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    HRS RESOLUTION 2007/2008

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    HUMAN RIGHTS SOCIETYFACULTY OF LAW, UNIVERSITY OF COLOMBO

    Colombo 03, Sri Lanka.

    [email protected].

    20.02.2008

    Publication of the HRS Resolution, 2007/2008

    We hereby declare and publish the Resolution, 2007/2008 titled The Failure of HumanRights Mechanism in the face of Liberal Market Economy and the Need for newDimensions of the Human Rights Society of the Faculty of Law, as was passed by itsExecutive Committee on 19th February 2008.

    President. Secretary.

    mailto:[email protected]:[email protected]
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    Forward

    ts the struggle of the people in the history and the present all around the world,

    their sweat and blood and tears that have been recognized as human rights in the

    charters of the universal acceptance and also in many other statutes of civilized

    countries. Human rights is the story of those people who suffer each day because of

    many forms of violence, pain, suffering, frustration, injustice, poverty and death. Its also

    the grave story of those who were brutally killed, tortured; its the story of those who

    were buried half alive, those of our sisters who were raped brutally by the military in

    front of their parents and lovers; of the children who were left abandoned destitute

    because of useless wars all around the world; of the people left alone like dust in the

    streets whose lives have no value for the rest of the humanity; Its also the story of the

    oppressor, the exploiter, the imperialist and the capitalist; of the disparities between

    the rich and the poor, the inequalities in each aspect of life- all these cry out loud of

    those who were deprived of their rights and freedoms throughout the world.

    What matters is not the black letter of the law, but what actually people experience and

    if the law doesnt provide for the needs, aspirations, justice and equality of the people

    the law either is to be interpreted to mean them or the law should be reformed

    fundamentally, and it should be practically guaranteed and implemented. The law doesnot come from the sky; it comes and must come from the earth.

    If the law reformers dont look around the world in its practicality, in the light of

    multidimensional perspectives, through various disciplines of social studies including

    sociology, history, politics, economics, and ethics its obvious that those law reforms

    would never adequately respond to the pressing problems of the humanity. Law is

    never something frozen at a far corner of the society but its of the pulse of the people,

    of their sweat, blood, tears and happiness. Thus the law is never without sensitivity,

    empathy, but its the very emblem of humanity, its life, its emotions and feelings. The

    law of Human rights has no exception, and its the very essence of it all. The mission of

    the Human Rights Society is thus founded on such vision and has embarked upon its

    way to bring forward some of the most important issues in the present world as per

    Human Rights. We are at a crucial juncture of the human history, as we, the HRS

    I

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    understand, and its time we probe into different dimensions and find multidimensional

    alternatives to the present rotten system to erase the human travails everywhere.

    Development, wellbeing of all, equality, justice and freedom of all should be practically

    guaranteed and a culture of love and wisdom should be brought in, for which full-scale

    discourses on the issue of rights of all people should be done all around.

    our intention to open it for criticism, discussion, dialogue, argument and discourse and

    never Thus, we, The Human Rights Society hereby establish its Resolution, 2007/2008.

    Its for debates. It is our desire to pinpoint some of the major issues in the sphere of

    human rights that are, as we think, not adequately addressed by the elite and the

    practitioners in our Country.

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    HUMAN RIGHTS SOCIETYFACULTY OF LAW, UNIVERSITY OF COLOMBO

    Colombo 03, Sri Lanka.

    [email protected].

    HRS RESOLUTION 2007/2008

    The Failure of Human Rights Mechanism in the face of Liberal Market Economy and

    the Need for new Dimensions.

    The Human Rights Society observes that all around the world the discourse on the theory of

    human rights is often directed only at the protection of civil and political rights. By contrastEconomic, social and cultural rights are presented as objectives of progressive realization or

    as simple aspirations for the future. This Resolution of our Society on the global Human

    Rights Mechanism with its substantive and procedural aspects, we thought, should focus

    everybodys attention to some of the salient aspects of the rights and freedoms that are

    basically ignored, not recognized or acted upon by the states, lawyers and activists.

    Our position as the Human Rights Society on this subject is basically based on the inevitable

    inter-relationship and interdependency existing between both groups of rights, which would

    guarantee that none of the said groups may have precedence over another. Thus, they must be

    viewed as an insurmountable whole.

