Making Economic, Social and Cultural Rights a Reality: Implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) from a Sri Lankan Perspective
Authors – K.A.A.N. Thilakarathna*, G.P.D. Madhushan** and D.J. Kumanayaka***
* Lecturer, Department of Public and International Law, Faculty of Law, University of Colombo
** Lecturer, Department of Private and Comparative Law, Faculty of Law, University of Colombo
*** Final Year Student, Sri Lanka Law College
Best Citation – K.A.A.N. Thilakarathna , G.P.D. Madhushan and D.J. Kumanayaka, Making Economic, Social and Cultural Rights a Reality: Implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) from a Sri Lankan Perspective, ILE MULTIDISCIPLINARY JOURNAL, 2 (1) of 2023, Pg. 01-06, ISSN – 2583-7230.
Introduction
The rights consciences from a Sri Lankan perspective can be traced to the periods in which kings ruled the country, where it is well documented that, even kings have punished their sons for the breach of law[1]. In a modern context, special reference was made regarding the minority rights under the Soulbury Constitution of 1947 under Article 29(2) where the majority was precluded from legislating against the protected interests of the minorities. The 1972[2] Constitution, hailed as the first sui generis Constitution of the country, while recognizing that its citizens are to be afforded with a set of fundamental rights, nonetheless omitted to provide specific provisions for the vindication of such rights. The current Constitution of 1978[3] on the other hand not only recognized a set of fundamental rights under Chapter III of the Constitution, it also made provisions for the vindication of fundamental rights by granting the exclusive jurisdiction to the Supreme Court to deal with breaches of fundamental rights due to executive or administrative actions or omission, where the aggrieved party by her/his own or through an attorney-at-law on his behalf could make a petition to the Supreme Court within one month from the breach or imminent breach of her/his recognized fundamental rights. While the 1978 Constitution did recognize a set of fundamental rights, one of the main criticisms levelled at the granted rights relates to the fact that, the recognized rights have failed to give adequate recognition to economic, social and cultural rights, whereas it has comparatively done a satisfactory recognizing civil and political rights.[4] On a negative note, the fundamental rights chapter does not even recognize the right to life, and it was through judicial decisions that the right to life had been recognized in Sri Lanka, not as a positive one, but in the negative form of not depriving one’s life without following the proper procedures of law. In the case of Sriyani Silva v. Iddamalgoda[5] the Court held that, ‘Articles 11 and 13(4) by necessary implication recognize the right to life’. However, since the right to life is only recognized by implication, the Sri Lankan Judiciary is handicapped from expanding the set of recognized rights under the Constitution, whereas for example, the Indian Judiciary has been able to expand the fabric of fundamental rights that have been recognized under the Constitution to include new rights through making expansive interpretations of the right to life which is directly recognized under the Indian Constitution under Article 21.[6] The renaissance of economic and social rights is reflected in the lively conversation concerning the philosophical foundations of subsistence rights, as well as in a burgeoning literature on how the provision of basic needs ought to be addressed through rights protections and constitutional jurisprudence.[7]
[1] Merlin Peris, ‘King Kelanitissa’s Crime’ [1987] Journal of the Royal Asiatic Society of Sri Lanka Vol 32, 91.
[2] 1972 Constitution of the Socialist Democratic Republic of Sri Lanka.
[3] 1978 Constitution of the Democratic Socialist Republic of Sri Lanka
[4] M. Gomez, C. Hartnett and D. Samararatne, ‘Constitutionalizing Economic and Social Rights in Sri Lanka’ [2016] CPA Working Papers on Constitutional Reform No. 7.
[5] [2003] Vol 2 Sri L R 63.
[6] Armin Rosencranz and Shyam Divan, Environmental Law and Policy in India: Cases, Materials (2 nd edn, OUP 2002).
[7] C. Jung, R. Hirschl, R, and E. Rosevear ‘Economic and social rights in national constitutions’ [2014] The American Journal of Comparative Law, 62(4), 1043.