Beyond Enforcement: Assessing and Enhancing Judicial Impact

Beyond Enforcement: Assessing and Enhancing Judicial Impact

Description

At approximately 2 p.m. on October 20, 2016, Justice Jorge Iván Palacio, a judge of the Constitutional Court of Colombia, approached the podium to open a remarkable public hearing in a remarkable place. The hearing was a continuation of the monitoring process of one of the most important rulings of one of the most activist courts regarding economic and social rights (ESR). In handing down this decision in 2008, the court ordered structural injunctions and undertook the long process of monitoring compliance with its orders, in order to address the structural causes of failures in the healthcare system. The hearing took place in Quibdó, on the Pacific Coast the capital of the poorest province of Colombia whose hospital was falling to pieces, as we had confirmed in a visit with the court the same day. In spite of the evidence that demonstrated how much was left to be done to fulfill the right to health, the hearing also made clear to all of us in attendance the impact that eight years of court intervention had had. The decision and monitoring process set off legislative and administrative reforms that substantially improved health services, as the minister of health recognized in his presentation. In addition, it placed the issue of health crisis at the center of media and public policy debate, as analysts and special masters appointed by the court for the case highlighted in our presentations, and as the presence of cameras and important media outlets in the event demonstrated. Also, the court managed to create a dialogue between diverse social and professional sectors involved in the health system, from doctors to patients and human rights nongovernmental organizations (NGOs), who presented themselves before the court during the long day. Although the Colombian Constitutional Court (CCC) in general, and its ruling on the right to health in particular, embodies an especially visible and ambitious form of judicial activism on ESR, the court’s actions can be viewed as part of a broader trend evident in other countries of the Global South, toward the judicial enforcement of such rights in contexts of stark deprivation and inequality. A variety of constitutionalism that has developed largely in the Global South expands the concept of human rights and the role of courts in protecting them, so as to include ESR alongside civil rights as justiciable legal provisions. Although initially raising doubts among scholars and advocates, such “Southern constitutionalism” has gradually been transnationalized. As evident in the chapters in this volume, numerous governments, courts, and NGOs in both the North and the South have promoted legal instruments, doctrines, and strategies to make ESR justiciable. In a reverse legal transplant, the idea of enforceable ESR has been embraced by some of its former critics and incorporated into debates in US and European constitutional theory. Among the best-known examples of this trend is the jurisprudence of India’s Supreme Court, which has addressed structural social problems such as hunger and illiteracy and has been accompanied by the appointment of commissioners that monitor the judgments’ implementation. Similarly, the South African Constitutional Court has become a central institutional forum for promoting rights such as housing and health and for nudging the state to take actions against the economic and social legacy of apartheid. In Latin America, judicial activism on ESR has become increasingly prominent over the past two decades. In countries as different as Brazil and Costa Rica, courts have decisively shaped the provision of fundamental social services such as healthcare. In Argentina, some courts have undertaken structural cases and experimented with public mechanisms to monitor the implementation of activist judgments such as Verbitsky (on prison overcrowding) and Riachuelo (on environmental degradation). In Colombia, a particularly activist and innovative constitutional court has stretched the limits of the civil law tradition by aggregating, on its own initiative, thousands of individual constitutional complaints (tutelas) on ESR violations and handing down collective rulings with long-term, structural injunctive remedies to attend to them. By declaring such situations as “unconstitutional state of affairs,” the Colombian Court has launched multiyear participatory processes to monitor compliance with its rulings on the rights of, among others, prisoners in overcrowded detention facilities, patients seeking treatments and medicines from the dysfunctional healthcare system, and millions internally displaced persons. The literature on the justiciability of ESR has multiplied apace with the proliferation of activist rulings. Two angles of analysis have dominated this scholarship. First, some key contributions have concentrated on making a theoretical case for the justiciability of ESR, in light of the demands of democratic theory and the reality of social contexts marked by deep economic and political inequalities. Second, a number of works have entered into discussion from the perspective of human rights doctrine, in order to give greater precision to judicial standards for upholding ESR, and to boost their utilization by judicial organs and supervisory bodies at both the national and international level. These perspectives have advanced considerably in the conceptual elucidation and practical impetus of the justiciability of ESR. Nevertheless, their emphasis on the production phase of judgments has created a blind spot, both analytical and practical: the implementation stage of rulings. For this reason, there is a paucity of systematic studies on the fate of judicial decisions on ESR rights such as the above-mentioned ruling of the CCC on the healthcare system. Beyond the courtroom, what happens to the orders contained in these judgments? To what extent do public officials adopt the conduct required by courts to protect a given ESR? What impact do the rulings have on the state, civil society, social movements, and public opinion? Ultimately, do they contribute to the realization of ESC rights? A budding area of scholarship seeks to tackle these questions. Some contributions to this literature have offered domestic or comparative quantitative assessments of the effects of ESR rulings. Others have zoomed in on rulings on a specific right – notably the right to health – in order to offer detailed comparisons of effects across jurisdictions. Yet others have surveyed national and international courts’ practice or detailed case studies to extract analytical conclusions on the implementation and efficacy of ESR rulings.

Source Publication

Social Rights Judgements and the Politics of Compliance: Making it Stick

Source Editors/Authors

Malcolm Langford, César Rodríguez-Garavito, Julieta Rossi

Publication Date

2017

Beyond Enforcement: Assessing and Enhancing Judicial Impact

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