COHRE ESC Rights Srilanka 2007

The legal enforcement of economic, social and cultural rights in Sri Lanka

Centre on Housing Rights and Evictions www.cohre.org/srilanka

© Copyright 2007 the Centre on Housing Rights and Evictions (COHRE) The Legal Enforcement of Economic, Social and Cultural Rights in Sri Lanka All rights reserved.

The Centre on Housing Rights and Evictions (COHRE) is registered in the Netherlands as a not-for-profit organization.

Copies are available from: COHRE – Sri Lanka 106 1/1 Horton Place, Colombo 7.

Sri Lanka Tel:+94.11.2693143 Fax: +94.11.2693143 Email:srilanka@cohre.org http://www.cohre.org/srilanka and COHRE 83 Rue de Montbrillant 1202 Geneva Switzerland Tel:+41.22.734.1028 Fax:+41.22.733.8336 Email:cohre@cohre.org http://www.cohre.org

Written and prepared by: Bret Thiele, Pubudini Wickramaratne Introduction by: Todd Wassel Special thanks to: Kees Wouters (review) Edited by: Maria Katsabanis Graphic Design & Print: Wits Associates (Pvt) Ltd. – Sri Lanka Very special thanks to Dan Nicholson who shared his experiences and knowledge.

Content Introduction

3

Right to a Remedy

4

What is justiciability?

5

What are some remedies?

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Do governments have to provide remedies?

8

Applying the Covenant in national courts

9

Legal enforcement of ESC: some examples of cases 10 Non-Discrimination and Right to Equality 10 Obligation to Respect 11 Obligation to Protect 12 Obligation to Fulfil

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Use of existing fundamental rights to overcome barriers 15 Use of directive principles of state policy 18 Examples from India 19 Conclusion

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Introduction: Sri Lanka faces a severe housing crisis - marked by a 20 year old ongoing civil conflict, the devastation of the Asian Tsunami, and a domestic legal system that has yet to fully recognize the full range of international human rights standards and obligations, especially in relation to economic, social and cultural (ESC) rights.

Sri Lanka has one of the largest populations of IDPs in the world. With the escalating violence following the breakdown of a ceasefire agreement, the number of conflict IDPs is increasing on a daily basis.

It is estimated that in 2007 there are over 750,000 IDPs in Sri Lanka, of which 300,000 have been displaced in the recent upsurge in violence between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). Approximately 150,000 others have been resettled or returned following the government’s “pacification” of the East, however, their long term housing needs have not been provided for and many live in a constant state of insecurity. Additionally, High Security Zones, secondary occupation and similar phenomena have exacerbated the challenges faced by conflict IDPs. Three years after the Asian Tsunami many displaced persons still have not received adequate housing and over 11,500 still live temporary camps. Many still await restitution claims from the government or international organisations. However, many others have fallen through the policy gaps and have been forgotten or in some cases purposely discriminated against.

In addition to IDPs, other vulnerable and marginalized groups do not have access to judicial remedies for human rights violations, and in particular violations of economic, social and cultural rights. These include slum and plantation communities who lack security of tenure and who are vulnerable to the forces of the economy and government sponsored ‘development’ projects resulting in forced evictions.

Women are also particularly vulnerable to housing violations and have suffered from gender based discrimination. Displaced women are particularly vulnerable and have endured discrimination related to titling schemes, restitution, and other elements related to emergency/disaster relief.

As a state party to most international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Sri Lankan government has the obligation to respect, protect and fulfil the rights enshrined in these treaties. However, currently the Sri Lankan legal system does not afford legal protection to most ESC rights and in particular the right to adequate housing. However, as a growing body of jurisprudence shows, there are many effective strategies for introducing ESC rights into legal proceedings as well as helping to argue for a broader interpretation of current laws in relation to international legal obligations of the State.

