The right to work means the right of everyone to the opportunity to gain his living by work while being able to choose employment without interference from the authorities. Forced work, in all its form, is rejected. The right deals exclusively with access to work, and hence persons who do not have access to work are the main concern. In spite of its great importance, the right to work itself is relatively little detailed and is not recognized by many countries. Much work has been done on ensuring the protection of right against discriminatory access to work, but not on the protection of right to work itself. Under Chapter III of the Sri Lankan Constitution, the fundamental human rights of the Sri Lankans that need to be protected are defined. Unfortunately, right to work or right to employment is nowhere to be seen defined as a fundamental human right under the Constitution. The rising unemployment would lead to the wake of financial crisis and therefore as a nation all the Sri Lankans might get affected. The right to employment influences every other human rights value. Mainly, it may deprive the unemployed citizens of their right to equality, since everybody may not be able to attain the same standard of living. Therefore, enshrining right to employment as a fundamental right may allow everybody to attain an adequate standard of living and equality among individuals. Accordingly, it can be submitted that recognizing the right to employment as a fundamental human right under a future constitution of Sri Lanka is essential for protecting other human rights and as well as forms an inseparable and inherent part of human dignity. Regrettably, the current Sri Lankan constitution does not recognize the right to employment as a fundamental human right.

1. Recognizing Rightto Workasa Fundamental Rightin a FutureConstitution of Sri
Lanka: Prospects and Challenges
by
Vishni Lakna Ganepola
Attorney-at-Law
LL.B(Hons) London, LL.M(London)
Introduction
The right to work means the right of everyone to the opportunity to gain his living by work1
while being able to choose employment without interference from the authorities. Forced
work, in all its form, is rejected.2 The right deals exclusively with access to work, and hence
persons who do not have access to work are the main concern. In spite of its great
importance, the right to work itself is relatively little detailed and is not recognized by many
countries. Much work has been done on ensuring the protection of right against
discriminatory access to work, but not on the protection of right to work itself.
Under Chapter III of the Sri Lankan Constitution, the fundamental human rights of the Sri
Lankans that need to be protected are defined. Unfortunately, right to work or right to
employment is nowhere to be seen defined as a fundamental human right under the
Constitution. The rising unemployment would lead to the wake of financial crisis and
therefore as a nation all the Sri Lankans might get affected. The right to employment
influences every other human rights value. Mainly, it may deprive the unemployed citizens of
their right to equality, since everybody may not be able to attain the same standard of living.
Therefore, enshrining right to employment as a fundamental right may allow everybody to
attain an adequate standard of living and equality among individuals.
Accordingly, it can be submitted that recognizing the right to employment as a fundamental
human right under a future constitution of Sri Lanka is essential for protecting other human
rights and as well as forms an inseparable and inherent part of human dignity. Regrettably,
the current Sri Lankan constitution does not recognize the right to employment as a
fundamental human right.
What is right to work?
Literature defines right to work in various approaches. However, the right to work is
guaranteed employment which emphasizes that everyone be given the opportunity to work
for a basic living wage so that the people can be put in a position to live their life with human
dignity.3
1 International Covenant on Economic, Social andCultural Rights 1948, Article 6
2 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard of
Achievement (Kluwer Law International,Netherlands 1999)
3
Sanjit Kr. Chakraborty,Right to Employment in India: A JurisprudentialApproach,
<http://ssrn.com/abstract=1996450> accessed 8th July 2016

2. Apart from guaranteed employment, the right also deals with the possibility of the individuals
to choose employment without interference from authorities. Accordingly, individuals must
be allowed to engage in professions of their desire, without any internal or external
interferences. However defined, the right’s main concern is access to productive
employment without being prevented from doing so.
Is the Fundamental Human Right to Work Internationally Recognized?
Before submitting recommendations to recognize right to work as a fundamental human
right under a future constitution, it should be considered whether the right is internationally
recognized.
Although there aren’t many sources identifying the fundamental human right to work,
Universal Declaration of Human Rights(UDHR) owes its origin for including provisions
pertaining to right to work. Article 23(1) of the declaration states;
“(1) Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.”4
The article establishes the right of every resident-not only citizens – to access the labour
market while it only implies free entry to the labour market for the individual.5
The Universal Declaration of Human Rights was adopted by the United Nations General
Assembly on 10 December 1948 at the Palais de Chaillot, Paris. Since almost every country in
the world is a party to the United Nations it can be submitted that the right to work is
internationally recognized.
International Covenant on Economic, Social and Cultural Rights 1948 adds provisions aimed
at creating a well-functioning and balanced market; these include vocational guidance,
employment services and guidelines to promote full employment6. Article 6 of the Covenant
states;
“1. The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which he
freely chooses or accepts, and will take appropriate steps to safeguard this right.7”
Words “The States Parties to the present Covenant recognize” indicate that the right shall be
recognized internationally.
4 Universal Declaration of Human Rights 1948,Article 23(1)
5 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard of
Achievement (Kluwer Law International,Netherlands 1999)
6 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard of
Achievement (Kluwer Law International,Netherlands 1999)
7 International Covenant on Economic, Social and Cultural Rights 1948,Article6

