Judicial Interpretation of Social Rights: the Rights to Education, Health, and Housing in Brazil and South Africa

Judicial Interpretation of Social Rights: The Rights to Education, Health, and Housing in Brazil and South Africa

Evan Rosevear

A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Political Science University of Toronto

Evan Rosevear

Doctor of Philosophy

Department of Political Science University of Toronto

2021 Abstract This work examines how legal education, the organization of the legal profession, and the structure of the judiciary shape and reproduce jurisdiction-specific judicial logics of appropriateness—judicial cultures—in Brazil and South Africa and the impact of the jurisdiction-specific judicial cultures on the interpretation of constitutionalized social rights. I argue that variation in the pre-existing judicial culture of the two countries is key to explaining their different interpretations of the rights to education, health, and housing entrenched in both of their constitutions. My findings suggest that social rights jurisprudence tends toward one of two ideal types. Countries with a diffuse system of judicial review, a large and relative inexperienced judiciary, and an approach to legal reasoning emphasizing theoretical consistency with a limited role for stare decisis will tend to develop an individualized social rights jurisprudence that focuses on remedying specific harms suffered by individuals. In contrast, countries with a more centralized system of judicial review, characterized by a small number of experienced judges operating in a system which has a strong adherence to stare decisis, will develop a more policy-oriented social rights jurisprudence that emphasizes the importance of addressing structural problems faced by groups or classes of people.

Acknowledgments An endeavour such as this is often solitary, but it is not one that is completed alone. I wish to express my deepest thanks to my partner, Aleksandra Bergier, my family, Evelyn, Kenneth, and Jean-Paul Rosevear, and Hobbes, for their patience, support, and occasional uplifting mockery. I am deeply indebted to my supervisor, Ran Hirschl, for his advice, superlatives, and patience. I owe much to Courtney Jung for, among other things, giving me the opportunity to delve so deeply into the world’s constitutions. My thanks also go to Patrick Macklem for his thoughtful consideration and criticism and to David Landau for serving as External Examiner. During the course of my doctoral and legal studies, I benefitted greatly from the mentorship, advice, and example of Michael Trebilcock, Mariana Prado, Markus Dubber, Grace Skogstad, Catherine Valcke, Richard Simeon, and Malcolm Langford. And, I would be remiss if I did not recognize the vital role played by Carolynn Branton in keeping things on the rails during my longer than intended tenure in the Department. While conducting research for this project, I incurred many debts of gratitude as well as, I hope, managing to make a few new friends. During my time in Brazil, I was fortunate to enjoy the support of FGV Direito-Rio. My time there was made possible, productive, and enjoyable by Joaquim Falcão, Ivar A.M. Hartman, Diego Werneck Arguelhes, Eduardo Jordão, Fernando Fontainha, Daniel Vargas, Danielle Borges, Pedro Cantisano, Kellen Trilha, Jamila Venturini, Elena Aydos, Thomaz Pereira, Davide Manzo, and Javier Silva Rojas. Thiago Filippo, Nicole Julie Fobe, and Fábio Tomkowski provided able research and translation assistance. While in South Africa I was productively hosted by David Bilchitz at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and enjoyed the hospitality of Andy Martin. During the 2015/16 academic year I received the generous support of the Lupina Foundation. I also wish to thank everyone who volunteered their time to be interviewed and, in particular, Ingo Wolfgang Sarlet and Johan de Waal who not only gave their own time but proved invaluable in convincing their colleagues to do so as well. Finally, my thanks go to my colleagues and friends Andrew McDougall, Abouzar Nasirzadeh, Joseph Mackay, Aarie Glas, Ching Fang Hsu, Lindsay Mahon, Heather Millar, Milena Pandy, Lincoln Rathnam, Anne Staver, Paul Thomas, Hamish van der Ven, Michael Youash for reasons too numerous and/or colorful to list. All errors, of course, remain my own. iii

Table of Contents

List of Figures ...... v Abbreviations ...... vi 1 Introduction ...... 1 1.1 The Promise of Social Rights ...... 1 1.2 The Judicial Interpretation of Social Rights ...... 4 1.3 Structure of the Work ...... 9 2 Explaining Social Rights Interpretation ...... 10 2.1 Introduction ...... 10 2.2 Extra-Judicial Explanations ...... 11 2.3 Judicial Explanations...... 24 2.4 Drawing Together the Strands ...... 30 2.5 A Theory of Social Rights Interpretation ...... 44 2.6 Research Design and Method ...... 46 3 The Landscape of Social Rights ...... 57 3.1 Conceptualizing Social Rights ...... 57 3.2 Constitutionalism and Judicial Review ...... 68 3.3 Regarding Justiciability ...... 86 3.4 Constitutionalization of Social Rights ...... 89 3.5 Judicial Interpretations of Social Rights...... 108 3.6 Summary ...... 117 4 Brazil ...... 119 4.1 Introduction ...... 119 4.2 The 1988 Constitution ...... 120 4.3 Social & Political Context ...... 131 4.4 The Brazilian Legal System ...... 139 4.5 Social Rights and the Brazilian Judiciary ...... 163 4.6 Explaining Brazil’s Social Rights Jurisprudence ...... 185 5 South Africa ...... 190 5.1 Introduction ...... 190 5.2 The 1996 Constitution ...... 192 5.3 Social and Political Context ...... 206 5.4 The South African Legal System ...... 212 5.5 Social Rights and the South African Judiciary ...... 245 5.6 Explaining South African Social Rights Jurisprudence...... 265 6 Conclusion: The Promise of Social Rights? ...... 268 6.1 Social Rights Jurisprudence in Brazil and South Africa ...... 268 6.2 The Individual Model of Social Rights Adjudication ...... 270 6.3 The Problem of Competing Rights: Housing versus Property ...... 274 6.4 Future Research ...... 277 6.5 Conclusion ...... 278 References ...... 279 Constitutional Documents ...... 279 Legislation ...... 281 Cases ...... 282 Interviews ...... 287 Additional Materials ...... 289

List of Figures Figure 1. Percentage of Constitutions Containing Social Rights, 2016 ...... 93 Figure 2. Social Rights per Constitution by Legal Tradition, 2016 ...... 94 Figure 3. Social Rights per Constitution by Region, 2016 ...... 95 Figure 4 Constitutions Containing Justiciable Social Rights by Income Level ...... 96 Figure 5 Social Rights by Age of Constitution and Most Recent Amendment ...... 97 Figure 6 Justiciable Social Rights by Freedom House Status, 2016 ...... 99 Figure 7 The Rights to Education, Health, and Housing in National Constitutions, 1789- 2012 ...... 101 Figure 8. Judicial Attitudes Toward State Intervention by Year of Entry into the Magistrature ...... 157 Figure 9. Which of the Following Should Play a Primary Role in Judicial Decision- Making? ...... 159 Figure 10. Membership in Medical Schemes by Racial Group, 1982-1991 ...... 210

Abbreviations Brazil ADC Ação Declaratória de Constitucionalidade ~ Declaratory Action of Unconstitutionality ADI(n) Ação Direta de Inconstitucionalidade ~ Direct Action of Unconstitutionality ADO Ação Direta de Inconstitucionalidade por Omissão ~ Action of Unconstitutionality for Omission ADPF Arguição de Descumprimento de Preceito Fundamental ~ Allegation of Disobedience of a Fundamental Precept AMB Associação dos Magistrados Brasileiros ~ Brazilian Magistrates Association ANVISA Agência Nacional de Vigilância Sanitária ~ National Health Surveillance Agency CNJ Conselho Nacional de Justiça ~ National Judicial Council CONITEC Comissão Nacional de Incorporação de Tecnologias no SUS ~ National Commission for the Incorporation of Technologies into the Unified Health System DP Defensoria Pública ~ Office of the Public Defender INAMPS Instituto Nacional de Assistencia Medica de Previdencia Social ~ National Institute of Medical and Social Welfare MP Ministerio Público ~ Public Ministry/Office of the Public Prosecutor OAB Ordem dos Advogados do Brasil ~ Brazilian Bar Association RENAME Relação Nacional de Medicamentos Essenciais ~ National List of Essential Medicines STF Supremo Tribunal Federal ~ Supreme Federal Court, Brazil’s apex court for constitutional matters SUS Sistema Único de Saúde ~ Unified Health System

South Africa AD Appellate Division of the High Court of South Africa CALS Centre for Applied Legal Studies LRC Legal Resource Centre SCA Supreme Court of Appeal TRC Truth and Reconciliation Commission ZACC Constitutional Court of South Africa ZAECBHC Eastern Cape High Court, Bhisho ZAECELLC Eastern Cape High Court, East London Local Court ZAECGHC Eastern Cape High Court, Grahamstown ZAECMHC Eastern Cape High Court, Mththa ZAECPEHC Eastern Cape High Court, Port Elizabeth ZAGPJHC South Gauteng High Court, Johannesburg ZAGPPHC North Gauteng High Court, Pretoria ZASCA Supreme Court of Appeal of South Africa ZAWCHC Western Cape High Court

1 Introduction 1.1 The Promise of Social Rights Social rights promise access to goods and benefits such as housing, healthcare. Since their earliest manifestation as rights to basic education in select Latin American constitutions during the first half of the 1800s,1 they have become the focus of international declarations and human rights instruments,2 the subject of sustained philosophical and legal debate,3 and increasingly present in national constitutions.4 Indeed, they are now so commonly enshrined that they may reasonably be seen as a defining characteristic of ‘third wave’ constitutions.5 Nearly all new democracies, and several established ones, have included some form of social rights in their constitutions, committing their governments, at least formally, to the realization of minimum standards of social welfare: 29% of national constitutions now contain a justiciable right to housing; 43% a justiciable right to health; and, 59% a justiciable right to education.6

1 Bob Corbett, ed., “Second Constitution of Haiti (Hayti) May 20, 1805,” April 4, 1999, General Dispositions, Act 19, http://faculty.webster.edu/corbetre/haiti/history/earlyhaiti/1805-const.htm; “Political Constitution of the Peruvian Republic, 1828,” British and Foreign State Papers 16 (1828): 966–88 art. 171; Louis Joseph Janvier, ed., “Constitution de 1843,” in Les Constitutions D’Haiti, 1801-1885, vol. 1 (Marpon & Flammarion, 1886), 145–87 arts. 31, 162. 2 E.g., “GA Res. 217 A(III) (Universal Declaration of Human Rights)” (1948); “GA Res. 2200A (XXI) (International Covenant on Economic, Social and Cultural Rights)” (1976). 3 E.g., Martha Craven Nussbaum, Amartya Kumar Sen, and Amartya Sen, eds., “Capability and Well-Being,” in The Quality of Life (Oxford University Press, 1993), 30–66; John Rawls, A Theory of Justice, vol. Rev. ed. (Belknap Press, 1999); Amartya Sen, Development as Freedom (Anchor Books, 2000); Mark V. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, 2007); Paul O’Connell, Vindicating Socio-Economic Rights: International Standards and Comparative Experiences (Routledge, 2012). 4 Courtney Jung, Ran Hirschl, and Evan Rosevear, “Economic and Social Rights in National Constitutions,” American Journal of Comparative Law 62, no. 4 (2014): 1043–93, https://doi.org/10/f7kqn4. 5 The “third wave” of constitutions coincides with Huntington’s “third wave” of democratic transitions, because new democracies write new constitutions. Like third wave democratic transitions, third wave constitutions were overwhelmingly written in the 1980s and 1990s. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press,1991). 6 Evan Rosevear, Ran Hirschl, and Courtney Jung, “Justiciable and Aspirational ESRs in National Constitutions,” in The Future of Economic and Social Rights, ed. Katharine G. Young (Cambridge University Press, 2019), 37–65.

Rosevear — Judicial Interpretation of Social Rights

These rights have the potential to dramatically improve the living conditions of hundreds of millions of people, to provide a pathway for self-improvement, and to foster their development into culturally, economically, and politically engaged citizens. In addition to the moral desirability of such achievements, such a turn of events would also yield collective benefits. If realized, such rights would surely improve the quality of liberal democracy and the depth of its consolidation by ensuring the type of citizenry best-suited to meaningfully consider the problems before them, unmotivated by immediate concerns of subsistence and capable of critically examining the rhetoric of politics. The resulting stability could, in turn, foster global of stability, growth, and respect. But, such a rosy turn of events is merely a possibility; it is far from a certainty. Indeed, social rights have been variously characterized as tools for the realization of progressive social transformation, window dressings aimed at diverting attention from ongoing affronts to human dignity, democracy enhancing, anti-majoritarian, good, and bad. The possibilities of these rights and the reality of their entrenchment have resulted in a substantial body of research approaching the matter from a multitude of perspectives. In addition to the abstract and conceptual analysis noted above, much of this work has focused on case studies of the jurisprudence or effect of entrenching one or a set of social rights in a single or small number of constitutions. In a number of instances, these have been collected into excellent anthologies that offer important general insights.7 Other work has examined how judges in a particular jurisdiction have approached the matter of social rights interpretation or discussed how it ought to be approached.8 Another line of research has focused on substantive outcomes. That is to say, the extent to which the entrenchment of social and economic rights has resulted in material

7 Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008); Varun Gauri and Daniel M. Brinks, eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge University Press, 2008); Christian Courtis, “Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability,” Human Rights and the Rule of Law Series (Geneva: International Commission of Jurists, 2008), http://www.icj.org/dwn/database/ESCR.pdf; Katharine G. Young, ed., The Future of Economic and Social Rights, Globalization and Human Rights (Cambridge University Press, 2019). 8 Katharine G. Young, Constituting Economic and Social Rights (Oxford University Press, 2012); Jeff King, Judging Social Rights, Cambridge Studies in Constitutional Law (Cambridge University Press, 2012); David Bilchitz, “Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance,” South African Law Journal 119 (2002): 484–501. 2

Rosevear — Judicial Interpretation of Social Rights improvements in peoples’ lives. Initial work in this area found little evidence of a positive relationship between rights entrenchment and realization.9 More recent work, however, provides some cause for hope. Arguing that existing work on the impact of the right to health does not sufficiently incorporate the influence of political institutions, Kavanagh, for example, promotes a more nuanced consideration of the impact of a constitutionalized right to health, particularly the manner in which “it both constrains and structures interactions within governments and between state, business, and private actors.”10 Other scholarship in this area has also pointed to positive correlations between entrenchment and realization when domestic factors such as judicial independence,11 rule of law,12 and “a normative commitment to socioeconomic rights as measured by long-term ICESCR membership”13 are accounted for.14 The second generation of work in this area, then, presents a more promising, though still far from conclusive, portrait of the efficacy of social rights guarantees. However, two closely-related limitations persist: the validity of the variables employed to measure domestic political and economic factors; and, the limited attention paid to the processes by which these rights are (or are not) translated from words into actions. Accurate specification of the former, I argue, requires a more in-depth understanding of the latter, particularly with respect to the design and operation of the primary domestic mechanisms for social rights protection—courts—and the actors responsible for their authoritative

9 E.g., Avi Ben-Bassat and Morri Dahan, “Social Rights in the Constitution and in Practice,” Journal of Comparative Economics 36, no. 1 (2008): 103–119, https://doi.org/10/brknmr; Christian Bjornskov and Jacob Mchangama, “Do Social Rights Affect Social Outcomes?,” Economics Working Papers (Aarhus University, September 9, 2013). 10 Matthew M. Kavanagh, “The Right to Health: Institutional Effects of Constitutional Provisions on Health Outcomes,” Studies in Comparative International Development 51, no. 3 (2016): 332, https://doi.org/10/ghdsbp. 11 Steven J. Hoffman and John-Arne Røttingen, “Assessing the Expected Impact of Global Health Treaties: Evidence from 90 Quantitative Evaluations,” American Journal of Public Health 105, no. 1 (2015): 26–40. 12 Angela Maria Pinzon-Rondon et al., “Association of Rule of Law and Health Outcomes: An Ecological Study,” BMJ Open 5, no. 10 (2015): e007004, https://doi.org/10/f78z5h. 13 Wade M. Cole, “International Human Rights and Domestic Income Inequality: A Difficult Case of Compliance in World Society,” American Sociological Review 80, no. 2 (2015): 383, https://doi.org/10/f7dv3j. 14 See also, Sakiko Fukuda-Parr, Terra Lawson-Remer, and Susan Randolph, Fulfilling Social and Economic Rights (Oxford University Press, 2015). 3

Rosevear — Judicial Interpretation of Social Rights interpretation and application—judges. It is this gap that endeavour to address herein. Given the widespread existence of constitutionally entrenched social rights, formally strong courts, and, in general, popular support for both, why have some courts been willing to assert themselves while others have not? And, more significantly, how have those courts that have asserted themselves interpreted the social rights contained in their constitutions? What types of claims have been favoured? What types of litigants have proven successful at bending the state to their will? What types of remedies have been used?

1.2 The Judicial Interpretation of Social Rights The goals of this dissertation are both descriptive and explanatory; it seeks to understand how and why judges in one jurisdiction interpret constitutionally entrenched social rights obligations in one manner, while those in another jurisdiction do so differently. This line of research is important as it addresses the principal way in which constitutionalized social rights are defined in domestic contexts. Social rights, as with all legal rights, are not directly and immediately given effect in accordance with a judicial ruling; nor will courts always be able to or find it advisable to articulate the specific parameters of a social right. Does, for example, the right to health entail the state to provide kidney dialysis to all individuals for whom it is medically indicated?15 What about experimental treatment for ocular degeneration?16 Does the right to housing require the provision of temporary, emergency housing to all homeless individuals?17 Does the right to education require the state to ensure the provision of pre-school spots for all children under the age of six?18 What about age-appropriate furniture and textbooks for each subject for each student?19 Similarly, attempts by courts to explicitly define the policies or programs by which such rights are to be realized are likely to be criticized as both judicial overreach that threatens democratic systems and ill-designed measures crafted by non-

15 Soobramoney v. Minister of Health (KwaZulu-Natal), [1997] ZACC 17 (1997). 16 Min. Marco Aurélio, RE 368564/DF, 153 DJe 64 (STF (Primeira Turma) 2011). 17 Occupiers of Portion R25 of the Farm Mooiplaats v Golden Thread, [2011] ZACC 35 (2011). 18 Min. Carlos Velloso, RE 398722/SP, 09/11/2004 DJ 86 (STF (Monocrática) 2004); cf. Min. Celso de Mello, RE 410715 AgR /SP, 03-02–2006 DJ 1529 (STF (Segunda Turma) 2005). 19 Minister of Basic Education v Basic Education for All, [2015] ZASCA 198 (2015). 4

Rosevear — Judicial Interpretation of Social Rights experts that fail to appropriately consider the interconnectedness of public policy and the reality of competing demands.20 Nevertheless, courts, as forums of reasoned argument and decision-making will tend to have both the constitutionally-granted authority and publicly- derived legitimacy to define the general parameters of these guarantees such that executives and legislatures will have to take their decisions seriously. Moreover, individuals and social groups will be able to deploy court decisions symbolically for the purposes of mobilization and the exercise of political pressure. Existing research on comparative law, the growth of constitutionalism and rights culture, and the role of courts in their broader political systems can be combined to outline the basic parameters of a given legal system, the conditions necessary for mobilization in support of particular rights guarantees, and the circumstances which give courts greater or lesser leeway to decide against the wishes of the government of the day yet still have their decisions actively enforced. This research has substantially furthered our collective understanding of how courts operate. But there are limitations to what it can explain. In particular, these explanations identify the conditions under which judges are able to exercise direct influence on politics and policy, but neither how they would go about it nor why or when they would choose to do so.21 Existing research also fails to sufficiently account for systematic variation in the characteristics of who seeks and obtains judicial office and the effects of socialization into the judiciary as a profession. Additionally, with limited exceptions, this work has focused on the decisions of apex courts. However, in many jurisdictions trial courts can engage with constitutional questions directly and, even where this is not the case, it is often up to first instance courts to give effect to the decisions handed down by their respective apex courts. In reference to in depth analyses of social rights interpretation in Brazil and South Africa, I argue that understanding the interpretation and application of constitutionally entrenched social rights requires understanding the particular constellation of norms, standard operating procedures, and role-conceptions that shared by the judges of a

20 Octavio Luiz Motta Ferraz, “Harming the Poor through Social Rights Litigation: Lessons from Brazil,” Texas Law Review 89 (2011 2010): 1643–68. 21 Lisa Hilbink, “The Origins of Positive Judicial Independence,” World Politics 64, no. 4 (2012): 567–621. 5

Rosevear — Judicial Interpretation of Social Rights particular jurisdiction—their “judicial culture.” In addition, it requires that attention be paid to the design of the judicial system itself. By judicial culture I mean something distinct from, although certainly related to, the broader concept of legal culture. A judicial culture approach is concerned with how the individuals tasked with the interpretation and application of law understand their role—in their legal system, in their political system, and in society writ large—and how they operationalize that role—what are acceptable interpretive approaches, how deferential ought they be to legislatures and executives, the relative importance of predictability and adherence to the written text versus the realization of legislative intent or constitutional ideals, the weight of different sources of law, and numerous other considerations. Rather than the much broader notions of legal culture, or simply culture, a judicial culture approach, as conceived of herein, is concerned with understanding how these values and beliefs are put into effect by judges and the impact of changes in regime type, constitutions, or the organization of the judiciary on their decision- making. I argue that the particular elements of a given judicial culture, manifest in the logics of appropriateness internalized by its judges and reproduced by the system of legal education, judicial selection and promotion, and institutional architecture of the judiciary will tend to result in the adoption of one of two ideal-type approaches to social rights interpretation. Jurisdictions such as South Africa, that are characterized by stereotypically “common law” features, such as an older, smaller, and more experienced judiciary, strong adherence to the doctrine of precedent, and a system of legal education resembling an apprenticeship, will tend to develop a more policy-oriented social rights jurisprudence that emphasizes the importance of addressing structural problems faced by groups or classes of people. Remedies will focus on ensuring the government policies are in place to effectively and progressively realize these rights in a timely manner and will only require the specific provision of goods or services to a specific individual or group in extreme circumstances and as a last resort. Jurisdictions such as Brazil, which exhibit many (but not exclusively) stereotypically “civil law” features such as a large and relative inexperienced judiciary, little or no weight attached to previously decided cases, and an approach to legal reasoning emphasizing theoretical consistency, will tend to develop an individualized social rights jurisprudence that focuses on addressing social rights violations suffered by the specific

Rosevear — Judicial Interpretation of Social Rights individuals who have brought legal action. Remedies in such jurisdictions will tend to consist of orders against the state requiring specific performance—such as the provision of a specific medical treatment or a place in an early childhood education center—while studiously avoiding any attempt to suggest that specific policies or programs must be put in place in order for the state to satisfy its constitutional obligations in regards to social rights. To be clear, I do not suggest that a simple common law versus civil law dichotomy can be used to predict or explain the specifics of social rights interpretation in a given jurisdiction. Rather, I argue that the ideational and, indirectly, institutional elements that characterize the judicial culture and broader judicial system of particular jurisdictions will tend to lead its judges in one or another direction. Those elements leading toward an individualized-approach to social rights interpretation are generally but not exclusively associated with the civil law tradition. Those leading toward a collective, policy-oriented approach tend to be associated with the common law tradition, but also not exclusively so. Moreover, the fact that few if any legal systems exhibit the majority of the characteristics of one tradition and none of the characteristics of another belies the utility of such an approach. Rather, the argument is that by understanding the judicial culture of a particular jurisdiction, one can gain insight into why and how its judges will examine, frame, and, to some extent at least, resolve novel legal issues or new constitutional text. In this regard, two qualifications are in order. First, while I believe that the “judicial culture” approach articulated herein may well be applicable beyond the realm of social rights—in particular with regard to the interpretation of rights claims generally—the scope of the present study is restricted to examining its relevance to social rights, indeed, to a subset thereof—the rights to education, health, and housing. This has been done for several reasons. Insofar as this is as much an exercise in theory development as it is theory testing, preference has been given to depth over breadth in terms of cases studied and dimensions of variation. Indeed, the volume of material it was necessary to examine and engage with to do something approaching justice to the three rights considered in each of the two country-cases examined herein was, to put it mildly, extensive. The selection of social rights as the focus of the research was a more nuanced decision. The idea of social rights, let alone their judicial enforceability, is a relatively new

Rosevear — Judicial Interpretation of Social Rights phenomenon. This means that judges in early-adopting countries such as Brazil and South Africa had very few examples of how such rights might be dealt with as, in contrast with civil and political rights, they could not look to established constitutional regimes for guidance. All else being equal, this lack of direct examples and analogous situations should lead judges to rely more heavily on the foundational beliefs of their judicial culture in seeking to construct these rights. This, in turn, should make those beliefs and their influence more readily observable in their judgments and actions. Along similar lines, the consideration of social rights is more likely to present judges with questions about the role of the judge, the separation of powers, and the goals of a political community. So-called “positive rights” are more likely to come into conflict with dominant economic ideas and notions of freedom than civil and political rights, particularly when they are not tied to labour force participation—as is the case with the rights examined herein. While the protection of free speech may require expenditure on the part of the executive,22 it does not directly challenge the globally dominant form of economic production, capitalism. The idea that all individuals are entitled to healthcare, regardless of their ability to pay, however, does. Social rights issues such as this are simply more likely to raise tensions and expose compromises at the core of political orders and, by extension, compel their consideration by judges. Here, too, judicial culture should be more clearly observable than it would otherwise be. In short, the choice of social rights was intended to ensure that the theory had the best chance of support. In this sense, social rights can be seen as a set of “most-likely” cases deployed to test the theory;23 if it does not work here, it is unlikely to work elsewhere. Second, this project is primarily an empirical one, focused on understanding and explaining why judges in different jurisdictions have interpreted social rights in different ways. The approach adopted and the subsequent research and analysis certainly touch upon broad debates related to theories of jurisprudence and the psychology of decision-making. That said, while I believe the subject of inquiry and the method employed herein have the

22 Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (W.W. Norton, 1999). 23 H. Eckstein, “Case Study and Theory in Political Science,” in Handbook of Political Science Volume Seven: Strategies of Inquiry, ed. Fred I. Greenstein and Nelson W. Polsby (Addison-Wesley, 1975), 117–18. 8

Rosevear — Judicial Interpretation of Social Rights potential to make meaningful contributions in these areas, the scope of the present project requires that this be left for another time. For the present, I restrict my aim to developing a plausible explanation, grounded in the “new” institutionalism, of why certain patterns of social rights interpretation have been observed and examining the plausibility of that theory in reference to the empirical record.

1.3 Structure of the Work The remainder of this work is divided into five chapters. In the next chapter, I survey the insights and limits of several lines of existing research relevant to social rights interpretation including the literature on judicial behavior, legal opportunity structures, political fragmentation and separation of powers, and legal doctrine. Building on this, I outline the concept of “judicial culture” and propose it as the primary influence on how social rights are interpreted before discussing issues related to research design, data collection and case selection. Chapter Three begins by identifying the conceptualization of social rights employed during the course of the research. It then discusses several issues related to terminology, the distinction between negative and positive rights, and the significance of the three rights—to education, health, and housing—that are the focus of the present. The origins, expansion, and contemporary prevalence of written constitution and judicial review are then discussed as are the standard battery of objections to judicial review on constitutional grounds. I then outline the origins and contemporary patterns of social rights constitutionalization, with a particular focus on the rights to education, health, and housing before discussing how these rights have been interpreted in several key jurisdictions. Chapters Four and Five, present case studies of social rights interpretation in Brazil and South Africa, respectively. In so doing, the historical development of legal education, the legal profession, judicial culture, and design of the judicial system are discussed in detail before analysis of the jurisdiction’s social rights jurisprudence and the relationship of that jurisprudence to the pre-existing judicial are examined. The final chapter of the work highlights the key comparative insights derived from the case studies and discusses both the implications of the research and possible lines of future research.

2 Explaining Social Rights Interpretation 2.1 Introduction The realization of social rights will almost certainly require judicial interpretations that provide individuals, or at least non-governmental actors (e.g., NGOs, labor unions, or community groups) with the ability to make direct claims on state resources and/or compel state expenditure on particular goods or services and/or consider or disregard certain factors in the policy-making process. Such interpretations are, by definition, assertions of power by the judiciary vis-à-vis the elected branches. At a minimum, they limit the discretion and power of other state actors. At the extreme, they compel the adoption of specific policies and the expenditure of significant resources. Political science orthodoxy suggests that the guiding question here ought to be ‘under what conditions are judges able to advance such interpretations with a reasonable chance of compliance’? Addressing this question is certainly an essential component of the present research, but it is neither the only nor the most important one. The more significant question to be addressed is, ‘assuming they are capable of doing so given the political and institutional realities in which they operate, what leads judges to interpret social rights claims as they do?’ Explanations of rights adjudication and judicial assertiveness of this type can be broadly categorized as either extra-judicial or judicial in nature. Extra-judicial explanations fall into three general categories. The first emphasizes the importance of “legal” factors such as pre-existing doctrine and statutorily defined or conventional modes of legal reasoning. A second class of explanations emphasizes the political environment in which courts operate, focusing on matters such as the capacity of the legislative branch to effectively overrule judicial decisions or exert influence on particular judges. The third type highlights the importance of institutional features and coordinated efforts on the part of interested and committed actors in advancing litigation, framing issues, and driving implementation. Court-centred or “judicial” explanations, on the other hand, emphasize the role played by judges and the judiciary is this process. Rather than passive actors, judges are conceived of as more or less independent agents, subject to political, economic, and institutional constraints, certainly, but still eminently capable of shaping outcomes by exercising their agency. These explanations have predominantly focused on the sincerely

Rosevear — Judicial Interpretation of Social Rights held ideologies or (policy) preferences of individual judges and how those have manifest in their decisions—either on a case-by-case basis or in accordance with a strategic assessment of how to achieve the best possible result given the context in which the decision is being made. More recently, a second type of explanation has emerged, one that emphasizes the role of the judiciary as an institution—as opposed to the role of individual judges’ policy preferences—as the source of a set of beliefs that define a “logic of appropriateness” shared by judges working in a given legal jurisdiction. I argue that this understanding of adjudication as occurring within the parameters of and guided by an overarching set of norms, beliefs, values, and approaches to legal reasoning and form— what I term herein “judicial culture”—is the primary factor shaping how social rights are interpreted and how remedies for their abrogation are constructed. The first four types of explanation—legal-doctrinal, political-environmental, opportunity structure, and judge-centred—each provide insights that are significant and relevant to this line of inquiry. But they also have substantial explanatory limitations in regard to social rights interpretation and, quite probably, constitutional interpretation more generally. In section 2.2 I outline the core insights and limitations of the extra-judicial approaches. In section 2.3 I discuss the court-centred approaches, presenting the insights and limitations of judge-centred models before outlining the judiciary-centred approach, discussing its development, implications, and potential weaknesses. In section 2.4 I develop and articulate a theory of social rights adjudication emphasizing the importance “judicial culture” and its relationship with formal institutional design. In section 2.5 I outline the design of the research used to test and develop this theory, discussing case selection, data collection, and the significance of first instance courts. Concluding comments are offered in section 2.6.

2.2 Extra-Judicial Explanations

2.2.1 Legal-Doctrinal As is generally the case where legal doctrine is concerned, there is a substantial body of literature focusing on how social rights should be interpreted and applied. The majority focuses on the nature of a given country’s—or, less commonly, all countries’— obligations under international law, the direct versus indirect applicability of those

Rosevear — Judicial Interpretation of Social Rights obligations to domestic adjudication, and how the courts ought to construct those rights in accordance with a state’s obligations to respect, protect, fulfill, or realize them. Focus areas in this work include the existence and content of each right’s “minimum core,”1 the meaning of “maximum available resources” in the context of state efforts to progressively

1 The idea of a minimum core content of economic and social rights was outlined by the relevant UN committee in the early 1990s (Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)” (United Nations, 1991), para. 10.): the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. Examples of such work include: David Bilchitz, “Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance,” South African Law Journal 119 (2002): 484–501; Katharine G Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content,” Yale Journal of International Law 33 (2008): 113–76; Lisa Forman et al., “What Could a Strengthened Right to Health Bring to the Post-2015 Health Development Agenda? Interrogating the Role of the Minimum Core Concept in Advancing Essential Global Health Needs,” BMC International Health and Human Rights 13, no. 48 (2013), https://doi.org/10/gbfcb6; David Landau, “The Promise of a Minimum Core Approach: The Colombian Model for Judicial Review of Austerity Measures,” in Economic and Social Rights After the Global Financial Crises, ed. Aoife Nolan (Cambridge University Press, 2014), 267–89; Nicholas Wasonga Orago, “The Place of the ‘Minimum Core Approach’ in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution,” Journal of African Law 59, no. 2 (2015): 237–70, https://doi.org/10/ghdr7v. 12

Rosevear — Judicial Interpretation of Social Rights realize these rights,2 and the degree to which international human rights instruments are directly enforceable by domestic courts.3 This work generally presents thoughtful and considered analyses of the nature of social rights, key doctrinal issues within given jurisdictions, and frequently outlines interpretive approaches or strategies that the authors believe could or should be used to give effect to social rights in the context of litigation. Indeed, this work often has strong normative component, suggesting a particular interpretation as the correct one on the basis of domestic legal standards, international law, morality, or some combination thereof. This, in turn, implies that deviation from the prescribed interpretive approach is the result of incorrect reasoning, the pollution of legal reasoning with non-legal considerations such as politics or economics, or evidence of structural bias.

2 Article 2(1) of the ICESCR (“GA Res. 2200A (XXI) (International Covenant on Economic, Social and Cultural Rights)” (1976).) states that: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures . Although stipulating the existence of a minimum core, the Committee on Economic, Social and Cultural Rights (CESCR) does recognize the reality of resource limitations. Thus, the statement on minimum core obligations does stipulate that “any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned” (“General Comment No. 3,” para. 10.) What, precisely, constitutes “maximum available resources” has long been the subject of debate (e.g., Radhika Balakrishnan et al., “Maximum Available Resources & Human Rights: Analytical Report” (New Brunswick, NJ: Center For Women’s Global Leadership, 2011); Sakiko Fukuda- Parr, Terra Lawson-Remer, and Susan Randolph, “An Index of Economic and Social Rights Fulfillment: Concept and Methodology,” Journal of Human Rights 8, no. 3 (2009): 195–221, https://doi.org/10/dbqnft.) The legitimacy of the progressive realization paradigm in cases of time-sensitive rights such as emergency healthcare and shelter has also been the subject of criticism (Stuart Wilson, “Curing the Poor: State Housing Policy in Johannesburg after Blue Moonlight,” Constitutional Court Review 5 (2013): 280–96.). 3 According to CESCR (“General Comment No 9: The Domestic Application of the Covenant” (United Nations, 1998), para. 4.), legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals. The rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. In practice, however, this is not always, or perhaps even often, the case: David Sloss, “Domestic Application of Treaties,” in The Oxford Guide to Treaties, ed. Duncan B. Hollis (Oxford University Press, 2012), 367–95. 13

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This second aspect is problematic. The idea that complex constitutional problems of the type associated with social rights adjudication have uniquely correct answers—that there is no room for reasonable disagreement—is, to put it mildly, highly questionable. Such matters raise multiple, competing claims, impact large numbers of people and groups, are likely to have extensive and unintended knock-on effects, require decisions based on imperfect information, and will necessarily influence the resources available to address other such claims that are not obviously less pressing or important.4 Just because a particular interpretation or interpretive approach does not obviously violate existing legal rules, norms, and practices does not mean that there are not alternatives meeting the same conditions. Where constitutional law is at issue, what constitutes a “reasonable” approach is often a matter of debate, let alone the criteria for establishing which of a set of competing approaches is the most “correct.” Courts rightly have procedural rules to ensure that, to the greatest extent possible, their judgments provide clear direction. However, the ongoing persistence of dissenting opinions in constitutional matters cross-nationally is highly suggestive. For example, the leading cases pertaining to access to abortion in Canada, the US, and Germany were split decisions,5 as was the Canadian Supreme Court’s decision regarding the Charter’s imposition of positive obligations on the state vis-à-vis social assistance.6 In terms of overall levels of disagreement, more than half of the cases decided by the US Supreme Court and a quarter of cases decided by the Supreme Court of Canada in recent years have contained dissents.7 For a variety of reasons, civil law apex courts tend to have substantially

4 See e.g., Lon Fuller, “Forms and Limits of Adjudication,” Harvard Law Review 92, no. 2 (1978): 353–409, https://doi.org/10/b4f3pk; Jeff King, Judging Social Rights, Cambridge Studies in Constitutional Law (Cambridge University Press, 2012). 5 Roe v. Wade, (1973) 410 U.S. 113 (n.d.) [7-2 decision]; R. v. Morgentaler, 1 S.C.R. 30 (Sup. Ct. (Canada) 1988) [5-2 decision]; Abortion I Case, 39 BVerfGE 1 (Fed. Const’l Ct. (Germany) 1975) [6-2 decision]; BVerfGE 88, 203, Abortion II Case, 2 BvF 2/90, 2 BvF 4/92, and 2 BvF 5/92 (1993) [5-3 decision]. 6 Gosselin v. Quebec (Attorney General), [2002] 2 S.C.R. 429 (n.d.) [5-4 decision]. 7 Kedar S. Bhatia, “Stat Pack for October Term 2017” (SCOTUSblog, June 29, 2018), http://www.scotusblog.com/2018/06/final-october-term-2017-stat-pack-and-key-takeaways/; Supreme Court of Canada, “Supreme Court of Canada: Statistics 2005 to 2015” (Ottawa: Supreme Court of Canada, 2016), 3, https://www.scc-csc.ca/case-dossier/stat/pdf/2005-2015-eng.pdf. 14

Rosevear — Judicial Interpretation of Social Rights lower rates of dissent.8 Nevertheless, even here, dissent rates are not insignificant, particularly in light of the substantially higher case volumes that such courts tend to be faced with. Of the 2,172 combined decisions published by the two Senates of the German Federal Constitutional Court since 1972—the year overt dissent became permissible—a little over 7% have included dissents.9 Similarly, 7% of the roughly 90,000 collegiate decisions made by the Brazilian Supreme Court between 1992 and 2013 contained at least one dissent.10 These examples, of course, do not “prove” the inability of legal doctrine to provide uniquely correct outcomes. They do, however, provide ample evidence that whatever it is that leads judges to make decisions, different judges quite regularly come to different conclusions about how a particular right, statutory provision, or fact ought to be interpreted—or whether it is relevant—when presented with the same information. Moreover, to the extent such disagreement manifests in dissenting opinions, the reasons offered by both (or all) parties tend not to shock the consciences of legal practitioners— other lawyers and judges may not agree with the dissent, but they tend not to see it as “not law.” Epistemological debates aside, the key limitation of this line of research is its inability to explain why an “incorrect” interpretation or approach was adopted, why a change to the “correct” one occurred, or the timing of that change.

8 Two especially relevant factors are the exceptionally high, as compared to their common law counterparts, caseloads civil law apex courts face and the associated “rapporteur” system. See e.g., Evan Rosevear, Ivar A.M. Hartmann, and Diego Werneck Arguelhes, “Disagreement on the Brazilian Supreme Court: An Exploratory Analysis” (FGV Direito-Rio (Working Paper), 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629329. A third factor is the existence of internalized norms of consensus in judicial opinions, norms which are frequently associated with current or prior rules precluding dissenting opinions. Donald P. Kommers and Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd ed. (Durham, NC: Duke University Press, 2012), 28–29; “About the Court” (Cour de Cassation (France)), accessed July 29, 2020, https://www.courdecassation.fr/about_the_court_9256.html (“the court’s decision, in other words not only the general thrust of the judgment but also its actual wording [which is as important as the decision itself] is put to a majority vote. The judgment does not however stipulate how the judges voted. There is no dissenting opinion.”). 9 The Court, composed of sixteen members, sits in a number of formats. The most significant cases are heard by one of the two panels of eight judges, styled “Senates.” Prof. Dr. Andreas Voßkuhle, “Federal Constitutional Court: Annual Statistics 2015” (Federal Constitutional Court of Germany, 2016), 12, http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Statistik/statistics_2015.pdf?__blob= publicationFile&v=3. 10 Rosevear, Hartmann, and Arguelhes, “Disagreement on the Brazilian Supreme Court: An Exploratory Analysis.” 15

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This literature does, however, provide three key insights relevant to the present inquiry. First, in many, if not most, circumstances there are legally credible legal arguments that would allow judges to give effect to the social rights present in their respective constitutions in some fashion, however attenuated. Second, the fact that courts have been criticized for not immediately adopting such approaches indicates that there is a degree of leeway for judges engaging in this interpretation—that something other than merely an objective assessment of the law is at work in the decision-making process. Third, the willingness of doctrinal scholars to engage with this type of analysis suggests that judges are, in fact, constrained by the language of the law. Whatever their beliefs, motivations, or political preferences, judges are (nearly) universally unwilling issue a decision without providing some form of legal rationale.11 In short, legal-doctrinal approaches are useful to the present inquiry as they allow for the exclusion of many, likely the vast majority, of possible understandings of what social rights mean for citizens and the state, but they are unable to provide a credible explanation of why one rather than another of the limited number of available meanings was selected as authoritative.

2.2.2 Political Environment Because courts generally lack direct enforcement mechanisms, they must rely on other elements of the state to enforce their judgments. To the extent that those judgments are contrary to the interests of the actor(s) required to enforce them, so the theory goes, enforcement will be contingent on the expected cost of non-compliance being greater than the cost of compliance for the relevant parties.12 The costs of non-compliance arise from two principal sources: (i) the difficulties associated with organizing a legally justifiable

11 Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change, 2nd ed. (University of Michigan Press, 2004), 156. 12 In general, judicial decisions offering expansive interpretations of social rights or requiring state expenditures in order to realize such right will be decisions that do not align with government policy preferences. As the state or an element thereof is almost invariably the defendant in such litigation, if this were not the case, the matter would not need to have been brought in the first place or, at very least, have been settled prior to judgment. Cf. Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7, no. 01 (1993): 35–73, https://doi.org/10/dmnnhb. 16

Rosevear — Judicial Interpretation of Social Rights repudiation of a ruling, for example via legislation or constitutional amendment;13 and, (ii) the potential decline in popular support for taking such an action. The former is predominantly a function of the degree of political fragmentation present in a jurisdiction, the latter a product of the relative popularity and perceived trustworthiness of the court in question as compared to the legislative and/or executive branches (or particular occupants those offices). With respect to political fragmentation, the theory is that courts are less concerned about political reprisals, and thus less deferential, as the heterogeneity of ideological preferences within the legislative branch or between the legislative and executive branches increases. This is because increased heterogeneity decreases the likelihood that a governing party or coalition will be able to overcome barriers to collective action in order to agree upon and execute an effective counter to a given judicial decision.14 For example, in authoritarian regimes, where fragmentation tends to be quite low as the result of the concentration of power in relatively few hands, the tendency will be for court decisions to align with government policy preferences. However, when such a regime appears weak or in decline, courts will be likely to render antigovernment decisions in an attempt to garner institutional legitimacy in the eyes of incipient ruling coalitions, as appears to have been

13 At the extreme, troublesome courts might be dealt with by questionably legal or outright illegal actions such as the removal of troublesome judges (e.g., Pakistan in 2007), the addition of compliant ones (e.g. South Africa in the early 1950s), declarations of states of emergency or martial law (relatively common during the latter half of the 20th Century in Latin America, parts of Africa, and East Asia), or—potentially—outright refusal to comply (as was recently suggested Philippine President Rodrigo Duterte and, possibly apocryphally, by US President Andrew Jackson). For present purposes, however, such extremes have been set aside in favour of an assumption of (reasonably)well-functioning democratic institutions and some degree of popular accountability. See, Shoaib A. Ghias, “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf,” Law & Social Inquiry 35, no. 4 (2010): 985–1022, https://doi.org/10/cffjxz (The Philippines); C. F. Forsyth, In Danger for Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950-80 (Juta, 1985), 15–20 (South Africa); John Ferejohn and Pasquale Pasquino, “The Law of Exception: A Typology of Emergency Powers Symposium: Emergency Powers and Constitutionalism,” International Journal of Constitutional Law 2 (2004): 210–39, https://doi.org/10/fcs8mj (Latin America, Africa, and East Asia); Edu Punay, Edith Rgalado, and Alexis Romero, “Duterte ‘Won’t Listen’ to Congress, SC on Martial Law,” The Philippine Star, May 29, 2017, http://www.philstar.com/headlines/2017/05/29/1704646/duterte-wont-listen-congress-sc-martial-law (The Philippines); Edwin A. Miles, “After John Marshall’s Decision: Worcester v. Georgia and the Nullification Crisis,” The Journal of Southern History 39, no. 4 (1973): 519–44, https://doi.org/10/d5zqh3 (US). 14 Rebecca Bill Chávez, John A. Ferejohn, and Barry R. Weingast, “A Theory of the Politically Independent Judiciary: A Comparative Study of the United States and Argentina,” in Courts in Latin America, ed. Gretchen Helmke and Julio Rios-Figueroa (Cambridge University Press, 2011), 219–47. 17

Rosevear — Judicial Interpretation of Social Rights the case multiple times in Argentina.15 Links between increasing political fragmentation and increased judicial independence and/or assertiveness have also been identified in Mexico,16 Georgia, the Ukraine, and Kyrgyzstan.17 In short, so the argument goes, “the judiciary is only as independent as the political branches are unable to agree.”18 The second potential cost of countering an unfavorable judicial decision is related to the degree of popular support for courts and their perceived trustworthiness relative to other political actors and institutions. To the extent that the judiciary, or a particular court such as a constitutional court, are perceived as trustworthy and/or legitimate by the general public, circumventing their decision(s) may well result in political consequences such as

15 Gretchen Helmke, “The Logic of Strategic Defection: Court-Executive Relations in Argentina Under Dictatorship and Democracy,” American Political Science Review 96, no. 2 (2002): 291–303, https://doi.org/10/d8kjzw. Unpacking the precise reasons behind changes in voting behavior is quite difficult, as the predictions of competing explanations are often behaviorally equivalent. For example, particularly in the former case it is also possible changes in decision-making are the result of an ongoing re-examination of societal norms and values and the alteration of decisions accordingly due to a sincere belief that this is the appropriate means of interpretation. 16 Julio Ríos-Figueroa, “Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994–2002,” Latin American Politics and Society 49, no. 1 (2007): 31–57. 17 Alexei Trochev, “Fragmentation, Defection, and Disputed Elections: Why Judges Joined the Post- Communist Color Revolutions,” in Consequential Courts: New Judicial Roles in Global Perspective, ed. Diana Kapiszewski (Cambridge University Press, 2012), 67–92. Along similar lines, political competition has also been identified as key driver of strong protections of judicial independence—as a form of “insurance”—in the constitution-drafting process. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003). 18 Gretchen Helmke and Frances Rosenbluth, “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective,” Annual Review of Political Science 12 (2009): 361, https://doi.org/10/crfpd6. 18

Rosevear — Judicial Interpretation of Social Rights negative media coverage,19 criticism or censure by supranational bodies,20 lost votes or the defection of coalition partners,21 or, at least conceivably, ouster. From this perspective, judges should only be willing to render judgments that do not align with the interests of the political branches and/or the government of the day to the extent that the coordination and electoral costs of opposing such decisions are higher than the cots of simply accepting and enforcing.22 There is at least some validity to this line of reasoning. Accepting the political role of judges and the near-certainty of some degree of political awareness on their part, the likelihood of their decisions being reversed or circumvented almost certainly plays some role in their decision-making; and, as their political environment opens, they may well become bolder. However, the empirical record indicates that political fragmentation or the possibility of electoral consequences are not necessary conditions for judges to issue decisions that do not align with the interests of the ruling party. Hilbink, for example, identifies significant instances of judicial assertiveness despite political unity in Costa Rica, France, Israel, and Spain. She also finds absences of judicial assertiveness despite of high levels of fragmentation in Chile, Italy, India, and Tanzania. 23 More to the point, however, this line of argument only speaks to when judges

19 Christian Davies and Jennifer Rankin, “‘Declaration of War’: Polish Row Over Judicial Independence Escalates,” The Guardian, January 24, 2020, sec. World News, https://www.theguardian.com/world/2020/jan/24/declaration-of-war-polish-row-over-judicial- independence-escalates; Editorial Board, “Poland’s Right-Wing Government Is Making Another Push to Quash Judicial Independence,” Washington Post, January 11, 2020, sec. Opinion, https://www.washingtonpost.com/opinions/global-opinions/polands-right-wing-government-is-making- another-push-to-quash-judicial-independence/2020/01/11/25217e64-3308-11ea-a053- dc6d944ba776_story.html. 20 High Commissioner for Human Rights, “Independence of the Justice System and Access to Justice in the Bolivarian Republic of Venezuela, Including for Violations of Economic and Social Rights, and the Situation of Human Rights in the Arco Minero Del Orinoco Region” (United Nations Human Rights Council, July 15, 2020); “Rule of Law: European Commission Launches Infringement Procedure to Safeguard the Independence of Judges in Poland” (European Commission, April 29, 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_772. 21 The potential magnitude of such costs is contingent on at least three factors. First, the actual level of trust in and perceived legitimacy of judicial and political institutions, both relative and absolute. Second, the degree to which domestic institutional structures are capable of translating popular discontent into electoral consequences. Third, the existence of meaningful alternative governments or governing coalitions. 22 Assuming, that is, there is a desire for the decision to be enforced. 23 Lisa Hilbink, “The Origins of Positive Judicial Independence,” World Politics 64, no. 04 (2012): 587–621, https://doi.org/10/ghdsbk. 19

Rosevear — Judicial Interpretation of Social Rights are able to assert themselves vis-à-vis the other branches and, with few and limited exceptions,24 does not explain why or how they would assert themselves.

2.2.3 Legal Opportunity Structures Courts are, with exceedingly few exceptions, reactive institutions; without a litigant there is no call for judicial activity, let alone constitutional interpretation.25 And, as advancing legal claims is not a cost-free exercise, they are unlikely to be advanced without the possibility of obtaining a benefit, whether the instigator be an aggrieved individual, a community group or NGO, an economic organization, or even an element of the state itself. The types of benefits(s) being sought are likely to vary substantially across the different types of litigants, a matter discussed in more detail below. Regardless of the benefit being sought, however, the decision to advance a legal claim will be heavily conditioned, if not determined, by the accessibility of the judicial system and the likelihood of obtaining a favorable outcome.26 I discuss each in turn. The accessibility of a judicial system is the product of both its formal institutional rules and informal barriers to entry.27 Formal institutional rules determine which type(s) of actors have standing to bring a matter before the courts, whether or not the courts can consider it before a law comes into force (a priori versus a posteriori review), whether the matter can be considered in the abstract or if a concrete harm (past or necessarily imminent) is required prior to judicial consideration, and whether such matters can be heard by courts of general jurisdiction or only by a specialized constitutional tribunal. At the most

24 In particular, Helmke, “The Logic of Strategic Defection.” 25 In India and Pakistan, the courts have the ability to initiate proceedings on their own, via their suo moto powers. Upendra Baxi, “On the Shame of Not Being an Activist: Thoughts on Judicial Activism,” CIJL Bulletin 24 (1989): 32–33; Khurram Hashmi, “The Power of Suo Motu,” The Express Tribune, May 1, 2012, https://tribune.com.pk/story/372164/the-power-of-suo-motu/. 26 The precise nature of a favorable outcome will vary depending on the nature of the benefit being sought, but may take the form of, inter alia, a declaratory judgment, a specific interpretation of a particular constitutional clause, or a directive to a state party requiring specific performance to rectify an unconstitutional state of affairs. 27 Broadly speaking, five types of actors can have the ability to bring matters of constitutional interpretation to the attention of the courts: (i) the current government of the day in the form of either the executive or the legislative majority; (ii) other elected officials, such as opposition parties or a set proportion of the legislature; (iii) the legal profession; (iv) business groups, labor, or NGOs; and, (v) individuals. 20

Rosevear — Judicial Interpretation of Social Rights restrictive, it may well be that only the government of the day is able to instigate judicial review. On the other hand, it may be diffused through the legal system, open to any individual or group to bring, and not require the existence of a direct harm to the instigator. There are also informal barriers to accessing the courts in pursuit of rights claims. In many jurisdictions, primarily those with a basis in the English common law legal tradition, individual-driven (as opposed to community or NGO-driven) rights litigation is thought unlikely because of unfavorable cost-benefit expectations. In absolute terms, advancing claims—particularly those based on constitutional rights—is generally quite expensive and likely beyond the reach of most individual actors.28 While there is a widespread tendency as a matter of either law or policy to provide legal representation to those unable to afford it themselves in criminal trials, the same is much less common with respect to rights claims. Moreover, even when legal aid is available for rights claimants, caps on either annual expenditure on the part of the relevant agency or individual income often render access to legal representation spotty at best.29 This suggests that, barring some type of institutional offset—e.g., the ability to self-represent, the provision of state funding for individual rights claims—individual claims, to the extent they occur, are likely to be brought by members of the middle and upper socio-economic classes. In addition to cost, there are also barriers related to social class. The language, pageantry, and procedural complexities may well prove difficult to comprehend as well as intimidating or even frightening to poorer or less well-educated individuals, who may find the process

28 In Canada, for example, the cost of litigating a constitutional rights claim is generally thought to be prohibitive for individuals. In the early 2000s, estimates of advancing a claim to completion range from over CAD 1 million at the high end, to something in the neighborhood of CAD 50,000 at the low end, the latter requiring the case to involve little or no fact evidence and largely donated time on the part of counsel. To put this in context, the median household income in Canada at the time was approximately CAD 50,000. Benjamin L. Berger, “Putting a Price on Dignity: The Problem of Costs in Charter Litigation,” Advocates’ Quarterly 26 (2002): 235–51; Robert J. Sharpe, “Access to Charter Justice,” The Supreme Court Law Review, 2, 63 (2013): 3–13; Alan Young, “The Cost of Charter Litigation” (Department of Justice (Canada), May 3, 2016), https://www.justice.gc.ca/eng/rp-pr/jr/ccl-clc/ccl-clc.pdf; “Table 11-10-0012-01: Distribution of Total Income by Census Family Type and Age of Older Partner, Parent or Individual” (Statistics Canada, April 30, 2018), https://doi.org/10.25318/1110001201-eng. 29 Lua Kamal Yuille, “No One’s Perfect (Not Even Close): Reevaluating Access to Justice in the United States and Western Europe Note,” Columbia Journal of Transnational Law 42 (2004 2003): 863–924; Robert J. Rhudy, “Comparing Legal Services to the Poor in the United States with Other Western Countries: Some Preliminary Lessons,” Maryland Journal of Contemporary Legal Issues 5 (1994): 223–46. 21

Rosevear — Judicial Interpretation of Social Rights unnavigable and be unable to pay for the legal support necessary to allow them to pursue a claim, regardless of its merits. Just because a particular actor can access the courts, however, does not mean that they will. In particular the “levelness” of the legal playing field will shape willingness to bring a matter before the courts as well as how specific actors are likely to frame their claims and the remedies they seek. The literature suggests the existence of an inherent advantage of repeat players—particularly state institutions—as opposed to “one-shotters” in the court system, particularly where matters of policy are at issue.30 First, one-shotters have an incentive to privilege a good outcome on the case, regardless of the effect of that decision on future disputes or rules while repeat players have an incentive to attempt to influence the content of law (i.e. play the long game), as well as seek preferred outcomes in individual cases. Second, because of their ongoing engagement with the court system and law in a given area, repeat players will tend to have a better understanding of the system and be able to construct their actions in a way that conforms with the law. Finally, repeat players tend to be larger, better resourced organizations that can hire better lawyers, have in-house counsel, and make use of various procedural requirements to tactically delay or advance proceedings. On balance, then, organized and coordinated actors and institutions—particularly the representatives of the state—can be expected to “come out ahead” in the litigation process.31 This line of reasoning and evidence, although primarily concerned with matters of private law, lends support to Epp’s support structure thesis.32 Because of the inherent advantage of state actors, the existence of a coordinated support structure of legal

30 Marc Galanter, “Why the Haves Come out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9 (1975 1974): 98–103, https://doi.org/10/ch66fn. 31 Stanton Wheeler et al., “Do the ‘Haves’ Come out Ahead? Winning and Losing in State Supreme Courts, 1870-1970,” Law & Society Review 21, no. 3 (January 1, 1987): 403–45, https://doi.org/10/dgsmcx; Donald R. Songer, Reginald S. Sheehan, and Susan Brodie Haire, “Do the ‘Haves’ Come out Ahead over Time? Applying Galanter’s Framework to Decisions of the U.S. Courts of Appeals, 1925-1988,” Law & Society Review 33, no. 4 (January 1, 1999): 811–32, https://doi.org/10/cv6ktt; cf. Yoav Dotan, “Do the ‘Haves’ Still Come out Ahead? Resource Inequalities in Ideological Courts: The Case of the Israeli High Court of Justice,” Law & Society Review 33, no. 4 (January 1, 1999): 1059–80, https://doi.org/10/bf47g4. 32 Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University of Chicago Press, 1998). 22

Rosevear — Judicial Interpretation of Social Rights professionals, amenable judges, engaged law students, and lay activists is generally thought to be a necessary condition for achieving rights-positive jurisprudence and policy. This does not mean that individual litigants cannot be successful in achieving their desired goals. However, to the extent that individual litigation does occur, Galanter’s theory suggests that it will focus on personally beneficial outcomes as opposed policy-oriented or structural change because it is conducted by one-shotters. In contrast, litigation conducted by mobilized social groups or NGOs supported by legal support structures will tend to focus on policy-oriented or structural changes. This literature suggests that to the extent that the formal rules allow more actors to bring claims in more venues in different ways and there are relatively lower informal barriers to access, a greater volume of social rights litigation can be expected, representing a wider set of interests.33 A number of specific rules also suggest themselves as significant. First, where constitutional review is restricted to a specialized constitutional tribunal, individually-driven cases are unlikely to occur as there is often no mechanism for direct appeal to such a court and where it is possible the cost of independently financing such an action is likely prohibitive. It is certainly conceivable that an NGO-sponsored test case could reach such a stage, but the goals and framing of such cases tend to differ substantially from those of an individually-driven case. In addition, to the extent individual claims are a significant occurrence, the types of outcomes and benefits sought are likely to systematically differ between those advanced by lower socio-economic status litigants and their wealthier counterparts. For example, the latter are likely to focus on the property rights protection side of housing as opposed to its provision, access to higher education as opposed to primary education,34 and more resource intensive health care treatments.

33 E.g., Ellen Ann Andersen, Out of the Closets & into the Courts: Legal Opportunity Structure and Gay Rights Litigation (University of Michigan Press, 2006); Bruce M. Wilson and Juan Carlos Rodríguez Cordero, “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics,” Comparative Political Studies 39, no. 3 (2006): 325–51, https://doi.org/10/d9dg45; Christine M. Forster and Vedna Jivan, “Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience,” Asian Journal of Comparative Law 3, no. 1 (art. 6) (2008), https://doi.org/10/ghdr5x. 34 One would, however, expect public education issues relating to special education due to medical conditions such as autism matters to be cross-cutting. 23

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In short, the legal opportunity structure literature offers important insights into the how the accessibility of judicial review and the structure of the judicial system influences the volume, type, and instigator of social rights claims—why some choose to bring claims, while others do not—as well as when and by whom those claims are heard. This, in turn, further constrains the interpretive options available to judges. In some circumstances, this may well be enough to demonstrate that a specific approach is a non-starter, but it can’t fully explain why judges decide as they do. It also clearly outlines the structural advantages of the state in any type of repeat litigation, offering a cogent and empirically supported explanation for the success of governments in constitutional litigation. But it does not explain why governments lose some of the time. Nor does it explain why a particular claim is or is not successful or why one remedy or another is selected.

2.3 Judicial Explanations

2.3.1 Attitudinal and Strategic Approaches Originating in the 1940s, the majority of empirical research into judicial behavior has focused on US courts, particularly the US Supreme Court.35 It also tends to be premised on the idea that advancing ideologically informed policy preferences is the central goal of judges. The key division within the literature relates to how, if at all, the institutional environment in which judges operate affects their behavior in individual cases. In general terms, the attitudinal approach to judicial decision-making sees judicial “ideology”— which can be meaningfully plotted on a left-right continuum—as the primary determinant

35 See e.g., C. Herman Pritchett, “Divisions of Opinion Among Justices of the U. S. Supreme Court, 1939- 1941,” The American Political Science Review 35, no. 5 (October 1, 1941): 890–98, https://doi.org/10.2307/1948251; C. Herman Pritchett, “The Voting Behavior of the Supreme Court, 1941- 42,” The Journal of Politics 4, no. 4 (November 1, 1942): 491–506, https://doi.org/10.2307/2125654; C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (Macmillan Company, 1948); Jeffrey A. Segal, “Judicial Behaviour,” in Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), 19–33; Pablo T. Spiller and Raphael Gely, “Strategic Judicial Decision Making,” in Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), 34– 45; a particularly notable exception this is Glendon A. Schubert and David J. Danelski, eds., Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (New York: Oxford University Press, 1969). 24

Rosevear — Judicial Interpretation of Social Rights of judicial decisions.36 According to attitudinalists, judges “decide cases in light of their sincere ideological values juxtaposed against the factual stimuli presented by the case.”37 While agreeing that the central goal of judges is the realization of their policy preferences, strategic accounts of judicial decision-making contend that judges, as rational actors, take into consideration the institutional and political environments in which they operate when rendering decisions.38 This, for example, may result in conservative judges supporting centrist-liberal policies or legislation for fear of a legislative response resulting in an even more liberal outcome than the status quo. Research conducted in this area has demonstrated the possibility (and occurrence) of court politicization via the judicial appointment process as well as providing ample evidence of the political nature of apex court adjudication in the US.39 It has also yielded insights into the impact of panel composition,40 new appointments,41 and the changing ideologies of individual judges over time.42 However, the debates which demarcate

36 See e.g., Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993); Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002). 37 Segal, “Judicial Behaviour,” 24.s 38 See e.g., Lee Epstein and Jack Knight, The Choices Justices Make (Washington, D.C.: CQ Press, 1998); cf. Lee Epstein and Tonja Jacobi, “The Strategic Analysis of Judicial Decisions,” Annual Review of Law and Social Science 6, no. 1 (2010): 341–58, https://doi.org/10/ff88fm. 39 Segal and Spaeth, The Supreme Court and the Attitudinal Model Revisited; Epstein and Knight, The Choices Justices Make. 40 Frank B. Cross and Emerson H. Tiller, “Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals,” Yale Law Journal, 1998, 2155–2176, https://doi.org/10/d492c7; Jonathan P. Kastellec, “Racial Diversity and Judicial Influence on Appellate Courts,” American Journal of Political Science 57, no. 1 (2013): 167–83, https://doi.org/10/bcqr; Christina L. Boyd, Lee Epstein, and Andrew D. Martin, “Untangling the Causal Effects of Sex on Judging,” American Journal of Political Science 54, no. 2 (2010): 389–411, https://doi.org/10.1111/j.1540-5907.2010.00437.x. 41 Timothy M. Hagle, “‘Freshman Effects’ for Supreme Court Justices,” American Journal of Political Science 37, no. 4 (1993): 1142–57, https://doi.org/10.2307/2111547; Terry Bowen and John M. Scheb II, “Reassessing the ‘Freshman Effect’: The Voting Bloc Alignment of New Justices on the United States Supreme Court, 1921–90,” Political Behavior 15, no. 1 (1993): 1–14; Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek, “Acclimation Effects and Separate Opinion Writing in the U.S. Courts of Appeals,” Social Science Quarterly 84, no. 4 (2003): 792–810, https://doi.org/10.1046/j.0038- 4941.2003.08404009.x. 42 Andrew D. Martin and Kevin M. Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999,” Political Analysis 10, no. 2 (May 1, 2002): 134–53; Daniel R. Pinello, “Linking Party to Judicial Ideology in American Courts: A Meta-Analysis,” The Justice System Journal 20, no. 3 (1999): 219–54; Andrew D. Martin et al., “Competing Approaches to Predicting Supreme

Rosevear — Judicial Interpretation of Social Rights ideological division in one country do not necessarily do so in others, particularly where there is substantial variation in terms of historical development, institutional design, or socio-economic conditions. Indeed, attempts to transport a US-style model of unidimensional variation among apex court judges have yielded mixed-at-best results.43 In addition to the possibility that US judges are particularly political and judges in other jurisdictions are simply better servants of “the law,” a number of contributing factors have been suggested for this limited transportability.44 There has also been a recognition of the limitations of this approach by its practitioners. Lee Epstein and Jack Knight, for example, have indicated that this literature’s exclusive focus on judicial policy preferences as the determinants of legal decision-making does not adequately explain a substantial proportion of judicial decisions. In doing so they have argued for a more realistic, less “realist” account of judicial behavior that also incorporates legal and personal considerations.45 In addition to the limited generalizability of the attitudinal and strategic approaches, its focus on explaining differences in judicial decision-making limits its utility with respect to the explanation of general patterns of judicial decision-making. In seeking to explain the judicial interpretation of social rights in a particular jurisdiction, the emphasis is on the similarity of judges’ behavior rather than— indeed, despite—differences in ideology or policy preferences.

