{"id":60397,"date":"2016-11-03T22:11:32","date_gmt":"2016-11-04T04:11:32","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=60397"},"modified":"2016-11-03T06:34:30","modified_gmt":"2016-11-03T13:34:30","slug":"the-idiocies-in-the-sri-lanka-constitution-3-directive-principles-of-state-policy","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/11\/03\/the-idiocies-in-the-sri-lanka-constitution-3-directive-principles-of-state-policy\/","title":{"rendered":"THE IDIOCIES IN THE SRI LANKA CONSTITUTION, 3:\u00a0 DIRECTIVE PRINCIPLES OF STATE POLICY"},"content":{"rendered":"<h2><span style=\"color: #0000ff;\"><em><strong>DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n<p>In this installment, I focus on Chapter VI of the constitution, Directive Principles of State Policy.\u00a0 I shall briefly explain what they are, and what in my view is wrong with them legally as well as practically.<\/p>\n<p><strong>WHAT ARE DIRECTIVE PRINCIPLES?<\/strong><\/p>\n<p>Directive principles are principles intended to guide the State when making policy.\u00a0 Here are some examples:<\/p>\n<p>\u2018[Article] \u00a0 27(2):\u00a0\u00a0 The State is pledged to establish in Sri Lanka a democratic socialist society, the objectives of which include:<\/p>\n<ul>\n<li>The full realization of the fundamental rights and freedoms of all persons;<\/li>\n<\/ul>\n<ul>\n<li>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;<\/li>\n<\/ul>\n<ul>\n<li>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.<\/li>\n<\/ul>\n<p>27(7):\u00a0\u00a0 The State shall eliminate economic and social privilege and disparity, and the exploitation of man by man or by the State.<\/p>\n<p>27(8):\u00a0\u00a0 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.<\/p>\n<p>27(9):\u00a0\u00a0 The State shall ensure social security and welfare.\u2019<\/p>\n<p>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.\u00a0 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 \u201978 Constitution has been in operation. (I shall turn to this issue in a moment after discussing the legal problems with directive principles.)<\/p>\n<p><strong>THE LEGAL PROBLEM<\/strong><\/p>\n<p>There are two problems:\u00a0 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.\u00a0 I shall take each in turn.<\/p>\n<p><strong>REDUNDANCY<\/strong><\/p>\n<p>Article 29 of the constitution says:<\/p>\n<p>\u2018The provisions of this Chapter [Chapter VI] do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal.\u00a0 No question of inconsistency with such provisions shall be raised in any court or tribunal.\u2019<\/p>\n<p>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.\u00a0 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.\u00a0 Therefore, directive principles are redundant.\u00a0 Redundant clauses have no place\u2014or at any rate ought to have no place\u2014in a constitution.<\/p>\n<p><strong>THE CLASH BETWEEN DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS<\/strong><\/p>\n<p>Chapter VI of the Sri Lanka constitution replicates the chapter on directive principles in the Indian Constitution.\u00a0 Under the Indian Constitution also directive principles are not enforceable.\u00a0 However, in the 1950\u2019s and 60\u2019s 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.<\/p>\n<p>As a result, during this period there were a number of legal challenges to the said laws.\u00a0 The main issue in all these cases was the clash between directive principles and fundamental rights.\u00a0 Fundamental Rights are by definition individual rights.\u00a0 Directive principles on the other hand are designed to improve the lot of various groups of people.<\/p>\n<p>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.\u00a0 The courts had to decide whether fundamental rights trumped directive principles, or vice verse, in the event of a clash.<\/p>\n<p>The seminal case in this series is recognized as <em>Keshavananda Bharathi v. State of Kerala<\/em>, sometimes also called, \u2018The Case that Saved Indian Democracy.\u2019\u00a0 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.<\/p>\n<p>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.\u00a0 The court said <em>inter alia<\/em>:<\/p>\n<p>\u2018Every encroachment on freedoms sets a pattern for further encroachments.\u00a0 Our Constitutional plan is to eradicate poverty without destruction of individual freedoms.\u2019<a href=\"#_ftn1\" name=\"_ftnref1\">[1]<\/a><\/p>\n<p>I have discussed <em>Keshavananda<\/em> in a number of articles so will not go into it here.