Of human freedom and well-being

Interview with Prof. Savitri Goonesekere.

"For the West, human rights is civil liberties. They do not want even to touch social and economic rights. For them, globalisation is civil liberties and the market. But we need to challenge that," says Dr. Savitri Goonesekere, Professor of Law, University of Colombo. Human rights reflect the historical experience on civil and political rights of the West, which is relevant for all parts of the world, including Asia. It also reflects the experience of Asia and the socialist countries on socio-economic rights, which is equally relevant for the West, says Prof. Goonesekere, a former Vice-Chancellor of the University of Colombo, Dean of the Faculty of Humanities and Social Sciences and Head of the Department of Legal Studies, Open University, Sri Lanka.

A former Chairperson (now member) of the Committee on Feminism, International Law Association, United Kingdom, Prof. Goonesekere is on Sri Lanka's National Committees on Women and Children, and has been associated with the School of Oriental and African Studies, London; the Harvard Law School, United States; and the United Nation's Children's Fund's (UNICEF) International Child Development Centre, Florence, Italy.

An eminent jurist, Prof. Goonesekere is an international consultant in the areas of human rights, law and development, and the rights of women and children. A consultant for the International Labour Organisation (ILO), the Economic and Social Commission for Asia and the Pacific (ESCAP), UNICEF and the Commonwealth Secretariat in London, she is also a member of the Monitoring Committee of the Convention on the Elimination of Discrimination Against Women.

Goonesekere's extensive publications include Law on Patent and Child in Sri Lanka; Child Labour in Sri Lanka: Learning from the Past; and Children Law and Justice: A South Asian Perspective.

Prof. Goonesekere, who was in Chennai to deliver the Golden Jubilee Lecture of the Indian Council for Child Welfare on "The Child Rights Discourse in the South Asian Context", spoke to Asha Krishnakumar on the definition of human rights, its significance in an environment of economic transformation, the role of the various agencies in upholding human rights, the associated institutions and support systems needed to implement human rights, and the crucial issues underlying the implementation of human rights. Excerpts from the interview:

What are human rights? Can you contextualise human rights in the light of the economic transformation that is leading to a privatised, liberalised and globalised world?

This question is pertinent because the phrase `human rights' is often considered alien discourse for Asia. We try to differentiate between what we call Asian values, which are communitarian, and the concept of the individual in a community. We try to balance between the individual and the community. Then we say that the concept of human rights is aggressive, individualistic and irrelevant for Asia.

Human rights are about human experiences and the containment of the abuse of power and oppression. The classical civilian political rights were born out of a conflict between the individual and the state. Freedom from torture, freedom from detention, right to expression and all those civilian political rights were forged in that environment. These messages of human experience are relevant for all of us as they are part of the respect for human dignity, part of the right of an individual to develop in his community with access to whatever is necessary for his well-being. We should buy into that ideology of human rights, which is about freedom from oppression, and about human well-being in a broad sense.

What is the historical context of human rights?

Historically, human rights have a particular legal and socio-political context. They are associated with individual autonomy asserted against the state, and defined essentially as civil liberties. For example, Amnesty International would focus on civil liberties. That is perceived as human rights. But it was the Asian critique of that concept of human rights, particularly coming from the socialist countries, that we adopt.

This came from the Asian countries before the Vienna Conference. It pushed the idea that human rights cover various rights - including social and economic rights - which socialist countries had recognised just as the West had recognised civil and political rights. They put in place health and education as a right of citizenship. Consequently, allocation of resources to health and education is also seen as a right of citizenship. That ideology has now fertilised into the human rights discourse.

Today, human rights reflect the historical experience on civil and political rights of the West, which is relevant for all parts of the world, including Asia. They also reflect the experience of Asia and the socialist countries on socio-economic rights, which is equally relevant for the West. This ideology of human rights, therefore, is about human dignity, well-being, respect for the right to personal security (including violence against women) access to national resources (protection of the environment), access to health, education and other basic needs.

