“Indeed, in countries where the task of maintaining body and soul and together is getting more and more to be a mission impossible, man’s efforts should be focused in enhancing the socio-economic rights of the vulnerable in our society. For what good is not being arrested if one is already incarcerated by the prison of poverty? What good is freedom of expression if the only idea you can mumble are words begging for food? What good is freedom to think on the part of the ignorant who is even ignorant of his ignorance? What good is the right to property to him who is shirtless, shoeless, and roofless? What good are political and civil rights to those whose problem is how to be human?
Let me conclude by saying that total human liberation requires not only the preservation of political and civil rights but demands the enjoyment by our people of their socio-economic rights. Only then can we translate the dream of Rizal into reality that in every person there is self-worth that the State should bring to life. In Rizal’s immortal words: “[Because] every being in creation has his spur, his mainspring; man’s is his self-respect; take it away from him and he becomes a corpse; and he who seeks activity in a corpse will only find worms.”"
— Chief Justice Reynato S. Puno, Philippine Supreme Court 2006-2010[1]
Introduction
Entered into force on January 3, 1976, the International Covenant on Economic, Social and Cultural Rights[2] already has a staggering 160[3] ratifying States, or States Parties, as of May 13, 2012. But in spite of such a high number, the velocity of development of socioeconomic rights[4] in the domestic sphere—in terms of promotion, guarantees, justiciability, and enforcement—is evidently slower than civil and political rights. This may be said to be not surprising as States Parties have customarily regarded socioeconomic rights as only having secondary or subordinate status to civil and political rights, mainly in view of the former’s traditional category as ‘positive rights’ and thus requiring clear and overt State acts for their fulfillment through crafting and implementation of policies and programs and the allocation of the State’s available resources within the process of progressive realization.[5] This is contrasted to the latter’s established framework as ‘negative rights’ that fundamentally need the State to only inhibit or constrain itself and its agents from committing acts of violations in order to respect and protect such rights.
This traditional dichotomy, however, between the said two sets of rights has been refuted by the modern conception that “all human rights are universal, indivisible and interdependent and interrelated”[6] and that human rights must be treated in a “fair and equal manner,” “on the same footing,” and “with the same emphasis.”[7]
But in view of the arduous nature of how State Parties can be made to comply with their respective obligations to fulfill socioeconomic rights, given the scarcity of available resources and domestic policy considerations as their primary defenses, the issue arises about the role that domestic courts ought to play, if any, in the enforcement of such rights.
As such, one crucial matter that needs examination for purposes of enforcement is the issue of justiciability of socioeconomic rights. Should domestic courts of State Parties readily defer and accord blanket authority to the policymakers—the democratically elected members of the executive and legislature—in the enforcement and realization of rights guaranteed by the Covenant, which may have been recognized in their respective constitutions and statutes, pursuant to the doctrine of political question?[8] Or can domestic courts, barring any ‘conservatism’ on their part, actually assume a vital part in the enforcement of such rights by simply exercising fully their existing judicial power and resorting to the tools of constitutional or statutory construction that accord the interpretation that is most favourable to justiciability? Or is a recourse to ‘judicial activism’ a necessity, where domestic courts, particularly the Supreme Court, adopt a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions?”[9]
If socioeconomic rights are determined to be justiciable or actionable, how should domestic courts adjudicate cases involving socioeconomic rights, especially if the same involve executive or legislative policy considerations and resource allocations or lack thereof?