Court Decision Making,” Perspectives on Politics 2, no. 04 (2004): 761–67, https://doi.org/10.1017/S1537592704040502. 43 Nuno Garoupa, “Empirical Legal Studies and Constitutional Courts,” Indian Journal of Constitutional Law 5 (2012 2011): 26–54. 44 E.g., Benjamin Alarie and Andrew Green, “Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada,” University of New Brunswick Law Journal 58 (2007): 73–91; Alexander Hudson and Ivar Alberto Hartmann, “Can You Bury Ideology? An Empirical Analysis of the Ideal Points of the Ministers of Brazil’s Supremo Tribunal Federal,” A&C - Revista de Direito Administrativo & Constitucional 17, no. (68) (2017): 43–59; Jason Pierce, “Institutional Cohesion in the High Court of Australia: Do American Theories Travel Well Down Under?,” Commonwealth & Comparative Politics 46, no. 3 (2008): 318–340, https://doi.org/10/fb8x2m. 45 Lee Epstein and Jack Knight, “Reconsidering Judicial Preferences,” Annual Review of Political Science 16, no. 1 (2013): 11–31. 26

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2.3.2 Judicial Role Conception and Judicial Culture In recent years a number of scholars have begun to highlight the descriptive and explanatory value of understanding judicial behavior as not just the accumulation of individual judges’ exogenous preferences and strategic actions, but as fundamentally shaped by the accepted norms and practices of the professional environment in which they operate and into which they have been socialized.46 This line of reasoning builds, at least implicitly, on a more psychologically-oriented strand of research on judicial behavior that had emerged in the 1960s. That literature centred on the importance of judges’ beliefs about the role of the judge and the role of law in society more generally.47 While emphasizing the significance of judges as individuals, this line of research also recognized the importance of socialization and institutional role conception as factors limiting individual judges’ ideological or policy preferences, constraining their decision-making autonomy and driving all judges, regardless of preferences toward a sort of judicial mean, the parameters of which are shaped by a jurisdiction’s particular set of judicial norms, values, and institutions.48 In contrast to this older work, the more contemporary work of scholars such as Hilbink and Kapiszewski sees a dominant role for jurisdiction-specific judicial norms,

46 E.g., Lisa Hilbink, Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, Cambridge Studies in Law and Society (Cambridge University Press, 2009); Diana Kapiszewski, “How Courts Work: Institutions, Culture, and the Brazilian Supremo Tribunal Federal,” in Cultures of Legality: Judicialization and Political Activism in Latin America, ed. Javier Couso, Alexandra Huneeus, and Rachel Sieder (Cambridge University Press, 2010), 51–77; Elaine Mak, Niels Graaf, and Erin Jackson, “The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of ‘Judicial Culture,’” Utrecht Journal of International and European Law 34, no. 1 (June 7, 2018): 24–44, https://doi.org/10/ghdr67; David Erdos, “Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand,” Law & Social Inquiry 34, no. 1 (2009): 95–127, https://doi.org/10/d94zw5. 47 Glendon A. Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946- 1963 (Northwestern University Press, 1965); E.g., Theodore L. Becker, “A Survey Study of Hawaiian Judges: The Effect on Decisions of Judicial Role Variations,” The American Political Science Review 60, no. 3 (1966): 677–680, https://doi.org/10/fk2rnt; Dean Jaros and Robert I. Mendelsohn, “The Judicial Role and Sentencing Behavior,” Midwest Journal of Political Science 11, no. 4 (1967): 471–488, https://doi.org/10/dcqwn3; Henry Robert Glick and Kenneth N. Vines, “Law-Making in the State Judiciary: A Comparative Study of the Judicial Role in Four States,” Polity 2, no. 2 (1969): 142–159, https://doi.org/10/bn8c8c; Glendon A. Schubert, The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology, Studies in Behavioral Political Science (Oxford University Press, 1974). 48 James L. Gibson, “From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior,” Political Behavior 5, no. 1 (1983): 7–49, https://doi.org/10/c3m9cc. 27

Rosevear — Judicial Interpretation of Social Rights without denying the existence of judicial discretion or the significance of individual judges’ characteristics in shaping how that discretion is exercised. From this perspective, “judges are unlikely to assert themselves in any context without the conviction that doing so is professionally appropriate or even obligatory.”49 In terms of Gibson’s pithy articulation of why judges decide as they do,50 according to this approach what judges want to do and what they can get away with matter. More significant, however, is what they think they ought to do and this, in turn, is a product of the jurisdiction-specific “judicial culture” in which they operate and into which they have been socialized. This “judicial culture” approach is concerned with how the individuals tasked with the interpretation and application of law understand their role—in their legal system, in their political system, and in society writ large—and how they operationalize that role— what are acceptable interpretive approaches, how deferential ought they be to legislatures and executives, the relative importance of predictability and adherence to the written text versus the realization of legislative intent or constitutional ideals. Hilbink’s work on the Pinochet-era Chilean judiciary is of particular note. Relying an internalized distinction between “law” and “politics,” these judges were able to assert that objections to the regime were “political” matters, and therefore beyond the purview of the courts.51 Along similar lines, Kapiszewski has compellingly argued that the “internal culture” of the Brazilian apex court plays a key role in shaping the actions of both the Court and its Ministers.52 More recent work by Hilbink has also highlighted the importance of judicial motivation in

49 Hilbink, “The Origins of Positive Judicial Independence,” 2012, 612. 50 That is, “In a nutshell, judges' decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do. Thus, judicial decision making is little different from any other form of decision making. Roughly speaking, attitude theory pertains to what judges prefer to do, role theory to what they think they ought to do, and a host of group-institution theories to what is feasible to do.” Gibson, “From Simplicity to Complexity,” 9. 51 Hilbink, Judges Beyond Politics. 52 Kapiszewski, “How Courts Work.” Members of the Brazil’s apex court for constitutional matters, the Supremo Tribunal Federal (STF) are referred to as Ministros (Ministers) rather than Juizes (Judges) or Desembargadors (Appellate Court Judges). 28

Rosevear — Judicial Interpretation of Social Rights understanding the contemporary (non-) emergence of judicial independence.53 A key insight that can be extracted from this scholarship, I argue, is that “judicial culture,” as distinct from the broader, more amorphous concept of “legal culture” is a, and at time times the, primary driver of judicial decision-making.54 Building on this work, I argue that an institutionalist lens emphasizing the importance of jurisdictionally specific judicial “logics of appropriateness” offers important insights into both judges’ motivation and the legal norms that constrain their actions. Cognizant of the insights derived from the research discussed above, it is a country’s judicial culture, I argue, that is the key factor responsible for the particular nature of its social rights jurisprudence. By extension, this can also shed light on the viability and likely outcomes of constitutional and legal reforms. Premised on a sociological institutional approach, the assertion is that the behavior of individual judges is determined, or at least shaped, by what the actor’s internalized values and norms indicate is the “right” thing to do in a given situation and that these values and norms are a product of the institutional culture in which they operate—the judiciary.55 Allowing for variation among individual judges, a combination of socialization—via shared educational and professional experiences—and selection—via the hiring and promotion of individuals who have internalized the profession’s values and beliefs—will result in a set of relatively stable, more or less commonly held beliefs about acceptable and unacceptable modes of legal reasoning in a given jurisdiction as well as a sense of professionalism that limits individual discretion and provides certain ideas about the role of the judiciary. In the following section, I expand on these arguments to develop a theory of social rights interpretation that emphasizes the role of judicial culture.

53 Hilbink, “The Origins of Positive Judicial Independence,” 2012. 54 Lawrence M. Friedman, “Legal Culture and Social Development,” Law & Society Review 4, no. 1 (1969): 29–44, https://doi.org/10/c9rbtf. 55 James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (Free Press, 1989); Peter A. Hall and Rosemary C.R. Taylor, “Political Science and the Three New Institutionalisms,” Political Studies 44, no. 5 (1996): 936–57; James G. March and Johan P. Olsen, “The Logic of Appropriateness,” Working Paper (ARENA, 2004); Glick and Vines, “Law-Making in the State Judiciary.” 29

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2.4 Drawing Together the Strands

2.4.1 The Messiness of Judicial Culture The use of “culture” in conjunction “law,” in one form or another, is neither novel nor without its criticisms. On the one hand, the concept highlights the importance of norms and values to the operation of a legal system and the relative stability of that system over time. It also offers insight into the impact of those foundational values on the perceived role of the court in the political system and offer important clues as to how actors within a given legal culture will respond to certain macro-social stimuli. On the other hand, it does not appear that it can be operationalized in a way that is sufficiently granular to yield precise predictions in real world situations or define directly measurable variables. It is also not particularly well-equipped to account for the role of non-ideational factors in shaping judicial outputs or outcomes. Nor, ultimately, is it capable of independently explaining intra-jurisdiction changes in judicial doctrine, the political and policy significance of the courts, or public attitudes about the court. More broadly, the concept of legal culture has been criticized as, inter alia, vague, deterministic, and so all-encompassing as to have no explanatory power.56 This is something it shares with work the concept of political culture and other explanations based on deeply-held, stable values.57 Such criticism raises valid concerns and should be taken seriously; it may well be that “legal culture is not itself a concept that can be fruitfully cast as causing specific, traceable outcomes, or even as the product of specifiable variables in the drama of law and politics.”58 Nevertheless, the concept of legal culture encompasses a constellation of legal-political phenomena such as interpretive frameworks, formal institutional practices relating to judicial selection and experience, the trial and appellate

56 E.g., Roger Cotterrell, “The Concept of Legal Culture,” in Comparing Legal Cultures, ed. David Nelken (Dartmouth, 1997), 13–32. 57Gabriel A. Almond, The Civic Culture: Political Attitudes and Democracy in Five Nations (Princeton University Press, 1963); Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton University Press, 1993); David D. Laitin, “The Civic Culture at 30,” American Political Science Review 89, no. 1 (1995): 168–173, https://doi.org/10/fsh7h5. 58 Alexandra Huneeus, Javier Couso, and Rachel Sieder, “Introduction,” in Cultures of Legality: Judicialization and Political Activism in Latin America, ed. Javier Couso, Alexandra Huneeus, and Rachel Sieder (Cambridge University Press, 2010), 7. 30

Rosevear — Judicial Interpretation of Social Rights processes, and popularly held ideas about the demands of judging and the nature of law that can—provided they are well-specified—act as explanatory variables. Cognizant of these concerns, what I mean by “judicial culture” is best understand as a specific application of sociological institutionalism that draws on insights from several cognate lines of research that is intended to be used to outline the parameters of acceptable approaches to legal interpretation on the part of judicial actors in particular jurisdictions. The principal concern is with what the individuals tasked with the interpretation and application of law—judges—understand to be their role—in their legal system, in their political system, and in society writ large—and how they operationalize that role—what are acceptable interpretive approaches, how deferential ought they be to legislatures and executives, the relative importance of predictability and adherence to the written text versus the realization of “justice” in the individual sense, legislative intent, or constitutional ideals. In this respect, it is necessary to draw a distinction between the relatively stable underlying values and beliefs on the one hand and the more transient doctrines, processes, and practices used to give them effect. Sociological institutionalism defines institutions in in broad terms, incorporating not only the formal rules but also symbol systems, cognitive scripts, and moral templates that provide the “frames of meaning” that guide human action. In particular, individuals operating within a particular context do so largely according to norms and customs that constitute them as social actors and reinforce the conventions to which they adhere. In this sense, then, much of what an individual perceives as ‘rational action’ is socially constructed.59 Along the same lines, the idea of judicial culture can also be understood as largely analogous to what Hofstede and others term “the collective programming of the mind that distinguishes the member of one group or category of peoples from another.”60 That collective programming, however, does not fully determine the behavior of individual judges, as they also have “a basic ability to deviate from their mental programming in ways

59 Hall and Taylor, “The Three New Institutionalisms,” 946–50. 60 Geert Hofstede, Gert Jan Hofstede, and Michael Minkov, Cultures and Organizations: Software for the Mind, 3rd ed. (McGraw-Hill, 2010), 6; see also, Mak, Graaf, and Jackson, “The Framework for Judicial Cooperation.” 31

Rosevear — Judicial Interpretation of Social Rights that are new, creative, destructive, or unexpected.” 61 Rather than the stable core beliefs and values that bind a society together, then, a judicial culture approach is concerned with understanding how these values and beliefs are put into effect by judges and the impact of changes in regime type, constitutions, or the organization of the judiciary on their decision- making.

2.4.2 Legal Systems, Traditions, Families, and Origins According to Lawrence Friedman, a legal system has three core characteristics: structure, substance, and culture.62 The structural element is the institutions themselves: the rules and regulations which govern the constitution and operation of the courts, the existence of a constitution or rights, the nature and extent of the separation of powers, and the allocation of law-making authority. The substantive element is the “output” side of the legal system: the content of the law, doctrine and regulations that govern actors within the jurisdiction, regardless of their formal status. The cultural component is the aggregation of values, attitudes, and beliefs that bind a system together, determine the place of the legal system in the society, and “when and why and where people turn to law or government, or turn away.”63 Merryman emphasizes the importance of an analogous concept under a different name—legal tradition—which he defines as:

a set of deeply rooted, historically conditioned about attitudes the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.64

Zweigert & Kötz also deal with this values-based concept. By analyzing jurisdictions’ legal arrangements in terms of their history, mode of legal thought, distinctive institutions, sources of law, and ideology they identify five legal families—Romanistic, exemplified by

61 Hofstede, Hofstede, and Minkov, Cultures and Organizations, 5. 62 “Legal Culture and Social Development.” 63 Ibid., 33–34. 64 John Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 1st ed. (Stanford University Press, 1969), 2; see also, John Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 3rd ed. (Stanford University Press, 2007), 2. 32

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France; Germanic, Anglo-American, Scandinavian, and Socialist—and suggest that comparison between and among representatives of these families can yield generalizable insights about how and why they operate as they do.65 Along similar lines, Brierley and David identify two major legal families: Romano-Germanic and Common Law.66 Family similarity, they hold, does not manifest in identical legal rules, but in “those fundamental elements of the system through which the rules to be applied are themselves discovered, interpreted, and evaluated.”67 In the public law of Romano-Germanic jurisdictions, for example, family resemblance is supposed to have been fostered by the development of a “community of thought” around the political and philosophical ideas of Rousseau and Montesquieu.68 Mirjan Damaška has suggested a somewhat more abstract scheme for classifying countries’ legal systems, one based largely on the degree to which judicial authority is horizontally—the coordinate ideal—or vertically—the hierarchical ideal— distributed and whether the primary function of the law is understood to be the resolution of individual conflicts—the reactive state—or the implementation of policy—the activist state.69 Despite significant differences in terminology and classification these taxonomies share a common set of premises: (i) the essential nature of a given legal system is determined by relatively stable and broadly shared values; (ii) those values strongly influence both the substance of the law and the organization of the legal system; and, (iii) those values and how they are operationalized tend to manifest in a relatively small number

65 Konrad Zweigert and Hein Kötz, Introduction to Comparative Law, 3rd ed., vol. 1 (Clarendon Press, 1998), 63–69. 66 They also identify the existence of a Socialist family, but note that these systems tend to be historically rooted in the Roman-Germanic family and continue to share many common elements. Rene David and John E. C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law, 3rd ed. (Stevens, 1985), 22–31. 67 Ibid., 20. 68 Ibid., 87–88. 69 Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press, 1986). 33

Rosevear — Judicial Interpretation of Social Rights of ways.70 In fact, the examination of these taxonomies from a functional perspective suggests just two ideal-types. These ideal-types can be understood as functional responses to a central issue facing political organizations, be they villages or nation-states: the creation of an environment that facilitates the alignment of individual and collective interests. Doing so requires the establishment of a credible property rights regime and, by extension, a reasonable degree of certainty that one will be able to enjoy (most) of the fruits of one’s labors and decisions regarding the allocation of resources. In pursuing this goal, two threats to property must be addressed. On the one hand, it must be protected from private disorder. That is, protected “from the expropriation by thieves, competitors, or tort-feasors.”71 This task is considered to be the principal role of the state. On the other hand, the state itself can be a threat to property rights, imposing a dictatorship on private individuals. How the tension between the two threats—disorder and dictatorship—is addressed is a defining characteristic of a jurisdiction’s legal system culture.72 A set of legal values and arrangements that prioritizes the prevention of dictatorship will tend to resemble Zweigert & Kötz’s Anglo-American family and Damaška’s hierarchical ideal. A legal system that prioritizes order will tend to resemble Merryman’s civil law tradition and Damaška’s activist state.73 With respect to classification of legal systems, the core argument of this legal origins approach is that “[d]espite much local legal evolution, the fundamental strategies

70 Cf. Pierre Legrand, “Comparing in Circles,” in Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia, ed. Penelope (Pip) Nicholson and Sarah Biddulph (Brill, 2008). 71 Simeon Djankov et al., “The New Comparative Economics,” Journal of Comparative Economics 31, no. 4 (2003): 596, https://doi.org/10/fhktng. 72 Whether a legal system prioritizes one or the other is likely the result of some combination of history, politics, geography, and randomness. 73 In point of fact, the classification scheme employed by Rafael La Porta and his collaborators in the quantitative analyses that gave rise to this theory is based directly on Zweigert & Kötz’s five category taxonomy (see, Rafael La Porta et al., “Law and Finance,” Journal of Political Economy 106 (1998): 1113– 55, https://doi.org/10/cd8ck4; Rafael La Porta et al., “The Quality of Government,” Journal of Law, Economics, and Organization 15, no. 1 (1999): 222–78, https://doi.org/10/d8gdd3.). As the legal origins theory developed, the Romanistic, Germanic, Scandinavian, and Socialist origins were collapsed into a “civil law” category (Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, “The Economic Consequences of Legal Origins,” Journal of Economic Literature 46, no. 2 (2008): 285–332, https://doi.org/10/dz3zxc.). The parallels with the Merryman and Damaška taxonomies were evident throughout. 34

Rosevear — Judicial Interpretation of Social Rights and assumptions of each legal system survived and have continued to exert substantial influence on economic outcomes.”74 Specifically, a jurisdiction’s legal origin is seen as largely determinative of its “style of social control of economic life (and maybe of other aspects of life as well).”75 On this view, the prioritization of order by civil law systems leads to the legal system being primarily concerned with conditioning private interactions such that they are in the public interest, while the common law focus on preventing dictatorship yields a focus on resolving disputes within a notionally unconditioned private sphere. For the former, this results in higher levels of procedural formalism, more regulation, and lower levels of judicial independence. Conversely, the common law tradition is more generally associated with procedural flexibility and greater judicial independence.76 These differences, in turn, yield common functional responses to social issues and similar sets of institutional arrangements, albeit with not insignificant local variation. Although the devil is certainly in the details, jurisdictions associated with the civil law ideal-type tend to share certain institutional elements, as do those associated with the common law ideal-type. Jurisdictions that are influenced by the English common law system tend to emphasize a hands-off approach for judges that is primarily concerned with the resolution of conflicts and, broadly speaking, limiting state intervention in the “private” sphere. Judges in these systems, while formally reticent to involve themselves in matters of politics or policy, will have far fewer qualms about deciding against the state should they believe the state is contravening its constitutional boundaries. Judges adopt a notionally passive role in proceedings before them in furtherance of the “adversarial” character of the process. Counsel for each party seek to convince the judge of the validity or their client’s claims and discredit those of their opponents. With respect to the judiciary as a whole, common law jurisdictions tend to have fewer judges who, as a consequence of being selected from

74 La Porta, Lopez-de-Silanes, and Shleifer, “The Economic Consequences of Legal Origins,” 286. 75 Ibid. 76 Ibid., 291–302. 35

Rosevear — Judicial Interpretation of Social Rights the ranks of the senior practitioners, have substantial legal experience.77 In addition, appeals are less frequent and caseloads—at least outside the realm of commercial law— tend to be relatively lower in number. In contrast, jurisdictions that are associated with the civil law—particularly those based in a French/Napoleonic Code-based approach—emphasize a hands-on approach for judges that is focused on ensuring the implementation of politically-determined policy. Judges in these jurisdictions are less likely to take independent action with respect to the realization of constitutional guarantees—particularly if it involves deciding against the state—in the absence of an explicit mandate to do so and even then, they may be reticent to take up the task. The judiciary itself will tend to be larger than one in a comparable common law country and, at least at the trial level, its judges will be significantly less experienced than their common law counterparts as a result of a more or less direct-entry judiciary. Other key differences between the two relate to the relative authority of different sources of law, the degree of creativity involved in adjudication, the level of direct judicial involvement in trial proceedings, the appellate process, and the structure of the legal profession. At least rhetorically, civil law jurisdictions tend to draw a hard distinction between making law—properly done by legislators—and applying law—the role of judges.78 This is attributable at least partly to the emergence of state sovereignty in Europe from the 15th-17th Centuries, during which time the state began to claim sole, monopolistic authority to regulate behavior. The often revolutionary emphasis of subsequent continental legal reforms led to codification, inspired in no small part by a desire to establish a rational, complete system of law. Effectively, legislators were attempting to “judge-proof” the law.79 In civil law systems, particularly those based on the French-Napoleonic tradition, codes were intended to replace—or at least supersede—custom and precedent. In common

77 In Canada, for example, an appointee to a Superior Court Qualifications must have been qualified to practice law for a minimum of ten years. In practice, an appointee tends to have 15-20 years of legal experience prior to appointment. Brian Lennox, “The Education of a Judge” (The Courts of Nova Scotia, July 2017), https://www.courts.ns.ca/From_The_Bench/from_the_bench_home.htm. 78 Merryman and Pérez-Perdomo, The Civil Law Tradition, 34–38; Frederick H. Lawson, “The Sources of French Law,” in Selected Essays (Elsevier North-Holland, 1977). 79 Merryman and Pérez-Perdomo, The Civil Law Tradition, 20–27. 36

Rosevear — Judicial Interpretation of Social Rights law systems, statute law modified the existing body of common law, which was itself a product of prior judicial decisions and the aggregation of local customs. In common law systems, legislation trumps precedent—with some exceptions relating to the principles of fundamental justice and procedural fairness80—in the absence of an entrenched constitution, but a positive act of the part of the legislature is required to negate or reverse this “judge-made law.” In contrast, in civil law systems the relevant code is deemed to “cover the field,” a positive act on the part of the legislature to address a gap in the statutory regime cannot be necessary as the statutory regime is by definition gapless.81 The (in)significance of prior judicial decisions in common and civil law systems also points to a difference in their recognition and acceptance of judging as a creative act. In civil law systems, barring very exceptional circumstances, the judge should not be engaged in creative activity. Rather, they are to collect the facts, identify the correct law(s), and apply them in the prescribed manner. By doing so they will necessarily arrive at the correct decision; judging is thought to require knowledge and skill, but not creativity.82 In contrast, the cumulative nature of the common law—derived as it is from the incremental and ongoing (re)distillation of principles and norms from previously decided cases— suggests that there is a creative element to common law adjudication as it will often be necessary to reconcile or amalgamate multiple lines of precedent that may seem to suggest differing outcomes in a given dispute.83 Another key difference between common and civil law systems is the training, experience, and selection of judges. In common law systems judges are selected from the ranks of senior lawyers, generally those who have functioned primarily as barristers, litigators, or advocates—that is, lawyers who have spent most of their time arguing before the courts. In general, newly appointed judges receive relatively little specialized training

80 E.g., Roncarelli v. Duplessis, [1959] S.C.R. 121 (1959); Harris v Minister of the Interior, 1952 (2) SA 428 (A 1952). 81 Lawson, “The Sources of French Law.” An important consequence of this is that prior judicial decisions cannot directly carry legal weight in civil law jurisdictions, although in practice they may well be highly influential. See, Mitchel de S.-O.-l’E. Lasser, Judicial Deliberations (Oxford University Press, 2009). 82 Merryman and Pérez-Perdomo, The Civil Law Tradition, 34–38. 83 See Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) in particular, 8-30. 37

Rosevear — Judicial Interpretation of Social Rights prior to assuming office and, while increasingly available, continuing education and professional development tend to be voluntary.84 Rather, it is thought that their extensive experience as litigators will have both made them aware of the relevant procedures, imbued them with the skills necessary to recognize and educate themselves any deficiencies, and led to their internalization of the standard values and norms of the judiciary. In contrast, civil law judges tend to be selected (nearly) directly from law school, usually based on the results of a rigorous examination that focuses on existing law and doctrine. They are then given additional training and begin their time on the bench under the supervision of a more senior judge, who will often review their decisions before they are finalized. The empirical record highlights several additional patterns. As compared to common law systems, civil law jurisdictions tend to have higher case volumes, more judges, a greater proportion of trial decisions appealed, and lower levels of dissent on multi- judge benches. In 2016, for example, the average number of professional judges per 100,000 residents in Europe was 21.5 and the median was 17.8. In England and Wales, the only common law jurisdiction in the region, there were 3.0.85 In terms of case volume, the Federal Constitutional Court of Germany issues 5,000-6,000 judgments per year across its two Senates and smaller collegiate panels,86 the collegiate bodies of Brazil’s Supremo Tribunal Federal issues somewhere in the vicinity of 15,000,87 the US Supreme Court

84 Rogelio Pérez-Perdomo, “Training Programs for Judges,” in Judicial Reform in Latin America and the Caribbean: Proceedings of a World Bank Conference, ed. Malcom Rowat, Maria Dakolias, and Waleed H. Malik, WTP280 (The World Bank, 1995), 108–12; Peter H. Russell, “Judicial Recruitment, Training and Careers,” in Oxford Handbook of Empirical Legal Research (Oxford University Press, 2012), 522–44; Nigel G. Fielding, “Judges and Their Work,” Social & Legal Studies 20, no. 1 (2011): 97–115, https://doi.org/10/fkrbvn; see also, “Senators Work to Change Ambrose’s Judicial Training Bill, Get It Passed Before Summer Break,” The Hill Times (blog), April 24, 2019, https://www.hilltimes.com/2019/04/24/senators-work-to-change-ambroses-judicial-training-bill-get-it- passed-before-summer-break/197001; Franny Rabkin, “Judges Shun Judicial Training Job,” Business Day, April 14, 2011, Business Day edition, sec. News, http://global.factiva.com/redir/default.aspx?P=sa&an=MEWBUD0020110414e74e0003z&cat=a&ep=ASE. 85 “European Judicial Systems: Efficiency and Quality of Justice,” CEJEP Studies (European Commission for the Efficiency of Justice (CEPEJ), 2018), 106. 86 Prof. Dr. Andreas Voßkuhle, “Federal Constitutional Court: Annual Statistics 2019” (Federal Constitutional Court of Germany, February 2020), 17–21. 87 Supremo Tribunal Federal, “Movimento Processual a Partir de 1940,” Estatísticas do STF, accessed October 11, 2020, http://www.stf.jus.br/portal/cms/verTexto.asp?servico=estatistica&pagina=movimentoProcessual. 38

Rosevear — Judicial Interpretation of Social Rights roughly 70,88 and the Supreme Court of Canada about the same.89 The first two are civil law jurisdictions, the latter two common law. The greater propensity of common law judges to disagree with their colleagues is also clear. Of the 2,295 decisions of the two Senates of the German court published since 1972, 92.7% have been unanimous.90 Similarly, 93.0% of the over 90,000 collegiate decisions made by the Brazilian Supreme Court between 1992-2013 were unanimous.91 In contrast, even applying the most expansive definition of unanimity the US Supreme Court has broken the 50% mark in a given term only twice since 2008,92 while 65% of Supreme Court of Canada decisions since 2009 have been unanimous.93 With respect to social rights in particular, where public welfare and individual autonomy come into conflict, ideal-type civil law systems will tend to prefer the former and common law systems the latter.94 This suggests that what is understood to be the appropriate scope of state involvement in the day-to-day activities of citizens should be greater in civil law systems and the promotion or provision of their individual welfare should be positively correlated with civil law systems. Insofar as a propensity to constitutionalize social rights guarantees is indicative of this, a clear correlation between the civil law systems and the constitutionalization of social (and economic) rights bears this out.95 Conversely, the degree to which the law protects the autonomy of the individual and their property from state interference and facilitates the creation of credible commitments between private actors (i.e. prioritizes the enforcement of contracts) should

88 Adam Feldman, “Final Stat Pack for October Term 2019 (Updated)” (SCOTUSblog, July 10, 2020), https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/. 89 “Supreme Court of Canada: Statistical Summary 2009 to 2019,” April 21, 2020, https://www.scc- csc.ca/case-dossier/stat/sum-som-2019-eng.aspx. 90 Voßkuhle, “Federal Constitutional Court: Annual Statistics 2019,” 12. 91 Rosevear, Hartmann, and Arguelhes, “Disagreement on the Brazilian Supreme Court: An Exploratory Analysis.” 92 Feldman, “Final Stat Pack for October Term 2019 (Updated),” 21. 93 “Supreme Court of Canada: Statistical Summary 2009 to 2019.” 94 Pierre Birnbaum, The Idea of France, trans. M. B. Debevoise (Hill and Wang, 2001), ss. 19, 22-23, 32. 95 Courtney Jung, Ran Hirschl, and Evan Rosevear, “Economic and Social Rights in National Constitutions,” American Journal of Comparative Law 62, no. 4 (2014): 1043–93, https://doi.org/10/f7kqn4. 39

Rosevear — Judicial Interpretation of Social Rights be positively correlated with common law systems. This, too, is supported by patterns of formal constitutional rights entrenchment: countries with a common law tradition dominate the list of the world’s most libertarian constitutions.96 In summary, existing work highlights the importance of guiding norms and values to the operation of a legal system and the relative stability of the legal culture it forms. It also highlights the impact of those foundational values on the perceived role of the court in the political system and offers important clues as to how actors within a given legal culture will respond to certain macro-social stimuli. In addition, it suggests that approaches to the interpretation and application of social rights will vary systematically as a result of differences in core ideas about the role of law and courts in the broader political system that are embedded in these two legal cultures and the institutional characteristics of particular jurisdictions. Explanatory approaches based on legal cultures, families, or traditions have been rightly criticized as, inter alia, vague, deterministic, and so all-encompassing as to have no explanatory power.97 This is something it shares with work the concept of political culture and other explanations based on deeply-held, stable values.98 Such criticism raises valid concerns and should be taken seriously. Nevertheless, the enterprise of comparative politics, indeed, of social science generally, requires the assumption that explanations of political phenomenon are transportable. In this respect, the division of legal systems into two broad groups not only serves a taxonomic purpose, but also facilitates the development of generalizable arguments from the comparison of a small number—as few as two—of cases. There are, of course, limits to intra-familial similarity and the complexity of legal systems and their interaction with political, social, and economic particularities almost certainly precludes the development of a reliably predictive model, but this does not mean that such comparison is not useful.

96 David S Law and Mila Versteeg, “The Evolution and Ideology of Global Constitutionalism,” California Law Review 99 (2011): 1163–1258. 97 E.g., Cotterrell, “The Concept of Legal Culture.” 98Almond, The Civic Culture; Putnam, Making Democracy Work; Laitin, “The Civic Culture at 30.” 40

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Herein, at least, the discussion of common and civil law ideal-types is just that. The us of these categories should not be taken to suggest that there are only two types of legal system, one of which will respond to social rights interpretation—or, for that matter, any other particular area of law—one way and the other a different way. Rather, these patterns and likely arrangements are a starting point for more detailed analysis of a particular country’s legal and judicial system. They are helpful insofar as they identity possibilities, point toward underlying relationships or logics of institutional design, and highlight the relationship of institutions and judicial culture. The individual elements of a particular legal systems are single factors among many driving judges and, by extension, social rights jurisprudence in one direction or another.

2.4.3 The Reproduction of Judicial Culture Judicial cultures have a shared tendency to emphasize the importance of fairness, fidelity to the law, and the responsibility of the judge—and the legal profession more generally—to act in the interests of the social good.99 These general characteristics, however, have jurisdiction-specific manifestations with respect to, inter alia, the appropriate forms of judicial reasoning sources of law, and the acceptability of (openly) considering the consequences of particular interpretations when adjudicating. These judicial-institutional norms are instilled in aspirant lawyers by the legal education system. Those who have best internalized them, as demonstrated through examination and/or practice are selected on to the bench. And, the norms are maintained and reproduced by socialization and an institutional context that shapes how issues are framed, when they are heard, and the remedies available if wrongdoing is found.100 In short, by the time a judge becomes a judge, the training, socialization, and sense of professional identity associated with the legal profession generally and judging in particular creates a internalized sense of how a judge ought to behave in a certain situation—a logic of appropriateness that will

99 E.g., International Principles on the Independence and Accountability of Judges, Lawyers, and Prosecutors, Practicioners Guide 1 (Geneva: International Commission of Jurists, 2007), http://www.icj.org/dwn/database/PG-J&L-ENG.pdf. 100 James G. March and Johan P. Olsen, “The New Institutionalism: Organizational Factors in Political Life,” American Political Science Review 78 (1984): 734–49. 41

Rosevear — Judicial Interpretation of Social Rights severely limit the number of options available to a judge in a given situation, often restricting the realm of the possible to just a single option. In addition to this process of socialization and selection, there is a mutually reinforcing relationship between the institutional structure of the judiciary and the logic and norms of “the law” in a given jurisdiction. As such, we would expect a high degree of alignment between how judges view their role and how they make decisions on the one hand and the design of the judicial on the other. However, the relative priority of one or the other for the purposes of effecting change is unclear. Given the “stickiness” of institutions,101 we may reasonably expect that a change in the formal institutional structure of a judicial system will not immediately (and perhaps never) yield a corollary change in the judicial logic of appropriateness, and by extension the judicial process in practice, for that jurisdiction. For example, the creation of a tutela or amparo-like mechanism of the type commonly found through Latin America—a procedure aimed at addressing specific rights infringements that is characterized by a low barrier to entry, priority status on the docket, and exceptionally short turnaround times102—in a common law jurisdiction is unlikely to yield similar results, if for no other reason than the relative dearth of judges in common law as compared to civil law jurisdictions.

2.4.4 A Note on Legal Positivism Contemporary thinking, at least in North America, tends to associate legal positivism with civil law jurisdictions. Insofar as we are concerned with it as a method of judicial interpretation, this is inaccurate. The confusion is likely attributable to the several related, but distinct uses of the term “positivism” in relation to the law—H.L.A. Hart, for example, identifies five such uses.103 For present purposes, however, we are concerned only with two of these: positivism as a theory of the judicial process and positivism as a theory of law and morals. According to Hart, the former is,

101 Douglass C. North, Institutions, Institutional Change, and Economic Performance (Cambridge University Press, 1990). 102 Allan R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of the Amparo Proceeding (Cambridge University Press, 2008). 103 I am grateful to Catherine Valcke for her helpful insights in this regard. 42

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the view that correct legal decisions are uniquely determined by pre-existing legal rules and that the courts either do or should reach their decisions solely by logical deduction from a conjunction of a statement of the relevant legal rules and a statement of the facts of the case.104

The latter, broader use of the term refers to the belief that “the fact that a legal rule is morally iniquitous or unjust does not entail that it is invalid or not law.” 105 While it is unlikely that any contemporary legal theorist would ascribe to a strict application of the judicial process meaning, the idea that judicial discretion is appropriately narrower than and circumscribes judicial preference is broadly accepted across all legal traditions. Moreover, the conceptualization of the judicial role as the faithful application of the rules, divested of responsibility for their morality, has, at times, been as much a part of the common law tradition as it is the civil law tradition.106 Indeed, this position is clearly evident in the espoused judicial philosophy of the current Chief Justice of the US, John Roberts, who characterized the judicial role as that of a neutral umpire, one who applies the rules but does not make them.107 In other words, regardless of current trends, this approach—and, at least conceivably, its rejection—is theoretically accessible and justifiable to judges in both civil law and common law courts.

104 H. L. A. Hart, “Legal Positivism,” in Encyclopedia of Philosophy, ed. Paul Edwards, vol. 4 (Macmillan, 1967), 419. 105 Ibid. 106 See e.g., John Austin, Lectures on Jurisprudence, or, the Philosophy of Positive Law, ed. Robert Campbell, 5th ed., 2 vols. (J. Murray, 1885); A. V. Dicey, Introduction to the Study of the Law of the Constitution, 3rd ed. (Macmillan, 1889). 107 Chief Justice Roberts has characterized the role of a judge in the following way: Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat. “Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States” (Washington, DC: Committee on the Judiciary of the United States Senate, September 2005), 56. 43

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2.5 A Theory of Social Rights Interpretation Briefly stated, the question is ‘what explains the variation judicial interpretation of social rights in the context of transformative constitutions?’ The answer, I argue, lies in understanding the significance of jurisdictionally-specific judicial-institutional norms and practices that have been internalized by and guide the behavior of judicial actors. Collectively these norms can be usefully conceived of as an “institution”—one which I refer to herein as a “judicial culture”—in the sense described by March and Olsen. Judicial cultures, “link roles/identities, accounts of situations, resources and prescriptive rules and practices… organize the relations and interactions among actors… guide behavior and stabilize expectations.”108 Specifically, judicial-cultural norms define judges’ professional, and to some extent personal, worldviews, shape how matters before them are conceptualized and how they perceive to be their role in resolving them, and ultimately offering answers to the questions “What kind of a situation is this? What kind of a person am I? What does a person such as I do in a situation such as this?”109 In other words, as Hilbink suggests, “judicial attitudes are not necessarily private/individual and exogenous but are often socially and/or institutionally constituted.”110 Judicial culture provides a frame for the situation, a sense of identity for the judge, and a set of analytical tools that significantly narrow the options available to them in a given decision-making situation. In many—quite probably most—circumstances, judicial culture will dictate a specific outcome, effectively making a judge’s decision a duty rather than a choice. But this will not always be the case. where novel issues arise, new laws present themselves for application, or competing doctrines or precedents intersect, multiple options will present themselves as equally “correct.” When such a situation occurs, judges are compelled to act creatively to resolve the matter. In doing so, they may resort to deploying logics used in similar situations (e.g., reasoning by analogy), they may borrow the form (and perhaps, but not necessarily content) of reasoning used in similar

108 March and Olsen, “The Logic of Appropriateness,” 5. 109 Ibid., 4; see also, March and Olsen, “The New Institutionalism: Organizational Factors in Political Life”; March and Olsen, Rediscovering Institutions: The Organizational Basis of Politics. 110 Lisa Hilbink, “The Origins of Positive Judicial Independence,” World Politics 64, no. 4 (2012): 596. 44

Rosevear — Judicial Interpretation of Social Rights circumstances in other contexts or in the same context in other jurisdictions, or they may seek to reason from the foundational principles of their judicial culture directly. As with institutional change more generally, however, not only will the output be subject to a degree of uncertainty, within a limited range, but the selection of a particular approach may well have unexpected outcomes.111 In addition, although stable, these norms and practices are not entirely static. Rather, they are open to conscious reconsideration by judges, either independently or as the result of challenges and arguments brought by advocacy groups, state actors, colleagues, and academics, to name but a few. However, the extent to which they can be reshaped is constrained by the dictates of legal sensibility as defined by existing norms and practices.112 There is surely leeway— particularly as broad social norms change, a new area of law emerges, or a new constitution is litigated—but judicial decision-making does not begin from a blank page. In this dissertation I argue that the judicial interpretation of social rights can be understood as a process of gradual institutional change.113 The promulgation of a new constitution or the substantial amendment of an extant one represent significant changes for a nation-state, particularly when a key purpose of the alteration is to foster a transition to a constitutional liberal democracy (or to bring about a more robust version of an extant one). It does not, however, cause the wholesale or immediate change of a country’s institutional makeup or the shared values of its populous. It is a process whereby certain formal rules and processes are removed, added, or altered. These changes may alter the procedures necessary to file legal claims, standards of evidence, or even indemnify certain

111 E.g., Jan-Erik Lane, “Public Policy and Implementation,” in Institutional Reform: A Public Policy Perspective (Dartmouth Publishing, 1990), 34–36; Hall and Taylor, “The Three New Institutionalisms,” 937–42; Emerson H Tiller and Frank B Cross, “What Is Legal Doctrine?,” Northwestern University Law Review 100, no. 1 (2006): 128–30. 112 Michael McCann, “Law and Social Movements,” in The Blackwell Companion to Law and Society, ed. Austin Sarat (Blackwell, 2004), 507–8. 113 Kathleen Thelen, “How Institutions Evolve: Insights From Comparative Historical Analysis,” in Comparative Historical Analysis in the Social Sciences, ed. James Mahoney and Dietrich Rueschmeyer (Cambridge University Press, 2003); James Mahoney and Kathleen Thelen, “A Theory of Gradual Insitutional Change,” in A Theory of Gradual Institutional Change, ed. James Mahoney and Kathleen Thelen (Cambridge University Press, 2010), 1–37. 45

Rosevear — Judicial Interpretation of Social Rights actors. But they do not alter the fundamentals of a judicial culture. The values and norms that inform judicial behavior, patterns of reasoning, and indicate practices that are “appropriate” remain. They remain and will be applied to the newly ensconced constitutional procedures and guarantees; they will shape how they are interpreted and applied, just as they will be shaped by them. Finally, although the underlying judicial institutional norms are likely to be relatively enduring, this does not mean that formal rules changes cannot produce substantial behavioral changes, such as an historically passive judiciary adopting an activist stance in one or another area of law, with relative immediacy. But such a change will be the result of an such changes may well an alteration to the balance of competing considerations rather than a wholesale change in judicial culture. In short, the entrenchment of transformative constitutions will alter the rules of the game, but not the pre-existing judicial culture. It is the interaction (and subsequent reaction) of the two that determine how social rights in a given jurisdiction will be interpreted, subject to the limitations imposed by jurisdictionally specific social and political context. Although no single factor will be determinative, most will militate toward either the individualized approach to social rights jurisprudence associated with the ideal-type civil law model or the policy-oriented approach associated with the common law ideal-type.

2.6 Research Design and Method

2.6.1 Case Selection South Africa and Brazil present excellent cases for the examination of why judiciaries engaging with transformative constitutions adopt one or the other dominant interpretations of social rights. First, both are large, emerging economies with substantial resource wealth, and their respective political-legal development is of interest for that reason alone.114 Second, they also represent two of the earliest instances (1993/1996 and 1988, respectively) of detailed, rhetorically powerful constitutions with extensive social rights protections entrusted to the judicial branch and intended to facilitate peaceful transitions of power from authoritarian or quasi-authoritarian regimes to democracies. As

114 “World Development Indicators” (The World Bank), accessed August 6, 2020, https://datacatalog.worldbank.org/dataset/world-development-indicators. 46

Rosevear — Judicial Interpretation of Social Rights early adopters, they have both been operating under these transformative constitutions for more than twenty years. Ample time, then, has passed for the meaningful examination of how these social rights guarantees have fared in their respective jurisdictions, why they were interpreted as they were, and to gain insight into the strengths and weaknesses of the approaches they adopted. The selection of Brazil and South Africa also aligns with the Mill’s method of disagreement.115 As will become evident over the course of the following chapters, Brazil and South Africa were broadly similar in many respects and shared a number of common experiences in the decades immediately prior to their respective transformative constitutional processes. Both countries were resource-based economies with colonial origins that had achieved early independence. Both were (and are) burdened with high levels of socio-economic inequality. They were also governed by authoritarian regimes in the decades prior to their most recent democratization, regimes which though guilty of many abuses of power, devoted substantial effort to maintaining the trappings of an independent judiciary, the rule of law, and certain democratic practices. Moreover, legislation and judicial system were used to impose authoritarian will, although dissident voices within the legal profession were using their professional skills to defend those charged under repressive laws and agitating for change within or close to the boundaries of the law. They also adopted similarly expansive social rights guarantees and tasked their judicial branches with their protection. But the phenomenon of interest—judicial interpretation of social rights—has manifest quite differently in each. As I argue that it is variation in the countries’ judicial culture that explains this difference, the method of disagreement is well-suited to testing this theory because the shared historical, economic,

115 For Mill, If an instance in which the phenomenon under investigation occurs, and an instance in which it does not occur, have every circumstance in common save one, that one occurring only in the former; the circumstance in which alone the two instances differ, is the effect, or the cause, or an indispensable part of the cause, of the phenomenon. John Stuart Mill, A System of Logic, Ratiocinative and Inductive: Being a Connected View of the Principles of Evidence and the Methods of Scientific Investigation., 7th ed. (London: Longmans, Green, Reader and Dyer, 1868), vols. 1, 430. 47

Rosevear — Judicial Interpretation of Social Rights and political circumstances of South Africa and Brazil reduce the likelihood that other factors were the cause of this difference.116

2.6.2 Data Collection & Materials With respect to the substance of the research, a mixed-methods approach was employed. Guided by the principle that “everything is grist for the mill,”117 my research involved the collection and analysis of three principal types of material: (i) primary data, including constitutional texts, statutes and regulations, elite interviews, and case law; (ii) secondary materials, such as domestic legal treatises and other doctrinal analyses, scholarly work in rights-relevant areas including political science, economics, public health, medicine, education, and law, as well as government reports, NGO publications, publications by legal professional associations, and news media; and, (iii) quantitative data, including development indicators, public opinion data, and surveys of legal and judicial attitudes. Interviews relating to the Brazilian case occurred while I was a visiting doctoral student in the Faculty of Law at the Rio De Janeiro Campus of the Getúlio Vargas Foundation (FGV Direito-Rio) in 2014 and 2015. During this time and with the assistance of a legally trained translator when appropriate, I conducted thirteen elite interviews, each approximately one hour in length. The interviewees included trial and appellate judges from both the federal and state courts, lawyers from the Ministerio Público (Public Prosecutors Office) Defensoria Pública (Public Defenders Office), professors of law and of political science, and a former member of the Conselho Nacional de Justiça (National Judicial Council). I was also able to engage in informal discussions with academics, legal practitioners, and journalists about the role of the judiciary and the legal profession more

116 See e.g., Arend Lijphart, “Comparative Politics and Comparative Method,” American Political Science Review 65 (1971): 682–93; Giovanni Sartori, “Comparing and Miscomparing,” Journal of Theoretical Politics 3, no. 3 (1991): 243–57. 117 James C. Scott, in Atul Kohli et al., “The Role of Theory in Comparative Politics: A Symposium,” World Politics 48, no. 1 (1995): 37. 48

Rosevear — Judicial Interpretation of Social Rights generally in both contemporary and historical Brazil. The access to the Brazil Supreme Court Oral History Project provided by Fernando Fontainha also proved helpful.118 Interviews for the South African case occurred during a, lamentably, much briefer time frame, April and May of 2016. During this visit I was affiliated with The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and divided my time between Johannesburg and Cape Town. While there I conducted eighteen elite interviews, each of approximately one hour in length, with judges, advocates and senior advocates, law professor, and counsel for social rights- oriented NGOs. Here, too, I benefited greatly from informal discussion with local academics and law clerks affiliated with both SAIFIC and the Constitutional Court. Particularly with respect to the South African Case, I was also able to review the transcripts and, in some cases video, of interviews recorded as a part of the Judicial Services Commission’s hearings on judicial appointments and the Legal Resources Centre’s Oral History Project housed at the University of the Witwatersrand.119 The exponential growth in both the quality and quantity of material available electronically also proved of great help. Constitutions and statues are now readily web- accessible via official and/or credible third-party sources, often reliably translated into English as appropriate.120 The electronic availability of apex court decisions is a relatively well-established matter and proved exceptionally helpful. More novel, however, is the accessibility of appellate and trial level decisions. In South Africa most decisions of the high courts are available via both a proprietary service (JutaStat) and an open access database, the South African Legal Information Institute (SAFLII). As will be discussed in the Brazilian case study, accessing individual decisions below the apex level is both

118 “História Oral do Supremo,” História Oral do Supremo, accessed July 28, 2020, https://historiaoraldosupremo.fgv.br/. 119 “Judges Matter,” Judges Matter, accessed July 28, 2020, https://www.judgesmatter.co.za/; “Legal Resources Centre (LRC), Oral History Project,” accessed July 28, 2020, http://historicalpapers- atom.wits.ac.za/legal-resources-centre-lrc-2. 120 World Constitutions Illustrated: Contemporary and Historical Documents and Resources, electronic resource (Buffalo, N.Y: W.S. Hein), accessed July 30, 2020, https://heinonline.org/HOL/Index?collection=cow; Oxford Constitutions of the World (Oxford University Press), accessed July 30, 2020, https://oxcon.ouplaw.com/home/ocw; Constitute Project, accessed July 30, 2020, https://www.constituteproject.org/. 49

Rosevear — Judicial Interpretation of Social Rights significantly more difficulty and less critical in Brazil, but these materials could generally be obtained when needed by approaching individual courts or, in a few cases, via their online services. Jurisdiction-specific commentaries and treatises were often available electronically as well, although in certain circumstances it was necessary to obtain physical copies of such work while in the field due to limited (or non-existent) international distribution.121 For the South African case in particular, the publications of the General Council of South African Bar Associations (Consultus/Advocate)122 and the Law Society of South Africa (De Rebus)123 provided invaluable insights into the perspective of the legal profession. The global accessibility of print and television media,124 the reports of government agencies, and social rights-relevant NGO publications was also of great utility. Four principal types of quantitative data were used in the development of this research. The first consisted of demographic and socio-economic data drawn from domestic statistics agencies as well as multinational data repositories such as the World Bank’s Open Data Database,125 the United Nations Human Develop Program’s Development Data,126 and IPUMS.127 The second type consisted of large-N surveys of public attitudes and trust in various state institutions, both cross-sectional and over time drawn from the World Values Survey,128 Afrobarometer,129 and Latinobarómetro.130 The third type consisted of culled from secondary literature examining the quantity, type, and

121 E.g. Pierre De Vos and Warren Freedman, eds., South African Constitutional Law in Context (Oxford University Press Southern Africa, 2014). 122 http://www.sabar.co.za/law-journals/ 123 http://www.derebus.org.za/ 124 With respect to South Africa, the work of journalists Fannie Rabkin and Carmel Rickard was particularly insightful. Felipe Recondo’s work on the Brazilian Judiciary was also of great help in understanding the politics of the Brazilian judicial system. 125 https://data.worldbank.org/ 126 http://hdr.undp.org/en/data 127 https://ipums.org/ 128 https://www.worldvaluessurvey.org/WVSContents.jsp 129 https://www.afrobarometer.org/ 130 https://www.latinobarometro.org/ 50

Rosevear — Judicial Interpretation of Social Rights outcome of right to health and a few other social rights claim types, in specific regions and/or for specific types of treatment or medications.131 The fourth type of quantitative data was made up of data on the legal profession itself. In addition to various official reports regarding the numbers of judges, lawyers, aspirants, and students over time,132 this type also included and surveys of judicial attitudes and beliefs about their roles and responsibilities. While judicial willingness to participate in such research is notoriously limited, two key historical datasets proved extremely useful in examining changes in the perception of the judiciary and judicial perceptions of their role and responsibilities over time. In relation to South African judges, I was able to access the data on the attitudes, beliefs, and demographic characteristics of South African judges collected by Glendon Schubert in 1970 and 1971. The data represents the responses of 47 high court judges (67% of the total number of judges at that time) and is described in a 1977 article.133 In relation to Brazil, research conducted by Ronald Scheman in 1960 on the legal profession, particularly law students and judges provided invaluable insights, especially as it included questions on the perceived desirability of judging as a career in terms of prestige, salary, and intellectual validation.134 Subsequent, more detailed surveys

131 E.g., Florian F. Hoffman and Fernando R.N.M. Bentes, “Accountability for Social and Economic Rights in Brazil,” in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, ed. Varun Gauri and Daniel M. Brinks (Cambridge University Press, 2008), 100–145; João Biehl, Mariana P. Socal, and Joseph J. Amon, “The Judicialization of Health and the Quest for State Accountability: Evidence from 1,262 Lawsuits for Access to Medicines in Southern Brazil,” Health and Human Rights 18, no. 1 (2016): 209–20; Renato Mitsunori Nisihara et al., “Judicial Demand of Medications Through the Federal Justice of the State of Paraná,” Einstein (Sao Paulo, Brazil) 15, no. 1 (2017): 85–91, https://doi.org/10/gfvfks; Emily Vargas-Barón, “Policies on Early Childhood Care and Education: Their Evolution and Some Impacts,” Background study for EFA Global Monitoring Report, 2000–2015 (Paris: UNESCO, April 2015). 132 E.g., “Perfil Sociodemográfico dos Magistrados Brasileiros 2018” (Brasília: Conselho Nacional de Justiça, 2018); Moses Retselisitoe Phooko, “Draft Report on Research Findings on the Distribution of Legal Work in the Legal Profession in South Africa, and Report on the Summit on Briefing Patterns in the Legal Profession,” 2016, www.lssa.org; “Justiça em Números,” Portal CNJ (blog), accessed July 30, 2020, https://www.cnj.jus.br/pesquisas-judiciarias/justica-em-numeros/; Statistical Yearbook - Republic of South Africa (South Africa Bureau of Statistics, 1968); “Statistics for Legal Education and Development (LEAD) and the Legal Profession 2017/2018” (Law Society of South Africa, 2018). 133 Glendon Schubert, “Political Culture and Judicial Ideology: Some Cross-and Subcultural Comparisons,” Comparative Political Studies 9, no. 4 (1977): 363–408, https://doi.org/10/ghdsdd. 134 Ronald Scheman, “The Social and Economic Origin of the Brazilian Judges,” Inter-American Law Review 4 (1962): 45–72; Ronald Scheman, “Brazil’s Career Judiciary,” Journal of the American Judicature Society 46 (1963 1962): 134–40. 51

Rosevear — Judicial Interpretation of Social Rights of Brazilian judges conducted with the assistance of the Associação dos Magistrados do Brasil (Brazilian Magistrates Association or AMB) by Vianna et al (mid-1990s)135 and Sadek (mid-2000s)136 also contain detailed responses relating to the role and interpretive priorities of judges. Moreover, there is sufficient overlap between the two in terms of research design and question framing to make credible inferences about change over time.

2.6.3 The Significance of Trial Court Decisions Existing work on the judicial interpretation of social rights tends to focus on the decisions and decision-making processes of apex courts. Indeed, the Corte Constitucional de Colombia, The Supreme Court of India, and the Sala Constitucional de la Corte Suprema de Justicia de Costa Rica are all familiar starting points for the discussion of social rights—as is the Constitutional Court of South Africa—and rightly so. However, impactful work occurs in the appellate and trial courts as well. At least three factors have contributed to the (near) exclusive emphasis on apex courts. First, the decisions of these courts tend to be formally binding on lower courts, particularly insofar as constitutional interpretation is concerned. To they extent that they are, these decisions can be taken as representative of a jurisdiction’s jurisprudence. However, the extent to which their decisions are substantively adhered to and applied can and does vary significantly across jurisdictions in accordance with legal tradition, formal institutional design, professional practices, and practical considerations such as difficulties accessing copies of prior decisions. Second, the decisions of these courts are likely thought to be of greater interest to researchers insofar as the matters before them are more likely to present difficult problems that do not lend themselves well to resolution in accordance with established doctrine or interpretive practices, thus introducing a greater element of judicial discretion. Similarly, they are more likely to yield decisions in which the consideration of ethical principles,

135 Corpo e Alma da Magistratura Brasileira, 3rd ed. (Revan, 1997). 136 Maria Tereza Sadek, “Magistrados: Uma Imagem em Movimento,” in Magistrados: Uma Imagem em Movimento, ed. Maria Tereza Sadek (Associação dos Magistrados Brasileiros, FGV Direito Rio, 2006), 11– 98. 52

Rosevear — Judicial Interpretation of Social Rights constitutional values, the judicial role, and public policy considerations are the subject of explicit consideration. Third, focusing on these courts has important practical benefits for the researcher in terms of both accessibility of materials and volume of material. With respect to the former, there have been significant improvements in the accessibility of court decisions and related documents (applications for leave to appeal, factums, and similar) over the past two decades. Indeed, where a researcher may have been required to travel from Yale to Harvard if they desired to read decisions of the Supreme Court of Canada in the 1990s,137 a computer, a few keystrokes, and an internet connection are sufficient to access them today.138 Moreover, similar efforts are all that is necessary to access decisions of the apex courts of Colombia,139 Costa Rica,140 the Czech Republic,141 and Hungary.142 Nevertheless, decisions of lower courts can remain difficult to access, even in one’s home jurisdictions and even where such decisions are regularly collected and collated (an unlikely state of affairs in the world’s non-common law jurisdictions). In addition to this is the sheer volume of material involved. In the common law world, apex courts deal with a relatively small number of cases. As noted above the apex courts of Canada and the US issue roughly 70 judgments per year. The specialist apex courts generally found in civil law jurisdictions tend to handle a higher volume of cases, but a relatively small proportion of their total decisions are dealt with by a full bench and/or provide written reasons. For example, the sixteen-member Federal Constitutional Court of Germany issued 5,200 decisions in 2019, but only 54 of those were issued by one of the two Senates of eight judges, the rest were decided by chambers of three judges. Of those decisions, 226 (4.7%) provided full reasons, 723 (15.0%) provided partial reasons, and no

137 This story was related to me by Ran Hirschl. 138 https://scc-csc.lexum.com/scc-csc/en/nav.do 139 http://www.corteconstitucional.gov.co/ 140 https://salaconstitucional.poder-judicial.go.cr/ 141 https://www.usoud.cz/en/ 142 https://hunconcourt.hu/ 53

Rosevear — Judicial Interpretation of Social Rights reasons were given in the remaining 4,372 (81.2%) did not provide reasons.143 A researcher armed with even a basic knowledge of a judicial system—sufficient to limit themselves to cases in a specific area and their capacity to set precedent—should not have to focus on more than a few dozen, at most a few hundred, cases if the scope of their research is constrained to an apex court. In and of itself, this can be quite a task; compared to the volume of trial or first instance court judgments, however, it is trifling. In Canada, for example, the courts disposed of with 342,274 criminal and 525,188 civil cases during the 2015/2016 fiscal year.144 Just because there are many times more trial court decisions than there are apex court decisions does not, in and of itself, make them worthy of study. Three principal factors suggest the potential importance of examining lower court activity, at least in relation to social rights adjudication. First, trial courts are, at least in regimes with diffuse constitutional review, the first forum in which legal contestation over the meaning of constitutional guarantees and the duties of the state to realize them occurs. This, then, is where the “facts” of cases are ascertained and legal issues requiring resolution are framed. Appellate courts may alter decisions or insert their own interpretation of particular laws or policies, but they almost invariably take the facts of the case as given. Broadly speaking, this is as true in civil law jurisdictions as it is in common law jurisdictions. Thus, to the extent that social rights litigation is the subject of appeal and eventual consideration by an apex court, that court engages with a problem that has been framed by a trial judge and takes as given the facts of the case that judge has determined to be accurate and relevant. It should also be remembered that appeals to apex courts are relatively rare. The consideration of a matter by an appellate court is less so, but the fact of the matter is that the vast majority of decisions by trial courts are, of necessity if nothing else, final decisions. Second, trial court decisions are made by a single judge. Both theoretical and empirical evidence suggest that this is likely to yield less orthodox, or at least less predictable, outcomes than if decisions were taken by a group of judges (as is the case at

143 Voßkuhle, “Federal Constitutional Court: Annual Statistics 2019,” 18. 144 “Table 35-10-0027-01: Adult Criminal Courts, Number of Cases and Charges by Type of Decision” (Statistics Canada, January 3, 2018), https://doi.org/10.25318/3510002701-eng. It should, however, be noted that these numbers include plea bargains and out of court settlements. 54

Rosevear — Judicial Interpretation of Social Rights the appellate and apex levels).145 This increases the likelihood of variation in interpretation and application of social rights as well as remedies mandated by the courts. Whether this is detrimental to the rule of law or a positive state of affairs along the lines of a “laboratory of federalism,”146 it does introduce the likelihood of variation and experimentation into the judicial process, something that surely warrants attention. Finally, just as constitutional rights are not self-enforcing, it cannot safely be assumed that the decision of an apex court with regard to one or another social rights issue will be immediately and faithfully taken up by the lower courts. As a result of geography, bureaucracy, or other factors, it may take some time for news of a decision to reach a particular court or judge. Alternatively, the degree to the doctrine of precedent is adhered to, formally or informally, is not constant across jurisdictions. As such, even in the presence of a clear decision by an apex court, litigation on the ground may yield a different result and/or results may differ across judges, regions, or based on fact(or)s deemed to distinguish a case. That said, the degree to which courts of first instance will impact the interpretation and realization of social rights, however, is largely contingent on a jurisdiction’s institutional design—most notably whether or not judicial review on constitutional grounds is centralized in a single court or diffused throughout the judiciary—as well as judicial- cultural factors such as adherence to precedent. In general, centralized constitutional review, a small number of judges, a lower ratio of trial to appellate judges, a judicial- cultural norm of strict adherence to precedent, and internally-determined selection and promotion, should make trial courts more likely to decide cases directly in line with apex court jurisprudence. In contrast, diffuse judicial review, a large number of judges, relatively few appellate judges, a weak (or absent) doctrine of precedent, and a flat judicial hierarchy, are likely to increase variation in lower court decisions

145 Cross and Tiller, “Judicial Partisanship and Obedience to Legal Doctrine”; Jonathan P. Kastellec, “Panel Composition and Judicial Compliance on the US Courts of Appeals,” Journal of Law, Economics, and Organization 23, no. 2 (2007): 421–441, https://doi.org/10/ft59tn. 146 Wolfgang Kerber and Martina Eckardt, “Policy Learning in Europe: The Open Method of Co-Ordination and Laboratory Federalism,” Journal of European Public Policy 14, no. 2 (2007): 227–47, https://doi.org/10/d67kjk. 55

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In the next chapter I outline the particular conceptualization of social rights I use herein before canvassing key terminological issues and potential sources of confusion. I then discuss the significance of the three particular social rights that are the focus of this research—to education, health, and housing, their emergence and contemporary prevalence in national constitutions, and the explain the interpretive approach adopted by courts in several key jurisdictions.