    The Universal Declaration, in its article 22, clearly establishes that everyone, as a member

    of society, has the right to social security and is entitled to realization, through national effort

    and international cooperation and in accordance with the organization and resources of each

    State, of the economic, social and cultural rights indispensable for his dignity and the free

    development of his personality.

    The International Covenant for Economic, Social and Cultural Rights, on its part, establishes

    in its preamble that the standard of a free human being, liberated from fear and poverty

    cannot be achieved unless conditions shall be created that allow everyone to enjoy his

    economic, social and cultural rights, as well as his civil and political rights.

    mailto:[email protected]:[email protected]
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    We live in a world of enormous economic and social contrasts. The combined wealth of the

    top 300 people now exceeds the total annual income of the world's one billion poorest. The

    richest one-fifth own 85% of the world's wealth, while the poorest one-fifth control less than

    2%.

    The scale and nature of economic activities at the dawn of the 21st century create wealth

    unimagined by previous generations. Developments in telecommunications and digital

    technology mean that information and money can cross the globe with ease. However, half

    the world's population have never used a telephone, and 840 million are illiterate - two thirds

    of them women.

    Although the potential exists to create riches and distribute them around the world, chronicmass unemployment affects more than 820 million workers. Production and trade is

    dominated by giant transnational corporations like Exxon, Unilever, Shell and Microsoft.

    Assisted by their 'home' governments and states, and by the International Monetary Fund

    (IMF) and the World Bank, they strive to impose their monopoly across the world in the

    name of 'free trade' and globalization. Billions of dollars are spent on armaments each year,

    but resources cannot be found to eradicate poverty and diseases such as malaria. Throughout

    the developing countries one and a half billion people have no safe water supply, two and a

    half billion lack sanitation and hundreds of millions suffer from chronic malnutrition, while

    their governments are up to their necks in debt to Western banks.

    In the United States, resources can be found to explore space and even to militarize it. Yet at

    the same time, the stability of the life support system of our planet is under threat due to

    ozone depletion, the greenhouse effect, acid rain, deforestation, toxic wastes and the

    extinction of species.

    After a century of unprecedented social, national and international conflict, war still blights

    one part of the world after another. Aided by Britain and other NATO powers, the United

    States acts as policeman, judge, jury and executioner on behalf of the 'international

    community'. Countries that depart from the American line like Yugoslavia, Libya, Iraq and

    Sudan are invaded or bombed with no regard for human rights or international law. The

    division of the world by the major imperialist trading blocs of North America, the European

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    Union and Japan is increasing the danger of military conflict. The Cold War may be over, but

    the risk of nuclear annihilation still exists.

    We believe this crisis which grips the world is endemic to capitalism in its highest and most

    moribund stage, imperialism. Today poverty, unemployment, inequality of opportunities,

    wage exploitation are still part and parcel of all around the world and, the so called

    developed countries have no exception. In Britain, an industrialized, wealthy, imperialist

    state, the richest tenth of the population own half of Britain's wealth, while the poorest 50%

    own just 6% of it. Governments come and go, but the major economic decisions continue to

    be made in the boardrooms of the big financial institutions and monopoly corporations. At

    the stroke of a computer key, huge sums of money are moved out of Britain and around the

    world. Factories are shut down while investment is directed overseas, where wages are often

    lower and conditions worse. The Welfare State is put in jeopardy and hard-won gains are

    sacrificed, so that companies can remain profitable' in the global market place'.

    We have to ask some basic questions. Were the poor third world countries the same some

    hundreds of years back in the history? How was the system of dependency brought into those

    lands? While it should be accepted that human beings in total are equally entitled to benefits,

    wealth and resources of this earth, why has the unequal distribution of wealth caused the

    concentration of the wealth among a very few of the rich in the world? So is this the equality

    the world was aspiring to achieve more than 50 years ago when the Human Rights charters

    were adopted by the United Nations? What is the reason for the relative poverty existing in

    the so-called developed countries? Why do the liberal thinkers establish the Socioeconomic

    and cultural rights as mere soft law, just only being some rights to be realized in an

    uncertain future time? Is it because this very system of global market economy and liberal

    political system never pave the way for the equal distribution of wealth and the realization of

    those rights all around the globe? While the needs of all the people are the same why have

    they been made dependant upon ones income while the governments have been unable to

    provide for all the people the right to employment and fare wages? It is clear that theres not

    even the moral equality in this process. Have the governments affirmed or made systematic

    preparations for the people to climb up in the social ladder giving way to social mobility?