States Parties’ Obligations
At the onset, it is necessary to ascertain the nature of the State Parties’ obligations under the Covenant, as such determination is crucial in analysing the role of domestic courts in the enforcement of socioeconomic rights. In its General Comment No. 03 (1994),[10] the Committee on Economic, Social and Cultural Rights elucidated on the nature of such obligations, particularly the character and scope of Article 2(1)[11] of the Covenant. The Committee declares that such provision “describes the nature of the general legal obligations”[12] of States Parties, and that such obligations include both “obligations of conduct” and “obligations of result.”[13]
Though noting that while such ICESCR article provides for a framework of progressive realization that is absent, or not necessary, in its counterpart instrument for civil and political rights, The Committee affirms that the Covenant “also imposes various obligations which are of immediate effect.”[14] The Committee further explains:
“Of these, two are of particular importance in understanding the precise nature of State parties obligations. One of these…is the “undertaking to guarantee” that relevant rights “will be exercised without discrimination…”[15] The other is the undertaking in article 2(1) “to take steps,” which in itself, is not qualified or limited by other considerations.”[16]
As such, the State Parties’ obligations, first, to undertake to guarantee that the rights in the Covenant will be exercised without discrimination; and, second, to undertake to take steps, are ones which are of immediate effect and therefore not subject to the framework of progressive realization,
“Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.”[17]
The Committee includes the following Covenant provisions as having an immediate application by domestic courts as such rights are considered self-executing[18] and therefore readily justiciable: Articles 3;[19] 7(a)(i);[20] 8;[21] 10(3);[22] 13(2)(a), (3) and (4);[23] and 15(3).[24]
Aside from the foregoing immediately realizable obligations of State Parties, the Committee categorizes a set of minimum core obligations by which “the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State Party.”[25] This is to accord meaning to the raison d’être of the Covenant.[26]
In fine, the Committee explains the nature of the progressive realization of State Parties’ obligations, that it must be construed pursuant to the raison d’être of the Covenant, that is, “to establish clear obligations for States parties in respect of the full realization of the rights in question.”[27] The Covenant therefore imposes an obligation on State Parties “to move as expeditiously and effectively as possible towards that goal.”[28]
Accordingly, Article 2(1) obligates States Parties to take the required steps “to the maximum of its available resources” in order to ensure compliance with their obligations. And in the words of the Committee, State Parties may attribute their failure to fulfill their obligations—even at least the immediately realizable and minimum core obligations—to lack of available resources, they “must demonstrate that every effort has been made to use all resources that are at their disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”[29]
Thus, pursuant to the foregoing matters, the nature of the obligations of State Parties under the Covenant is classified into three categories: first, obligations that are immediately realizable; second, the minimum core obligations; and third, the full realization over time of all economic, social and cultural rights, or the progressive realization thereof.
Lastly, respect and protection of some civil and political rights are essential for the promotion and guarantee of socioeconomic rights, and violation of the former may necessarily lead to the non-fulfillment of the latter (e.g. a violent dispersal by the police of an assembly/protest of residents to protect their houses from getting demolished).[30] Thus, socioeconomic rights should not be simply viewed as ‘positive rights’ for purposes of their fulfillment.
Justiciability and Judicial Remedies
Although the right of an aggrieved party to an effective remedy for violation of rights does not preclude recourse to administrative remedies, as well as resort to legislative investigations and oversight functions, the importance of judicial remedies cannot be overemphasized. This is especially true if non-judicial remedies are proved to be ineffectual, bureaucratic, or that procedures therein are attended by prevalent political biases and arbitrary considerations.
Article 8 of the Universal Declaration of Human Rights[31] provides that, “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.” This provision speaks not simply of a remedy but an effective one, and it is very specific that such a remedy must be provided for by “competent national tribunals,” that is, the domestic courts. The term rights referred to in Article 8 does not distinguish between the different sets of rights that may be enunciated in a constitution or statutes. As such, it is the author’s submission that said reference to rights means it is applicable to all categories of rights including socioeconomic rights, as we must not distinguish when the law, or an international customary law in this instance, does not distinguish.
Therefore, the clear import of Article 8 is that socioeconomic rights are justiciable in domestic courts through the availment of the effective remedy or remedies that would provide adequate relief to an aggrieved party, at least for the socioeconomic rights that are recognized in a State Party’s constitution and statutes.