3 The Landscape of Social Rights 3.1 Conceptualizing Social Rights

3.1.1 A State-Centered, Legal Rights-Based Approach Without denying the value of alternative perspectives, I adopt a state-centered approach to the conceptualization and study of social rights in this work. This approach is grounded in a belief that there is an important and often insufficiently acknowledged distinction between that which is morally correct and that which can be legitimately and credibly enforced by the coercive power of government. Law and morality, of course, are related concepts. Indeed, law may well be “the witness and external deposit of our moral life,” and “the practice of it . . . make for good citizens.”1 Nevertheless,

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. . . [N]othing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.2

Accepting this foundation, centering the analysis on state-based manifestations of social rights is useful for a number of reasons. The nation-state is a central component of the contemporary political world. National identities are not necessarily coterminous with political boundaries, nor are supply chains or the effects of climate change. Nevertheless, the nation-state is the primary vehicle for authorizing and undertaking the use of coercive force, making and enforcing laws, and providing sufficiently credible commitments regarding currency and social stability to permit transnational investment and trade.3 Moreover, it remains the principal locus of sovereignty in the contemporary liberal- international system and the basis of regional and global organizations invested with

1 Oliver Wendell Holmes, “Path of the Law,” Harvard Law Review 10 (1897 1896): 459. 2 Ibid., 460. 3 See, e.g. Peter B. Evans, “Transitional Linkages and the Economic Role of the State,” in Bringing the State Back In, ed. Peter B. Evans, Theda Skocpol, and Dietrich Rueschmeyer (New York: Cambridge University Press, 1985).

Rosevear — Judicial Interpretation of Social Rights economic, political, and judicial authority.4 In addition to issues of legitimacy and sovereignty, the provision of healthcare, education, housing, and social security require resources, administrative capacity and infrastructure at levels of credibility and social penetration not currently achievable by other institutions. In short, the nation-state can plausibly claim both the normative legitimacy and practical capacity to give effect to social rights. Two additional considerations also support a state-centred approach. The first is the absence of a mechanism capable of credibly enforcing international human rights law and the decisions of international judicial and interpretive bodies without the support of the domestic judiciary. For example, the Committee on Economic, Social and Cultural Rights (CESCR) is formally empowered to authoritatively interpret the International Covenant on Economic, Social and Cultural Rights (ICESCR), but lacks the ability to impose sanctions for failure to adhere to its interpretations. This does not mean the work of such institutions should be regarded as pointless. Nor, indeed, should it be thought that they do not have a real world impact: at the domestic level, this work can enable opposition political parties and social movements to mobilize support for legislative or constitutional change to bring state-action into compliance with the asserted norms of international human rights law; extra-nationally, foreign government and international non-government organizations can bring pressure to bear via economic sanctions (e.g., formal trade sanctions, boycotts) or by “naming and shaming” political leaders.5 Nevertheless, although international human

4 For example, the primary claim to legitimacy of international human rights instruments is their ratification by nation-states. 5 Leonard S. Rubenstein, “How International Human Rights Organizations Can Advance Economic, Social and Cultural Rights: A Response to Kenneth Roth,” Human Rights Quarterly 26, no. 4 (2004): 845–865, https://doi.org/10/d22vx6; James H. Lebovic and Erik Voeten, “The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR,” International Studies Quarterly 50, no. 4 (2006): 861– 888, https://doi.org/10/fk7j6f; Emilie M. Hafner-Burton, “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem,” International Organization 62, no. 04 (2008): 689–716, https://doi.org/10/chmfxd; Amanda Murdie and Tavishi Bhasin, “Aiding and Abetting: Human Rights INGOs and Domestic Protest,” Journal of Conflict Resolution 55, no. 2 (2011): 163–191, https://doi.org/10/cpr3w2; James Meernik et al., “The Impact of Human Rights Organizations on Naming and Shaming Campaigns,” Journal of Conflict Resolution 56, no. 2 (2012): 233–256, https://doi.org/10/ghdsb9; cf. Cullen S. Hendrix and Wendy H. Wong, “When Is the Pen Truly Mighty? Regime Type and the Efficacy of Naming and Shaming in Curbing Human Rights Abuses,” British Journal of Political Science 43, no. 03 (2013): 651–672, https://doi.org/10/f44nr4. 58

Rosevear — Judicial Interpretation of Social Rights rights law frames debate about human rights at the domestic level and carries significant normative weight, it is fundamentally different from “law” in the domestic sense insofar as it lacks direct sanctions to facilitate its enforcement. The second consideration is the relative dearth of comparative research in this area. There is considerable work discussing the normative desirability of social rights,6 the nature of parties’ obligations under particular human rights instruments,7 and analyses of attempts to bring them about in particular jurisdictions.8 However, with the limited exception of the right to health,9 there is relatively little comparative work on country-level realization of legal social rights guarantees or the impact of institutional cultures or designs on the perception and interpretation of those rights.

3.1.2 Terminology The concept of guaranteed access to basic material subsistence and education has generated a considerable body of scholarship in recent decades. This work has yielded

6 E.g., Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); Amartya Sen, “Equality of What?,” in Liberty, Equality, and Law: Selected Tanner Lectures on Moral Philosophy (Cambridge: Cambridge University Press, 1987), 197–220; Martha Craven Nussbaum and Amartya Kumar Sen, eds., The Quality of Life (Oxford University Press, 1993); John Rawls, Political Liberalism: Expanded Edition, Columbia Classics in Philosophy (New York: Columbia University Press, 2005); Martha Craven Nussbaum, “The Moral Sentiments and the Capabilities Approach,” in Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, Mass.: Belknap Press of Harvard University Press, 2006); Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008). 7 Katharine G Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content,” Yale Journal of International Law 33 (2008): 113–76; Adam McBeth, International Economic Actors and Human Rights, Routledge Research in International Law (London: Routledge, 2010); David Bilchitz, “Socio- Economic Rights, Economic Crisis, and Legal Doctrine,” International Journal of Constitutional Law 12, no. 3 (July 1, 2014): 710–39, https://doi.org/10/f6rzrr. 8 E.g., Carl Baar, “Social Action Litigation in India: The Operation and Limitations of the World’s Most Active Judiciary,” Policy Studies Journal 19, no. 1 (1990): 140–150, https://doi.org/10.1111/j.1541- 0072.1990.tb00883.x; Mark Heywood, “South Africa’s Treatment Action Campaign: Combining Law and Social Mobilization to Realize the Right to Health,” Journal of Human Rights Practice 1, no. 1 (2009): 14– 36, https://doi.org/10/fr5c5z; Ana Paula de Barcellos, “Sanitation Rights and Public Interest Litigation as an Agenda-Setting Strategy: A Case Study from Brazil,” Health and Human Rights 16, no. 2 (2014): 35–46. 9 See, Katharine G. Young and Julieta Lemaitre, “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa,” Harvard Human Rights Journal 26 (2013): 179–216; Colleen M. Flood and Aeyal Gross, The Right to Health at the Public/Private Divide: A Global Comparative Study (Cambridge University Press, 2014); Matthew M. Kavanagh, “The Right to Health: Institutional Effects of Constitutional Provisions on Health Outcomes,” Studies in Comparative International Development 51, no. 3 (2016): 328–64, https://doi.org/10/ghdsbp. 59

Rosevear — Judicial Interpretation of Social Rights many important insights, but also considerable conceptual and terminological variation.10 A full discussion of the diversity of understandings is beyond the scope of this work. However, a brief discussion of two important typologies—those of T.H. Marshall and Karel Vasak—is warranted. In his seminal treatment of the development of citizenship rights in Britain, T.H. Marshall identifies three sets of rights, classifiable in terms of their logical coherence, relationship to the idea of citizenship and pattern of historical development. The first to emerge were civil rights, “the rights necessary for individual freedom—including liberty of the person, freedom of speech, thought, and faith, the right to own property to concluded valid contracts, and the right to justice,” where justice is defined as “the right to defend and assert all one’s rights on terms of equality with others and by due process of law.”11 Political rights, principally “the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body,” 12 came next. The third set to emerge were social rights, consisting of a wide variety of elements “from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society.” 13 In institutional terms, each group of rights are closely associated with a particular institution: civil rights with the courts; political rights with legislative bodies; and, social rights with the welfare state. In international law and human rights discourse, the most prominent classification scheme is closely tied to the emergence of the core international human rights instruments, particularly the Universal Declaration of Human Rights (UDHR) in 1948, and the covenants on Civil and Political (ICCPR) and Economic, Social and Cultural Rights

10 What I refer to as social rights herein, includes or is included (in both cases in full or in part), what others have dubbed Economic and Social Rights, Socio-Economic or Socioeconomic Rights, Social Welfare Rights, Subsistence Rights, Citizenship Rights, and Human Rights. 11 T. H. Marshall, “Citizenship and Social Class,” in Citizenship and Social Class (Concord: Pluto Press, 1992), 8. 12 Ibid. 13 Ibid. 60

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(ICESCR) in 1966.14 These and other international human rights instruments are generally understood as articulating three generations of rights: (1) civil and political, (2) economic and social, (3) cultural and group. The first of these, it is thought, place obligations on state actors to refrain from acting (negative rights). The second are seen as imposing obligations on the state to undertake positive action in order to ensure their realization (positive rights). Third generation rights are distinguished by their collective nature.15 The right to a healthy environment, for example, may generally be framed as an individual right, but is very much a collective good as it cannot feasibly be withheld from a group if it is available to a member.16 There is a significant amount of conceptual overlap between these classificatory schemes, but also a certain amount of conflict. Four differences in particular warrant acknowledgement. First, there is the potential for significant terminological confusion: a second generation right for a political economist (a political right) is not the same thing as a second generation right for a human rights scholar (a social or economic right). This is not a particularly serious concern, but it should be borne in mind when examining work in this area. Second, while the issue of domestic justiciability is not central to the definition of social and economic rights from the perspective of international law, it is central to Marshall’s articulation. For Marshall, the nature of social rights means that they cannot be immediately realized. Moreover, the rate of progress in a given area depends on the available resources and the relative priority of a particular social benefit with respect to competing claims:

…expectations officially recognized as legitimate are not claims that must be met in each case when presented. They become, as it were, details in a

14 Both the ICCPR and ICESCR entered into force in 1976. UN General Assembly, “International Covenant on Civil and Political Rights,” United Nations, Treaty Series, December 16, 1966; UN General Assembly, “International Covenant on Economic, Social and Cultural Rights,” United Nations, Treaty Series, December 16, 1966. 15 Karel Vasak, “A 30-Year Struggle: The Sustained Effort to Give Force of Law to the Universal Declaration of Human Rights,” UNESCO Courier, November 1977, 28–32. 16 Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, Harvard Economic Studies, CXXIV (Cambridge, Mass.: Harvard University Press, 1971), 14. 61

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design for community living… individual claims must be subordinated to the general program of social advance.17

In short, they are appropriately dealt with by political bodies rather than by courts. The third and fourth matters are, respectively, the distinctions between negative and positive rights and between economic and social rights. These are discussed in the following two sections.

3.1.3 Negative and Positive Rights The distinction between positive and negative rights problematic insofar as it implies a qualitative distinction between civil and political (negative) rights on the one hand and economic and social (positive) rights on the other. Often a useful heuristic, the distinction is not an accurate one; even the most libertarian-seeming of negative rights has, or at least can have, a positive component. A key problem with the distinction is that all rights may require state action, and by extension expenditure, if they are to be legal rights rather than moral rights. As Holmes and Sunstein argue,

Individuals enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they suffer are fairly and predictably redressed by their government… Rights are costly because remedies are costly. Enforcement is expensive, especially uniform and fair enforcement; and legal rights are hollow to the extent that they remain unenforced.18

The protection of property rights, for example, requires coercive action—or the credible threat thereof—to exclude all others from its enjoyment. Contemporary manifestations of this coercion are brought to bear by the police under the direction of the courts and legitimized by the nation-state, which has a (theoretical) monopoly on the use of force. Both police and courts require resources to operate and, although sometimes a pleasant fiction rather than a reality, the enforcement of one’s legal rights is not supposed to placed out of reach by an inability to pay. The continued acceptance of this distinction has important rhetorical implications with respect to enforceability of social rights. It is often invoked to distinguish between

17 Marshall, “Citizenship and Social Class,” 35. 18 Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (W.W. Norton, 1999), 43. 62

Rosevear — Judicial Interpretation of Social Rights those rights that are “properly” entrenched in a liberal-democratic constitution and legitimately enforceable via the courts and those that, because of their probable interference with economic development,19 their budgetary implications,20 their polycentricity,21 or the administrative complexity of their realization,22 are not. With the possible exception of the first, these concerns are not unreasonable, and their implications warrant serious consideration vis-à-vis the constitutionalization and enforcement of second or, as the case may be, third generation rights. But they are also relevant considerations with respect to “negative” rights: healthcare services require resources, but so do police and, for that matter, courts. The costs, complexity, and competing claims to be balanced may change from right to right, just as they do from case to case, and are likely to be greater where so- called “positive” rights are under consideration, but the changes are not qualitative. In practical terms this discourse has a conservative impact as it validates judicial involvement in the defence of formal liberty while placing substantive equality outside the scope of legal protection.

3.1.4 Economic and Social Rights The work of both Vasak and Marshall treats rights guaranteeing material benefits to individuals by virtue of their humanity or membership in a specific political community, respectively, in effectively the same way. There is, however, a significant difference between those rights that are directly tied to labor force participation and those that are not.23 Who bears the cost of realizing a right and who reaps the benefits must surely play a significant role in shaping whether and how a particular economic or social right is realized.

19 Frank B. Cross, “The Error of Positive Rights,” U.C.L.A. Law Review 48, no. 4 (2001): 857–924; Cass R. Sunstein, “Against Positive Rights: Why Social and Economic Rights Don’t Belong in the New Constitutions of Post-Communist Europe,” East European Constitutional Review 2, no. 1 (1993): 36–37; cf. Cass R. Sunstein, “Social and Economic Rights? Lessons from South Africa,” Constitutional Forum 11, no. 4 (2001): 123–32. 20 Constitutional Judgment of 24 January 2004, 3-4-1-7-03 (Const’l Rev. Ch., Sup. Ct. (Estonia) 2004). 21 Lon Fuller, “Forms and Limits of Adjudication,” Harvard Law Review 92, no. 2 (1978): 353–409, https://doi.org/10/b4f3pk. 22 Sunstein, “Against Positive Rights,” 37. 23 Courtney Jung, Ran Hirschl, and Evan Rosevear, “Economic and Social Rights in National Constitutions,” American Journal of Comparative Law 62, no. 4 (2014): 1043–93, https://doi.org/10/f7kqn4. 63

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Specifically, entrenchment and realization may be significantly affected by the nature and relative capacities of labour, capital, and the state in a given jurisdiction. The potential for conflicting interests and mobilization problems impeding the advancement of collective goods is substantial and might manifest in several ways. Indeed, independent of discourse relating to constitutional obligations, there is a well-developed literature dealing with the political economy of the welfare state suggesting just such a relationship.24 For example, it is in the interests of employers in a given jurisdiction to have a potential labour force greater than that which is required as this increases competition for available employment and results in lower labour costs. However, independent of regulated minimum wages/salaries, there is a second constraint on wages—the relative generosity of the social welfare system. Specifically, ESRs which are not conditional on employment or prior contribution that fully or partly meet the subsistence requirements of potential workers place an upward pressure on wages, as the attachment between subsistence and employment is weakened. An individual who is constitutionally entitled to (and actually receives) housing, food and water, and healthcare has little incentive to take up unrewarding, poorly paid employment as it is unlikely to offer much in the way of a better life for them or their family and comes at the cost of performing unpleasant and/or uninteresting work. From the perspective of labour, then, such guarantees are likely to improve the lot of individual workers by creating pressure for higher pay, better working conditions, more stimulating jobs, or some combination thereof. From the perspective of employers, however, such guarantees are something to be strongly opposed—higher wages and improved working conditions have a negative impact on profit. The position of the state in such matters is less clear. On the one hand, such a situation is likely to decrease growth as a result of higher costs leading to lower investment and/or a reduced workforce. By extension, this will reduce government revenues while increasing the expenditures required to meet social welfare obligations. For a fiscally

24 See e.g., Gosta Esping-Andersen, Three Worlds of Welfare State Capitalism (Princeton University Press, 1990); Paul Pierson, “The New Politics of the Welfare State,” World Politics 48, no. 2 (1996): 143–79; Walter Korpi, “Power Resources and Employer-Centred Approaches in Explanations of Welfare States and Varieties of Capitalism,” World Politics 58, no. 2 (2006): 167–206; regarding concentrated benefits and diffuse costs generally, see Olson, The Logic of Collective Action. 64

Rosevear — Judicial Interpretation of Social Rights conservative or corporatist/pro-capital government, the choice to obfuscate the realization of such rights is straightforward. However, the choice is not as clear for leftist/labour or populist parties, as increased social welfare services may well prove highly popular among electorally significant groups of voters. Jurisdiction-specific factors are also highly relevant. Based on the concentrated costs and diffuse benefits such a regime would entail, there is a prima facie likelihood that business would be able to mobilize to successfully oppose its implementation. However, widespread workers’ movements and social mobilization more generally are far from unusual and although they might stand to benefit less in absolute terms, the relative size of the benefit compared to the alternatives available to them may lead labour to mobilize sufficiently to overcome the collective action problem. In certain circumstances, labour and capital may, in fact, share similar positions about the desirability of these rights. This is most plausibly the case with respect to what Jung et al. term Standard Social Rights.25 These four rights—to education, healthcare, social security, and child protection—conceivably serve the interests of both business and labour as classes, although not necessarily in the interests of all of the members of either. From the perspective of labour, these benefits are a clear positive. From the perspective of business, although they may entail upfront costs, they can have significant medium to long- term material benefits by collectivizing the costs of training and maintaining a labour force.26 Moreover, by classifying these benefits as state obligations, the likelihood of free- riding is greatly reduced as the state will generally have both the administrative and legal tools to ensure contribution to the collective scheme. For these reasons and in line with prior work in this area, I draw a distinction between “economic” second generation rights that are contingent on at least notional labour force participation—including the rights to strike and to healthy working conditions—on

25 Jung, Hirschl, and Rosevear, “Economic and Social Rights in National Constitutions.” 26 See e.g., Peter A. Hall and David Soskice, eds., Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (Oxford University Press, 2001). 65

Rosevear — Judicial Interpretation of Social Rights the one hand,27 and “social” second/third generation rights that are not—such as the rights to health, and education—on the other. The rights to child protection, social security that is not contingent on past employment, development, food and water, and land also tend to be considered “social” rights.28 This research is concerned solely with social rights and, for reasons outlined below, primarily a subset thereof—the rights to education,29 health, and housing.

3.1.5 Education, Health, and Housing As outlined above, there are analytical distinctions between the various generations of rights that may realistically influence whether and how they are entrenched, how they are interpreted, and what, if any, impact they will have on policy output and policy outcomes. The focus on social rights is the product of two principal considerations. First, these rights and their relationship to judicial review and substantive conceptions of liberal constitutionalism are a matter of personal interest. Second, these rights are relatively new and, as such, have been the subject of significantly less research than civil and political rights. This, in turn, suggests that a more fulsome, comparative investigation is warranted in order to further the development of research in the areas of human rights, comparative constitutionalism, and judicial review The focus on education, health, and housing is intended to manage the tension between research feasibility and comprehensiveness by limiting the focus of the research to a representative subset of the relevant rights. In terms of generalizability, these rights are broadly representative of the current set of social rights guarantees found in both domestic constitutions and international human rights instruments. They also represent a core set of protections necessary to foster meaningful individual development, pursuit of the good life, and informed political participation. Additionally, as discussed in more detail

27 The right to unionize, as well as guarantees of vacation and rest periods, a healthy working environment, fair and just remuneration, and employment-derived pensions are also part of the standard battery of “economic” rights. Jung, Hirschl, and Rosevear, “Economic and Social Rights in National Constitutions”, see in particular, 1054-55. 28 Environmental guarantees are often considered social rights as well. However, in order to avoid overcomplicating an already complex program of research, I have consciously excluded them from consideration herein. Ibid., see in particular, 1054-55. 29 Principally primary or “basic” education and secondary education. 66

Rosevear — Judicial Interpretation of Social Rights below, they are also representative of the temporal development of social rights protections in domestic constitutions.30 This focus, then, allows for the development of generalizable conclusions about social rights generally and the examination intra-group differences. In terms of internal variation, the fact that these rights are not contingent on actual or potential participation in the labour force, does not mean they are divorced from the economy. Of particular relevance in this respect is whether they can be construed as investments in social capital and, in turn, as in line with pro-market visions of constitutionalism and state-development. In general, the rights to both education and health can be portrayed in this manner. The development of a literate and numerate general population—via a system of state-funded education—is generally regarded as a necessary condition for industrialization.31 Conversely, the right to housing (independent of employment) is not congruent with neo-liberal ideology as a result of its decommodifying effect; the less an individual is forced to rely on paid employment to meet basic subsistence requirements, the greater their detachment from the market. Healthcare sits somewhere in between the two. On the one hand, it can have a decommodifying effect by eliminating (or at least reducing) the cost of medical care. At the same time, a public health system may also be conceived of as a means of overcoming collective action problems in order to achieve economies of scale and maintain a healthy, more productive workforce. There is also significant variation with respect to the cost and degree of state involvement in how these rights have tended to manifest. The role of the market in wide- scale education is largely residual, with the emphasis on direct state funding and management.32 Housing policy in relation to constitutional guarantees has tended to

30 See, Section 3.3, infra. 31 Ernest Gellner, Nations and Nationalism, 2nd ed. (Blackwell Publishing, 1983); William F. Blankenau, Nicole B. Simpson, and Marc Tomljanovich, “Education, Democracy and Growth,” Journal of Development Economics 42, no. 2 (1993): 399–407, https://doi.org/10/dg3bq8; Miguel D. Ramirez and Nader Nazmi, “Public Investment and Economic Growth in Latin America: An Empirical Test,” Review of Development Economics 7, no. 1 (2003): 115–26, https://doi.org/10/ck74zm; William F. Blankenau, Nicole B. Simpson, and Marc Tomljanovich, “Public Education Expenditures, Taxation, and Growth: Linking Data to Theory,” The American Economic Review 97, no. 2 (2007): 393–97, https://doi.org/10.1257/000282807783216844. 32 That said, the role of private educational institutions is frequently integral to the reproduction of elite status. E.g., Agnès van Zanten, Stephen J. Ball, and Brigitte Darchy-Koechlin, World Yearbook of Education 2015: Elites, Privilege and Excellence: The National and Global Redefinition of Educational Advantage

Rosevear — Judicial Interpretation of Social Rights manifest, at least in the jurisprudence, as regulation of eviction, imposing obligations on both market and state actors, although the requirements placed on the latter often involve undertaking reasonable steps to provide or ensure the provision of alternative accommodations.33 Health is rather more variable, and there does not appear to be a clear pattern for its implementation. A final consideration is that each of these rights has been the focus of politically and socially significant litigation in a sufficient volume and number of jurisdictions to present a body of material from which generalization is possible.

3.1.6 Summary Social sciences and law lack a common classification of rights and, in at least one instance, use the same term for a different category of rights. Second, the standard political science account of the development of rights conceives of social and economic rights as beyond the purview of the courts. Third, there is no qualitative distinction between negative and positive rights—the distinction is a matter of degrees—and, in practice, regardless of their “generation,” rights tend to have both positive and negative components. Fourth, social rights can and should be considered independently of economic rights as their receipt is not contingent upon labour force participation, thus altering their costs and benefits to labour, capital, and the state. Specifically, the right to education is credibly perceived as both an untouchable good for all children and an economically necessary investment in social capital. The right to shelter, on the other hand, is more likely to be perceived as a social subsidy with negative economic consequences. Certain aspects of healthcare can be conceived of as an investment, others as a subsidy.

3.2 Constitutionalism and Judicial Review

3.2.1 Origins The standard discourse surrounding the historical development of judicial review portrays it as a conscious reaction against parliamentary sovereignty that developed in the

(Routledge, 2015); Aaron Reeves et al., “The Decline and Persistence of the Old Boy: Private Schools and Elite Recruitment 1897 to 2016,” American Sociological Review 82, no. 6 (2017): 1139–66, https://doi.org/10/gck9zr. 33 E.g., Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. [India] 545 (1985); Government of the Republic of South Africa v Grootboom, [2000] ZACC 19 (2000). 68

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US and, with the exception brief European experiments between the two World Wars, was a unique feature of that country until the end of the Second World War.34 In his seminal article on the emergence of the “commonwealth model” of judicial review, for example, Gardbaum asserts that

Prior to 1945, the model of legislative supremacy, as exemplified not only by the British doctrine of parliamentary sovereignty but also by the French doctrine that acts of the legislature are the supreme expression of the peoples’ general will, was the dominant model of constitutionalism throughout the world, particularly with respect to the issue of individual rights and civil liberties.35

The three essential characteristics of this “American Model” of constitutionalism are that fundamental rights: (1) are accorded a higher status than ordinary legislation; (2) cannot be repealed or altered by ordinary legislative means (i.e. by simple majority); and, (3) are enforceable by courts, which are empowered to set aside conflicting legislation and whose decision in this area are not reviewable by a legislative majority.36 So far as it goes, the standard discourse is largely accurate, although the pre-1945 dearth of judicial review has—for reasons discussed below—likely been exaggerated. At least with respect to the constitutionalization of social rights, however, there are three additional matters that warrant discussion. The first relates to the substantially older theoretical tradition supporting judicial review. The second pertains to the judicial review of legislative or executive action taken under the auspices of legislation, rather than of the legislation itself. The third is the factual reality of pre-Second World War judicial review, particularly in Latin America.

34 See e.g., Donald P Kommers, “Judicial Review: Its Influence Abroad,” The Annals of the American Academy of Political and Social Science 428 (1976): 53–54, https://doi.org/10/c8vp55; Bruce Ackerman, “The Rise of World Constitutionalism,” Virginia Law Review 83 (1997): 771–74, https://doi.org/10/cpjmbz; Tom Ginsburg, “The Global Spread of Constitutional Review,” in Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford, UK: Oxford University Press, 2008), 81–98. 35 Stephen Gardbaum, “The New Commonwealth Model of Constitutionalism,” The American Journal of Comparative Law 49, no. 4 (2001): 713, https://doi.org/10/dp6q36 (footnotes omitted). 36 Ibid., 707–8, 711–12. 69

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Modern judicial review has its origins in the jurisprudence of the US Supreme Court built on Marbury v. Madison.37 However, it was not the wholly novel approach to law and government that some might imagine: the seeds of judicial review are much older. Aristotle considered a legal order in which the law was above the ruler to be characteristic of good states.38 In classical Athens, the law was divided general norms (nómoi) not alterable by ordinary legislative processes and popularly enacted laws (pséphismata) valid only to the extent of their conformity with the general norms.39 In the common law tradition, the 1610 decision of Lord Coke in Dr. Bonham’s Case,40 advanced an argument suggesting that, at least in certain circumstances, the judiciary had the ability to limit Parliament via the common law.41 Although not equivalent to the modern idea of judicial review, these practices, and others evident in pre-revolutionary France,42 Islam,43 and elsewhere,44 do indicate an historical pattern of attempts to limit the discretion of the sovereign and a concern with establishing basic “rules of the game” within which political activity occurs. The second point of note relates to the definition of judicial review itself. In the standard discourse on the matter, judicial review is conceived of as the ability to invalidate legislation. When dealing with jurisdictions that have a doctrine of binding precedent (stare decisis) this makes sense. In such a jurisdiction, once the apex court has determined a statutory provision or even the statute itself to be unconstitutional it is no longer ‘good

37 Marbury v Madison, 5 U.S. 137 (1803). 38 Mauro Cappelletti and John Clarke Adams, “Judicial Review of Legislation: European Antecedents and Adaptations,” Harvard Law Review 79, no. 6 (1966): 1208, https://doi.org/10.2307/1339202. 39 Max Radin, “The Judicial Review of Statutes in Continental Europe,” West Virginia Law Quarterly 41 (1934): 112–13; Cappelletti and Adams, “Judicial Review of Legislation,” 1209. 40 Thomas Bonham v. College of Physicians, 8 Co. Rep. 107 (1610). 41 Theodore F.T. Plucknett, “Bonham’s Case and Judicial Review,” Harvard Law Review 40 (1926): 30–70, https://doi.org/10/djzz33; Raoul Berger, “Doctor Bonham’s Case: Statutory Construction or Constitutional Theory?,” University of Pennsylvania Law Review 117, no. 4 (1969): 521–545, https://doi.org/10/cw7rwt; cf. R. H. Helmholz, “Bonham’s Case, Judicial Review, and the Law of Nature,” Journal of Legal Analysis 1, no. 1 (2009): 325–54, https://doi.org/10/fj8r32. 42 Radin, “The Judicial Review of Statutes in Continental Europe,” 115ff. 43 Muhammad Hashim Kamali, “Appellate Review and Judicial Independence in Islamic Law,” Islamic Studies, 1990, 215–249; David S. Powers, “On Judicial Review in Islamic Law,” Law & Society Review 26, no. 2 (January 1, 1992): 315–41, https://doi.org/10.2307/3053900. 44 Mauro Cappelletti, Judicial Review in the Contemporary World (Bobbs-Merrill, 1971), 25–43 (Ch. II “Historical Antecedents of Judicial Review”). 70

Rosevear — Judicial Interpretation of Social Rights law’. This invalidation may be de jure (i.e., removal from the statute books) or de facto (e.g., refusal of lower courts to apply the legislation or provision in question). However, in a system which does not, at least not universally, apply the principle of stare decisis, two types of judicial review are discernable. The distinction is based on whether a Court’s decision is applicable to all subsequent cases with legally similar facts (erga omnes) or only to the matter at hand (inter partes).45 In Sweden, for example, courts are instructed not to apply provisions that conflict with the Fundamental Law of the country, but do not have the power to formally invalidate or otherwise nullify laws they deem unconstitutional.46 The most common way of distinguishing between jurisdictions with respect to binding precedent is to separate them according to “families” of law or “legal traditions.”47 In Western scholarship at least, this tends to manifest as a distinction between common law and civil law or, more inclusively, common law and non-common law jurisdictions. The clarity and utility of this distinction, however, has been subject to substantial criticism in recent decades. Indeed, some scholars have argued that the concept of legal families is not analytically useful and may hinder meaningful understanding.48 Others have suggested a global convergence of legal systems that renders attempts at categorical distinction

45 Broadly speaking, the Latin terms translate, respectively, as “against the world” and “between the parties.” What constitutes legal similarity for the purposes of stare decisis is not necessarily a clear cut matter. Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008). 46 The Constitution of Sweden: The Fundamental Laws and the Riksdag Act (2016) (Sveriges Riksdag, 2016), Instrument of Government, ch. 11, art. 14; Anna Jonsson Cornell et al., “Developments in Swedish Constitutional Law: The Year 2015 in Review,” I-CONnect Blog (blog), November 2, 2016, http://www.iconnectblog.com/2016/11/developments-in-swedish-constitutional-law-the-year-of-2015-in- review/. 47 See e.g., Alan Watson, Legal Transplants: An Approach to Comparative Law, 2nd ed. (London: Chatto and Windus, 1974); Konrad Zweigert and Hein Kötz, Introduction to Comparative Law, 3rd ed., vol. 1 (Clarendon Press, 1998); Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, “The Economic Consequences of Legal Origins,” Journal of Economic Literature 46, no. 2 (2008): 285–332, https://doi.org/10/dz3zxc. The concept of legal families and the significance of legal culture more generally are discussed in greater detail in Chapter 2. 48 Pierre Legrand, “The Impossibility of Legal Transplants,” Maastricht Journal of European & Comparative Law 4 (1997): 111–24; Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II),” The American Journal of Comparative Law 39 (1991): 1–34; Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II),” The American Journal of Comparative Law 39, no. 2 (1991): 343–401, https://doi.org/10.2307/840784. 71

Rosevear — Judicial Interpretation of Social Rights increasingly futile.49 In particular, the significance of previous cases in judicial decision- making can vary significantly within the established legal families. The doctrine of stare decisis is a prominent feature of common law systems. That being the case, there are several options available to an adjudicator who feels it necessary to decide a particular way while maintaining their fidelity to the law. These include: “distinguishing” cases via the determination that an legally relevant fact in the prior decision is absent or countered by another in the present decision;50 deeming reasoning or statements that are seemingly in conflict with their desired outcome to be obiter dicta— commentary not essential to the judgment in a particular case, and therefore not binding— rather than the ratio decedendi—the essential rule on which a judgment turns, and therefore binding;51 setting a new precedent as a result of changing social values;52 or, in extreme cases, because a particular decision “was not correct when it was decided, and it is not correct today.”53 The parameters and acceptability of each of these methods vary according to the particular legal-cultural norms of a given jurisdiction, but rare is the common law jurisdiction in which does not have recourse—both formally and practically—to at least some of these strategies. In civil law systems, particularly those with strong links to France and/or the Napoleonic Code, the emphasis on a clear distinction between the making of law—the exclusive domain of legislators, acting as a channel for the expression of the general will— and the application of law—the province of judges—makes the idea of binding precedent theoretically problematic. This is because the idea of a court making a determination that

49 John Henry Merryman, “On the Convergence (and Divergence) of the Civil Law and the Common Law,” Stanford Journal of International Law 17 (1981): 357–88; Catherine Valcke, “Convergence and Divergence of the English, French, and German Conceptions of Contract,” European Journal of Private Law 16, no. 1 (2008): 29–62; see generally, Ugo Mattei and Luca G. Pes, “Civil Law and Common Law: Toward Convergence?,” in Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), 267–80. 50 Merritt v. Merritt, E.W.C.A. Civ. 6 (1970); cf. Balfour v. Balfour, 2 K.B. 571 (1919). 51 Arthur L. Goodhart, “Determining the Ratio Decidendi of a Case,” Yale Law Journal 40, no. 2 (1930): 161–83, https://doi.org/10/dkkj6w. 52 Carter v. Canada (Attorney General), 1 S.C.R. 331 (2015), para. 44-48; cf. Rodriguez v. British Columbia (A.G.), 3 SCR 519 (1993). 53 Lawrence v. Texas, 539 U.S. 558 (2003) (Kennedy, J.); the “incorrect” decision in this instance is Bowers v. Hardwick, 478 U.S. 186 (Sup. Ct. (U.S.) 1986). 72

Rosevear — Judicial Interpretation of Social Rights is binding on other courts is seen to be tantamount to judicial-lawmaking and, therefore, an unacceptable practice. In Brazil, for example, attempts to create doctrines of binding precedent have been met with strong protest by judges in the lower and state supreme courts, who insist on their absolute right to be bound by nothing other than their own interpretation of constitutional and statutory law.54 Even then, however, the idea that there is a total disregard for the decisions of others and the perspectives of more senior judges and courts is unrealistic. There is also substantial variation across countries with a civil law tradition. In Vietnam, for example, the Chief Justice and senior judges maintain a bench book outlining approaches, responsibilities, and similar matters for the junior colleagues.55 In Taiwan, the work of junior judges is directly reviewed and approved by a more senior judge. Taiwanese judges also have access to a secure internal electronic forum that can be used to seek comment and advice from their colleagues on, inter alia, matters before them.56 Mitchell Lasser has also demonstrated the importance of reviewing, inter alia, prior judgments to the decision-making process at the highest level of the French judicial system. Although that Court’s public decisions are drafted syllogistically, the materials for internal consideration tend to resemble common law decisions in their consideration of principles and conflicting norms.57

54 Marcus Faro de Castro, “The Courts, Law, and Democracy in Brazil,” International Social Science Journal 49, no. 152 (1997): 242–43, https://doi.org/10/br2vmv; Maria Angela Jardim de Santa Cruz Oliveira, “Reforming the Brazilian Supreme Federal Court: A Comparative Approach,” Washington University Global Studies Law Review 5 (2006): 141. As a result of the 2004 constitutional reforms (see, Keith S. Rosenn, “Amendments Nos. 1–70 and Constitutional Amendments of Revision Nos. 1–6 to the Constitution of the Federative Republic of Brazil, 1992–2012,” in World Constitutions Illustrated (William S. Hein & Co., 2012), amdt. 45.), however, the STF has the ability, via a special procedure involving a supra-majority, to articulate a binding precedent. This procedure has, however, been relatively little used since coming into being in 2007. The STF has issued 926,604 decisions since the beginning of 2007. In the same period, they have approved 56 súmulas vinculante. “Estatísticas do STF: Movimento Processual, a partir de 1940” (Brasília: Supremo Tribunal Federal, November 6, 2016), http://www.stf.jus.br; “Súmulas Vinculantes” (Brasília: Supremo Tribunal Federal, August 8, 2016), http://www.stf.jus.br/portal/cms/verTexto.asp?servico=jurisprudenciaSumulaVinculante. 55 Dr. Dang Quang Phuong and Ngo Coung, eds., The Supreme People’s Court of Vietnam: Benchbook Online, trans. Tran Thu Phuong, 2006, http://www.asianlii.org/vn/other/benchbk/. 56 I thank Dr. Ching-Fang Hsu for bringing this to my attention. 57 Mitchel de S.-O.-l’E. Lasser, Judicial Deliberations (Oxford University Press, 2009). 73

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This pattern of intra-“family” variation and inter-“family” overlap has led some contemporary commentators to conclude that the contemporary differences between common law and civil law are, in fact, primarily to do with the differences in the styles of judgment and formal rules, rather than substantive law.58 Even accepting the existence of significant substantive similarity, the style and form of legal reasoning cannot be dismissed as epiphenomenal out of hand. One cannot now, if it was ever possible to do so, draw a bright line between common law and civil law systems and there may well be a significant degree of overlap between members of each, but neither can the distinction be totally dismissed. This matter and its relevance to social rights adjudication are discussed in more detail in the next chapter. The third issue is the lack of attention to pre-Second World War judicial review outside of the US or its cursory dismissal on the basis that,

The very few courts that had the power to review the constitutionality of national legislation for violations of fundamental rights fell into one or more of three categories: they were recent or brief experiments; their claims to such power were heavily contested; or they exercised it in theory but not in practice.59

This position is problematic for two reasons. With respect to Gardbaum’s caveats, the fact that the courts of a given jurisdiction did not invalidate legislation or countermand an executive order does not mean that a formal judicial review mechanism did not have an effect. The mere possibility of such an occurrence, remote or otherwise, alters the incentive structure faced by political actors and, in turn, may alter their behaviour.60

58 Catherine Valcke, “Quebec Civil Law and Canadian Federalism,” Yale Journal of International Law 21 (1996): 84. (“[I]n civil systems, the authority of judicial decisions is indeed a matter of fact; it is not a matter of rule, as at common law.”). 59 Gardbaum, “The New Commonwealth Model,” 713–14. 60 Peter H. Russell, “Standing Up for Notwithstanding,” Alberta Law Review 29, no. 2 (1991): 293–309; Mark V. Tushnet, “Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty,” Michigan Law Review 94 (1995): 245–301. In other words, the existence of a formal mechanism of judicial review may well create a situation analogous to “bargaining in the shadow of the law.” Robert H. Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” The Yale Law Journal 88, no. 5 (1979): 950–97, https://doi.org/10.2307/795824. 74

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More concretely, there are numerous examples of countries with some form of judicial review prior to 1900.61 For example, the formal power review legislation existed in Norway and Switzerland from the late-1800s.62 However, prior to 1900 the formal power to review legislation and actual instances of that power being used tended to occur in Latin America. This should not be entirely surprising in light of the significant influence of the US constitution during the early years of Latin American independence.63 The 1811 Venezuelan Constitution formally entrenched judicial review, although it does not appear that the provision was never used.64 One of the duties of the Supreme Court under the 1826 Bolivian Constitution, was, “To hear the doubts of the other tribunals, respecting the real meaning of any law, and to consult with the Executive, that a proper explanation thereon may be given in the Chambers.”65 The first manifestation of judicial review in Latin America that saw significant use appears to have occurred in Mexico via the establishment of amparo—a set of procedures designed to facilitate the protection of individuals’ constitutional protections. This occurred first at the sub-national level in the 1841 Yucatan Constitution and at the national level in the Mexican Constitution of 1857. Moreover, the majority of Latin American countries at least flirted with the practice during the latter half of the 1800s.66 In Mexico and elsewhere, amparo, or similar procedures for seeking the protection of individual rights,67 had a substantial—although by no means

61 David Deener, “Judicial Review in Modern Constitutional Systems,” The American Political Science Review 46, no. 4 (December 1, 1952): 1083–86, https://doi.org/10/fhnqdx. 62 Radin, “The Judicial Review of Statutes in Continental Europe,” 116–17; Cappelletti and Adams, “Judicial Review of Legislation,” 1208. 63 David S. Law and Mila Versteeg, “The Declining Influence of the United States Constitution,” New York University Law Review 87, no. 3 (2012): 765 n5, 783–84. 64 Similar provisions were included in the constitutions of Costa Rica (1821), Nicaragua (1838), and Guatemala (1839). They, too, do not appear to have been employed. Phanor J. Eder, “Judicial Review in Latin America,” Ohio State Law Journal 21 (1960): 572 (n7). 65 “Constitution of the Bolivian Republic, 1826,” British and Foreign State Papers 23 (1852): 5–24, art. 110(8). 66 Eder, “Judicial Review in Latin America”; Helen L. Clagett, “Mexican Suit of Amparo,” Georgetown Law Journal 33 (1945 1944): 418; Allan R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of the Amparo Proceeding (Cambridge University Press, 2008), 4–7. 67 In Brazil, for example, habeas corpus first appeared in the 1830 penal code, but was quickly extended to cover threats to personal liberty as well as actual restraint. It was entrenched as a robust rights protection

Rosevear — Judicial Interpretation of Social Rights consistent—influence on individuals’ interactions with the State by preventing the state from acting or, occasionally, compelling it to do so.68 The exclusion of the Latin American tradition of judicial review appears to be premised on the belief that it is the ability to formally invalidate legislation that is the defining characteristic of the practice.69 At least insofar as social rights are concerned, I argue that this is not, or at least ought not to be, the case. The nature of social rights and the degree of specificity involved in state actions in relevant policy areas means that much of the hard work will be done at the sub-statute level; administrative action is at least as likely to be responsible for the (non-)realization of social rights. As such, the role of the judiciary in ensuring the realization of social rights extends beyond the evaluation and, as appropriate, invalidation of statutes to the compulsion or prevention of actions in specific instances and/or at the policy-level. This is not to suggest that there are not meaningful and consequential differences between the ability of a court to formally invalidate a statute and a court to determine that an action taken under the auspices of a law, regulation, or policy to be unconstitutional. Clearly this is not the case. However, both constitute a type of judicial supremacy and an examination of constitutionalized rights, social or otherwise ought to consider both. Indeed, a number of scholars have argued that it is the symbolic aspect of judicial decisions that are most likely to promote social change.70 In short, it bears

mechanism in the 1891 Constitution. Keith S. Rosenn, “Judicial Review in Latin America,” Ohio State Law Journal 35 (1974): 792. 68 Helen Lord Clagett, The Administration of Justice in Latin America (Oceana Publications New York, 1952); J. Lloyd Mecham, “Latin American Constitutions: Nominal and Real,” Journal of Politics 21, no. 02 (1959): 258–75, https://doi.org/10/bcntr7; James L. Busey, “Observations on Latin American Constitutionalism,” The Americas 24, no. 1 (July 1, 1967): 46–66, https://doi.org/10/bhcrdc; Pedro Pablo Camargo, “The Right to Judicial Protection: Amparo and Other Latin American Remedies for the Protection of Human Rights,” Lawyer of the Americas 3 (1971): 191; Hector Fix Zamudio, “The Writ of Amparo in Latin America,” Lawyer of the Americas 13, no. 3 (1981): 361–91; Joel G. Verner, “The Independence of Supreme Courts in Latin America: A Review of the Literature,” Journal of Latin American Studies 16, no. 2 (1984): 463–506, https://doi.org/10/bcc68n. 69 A second reason is persistent concerns about the ability, or more appropriately the lack thereof, of Latin American judiciaries to limit the power of their executive branches in practice. See e.g., Mecham, “Latin American Constitutions”; Keith S. Rosenn, “The Jeito: Brazil’s Institutional Bypass of the Formal Legal System and Its Developmental Implications,” American Journal of Comparative Law 19 (1971): 514–49, https://doi.org/10/bbh6bq; cf. Verner, “The Independence of Supreme Courts in Latin America.” 70 E.g., Michael McCann, “Law and Social Movements,” in The Blackwell Companion to Law and Society, ed. Austin Sarat (Blackwell, 2004), 506–22; César Rodríguez-Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America,” Texas Law Review 89, no. 7 (2011): 1669–98. 76

Rosevear — Judicial Interpretation of Social Rights remembering that the ability of the judiciary to exert influence on state action and policy is not restricted to either apex courts or the ability to invalidate laws.

3.2.2 Expansion The “second wave” of judicial review occurred between the end of the First World War and the mid to late-1960s. The defining characteristic of this second wave was the centralization of judicial review power in a single court.71 This model of judicial review can be traced to the Austrian constitution of 1920,72 an approach that is closely associated with the prescriptions of Austrian legal and political theorist Hans Kelsen, who was integral to its drafting.73 Judicial review based on this “Kelsenian” (or Austrian, or European) model centralized review power in a single, specialized court or tribunal and constructed that power as a negative, as opposed to positive one: constitutional courts were able to invalidate actions of the legislature, but they could not to compel it to act. This distinction was based on a rejection of the legitimacy of courts having the ability to invoke natural law principles, which was considered to transform them into legislators rather than judges. Instead, the power to review legislative action was premised on the application of the constitution (i.e. positive, rather than natural, law). This approach facilitated the spread of judicial review in no small part because it reconciled the desire for judicial oversight on the one hand and contemporary civil law orthodoxy requiring, at least rhetorically, a clear distinction between making and applying law on the other.74 During this era the Kelsenian model of judicial review was also adopted by Czechoslovakia (1920), Spain (1931), the Federal Republic of Germany (1949), and France (1958).75 Other countries, such as Ireland

71 Gardbaum, “The New Commonwealth Model,” 714. 72 “Constitution of the Republic of Austria, 1920,” British and Foreign State Papers 113 (1923): arts. 137- 147. 73 Kommers, “Judicial Review,” 57; Ginsburg, “The Global Spread of Constitutional Review,” 85. 74 Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992), 230–31. 75 Dail Eireann, ed., “Law of February 29th, 1920, Preliminary to the Constitutional Charter of the Czechoslovak Republic,” in Select Constitutions of the World, vol. 1, 1922, 143–44, arts. 1-3; Comparative Constitutions Project, ed., “Constitution of the Republic of Spain, December 9, 1931,” in World Constitutions Illustrated (William S. Hein & Co., 2012), arts. 121-124; Amos J. Peaslee, ed., “Basic Law for the Federal Republic of Germany, 1949,” in Constitutions of Nations, vol. 3 (Rumford, 1950), 599–626, arts. 92-94;

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(1937) and Costa Rica (1949),76 adopted a centralized model of constitutional review, but assigned the power to the apex ordinary court rather than a specialized body. Judicial review truly came into its own, however, after the end of the Second World War and, in relation to constitutional bills of rights, with the commencement of the “third wave” of democratization.77 In 1962, the number of written constitutions making explicit provision for judicial review first exceeded the number that did not. By the end of the 1970s, the ratio was nearly two-to-one; by the mid-1990s, it was three-to-one; by 2010 it was five-to-one.78 A wide variety of explanations have been advanced for the global expansion of judicial review and constitutional bills of rights. They can be broadly divided into supply- side and demand-side explanations.79 The latter type understands the global expansion of judicial review and the constitutionalization of rights as responses to functional or ideational demands on the structures of government. The former explains the expansion as a product of domestic institutional factors. Independently, none of these explanations are

Raymond Aron, ed., “Constitution of the French Republic, 1958 (Vth Republic),” in France: The New Republic (Fund for the Republic, 1960), arts. 46, 54, 61-62. 76 Amos J. Peaslee and Dorothy Peaslee Xydis, eds., “Constitution of Ireland (1937),” in Constitutions of Nations, 1950, 239–67, art. 34; “Constitution of Costa Rica, 1949,” British and Foreign State Papers 155 (1958): 175–220, art. 10. The 1917-1919 Constitution also made provision for judicial review of the constitutionality of legislative acts. However, the Court was only able to do so when the legislature had re- passed a bill vetoed by the president for unconstitutionality. “Constitution of the Republic of Costa Rica, 1917,” British and Foreign State Papers 125 (1932): arts. 79-84. 77 Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, OK: University of Oklahoma, 1991). 78 These statistics are drawn from the Comparative Constitutions Project Dataset (version 2). A constitution was deemed to make explicit provision for judicial review if the response to survey question v362 (“To whom does the constitution assign the responsibility for the interpretation of the constitution”) was coded as “Any Ordinary Court,” “Constitutional Court/council,” “Supreme Court Only,” or “Special Chamber of the Supreme Court.” Judicial review was deemed absent, for present purposes only, if the constitution assigned the legislative assembly the responsibility for interpreting, authority was not explicitly assigned, or it was left explicitly to non-constitutional law. Zachary Elkins, Tom Ginsburg, and James Melton, “The Comparative Constitutions Project: A Cross-National Historical Dataset of Written Constitutions,” Survey Instrument, July 22, 2008. 79 Ginsburg, “The Global Spread of Constitutional Review”; Tom Ginsburg and Mila Versteeg, “Why Do Countries Adopt Constitutional Review?,” Journal of Law, Economics, and Organization 30, no. 3 (2014): 593–97. 78

Rosevear — Judicial Interpretation of Social Rights capable of covering the field. However, they tend not to be directly contradictory and are often complementary.80 On the demand-side, in the immediate wake of the Second World War the promulgation of bills of rights and the judicial enforcement thereof were seen as a plausible means of preventing the fascist excesses of the preceding decades. According to Gardbaum, for example,

The obvious and catastrophic failure of the legislative supremacy model of constitutionalism to prevent totalitarian takeovers, and the sheer scale of human rights violations before and during World War II, meant that, almost without exception, when the occasion arose for a country to make a fresh start and enact a new constitution, the essentials of the polar opposite American model were adopted.81

More recently, this trend has been linked with the spread of a “rights culture” and the development of domestic structures for the support of socially progressive goals legal professionals and litigation play a prominent, although not necessarily dominant, role.82 Ideological commitment to establishing, maintaining, and promoting the rule of law is also frequently cited as a reason for the adoption of judicial review.83 Another set of supply-side explanations are concerned with coordination problems. From an economic perspective, a high degree of judicial independence—something generally associated with judicial review—is seen as a means by which states can make and facilitate credible commitments to cement investment and economic growth via the creation of a stable property rights regime and enforceable contracts.84 More broadly, the

80 John Ferejohn, “Judicializing Politics, Politicizing Law,” Law and Contemporary Problems 65, no. 3 (2002): 55–60, https://doi.org/10/b2tz8m. 81 Gardbaum, “The New Commonwealth Model,” 714. 82 Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University of Chicago Press, 1998); see also, Colin J Beck, Gili S Drori, and John W Meyer, “World Influences on Human Rights Language in Constitutions: A Cross-National Study,” International Sociology 27, no. 4 (2012): 483–501, https://doi.org/10.1177/0268580912443575. 83 Martin Shapiro, “The Success of Judicial Review,” in Constitutional Dialogues in Comparative Perspective, ed. Sally Jane. Kenney, William M. Reisinger, and John C. Reitz (St. Martin’s Press, 1999). 84 Douglass C. North and Barry R. Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England,” Journal of Economic History 29, no. 4 (1989): 803–32; Rafael La Porta et al., “Law and Finance,” Journal of Political Economy 106 (1998): 1113–55,

Rosevear — Judicial Interpretation of Social Rights emergence and subsequent global expansion of judicial review has also been characterized as a logical response “to a nation’s need for an umpire to resolve federalism or separation of powers disputes,”85 or the demand for oversight of increasingly complex machinery of government.86 The standard critique of these explanations is that they do not adequately account for the timing, variation in institutional design, and different levels of activism that characterize contemporary judicial review as well as failing to consider the role of legal professionals in cultivating and shaping this demand.87 Supply-side arguments tend to emphasize the importance of domestic political context in explaining the rise of judicial power. One line of reasoning suggests that partisan fragmentation limits the ability of the legislative and executive branches to address policy problems, creating a vacuum into which courts may be thrust,88 or at least invited to enter.89 Hirschl, on the other hand, suggests a less innocuous explanation: that in the face of the declining fortunes of neo-liberal political parties, elected officials, supported by economic elites, entrenched their policy preferences as constitutional law while simultaneously empowering the courts to enforce them.90 With respect to considerations influencing the constitution-making process, Ginsburg suggests that the stability and distribution of domestic political power are key.91 Where there are multiple political parties with a credible chance of attaining electoral dominance, logic dictates that all will benefit from a powerful judiciary, as this will limit the damage an electorally victorious party can exact

https://doi.org/10/cd8ck4; Paul G Mahoney, “The Common Law and Economic Growth: Hayek Might Be Right,” The Journal of Legal Studies 30, no. 2 (2001): 503–25. 85 Steven G. Calabresi and Jasmine Owens, “The Origins of Judicial Review,” Public Law and Legal Theory Research Paper Series (Northwestern University School of Law, February 5, 2014), 7, http://papers.ssrn.com/abstract=2391457. 86 Mauro Cappelletti, The Judicial Process in Comparative Perspective (Clarendon Press, 1989), 11–24. 87 Ran Hirschl, “The Political Origins of Judicial Empowerment Through Constitutionalization: Lessons from Four Constitutional Revolutions,” Law & Social Inquiry 25, no. 1 (2000): 96–102. 88 Ferejohn, “Judicializing Politics, Politicizing Law,” 57–58. 89 Keith E. Whittington, “‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99, no. 4 (2005): 583–96. 90 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004). 91 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003). 80

Rosevear — Judicial Interpretation of Social Rights on their opponents. Conversely, where a single entity dominates electoral politics, they will push for a weak judiciary in order to minimize limitations on their power.

3.2.3 Contemporary Manifestation At least 80% of the world’s constitutions now formally accord some portion of the judiciary the ability to interpret the constitution and determine the conformity of state action with that interpretation in at least some respects.92 While the core element—the ability to countermand legislative will—remains constant, what judicial review looks like in one jurisdiction versus another can vary greatly both across and within models. As discussed above, review power may be centralized in a single, usually specialized, institution or it may be the competence of all judges and the decisions may apply generally or only to the matter decided. In addition to this, there is the potential for variation in the timing of review, nature of the dispute, parties capable of bringing claims, and the finality of the decision. The matter can be further complicated by the presence of multiple variants within a single jurisdiction.93 Although judicial review is generally conceived of as a judicial response to completed legislative action (a posteriori or ex post review), this is not necessarily the case. It is not uncommon for a court to be consulted prior to the passage of legislation to ensure its compliance with the constitution (a priori or ex ante review). The most prominent example of the latter is the French Constitutional Council (Conseil Constitutionnel),94 whose purview has led to its involvement in, inter alia, a number of social rights protection

92 Ginsburg and Versteeg, “Why Do Countries Adopt Constitutional Review?,” 587; David S Law and Mila Versteeg, “The Evolution and Ideology of Global Constitutionalism,” California Law Review 99 (2011): 1198–99. 93 The following discussion draws heavily on: Lee Epstein, Jack Knight, and Olga Shvetsova, “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government,” Law & Society Review 35, no. 1 (2001): 117–164, https://doi.org/10/c4597t; Gardbaum, “The New Commonwealth Model”; Patricio Navia and Julio Rios-Figueroa, “The Constitutional Adjudication Mosaic of Latin America,” Comparative Political Studies 38, no. 2 (March 1, 2005): 189–217, https://doi.org/10/crd7tz; Joel I. Colón-Ríos, “A New Typology of Judicial Review of Legislation,” Global Constitutionalism 3, no. 2 (2014): 143–69. 94 E.g., Michael H. Davis, “The Law/Politics Distinction, the French Conseil Constitutionnel, and the U. S. Supreme Court,” The American Journal of Comparative Law 34, no. 1 (1986): 45–92, https://doi.org/10/d4n5g6; Stone, The Birth of Judicial Politics in France; Lech Garlicki, “Constitutional Courts Versus Supreme Courts,” International Journal of Constitutional Law 5, no. 1 (2007): 44–68, https://doi.org/10/fmcdwf. 81

Rosevear — Judicial Interpretation of Social Rights cases, particularly in relation to employment and social security.95 The Chilean Constitutional Tribunal has also played a significant role in the post-Pinochet era. Between 1990 and 2001 its rulings—instigated by a sufficient number of legislators challenged their constitutionality—required the modification of legislation passed but not promulgated on 225 occasions.96 There are three additional points of note with respect to this form of judicial review. First, while not theoretically incompatible with diffuse review, in practice a priori review is almost always centralized.97 Second, the timing of the review—before the law comes into force—means that disputes it considers are necessarily abstract. Third, this form of review—abstract, centralized, a priori review—is, to the best of my knowledge, never the only form of judicial review in a given jurisdiction. The occurrence of an actual harm is often a precondition of justiciability (concrete review), but many jurisdictions will permit the consideration of a hypothetical issue with constitutional implications (abstract review). By definition, a priori review is abstract: a law that has not come into force cannot have caused a legally relevant harm. Where a law has already entered into force, both abstract and concrete options are available. With very limited exceptions, older common law regimes—whatever the strength of their constitutional bill of rights—tend to require a concrete dispute. Where abstract review is permissible, standing is often limited to specific political actors such as the president, the legislature, or opposition political parties. Even in jurisdictions with diffuse judicial review in other circumstances, abstract review tends be centralized in a single, specialized body. One example of this is Brazil, which has a diffuse system of individualized claims, but whose apex court is also tasked with original and sole jurisdiction in hearing certain types

95 E.g., Decision N° 2010-617 DC, Act to Reform Retirement Pensions (Conseil Constitutionel (France) November 9, 2010); Decision N° 2013-672 DC, Law on the Protection of Employment (Conseil Constitutionnel June 13, 2013); Decision N° 2014-698 DC, Law Supplementing the Financing of Social Security for 2014 (Conseil Constitutionnel August 6, 2014). 96 Navia and Rios-Figueroa, “The Constitutional Adjudication Mosaic of Latin America,” 207–8. 97 The only exception that the author is aware of is Canadian: provincial first ministers have the ability, via their respective Lieutenant Governors, to refer constitution questions to the provincial appellate courts for decision. These questions are abstract and may, depending on how they are framed, act as a de facto review of legislation that has yet to be enacted. “Supreme Court Act,” c. S-26 RSC § (1985) s.36. 82

Rosevear — Judicial Interpretation of Social Rights of constitutional case, including matters of abstract review.98 The practice of Parliament or provincial legislatures referring questions to the Supreme Court Canada, a practice with origins in pre-18th Century English common law, for a ruling is also a form of abstract review.99 Standing to refer a matter is, however, highly restricted and, while important, these cases constitute only a small portion of the Court’s docket.100 Who does and does not have standing to advance a claim is broadly similar across all jurisdictions with respect to concrete review: all parties directly harmed by a constitutional wrong are likely to have standing to advance a claim. Where abstract review is at play, there are significant variations in who is eligible to bring a claim. Standing in abstract review can be as broad as it is for concrete review, although this is not particularly common. The 2009 Bolivian Constitution states that:

Any person, in his own right or on behalf of a collective, is authorized to take legal actions in defense of environmental rights, without prejudice to the obligation of public institutions to act on their own in the face of attacks on the environment.101

While not explicitly authorizing abstract review, this is significantly more inclusive notion of standing than that of many jurisdictions, for example the US, particularly in relation to environmental rights.102 Normally, where abstract review is permissible the ability to initiate the review is restricted to a subset of political actors and, possibly, certain

98 Jefri J. Ruchti, ed., “Constitution of the Federative Republic of Brazil, 1988, as Amended to December 2014,” in Constitutions of the Countries of the World, trans. Keith S. Rosenn (William S. Hein & Co., 2015), 1 arts. 102 and 103. 99 James L. Huffman and MardiLyn Saathoff, “Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction,” Minnesota Law Review 74 (1990 1989): 1255– 63. 100 Between the establishment of the procedure in Canada in 1875 and the end of 2017, there were 209 reference cases: 92 before the Supreme Court, 61 before the various provincial appellate courts, and 56 before the Judicial Committee of the Privy Council (which served as Canada’s court of final appeal until 1949). Kate Puddister, Seeking the Court’s Advice: The Politics of the Canadian Reference Power, Law and Society (UBC Press, 2019), 44. 101 “The Constitution of the Pluri-National State of Bolivia, 2009” (2009), http://www.heinonline.org.myaccess.library.utoronto.ca/HOL/Page?handle=hein.cow/zzbo0044&collection =cow, art. 34. 102 Sierra Club v. Morton, 405 U.S. 727 (1972). (In which the Court rejected a claim by the Sierra Club as it failed to demonstrate that it or its membership had been directly and adversely affect and rejected the idea the organization was entitled to “vindicate their own value preferences through the judicial process” (740).). 83

Rosevear — Judicial Interpretation of Social Rights professional and civil society organizations. On the more restrictive end of the spectrum are jurisdictions such as Canada, which only permits the heads of the federal and provincial governments to refer abstract questions to the courts. More permissively, the Polish Constitution permits the holders of a number of key elected and appointed offices, a group of 50 Deputies (lower house) or 30 Senators (upper house), subnational units, trade unions and employer organizations with a national presence, and religious organizations to bring claims of this nature to the attention of the Constitutional Tribunal.103 Other groups which have been granted this ability include national lawyer’s associations and legislative house leaders.104 The finality of a judicial decision regarding constitutionality once the internal appeals process has been exhausted also varies across jurisdictions. In the US, for example, a decision of the Supreme Court regarding constitutionality can only be rendered inoperative by a subsequent decision of the Court itself or by constitutional change— amendment or wholesale replacement. There are also a number of jurisdictions in which, under certain circumstances, judicial decisions are effectively immune from constitutional amendment. In Indonesia, for example, the article detailing the amendment procedure prohibits amendment of “Provisions relating to the form of the unitary state of the Republic of Indonesia.”105 Thus, decisions of Indonesia’s Constitutional Court with respect to the “form of the unitary state” cannot be overridden except by the promulgation of a new constitution. According even greater power to the judiciary are provisions that preclude amendments contrary to certain principles or rights laid out in the constitution. In Germany, for example,

103 Polish Constitutional Tribunal, trans., “Constitution of the Republic of Poland, 1997 (As Amended to 2009),” in World Constitutions Illustrated (William S. Hein & Co., n.d.), arts. 188, 191. 104 Respectively, “Constitution of the Federative Republic of Brazil” (1988) art. 103(VII); “The Constitution of the French Republic, 1958 (as Amended to 2008),” in Constitutions of the Countries of the World (Oceana Online, n.d.), art. 61. 105 “The Constitution of the Republic of Indonesia, 1945 (as Amended to 2002),” in Constitutions of the Countries of the World (Oceana Online, n.d.), art. 37(5). 84

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Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.106

In contrast to these jurisdictions with “strong-form” judicial review, the decisions of apex courts on constitutional issues in jurisdictions with “weak-form” judicial review may be subject to legislative override, as they are in Canada,107 or require Parliamentary acknowledgement to have effect, as is the case in the UK.108 It should, however, be noted that in both of these jurisdictions, Parliamentary override is a largely speculative power. In Canada, the override of a Supreme Court decision by a legislature has never occurred at the federal level and only rarely at the provincial level, almost exclusively in relation to the protection of the language and culture of Quebec.109 In the UK, there are no instances in which Parliament has not acted on a Declaration of Incompatibility once the appeal process has been exhausted.110 As discussed above, however, this does not mean that these mechanisms do influence the behaviour of legislative, executive, and judicial actors. The institutional rules relating to judicial review have classified in several different ways. These include distinguishing between parliamentary, judicial, and commonwealth models of supremacy,111 American and Kelsenian models of judicial review,112 strong- form and weak-form review,113 as well as variations and expansions of these approaches.114

106 Peaslee, “Basic Law for the Federal Republic of Germany, 1949”, art. 79(3). 107 “Schedule B to the Canada Act 1982, (U.K.) 1982,” c. 11 § (1982), s. 33. 108 “Human Rights Act, 1998,” United Kingdom § c.42 (n.d.), s. 4. 109 David Johansen and Philip Rosen, “The Notwithstanding Clause of the Charter,” Background Paper (Parliament of Canada, May 17, 2012), 7–8; cf. Tsvi Kahana, “Understanding the Notwithstanding Mechanism,” The University of Toronto Law Journal 52, no. 2 (2002): 221–274, https://doi.org/10/dkwh7k. 110 Human Rights Joint Committee, “Human Rights Judgments” (UK Parliament, March 4, 2015), ch. 4. 111 Gardbaum, “The New Commonwealth Model.” 112 Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution,” The Journal of Politics 4, no. 2 (May 1, 1942): 183–200, https://doi.org/10.2307/2125770. 113 Mark V. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, 2007). 114 Alessandro Pizzorusso, “Italian and American Models of the Judiciary and of Judicial Review of Legislation: A Comparison of Recent Tendencies,” The American Journal of Comparative Law 38, no. 2 (1990): 373–86, https://doi.org/10.2307/840104; Navia and Rios-Figueroa, “The Constitutional Adjudication Mosaic of Latin America”; Colón-Ríos, “A New Typology of Judicial Review of Legislation.” 85

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Each can be useful in particular contexts, but rather than labelling particular jurisdictions as one or another ideal-type that more or less accurately accords with their actual institutional makeup, the various institutional features described above are, for present purposes, better understood as individual factors influencing the scope of judicial authority and the centralization of that authority. By judicial authority, I mean the ability of courts to compel state and non-state actors to act in accordance with their rulings; the scope of that authority, then, is the range of areas in which the judiciary has the ability to compel such actions. Centralization in this context refers to the degree to which decisions as to how judicial authority is to be exercised are made by the apex court as opposed to spread throughout the judicial structure. The relationship of these institutional features and concepts is discussed in the next chapter.

