Socio-Economic Rights Adjudication in Comparative Law

1. Socio-Economic Rights Adjudication in Comparative Law Malcolm Langford Norwegian Centre for Human Rights, University of Oslo

2. IV. Conditions for Improved Litigation Causes of ESC Rights Litigation ESC rights made legally justiciable Courts more accessible & open to ESC rights Civil society support structures Clear political failure to address problem

3. History of Judicial Review of Human Rights • Conservative origins: aim was to check parliamentary majorities and ‘popular irrational passions” that could disturb property rights (oneUS Founding Father) • The Supreme Court invalidated a swathe of socially/oriented legislation from the 1870s to the 1930s: e.g., Adkins v. Children’s Hospital (1923) • Post World War II prompted greater recongition of judicial poweres. But it was limited in Anglo-Saxon countries, Soviet countries and the judicary was compromised in many early decolonising states • Has been a remarkable global shift since the mid-1980s towards constitutional democracy.

4. Rise of ESC Rights Jurisprudence • Judicial review of ESC rights traditionally excluded under both pluralist and majoritarian democratic models and commmunist regimes • Why? Could be (i) scepticism to judicial review of human right or (ii) scepticism to social rights • Why the change? Strong global trend to constitutionalise, driven by (a) demand for accountability beyond elections and (b) acceptance of indivisibility of rights • Emerging jurisprudence began to indicate how concerns over democratic illegitimacy can be addressed.

5. A ... Litigation explosion? • Phenomenal growth in legal action invoking ESC rights: this section draw on Langford (2008) • Up to 500,000 cases world-wide but structure of litigation varies: jurisprudence concentrated in some regions/countries but slow diffusion in a middle group. • Early jurisprudence under expanded CP rights but rpaidly changing. • Optional protocols to ICESCR and CEDAW/ CRC/ CPRD may spur greater domestic litigation

8. Diverse jurisprudence • All ESC rights litigated somewhere, someplace. • All dimensions of duties covered somewhere: eg, respect, protect, horizontal, fulfil, equality and non-discrimination although extra-territorial obligations at infancy. • Jurisporudence has addressed concerns over vagueness and positive obligations and shown how competence and legitimacy conceerns can be addressed (but obviously debate continues) • Innovative access procedures and remedies for both strong enforcement and addressing legitimacy concerns (see Roach chapter) • Some issues: (a) Marked variance on doctrines, intensity of review and outcomes. (b) Remedies of different strength – always right choices? (c) Litigation on public sector duties often more successful than duty to regulate private sector or establish direct obligations of private sector but see Germany, Colombia and Canada.

9. Case Study: India • Sunil Batra v Delhi Administration case, 1978 SC 1675 “right to life was the ‘most precious human right’ and ‘must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may … enhance the dignity of the individual and the worth of the human person’” • Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802: Right to life includes rights to ‘adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and co-mingling with fellow human beings”

10. Municipal Council Ratlam v Vardhichand and ors, AIR 1980 SC 1622. (right to sanitation - ordered a municipality to fulfil its statutory duties to provide water, sanitation and drainage systems) • Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 (forced evictions but weak remedy) But highly varied outcomes, e,g.: • Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 at 696 (implementation of resettlement rights with dam construction dismissed: “‘when a decision is taken by the government after due consideration and full application of mind, the court is not to sit in appeal over such decision.’”)

12. Right to Food Case in India • People’s Union for Civil Liberties v. Union of India (2004) 8 SCALE 759 (right to food in starvation areas) • Child Malnutrition Rate of 46%: Double Sub-Saharan Africa... • Widespread reports of starvation deaths in 2000-01: Record procurement by FCI. • Buffer food grain stocks of Government were 66 million tonnes: 22 million tonnes was the buffer limit. India had four massive food-related programmes but many were not functioning well. • 55 Interim Orders so far; more than 500 affidavits; nearly 75 Interim Applications. See section 4.5 in Muralidhar chapter. • Case based on right to life and recongition of a right to food • Establishment of Commission for follow-up; can approach Court with new petitions.

13. Impact (Biraj Paitnik): • Universalisation of MDMS (120 million children get Mid Day Meals. • Universalisation of the Integrated Child Development services (ICDS) • Government to expand ICDS Centres to 1.4 million to cover 160 million children. • Central allocation of Old Age Pensions increased from Rs.75 to Rs.200 and coverage doubled to include all BPL old people abovethe age of 60. • Managed to restrict the lowering of the poverty line (and therefore BPL quotas by GoI) from 36% to 26% • Increased off-take of food-grains through TPDS for BPL and Antodaya families

14. Increased budgetary allocation for ICDS, NOAPS, MDMS & NMBS. • Sector Reforms in some States (PDS – Chhattisgarh) • Provided Civil Society an anchor to engage/confront the State and created spaces for civil society to engage in food/ employment programmes • • Brought the discourse on food rights to the centre-stage of governance in the States and GoI • Has been largely effective in provision of gratuitous relief (WB tea gardens, Assam SGRY misappropriation of funds, Chhattisgarh -MDMS) • Created the environment for the passage of the National Rural Employment Guarantee Act and now Food Security Bill

15. Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, Delhi High Court (2008) • This case was brought on behalf of Shanti Devi, a women living in poverty from a Scheduled Caste, after she died as the result of being refused adequate maternal healthcare despite the fact that she qualified for the free services under existing state-sponsored schemes. • In 2008, Shanti Devi was forced to carry a dead fetus in her womb for five days after being denied medical treatment at several hospitals because her husband was unable to show a valid ration card for medical services, despite being qualified for one as they lived below the poverty line. • On January 20, 2010, Shanti Devi died immediately after giving birth at home to a daughter who was two months premature without any medical attention. • The High Court of Dehli found that there was a failure to properly implement the pre and post natal services which should have been available to her. • They stated that it was inappropriate to place the burden on the poor to prove their eligibility for health services; rather government should be facilitating their access to these essential services.

16. Financial compensation and "red cards", which allow the claimant's surviving family to access health and nutrition services were awarded. • The Court also determined that the schemes themselves needed reformation: - that access to health services should be available across states; • that clarification be made regarding over-lapping provisions and gaps in the various schemes; • that the administration of these schemes be over-hauled; • that current recognition of a death-benefit for the "primary-breadwinner" be interpreted to include women who are homemakers; • and that additional data be gathered on the percentage of home deliveries to aid in the improvement of service provision. • Finally, the Court ordered the States of Haryana and Delhi to undertake corrective measures and institute monitoring policies to ensure the decision is implemented, including affidavits on compliance to be submitted 8 weeks from the date of the decision. 

17. Nepal Case Study Prakash Mani Sharma and Others (2008): The right to reproductive health requires effective protection and state must: • adopt the necessary laws and measures and create a satisfactory and conducive environment for fulfilment. • Prime Minister and the Office of the Council of Ministers must hold the necessary consultations with health experts and civil society representatives and draft a Bill and submit to the Parliament as soon as possible. • Ministry of Women, Children and Social Welfare and Ministry of Population and Health must prepare special work plans and to provide free consultation, treatment, health services and facilities to the aggrieved women and to set up various health centres and to initiate effective programs with the aim of raising public awareness on problems relating to reproductive health of women and the problem of uterus prolapse.

18. Obligation to respect • Supreme Court of Bangladesh: “the forcible taking away of sex workers and putting them into the …vagrant home… have been done without any lawful authority in derogation of their right to life or livelihood and contrary to the dignity or worth of the human person”Bangladesh Society for the Enforcement of Human Rights • In Aquino (2004), the Argentinean Supreme Court struck down a 1995 law which severely circumscribed worker’s compensation on the basis that it would violate a wide range of international standards, including the International Covenant on Economic, Social and Cultural Rights

19. A.S. v. Hungary, CEDAW Committee (2006) • A.S., a Hungarian woman of Roma origin, was taken to a public hospital because she was experiencing labor pains, her amniotic sac had ruptured, and she was hemorrhaging. • Upon admittance to the hospital, A.S. learned that she had miscarried and would have to undergo an emergency cesarean section. Minutes later, in a state of shock and dizzy from blood loss, • A.S. was on the operating table and was asked to sign a statement of consent to the cesarean. She didn’t know that the statement also contained an illegible handwritten note using the Latin word for sterilization. She learn she was sterilized during the surgery only later, when she asked the physician when she would be able to try to conceive again. • CEDAW Committee found violation: failure to obtain fully informed consent for a reproductive health procedure violates fundamental human rights. • Committee recommended both individual and general measures as reparation for the violation of A.S.’s rights but only part implementation. From Cabal-Philips (2012)

20. Obligation to Protect • In Maya Indigenous Communities of the Toledo District(2005), the Inter-American Commission found Belize had violated the rights of Maya people by granting logging and mining concessions without their consent and any consultation process (under their rights to equality and property). • In the Philippines case of Tatad v Secretary of the Department of Energy (1997),the Supreme Court struck down a deregulation law that would have permitted the three major oil companies to avoid seeking permission of the regulator to increase prices.

21. Horizontal obligations • In Colombia, the Constitutional Court found that the right to work was violated by an employer who dismissed an employee after being tested HIV-positive. The private institution was ordered to pay the applicant compensation for the damage caused (and the wider State obligations to protect persons with HIV was reaffirmed). • In the Slaight Communications case in Canada, the Supreme Court held that the decision of a private labour arbitrator must be in conformity with the Charter which is to be interpreted as far as possible with the right to work in the ICESCR.

22. Obligation to Fulfil • Approaches vary between a focus on ´minimums´ or progressivity • US state courts in Texas, Kentucky and New York have struck school financing systems on the grounds of failing to provide adequate or efficient education. • In Finland, local authorities were faulted for failing to take sufficient steps to secure employment for a job seeker or speedily find a child-care placement for a family • German Courts developed idea of minimum core: e.g. BVerfGE 99, 246 (259). • Swiss Federal Court adopted idea and derived an implied constitutional right to basic necessities and said that while it lacked the competence to determine resource allocation noted that it would set aside legislation if the outcome failed to meet the minimum claim required by constitutional rights. V v Einwohrnergemeine X • Progressivity approaches more apparent in South Africa and Argentina while all approaches applied in Colombia.

