The Beginner's Guide to Comparative Study of Socioeconomic Rights

Directive Principles and State policies of the Constitution of India are also looked to do a comparative study of socio-economic rights with the South African Constitution and Irish Constitution.
The Beginner's Guide to Comparative Study of Socioeconomic Rights

socioeconomic rights

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1.

Chapter 1:

INTRODUCTION

What is a Right? If we go by dictionary meaning it means any legal or moral entitlement to have or do something. So we can say it is a legal entitlement to us more specifically as it is provided to us by state. Now the next question we arrive at is what are Socio-economic rights? In simple terms we can say these are bundle of rights provided to us by the state for our social, economic and cultural welfare. It is covered under Human Rights which are divided into two groups:

  • Civil and Political Rights include the right to life, vote, and a fair trial, freedom of speech and movement and assembly.

  • Social Economic Rights includes the right to adequate housing, food, health care, education, social security and water.

International Covenant on Economic, Social and Cultural Rights of 1966[1] there are fourteen rights which are Right to Work, Right to Choice of employment and just environment, Right to own property, Right to adequate standard of living, Right to access the education, Right to start a family, Right to respect and protection of family, Right to social security, Right to social and medical assistance, Right to adequate nutrition, Right to social welfare benefits, Right to enjoyment of scientific advancements, Right to protection of health, Right to protection of morals. So we can say these are the rights which give people access to certain basic needs like resources, opportunities and services necessary for human beings to lead a dignified life. The rights are positive rights and are related to society’s need and development. So the state is bound to provide such right to public and make policies for enforcement of these rights which is the main challenge of the state.

The history of socio-economic rights is very little known. It has developed very gradually and The United Nation’s effort for its enforcement has given birth to several statutes like Industrial Dispute Acts and has made it compulsory for all the states to make constitutional provisions on these rights. As the society is changing with time and the reforms in modern era have thrown out certain social stigmas.

STATEMENT OF PROBLEM

In this modern era of industrialization and revolutionized world people still strive for social and economic security. The social stigma and backwardness is not yet finished as the population has increased significantly and the resources are going down day by day. So in this crazy world employment discrimination, work, livelihoods, social provision, and the material bases of citizenship have vanished from the constitutional landscape. People have democracy but constitutional democracy is really impossible without some limits on social and economic deprivation. Increasing poverty, growing job insecurity, a renaissance of sweat shop, lack of decent education, health care, housing and other basic social goods, they are afflicted lack more than money. People are at constant risk of physical and social debilitation. They can’t make effective use of their basic civil and political rights or participate on anything like a roughly equal footing in the world or opportunity and work where the terms of social and economic cooperation and completion are meant to be open to democratic scrutiny and revision. But now the world has changed and development in Human Rights has made it a bit successful. The presence of UN and Human Rights Commission and many more institutions which have made the nation believe how important socio-economic rights are for their people. The states have taken interest in it and trying making these rights as enforceable as the civil and political rights and even have taken many initiatives. The states have created constitutional courts to look after the violation of these rights. As the name suggest Socio-Economic Rights its related to both social and economic status of the state and the common people. The state makes policies for the enforcement of these rights and allocates funds but it isn’t possible to enforce these rights fully as funds are limited. For the developing countries which have a large population with comparisons to its limited resources and funds it becomes very hard. Although the decision as to whether a country’s constitution should make provisions for social and economic rights is a political one, the task of interpreting and enforcing such rights is undoubtedly judicial in nature.[2]

The Government and, in certain circumstances, private individuals and bodies, can be held accountable if they do not respect, protect, promote and fulfill these rights. This means that government must not do things that make it more difficult for people to gain access to these rights, must protect people against violations of their rights, and must assist people to meet their basic needs, the law should also provide effective remedies if these rights are violated.[3]

RESEARCH QUESTION

  1. Can Judiciary involve itself in directing the legislature and the executive how to allocate funds for enforcement of socio economic rights?