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    Today no liberal capitalist country has been able to reduce world poverty, unequal

    distribution of wealth which is the heritage of the whole mankind, the ever- widening gap

    between the rich and the poor, unemployment and infringement of the social, economic and

    cultural rights of the people. Statistics and facts from all around the world testify to this fact:

    In 2001- 2 the poorest 50 percent of the population in Britain owned only1 percent of the

    wealth, while the richest 5 per cent owned 57 per cent. One tenth of the population possessed

    nearly three quarters of the nations wealth. Twelve and a half million people were living in

    poverty (below 60% of average income) 22 percent of the population. Nearly a third (30 %

    per cent) of all children were living in poverty. And there were more children living in

    poverty than in any other European country, according to Eurostat, the European Unionstatistics agency.

    As well, income in Britain is also unequally distributed, with the richest fifth of income

    earners getting about 42 per cent of all income in 2001-2 more than twice their fair share if

    income were equally distributed, and more than the bottom three-fifths of income earners got

    between them. The poorest fifth got only about 8 per cent, just two-fifths of their fair share.

    Most of the rich live on unearned income from investments rather than from employment.

    The worlds richest 1 percent of people receive as much income as the poorest 57%.

    Throughout the world around 1.2 billion people are living on a dollar a day or less.

    Eight hundred and twenty-eight million people are moderately or severely

    malnourished.

    One-fifth of the worlds population are not expected to live beyond the age of 40.

    Nearly 1 billion people in the world are illiterate

    Easily preventable diseases, like pneumonia, diarrhea, malaria, and measles, kill

    nearly eleven million children under the age of 5 each year 30,000 every day.

    About 1.3 billion people lack safe water.

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    This is the naked inconvenient truth of this liberal capitalist socio-political and economic

    system and the situation in Sri Lanka except for the excuses for being still a third world

    country, according to western economic analysis, is not a difference:

    The UNDPs latest assessment of the Millennium Development Goals (MDGs) puts Sri

    Lanka among countries with the highest inequality in the Asian region. Sri Lanka ranks 4th

    among Asian countries showing high inequality, based on the Gini-index from 1990s to

    2000s. The report also notes that the number of people in Sri Lanka living on US$ 1 per day

    increased from 3.8% of the population in 1990, to 5.6% by 2002. The share of national

    income available to the poor also reduced while the rich got richer. The share of the poorest

    20% in national income shrank from 9% in 1990 to 7% in 2002. Nearly 30% of Sri Lankan

    children, in the age group of 3 months to 5 years, were underweight according to 2000 data.

    Meanwhile data from 2001 to 2003 show that on average, 22% of the entire population was

    undernourished.

    Sri Lanka does not have an equal distribution of wealth between the rich and the poor. The

    Richest obtain 42.8% of the total income, while the poor earns 8.0%. 45.4% of the population

    are living on less than $2 dollars a day and 25% of the country is considered impoverished.

    The problem is that the rich have all the wealth, which is a select few, while the majority of

    the country lives poor.

    Poverty means going short materially, socially and emotionally. It means spending less on

    food, on heating, and clothing than someone on an average income. But it is not what is

    spent that matters, but what isnt. Poverty means staying at home, often being bored, not

    seeing friends, not going out for a drink and not being able to take the children out for a trip

    or treat or a holiday. It means coping with the stresses of managing on a very little money,

    often for months or even years. It means having to withstand the onslaught of societys

    pressure to consume. It impinges on relationships with others and with yourself. Above all,

    poverty takes away the tools to build the blocks for the future- your life chances. It steals

    away the opportunity to have a life unmarked by sickness, a decent education, a secure home

    and a long retirement. It stops people being able to take control of their lives.