The second part of the discourse is particularly relevant in the context of the economic transformation, the agenda for which is set in the West. They (the West) want us to open up our markets, to follow WTO (World Trade Organisation) regulations and so on. We find America, for example, saying that they want globalisation to go with human rights. And what they mean by human rights is civil liberties. They do not want even to touch social and economic rights. For them, globalisation is civil liberties and the market. But we need to challenge that. For us human rights means all rights, including social and economic.

This is particularly relevant for Asians. Even if we free our markets' accountability of the state, private sector and international sector investment are needed to protect civil, political and socio-economic rights. This means the market cannot come in and employ child labour, or enter a free trade zone and completely negate women's rights to health. I like to think that many companies are willing to recognise that the concept of human rights is important. I saw an advertisement by Shell, for instance, which said: `Is human rights our business?'

Human rights is good business. We need to push that. We need to say that anybody who comes in with investment must conform to those international norms. Equally, the locals must do that. But when the local business is trying to conform to standards, and foreign investment is undermining it, then there is a real problem. We had it in Sri Lanka. One of the biggest problems is that we have good labour laws but no enforcement in the free trade zones. What we have done in Bangladesh and Sri Lanka is to press for that accountability. And that has worked.

In an environment of economic transformation, what is the role of the state in enforcing human rights?

I believe the state must continue to have a role because in today's world it is an important actor. It has access to resources, can negotiate and bargain at the international level, it is into defence spending and so on. So how can we have a non-accountable state? We must have a state that is answerable to its people - this is what elections and democracy are all about. Therefore, the state cannot negotiate away the rights of the people for economic growth and development. We - NGOs (non-governmental organisations), civil society and professionals - have to ensure that the pulling back of the state, which comes with the market economy, does not mean its withering away.

Has the concept of public interest litigation in India helped implement human rights better and has it strengthened constitutional jurisprudence?

This is a very interesting question. In the few days I have been in India I have seen newspaper reports of Supreme Court rulings that concern me. In that context I would like to say that the voice of the Indian Supreme Court is important on social action litigation and the manner in which it has turned traditional human rights on its head, so to speak, particularly in its interpretation of the right to life in the traditional human rights sense of civil and political rights - the right not to be deprived of liberty - without due process of law. It has declared that the right to life is the right to live with human dignity. This does not so much as impose a negative responsibility on the state, which is included, but a positive obligation to realise rights. That is a huge contribution.

Thus, the first contribution is expanding the jurisprudence of rights to link our directive principles of social policy with the fundamental rights. That is not accidental. In India's Constitution, the bifurcation of rights and social policy is a concept that have gone into all South Asian constitutions - into Pakistan's, Sri Lanka's, Bangladesh's and Nepal's. As it goes, that reflects the earlier European definition of human rights that are Euro-centric and narrow. Even in Europe the earlier definition of social policy - health and education, rights, torture, detention and so on - has changed. What the Supreme Court did was to flesh out rights by bringing social policy into it. That jurisprudence of definition of rights has gone into other countries also.

Social action litigation has been a powerful voice. And particularly in today's context of the market, the Indian Supreme Court's voice on human rights is of deep significance for the whole region. I would like to see that nurtured and strengthened.

Should there be a universal standard of human rights or should there be standards specific to countries? Similarly, should there be a national concept of human rights without allowing for religious, cultural and ethnic differences?

To me, human rights cannot be relative. If human rights are about protection from oppression, or state accountability to people or human well-being, the human experience in terms of core needs - personal security, access to health, education, nutrition and all basic needs - is universal. This means that when we have a plural, legal tradition, the normative standards of the core human rights have to be universal - whatever the religion or background. For, culture and tradition are never time-fixed. They are always evolving. Societies and communities grow, and change.

This is powerfully demonstrated in the Asian experience. Today, what we have as culture and tradition - what we look at as pure - have been enormously transformed through our colonial experiences. For example, look at the status of the husband and the father. We say the husband-father is the natural guardian of his children. We accept that and say this is our culture. But where did it come from? We had communitarian tradition where the custody and guardian of the child was distributed over a whole range of actors. You never had a single nuclear family with one person as the head. There were uncles, aunts and so on. If the child could not get along with its family, then there was an aunt or a grandmother or somebody else who would take care of the child. Increasingly, we are becoming nuclear and family relationships, particularly of expatriates, are changing. We have taken this on and say it is culture and tradition. But this is not so.