3. Apart from the above mentioned international treaties, few other international treaties such
as International Covenant on Civil and Political Rights, International Labour Organization
Convention No. 1228 and European Social Charter9 recognizes the right to work as a
fundamental human right in confirmation of the fact that right is internationally recognized.
Is Right to Work Recognized as a Fundamental Human Right under the Current Sri Lankan
Constitution?
There is no express provision in the Constitution of Sri Lanka which makes the right to work
an enforceable right. However, the evolution of human rights has sought to safeguard three
aspects of human existence: human integrity, freedom and equality under the constitution to
which the right to work might fit in.
As mentioned above, right to work is inseparable from the other fundamental human rights.
Sri Lankan Constitution recognizes certain fundamental human rights such as; freedom of
thought and conscience10, right to equality11 and freedom of speech, assembly, association,
occupation and movement12. Since the right to work is interrelated with other human rights
especially with freedom of occupation, it can be submitted that the Sri Lankan Constitution
indirectly recognizes right to work as a fundamental right. Whether right to work fits in rights
such as freedom of occupation and right to equality, is debatable. However, freedom of
occupation is the freedom to engage in any lawful occupation, profession, trade, business or
enterprise, not the right of the individuals for guaranteed employment.
Accordingly, it can be submitted that the Sri Lankan constitution does not expressly recognize
right to work as a fundamental human right. Therefore, even though the right to work can be
brought under the light of the recognized fundamental rights, those provisions might not be
able to bring out its true effect of the right.
What lead towards therecognition or non-recognition of right to work as a Fundamental
Human Right under the Current Sri Lankan Constitution?
As submitted, the fundamental right to work is not directly identified under the current
constitution of Sri Lanka while the indirect provisions which recognise the right do not
succeed in rendering the due justice to the effect of the right. Causes which lead the Sri
Lankan legislators towards not recognising the right shall be discussed below.
First, if the right to work is recognized under a constitution, the state need to undertake the
burden of providing a favourable environment for the unemployed to get an opportunity to
work with basic living wages to live with human dignity. Therefore, most of the governments
think that the recognition of the above right is an unnecessary burden.
8 International Labour Organization Convention No.122, Article1(2)
9 European Social Charter,Article1
10 Constitution of the Democratic SocialistRepublic of Sri Lanka,Article10
11 Constitution of the Democratic SocialistRepublic of Sri Lanka,Article12
12 Constitution of the Democratic SocialistRepublic of Sri Lanka,Article14

4. Further, as mentioned above much work has been done on ensuring the protection of right
against discriminatory access to work, but not on the protection of right to work itself.
Therefore, the countries only have a very vague idea about the importance of recognizing
right to work as a constitutional fundamental right. Another problem is the very
understanding of work. What is work? Is it restricted to only wage labour? Does it extend to
the activities of self-employed persons, to the economic activities of indigenous groups?
There is a need to define work and the right to work, taking into account the standards
formulated in the Covenants.
Through the recognition of right to employment the Sri Lankan economy will be able to
achieve many macro-economic goals such as reducing unemployment rate, increasing per
capita income and many more. However, after 30 years of war, Sri Lanka has been successful
in proceeding towards achieving those macro-economic goals by reducing its unemployment
rate to 4.6%13 and increasing its per capita GDP from Rs.65838 in 2000 to Rs.533398 in
201514, even without recognizing right to work as a constitutional fundamental right. Further,
access to the labour market is worthless if working conditions are not acceptable. Wages and
the working environment must rise to a certain level before the right to work has any real
meaning. At the time of compilation of the Constitution of Sri Lanka the working conditions of
Sri Lanka were not in an acceptable standard compared to today’s state of affairs. Therefore,
most of the responsible personnel are of the view that the recognition of the right is rather a
burden than a necessity.
Importance of Recognizing Right to Work as a Fundamental Human Right
Although the topic is barely discussed nationally as well as internationally, the recognition of
right to work constitutionally, is of utmost importance to a country’s political, economic as
well as social development.
Right to work can be regarded as a pre-requisite for protection against discrimination,
freedom of association and other economic and social rights of employees.15 Therefore,
recognition of right to work is substantial in order to ensure that right to equality, democracy
and freedom of assembly, association and occupation which are recognized under the
constitution of Sri Lanka, are protected. Further, salaried work has become the principle way
of distributing the national income among the members of society, and the political
significance of the right to work has therefore grown considerably.16 The distribution of
national income among members of the public is one of the most important mechanisms for
the allocation of purchasing power to the individual. Accordingly, through the recognition of
13 Central Bank of Sri Lanka, Annual Report 2015, PRICES, WAGES, EMPLOYMENT AND PRODUCTIVITY
14 Central Bank of Sri Lanka, Annual Report 2015, KEY ECONOMIC INDICATORS
15 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard
of Achievement (Kluwer Law International,Netherlands 1999)
16 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard
of Achievement (Kluwer Law International,Netherlands 1999)