    : Carey Oppenheim, Poverty: The Facts (CPAG)

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    Simply poverty is gross deprivation and infringement of all rights of man. To abolish poverty

    and inequality would involve a widespread redistribution of wealth and income. This would

    mean the creation of improved social services, higher welfare benefits, and more and better-

    paid jobs, with the introduction of higher taxes on the rich to pay for these reforms.

    Equal access to justice is a right. But for majority of the people Justice is expensive that

    people have to buy justice for price. The process of Human Rights enforcement in this

    respect is never equal for all. The enormous expenses for the litigation process itself can not

    be born by an ordinary man. Thus free access to justice must be a right if the Human Rights

    Mechanism is to function equitably.

    The infringement of socio-economic rights also leads to the violation of Civil and Political

    Rights because they are all interconnected. The freedom of expression as a civil and political

    right is for many of the people not practicably realizable. The law is not addressing these

    practical issues preventing the full realization of the rights. Throughout the whole world its

    only a few rich capital owners who reap the fruits of this freedom simply because only they

    can afford to maintain the mass media including news papers, television and radio channels,

    thus the right of freedom of expression being a privilege of a rich few. And these capital

    owners decide which way the public opinion should go and thus even decide the Government

    of the people that should come to power. The right of freedom of expression has not granted

    many middle class state servants or the general working public the opportunity to express

    themselves. Who of those general people can afford to publish ones own creative writing? It

    should be pointed out that a root cause for many of the terrorist activities in the world lies in

    the fact of practical violation of the right to freedom of expression.

    Market economy:

    The argument of the right to free competition within this economic system is only just

    favoring for those who posses the wealth and power and in toto these competitors are just

    only the major capital owners and not any member of the middle class or the lower classes of

    the working people which consist of the majority of the population. So it is plain that this

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    right of free choice and competition in reality is just only a right which favors the exploiting

    haves, and not for the majority. Thus what all these depict is that the

    present system of laws is not properly addressing the actual social realities and are like from

    the sky.

    The foundation of liberal market economy lies in the unlimited private property rights and

    free competition. For this private property no limitation is laid as to property of the

    household, recourses and other means of mass production. It is obvious that it is

    fundamentally the unearned income that is amalgamated as surplus value, interest and profit

    among a rich few who own multinational corporations and even are able to purchase poor

    nations for price. The theories on surplus value describe how unpaid wage labor accumulatesas profit making the rich shareholders richer, while the condition of the employees is

    stagnating. But the system persists despite many human rights charters, bringing its profits

    for a few and starvation, malnutrition, poverty, inequality, underpayment, deprivation,

    underdevelopment and bare violation of their rights to the majority of the population of the

    world.

    Unbridled market capitalism leads to impoverishment of the majority thus depriving them of

    their rights, while a few are protected of their exclusive right to free competition, individual

    liberty.

    The market-friendly approach to the human rights:

    The construction of human rights as an instrument addressing adverse consequences of

    economic globalization is not self-evident. It may not even be the dominant trend to perceive

    of human rights in this way. It is perfectly possible through prioritization and selectivity- to

    construct a human rights theory that is fully compatible with or even supportive of economic

    globalization. International economic actors adopt this type of human rights discourse, and

    thus create distrust about the validity of human rights elsewhere.

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    The market-friendly approach to human rights prioritizes civil and political rights the only

    real human rights, so the argument goes, because they are only real rights. Aspects of civil

    and political rights are beneficial to a market economy. The rule of law, and independent

    judiciary, a government that is free from corruption, free flow of information and the

    opportunity of choice for the consumer etc., are all necessity to ensure the proper functioning

    of the market. They are necessary everywhere, regardless of cultural context. Womens

    rights, too, are useful to the extent that they allow women to sell their services on the same

    terms as men, but not if they demand state resources or require market regulation, as in

    mandating parental leave or subsidized day-care (Rittich 2001: 103). Economic, social and

    cultural rights may exist, but they are long-term aspirations, the relation of which is

    dependent on economic growth, which in turn will result from the choice of the free marketmodel. As long as the benefit of the psrocess have not trickled down to the poor there may be

    a need for the state to provide social safety-nets. There is no need to think about the human

    rights obligation of international economic organizations because this only complicates the