There is no dichotomy between human rights, and culture and tradition. If you look at the right to religion, we say that freedom of conscience is a fundamental right. But the manifestations in our constitutions are subject to public order. This is why, for example, if somebody says that sati is part of the Hindu doctrine, we can say that it is a manifestation and hence subject to public good and you cannot have it. So, this idea of respect for pluralism has to be there.

What is the role of the government, the private sector, NGOs, civil society organisations and professional bodies in upholding human rights?

Originally, when we talked of human rights, the whole ideology was a doctrine, which was a breakthrough from the original idea of sovereignty.

Earlier, the international actors were the kings, all-powerful monarchs. That later became the sovereignty of the states. The state was able to say, `I can do whatever I want in my country, you have no business to ask'. Human rights made a breakthrough on that and qualified sovereignty by saying that if you ratified a treaty you came into the international community, voluntarily, and opened out the system. So you have the concept of human rights promoting that kind of accountability at the international level, which necessarily means that states are accountable.

Originally, again, it was a very statist approach, in which the state was accountable for violating human rights but the private company was not. Courts would say that if a company is private then it is not governed by fundamental rights. We say that the state is responsible for respecting and fulfilling human rights and, therefore, if the private actor does something wrong and the state is complicit in that, then the state is also liable on the basis of inaction. Now what are we doing? We are extending the ambit of human rights to cover the private sector.

The civil society, the NGOs and the professional bodies must become the articulate voice of the community to monitor the performance of the two basic actors - the state and the private sector. In a sense, they have to be the conscience of the nation. They have to be able to say that yes, you can go thus far but no further. The private sector cannot, for example, bargain the future of inter-generational rights because you want economic growth. That checks must come from the NGO sector.

The social indicators are excellent in Sri Lanka while human rights and child rights have a chequered history. Why has it been so?

Sri Lanka has had a chequered record on human rights. It has been basically a democratic country. We must really value that in South Asia, both India and Sri Lanka share the tradition of democracy. That original promise of independence, whatever said and done, has been retained in both countries. India has been vibrant and more powerful in the area of civil and political rights than Sri Lanka because we (Sri Lanka) have had several periods when the government backtracked, we have had our internal conflicts where there have been violations of human rights. Both in the south and in the north, we have been under international scrutiny and to that extent our track record has been chequered.

But over the years, because of internal, regional and local scrutiny, governments have been much more accountable on civil and political rights. For example, our army personnel have been prosecuted for violation of fundamental rights.

However, on the civil and political rights, particularly the fundamental rights jurisdiction, the courts have been important. On that score, we have benefited from the South Asian experience and activism. Local professionals have benefited from the Indian experience and they are monitoring the performance of the courts.

As for social and economic rights, however, we have had a long history - that goes back to 1943 - of recognising them. It is a combination of our political ethos, where our frontline leaders focussed on the social needs. So we put health and education in place. And what was good is that when we put education in place, the father of free education, who was a particular Minister, had this concept that free education means giving access not just to primary education but all the way up so that education becomes a strategy for upward social mobility and kindles aspirations for mobility in the low-income group. He said: "I will take education, which is the heritage of the rich, and make it the birth right of the poor."

It really worked that way. Even a stone-cutter's child could do a PhD and move up the social ladder within one generation. This was the case with women's health, family planning and so on.

But now our problem is in keeping that promise. There is concern that there has been a backtracking on health and education because of privatisation. But I think the government and NGOs are conscious of that.

I think the Buddhist tradition has also been egalitarian in its approach to social justice. That has also made a difference.

What role do you see for human rights in future?

I think there has been a crisis after Iraq. The United Nations feels we are repeating the experience of bilateralism. We, as NGOs or professionals, should retain our commitment for international and regional initiatives. That is critical. If we isolate ourselves from that, we weaken ourselves. We must also not fall into the trap of cynicism. Human rights have made a major breakthrough. But we have got to stay the course.