the responsibility on the State is to try its best to ensure these rights to the people. So there is clear distinction between these two categories of rights. That is, if there is a violation or imminent violation of a civil and political right a person has a right to go before the Court to seek relief. However, in the case of an infringement of Economic or Social right a person has no legal right to seek relief or remedy from a Court of Law. Economic and Social Rights are only guidelines for the State in drafting policy. Against this background if we look at the post Tsunami scenario, we will see that there are many violations of people's human rights. It must be pointed out that often it is the economic and social rights of the people that are violated and not the civil and political rights. When people are deprived of their homes or access to proper medical care or if they do not have the privilege of a good education, they have no right to go before the judiciary to enforce these rights. It is in these circumstances that civil society has a responsibility and a role to play in influencing the State to implement these rights. For eg. People who have been displaced by the disaster will be given houses. If houses are allocated on the basis of political affiliations then the people can go before the courts as it is a violation of their civil and political rights. No judicial remedy But the people have no judicial remedy if the State is unable to provide them with decent housing or educational facilities due to lack of funds. I was told of the incident where a child who has lost his school had gone to obtain access to another government school and was told that he cannot be accommodated, because there is a rule that the maximum number of students in class should be 40 and not more that that. Now if that is the case that child will not have a right to go before the Courts, and ask for a school because that is not a fundamental right which is guaranteed under the Constitution. It is only a Directive Principle of State Policy. The State should formulate its policy in such a way so as to ensure this does not happen. If the State is unable to do so, there is nothing that the Courts can do about it. That is where this type of seminars become very important. We have to educate the people and let them know that it is their duty to take the initiative to ensure that these things are provided in the best possible manner. Because the people do not have the right to go before the Court to ask for them. Take for eg. A person who does not have sufficient health facilities. However, it is a human right to provide equitable medical facilities for everyone. It is also an economic and social right which is not incorporated in our Constitution. Economic hardship If the Sate does not provide adequate health facilities for a certain segment of the population; only if it is included as a fundamental right in the Constitution that a person has the right to go before the Courts for relief. In other words, if the right to health care is not a fundamental right under our Constitution and the State is unable to fulfil its obligations due to economic hardship there is no legal remedy. Nowhere in the world are economic and social rights included in the national Constitutions making it mandatory for States to provide these benefits to the people. If, due to the Tsunami hospitals have been destroyed and people are unable to get medical treatment, the people so affected have no right to demand from the Sate the restoration of these facilities or go before the courts to compel the State to do so. If the people have the right to enforce economic and social rights the doctors will not be able to strike and cripple the efficiency of hospitals ! This right is not included under fundamental rights in our Constitution as the Sri Lankan State do not have the economic strength to fulfil such an obligation. If this right is included in the Constitution then the State is obliged and duty bound to provide it. That is why fundamental rights are in one Chapter and the Directive Principles of State Policy and Fundamental Duties are in another Chapter of our Constitution. What are the Directive Principles of State Policy and Fundamental Duties. They are, "adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of their living conditions, the full enjoyment of leisure and social and cultural opportunities". But if these are violated we have no recourse for redress. That is because these are economic rights and stated as guidelines for state policy, under the chapter on Directive Principles of State Policy and Fundamental Duties, and not incorporated in the chapter on Fundamental Rights. Therefore, we are not in a position to obtain these rights from the State by petitioning the Courts. Today the health care system that is immobilised in the areas which came under the ravages of the Tsunami can be rejuvenated only by our own efforts. Otherwise the people who are affected by this disaster will be helpless. Pro-active media We have to come forward to help the people. People who have money should share it with those who do not have. If a person does not have a house a house should be built for him. If the necessary health care is not available to them, then we must try and provide it. This can be done by mobilising people through this type of seminars and the pro-active role of the media. If a public servants did not get the promotion due to him he could appeal to the judiciary to obtain the promotion. That is because it is a fundamental right. But if a public servant feels that he has not been given proper wages in accordance with the cost of living a person has no right of recourse to the Courts. The reason being, that is an economic right and the State is not obliged to fulfil the right. What I have been trying to clarify is the distinction between civil and political rights and economic, social and cultural rights. Civil and Political Rights are guaranteed by our Constitution. |
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