  2. How to analyze that the policy for the enforcement of these rights are sufficient?

  3. Do these rights have credibility in different nation’s constitutions?

HYPOTHESIS

In the present world we can see how the people work and the International institutions like Human Rights Commission and the UN have given so much of importance to the Human Rights and these socio economic rights are one of them. These rights have been given credibility with the requirement of time and it is the obligation of state to make provisions for these rights as they can be made enforceable.

SCOPE OF STUDY

In order to deal with socio economic and cultural rights the South African and Irish constitution are dealt with provisions in this areas. Directive principle and State polices of Constitution of India are also looked to do a comparative study of socio- economic rights with the South African Constitution and Irish Constitution. Section 22, 26 and 27 of the bills of rights of Constitution of Republic of South Africa has been covered thoroughly with the Articles 40, 41, 42 and 43 of the Constitution of Ireland which are fundamental rights.

RESEARCH METHODOLOGY

The research methodology for this project is doctrinal method. Research is done on the basis of data collected from Internet, Books on Constitution of South Africa and Ireland. Journals and Articles of International Human Rights and various jurists relating to Social and Economic Rights of a country. Articles are collected from E-resources of the West Bengal National University of Juridical Sciences.

CHAPTER 2

Socio-economic rights under South African Constitution and its implications

The reason for major problems like poverty and inequality in South Africa was Apartheid. Apartheid means dispossession of people from their land and housing, deliberate underdevelopment of black community, discrimination on the basis of education, housing, health care and social security and the most important problem after the first decade of independence was HIV/AIDS nearly 19 percent of population were thought to be HIV positive. So how much important social economic rights were important for the underdeveloped South African people, when the drafters were framing South African constitution these rights were not included in Bill of Right so they were not having enforceability. The drafting committees which were involved in framing the constitution included a large number of civil society organizations, including human rights and non-governmental organizations (NGOs), church groups, civics and trade unions, campaigned for the full inclusion of socioeconomic rights in the Bill of Rights for upliftment of those who remained in disadvantageous position as without socio-economic rights, the rich and powerful will use bill of rights, like the right to property to frustrate the fair distribution of resources of the society. So under the Constitution of South Africa chapter 2 bills of rights are discussed and it includes socio economic rights and they have enforceability. Sections 22, 26 and 27 are Socio-economic rights. Section 22: Freedom of trade, occupation and profession[4]. Section 26: Right of access to housing[5] but there is a limitation on this right as it says government must take steps to provide housing within its available resources. Thus it means the government will provide what it can afford related to this there is a case popularly known as Grootboom Case[6]. Section 27: Right of access to health care, food, water and social security.[7] These rights have been provided to secure the social and economic security of the people. These are fundamental rights of the people for their social development. The Government of South Africa has constituted Constitutional courts for enforcement of constitutional provisions for social and economic rights vis a vis to state’s interest in its political affairs that is the funds allocations for such enforcement. The Courts, in particular the Constitutional Court, fulfill a crucial role in the enforcement of fundamental rights. The Constitutional Court is the highest Court in all constitutional matters[8] and may decide only constitutional matters.[9] In addition to the Constitutional courts there are other authorities who are given important role to promote and monitor the fundamental rights South African Human Rights Commission (HRC) is one of them. How do we interpret these rights? In Grootboom case, the Constitutional Court said to interpret these rights firstly, we have to understand and interpret these in our historical and social context and secondly, when looking at the historical and social context we have to consider the current barriers to access to services and vulnerability of specific groups, such as children, women and the elderly people. In first ever case of these rights is Soobramoney v Minister of Health (KwaZulu-Natal)[10] in this case the right to health care was discussed. An Indian South African living in the city of Durban had an ischemic heart, a failed liver, and a life expectation of approximately 18 months.[11] His condition was very serious he received treatment at least once a week, he used public hospital for dialysis but he was denied as the hospital had provisions for only 78 patients for a week. Therefore, the hospital gave priority to patients who were in line to receive transplants, who needed only short term treatment, and who would make a full recovery. In other words, to give Soobramoney dialysis would have prevented a different patient from receiving the long term benefits of treatment. Due to this he brought an urgent appeal in High Court of Durban which ordered the Government to provide him the dialysis on this the Government urgently appealed against the order. In the Constitutional Court which heard this case he contended that this was emergency treatment, which is an absolute right under the South African Constitution and not, like other forms of health care, something to which the government must only provide reasonable access.[12] The court replied to this contention and said emergency treatment is an treatment which is provided to a person during trauma or accident and his case is not covered under both though his condition was grave but did not require such care. It also held that it cannot order hospital to buy new dialysis machine as the budget had been carefully drafted and if the funds are not used properly then there can be difficulties in providing proper care to all the patients and also it held that it cannot interfere and tell the government how to stock its medical supplies but it could only interfere in situations where there was an unconstitutional violation of equality.[13] One of the most dramatic cases in this matter has been Minister of Health v. Treatment Action Campaign[14] where the court held against the government. In this case supply of drug Nevirapine to pregnant mother for stopping transfer of HIV/AIDS from pregnant mother to her child was in question. The government had stopped supply of this drug as after taking this drug the mother should not breast feed her child as transfer can happen through that and mother who don’t breast feed need clean water for formula which was not available in some areas. This was the main contention of the government to which the court said the expectant mother can be taught and understand the reasons for not breast feeding her child and the main reason to deny the supply of drug is not breast feeding but the supply of clean water. If there is no clean water then the mother will not be advised to the drug. Hence the government was ordered to supply the drug and government quickly implemented the decision.[15]