23. E.g: European Committee on Social Rights • More than 50 collective complaints on diverse issues. • Autism-Europe v. France No. 13/2002: • “The Committee recalls …. that the implementation of the Charter requires the State Parties to take not merely legal action but also practical action to give full effect to the rights…. When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources… • “In the case of autistic children and adults, notwithstanding a national debate going back more than twenty years about the number of persons concerned and the relevant strategies required, and even after the enactment of the Disabled Persons Policy Act of 30 June 1975, France has failed to achieve sufficient progress in advancing the provision of education for persons with autism.”

24. Non- Retrogression • The removal of legislative protections that require the Government to respect social rights: e.g. In Dunmore v Ontario, agricultural workers in Canada successfully challenged the repeal of legislation which contained certain guarantees for their freedom of association. • The removal of a government programme that enables individuals or groups to realise their social rights. E.g., in Portugal, government decisions to remove the National Health Service and increase the qualifying age of a minimum income benefit were found to be retrogressive steps violating the right to health and social security respectively. • See also jurisprudence in Hungary, Latvia and Germany.

25. Equality rights • Constitutionalisation of right to equal treatment has a longer but uneven history • Traditionally phrased in negative and formalistic terms but applied (eg Brown) • Increasingly open, leading to some substantive equality interpretations (eg Eldridge) • Non-retrogression: In Ms. L. R. et al v. Slovakia, where the UN Committee on the Elimination of Racial Discriminationfound racial discriminatory a resolution of a council annulling an earlier resolution providing for low-cost housing for Roma. • Prohibited grounds of discrimination multiplying (race and sex to include caste, disability, poverty )

26. Conflicts between Rights • Courts in France and Bangladesh found in conflict between freedom of expression and bans on tobacco advertising but Canada initially did: Cf. RJR-Macdonald Inc. v. Canada, [1994] • In Narmada Bachao Andolan v. Union of India (2000), the Court acknowledged that ‘conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water.’ However, majority of the Court deferred to the governments right to make policy. • How to balance? Principles of proportionality (in terms of harm caused and objectives of different policies), the weight of particular legal rights helps, the historical nature of the claims, the presence of discrimination of violation of a minimum core obligation and availability of alternatives. Can also devise creative remedies. • In N.D. Jayal v Union of India, the dissenting justice also argues that “When such social conflicts arise between the poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak.”

27. Africa?

28. Botswana • In the 2006 case of Sesana & Ors, the High Court had found that an indigenous San community had been wrongfully evicted from the Kalahari Game Reserve and unconstitutionally denied the right to hunting licences. • However, the community was denied permission to repair a bore hole for drinking water. • In Mosetlhanyane & Matsipane v. The Attorney General, the Court of Appeal unanimously held that the community had a statutory right, under the Water Act, as lawful occupiers of land to sink a borehole for domestic purposes. • However, the Court went further and agreed that the denial amounted to degrading treatment under the Constitution. • It also cited the the international consensus on the right to water as embodied in General Comment No. 15 of 2002 and the UN General Assembly’s formal recognition of the right in July 2010. • The Government was ordered to “refrain from inflicting degrading treatment” and orders were made to facilitate the community’s exercise of their right to rehabilitate the bore hole, albeit at their own expense.

29. Egypt • In Case No 2457/64, the Administrative Court found that a new decree for pricing of medicines violated the right to health in the African Charter on Human and People’s Rights, which is incorporated within Egyptian law, and the somewhat ill-defined “health security” of all Egyptians. • The new decree would fix the prices of patented and generic medicines in accordance with prices in the global market, which would lead to sharp increase in the price of many essential medicines. • In a second case, the Court held that the Government must set a minimum wage in line with rising prices of basic commodities. This upholds an earlier verdict which set the monthly minimum wage at 1,200 Egyptian pounds ($207 in U.S. dollars) for public and private sector employees.

30. Kenya • In Ayuma & Ors, the petitioners argued that the demolition of a private housing estate and evictions of its tenants for the purposes of commercial development violated social and civil rights included in the country’s new bill of rights. • Justice Musinga noted that the High Court must “strive to reach an appropriate balance” between the human rights of the residents and the property rights of the land owners, taking into account the constitutional requirement to adopt interpretations that “most favour the enforcement of a right” and promote the values of the Constitution. • After citing international standards on forced evictions and South African jurisprudence, the Court proceeded to order an injunction against eviction. • Likewise, the same judge ordered an injunction against eviction in Kariuki & Ors. v. The Town Clerk, Nairobi City Council & Ors. The residents had been living in informal settlements on a public road reserve and other land, in some case for up to four decades, but were given 24 hours to vacate.

31. In both cases, Justice Musinga critcised the Kenyan Government for failing to adopt national laws or guidelines that would regulate the process of eviction to ensure compliance with the Constitution and international law and standard.

32. Other International Jurisdictions • ILO (freedom of association jurisprudence) • Inter-American Commission and Court (expansion of right to life and property) • African Commission (SERAC, Purohit cases) • Human Rights Committee (equality and cultural rights) • CEDAW (positive rights in domestic violence)