3.2.4 Summary The development of contemporary judicial review can be traced to the early US, but it did not remain the sole domain of America for long—in addition to a few examples in Europe, the majority of Latin America experimented with it during the 18th Century. In no small part because of that experimentation and the growth of “rights cultures,” both domestic and international, the overwhelming majority of the world’s constitutions now make provision for judicial review of legislative and executive action for compliance with the constitution. Moreover, the norms and practices that govern when and how such review is undertaken vary significantly. This, in turn, impacts who advances constitutional claims, how judges interpret constitutional guarantees, and what effect these have on the situation of the individual litigants and on government policy in general.

3.3 Regarding Justiciability This research analysis focuses social rights as justiciable constitutional guarantees, as opposed to those which a constitutionalized as directive principles or aspirational goals, and their translation by courts in specific instances.115 With respect to determining the

115 Unless otherwise noted both general and specific references to courts, supreme courts, apex courts, and constitutional courts are used interchangeably (except insofar as they refer to quantity or a specific court) to mean the court in a given jurisdiction whose interpretations of the constitution are not subject to review by any other element of that jurisdiction’s judiciary. 86

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“strength” of a constitutional social right once its presence was established, the default condition was aspirational; positive evidence, explicit or implicit, was required for a determination of justiciability. The clearest example of such evidence was an explicit declaration of the role of the judiciary in the defense of the constitution of the type found in the 1992 Estonian Constitution:

Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.

The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.116

Some constitutions make the (non-)justiciability of certain guarantees quite clear by explicitly affirming that individuals are able to bring allegations of rights violations and/or non-fulfillment before a judge or, in the alternative, stipulating that a particular clause, article, or chapter may not serve as grounds for a legal proceeding. For example, Oman’s Basic Statute of the State, 1996 makes provision for four economic and social rights—to a fair wage, to social security, to health, and to education. These are set out in Chapter 2 of the document, entitled “The Principles Guiding the Policy of the State.”117 The implication of the chapter title coupled with the absence of a direct reference to the justiciability of these rights mean that these rights cannot be understood as justiciable. Where a constitution stipulates that some clauses may and other may not serve as grounds for legal claims, interpretation is unlikely to be controversial. When only a negative or affirmative clause was present, this can be taken to indicate an exception to a general rule and the guarantees not referred to presumed to be (non-justiciable) justiciable in the case of a clause specifying the (justiciability) non-justiciability of certain clauses. For example, the Chilean Constitution states that

116 “The Constitution of the Republic of Estonia, 1992 (as Amended to 13 August 2015),” in World Constitutions Illustrated (William S. Hein & Co., 2015), chap. II, s.15. 117 Ministry of Legal Affairs, trans., “The Basic Statute of the State, 1996 (as Amended to 19 October 2011) [Oman],” in World Constitutions Illustrated (William S. Hein & Co., 2013). 87

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Basic education and secondary education are obligatory; the State must finance a gratuitous system with this objective, designed to assure access to it by all of the population. In the case of secondary education, this system, in conformity to the law, will be extended until 21 years of age has been reached.118

Viewed in isolation, the specificity and use of the imperative suggests the existence of a justiciable right to education. However, this is complicated by Article 20, which reads:

He who by cause of arbitrary or illegal acts or omissions suffers privation, disturbance [peturbación] or threat in the legitimate exercise of the rights and guarantees established in Article 19, Numerals 1, 2, 3 fifth paragraph, 4, 5, 6, 9 final paragraph, 11, 12, 13, 15, 16 concerning the freedom to work and to the right of freedom of choice and freedom to contract, and to what is established in the fourth paragraph, [and Numerals] 19, 21, 22, 23, 24 and 25, can on his own, or anyone on his behalf, resort to the respective Court of Appeals, which will immediately adopt the measures [providencias] that it judges necessary to re-establish the rule of law and assure due protection to the affected [person], without prejudice to the other rights which he might assert before the authority or the corresponding tribunals

The recourse of protection [recurso de protección] in the case of Numeral 8 of Article 19, when the right to live in an environment free from contamination has been affected by an illegal act or omission imputable to an authority or a specific person, can also proceed.119

Accordingly, those economic and social rights outlined in the identified clauses—to a fair wage (art. 19(16)), to unionize (art. 19(19)), to a healthy environment and to environmental protection (art. 19(8))—are coded as justiciable while those set out in the other subsections of Article 19—to education (art. 19(10)), to health (art. 19(9)), and to social security (art. 19(18))—are coded as aspirational. The 2005 Interim National Constitution of the Republic of the Sudan (which remains in force as of 2016) contains a similar clause:

Unless this Constitution otherwise provides, or a duly enacted law guarantees the rights and liberties described in this Chapter [Part I, Chapter II Guiding Principles and Directives], the provisions contained in this

118 Adela Staines et al., trans., “Political Constitution of the Republic of Chile 1980 as Codified by Supreme Decree No. 100 of 17 September 2005 as Amended to Law No. 20.870 of 9 November 2015,” in World Constitutions Illustrated (William S. Hein & Co., 2015), art. 19(10). 119 Ibid. 88

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Chapter are not by themselves enforceable in a court of law; however, the principles expressed herein are basic to governance and the State is duly- bound to be guided by them, especially in making policies and laws.120

In contrast to the Chilean Constitution, however, the implicit default condition of constitutional provisions is justiciability. The justiciability of the majority of the economic and social rights in this Constitution is supported by Article 48, the last article of Part Two (“Bill of Rights”) of the document:

No derogation from the rights and freedoms enshrined in this Bill shall be made except in accordance with the provisions of this Constitution and only with the approval of the National Legislature. The Bill of Rights shall be upheld, protected and applied by the Constitutional Court and other competent courts; the Human Rights Commission shall monitor its application in the State.

Thus, the rights to join or form a trade union, social security, child protection, health, and education, which are found in Part II of the Constitution, are justiciable. In contrast, the rights to a healthy environment and to environmental protection, set out in Part I, Chapter II, are aspirational only.

3.4 Constitutionalization of Social Rights

3.4.1 The International Covenant on Economic, Social and Cultural Rights Discussion of the emergence of social rights in international human rights treaties and patterns of their formal entrenchment in domestic constitutions is beyond the scope of this project. However, the symbolic significance of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its influence on the formulation of social rights in domestic constitutions warrants a brief discussion consideration. One particularly important reason for paying attention to the timing of a country’s ratification of the treaty is that ratification can be understood as demonstrating an awareness of the rights outlined therein and a notional recognition of their importance, although not necessarily a commitment to their fulfillment, both domestically and internationally, by a

120 “The Interim National Constitution of the Republic of the Sudan, 2005,” in Constitutions of the Countries of the World (Oceana Online, 2005), art. 22. 89

Rosevear — Judicial Interpretation of Social Rights country’s political actors.121 Accordingly, the relevant clauses of the ICESCR and its ratification are briefly discussed below before moving on to an overview of the entrenchment of the rights to education, health, and housing in domestic constitutions. The ICESCR was adopted and opened for signature by the General Assembly of the United Nations on 16 December 1966 for entry into force on 3 January 1976.122 In the decade between its adoption and entry into force, thirty-four countries ratified the treaty. In both absolute and proportional terms, civil law jurisdictions were much more likely to have ratified the treaty.123 Geographically, ratification was relatively less likely in countries in Asia and Sub-Saharan Africa and relatively more likely in the Middle East and North Africa.124 The number of ratifying countries reached one hundred by the beginning of the 1990s, one hundred and forty by 2000, and reached one hundred and sixty-four by the start of 2016. The majority of the thirty-three countries which have yet to ratify the treaty are small island nations in the Pacific and Caribbean. There are, however, some notable exceptions: The United States (which signed in 1977 but has yet to ratify), Singapore, and four of the Arab States of the Persian Gulf (Oman, Saudi Arabia, Qatar, and the UAE).125 The social rights it articulates include those to housing,

Article 11. (1) The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including… housing, and to the continuous improvement of living conditions…

121 See e.g., Linda Camp Keith, “The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?,” Journal of Peace Research 36, no. 1 (1999): 95– 118; Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?,” The Yale Law Journal 111, no. 8 (2002): 1935–2042; Emilie M. Hafner-Burton, “International Regimes for Human Rights,” Annual Review of Political Science 15, no. 1 (2012): 265–86, https://doi.org/10.1146/annurev-polisci-031710-114414; Steven J. Hoffman and John-Arne Røttingen, “Assessing the Expected Impact of Global Health Treaties: Evidence from 90 Quantitative Evaluations,” American Journal of Public Health 105, no. 1 (2015): 26–40. 122 UN General Assembly, “International Covenant on Economic, Social and Cultural Rights.” 123 Twenty-eight civil law jurisdictions (23%) and three common law jurisdictions (7%) had ratified the treaty by the end of 1975. Evan Rosevear, Ran Hirschl, and Courtney Jung, “Justiciable and Aspirational ESRs in National Constitutions,” in The Future of Economic and Social Rights, ed. Katharine G. Young (Cambridge University Press, 2019), 37–65 replication data available at . 124 Ibid. 125 Office of the High Commissioner of Human Rights, “Status of Ratification,” accessed October 28, 2016, http://indicators.ohchr.org/. 90

Rosevear — Judicial Interpretation of Social Rights health,

Article 12. (1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: . . .

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. and education,

Article 13. (1) The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society…

(2) The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all…

These clauses are noteworthy because they articulate a widely accepted vision of the basic components of a just society and because the language of contemporary constitutional social rights guarantees is modeled on these articles. Another significant element of the treaty is Article 2(1), which outlines the obligations of state parties to the Treaty.

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Two elements of this clause are simultaneously likely responsible for the treaty’s widespread ratification and the difficulty of establishing clear obligations under it: the requirement that each state take steps toward “achieving progressively the full realization of the rights recognized” by the treaty “to the maximum of its available resources.” This 91

Rosevear — Judicial Interpretation of Social Rights terminology introduces uncertainty in the content of the rights set out in the Treaty and has led to substantial debate and commentary by CESCR, academics, and domestic apex courts looking to the Treaty for guidance in the interpretation of domestic law.126 Also of note is the stringent requirement—much more so than the other guarantees—for the fulfillment of the promise of primary education.

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.127

The Article is significant in that it imposes a clear deadline for the establishment of plan to provide a specific set of programs. However, the uncertainty of what constitutes a “reasonable number of years” remains a concern. An interesting parallel in this respect is the decision of the US Supreme Court in the follow-up to Brown v Board of Education,128 in which the Court, order the relevant district courts to act with “all deliberate speed” in order to redress the unconstitutional segregation of schools.129 There, too, the meaning is uncertain and to this day the degree to which the Court’s decision, as opposed non-legal factors, are responsible for the lower level of segregation in schools remains contested.130

126 E.g., Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)” (United Nations, 1991); Minister of Health v Treatment Action Campaign (No. 2), [2002] ZACC 15 (2002), paras. 26-39; David Bilchitz, “Giving Socio- Economic Rights Teeth: The Minimum Core and Its Importance,” South African Law Journal 119 (2002): 484–501; Karin Lehmann, “In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth of the Minimum Core,” American University International Law Review 22, no. 1 (2006): 163–97; Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content”; Ben Saul, David Kinley, and Jaqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford University Press, 2014). 127 “GA Res. 2200A (XXI) (International Covenant on Economic, Social and Cultural Rights)” (1976), art. 14. 128 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 129 Brown v. Board of Education of Topeka (II), 394 U.S. 294 (1955). 130 Gerald N. Rosenberg, “Substituting Symbol for Substance: What Did Brown Really Accomplish?,” Political Science and Politics 37 (2004): 205–9, https://doi.org/10/bbq3m9. 92

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These examples highlight an important tension between legal certainty on the one hand and justice—that is, achieving the “correct” result in a particular case—on the other. The existence of clear rules about what is and is not permissible under the law is seen as a core element of a legitimate legal order.131 In practice, however, the complexity and degree of uncertainty involved in the development and implementation of the social programs necessary to realize social rights guarantees and their integration into government policy in combination with the serious challenge to democratic legitimacy raised by courts dictating legislative and administrative agendas means that certainty is effectively impossible.

3.4.2 General Patterns of Entrenchment

Figure 1. Percentage of Constitutions Containing Social Rights, 2016

Right Present Justiciable Child Protection 67.5% 50.5% Development 17.5% 11.9% Education 81.4% 58.8% Food & Water 24.2% 15.5% Healthcare 70.1% 42.8% Housing 42.8% 26.8% Land 14.0% 8.3% Social Security 69.1% 42.8%

More than 80% of constitutions in force at the start of 2016 contained at least one of the standard battery of eight social rights discussed above and more than 60% contained at least one social right that was explicitly justiciable.132 Figure 1 indicates the presence and justiciability of each of the eight social rights for that timeframe. Education, justiciable in one hundred and fourteen constitutions, aspirational in another forty-four and absent from only thirty-six, was the most commonly entrenched social right.133 The right to land,

131 See e.g., Lon L. Fuller, The Morality of Law, Revised (Yale University Press, 1969), 33–39. 132 That is to say, the rights to child protection, development, education, food and water, health, housing, land, and social security not contingent on employment. 133 See Rosevear, Hirschl, and Jung, “Justiciable and Aspirational ESRs.” 93

Rosevear — Judicial Interpretation of Social Rights justiciable in sixteen constitutions, aspirational in a further eleven, and absent from one hundred and sixty-six was the least commonly entrenched.

3.4.2.1 Legal Tradition The mean number of social rights entrenched in a constitution varies substantially across legal traditions. As Figure 2 indicates, constitutions in countries with a civil law influence tend to include nearly twice as many social rights in their constitutions in one form or another and more than three times as many justiciable social rights as compared to those with a common law influence.134 It should also be noted that the civil law is much more prevalent than the common law. When considered individually, each social right is at least twice as likely to be justiciable in a civil law constitution, and never less likely to be present. The one clear exception to the general trend is the presence of the right to food and water in one quarter of the constitutions of both. Although the right is justiciable in only four common law countries—Fiji, Kenya, Malawi, and Nepal—it is aspirational in an additional seven. In contrast, the right is aspirational in only six civil law countries, but justiciable in twenty-three.

Figure 2. Social Rights per Constitution by Legal Tradition, 2016

Legal Tradition Present Justiciable n Civil 4.5 3.3 121 Common 2.3 1.0 46 Other 3.6 1.9 25

3.4.2.2 Region As shown in Figure 3, which shows the average number of social rights present and justiciable according to region, Latin American constitutions tend to include more rights social rights and to make those rights justiciable than do the constitutions of any other

134 In both cases the influence of the legal tradition may be either exclusive or in combination with either or both of Islamic and customary law. Countries which have legal traditions influenced by both common law and civil law or neither are classed as “other.” This classification scheme is derived from the JuriGlobe classification scheme. Louis Perret et al., “World Legal Systems” (JuriGlobe Research Group, University of Ottawa, 2008), http://www.juriglobe.ca/eng/index.php. An explanation and justification of this modification can be found in Rosevear, Hirschl, and Jung, “Justiciable and Aspirational ESRs.” 94

Rosevear — Judicial Interpretation of Social Rights region.135 At least two social rights are present in each of the eighteen countries in the region, and only two countries—Belize and Chile—have no justiciable social rights.136 There are also at least five justiciable social rights in thirteen of the eighteen countries in the region. The post-communist states in Eastern Europe and Central Asia, Sub-Saharan Africa, and Asia all average more than four social rights present. The latter two, however, have relatively few justiciable social rights. At the other end of the spectrum are the constitutions of Western Europe and North America and those of the Small Island Developing States. In the former, no social rights other than the right to education is present in more than half of constitutions; in the latter, no rights at all are present in more than half.

Figure 3. Social Rights per Constitution by Region, 2016 Region Present Justiciable n Middle East & North Africa 3.7 2.2 23 Asia 4.1 1.3 23 Post-Communist States 4.6 4.1 29 Latin America 6.0 5.3 18 Sub-Saharan Africa 4.6 2.8 39 Western Europe & North America 2.8 1.7 27 Small Island Developing States 2.1 1.4 35

There are also notable trends in the entrenchment of the right to land and the right to food and water. The right to land is justiciable in half of Latin American constitutions and present in two-thirds. Outside of Latin America, however, the right is present in less than a tenth and justiciable in less than a twentieth. In contrast to the general trend in post- communist constitutions, the right is completely absent from the region. The right to food and water is not common outside of Latin American—where it is present in three-quarters of the constitutions—but it is present in a least of few constitutions in each of the other regions with the exception of Western Europe and North America, where the right is not found.

135 Rosevear, Hirschl, and Jung, “Justiciable and Aspirational ESRs.” 136 Belize is the only common law jurisdiction in Latin America. 95

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3.4.2.3 Economic Development Although not demonstrative of causation in either direction, the 2015/2016 data does indicate a negative correlation between economic development and social rights entrenchment. Figure 4 reports the percentage of constitutions incorporating a variety of justiciable social rights in each of the four economic groups identified by the World Bank.137 The primary division, at least with respect to social rights, appears to be between high income countries on the one hand and the rest of the world on the other. On average, there are 1.8 more social rights present in the constitutions of low income countries (4.8) than there are in those of high income countries (3.2), and 1.6 more justiciable rights (3.4 as compared to 1.8).

Figure 4 Constitutions Containing Justiciable Social Rights by Income Level

Income Level Health Education Food & Water Housing Land N Low 54% 75% 25% 32% 7% 28 Low Middle 51% 63% 22% 37% 10% 42 High Middle 52% 65% 21% 31% 10% 48 High 29% 45% 4% 20% 8% 51

The probability of a given social right being either present or justiciable in a given constitution is, on average, twenty percentage points greater in a low income constitution than a high income one. In only one instance is a social right more common in a high income country than a low income one: the right to land is justiciable in 8% of high income countries and 7% of low income countries.138 Conversely, the right to food and water is present in 40% of low income countries but only 4% of high income countries; this translates to eleven of twenty-eight low income countries and two—Panama and Uruguay—of fifty-one high income countries, both of which are in Latin America.

137 For the 2015 fiscal year, the categories were defined as <$1,046 (Low Income), $1,046-4,125 (Low Middle Income), $4,126-12,735 (High Middle Income), and >$12,745 (High Income) (GNI per capita in USD, Atlas method). 138 The right to land is justiciable in four of fifty-one high income countries—Bahrain, Italy, Panama, and Portugal—and two of twenty-eight low income countries—Madagascar and Nepal. 96

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3.4.2.4 Constitutional Age In line with trends in constitutionalism generally, a number of scholars have suggested an expansionist tendency in the scope of rights protected in constitutions. In particular, several investigations have found a positive correlation—sometimes statistically significant, sometimes not—between the newness of a constitution and the number of rights it contains.139 Beck et al., for example, find “a tendency for younger regimes and more recently amended constitutions to have more human rights mentions.”140 At present measuring the historical development of social rights entrenchment over time cannot be done as precisely as one might hope.141 Nevertheless, a review of constitutions currently in force offers circumstantial support for the existence of such an expansionist trend in social rights entrenchment as well.

Figure 5 Social Rights by Age of Constitution and Most Recent Amendment

Promulgated Last Amended Time Period Present Justiciable n Present Justiciable n Pre-1945 2.0 1.4 13 - - 0 1945-1974 2.8 1.5 36 2.00 0.60 5 1975-1989 3.2 1.8 42 2.38 1.50 8 1990-1999 4.6 3.0 61 3.20 1.33 15 Post-1999 5.0 4.0 42 4.06 2.80 166

Figure 5 presents shows average number of social rights present and justiciable for constitutions currently in force grouped according to the era they were promulgated and the year in which they were most recently amended. The eras align with commonly identified turning points in global politics: the end of the Second World War, the beginning

139 Avi Ben-Bassat and Morri Dahan, “Social Rights in the Constitution and in Practice,” Journal of Comparative Economics 36, no. 1 (2008): 111, https://doi.org/10/brknmr; Law and Versteeg, “Evolution and Ideology.” 140 Beck, Drori, and Meyer, “World Influences on Human Rights Language in Constitutions,” 497. See also John W. Meyer et al., “World Society and the Nation-State,” American Journal of Sociology 103, no. 1 (1997): 144–181. 141 The Comparative Constitutions Project has collected detailed data on the majority of constitutional events since 1789, including social rights. What it does not do is indicate the “strength” of those rights—whether they are aspirational or judiciable. The constitutional “strength” of social rights has been measured by the Toronto Initiative for Economic and Social Rights, but the current iteration of the dataset has limited data prior to 2000. 97

Rosevear — Judicial Interpretation of Social Rights of the “Third Wave” of democratization, the fall of the Soviet Union, and the turn of the millennium. The data clearly supports the idea that social rights entrenchment has expanded insubstantially in terms of both presence and justiciability. Contrary to expectations, however, the most significant period of increase in justiciability appears to have occurred in the wake of the Soviet Union’s collapse, rather than from the beginning of the Third Wave. A second point of note shown by this data is that while 25% of constitutions have been in place for more than forty years, 85% of all constitutions have been amended in the 2000s.

3.4.2.5 Democracy A key argument in support of the recognition and enforcement of social rights is their ability to foster individual development and support the (re)production of citizens capable of meaningfully participating in democracy.142 The measurement of democracy in a quantitatively comparable way has proven quite controversial,143and the methodology employed to produce Freedom House’s annual “Freedom in the World” index has been strongly criticized as biased toward free-market liberal-democracies, marginalizing the importance of equality (of opportunity or otherwise) and substantive rights.144 Imperfect as it may be, however, it does appear to offer a consistent measurement of conformity with a particular set of norms about political organization and individual freedom.

142 E.g., Sen, “Equality of What?” 143 See e.g., Dirk Berg-Schlosser, “Indicators of Democracy and Good Governance as Measures of the Quality of Democracy in Africa: A Critical Appraisal,” Acta Politica 39 (2004): 248–78; Dean McHenry Jr. and Abdel-Fattah Mady, “A Critique of Quantitative Measures of the Degree of Democracy in Israel,” Democratization 13, no. 2 (2006): 257–82; Iliya Harik, “Democracy, ‘Arab Exceptionalism’, and Social Science,” The Middle East Journal 60, no. 4 (2006): 664–84. 144 Diego Giannone, “Political and Ideological Aspects in the Measurement of Democracy: The Freedom House Case,” Democratization 17, no. 1 (2010): 71–73, 89–90. 98

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Figure 6 Justiciable Social Rights by Freedom House Status, 2016145

100%

80%

60%

40%

20%

0% Health Education Food & Water Housing Land

Free Partly Free Not Free

When social rights entrenchment is examined in conjunction with the Freedom House aggregate measure—free, partly free, or not free—an interesting pattern emerges. As Figure 6 shows, the fifty-nine Partly Free countries are more consistently more likely to entrench justiciable social rights than both Free and Not Free jurisdictions. This trend appears to be inconsistent with the “cheap-talk” hypothesis,146 at least in its simplest formulation, regarding social rights proliferation as autocratic leaders should be at least as likely to formally entrench social rights guarantees as a means of reaping international and domestic rewards while having real intention to honour them. This, however, is not the case. Although Not Free jurisdictions are slightly more likely to entrench justiciable social rights than Free countries, they are substantially less likely than Partly Free countries to do so, often by a substantial margin.

145 Rosevear, Hirschl, and Jung, “Justiciable and Aspirational ESRs”; “Populists and Autocrats: The Dual Threat to Global Democracy,” Freedom in the World (Freedom House, 2017). 146 Ben-Bassat and Dahan, “Social Rights in the Constitution and in Practice”; see also, Wade M. Cole, “Strong Walk and Cheap Talk: The Effect of the International Covenant of Economic, Social, and Cultural Rights on Policies and Practices,” Social Forces 92, no. 1 (2013): 165–94, https://doi.org/10/ghff4t. 99

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3.4.3 Education, Health, and Housing

3.4.3.1 Education The earliest constitutional protection of a social right, as defined herein, appears to have been the right to education provided for in the short-lived Haitian Constitution of 1805, according to which, “Within each military division a public school shall be established for the instruction of youth.”147 The first provision explicitly requiring state provision of education free of charge came in the 1828 Peruvian Constitution.148 The first combination of a free education and an explicit judicial power of constitutional interpretation is found in the also short-lived 1843 Haitian Constitution, although the framing of the constitutional review power as a negative one, calls into question its capacity to impose positive obligations on the state.149 If order of presentation is a meaningful metric, then the next coincidence of judicial review and education indicates a high degree of formal commitment to universal education. Article 6 of the 1869 Costa Rican Constitution declares that “The primary education of both sexes is obligatory, gratuitous, and paid for by the nation.”150 That constitution also sets out a model of judicial review that fits Gardbaum’s “commonwealth model” of constitutionalism, in which judicial decisions are subject to legislative sequel.

The Supreme Court of Justice may suspend by absolute majority of votes, of its own accord, or on the petition of its fiscal or any citizen, the execution of legislative measures which are contrary to the Constitution; its observations must then be submitted to the Congress at its next ordinary

147 Bob Corbett, ed., “Second Constitution of Haiti (Hayti) May 20, 1805,” April 4, 1999, General Dispositions, Act 19, http://faculty.webster.edu/corbetre/haiti/history/earlyhaiti/1805-const.htm. 148 “Political Constitution of the Peruvian Republic, 1828,” British and Foreign State Papers 16 (1828): 966– 88, art. 171. (“[The Constitution] also guarantees gratuitous primary instruction to all Citizens; the Institutions in which may be taught the Sciences, Literature, and the Arts . . .”). 149 With respect to education, article 31 states, inter alia, that “Education is free [L’enseignement est libre]” and “Each community has primary schools for each sex that are free and open to all citizens [Chaque commune a des écoles primaires de l’un et de l’autre sexe, gratuites et communes a tous les citoyens].” With respect to justiciability, article 162 indicates that “The courts must refuse to apply an unconstitutional law [Les tribunaux doivent refuser d'appliquer une loi inconstitutionnelle].” Louis Joseph Janvier, ed., “Constitution de 1843,” in Les Constitutions D’Haiti, 1801-1885, vol. 1 (Marpon & Flammarion, 1886), 145–87. 150 “Constitution of the Republic of Costa Rica, 1869,” British and Foreign State Papers 59 (1874): 216–35. 100

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meeting, so that they may be taken into consideration, and what is fitting may be definitely resolved.151

This is particularly notable insofar as it pre-dates Gardbaum’s identification of the origins of this third model of judicial review in Canada’s 1982 constitutional reforms by more than a century.152

Figure 7 The Rights to Education, Health, and Housing in National Constitutions, 1789- 2012153

100% 200

Education 80% 160

60% 120 n 40% 80

Healthcare 20% 40 n Housing 0% 0

The pattern of the right to education in constitutions is shown in Figure 7, with the percentage of constitutions containing that right, along with the rights to education and housing, displayed over time. The right-hand axis indicates the number of written constitutions on which the calculation is based. There have been a number of other notable instantiations of the right to education. Article 3 of the 1917 Mexican Constitution stipulated that education was to be secular,

151 Ibid. art. 135. 152 Gardbaum, “The New Commonwealth Model,” 742–44. 153 Zachary Elkins, Tom Ginsburg, and James Melton, “Characteristics of National Constitutions: Version 2.0” (Comparative Constitutions Project, April 18, 2014); own work. 101

Rosevear — Judicial Interpretation of Social Rights compulsory, and free.154 Similarly, the 1937 Constitution of the Republic of Ireland specified that:

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.155

Article 121 of the 1936 Constitution of the USSR also guaranteed the right to free education, particularly at the secondary and post-secondary levels.156 As far as written constitutions are concerned, education has long been a prominent topic. By the end of the 1870s at least dozen constitutions made some reference to education, although not necessarily its gratuitous provision. By the end of the 1970s that number was nearly sixty, and as of 2016 more than 80% of the world’s constitutions guaranteed the right to education, three-quarters of which (roughly 60% of all constitutions) making the right justiciable.157 This trend of early and widespread inclusion is not entirely surprising as written constitutions tend to be heavily influenced by liberal- democratic values. Considering the importance of informed political participation and individual autonomy to that enterprise, a formal recognition of the need for an educated populace and some notional commitment to providing the same should be notable only in its absence.

154 Milton H. Andrew, ed., “Political Constitution of the United States of Mexico, 1917,” in Twelve Leading Constitutions (Compton: American University, 1931), 216–90, art. 3. 155 Peaslee and Peaslee Xydis, “Constitution of Ireland (1937).” 156 A. Nove, “Some Aspects of Soviet Constitutional Theory,” The Modern Law Review 12, no. 1 (1949): 17, 24, https://doi.org/10/bm3kg7. In practice, however, these rights lacked credible enforcement mechanisms and in at least one case were explicitly overruled by the Soviet Council of Ministers. 157 Historical (Pre-2000) social rights entrenchment was identified using the Comparative Constitutions Project dataset and verified in reference to the particular constitutional and contemporary texts cited in this document. Elkins, Ginsburg, and Melton, “Characteristics of National Constitutions: Version 2.0.” Empirical assertions relating to entrenchment levels from 2000 to present are based on the Toronto Initiative for Economic and Social Rights Dataset, the current version of which is on file with the author. Courtney Jung, “Coding Manual: A Description of the Methods and Decisions Used to Build a Cross-National Dataset of Economic and Social Rights in Developing Country Constitutions,” November 9, 2010, http://www.tiesr.org/Data/coding%20manual%20nov%209.pdf. 102

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In constitutional texts, the right to education tends to be constructed as primarily the responsibility of the state via the direct funding and management of schools at the primary and secondary level. There also tend to be a carve outs for the establishment of private educational institutions and the option of religious education, subject to government oversight and regulation. The latter of these may or may not be excluded from state funding. The right to education in the Gabonese Constitution, for example, is broadly representative of country-level guarantees to education:

The State has the duty to organize public education on the principle of religious neutrality and, according to the possibilities, on the basis of gratuity; the granting of diplomas remains the prerogative of the State;

However, the freedom of education is guaranteed to all. Any person may open a preschool, primary, secondary, [or] superior establishment or a university, under the conditions established by the law.

The law establishes the conditions of participation of the State and of the public collectivities in the financial expenses of private establishments of education, recognized of public utility.

In the establishments of public education, religious instruction may be dispensed to students on the demand of their parents, under conditions determined by the regulations.

The law establishes the conditions of functioning of establishments of private education taking into account their specificity; 158

A standard corollary of the right to education is an obligation to attend an educational institution to either a certain level is completed, or a specific age reached.159

3.4.3.2 Health Compared with the right to education, the right to health was slow to obtain formal purchase in constitutional texts, as evident in Figure 7. It is also noteworthy that in its early

158 Jefri J. Ruchti and Maria del Carmen Gress, trans., “Constitution of the Gabonese Republic, 1991 (As Consolidated to Law No. 047/2010 of 12 January 2011),” in World Constitutions Illustrated (William S. Hein & Co., 2011), art. 19(1). 159 “The Constitution of the Republic of Indonesia, 1945 (as Amended to 2002)”, art. 31. ((1) Every citizen has the right to receive education. (2) Every citizen has the obligation to undertake basic education, and the government has the obligation to fund this.) 103

Rosevear — Judicial Interpretation of Social Rights manifestations, it tended to be rhetorically and/or contextually associated with the need to ensure the health of workers. The first time a right to healthcare was entrenched in a national constitution appears to have been 1919 Weimar Constitution, which stipulated that:

For the purpose of conserving health and the ability to work, of protecting motherhood, and of guarding against the economic effects of age, invalidity and the vicissitudes of life, the Commonwealth will adopt a comprehensive system of insurance, in the management of which the insured shall predominate.160

At least formally, this was an aspirational guarantee as the Weimar constitution made no explicit provision for the judicial enforcement of rights. The 1925 Chilean Constitution appears to have contained the first formally justiciable right to health.161 Also in the context of a discussion of the importance of employment, it obliged the State to set aside funds for public healthcare.

The Constitution assures to all the inhabitants of the Republic…

(14) The protection of work, of industry and of the works of social planning [previsi6n], especially inasmuch as they refer to the sanitary [sana] habitation and to the economic conditions of life, in order to provide to each inhabitant a minimum of well-being, adequate to the satisfaction of his personal necessities and those of his family. The law will regulate this organization. . . .

It is the duty of the State to see to public health [salud] and the hygienic wellbeing of the country. A sufficient quantity of money must be designated each year to maintain a national service of health [salubridad].162

With respect to justiciability, the Constitution accorded the Supreme Court, and it alone, the power to declare inapplicable, for the purposes of the case before it, any legal precept

160 Charles E. Martin and William Henry George, eds., “Constitution of Germany, 1919,” in Representative Modern Constitutions, trans. William B. Munro and Arthur N. Holcombe (Times-Mirror Press, 1923), 74– 103, art. 161. 161 This assertion is based on an analysis of the Comparative Constitutions Project dataset. Justiciability, for this purpose, was considered to be present where a right to health was identified as present and there was explicit provision for the interpretation of the constitution by some or all judges. 162 Jefri Jay Ruchti, ed., “Political Constitution of the Republic of Chile, 1925,” in World Constitutions Illustrated, trans. Anna I. Vellvé Torras and Jefri J. Ruchti (William S. Hein & Co., 2010), art. 10. 104

Rosevear — Judicial Interpretation of Social Rights it deemed contrary to the constitution.163 It also required the existence of permanent administrative tribunals “for resolving the complaints that are interposed against the acts or arbitrary provisions of the political or administrative authorities.”164 In this respect, the provision for administrative review is more relevant to the judicial enforcement of the right, highlighting the importance of a broad understanding of justiciability—and understanding that does not necessarily involve a decision being binding on subsequent adjudicators. Until the early 1970s, only a handful of constitutions contained a right to health and only half were in constitutions which made at least some provision for judicial review. However, with the emergence of the so-called “third-wave” of constitutionalism in the mid- 1970s,165 the number of constitutions incorporating this, and numerous other rights, increased dramatically: by 2000 the right was present in one hundred and seventeen constitutions and justiciable in sixty-three; by 2016 this had risen to one hundred and thirty- six and eighty-three, respectively.

3.4.3.3 Housing The right to housing is a relative newcomer, as shown in Figure 7. In 2016 it was present in eighty-three constitutions and justiciable in fifty-two. This was a marked change from its complete absence from the world’s constitutions sixty years before. The first time the right appeared in a constitution was in the Panamanian constitution of 1946. In an article articulating a broad set of guarantees and State obligations relating to basic subsistence, that document required the state to “promote the establishment of inexpensive dwellings for workers.”166 Shortly thereafter, the 1949 constitutions of Argentina and the German Democratic Republic (East Germany) also entrenched the right, as did the Syrian constitution of 1950.

163 Ibid., art. 86, para. 2. 164 Ibid., art. 87. 165 Huntington, The Third Wave: Democratization in the Late Twentieth Century. For a discussion of the relationship of Economic and Social Rights and Third-Wave constitutions generally, see, Jung, Hirschl, and Rosevear, “Economic and Social Rights in National Constitutions.” 166 Amos J. Peaslee, ed., “Constitution of the Republic of Panama, 1946,” in Constitutions of Nations, vol. 2 (Concord, NH: Rumford, 1950), 702–41, art. 93, para. 3. 105

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In line with the justifications offered for entrenchment discussed above, the emphasis is on guarantees for workers, rather than citizens or humans. In Argentina, the right to housing is guaranteed under Article 37(I), which outlines the rights of the laborer,

The following special rights are declared: (I) Of the Laborer. . .

(6) Right to comfort—The right of laborers to comfort, which finds its minimum expression in the availability of shelter… adequate to meet the needs of themselves and their families without anxiety and in such a way as to enable them to work with satisfaction, to rest without preoccupations and to advance spiritually and materially to a reasonable extent, entails the social necessity of raising the standard of living and work by the direct and indirect means permitted by economic development.167

Similarly, the Syrian Constitution of 1950 stated that “The State shall secure for workers sanitary housing through means to be defined by the law.”168 The 1964 Guatemalan Constitution adopted a similar approach, specifying that “The state shall see that housing for workers is adequate and meets necessary health conditions.”169 In contrast to its contemporaries, the East Germany adopted a more inclusive, citizenship-based approach:

Every citizen and every family shall be assured of a healthy dwelling befitting their needs. Special consideration in this connection shall be given to victims of fascism, seriously disabled persons, persons having incurred 170 special war losses and displaced settlers.

This was almost certainly influenced, at least rhetorically, by the human costs of the Second World War and the discourse of communism’s provision of material goods in contrast to the West’s emphasis on liberty.

167 Amos J. Peaslee, ed., “Constitution of the Argentine Republic, 1949,” in Constitutions of Nations (Rumford, 1950), art. 37. 168 Amos J. Peaslee, ed., “The Constitution of Syria, 1950,” in Constitutions of Nations, trans. George J. Tomeh, 2nd ed., vol. 3 (M. Nijhoff, 1956), 360–82, art. 26(3). Article 22(3) also addresses the right to housing, albeit less commandingly: “The State shall endeavor to build model villages and provide sanitary housing for peasants.”). The right to housing has not featured in any subsequent Syrian Constitutions (1964, 1973). 169 Amos J. Peaslee and Dorothy Peaslee Xydis, eds., “Constitution of the Republic of Guatemala, 1965,” in Constitutions of Nations, 3 (Rev.), vol. 4 (M. Nijhoff, 1970), 559–624, art. 115. 170 Amos J. Peaslee, ed., “Text of Draft Constitution for East Germany, 1949,” in Constitutions of Nations, vol. 3 (Rumford, 1950), 627–48, art. 26, para. 2. 106

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After this initial period of entrenchment, there was relatively little change in the number of constitutions with a right to housing until 1978, at which point there was a substantial increase in the presence of the right in national constitutions, proportionately similar to that experienced by the right to health. As the right became more frequently entrenched, there were two changes in its scope and justification. The first of these was that its characterization as a right for workers or labourers was replaced by its construction as a generalized individual right. In the 1976 Portuguese Constitution rather than labourers or workers “everyone” was accorded “the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy.”171 While the 1982 Honduran Constitution does contain provisions aimed at the provision of housing, as well as other basic necessities, on the basis of employment status,172 it also contains guarantees relating to the right to housing that are more broadly applicable.173 This pattern is also evident in the 1972 Bangladeshi and 1990 Afghan Constitutions.174 These constitutions are indicative of a trend toward the granting of material benefits to citizens or individuals as opposed to simply workers. The second trend is a more recent one: the incorporation of a negative approach to the right to housing. The tendency to place a notional duty on the state to gradually improve access to housing remains, but the imposition of stringent barriers to eviction are increasingly evident. This trend is more prevalent in the interpretation of the right but has manifest in several constitutions as well. The 1996 South African Constitution is likely the

171 Secretary of State for Mass Communication, trans., “Constitution of the Portuguese Republic, 1976,” Diario Da Republica [Official Gazette] 1, no. 86 (April 10, 1976): 3–148, art. 65(1). 172 Organization of American States, trans., “Constitution of the Republic of Honduras, 1982 (Decree No. 131 of January 11, 1982),” in World Constitutions Illustrated (William S. Hein & Co., n.d.), accessed November 28, 2016, art. 141. (“The law shall determine which employers, according to their capital and the total number of workers, shall be required to provide them and their families with educational, health, housing and other services.”). 173 In particular, ibid. art. 178, para. 1. (“All Hondurans have the right to decent housing. The state shall design and implement housing programs of social interest.”). 174 Ministry of Law, Justice and Parliamentary Affairs, “Constitution of the People’s Republic of Bangladesh, 1972,” in World Constitutions Illustrated (William S. Hein & Co., n.d.), art. 15(a); M. Arif Jahesh, ed., “Constitution of Republic of Afghanistan,” in World Constitutions Illustrated (William S. Hein & Co., n.d.), art. 17. 107

Rosevear — Judicial Interpretation of Social Rights most prominent example of this trend. In line with the now standard construction of the right to housing, it states that “Everyone has the right to have access to adequate housing” and requires the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”175 In addition to this, however, it provides that

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.176

The 2013 Constitution of Zimbabwe employs almost identical language to the South African Constitution in limiting eviction proceedings.177 The current constitution of the Philippines bars eviction “except in accordance with law and in a just and humane manner” and prohibits “resettlement of urban or rural dwellers… without adequate consultation with them and the communities where they are to be relocated.”178 It is particularly notable that this Constitution came into force in 1987, just two years after the Indian Supreme Court’s landmark decision regarding the clearing of informal settlements in the Olga Tellis case.179 Unlike the vast majority of the social rights guarantees, both domestic and international, this type of guarantee is not subject to the caveats of progressive realization or maximum available resources.

3.5 Judicial Interpretations of Social Rights The explicit constitutionalization of a social right is merely one step in an indirect and uncertain path to its realization. It is not a sufficient condition for the realization of the right and, at least historically, it has not been a necessary condition for at least some

175 “Constitution of the Republic of South Africa, 1996,” Government Gazette (Republic of South Africa) 378, no. 17678 (December 18, 1996): [1]-150, art. 26(1) and (2). 176 Ibid., art. 26(3). 177 “Constitution of Zimbabwe Amendment (No. 20) Act, 2013,” in World Constitutions Illustrated (William S. Hein & Co., 2013), art. 74. (“No person may be evicted from their home or have their home demolished without an order of com1 made after conside1ing all the relevant circumstances .”) 178 “The Constitution of the Republic of the Philippines, 1987,” in Constitutions of the Countries of the World (Oceana Online, n.d.), art. 13(10). 179 Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. [India]. 108

Rosevear — Judicial Interpretation of Social Rights elements of a society to enjoy the relevant material benefits. Constitutional documents articulate general and often competing rights and principles that, like all abstract normative values and beliefs about the appropriate ordering of social relations, must be translated into specific directives and obligations taking into consideration contextual factors.180 This translation process is not a technocratic exercise, but neither is it an exercise in the unrestricted articulation of judges’ policy preferences. In practice, social rights have been interpreted in three principal ways that are broadly in line with King’s classification scheme.181 The earliest jurisprudential appearance of social rights seems to have occurred during the adjudication of civil and political rights. Adopting an expansive and substantive understanding of rights such as the right to life, courts have deemed the fulfilment of certain social rights to be necessarily implied.182 A second manifestation of social rights relies on administrative law principles in that social rights are understood to give individuals the right to have their rights considered in a meaningful manner that results in reasonable solutions. In effect, these are procedural or justificatory rights which expose what might otherwise be considered “political” decisions to “rational” scrutiny.183 Finally, social rights have also been interpreted as representing directly realizable guarantees that may well require judicial definition of their contents. That is, as absolute guarantees which, if abrogated, entitle the bearer to a court order mandating explicit levels of expenditure and/or actions by the state.184 Examples of each of each type are discussed below.

180 See, e.g. Amos Tversky and Daniel Kahneman, “The Framing of Decisions and the Psychology of Choice,” Science, New, 211, no. 448 (1981): 453–58; Daniel Kahneman, “Maps of Bounded Rationality: Psychology for Behavioral Economics,” The American Economic Review 93, no. 5 (2003): 1449–75; Douglass C. North, Institutions, Institutional Change, and Economic Performance (Cambridge University Press, 1990); Peter A Hall, “Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain,” Comparative Politics 25, no. 3 (1993): 275–96; Mark Blyth, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century (Cambridge University Press, 2002); Frank Fischer, Reframing Public Policy: Discursive Politics and Deliberative Practices (Oxford University Press, 2003). 181 Jeff King, Judging Social Rights, Cambridge Studies in Constitutional Law (Cambridge University Press, 2012). 182 E.g., Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. [India]. 183 See, e.g. Grootboom, [2000] ZACC. 184 See, e.g. Campaign for Fiscal Equity v. State of New York, 719 N.Y.S. (2d) 475 (Sup Ct NY 2001). 109

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3.5.1 Extensions of Negative Rights Social rights have been present, off and on, in domestic constitutions for more than two hundred years, judicial review made its way into written constitutions beginning in the 1850s, and the prevalence of both has grown dramatically since 1945. However, domestic social rights litigation is more recent phenomenon. Although there are a number of possibilities buried in domestic law reports, the first instance of a court affirmatively engaging with social rights is generally identified as the 1985 decision of the Indian Supreme Court in Olga Tellis.185 That case dealt with the constitutionality of mass removals of informal settlers (“pavement dwellers”) from public thoroughfares in the city of Bombay. In its decision, the Court, adopting an expansive interpretation, held that a necessary implication of the right to life (art. 21) was the right to earn a livelihood. Further, it found that evicting the pavement dwellers would deprive them of that right as the lack of employment in rural areas compelled them to seek work in urban centers and they lacked the means to meet their basic subsistence needs as well as cover the costs of commuting. What the Court did not find, however, was that the right could be used to compel state action in order to provide a citizen with employment or accord them material benefits.186 Nor did it find that there was an absolute bar on eviction. Rather, they found that the interests of the pavement dwellers needed to be taken into account, along with the interest of the authorities in maintaining public safety and health.187 Nevertheless, in the in that particular instance, the Court did (1) bar eviction the pavement dwellers until the completion of monsoon season, (2) require the provision of alternative locations for settlement for established pavement dwellers, albeit not as a condition precedent, before demolition, and (3) prohibit the demolition of long-established informal settlements except for public purposes.188

185 Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. [India]; see also, Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others, 2 S.C.R. [India] 516 (1981). 186 Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. [India], para. 33. 187 Ibid., para. 37. 188 Ibid., para. 57. 110

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Perhaps the most notable thing about this case is the Court’s extremely expansive reading of the right to life. Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”189 Although the Court formally rejects the idea that the Article imposes a positive obligation on the state, the substance of decision in combination with the nature of the remedy and subsequent jurisprudence suggests otherwise; interpreting this relatively generic guarantee to include the right to a livelihood and to not be deprived thereof is quite extraordinary. First, the Court had bluntly rejected the proposition that the right to livelihood was guaranteed by Article 21 twenty-five years before.190 As socially desirable and politically expedient as such a change in interpretation might be, the legally relevant factors justifying such an about face are not discussed. In addition, this would seem to be a prime example of the “slippery slope” argument: if the right to life includes a right to livelihood, might it not also be reasonably interpreted to include the right to housing? Or to healthcare? In fact,

A most remarkable feature of the expansion of Art. 21 has been that many of the non-justiciable Directive Principles have been converted into enforceable Fundamental Rights by the magical wand of judicial creativity.191

189 “Constitution of the Sovereign Democratic Republic of India, 1949,” British and Foreign State Papers 157 (1959): 34–211. 190 Re Sant Ram, INSC [India] 68 ([India] 1960). (“The argument that the word ‘life’ in Art. 21 of the Constitution includes ‘livelihood’ has only to be stated to be rejected.”) 191 Mahabir Prashad Jain, Samaraditya Pal, and Ruma Pal, Indian Constitutional Law: With Constitutional Documents, vol. 1 (New Delhi: Lexis Nexis Butterworths Wadhwa Nagpur, 2010), 1608. 111

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Of particular note are the implications of this interpretive of approach for the state with respect to subsequent challenges relating to the funding of healthcare,192 provision of shelter,193 and protection of the environment.194 A similar “necessarily implied” approach was employed by the Supreme Court of Canada in Eldridge v British Columbia,195 a case dealing with the provision of sign language interpreters to deaf hospital patients. A volunteer organization had been providing sign-language interpretation for patients at a public hospital but found themselves unable to continue this without financial support from the hospital. This was not forthcoming, and the interpretation services ceased. Two deaf claimants sought relief arguing that this prevented them from communicating with their healthcare providers, effectively denying them healthcare service. The Court held that this constituted unjustifiable discrimination and mandated the provision of the service. The Court’s position was that the state was not obligated to publicly fund healthcare, but, if it chose to act in that area, it was required to ensure equal access and could be compelled to do so.

3.5.2 Reasonableness In contrast to the Indian Supreme Court’s development of a social rights jurisprudence from a general guarantee, South Africa’s post-apartheid constitution contained a number of explicit social rights guarantees, including the rights to housing, healthcare, and education.196 These guarantees, however, were not absolute; in addition to a general limitations clause of the type found in most contemporary bills of rights,197 most

192 Paschim Banga Khet Mazdoor Samity and Others v. State of West Bengal and Another, 1996 (4) S.C.C. [India] 37 (1996); State of Punjab and Others v. Ram Lubhaya Bagga, I.N.S.C. [India] 131 (Sup. Ct. (India) 1998); Confederation of Ex-Servicemen Associations and Others v. Union of India and Others, I.N.S.C. [India] 513 (2006). 193 Shantistar Builders v. Narayan Khimalal Totame and Others, 1 S.C.C. [India] 520 (1990); Chameli Singh v. State of U.P., Supp. (6) S.C.R. [India] 827 (1995). 194 M.C. Mehta v. Kamal Nath and Others, I.N.S.C. [India] 1608 (1996); M.C. Mehta v. Union of India and Others, 5 S.C.C. [India] 367 (2003). 195 Eldridge v. British Columbia (Attorney General), 3 SCR 624 (1997). 196 “Constitution of the Republic of South Africa, 1996”, arts. 26, 27, and 29 (respectively). 197 “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including . . .” Ibid., art. 36(1). 112

Rosevear — Judicial Interpretation of Social Rights of these rights are internally limited insofar as the state is required to work toward their progressive realization via “reasonable legislative and other measures, within its available resources.”198 Article 28, which sets out the rights of children, is not internally limited. The Constitutional Court established during the constitution-drafting process was not long in dealing with contentious issues. Not only was it tasked with approving the final constitution for compliance with the principles set down earlier in the process—which it declined to do without alterations to the original submission199—but its first case dealt with the constitutionality of the death penalty, which it determined to be unconstitutional.200 The first social rights case handled by the Court concerned the right to health, specifically whether Article 27 of the new constitution guaranteed to the plaintiff regular access to a dialysis machine for the treatment of a chronic renal issue.201 The decision dealt with two principal legal issues. First, the Court was asked to consider whether the treatment of a chronic health issue did not constitute “emergency medical treatment” under the meaning of Article 27(3), which provides for unqualified access to such treatment. In considering this question, the Court found that it did not on the basis of four determinations. First, the ordinary meaning of “emergency medical treatment” does not include the ongoing treatment of chronic renal failure.202 Second, if it were the intent of the drafters the it do so, more explicit language would be expected.203 Third, the consequences of interpreting the right in this way would prioritize the treatment of terminal illnesses over other forms of medical care, thereby reducing the resources available for, inter alia, preventative care and non-life-threatening conditions. 204 Fourth, the text of the right— specifically its negative construction—suggests that its intended purpose is to prevent

198 This language is used verbatim in articles 26 and 27. Article 29(1)(b), however, stipulates that the state is required to further the realization of citizens’ right to education “through reasonable measures” to make it “progressively available and accessible.” 199 Certification of the Constitution of the Republic of South Africa, [1996] ZACC 26 (1996). 200 S v Makwanyane, ZACC 3 (1995). 201 Soobramoney v. Minister of Health (KwaZulu-Natal), [1997] ZACC 17 (1997). 202 Ibid., para. 13. 203 Ibid., para. 13. 204 Ibid., para. 19. 113

Rosevear — Judicial Interpretation of Social Rights administrative formalities from impeding treatment that is necessary and otherwise available.205 The second legal issue considered by the Court was the qualified general right to healthcare set out in Article 27(1) and (2). In this respect, the hospital’s lack of funds was not contested, nor was the fact that the state health authority was consistently over-budget. As a result, it had adopted guidelines to maximize the benefit from the use of its limited resources.206 These guidelines, in the eyes of the Court, were not unreasonable given the reality of limited resources, nor was it suggested that they had been unfairly applied. As such, and in combination with the Court’s general belief that the allocation of resources for the realization of constitutional guarantees involves difficult decisions that are appropriately taken at the political level, it was unwilling to find in favor of the plaintiff. More broadly, the Court found that judges should be “slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.”207 Soobramoney was seen as a great disappointment by many human rights advocates who had hoped that the Court would play a more active role in the realization of constitutional rights.208 These hopes would re-emerge a few years later with the Court’s decisions in Grootboom and Treatment Action Campaign and the development of the “reasonableness” approach to the interpretation and application of constitutionalized social rights.209 In these cases the Court demonstrated a willingness to interrogate the reasonableness of government policy with respect to its effects on the least advantaged members of society and more actively involve itself in specifying the factors to be considered and parameters of reasonable policy. The Court also discussed the concept of “minimum core obligations” but declined to apply them, finding the approach to be overly

205 Ibid., para. 20. 206 Ibid., paras. 3-4. 207 Ibid., para. 29. 208 See e.g., Jeremy Sarkin, “Health,” South African Human Rights Yearbook 8 (1998): 101–3. 209 Grootboom, [2000] ZACC; TAC, [2002] ZACC. 114

Rosevear — Judicial Interpretation of Social Rights restrictive and not able to effectively address that varied social needs of specific individuals and groups.210 The Colombia Constitutional Court has, on occasion, adopted a “structural” approach that emphasizes the importance of policy and/or regulatory change in order to address systemic violations of individual rights. While constituting a tiny fraction of the Court’s overall case load, they have played important roles in addressing systemic rights issues relating to internally displaced persons and the healthcare system.211 In the 2008 structural decision on healthcare, for example, the Court issuing a decision that “outlined an institutional roadmap for the reforms that the executive and legislative branches ought to undertake in order to mitigate of eliminate the structural determinants of health rights litigiousness.”212 It did so by establishing stakeholder consultation mechanisms, report back requirements, and hosting televised follow-up hearings.

3.5.3 Directly Enforceable Guarantees The third approach to the interpretation of social rights—as directly enforceable guarantees—has tended to occur in the Americas. Costa Rica’s 1989 Constitutional Reform created a Constitutional Chamber (Sala IV) within the existing structure of the Supreme Court. This Chamber has broad powers, including the ability to hear petitions directly from aggrieved parties. After initially declining to involve itself in decisions relating to healthcare provision, Sala IV rejected its earlier judgements in 1997 and began to develop a right to health jurisprudence based on reading the 1949 Constitution’s protections of human life (art. 21) and social security (art. 73) in conjunction with the various international human rights instruments to which the country is signatory. The Court justified its decision, in part, by finding that life and health were necessary preconditions for the enjoyment of “the rest of the rights and guarantees… [and] the advantages and

210 Grootboom, [2000] ZACC, paras. 29-33; Sandra Liebenberg, “South Africa: Adjudicating Social Rights Under a Transformative Constitution,” in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, ed. Malcolm Langford (New York: Cambridge University Press, 2008), 83. 211 Decision T-025 of 2004 (Const’l Ct. (3d Cham) January 22, 2004); Judgment T-760 of 2008 (Const’l Ct. (2d Cham.) July 31, 2008), respectively. 212 Everaldo Lamprea Montealegre, “When Policy and Rights Collide: A Case Study of Right-to-Health Litigation in Colombia (1991-2012)” (S.J.D., Palo Alto, Stanford, 2013), 182–83, http://purl.stanford.edu/dh360bv1823. 115

Rosevear — Judicial Interpretation of Social Rights benefits of our system of liberties.”213 As the jurisprudence has developed, the Court’s decisions have repeatedly indicated that provision of medication could not be denied on the primary basis of cost or simply because a medication is not on the essential medicines list.214 These claims tend to be individual, seek the state provision of medical treatments or pharmaceuticals, and succeed more than half of the time. Whereas the advancement of right to health claims in Costa Rica is restricted to a single chamber of a single court, the same is not true in Colombia. After some initial uncertainty about its justiciability, it was accepted that right to health claims based on the 1991 constitution could be pursued in any Colombian court via an amparo-like mechanism known as tutela. However, all claims regarding the protection of fundamental rights must be sent to the Colombian Constitutional Court which has the option to review them, which it does about one-percent of the time,215 and the responsibility for setting guiding precedent.216 The tutela mechanism has very few formal requirements, can be filed without the aid of attorney, and has priority on court dockets.217 Initially, the Constitutional Court determined that the right to health was enforceable under three circumstances: cases involving a person or group in especially vulnerable circumstances (e.g. children, disabled, elderly); cases involving the right to receive care in the health system; and, when not providing care would threaten their fundamental right to life. This last circumstance in particular has led to an expansive interpretation of the requirements of the state.218

213 Ole Frithjof Norheim and Bruce M. Wilson, “Health Rights Litigation and Access to Medicines: Priority Classification of Successful Cases from Costa Rica’s Constitutional Chamber of the Supreme Court,” Health and Human Rights 16, no. 2 (2014): 49, citing Resolution Number: 1997-05934. 214 Ibid., 50 citing, as examples, Resolutions 2007-00043, 2005-13408, 2008-0907, and 2005-7379. 215 Magdalena Sepúlveda, “Colombia,” in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, ed. Malcolm Langford (Cambridge University Press, 2008), 146. 216 Everaldo Lamprea, “Colombia’s Right-to-Health Litigation in a Context of Health Care Reform,” in The Right to Health at the Public/Private Divide: A Global Comparative Study, ed. Aeyal Gross and Colleen M. Flood (Cambridge University Press, 2014), 131–58. 217 Alicia Ely Yamin, Oscar Parra-Vera, and Camila Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?,” in Litigating Health Rights: Can Courts Bring More Justice to Health?, ed. Alicia Ely Yamin and Siri Gloppen, Harvard Law School Human Rights Program Series (Harvard University Press, 2011), 107. 218 Ibid., 112. 116

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After a progressive “foundational period” in 1992-93, the Constitutional Court began to see a “growing tide of tutela-based litigation propelled by the shortcomings of key executive and regulatory agencies buffeted the Constitutional Court’s initial precedent.”219 For example, between 1999 and 2010 approximately 870,000 tutela claims relating to the right to health were filed. Of these, 177,755 were for surgical procedures and 176,806 for pharmaceuticals.220 This was a key factor in the Constitutional Court’s “structural” decision T-706 of 2008.221 That decision was a conscious a move away from determining the conditions for direct provision and toward establishing policy and consultative guidelines for the fundamental restructuring of the healthcare system. In the US, a number of state (subnational) constitutions—including those of Kentucky, New York, New Jersey, and Texas—guarantee rights to education and/or housing that have been the subject of litigation.222 The most prominent of these is the Campaign for Fiscal Equity saga in the New York state courts, that included a court- articulated definition of specific elements—for example, “Sufficient and up to date books, supplies, libraries, educational technology and laboratories”223— required for a “sound basic education”, as guaranteed by Article XI of the Constitution of the State of New York.

3.6 Summary Social rights, then, have been given effect by the courts in three principal ways. The first, through the extension of traditional civil and political rights provisions to include positive obligations on the state. The second, through the interpretation of social rights guarantees as obligations on states to develop and execute policy that factors in those rights in a reasonable fashion in pursuit of their expedient, but gradual realization. Third, through the interpretation of social rights as directly enforceable guarantees that require immediate realization.