Some scholars, however, assert that adjudication of socioeconomic rights may lead to the undermining of the democratic process, and that judges are lacking the necessary expertise to deal with the intricate and usually complex policy matters involving socioeconomic rights.[32] Another set of criticisms against justiciability expounds the view that said rights are vague or uncertain in character that their content is not susceptible of sufficient definition, and as such only set out aspirational and policy guidelines.[33] Similarly, other critics contend that in actual terms, though not utterly espousing non-justiciability but merely for some form of judicial restraint, adjudication of socioeconomic rights may lead to queue jumping and cause danger in the ‘appropriate’ allocation of available resources or trade-offs.[34]
But this author subscribes to the view that violations and non-fulfillment of socioeconomic rights are, and should be, justiciable as a rule. This is supported by the previous examination of the nature of States Parties’ different sets of obligations under the Covenant that the Committee has to declare in its General Comment No. 09[35] that while the approach of every domestic legal system needs to be considered, “[t]here is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions.”[36] This is in accord to the generally accepted principle in international law that domestic laws should be interpreted as far as possible in a manner which conforms to the State Parties’ international obligations.[37]
Is the mere availability of the claimed democratic process (non-judicial remedies) sufficient to preclude the alleged counter-majoritarian and ‘anti-democratic’ process (judicial review by domestic courts) in the resolution of socioeconomic rights’ issues? The answer must be in the negative.
Barring a staging of any revolution, for what would the aggrieved parties do if non-judicial remedies, if any in the executive and legislature processes, are deaf to the cries of the marginalized sectors when such is endemic and very apparent especially in developing societies? Courts exist not simply to adjudicate private controversies but also to act as a mechanism to check and balance the actions of other departments (executive and legislature) to ascertain whether the latter are in neglect of their duty or arbitrarily going beyond the limits of their powers. This is not to undermine but rather to strengthen the democratic process.
As such, the only question that needs examination is the nature and extent of judicial power that is to be exercised in the adjudication of issues involving socioeconomic rights. In this regard, the author proposes a structural rules of procedure for this purpose.
For States Parties, we distinguish between those that adhere either to the doctrine of incorporation (monist) or the doctrine of transformation (dualist). In the first, ratifying the Covenant readily produces the effect and force of a law that is immediately applicable for domestic application. Even absent a not needed statute or statutes that exactly reflect the socioeconomic rights under the Covenant, it is reasonable to assume that such States Parties’ respective constitutions and existing statutes provide for at least some form of recognition of such rights. As such, domestic courts in this instance should apply both the domestic laws and the Covenant in ascertaining what is lawful and what is not, and applying the principle[38] that domestic laws should be interpreted as far as possible in a manner which conforms to the State Parties’ international obligations. Regardless of the nature[39] of the obligations both in the Covenant and domestic laws, as long as the petitions filed by the aggrieved parties have shown any of the following, the domestic courts must adjudicate the same in their favour:
(1) Their rights have been unlawfully[40] violated or non-fulfilled by the assailed acts or omissions, policies, and resource allocation[41] of the executive or legislature;
(2) Their rights have been violated or non-fulfilled by acts or omissions, policies, and resource allocation of the executive or legislature which acted with grave abuse of discretion[42] [43] amounting to lack or excess of jurisdiction on the part of the executive or legislature. This shows serious and grave arbitrariness or unreasonableness[44] in the exercise of executive or legislative discretion; and
(3) Their rights have been violated or non-fulfilled by arbitrary or unreasonable discriminatory[45] acts or omissions, policies, and resource allocation of the executive or legislature. This shows arbitrariness or unreasonableness[46] that violates the equal protection of the laws thus rendering the resulting discrimination as invalid.
Any situations beyond the foregoing enumeration are already considered as within the province of the doctrine of political question and thus no longer justiciable.
