TRANSFORMING LEGAL CULTURE TO ENSURE THE EFFECTIVE JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS
Sandra Liebenberg
Advanced Course in International Protection of Human Rights
Åbo Akademi Institute for Human Rights, Åbo/Turku
15 August 2007
Introduction
The last two decades have seen a marked upsurge in attention at international and national levels to socio-economic rights. This attention has spanning the spheres of international law, development policy and economics[1], and domestic constitutional law. It is manifest in the increasing number of international human rights treaties providing for individual or collective complaints procedures culminating in the current drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. It is also manifest in the rapidly expanding body of international and comparative constitutional jurisprudence developing on these rights.[2] In many senses these rights represent an idea whose time has come.
This development is occurring in a context in which neoliberal economic ideas are highly influential on the global stage.[3] Many developing post-colonial states in Africa have had to cut back on important social programmes in spheres such as health and education under pressure from World-Bank structural adjustment policies. In addition, the global economy they face the global demands of trade liberalization, deregulation of corporate activities and privatization of many formerly public goods and services. As a result may people are marginalized from full participation in society, and do not enjoy access to resources and basic social services.
In this context socio-economic rights keep alive the hope of preserving some sphere of social protection and provisioning as a basis for preserving the dignity freedom of people, and some measure of equality between them. These values lie at the centre of internationally protected human rights – whether civil or political or economic, social and cultural.[4]The increasing prominence of economic, social and cultural rights as justiciable legal rights is prompting many developed and developing countries to consider how these rights should be integrated and taken more seriously in their domestic legal orders.
However, if socio-economic rights are to fulfil this potential, they need to be embedded within a transformed conception of law and its relation to social change. In order to respond to the persistent obstacles which continue to hamper the effective enforcement of socio-economic rights, we need to revisit some of the traditional concepts of our legal cultures which inhibit the effective enforcement of socio-economic rights.
In this paper I explore how such a transformed concept of legal doctrines in the sphere of the constitutional review can contribute to the more effective enforcement of socio-economic rights. I will focus mainly on the constitutional jurisprudence of developing countries (because this is what I have been asked to focus on), but it also has implications for the enforcement of internationally protected socio-economic rights by treaty bodies.
Transformative constitutionalism
The South African Constitution is perhaps the Constitution most prominently and consistently described as a ‘transformative Constitution’.[5] This concept implies that the Constitution and its normative commitments to human rights and democracy should facilitate a process of social change aimed at ensuring the effective realization of all rights and freedoms. According to Karl Klare, transformative constitutionalism “connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.” Siri Gloppen defines social transformation “as the altering of structured inequalities and power relations in society in ways that reduce the weight of morally irrelevant circumstances, such as socio-economic status/class, gender, race, religion or social orientation.”[6]
The inclusion of justiciable socio-economic rights in the South African Constitution is viewed as a critical component of a transformed legal and political order. Thus in the case of Soobramoney v Minister of Health, Kwa-Zulu-Natal the former Chief Justice, Arthur Chaskalson wrote:
We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.[7]
The inclusion of socio-economic rights in the Constitutions of a number of post-independent developing countries[8] reflects the aspiration for a more just order in which the poor have increased access to social services and economic resources and opportunities. For example, the rise of public interest litigation in India in the socio-economic sphere occurred in the context of renewed judicial activism following the internal state of emergency in India between 1975 and 1977, and the crisis of legitimacy experienced in state institutions, including the judiciary. In order to facilitate greater access to justice by disadvantaged and marginalised groups the judiciary developed the mechanism of public interest litigation.[9] The rules of standing and procedure were substantially relaxed, and ‘litigants were freed from the stranglehold of formal law and lawyering.’[10] Similarly the inclusion of the ‘social state principle’ in German Constitutional law signalled the extensive social reconstruction needed in Germany after the War and the constitutional purpose of supporting such efforts.[11] The German Basic Law does not contain a range of express socio-economic rights, but this principle has been relied on to uphold regulatory legislation aimed at protecting people’s access to social goods and services.[12] One can even argue that it is inherent in any legal system which acknowledges fundamental human rights and the values of human dignity, freedom and equality on which they are based.
However, particularly in countries which share the Anglo-American heritage, there are deeply rooted features of the legal culture that can inhibit innovative judicial responses to socio-economic rights claims.[13]
I will talk about examine four major constraints which inhibit the development of a transformative jurisprudence on socio-economic rights. These are:
(1)The idea that civil and political rights, on the one hand, and socio-economic rights on the other, are categorically different, and must be treated as such in developing human rights jurisprudence;
(2)the dichotomy between negative and positive rights;
(3) the public / private divide; and
(4)The separation of powers doctrine.
