Image: War affected children have become part time street vendors in Jaffna.
Two German based INGOs has written to PM Wickremasinghe urging to guarantee Economic, Social and Cultural Rights in the New Constitution.
They have e recommended the pertinent institutions in Sri Lanka drafting the new constitution to:
Explicitly include economic, social and cultural rights like the right to adequate food and nutrition, the right to health, the right to water, the right to housing, the right to social security, the right to land as separate fundamental rights, render them justiciable in the new constitution, and provide mechanisms to ensure their progressive realization;
Guarantee the use of a human rights-based language according to international legal standards (see, for instance, ICESCR);
Provide legal recourse to the people of Sri Lanka to claim and enforce their rights through State institutions, such as courts and commissions.
Full letter sent to PM follows:
Ranil Wickremesinghe,
Prime Minister of Sri Lanka.
Chairman of the Steering Committee Constitutional Assembly of Sri Lanka.
Open letter to the Constitutional Assembly of Sri Lanka:
Guaranteeing Economic, Social and Cultural Rights in the New Constitution
Honorable Prime Minister, We have noted with great appreciation that the constitutional reform of Sri Lanka has been brought under way, which provides a unique opportunity for reconciliation and further democratization of the state.
We welcome that according to the final report1 of the Public Representations Committee on Constitutional Reforms (PRC) economic, social, and cultural rights should have the same status as political and civil rights, as already consensual in the doctrine of International Human Rights Law, 2 endorsing, among others, what has been known as a comprehensive International Bill of Human Rights. Under Chapter 12 “Fundamental Rights” of its report, the PRC recommends to include into the new constitution, among others, the right to health, food, water, housing, social security, land, environment and education.
The Sub-Committee on Fundamental Rights of the Constitutional Assembly of Sri Lanka in its recently published report also stresses the relevance of introducing justiciable economic, social and cultural rights in the national constitution, following the international tendency of constitutions of different states, such as the South African, Nepali and Bolivian ones. Recently, the Special Rapporteur on Minority Issues, Ms. Rita Izsák-Ndiaye, expressed her concerns about structural discrimination. On the report regarding her visit to the country on October 2016, she highlighted the severe racism against Tamil and Muslim communities.
These communities face even more violations of their economic, social and cultural rights than the rest of the population. Ms. Izsák-Ndiaye called on the State, among other recommendations, to “ensure that the imminent constitutional reform includes a strong minority rights regime including a fully empowered Independent Commission.” 3
Sri Lanka is a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) since 1980, when it was ratified by the state. But as stated by the monitoring UN Committee on Economic, Social and Cultural Rights in its concluding observations of 2010, “the Covenant has not been given full effect in the domestic legal order and although some of its provisions are justiciable before the Supreme Court, they are rarely invoked.” 4
This is directly relevant for the majority of people in Sri Lanka, as they are confronted with a deficient legal basis and their access to justice is significantly hindered. It also reinforces the necessity of bringing the ICESCR standards into the new constitution.
Endorsing already existing economic, social and cultural rights standards and protecting the Sri Lankan people from any arbitrary terms that could hinder the full realization of their human rights would guarantee legal and political strength to the new constitution. In this sense, we would like to refer to the importance of using the official legal language adopted by international covenants, declarations and other documents issued by international organisms, especially those of the United Nations, in order to comply with international standards of economic, social and cultural rights, e.g., the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides an accurate legal standard/language on economic, social and cultural rights. On some specific human rights, such as the one referring to food, it would be also extremely relevant to apply the human rights-based language adopted by FAO, which refers to “the right to adequate food and nutrition”.5
Therefore, we, the undersigned organisations, call on the members of the Constitutional Assembly to ensure that the new constitution of Sri Lanka is underpinned by the constitutional recognition of economic, social and cultural fundamental rights.
By that, the new constitution would recognise Sri Lanka’s post-independence history of public provisioning in areas such as health, education and social welfare. Furthermore, such legal provision would strengthen the judicial enforcement of economic, social and cultural rights with respect to public policies implemented to realize them, such as education, health, food, water, adequate housing, social security, a living wage, decent and safe work, freedom from forced evictions, a safe, clean and healthy environment.
We are sure that such a new constitution would result in a fresh social contract between citizens and the state. A new constitution must reaffirm Sri Lankan peoples’ sovereignty, which is the very base of the State.
Based on this, we recommend the pertinent institutions in Sri Lanka drafting the new constitution to:
Explicitly include economic, social and cultural rights like the right to adequate food and nutrition, the right to health, the right to water, the right to housing, the right to social security, the right to land as separate fundamental rights, render them justiciable in the new constitution, and provide mechanisms to ensure their progressive realization;
Guarantee the use of a human rights-based language according to international legal standards (see, for instance, ICESCR);
Provide legal recourse to the people of Sri Lanka to claim and enforce their rights through State institutions, such as courts and commissions.
Yours sincerely,
Sofia Monsalve,
FIAN International
Theo Rathgeber,
Sri Lanka Advocacy Forum Secretary-General
1 Report on Public Representations on Constitutional Reform, May 2016. Available at http://www.yourconstitution.lk/PRCRpt/PRC_english_report-A4.pdf
2 For more information, please visit: http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx.
3 For more information, see: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?Ne wsID=20709&LangID=E.
4 E/C.12/LKA/CO/2-4. p. 2. Available at: www.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symb olno=E%2fC.12%2fLKA%2fCO%2f2-4&Lang=en
5 See “Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security”. Rome: FAO, 2005. Available at: www.fao.org/3/a-y7937e.pdf
Cc: Hon. Lakshman Kiriella
Hon. Nimal Siripala de Silva
Hon. Rauff Hakeem
Hon. (Dr.) Wijeyadasa Rajapakshe
Hon. A. D. Susil Premajayantha
Hon. Rishad Bathiudeen
Hon. Patali Champika Ranawaka
Hon. D. M. Swaminathan Hon. Mano Ganesan
Hon. Malik Samarawickrama
Hon. Rajavarothiam Sampanthan
Hon. Anura Dissanayaka
Hon. Dilan Perera
Hon. Dinesh Gunawardena
Hon. (Dr.) Jayampathy Wickramaratne
Hon. M. A. Sumanthiran
Hon. (Dr.) (Mrs.) Thusitha Wijemanna
Hon. Bimal Rathnayake
Hon. Prasanna Ranatunga
Hon. Douglas Devananda
Hon. Thilanga Sumathipala
Hon. Selvam Adaikkalanathan
Hon. Kabir Hashim
Hon. (Dr.) (Mrs.) Sudarshini Fernandopulle
Hon. Tilak Marapana
Hon. Mahinda Yapa Abeywardena
Hon. (Dr.) Nalinda Jayathissa
Ms. Hilal Elver, UN Special Rapporteur on the right to food
Mr. Léo Heller, UN Special Rapporteur on the human right to safe drinking water and sanitation Ms. Rita Izsák-Ndiaye, UN Special Rapporteur on minority issues
Mr. Philip Alston, UN Special Rapporteur on extreme poverty and human rights
Ms. Leilani Fahra, UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context
Mr. Dainius Puras, UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health Secretariat of the UN Committee on Economic, Social and Cultural Rights
9 January 2017