\u00a0 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 <em>Constitutional Law of India<\/em>, widely recognized as one of the finest commentaries on the Indian Constitution.\u00a0 The assessment stems from a consideration of the cases that followed <em>Keshavananda<\/em>.\u00a0 He says:<\/p>\n<p>\u2018The acute conflict of judicial opinion in <em>Minnerva<\/em>, <em>Waman Rao<\/em> and <em>Sanjeev Coke<\/em> 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.\u00a0 An eminent scientist, a most distinguished writer, has said wittily that the essence of science is:\u00a0 \u2018Ask an impertinent question, and you are on the way to a pertinent answer.\u2019\u00a0 Since law is both a science and an art, I asked what may appear to be two impertinent questions.\u00a0 First, what would have happened if directive principles had not been enacted in our Constitution?\u00a0 Secondly, what would have happened if justiciable fundamental rights had not been enacted in our Constitution?\u00a0 My inquiry and analysis led me to the following answers:\u00a0 If directive principles had not been enacted, nothing would have happened.\u00a0 If fundamental rights had not been enacted, the answer is not in doubt, for the Emergency supplied the answer:\u00a0 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.\u2019<a href=\"#_ftn2\" name=\"_ftnref2\">[2]<\/a><\/p>\n<p>To turn to Sri Lanka, the lesson to be drawn from the above is this.\u00a0 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.<\/p>\n<p>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.\u00a0 But, unlike in India, in Sri Lanka post-enactment review of legislation is not possible, because of Article 80(3) of the constitution.\u00a0 (I have discussed Article 80(3) in a previous essay.<a href=\"#_ftn3\" name=\"_ftnref3\">[3]<\/a>)\u00a0 Fortunately, the State has not tried to make directive principles enforceable to date.<\/p>\n<p>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 \u2018economic rights\u2019 enforceable) it could be dangerous.\u00a0 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.\u00a0 \u00a0\u00a0\u00a0\u00a0<strong><u>\u00a0<\/u><\/strong><\/p>\n<p><strong>THE PRACTICAL PROBLEM<\/strong><\/p>\n<p>A critic might say something like this:\u00a0 \u2018Technically, it is true that directive principles are redundant.\u00a0 Nevertheless, they can do a great deal of good by shaping the attitudes of policymakers, which in turn will shape the policies themselves.\u2019\u00a0 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.<\/p>\n<p>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.\u00a0\u00a0 I shall cite two recent examples:\u00a0 the IMF loan obtained by the government in July 2016, and the ongoing negotiations over regaining the GSP-Plus facility.<\/p>\n<p>To digress a moment, recall that one of the main directive principles is:\u00a0 \u2018The 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.\u2019\u00a0 The question is whether concerns of justice had anything to do with obtaining the IMF loan or of regaining the GSP-facility.<\/p>\n<p><strong>IMF LOAN\u00a0\u00a0 <\/strong><\/p>\n<p>In June 2016, the IMP approved an extended loan of $1.5 billion for Sri Lanka.\u00a0 Many observers have pointed out that the said amount is too small for Sri Lanka\u2019s 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.\u00a0 The following is an excerpt from an article in <em>The Island<\/em> that discusses this issue:<\/p>\n<p>\u2018Following the great global depression in 2008, it became known that Greece had been overstating the extent of its deficit financing for many years.\u00a0 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.\u2019<\/p>\n<p>\u2018The 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\u2014deep budget cuts, severe austerity in expenditure and major tax increases\u2014amounting to an overhaul of its entire economy.\u00a0 For example, the tax on heating oil was increased by 450% worsening the public\u2019s trauma.\u00a0 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.\u2019<a href=\"#_ftn4\" name=\"_ftnref4\">[4]<\/a><\/p>\n<p>I am not an economist, so am unable to speak with authority on the wisdom of Sri Lanka obtaining the loan in question.\u00a0 But, it seems to me that there is merit in what the above author is saying.\u00a0 It is reasonable to suppose that, if justice\u2014justice for the People\u2014is 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.