Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World

1. Courting Social Justice: Judicial Enforcement of Social and Economic Rightsin the Developing World Varun Gauri, Daniel M. Brinks, Editors May 12, 2010

2. WDR 2004: Routes of accountability

3. Governance Systems: Actors, Capacities and Accountability Citizens/Firms • Political Actors & Institutions • Political Parties • Competition, transparency Executive-Central Govt • Civil Society & Private Sector • Civil Society Watchdogs • Media • Business Associations • Check & Balance Institutions • Parliament • Judiciary • Oversight institutions Cross-cutting Control Agencies (Finance, HR) Citizens/Firms Citizens/Firms Service Delivery & Regulatory Agencies SubnationalGovt & Communities Outcomes: Services, Regulations, Corruption Source: Sanjay Pradhan Citizens/Firms

4. Reform Strategies

5. Courts and social change “A court’s contribution, then, is akin to officially recognizing the evolving state of affairs, more like the cutting of the ribbon on a new project than its construction.” Gerald Rosenberg 1991

6. Constitutional social and economic rights and markets “Some positive rights establish government interference with free markets as a constitutional obligation. For countries that are trying to create market economies, this is perverse.” Cass Sunstein 1993

7. Constitutional social and economic rights “Courts are ill-suited for the evaluation and making of the tradeoffs implied by many positive rights.” Frank Cross, 2001

8. Elite capture “The constitutionalization of rights is … evidence that the rhetoric of rights and judicial review has been appropriated by threatened elites to bolster their own position in the polity.” Ran Hirschl 2004

9. New approaches “All over the world, courts are developing principles to adjudicate claims that the government has failed to respect social and economic guarantees.” Cass Sunstein 2004

10. Judicial enforcement revisited “Weak-form judicial review can recognize social welfare rights in a way that has no larger implications for government budgets than do judicial decisions enforcing such first-generation rights as the right to free speech.” Mark Tushnet 2004

11. Empirical questions for our research • How much, and what kinds, of SE rights litigation do we see? • What explains legalization? • Who benefits from legalization? Direct and indirect beneficiaries? When does policy change arise? • What factors explain who benefits? • What is the contribution of courts to democratic governance?

12. SE Rights jurisprudence is now widespread, for example: • Colombia T-760 (2008), T-025 (2004) • Costa Rica Sala IV ruling lowered AIDS mortality 80% • Polish Constitutional Court invalidated eviction law that did not guarantee replacement housing • New York state and Kentucky apex courts directed legislatures to rewrite education budget and curriculum • Supreme Court of Philippines struck down a law deregulating energy prices • Egyptian administrative courts recently directed government to set a minimum wage

13. Sampling • Five countries • Brazil • India • Indonesia • Nigeria • South Africa • Two sectors, principally • Health • Education • Sub-national jurisdictions and sub-sectors

14. Illustrative cases from our sample • The right to health implies the right to: • receive medical treatment or medication at little or no cost • gain admission into a hospital emergency room irrespective of ability to pay or medical condition • expanded health programs for migrant workers • obtain civil damages for negligent substandard care • prosecute a criminally negligent provider • be informed regarding and have the power to withhold consent for a medical procedure • keep health records confidential • limit excessive pricing for medications • limit the length or extent of patent protection for medications • modify terms of private insurance contract • be released from prison to receive medical treatment • breathe free from pollutants in the environment

15. Illustrative cases from our sample • The right to education implies the right to: • require local or national government to spend more • require due process before expelling university students • challenge whether a school has sufficient infrastructure • limit the fees that schools can charge • challenge competency testing in a particular language • require schools to have functioning water or electricity • open private religiously affiliated schools • disallow corporal punishment in an independent school • require a public school to accommodate students with disabilities • allow the government to limit tuition increases in private schools

16. Provision or Financing Regulation Courts Provider/recipient obligations Social and economic rights as claims to change rules governing behavior: A typology State • State Provision of Services to Recipients • State Regulation of Providers • Provider/recipient rights and duties Providers Recipients

17. The Main Argument: Judicial “imperialism” and counter-majoritarianism are rare The life-cycle of public-policy litigation: • Litigants place cases on the courts’ docket • There is a judicial decision • Bureaucrats, politicos, or private parties respond • The original litigants, or others, follow up The product of this four-stage process is “legalization.” Each stage involves a choice by one or more strategic actors, who act in partial anticipation of the following stage.