I will suggest that there are alternative conceptions of these major features of liberal legal culture which will enable the more effective enforcement of socio-economic rights.
An interdependent conception of human rights
A major factor militating against socio-economic rights being taken seriously as justiciable, legal rights in international law has been their historical compartementalisation in separate instruments, and the lack of individual complaints mechanisms. This situation is replicated in domestic constitutional law with domestic constitutions – such as those of the US and Canada – containing no express protection of socio-economic rights or very limited protection e.g. through minority language rights in the Canadian Constitution. Alternatively, socio-economic rights are relegated to the status of Directive Principles of State Policy in separate chapters of the Constitution and expressly declared to be non-justiciable. This is the model followed in respect of the Indian Constitution, Irish Constitution and many post-independent African Constitutions such as the Nambian and Ghanaian Constitutions (Nigeria?).
As we discussed on Monday, and the UN Committee on ESCR has pointed in General Comment No. 9, this marginalisation of socio-economic rights within international and constitutional law results in the values and interests protected by these rights receiving diminished legal protection.
Rhetorically, however, and with increasing practical recognition since the Vienna Declaration and Programme of Action in 1993, there has been a recognition within international human rights law of the interdependence and interrelatedness of rights.[14]The insight of this understanding of the interdependence of human rights norms is that ‘values seen as directly related to the full development of personhood cannot be protected and nurtured in isolation.’[15]
As I discussed with you on Monday, Craig Scott distinguishes between two senses of interdependence in human rights law: ‘organic’ and ‘related interdependence.’[16]
Organic interdependence arises when the jurisprudence treats one right as incorporated within the scope of another right. A good example of this is Indian constitutional jurisprudence. Thus the Indian Supreme Court has drawn on the formally unenforceable Directive Principles in Part IV of the Constitution[17] to infuse the right to life in article 21 of the Constitution with substantive content.[18] Thus the right to life has been interpreted to incorporate the basic necessities of life such as adequate nutrition, clothing, reading facilities,[19] the right to a livelihood,[20] the right to shelter,[21] the right to health care,[22] and the right to education.[23]In the celebrated ‘pavement-dwellers’ case of Olga Tellis v BombayMunicipal Corporation,[24] the Court held that the eviction of impoverished pavement dwellers by the Bombay Municipal Corporation would have the effect of depriving them of their right to a livelihood. The latter was recognised in the Directive Principles of State Policy in articles 39(a) and 41,[25] and these Directives informed the interpretation of the right to life in article 21. However, the Court held that this did not imply that the State could be positively compelled to provide an adequate means of livelihood or work to its citizens.[26] Instead it created a basis for negative review in the sense that persons could not be deprived of their livelihoods without a just and fair procedure established by law. Article 21 of the Constitution is formulated as a negative guarantee: ‘No person shall be deprived of his life or personal liberty except according to the/a procedure established by law. The Court held that the procedure prescribed by law for the deprivation of rights ‘must be fair, just and reasonable.’[27] The Court interpreted the relevant statutory provisions, authorising the municipal Commissioner to remove encroachments on pavements, to require the provision of a hearing to the pavement dwellers even though the relevant statutory provision expressly authorised the removal of encroachments without notice.[28] Although the Court ultimately upheld the right of the Commissioner to remove the pavement dwellers, it gave positive directions regarding the postponement of the evictions until after the monsoon season, and the relocation of those pavement dwellers in respect of whom there had been a previous undertaking to provide alternative accommodation.[29]Since then the Indian Supreme Court has developed a large body of jurisprudence in which it has imposed positive duties on the State to provide or to facilitate access to the various socio-economic rights it has incorporated within the scope of the right to life.
Related interdependence involves the question of whether a civil and political right, for example, the right to a fair hearing or equality rights can be applied to protect a socio-economic right such as the right to social security. In this case, the two sets of rights are treated as separate but complementary.[30] There are many examples of this under the European Convention on Human Rights[31] and under the International Covenant on Civil and Political Rights.[32]A good example in the Canadian context is the case of Eldridge v Attorney General, British Columbia in which the Supreme Court held that the failure by the provincial government to make provision for sign language interpretation for deaf patients as part of publicly funded health care services breached the guarantee of equality in section 15 of the Canadian Charter.
