Formulation and Enforcement of Socio-Economic Rights

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1 United Nations Assistance Mission for Iraq (UNAMI) Baghdad-Iraq Office of Constitutional Support Formulation and Enforcement of Socio-Economic Rights United Nations Multiparty Dialogue on the Enforcement and Formulation of Human Rights in the Iraqi Constitution Prof. Nicholas Fink Haysom Director, UNAMI Office of Constitutional Support Introduction Socio-economic rights are now widely accepted. The challenges they pose both to the State and to the framework for human rights generally concern their application and enforceability. This raises questions regarding the choice, the classification and the textual formulation of these rights. What are Socio-Economic Rights? The Iraqi constitutions have long recognised socio-economic rights. The new constitution continues this tradition. Socio-economic rights are rights which typically deal with entitlements to resources and opportunities to access such resources. They are primarily concerned with substantive equality of citizens at least in regard to a basic floor of socio-economic entitlements. The distinction with political and cultural rights is often expressed as the difference between a sword and a shield. Political and civil rights are concerned with freedom and to guarantee the basic rights of the citizen regarding the exercise of his or her freedom and autonomy. They guarantee equality of treatment, but do not usually entitle the citizen to claim benefits from the State. They are often referred to as first generation rights. Socioeconomic rights on the other hand, require the State to make available resources to its citizens. In international jurisprudence, rights whether political or economic, are regarded as equal in status and indivisible in importance. However, they do raise different approaches to 1

2 enforcement. In truth, the distinctions drawn are somewhat artificial as many socioeconomic rights concern questions of procedure and equal access rather than substantive entitlement, while many political rights do require expenditure and the utilisation of State resources: e.g. right to vote or right to a fair trial. The Importance of Socio-Economic Rights 1. Socio-economic rights speak to the ordinary citizens concerns 2. A floor of substantive rights which guarantee a measure of equality for all citizens. They recognise that without food a citizen cannot exercise his or her civil, political or any other rights 3. Socio-economic rights like all other rights recognise a measure of equality and dignity for all citizens The Challenge of Socio-Economic Rights 1. Critics argue that socio-economic rights are either unenforceable because they are aspirational or simply unrealistic (e.g. the right of all citizens to be employed). 2. Critics might argue that even those that are affordable should not be enforced by the courts but only by the political authorities which are required to balance the competing demands for the limited resources of the State, i.e. between education, health, housing and sustenance. They might argue that judges who are not elected officials nor experienced in policy matters should not be charged with determining who and how much a citizen is entitled to. 3. It follows from the above two arguments that the danger posed by including socio-economic rights in the constitution is to place aspirational rights on the same footing as enforceable (civil) rights and thereby to suggest that all rights are aspirational and not necessarily enforceable. 4. For this reason, some bills of rights separate socio-economic rights into a separate chapter (Spain) or by placing them under a separate chapter called Directive Principles of State Policy (India). 5. Champions of socio-economic rights strongly object to the separation of socioeconomic rights into a different category because it implies that they are not to be treated seriously; that they are a second class set of rights. They would insist on the indivisibility and equality of status of these two categories of rights; that there should be no difference in the treatment of the right to be free from starvation from the freedom of expression. 2

3 The Proper Enforcement and Application of Socio-Economic Rights The challenge is to find more effective enforcement of socio-economic rights rather than ignoring them. There is increasing recognition of the importance of these rights as well as their range. It is conceded that different rights may place emphasis on different mechanisms of enforcement. Socio-economic rights does place more emphasis on nonjudicial mechanisms of enforcement, but nonetheless should be anchored where necessary in judicial enforcement. Non-Judicial Forms of Enforcement 1. Socio-economic rights can place greater reliance for their enforcement on international agreements and conventions and mechanisms for their enforcement, especially with regard to the State s obligation to record its compliance with its domestic and international obligations through reporting mechanisms. 2. Socio-economic rights can be equally strongly defended, advanced and promoted in domestic non-judicial mechanisms of monitoring and enforcement such as an independent national human rights commission. 3. The presence of socio-economic rights in the constitution allows civil society including NGOs and trade unions, to anchor demands for socio-economic justice in the constitution. 4. Inclusion in the constitution of socio-economic rights is also a basis for public education and civic values and equality, and frames a contract between government and the citizens. It thus promotes political accountability in a very direct manner. Judicial Enforcement of Socio-Economic Rights A tension which arises out of judicial enforcement of socio-economic rights is the dispute as to what matters should be properly the responsibility of politics and a duly elected and accountable government, and what matters should be the responsibility of judges who are not elected and are not politically accountable. Socio-economic rights may require an investigation not just regarding the enforcement of a right, but the standards and resources that are required to be expended. Can this be done without reference to competing demands for such resources? The answer for some is no while for others, the courts could at least insist on rationality and existence of a proper consideration of citizens rights on the part of administrators, 3