219 Lamprea, “Colombia’s Right-to-Health Litigation,” 140. 220 Ibid., 144–45. 221 T-760 of 2008 is discussed in more detail in Section 3.5.2. 222 Cathy Albisa and Jessica Schultz, “The United States,” in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, ed. Malcolm Langford (Cambridge University Press, 2008), 24–46. 223 Campaign for Fiscal Equity v. State of New York, 719 N.Y.S. (2d). 117

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This work focuses on the latter two interpretations. Conceptually, how social rights are interpreted is better conceived of as two binaries: where social rights are explicitly justiciable, the question is whether they are to be given immediate effect; where they are not explicitly guaranteed in a constitution, the question is whether they are necessarily implied. This differences also maps onto the reality of contemporary social rights adjudication. The relative novelty of most explicitly constitutionalized social rights means that “directly enforceable” and “reasonableness” interpretations almost invariably occur in the context of recent constitutions that explicitly seek to give effect to transformative goals. In contrast, the “necessarily implied” interpretation tends to involve the reinterpretation of existing, “negative” rights present in older constitutions. This variation also suggests the likelihood of fundamentally different political context. In short, several factors suggest that the conditions surrounding the “directly enforceable” and “reasonableness” approaches are sufficiently similar to warrant comparison with one another and sufficiently different from the “necessarily implied” approach to warrant its exclusion, at least in the present case. The question at hand, then, is why a particular jurisdiction, in the context of a transformative constitution, adopts one or the other interpretive approach. In the following two chapters I examine the validity of this theory in reference to the two country-cases outlined above—first Brazil, then South Africa. In doing so, I engage in an in-depth analysis of the development of legal education, the legal profession, and the judicial culture of each to contextualize the starting point for social rights interpretation in each jurisdiction. In doing so, I also briefly discuss the transitions to democracy and the factors driving the constitution-making processes. The goal, however, is not to offer authoritative accounts—for those, one must look elsewhere—but to provide insight into what motivated the institutional changes relating to the judiciary that did or did not occur as well as the perceived “mandates” of the judicial branch in each.

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4 Brazil

4.1 Introduction The Federative Republic of Brazil is the world’s fifth largest and fifth most populous country and the eighth largest economy.1 Despite several financial crises, Brazil has averaged 3.97% annual GDP growth since the early 1960s.2 It is also one of the world’s most unequal countries. In 2015 the income of the top 20% of the population was almost 16 times greater than that of the lowest 20%.3 By way of comparison, the OECD average is 7.7% for the bottom and 39.4% for the top, which equates to just over 5 times greater income for the top 20%.4 Moreover, Brazil’s market Gini coefficient is 54, which is adjusted to a net (post-tax and transfer) Gini of 44,5 as compared to the OECD average net Gini of 32.6 The origins and durability of this inequality are generally attributed to the country’s history and culture. A legacy of colonialism and clientelism that privileges personalistic relationships over merit, the country’s historical role as a primary resource exporter with little in the way of value-added production or skilled labor, a corporatist-bureaucratic structure of labor control, a weak and divided left, and elite dominance in the areas of taxation and redistribution are generally identified as key factors.7

1 Instituto Brasileiro de Geografia e Estatística, “Projeção da População,” accessed August 6, 2020, https://www.ibge.gov.br/apps/populacao/projecao/index.html; “Brazil,” in The World Factbook (Central Intelligence Agency (United States of America)), accessed August 6, 2020, https://www.cia.gov/library/publications/the-world-factbook/geos/br.html. 2 “World Development Indicators” (The World Bank), accessed August 6, 2020, https://datacatalog.worldbank.org/dataset/world-development-indicators. 3 Ibid. 4 OECD, In It Together: Why Less Inequality Benefits All (Paris: OECD Publishing, 2015) (average based on country-level data from 2013 or most recent available year). 5 Frederick Solt, “The Standardized World Income Inequality Database,” Working Paper, October 2014, http://myweb.uiowa.edu/fsolt/swiid/swiid.html (2012 estimates). 6 OECD, In It Together (average based on country-level data from 2013 or most recent available year). 7 Thomas E. Skidmore, “Brazil’s Persistent Income Inequality: Lessons from History,” Latin American Politics & Society 46, no. 2 (2004): 133–50, https://doi.org/10/cphhv7; see also, Victor Nunes Leal, Coronelismo: The Municipality and Representative Government in Brazil (New York: Cambridge University Press, 1977); Frances Hagopian, “‘Democracy by Undemocratic Means’?,” Comparative Political Studies 23, no. 2 (July 1, 1990): 147–70, https://doi.org/10/cfhhqn; Thomas E. Skidmore, Brazil: Five Centuries of Change, 2nd ed. (Oxford University Press, 2010); Augusto Zimmermann, “Waiting for the Rule of Law in

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Brazil’s 1988 Constitution represented the formal return to representative democracy after twenty-four years of military dictatorship. The Constitution was the result of a negotiated and generally peaceful transition of power. It set out a framework for governance, a panoply of rights, and a myriad of checks and balances all intended to serve as the foundation of a renewed Brazilian democracy. Now, three decades after the fact, we can begin to offer some substantive conclusions on the interpretation, application, and impact of those rights for democratic Brazil. The remainder of the chapter is organized as follows. Section 3.2 outlines the social rights set out in the 1988 Constitution, the three principal legal institutions associated with their defense, and the various legal mechanisms available to Brazilians to advance social rights claims. Section 3.3 offers an overview of the social and political context prior to and during the return to democracy as well as a brief discussion of some of the forces at work in the constitution-making process. Section 3.4 describes the development of the legal system, with a focus on the relationship of the legal profession to the 1964-1985 military regime and the culture of professionalism and norms of appropriateness that make up the country’s “judicial culture.” Section 3.5 discusses methodological issues associated with tracing the development of patterns of legal reasoning in the Brazilian courts before describing the stages of Brazilian social rights jurisprudence. Finally, Section 3.6 discusses the key findings of the case study.

4.2 The 1988 Constitution

4.2.1 Transition to Democracy As the end of the dictatorship approached, the military, while not able to dictate the terms of democratization, was in a relatively strong negotiating position—particularly prior to 1984. One point on which they won was the use of Congress, as opposed to a specialized body, as the drafters of the new constitution. A specialized body, they feared, would be dominated by liberals and leftists. Moreover, they could be relatively sure that a substantial

Brazil: A Meta-Legal Analysis of the Insufficient Realization of the Rule of Law in Brazil,” in The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat), ed. James R. Silkenat, James E. Hickey Jr, and Peter D. Barenboim, Ius Gentium: Comparative Perspectives on Law and Justice 38 (Springer International Publishing, 2014), 331–47. 120

Rosevear — Judicial Interpretation of Social Rights number of politicians who had worked with and supported the military during its period of rule would run and be re-elected. Using an established body also meant retaining familiar practices and procedures that tended to favor existing elites. Additionally, by grouping the election of the constituent assembly with the general elections, they could hope to shift some attention away from constitution-making. 8 This approach to regime change—a semi- negotiated one which seeks to break with the past while retaining many of its institutions and actors, is a familiar one to Brazil.9 The outgoing military government was not, however, able to achieve its goal of having the constitution-makers work from a draft prepared by the executive, as had been the case in 1946.10 In keeping with the plan of Tancredo Neves—who was elected President in 1985, but passed away before taking office—his running-mate and now president, José Sarney had nominated a “blue ribbon” commission in July 1985. This commission was headed by distinguished jurist and politician Afonso Arinos and tasked with preparing a draft constitution for presentation to Congress (sitting as a constituent assembly). The report was delivered in September of 1986, but it was never presented to the Constituent Assembly. This is generally attributed to the Sarney camp’s disagreement with many of its recommendations, including the adoption of a parliamentary system of government.11 In ideological terms, the Constituent Assembly was dispersed across the political spectrum, with about 80% grouped somewhere between center-left and center-right. The Assembly was seated in early 1987 and began deliberations about its procedures and scope, matters that were highly contested between two camps—the outgoing elites, coalescing around Sarney—and the more progressive group comprised of the centrist Movimento Democrático Brasileiro and various leftist parties. Ultimately, the Assembly was divided into nine committees with three subcommittees in each.12

8 Abdo I. Baaklini, The Brazilian Legislature and Political System (Greenwood Press, 1992), 157–59. 9 Diego Werneck Arguelhes, “Old Courts, New Beginnings: Judicial Continuity and Constitutional Transformation in Argentina and Brazil” (JSD, New Haven, Yale University, 2014). 10 Baaklini, The Brazilian Legislature, 157–59. 11 Ibid., 163–64. 12 Ibid., 163–64, 169–70. 121

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The 1988 constitution was the result of substantial of consultation, debate, analysis, politicking, and procedural manipulation. In terms of winning and losing, it is generally agreed that the old guard was savvier, or at least more cohesive, than the newer-to-politics progressives.13 For present purposes, two elements of the final draft are key. The first is the panoply of rights—including social rights—that are protected. Rights were “feverishly championed” by the progressive elements in the Assembly and realized because of widespread support for a comprehensive bill of rights.14 The second element was the strong guarantees of institutional and individual independence for the Judiciary and the Ministerio Público.15

4.2.2 Formal Guarantees The 1988 Brazilian Constitution is more than 50,000 words long, contains 250 Articles, and has been amended 105 times.16 It contains numerous references to social rights, as well as outlining several mechanisms for their protection and realization. The Constitution declares that Brazil is a democratic state founded on, inter alia, the principle of human dignity,17 and whose purpose is “to eradicate poverty and substandard living conditions and to reduce social and regional inequalities.”18 It also specifies that these guarantees, along with an extensive battery of civil and political rights, are protected by “the right to petition public authorities in defense of rights or against illegality or abuse of power” without fees.19 A second clause echoes the universality of judicial review by specifying that “the law shall not exclude any injury or threat to a right from review by the

13 See generally, Riordan Roett, “Brazil’s Transition to Democracy,” Current History 88, no. 536 (1989): 117; Baaklini, The Brazilian Legislature. 14 Baaklini, The Brazilian Legislature, 193–94. 15 William C. Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law (Praeger, 2000), 80–82. 16 Keith S. Rosenn, “Brazil: Amendments Nos. 1–105 and Constitutional Amendments of Revision Nos. 1– 6 to the Constitution of the Federative Republic of Brazil, 1992–2019,” in World Constitutions Illustrated, ed. Jefri J. Ruchti, trans. Keith S. Rosenn (William S. Hein & Co., 2020) Amendment no. 105 was passed on 12 December 2019. 17 Art. 1(III). 18 Arts. 3(III) and 4(II), respectively. 19 Art. 5(XXXIV)(a). 122

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Judiciary.”20 In addition, Article 5(1) indicates that the fundamental rights outlined in the constitution are immediately applicable. Education, health, housing (since 2000),21 nutrition (since 2010),22 and social security “are social rights, as set forth in this Constitution.”23 In addition to this general statement, various articles detail specific requirements. Title VI, Chapter II imposes a number of obligations on the state with respect to the provision of social security, which is deemed to consist of “an integrated group of actions initiated by the Government and society, designed to assure rights relating to health, social security and social assistance”24 and which the government is responsible for organizing. With respect to health, Article 196 stipulates that,

Health is the right of all and the duty of the National Government and shall be guaranteed by social and economic policies aimed at reducing the risk of illness and other maladies and by universal and equal access to all activities and services for its promotion, protection and recovery.

Articles 197, 198, and 200 require the existence of a decentralized, universal and, publicly funded system of healthcare (the Sistema Único de Saúde or SUS). Similar requirements are outlined for social security,25 social assistance,26 and education.27 With respect to the cost of realizing such rights, Article 212 requires the federal government to allocate at least 18% of its tax revenues and the states and municipalities to contribute 25% of the same “for the maintenance and development of education.” Similarly, a constitutional amendment in 2000 committed each level of government to allocating a minimum proportion of their tax revenues allocated to public health over the next five years. For the federal government this meant an increase of 5% over the previous

20 Art. 5(XXXV). 21 “Emenda Constitucional No. 26” (2000). 22 “Emenda Constitucional No. 64” (2010). 23 Art. 6. 24 Art. 194. 25 Art. 201. 26 Arts. 203-204. 27 Arts. 205-208. 123

Rosevear — Judicial Interpretation of Social Rights year in 2000 and inflation indexing in the subsequent years. The states and the Federal District were required to increase their allocation to 12% during the same time frame and the municipalities 15%.28 The same amendment altered Article 198 to require the creation of a complementary law to continue and periodic review of those commitments. Clearly, there are no shortage of social rights guarantees in the Brazilian Constitution. Moreover, the Constitution places explicit obligations on the state with respect to their realization—up to and including mandating the allocation of a fixed proportion of the budget for education at all levels of government—and indicates that the judiciary is capable of reviewing state action for compliance with these demands. Consideration of the formal guarantees and obligations, however, does suggest the potential for difficulties in implementation and enforcement. Federalism is a key component of these issues. The right to health, for example, is supposed to be realized largely through SUS, but the responsibility for funding and administering the system is shared among the three levels of government that have constitutional personality in Brazil: federal, state (as well as the federal district), and municipal.29 More generally, Article 23 stipulates that,

The Union, States, Federal District and [Municipalities] in common shall have the power:

I - to ensure that the Constitution, the laws and the democratic institutions are observed and that public patrimony is preserved;

II - to safeguard public health, public assistance, and the protection and guarantee of handicapped persons…

V - to furnish means of access to culture, education and science…

IX - to promote programs for construction of housing and improvement of the conditions of housing and basic sanitation;

X - to combat the causes of poverty and the factors of marginalization, promoting the social integration of the underprivileged sectors…

28 “Emenda Constitucional No. 29” (2000) arts. 6-7. 29 Art. 198(I), 1-3. 124

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Setting aside, for the moment, concerns about inefficiencies and politicization associated with a collaborative federal design of this type,30 this presents a practical concern regarding accountability. If these rights are to be judicially enforceable, against whom are they to be enforced and in what venue?

4.2.3 The Judiciary The most prominent guardians of the 1988 Constitution are the courts.31 The Brazilian judiciary can be divided into five principal groups: the state courts, of which there are twenty-seven (one for each state plus the Federal District); the federal courts; the labor courts; the electoral courts; and the military courts.32 Each of these judicial organizations has a final court of appeal for non-constitutional matters, although judgements of the state supreme courts dealing with federal law can be appealed to the Supremo Tribunal de Justiça (Superior Court of Justice or STJ). The Supremo Tribunal Federal (Supreme Federal Court or STF) has the “final word in all matters regarding constitutional interpretation in concrete as well as in abstract cases.”33 By and large, social rights claims are made in the federal and state courts. Although impaired during the military regime,34 the institutional independence of the judiciary has rarely been called into question in the post-1988 era. Indeed, the present concern is that individual judges have too much independence.35 The speed of the judicial system, or rather the lack thereof, has also been an ongoing issue. Several factors contribute to this latter problem. The most commonly cited are excessive formalism, dilatory motions and hopeless appeals intended to prevent the enforcement of judgements, and an

30 See e.g., Fritz W Scharpf, “The Joint-Decision Trap: Lessons from German Federalism and European Integration,” Public Administration 66, no. 3 (1988): 239; George Tsebelis, Veto Players: How Political Institutions Work (Princeton University Press, 2002). 31 Arts. 79, 102. 32 Art. 92. 33 Gilmar Mendes, “Framework of the Brazilian Judiciary and Judicial Review” (London, U.K., 2009), 2. 34 The extent of this marginalization is a point of debate. See 4.4.2. For a discussion of the literature, see Fabiana Luci de Oliveira, STF: Do Autoritarismo à Democracia (Elsevier, 2012), 163–64. 35 Prillaman, Democratic Decay, 75–76; Carlos Santiso, “Economic Reform and Judicial Governance in Brazil: Balancing Independence with Accountability,” Democratization 10, no. 4 (2003): 163, https://doi.org/10/cdqqg4. 125

Rosevear — Judicial Interpretation of Social Rights insufficient number of judges.36 Although improvements have been made in recent years, a troubling correlation between socio-economic class and access to courts remains.37 With certain exceptions, there is no formal system of binding precedent and the vast majority of decisions apply only to the dispute before the judge (inter partes) rather than to all similar instances (erga omnes).38 This is attributable to Brazil’s history as the colony of a civil law country (Portugal) and the aversion to formal precedent associated with the positivist legal theory that goes along with it: judicial decisions ought not be binding because that would constitute judicial law-making, a violation of the separation between the making of law (to be done by legislators) and the application of law (the role of judges). Although an ideal-type, this dichotomy has heavily informed the developed of the Brazilian legal system and still attracts substantial rhetorical obedience in Brazilian legal circles.39 More cynically, it has been suggested that the opposition to the establishment of precedent is less related to principle and more to do with judges seeking to preserve their individual autonomy—their “right to dissent”—and a legal profession concerned about a decline in the demand for legal services.40 The lack of precedent is a frequently cited cause of judicial

36 Edgardo Buscaglia and Thomas Ulen, “A Quantitative Assessment of the Efficiency of the Judicial Sector in Latin America,” International Review of Law and Economics 17, no. 2 (1997): 279, https://doi.org/10/bzbdkv; Prillaman, Democratic Decay, 75–76; Santiso, “Economic Reform,” 171. 37 José Renato Nalini, “Judicial Reform in Brazil,” in Judicial Reform in Latin America and the Caribbean: Proceedings of a World Bank Conference, ed. Malcom Rowat, Maria Dakolias, and Malik Malik Waleed H., WTP280 (The World Bank, 1995), 173–74; Keith S. Rosenn, “Judicial Reform in Brazil,” NAFTA: Law and Business Review of the Americas 4 (1998): 20, https://doi.org/10/fqsfmq; Daniela Trejos Vargas, “Civil Justice Reform in the Americas: Lessons from Brazil,” Florida Journal of International Law 16 (2004): 27. 38Abstract review, the sole prerogative of the STF is, by definition, generally applicable. Additionally, Constitutional Amendment No. 45 of 2004 gave the STF the ability to create a weak form of vertical precedent—the súmula vinculante—when certain conditions were met, both matters are discussed in more detail below. 39 Henry J. Steiner, “Legal Education and Socio-Economic Change: Brazilian Perspectives,” American Journal of Comparative Law 19, no. 1 (1971): 39–90, https://doi.org/10/dzjxfr; Joaquim Falcão, “Lawyers in Brazil,” in Lawyers in Society: The Civil Law World, ed. Richard L. Abel and Philip S.C. Lewis, vol. 2 (University of California Press, 1988), 400–442; John Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 3rd ed. (Stanford University Press, 2007). 40 Maria Angela Jardim de Santa Cruz Oliveira, “Reforming the Brazilian Supreme Federal Court: A Comparative Approach,” Washington University Global Studies Law Review 5 (2006): 141; Matthew M. Taylor, Judging Policy: Courts and Policy Reform in Democratic Brazil (Stanford University Press, 2008), 31–33. 126

Rosevear — Judicial Interpretation of Social Rights backlog and, as it reduces legal certainty, is often the subject of criticism from the perspectives of both economic development and fairness.41 These concerns were partly addressed in 2004 by a constitutional amendment that introduced two potentially important institutional changes: the súmula vinculante (Binding Precedent), the requisito da repercussão geral (Requirement of General Repercussion or RGR).42 The súmula vinculante is an extension of the STF’s practice of issuing simple (often single sentence), non-binding interpretations of legal rules (súmulas) used to both simplify the process of adjudication and decision-writing in repeat litigation and to signal the STF’s position to the lower courts. The súmula vinculante serves a similar purpose, but rather than being persuasive, it is—at least formally—binding on judges in lower courts as well as federal, state, and municipal administrative agencies. Its creation was spurred by a desire to reduce the case load of the STF by eliminating a good deal of repeat litigation as well as increasing the predictability of the legal outcomes.43 The creation, amendment or annulment of a súmula vinculante requires a two-thirds majority of the total composition of the Court. Proposals can be made by members of the Court as well as a number of political actors.44 The actual impact of the procedure, however, is not entirely clear. Although there has been a recent increase in their creation by the STF, in the first eleven years only fifty-eight of the several hundred proposed súmula vinculante were approved.45 The requisito da repercussão geral was designed to reduce the Court’s caseload by enabling it to decline to hear cases if they lack general repercussions. This is highly relevant

41 Buscaglia and Ulen, “A Quantitative Assessment of the Efficiency of the Judicial Sector in Latin America,” 276; Taylor, Judging Policy, 13–14. 42 “Emenda Constitucional No. 45” (2004). 43 Maria Angela Jardim de Santa Cruz Oliveira and Nuno Garoupa, “Stare Decisis and Certiorari Arrive to Brazil: A Comparative Law and Economics Approach,” Emory International Law Review 26 (2012): 560–65. 44 The following offices and organizations are empowered to propose súmulas vinculantes: the President of Brazil, the directing boards of the Federal Senate; the Federal Chamber of Deputies; State legislative assemblies; the Attorney General of Brazil; the Federal Council of the OAB; the Federal Public Defender; any political party represented in the Brazilian Congress; any confederation of labor unions; any national professional association; any state governor; superior courts; federal and state appellate courts; and municipalities in which concrete cases are being litigated. Ibid., 560–65. 45 Coordenadoria de Análise de Jurisprudência, “Súmulas Vinculantes Coordenadoria De Análise De Jurisprudência” (Supremo Tribunal Federal, June 16, 2020), http://portal.stf.jus.br/textos/verTexto.asp?servico=jurisprudenciaSumulaVinculante. 127

Rosevear — Judicial Interpretation of Social Rights due to the STF’s lack of a formal docket control.46 However, the requirement of a two- thirds majority vote (albeit electronically) by the plenary court to decline to hear a case for this reason impairs its overall utility. Its greatest impact appears to be the ability of the Court to place large numbers of cases with identical issues on hold and consider one or a few representatives of the issue(s) they turn on. If the STF finds the matter inadmissible for lack of general repercussion, that finding applies to all the cases on hold. If the STF finds the issue relevant, it decides the issue and that ruling is applicable to all the cases placed on hold.47

4.2.4 Public Prosecutors and Public Defenders In addition to the courts, two other institutions have a key role with respect to social rights: the Ministerio Público (Public Ministry or MP) and the Defensoria Pública (Office of the Public Defender or DP).48 Prior to 1988, the MP was analogous to the office of the public prosecutor commonly found in civil law systems; an institution primarily concerned with representing the government in the prosecution of criminal offences. The 1988 Constitution greatly expanded the role of the institution, elevating it to something close to a fourth branch of government.49 It remains responsible for prosecuting criminals, but also represents the public interest in civil cases and acts as a general guardian of Brazilians’ rights.50 Public prosecutors operate independently of the other branches of government and

46 Regarding a mechanism for informal docket control see, Diego Werneck Arguelhes and Ivar A. Hartmann, “Timing Control without Docket Control: How Individual Justices Shape the Brazilian Supreme Court’s Agenda,” Journal of Law and Courts 5, no. 1 (February 9, 2017): 105–40, https://doi.org/10/ghdr4d. 47 Luciano Da Ros and Matthew Taylor, “Opening the Black Box: Three Decades of Reforms to Brazil’s Judicial System,” Working Paper Series (Washington, DC: School of International Service, American University, 2017), 565–70. 48 See, respectively, arts. 127-130 and arts. 133-135. 49 Maria Tereza Sadek and Rosângela Batista Cavalcanti, “The New Brazilian Public Prosecution: An Agent of Accountability,” in Democratic Accountability in Latin America, ed. Scott Mainwaring and Christoper Welna (Oxford University Press, 2003), 201–27. 50 Rogério Bastos Arantes, “Constitutionalism, the Expansion of Justice and the Judicialization of Politics in Brazil,” in The Judicialization of Politics in Latin America, ed. Alan Angell, Rachel Sieder, and Line Schjolden (Basingstoke: Palgrave Macmillan, 2005), 248. 128

Rosevear — Judicial Interpretation of Social Rights are left to determine their own mandate, subject to limited internal oversight.51 The federal, state, and, where they exist, municipal MPs are also independent of one another. The second institution, the DP, is tasked with ensuring access to the courts for the economically disadvantaged. This includes bringing both individual and collective claims relating to social rights. Access to a public defender is based on a means test, which varies jurisdiction to jurisdiction in both amount and strictness of application. In practice, resource limitations are also a factor. Similar to Brazilian judges—and most other public officials in Brazil—both public defenders and public prosecutors are selected by competitive examination and for all three institutions it is generally agreed that their constitutionally guaranteed autonomy exists in practice.52

4.2.5 Constitutional Protection Mechanisms Both abstract review and concrete review are possible in contemporary Brazil.53 The power to exercise the former lies solely with the STF, while the latter may be exercised by any and all courts. There are a number of different mechanisms that could be used to advance rights claims. Three sets are particularly relevant to social rights litigation: abstract review mechanisms, primarily the Ação Direta de Inconstitucionalidade (Direct Action of Unconstitutionality or ADI); collective claims or “public class actions” (distinct from the US-style class action); and individual actions brought by private actors, with or without the assistance of the DP.

51 Ibid., 231; Aline Jurca Zavaglia Vincente Alves, trans. Nicole Julie Fobe, April 22, 2015; Paulo Leivas, trans. Nicole Julie Fobe, May 6, 2015. As per, arts. 127-129 of the 1988 Constitution, admission to the Ministerio Público and security of tenure once admitted is broadly similar to that of judges. 52 Maria Tereza Sadek, “The Public Prosecutor’s Office and Legal Change in Brazil,” IDS Bulletin 32, no. 1 (2001): 69–71, https://doi.org/10/d8whcf. 53 In contrast to concrete judicial review, abstract judicial review permits the examination of legislation, regulation, or policy for constitutionality in the absence of a real dispute. 129

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The ADI, as with all abstract review mechanisms in Brazil,54 is the prerogative of a constitutionally defined set of national actors, both inside and outside partisan politics.55 ADIs are heard by the STF sitting as a plenary body as matters of original jurisdiction and are used to challenge the constitutionality of federal and state laws. A decision of unconstitutionality requires an absolute majority, and since 1993 the decisions rendered are explicitly binding on other courts and the executive.56 Both the MP and the DP may bring individual and collective claims, but in general, the MP handles structural matters involving class-related or general claims of public interest via public class actions while the DP handles individual actions.57 In addition, individuals may retain private representation to advance individual claims. Actions of these types, which may be filed as one of a number of specific mechanisms, do not have a precedential effect.

54 There are three other abstract review mechanisms: The Ação Declaratória de Constitucionalidade (Declaratory Action of Unconstitutionality or ADC); the Arguição de Descumprimento de Preceito Fundamental (Allegation of Disobedience of a Fundamental Precept or ADPF); and, the (Ação Direta de Inconstitucionalidade por Omissão (Action of Unconstitutionality for Omission or ADO). While theoretically interesting and potentially important (particularly the ADO), they have been relatively little used in comparison to the ADI—the Court has decided nearly 5000 ADIs as compared to a combined total of less than 600 for the others. “Estatísticas do STF,” Supremo Tribunal Federal, accessed October 9, 2020, http://www.stf.jus.br. 55 These actors are: the President of the Republic, the executive committee of either house of Congress, the executive committee of the legislature of any state or the legislative chamber of the federal district, the governor of any state or the federal district, the Federal Council of the Brazilian Bar Association (Ordem dos Advogados do Brasil or OAB), any political party represented in the federal congress, and any labor, professional or business organization with a national scope. Art. 103. See, also Keith S. Rosenn, “Procedural Protection of Constitutional Rights in Brazil,” American Journal of Comparative Law 59 (2011): 1041–46, https://doi.org/10/bnj6gg. 56 “Emenda Constitucional No. 3” (1993). The wording of the relevant article (art. 103) was further altered by the so-called Judicial Reform Amendment Emenda Constitucional No. 45. 57 Florian F. Hoffman and Fernando R.N.M. Bentes, “Accountability for Social and Economic Rights in Brazil,” in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, ed. Varun Gauri and Daniel M. Brinks (Cambridge University Press, 2008), 104; Daniel W. Liang Wang and Octavio Luiz Motta Ferraz, “Reaching Out to the Needy? Access to Justice and Public Attorneys’ Role in Right to Health Litigation in the City of São Paulo,” SUR - International Journal on Human Rights 10, no. 18 (2013): 162. 130

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4.3 Social & Political Context

4.3.1 Education The earliest manifestation of social rights in Brazil was the 1824 Constitution, which stipulated that primary education was to be provided free for all Brazilians.58 However, there was little state action to realize this guarantee and education was left to religious and charitable organizations as well as private initiatives. In 1836, the responsibility for education was devolved to the provinces, where a lack of adequate funding meant little in the way of service provision occurred. The 1872 census indicated that roughly 17% of the population between 6 and 15 were attending school and 80% of the population was illiterate. This pattern of illiteracy was evident in rural areas well into the 20th century.59 Throughout this time, the elite continued receive primary and secondary education, largely via private religious institutions.60 In 1934, primary education became compulsory and the primary school population grew steadily throughout the 20th century.61 This can be largely attributed to Getúlio Vargas’ identification of education as an essential element in his economic development and industrialization plan. During the 1930s 40,000 primary schools were established and the number of students enrolled in secondary schools jumped from 90,000 to 227,000.62 These efforts led to substantial improvements in literacy, but the effects of these efforts were not uniformly distributed.63 At the national level, illiteracy had been reduced to

58 Herman G. James, trans., “Constitution of the Empire of Brazil, 1824,” in The Constitutional System of Brazil (Carnegie Institution, 1923), 237–52 (art. 179). (“The inviolability of the civil and political rights of Brazilian citizens, which rest upon liberty, individual security, and property, is guaranteed by the constitution of the empire in the following manner: …32. Primary instruction is free to all citizens.”) 59 Joseph Smith, History of Brazil, 1500-2000: Politics, Economy, Society, Diplomacy (Longman, 2002), 77– 78, 124. 60 Francisco Vidal Luna, Brazil Since 1980, ed. Herbert S. Klein (Cambridge University Press, 2006), 181– 82. 61 Ibid., 189. 62 Smith, History of Brazil, 1500-2000, 181–82. 63 For example, as late as 1950 an estimated 70% of the population of the Northeastern state of Alagoas were illiterate. Ibid. 131

Rosevear — Judicial Interpretation of Social Rights approximately 50% of the population by 1950.64 Further gains were made during the subsequent decades, driven in no small part by campaigns to improve school attendance by the military regime. By 1980 roughly 75% of the population were literate.65 Still, access to education in Brazil remained highly unequal and correlated with geography, social class and political affiliation. Favored groups received privileged access; those of lesser influence were often, and to some extent continue to be, excluded altogether.66 In the early 1990s, the Brazilian government undertook a number of initiatives to improve the quality of and access to education. These included: (i) the “Education for All” plan (1993-2003); (ii) the renewal of the Lei das Diretrizes e Bases da Educação Nacional (Law of Directives and Bases of National Education), which affirmed the importance of Early Childhood Education, in 1996; and (3) the creation of the Fundo para Manutenção e Desenvolvimento do Ensino Fundamental e Valorização do Magistério (Development Fund for Basic Education and Development of Teaching) in 1997.67 In terms of basic education, the Brazilian census shows remarkable improvements in the democratic era. In 1991 the literacy rate of 15-24-year-olds was 87.5%; by 2010 it had risen to 97.3%. In addition, the completion rates for the basic four-year primary education for the same age group went from 44.5% to 83.0% during the same period. The long-standing gap between the most (South) and least (Northeast) well-off regions of the

64 Increases in secondary and tertiary education came later, largely as the result of the policies of the military government, in the 1960s and 1970s. The expansion of higher education was a reflection of a broader was a reflection of a global trend, justifiable as a furthering the military’s desire for national development. In pursuit of this goal, the Brazilian government undertook an active campaign to increase attendance and access to higher education as a tool of modernization including increasing the number of students in tertiary education from 456,000 in 1970 to 1.4 million in 1980. Unfortunately, it seems that much of the expansion came at the expense of quality. Luna, Brazil Since 1980, 186–87. 65 Ibid., 189–91. 66 David N. Plank, “The Politics of Basic Education Reform in Brazil,” Comparative Education Review 34, no. 4 (November 1, 1990): 538, https://doi.org/10/ds5t99; Luna, Brazil Since 1980, 186–89; Smith, History of Brazil, 1500-2000, 229; Carlos Monroy, Ryan McNally, and Stefan Trines, “Education in Brazil,” Education System Profiles (World Education Services, November 14, 2019), https://wenr.wes.org/2019/11/education-in-brazil. 67 Sonia Kramer and Maria Fernanda R. Nunes, “Early Childhood Education and Elementary School in Brazil: Public Policy Challenges in the Time of Expanding Compulsory Schooling,” Education 3, no. 5 (2013): 255–56; Oney Cardoso Badaró Alves da Silva and Sheila Cristina Furtado Sales, “Literacy of Young and Adult People: A Reflection on the Program Literacy for All (TOPA), in the City of Vitória Da Conquista, Bahia, Brazil,” US-China Education Review A 5, no. 12 (2015): 785. 132

Rosevear — Judicial Interpretation of Social Rights country also improved between 1991 and 2010.68 In terms of literacy, the difference between the two regions declined from 22.4 percentage points in 1991 to 4.3 in 2010. It should, however, be noted that during the two census periods preceding democratization there were similar or even more substantial gains.69 Despite these improvements, several issues remain with Brazilian basic education. In addition to regional disparities in terms of access,70 the quality of education being delivered is also suspect. According to the national evaluator of elementary education, in the early 2000s only 10% of adolescents had the reading skills expected for their grade and only 3% had the mathematics skills.71 Resources and infrastructure also remain serious concerns72— particularly in light of a 2016 amendment to the Constitution which placed a ceiling on public spending for 20 years73—as does the efficiency and effectiveness of administration and the ability to address specific needs. For example, there were shortages of 140,000-150,000 creche (nursery school) and pré-escola (pre-school) places in the city of São Paulo during the early 2010s.74

4.3.2 Healthcare The increasing urbanization of Brazil in the early 20th century exerted considerable pressure on social services. Prior to 1930, public healthcare provision had been minimal at

68 The Northeast comprises the States of Alagoas, Bahia, Maranhão, Piauí, Ceará, Rio Grande do Norte, Pernambuco, Paraíba, and Sergipe with a population of 53 million (2010) and a GDP of R$ 595 million (2012). The South consists of Paraná, Rio Grande do Sul, and Santa Catarina with a population of 27 million (2010) and a GDP of R$ 711 million (2012). Source: Instituto Brasileiro de Geografia e Estatística (IBGE). 69 IBGE, “Brazilian Censuses: 1960, 1970, 1980, 1991, 2000, 2010 (1% Samples),” Integrated Public Use Microdata Series, International: Version 7.2 [Dataset] (IPUMS, 2018), https://doi.org/10.18128/D020.V7.2. 70 Airi Macias Sacco, Ana Paula Lazzaretti de Souza, and Sílvia Helena Koller, “Child and Adolescent Rights in Brazil,” The International Journal of Children’s Rights 23, no. 4 (2015): 830, https://doi.org/10/ghdr8h. 71 Ibid., 829. 72 Maria Paula Dallari Bucci and Fernando A. Dourado Gomes, “A Piece of Legislation for the Guidance of Public Education Policies in Brazil: The National Education Plan 2014–2024,” The Theory and Practice of Legislation 5, no. 3 (2017): 285–87, 300, https://doi.org/10/ghdr4s. 73 “Emenda Constitucional No. 95,” Diário Oficial da União (Brazil), no. 241 (December 15, 2016): 2–3. 74 Ester Gammardella Rizzi and Salomão Barros Ximenes, “Litígio Estratégico para a Mudança do Padrão Decisório em Direitos Sociais: Ações Coletivas Sobre Educação Infantil em São Paulo” (São Paulo, Brazil: Ação Educativa, April 2014). 133

Rosevear — Judicial Interpretation of Social Rights best.75 From the 1930s to the 1960s, health care was organized in three subsystems: social security, the Ministry of Health, and the voluntary private sector. Access to health care, like pensions, was largely contingent on participation in the formal labor market via a joint contribution model of insurance. This led to a highly stratified health system, as quality and type of service depended heavily on the workers’ ability to pay and their industry or association’s leverage with the federal government. Standardization of health services began with in 1960 with reforms to the organization of social security and from 1964 onward the state became increasingly involved in the health care system as a means of both legitimating itself and stimulating the private sector. Beginning in the 1970s, health coverage via the social security system continued to expand but always remained linked to contributions, thereby excluding informal workers. However, emergency care was extended to everyone, regardless of formal employment status.76 During this time, service provision came increasingly via private enterprise which was contracted by the state to provide service to covered individuals. The private sector was further advantaged by the social security reform of 1977 and the creation of Instituto Nacional de Assistência Médica da Previdência Social (National Institute of Medical and Social Welfare or INAMPS). Almost immediately INAMPS became a key conduit for the transfer of public funds into the private sector. More importantly, however, “INAMPS institutionalized a high-cost, specialized, curative, hospital-based health care system concentrated in the profitable regions of the country.” 77 The heavily private and private-contracted health system that was in place by the late 1970s was an unlikely candidate for the reforms that followed. Nevertheless, throughout the 1960 and 1970s the Sanitarista (Sanitary) movement had been gaining influence. This health reform movement arose as a reaction to the increasing inequality of

75 Smith, History of Brazil, 1500-2000, 181. 76 Lenaura Lobato and Luciene Burlandy, “The Context and Process of Health Care Reform in Brazil,” in Reshaping Health Care in Latin America: A Comparative Analysis of Health Care Reform in Argentina, Brazil, and Mexico, ed. Sonia Maria Fleury Teixeira, Susana Belmartino, and Enis Baris (IDRC, 2000), 82, 84–85. 77 Tulia G. Falleti, “Infiltrating the State: The Evolution of Health Care Reforms in Brazil, 1964–1988,” in Explaining Institutional Change: Ambiguity, Agency, and Power, ed. James Mahoney and Kathleen Ann Thelen (Cambridge University Press, 2010), 45. 134

Rosevear — Judicial Interpretation of Social Rights access brought about by a combination of growing income inequality and the military regime’s stimulation of the private healthcare sector, which focused on more costly, curative treatment and positioned itself to best serve those with the ability to pay, as opposed to those with the greatest need. In addition, the high degree of informal employment in urban centers excluded many from access to public services. Health professionals and academics critiqued this model and sought to foster broad-based support for reform. However, extreme poverty induced an intense focus on short term survival and tangible, parochial gains at the expense of solidarity and agitation for structural change.78 The preferred strategy, then, became for members of the movement—generally well- qualified public health professionals—to take up posts within the health secretariats and agencies of various governments in order to advance, with assistance from expert and limited public pressure, the goals of the movement.79 Because the social security budget was funded via direct payroll contributions, it was highly sensitive to the economic fortunes of the country. Because, health expenditures were the only aspect of the social security portfolio (which also included pensions) that was not predetermined, the effect was exacerbated. This eventually resulted in the “social security crisis” of the 1980s, which was an important stimulant of the reform process.80 At that point, the Sanitarista movement was able to effectively promote their preferred alternative model of care. The constitutional framework for the creation of Brazil’s post-1988 national health system (SUS) was largely the result of work done by members of the sanitary movement. The creation and organization of the SUS can be traced fairly directly to the 8th National Health Conference in 1986. This conference brought together approximately 5,000 participants representing patients, NGOs, and the public sector and its final report was the cornerstone of the Constitutional Charter on Health, a document that “ushered in the innovative concept of social security as a constitutional principle, making it integral to state

78 Kurt Weyland, “Social Movements and the State: The Politics of Health Reform in Brazil,” World Development 23, no. 10 (October 1995): 1699–1712, https://doi.org/10/fccrp6. 79 Falleti, “Infiltrating the State: The Evolution of Health Care Reforms in Brazil, 1964–1988,” 46–47. 80 Lobato and Burlandy, “The Context and Process.” 135

Rosevear — Judicial Interpretation of Social Rights welfare activities covering the areas of public assistance, social insurance and health care provision.” The universalist principles it articulated and that are echoed in the 1988 Constitution itself, however, have not been entirely free of conflict with proponents of free markets.81 There have been remarkable improvements in key health indicators in Brazil since democratization. Infant mortality decreased by 43.1 deaths per 1,000 live births and under-5 mortality by 53.1 between 1988 and 2013. On the other side of the continuum, life expectancy at birth increased by 8.2 years to 73.9 years during the same time frame. Brazil’s response to HIV/AIDS has also been quite remarkable. Specifically, the creation of a national policy of universal antiretroviral provision which has been praised as a model for developing countries, lead to massive reductions in transmission—as compared to projections—and likely resulted in long-run savings in healthcare costs measured in billions of Reais.82 On the other hand, significant concerns about healthcare accessibility and the efficiency of its administration remain.

4.3.3 Housing Brazil has long suffered from an extensive shortage of housing stock and serious affordability issues for working class and marginalized communities. The abolition of slavery at the end of the 19th century saw a substantial increase in demand for small properties—as opposed to the large tracts of land held by a small, powerful elite that characterized the monarchical period.83 The colonial system of large land grants was replaced by a modern land market, but legislation governing the sale and ownership of land made it difficult for immigrants to purchase property. Rather, immigrants were compelled to serve as wage laborers. Broadly speaking, it was in the interest of the elites to replace

81 Paulo Buss and Paulo Gadelha, “Health Care Systems in Transition: Brazil Part I: An Outline of Brazil’s Health Care System Reforms,” Journal of Public Health 18, no. 3 (1996): 290. 82 Amy Nunn et al., “The Impacts of AIDS Movements on the Policy Responses to HIV/AIDS in Brazil and South Africa: A Comparative Analysis,” Global Public Health 7, no. 10 (2012): 1031–44; Alan Berkman et al., “A Critical Analysis of the Brazilian Response to HIV/AIDS: Lessons Learned for Controlling and Mitigating the Epidemic in Developing Countries,” American Journal of Public Health 95, no. 7 (2005): 1162–72, https://doi.org/10/dkm6c6. 83 Yue Zhang, “Rightful Squatting: Housing Movements, Citizenship, and the ‘Right to the City’ in Brazil,” Journal of Urban Affairs, 2020, 5–6, https://doi.org/10/ghdr9d. 136

Rosevear — Judicial Interpretation of Social Rights slave labor with tenant or wage labor as opposed to selling property.84 There was a limited distribution of land to smallholders in certain parts of the south of the county, but nothing comparable to what occurred during the settling of the Western United States. Nor was there an organized land reform movement during this era. Rather, the “empty unclaimed state lands” that comprised much of the country at the time was gradually appropriated by the landed classes, often by questionably legal means.85 Beginning in the late 1930s, Brazil’s industrialization brought about a large-scale internal migration to urban areas. Employment in these areas tended to be low-paying and many workers were incapable of participating in the formal housing or rental markets. This resulted in a rapid growth of self-improvised housing and the dramatic growth in the size and number of informal settlements (favelas),86 something that has continued into the present day.87 Brazil began experimenting with housing finance as early as the 1940s as a part of the national development strategy. However, it has not developed a consolidated mortgage markets nor has it built up any significant stock of state-owned housing.88 In the 1960s, the military regime created two initiatives to facilitate the provision of housing stock.89 In combination they had resulted in the production of almost 5 million housing units by 1990 when they were wound up. Funded by payroll taxes, voluntary saving schemes, and mortgage repayments, the system first financed the building of housing by private contractors and then purchasers’ mortgages of the buildings. However, there was little to no emphasis on the construction or purchase of existing buildings for use as rental housing stock, seriously impairing the ability of the least well-off to benefit from the program. Moreover, the surge in unemployment during the economic crisis at the beginning

84 Luna, Brazil Since 1980, 211; Zhang, “Rightful Squatting,” 5. 85 Luna, Brazil Since 1980, 211. 86 Zhang, “Rightful Squatting,” 6. 87 Janice E. Perlman, Favela: Four Decades of Living on the Edge in Rio De Janeiro (New York: Oxford University Press, 2010). 88 Jeroen Klink and Rosana Denaldi, “On Financialization and State Spatial Fixes in Brazil: A Geographical and Historical Interpretation of the Housing Program My House My Life,” Habitat International 44 (2014): 211, https://doi.org/10/ghdr6t. 89 The Banco Nacional da Habitaçao (National Housing Bank or BNH) in 1964 and the Sistema Financeiro da Habitação (Housing Financing System or SFH) in 1964. 137

Rosevear — Judicial Interpretation of Social Rights of the 1980s resulted in widespread withdrawal from the voluntary savings schemes and mortgage defaults.90 Social movements, particularly neighborhood associations, emerged in the 1970s and made modest gains in the 1980s and 1990s. Although poor neighborhoods remained largely run down, there were some improvements to road surfaces, legal electricity connections became more common, and access to telephones increased.91 The addition of the right to housing in to the Constitution in 2000 was brought about in part by the Movimento Nacional da Reforma Urbana (National Movement for Urban Reform),92 an organization with loose ties to the Partido dos Trabalhadores (Brazilian Workers’ Party) established by popular movements, neighborhood associations, NGOs, trade unions, and others to “challenge the unsuccessful technocratic planning model prevailing in the country.”93 Despite substantial organization and formal legal progress in this area such as the institution of policy councils involving citizen participation at the municipal (as well as state and national) level, the passage of the City Statute in 2001,94 the Minha Casa Minha Vida (My House My Life) initiative,95 and heavy investment in social welfare programs by the PT Government in the 2000s,96 permanent housing and secure land tenure remain inaccessible to millions. Estimates by the Fundação João Pinheiro suggest a deficit of 6.3

90 Márcio Moraes Valença and Mariana Fialho Bonates, “The Trajectory of Social Housing Policy in Brazil: From the National Housing Bank to the Ministry of the Cities,” Habitat International 34, no. 2 (2010): 2–3, https://doi.org/10/d85gkx. 91 Camille Goirand, “Citizenship and Poverty in Brazil,” Latin American Perspectives, 2003, 18–19. 92 The Movimento dos Trabalhadores Rurais Sem Terra (Landless Workers’ Movement or MST) has also proved successful insofar as it was able to settle 370,000 families as well as locate another 120,000 in tented encampments between 1984 and 2009. George Mészáros, Social Movements, Law, and the Politics of Land Reform: Lessons from Brazil, Law, Development and Globalization (Abingdon, Oxon: Routledge, 2013), 1. 93 Zhang, “Rightful Squatting,” 6; Edesio Fernandes, “Implementing the Urban Reform Agenda in Brazil: Possibilities, Challenges, and Lessons,” Urban Forum 22, no. 3 (September 1, 2011): 299–314, https://doi.org/10/bzpm4n. 94 Edésio Fernandes, “Constructing the ‘Right to the City’ in Brazil,” Social & Legal Studies 16, no. 2 (2007): 201–19, https://doi.org/10/d25633; Abigail Friendly, “The Place of Social Citizenship and Property Rights in Brazil’s ‘Right to the City’ Debate,” Social Policy and Society 19, no. 2 (2020): 307–18, https://doi.org/10/ghdr5z; Fernandes, “Implementing the Urban Reform Agenda in Brazil.” 95 Klink and Denaldi, “On Financialization and State Spatial Fixes in Brazil.” 96 Fernandes, “Constructing the ‘Right to the City’ in Brazil.” 138

Rosevear — Judicial Interpretation of Social Rights million permanent, non-improvised housing units nationwide.97 Moreover, a key takeaway from the 2010 Brazilian census was that, approximately 6.0% (11.4 million) Brazilians live in one of the country’s 6,239 informal settlements.98 Almost 90% of this type of household are located in twenty metropolitan areas and about half are located in the Southeast region of the country. The conditions within these settlements and their locations vary greatly. Some remain controlled by organized crime; others have established effective local governance scheme. In most cases, there is at least some degree of municipal servicing, including water, electricity, garbage collection. A common theme throughout, however, is the absence of unequivocal land tenure and the consequent precarity of living conditions.99

4.4 The Brazilian Legal System

4.4.1 Historical Development Brazil’s contemporary legal system is rooted in the civil law of Latin Europe but, particularly since the establishment of the country as a republic in the late 1880s and early 1890s, there has been a strong Anglo-American influence. The 1891 “Constitution of the United States of Brazil” was largely based on the 1824 Constitution but took its cues in federalism and judicial review from the US constitution. This included the transition from a unified judicial hierarchy to one divided between state and federal competencies.100 Notably, its chief author—Rui Barbosa—“was a profound student of [the US] constitutional system.”101 In addition to this, approving judicial reference to the Federalist

97 “Déficit Habitacional no Brasil,” Estatística e Informações: Demografia e Indicadores Sociais (Belo Horizonte: Fundação João Pinheiro, 2018), 33. 98 Officially known as subnormal agglomerates. 99 “2010 Census: 11.4 Million Brazilians (6.0%) Live in Subnormal Agglomerates” (Instituto Brasileiro de Geografia e Estatística, December 21, 2011), https://censo2010.ibge.gov.br/en/noticias- censo.html?busca=1&id=1&idnoticia=2057&t=2010-census-11-4-million-brazilians-6-0-live-in- subnormal-agglomerates&view=noticia. 100 Amaro Cavalcanti, “The Federal Judiciary in Brasil and the United States of America,” University of Pennsylvania Law Review and American Law Register 60, no. 2 (1911): 112, https://doi.org/10/d9zzdc. 101 Phanor J. Eder, “Judicial Review in Latin America,” Ohio State Law Journal 21 (1960): 580. 139

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Papers, decisions of the US Supreme Court, and standard treatises on US constitutional law have long been accepted.102 With the 1891 Constitution came the abolition of the old apex court and the creation of a new apex Court (the STF), although nine of the fifteen initial appointees to the STF had been sitting on the old apex court prior to its abolition.103 Nevertheless, there was a change in the way Brazil’s apex court was populated. Previously, appointments had been made from the professional judiciary on the basis of seniority. With the creation of the STF, appointments to the apex court became the prerogative of the President of the Union subject to Senate confirmation—another indication of US influence. With the exception of two periods during the Vargas era (1930-1934 and 1937-1945) when Senate confirmation was not required, this appointment procedure has remained in place ever since.104 The 1891 Constitution also made provision for a system of decentralized judicial review based largely on the U.S. system, a power bolstered first by legislation and then by constitutional amendment in 1926.105 However, the writ of habeas corpus, with its expansive interpretation,106 remained the dominant mode of constitutional challenge during the first decades of the republican era. In 1900, for example, 75 of the 364 cases (20.6%) decided by the STF were habeas corpus claims. However, concern with the volume and expanding scope led to the restriction of habeas corpus to actual or imminent threatened

102 Anyda Marchant, “The Brazilian Writ of Security (Mandado de Segurança) and Its Relationship to the Extraordinary Remedies of the Anglo-American Common Law: An Object Lesson in Latin American Law Making,” Tulane Law Review 19 (1944): 213–28; Eder, “Judicial Review in Latin America,” 580; Jacob Dolinger, “The Influence of American Constitutional Law on the Brazilian Legal System,” American Journal of Comparative Law 38 (1990): 803–38, https://doi.org/10/bm3gf5. 103 “Sobre o STF: Pastas Dos Ministros,” Supremo Tribunal Federal, accessed September 8, 2015, http://www.stf.jus.br. 104 Luciano Da Ros, “Judges in the Formation of the Nation-State: Professional Experiences, Academic Background and Geographic Circulation of Members of the Supreme Courts of Brazil and the United States,” Brazilian Political Science Review 4, no. 1 (2011): 106–8. 105 Eder, “Judicial Review in Latin America,” 580–82; Herman G. James, trans., “Constitution of the Republic of the United States of Brazil, 1891,” in The Constitutional System of Brazil (Carnegie Institution, 1923), 221–36 (arts. 59 and 60). 106 As a way of illustrating the expanded application of habeas corpus in Brazil, James makes mention of, “the famous case of a habeas corpus issued in 1911 in favor of the members of the municipal council of the federal district who applied for the writ to protect them in their liberty of entering into the council chamber and exercising their legal functions, after the president of the republic had by decree ordered new elections.” Herman G. James, The Constitutional System of Brazil (Carnegie Institution, 1923), 134–36. 140

Rosevear — Judicial Interpretation of Social Rights interference with an individual’s freedom of movement via constitutional amendment in 1926. After several years, however, Brazilian jurists became convinced that a summary procedure for the protection of constitutional rights was required to take the place of the formerly expansive habeas corpus. This led to the inclusion of the mandado de segurança (writ of security) in the 1934 Constitution. The writ remains in use and can function as either and affirmative or negative injunction, compelling an authority to (not) act, is a summary action taking precedence over all other actions on court calendars except for habeas corpus, and enables the court to issue ex parte preliminary injunctions to preserve the status quo.107 The Vargas era also saw the creation of the Ordem dos Advogados do Brasil (the Brazilian Bar Association or OAB) in 1930. Although founded by Vargas government, it has always been at least semi-autonomous and was the product of the professionalization of the Brazilian legal establishment as much as it was evidence of the corporatism of the Vargas era. Indeed, the OAB expanded its role to include social advocacy when a change in the presidency of the OAB resulted in “the Order [taking] the lead of social and political criticism, claiming to be a voice for public interest, in defense of juridical order and the rule of law, menaced by Vargas’s coup in 1937, thus marking its institutional vocation in addition to its professional aims.”108 The OAB continued to defend both the rule of law and its own corporate interests throughout the subsequent Vargas dictatorship and the 1946-1964 “democratic experiment.”109 Although no longer a guaranteed steppingstone to the elite, the prestige of the law degree remained at the beginning of Brazil’s republican era, even more so than it does today. At the end of the Imperial era, four new law schools were quickly established, bringing the national total to six, “mainly as a strategic action of the new government, which needed new institutions to oppose the two old imperial schools, still strongly marked

107 Marchant, “The Brazilian Writ of Security,” 220; Hector Fix Zamudio, “The Writ of Amparo in Latin America,” Lawyer of the Americas 13, no. 3 (1981): 371–74; Keith S. Rosenn, “Civil Procedure in Brazil,” American Journal of Comparative Law 34, no. 3 (1986): 515–16, https://doi.org/10/dspgjw; Da Ros, “Judges in the Formation,” 106–7. 108 Maria da Gloria Bonelli, “Lawyers’ Associations and the Brazilian State, 1843-1997,” Law & Social Inquiry 28, no. 4 (2003): 1060–61, https://doi.org/10/bg5zn9. 109 Ibid., 1061–62. 141

Rosevear — Judicial Interpretation of Social Rights by a monarchist political vision.”110 By 1927, after a century of domestic legal education, there were 13 law schools and from this point onward, the expansion was rapid—in no small part due to the military regime’s rapid expansion of higher education, a policy continued after re-democratization: when the military took power in 1964 there were 64 law schools, there were 127 in 1977, 303 in 1997, and 1051 in 2007.111 According to the most recent numbers released by the Federal Council of the OAB, there are more than 1.2 million licensed lawyers in Brazil,112 while estimates place the number of non-lawyers with law degrees in excess of 3 million.113 Based on research conducted in 1960 as a fellow of the Inter-American Cultural Convention, Ronald Scheman offers an informative portrait of the Brazilian judiciary and its judges just prior to the military takeover in 1964.114 By that time the institutional form of the judiciary largely resembled its current state. Judges were selected at the state level according to criteria broadly outlined by federal law. Depending on the state, judges were required to have somewhere between zero and four years of legal experience and judicial appointments were made by state governors from short-lists prepared by the judiciary on the basis of competitive examinations. Subject to a probationary period, a judge had life tenure and an irreducible salary (a somewhat illusory concept in the inflation-prone years to come). Retirement was possible after 30 years of service and mandatory upon reaching 70.115

110 Roberto Fragale Filho, “Brazilian Legal Education: Curricular Reform That Goes Further without Going Beyond,” German Law Journal 10 (2009): 752, https://doi.org/10/ghdr99; citing, Daniel Torres de Cerqueira, “O Ensino Jurídico No Brasil: Breve Radiografia Do Setor,” Anuário ABEDI 4 (2006): 95. 111 Filho, “Brazilian Legal Education,” 752–55. 112 “Transparência nas Contas: Quantidade de Inscritos” (Brasília: Ordem dos Advogados do Brasil, Conselho Federal, 2020), https://www.oab.org.br/institucionalconselhofederal/quadroadvogados. 113 “The Brazilian Legal Profession,” Program on the Legal Profession (Harvard Law School, 2011), http://www.law.harvard.edu/programs/plp/pdf/Brazilian_Legal_Profession.pdf. 114 Ronald Scheman, “Brazil’s Career Judiciary,” Journal of the American Judicature Society 46 (1963 1962): 134–40; Ronald Scheman, “The Social and Economic Origin of the Brazilian Judges,” Inter-American Law Review 4 (1962): 45–72. Although the response rate is quite low—approximately 7% (95) of the roughly 1400 judges that were contacted replied, the research is, to the best of the author’s knowledge, the first and only empirical investigation of the judiciary in this era. 115 Scheman, “Brazil’s Career Judiciary,” 136–37. 142

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In terms of judicial philosophy, Brazilian judges of the time were characterized as “technicians chosen on the basis of their intellectual merit rather than their political influence.”116 Additionally, the influence of politics on their selection was limited to state governors choosing one of the three names presented to them by the relevant state’s supreme court.117 Similarly, Scheman’s data paints a portrait of the average Brazilian judge as “com[ing] to the judiciary with a minimum of practical legal experience and little direct experience with the various other economic means of livelihood…. His business is judging, and it is around that which his life and experience have been oriented.”118 In terms of advancement, a hierarchy based on population and proximity to the capital existed (and exists) within the trial court system, and judges tended to begin their careers in the rural, interior regions and progress toward more populous areas. Promotion alternated between merit (as determined by secret ballot of the State Supreme Court judges) and seniority. This applied to the trial level positions as well as four-fifths of the State Supreme Court. However, in order to “to obviate any tendency of the career becoming inbred,” the remaining judgeships were reserved for “outstanding lawyers or professors” with at least ten years of legal experience.119 These members were also appointed by the governor from a list of three compiled by the State Supreme Court. Scheman’s research also supports the traditional portrayal of Latin American judiciaries as being of limited importance, not offering particularly lucrative or interesting careers, and not the choice of top legal minds. With respect to salary, for example, 82% of judges were dissatisfied with their salaries. Dissatisfaction was particularly high among trial judges, 90% of whom did not feel their salaries to be sufficient. It is also apparent that the judiciary was not a first-choice career. In survey of 1,139 law students, only 33 (2.9%)

116 E. D. Moniz de Aragao, “The Brazilian Judicial Organization,” Inter-American Law Review 6 (1964): 263. 117 Ibid. 118 Scheman, “Social and Economic Origin,” 63. 119 Scheman, “Brazil’s Career Judiciary,” 135–38; see also, Caio Tacito and Jose Carlos Barbosa Moreira, “Judicial Conflicts of Interest in Brazilian Law,” trans. Keith S. Rosenn, American Journal of Comparative Law 18 (1970): 690–92, https://doi.org/10/d8hv3t. 143

Rosevear — Judicial Interpretation of Social Rights indicated a desire to become a judge.120 Moreover, “In conversation with professors and judges, [Scheman] was advised that those who apply for the magistrature are not generally in the top levels of their classes.”121 In addition, the requirement of starting one’s career in a rural area was a serious impediment to recruitment. The conditions in the interior cities were often not particularly modern or cosmopolitan and facilities for the rearing of a family (e.g. schools) often poor; where conditions were particularly trying there was often difficulty in filling the positions at all.122 These factors suggest a strong likelihood of a passive judiciary; one unwilling to involve themselves too much in controversy or other activities that might require contravening the formalist conception of law instilled in them by education and made all the more probable by virtue of the nature of a judicial selection process likely to privilege orthodox judicial thinking. An additional source of reticence could stem from a desire to retain their positions which, although low paying, were at least stable and that, although not making them members of the elite, attracted a certain degree of prestige. At the same time, however, the Brazilian judge of the was “certainly a man steeped in a Brazilian heritage and traditions… brought up in a reasonably well-off middle-class family and has had an experience to the world of culture and ideas from his early years by relatively well- educated parents.”123 Moreover, they would likely be more familiar than most of the deprivation of many Brazilians by virtue of “a boyhood in the interior of the state and from his experience in the early years of the career magistrature.”124 In this respect, then, a judge might well harbor certain liberal-democratic leanings (particularly as a result of the US influence on Brazilian constitutional form), if not its substance, even if they lacked a professionally acceptable means of furthering such beliefs in their day-to-day work.