However, even Constitutions that expressly incorporate socio-economic rights must give practical effect to the principle of interdependence in their jurisprudence if it is not simply to be an empty rhetorical phrase.The emerging constitutional jurisprudence of Columbia is a good example of an integrated approach to the adjudication of civil and political rights and economic, social and cultural rights. The 1991 Columbian Constitution also describes Columbia as a ‘social state’ (estado social) is the 1991 Columbian Constitution.[33] Magdalena Sepúlveda summarises the Columbian Constitutional Court’s interpretation of this principle as follows:[34]
According to the Court, respect for this principle imposes on all authorities the duty to take steps to address social inequalities, to facilitate the inclusion and participation of the population in the economic and social life of the nation and to stimulate the progressive improvement of the material conditions of existence of marginalised sectors of society.
The social state principle in conjunction with a range of explicitly protected social and economic rights[35] have given rise to a remarkably rich jurisprudence on socio-economic rights by the Columbian Constitutional Court.[36] A literal interpretation of the Constitution would suggest recourse to the Courts only in respect of the traditional civil and political rights in the Constitution. However, the Court has drawn on the social state principle and a purposive interpretation of the relevant provisions to grant relief in respect of socio-economic rights through the writ of protection (‘acción de tutela) mechanism in article 86 of the Constitution. Thus the Court has granted relief in cases where the violation of socio-economic rights will affect the enjoyment of fundamental civil and political rights such as the right to life, personal integrity or dignity,[37] when groups do not experience the minimum conditions for a dignified life, or when it identifies a so-called ‘unconstitutional state of affairs.’ The latter situation arises when, through its consideration of individual cases, the Court identifies a pattern of systemic violations of human rights. In these circumstances, the Court does not confine its relief to the individual petitioners, but orders the State authorities to take comprehensive measures to redress the violations, including the adoption and implementation of plans of action.[38]
TheSouth African Constitutional Constitutional Court explains the implications of the mutual interdependence between civil and political rights and social and economic rights as follows in the landmark Grootboom decision:
‘Our Constitution entrenches both civil and political rights and economic social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing and shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights in chapter 2. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.’[39]
QUESTION FOR DISCUSSION: WHAT ARE THE PRACTICAL IMPLICATIONS OF THE PRINCIPLE OF INTERDEPENDENCE AND INTERRELATENDESS OF HUMAN RIGHTS FOR THE INTERPRETATION OF BOTH SETS OF RIGHTS – I.E. CIVIL & POLITICAL RIGHTS & ECONOMIC, SOCIAL AND CULTURAL RIGHTS?
Transcending the negative/positive rights dichotomy
The distinction between civil and political rights on the other hand, and economic, social and cultural rights on the other, has traditionally been premised on the fiction that civil and political rights exclusively impose obligations of restraint and non-interference with people’s liberties on the State (so-called ‘negative’ obligations) while economic, social and cultural rights impose ‘positive’ duties on the State to secure the necessities of life to all.[40] Flowing from the perception of civil and political rights imposing only duties of restraint on the State, is the notion that they are politically neutral in that they do not involve judges prescribing to the democratically elected legislature on questions of policy, nor do they entail imposing obligations on government which have resource implications.[41] By contrast economic and social rights are perceived to be resource intensive, and to involve the judiciary in the illegitimate project of prescribing to the democratically elected legislature and the executive on matters of socio-economic policy.
Scholars have consistently demonstrated that the classic distinctions between civil and political rights, on the one hand, and economic, social and cultural rights, on the other, are based on a fiction.[42]As we saw on Monday, the typology of “respect, protect, promote and fulfil” which is increasingly relied on by treaty bodies is intended to demonstrate that both sets of rights impose a combination of negative and positive duties on the State.
Civil and political rights such as the right to vote, the right to a fair trial and equality rights have resource and policy implications for the State. Conversely, the effective protection of socio-economic rights sometimes entails imposing a duty on the State not to interfere in people’s existing access to socio-economic resources.[43] An example of this is the South African Constitutional Court’s decision in Jaftha The Court’s decision in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (‘Jaftha’).[44] This case involved a challenge to the constitutionality of provisions of the Magistrates’ Court Act that permitted the sale in execution of people’s homes in order to satisfy (sometimes trifling) debts. The two applicants, both women of meagre means, owned homes that had been acquired through the assistance of state subsidies. When they fell in arrears in respect of very minor debts (e.g. the purchase of vegetables), a judgment was obtained against them and their homes were ultimately sold in execution. The effect of such sales-in-execution would be the eviction of people from their homes. It was also common cause, that if the applicants were evicted, they would have no suitable alternative accommodation.[45]