The Legal Enforcement of Economic, Social and Cultural Rights in Sri Lanka is aimed at helping Sri Lankan lawyers, policy makers, and advocates harmonize Sri Lanka’s domestic legal system with its international human rights obligations. It provides a breakdown of relevant information for enforcing ESC rights in Sri Lanka and offers examples of court cases from around the world in which ESC rights were successfully defended.

This COHRE report offers a new recourse for human rights defenders in Sri Lanka. We at COHRE hope that it can contribute to building a better, safer, and more secure future for the victims of housing rights violations in Sri Lanka.

Figures for IDPs have been gathered from a variety of sources including UNHCR, OCHA, government agencies, and independent fact finding missions. Accurate figures are difficult to determine, however, it is generally agreed that the actual number of IDPs is greater than 750,000 persons.

Right to a Remedy As a state party to the International Covenant on Economic, Social and Cultural Rights and other international instruments enshrining these rights, Sri Lanka and its political subdivisions are legally obligated to respect, protect and fulfil economic, social and cultural (ESC) rights. They are obligated to not interfere with a person’s ESC rights as well as to protect everyone within their jurisdiction from violations of such rights by third parties, including other states, transnational corporations, domestic business entities, private individuals and groups.

Furthermore, pursuant to the Directive Principles of State Policy contained in Article 27 (c) of the Constitution the “State must ensure the realisation by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities.�

Economic, social and cultural rights have increasingly been the subject of judicial and quasi-judicial review at the international, regional and national levels. While some commentators and governments claimed for some time that housing rights were not justiciable, as long ago as 1948, the Universal Declaration of Human Rights recognised that there was a right to a remedy for violations of all human rights. Article 8 of the Declaration states: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Therefore, access to justice should be viewed as an integral component of economic, social and cultural rights. The provision of both individual and collective remedies is also critical for redressing systematic violations of housing rights.

What is justiciability?

Justiciability normally means the ability of courts to apply a certain law to a certain situation. It also means the right of a person (or entity) to request that the court make such a ruling. This latter right is often called the right to have standing before the court or other similar body.

Traditional discussions over ESC rights often claimed that these rights were not inherently justiciable.

This was firstly argued on the basis of judicial capacity, which claimed that ESC rights were too complex (or too vague) for adjudication. The second argument, the legitimacy argument, was more principled, as well as fundamental to many constitutions. It claimed that courts could not adjudicate on ESC rights since they would be making social policy, which is the right of the government (in the form of the executive and parliament).

However, theory and practice have shown these two assumptions to be wrong. Indeed, law, jurisprudence and practice have shown that ESC rights do have a precise legal content and courts have demonstrated the capacity to make reasonable rulings on all aspects of such rights. For instance, the South African Constitutional Court stated in 2000: Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only…. and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis.

This Court, in the ensuing four years, went on to give a variety of judgments on housing and health rights, including access to medications, access to emergency housing assistance and protection from forced evictions (see Box 1). Case law which, also shows that courts are often very sensitive to the policy-making prerogatives of the Parliament and executive branches of government, but that they will impose restrictions on that policy and legislative-making power to ensure that laws, policies and practices comply with ESC rights obligations.

For a detailed review of these arguments see, in English, Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Gurantees?’ 141 U. Pa. L. Rev. 1 at 66. In Spanish, see Gerardo Pisarello, ‘Los derechos sociales en el constitucionalismo moderno: por una articulación compleja de la relaciones entre política y derecho’ [Social rights in modern constitutionalism: for a complex atriculation of the relations between politics and law], in M. Carbonell, J.A. Cruz Parcero and R. Vazquez (ed.), Derechos sociales y derechos de los minorías, (Mexico: Porrua-UNAM, 2001), pp.113-138.

Government of the Republic of South Africa v. Grootboom and Others 2000 (11) BCLR 1169 (CC).