    operation of such organizations that have the potential to contribute to the realization of

    human rights as long as they are allowed to focus on their core business. If their politics

    somehow adversely touch on human rights, it is the domestic governments responsibility if it

    has ratified the relevant human rights treaties to take action. Companies that wish to accept

    social responsibility and engage in charity are to be congratulated, but no company should

    be obliged to do so. Monitoring of such politics should be left to the business community

    itself. Companies do not have human rights obligations. On the contrary: they are entitled to

    human rights protection. In any case, human rights should not become the cornerstone of

    international relations, i.e. the criterion against which every other rule is tasted. Human

    rights are not at the top of the hierarchy of international rules. They are a legitimate concern

    to the extent that they do not impede the proper functioning of the market.

    The difficulty with the market-friendly approach to human rights is that it accepts the logic of

    the exclusiveness of the market. Markets have winners and losers, and it is the ability of the

    winner to reap the benefits that the market seeks to protect. Losers are not entitled to

    rewards; otherwise competition does not make sense. Social justice is at the best a long-term

    objective that can be delayed indefinitely as long as the creation of the growth remains the

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    priority. Poverty needs to be contained, but will persist, if only because there will always be

    people that do not avail themselves of the opportunities the market offers. If the market is

    inclusive at all, it is in its encouragement to consume.

    The market-friendly approach is detrimental to the human rights project. If any prioritization

    needs to take place, the only priority human rights recognize is gravity of abuse. Those who

    win the market game are not usually those who suffer the gravest violations. It is the people

    whom the market feels entitled to marginalize that are most vulnerable to violations. Human

    rights, if taken seriously, prioritize those excluded by the market and thus condemned to

    living in abhorrent conditions, to a life no marketeer would wish to contemplate. Most

    importantly, human rights need to challenge the mechanisms on which exclusion is based.

    Inevitably, the conditions which expose people to human rights violations change. Today one

    of those conditions is economic globalization. Human rights need to respond to the change;

    not so much in terms of their substance, but in terms of the relationships they cover. The

    human rights regime is not old. It is growing up. Human rights must be a flexible, living

    instrument that can address new threats to human dignity, such as those flowing from

    economic globalization. Only then will they remain relevant.

    :Human Rights- Social Justice in the age of the Market: Koen De Feyter

    It should be point out in this context that, if it is not for a reform for state ownership of the

    means of production and industrial and agricultural development with strict mechanisms to

    check on the state and administrative functioning, at least a right based approach for market

    which is human rights-friendly, in contrast to market-friendly approach to human rights, is

    mandatory to the present world and for each country to realize the actual practice of securing

    all rights of the people.

    Inequality in Education:

    The free education system of the modern welfare state, it is said has given a great opportunity

    to those at the bottom of the social stratification to move up, but is that free education equal

    for all, so that it gives everybody equal opportunities to even compete?

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    Education is a right and does that not include the right of everybody to have higher education

    opportunities at any time in his life and in any field of interest and of use to mankind? So

    there could be hardly any restrictions, limitations, to the right to education and is that not

    bare infringement of this right to hold competitive examinations and select a very few to

    enter into universities?

    For instance in Sri Lanka, due to restricted facilities University admissions have become

    extremely competitive. Only 2% of the students who sit the A/L examination are admitted to

    the universities. So what about the rest who are left behind, have the governments secured

    their interests and the right to employment beyond any form of exploitation, deprivation, and

    being squandered. We, HRS hold that free, equal, unlimited and quality education is a rightof all, which the existing law should at least be interpreted to mean and should be practically

    guaranteed.

    Ken Browne in An Introduction to Sociology shows the status of social class inequality in

    education in England:

    Social class is one of the key factors that determine whether a child does well or badly at

    school. There are major differences between the levels of achievement of the working class

    and middle class and, in general, the higher the social class of the parents, the more

    successful a child will be in education. The degree of social class inequality in education

    begins in the primary school and becomes wider as children move through the education

    system, with the higher levels of the education system dominated by middle-class students.

