Courting Social Justice:

Judicial Enforcement of Social and Economic Rightsin the Developing World

Varun Gauri,Daniel M. Brinks,Editors

May 12, 2010

WDR 2004: Routes of accountability

Governance Systems: Actors, Capacities and Accountability

Political Actors & Institutions• Political Parties

• Competition, transparency

Executive-Central Govt

Service Delivery & Regulatory Agencies

Subnational Govt & Communities

Check & Balance

Institutions•

Parliament• Judiciary• Oversight

institutions

Civil Society & Private

Sector•Civil Society

Watchdogs•Media

•Business Associations

Cross-cutting Control Agencies (Finance, HR)

Citizen

s/Firm

s

Citizens/Firms

Cit

izen

s/F

irm

s

Citizens/Firms

Source: Sanjay Pradhan Outcomes: Services,

Regulations, Corruption

Reform Intended Goals Examples

I. Improve access to information

•Influence policy•Make providers accountable

•Right-to-information•Information campaigns•Score cards

II. Establish redress mechanisms

•Enable user ability to enforce standards/rights

•Administrative (e.g. ombudsmen)• Courts• Community oversight

III. Link provider pay to performance

•Focus teachers on learning• Focus doctors on quantity & quality of care

•Capitation grants to local governments•Merit pay for teachers•Health providers paid according outputs and outcomes•Third party auditing

Reform Strategies

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

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

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

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

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

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

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?

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

Sampling

Five countries Brazil India Indonesia Nigeria South Africa

Two sectors, principally Health Education

Sub-national jurisdictions and sub-sectors

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

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

Social and economic rights as claims to change rules governing behavior: A typology

State

Providers Recipients

Courts

Regulation Provision or Financing

Provider/recipient obligations

1. State Provision of Services to Recipients

2. State Regulation of Providers

3. Provider/recipient rights and duties

The Main Argument: Judicial “imperialism” and counter-majoritarianism are rare

The life-cycle of public-policy litigation:

1. Litigants place cases on the courts’ docket2. There is a judicial decision3. Bureaucrats, politicos, or private parties respond4. 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.

Legalization and the Logic of Judicial Decision Making

Cases Per 10 Million InhabitantsRio Grande do Sul (Brazil) 8930

Brazil 1250

South Africa 3

India 2

Nigeria 0.6

Indonesia 0.3

How much litigation, and what kinds?

Brazil

Indo’sia

S.Africa

Nigeria

India

Health Rights Cases in Brazil

ImpactREG

PROVOBLIG

0

23

23000

Brazil Health

Brazil Education

Health and Education Rights Cases in India, 1950-2006

ImpactREG

PROVOBLIG

2

230

23000

India Health

India Education

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

ImpactREG

PROVOBLIG

0

23

23000

South Africa Health

South Africa Ed-ucation

Education Rights Cases in Indonesia

ImpactREG

PROVOBLIG

0

23

23000

Indonesia Health

Indonesia Educa-tion

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

ImpactREG

PROVOBLIG

0

23

23000

Nigeria Health

Nigeria Education

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)

Collective and Individual Cases

Health Education

Individual Collective Individual Collective

Brazil 7248 141 237 56

India 61 91 93 19

S. Africa 3 8 2 9

Indonesia 3 4 0 5

Nigeria 9 3 12 3

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)

Health Education

Brazil 17 1

India 13,195 1,696

Indonesia 201 42,775

S Africa 521 51

Nigeria 8 309

Explanations 1: Demand-side factorsWho sues, and who doesn’t? CSO/NGO mobilization (Charles Epp)1. South Africa’s novel collective claims requires litigation-

oriented civil society2. Demand structure explains greater number of health

claims Maybe not1. But Brazil’s mobilization (with real budgetary impact) is

the result of individual uncoordinated actions2. India’s legal mobilization is large, even if litigation-

oriented civil society is not3. Litigation demand can generate support structure So overall – we do not think that a vibrant CSO

community is a necessary condition for litigation impact

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

Explanations 3: The ResponseWhat explains compliance? Dominant political orientation of the government

(Brazil and movemiento sanitarista)

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 Ministerio Publico administrative inquiries,

Indonesia Con Court ruling on education,

India and vehicular pollution)

→Accountability: responsibility, standards, penalties

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)

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

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

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

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

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

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

Access to legal services for poor

Likely to have limited impact acting alone Follow trail blazed by middle class plaintiffs

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

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.”

Courting Social Justice:

Judicial Enforcement of Social and Economic Rightsin the Developing World

Varun Gauri,Daniel M. Brinks,Editors

May 12, 2010

Legalization follows national models of welfare provision

ImpactREG

PROVOBLIG

0

23

23000

Brazil Health

Brazil Education

India Health

India Education

Indonesia Health

Indonesia Education

South Africa Health

South Africa Educa-tion

Nigeria Health

Nigeria Education

1

10

100

1000

10000

Nigeria Health

South Africa Health

Indonesia Health

India Health

Brazil Health

Impact