120 E.g., Rogelio Pérez-Perdomo and Lawrence M. Friedman, “Latin Legal Cultures in the Age of Globalization,” in Legal Culture in the Age of Globalization: Latin America and Latin Europe, ed. Lawrence M. Friedman and Rogelio Pérez-Perdomo (Stanford University Press, 2003), 1–19; Merryman and Pérez- Perdomo, The Civil Law Tradition, 34–38. 121 Scheman, “Brazil’s Career Judiciary,” 139. 122 Ibid., 138–40. 123 Scheman, “Social and Economic Origin,” 62. 124 Ibid., 62–63. 144

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4.4.2 The Legal Profession & the Military Regime The relationship among the military, the legal profession and the judiciary, and the law was an intriguing one. According to Arguelhes:

From the beginning, the incoming military leaders wanted to present themselves as preserving the 1946 constitutional text against the Communist threat – not simply sidestepping it for a greater good. This made the choice and use of legal forms paramount, opening a permanent dialogue between the regime and conservative lawyers and legal scholars.125

In this regard, the Brazilian military was at least rhetorically revolutionary, and it did not seek the explicit justification of its seizure of power on constitutional grounds. Rather, it sought to portray its actions as a popular re-taking of the constitution, citing rampant inflation, stagnant production, an assertion the President João Goulart was planning on establishing a personal dictatorship, and the threat of a communist takeover as justifications.126 In seeking legitimacy by (largely) continuing the constitutional guarantees set out in the 1946 Constitution, the military regime broke with the pattern of giving expression to political regime change via the promulgation of a new constitution, as had been the case in 1891, 1934, 1937, and 1946.127 The military did, however, rely on a series of “Institutional Acts” used fine tune the 1946 Constitution.128 In line with this assertion of constitutional continuity, the regime complied with a number of STF decisions that nullified certain of its actions.129 For example, in his study of judicial independence in Latin America, Verner notes that

125 Arguelhes, “Old Courts, New Beginnings,” 55 (on file with author). 126 Beverly May Carl, “Erosion of Constitutional Rights of Political Offenders in Brazil,” Virginia Journal of International Law 12 (1972): 160; Anthony W. Pereira, Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina, Pitt Latin American Series (University of Pittsburgh Press, 2005), 65–66. 127 Ultimately, however “…the idea of having its own constitution seemed to have a powerful grasp on the imagination of more ‘legalist’ sectors of the military inner circle” and the various exceptional legislation passed during the first years of military rule were consolidated in the Constitution of 1967.” Arguelhes, “Old Courts, New Beginnings,” 47. 128 Ato Institucional No. 1, Preamble (trans. Diego Werneck Arguelhes) in ibid., 56 n100. 129 Norman J. Nadorff, “Habeas Corpus and the Protection of Political and Civil Rights in Brazil: 1964-1978,” Lawyer of the Americas 14 (1982): 302–6. 145

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Even as late as April 1965 the court demonstrated its reactive character by ruling that the jailing of former Pernambuco Governor Arraes had been ‘flagrantly excessive’ on the part of the military government and that military courts were not competent to try a governor. A habeas corpus writ was issued. Military hard liners were furious, but they complied with the writ and released Arraes.130

In part this appears to have been attributable to the regime’s ideological commitment to the rule of law, albeit a very thin conception of the term. It also seems to have been motivated by a desire to avoid international censure and retain US support.131 At the same time, the STF was not particularly active in opposing the regime: the questionable legality of the first Institutional Act was never challenged. Although the STF and the judiciary were effectively untouched by Institutional Act No.1, the same cannot be said of Institutional Act No. 2. This Act reflected the influence of the more hardline elements within the military. Although it did not accede to the pressure to remove certain STF Ministers considered too leftist or otherwise unreliable,132 the Act diluted their influence by increasing the STF complement from eleven to sixteen. It also sought to side-step the Court by purporting to remove jurisdiction over matters relating to national security to the military courts.133 The same Act also abolished all but two political parties—the party of the Government, the Aliança Renovadora Nacional (National Alliance for Renewal) and the military-sanctioned opposition party, the Movimento Democrático Brasileiro (Brazilian Democratic Movement)—and gave the President the power to issue decree-laws in matters of national security.134

130 Joel G. Verner, “The Independence of Supreme Courts in Latin America: A Review of the Literature,” Journal of Latin American Studies 16, no. 2 (1984): 489, https://doi.org/10/bcc68n; see also, Nadorff, “Habeas Corpus,” 327–33; Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America: A Case Book (University of California Press, 1975), 205–18. 131 Mark J. Osiel, “Dialogue with Dictators: Judicial Resistance in Argentina and Brazil,” Law & Social Inquiry 20, no. 2 (1995): 527–32, https://doi.org/10/bmfpff. 132 Members of the STF are referred to as Ministros (Ministers) rather than Juizes (Judges) or Desembargadors (Appellate Court Judges). 133 Carl, “Erosion of Constitutional Rights of Political Offenders in Brazil,” 183; Arguelhes, “Old Courts, New Beginnings,” 58–60. 134 Boris Fausto, A Concise History of Brazil, 2nd ed. (Cambridge University Press, 2014), 278. 146

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Although the STF appears to have been somewhat cowed, it did not fully acquiesce: the Court—both the old Ministers and the new appointees—continued to rule against the military regime in areas of civil and political rights based on legalist readings of the constitution and legislation.135 The most serious attack on the judiciary came via Institutional Act No. 5 September 1968, which marked the beginning of the most repressive period of the dictatorship. The Act, inter alia, suspended the right of habeas corpus and resulted in the removal of the three “unreliable” STF Ministers (Hermes Lima, Evandro Lins e Silva, and Victor Nunes Leal) as well as the resignation in protest of two more (Gonçalves de Oliveira and Lafayette de Andrada). Rather than replacing the ministers, the regime returned the Court to its original size. 136 Even this, however, did not fully subjugate the judiciary or the legal community. Moreover, throughout the dictatorship, there were efforts to retain the institutional structure and at least some of the credibility of the judiciary as a means of legitimating the regime and maintaining a reasonable degree of stability in the areas of property and contract law in order to facilitate investment and economic growth. The OAB and the somewhat more elitist Instituto dos Advogados Brasileiros (Institute of Brazilian Lawyers or IAB) had initially sought to contribute to the constitutional project, perhaps viewing as a necessary evil or hoping to limit the excesses of the regime. With the promulgation of Institutional Act No. 5, “the OAB-IAB became more resolute in criticizing government by force and defending human rights and the rule of law.”137 The OAB revived its conferences, discussing themes of liberty, human rights and social justice at the same time as debating matters related to their ongoing control of legal representation and advice. Several broad strategies were employed in pursuit of this goal. Legal positivism had always been the dominant form of legal thought in the Brazilian legal community; however, a slight shift in application facilitated the creation of a semi-compliant legal

135 Carl, “Erosion of Constitutional Rights of Political Offenders in Brazil,” 183–85; Arguelhes, “Old Courts, New Beginnings,” 61. 136 Bonelli, “Lawyers’ Associations,” 1064; Anthony W. Pereira, “Of Judges and Generals: Security Courts under Authoritarian Regimes in Argentina, Brazil, and Chile,” in Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa (Cambridge University Press, 2008), 27; Arguelhes, “Old Courts, New Beginnings,” 61–62. 137 Bonelli, “Lawyers’ Associations,” 1048, 1059–64. 147

Rosevear — Judicial Interpretation of Social Rights profession. From roughly 1827 until the beginning of military rule in 1964, there was a three-level hierarchy of legal sources, broadly in line with the civil law ideal-type.138 The most important was legal doctrine, scholarly treatises that were often not of Brazilian origin. For example, Italian scholarship was a principal source for matters of civil procedure, while the work of the US Founding Fathers was highly regarded with respect to matters of constitutional law. The second most important source of authority was black letter law—the constitution, statutes, regulations, and similar. At the bottom of the hierarchy were decisions made by higher courts.139 The order of importance changed during the dictatorship. Judicial decisions— precedent—remained the least important, but black letter law replaced doctrine as the most important source of legal authority. The reason for this change, it is suggested, is that at the time a distorted or antropofágico (cannibalized) interpretation of the work of Hans Kelsen became dominant. The assertion was that there was no room for the interpretation of the content of the law by the courts because the content was given by the legislative power, that in turn was beholden to the executive power—the military. Although the Constitution had the appearance and form of a liberal democracy, for example in its provision for the formal separation of powers, the content of the law was authoritarian because of de facto executive control. For example, the executive could send a draft bill to Congress requesting a new law and Congress would have sixty days to respond—an unrealistic time frame for a national legislative body—and a failure to respond in time was a deemed assent. Thus, the executive got what it wanted, but the formal separation of powers was maintained.140

138 See e.g., Frederick H. Lawson, “The Sources of French Law,” in Selected Essays (Elsevier North-Holland, 1977); Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press, 1986). 139 Joaquim Falcão, November 10, 2014. 140 Ibid.; Arguelhes, “Old Courts, New Beginnings,” 56, n100. Institutional Act No. 1, for example, permitted the president to submit constitutional amendments to Congress which had to be voted upon within thirty days and required only simple majority to pass, rather than the two-thirds required in the 1946 Constitution. Thomas E. Skidmore, The Politics of Military Rule in Brazil, 1964-85 (Oxford University Press, 1988), 20. Under various other of the Institutional Acts, the President was accorded the power to invalidated the mandates of elected officials, suspend congress, and suspend the writ of habeas corpus in cases of “national security.” Karst and Rosenn (n 109) 205–18. 148

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This “antiseptic” understanding of law at least notionally precluded the examination of social and economic consequences. Law was to be considered distinct from politics and sociology. Rather, it was purely dogmatic. This created a conflict for lawyers between their sense of professionalism and duty on the one hand and their notions of justice and the good society on the other. According to Joaquim Falcão, “until six o’clock, in the office, in the law school, in the court, [legal professionals] would work with the Kelsenian view that law is just the form of law;” statutes and then doctrine were dominant, there was no room for judicial precedents. “From six o’clock until twelve in the evening, you go to the streets and say ‘No! We are against this kind of legal thought, legal doctrine, legal statutes.’” You could not be against the laws in the courts, because you would lose; but this did not mean that lawyers agreed with the laws or thought they were just.141 For example, lawyers tasked with the defense of political prisoners avoided impassioned arguments about the political views of the prisoners. Rather, defenses tended to be based on the repudiation of the “subversive” ideas that had resulted in the charge, a lack of intent (e.g. unwitting assistance of subversives), or of arguing that the national security laws did not make the specified acts illegal.142 These examples highlight a key feature of Brazilian legal- professional culture: the ability to subsume one’s personal beliefs about the normative desirability of the legal structure as a whole in order to apply one’s professional-technical abilities to seek just outcomes in particular instances. To be clear, the legal profession was actively engaged in the construction of the authoritarian legal regime that supported the military. However, at least some of this complicity appears to have been strategic, or at least pragmatic, and the actions of the few dozen defense lawyers who practiced in the military courts and the activities of the OAB and other professional organizations do appear to have had a substantial impact in bringing about an end to military rule.143 Thus, in addition to willingness of courts to selectively

141 Falcão, interview. 142 Pereira, Political (In)Justice, 141–43; cf. Fausto, A Concise History of Brazil, 274. 143 Pereira, for example, argues that: the actions of the Bar Association, the involvement of lawyers in the justice and peace commissions that lobbied for an amnesty for political prisoners and protested human rights abuses in the 1970s, and the celebrity of a small group of lawyers who had defended

149

Rosevear — Judicial Interpretation of Social Rights rule against the government, the OAB’s influence forced the military to exercise caution with respect to the contravention of judicial decisions. In combination this created more leeway—or, “political space”—for the courts than one would expect based on the experiences of other Latin American judiciaries during military rule. The result was a judiciary viewed with a combination of skepticism and cynicism but, at least among certain portions of the population, also somewhat trusted.144 Of particular note during this era is the distinction made between the technical application of the law and the normative goals of legal professionals. This highlights a key element of the legal profession and of the idea of a professional community more generally, one that is central to the explanation of social rights interpretation: the separation of the “is” and “ought” of the law. Although the legal community was, in general, opposed to the content of the authoritarian regime’s law, their understanding of their professional obligations and of the nature of law precluded them from subjugating “the law” to their normative concerns. The existence of these concerns is evident in the use of the law as it was by individual lawyers and judges, as well as many members of the STF, in order to stave off certain of the more egregious acts of the military regime which could be objected to on formal grounds. In combination with the advocacy of structural change by the OAB and other groups by more traditionally “political” means (e.g. public statements, conferences focusing on the need for and possible content of reforms), these actions demonstrate a dissatisfaction with the content of the law but an inability to reconcile their dissatisfaction with its specific manifestation under military rule with their overarching understanding of law as an apolitical endeavor. By the end of the authoritarian period, despite the participation of the legal profession in the military regime’s repression, there was little blame placed on the judiciary or the legal community in general. By way of explanation, Pereira suggests that:

political prisoners helped to create a public image of the Brazilian legal establishment as anti-authoritarian “Explaining Judicial Reform Outcomes in New Democracies: The Importance of Authoritarian Legalism in Argentina, Brazil, and Chile,” Human Rights Review 4, no. 3 (2003): 7, https://doi.org/10/fch532. 144 Prillaman, Democratic Decay, 77–78. 150

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the actions of the Bar Association, the involvement of lawyers in the justice and peace commissions that lobbied for an amnesty for political prisoners and protested human rights abuses in the 1970s, and the celebrity of a small group of lawyers who had defended political prisoners helped to create a public image of the Brazilian legal establishment as anti-authoritarian.145

It is with this image—if not entirely positive, at least less negative than that of the other branches of government—that the judiciary and the legal profession were able to craft important roles for themselves under the new constitution—as advocates for and defenders of rights and democracy.

4.4.3 Judicial Culture As discussed above, the 1988 Constitution accorded the judiciary—and the legal community more generally—substantial power and responsibility relating to the defense of rights and the protection of the constitution. This has resulted in a judiciary that wields substantially more discretionary power and that became increasingly seen as a means of defending the guarantees of the “People’s Constitution.” Moreover, in order to fulfill their role, the Brazilian judiciary was accorded—and has militantly defended—an extremely high degree of both individual and institutional independence.146 The question, then, what shaped Brazilian judges’ use of that discretion in the interpretation of the social rights guarantees? Although mitigated by the educational reforms in the 1970s, Brazilian law schools have traditionally been the domain of the elite, and as much a place for grooming leaders and nation-builders as they were for educating lawyers.147 As late as 1982, for example, the principal motivation for two-thirds of Brazilian law students for enrolling in law school was the training it would provide for non-legal careers, for another tenth it was the prestige

145 Pereira, “Judicial Reform Outcomes,” 7. 146 Marcus Faro de Castro, “The Courts, Law, and Democracy in Brazil,” International Social Science Journal 49, no. 152 (June 1, 1997): 247, https://doi.org/10/br2vmv; Megan J. Ballard, “The Clash between Local Courts and Global Economics: The Politics of Judicial Reform in Brazil,” Berkeley Journal of International Law 17 (1999): 258–62; Prillaman, Democratic Decay, 75–76, 163; for a discussion of the distinction between individual and institutional judicial independence, see John Ferejohn, “Independent Judges, Dependent Judiciary: Explaining Judicial Independence,” Southern California Law Review 72 (1998): 353–84. 147 Filho, “Brazilian Legal Education,” 756. 151

Rosevear — Judicial Interpretation of Social Rights attached to holding a law degree.148 The professoriate have traditionally been,149 and with notable exceptions continue to be,150 practicing lawyers for whom “[t]eaching is more like a hobby, with the main benefit being the prestige it offers.”151 Consequently, there is little emphasis placed on original research and a substantial resistance change, both conceptually and pedagogically.152 The Brazilian legal profession tends to conceive of itself as an elite, close-knit independent community of professionals.153 In the eyes of it critics, however, it is formalist, positivist, and corporatist.154 More broadly, the Brazilian public has historically had little confidence in the integrity of the Brazilian judiciary or the notion of fundamental rights.155 This, however, is slowly changing with the emergence of a younger, more representative

148 Falcão, “Lawyers in Brazil,” 408. 149 H. Claude Horack, “Legal Education in the Latin-American Republics,” Journal of Legal Education 2 (1950): 288. 150 Filho, “Brazilian Legal Education,” 763. 151 Junquiera, for example, has observed that We began the 1970s trying to increase the number of law programs. We end[ed] the 1990s afraid of the uncontrolled proliferation of law schools and worried about the quality of law programs and future legal professionals. The on-site inspections of all law schools attest[ed] to the low quality of the programs, which have large classes, little infrastructure, and professors without credentials.” “Brazil: The Road to Conflict Bound for Total Justice,” in Legal Culture in the Age of Globalization: Latin America and Latin Europe, ed. Lawrence M. Friedman and Rogelio Pérez-Perdomo (Stanford University Press, 2003), 89. 152 Filho, for example, notes that: …a curriculum modification does not necessarily change old teaching habits and little has been said (or done) about it. Pedagogical and curricular innovations are foreign to Brazilian law school classrooms… Most of all, as the majority of Brazilian law teachers also practice another legal profession, the classroom becomes an extension of their professional offices where they recite and reproduce their most up‐to‐date everyday judicial experience. This teaching style has been under scrutiny as the legitimacy of teachers has been called into question in the wake of the higher education expansion and the implementation of an evaluative public system. “Brazilian Legal Education,” 762. 153 See, e.g. Bruno Meyerhof Salama, “The Legal Profession in Brazil: Competition and Opportunities,” in Brazilian Legal Profession in the Age of Globalization (São Paulo, Brazil, 2012). 154 Hoffman and Bentes, “Accountability for SERs,” 105. 155 Falcão, “Lawyers in Brazil,” 433. 152

Rosevear — Judicial Interpretation of Social Rights generation of legal professionals.156 In spite of this, a key aspect of the Brazilian judiciary’s—and the legal profession’s more generally—self-identity is that of elite promoters of social good. The judiciary is a professional one, selected—as most Brazilian public position are—via concurso publico (public examination). It differs slightly from the civil law ideal insofar as the judiciary is not quite direct entry. Rather, three years of experience in a legal profession—broadly defined—is required after receiving a law degree. The law degree itself is a first degree and generally requires five years to complete. This suggests that youngest a judge could begin their judicial career is about 25. In practice, however, the average age for entry is likely closer to 30.157 For the ordinary courts, examinations are specific to the jurisdiction and are both set and administered by the judiciary itself. For example, examinations for entry into the São Paulo State judiciary are set and administered by the São Paulo State Supreme Court. The contents of the examinations have traditionally focused heavily on substantive knowledge of the law in force as opposed theoretical or conceptual knowledge. This approach has been criticized as resulting in a particular, narrow range of successful candidates who are familiar with doctrine but lack professional and administrative experience in the actual administration of justice.158 In the State of São Paulo, for example, Brinks notes that critics of the system of judicial selection argue that the selection process privileges the memorization of existing doctrine at the expense of innovation, a preference that is seen to inhibit the development of socially conscious law.159

156 Hoffman and Bentes, “Accountability for SERs,” 105. 157 As of the mid-1990s, the median age of entry into the judiciary was 33 and trends suggested an ongoing decline. Luiz Werneck Vianna et al., Corpo e Alma da Magistratura Brasileira, 3rd ed. (Revan, 1997), 155– 68. In 2005, 5.4% of judges were under 30.Maria Tereza Sadek, “Magistrados: Uma Imagem em Movimento,” in Magistrados: Uma Imagem em Movimento, ed. Maria Tereza Sadek (Associação dos Magistrados Brasileiros, FGV Direito Rio, 2006), 17. 158 Prillaman, Democratic Decay, 77; Daniel M. Brinks, “Legal Tolls and the Rule of Law: The Judicial Response to Police Killings in South America” (PhD, Notre Dame, 2004), 216–20. 159 Brinks, “Legal Tolls and the Rule of Law: The Judicial Response to Police Killings in South America,” 218; see also, Linn A. Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America (Pennsylvania State University Press, 2007), 104. 153

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These examinations tend to be extremely difficult, a factor that is largely responsible for the high percentage of vacancies found in the Brazilian judiciary. In 2013, for example, 29% of state and 31% of federal judgeships were vacant.160 By way of comparison, there were more vacant judgeships in Brazil (5,252) than there were judges in Spain (5,155).161 The reason for this vacancy rate, however, is not attributable to disinterest or a low caliber of applicant. In marked contrast to the past, when applicants were “not generally in the top levels of their classes” and the judiciary was rarely a first-choice career,162 judicial recruitment has become increasingly competitive since 1988. In the past, the primary reasons cited for the difficulty in attracting top legal minds to the judiciary were low pay, relatively low status, and the requirement of beginning one’s career in the less developed areas of the interior where one was isolated from one’s peers. One might also add the likelihood of low job satisfaction as a result of the highly formal- technical role of the judge and their limited engagement in substantive decision-making. Since 1988, however, much has changed. Judges are still required to begin their careers in the more rural, peripheral parts of their respective jurisdictions, but infrastructural and technological advances coupled with an increased level of state penetration and service provision has mitigated many of the negative aspects. More importantly, however, compensation has increased exponentially and a number of factors relating to status and job satisfaction have improved. Maximum judicial salaries are regulated by both law and the constitution—indeed, no judge may be paid more than the Ministers of the STF.163 These salaries tend to be quite high relative to the median wage and, in practice, judges’ total compensation may be substantially higher than the legally defined salary via a combination of “fringe benefits”— such as cars and drivers, educational stipends for their children to attend private schools,

160 Departamento de Pesquisas Judiciárias, “Justiça em Números 2014” (Brasília: Conselho Nacional de Justiça (Brazil), 2014); own work. 161 The European Commission for the Efficiency of Justice, “European Judicial Systems 2014 (2012 Data): Efficiency and Quality of Justice” (Council of Europe, 2014), 156. 162 Scheman, “Brazil’s Career Judiciary”; L. Ronald Scheman, “The Brazilian Law Student: Background, Habits, Attitudes,” Journal of Inter-American Studies 5, no. 3 (1963): 333–56, https://doi.org/10/btvgsz; Pérez-Perdomo and Friedman, “Latin Legal Cultures.” 163 1988 Constitution, Article 37(XI). 154

Rosevear — Judicial Interpretation of Social Rights and apartments—and various other funds and reimbursements.164 The scope and scale of these additional benefits is not entirely clear—although the CNJ has, for several years, been seeking to standardize income reporting across all Brazilian jurisdictions and publicize that information165—but a number of specific incidents of excess in both salary and abuse of power have drawn significant public attention and criticism both inside and outside Brazil.166 A perennial problem in the study of judicial decision-making and politics is the inability to “know” the mind of the judge. Very often several theories may predict the same observed outcome and judges are notoriously reticent to discuss how the sausage is made. In Brazil, at least three factors have combined to allow greater insight into the attitudes and opinions of judges than is often the case. First, although the volume of litigation and the “right to dissent” of Brazilian judges at all levels severely impairs any attempt to trace unified patterns of legal reasoning and conflict within judicial decision-making, it does make for a very large set of cases in which to identify patterns and change over time. Second, examination-based appointment, life-tenure and an extremely high level of independence means that Brazilian judges do not need to be nearly as concerned about the contentiousness of their statements in relation to censure, re-election, or retention.167 The

164 Falcão, interview; Santiso, “Economic Reform.” 165 Gregory Michener, Luiz Fernando Marrey Moncau, and Rafael Velasco, “The Brazilian State and Transparency: Evaluating Compliance with Freedom of Information” (FGV Direito-Rio; Open Society Foundation; Transparency Audit Network, 2015), http://www.transparencyaudit.net/node/16. 166 Simon Romero, “Brazil Seethes Over Public Officials’ ‘Super Salaries,’” The New York Times, February 10, 2013, sec. World / Americas, http://www.nytimes.com/2013/02/11/world/americas/brazil-seethes-over- public-officials-super-salaries.html; Mauricio Savarese, “You Can’t Say a Judge Is Not God in Brazil (According to Judges Themselves),” A Brazilian Operating in This Area (blog), November 13, 2014, https://abrazilianoperatinginthisarea.wordpress.com/2014/11/13/you-cant-say-a-judge-is-not-god-in-brazil- according-to-judges-themselves/. 167 This applies even at the apex of the Judiciary. In a 1996 interview, STF Minister Marco Aurelio famously articulated a somewhat surprising interpretive approach to difficult cases Always when I face a controversial case, I do not immediately look for the dogma of the law. I try to create within my human character, a more adequate solution. It is from this point that I turn to the juridical order to search for the indispensable support that makes the solution viable. Vianna et al., Corpo e Alma da Magistratura Brasileira, 279. While many observers of judicial behavior would argue this is, in fact, how most judges operate, it is still surprising for a sitting member of a nation’s apex court to endorse the approach. The point is that Brazilian judges have little to fear by way of reprisal for publicly stating their opinions and beliefs. 155

Rosevear — Judicial Interpretation of Social Rights third reason is the existence of more or less comprehensive legal-professional associations such as the OAB and the Associação dos Magistrados Brasileiros (Association of Brazilian Magistrates or AMB) that are supportive of large-scale data collection and analysis. In 1995, for example, the AMB was vital to the conduct of a large-N survey of active and retired Brazilian judges by providing the data and contact information on its membership and personally delivering surveys to key respondents such as members of the five Superior Courts.168 The AMB itself undertook a similar survey, coordinated by political scientist Maria Tereza Sadek a decade later.169 In both cases, questionnaires were delivered to all identified members of the population (active and retired judges) with response rates of 30.6% in 1995 and 28.9% in 2005, resulting in sample sizes of 3,927 and 3,258, respectively.170 In 1995, the two issues identified by judges as the highest priority for the country were the improvement of the population’s level of education (98.1% “high priority”) and eradicating poverty and reducing social inequality (92.1% “high priority”). Decentralizing the activities of the state and the reduction of bureaucracy was the third most commonly identified high priority at 56.3%.171 When asked about the desirability and viability specific social policies, 96% of judges identified “Universal and free access to healthcare services” as desirable and 57.2% of them believed the policy to be viable, while 88.5% of them believed “Free and universal basic education” to be a policy that was both desirable and viable. Popular housing programs were thought to desirable and viable by 84.2%, and support for various other progressive social programs was also quite high, albeit with substantially greater percentages of judges believing them to be infeasible. It is also notable that the ideology of contributory pensions remained strong in the judiciary—68.4%

168 Ibid., 325ff. 169 Sadek, “Magistrados: Uma Imagem em Movimento.” 170 The interpretation of response rates is heavily context-dependent, however, based on the diagnostic data presented in the respective works there does not appear to be any unreasonable bias resulting from the data collection process. 171 Vianna et al., Corpo e Alma da Magistratura Brasileira, 243. 156

Rosevear — Judicial Interpretation of Social Rights believed that “Retirement payments for all independently of contribution to retirement funds” was not only unviable, but also undesirable.172 In terms of operationalizing the country’s priorities, the data also indicates a shift in support with respect to the role of the state by date of entry into the judiciary, as shown in Figure 8. Specifically, of the judges who successfully completed their examinations and entered the judiciary between 1975 and 1984 (the last ten years of the military dictatorship), 49.4% were unfavorably inclined toward an activist state and 21.2% were in favor of minimal state intervention. This left 23.4% of judges tending to support state intervention and only 6.0% in favor of maximal state intervention. The next generation of judges—those who took office between 1985 and 1994—were much more favorably to state intervention: 10.3% favored maximum intervention, 31.2% tended to support intervention, 45.2% remained generally opposed, but only 13.4% advocated a minimalist state. This pattern of increased support was also on the rise—13.5% of 1993 and 1994 entrants supported maximum state intervention and 34.2% tended to support state intervention. These changing attitudes mark an important shift in judicial attitudes in Brazil.173

Figure 8. Judicial Attitudes Toward State Intervention by Year of Entry into the Magistrature174

1974-1984 1985-1994 1975-76 1993-94 Maximum State Intervention 6.0% 10.3% 7.9% 27.8% Tend to favor state intervention 23.4% 31.2% 21.9% 38.0% Tend to oppose state intervention 49.4% 45.2% 50.0% 20.0% Minimal state intervention 21.2% 13.4% 20.2% 14.2% N 868 1989 114 450

Nevertheless, judges still consistently saw their primary role as “loyal interpreters of the law.” When asked to select which of the following four statements best characterized the role of the judge, 4.1% selected “The judiciary are an elite that exerts a pedagogical function for the elevation of citizenship,” 7.7% indicated “magistrates are the guardians of the

172 Ibid., 247. 173 Ibid., 252–54. 174 Ibid., 253–54. 157

Rosevear — Judicial Interpretation of Social Rights freedom,” and 26.6% opted for “The judiciary plays an active role in reducing social inequalities.” But, 61.7% indicated that the most appropriate descriptor was that “magistrates are loyal interpreters of law.”175 The idea of a generational difference between pre- and post-military judges is also finds support in the work of economist Augusto Pinheiro. In a survey of 741 judges from 11 states conducted in 2000, the following question was asked,

Frequently, in the application of the law, there is a conflict between contracts, which have to be respected, and the interests of less privileged social segments, that need care. Considering the conflict between those two objectives, two positions have been defended.

A: The contracts must always be respected, independently of their social repercussions.

B: The judge has a social role to play, and the pursuit of social justice justifies violating contracts.

With which of the two positions do you agree with more?176

Overall, 542 (78.8% of those answering) agreed more with position B—that the judge has a social role to play and this may, in certain circumstances, involve violating an otherwise valid contract. When the responses are grouped by those under forty years of age—the overwhelming majority of whom would likely have been appointed post-1988—and those forty and over—most of whom would have been appointed during the authoritarian era— there is a clear difference in the activist stance of the judges. More than a quarter (25.6%) of forty and older judges identified more with option A—respect for contracts regardless of social repercussions—while only a sixth (16.3%) of their younger colleagues felt this way. In 2005, the AMB sponsored another survey of judges. One particularly relevant question dealt with key factors used by judges in their decision-making. Specifically,

175 Ibid., 260. 176 Armando Castelar Pinheiro, “Judges’ View on the Judiciary and Economics” (International Society for New Institutional Economics Annual Meeting, Boulder, 2006), 19; see, also Armando Castelar Pinheiro, “Judiciário, Reforma e Economia: A Visão dos Magistrados,” www.ipea.gov.br, July 2003, http://repositorio.ipea.gov.br/handle/11058/2900. 158

Rosevear — Judicial Interpretation of Social Rights judges were asked if each of the following should play an important role in judicial decision-making: legal parameters, economic consequences, and social consequences.177 Figure 9 presents the proportion of judges answering in the affirmative for each of the three considerations, disaggregated by length of service and by active/retired status of the responding judges. Once again demonstrating a strong, a least rhetorical, commitment to the idea of judges as humble appliers of law, as shown in Figure 9, in none of the subgroups of judges did less than 80% identify legal parameters as a key factor in their decision-making. Taking the active versus retired distinction as a proxy of generational difference, the increasing importance of both social and economic consequences to judges’ decision-making ideals is striking. All parties concerned agree that the legal parameters of the case are of primary importance, but the older generation of judges is fifteen percentage points less likely to identify economic consequences and nearly twenty percentage points more likely to consider social consequences of primary importance to judging.

Figure 9. Which of the Following Should Play a Primary Role in Judicial Decision-Making?178

Years as a Judge Active Retired Judges Judges ≤ 5 6-10 11-20 ≥21 Legal Parameters 88.6% 89.0% 86.1% 85.0% 87.1% 84.9% Attention to Economic Consequences 48.1% 42.0% 37.4% 27.2% 40.5% 25.4% Attention to Social Consequences 80.2% 85.9% 81.9% 64.9% 83.8% 64.1%

When the responses are broken down according to years of service as a judge, a more nuanced pattern is present. Moreover, when the time of appointment to the bench is considered, it is suggestive of an important pattern of change in the judiciary. Judges with twenty-one or more years of service in 2005 were almost certainly judges appointed during

177 The literal translation provided is “It was asked to the interviewees if the predominant factor should be legal parameters, attention to economic consequences and attention to social consequence.” However, as the cumulative percentages are substantially greater than 100% in all cases, the substantive meaning was taken to be ‘which of the following factors should play a primary important role in your decision-making’. 178 Sadek, “Magistrados: Uma Imagem em Movimento,” 47–49. 159

Rosevear — Judicial Interpretation of Social Rights the military regime, those with 11-20 years between 1985 and 1994—the years immediately before and after democratization. The 6-10-year group would have been appointed in the late 1990s, and those with less than five years during the early 2000s. The responses of the most experienced judges fit well with the concept of a judge appointed during the military era being a judge who emphasized the formalist-positivist aspects of their role as a judge. There are structural, institutional and pragmatic reasons for this predilection. In institutional terms, a judiciary—or any institution for that matter— tasked with replenishing its own ranks is almost certainly a conservative one and admission standards and training will tend to reproduce orthodoxy. In the case of the Brazilian judiciary of that era, orthodoxy was strongly positivist, emphasizing a dogmatic view of the law and a “hands off” approach to political matters—judges interpreted the law, others (in this case the military) made it. In structural terms, in order to be appointed a judge during that era one had to succeed in the competitive selection process and then be selected for appointment by the state governor from a list of three. Although this certainly limited the ability of the executive to stack courts, it did permit them to choose candidates they believed would be, if not compliant, at least sufficiently formal as to not interfere too deeply in the actions of the executive. Finally, although Brazil did not experience widespread judicial purges, during the early years of the military regime approximately 50 judges— including three STF Ministers—were more or less explicitly removed from office.179 The career and pension-minded judge, then, kept their head down and focused on legal doctrine. This attitude changes substantially during the transition era. Judges retained their belief in the importance of the legal parameters but began to assign a greater importance to the economic, and even more so, the social consequences of their decisions. This is evident in the judges selected during the latter half of the 1980s and first half of the 1990s and even more strongly in those selected during the latter half of the 1990s. There is, however, a notable change in the judges selected during the early 2000s—they still assign a higher level of importance to social consequences than their military-era counterparts, but less so

179 Fausto indicates that the in 1964, a total of 49 judges were removed from office, along with 50 members the national legislature along with a total of approximately 1400 civil service and 1200 military removals. A Concise History of Brazil, 274; cf. Pereira, “Of Judges and Generals,” 27. 160

Rosevear — Judicial Interpretation of Social Rights than their immediate predecessors. The importance they attach to economic consequences, however, has continued to increase. Viewed as a whole this pattern of responses suggests a judiciary that increasingly sought to use their positions to further the social good but which, over time, became increasingly concerned about the economic and distributive consequences of doing so.

4.4.4 Institutional Considerations The Brazilian court system is a large, complex set of interrelated institutions, actors and actions that handles an extremely high number of cases. In 2018, there were 18,141 judges in the federal, state, and labor courts. Over the course of the year, 28.1 million new cases were filed and 31.9 million were resolved resulting in a balance of 78.7 million ongoing cases. Without accounting for cases heard by multi-judge panels, this indicates an average caseload of over 4,300 cases per judge. In 2018, the average judge dealt with 1,877 cases—approximately 8 cases per business day.180 The scale of the judicial system coupled with the autonomy of state courts and the absence of a strong system of binding precedent have, thus far, frustrated attempts at the collection of systematic data on case volume, claim types, arguments and outcomes of social rights claims in Brazil.181 In practical terms, such a study would require the analysis of court records from 28 different jurisdictions each with their own systems for classification and storage which may or may not be strictly followed and that may or may not be electronic for the relevant period of time. Indeed, the lack of standardization and resultant inability to aggregate or compare data coupled with limited knowledge of data collection practices on the part of those managing the information has been identified as a key barrier to developing and accurate picture of the operation of the Brazilian judiciary.182 Although these limitations are being actively addressed by the Conselho Nacional de

180 Departamento de Pesquisas Judiciárias, “Justiça em Números 2019: Sumário Executivo” (Brasília: Conselho Nacional de Justiça (Brazil), 2019), 4–7. 181 There is no functional equivalent to LexisNexis or Quicklaw in Brazil. Nadia de Araujo, “The Status of Brazilian Legal Education,” Journal of Legal Education 51 (2001): 328. 182 Linn A. Hammergren and Carlos Gregorio, “Making Justice Count: Measuring and Improving Judicial Performance in Brazil” (World Bank Poverty Reduction and Economic Management Unit, Latin America and the Caribbean Region, December 30, 2004), chap. 2. 161

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Justiça (National Judicial Council or CNJ), this is an ongoing endeavor and the primary efforts are forward-looking, not retrospective. However, even if all the relevant cases could be identified and the necessary documents located, the quantity of analysis required would be staggering. In the State of Rio Grande do Sul in the south of Brazil, for example, there were 17,025 right to health claims in 2009.183 In the same year there were 332 right to health claims in the city of Belo Horizonte and 960 in the Federal District, 5,536 appeals reached the STJ, and there were 694 claims for drugs alone in the State of Paraná.184 In combination, these factors that the analysis and characterization of case law below is necessarily based on the analysis of a secondary sources—primarily empirically-oriented case studies—supplemented by reference to specific judgments at the appellate and STF levels. The potential problems of accountability associated with the responsibility for the right to health—and social rights more generally—being shared between all levels of government—federal, state, and municipal—are negated by the general acceptance and application of the principle of solidariedade (solidarity) by Brazilian judges. This principle is analogous to the common law concept of joint and several liability.185 A claimant is able to seek full realization of the benefits to which they are legally entitled from any or all of the parties tasked with ensuring their protection.186 Thus, a party may name a municipality, state, the Union or some combination of the three when filing a claim and be entitled to full

183 João Biehl et al., “Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil,” Health and Human Rights 14 (2012): 40. 184 Telma Maria Gonçalves Menicucci and José Angelo Machado, “Judicialization of Health Policy in the Definition of Access to Public Goods: Individual Rights versus Collective Rights,” trans. Leandro Moura, Brazilian Political Science Review 4, no. 1 (2011): 45–46; Debora Diniz et al., “A Judicialização da Saúde no Distrito Federal, Brasil,” Ciência & Saúde Coletiva 19, no. 2 (2014): 593, https://doi.org/10/ghdr93; Biehl et al., “Between the Court and the Clinic,” 37; José Gilberto Pereira and Vera Lúcia Edais Pepe, “Acesso a Medicamentos por via Judicial no Paraná: Aplicação de um Modelo Metodológico para Análise e Monitoramento das Demandas Judiciais,” Revista de Direito Sanitario 15, no. 2 (2014): 35, https://doi.org/10/ghdsct. 185 The core of this concept is that where multiple parties have both contributed to the harm (1) the direct causal connection in the form of a “but for” the actions of a particular party need not be met, and (2) each party may independently be liable for the entirety of the resulting damages. See, e.g. Fairchild v. Glenhaven Funeral Services Ltd., [2002] UKHL 22 (2002). 186 Danielle Borges and Maria Alicia Dominguez Ugá, “Conflitos e Impasses da Judicialização na Obtenção de Medicamentos: As Decisões de 1a Instância nas Ações Individuais Contra o Estado do Rio de Janeiro, Brasil, em 2005,” Cadernos de Saúde Pública 26, no. 1 (2010): 61–62, https://doi.org/10/drbk39. 162

Rosevear — Judicial Interpretation of Social Rights realization if successful. This means that there are approximately 5,500 potential defendants—the number of municipalities plus the states, Federal District and the Union— in social rights litigation. It is also notable that plaintiffs are not precluded from pursuing multiple claims against different levels of government simultaneously.187 This approach, while addressing concerns about the accountability of government writ large to citizens, can lead to issues of accountability and coordination problems between levels of government. For example, with respect to the delivery of medications, pharmaceuticals and the responsibility for their purchase and delivery are divided into three categories by the SUS. The federal government purchases high cost, “exceptional medicines” such as those for the treatment of Parkinson’s disease, Alzheimer’s disease, and Hepatitis A and B and is responsible for funding strategic programs such as the provision of antiretrovirals. The states handle the distribution of “exceptional medicines” and the purchase and distribution of “special medicines.” Municipalities are tasked with the provision of “essential medicines” relating to basic healthcare, including mental health.188 The courts, however, do not appear to take this under consideration when adjudicating cases.189 In turn, a municipality can conceivably be required to obtain and pay for extremely high cost treatments in circumstances where they are outside of their areas of expertise and unable to benefit from economies of scale associated with purchasing in bulk.

4.5 Social Rights and the Brazilian Judiciary

4.5.1 An Old (Constitutional) Court Although the 1988 Constitution is a transformative constitution that included numerous social guarantees and mechanisms for their defense, the judiciary tasked with

187 Daniel Wang, “Courts as Healthcare Policy-Makers: The Problem, the Responses to the Problem and Problems in the Responses,” Direito GV Research Paper Series (São Paulo, Brazil: Direito GV, August 2, 2013), 5. 188 Biehl et al., “Between the Court and the Clinic,” 37; Mariana Mota Prado, “Provision of Health Care Services and the Right to Health in Brazil: The Long, Winding, and Uncertain Road to Equality,” in The Right to Health at the Public/Private Divide: A Global Comparative Study, ed. Colleen M. Flood and Aeyal Gross (Cambridge University Press, 2014), 334–35. 189 Borges and Ugá, “Conflitos e Impasses da Judicialização,” 62. 163

Rosevear — Judicial Interpretation of Social Rights interpreting and applying it was not new. The judges initially tasked with its interpretation were the same ones who had been appointed and presided over the courts during the dictatorship. This included the apex court for all constitutional matters—the STF—which had vehemently lobbied against its replacement by a newly constituted constitutional court. This approach was a direct contrast to similarly situated countries going through processes of constitutional change during the same time period. In Colombia, for instance, a new constitutional court with a specific constitutional mandate and extensive control over its docket was created by the 1991 constitution.190 In South Africa, too, a newly created court was tasked solely with constitutional matters and a mandate to defend the constitution.191 It is also worth noting that the caseloads of these latter courts are orders of magnitude smaller than their Brazilian counterpart,192 allowing—all else being equal—each case to receive substantially more attention and consideration. Of the eleven ministers sitting on the Court when the 1988 Constitution came into effect,193 the unexpected president—José Sarney—had appointed two, and the remaining nine had been appointed during the military regime. Although the military regime was careful not to appoint partisan hacks to the STF throughout its tenure, it did appoint judges with a more formalist, deferential approach to adjudication to the Court. Moreover, judicial norms of appropriateness and judicial pedagogy do not turn on a dime. For decades, judges had been trained to adopt a hands-off approach to “political matters” and promoted in part on the basis of their willingness to do so.194 This pedagogy would diminish—slowly—over time and be

190 Luz Estella Nagle, “Evolution of the Colombian Judiciary and the Constitutional Court,” Indiana International & Comparative Law Review 6 (1996 1995): 80–85, https://doi.org/10/ghdscm. 191 Internal Reference – Ch.5.X.X 192 In 2014, for example, the South African Constitutional Court decided 38 cases, the Colombian Constitutional issued 984 judgements, and the STF issued 92,722 monocratic decisions and 15,242 collective decisions which, if previous years are an accurate indication, would break down into about 13,000 cases decided by one or the other of the turmas (five member panels that hear the majority of the Court’s collegiate decisions), and in excess of 2000 judgments of the plenary court. “Estadísticas 1992-2015” (Corte Constitucional de Colombia, September 7, 2015); “Judgments Delivered 2014” (Constitutional Court of South Africa, December 19, 2014), http://www.constitutionalcourt.org.za/site/home.htm; “Movimento Processual a Partir de 1940,” Estatísticas do STF, Estatísticas do STF, 2015, http://www.stf.jus.br/portal/cms/verTexto.asp?servico=estatistica&pagina=movimentoProcessual. 193 Ministers Aldir Passarinho, Carlos Madeira, Célio Borja, Djaci Falcão, Francisco Rezek, Moreira Alves, Néri da Silveira, Octavio Gallotti, Oscar Corrêa, Rafael Mayer (President), and Sydney Sanches. 194 Dr. Juiz Ingo Wolfgang Sarlet, May 8, 2015. 164

Rosevear — Judicial Interpretation of Social Rights incorporated with a broader array of socio-legal considerations,195 but it did not occur immediately. All courts, newly constituted and otherwise, will be concerned with maintain a degree of continuity in terms of procedure and approach to adjudication, focusing on incremental and gradual changes. Where the court is composed of old guard, the speed and degree of change will almost surely be slower than what would occur in a newly constituted court specifically mandated to give effect to a transformative constitution.

4.5.2 Initial Reticence For several years after the promulgation of the 1988 Constitution the judiciary appeared unwilling to grant social rights claims. This initial reticence is attributable to two key factors: the conservatism of the senior, appellate judiciary and the professional norms of the judiciary as a whole that precluded transformative judgements in the area of social rights (or any other area of the law) without a coherent legal doctrine that could be used to justify granting such claims. As is the case for most countries in Latin America, Brazil has a long history of judicial review, although the willingness and ability of the judiciary to effectively deploy it has varied substantially in relation to the country’s political climate.196 However, to the extent that the judges rendered decisions contrary to the will of the executive, the theoretical basis for the authority to do so was premised on liberal-democratic notions of negative rights such as the prevention of unlawful detention; existing doctrine was either ambivalent toward the positive components of rights obligations or antithetical to their justiciability. In terms of legal reasoning, two principal arguments were initially successful against social rights claims with positive implications (e.g. the provision of medicines). The first argument was that these rights were programmatic rights; that they were not directly binding and required enabling legislation. If and when the legislature passed law or regulations to achieve these ends, the courts could legitimately decide on whether or not

195 Ibid. 196 Marchant, “The Brazilian Writ of Security,” 214ff.; Allan R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of the Amparo Proceeding (Cambridge University Press, 2008), 142–47. 165

Rosevear — Judicial Interpretation of Social Rights the State was meeting the obligations imposed by the legislature. Otherwise, the social rights were not directly applicable in the way that civil and political rights were. The second argument, also a classic constitutional objection, is based on the separation of powers doctrine. It is, so the argument goes, not the place of the courts to dictate policy to the executive and legislature. These two arguments, particularly the former, were generally held to be persuasive until the mid-1990s. As a result, there was little in the way of successful social rights litigation during this time.197 This approach began to change in the mid-1990s when decisions from the STF and the Rio Grande do Sul and São Paulo state supreme courts began to reject these arguments.198 A decision of particular note from the STF was Minister Celso de Mello’s preliminary judgement, subsequently adopted unanimously by the plenary Court, in PET 1246.199 Originating in the State of Santa Catarina, the Court’s decision required public funding for an experimental treatment administered in the U.S. for Duchenne muscular dystrophy, a degenerative disease affecting children. With respect to the justiciability of social rights, the key element of the decision is Minister de Mello’s assertion that:

between protecting the inviolability of the right to life, an inalienable Constitutional fundamental right, and a financial and secondary interest of the State, I believe—once this dilemma is established—ethical and legal reasons leave the judge with only one possible option: unwavering respect for life.200

Not all judges and not all courts were quick to follow, but a general rejection of the “separation of powers” and then the “programmatic rights” arguments seems to have become the consensus by about 1999.201

197 Sarlet, interview. 198 Ibid. 199 Min. Celso de Mello, PET 1246 MC/SC (Medida Cautelar na Petição), 13-02–1997 DJ ___ (STF (Monocrática) 1997); Min. Sepúlveda Pertence, PET 1246 MC/SC, 17-04–1998 DJ 64 (STF 1997). 200 Wang, “Courts as Healthcare Policy-Makers,” 22, citing; Min. Celso de Mello, PET 1246 MC/SC (Medida Cautelar na Petição), 13-02–1997 DJ. 201 In particular, the STJ maintained that the right to health was a programmatic right requiring legislation to attract justiciable obligations until 1999. Sarlet, interview. 166

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4.5.3 The Right to Health, ARVs and the Rise of Individual Claims The right to health was the first social right subject to sustained litigation and continues to be the most frequent source of social rights claims in Brazil.202 Early (successful) litigation focused on demanding public provision of medicines, predominantly antiretrovirals, to HIV/AIDS patients as a part of a loosely coordinated effort on the part of civil society organizations, health professionals and reform-minded elements in government ministries and agencies.203 Although collective claims have been advanced, they have proven substantially less likely to succeed and the vast majority of the litigation is brought by individuals and the resulting decisions have inter partes effect.204 This pattern of litigation is described by Ferraz as the “Brazilian Model” of health rights litigation, a model characterized by individual litigants advancing claims for the publicly-funded provision of curative medication or treatment with extremely high rates of success.205 Claimant’s legal arguments tend to be premised on some combination of the right to life (art. 5), the general guarantee of social rights (art. 6), the right to health (art.196), and the obligation of the state to provide a unified system of healthcare (art. 198) outlined in the Constitution along with SUS’s enabling legislation and, in the case of HIV/AIDS- related claims, legislation mandating the free provision of antiretroviral medication.206 The form of the claims tended to run as follows: the claimant has a particular medical condition

202 See e.g., Ana Márcia Messeder, Claudia Garcia Serpa Osorio-de-Castro, and Vera Lucia Luiza, “Mandados Judiciais Como Ferramenta Para Garantia Do Acesso a Medicamentos No Setor Público: A Experiência Do Estado Do Rio de Janeiro, Brasil,” Cadernos de Saúde Pública 21, no. 2 (2005): 529, https://doi.org/10/dhsdc6; Hoffman and Bentes, “Accountability for SERs,” 116–19. 203 Carlos André F. Passarelli and Veriano Terto Júnior, “Non-Governmental Organizations and Access to Anti-Retroviral Treatments in Brazil,” Divulgação Em Saúde Para Debate 27 (2003): 257; Nunn et al., “The Impacts of AIDS Movements on the Policy Responses to HIV/AIDS in Brazil and South Africa: A Comparative Analysis,” 1034–38; Vanessa Elias Oliveira and Lincoln Noronha Holds, “Judiciary-Executive Relations in Policy Making: The Case of Drug Distribution in the State of São Paulo,” Brazilian Political Science Review 5, no. 2 (2012): 16; Jessica A. J. Rich, “Grassroots Bureaucracy: Intergovernmental Relations and Popular Mobilization in Brazil’s AIDS Policy Sector,” Latin American Politics & Society 55, no. 2 (June 1, 2013): 3. 204 Hoffman and Bentes, “Accountability for SERs,” 116–19; Mariana Mota Prado, “The Debatable Role of Courts in Brazil’s Health Care System: Does Litigation Harm or Help?,” Journal of Law, Medicine & Ethics 41, no. 1 (2013): 133, https://doi.org/10/f4wfgc. 205 Octavio Luiz Motta Ferraz, “The Right to Health in the Courts of Brazil: Worsening Health Inequities?,” Health and Human Rights 11, no. 2 (2009): 34. 206 “Lei No. 8080,” 19 Septembro de 1990 § (1990); “Lei No.9313,” 13 de Novembro de 1996 § (1996). 167

Rosevear — Judicial Interpretation of Social Rights the puts their life or health at risk, a particular treatment or medicine would improve their health or chances of survival and, as such, the state has a responsibility to ensure they receive that treatment or medicine. In response, state parties tend to argue that judicial rulings in the area would violate the separation of powers, that there are reasonable protocols in place to allocate the health system’s finite resources, that budgetary and legal limitations (e.g., the prohibition on the use of public funds for non-budgeted purposes) preclude the immediate provision of all treatments and medicines to all individuals and that the constitutional rights relating to health must be interpreted and applied as a part of the constitution as a whole, cognizant of the reality of finite resources and competing rights and interests.207 Broadly speaking, the STF’s right to health jurisprudence can be divided into three stages. Wang has succinctly described the latter three as: rejecting the argument that budgetary constraints can limit state responsibility for an individual’s right to health (1997- 2006); accepting the need to ration healthcare expenditures but the absence of a set of criteria by which to engage in such rationing (2007-2010); attempting to develop and implement rationing criteria (2010-present).208 From mid-1990s to 2006, the dominant thrust of the STF’s judgments was that the right to health was derived from the right to life and entitled “the underprivileged, HIV virus carriers and people with other severe illnesses” to demand provision from the state.209 During this time frame, there appears to have been a general consensus that the right to health—and social rights more generally—were “non-derogable and inviolable… [and that] nothing relieves public authorities of their duty to provide for the object of the rights in question.”210 Or, in the words of one constitutional law professor, “the first stage of right to health litigation was: you ask and you will win, probably

207 Silvia Badim Marques and Sueli Gandolfi Dallari, “Garantia do Direito Social à Assistência Farmacêutica no Estado de São Paulo,” Revista de Saúde Pública 41, no. 1 (2007): 103–5, https://doi.org/10/c7cjg4; Hoffman and Bentes, “Accountability for SERs,” 119–27; Borges and Ugá, “Conflitos e Impasses da Judicialização,” 60–62; Menicucci and Machado, “Judicialization of Health Policy,” 48–49. 208 Wang, “Courts as Healthcare Policy-Makers,” 22–25. 209 Flavia Piovesan, “Brazil: Impact and Challenges of Social Rights in the Courts,” in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, ed. Malcolm Langford (Cambridge University Press, 2008), 185. 210 Hoffman and Bentes, “Accountability for SERs,” 105. 168

Rosevear — Judicial Interpretation of Social Rights everything that you want.”211 In 2001, for example, the STF held that “in such an important topic as health, there is no space for less important debates about legislation or public resources, it is a matter of priority”212 This approach, although dominant, was not universal. Just a year earlier, for example, the STF invoked the concept of the separation of power in declining to evaluate a medicine distribution arrangement between the State of Rio Grande do Sul and the municipality of Porto Alegre.213 During first Minister Ellen Gracie’s and subsequently Minister Gilmar Mendes’ terms as presidents (2007-2010),214 the Court’s jurisprudence began to recognize the necessity of rationing. In February of 2007, two decisions suspending preliminary injunctions requiring the state provision of medications granted in lower courts by then President of the Court Minister Gracie appears to have served as the starting point for this change.215 In her rulings, she cites the potential for serious injury to the public order and the public economy and her interpretation of Article 196 (the right to health) as laying out the foundation of a universal system of access and treatment, not an individual one, as grounds for striking down those particular orders.216 Similar decisions were issued subsequently issued by Minister Mendes, albeit in non-life-threatening cases relating to infertility drugs and sex reassignment.217

211 Sarlet, interview. 212 Wang, “Courts as Healthcare Policy-Makers,” 23; citing, Min. Sydney Sanches, RE 198263/RS, 30-03– 2001 DJ 144 (STF (Monocrática) 2001); see, also Min. Marco Aurélio, RE 195192, 31/03/2000 DJ 266 (STF (Segunda Turma) 2000); Min. Ellen Gracie, RE 342413/PR, 09-11–2004 DJ 81 (STF (Monocrática) 2004). 213 Piovesan, “Brazil: Impact and Challenges of Social Rights in the Courts,” 187; citing, Min. Maurício Corrêa, RE 259508 AgR/RS, 16-02–2001 DJ 137 (STF (Segunda Turma) 2000). 214 The terms of Ministers Gracie and Mendes were 27/04/2006-23/04/2008 and 23/04/2008-23/04/2010 respectively. 215 Wang, “Courts as Healthcare Policy-Makers,” 23. 216 Min. Ellen Gracie, SS 3073/RN, 14-02–2007 DJ 21 (STF (Presidência) 2007); Min. Ellen Gracie, STA 91/AL, 05-03–2007 D.J. 23 (S.T.F. (Presidência) 2007); see, also Octavio Luiz Motta Ferraz, “Harming the Poor through Social Rights Litigation: Lessons from Brazil,” Texas Law Review 89 (2011 2010): 1656 n57; Wang, “Courts as Healthcare Policy-Makers,” 23. 217 Wang, “Courts as Healthcare Policy-Makers,” 23; citing, Min. Gilmar Mendes, SS 3623/AM, [2008] No. 165 D.J. ___ (STF (Presidência) 2008) (infertility treatment); Min. Gilmar Mendes, STA 185/DF, [2009] No. 207 D.J. ___ (S.T.F. (Presidência) 2009) (sex reassignment). 169

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The Court’s jurisprudential shift, however, was not consistent, at least not in terms of outcome. In two subsequent decisions relating to the obligations of the states of Amazonas and Rio Grande do Norte, Minister Gracie held that States are obliged to provide medicines to patients suffering from severe diseases.218 However, in these cases, a basic form of proportionality analysis appears to have been applied. In the case from Rio Grande do Norte, for example, Minister Gracie indicates that matters of this nature need to be considered on a case-by-case, as opposed to abstract, basis. In doing so, she considers the deleterious effects of a denial of the requested medicine and the cost of providing them, ultimately deciding that the medication must be provided.219 In characterizing this second stage of STF jurisprudence on the right to health, Wang found that:

although the need to set criteria for restricting the judicial intervention in reviewing rationing decisions was recognized, the Court was still going back and forth between recognizing an unlimited individual right to health and admitting that resources are scarce and hence priorities should be set.220

Put differently, the Court had recognized the conflict between the protection of rights on the one hand and the scarcity of resources for realizing those rights, particularly on an ad hoc basis. Having reached this stage however, a degree of uncertainty was created by a seemingly unpredictable decision-making process that resulted in the granting of preliminary injunctions for some claimants and their denial for others for reasons that are not entirely clear. In terms of empirical analysis, Arguelhes and Hartmann identified 74 cases heard by the collegiate bodies of the STF—the tribunal pleno (full court) and the two turmas (five member panels)—dealing with the right to health on the merits between 1988 and

218 Fabiola Sulpino Vieira, “Right to Health Litigations: A Discussion on the Observance of the Principles of Brazil’s Health System,” Revista de Saúde Pública 42, no. 2 (April 2008): 1; citing Min. Ellen Gracie, SS 3158/RN, 08-06–2007 DJ 22 (STF (Presidência) 2007); Min. Ellen Gracie, SS 3205/AM, 08-06–2007 D.J. 23 (STF (Presidência) 2007); additionally, Wang, “Courts as Healthcare Policy-Makers” identifies several other instances of this seeming inconsistency: ; Min. Ellen Gracie, SS 3429/RN, [2008] No. 18 D.J. ___ (STF (Presidência) 2007); Min. Ellen Gracie, SS 3452/RN, [2008] No. 18 DJ ___ (STF (Presidência) 2007); Min. Ellen Gracie, STA 181/RN, [2008] No. 18 D.J. (S.T.F. (Presidência) 2007). 219 Min. Ellen Gracie, SS 3158/RN, 08-06–2007 DJ. 220 Wang, “Courts as Healthcare Policy-Makers,” 23. 170

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2009.221 In all but one of these cases the state party was required to provide some or all of the requested medical treatment. The same study also found an almost non-existent engagement with the academic literature—either legal-doctrinal or social scientific— relating to positive rights and the nature of state obligations with respect to the realization of such rights. This is a marked contrast to many other contentious issues before the STF. The leading constitutional decisions as same-sex civil unions and race-based affirmative action, for example, refer to a multitude of scholarly works and there is evidence of an ongoing dialogue and the development of conceptual tools.222 The third stage of the STF’s jurisprudence is linked with the public hearings on the right to health and access to medicines held by the Court in April and May of 2009, during Minister Mendes’ Presidency. These hearings involved presentations from academics, civil society organizations, and government officials.223 In his opening remarks to these audiences, Minister Mendes characterized the driving concern of the hearings as follows:

In some cases, to satisfy the needs of people in front of them, that have a name, a history, a grave condition, that need a specific treatment, [judges] may, indirectly, sacrifice the right of many other citizens, anonymous, without a face, but that depend equally in the public healthcare system.