In another breathtaking decision the Constitutional Court has also pushed the government to ensure the rights of its citizens in cases concerning the right to housing. In Government of the RSA v. Grootboom,[16] hundreds of squatter dwellers who lived in an area on the banks of a river outside of Cape Town lost their homes during a flood; they then shifted to a private property and built makeshift homes with cardboard and plastic that provided minimal protection from the elements. Shamefully, the owner of this private property was encouraged by local authority to apply for their eviction, which the lower court granted.[17] To which the squatter dwellers brought an application against to provisional government and the city government, which asserted that the South African Constitution provided a right to housing.[18] It was argued that the government has provided housing, electricity and water to millions of South African under its policy to follow the provision provided under the Constitution of South Africa. But the Court noted that government has done work but the policy did not provide for the poorest of the poor or for emergency situations. It said that where reasonable access to housing had been providing as constitutional requirement, there had to be minimal provisions for emergencies and for individuals of lower socio-economic status and also noted that there must be a minimum core for housing or, by extension, what would be minimum core for health care but rejected this view as there was insufficient information to determine this.[19] The court held the government should make provisions for the country’s neediest and recommended the Human Rights Commission established under the Constitution of Republic of South Africa to check on the government and address these type of problem where implementing of policy is barred by funds.[20]

CHAPTER 3

Socio-economic rights under Irish Constitution and its implications

According to international human rights law codified in the International Covenant for Economic, Social and Cultural Rights which was ratified by Ireland in 1989, social and economic rights are not “optional” in economic recovery policies but are even more urgent to safeguard as economic and social conditions deteriorate. By ratifying this Covenant, Ireland legally committed to using the “maximum available resources” for the progressive realization of economic, social and cultural rights, providing special protection for people who belong to vulnerable groups or who find themselves in situations of discrimination or disadvantage.[21]

The Irish Constitution came into effect at a time when Europe was plagued by ideologies that had little regard for human rights; in contrast to the trend towards totalitarianism, the Irish Constitution, anticipating the Universal Declaration of Human Rights by more than a decade, proclaimed a human rights philosophy that completely rejected legal positivism in favors of an understanding of human rights- and responsibilities[22]- as inhering in every human being regardless of age or capacity, “anterior to positive law”.[23] The relationship between respect for dignity and respect for equality is crucially important to our understanding of the nature and scope of social and economic rights.[24] The integration of the two is apparent in Walsh J’s explanation that Article 40.1 of the Constitution is: not a guarantee of absolute equality for all citizens in all circumstances; it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human Attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in our country”.[25]