Indeed, it has been increasingly recognised that courts and international mechanisms are able to rule on all aspects of ESC rights, although the nature and scope of the judgment will vary according to the circumstances. Professor Matthew Craven sums up what he believes as the core issue, or core obstacle, to justiciability as follows: Justiciability depends not upon the generality of the norm concerned, but rather on the authority of the body making the decision.

So, while courts are able to adjudicate ESC rights, they may be unwilling to do so for reasons that contravene human rights principles, standards and norms. When this occurs, courts should be challenged by lawyers, other advocates and civil society.

Box 1 The fight for remedies: the Grootboom Case In early 1999, the ‘Grootboom community,’ members of a shantytown just outside Cape Town, boarded buses each day for the High Court. Forcibly evicted from nearby private property, they lived on the perimeter of a sports field, with no water, no sanitation, and no security of tenure.

“Our structures were simply bulldozed, and there was no opportunity for us to salvage our personal belongings,” said one resident.

The High Court was told that in the South African Constitution, the right to housing entitled the community to something better. While an interim settlement provided for water, sanitation and some aluminium sheets for shelter, the case wound its way up to the Constitutional Court. This Court faulted the Government for failing to include provisions for emergency relief in its housing programme, but stopped short of declaring an immediate right to shelter.

The judgement was hailed a triumph. The carefully reasoned decision recognised that socioeconomic rights carried legal duties. Government policy was closely scrutinised, and subsequent cases have built on the Grootboom precedent, some of the cases have been highly effective.

But two years later, the mood was more sombre. The leader of the community told a visiting COHRE team, “We won the championship, but where’s the trophy?” Land would be made available only in 2005, and the judgement made no provision for further review of housing policy. The Ministry of Housing has now dedicated a portion of its budget to emergency housing assistance.

See for example, Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Gurantees?’ 141 U. Pa. L. Rev. 1 and Malcolm Langford ‘Judging Resource Availability’ in Malcolm Langford and Bret Thiele (eds.) Current Issues in the Litigation of Economic, Social and Cultural Rights (University of NSW Press, 2005).

Matthew Craven, ‘The Domestic Application of the International Covenant on Economic, Social and Cultural Rights’, Netherlands International Law Review, Vol. XL, 1993 at p. 389.

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003) at p.9. Available at www.cohre.org/litigation.

What are some remedies?

National courts can offer many remedies, such as: •

Declaring a violation and ensuring that a given result is achieved

•

A time-delayed provisional remedy

•

A structured, participatory process to recommend final remedies

•

Ordering the creation of a regulatory regime in which measures are actually specified as being necessary to solve a defined and concrete problem

•

Ordering a government committee of inquiry to report on the situation prior to litigation

•

Preventative damages, including injunctive relief

•

Reparation in kind

•

Supervisory jurisdiction

•

Orders to enact legislation

International courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, are able to impose wide-ranging remedies that are legally binding on the defending state party. However, these courts seem to have limited jurisdiction on ESC rights, partly due to selfimposed conservative interpretations of their respective mandates. Given their obvious territorial limitations, these courts do not have jurisdiction over Sri Lanka but their case law can be useful in any context.

International committees and commissions which are empowered to hear individual and collective complaints on ESC rights – for example the African Commission on Human and Peoples’ Rights, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination – usually make non-binding decisions or recommendations. Nevertheless, these decisions carry authoritative weight.

Do governments have to provide remedies?

Pacta sunt servanda is a legal principle, which means that states are under a legal obligation to perform their treaty obligations in good faith. This means that states must adjust their domestic legal structure to comply with the international standards – for example the International Covenant on Economic, Social and Cultural Rights – to which they have committed themselves.

As a state party to this Covenant, if Sri Lanka does not provide remedies for violations of ESC rights, the UN Committee on ESC Rights has said it carries the burden of justifying this position.

Article 26 of the Vienna Convention on the Law of Treaties (1969) states that “[e]very treaty in force is binding upon the parties to it and must be performed in good faith.” Further, States cannot justify their failure to implement international obligations on the basis of a domestic law, which is inconsistent with the international norm. The Vienna Convention on the Law of Treaties (1969) says in Article 27: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treat.” Therefore, the obligation to perform treaties in good faith applies, as far as international law is concerned, irrespective of any conflicting domestic law.