18. Legalization and the Logic of Judicial Decision Making

19. Cases Per 10 Million Inhabitants

20. How much litigation, and what kinds? Nigeria Indo’sia S.Africa Brazil India

21. Health Rights Cases in Brazil

22. Impact

23. Health and Education Rights Cases in India, 1950-2006

24. Impact

25. Key SE Rights Cases in South Africa • Government of the Republic of South Africa v Grootboom, 2000 • Minister of Public Works v Kyalami Ridge Environmental Association, 2001 • Khosa v Minister of Social Development, 2004 • Mashavha v President of the RSA, 2004 • Minister of Public Health v TAC, 2002 • Interim Procurement, 2004 • Minister of Health v New Clicks, 2005 • Westville, 2006

26. Impact

27. Education Rights Cases in Indonesia

28. Impact

29. Key Health and Education Rights Cases in Nigeria • Adewole and Others v Alhaji Jakande and Others, 1981 • Archbishop Okogie and Other v Attorney General of Lagos State, 1981 • Mohammed Abacha v The State, 2005

30. Impact

31. Impact of Court Cases • Nigeria and Indonesia on one end; South Africa, India, and Brazil on the other • More health than education impact (except in Nigeria and Indonesia, which involve atypical cases) • Provision: a narrow remedy, as in Brazil, or a diaglogical rulings • Regulation: big potential impact, but enforcement can be difficult (industrial polluters in India); distrust of market mechanisms • Obligations:increasing in future • Legalization follows legislation(more public health spending in Brazil and S Africa and more provision cases as well; opposite in India, where more impact from regulation)

32. Collective and Individual Cases

33. The Distribution of Benefits: Ratio of indirect to direct beneficiaries • Direct beneficiaries: neither rich nor poor • Indirect beneficiaries: sometimes the poor • Policy area inequality (dialysis vs childhood diseases)

34. Explanations 1: Demand-side factorsWho sues, and who doesn’t? CSO/NGO mobilization (Charles Epp) South Africa’s novel collective claims requires litigation-oriented civil society Demand structure explains greater number of health claims Maybe not But Brazil’s mobilization (with real budgetary impact) is the result of individual uncoordinated actions India’s legal mobilization is large, even if litigation-oriented civil society is not Litigation demand can generate support structure So overall – we do not think that a vibrant CSO community is a necessary condition for litigation impact

35. Explanations 2: The supply sideWhy do courts support some claims and not others? Civil law versus common law not determinative Legal texts not determinative: sub-national differences, Nigeria versus India Judicial autonomy, which depends on the appointment process; need political and social autonomy Legislative framework and latent policy infrastructure So overall, we place significant emphasis on the judicial supply-side structure

36. Explanations 3: The ResponseWhat explains compliance? Dominant political orientation of the government (Brazil and movemientosanitarista) Well-organized claimant (TAC v Grootboom; right to food v right to education in India) Dialogical judicial rulings (South Africa Kate – a “dialogue” with provincial govts, Brazilian MinisterioPublico administrative inquiries, Indonesia Con Court ruling on education, India and vehicular pollution) →Accountability: responsibility, standards, penalties

37. The Role of Courts in Democracies • Removing “political obstacles” in systems “immune to political correction” • Sounding “fire alarms” in two ways • when the bureaucracy is not complying (allies are the political officials) • when policy change is needed (ally is the organized public)

38. Two summary analytic points • Justiciability of SE rights is not a question that should be posed in the abstract • The concerns associated with SE rights adjudication – imperial judges, runaway deficits, crumbling democratic faith – are bogeymen

39. Normative conclusions • Unlock procedural obstacles • Nonpartisan judicial appointments • Freedom of information laws • Judicial competence and specialized courts • Access to legal services for poor • Promote civil society litigants and autonomous public sector agencies • Focus on private obligations cases and horizontal application

40. Unlocking procedural obstacles • If you build it, they will come • PIL in India, similar petitions in Costa Rica Sala IV • Build court capacity to handle letter petitions • Journalistic partnerships

41. Nonpartisan judicial appointments • Judicial services commissions • Application of RTI to courts • Disclosure of judicial assets • Some autonomy to appoint own members

42. Right to information laws • Key effect of SE rights cases is to reveal and scrutinize hidden or obfuscatory information • Cost of CNG conversion, ARV rollout plan, grain stocks in famine

43. Judicial competence and specialized courts • New non-adversarial procedures • SE rights infuse civil cases, apply horizontally • Policy expertise • Maybe embed some of them in executive agencies or administrative law

44. Access to legal services for poor • Likely to have limited impact acting alone • Follow trail blazed by middle class plaintiffs

45. Civil society organizations and autonomous public sector agencies • Trail- blazing work in medications cases • Largest impact when joint consumption • Regulation cases crucial for poor • Legal and policy capacity of these organizations • Multi-faceted strategies and capacity • Regional strategies

46. Restraint against self-regard, narrow sympathies, and group divisions “The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vocal and audible the ideals that might be otherwise silenced, in giving them continuity of life and expression, in guiding and directing choice within the limits where choice ranges.”

47. Courting Social Justice: Judicial Enforcement of Social and Economic Rightsin the Developing World Varun Gauri, Daniel M. Brinks, Editors May 12, 2010

48. Legalization follows national models of welfare provision

49. Impact

50. Impact