The situation in Ireland was worst as there was no recognition to the Socio-economic rights of the people. The judiciary had stopped from recognizing the Economic Social and Cultural Rights in cases like O’Reilly v Limerick Corporation[26] Mr. Justice Costello rejected the contention that right to dignity and vindication of the person, extend to ordering the state to protect Socio-economic rights and in case of T.D v. Ireland[27] the Supreme Court has stated that Ireland has no obligation to provide any form of socio-economic benefit for any of its citizens, however needy or deserving.[28] However, in Re Health (Amendment) (No.2) Bill 2004, the Supreme Court did state: in a discrete case the normal discretion of the Oireachtas in the didstribution or spending of public monies could be constrained by constitutional obligation to provide shelter and maintenance for those with exceptional needs so we can say from a constitutional perspective, the protection of Socio-economic rights is very weak.[29] The people have worked throughout to include and enforce these rights in the Constitution of Ireland and they have succeeded in doing so. In the Convention of Constitution which held in February 2012 decided in favor of providing greater protection to socio economic rights in their constitution and giving them enforceability which has limited protection before. The panel has defined properly these rights as ESC rights are socio-economic human rights and are protected to varying degrees under international, European and Irish law. Economic rights are those rights that relate to labor and property rights, these rights include the right to work and to fair conditions of work. Social Rights include the right to social security, education, to an adequate standard of living and to shelter. Cultural rights include the right to participate in the culture of one’s communities and that ethnic minorities have the right to practice their own culture, faith and language.[30]

Thus the Constitution of Ireland will become as good as South African Constitution after amendment.

CHAPTER 4

Comparative Analysis

As we know Civil and Political Rights are more protected than the Social and Economic Rights. So under this chapter a comparison between the two constitutions is done which as follows:

· As we know South Africa is one of the few nations which have included the socio-economic rights under its Bill of Rights thus having the enforceability. But in constitutions like Ireland and India these rights have not been given a same role as of civil and political rights which are enforceable. Even in India Socio-Economic rights are addressed to State i.e it covers all organs of State but in Irish constitution it is addressed to Judiciary. For both the countries it acts like a directive to state where as in South African Constitution they are fundamental rights and the state is bound to provide its citizens an equal security and safeguard for their social and economic development. The Irish Constitution which lags behind in achieving protection for socio-economic rights is trying to develop its politics as the resources are very less for the inhabitants.

· For governing and protecting these rights from violation by anyone the government of South Africa have created Constitutional Courts specially for governing these matters but Ireland don’t have any such court as socio-economic rights are not enforceable due to directive provisions are closed chapters whereas in India Courts cannot legally enforce but they are not barred from taking cognizance of the Directives.

· The state is bound act in accordance with the order of Constitutional Courts i.e implementation of the Courts order are bound. Similarly in India the directives of Courts are fundamental and have the nature of necessary implementation by the State. But in Ireland the directives are intended for general guidance of the legislature and Executive.

· Apart from going to Constitutional Courts there are other authorities like South African Human Rights Commission and Commission for Gender Equality which look into matters where these rights are violated. In Ireland and India there are authorities which can look into matters where these rights are violated but they are independent and not governed as in South Africa.

CHAPTER 5

Conclusion

The struggles of human rights activists, the international community are now paying more attention towards socio-economic rights. Now they have realized the worth of these rights that how much these are important and essential to human dignity. For making these rights effective in countries like India, Ireland and developing and least developed nations the state should bring on some changes to the system to ensure its citizens social and economic security. The countries should bring about following changes:

  • They need to ratify international agreements and make them a part of a national legal system.

  • They must give them strong protection in their national legal systems, including recognizing them in the Bill of Rights as enforceable rights.

  • The state should implement and develop policies and legal order to give effect and represent them at national level.