“[A] State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not “appropriate means” within the terms of article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.” See Committee On Economic, Social And Cultural Rights, General Comment No. 9 (1998) The domestic application of the Covenant, at para. 3.

Applying the Covenant in national courts General Comment 9, of the UN Committee on Economic, Social and Cultural Rights offers important guidance on the application of the Covenant in national courts.

•

Remedies do not have to be judicial in nature (e.g., administrative remedies can be effective) but states that judicial remedies are necessary whenever a Covenant right cannot be made fully effective without some role for the judiciary.

•

There is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions

•

Courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of ESC rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that human rights are indivisible and interdependent.

•

When Governments are involved in court proceedings, they should promote interpretations of domestic laws, which can give effect to their Covenant obligations. It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms, which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.

It is generally accepted that domestic law should be interpreted as far as possible in accordance with a state’s international legal obligations. Thus, when a domestic decision-maker is faced with a choice between an interpretation of domestic laws that would place the state in breach of the Covenant and one that would enable the state to comply with the Covenant, international law requires the choice of the latter.

Legal enforcement of ESC: some examples of cases There exists a substantial jurisprudence on the legal enforcement of ESC rights. The right to adequate housing provides but one example and virtually every aspect and element of the right to housing set out in General Comments No. 4 and No.7 have been adjudicated. Following are a few examples under the headings of non-discrimination and equality as well as the obligations to respect, protect and fulfil.

Non-Discrimination and Right to Equality Many housing rights violations can be traced to conduct that discriminates on prohibited grounds, for example race or sex. Discrimination might be direct; it might be expressly stated in law for example. In ERRC v. Greece, the claimants objected to a law that was dedicated to the removal of a minority group, the Roma. Discrimination might be indirect and states are then obliged to eliminate practices and policies which have a discriminatory effect or impact.10 Indirect discrimination might include, for example, a requirement that rent for prospective tenants be no more than a third of income, as the case of Kearney v.

Bramlea in Box 2 illustrates. Lastly, the duty to take positive steps towards ensuring substantive equality – including the policy of affirmative action – has been made justiciable in a number of cases.11

Box 2 Right to Housing Equality Cases A Canadian human rights commission in Kearney v. Bramlea examined whether the use of a 30 per cent rent-to-income ratio to screen prospective tenants had a discriminatory impact on groups with lower incomes: namely women, single people, racial minorities and those receiving public assistance.12 The applicants firstly demonstrated that the rule could not be objectively justified: there was no evidence to show that poorer tenants were more likely to default if they paid higher rents, even though such rents were “unaffordable”. The application of the rule in the tenancy market was found to indirectly discriminate on the basis of sex, marital status, race and income.

In the US case of Mt Laurel, zoning regulations and building codes that prevented the development of low and middle income housing were also held to violate equal protection laws since they had a disparate impact on African Americans, women and children.13

See European Committee on Social Rights, ERRC v. Greece, Complaint No. 15 (Decision expected in April 2005).

See for example, Article 1, Convention on the Elimination of all Forms of Racial Discrimination

10

In Jaimes v. Toledo Metropolitan Housing Authority 758 F.2d 1086 (1985), low-income minorities in a class action suit successfully obtained orders providing that the public housing agency was responsible to redress its past racially discriminatory practices. The agency had decreased access to public housing through segregation policies. The agency was ordered to prepare an affirmative action plan.

11

Kearney & Ors v. Bramlea Ltd & Ors, Board of Inquiry, Ontario Human Rights Code, Canada.

12

Southern Burlington County NAACP v. Township of Mount Laural (Mt. Laural I), 67 N.J. 151(N.J. 1975).