<\/p>\n<p>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 \u2018national life,\u2019 and they cannot do this if the relevant information is not given to them.\u00a0 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.\u00a0<strong>\u00a0<\/strong><\/p>\n<p><strong>GSP-PLUS <\/strong><\/p>\n<p>In 2010, Sri Lanka lost the GSP-Plus facility, which had been a major source of foreign revenue to the country.\u00a0 After the change of government in 2015, the present Government has been campaigning to regain the facility.\u00a0 The EU has indicated it might relent, but with stringent conditions.\u00a0 It is reported that the government has been made to agree to a list of 58 conditions that go far beyond matters of trade.\u00a0 The following is an excerpt from an article in <em>Lanka Brief<\/em> that discusses this matter:<\/p>\n<p>\u2018In 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 <em>Sunday Times<\/em> shows.\u2019<\/p>\n<p>\u2018Among 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.\u00a0 The EU insists that the conditions be met before Sri Lanka can even consider applying for the GSP plus.\u2019<a href=\"#_ftn5\" name=\"_ftnref5\">[5]<\/a><\/p>\n<p>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.\u00a0 A statement in the Government\u2019s official news portal <em><a href=\"http:\/\/www.news.lk\">www.news.lk<\/a><\/em> says:<\/p>\n<p>\u2018Prime 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.\u2019<a href=\"#_ftn6\" name=\"_ftnref6\">[6]<\/a><\/p>\n<p>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.\u00a0 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.<\/p>\n<p>Thus, again one sees that policy\u2014in this case policy regarding matters that have nothing to do with trade\u2014is driven by the need for cash, and the resulting conditions imposed by foreigners:\u00a0 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.<\/p>\n<p><strong>CONCLUSION<\/strong><\/p>\n<p>The legal problem with directive principles is that, at best they are redundant and at worst a potential tool for oppressing the People.\u00a0 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.\u00a0 In short, directive principles are useless.\u00a0 Will they be repeated in the new constitution?\u00a0 I bet, \u2018Yes.\u2019<\/p>\n<p>Dharshan Weerasekera is an Attorney-at-Law.\u00a0 His latest book, <strong><em>The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka<\/em><\/strong>, will be in bookstores shortly.<\/p>\n<p><a href=\"#_ftnref1\" name=\"_ftn1\">[1]<\/a> <em>Keshavananda Bharathi v. State of Kerala<\/em>, 24 April 1971, <a href=\"http:\/\/www.indiankanoon.org\/\">www.indiankanoon.org<\/a>,\u00a0 paragraph 705<\/p>\n<p><a href=\"#_ftnref2\" name=\"_ftn2\">[2]<\/a> H. M. Seervai, <em>Constitutional Law of India<\/em>, <em>4<sup>th<\/sup> Edition<\/em>, Vol. 3, Sweet and Maxwell, London, 1996, pg. 2887<\/p>\n<p><a href=\"#_ftnref3\" name=\"_ftn3\">[3]<\/a>\u2018 The Idiocies in th Sri lanka Constitution, 1:\u00a0 Articles 4(c) and 80(3)\u2019, 2 October 2016, <a href=\"http:\/\/www.lankaweb.com\">www.lankaweb.com<\/a><\/p>\n<p><a href=\"#_ftnref4\" name=\"_ftn4\">[4]<\/a> C. R. de Silva, Sri Lanka:\u00a0 Avoiding \u2018the road\u2019 to Greece!\u201d\u00a0 The Island, 13<sup>th<\/sup> June 2016, <a href=\"http:\/\/www.theisland..lk\/\">www.theisland..lk<\/a><\/p>\n<p><a href=\"#_ftnref5\" name=\"_ftn5\">[5]<\/a> Sri Lanka:\u00a0 EU proposes 58 Human Rights Conditions to resume GSP Plus,\u201d Sri Lanka Brief, 8-05-2016, <a href=\"http:\/\/www.srilankabrief.org\/\">www.srilankabrief.org<\/a><\/p>\n<p><a href=\"#_ftnref6\" name=\"_ftn6\">[6]<\/a> \u2018GSP concession likely between March and May 2017 \u2013 PM,\u2019 21 October 2016, <a href=\"http:\/\/www.news.lk\">www.news.lk<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>DHARSHAN WEERASEKERA In this installment, I focus on Chapter VI of the constitution, Directive Principles of State Policy.\u00a0 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.\u00a0 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,100],"tags":[],"class_list":["post-60397","post","type-post","status-publish","format-standard","hentry","category-forum","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/60397","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=60397"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/60397\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=60397"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=60397"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=60397"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}