  • Accession of strong remedies for the violation of these rights like it happens in South Africa where the State has constituted special constitutional courts for matters relating to these rights.

So we can say except a few most of the nations are in developing their Socio-economic rights or we can say providing greater constitutional protection to it.

[1] http://www.juridicum.su.se/juruppsatser/2007/ht_2010_Karin_Kjellin.pdf accessed on 30/01/2022.

[2] Goldstone, Richard J, A South African Perspective on Social and Economic Rights.’ Human Rights Brief 13, no.2 (2006): 4-7.

[3]https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCEQFjAA&url=http%3A%2F%2Fwww.communitylawcentre.org.za%2Fprojects%2Fsocio-economic rights%2FResearch%2520and%2520Publications%2FResource%2520Book%2FChapter%25201%2520-%2520Introducing%2520SocioEconomic%2520Rights.pdf%2Fdownload&ei=XqFPVJ6wJuetmAWy8oK4DQ&usg=AFQjCNFENoqBLJlKsKhbuig4oWE3JmZ-0g&sig2=hmfTfG7X3eFVEvydbcMSaQ&bvm=bv.77880786,d.dGY accessed on 30/01/2022.

[4] Every citizen has the right to choose their trade, occupation or profession freely. Laws can be passed to regulate how people practice their trade, occupation or professions, Constitution of South Africa, 1995.

[5] Everyone has the right to have access to adequate housing. The government must take reasonable steps within its available resources to provide people with housing and access to land, Constitution of South Africa, 1995.

[6] Government of RSA v Grootboom, 2001 (1) SA 46 (CC).

[7] Everyone has the right to have access to: healthcare services (including child birth facilities), enough food and water, social security(which means support for people who can’t support themselves or their dependants) the government must pass laws and have policies that provide welfare assistance for the people who need it the most, constitution of South Africa, 1995.

[8] The Constitution 1996, s167 (7)describes a constitutional matter as any issue involving the interpretation, protection or enforcement of the Constitution.

[9] The Constitution 1996, s 167(3): as well as issues connected with decisions on constitutional matters; the Constitutional Court also takes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

[10]1997 (12) BCLR 1696 (CC).

[11] Ibid.

[12] Constitution of the Republic of South Africa, Section 27 (1), 27 (3).

[13] Ibid, 10.

[14] 2002 (5) SA 721 (CC)

[15] Supra note 14, p 5.

[16] Supra note 6, p 4.

[17] Ibid.

[18] Supra note 2, p 2.

[19] Ibid.

[20] Supra note 14, p 5.

[21] Ignacio Saiz, Ireland: Austerity must not trump human rights in constitutional reforms, p 2.

[22] Cf. Articles 9.3, 41.2.2. (admittedly a controversial provision), 42.1, 42.5 of the Irish Constitution. Article 29(1) of the Universal Declaration of Human Rights provides that “everyone has duties to the community in which alone the free and full development of his personality is possible.” Articles 27 to 29 of the African Charter on Human and Peoples’ Rights also contains provisions setting out dudties of individuals to others in society. Similarly Part IVA of the Indian Constitution.

[23] Cf. articles 41.1.1 and 43.1.1.

[24] O’Connell, “from Equality before the Law to the Equal Benefit of the Law: Social and Economic Rights in the Irish Constitution”, Chapter 18 of Oran Doyle & Eoin Carolan eds, The Irish Constitution: Governance and values (2008).

[25] Quinn’s Supermarket v. Attorney General (1972) IR 1, at p. 13.

[26] (1989) I.L.R.M. 181.

[27] (2001) IESC 101.

[28] Ibid.

[29] https://www.constitution.ie/AttachmentDownload.ashx?mid=5333bbe7-a9b8-e311-a7ce-005056a32ee4 accessed on 30/01/2022.

[30] https://www.constitution.ie/AttachmentDownload.ashx?mid=adc4c56a-a09c-e311-a7ce-005056a32ee4 accessed on 30/01/2022.

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