The Status Of Economic And Social Rights And Minority Grievances

--Ahalya Dakshana

In many countries minorities have fought for equal treatment under the law. In fact, some of the principles issues that were at the heart of minority grievances in Sri Lanka too were issues regarding civil and political rights such as discrimination, lack of political voice etc. But these issues are inextricable from economic and social rights and this paper seeks to identify the broader lineages between civil and political rights and economic and social rights. Just as a point of clarification, rights such as the right to life, right to free speech, right to vote, right to a fair trial etc. are often grouped in the former; while rights such as the right to food, health, employment, education and such are grouped in the latter.

Firstly, it is important to point out that these rights are interdependent in the sense that the fulfillment of one is necessary for the enjoyment of the other and vice versa. For instance, one of the reasons why economic and social deprivation continues is the curtailment of civil and political rights. If people were free to exercise their rights of free speech etc. they are more likely to voice their protest at unjust policies, and they may make it more difficult for governments to continue such policies. For instance, Amartya Sen and others have argued that famines never take place in countries where there are basic political freedoms; in fact, this is part of his explanation for why there was a famine in China and not in India. Given that famines are inevitably a problem of distribution of food, rather than absolute scarcity of food, they result not from ‘natural’ factors, but from polices of maldistribution – be it policies resulting from inefficiency, corruption of malice, these are preventable events and therefore the potential subject of independent scrutiny by the political opposition, by the media, by other civil society watch dog institutions etc. In this sense, the enjoyment of economic and social rights (in this case the right to food) depends on the enjoyment of civil and political rights. But this is a reciprocal relationship. The enjoyment of civil and political rights also depends on the enjoyment of economic and social rights. One indicator of this is can be found in studies of which social strata participate least in elections, and other political activity. For instance, even in countries such at the US where there are rhetorical claims about equality for all, there have been many studies demonstrating that the poor are least likely to vote, write to their congressman, sue the government etc. There are many reasons for this - for instance, this may be partly because the underclass are so structurally marginalized, they have no reason to believe the system will hear their voice; also, this may be partly because these sectors don’t have the luxury to engage politically when they have to ensure basic subsistence; moreover, this may also be because one of the characteristics of deep poverty is also lack of education and training and other elements of social capital and system savvy-ness that would empower such groups to better enforce their rights. The basic point is that what matters is not the formal guarantee of rights, but also the circumstances in which you are situated that will shape how you can exercise those rights; even when there is formal equality, in the absence of substantive inequality, those formal guarantees can be fundamentally incapacitated. So in this way civil and political rights and economic and social rights can be seen to be fundamentally interdependent.

These rights can also be understood as indivisible – in other words, although we categorize some rights as civil and political rights, and other rights as economic and social rights this distinction itself is spurious. One fundamental example of this may be the right to citizenship – when Malayaha Tamils were disenfranchised at independence they were deprived of civil and political rights such as the right o vote, but they were also formally deprived of other elements of citizenship that may be classified as economic and social rights such as the right to education or health. Arguably when they lost rights to citizenship, they also lost standing to protest discrimination in education, or the denial of other basic welfare entitlements such as the right o health care enjoyed by all other sri lankans. Similarly, the right to free association also is fundamentally a right that involves both civil and political rights and economic and social rights. The right to free association can mean the right to form unions to change the terms of employment; it can mean the right to form political parties that advance a particular political vision; it can mean the right to form civil society groups on the basis of ethnic ties; it can mean the right to form organizations that seek to protest discrimination against and so girls’ access to education on. All of the above group together civil and political rights and economic and social right in ways that make the distinction theoretically incoherent – but also practically unhelpful and misleading in concrete political situations. Thus we may also conclude that there are significant ways in which civil and political rights and economic and social rights are fundamentally indivisible.