Not rarely, we hear the administrators of the system say the following: “The judge ordered me to introduce a patient, urgently, to an Intensive Care Unit, but he didn’t tell me which patient to remove to have room for the new one!”224

A few years later, Wang summarized the matter rather more bluntly:

Health care litigation consumes a significant, and increasingly large, amount of the public health budget, which is spent to provide treatments without a proper appraisal of their safety, effectiveness, cost-effectiveness or their priority regarding the population’s health needs. Courts are also

221 This excludes decisions made by individual justices (Decisões Monocráticas), including those issued by the President of the Court (Decisões da Presidência). 222 Diego Werneck Arguelhes and Ivar Alberto Martins Hartmann, “Law in the Books and Books in the Court: Are Social Rights Literature and Judicial Practice on the Same Page in Brazil?,” Annuaire International Des Droits de l’Homme VII (2014): 17–38. 223 Prado, “Provision of Health Care Services,” 338–39; Wang, “Courts as Healthcare Policy-Makers,” 23–24. 224 Gilmar Mendes, “Opening Remarks,” in Public Audience No. 4, trans. Thiago Filippo (Brasília: Supremo Tribunal Federal, 2009). 171

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distributing health care without concerns of distributive justice, since resources are allocated according to the capacity to litigate, and creates a potentially unsustainable situation for the public health system.225

The goal of the hearings was to develop a judicial framework for the adjudication of pharmaceutical litigation that would enable judges to effectively maintain the middle ground between eschewing all involvement in the matters by deeming them non-justiciable matters of policy and engaging with each one on the terms of the case alone, from the perspective that the right to health is a directly applicable right requiring the granting of any and all health demands. The goal, Minister Mendes asserted, was “a balanced position, capable of analyzing all of the implications of judicial decisions, without compromising the fundamental rights of the citizens, and, in particular, the right to health.”226 Two significant events followed the 2009 hearings. The first of these was a set of nine cases decided by the STF that attempted to establish the criteria for adjudicating pharmaceutical-oriented right to health litigation decided in late 2009. The second was the CNJ’s release of a set of non-binding recommendations and guidelines for the adjudication of right to health claims based on, inter alia, the principles and findings of the public audiences in 2010.227 A key element of these recommendations was emphasizing the importance of judges being able to consult, and actually consulting, with public health officials regarding public health concerns and consequences associated with specific claims.228 Specifically, there is a concern that, all too often, a judge only pays attention to the opinion of the prescribing doctor, who in turn has been lobbied by pharmaceutical companies, rather than public health officials who are seeking to achieve broader public health goals within the context of a limited budget. In describing this phenomenon, the head of the São Paulo State Health Department is reported to have said “Then comes the

225 Wang, “Courts as Healthcare Policy-Makers,” 29. 226 Mendes, “Opening Remarks.” 227 Conselho Nacional de Justiça (Brazil), “Recomendação no 31, de 30 de março de 2010,” Díario da Justiça eletrônico 61/2010 (April 7, 2010): 4–6. 228 This was and is also a key concern of the public health officials in the State of São Paulo. “Judiciary- Executive.” 172

Rosevear — Judicial Interpretation of Social Rights doctor, who thinks he is God, to give his opinion to a judge, who is sure he himself is one.”229 The impact of these measures appears to have been rather limited. By way of example, Wang describes a 2011 case advanced by six individuals seeking an order to have the federal government fund their receipt of an experimental treatment for a degenerative eye disease in Cuba. In that case, Minister Marco Aurelio effectively rejected both “the extensive evidence against the effectiveness of the treatment” and the idea of rationing health care:

I cannot accept that the lack of economic resources can be articulated to deny health care for a citizen… according to what I read in the media, the successful treatment to this disease is indeed in Cuba.230

Along similar lines, Minister Luiz Fux held that

I am very determined when it comes to hope. I never believed in the version that the pigment rethinosis could not be cured in Cuba. Quite the opposite, I think that they [Cubans] are specialists in this area and there should be hope concerning the cure. 231

Ultimately, Wang concludes that in spite of more than a decade of attempting to address to competing considerations of the right to health and scarce resources, the dominant interpretation on the Court is that “the right to health entitles patients to receive any health treatment they need, because people’s health and life trump ‘financial and secondary interests of the State.’”232 At least with respect to this case, however, there are two procedural points that raise questions about its persuasiveness vis-à-vis the broader claim. The decision, made by the first of the Court’s turmas, was not unanimous. Rather, the five-member panel split 3-2. This in itself is noteworthy, particularly as it is one of the rare cases in which the decision of the relator (the Minister assigned to prepare the bench memo and a preliminary decision)

229 Ibid., 23. 230 Wang, “Courts as Healthcare Policy-Makers,” 24; Min. Marco Aurélio, RE 368564/DF, 153 DJe 64 (STF (Primeira Turma) 2011) (trans. Daniel Wang). 231 Wang, “Courts as Healthcare Policy-Makers,” 24; Min. Marco Aurélio, RE 368564/DF, 153 DJe (trans. Daniel Wang). 232 Wang, “Courts as Healthcare Policy-Makers,” 24. 173

Rosevear — Judicial Interpretation of Social Rights was rejected. Recent research indicates that approximately 94% of turma decisions are unanimous and that the recommendation of the relator is accepted more than 98% of the time.233 The second point of note is that as a result of a procedural mechanism that allows judges to suspend voting in a case in order to review the files (pedido de vista),234 this decision straddled the public hearing and subsequent issue of guidelines and recommendations. Two of the three votes to grant the claim were cast in 2008—well before the hearings and subsequent recommendations—the third vote was cast by Minister Fux in 2011—well after the recommendations had be issued. The first vote to deny the claim was that of the relator, Minister Menzes Direito based on the opinion he prepared and presented in 2008 as relator; second was cast in 2011 by Minister Ricardo Lewandowski. Minister Toffoli, who had been appointed to the Court to replace Minister Direito, in accordance with the Court’s procedural rules,235 did not vote in the case. In the strictest sense, then, only one of the Ministers who had access to them prior to casting their vote does not appear to have considered the guidelines or recommendations in their decision. However, it is not unheard of for a Minister to change their vote, particularly after a long delay in the decision- making that could have resulted in new circumstances, evidence, or other legally relevant changes. As discussed above, the decentralized nature of both the judiciary and healthcare system in Brazil have thus far frustrated attempts at comprehensive empirical analysis of right to health (or any other social rights) claims. However, a plethora of case studies strongly support Ferraz’s concept of the “Brazilian Model” of right to health adjudication, a model characterized by individual litigants advancing claims for the publicly-funded provision of curative medication or treatment with extremely high rates of success.236 That

233 Evan Rosevear, Ivar A.M. Hartmann, and Diego Werneck Arguelhes, “Disagreement on the Brazilian Supreme Court: An Exploratory Analysis” (FGV Direito-Rio (Working Paper), 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629329. 234 This process can have substantial implications in terms of the timing of STF decisions. Although formally limited to thirty days, in RE 386564 the files remained with Minister Lewandowski for more than 30 months (16 September 2008 to 13 April 2011). This is by no means unusually long. When a request to view is made, the files remain with the requestor for an average of more than a year, several year delay are not uncommon, and multi-decade delays have occurred. Arguelhes and Hartmann, “Timing Control without Docket Control.” 235 Supremo Tribunal Federal, Regimento Interno (Brasília: STF, 2014), sec. 134. 236 Ferraz, “Worsening Health Inequalities?,” 34. 174

Rosevear — Judicial Interpretation of Social Rights being said, the varying foci of the research resulted in different sampling frames that, in combination with issues of data availability and potential selection biases prevent direct comparison across time and region. In their study of social rights litigation, Hoffman and Bentes identified 7,100 right to health cases decided by a sample of state supreme courts,237 the STF, and the STJ between 1994 and 2004.238 Only 2% of these were collective claims. An analysis of a “convenience sample” of 945 claims for pharmaceuticals made in the State of Rio Grande do Sul between 2002 and 2009 found that claimants’ requests were granted in full 93% of the time and in part another 3% at the trial level. Moreover, 26 of the 36 rejected claims cited a procedural issue—that the case was filed in the wrong jurisdiction—as an element of the denial. At the appellate level, 90% of cases granting medications were upheld while 83% of decisions denying them were upheld.239 Additionally, in the course of a qualitative analysis of argumentation and judicial reasoning in a small number of cases claiming pharmaceuticals in the State of São Paulo between 1997 and 2004, Marques and Dallari found that claimants were successful more the 95% of the time and did not locate any decisions in which the claimant lost on the merits of the case (as opposed to procedural issues).240 A study of health claims filed between 1995 and 2005 in which the municipality of Belo Horizonte was a party estimated claimant success at approximately 90%.241 Other studies and reviews have estimated success rates ranging from a little better than 80% to approaching 100%.242

237 Those of Bahia, Goiás, Pernambuco, Rio de Janeiro, and Rio Grande do Sul. 238 Hoffman and Bentes, “Accountability for SERs,” 115–19. 239 Biehl et al., “Between the Court and the Clinic,” 42, 46–47. 240 Marques and Dallari, “Garantia do Direito Social,” 104. 241 Menicucci and Machado, “Judicialization of Health Policy,” 54. 242 Hoffman and Bentes, “Accountability for SERs,” 119; Borges and Ugá, “Conflitos e Impasses da Judicialização,” 61; Prado, “The Debatable Role of Courts in Brazil’s Health Care System,” 125; Pereira and Pepe, “Acesso a Medicamentos por via Judicial no Paraná: Aplicação de um Modelo Metodológico para Análise e Monitoramento das Demandas Judiciais,” 37; Denise Vieira Travassos et al., “Judicialização da Saúde: Um Estudo de Caso de Três Tribunais Brasileiros,” Ciência & Saúde Coletiva 18, no. 11 (2013): 3422–23, https://doi.org/10/ghdsdm; for discussions of the state of empirical research on the right to health in Brazil, see: Octavio Luiz Motta Ferraz, “Right to Health Litigation in Brazil, An Overview of the Research” (Right to Health Through Litigation? Can Court Enforced Health Rights Improve Health Policy?, University Torquato di Tella, Buenos Aires, 2009); Wang, “Courts as Healthcare Policy-Makers.” 175

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In the matter of health rights, the pattern of preliminary injunctions in Brazilian litigation is just as significant as the final rulings. In claims involving pharmaceuticals, it is standard practice to request a preliminary injunction requiring whichever government organization(s) named as a defendant to provide the claimant with the requested medicines during the course of the legal proceedings. These requests are nearly always granted. For example, Marques and Dallari found such injunctions in 94% of the pharmaceutical cases they examined, Biehl et al found injunctions granting immediate access to all requested drugs in 93% of cases at the trial level, and Menicucci and Machado found them in 70% of all right to health claims and 80% of pharmaceutical claims.243 The frequency of these injunctions is problematic. Regardless of the merits of the case, judges will often feel compelled to grant them for both legal and human reasons. The rationale behind preliminary injunctions is to ensure that the time taken to decide a case does not render a ruling moot or impose an additional burden on the claimant. This is particularly important in the context of Brazil, where the use of motions and appeals as delay tactics to delay final judgments for years is commonplace, even by state actors.244 Thus, even where a claim is highly questionable on its face, the severity of the impact of delay—the deterioration of the claimant’s health or even death—would militate toward the granting of an injunction. From a more humanist perspective, the moral burden of denying an injunction knowing this will result in physical suffering or possibly death before they can have their claim fully argued and considered is surely troubling for judges. In his opening remarks at the STF’s public hearings on the right to health Gilmar Mendes, then President of the Court, related the position of a fellow judge in such a situation. After denying a preliminary injunction, the claimant died prior to the conclusion of proceedings; since that time the judge has granted all preliminary injunctions as a matter of principle.245 Unfortunately, the necessary result of granting an injunction is that after a full consideration of the case the judge may then be put in the unenviable position of telling

243 Marques and Dallari, “Garantia do Direito Social,” 105; Biehl et al., “Between the Court and the Clinic,” 46; Menicucci and Machado, “Judicialization of Health Policy,” 50. 244 Sadek, “The Public Prosecutor’s Office,” 67; Vargas, “Civil Justice Reform,” 23–24; Oliveira, “Reforming the Brazilian SFC,” 113–14, 142; Oliveira and Garoupa, “Stare Decisis and Certiroari,” 598. 245 Mendes, “Opening Remarks.” 176

Rosevear — Judicial Interpretation of Social Rights the patient/claimant that they are no longer entitled to the medication they have been receiving and, once again, are going to suffer or die. The difference, however, is that the claimant has been granted temporary relief and the judge’s act (as opposed to their inaction) will directly result in increased physical suffering. This, in turn, suggests path dependence may contribute to the high rates of success in Brazilian right to health claims: regardless of the merits of the case judges have both legal and moral incentives to grant preliminary injunctions; having granted preliminary injunctions there is a strong moral/empathetic pressure, regardless of the merits of the case or the broader consequences of their decision, to rule in favor of the claimant. Although speculative, this may also explain relatively low standard of proof that appears, at least until recently, to have been necessary to mount a successful pharmaceutical claim in Brazil; in most cases, it appears that a doctor’s prescription was a sufficient but not necessary condition.246 At the same time, it should also be recognized that in many instances a prescription is all that should be required. For example, where the medication is on the schedule of government provided medications and the claimant is eligible to receive it according to the relevant therapeutic guidelines but has been unable to obtain it, a situation that is not uncommon.247

4.5.4 Education and the (Re)Emergence of Collective Litigation Litigation of the right to education has predominantly focused on pre-school and basic education, although some subsequent litigation has dealt with university registration and monthly fees.248 Although not as prominent as right to health litigation, the São Paulo state MP did file a large number of law suits in the mid-1990s relating to children’s rights. About half of these dealt with the right to education in one form or another; most dealt with

246 Borges and Ugá, “Conflitos e Impasses da Judicialização”; Januária Ramos Pereira et al., “Análise das Demandas Judiciais para o Fornecimento de Medicamentos pela Secretaria de Estado da Saúde de Santa Catarina nos anos de 2003 e 2004,” Ciência & Saúde Coletiva 15, no. suppl. 3 (2010): 3551–60, https://doi.org/10/df8m9d; Luciane Cruz Lopes et al., “Rational Use of Anticancer Drugs and Patient Lawsuits in the State of São Paulo, Southeastern Brazil,” Revista de Saúde Pública 44, no. 4 (2010): 620– 28, https://doi.org/10/drgq6q. 247 See e.g., Vera Lúcia Edais Pepe et al., “A Judicialização da Saúde e os Novos Desafios da Gestão da Assistência Farmacêutica,” Ciência & Saúde Coletiva 15, no. 5 (2010): 2405–14, https://doi.org/10/cqpnw4. 248 Piovesan, “Brazil: Impact and Challenges of Social Rights in the Courts,” 188. 177

Rosevear — Judicial Interpretation of Social Rights changes in education policy in 1995 that altered the age of eligibility for public school and the alteration of catchment boundaries that result in students in the peripheries of larger cites being forced to travel long distances to school. Eventually this resulted in discussions between the MP and the State Government regarding policy.249 Moreover, a series of STF rulings have emphasized the “absolute importance” of pre-school education and mandated that municipalities ensure vacancies in daycare centers for all children to the age of six.250 In the early years of social rights litigation in Brazil, right to education claims were both less frequent and more likely to be collective. In their pioneering study of Brazilian social rights litigation, Hoffman and Bentes found 300 right to education cases filed between 1994 and 2004 as compared to 7,400 right to health cases. However, in comparison to the 2% of the right health cases they classified as collective, 81% of right to education cases were. In absolute terms, though, this remains a small number of cases in terms of total social rights litigation in the country during that period.251 One explanation for the low level of litigation in this area, at least initially, is that it was not of concern to the middle and upper classes—who are supposed to have made up, and perhaps continue to make up, social rights litigants in Brazil.252 Another, more compelling explanation is that the judiciary was simply not receptive to the collective approach which tended to characterize early right to education litigation.253 As one professor and litigator put it,

Judges would answer the individual claim and completely ignore the collective claim. For example, if we stated we needed 1,500 [daycare] places for children in the State of São Paulo, the Judge would say ‘no can

249 Caitia Aida Silva, “Brazilian Prosecutors and the Collective Demands: Bringing Social Issues to the Courts of Justice” (Latin American Studies Association Annual Meeting, Miami, 2000). 250 Piovesan, “Brazil: Impact and Challenges of Social Rights in the Courts,” 188–89 citing, RE 411518/SP (2004), RE 398722/SP (2004). 251 Hoffman and Bentes, “Accountability for SERs,” 116–19. 252 Ferraz, “Harming the Poor.” This position is not uncontested. See e.g., Daniel M. Brinks and Varun Gauri, “The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights,” Perspectives on Politics 12, no. 2 (2014): 383–84, https://doi.org/10/f6bp3j. 253 Luiz Rascovski, trans. Nicole Julie Fobe, April 23, 2015. 178

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do, that is public policy.’ But, if we asked for a single place for a child, this was not seen as a problem.254

This, in turn, led those committed to basic education to seek to advance their goals elsewhere. After the initial round of collectively-oriented right to education litigation in the 1990s and early 2000s, the vast majority of right to education litigation was in accordance with the “Brazilian model” of social rights litigation: individual litigants sought places for their children in pre-schools were generally granted an order directing a particular school to provide one.255 However, the efficacy of these orders was limited. While the judicially ordered provision of a particular medication was, most of the time, realized, a place in an educational institution was not generally immediately forthcoming. Rather, the relevant institution would place individuals with such judicial orders on “priority” waiting lists for spots, creating a dual or parallel listing system.256 The rationale for this system appears to be based on the concept of reserva do possível—the idea that state obligations regarding the provision of fundamental rights must be tempered by the recognition of budgetary limitations—with respect to the provision of daycare and other educational places for children.257 By 2011, however, a class action lawsuit seeking spots in childcare and pre-school for all the Children in São Paulo had reached the state appellate court. In the face of the limited effectiveness of individual claims, the DP, MP and several NGOs such as Açao Educativo successfully sought permission to submit various studies and analyses they had conducted regarding systematic underservicing for consideration in the case. Eventually, the president of the public law section of the state appellate court, Desembargador (Appellate Court Judge) Samuel Junior, called a public hearing about the state of Basic

254 Salomão Barros Ximenes, trans. Nicole Julie Fobe, April 24, 2015. 255 At one point, the São Paulo Municipal DP was bringing 90 claims of this type per day. Rascovski, interview; see also, Sarlet, interview. 256 Ximenes, interview; Rascovski, interview. 257 Min. Celso de Mello, RE 410715 AgR /SP, 03-02–2006 DJ 1529 (STF (Segunda Turma) 2005); Ximenes, interview. 179

Rosevear — Judicial Interpretation of Social Rights education in the State of São Paulo—an unprecedented action for a state supreme court.258 involving experts in a number of relevant areas.259 In December of 2013 the São Paulo State Court of Appeal (SP-TJ), overturning a trial court decision, ruled that the City of São Paulo was required to make 150,000 new child care spots available by 2016, the majority of which were to be for children between zero and three years of age. In addition to this, the municipality was ordered to present a plan to achieve this requirement within 60 days of the judgment and to report to a court-established committee composed of civil society representatives every six months on their progress in achieving the goal.260 In terms of implementation, it does not appear that the ambitious goal of 150,000 new places was realized and concerns have been raised about the Committee’s need to rely on the information provided by the municipality rather than from an independent source. Nevertheless, 65,000 new places have been created since the judgment, something broadly attributed to the litigation and the monitoring process established by the Court.261 In the context of Brazilian social rights litigation, this decision is remarkable in a number of ways. The decision itself is remarkable insofar as it is one of the first times a “collective” claim of any type has been validated in the context of social rights litigation.262 It is also certainly the largest, by orders of magnitude, in terms of budgetary implications. In many ways, this decision, the remedy, and the case as whole more closely resemble the type of in-depth analysis characteristic of the South African Constitutional Court’s decisions on housing policy or the structural judgments of the Colombian Constitutional Court than that of a Brazilian court.263 A key element of this was the amount of research

258 The STF, however, had undertaken a similar process in 2009 regarding the right to health. 259 Rascovski, interview; Ximenes, interview. 260 Oscar Vilhena Viera, “Judicial Experimentation and Public Policy: A New Approach to the Right to Education in Brazil,” OxHRH Blog (blog), July 31, 2014, http://ohrh.law.ox.ac.uk/?p=12688; Ann Skelton, Strategic Litigation Impacts: Equal Access to Quality Education, Open Society Justice Initiative (Open Society Justice Initiative, 2017), 36, 71. It is also of note that the number of places was identical to a campaign plank of the sitting administration. Ximenes, interview. 261 Skelton, Strategic Litigation Impacts, 58, 71. 262 Hoffman and Bentes, “Accountability for SERs,” 106–7. 263 “Order of the Court: Grootboom v The Government of the Republic of South Africa,” September 21, 2000 regarding the South African approach generally, see the case study in this volume; regarding the Structural Judgments of the Colombian Constitutional Court see, Decision T-025 of 2004 (Const’l Ct. (3d Cham)

180

Rosevear — Judicial Interpretation of Social Rights undertaken and data presented by the plaintiff organizations that clearly identified underserviced areas and gaps in coverage at a level of detail not previously available, even to the municipality itself.264 By way of contrast, evidentiary requirements in individual cases seeking access to medicines on the basis of the right to health are often as straightforward as the provision of a prescription and/or an affidavit from an authorized medical practitioner indicating a detrimental impact if the medication is not received.265 The cause of this jurisprudential shift on the part of the SP-TJ is almost certainly multifaceted. One contributing factor was likely the inundation of the judiciary with individual claims related to school places for which the remedies were proving of limited utility causing frustration on the part of judges (among others). Another was likely the repeated failure of attempts by organizations such Açao Educativo to make meaningful progress by engaging with municipal officials directly. A third was likely the scale of the problem in combination with a generalized agreement with the goal. There does tend to be room for public debate about fiscal responsibility in the administration of a public health care system; this is unlikely to be the case, at least rhetorically, when it comes to early childhood and basic education. With respect to how that shift manifest, the resemblance of the case to certain types of South African and Colombian constitutional decisions is unlikely to be a coincidence. However, the method of diffusion—personal or professional contacts, review of foreign case law or academic literature, or some other method—is not readily apparent. It does, however, warrant further investigation.

4.5.5 Housing and Private Property Concerns In contrast to right to health and right to education litigation, the right to housing is generally invoked as a shield rather than a sword in Brazil. That is, it is most frequently used as a defense against eviction orders rather than an attempt to exact a good or benefit directly from the state. Right to housing litigation also appears to be the least commonly

January 22, 2004); César Rodríguez-Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America,” Texas Law Review 89, no. 7 (2011): 1669–98. 264 Ximenes, interview; Skelton, Strategic Litigation Impacts, 36. 265 João Biehl, “The Judicialization of Biopolitics: Claiming the Right to Pharmaceuticals in Brazilian Courts,” American Ethnologist 40, no. 3 (2013): 421, https://doi.org/10/f46px8; Wang, “Courts as Healthcare Policy-Makers,” 45; Hoffman and Bentes, “Accountability for SERs,” 132. 181

Rosevear — Judicial Interpretation of Social Rights advanced and to have had the least impact of the three rights.266 At least part of the reason for this is attributable to the seeming unwillingness of the judiciary to directly abrogate individual property rights.267 That said, as a general rule, a primary residence that has been used as collateral against a loan cannot be seized on the basis of a right to housing.268 In one particularly notable case heard in 1999, a Judge rejected the owner’s request for an eviction order for the occupiers of Fazenda Ximbó in the state of São Paulo. This was largely unexpected by all parties involved. In contrast to other decisions in which primary reliance was placed on the owner’s assertions of damage/destruction, the judge in this case conducted her own investigation of the matter and determined that the encampment was well-managed, occupied an extremely small proportion of the total area of the Fazenda (~1%). The judges’ decision to was based on “serious doubts about whether the property was fulfilling its social function, the absence of an alternative site for the landless families and an infinitesimal risk to the property in question.”269 On appeal, however, the eviction order was granted.270 In contrast to South African judges, Brazilian judges—at least those in São Paulo —seem unwilling to inquire into the reasonableness of whatever policies have been put in place by the state. In an illuminating analysis of three cases dealing with the eviction of occupiers using land for informal housing in São Paulo, Coutinho finds that Brazilian courts tend to rely on three main lines of reasoning when granting eviction orders.271 The first is that the right to housing cannot reasonably be interpreted so as to require the state to provide a house to every Brazilian family—a marked contrast to the many members of the judiciary’s interpretation of the right to health. Rather, the state’s obligation is to create policy aimed at addressing the country’s housing problems. However, despite the fact that

266 Maria Laura Coutinho, “Do Brazilian Courts Contribute to the Implementation of the Right to Housing?,” Research Paper Series (Fundação Getúlio Vargas, February 2014), http://papers.ssrn.com/abstract=2393591; Juiz Martin Schulze, trans. Nicole Julie Fobe, May 7, 2015. 267 Juiz André Augusto, trans. Nicole Julie Fobe, April 24, 2015; Mészáros, Social Movements, 4–5. 268 Sarlet, interview. 269 Mészáros, Social Movements, 167. 270 Ibid., 168. 271 Coutinho, “Do Brazilian Courts Contribute to the Implementation of the Right to Housing?” 182

Rosevear — Judicial Interpretation of Social Rights the STF has asserted the legitimacy of judicial inquiry into public policies associated with social rights entrenched in the Constitution,272 it has not defined the parameters of such inquiries and they tend not to happen at the trial level.273 The second is that conflicts between the rights to property and housing must be resolved in favor of the right to property, as to privilege to the right to housing by imposing conditions on the removal of occupiers—e.g. the availability of alternative accommodations—would impose an obligation on a private individual—the property owner—that is, in fact, an obligation of the state. In the lower courts, eviction orders have been known to be accompanied by temporary provision of a stipend to the evicted party in an amount deemed sufficient to pay for alternative accommodation. In practice, however, this does not generate additional housing or security of tenure, but simply results in the evictee moving into different irregular housing where they remain exposed to the same precarity.274 Third, while there has been significant discussion about the importance of the “social function” of property in the context of both the Constitution and urban planning in Brazil,275 arguments that the land being occupied is not fulfilling its social function as a result of dereliction, property speculation, non-payment of taxes, or otherwise have almost invariably fallen on deaf (judicial) ears. In short, despite some victories in the trial courts—which have been overturned on appeal—and a certain willingness to experiment by a small number of progressive judges, the right to housing has not been meaningfully realized. In terms of explanation, there

272 Vanice Regina Lirio do Valle, “Judicial Adjudication in Housing Rights in Brazil and Colombia: A Comparative Perspective,” Revista de Investigacoes Constitucionais 1, no. 2 (2014): 86, https://doi.org/10/ghdsb2; citing, Min. Celso de Mello, RE 410715 AgR /SP, 03-02–2006 DJ; and, Min. Celso de Mello, ARE 639337 AgR/SP, 127 DJe 125 (STF (Segunda Turma) 2011). 273 Lirio do Valle, “Judicial Adjudication in Housing Rights in Brazil and Colombia: A Comparative Perspective,” 88. 274 Ibid., 89. 275 Eliane Botelho Junqueira, Jose Ribas Vieira, and Maria Guadalupe Piragibe Da Fonseca, Juízes: Retrato em Preto e Branco (Letra Capital, 1997), 46–47; E.g., Friendly, “The Place of Social Citizenship”; Jeroen Klink and Rosana Denaldi, “On Urban Reform, Rights and Planning Challenges in the Brazilian Metropolis,” Planning Theory 15, no. 4 (2016): 402–17, https://doi.org/10/ghdsbt. According to Fernandes, there are a number of reasons the legal system privileges private ownership over the constitutionally enshrined principle that property has a social function to fulfill. These include, “speculative land markets, clientelist political systems, [and] elitist urban planning practices.” “Constructing the ‘Right to the City’ in Brazil,” 203. 183

Rosevear — Judicial Interpretation of Social Rights appears to be a consensus among researchers and activists involved in housing and, more generally, Brazil’s “right to the city” movement, that the conservatism of the Brazilian judiciary presents a substantial barrier. According to Zhang, for example,

although Brazil has created one of the most progressive legal frameworks in the world, its judiciary system remains conservative. As a result, many progressive laws are not properly interpreted or cannot be translated into policy.276

Similarly, Mészáros argues that despite the existence of a some innovative and progressive judges, there is a heavy strain of conservatism present in the Brazilian judiciary that is associated with the enforcement of liberal conceptions of private property and equates attempts to modify that understanding (e.g., through protest), as attacks on the rule of law. This approach is supposed to have a chilling effect on land reform as it introduces a variety of procedural requirements, increases the cost of expropriation, and plays into a narrative of occupiers as threatening the rule of law.277 This interpretive approach on the part of Brazilian judges is, on its face, in stark contrast to their expansive interpretation of the right to health. The reticence on the part of the judiciary to give the same force to housing rights is, however, a logical when considered in light of Brazil’s judicial culture. The “conservatism” of the judiciary identified by Zhang, Mészáros, and others is, in fact, an adherence to classical liberalism. From the perspective of the “average” judge, denying property owners access to their property by declining to issue eviction orders would be tantamount to expropriation without compensation, something prohibited by the Constitution.278 More importantly, however, it is not seen as a situation necessitating the balancing of competing rights or otherwise seeking to establish a relative priority of claims. From the perspective of Brazilian judges, preventing evictions intended to protect property rights in order to protect the right to housing of other citizens would be to shift the cost of rights realization from its proper location—the state—to a private entity. It is the state’s responsibility to give effect to

276 Zhang, “Rightful Squatting,” 12. 277 Mészáros, Social Movements. 278 Keith S. Rosenn, trans., “1988 Constitution of the Federation Republic of Brazil: Annotated English Translation,” in World Constitutions Illustrated, 1989, 383–84 (art. 182[3]). 184

Rosevear — Judicial Interpretation of Social Rights constitutional rights; it is they who must bear the cost of doing so. It would be neither just nor appropriate to allow the state to download that cost to private entities.

4.6 Explaining Brazil’s Social Rights Jurisprudence In Brazil, the culture of the judiciary has historically been both conservative and formalist. Through the 1970s judges aimed to be strict interpreters of “the law.” This is partly because of the protection from political interference offered by the approach. It is also the product of a system of legal education that emphasized this approach as the correct way to fulfill the judicial function and that privileged those who internalized those norms via its system of judicial selection. The professoriate has traditionally been, and with notable exceptions continues to be, practicing lawyers for whom teaching is a sideline.279 Consequently, there is little emphasis placed on original research outside the realm of doctrine and a substantial resistance change, both conceptually and pedagogically. The judiciary is a professional, first career institution and selection occurs via examination, as is the case with most public offices in Brazil. For the ordinary courts, examinations are specific to the jurisdiction and are both set and administered by the judiciary itself. The contents of the examinations have traditionally focused heavily on familiarity with the law in force as opposed theoretical or conceptual knowledge. This approach has been criticized as resulting in a particular, narrow range of successful candidates who are familiar with doctrine but lack professional and administrative experience. Nevertheless, by the mid-1980s, some judges had begun to confront the political establishment in the context of privatization. Although generally overturned by the STF, these decisions highlighted the relationship of law to social conditions and, to a degree, brought into question the appropriateness of the strict legalist approach. By the early 1990s, a generation of more progressively minded lawyers and judges had populated the junior ranks of the legal profession. Along with a smaller, more senior group of similarly disposed judges they sought to use their skill and position to aid the disadvantaged and foster progressive change in Brazil. It seemed clear that the expansive social rights entrenched in the 1988 constitution could be used to further these goals. However, the

279 Junquiera, “Brazil: The Road to Conflict Bound for Total Justice,” 89. 185

Rosevear — Judicial Interpretation of Social Rights means of doing so without transgressing the boundary between law and politics instilled in them by their education and Brazilian judicial culture was not. The increasing severity and prominence of HIV/AIDS provided an opportunity for the judiciary to serve both masters—the law and the social good. In the early 1990s, willing trial court judges encountered a mobilized set of organizations seeking to advance HIV/AIDS awareness and treatment and a willing—or at least sufficiently fragmented as to be unable to mount effective opposition—set of domestic political institutions. These judges, then, were able to grant the individual claims for state provision of antiretrovirals in accordance with their judicial-cultural norms because, by conceiving of the rights to health as an absolute, they could be decided syllogistically, without violating the separation of law and politics. Ordering a specific action on the part of the state in an individual case did not represent an intrusion into the realm of policy, it was simply a discrete act needed to bring the executive into compliance with its legal (constitutional) obligations. Moreover, by ordering the provision of life-saving medication this approach also satisfied their judicial culture-driven desires to do and to be seen to be doing socially beneficial work. The popularity of these decisions, the absence of systematic political opposition, and the presence of an observant pool of potential litigants then led to the incorporation of this approach into judicial doctrine and its application in right to health cases, as well as other social rights cases, on a wide scale. In contrast to the granting of individual benefits, there was a general reluctance on the part of judges to rule favorably in collective claims of any type, at least until quite recently. This is the result of a generalized aversion to “law-making” on the part of a first career judiciary which adheres, at least rhetorically, to a strict separation of making and applying law in combination with the lack of time and resources—for both judges and litigants—to effectively engage in the type of detailed research and analysis required to make reasonable, policy-cognizant decision-making possible in social rights cases. The notable exception to this is the formally successful action brought against the city of São Paulo which resulted in a complicated remedy requiring the production of a formal plan, report backs, and the provision of 150,000 new school places over a multi-year period. This one case, which has been beset with delays, is the exception that proves the rule. Getting to a successful judgment of this type required years of underservicing, litigation, and a

186

Rosevear — Judicial Interpretation of Social Rights herculean effort on the part of the NGOs involved to collect and analyze the data necessary to produce a compelling submission which was rejected at trial and only successful on appeal. With respect to the more recently entrenched right to housing, there have been no significant victories at the collective level that have remained in place on appeal. The primary reason for this is not the “conservative streak” which many have argued runs the Brazilian judiciary, at least not directly. Rather, it is the desire of Brazilian judges to protect rights across the board, regardless of socio-economic position. By granting eviction orders they see themselves as vindicating the rights of property owners. There may well be a cost to the occupiers in doing so, particularly with respect to their right to housing, but from their perspective it is not the responsibility of individual property owners to bear the cost of realizing social rights. It is a collective burden to be borne by society as a whole, via the state. The fact that such eviction orders have, on occasion, been combined with requiring the state to provide temporary stipends to evictees in evidence of this. More broadly, although experimentation does occur, attempts to foster a degree of certainty in the adjudication of these rights have been hampered by a judicial culture that promotes a rules-focused approach to legal analysis that precludes engagement with policy considerations or the oversight of policy development, conceiving of these as approaching law-making, a violation of the separation of powers. Moreover, the high volume of cases dealt with by the Brazilian legal system means that, in addition to concerns about whether their legal training and limited practical experience has equipped them with the skillset to do so, Brazilian judges generally lack the time and resources to engage in sustained research and analysis necessary to engage in policy-cognizant decision making. For those judges wishing to give practical effect to rights, then, absolutist interpretations have a certain pragmatic appeal vis-à-vis caseload. In addition to this, barring very limited exceptions,280 Brazil has no formal system of binding precedent and the vast majority of decisions apply only to the dispute before the judge (inter partes). Despite the fact that Brazilian judicial review exhibits a strong Anglo- American influence, the legal system and its procedure remain firmly grounded in the civil

280 See, 4.2.3. 187

Rosevear — Judicial Interpretation of Social Rights law tradition. And, in this respect, there is generally not a clear line of reasoning and decisions in the sense thought of by Anglo-American legal scholars. This is the case for at least two reasons. The first is the lack of a functional system of case reporting that would enable various decisions to be tracked in order to determine if their reasoning and decisions had been upheld, ignored, or outright rejected. This is particularly problematic in a jurisdiction with dozens of autonomous or semi-autonomous judicial organs handling tens of millions of cases per year.281 The second is the vigorously defended individual autonomy of individual judges at all levels to decide cases according to “the law” as opposed to directives from other judges.282 Even in the absence of a formal doctrine of precedent, it is likely that many, perhaps even most, lower court judges would seek to follow the guidance of decisions from the STF. However, that court’s decisions-making process can make this somewhat problematic. When a case formally enters the Court’s docket, one of the Ministers (with the exception of the President of the Court) is randomly assigned as that case’s reporter (relator). The reporter is responsible for moving the case through the Court’s bureaucracy and, if the case is judged by a collegiate body, the reporter must come to the collegiate session with (i) a summary of the facts, which is distributed beforehand to all Justices, and (ii) their written opinion—which is only announced to the rest of the Court during the public session. All deliberation between Ministers is therefore public and at least formally, there is no prior or private discussion of pending cases among the judges.283 After the reporter has issued his opinion, the rest of Ministers issue their own opinions and vote, in reverse order of seniority. These subsequent opinions may be as simple as indicating agreement with the reporter or extremely detailed treatises on the subject. Although Justices can explicitly state that they are following the opinion of this or that colleague,

281 Falcão, interview. 282 Oliveira, “Reforming the Brazilian SFC,” 139–42. 283 In interviews for the Supreme Court Oral History project, some Ministers do mention episodes in which they met prior to hearings—sometimes in an administrative (i.e., non-judicial, non-deliberative) session in the Court’s building, sometimes in their own homes—to discuss important cases or crucial political events that might affect the Court and its decisions. These include the interviews with Justices Carlos Velloso (Fontainha et al, 2015, unpublished interview, on file with the author), Rafael Mayer (Fontainha et al, 2015) and Nelson Jobim (Fontainha et al, 2015, unpublished interview, on file with the author). Other Ministers deny that such meetings occur, and even the Ministers mentioned above do not describe these meetings as regular. 188

Rosevear — Judicial Interpretation of Social Rights there is no formal aggregation of individual opinions into a collective majority opinion.284 As such, even were a judge to seek guidance in precedent, it may well be quite difficult to ascertain the reasoning of the court. For these reasons, the Brazil’s social rights jurisprudence has tended to be individually focused, incapable of directly initiating policy change, and primarily beneficial to those best-positioned to ask the courts for assistance. In recent years, there has been evidence of a willingness on the part of at least some judges to experiment with collectively-driven claims, likely indicating some combination of a diffusion of ideas from other jurisdictions and dissatisfaction with the state’s attempts to address the underlying issues, but these still remain the exception to the rule that Brazilian judges interpret law, they do not make it nor is it their place to question policy choices.

284 For a critical analysis of the STF’s decision-making practices, see Virgílio Afonso da Silva, “Deciding without Deliberating,” International Journal of Constitutional Law 11, no. 3 (2013): 557–584. 189

5 South Africa

5.1 Introduction The Republic of South Africa has the 24th highest population, the 25th largest area, and 30th largest economy in the World.1 It is also the only African member of the G20, has the second largest economy and the fourth highest GDP per capita on the continent, and accounted for 20% of Sub-Saharan African GDP in 2019. It has also averaged slightly more than 3% and GDP growth since 1961, despite over a decade of international sanctions during that period.2 South Africa’s substantial mineral wealth is of note. It is the sixth largest gold producer in the world, accounting for about 5% of annual global production,3 the sixth largest producer of diamonds, accounting for roughly 7% of total annual production,4 and the world’s largest producer of platinum group metals, accounting for 44% of total annual production.5 Like Brazil, it is also one of the world’s most unequal countries. In 2014, the bottom quintile of the population received 2.4% of the total income while the top quintile received 68.2%, meaning the top 20% of the population had an average income 28.4 times greater than the lowest 20%. Moreover, the top 10% of the population received just over half of the county’s total income. This distribution of income also gave South Africa the dubious honor of having the country with the highest estimated Gini (63.0) according to the World Bank.6 Human development in South Africa is also less than ideal: the 2019 UN Human Development Report ranked the country 113th of 188 countries evaluated in terms of

1 “World Development Indicators” (The World Bank), accessed August 6, 2020, https://datacatalog.worldbank.org/dataset/world-development-indicators; “South Africa,” in The World Factbook (Central Intelligence Agency (United States of America)), accessed August 10, 2020, https://www.cia.gov/library/publications/the-world-factbook/geos/sf.html. 2 “World Development Indicators.” 3 T.J. Brown et al., “World Mineral Production, 2012-2016” (British Geological Survey & National Environment Research Council, 2018), 27–29. 4 Ibid., 22. 5 Ibid., 60. 6 “World Development Indicators.”

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Human Development Index (HDI). This placed them between Indonesia and Samoa (tied for 111th) and above Bolivia (114th).7 Rather than a history of military dictatorship, however, South Africa’s past is marred by a deeply racist legalistic program of White-dominated “separate development” known as apartheid.8 This program saw the fragmentation of public administration, the entrenchment of racist ideology and practices in the institutions of the state, and the violation of basic fundamental guarantees associated with the rule of law including near- indefinite detention without charge, torture, and extra-judicial killing.9 The negotiated transition from the National Party-dominated apartheid era toward a representative system of government with universal adult franchise represented a radical change in trajectory for South Africa. Although not entirely peaceful,10 the processes that resulted in the passage of the Interim Constitution in 1993, South Africa’s first fully democratic elections in 1994, and the certification and promulgation of the Final Constitution in 1996 provided an institutional framework within which injustice and inequality could be addressed and the interests of all South Africans represented. The remainder of the chapter is organized as follows. Section 4.2 briefly outlines the history of constitutions and constitution-making in South Africa as well as social rights protections and associated mechanisms for their protection in the 1993 (Interim) and 1996 (Final) Constitutions. Section 4.3 provides an overview of the social and political context of education, housing, and healthcare up to the time of the new constitutional dispensation in 1996. Section 4.4 outlines the historical development of the legal profession and

7 “Human Development Report, 2019: Beyond Income, Beyond Averages, Beyond Today: Inequalities in Human Development in the 21st Century” (United Nations Development Programme, 2019). 8 In accordance with the racial classification scheme employed by Statistics South Africa and standard practice in domestic literature, data pertaining to race is discussed using one or the other of the following two ways. The first is a four-category classification scheme: White; Asian (occasionally Indian); Coloured; and, African (occasionally Black African). The second is a binary classification, in which the White category remains the same and the other three categories—Asian, Coloured, African—are referred to collectively as Black. While this terminology is problematic, the continued use of the previously established categories for the purposes of comparability was felt to be significant enough to warrant their use. 9 See generally, Truth and Reconciliation Commission (South Africa), Final Report, vol. 2 (South Africa, 1998). 10 Ibid. Chapter 7: Political Violence in the Era of Negotiations and Transition (1990-1994); Richard Spitz and Matthew Chaskalson, The Politics of Transition: A Hidden History of South Africa’s Negotiated Settlement (Hart Publishing, 2000). 191

Rosevear — Judicial Interpretation of Social Rights constitutionalism in South Africa, discusses the role of various elements of the legal profession during the apartheid era, develops a portrait of South African judicial culture and introduces several key institutional features that channel judicial decision-making. Section 4.5 discusses the development of South African social rights jurisprudence in relation to the pre-existing judicial culture. A summary and discussion of the findings is presented in section 4.6.

5.2 The 1996 Constitution

5.2.1 Transition to Democracy The South Africa Act, 1910 was the product of several years of negotiations in the wake of the Second Boer War (1899-1902) and established the country as a unified political entity. The country’s political structure was based largely on the Westminster system, consisting of a legislatively sovereign parliament, an executive made up of members of the legislature, and a constituency-based system of electing legislative representatives. Prior to the end of apartheid, there were two subsequent constitutions. The first came in 1961 as a response to South Africa’s expulsion from the British Commonwealth and was effectively a domestication of the South Africa Act, 1910. The second is perhaps best described as a last-ditch attempt to stave off failure on the part of the National Party by creating a tricameral legislative system with separate houses for White, Indian, and Coloured representation in 1983. The so-called Tricameral Constitution was never accepted as legitimate by most of the population and sparked further protest and civil unrest. This culminated in a “security crisis” that led to the declaration of a state of emergency in a significant portion of the country in July 1985.11 This declaration, inter alia, extended the power to detain and search without warrant to all members of the military, police, and prison authorities, denied those detained the right to a lawyer, and indemnified individuals exercising those powers from civil and criminal liability. The state of emergency was lifted in March 1986, but a countrywide state of emergency was declared in June which was, if

11 Truth and Reconciliation Commission (South Africa), Final Report, vol. 1 (South Africa, 1998), 469ff. 192

Rosevear — Judicial Interpretation of Social Rights anything, more restrictive and contrary to rule of law principles.12 A series of restrictive and concessional legislative measures were also put into place during this time.13 Ultimately, a combination of internal opposition and dissensus coupled with external pressure resulted in the demise of apartheid by the end of the 1980s. This included the relinquishment of control of Namibia, the freeing of political prisoners, and the “normalization” of politics by 1990. An Interim Constitution was passed in 1993 by the tricameral legislature, thus maintaining a formal continuity of constitutional authority.14 That a bill of rights was a necessary component of the new constitution was a matter of near unanimous agreement. The content of such a bill, however, was not. Indeed, the African National Congress (ANC), the National Party, the Democratic Party, and the South African Law Reform Commission all drafted and presented proposals for such a bill during the negotiations leading up to the Interim Constitution.15 Much of the concern related to the how expansive the bill of rights in an interim constitution should be, as there was a general recognition that whatever form it took in that constitution would almost certainly serve as the foundation for the bill of rights in the final constitution.16 While a many of the general and transitional features of South Africa’s post- apartheid political landscape were settled in the 1993 Constitution, a number of particulars still required operationalization in the final constitution. In addition to the requirement that it had to comply with the thirty-four Constitutional Principles laid down in Schedule 4 and be approved by the Constitutional Assembly, the certification of its compliance with the Constitutional Principles outlined in the Interim Constitution by the Constitutional Court was also required.17 This requirement and the certification decision itself are interesting for

12 Alan Cowell, “State of Emergency Imposed Throughout South Africa; More Than 1,000 Rounded Up,” The New York Times, June 13, 1986, sec. World. 13 Truth and Reconciliation Commission (South Africa), Final Report, 1998, 1:469ff. 14 Hugh Corder, “Constitutional Reform in South African History,” in The Quest for Constitutionalism: South Africa Since 1994, ed. Veronica Federico, Romano Orrù, and Hugh Corder (Ashgate, 2014), 182–84. 15 “The Bill Proposed by the South African Law Commission” (South African Law Commission, 1989), https://www.nelsonmandela.org/omalley/index.php/site/q/03lv01538/04lv01584/05lv01599.htm. 16 Spitz and Chaskalson, The Politics of Transition ch. 13. 17 “Constitution of the Republic of South Africa, 1993,” Act No. 200 of 1993 § (1994) art. 71 ; see also, Certification of the Constitution of the Republic of South Africa, [1996] ZACC 26 (1996) paras. 14-19. 193

Rosevear — Judicial Interpretation of Social Rights a number of reasons, not least of which are its novelty and the fact that the Court actually returned the final draft to the Assembly for revisions. The Constitutional Assembly adopted the final text of the Constitution on 8 May 1996.18 After hearing arguments during the first half of July, the Court issued a 291 page decision on 6 September 1996.19 In that decision, the Court took issue with nine provisions of the document and declined to certify the its compliance with the Constitutional Principles. The concerns of the Court included provisions which appeared to shield certain ordinary statutes from constitutional review and the apparent absence of an “entrenched” bill of rights, insofar as it was not clear that amending it required a supermajority.20 Despite these concerns, the Court was quick to express its opinion that the Assembly had, “drafted a constitutional text which complies with the overwhelming majority of the requirements,”21 and that the issues identified, while important, were easily corrected. After subsequent deliberation, the Constitutional Assembly passed an amended version of the Constitution on 11 October 1996 and in a 131-page judgment issued on 4 December 1996 the Constitutional Court certified the new Constitution’s compliance with the Constitutional Principles.22 The Constitution came into force on 4 February 1997. The Constitution contained 243 articles divided into fourteen chapters and seven schedules totalling approximately 45,000 words and taking up 147 pages in the Government Gazette. The preamble of this constitution prioritized four key goals: (i) reconciliation and the development of a society based on democracy, social justice, and human rights; (ii) democracy and the rule of law; (iii) improving the quality of life for all, particularly children; and, (iv) returning South Africa to “its rightful place as a sovereign state in the family of nations.”23

18 George Devenish, “Constitutional and Political Developments,” South African Human Rights Yearbook 7 (1996): 29. 19 Certification Case, [1996] ZACC. 20 Ibid. at para. 482. 21 Ibid. at para. 483. 22 Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, [1996] ZACC 24 (1996) [Second Certification Case]. 23 “Constitution of the Republic of South Africa, 1996” (1997) preamble. 194

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In terms of political structure, the Constitution recognizes national, provincial, and local system of governments which are required to operate co-operatively.24 In practice it favors a stronger central government in several ways. For example, in the case of conflict between national and provincial legislation in an area of concurrent jurisdiction, national legislation prevails.25 Additionally, the federal Parliament retains the sole authority to amend the Constitution as well as the capacity to intervene in an area of sole provincial competence to address matters of national security, economic unity, national standards or minimums, or “to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.”26 Similarly, the national executive has the power to directly intervene in provincial affairs “When a province cannot or does not fulfill an executive obligation in terms of legislation or the Constitution.”27 The federal legislature (Parliament) is bicameral, with the lower house (National Assembly) elected on the basis of population and the upper house (National Council of the Provinces) being composed of ten representatives from each province. The executive branch consists of the President, elected from the ranks of the National Assembly, as well as a Deputy President and as many Cabinet Ministers as they deem necessary, all of which are filled at the discretion of the President from the ranks of the National Assembly.28 Both Cabinet and the President are required to maintain confidence of the National Assembly.29 Key areas of concurrent jurisdiction include basic and secondary education, health services, housing, regional planning and development, and welfare services.30 Matters of exclusive provincial competence are generally restricted to provincial matters relating to planning,

24 Ibid. ss. 40-41. 25 Ibid. s. 146. 26 Ibid. s. 44. 27 Ibid. s.100(1). 28 The President can appoint a maximum of two members of Cabinet who are not members of the National Assembly. Ibid. s. 91(3)(c). 29 Ibid. s. 102. The structure of the provincial executive and legislative branches are effectively the same as that of their national counterparts excepting the absence of an upper house, while the executive and legislative authority of local governments are vested in municipal councils. 30 Ibid. schedule 4, part A. 195

Rosevear — Judicial Interpretation of Social Rights culture, recreation, sport, and roads as well as the oversight of matters that are primarily the responsibility of local government.31

5.2.2 Formal Guarantees Sections 7 through 39 of the 1996 [Final] Constitution make up the Bill of Rights, an expansive chapter detailing a generous set of civil, political, social, and economic rights as well as provisions relating to their interpretation and enforcement. The Bill of Rights is held to be, “a cornerstone of democracy in South Africa,”32 and requires the state to “respect, protect, promote and fulfill” the rights contained therein,33 subject to the limitations outlined within the rights themselves and those established in a general limitations clause. The overarching requirement for such a limitation is that it must be “reasonable and justifiable in an open and democratic society.”34 The language used is broadly similar to that used a decade and a half previously in s. 1 of Canada’s Charter of Rights and Freedoms, which stipulates that the rights it entrenches are sacrosanct “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”35 The Bill of Rights was and is notable for its extensive treatment of social rights. All South Africans are accorded the right to a basic education and to higher-level education. Which, with respect to the latter, “the state, though reasonable measures, must make progressively available and accessible.”36 The right to a basic education, however, is not

31 Ibid. sched. 5. 32 Ibid. s. 7(1). 33 Ibid. s. 7(2). 34 Ibid. s. 36. 35 “Schedule B to the Canada Act 1982, (U.K.) 1982,” c. 11 § (1982). The Canadian jurisprudence also appears to have influenced the drafting of South Africa’s limitations clause. In a 1986 decision, the Supreme Court of Canada articulated a four-part test used to determine whether the abrogation of a Charter right could be justified under s. 1, the stages of which bear a marked similarity several of the specific factors to be considered under s. 36(1) of the South African Constitution. Once the existence of a rights violation had been determined, the courts were then to consider whether the objective of the law causing the violation was a “pressing and substantial” one, if the measures taken were rationally connected to that objective, if the means chosen to achieve that objective minimally impair the right in question, and whether the deleterious effect of the infringement is disproportionate compared to the importance of the objective. See, R v Oakes, [1986] 1 S.C.R. 103 (1986) paras. 69-71. 36 Constitution of the Republic of South Africa, 1996, 1997 s. 29(1)(b). 196

Rosevear — Judicial Interpretation of Social Rights internally qualified. At the same time, there is no requirement that basic education be made freely available to all.37 The section also requires that education be made available in any of the Country’s eleven official languages where it is “reasonably practicable” to do so,38 and entrenches the right to establish private educational institutions. Housing is dealt with in s. 26, which stipulates that “everyone has the right to have access to adequate housing” and requires the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.” In addition to this, s.26(3) mandates judicial oversight of all eviction proceedings and requires the court to consider “all the relevant circumstances”—a category which has been defined quite broadly in the jurisprudence—before permitting eviction or demolition to occur. Access to health care, in addition to food, water, and social security, is guaranteed in s. 27. Responsibility is clearly laid at the feet of the state, but only insofar as it is required to progressively realize the right. Subsection three, however, specify that emergency medical treatment cannot be denied to anyone. In addition to these generally applicable rights, section 28 guarantees the right of every child, defined as a person under the age of 18, to “basic nutrition, shelter, basic healthcare services and social services” and stipulates that “A child's best interests are of paramount importance in every matter concerning the child.” Unlike the rights entrenched in ss. 26, 27, and 29, however, children’s rights are not internally qualified. Like the rest of the rights outlined in the Bill of Rights, however, they are subject to the Constitution’s general limitation clause. Overall, the final (1996) constitution provided a more expansive and explicit set of social rights guarantees that did its interim (1993) predecessor. Specifically, it included articles relating to health, housing, social security, and higher education that had previously been absent or restricted in application to youth. With respect to the three rights that are the focus of the present analysis, each specifies a core element not subject to limitation

37 Stuart Woolman and Michael Bishop, “Chapter 57: Education,” in Constitutional Law of South Africa: Commentary, ed. Stuart Woolman and Michael Bishop (Juta, 2014), 5. 38 The official languages of South Africa are Sepedi, Sesotho, Setswana, isiSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. Constitution of the Republic of South Africa, 1996, 1997 s. 6(1).

197

Rosevear — Judicial Interpretation of Social Rights except through the general limitations clause—basic (or primary) education, non-eviction, and emergency medical treatment—as well as a more expansive construction of the right, which the state’s obligations to fulfill are subject to internal limitations relating to progressive realization via legislative and other measures subject to available resources.

5.2.3 The Judiciary and the Judicial Services Commission The fate of South Africa’s sitting judges at the time of transition was a matter of some debate.39 As the post-apartheid era began in 1994 there were 166 judges in South Africa, 161 of whom were White men.40 All had all been appointed by the National Party.41 From the perspective of public opinion, the perceived complicity of the judiciary in the implementation and maintenance of apartheid could present a serious challenge to the legitimacy of the new regime. To be sure, there were numerous instances in which judges circumvented or at least mitigated the effects of the more egregious laws and activities of the state’s agents—particularly during the state of emergency—but there were many more instances when they could not or, more troublingly, did not do so.42 In addition to this, the lack of diversity on the bench was concerning in terms of both symbolism and the positive impact a diversity of experiences and perspectives has on the development of jurisprudence.43 The scale of under-representation is astounding: White men held 97% of judgeships but accounted for 5.4% of South Africa’s population at the time.44 There were also serious doubts about the willingness and ability of the current Bench to give effect to the new constitutional dispensation, with its subjugation of

39 Interestingly, however, this does not appear to have been a concern at all in Brazil during the preparation of the 1988 Constitution. 40 Francois du Bois, “Judicial Selection in Post-Apartheid South Africa,” in Appointing Judges in an Age of Judicial Power, ed. Kate Malleson and Peter H. Russell (University of Toronto Press, 2006), 287. 41 During this era, judicial appointments were made by the government of the day. Candidates were not subject to screening or confirmation hearings. 42 Raymond Wacks, “Judges and Injustice,” South African Law Journal 101 (1984): 264; D.D. Mokgatle, “The Exclusion of Blacks from the South African Judicial System,” South African Journal on Human Rights 3 (1987): 48, https://doi.org/10/ghdscc; Jeremy Sarkin, “The Political Role of the South African Constitutional Court,” South African Law Journal 114 (1997): 134. 43 See e.g., Mokgatle, “The Exclusion of Blacks from the South African Judicial System.” 44 52.1% of the total population was female and 89.0% were not White: African/Black, 76.5%; Coloured, 8.8%; Indian/Asian, 2.7%; Unspecified, 0.9%. “South Africa Census, 1996” (Statistics South Africa, 1996). 198

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Parliament to the Constitution and articulation of a diverse and varied set of rights. Judges of that era were steeped in formalism and parliamentary sovereignty; it was unclear if they would be either willing or able to take up the more active role demanded by the new constitution.45 However, with respect to the latter point, there were few South African legal professionals of any type with experience in this area.46 On the other hand, two principled considerations suggested continuation in office. First, provided one accepts the standard, doctrine-oriented explanation of much of the judicial passiveness during the apartheid era, the judges should have had no issue interpreting a new, more robust liberal-constitutional order. In the words of Hugh Corder:

if you’re a deep-seated positivist and the grundnorm changes, the basic norm of your legal system changes to being a constitutional democracy, you just sail straight on and you implement it. And, there are some examples of judges who were the most positivist and unquestioning under apartheid and the security laws embracing the new democracy with a very warm embrace and being quite outspoken and tough on the executive post-apartheid.47

Second, as demonstrated by the passage of the 1993 Constitution by the dubiously legitimate tricameral legislature, there was a strong urge for legal continuity and reconciliation, a goal that continuity in the judiciary would further.48 Ultimately, whatever concerns the various parties may have had about the judges were overcome by some combination of principle and two key practical considerations: the difficulties that would arise from putting legal proceedings on hold for the six or more months it would take to individually review and approve the activities of each judge and/or select and appoint a new batch of judges and the fact that there would be very few qualified candidates if all the “old” judges were excluded from consideration.49 In the end, the decision was to maintain the current judiciary—subject to their swearing of an oath to

45 Hugh Corder, “Judicial Authority in a Changing South Africa,” Legal Studies 24, no. 1–2 (2004): 260–61, https://doi.org/10/ftz2jp. 46 As Spitz and Chaskalson note, “The simple fact was that South African lawyers had had no real experience of sovereign bills of rights prior to the Interim Constitution.” The Politics of Transition, 255. 47 Hugh Corder, April 28, 2016. 48 Corder, “Judicial Authority in a Changing South Africa,” 260–61. 49 Ibid. 199

Rosevear — Judicial Interpretation of Social Rights uphold the new constitution50—but place the interpretation of the Constitution in the hands of the newly created, specialist constitutional court. All sitting judges swore the oath, and the judges of apartheid era South Africa became judges of the new constitutional dispensation.51 While the continuation of the judges already in office was eventually deemed acceptable, the practice of appointing predominantly White judges was not. In the words of Dolly Mokgatle, at the time a research officer at the University of The Witwatersrand’s Centre for Applied Legal Studies,

If confidence is to be restored in the South African judicial system, it is essential that every effort be made to integrate both the Supreme Court bench and the magistracy. Until this is done the majority group in South Africa will continue to feel excluded from the administration of justice— with disastrous long-term consequences for South Africa.52

Similarly, CRM Dlamini, Advocate and Dean of the University of Zululand Faculty of Law, argued that a racially diverse judiciary was necessary if the legal system was to be credible in the Black community.53 In short, the desire to reverse the influence of political and racial considerations that were frequently evident in apartheid-era judicial appointments was a principal concern. This issue became even more pressing over the course of the negotiations regarding the Final Constitution, as it became apparent that the judiciary was going to have a great deal of power under the new dispensation.54 However, as the legal profession, among others, was quick to point out, the desire for a judiciary that was representative of South

50 Constitution of the Republic of South Africa, 1993 s. 241. The oath was laid out in Schedule 3: I, A.B., do hereby swear/solemnly affirm that I will in my capacity as Judge of the Supreme Court/Constitutional Court of the Republic of South Africa uphold and protect the Constitution of the Republic and the fundamental rights entrenched therein and in so doing administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the Law of the Republic. (In the case of an oath: So help me God.) 51 Corder, “Judicial Authority in a Changing South Africa,” 260–61. 52 Mokgatle, “The Exclusion of Blacks from the South African Judicial System,” 51. 53 C.R.M. Dlamini, “The Appointment of Blacks as Judicial Officers,” Consultus 3, no. 1 (1990): 31. 54 Morné Olivier and Cora Hoexter, “The Judicial Service Commission,” in The Judiciary in South Africa, ed. Cora Hoexter and Morné Olivier (Juta, 2014), 155–57. 200

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Africa’s racial diversity needed to be balanced with the importance of one composed of highly skilled and experienced jurists capable of navigating existing law and the new constitution in an effective and efficient manner.55 In an attempt to balance these concerns, the interim constitution specified the creation of a Judicial Services Commission (JSC) tasked with, amongst other duties, the selection of judges.56 Not fully settled until the 1996 Constitution, the JSC is populated by a mix of representatives of the legal profession and political appointees, representing a middle ground between total judicial or political control.57 One the more notable features of the JSC is its size, something many have argued makes it an unwieldy decision-making body.58 It is composed of thirteen “core” members and ten political appointees. The core members are the Judge President of the Constitutional Court, who acts as Chair, the Judge President of the Supreme Court of Appeal, one Judge President of a Provincial Division, the national Justice Minister, two advocates, two attorneys, one professor of law, and four appointees of the President of the Republic. Six of the political appointees are representatives from the National Assembly, three of whom must be from opposition parties. The other four are delegates of the National Council of Provinces. In addition, when the JSC sits to consider a matter specific to a provincial high court (e.g., the appointment of a judge to that court), the relevant provincial premier and judge president sit on the Commission.59 The influence of the JSC varies according to the position in question. In the case of Constitutional Court judges, the JSC provides the President of the Republic a shortlist with three more names than the number of open positions from which they are to appoint the appropriate number of judges. In theory, the President of the Republic can decline to fill the position(s) from the shortlist although they must provide written reasons for doing so.

55 E.g., “Editorial: The Appointment of Judges,” De Rebus, no. 274 (October 1990): 679–80; Des Williams, “Affirmative Action and the Legal Profession,” De Rebus, no. 288 (December 1991): 892–94. 56 du Bois, “Judicial Selection in Post-Apartheid South Africa,” 283. 57 Ibid., 285. 58 Olivier and Hoexter, “The Judicial Service Commission,” 198. 59 “Constitution of the Republic of South Africa, 1996,” Government Gazette (Republic of South Africa) 378, no. 17678 (December 18, 1996): [1]-150 s.178(1); see also, Pierre De Vos and Warren Freedman, eds., South African Constitutional Law in Context (Oxford University Press Southern Africa, 2014), 229–37. 201

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However, this has not yet occurred. If it were to occur, the JSC would reconvene and provide a second shortlist, from which the President would be required to fill the seat(s). With respect to the selection of the judge presidents and deputy judge presidents of the Constitutional Court and Supreme Court of Appeal, however, the JSC is only one of several groups consulted.60 The remainder of high court appointments—including the selection of provincial judge presidents—are effectively made by the JSC directly using a single procedure: a call for applications is put forth, candidates fill out detailed questionnaires, a subcommittee of the JSC compiles a short list of candidates to be interviewed, and the plenary body— gathering in April and October of each year—deliberate and make recommendations. These recommendations—as opposed to a shortlist of potential appointees—are sent to the President who must appoint them.61 While the process is substantially more transparent than its predecessor and is generally regarding as having contributed to a more representative South African judiciary, the JSC has been criticized on two fronts. The first criticism relates to the consistency of the questions posed, particularly their quantity and intensity. The interviews can vary in length from less than half an hour to more than two hours and the nature of the questions can be highly unpredictable, ranging from questions about procedure to inquiries into judges’ personal lives.62 Hugh Corder characterizes the first decade of JSC interviews as varying in intensity, but generally polite and even handed. In the latter half of 2009, however, he identifies a shift toward “a more intrusive and occasionally aggressive set of questions relating to the transformation of the justice system.”63 Indeed, several judges

60 Carmel Rickard, “The South African Judicial Service Commission,” in Judicial Reform: Function, Appointment and Structure (Centre for Public Law, University of Cambridge, 2003); Constitution of the Republic of South Africa, 1996, 1997 art. 175. 61 Hugh Corder, “Appointment, Discipline and Removal of Judges in South Africa,” in Judiciaries in Comparative Perspective, ed. H. P. Lee, Martin L. Friedland, and Kent Roach (Cambridge University Press, 2011), 99–116. 62 Olivier and Hoexter, “The Judicial Service Commission,” 175–81; Kate Malleson, “Assessing the Performance of the Judicial Service Commission,” South African Law Journal 116 (1999): 43–44. 63 Corder, “Appointment, Discipline and Removal,” 103–4. 202

Rosevear — Judicial Interpretation of Social Rights interviewed during the course of my research indicated that either colleagues or they themselves had found the experience trying and would be reluctant to undergo it again. The second major criticism of the process is that while judges’ interviews are public, the JSC’s deliberations are not. In conjunction with some notable non-selections,64 this has led to considerable debate about the criteria used to select judges. In addition to professional legal experience, the 1996 Constitution specifies that judges must be “fit and proper” persons and that “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”65 The parameters of both guidelines, however, accord the JSC a substantial amount of discretion. Its use of that that discretion, particularly with respect to a lack of transparency in regard to the weight accorded the various criteria they employ and a failure to give (convincing) reasons for their decisions, has been the subject of significant criticism and even litigation in recent years.66

5.2.4 The Constitutional Court As noted above, an additional means of addressing concerns regarding the pre- existing judiciary came in the form of a newly created Constitutional Court. Initially discussed prior to the start of the Kempton Park talks in December 1991, the idea that there should be some type constitutional court was generally agreed upon.67 However, its composition, position within the judicial hierarchy, and the scope of its powers were all matters of substantial debate.68 Ultimately, the ANC and National Party agreed on a separate court with eleven members, with wide-reaching constitutional jurisdiction and the

64 Dennis M. Davis, “Judicial Appointments in South Africa,” Advocate 23, no. 3 (2010): 42. Two particularly notable non-appointments are those of Jeremy Gauntlett and Geoff Budlender. 65 1996 Constitution, s.174. 66 E.g., Allison Tilley, “Why Judges Matter,” Advocate 30, no. 1 (2017): 41–48; Judicial Service Commission v Cape Bar Council, [2012] ZASCA 115 (2012) affirming 2012 (4) BCLR 406 (WCC); Helen Suzman Foundation v Judicial Service Commission and Others, [2016] ZASCA 161 (2016) affirming [2014] ZAWCHC 136. 67 Spitz and Chaskalson, The Politics of Transition chapter 11. 68 “Constitutional Models: Summary of Report” (Pretoria [South Africa]: The Commission, 1991), 206–10; “Editorial: The Courts in a New Dispensation,” Consultus 5, no. 1 (1992): 2; “Twelfth Report of the Technical Committee on Constitutional Issues to the Negotiating Council” (South Africa, September 2, 1993)3.7(a) and (c), 7.5-7.7; Spitz and Chaskalson, The Politics of Transition, 193–95. 203

Rosevear — Judicial Interpretation of Social Rights existing apex court was given no constitutional jurisdiction. The ordinary courts were given jurisdiction over constitutional violation by the central government, disputes between provinces and local governments and the constitutionality of provincial bills (but not acts of Parliament). 69 Initially, the jurisdiction of the Constitutional Court was limited to constitutional matters only, with the Supreme Court of Appeal (formerly known as the Appellate Division of the High Court of South Africa) remaining the apex court for all non-Constitutional matters. However, the difficulty of drawing such a distinction became apparent as the jurisprudence developed. As a result, the role of President of the Constitutional Court and Chief Justice of South Africa were fused in 2001 and the head of the Constitutional Court formally became the head of the South African judiciary in 2013.70

5.2.5 Constitutional Protection Mechanisms Several provisions of the 1996 Constitution speak directly to the realization of the Bill of Rights, including social rights.71 As noted above, s. 7 requires the state to “respect, protect, promote and fulfill” these rights. The Bill of Rights is also broadly applicable to organs of the state and to persons, both natural and legal.72 Section 33 provides everyone with a right to just administrative action, including the right to written reasons, and s. 34 guarantees a right of access to the courts, “or, where appropriate, another independent and impartial tribunal or forum.” The 1996 Constitution is also expansive in terms of standing. In addition to individuals acting in their own interests, both associations acting in the interests of their members and “anyone acting in the public interest” have the right to approach the courts with an allegation that a right contained in the Bill of Rights either has been or is under threat of being infringed.73

69 Spitz and Chaskalson, The Politics of Transition chapter 11. 70 “Constitution Sixth Amendment Act of 2001” (2001); “Constitution Seventeenth Amendment Act of 2012” (2013). 71 See generally, De Vos and Freedman, South African Constitutional Law in Context chs. 9 and 16. 72 Constitution of the Republic of South Africa, 1996, 1997 s. 8. 73 Ibid. s. 38. 204

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In contrast to Latin American constitutions guaranteeing social rights, the 1996 South African Constitution does not include a mechanism for democratizing and expediting the judicial consideration of allegations of rights violations. In Colombia, for example, a summary legal procedure, tutela, allows individuals to petition courts for the protection of their rights.74 The procedural requirements for filing such claims are also quite liberal, to the point that individuals frequently file petitions without the aid of an attorney and can do so, at least conceivably, on a napkin.75 The petitions also have a priority status: the judge to whom they are submitted must take some positive action within ten days of receipt.76 Several scholars have emphasized the importance of this feature of the Constitution in the development and expansion of right to health litigation in the country, pointing out that its flexibility has allowed the Colombian Constitutional Court to play a role in shaping the nature of the cases it hears, monitoring the implementation of its decision of cases,77 and credibly threatening sanctions for those who fail to comply.78 This should not be taken to suggest that the expeditious handling of rights claims is not possible in South Africa. Although not constitutionally mandated, South Africa’s high courts maintain an “urgent roll” to deal with pressing matters. Although the procedures and methods vary, this practice designates a particular judge to triage allegedly urgent filings to determine if they are indeed urgent, whether they can be fairly dealt with ex parte or if service of the affected parties is required, and if any interim orders are appropriate. 79

74 Constitution of Colombia, 1991, art. 86. Regarding the prevalence of this type of procedure in Latin America see, Allan R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of the Amparo Proceeding (Cambridge University Press, 2008). 75 Katharine G. Young and Julieta Lemaitre, “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa,” Harvard Human Rights Journal 26 (2013): 185. 76 Alicia Ely Yamin, Oscar Parra-Vera, and Camila Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?,” in Litigating Health Rights: Can Courts Bring More Justice to Health?, ed. Alicia Ely Yamin and Siri Gloppen, Harvard Law School Human Rights Program Series (Harvard University Press, 2011), 107–8; Brewer-Carías, Constitutional Protection, 228–31. 77 Hon. Manuel José Cepeda-Espinoza, “Transcript: Social and Economic Rights and the Colombian Constitutional Court,” Texas Law Review 89, no. 7 (2011): 1700. 78 Young and Lemaitre, “The Comparative Fortunes of the Right to Health,” 185. 79 Justice Andre Blignault, April 29, 2016; Justice Mokgoatji Josiah Dolamo, May 3, 2016; Zeenat Sujee, May 5, 2016. 205

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5.3 Social and Political Context

5.3.1 Education South Africa’s apartheid-era Black education system was intended to produce a cheap labor force, competent to perform menial or basic industrial work, but not a particularly “educated” population.80 In short, “priority was given to quantity rather than to quality.”81 With respect to higher education, non-Whites were effectively excluded from all universities other than Fort Hare and the University of South Africa (UNISA) in 1959.82 The same legislation also established three Black colleges—Xhosa College in the Cape, Zulu College in Natal and Sotho Tswana College in the Transvaal. These colleges were funded out of the Bantu Education Fund, and the Minister of Bantu Education had the ability to select all staff, regulate working conditions and remuneration, regulate the constitution and function of “the boards of faculties and of any other aspect of faculty and departmental organization,” and to dismiss staff for cause, including criticism of the government.83 Within the Black community, there was significant opposition to segregated schooling, particularly with respect to the content and intent of Black curriculum, which was characterized as Eurocentric, over emphasizing rote memorization, and a conscious attempt to train Blacks for lower grade jobs in a racially stratified economy.84 The core problems with public education during the apartheid era were a system of administration fragmented along racial and the inequality of funding and opportunities within the system. As was the case with healthcare infrastructure and staffing, the education system was characterized by overprovision in White institutions and underprovision for

80 International Commission of Jurists, “South Africa and the Rule of Law” (Geneva: International Commission of Jurists, 1960), 77, http://www.icj.org/south-africa-and-the-rule-of-law/; “Bantu Education Act No. 47 of 1953,” Act § (1953). 81 M. P. Mncwabe, Post-Apartheid Education: Towards Non-Racial, Unitary, and Democratic Socialization in the New South Africa (University Press of America, 1993), 4. 82 “Extension of University Education Act,” Act No. 45 of 1959 § (1959). 83 International Commission of Jurists, “South Africa and the Rule of Law,” 78–80; Padraig O’Malley, “1959. Extension of University Education Act No 45,” The O’Malley Archives (blog), accessed February 18, 2020, https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv01538/04lv01828/05lv01829/06lv01898.htm. 84 Vusi S. Mncube and Nomanesi Madikizela-Madiya, “South Africa: Educational Reform - Curriculum, Governance and Teacher Education,” in Education in Southern Africa, ed. Clive Harber (Bloomsbury Academic, 2013), 166–68. 206

Rosevear — Judicial Interpretation of Social Rights everyone else.85 This contributed to widespread boycotts by Black students to the extent that on any given day estimates suggest that for periods in the 1980s, as many as 200,000 students throughout the country were boycotting classes at any one time.86 With regard to fragmentation, in 1990 there were nineteen departments of education: one overarching financing and oversight authority, five administering White education (one national body and four provincial), one each for Asian and Coloured education, and eleven for Black education—one for each of the ten homelands and one for the rest of South Africa.87 Shortages of qualified Black teachers and facilities for training Black teachers was an ongoing issue during the transitional era, particularly with respect to math, science, and vocational training.88 The De Lange Commission report clearly identified this issue and provided a series of recommendations that were intended to redress the bulk of the concerns by 1991. Unfortunately, the report’s recommendations were not followed and, as a result, Black education was worse in 1991 than it had been in 1981.89

5.3.2 Healthcare Prior to 1920, health care provision in South Africa was the domain of private actors and philanthropic organizations. Private hospitals in South Africa were initially limited to mission hospitals and industry-specific institutions (e.g. on-site facilities at mines). Private insurance (“medical schemes”), introduced in 1889, was also available, but predominantly associated with employment and remained White-only until the 1970s.90 Public health care provision had been considered in 1928 and 1935 for urban workers in the formal economy.

