THE IDIOCIES IN THE SRI LANKA CONSTITUTION, 3:  DIRECTIVE PRINCIPLES OF STATE POLICY
Posted on November 3rd, 2016

DHARSHAN WEERASEKERA

In this installment, I focus on Chapter VI of the constitution, Directive Principles of State Policy.  I shall briefly explain what they are, and what in my view is wrong with them legally as well as practically.

WHAT ARE DIRECTIVE PRINCIPLES?

Directive principles are principles intended to guide the State when making policy.  Here are some examples:

‘[Article]   27(2):   The State is pledged to establish in Sri Lanka a democratic socialist society, the objectives of which include:

  • The full realization of the fundamental rights and freedoms of all persons;
  • The promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life;
  • The realization by all citizens of 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, etc. etc.

27(7):   The State shall eliminate economic and social privilege and disparity, and the exploitation of man by man or by the State.

27(8):   The State shall ensure that the operation of the economic system does not result in a concentration of wealth and the means of production to the common detriment.

27(9):   The State shall ensure social security and welfare.’

In short, directive principles are utopian ideals towards which the State is expected to strive, in order to create a perfectly just and equitable society.  The issue, as with all utopian ideals, is whether such ideas can ever be achieved in practice, and as far as Sri Lanka is concerned, how far the State has advanced towards these goals in the 40 years that the ’78 Constitution has been in operation. (I shall turn to this issue in a moment after discussing the legal problems with directive principles.)

THE LEGAL PROBLEM

There are two problems:  first directive principles are not enforceable, which makes them constitutionally redundant; second, the clash between directive principles and fundamental rights if an attempt is made to make directive principles enforceable.  I shall take each in turn.

REDUNDANCY

Article 29 of the constitution says:

‘The provisions of this Chapter [Chapter VI] do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal.  No question of inconsistency with such provisions shall be raised in any court or tribunal.’

Generally speaking, a law is of no use if it cannot be enforced, i.e. if there is no penalty or remedy if the law in question is violated.  Since directive principles are not enforceable, there is no penalty if the state does not follow them when generating policy, which means that the public has no assurance that the principles will be followed at all.  Therefore, directive principles are redundant.  Redundant clauses have no place—or at any rate ought to have no place—in a constitution.

THE CLASH BETWEEN DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

Chapter VI of the Sri Lanka constitution replicates the chapter on directive principles in the Indian Constitution.  Under the Indian Constitution also directive principles are not enforceable.  However, in the 1950’s and 60’s a number of Indian States passed laws to make directive principles enforceable, and the Indian Parliament passed a number of amendments to the Constitution to the same effect as well.

As a result, during this period there were a number of legal challenges to the said laws.  The main issue in all these cases was the clash between directive principles and fundamental rights.  Fundamental Rights are by definition individual rights.  Directive principles on the other hand are designed to improve the lot of various groups of people.

What happened in practice when directive principles were made enforceable was that the State in pursuing them and trying to improve the lot of particular groups sometimes encroached on the rights of individuals, who filed suit.  The courts had to decide whether fundamental rights trumped directive principles, or vice verse, in the event of a clash.

The seminal case in this series is recognized as Keshavananda Bharathi v. State of Kerala, sometimes also called, ‘The Case that Saved Indian Democracy.’  In that case, the court ruled that fundamental rights must always prevail over directive principles in the event of a clash, and that this could not be changed even by an amendment to the constitution.

The reasoning of the court was that, giving the State the power to enforce directive principles risked creating a situation where the State, under the pretext of improving the lot of particular groups, would violate the rights of individuals, and that this could not be allowed.  The court said inter alia:

‘Every encroachment on freedoms sets a pattern for further encroachments.  Our Constitutional plan is to eradicate poverty without destruction of individual freedoms.’[1]

I have discussed Keshavananda in a number of articles so will not go into it here.  I only draw the attention of the reader to an assessment of the relative value of fundamental rights and directive principles in the Indian Constitution, by H. M. Seervai, former Advocate-General of Maharasthra, and author of Constitutional Law of India, widely recognized as one of the finest commentaries on the Indian Constitution.  The assessment stems from a consideration of the cases that followed Keshavananda.  He says:

‘The acute conflict of judicial opinion in Minnerva, Waman Rao and Sanjeev Coke led me to think afresh the nature of fundamental rights and directive principles and their interrelation, especially in view of Sup. Ct. judgments which had adopted the generally accepted view that fundamental rights are mainly individual rights whereas directive principles serve the social good and provide for the welfare State.  An eminent scientist, a most distinguished writer, has said wittily that the essence of science is:  ‘Ask an impertinent question, and you are on the way to a pertinent answer.’  Since law is both a science and an art, I asked what may appear to be two impertinent questions.  First, what would have happened if directive principles had not been enacted in our Constitution?  Secondly, what would have happened if justiciable fundamental rights had not been enacted in our Constitution?  My inquiry and analysis led me to the following answers:  If directive principles had not been enacted, nothing would have happened.  If fundamental rights had not been enacted, the answer is not in doubt, for the Emergency supplied the answer:  the result would have been disastrous; our democratic country could have been converted into a Police State, as happened during the Emergency, when the right to enforce fundamental rights was suspended.’[2]

To turn to Sri Lanka, the lesson to be drawn from the above is this.  Since the Sri Lankan Constitution has a chapter on fundamental rights, if an attempt is made to make directive principles enforceable, it will lead to the same problem that arose in India, i.e. there will be an inevitable clash with fundamental rights and courts will have to decide if directive principles take precedence over fundamental rights, or vice versa.