In the second, States Parties still have to enact an enabling statute or statutes for the Covenant to have the force and effect of a law in their respective jurisdictions. But again, it is to reasonable to say that such States Parties have a constitution and prevailing statutes that accord some form of guarantee for socioeconomic rights. In this case, domestic courts should apply the domestic laws (constitution and existing statutes) for purposes of determining what is lawful and what is not. As said States are parties to the Covenant, the lack of any enabling statute or statutes that would give effect to the provisions of the Covenant is not a valid excuse or defense to render the Covenant as utterly not having any importance. By being States Parties, they should interpret, as far as reasonably practicable, the nature of socioeconomic rights in their domestic laws, which may be found insufficient in character, according to the rights enunciated in the Covenant. In addition, States Parties following a dualist approach may not invoke the provisions of their internal laws as justification for their failure to perform a treaty.[47] Regardless of the nature of the obligations in the domestic laws, if the petitions filed by the aggrieved parties have shown any of the foregoing instances of procedure that have been enumerated, the domestic courts must decide the same for the said parties, with the same qualification as to where the domain of political question lies.
As to States which are not parties to the Covenant, domestic courts therein may also avail of the above enumerated instances of procedure but their application may only be confined to the domestic laws (constitution and statutes) that refer to socioeconomic rights. But said States, in the interpretation of their domestic laws on socioeconomic rights, have to avail of other international instruments (e.g. International Covenant on Civil and Political Rights) to which they are States Parties, or even to international instruments (e.g. Universal Declaration of Human Rights) to which they are not State Parties but have attained the status of international customary law as tools to better enforce such domestic laws. It has previously been shown that civil and political rights have a necessary and logical connection to the promotion and guarantee of socioeconomic rights.
Conclusion
As can be gathered from the present discussion, the fact that a particular policy or resource allocation involving socioeconomic rights is alleged to be complex or necessary does not in itself operate as an exemption from the ambit of judicial adjudication. It is of no moment that judges may lack such expertise in dealing with such policies or resource allocation. The same also goes with the so-called trade-offs. What is important is this: if the assailed acts or omissions, policies, resource allocation, or trade-offs are unlawful, acted upon with grave abuse of discretion, or attended by unreasonable discrimination, judges must apply the law; it is their duty to do so.
The arguments favouring queue jumping in socioeconomic rights constitute a fallacy. There is no queue nor a waiting list; they only come from the narrow imaginations of the proponents thereof. The notion of queue jumping erroneously implies that the attitude of States Parties in the promotion, guarantee and realization of socioeconomic rights is one of willingness but constrained only by the alleged scarcity of available resources, thus the averred queue of rights-bearers waiting to be accommodated by the next available resources. If it were true, how come that even the most basic, the very fundamental obligations (e.g. immediately realizable and minimum core obligations) of State Parties under the Covenant have not yet been adequately addressed for the longest time? Where did the resources available during the previous decades go to? As such, it may be said that the idea of queue jumping condones the wastage of resources.
It must be emphasized that to assert, struggle and fight is an indispensable piece in order for rights of whatever nature—civil, political, economic, social, cultural—to be protected, guaranteed, and realized. No significant development would occur if rights-bearers would simply form a queue and wait. Seeking redress in domestic courts to demand for the fulfillment of socioeconomic obligations of States Parties is one of the legitimate arenas of battle for rights-bearers. Why disempower the rights-bearers by refusing the justiciability of socioeconomic rights?
References
Abdulaziz, Cabalis and Balkandali v.The United Kingdom (1985) 7 EHRR 471.
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
Chief Justice Reynato S. Puno, Philippine Supreme Court, Socioeconomic Rights and Globalization, 2007, http://sc.judiciary.gov.ph/speech/Socio-economic.htm, accessed on 9 May 2012.
Fernandez v. Commission on Elections (G.R. No. 171821, 9 October 2008), Philippines Supreme Court cases, www.chanrobles.com/cralawgrno171821october92005.html, accessed on 12 May 2012.