5. right to work constitutionally, the state would be able to ensure a proper distribution of
national income among the public.
Further, state’s intervention on recognizing the right to work may well influence both
quantity of employment opportunities available17 and government’s expenditure on
unemployment benefits. This would lead toward the reducing the unemployment rate of the
country, thereby heading towards the increased GDP. Therefore, it can be submitted that
recognizing right to work may ensure that the country achieves economic development and
economic democracy. To the extent that economic survival is critically sustained by
employment it could be argued that the right to employment has the character of a
fundamental human right.
Since World War II, unemployment has apparently been viewed not only as a threat to the
existence of the individual, but also to democracy itself.18 If a person is not provided with the
opportunity of engaging in a profession of his will it shall indeed negatively affect his right to
democracy which illustrates the importance of recognizing the right.
Possible Negative Impacts of Recognizing Right to Work
Biggest fear which drives away the legislators from recognizing right to work as a
constitutional right is that it may put an unnecessary burden on the government. This may
appear as a drawback in recognizing the right, because even if the right is constitutionally
recognized by the government, it might not be able to provide each and every person with a
job opportunity. Especially, when Sri Lanka is considered, with the fact that Sri Lanka is a
developing country, the country doesn’t possess required facilities to provide each and every
citizen with a job opportunity.
The government is already struggling with finding solutions to provide employment
opportunities to unemployed graduates and Sri Lanka still experience an overall
unemployment rate of 4.6% and 9.2% unemployment rate in relation to citizens who have
passed G.C.E. A/L.19 Hence one would wonder how the government will manage the
consequences, if the right to work is constitutionally recognized.
Apart from the government, the judicial system will also have to face consequences as the
courts will be filled with applications from citizens struggling to enforce their right to work.
Examples from Selected Jurisdictions
Under the Constitution of India, right to work is recognized as a fundamental human right
stating;
17 Winston Nagan, Human Right and Employment (2009), < http://www.worldacademy.org/node/1643>
accessed 11th July 2016
18 Gudmundur Alfredsson and Asbjorn Eide (ed), Universal Declaration of Human Rights- A common standard
of Achievement (Kluwer Law International,Netherlands 1999)
19 Central Bank of Sri Lanka, Annual Report 2015, PRICES, WAGES, EMPLOYMENT AND PRODUCTIVITY