    Elite Education and Elite Jobs:

    A public school education remains an essential qualification for the elite jobs in Society- that

    small number of jobs in the country which involve holding a great deal of power and

    privilege. Although only about 7 per cent of the population have attended independent

    schools (and public schools are only a proportion of these schools), many of the top positions

    in the Civil Service, the courts, the Church of England, industry, banking, and commerce are

    held by ex-public school pupils.

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    In many cases, even well-qualified candidates from comprehensive schools (comprehensive

    schools in Britain are those which accept pupils of all abilities. Comprehensive

    reorganization of secondary education was a further attempt to achieve equality of

    educational opportunity, and to overcome the basic unfairness and inequalities of the

    tripartite system introduced by the 1994 Education Act) will stand a poor chance of getting

    such jobs if competing with public school pupils. The route into the elite jobs is basically

    through a public school and Oxford and Cambridge universities (where about 50 per cent of

    students come from public Schools.

    This situation of inequality of education is just the same in Sri Lanka. The vide disparities

    between the rural schools and the schools of public repute testify to this fact. The students

    who pass the year 5 scholarship exam are admitted to so-called Public schools, and its aquestion why some schools are famous and others are not within a system of so-called

    equality. Its a sociological fact in Sri Lanka that the students from the areas far from the

    main cities get lesser opportunities provided by the system of free education itself, while

    those have become special privileges only for some.

    New dimensions:

    Recently UNDP outlined some of the required shifts in Human rights thinking:

    1) From the state-centered approaches to pluralist, multifactor approaches- with

    accountability not only for the state but for media, corporations, schools, families,

    communities and individuals.

    2) From the national to international and global accountabilities- and from the

    institutional obligations of the states to the responsibilities of global actors.

    3) From the focus on civil and political rights to a broader concern with all rights giving

    much attention to economic, social and cultural rights.

    4) From a punitive to a positive ethos in international pressure and assistance- from

    reliance on naming and shaming to positive support.

    5) From a focus on multiparty elections to the participation of all through inclusive

    models of democracy.

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    The Constitution of the Democratic Socialist Republic of Sri Lanka in its Chapter VI,

    provides the Directive Principles of State Policy and Fundamental Duties:

    27. (2) The State is pledged to establish in Sri Lanka a democratic socialist society, the

    objectives of which include:

    (a) the full realization of the fundamental rights and freedoms of all persons;

    (b) 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

    (c) the realization by all citizens of an 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

    (d) the rapid development of the whole country by means of public and private economic

    activity and by laws prescribing such planning and controls as may be expedient for

    directing and coordinating such public and private economic activity towards social

    objectives and the public weal;

    (e) the equitable distribution among all citizens of the material resources of the

    community and the social product, so as best to subserve the common good;

    (f) the establishment of a just social order in which the means of production, distribution

    and exchange are not concentrated and centralized in the State, State agencies or in the

    hands of a privileged few, but are dispersed among, and owned by, all the people of

    Sri Lanka;

    (g) raising the moral and cultural standards of the People, and ensuring the full

    development of human personality; and

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    (h) the complete eradication of illiteracy and the assurance to all persons of the right to

    universal and equal access to education at all levels.

    (6) The State shall ensure equality of opportunity to citizens, so that no citizen shall

    suffer any disability on the ground of race, religion, language, caste, sex, political opinion

    or occupation.

    (7) The State shall eliminate economic and social privilege and disparity, and the

    exploitation of man by man or by the state.

    (8) The State shall ensure that the operation of the economic system does not result in the

    concentration of wealth and the means of production to the common detriment.

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

    (13) The State shall promote with special care the interests of children and youth, so as to

    ensure their full development, physical, mental, moral, religious and social, and to protect

    them from exploitat ion and discriminat ion.

    It is true that Article 29 provides that the provisions of this Chapter do not confer or

    impose legal rights or obligations, and are not enforceable in any court or tribunal. But

    what is implied in itself is that they could and must be recognized as rights and it could

    be argued that time has ever been ripe for them to be recognized and practically

    guaranteed as rights of the people, and mechanisms established for them to be

    enforceable. The governments can never deviate from these responsibilities.

    The Human Rights Mechanism throughout the world seems to be a failure in all these

    respects. It is the same with our country too. We can conclude in this context that a new

    Human Rights Act for Sri Lanka issine qua non.

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    Bibliography:

    Books:

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