It is reasonable to suppose that, on the said issue, the Sri Lankan courts will rule in a manner similar to the Indian courts, for very much the same reasons as the latter.  But, unlike in India, in Sri Lanka post-enactment review of legislation is not possible, because of Article 80(3) of the constitution.  (I have discussed Article 80(3) in a previous essay.[3])  Fortunately, the State has not tried to make directive principles enforceable to date.

However, if directive principles are included in the new constitution, and an attempt is made to make some of them enforceable (for instance there is talk of making ‘economic rights’ enforceable) it could be dangerous.  The State, under the pretext of improving the economic lot of some group or other, can trample on the individual freedoms of citizens, and those citizens will not be able to challenge the said actions in the courts.       

THE PRACTICAL PROBLEM

A critic might say something like this:  ‘Technically, it is true that directive principles are redundant.  Nevertheless, they can do a great deal of good by shaping the attitudes of policymakers, which in turn will shape the policies themselves.’  I shall leave it to the reader to think of specific examples where it can be demonstrated that directive principles shaped or informed the decisions of policymakers.

In my view, a perusal of various governmental policies over the years reveals that the main factor that has influenced our politicians to decide which policies to pursue has been expediency, especially economic expediency, which is to say, where possible funds are available and how to access them, rather than abstract principles of advancing justice or equity.   I shall cite two recent examples:  the IMF loan obtained by the government in July 2016, and the ongoing negotiations over regaining the GSP-Plus facility.

To digress a moment, recall that one of the main directive principles is:  ‘The promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life.’  The question is whether concerns of justice had anything to do with obtaining the IMF loan or of regaining the GSP-facility.

IMF LOAN  

In June 2016, the IMP approved an extended loan of $1.5 billion for Sri Lanka.  Many observers have pointed out that the said amount is too small for Sri Lanka’s needs at the moment, and in any event, that the loan comes with conditions that have the potential to turn this country into another Greece.  The following is an excerpt from an article in The Island that discusses this issue:

‘Following the great global depression in 2008, it became known that Greece had been overstating the extent of its deficit financing for many years.  This disclosure led to Greece being shut out from global financial markets, and by 2010 was unable to rollover its debt by issuing new sovereign bonds, as Sri Lanka is doing now, and was on the verge of bankruptcy.’

‘The IMF and European financial authorities in two bail-outs loaned Greece a total of about USD 350 billion, which as in the case of the IMF operation in Sri Lanka came with the usual harsh conditionality, which is the standard IMF recipe—deep budget cuts, severe austerity in expenditure and major tax increases—amounting to an overhaul of its entire economy.  For example, the tax on heating oil was increased by 450% worsening the public’s trauma.  As is the expectation in Sri Lanka, the IMF/EEC bail-outs were expected to stabilize the Greek economy and its finances, but the overall effect of the conditionality was to contract the economy by 25% and sharply raise unemployment to a similar level.’[4]

I am not an economist, so am unable to speak with authority on the wisdom of Sri Lanka obtaining the loan in question.  But, it seems to me that there is merit in what the above author is saying.  It is reasonable to suppose that, if justice—justice for the People—is the overriding concern in generating policy, the persons who decided to obtain the loan had an obligation to study its long-term effects to the country, and this ought to have included commissioning a report on the related issues by independent experts.

In my view, they also had an obligation to make any such report available to the public, because members of the public have a right to inform themselves of important matters that affect the ‘national life,’ and they cannot do this if the relevant information is not given to them.  To my knowledge, no such report exists, which I think is indicative of the weight given in practice to the ideals behind the directive principles.  

GSP-PLUS

In 2010, Sri Lanka lost the GSP-Plus facility, which had been a major source of foreign revenue to the country.  After the change of government in 2015, the present Government has been campaigning to regain the facility.  The EU has indicated it might relent, but with stringent conditions.  It is reported that the government has been made to agree to a list of 58 conditions that go far beyond matters of trade.  The following is an excerpt from an article in Lanka Brief that discusses this matter:

‘In its haste to regain the GSP-Plus facility, the Ministry of Foreign Affairs has agreed with the European Union (EU) to implement a sprawling list of 58 conditions linking human rights, national security and other domestic concerns with trade, a document obtained by the Sunday Times shows.’