4 rather than actually second guessing politicians. Such an interventionist approach would still allow deference to executive decisions. In practice, socio-economic rights are not dissimilar from other rights and require protection that does not implicate State expenditure, or if they do, they implicate a similar degree. In this regard some socio-economic rights can be treated like any other right. The answer to the tension lies in the formulation of the rights which can clearly frame the right in question as part of a floor of directly enforceable socio-economic rights; for example, the right to basic education or the right to basic nutrition in respect of children. It is important in the formulation that the article dealing with the right gives clear direction to citizens, the executive and the judiciary as to whether the right is (1) a hard right enforceable in the courts or (2) a procedural safeguard or (3) a right contingent upon the availability of resources. Thus for example, in the South African constitution the text deals with health and housing in the following way: Housing Article 26 (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Health care, food, water and social security Article 27 (1) Everyone has the right to have access to (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment. Some socio-economic rights require procedural guarantees rather than substantive enforcement. Thus for example, the right not to be discriminated against in regard to obtaining benefits from the State or to ensure that the benefits are provided geographically and without distinction may be all that is required. Courts can and must play a robust role here too. In regard to those rights that the constitution addresses but which are dependent on adequate resources, the constitution can protect enforcement of these rights by indicating the conditionalities on which they depend (if resources permit). What the constitution is 4

5 seeking to achieve is to codify the national aspirations in its basic law and to require that these aspirations be progressively realised as the resources become available. Here the courts could have a diverse set of responsibilities. It could in interpreting other rights and other laws, factor in these aspirational rights as aides in interpreting the law in the event of dispute. This is what the Indian Supreme Court has done. It can asses, for example, whether there is wanton profligacy by an administration and a failure to consider this aspirational right, e.g. by requiring that the administrators revisit the allocation of resources. These are hard cases and they are resolved only with difficulty by courts. The recent jurisprudence in countries which have sought to give meaning to socio-economic rights has shown the way (e.g. South Africa). Thus for example, an attempt to redirect State expenditure from arms procurement in South Africa has been unsuccessful on the merits, but has sharpened debate and forced the State to justify and adjust both the level and nature of its arms procurement programme. The more difficult illustration is that of Mr Soobramoney, who sought access to a dialysis machine without which he would surely die (which he did in the proceedings). In this case, the South African Constitutional Court affirmed Soobramoney s general right but accepted the State s decision to share the machines with a broader range of needy candidates. More contentious has been the Constitutional Court s decision to compel the government to provide AIDS medication when the State had been reluctant to follow this route. The result has been a sharp tension between the judicial arm and the executive arm. In regard to the Iraqi Constitution, we note the following: 1. Omission of some rights 2. Need for more express entitlement of some rights 3. The possible need for qualification and direction in enforcement 4. The inclusion of certain rights may not be appropriate in this section of the constitution 5. General provisions: There is a need as previously discussed to qualify the ambit of the limitations clause; to provide an Article which would direct or limit or broaden the range of remedies available to the court; i.e., whether the award should be retrospective, extended to a class, suspended pending executive review or remedial legislative action. Normally, we would say that these rights are recognised to the extent that domestic courts give effect to them, and to the extent that the executive respects the authority of both the judicial and non-judicial mechanisms for promoting these rights. In this regard, Iraq still has some way to go and will have to overcome the legacy of the abuse of courts by previous regimes. 5