Gehan D Gunatilleke, ‘Judicial Activism Revisited: Reflecting on the Role of Judges’, Junior Bar Law Review 1 (2010), pp. 25, 30, 32, 37-38..
General Comment No. 03: The Nature of States Parties Obligations, United Nations Committee on Economic, Social and Cultural Rights, HRI\GEN\1\Rev. 1 at 45 (1994), para. 1, 2, 5, 9, 10.
General Comment No. 09: The Domestic Application of the Covenant, United Nations Committee on Economic, Social and Cultural Rights, E/C.12/1998/24/, para. 10, 15.
International Commission of Jurists, ‘Courts and the Legal Enforcement of Economic, Social and Cultural Rights’, Human Rights and Rule of Law Series, 2008(2), p.15.
International Covenant on Economic, Social and Cultural Rights, United Nations General Assembly Resolution 2200A (XXI), 16 December 1966: Article 2(1)(2), 3, 7(a)(i), 8(1)(a)(b)(c)(d)(2)(3), 10(3), 13(2)(a)(3)(4), 15(3).
Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) (S.Afr.).
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Oposa et al. v Factoran Jr. et al. (G.R. No. 101083, 30 July 1993).
O’Scannlain, Geo, ‘Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No,’ JL & Pub. Pol’y, 2002.
Perez v. Court of Appeals (G.R. No. 162580, 27 January 2006)
Schuler-Zgragen v. Switzerland (1993) EHRR 405.
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Tañada v. Cuenco, 103 Phil 1051, 1068 (1957)
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[1] Chief Justice Reynato S. Puno, Philippine Supreme Court, Socioeconomic Rights and Globalization, A speech delivered 4 May 2007 at World Trade Center, Manila on the occasion of the conferment of the degree of Doctor in Public Administration, honoris causa by the Polytechnic University of the Philippines, http://sc.judiciary.gov.ph/speech/Socio-economic.htm, accessed on 9 May 2012, quoting Dr. Jose Rizal, Indolence of the Filipinos, La Solidaridad, 1890, p. 194, Emphasis supplied.
[2] This is hereinafter referred to as “Covenant.”
[3] Status of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en, accessed on 13 May 2012.
[4] The term ‘socioeconomic rights’ as used in this paper refers to economic, social and cultural rights for purposes of brevity.
[5] International Covenant on Economic, Social and Cultural Rights, United Nations General Assembly Resolution 2200A (XXI), 16 December 1966: Article 2(1) – Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis supplied)
[6] Vienna Declaration and Programme of Action, United Nations General Assembly, 12 July 1993: Para. 5. – All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
[7] Ibid.
[8] In the Philippines, the political question doctrine, which precludes the justiciability of a certain issue, is explained in these landmark decisions, the first was adopted by the Philippine Supreme Court from US jurisprudence, and the second was its own decision: Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (See Vinuya v. Romulo, G.R. No. 162230, 28 April 2010 for the latest application of Baker v. Carr): “x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question.” Tañada v. Cuenco, 103 Phil 1051, 1068 (1957): Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”
[9] Judicial activism as defined by Black’s Law Dictionary, as quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No,” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.
[10] General Comment No. 03: The Nature of States Parties Obligations, United Nations Committee on Economic, Social and Cultural Rights, HRI\GEN\1\Rev. 1 at 45 (1994).
[11] See No. 3.
[12] General Comment No. 03, para. 1.
[13] Ibid.
[14] Ibid.
[15] Ibid. See Article 2(2), ICESCR: “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis supplied)
[16] Ibid, para. 2. See Article 2(1), ICESCR – Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis supplied)
[17] Ibid.
[18] Ibid, para. 5.
[19] Article 3, ICESCR – The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
[20] Article 7, ICESCR – The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
[21] Article 8, ICESCR – 1. The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
[22] Article 10, ICESCR – The States Parties to the present Covenant recognize that: 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
[23] Article 13, ICESCR – 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
[24] Article 15, ICESCR – 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
[25] General Comment No. 03, para. 10.