Many who defend the distinction argue that economic and social rights are often more difficult to implement. They argue that while a court can make a finding that someone has been denied a fair trial or tortured etc., they can force the state to take corrective action, penalize the perpetrator etc.; in contrast, it is more difficult to address issues such as hunger, health etc. However, I would argue that this simplifies the task of the former, and underestimates the potential for addressing the latter. For those who work in this area the implementation question is complex but not impossible. There are more and more efforts to go beyond a merely obligations based approach (to address the duties of states to fulfill people’s economic and social rights), to also develop a violation based approach (to address the production of economic and social rights violations). Thus we can now speak of the production of a polluted environment in the Batticaloa lagoon, just as we speak of perpetration of torture in Welikade prison. Moreover, even staying with the obligation based approach, it has been well established that in practice, as in law, economic and social rights can be ‘progressively realizable’ subject to the ‘availability of resources’. But how we should establish benchmarks for ‘progress’, how we understand what resources allow, what are the opportunity costs of spending on preventing dysentery vs. spending on strengthening defense and such, are, inevitably, subjects of political contestation. But on this score it is no different from civil and political rights. In practice, even civil and political rights such as the right to free speech are also interpreted in ways that can be situated in concrete political debates on a range of issues - even in our recent history we have had debates about whether the right to free speech should allow what some may call ‘hate speech’ by Sinhala Urumaya, different feminists have taken different positions about whether pornography should count as speech, newspapers such as the Island have been caught-up in debates about where to locate the line between free speech and defamation, in the North and East many have tried to weigh if free speech viz the LTTE should be traded off for both individual security and community peace, i.e., how to bound civil and political rights such as the right to free speechi is also a subject of political contestation. The human rights framework has no necessary hierarchy between civil and political rights and economic and social rights. In fact, international human rights law of course has long presented these two sets of rights as “universal, indivisible, interdependent and interrelated”.

All this said, it is also true that, in fact, the distinction between civil and political rights on the one hand and economic and social rights on the other is deeply entrenched – with different people placing the rationale for the distinction differently, be it on normative, legal or pragmatic grounds. In fact, many human rights and civil rights activists place rights on a hierarchy with civil and political rights seen as core rights, and economic and social rights seen as significant, but secondary. Certainly, in terms of implementation, the former are often spoken of as justiciable and creating unconditional obligations on the state for compliance, while the latter are seen as aspirational – goals that a state or society should aspire to not hard obligations to be enforced.

In fact, it could be argued that not just the hierarchy between these two sets of rights, but even the naturalization of the distinction between civil and political rights on the one hand, and economic and social rights on the other, is deeply ideological. Naturalizing the distinction obstructs how we are able to critically scrutinize the way hierarchical and exploitative power relations are reproduced under the façade of liberal universality. For instance, if alert to how formal equality can co-exist with, and even contribute to (by camouflaging) substantive inequality, minorities and other marginalized groups may spend less energy on fighting discrimination and universalizing civil and political rights; instead, they may instead also scrutinize the structures that contribute to substantive inequalities. This may call for looking beyond law and formal rights to issues that range from culture and informal systems of value to political-economy and institutional arrangements of production and consumption. This does not mean that issues of ethnic discrimination in hiring, in university admission and such that figured so large in our history of inter-ethnic relations are not important. However, it does mean that minorities are not going to see the correction of discriminatory treatment as the be all and end all of inter-ethnic justice.

It is significant that one of the consequences of a deeper sense of how inter ethnic injustice works through the interplay of civil/political marginalization and economic/social marginalization is that could draw attention to how the poor and other vulnerable sectors amongst minorities suffer exponentially on multiple grounds. For instance for Tamils in the hill country Tamil parties in the 1970s focusing on discrimination in university admission may have been a luxury when even primary schooling was radically under-resources; when economic conditions were so dire that child labor was rampant and so on. This may suggest that an exclusive or excessive focus on the issues of discrimination/equal enjoyment of civil and political rights is, in many cases, a focus on the issues of most concerned to the most privileged sectors of minority communities. In fact, while a focus only on civil and political rights may channel energies on a battle against problematic kinds of ethnic discrimination, the emancipatory promise of universalism/anti-discrimination that is invoked in those battles may also divert our attention from the value of particular kinds of discrimination. For instance, even in the Sri Lankan case, ethnic standardization was clearly wrong but the notion that discrimination was bad became such a mantra that we neglected to study the potential value of a standardization/discriminatory policy based on the resources of the school you attended. Even today there is a strong case for structuring admission on an affirmative action policy that gives weight age to applicants from under privileged schools. Rather than a ‘neutral’ admission policy, if we have a university admission policy that structures discrimination along those lines we would move closer to addressing the right to education for a child from Eravur doing her A-levels from an under privileged school.

Of course, if we focus on the ideological nature of the distinction between civil and political rights on the one hand, and economic and social rights on the other, we should logically go the next step of looking at the ideological character of rights discourse itself. Many people have argued, often compellingly, that channeling justice issues through the discourse of rights is deeply problematic and we need to develop other ways in which to advance political claims. It is argued that expanding the rights framework to include socio-economic rights continues to be statist; moreover, it continues to traffic in the ostensible emancipatory promise of universality (but simply for an expanded menu of claims). I would say that when we do and when we don’t articulate our claims as rights is a question of political strategy – on the one hand rights are problematic as the critics claim, on the other hand, they also have a rhetorical and legal power - and it is difficult to forego such a strong weapon. We are once again, between a rock and a hard place.

Ahalya Dakshana is an independent writer and activist.