Oct 9, 2007, Varun Gauri
Are there reforms in institutional design that might make governments more accountable for failures to provide basic services and alleviate poverty? This topic has been the subject of an important debate in development economics, comparative politics, and development practice since the early 1990s, when governance became a priority for development. A principal means to increase accountability in democracies—judicial review—has received scant attention.
A new trend has gone almost unnoticed in development circles—courts are enforcing constitutionally incorporated economic and social rights. The Indonesian Constitutional Court has found the national budget unconstitutional for failing to meet education expenditure targets.
The South African Constitutional Court decision Grootboom, on the right to housing for impoverished squatters, raised the hopes of housing and anti-poverty activists worldwide. On several occasions, courts in Argentina have required the state to provide, or avoid interruptions in the provision of, essential medicines, such as a treatment for hemorrhagic fever.1
In Costa Rica, a Constitutional Court decision requiring the public health system to make antiretroviral treatment publicly available lowered AIDS mortality rates by as much as 80 percent.2 In India, the Supreme Court has found constitutional and judicially reviewable rights to housing, clean air, education, and health care, and against bonded labor.3
But are these judicial interventions meaningful for policy-making, or just window dressing? Does judicial involvement inevitably benefit those who are already better off, given that they have greater access to courts and legal resources? Do courts usurp the policy-making power of more representative branches of government?
What are the consequences of giving courts a more prominent role in economic and social policy making?
A forthcoming book, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, examines this question. Five country cases—Brazil, India, Indonesia, Nigeria and South Africa—each written by teams of lawyers and social scientists, explore the courts' involvement in the enforcement of social and economic rights in the areas of health and education.
Courting Social Justiceoffers the first systematic and comparative effort to document the impact of courts on policy making across the developing world.4 It elaborates and tests theories that might account for the varying levels of legalization across countries and policy areas and for the differential impact of legalization on the actual distribution of health care and education services.
How much legal mobilization for social and economic rights is there?
The number of health and education rights court cases per million people in the five countries shows Brazil has litigation rates orders of magnitude higher than the four comparator countries (see table below). Most of this discrepancy stems from pharmaceutical cases where the courts routinely award free and expensive medications to several thousands litigants each year.
Outside Brazil, social and economic rights cases in which courts order the government to provide a good or service to a plaintiff are not as common. More typical are cases demanding governmental regulation of privately or sub-nationally provided services, or changes in the legal obligations of private providers.
Number of health and education rights cases, per million population
*The states of Rio de Janeiro, Rio Grande do Sul, Goias, Bahia and Distrito Federal.
A closer look at cases within countries suggests that legalization of demands for economic and social rights may not be serving the interests of the poor
There are more cases in the South and Southeast of Brazil than in the Northeast and more in Delhi and the South of India than in the poorer BIMARU states (Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh). There are also more cases addressing university education, largely a middle class concern, than primary education.
Legal mobilization for social and economic rights is higher in some places but not others
Previous accounts have argued that a legal support structure, typically a public interest, civil society organization modeled on the American Civil Liberties Union in the United States, is indispensable.5 This book argues that a civil society support structure is not necessary. Most of the cases in Brazil, for example, are brought forward by private lawyers.
In some cases non-governmental organizations are strategic about not developing a legal support structure because the courts are hostile to their claims. Rather it’s the presence of judicial receptivity that seems to spur the formation of legal demand structures specific to the particular institutional and legal landscape in which litigants find themselves.
Legal strategies have had a direct impact on access to health and education services
The Indian Supreme Court played a critical role in the enforcement of air pollution regulations, which lowered respirable suspended particulate matter in the 1990s, and in the recent expansion of a mid-day meals program, which has increased school enrollments among girls.
The South African Constitutional Court issued rulings accelerating the roll-out of policies for both the prevention of maternal-to-child HIV transmission and treatment for AIDS patients.
Legal strategies can be direct, indirect, and have very different distributional impacts
An example of direct effects on litigants includes medications for mostly middle-class litigants in Brazil. An example of direct effects for non-litigants includes a new school policy that may benefit not only litigants but also other families enrolled in the school.
An example of an indirect effect internal to the legal system includes the early AIDS cases in Brazil which facilitated future cases on other diseases. Finally, an example of an indirect effect external to the legal system includes cases where the government generalizes a court decision by changing policy.
The number of people whose lives have been significantly affected by the legalization of demands for health and education rights by country, according to the type of case, has been relatively higher in Brazil, India, and South Africa than in Indonesia and Nigeria (see figures below).
Brazil is not the outlier it appears to be if one relies only on a count of cases because, in comparison to India and South Africa, it has a lower share of collective or class action cases, whose effects are felt much more widely than individual cases (see table above).
The data show that the effects of health cases dwarf the effects of education cases in all jurisdictions. Also, with the exception of health in Brazil and education in Indonesia, the impact of claims for direct government provision is lower than that of demands for regulation or changes in private obligations.
The indirect effects of court cases have more potential to benefit the poor, who generally do not have the resources to litigate themselves
The poor are more likely to benefit when they share the interests of the middle-class litigants (e.g., clean air, infectious diseases, and public hospitals) or collective claims are brought on their behalf.
This suggests that efforts to promote legal procedures to facilitate collective claims and universalize the particular policies adjudicated in courts—ala Brazil’s ação civil pública, India’s Public Interest Litigation, South Africa’s binding precedent, and Indonesia’s abstract challenges to legislation—will be more effective provided judges are receptive, or at least not hostile, to claims on behalf of the poor.
Legal strategies seem to be producing measurable impacts on access to health care and education, but questions remain about the distribution of those benefits and their impact on democracy and bureaucratic accountability.
VARUN GAURI is a Senior Economist in the Development Research Group (Human Development and Public Services Team). His research focuses on politics and governance in the social sectors, and aims to combine quantitative and qualitative methods in economics and social science research. His research interests include the impact of legal strategies to claim economic and social rights, and on the cross-country diffusion of development innovations.