[26] Ibid. “Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.”
[27] General Comment No. 03, para. 9.
[28] Ibid. “The principal obligation of result reflected in article 2(1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. x x x…, [t]he fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. x x x Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”
[29] General Comment No. 03, para. 10. (Emphasis supplied)
[30] In this instance, there are violations of the right to peaceably assembly and freedom of speech. Such violations of civil rights would lead to the demolition of the residents’ houses, which in turn is a violation of their right to housing, a part of socioeconomic rights.
[31] Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A (III), 10 December 1948.
[32] Atty. Gehan D Gunatilleke sharing the recurrent arguments of scholars’ criticisms on the justiciability of socioeconomic rights in his paper ‘Judicial Activism Revisited: Reflecting on the Role of Judges’, Junior Bar Law Review 1 (2010), p. 25.
[33] International Commission of Jurists, ‘Courts and the Legal Enforcement of Economic, Social and Cultural Rights’, Human Rights and Rule of Law Series, 2008(2), p.15.
[34] Gunatilleke, pp. 30, 32. As defined therein, queue jumping refers to “the phenomenon of permitting a particular segment of society to access scarce resources through means outside the democratic process,” as it is sanctioned by judges who are leaders not elected by the people compared with the elected members of the executive and legislature, and whereby one group may be able to claim socioeconomic rights – ahead of other groups who have long been waiting therefor – by simply seeking court adjudication. It involves “different segments of society competing for the same economic interest, like the example given by Attorney Gunatilleke, “the provision of electricity.” Trade-offs involve the “competition between different segments of society for the allocation of resources towards different issues, like the provision of electricity vs. the construction of roads,” as explained in Attorney Gunatilleke’s paper.
[35] General Comment No. 09: The Domestic Application of the Covenant, United Nations Committee on Economic, Social and Cultural Rights, E/C.12/1998/24/
[36] Ibid, para. 10.
[37] Ibid, para. 15.
[38] Ibid.
[39] This refers to all kinds of obligations under the Covenant: obligations which are immediately realizable, minimum core obligations, and obligations which are subject to the framework of progressive realization. In case of the last category, if a domestic court grants a petition for the enforcement thereof, its implementation is necessarily subject to progressive realization but without prejudice to the immediate fulfillment of immediately realizable and minimum core obligations.
[40] In the Philippines, its Supreme Court has promulgated two (2) landmark decisions that gave significant force and effect to social rights that are not included in the enumeration of the Constitution’s Bill of Rights but are stated in its Declaration of Principles and State Policies: Section 15. “The State shall protect and promote the right to health of the people and instill health consciousness among them;” and Section 16. “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” The Court ruled that said provisions are self-executory and justiciable despite not being included in the Bill of Rights. The Court also introduced the twin concepts of “intergenerational responsibility” and “intergenerational justice.” The Court says, in Oposa et al. v Factoran Jr. et al. (G.R. No. 101083, 30 July 1993), a case praying for the cancellation of all existing timber license agreements in the Philippines, “They can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generation can only be based on the concept of “intergenerational responsibility” insofar as the right to a balanced and healthful ecology is concerned. Such a right considers the “rhythm and harmony of nature.” Every generation has a responsibility to the next to preserve that rhythm an harmony for the full enjoyment of a balanced and healthful, and the petitioners minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.” In MMDA (other government departments and agencies) et al. v Concerned Residents of Manila Bay et al. (G.R. No. 171947-48, 18 December 2008), a case praying for the clean-up of the polluted Manila Bay, the Court invoked the doctrines laid down in Oposa, and also specified the particular duties and tasks of every government department and agency concerned in the order to clean-up and rehabilitate Manila Bay, in accordance with the specific mandates provided for by laws, as well as included in its decision that, “The budget department shall consider incorporating an adequate budget in the General Appropriations Act for 2010 and succeeding years” to provide the necessary budgetary appropriations for such clean up and rehabilitation.
