A staple of the political manifesto of Imran Khan has been his ability to make big promises that capture the imagination of the people of Pakistan. Imran Khan’s narrative is the narrative of transformational change, and it is hard not to be swept up in the wave of optimism that some of his speeches produce. But promises must be judged by their ability to be realised and it is in that light that we must look at Imran Khan’s most recent promise that he will amend the Constitution to morph Article 38(d) from a principle of policy to a fundamental right.
Article 38(d) states that the Government of Pakistan shall provide the basic necessities of life to its citizens such as food, clothing, housing, education, and medical relief. These necessities are broadly encompassed within the ambit of what the international legal order calls ‘economic and social rights’.
Once upon a time, when the United Nations was in its most raw form, nations disputed whether the provision of food or shelter could be considered ‘rights’ owed by the state to its citizens at all. However, the world has come to realise that civil and political rights, like free speech, mean little to people if they are dying of hunger. So, as of today over 160 countries – including Pakistan – have ratified the UN’s International Covenant on Economic, Social and Cultural Rights.
Yet, while there is now recognition that these are ‘rights’ there is substantial disagreement on how a state should implement them. Here lies the problem for the PTI’s promise.
Let’s imagine for a second that the PTI has the requisite numbers in parliament to push a constitutional amendment through. What will this mean? Well, by making Article 38(d) a fundamental right the Constitution will empower citizens to be able to petition Pakistan’s higher courts to enforce the right through the mechanism of judicial review. Those who believe, for example, that they are being denied basic medical care by the state may approach a court and ask that the government be directed to provide them with this fundamental right.
At first glance, that sounds like a fantastic idea. No doubt it appears the same way to Mr Khan, and I have no doubt that his intentions regarding this are sincere, but I believe that such a move would be symbolic rather than substantive. Granting the power to our courts to enforce economic and social rights is nothing new. Our courts have already stretched the interpretation of existing fundamental rights, like the right to life, to plausibly encompass things like medical care and the right to clean drinking water. In case you were recently on a trek to Narnia, let me recap that over the past year our Supreme Court has been trying to fix our water woes with great zeal. Yet, those efforts were forced to grind to a halt because of the chief reason behind the failure to implement economic and social rights in most countries: a lack of resources.
If anything, the Supreme Court’s foray into dam building should show us that it is silly to think that we can guarantee economic and social rights by handing over their enforcement to the judiciary. Not because of a lack of good intentions on the part of the judiciary, but rather because the judicial process is inadequate to address these issues. As human rights activist Aryeh Neier put it: it would simply be intruding into an area where the democratic process ought to prevail.
The fact is that the enforcement of economic and social rights is not being held back because they are not enshrined as fundamental rights in our constitution. They are held back because of lack of resources and political will. It is especially because of this that it is the democratic process, rather than the courtroom, that is best suited to tackle these issues. Neier explains that it is only possible to deal with questions regarding the allocation of resources through the process of negotiation and compromise. A court is simply not the place where this is possible to the same degree as the legislature. Courts cannot determine the best tax regime to allocate resources for free medical treatment from the state, they are incapable of telling the government what the best economic model for an effective welfare regime would be, and they cannot tell the legislature how to allocate resources between its different ministries.
So how do we get economic and social rights to exist in Pakistan? This is necessarily dependent on people making the enforcement of these rights a part of their voting preferences. For that to happen we need to produce a certain level of ‘rights consciousness’ within the people of Pakistan. They must understand that they are entitled to demand economic and social rights from their elected leaders, and if they do not deliver, they must be voted out. Political marginalisation of the people most affected by the lack of economic and social rights needs to be dealt with, and the way towards doing that is through the promotion of grassroots democracy, making the need for strong local governments all the more important when it comes to these rights.
Matters regarding resource allocation are matters regarding the economy. They are questions that must be put before the people to decide. An already overburdened judiciary cannot be asked to also determine how best to craft Pakistan into a welfare state.
Published in The Express Tribune, April 9th, 2019.
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