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Obligation to Respect The obligation to respect requires Sri Lanka to refrain from interfering with people’s existing access to housing. One clear violation is forced evictions. Box 3 sets out one of many cases dealing with this legal obligation.

Box 3 Halting Forced Evictions in Bangladesh ASK (Ain o Salish Kendra) v. Government of Bangladesh (Supreme Court, 1999)14 In Dhaka city, a large number of inhabitants of bastis, or informal settlements, were evicted without notice. Their homes were demolished with bulldozers. Two inhabitants and three NGOs lodged a complaint.

The Supreme Court recognised that such inhabitants are often the victims of misfortune and natural calamities, migrants who earlier fled from rural areas where employment opportunities, food or shelter were scarce. Slum dwellers also contributed significantly to the national economy.

Evictions had a severe impact on the right to livelihood. Noting Olga Tellis v. Bombay Municipality Corporation (Supreme Court of India), the Court found that the right to livelihood could be derived from constitutional fundamental rights. These included the right to life, respect for dignity and equal protection of the law.

The state must also direct its policy towards ensuring the provision of the basic necessities of life, including shelter (see Constitution, Article.15): “Thus, our country is pledge-bound, within its economic capacity and in an attempt for development, to make an effective provision for the right to life, livelihood etc.” While such state policies were not judicially enforceable (Article. 15 is only a directive principle), the right to life implied the right not to be deprived of a livelihood and shelter.

The Government effort to remove alleged ‘criminals’ through evictions meant that “innocent slum dwellers (had) become victims of repression/oppression not only by mastans and terrorists (sic), but sometimes through government agencies.”

The Court ordered that: −

The Government should develop master guidelines, or pilot projects, for the resettlement of the slum dwellers;

−

The plan should allow evictions to occur in phases and according to a person’s ability to find alternative accommodation;

−

Reasonable time is to be given before the eviction, and

−

For security reasons, slums along railway lines and roadsides should be cleared but inhabitants should be resettled elsewhere according to the guidelines.

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003).

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Obligation to Protect The obligation to protect means ensuring individuals and communities do not suffer from violations of housing rights by non-state actors or other states, including inter-governmental organisations such as the World Bank and the International Monetary Fund. Violations must be investigated, perpetrators prosecuted and legal and other remedies must be provided to victims.15 Consequently, Sri Lanka is obligated to, for example, ensure that corporations do not forcibly evict residents; that private landlords ensure the habitability of housing, and that structural adjustment policies created by intergovernmental organisations do not violate housing rights, but rather contribute to their fulfilment.

Box 4 Restraining Multinationals SERAC and CESR v. Nigeria16 Oil reserves in Ogoniland were being exploited by a consortium consisting of a subsidiary of the multinational Shell Oil Company and the state-owned Nigerian National Petroleum Company. After the murder of Ogoni activist Ken Saro-Wiwa, the activities surrounding oil production attracted international attention.

In 1996, two NGOs – the Nigerian-based Social and Economic Rights Action Centre (SERAC) and the US-based Center for Economic and Social Rights (CESR) – filed a petition with the African Commission on Human and Peoples’ Rights alleging that: •

the oil consortium disposed of toxic waste in the environment, contaminating water, air, soil and crops;

•

security forces ( police, army, navy and air force, as well as unidentified gunmen) destroyed villages, crops and animals;

•

security forces attacked villagers and executed Ogoni leaders;

•

pollution had led to skin infections, gastrointestinal and respiratory ailments and increased risk of cancers, and

•

malnutrition and starvation were widespread.

Drawing on international law, the African Commission pointed out that all human rights entail four general obligations: to respect, protect, promote and fulfil. The right to health (Article 16) and the right to a clean environment (Article 24) had been contravened. While the Government had the right to produce oil, it had failed to prevent pollution and ecological degradation. It should have: i) ordered or permitted independent scientific studies prior to major industrial developments; ii) monitored such activities; and The African Commission in SERAC v. Nigeria offered the following definition: “At a secondary level, the State is obliged to protect rightholders against other subjects by legislation and provision of effective remedies. This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms:” Decision 155/96.