In South Africa, in the case of Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) (S.Afr.), available at http://www.constitutionalcourt.org.za, the Constitutional Court ruled that the government violated the express constitutional guarantee of access to health care services, particularly the its obligation by failing to develop and implement a comprehensive prevent mother-to-child transmission (PMTCT) program.
[41] Even if policies and resource allocation issues are involved, however simple or complex they may be, as long as the same are unlawful, acted upon with grave abuse of discretion, or attended by arbitrary or unreasonable discrimination, domestic courts must adjudicate thereof. This is because the fact of alleged complexity or claimed necessity of executive and legislative policies and compromises for resource allocation does not, by itself, render the same non-justiciable or precluded from court adjudication. Only in cases where any of such three instances of proposed procedure is not present that domestic courts should refrain from resolving matters involving policies and resource allocation. This is pursuant to the principle that whenever legal provisions and concepts are at the very issue of the controversy, whether involving simple or complex policies or resource allocation, the courts must not refuse to perform their duty of applying the same to settle and adjudicate the dispute. The simple reason for this is that it is the duty of courts to interpret and apply legal provisions and concepts.
[42] Grave abuse of discretion is defined in Philippine jurisdiction as such capricious and whimsical exercise of judgment as would amount to lack of jurisdiction, it contemplates a situation where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law. See Perez v. Court of Appeals (G.R. No. 162580, 27 January 2006); Fernandez v. Commission on Elections (G.R. No. 171821, 9 October 2008), Philippines Supreme Court cases, www.chanrobles.com/cralawgrno171821october92005.html, accessed on 12 May 2012.
[43] In Oposa, supra, the Supreme Court held that the Regional Trial Court committed grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed the complaint of Oposa et al. on the alleged ground that said complaint does not state a valid cause of action.
[44] One of the ways to measure the reasonableness, or lack thereof, for purposes of the exercise of discretion with respect to the enforcement, or lack thereof, of socioeconomic rights is whether a State Party has undertaken the necessary steps to fulfill its obligations or whether the measures that are presently undertaken are reasonable under the prevailing circumstances of the State Party.
[45] The European Court of Human Rights has decided cases involving discrimination which adversely affected socioeconomic rights. In Abdulaziz, Cabalis and Balkandali v.The United Kingdom (1985) 7 EHRR 471: Petitioners contended that the government’s denial to grant residence to their husbands when wives similarly situated would have been granted residence violated their right stated in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms that the enjoyment of the rights and freedoms therein shall be secured without discrimination on any ground. The Court sustained the petitioner’s contention despite the government’s claim of alleged rational basis for discrimination, that male immigrants were more possible to pursue employment than their female counterparts. In effect, the Court found the discrimination not to be valid. In Schuler-Zgragen v. Switzerland (1993) EHRR 405: A married woman with a two-year old child was denied of unemployment benefits for the reason she was unlikely to pursue work outside her house. A man without a child, however, would have been granted such unemployment benefits. The Court held that such policy was discriminatory and violated said Article 14. See Gunatilleke, pp. 37-38.
[46] The manner by which the unreasonableness or arbitrariness in discrimination may be determined is to examine whether the classification made has passed the reasonableness test for purposes of discrimination, according to the following requisites thereof: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; (4) It applies equally to all members of the same class. Superficial differences do not make for a valid classification. This is the doctrine that is followed in the Philippine jurisdiction. See Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
[47] Vienna Convention on the Law of Treaties, Article 27.
Not a ‘ship of fools’
April 18, 2012 in Commentary | Leave a comment
Satirical writer Thomas Carlyle once wrote, “The present is the living sum-total of the whole past.” We need not examine Australia’s entire past to see how its government currently addresses, or to be politically correct, evades and ducks into containment, the issue of treatment and settlement of refugees arriving in its territory by boat.
