Statement by Mohammad Qasim Hashimzai,Ph.D Head of the ICOIC at the 3rd Indonesian Constitutional Court International Symposium (ICCIS 2019)
In the name of God the Merciful and Compassionate
Ladies and Gentlemen,
I have chosen to present to you the topic ‘the constitutional court and consideration of economic and social rights. Considering this topic I would like to shed light on the following points:
Meaning of economic, social and cultural rights;
Historical back ground;
Inclusion of economic and social rights in the constitution and objection to the inclusion;
Inclusion of socio-economic rights in the Afghan Constitution;
Cost of delivering socio-economic rights;
International conventions and socio-economic rights;
Role of the judiciary (constitutional courts);
First all it should be stated what is meant by economic social and cultural rights?
Economic, social, and cultural rights are the freedoms, privileges, and entitlements that individuals and communities require to live a life of dignity and respect.
Since the 19th Century people across the world have wanted to see a firm (and preferably enforceable) promise, in the constitution, that their needs and priorities will be addressed by the state.
This popular demand was, in itself, a compelling reason for the inclusion of socio-economic rights in the constitution. Not to do so could alienate support and cause the constitution as a whole to forfeit its legitimacy.
The rule of law, the right to a fair trial, personal liberty and the freedoms of speech, assembly, association and religion. These rights are now known as ‘first generation civil and political rights’. Socio-economic rights come second.
If socio-economic rights are considered essential to human well-being, some argue that the distinction between first- and second-generation rights is false and artificial, and both generations of rights are indivisible and interdependent. As such, to include civil and political rights in a constitution without including socioeconomic rights is to leave the job half done and to provide the framework only for very basic and perhaps hollow freedoms.
Objections to the constitutionalization of socio-economic rights include: the risk of overloading the state’s capacity to deliver promises, failure of which can lead to a lack of legitimacy, and the fear of judges becoming too involved in policymaking and ideological objections.
Constitutional entrenchment of socio-economic rights might be considered a key aspect for post-conflict or post-trauma countries. For instance, poverty resulting from inadequate protection of housing, land and property rights could be part of the reason why conflict occurs in the first place.
In saying this is should also stated that in some countries, the financial cost of achieving socio-economic rights can be a major issue. Delivering socio-economic rights requires public resources (in terms of available funds) and state capacity (in terms of technical knowledge and effective administrative structures).
If the state cannot muster these, then the rights will exist only as unfulfilled promises. It is widely argued that this may have a harmful effect on other rights and on the constitutional system as a whole where promised rights exist only on paper, and are not treated as credible or binding by the public or the government.
For instance, [as mentioned earlier] Article 43 of the Afghan Constitution states that education is the right of all citizens and it further adds that this service shall be offered to undergraduate level free of charge.
Ladies and Gentlemen,
In Afghanistan, a hundred years ago, the first constitution of the country spoke about economic rights.
This Constitution in article 12 stated: the subjects of Afghanistan, as one of their general rights, for the purpose of promoting the economy, can form any kind of company.
The 1366 (1987) Constitution [also] had general provisions giving the government the duty to follow a policy aiming to improve the people’s standard of living through social and economic programs, and through measures to protect investors individually or collectively.
Now the Constitution of 2003 includes detailed provisions on socio-economic subjects giving the government the duty to encourage, promote and protect investors and follow the policy of a free-market economy. Another article gives the government the duty to implement effective programs for the promotion of agriculture, industry, the level of production, standard of living and protecting business.
This is a high level ambitious commitment for the state that is facing challenges to be able to fulfil for all, due to financial cost, over-population, high demand and lack of management. This promise is also above the level of requirement laid down by international conventions, requiring up to school level to be free of charge.
Moreover, the Constitution in article 52 further states that state shall provide free preventative healthcare and treatment of disease for the citizens.
The accomplishment of this provision is facing obvious problems similar to Article 43.
There are other articles similar to the above two articles where fulfillment is problematic, mainly due to the lack of resources.
On the other hand, the right to social security has no place in the Afghan Constitution; whereas in most prosperous countries the right to social security has been embodied in their constitutions.
After World War II, international treaties and conventions increasingly began to incorporate socio-economic rights, including, most importantly, the Universal Declaration of Human Rights (UDHR, 1948) and the International [Convention on Economic, Social and Cultural Rights. Have These international conventions exerted significant influence on national constitutions.
A number of constitutions (e.g. Afghanistan) specifically refer to the UDHR. There is a correlation between the rights found in the UDHR and those found in national constitutions, demonstrating that the UDHR has served as a template for constitution-makers.
As a party to the UN Convention on Social, Economic and Cultural Rights, Afghanistan is obliged to provide information reflecting the standard of living, including the 30 UN indicators for assessing the implementation of social, economic and cultural rights.
In its report Afghanistan attempted to provide information on the fulfilment and attainment of indicators, but in some areas partial fulfilment, indicated the challenges of the on-going 40-year long war, poverty, lack of financial resources.
Role of the judiciary (constitutional courts)
If socio-economic rights are not specified or recognized in the constitution, then courts may take a very narrow view of the state’s responsibility, preferring civil and property rights over social, economic and cultural concerns. Whereas the presence of socio-economic rights in the constitution may incline the courts toward a more expansive interpretation of the state’s responsibilities and a more communitarian understanding of rights.
As such, it has been argued that constitutional recognition of socio-economic rights can politicize the judiciary and judicialize politics. Further, this could implicate courts in making decisions that could have budgetary/cost implications. The strongest form of constitutional recognition is to list socio-economic rights as judicially enforceable rights in a manner similar to that in which civil and political rights are usually enforced. About a third of the world’s constitutions take this approach.
There was a genuine political reason for entrusting into the hands of the judiciary part of the obligation to protect the vulnerable and the marginalized against state repression.
When a breach of the rights is considered by the Constitutional Court it can direct the government to furnish court with plans, current and future, on how it intended to remedy the vulnerability grievances of the victim.
The Court may before or after delivering a judgment constitute a Monitoring Committee consisting of such number of persons appointed by Court from among the parties including, interested parties and representatives from the relevant agencies of government that the Court may deem necessary to appear. The Committee shall monitor and supervise the implementation of the collectively agreed orders of the Court.
Human rights standards and norms and inclusion of these standards in the constitutions, resulted from many centuries of work and efforts, forms bases for the inclusion of socio-economic rights in the constitutions of the most countries. The international conventions in particular the Social and Economic and Cultural rights Convention containing socio-economic rights in detail was another factor for inclusion of these rights in the constitutions of many countries who ratified this convention. Obviously some countries, although party to the convention, have drawn a line between those rights which their fulfillment is feasible and those not possible due to financial limitations.
The constitutional courts or their equivalent institution such as Independent Commission for Overseeing the Implementation of the Constitution as a guarantor of socio-economic rights consider those social and economic rights embodied in the constitution. As most of the constitutions embody relatively most of the socio-economic rights, so the constitutional courts play a major role in considering cases claiming violation of any of these rights and provide remedy to the victims.
It should be also noted that the designers of the constitution should include those socio-economic rights in the constitution that their fulfillment is the financial capability of the governments. Otherwise the constitutional courts, in applying the provisions of the constitution, render decisions which face to problem and eventually ends up to violation of the constitution.