15

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003).

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iii) provided information to affected communities and allowed them to participate in decisions.

The failure to monitor oil activities and involve local communities in decisions violated the state’s duty to protect its residents from exploitation (including foreign economic exploitation) and despoliation of their wealth and natural resources (Article 21). It was suggested that the failure to provide material benefits for the local population from oil exploitation was also a violation.

The right to housing and protection from forced eviction was violated by the destruction of housing and the harassment of residents who had returned to rebuild their homes. The right is derived from express rights to property, health and family. Furthermore, the destruction and contamination of crops by Government and non-state actors violated the duty to respect and protect the implied right to food.

The Commission ordered that the Government: •

cease attacks on Ogoni people,

•

investigate and prosecute those responsible;

•

provide compensation to victims;

•

prepare environmental and social impact assessments in future; and

•

provide information on health and environment risks.

Obligation to Fulfill Sri Lanka has an obligation to progressively realise the right to adequate housing by taking steps towards that goal. The South African Constitutional Court has held that the duty to take measures means:17 The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State’s obligations. The program must also be reasonably implemented.

In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the program. The program must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A program that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the program will require continuous review.

Government of the Republic of South Africa v. Grootboom and Others 2000 (11) BCLR 1169 (CC) at paras 42 and 43.

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Box 5 An Example from the Right to Health Viceconte V. Ministry of Health and Social Welfare18 The plaintiff, Mariela Viceconte, and the National Ombudsmen requested the court to order that the Argentine Government take protective measures against haemorrhagic fever, to produce the Candid-1 vaccine and to rehabilitate those environments where the disease was breeding.

The Federal Court of Appeals found that any individual could bring complaints concerning the right to health, due to the Constitution’s incorporation of international treaties referring to the right.19 According to the Court, the Government was legally obliged to intervene to provide health care when individuals and the private sector could not protect their health. In the case of Argentine haemorrhagic fever, this duty entailed the production of the Candid-1 vaccine. The Court cited evidence from the Government that the a) fever was epidemic and endemic; b) Candid-1 vaccine was the most effective protection against the disease; c) stock of Candid-1 was insufficient; d) disease was exclusive to Argentina, thereby making Candid-1 production an unattractive commercial proposition, and that e) both the World Health Organisation and Argentina’s Minister of Health had previously endorsed Candid-1.

The Court found that the Government had not punctually fulfilled its obligations to produce the vaccine. It made the Ministers of Health and Economy personally liable for its production within a specified time schedule.

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003) at Ch. 5.

18

The American Declaration on the Rights and Duties of Man (Article XI); Universal Declaration of Human Rights (Article 25); International Covenant on Economic, Social and Cultural Rights (Article 12) including the provision on the duty to prevent, control and treat epidemic and endemic disease (Article 12(2)(c)).

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Use of existing fundamental rights to overcome barriers The Indian Constitution does not contain the right to livelihood nor the right to adequate housing. Yet, the Indian Supreme Court has interpreted Article 21 of the Constitution, which guarantees the right to life, to include the right to livelihood.

In Olga Tellis v. Bombay Municipal Corporation20, the Indian Supreme Court stated: The right to life includes the right to livelihood. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away, as for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life.

An equally important facet of that right is the right to livelihood, because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.

In Sri Lanka, even the right to life is not expressly recognised in its Constitution. Nevertheless, the Sri Lankan judiciary has been innovative in reading into Article 13 aspects of the right to life.

In Sriyani Silva v. Iddamalgoda,21 which involved a fundamental rights application filed by a widow alleging that her husband had been tortured, the Supreme Court held that although the right to life is not expressly recognised as a fundamental right, it is recognised in some provisions of the fundamental rights chapter. The Court stated thus: Although the right to life is not expressly recognised as a fundamental right, that right is impliedly recognised in some of the provisions of Chapter III of the Constitution.