A look at what happened ten years ago in its waters near Christmas Island is sufficient for us to comprehend the things that did not happen there, and how such contemptible omissions continue to mould the existing Australian policy on the ‘boat people.’
A five-day standoff ensued from August 26 to 30, 2001 between the Australian government and Captain Arne Rinnan of the MV Tampa, a Norwegian cargo ship which rescued 438 Afghan refugees from a 20-metre wooden Indonesian fishing boat stranded in the international waters about 140 km north of Christmas Island. Australian authorities themselves sounded the calls for assistance; MV Tampa simply responded. It was directed to disembark the refugees to the port of Merak in Java, Indonesia, about 12 hours away from the rescue site. Christmas Island was only two hours closer. The refugees rightly demanded from Rinnan that they be taken to Australia, not to Indonesia where they sailed from. Authorities, however, refused entry to its territorial waters, and threatened to prosecute Rinnan as a people smuggler if he dared to do so.
Rinnan patiently awaited Australia’s compassion for days on the boundary of its territorial waters near Christmas Island, as there was a ‘mass medical crisis and that medical attention was urgently required.’ The wait was in vain. On August 29, MV Tampa entered Australia’s territorial waters. The response was a deployment of its special forces—the Special Air Service Regiment—who boarded the vessel and ordered it to move back to international waters. Rinnan aptly refused and MV Tampa anchored four nautical miles off Christmas Island. After the Senate rejected Howard’s oppressive Border Protection Bill the following day, Australia hurriedly excised Christmas Island and other coastal islands from its migration zone to prevent asylum seekers who failed to reach the mainland from applying for refugee status. The Pacific Solution was conceived, transporting asylum seekers to detention camps in Manus Island in Papua New Guinea and on the tiny island nation of Nauru, where the MV Tampa refugees were eventually shipped and their status processed.
Those facts were clear then, as they are now in the Malaysia Solution—Australia’s latest refugee policy to transport its first 800 asylum seekers, including unaccompanied children, arriving by boat to Malaysia, a non-signatory to the Convention on Refugees and has a dismal record in refugee protection. Australia in turn will provide permanent homes to 4,000 Burmese refugees from Malaysia over a period of four years. The arrival of another boat carrying 62 asylum seekers last August 12 brings the total to 269 arbitrarily detained ‘boat people’ in Australia.
The Tampa affair was characterised by a great crime of omission—an intentional evasion of its earnest duty as a civilised and enlightened nation to comply with its international obligation to assist refugees. The Malaysia Solution becomes an aggravating circumstance to Australia’s notoriety, for what on Poseidon’s name is the wisdom behind sending away 800 and getting 4,000 refugees in return? Acquiring such a huge number clearly shows Australia’s capacity to take more refugees than those that arrive here by boat.
It is claimed that the Tampa affair had occurred to frustrate, and the Pacific and Malaysia Solutions were devised against, people smuggling. But certainly, such a reprehensible act and inhumane policies work heavily against the proper treatment and settlement of asylum seekers arriving by boat. As a testament to its hypocrisy, Australia shirks from its obligation to its few ‘boat people’ by arranging to send them away to ‘dissuade’ people smugglers and then gather numerous refugees from Malaysia to proclaim that it is a nation that bears a torch for refugee protection.
The problem lies there. Australia’s policymakers have to recognise two things: that Australia is an acknowledged part of the regime of asylum nations and that the policy should be geared towards the humane treatment of refugees on its shores. Asylum seekers arriving by boat have to be accorded the heavy presumption of being refugees, who are as such as defined under the Convention on Refugees whether their journey has been caused by people smugglers or not. A myopic policy hooked callously against people smugglers is weighing down on the refugees, in serious violation of their right to liberty and security.
The problem is not the people smugglers. It is how Australia responds to its role as an asylum nation. Australia is not a paradise of fools where asylum seekers set sail to land. It should not act as one.