6. “The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work.”20
Article is not enforceable by courts, rather creates an aspirational "duty of the State to apply
these principles in making laws".21 Accordingly, the state shall make provisions for securing
the right to work within its economic capacity and development. Since within its economic
capacity the state is unable to ensure the provision of guaranteed employment to each and
every citizen and since the right is unenforceable in courts, India has succeeded in
recognizing the right avoiding the negative impacts of its application.
Socialist systems recognize the right to work as an obligation; the state may extract the work
that is socially and economically useful. For example, the Chinese Constitution declares that
the right to work is "a glorious duty of every able-bodied citizen.";
“Citizens of the People's Republic of China have the right as well as the duty to
work.”22
Accordingly, through various channels, the state has to create conditions for employment
while the citizens are obliged to approach their work. In a world where most of the countries
are reluctant in recognizing right to work in the fear of the burden of providing job
opportunities to the labour force, China has adopted the right in their constitution sharing
the burden between citizens and the state.
Further the South African Constitution recognizes right to work by prohibiting forced labor
without guaranteeing employment.23
Suggestions for Possible Law Reforms
If the right to work is to be constitutionally recognized as a fundamental human right going
by the strict application of the definition of right to work, the state will have to ensure that
each and every individual in the labour force be employed. There are many sceptics in
political circles as well as academic and scientific circles genuinely believing that full
employment is simply an unfeasible policy. It is very possible through initiating this discourse
with an assumption that a full employment society is a realistic prediction if there is a
plausible and wide-spread acceptance of the necessity of this in economic terms.24
However, the most suitable law reform in recognizing right to work under a future
constitution of Sri Lanka is adaptation of the method used by India in recognizing the right.
Accordingly, Sri Lanka can constitutionally recognize the right within its economic capacity
and development.
20 The Constitution of India,Article41
21 The Constitution of India,Artilce37
22 Constitution of the People’s Republic of China,Article42
23 Constitution of South Africa,Section 13
24 Winston Nagan, Human Right and Employment (2009),< http://www.worldacademy.org/node/1643>
accessed 11th July 2016

7. Yet, under the Indian Constitution the right is not enforceable by courts. The recognition of
the right shall be in vain since such reforms would not allow the individuals to enforce their
right in court. Since the flood gate consequences need to be avoided, a duty can be enforced
on the individuals to work whereby individuals shall be considerably reluctant in making their
applications to courts since they are also obliged to search and acquire the employment
opportunities.
Conclusion
The right to work emphasizes that everyone be given the opportunity to work for a basic
living wage allowing them to choose employment without any interference from authom
authorities. The right was originally recognized under the Universal Declaration of Human
Rights 1948 and subsequently under the International Covenant on Economic, Social and
Cultural Rights 1948, International Covenant on Civil and Political Rights 1966, International
Labour Organization Convention No.122 and European Social Charter 1965. Eventhough the
topic is less discussed internationally the most significant international law sources such as
UDHR 1948 has identified the worth of recognizing the right as a fundamental human right.
Once the Sri Lankan Constitution is taken into consideration, no provision explicitly
recognizes the right to work as a fundamental right. Since the protection of an individual’s
right to work is interrelated with the protection of other constitutional rights such as right to
equality, it can be submitted that the Sri Lankan Constitution indirectly recognizes the right to
work as a fundamental human right.
The fear of the states that the recognition of the right would compel them to undertake an
unnecessary burden, states’ lack of comprehension as to the importance of the recognition
of the right, Sri Lanka’s recent macro-economic goal achievements and the unavailability of
acceptable working conditions can be considered as the forces that lead towards the non-
recognition of the right under the Sri Lankan Constitution.
If the right is to be constitutionally recognized, it shall assist the state in ensuring the
protection of other fundamental rights while leading the state towards achieving economic
development and democracy. Eventhough the recognition of the right is of utmost
importance, certain insidious harms such as the burden on the state and the unavailability of
the required resources would discourage the state in proceeding. However, countries such as
India, China and South Africa have successfully taken steps towards recognizing the right to
work within its economic capacity and development while sharing the burden between state
and citizens by imposing an obligation upon the labour force to search and acquire
employment opportunities.

8. Bibliography
 The Constitution of India
 The Constitution of the Democratic Socialist Republic of Sri Lanka
 The Constitution of the People’s Republic of China
 The Constitution of South Africa
 European Social Charter
 International Covenant on Economic, Social and Cultural Rights 1948
 International Labour Organization Convention No.122
 Universal Declaration of Human Rights 1948
 Slade D. B. E. and others, “Tolley’s Employment Handbook”, (29th edition, LexisNexis,
2015)
 Alfredsson G. and Eide A.(ed), “Universal Declaration of Human Rights- A common
standard of Achievement”, (Kluwer Law International, Netherlands 1999)
 Chakraborty S. K., “Right to Employment in India: A Jurisprudential Approach”,
<http://ssrn.com/abstract=1996450> accessed 8th July 2016
 Nagan W., “Human Right and Employment” (2009), <
http://www.worldacademy.org/node/1643> accessed 11th July 2016
 Philip K., “Towards a right to work: The rationale for an employment guarantee in
South Africa”, <http://www.plaas.org.za/sites/default/files/publications-pdf/philip.pdf
> accessed 12th July 2016
 Central Bank of Sri Lanka, Annual Report 2015
 <http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module10.htm> accessed
10th July 2016