‘Among the 58 conditions imposed are to revoke the Prevention of Terrorism Act, to expedite cases of remaining detainees, to introduce a new Human Rights Action Plan, review status of the Tamil Diaspora organizations and individuals in the terrorist list, to devolve power under the new Constitution, return all private lands to owners in the North, adopt a policy of National Reconciliation and on National Resettlement, finalize the resettlement of all displaced persons, and to ratify the Convention on Enforced Disappearances with accompanying legislation as well as issue certificates of absence.  The EU insists that the conditions be met before Sri Lanka can even consider applying for the GSP plus.’[5]

To fast-forward to October 2016, Prime Minister Mr. Ranil Wickremesinghe visited Brussels for the latest round of talks on GSP-Plus, and returned with news that the Europeans were prepared to re-issue the facility.  A statement in the Government’s official news portal www.news.lk says:

‘Prime Minister Ranil Wickremesinghe said that Sri Lanka would be able to regain the GSP concession to the country between March and May next year, if the current economic and political reforms implemented after President Maithripala Siririsena assumed office are continued without any change.’[6]

Reading between the lines, it is easy enough to see that if indeed the Government has managed to regain GSP-Plus, it is because it has agreed to all or most of the 58 conditions mentioned earlier.  It should be noted further that, some of the conditions, such as the delisting of Diaspora organizations, ratifying convention on enforced disappearances, etc. have been met, and others, including most importantly constitutional reforms which will involve devolution of power to the Provinces, are being fast-tracked.

Thus, again one sees that policy—in this case policy regarding matters that have nothing to do with trade—is driven by the need for cash, and the resulting conditions imposed by foreigners:  at any rate, a very strong suspicion emerges that the driving force behind these policies is the need for cash, rather than concerns of justice of the People.

CONCLUSION

The legal problem with directive principles is that, at best they are redundant and at worst a potential tool for oppressing the People.  The practical problem with them is that there is little or no evidence that they shape the attitudes of policymakers; on the contrary, the evidence is that expediency, in particular the need to access funds wherever possible, is the driving force behind policy decisions.  In short, directive principles are useless.  Will they be repeated in the new constitution?  I bet, ‘Yes.’

Dharshan Weerasekera is an Attorney-at-Law.  His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka, will be in bookstores shortly.

[1] Keshavananda Bharathi v. State of Kerala, 24 April 1971, www.indiankanoon.org,  paragraph 705

[2] H. M. Seervai, Constitutional Law of India, 4th Edition, Vol. 3, Sweet and Maxwell, London, 1996, pg. 2887

[3]‘ The Idiocies in th Sri lanka Constitution, 1:  Articles 4(c) and 80(3)’, 2 October 2016, www.lankaweb.com

[4] C. R. de Silva, Sri Lanka:  Avoiding ‘the road’ to Greece!”  The Island, 13th June 2016, www.theisland..lk

[5] Sri Lanka:  EU proposes 58 Human Rights Conditions to resume GSP Plus,” Sri Lanka Brief, 8-05-2016, www.srilankabrief.org

[6] ‘GSP concession likely between March and May 2017 – PM,’ 21 October 2016, www.news.lk

7 Responses to “THE IDIOCIES IN THE SRI LANKA CONSTITUTION, 3:  DIRECTIVE PRINCIPLES OF STATE POLICY”

  1. S.Gonsal Says:

    Foreign Direct Investment since 2005 are as follows.
    (US$ millions)
    2005 – 272
    2006 – 480
    2007 – 603
    2008 – 752
    2009 – 404 ( reason of drop being GFC mainly)
    2010 – 478
    2011 – 956
    2012 – 941
    2013 – 931
    2014 – 894
    2014 – 4th quater 860 ( Gradual drop started since 2011)
    2015 – 681 ( sudden drop – should be due to UNP governement)

  2. Dilrook Says:

    That is correct Gonsal. The 2009 drop was due to the GFC, not war. Yes; there is a steady drop in FDIs since 2011. Wrong priorities (casinos) since 2013 also contributed.

    The sharp drop in 2015 is due to policy inconsistency between Sirisena and UNP and disrupting Chinese projects.

  3. S.Gonsal Says:

    If MR continue is merry ways we should expect 760 in 2015, but we have 680 , proving investors were not convinced by BORU YAHAPALANAYA. Only ACTUAL YAJHAPALANAYA can improve this.

  4. S.Gonsal Says:

    Sorry, not only “not convinced ” also lost further confidence !

  5. Christie Says:

    Dear Attorney: The directive principle in a Colony is what the Empire directs.

    We are a colony of the Indian Empire controlled by the Indian colonial parasites.

  6. plumblossom Says:

    We do not need GSP plus at the expense of Sri Lanka’s unitary state, integrity. security, independence and freedom. We were fine without the GSP plus for over 2600 years. We will be fine without the GSP plus for the next 2600 years too. We do not need more decentralisation of powers to the provincial councils at all either. More than enough decentralisation of powers have been given to the provincial councils already.

  7. Fran Diaz Says:

    Sri Lanka can do WITHOUT Trade Deals that throttle the Nation and submit to foreign rule.

    Having INDIA impose the ILLEGAL 13-A was bad enough – and that was done without any significant Trade Deals at that time (JRJ govt – 1987).

    At present, Sri Lanka is being crushed by both INDIA & west through Trade Deals !

    Waiting round the bend with Yahap govt :

    – ETCA
    – sea tunnel to Tamil Nadu
    – 5,000 acre lots on 99 yr leases to foreigners
    – New Constitution (what might that bring ??)

    Shame on Yahap !

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