In particular, Article 13(4) provides that no person shall be punished with death or imprisonment except by order of a competent court. That is to say, a person has a right not to be put to death because of wrongdoing on his part, except upon a court order. (There are other exceptions as well, such as the exercise of the right of private defence.) Expressed positively, that provision means that a person has a right to live, unless a court orders otherwise. Thus Article 13(4), by necessary implication, recognises that a person has a right to life - at least in the sense of mere existence, as distinct AIR 1986 SC 180

20

[2003] 2 Sri LR 63

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from the quality of life - which he can be deprived of only under a court order. If, therefore, without his consent or against his will, a person is put to death, unlawfully and otherwise than under a court order, clearly his right under Article 13(4) has been infringed.

[We] hold that Article 11 (read with Article 13(4)), recognises a right not to deprive of life - whether by way of punishment or otherwise - and, by necessary implication, a right to life. That right must be interpreted broadly, and the jurisdiction conferred by the Constitution on this Court for the sole purpose of protecting fundamental rights against executive action must be deemed to have conferred all that is reasonably necessary for this Court to protect those rights effectively (cf. Article 118(b)).

There is yet another reason which compels that conclusion. Article 14.1 of the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment provides: “Each state party shall ensure in its legal system that the vic­tim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.”

The interpretation that the right to compensation accrues to or devolves on the deceased’s lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred.

The Supreme Court has used existing fundamental rights to give effect to several socioeconomic rights. In that, the Court has referred to many international human rights instruments and has attempted to streamline local human rights standards with Sri Lanka’s international obligations.

Bulankulame v. Ministry of Interior Development 22 involved the government authorising a foreign company to mine the Eppawala phosphate deposit. The arguments of the Petitioners were that their fundamental rights to engage in their lawful occupation (Article 14 (1) (g)) as farmers and their freedom to choose their own residence (Article 14 (1) (h)) would be violated.

They also argued that this project would have adverse effects on the environment. In holding that the fundamental rights of the Petitioners have been violated, the Supreme Court referred to the Stockholm Declaration and the Rio de Janeiro Declaration and stated thus: Admittedly, the principles set out in the [Declarations] are not legally binding in the way in which an Act of our Parliament would be. It may be merely a ‘soft law’.

Nevertheless as a member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my opinion, be binding if they had been a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions.

[2000] 1 Sri LR 243

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In Gerald Perera v. Suraweera 23 , the Petitioner alleged that his fundamental rights had been violated as a result of brutal attacks by the police, and claimed reimbursement of medical expenses incurred at a government hospital as well as a private hospital. The Respondents argued that the Petitioner could have sought treatment at a government hospital only and that the exorbitant cost of treatment at a private hospital should not be counted in granting compensation. The Supreme Court referred to Article 12 of the International Covenant on Economic, Social and Cultural Rights which grants everyone the right to enjoy the highest attainable standard of physical and mental health and ordered that the Petitioner be paid compensation covering expenditure incurred for treatment both at the government hospital as well as the private hospital.

SC 328/2002. S.C. Minutes 04.04.2003

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Use of the Directive Principles of State Policy The Directive Principles of State Policy are not expressly justiciable in a court of law and are intended to guide the legislature and the executive. Nonetheless, the Sri Lankan Supreme Court has used the Directive Principles to interpret other, justiciable, provisions of the Constitution.

In R. Haputhantrige v. B.L.Karunawathie and others24 the Court used Article 12 (1) of the Constitution to strike down the Circular relating to admissions to Grade 1 of Schools. The Court made use of the Directive Principle contained in Article 27 (2) (h) of the Constitution25 to conclude that both from the perspective of the application of the equal protection of the law guaranteed by Article 12 (1) and from the perspective of national policy, the objective of any binding process of regulation applicable to admission of students to schools should be that it assures to all students equal access to education.

The Court held that the phrase ‘National Policy’ should be interpreted together with the relevant provisions in Chapter VI of the Constitution which contains Directive Principles of State Policy.

The Court was of the view that the limitation in Article 29 which states that the provisions of Chapter VI are not justiciable would not be a bar against the use of the Directive Principles to interpret other provisions of the Constitution. The Court stated that: Article 27 of Chapter VI lays down the ‘Directive Principles of State Policy’ contained therein shall guide ‘Parliament, the President and the Cabinet of Ministers in the enactment of ‘laws and the governance of Sri Lanka for the establishment of a just and free society’. Hence the restriction added at the end in Article 29 should not detract from the noble aspirations and objectives contained in the Directive Principles of State Policy, lest they become as illusive as a mirage in the desert.

In Bulankulame v. Ministry of Interior Development 26, the Supreme Court also referred to the Directive Principles of State Policy set out in Article 27 (14) which provides that the state shall protect, preserve and improve the environment for the benefit of the community.

SC (FR) 10/07 S.C. Minutes 29.03.2007

24

This provides that the State is pledged to establish in Sri Lanka a democratic, socialist society, the objectives of which include the complete eradication of illiteracy and the assurance to all persons of the right to universal and equal access to education at all levels.

25

[2000] 1 Sri LR 243

26

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Examples from India Strategies can be crafted so as to use the directive principles to legally enforce housing rights. In Sriyani Silva v. Iddamalgoda, the Supreme Court of Sri Lanka found an implied right to life in the Constitution.

In India, human rights lawyers have successfully used directive principles to inform the right to life in the Indian Constitution in such a way as to protect housing rights. The following cases from the Indian Supreme Court provide good examples that may be replicated in Sri Lanka:

Maneka Gandi v. Union of India (1978, 1SCC 248) (a seminal case in which the Indian Supreme Court stated that the right to life provisions in the Constitution must be taken to mean ‘the right to live with dignity’).

Francis Coralie v. Union Territory of Delhi (AIR 1981, SC 746) (in which, building upon Maneka Gandi, the Indian Supreme Court stated that the right to life includes the right to live with human dignity and all that goes along with it, namely the bear necessities of life such as adequate nutrition, clothing, and shelter).

Olga Tellis v. Bombay Municipal Corporation (1985, 3 SCC 545) (in which the Indian Supreme Court held that forced eviction would result in a deprivation of the ability to earn a livelihood. The Court further noted that the ability to earn a livelihood was essential to life and thus the forced evictions would result in a violation of the right to life as embodied in Article 21 of the Indian Constitution).

Ram Prasad v. Chairman, Bombay Port Trust (AIR 89, SC 1306) (in which the Indian Supreme Court directed the relevant public authorities not to evict 50 slum dweller families unless alternative sites were provided for them).

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Conclusion The protection of Economic, Social and Cultural (ESC) rights is essential to the development of a peaceful, prosperous and equitable Sri Lanka. The ideas and strategies outlined in this booklet provide a beginning for helping to protect the people of Sri Lanka from housing rights violations. However, there are many more resources available. COHRE produces a wide range of global publications that can be accessed though our website at: www.cohre.org. COHRE Sri Lanka’s office, located at 106 1/1 Horton Place, Colombo 7, also houses a comprehensive Resource Centre including domestic and international legal publications on housing, land and property rights. The Resource Centre is open to the public Monday-Friday 10:00 am - 4:00 pm.

It is COHRE’s sincere hope that all those concerned with protecting housing, land and property rights in Sri Lanka will find this publication useful, and will avail themselves to the resources and expertise that COHRE has available.

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Housing Rights for Everyone, Everywhere...

Centre on Housing Rights and Evictions COHRE – Sri Lanka 106 1/1 Horton Place Colombo 7 Sri Lanka Tel:+94.11.2693143 Fax: +94.11.2693143 Email:srilanka@cohre.org www.cohre.org/srilanka