85 Pam Christie, “From Crisis to Transformation: Education in Post-Apartheid South Africa,” Australian Journal of Education 36, no. 1 (1992): 38, https://doi.org/10/ghdr47. 86 Mncwabe, Post-Apartheid Education, 26. 87 Ibid., 34, 47–48. 88 Christie, “From Crisis to Transformation,” 42; Mncube and Madikizela-Madiya, “South Africa: Educational Reform,” 166. 89 Mncwabe, Post-Apartheid Education, 9–24. 90 Hoosen Coovadia et al., “The Health and Health System of South Africa: Historical Roots of Current Public Health Challenges,” The Lancet 374, no. 9692 (2009): 826, https://doi.org/10/fcgmd9; Susan Giaimo, Reforming Health Care in the United States, Germany, and South Africa, Perspectives in Comparative Politics (Palgrave Macmillan, 2016), 149, https://doi.org/10.1057/9781137107176_4. 207

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Some initial steps were taken in the early 1940s,91 but this ended when the National Party came to power in 1948.92 Private health insurance was beyond the means of most Blacks and many employers did not offer health benefits to Black employees. Although public hospitals had a sliding scale of payment based on income, many South Africans were still unable to afford health services.93 Even before the National Party came to power in 1948, most of South Africa’s hospitals were racially segregated. This segregation was formalized in the early 1950s.94 Unsurprisingly, there continued to be vast disparities between the health care services available to Blacks and Whites, largely the result of conscious legislative and policy choices on the part of the National Party government. Public hospitals for Whites were well-funded and underutilized; those for Blacks were underfunded and overcrowded.95 The provision of healthcare to Blacks was complicated by a lack of water, adequate shelter, electricity, waste treatment, hospitals, and schools in the informal settlements to which to which they were often compelled to move in search of employment.96 As apartheid ended, there were serious problems with South Africa’s health care system. First, as with the education system, apartheid-era government administration structure had resulted in a fragmented public health system. In 1991 there were fourteen separate departments of health, one for each of the four “races” as well as one for each of the ten homelands. There were also four provincial administrations and 780 local health authorities. All of these were responsible for some combination of hospitals, clinics, and other health care services.97 This structure created substantial inefficiency in the provision

91 S. R. Benatar, “Economics of Health in South Africa: Past, Present and Future Medicine and Justice,” Medicine and Law 8 (1989): 112; Giaimo, Reforming Healthcare, 168–69. 92 Benatar, “Economics of Health in South Africa,” 112; Giaimo, Reforming Healthcare, 168–69. 93 Apartheid Medicine: Health and Human Rights in South Africa, AAAS Publication 90-09S (Washington D.C.: American Association for the Advancement of Science, 1990), 32. 94 Jerold L. Taitz, “The Right to Health: Medical Treatment and Medical Law in South Africa,” South African Human Rights Yearbook 3 (1992): 166; “Reservation of Separate Amenities Act,” Act No. 49 of 1953 § (1953). 95 Apartheid Medicine, 29–31. 96 Ibid., 5–8. 97 Ibid., 6; Taitz, “Right to Health,” 166–67. 208

Rosevear — Judicial Interpretation of Social Rights of services as a result of, inter alia, overlapping responsibilities and unclear lines of accountability. Substantial disparity in terms of priorities and resource allocation was another key issue. One concern was the urban-rural divide. During the latter half of the 1980s there were 114 doctors per 100,000 people in urban areas and 0.8 in rural areas;98 although the population was roughly evenly split between urban and rural, 95% of the 20,000 registered physicians worked in urban areas.99 There was also a clear disparity in per capita health care expenditures provincially. In 1992/93, the average per capita expenditure on public health care in South Africa was R263.100 However, in the relatively wealthier and “Whiter” provinces such as the Western Cape and Gauteng, it was half-again that much. In the poorer and Blacker provinces, such as the Eastern and Northern Transvaal,101 it was little more than half the national average.102 Similarly, the number of hospital beds (both public and private) per thousand people ranged from a high of 6.0 in Gauteng to a low of 2.1 in Eastern Transvaal, and the number of doctors per 100,000 from 143.8 in the Western Cape to 15.5 in Northern Transvaal.103 As compared to the public healthcare system, the private healthcare was well- funded. In terms of total healthcare expenditures, the allocation to public and private systems was close to even in absolute terms although less than one fifth of the population had access to the private system.104 The racial disparities were even more apparent in terms of access to the private system. As shown in Figure 10, in 1982 more than 75% of Whites had access to private healthcare through membership in medical schemes in contrast to less

98 Benatar, “Economics of Health in South Africa,” 114. 99 Apartheid Medicine, 31. 100 On the basis of currency exchange value, this would have been equivalent to approximately USD 88 at the time. Lawrence H. Officer, “Exchange Rates Between the United States Dollar and Forty-One Currencies” (Measuring Worth, 2020), https://www.measuringworth.com/datasets/exchangeglobal. 101 Present day Mpumalanga and Limpopo, respectively. 102 Di McIntyre et al., “Health Expenditure and Finance in South Africa” (Durban: Health Systems Trust & the World Bank, 1995), 50. 103 Ibid., 18. 104 Apartheid Medicine, 33–34. 209

Rosevear — Judicial Interpretation of Social Rights than 3% of Africans. By 1991, the picture had improved, but the average White individual was still ten times more likely to have access to private healthcare than the average African. In the late 1980s and early 1990s an explicit state policy of privatization saw a doubling of for-profit hospital beds. Between the early 1980s and early 1990s, the proportion of physicians working in the private sector increased from 40% to more than 60%.105 In terms of coverage, in 1992/93 it was estimated that just under 23% of South Africans had some degree of access to the private health sector as a result of private insurance, employment-related coverage, or out of pocket purchases—the last coming predominantly in the form of visits to general practitioners and the purchase of medicine.106

Figure 10. Membership in Medical Schemes by Racial Group, 1982-1991107

1982 1991 Group N (000s) % of Group N (000s) % of Group Africans 485 2.8% 1,524 7.1% Coloureds 673 24.5% 948 29.5% Asians 229 28.0% 329 34.5% Whites 3,474 75.8% 3,490 69.5% Total 4,861 19.0% 6,291 20.4%

The most serious problem with the health care system at the end of the apartheid era was the lack attention to HIV/AIDS. The first reported cases of AIDS in the country came in 1982 and were restricted to the homosexual community. The matter remained one of minimal concern to government through the 1980s. The National Party largely dismissed AIDS as a homosexual disease and the impact of the limited measures they took to address it were hampered by racial segregation.108 However, in the early 1990s there were an explosion of cases in the heterosexual community and dire predictions were being made about the spread of the disease if left unchecked.109 By 1995, it was estimated that

105 Coovadia et al., “The Health and Health System of South Africa,” 826. 106 McIntyre et al., “Health Expenditure,” 27–28. 107 Based on, Ibid., 24–25; Central Statistical Service, South African Statistics 1992 (Pretoria: Republic of South Africa, 1992)“Population Mid-Year Estimates, 1970-1990.” 108 Giaimo, Reforming Healthcare, 158. 109 Taitz, “Right to Health,” 178. 210

Rosevear — Judicial Interpretation of Social Rights approximately 1.8 million South Africans were infected by HIV. This represented a ten- fold increase in just five years.110 Particularly in light of the current scale of the epidemic, one commentator’s suggestion at the beginning of the 1990s, that “the situation regarding AIDS in South Africa appears not to be receiving the attention from government health authorities that it warrants,” 111 seems a tragic understatement.

5.3.3 Housing A principal legacy of apartheid is the geographic segregation of different racial groups. Legislation dictated where people could live based on their race. Non-White groups were assigned areas that were invariably inferior to those assigned to Whites. Black families were restricted to the rural “homelands” or the peri-urban townships, while sending their adult population to work on farms, in the mines, and in the cities. Townships were sited fifteen or more kilometers from the cities, necessitating long and expensive commutes, while Whites lived in low-density suburbs abutting the central business districts and close to work.112 Piecemeal efforts to control and channel “influxes” of non-Whites into urban area through legal means had been made as early as the late 1800s when various town councils and villages in the Cape Colony sought to restrict the settlement of non-White to specific areas outside of the city center known as “locations”—roughly analogous to the apartheid- era townships.”113 Concerted discussions about how to deliver “separate development” of Blacks and Whites in rural areas, control Black migration to urban areas, and create permanently segregated racial areas in urban areas began under Alfred Milner, the High Commissioner for South Africa in the early 1900s.114

110 Jeremy Sarkin, “Health,” South African Human Rights Yearbook 7 (1996): 131. 111 Taitz, “Right to Health,” 181. 112 Stephen Berrisford et al., “In Search of Land and Housing in the New South Africa: The Case of Ethembalethu,” World Bank Working Papers (World Bank, 2008), 1–3. 113 Pauline Morris, A History of Black Housing in South Africa (Johannesburg: South Africa Foundation, 1981), 6. “Locations” were the precursor to townships. 114 Carl Husemoller Nightingale, Segregation: A Global History of Divided Cities (University of Chicago Press, 2012), 222–23. 211

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On coming to power in 1948, the National Party affirmed and expanded existing segregationist measures. Blacks in “White” urban areas were to be considered temporary workers, not entitled to political or social rights.115 During this era, as a means of encouraging uptake of residence in the townships, long-term leases, contingent on continued employment, were available. At the same time, freehold rights were being withdrawn and other measures introduced to remove Blacks from the inner suburbs.116 Despite a variety of short terms measures designed to incentivize Black movement into the townships in order to fulfill labor force needs, “The black man was, in terms of government policy, a temporary worker in the White urban areas. All long-term policies were aimed at the eventual return of all Blacks to their respective homelands.”117

5.4 The South African Legal System

5.4.1 Historical Development The contemporary South African legal system has it roots in Roman-Dutch law. Although its civilian roots remain, the system has been dominated and developed by the English common law since the 1830s. This is the result of the British annexation of the colony during the Napoleonic wars. The British initially maintained the Roman-Dutch legal framework and the pre-existing court structure,118 but were unsatisfied with the administration of justice at the Cape. This lead to a series of incremental changes that transformed the legal system into an adversarial one in which the litigants were the dominant actors and in which proceedings were public and oral.119 The role and status of

115 E.g., “Group Areas Act,” Act No. 41 of 1950 § (1950); and “Native Laws Amendment Act,” Act No. 54 of 1952 § (1952). 116 Morris, A History of Black Housing in South Africa, 42–50. 117 Ibid., 69. 118 C. Graham Botha, “The Early Influence of the English Law Upon the Roman-Dutch Law in South Africa,” South African Law Journal 40 (1923): 396–97; H. R. Hahlo and Ellison Kahn, The South African Legal System and Its Background (Juta, 1968), 237. 119 H.J. Erasmus, “The Interaction of Substantive Law and Procedure,” in Southern Cross: Civil Law and Common Law in South Africa, ed. Reinhard Zimmermann and Daniel Visser (Oxford University Press, 1996), 149; see also, H. J. Erasmus, “The Beginnings of a Mixed System or, Advocates at the Cape During the Early Nineteenth Century, 1828-1850,” Fundamina 21, no. 2 (2015): 219–33, https://doi.org/10.17159/2411- 7870/2015/v21n2a1; Botha, “The Early Influence,” 400; H. R. Hahlo and Ellison Kahn, The Union of South

212

Rosevear — Judicial Interpretation of Social Rights both the judge and the lawyer were fundamentally changed—the judge became a more passive figure, the lawyer a more active one. This era also saw the development of a system of precedent, and the citation of prior decisions probably began sometime soon after 1830 but took some time to become standard practice.120 The British influence on the South African legal system further manifest in the divided bar—advocates who represented clients in court and attorneys who dealt with clients directly, handling various non- litigation matters and briefing advocates where appropriate121—and the selection of judges from the ranks of the senior advocates. The First Charter of Justice also required advocates to have been admitted to a Bar of the United Kingdom, or hold a doctorate in law from Oxford, Cambridge, or Dublin.122 Finally, judges of the time were instructed to conform “as far as might be practicable to the spirit of the law of England.”123 The influence of the British legal tradition was spread throughout what would become South Africa by the migration of Cape Town and Grahamstown lawyers to the booming Kimberley, Pretoria and Johannesburg—attracted by higher fees and a greater volume of work—where they practiced in front of judges who were also frequently from the Cape Colony.124 The British influence on the Transvaal legal system was particularly strong after the second Boer War, as several officials from the Law Department of the Cape

Africa: The Development of Its Laws and Constitution (London: Juta, 1960), 237. Changes included prohibiting the use of torture to make a prisoner confess to a crime (Botha, “The Early Influence,” 397.), opening court proceedings to the public (Ibid., 398.), and the establishment of circuit courts (H. J. Erasmus, “Circuit Courts in the Cape Colony during the Nineteenth Century: Hazards and Achievements,” Fundamina 19, no. 2 (February 2013): 269.). 120 Usage was likely inconsistent as there were no published reports until 1857 and no regular case reporting until 1882. There is also evidence of judicial reference to foreign legal decisions as early as 1828. Hahlo and Kahn, The South African Legal System and Its Background, 324. 121 For the pertinent intents and purposes, South African advocates and English barristers fulfilled equivalent roles, as did South African attorneys and English solicitors. The nature of the profession in South Africa, while still formally divided into Bar and Side Bar, has changed substantially in recent years, particularly with respect to the granting of appearance rights in High Courts to attorneys. See e.g., “Legal Practice Act,” Act 28 of 2014 § (2014). 122 However, the Charter did make provision for the admission of advocates who had practiced at the former Court of Justice (the Raad van Justitie) and the majority of Advocates admitted in the early years of the First and Second Charters of Justice had had some or all of their legal education in Dutch universities. Erasmus, “The Beginnings of a Mixed System or, Advocates at the Cape During the Early Nineteenth Century, 1828- 1850,” 223–27. 123 Botha, “The Early Influence,” 405–6. 124 Albie Sachs, Justice in South Africa (University of California Press, 1973), 48. 213

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Colony were sent there to establish a new judicial system, and “[t]he statutes which they prepared were based largely on Cape models, and in turn these statutes became the basis for the organization of courts and rules of evidence and procedure adopted by the whole of South Africa after Union.”125 In short, the English training and indoctrination of nearly all legal professionals in South Africa, meant that, with a few exceptions in the direction of US Constitutional practice, the dominant legal ethos of the South African legal profession was directly informed by the formalist “Diceyan” orthodoxy that was en vogue in England and Wales at the time. Of significance here is that philosophy’s emphasis on the division been law- making and law-applying and the limited—at best—role for the courts vis-à-vis inquiries into the activities of legislatures and executives, particularly regarding the substance of legislation.

5.4.2 Advocates, Attorneys, and Apartheid The South African Bar saw and sees itself to be a force for good and a defender of social justice. In 1990, the Chairman of the General Council of the Bar of South Africa (GCBSA) asserted that,

Our members have not only contributed to the excellence of our jurisprudence, as practitioners, authors and, when appointed to the Bench, as judges, but have unflinchingly provided representation to all in times of civil unrest, no matter how unpopular the cause. We can be proud of the stand we, as an organised profession, have taken against legislative and executive encroachment on the Rule of Law and in defence of the procedures and substantive rules of our law which protect the individual citizen against excessive State power.126

At the same time, though, he cautioned against complacency and highlighted a need to increase the diversity of the profession and to expand pro bono and reduced-fee services. This, he argued must be done in order to, “dispel the misconception that advocates are money-grabbing practitioners with no sense of public spiritedness, who are largely

125 Ibid., 52. 126 Milton Seligson, “The Bar and Change: A Roadmap for the Way Ahead,” Consultus 3, no. 1 (1990): 6. 214

Rosevear — Judicial Interpretation of Social Rights responsible for the high cost of litigation.”127 Indeed, apartheid South Africa produced a number of notable legal practitioners and institutions that sought, with some measure of success, to bring about a more just and equal South Africa.128 At the same time, much of the legal profession was at least tacitly complicit in the regime. This is, perhaps, no more than can be said about any South African who did not actively oppose apartheid. But, when it is applied to a professional group prides itself on being a defender of justice and fairness, it should be more troubling. Historically, law in South Africa was understood as being either “lawyers’ law” (private law) and “government law” (public law). The former being a respectable product of continuous and undirected evolution brought about by lawyers and supplemented by judges who, in “making” law of this type, are primarily doing so by articulating “law that has already become immanent in society.”129 It may contain elements of public policy, but these are well-established conventions that have developed incrementally and “is ‘already there’ for the courts to identify and apply,” it is not created by the judges themselves. In contrast, government law was, “the product of conscious attempts to implement public programmes, which are designed to regulate some form of human activity, provide some service or execute some plan of public action,” ideally for the advancement of the collective good.130 Except where a body of case law had developed around it, government law was not greatly respected by many South African lawyers—many, in fact, did not consider it to be “law” in the true sense of the word. This lack of respect, according to Baxter, was likely the product of a number of historical developments that resulted in the autonomy of lawyers’ law and lawyers in exchange for “the retreat by lawyers into the realms of legal formalism.”131

127 Ibid., 7. 128 The Legal Resources Centre (LRC) and the Centre for Applied Legal Studies (CALS) are perhaps the most well-know of these institutions. With respect to individuals, names such as Arthur Chaskalson, Geoffrey Budlender, Sidney and Felicia Kentridge, and John Dugard come readily to mind. 129 Lawrence G. Baxter, “Legal Education and Public Policy,” Natal University Law and Society Review 1 (1985): 19. 130 Ibid. 131 Ibid., 21. 215

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The position presented to the Truth and Reconciliation Committee (TRC) by the legal “establishment” bodies with respect to the role of the legal profession in regard to apartheid was heavily informed by a positivist-formalist understanding of the law coupled with some elements of pragmatism.132 The doctrine of parliamentary sovereignty, it was argued, dictated the legal profession’s deference to the legislature and legislative intent. Where possible, particularly in the development of the common law, “lawyers argued for and judges mostly adopted and interpretation that favoured liberty and equity.”133 This, according to the legal establishment, was the most that could be done because,

Any attempt by the judiciary too obviously to circumvent the unjust effects of apartheid measures would, it was argued, have led inevitably (at best) to further legislative steps to reverse such decisions or (at worst) to the overt subversion of the formal independence of the courts and the ‘packing of the Bench.’134

From perspective of the legal profession, then, the record of the judiciary was satisfactory—although not necessarily “good”—despite isolated instances of decisions and conduct that were unjust. Moreover, it was a necessary evil as “an administration of justice and a legal order that preserved a limited degree of impartiality and independence was better, in all circumstances, than a legal system that was completely subservient to the will and whims of the political masters in Parliament.”135 In contrast, submissions by various “alternative” legal organizations such as the Black Lawyers Association (BLA) and the Legal Resource Centre (LRC) were of the opinion that with a few notable exceptions, lawyers and the courts “had co-operated in servicing and enforcing a diabolically unjust political order… [and] the basic fabric of the legal system had been subverted and become rotten with injustice.”136 Relying on the doctrine of parliamentary sovereignty as a rationale for complicity was invalid, they argued, because the validity of the doctrine depends on the existence of a basic respect for

132 The General Council of Bar Associations of South Africa, the Association of Law Societies, and the Attorneys-General. Truth and Reconciliation Commission (South Africa), Final Report, vol. 4, 1998, 95. 133 Ibid., 4:96. 134 Ibid. 135 Ibid., 4:97. 136 Ibid. 216

Rosevear — Judicial Interpretation of Social Rights the rule of law and the presence of democracy, neither of which were truly present under apartheid. Moreover, the record of the judiciary where there was some form of choice was not, in fact, good. Rather, it was clearly and empirically demonstrative of “executive- mindedness.”137 The findings of the TRC largely concurred with the position of the alternative legal community. There were, it found, a small group of legal professionals—including judges, teachers, and students—who, “used every opportunity to speak out publicly and within the profession against the adoption and execution of rules of law that sanctioned arbitrary official conduct and injustice.”138 Moreover, they represented the poor and politically undesirable for little or no money, challenged their students to confront the relationship between law and justice, gave up lucrative commercial work to defend the poor and “exercised their judicial discretion in favour of justice and liberty wherever proper and possible.” 139 But, the Commission also found that one of the reasons the National Party was able to maintain apartheid for as long as it did was the cultivation of an image of legality that provided it with a façade of legitimacy.140 Legal practitioners were held to have facilitated this façade in a variety of ways: attorneys refused to take on politically unpopular clients; prosecutors remained silent regarding police brutality and made use of evidence obtained by torture in arguing their cases; and, advocates defended the legal building blocks of apartheid in civil actions against the government.141 With respect to the conduct of the profession as a whole, the Commission was even more critical.

The organised profession took no effective initiatives to make the administration of justice more accessible to those who could not afford it, not at least until apartheid’s days were numbered. Their complacency in the face of the challenges thrown up by government injustice internally, and

137 Ibid., 4:97–98; for a discussion of the concept of “executive-mindedness” see, Edwin Cameron, “Legal Chauvinism, Executive-Mindedness and Justice--L.C. Steyn’s Impact on South African Law,” South African Law Journal 99 (1982): 38–75. 138 Truth and Reconciliation Commission (South Africa), Final Report, 1998, 4:104. 139 Ibid. 140 Ibid., 4:101. 141 Ibid., 4:100–102. 217

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their defensiveness in international forums when foreign lawyers’ organisations dared criticise, are matters of public record.142

The organized bodies were also criticized for chastening their members if they adopted politically unpopular stances—the General Council of the Bar of South Africa’s expulsion of Bram Fischer, a prominent Afrikaner anti-apartheid activist, was especially noted—and failing to make justice more accessible to those who couldn’t afford it.143 In some regards, the findings of the TRC seem somewhat unfair. For example, to criticize a member of the Bar for appearing for a party in a legal proceeding, no matter how morally detestable their character or position, is to criticize a cornerstone of all (adversarial) legal systems—that everyone deserves representation. Indeed, the position is at odds with the Commission’s own, quite valid, criticism of the attorney’s profession for refusing to represent politically problematic clients. Nevertheless, in its broader strokes, at least, the TRC’s findings appear valid. In sum, a few members of the legal profession and institutions they helped to create contributed to the downfall of apartheid. In addition, a proportion of practitioners worked pro bono or at significantly reduced rates as a means of demonstrating their commitment to their view of law and justice as well as their disagreement with the apartheid regime. Conversely, another portion of the legal profession actively worked to advance apartheid through legislative drafting, and other government work. The majority of the profession, though, at least partly because of the positivist/formalist understanding of the law instilled in them through education and practice, chose to accept the system as it was and operate within it, whether they approved of it, disapproved of it, or tried not to give it much thought. In this respect, there is a strong similarity between legal practitioners in Brazil during the most recent period of military rule and South Africa during apartheid: members of both actively opposed the regime, often at great personal cost, while others facilitated its tenuous legality and claim to legitimacy. The majority, however, simply treated it as something beyond the scope of their profession and, in doing so, abdicated any claim to be

142 Ibid., 4:103. 143 Ibid., 4:102–4. 218

Rosevear — Judicial Interpretation of Social Rights defenders of liberty and justice.144 In the wake of these troubling periods, however, both legal communities—perhaps strategically, perhaps because of rosy retrospection— emphasized the actions of the minority rather than the majority of their members.

5.4.3 The Academy In contrast to the organization of legal education in Brazil and numerous other civil law-based jurisdictions, a sizable proportion of the professoriate in South Africa were (and are) full-time faculty, with both the incentive and time to conduct research. Similarly, there was something of a tradition of scholarly legal writing, at least in terms of doctrine, on the Bench and from practitioners. These things facilitated the production of apartheid-era criticisms of the judiciary and the development of options for post-apartheid approaches to legal reasoning and the judicial role by legal academics and practitioners. A handful of legal scholars directly challenged the impartiality of the judiciary, something which did not sit well with either the government of the day or the legal establishment. Most notably Barend van Niekerk—an advocate at the Johannesburg Bar and a senior lecturer in law at the University of the Witwatersrand—was tried for contempt for publishing work that suggested the existence of racially-biased sentencing practices in South Africa’s courts. He also encouraged judges to minimize the weight of evidence obtained during long-term detention under the security legislation.145 Others went so far as to argue that judges may wish to consider resigning as a symbolic gesture of the fact that they find South Africa’s legal system and the judiciary’s role in implementing it to be morally indefensible.146

144 Geoffrey Bindman, ed., South Africa: Human Rights and the Rule of Law (International Commission of Jurists, 1988), 115–16, http://www.icj.org/south-africa-human-rights-and-the-rule-of-law/. 145 John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 1978), 288– 301; see, B.v.D. van Niekerk, “Hanged by the Neck until You Are Dead,” South African Law Journal 86 (1969): 457–75; B.v.D. van Niekerk, “Hanged by the Neck until You Are Dead,” South African Law Journal 87 (1970): 60–75; and, in response S v. Van Niekerk, 1970 (3) SA 655 (T 1970); the matter is discussed in more detail in “Contempt of Court? The Trial of Barend van Dyk van Niekerk,” Acta Juridica, 1970, 77; H. R. Hahlo, “Scandalizing Justice: The van Niekerk Story,” The University of Toronto Law Journal 21, no. 3 (1971): 378–92, https://doi.org/10/bg8h65. 146 Wacks, “Judges and Injustice.” For a succinct discussion of the various arguments and advocates see, David Dyzenhaus, “Judging the Judges and Ourselves,” South African Law Journal 100 (1983): 496. 219

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Others working from a more doctrinal perspective sought to develop or articulate an approach to adjudication that had space to incorporate rule of law concerns and constitutional values. John Dugard, for example, argued that even absent a set of rigid limitations on state action in written form, South African judges were required to ensure that state actors complied with subordinate legislation and to develop the common law “so that it may keep pace with contemporary conditions of society.”147 Despite the fact that South African judges purported to avoid making policy decisions, he argued, the inherent creative component of statutory interpretation means they did. By denying this and asserting that “theirs’ is not to reason why…,”148 judges and other legal practitioners were neglecting the significance of human dignity, freedom of speech and movement and assembly that, “comprise the value system on which the South African legal system is founded.”149 Hahlo and Kahn’s seminal work on the origins and functioning of the South African legal system offers insight into the ethos of the country’s legal system in the late 1960s. The introductory chapter, Law in General, articulates a clear differentiation between law and ethics. Law, they suggest, is concerned with the interests of the community while ethics are concerned with virtue and the role of the state is the enforcement of the former, but not the latter. This, they argue, should not be taken to suggest that law is not concerned with ethical considerations, but it does require accepting that there will likely always be a gap between law and ethics, the degree and extent of which will depend on “the social order and philosophy of the times.”150 With respect to the judiciary in particular, they state that,

Our courts are courts of law and not of morality. They apply the law as it is and not as according to the moralists it ought to be. A judge may go so far as to say that a person’s behavior, though lawful, was unethical, but he must do justice according to the law, irrespective of what his personal feelings about the morality of the party’s conduct may be.151

147 Dugard, Human Rights and the South African Legal Order, 367. 148 Ibid., 373. 149 Ibid., 374, 367–78. 150 Hahlo and Kahn, The South African Legal System and Its Background, 9. 151 Ibid., 23 (citations omitted). 220

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They do, however, state that when interpreting ambiguous provisions, the courts should and will “prefer a construction that achieves justice to one that leads to injustice.”152 This sentiment is one that was seized on by a number of legal commentators in South Africa to urge judges to defend justice and reject the “executive-minded” approach taken by many judges of the apartheid era. The chapter ends rather presciently by asking whether South African courts could refuse to enforce statutory provisions that are so “outrageously unjust as to fall short of the minimum standards of justice and morality considered basic within Western European civilization.”153 Pre-Second World War German courts, they note, had done so. An answer is not provided as they improvidently conclude that “It is difficult to imagine that the courts of South Africa could ever be faced with this issue.”154 Writing a decade and a half later, van der Vyver makes a similar argument, that the dominant theory of law in South African case law is positivism. This is manifest in a long line of cases distinguishing between morality and law, and the role of the judges as ensuring the enforcement of the latter but not the former.155 At the same time, he argues that the acceptance of certain basic criteria that deal with the legitimacy of the process of law making should be taken more seriously. Nevertheless, most of the legal academy was complicit in the perpetuation of apartheid, largely via an emphasis on positivism,156 a focus on private (“safe”) law,157 and

152 Ibid., 23–24. 153 Ibid., 24. 154 Ibid. 155 J.D. van der Vyver, “Law and Morality,” in Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner, ed. Ellison Kahn (Cape Town: Juta, 1983), 353–54. The cases cited run from the early 1880s to the late 1970s and include: Preston and Dixon v. Biden’s Trustee, 1 Buch AC 322 (1883) ( Laurence J); Sir John Gilbert Kotzé, ed., “Executors of McCorkindale vs. Bok, N.O. (1884),” in Reports of Cases Decided in the Supreme Court of the South African Republic (Transvaal): August 1881 to December 1884, vol. II (J. C. Juta & Company, 1894), 202 (Kotzé J); Kent v. Transvaalsche Bank, TS 765 (1907) (Innes C.J.); R. v. K. and F., EDL 71 (1932) (Gutsche); S v. Adams, 1979 (4) SA 793 (T 1979) (King J). 156 John Dugard, “South African Lawyers and the Liberal Heritage of the Law,” Law Justice and Society: Report of the Spro-Cas Legal Commission. Johannesburg: Christian Institute of South Africa, 1972, 32. 157 Ibid., 31; Truth and Reconciliation Commission (South Africa), Final Report, 1998, 4:102–3. 221

Rosevear — Judicial Interpretation of Social Rights a reticence to engage in informed criticism of the existing legal order. Speaking in the mid- 1980s, LG Baxter, a Professor of Law at the University of Natal, asserted that,

the jurists at some university centres have diverted their intellectual efforts towards the development of a doctrinal legal science which places great emphasis upon the purity and internal consistency of legal concepts; a science quite unlike the empirical sciences of other applied disciplines and one which provides a complete escape from the issues of public policy - and reality.”158

With respect to the education of future lawyers he was, perhaps, even more damning.

Two generations of lawyers bombarded their students with attacks upon the ideology of the concept of legal order…Thousands of lawyers were left by their teachers with the impression that governmental [public] law was not to be evaluated or modified by lawyers.”159

Moreover, the few legal academics and lawyers who seriously attempted to reconcile the concept of the rule of law with the litany of government law were criticized by the mainstream of the profession for politicizing the law. Rather than accepting that government law had intruded into lawyers’ law, greatly diminishing its autonomy and undermining the bargain on which the distinction and respective authorities was based, they spoke out against their colleagues or remained silent.160

5.4.4 The Appellate Division and Constitutional Crisis The South Africa Act, 1909—the product of post-Second Boer War negotiations— established a unitary political system, rejecting early calls for a federal or confederal arrangement.161 One concern militating against the adoption of a federal system was a desire to prevent the “politicization” of the judiciary that appeared to be induced by the requirement that the it act as a jurisdictional referee.162 This concern was held by both

158 Baxter, “Legal Education and Public Policy,” 12. 159 Ibid., 26–27. 160 Baxter, “Legal Education and Public Policy”; Truth and Reconciliation Commission (South Africa), Final Report, 1998, 4:97. 161 Proposals made by J.X. Merriman and Jan Smuts, respectively. 162 Hugh Corder, Judges at Work: The Role and Attitudes of the South African Appellate Judiciary 1910-50 (Cape Town: Juta & Co., 1984), 7–8. 222

Rosevear — Judicial Interpretation of Social Rights jurists and politicians and was likely driven, at least in part, by the events surrounding the dismissal of Transvaal’s Chief Justice Kotzé a decade and a half earlier.163 The Act could be amended by simple majority with two exceptions. The first of these, Article 35, precluded the withdrawal of pre-existing voting rights from non-Whites in the Cape of Good Hope.164 The second clause established English and Dutch as co-equal official languages.165 Both articles came under the protection of Article 152 which, inter alia, stipulated that changes to these articles as well as art.152 itself, required a two-thirds majority in a joint sitting of both Houses of Parliament.166 But for these qualification, Parliament was supreme.167

163 Martin Chanock, The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (Cambridge University Press, 2001), 36–38; Sir John Gilbert Kotzé, Memoirs and Reminiscences, ed. B.A. Tindall, vol. 2 (Cape Town: Maskew Miller, 1949), ix–xlv. 164 “Act of the British Parliament to Constitute the Union of South Africa, 1909,” British and Foreign State Papers, 1913, 5–39 art. 35. (1) Parliament may by law prescribe the qualifications which shall be necessary to entitle persons to vote at the election of members of the House of Assembly, but no such law shall disqualify any person in the province of the Cape of Good Hope who, under the laws existing in the Colony of the Cape of Good Hope at the establishment of the Union, is or may become capable of being registered as a voter from being so registered in the province of the Cape of Good Hope by reason of his race or colour only, unless the Bill be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. A Bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of Parliament. (2) No person who at the passing of any such law is registered as a voter in any province shall be removed from the register by reason only of any disqualification based on race or colour. 165 “Both the English and Dutch languages shall be official languages of the Union, and shall be treated on a footing of equality, and possess and enjoy equal freedom, rights, and privileges; all records, journals, and proceedings of Parliament shall be kept in both languages, and all Bills, Acts, and notices of general public importance or interest issued by the Government of the Union shall be in both languages.” Ibid. art. 137. 166 “Parliament may by law repeal or alter any of the provisions of this Act: Provided that… no repeal or alteration of the provisions contained in this section… or in sections 35 and 137, shall be valid unless the Bill embodying such repeal or alteration shall be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. A Bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of Parliament.” Ibid. art. 152. 167 Litigation relating to the status of English and Afrikaans as co-equal official languages (art. 137) reached South Africa’s apex court (the Appellate Division of the Supreme Court of South Africa or AD) only once. Edward McWhinney, Judicial Review in the English-Speaking World (University of Toronto Press, 1956), 98ff citing; Swart N.O. and Nicol N.O. v. De Kock, 1951 (3) SA 589 (A 1951). The issue of voting rights (art. 35), on the other hand, was the subject of sustained and contentious litigation. The constitutionally entrenched protection of the voting rights of those permitted to vote at the time of Union only had effect in the Cape Colony, where small numbers of non-Europeans were able to vote. After some abortive attempts in

223

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The court system established in 1910 saw the existing high courts unified into a single Supreme Court with various regionally-based provincial and local divisions, from which appeals lay to a newly created Appellate Division (AD). Until the early 1950s, the AD was a well-respected institution. During that era, the appointees to the Court were almost without exception: “men of great conviction, highly esteemed in the White community, and educated more widely than their compatriots.”168 Because their roots were generally in the Cape, the judiciary as a whole and the AD in particular took a more liberal outlook on race than might otherwise be expected. Nevertheless, it and the judiciary more generally, was a conservative institution broadly accepting of parliamentary sovereignty. In addition to the natural tendency of courts to favor the status quo, there are two related reasons for this conservatism. First, the legal profession and culture of the Cape, and by extension English legal thought, exercised significant influence on the legal profession in South Africa. 169 Prior to Union, Cape advocates had supplied most of the judicial personnel for Natal, the Orange Free State, and the Transvaal.170 The Cape Bar was also the source of four of the initial five AD judges. Second, during that era the Cape Bar was heavily influenced influence by English legal practice and English courts which, at the time, had broadly accepted the legal philosophy of John Austin and A.V. Dicey,171 and were “withdrawing from a political stance to a more declaratory and mechanistic approach to its judicial power.”172 The prevalence of the judges’ legal training in England, then dominated by the legal positivism of Dicey and Austin, militated strongly against judicial forays into the realm of law-

the 1910s and 1920s, the 1930s saw the beginning of twenty years of concerted, and eventually successful, legislative effort to disenfranchise non-Whites, in addition to the development of a “separate but not substantially unequal” doctrine in cases such as Minister of Posts and Telegraphs v Rasool, 1934 AD 167 (1934); Sachs v. Minister of Justice, 1934 AD 11 (1933). These legislative endeavours and judicial rebuttals eventually precipitated a constitutional crisis, discussed below. 168 Corder, Judges at Work, 14. They were also exclusively White and male. 169 For example, of the twenty-two justices appointed to the Appellate Division prior to 1950, eleven had been called to the Bar of England and Wales and another four had attended at least one top-tier English university (Oxford, Cambridge, or London). Corder, Judges at Work ch. 2. 170 Sachs, Justice in South Africa, 48–52; Corder, Judges at Work, 15. 171 Dugard, Human Rights and the South African Legal Order, 16. 172 Corder, Judges at Work, 15, 25–33. 224

Rosevear — Judicial Interpretation of Social Rights making. At the same time, it did lend itself to the defense of particular/acute injustices and some of the more egregious attempts to circumvent the entrenched clauses of the Constitution or the rule of law. Appointments to the Bench, up to and including the AD had long been, and until the early 1990s remained, in the de facto gift of the executive. This discretion, however, was tempered by another English convention: a general acceptance that the extent of the executive’s discretion was, but for exceptional circumstances, limited to selecting judges from the senior members of the Bar who had “taken silk.”173 In fact, prior to the appointment of LC Steyn in 1951,174 there appear to have been only five non-Silks appointed to the Bench. All of which were objected to at the time,175 and whose tenures on the Bench, with one exception, “varied from the merely disastrous to the utterly calamitous.”176 In terms of distinguishing between judicial role and personal belief, James Rose- Innes, the second Chief Justice of the AD, was a well-known Cape liberal prior to his elevation to the Bench, made a number of notable comments in support of legal equality while on the Bench and spoke out strongly against attempts to deprive Africans of their limited franchise in the Cape during his retirement. In his capacity as Chief Justice, however,

173 This designation was awarded by the profession to experienced members (a minimum of ten years at bar, generally much more) of the Bar in recognition of their proven legal skills and commitment to upholding the law and the standards of the profession. During the commonwealth years, these individuals were known as King’s or Queen’s Counsel and accorded the postnominal KC of QC as appropriate, When South Africa broke with the commonwealth in the early 1960s, the term became Senior Counsel, sometimes styled as Senior Consultus. In either case the postnominal is SC. In each, case being awarded the title was known as “taking silk,” and the body of individuals with the relevant post nominals were collectively known as “Silks.” 174 A matter discussed in more detail below. 175 Ellison Kahn, “Appointment of Magistrates as Judges,” South African Law Journal 88, no. 4 (1971): 514. 176 Sydney Kentridge, “The Bar -- A Pathway or a Barrier to Justice,” Consultus 4, no. 2 (1991): 102. The exception to this pattern was in Natal, where well into the 1900s, the Bench was composed primarily of dual practitioners or civil servants. Kahn, however, notes that with “few exceptions… the Natal judges in those days did not make their mark as jurists of distinction.” Kahn, “Appointment of Magistrates as Judges,” 514. .”176 This is borne out by the fact that it was not until 1961 that an appointment to the Appellate Division was made from the Natal Provincial Division. Corder, Judges at Work, 25–33 ('Table 1’); C. F. Forsyth, In Danger for Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950-80 (Juta, 1985), 8–11 ('Figure 1’). 225

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Innes stuck more rigidly than most to what he regarded as his duty in carrying out the law regardless of his personal feelings. His extra-curial statements were not repeated in court, though they did help to maintain a liberal tradition in the legal profession, which to some extent was reflected in the judgements of a later generation of Appeal Court members. In constitutional matters, Innes stressed that the courts would come to the aid of any person, whether high or low, who was injured other than by the due process of law; but where the jurisdiction of the courts was excluded, either by the clear terms of a statute or by the operation of martial law, he accepted such limitations though not without expressing disapproval.177

Here, too, is evidence of a culture of law-applying, rather than policy-making in the ranks of the judiciary. At the same time, there did not appear to be a slavish devotion to the interests of the state and where jurisprudence permitted, attempts were made to defend individual liberty. The AD was involved in a drawn out battle over their independence and the authority of Parliament in the early 1950s, the results of which significantly weakened the independence of the courts and, according to most, the quality of the AD’s judges and judgments. The roots of the crisis began in the mid-1930s with the passage of a law removing Black Africans from the voters list.178 Rose-Innes, no longer holding judicial office, vehemently opposed the Bill and orchestrated extra-parliamentary opposition against it, arguing that,

We have the form of democracy, not the reality. In the Transvaal and Free State any White moron can vote, but no Coloured or Black man, however wealthy or civilized he may be. A White minority with manhood suffrage rule a Black majority with no suffrage at all. That is the very negation of democracy.179

177 Sachs, Justice in South Africa, 136–37. 178 “Representation of Natives Act,” Act No. 12 of 1936 § (1936). The legislation did not entirely abolish the right of Blacks Africans to vote. Rather, it permitted the election of three White representatives to the Senate, one from each of the Cape, Natal, and the Transvaal and Orange Free State in combination, to represent non- White interests. Ian Loveland, By Due Process of Law: Racial Discrimination and the Right to Vote in South Africa, 1855-1960 (Hart Publishing, 1999), 197–202; Heinz Klug, Constituting Democracy: Law, Globalism, and South Africa’s Political Reconstruction (Cambridge University Press, 2000), 40–44. 179 Loveland, By Due Process of Law, 199; citing, James Rose-Innes, Autobiography (Oxford University Press, 1949), 322. 226

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Irrespective of this and other, albeit limited, opposition,180 the Bill was passed into law by the National Party-South African Party coalition government by the necessary two-thirds majority in a combined sitting of the House of Commons and the Senate. The legislation was challenged in Ndlwana by a “native” who had a registered voter in the Cape on the basis of irregularities in the parliamentary voting process.181 However, the merits of the argument were not dealt with because the AD determined that it lacked jurisdiction to consider the matter. Writing for the four-judge panel,182 Acting Chief Justice Stratford held that, “It is obviously senseless to speak of an Act of a Sovereign law-making body as ultra vires. There can be no exceeding of power when that power is limitless.” 183 In short, the Court held that, at least since the passage of the Statute of Westminster, 184 the South African Parliament was sovereign and supreme Parliament of South Africa and its procedures were not subject to judicial oversight.185 This trend of disenfranchisement continued after the election of the National Party to a majority government under D.F. Malan in 1948 with the passage of law removing remaining non-White voters from the roll in 1951.186 However, Malan’s Government lacked the two-thirds majority necessary to alter the entrenched clauses and the Act was passed by a simple majority only. This time, the AD rejected the Government’s position that the Statute of Westminster precluded judicial review of any act of South African Parliament and invalidated the law.187 In response, Parliament passed the High Court of Parliament Act,188 which purported to make any decision of the AD that declared an Act

180 The Minister of the Interior at the time, J.H. Hofmeyr, also spoke against the Bill (after receiving assurances that he would not lose his post for doing so) on both pragmatic and moral, although not constitutional, grounds. Loveland, By Due Process of Law, 201. 181 Ndlwana v. Hofmeyr NO, 1937 AD 229 (1937). 182 Chief Justice Curlewis was not present and took no part in the judgment. 183 Ndlwana v. Hofmeyr NO, 1937 AD at 237. 184 “Statute of Westminster,” 1931 c. 4 § (1931). 185 “Parliament's will… as expressed in an Act of Parliament cannot now in this country, as it cannot in England, be questioned by a Court of Law whose function it is to enforce that will not to question it.” Ndlwana v. Hofmeyr NO, 1937 AD at 237. 186 “Separate Representation of Voters Act,” Act No. 46 of 1951 § (1951). 187 Harris v Minister of the Interior, 1952 (2) SA 428 (A 1952) [Vote Case]. 188 “High Court of Parliament Act,” Act No. 35 of 1952 § (1952). 227

Rosevear — Judicial Interpretation of Social Rights of Parliament invalid subject to review by the “High Court of Parliament” consisting of all members of both houses of Parliament.189 In effect, this legislation would have given Parliament, siting under another name, the ability to overrule the AD by simple majority any time the AD determined that a piece of legislation required a two-thirds majority. This legislation was quickly challenged ruled ultra vires in the Cape Provincial Division of the Supreme Court.190 The government appealed and the AD affirmed the decision of the Cape Provincial Division, finding that the courts and only the courts were entitled to determine whether legislation impacting the entrenched clauses was valid. All of the judges relied on some higher notion of justice or right in order to determine that what Parliament was not permitted to do directly, it could not be permitted to do indirectly, at least insofar as it involved an attempt to use the façade of the judicial system without its substance. 191 The power struggle continued after Malan’s retirement in late 1954 and came to a head with the Strijdom Government’s passage of the Appellate Division Quorum Act and the Senate Act.192 The former increased the size of the AD from five members to eleven as well as mandating that all eleven members were required to sit in cases in which the validity of an Act of Parliament was in question. This was done without consulting the Appellate Division and resulted in protest by all the judges but for the newly appointed LC Steyn, who was widely regarded as the National Party’s “man” on the AD. Mass resignation was considered, but it appears that the recently retired Justice Greenberg convinced the judges not to do so for fear that it would seriously weaken the judiciary.193

189 Erwin N. Griswold, “The Demise of the High Court of Parliament in South Africa,” Harvard Law Review 66, no. 5 (1953): 865–66, https://doi.org/10.2307/1337174; Minister of the Interior v Harris, 1952 (4) SA 769 (A 1952). 190 Harris v Minister of the Interior, 1952 (4) SA 153 (C 1952). 191 High Court of Parliament Case, 1952 (4) SA. According to Chief Justice Centlivres, “the so-called ‘High Court of Parliament’ is not a Court of Law but is simply Parliament functioning under another name” (at 784). Justice Greenberg found the Act invalid in part because it violated “the undoubted principle that no one should be a judge in his own cause” (at 786) by having the same legislators who passed the legislation determine the validity of that legislation. Justice Schreiner, indicating a general agreement with the Chief Justice, held that the rules and procedures of the High Court of Parliament “result[ed] in a tribunal wholly unlike what was contemplated by the framers of our Constitution and out of all comparison weaker as a protection against invasions of its guarantees” (at 789) and that in so doing it constituted an infringement of s.152 and was, accordingly, invalid. 192 “Appellate Division Quorum Act,” Act No. 27 of 1955 § (1955); “Senate Act,” Act No. 53 of 1955 § (1955). 193 Forsyth, In Danger for Their Talents, 15–20. 228

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The Quorum Act gave the National Party license to appoint five new judges, in addition to Steyn.194 The new appointments were viewed with skepticism by many. Although the judges selected were senior members of their respective divisions, including the Judge Presidents of the Orange Free State Provincial Division and Eastern Cape Local Division, “it would be wrong to see them as distinguished. Not one was in the same class as the existing or past members of the Appellate Division.”195 This skepticism extended to the existing Appellate Division Judges, who considered them to subpar, appointed not for their judicial abilities but because of the likelihood they would defer to the elected branches, or were sympathetic to the National Party’s agenda, or both.196 During the initial phases of the expanded Court, Chief Justice Centlivres, and in his absence Acting Chief Justice Schreiner, were careful to draw up the roll such that the “Second Team” was in the minority or that there were enough members of the “First Team” to provide guidance and the Second Team wrote judgments very rarely (some, it would seem, wrote none at all). The Second Team was also initially subject to a social boycott which included denying their participation in the traditional Wednesday afternoon game of bowls, but this seems to have crumbled within the first year or so.197 Although not technically part of the Government’s court-packing scheme, LC Steyn’s appointment was a key turning point in both the jurisprudence and reputation of the AD. Having spent only four years on the Bench prior to his appointment to the AD, he was thought to be lack sufficient experience and his elevation came over the heads of “more senior and undoubtedly more able judges.”198 Concern about his limited judicial experience was compounded by the fact that he had very little experience as an advocate (i.e. time spent arguing cases in court), having spent most of his career as a civil servant. Indeed, these factors in combination with the fact that he was a government law adviser immediately prior to his initial appointment to the Transvaal Provincial Division in 1951

194 CG Hall, FG Reynolds, HHW de Villiers, EM de Beer, and CP Brink. 195 Forsyth, In Danger for Their Talents, 22. 196 Corder, “Constitutional Reform in South African History,” 183. 197 Forsyth, In Danger for Their Talents, 22–24. 198 Ibid., 13–14. 229

Rosevear — Judicial Interpretation of Social Rights had led to substantial protest by the legal community, including a three-week boycott of his courtroom by the Johannesburg Bar.199 The Senate Act increased the size of the Senate from forty-eight to eighty-nine. As the Government controlled the appointments, this effectively handed the National Party a two-thirds majority in joint sittings of Parliament, thereby enabling the alteration of the entrenched clauses. The Separate Representation of Voters Act was then validated via the South Africa Act Amendment Act,200 which—with the new appointments to the Senate— passed by the necessary two-thirds majority of a joint session of Parliament. The validity of this action was the subject of the Senate case.201 By the time the Senate case reached the AD, two of the five judges responsible for the unanimous decisions in the Vote and High Court of Parliament cases were no longer on the Court (Justices Greenberg and van den Heever) while two others (Chief Justice Centlivres and Justice Hoexter) appear to have been unable to find a credible legal basis on which to dissent, been cowed into submission, accepted that discretion was the better part of valor, or some combination thereof. The Chief Justice, writing for himself and eight of his ten colleagues (Justice Steyn wrote a separate, concurring opinion and Justice Schreiner dissented), determined that the purpose of the Act was immaterial to the Court’s decision, as it was clearly within the purview of Parliament to reconstitute to the Senate; whatever the substantive merits of the case, it was not within the power of the Court to intervene. 202 The sole dissenter in the case was Justice Schreiner, who found that the true purpose of the Senate Act was “was part of a legislative plan to create a Senate that would… provide the two-thirds majority required to remove the appellant from the common roll, and that it was enacted only for that purpose.”203 On this basis, he found that the Act should be considered of no force or effect—thus

199 Peter Hodes, April 29, 2016; Forsyth, In Danger for Their Talents, 13–14. 200 “South Africa Act Amendment Act, No. 9 of 1956” (1956). 201 Collins v Minister of the Interior and Another, 1957 (1) SA 552 (A 1956). 202 “The legislative scheme which was adopted is not open to attack in law. Each step taken in the scheme was taken in accordance with the provisions of the South Africa Act and the scheme as a whole was designed in such a way that Act 46 of 1951 [the Separate Representation of Voters Act] would be validated in accordance with the requirements of secs. 35 and 152 of the South Africa Act.” Ibid., 1957 (1):570. 203 Ibid., 1957 (1):581. 230

Rosevear — Judicial Interpretation of Social Rights invalidating the removal of the Coloured voters from the common voters roll—on the basis that it was an attempt to circumvent the Constitution. The Senate case was effectively the end of concerted judicial efforts to protect the entrenched clauses and, by extension, the limited non-White franchise.204 The AD had asserted a certain degree of jurisdiction in matters relating to Parliament and, in the process, had delayed the National Party’s intentions for several years, but parliamentary supremacy had ultimately won the day.205 The change in McWhinney’s analysis of AD between the first and second editions of Judicial Review in the English-Speaking World are telling. In the first edition, published in 1956, he spoke of a Court that was striving gamely to protect individual liberty and equality in South Africa within the acceptable boundaries of legal reasoning and the parameters of the South African political system.206 Four years later, when the second edition was published, he wrote that the Appellate Division had tried to defend what it understood to be just, but was ultimately unable to do so in the face of sustained political pressure backed by popular support. He did, however, conclude that they should not bear too much of the blame:

courts can delay a coordinate authority (executive or legislative) and give it time for sober second thoughts; they may even be able to moderate its programme by deflecting or diverting administrative application of that programme; but they cannot ultimately defeat that co-ordinate authority so long as it retains control of the instruments of political power—in a democratic society, so long as it keeps winning elections.207

Along similar lines, a report issued by the International Commission of Jurists in 1960 found,

an increasing application of a systematic policy of racial separation to all spheres of life in the Union of South Africa. In pursuit of this objective the Government has established a rigid and all-embracing network of legislation which denies to a vast majority of the population those

204 Senate Case, 1957 (1) SA. 205 Ndlwana v. Hofmeyr NO, 1937 AD. 206 McWhinney, Jdicial Review, 98–125. 207 Edward McWhinney, Judicial Review in the English-Speaking World, 2nd ed. (University of Toronto Press, 1960), 196. 231

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opportunities without which the legitimate aspirations and dignity of a human being can not be realized.208

The report also lamented the fact that although the interpretation of legislation rests, ultimately, with the judge, that the judges themselves were unable to do much about this injustice because they were required to interpret the law as it is, not as it ought to be. It did, however, note that “A number of resolute members of the South Africa Bar”209 set strong examples for the profession by defending individuals and groups victimized by the unjust legislation. MA Millner, a member of both the English and South African Bars, offered a similar assessment a few years later. It was his conclusion that,

within the crippling framework of a racial oligarchy, shored up by ever mounting statutory discrimination, the judges strove valiantly, and not entirely ineffectually, to realise the concepts of political freedom and equality upheld in English courts and adopted as part of South African law.210

Their failure to do so successfully, however, was inevitable because of their professional obligation to operate “within the confines of a legal order which is indissolubly wedded to race discrimination, is forced into complicity with laws which sanctify inequality as a principle. It is reduced to the scrupulous dispensation of injustice.”211 These analyses are united by a largely positivist-formalist understanding of the role of the judge, certainly descriptively and at least implicitly normatively. For McWhinney, the AD had done its best, but had ultimately served as proof positive of Hand’s assessment of the capacity of the law to defend liberty.212 Similarly, the International Commission of Jurists described the National Party’s legislative program as denying the realization of

208 International Commission of Jurists, “South Africa and the Rule of Law,” 91. 209 Ibid., 92. 210 M. A. Millner, “Eclipse of a Judiciary: The South African Position,” International and Comparative Law Quarterly, 1962, 886–87, https://doi.org/10/fgvwx8. 211 M. A. Millner, “Apartheid and the South African Courts,” Current Legal Problems 14, no. 1 (1961): 298, https://doi.org/10/ghdscb. 212 “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Learned Hand, The Spirit of Liberty: Papers and Addresses, 2nd ed. (New York: Knopf, 1952), 189. 232

Rosevear — Judicial Interpretation of Social Rights human dignity, but could see no way around its enforcement for South Africa’s judges, bound as they were to interpret the law as it was, not as they thought it ought to be. Millner, too, highlighted the injustice of the legislative schemes while lamenting the forced complicity of the judiciary. A second report by the International Commission of Jurists published in 1968, however, shows traces of a less formalist understanding of the role of the judge. The report did find that South African statute and case law indicated “a steady and increasing interference with the judiciary by the legislature.”213 This manifest in the purported exclusion from judicial oversight of executive action relating to “African Affairs” and security matters. In addition, the judiciary was frequently being called on to apply statute law “which clearly violate[d] basic principles of the Rule of Law.” 214 Although the formal independence of the judiciary had been retained, its substantive independence had been seriously impaired and there was a general perception of the judiciary as “establishment- minded” and prepared to bend itself to the will of the executive rather than defend the liberty of the people. While stopping short of directly implicating the judiciary, then, it did make mention of the public perception of the judiciary as what would come to be known as “executive-minded.” This suggests that at least some judges could have been doing more to defend the rule of law.

5.4.5 The Judiciary During Apartheid In the face of these conditions and the absence of a viable political alternative to the National Party, it is no surprise that there was a de facto banishment of policy considerations from the judgements of the AD and the courts generally, resulting in a judiciary which was even more formalist than it had been in the past.215 Rather than a cowing of sitting judges, the shift was more the result of attrition and the marginalization of the older generation of judges coupled with their replacement with judges who were less likely to be “troublesome.” The source of this obsequiousness was a varied combination of

213 Richard A. Falk, Erosion of the Rule of Law in South Africa (International Commission of Jurists, 1968), iv, http://www.icj.org/erosion-of-the-rule-of-law-in-south-africa-legislation-and-the-courts-and-observers- report-on-the-state-v-tuhadeleni-and-others/. 214 Ibid. 215 McWhinney, Judicial Review (2d Edn.), 193ff. 233

Rosevear — Judicial Interpretation of Social Rights sympathy with the goals of the National Party and a deep-rooted understanding of the judicial role as a largely passive, apolitical one. 216 The most obvious example of this practice was the National Party’s packing of the AD in 1955 discussed above. The National Party also fast-tracked the promotion of those it deemed “reliable” while passing over “troublemakers.” With respect to promotion, the established practiced of the AD was that the most senior judge on the Court would be appointed Chief Justice when the position was vacated. This meant that when Chief Justice Centlivres retired in 1957, Justice Schreiner was the presumptive choice for elevation. However, Schreiner, the leading dissenter in the Vote cases, was passed over. Hoexter, the next most senior judge on the Court was also passed over, likely because he too had been a part of the Vote cases and because he had made it clear that he would not accept as the position if offered because it meant Schreiner would have been passed over. Justice Fagan, the third most senior, accepted after some handwringing “lest worse befall”—specifically, the possibility that one of the so-called “second team” of National Party-appointed judges was elevated. The press was generally favorable to Fagan but scathing toward the Government for passing over Schreiner.217 One important impact of Justice Schreiner being passed over is that it paved the way for the AD to establish a less conflictual relationship with the executive—something which would not have been possible if Schreiner—who clearly distrusted the Government and was strongly in favor of limiting any discretionary power it had with respect to the judiciary—had become the Chief Justice. Moreover, Fagan’s appointment served as a bridge to a new era on the AD. When Fagan retired in 1959, Schreiner had been on the AD for fourteen years and had two more years until mandatory retirement; Hoexter had been on the Court for nearly a decade and had four more years until retirement. Steyn, who by that time was third in seniority had four years on the AD and nearly fourteen years before

216 For Millner, “It is perhaps inevitable that a government imbued with an almost religious determination to implement apartheid, impatient of judicial obstruction and mistrustful of the established judiciary, should seek to instal (sic) in office men whom it feels to be closer to it in sympathies” Millner, “Apartheid and the South African Courts,” 299. 217 Forsyth, In Danger for Their Talents, 22, 26–28. 234

Rosevear — Judicial Interpretation of Social Rights reaching mandatory retirement age.218 His appointment as Chief Justice was not popular on the Court and generated a good deal of negative commentary in the press.219 From the perspective of the political leadership, however, it would place a reliably deferential judge at the head of the judiciary for more than a decade. Forsyth’s study of the AD between 1950 and 1980 notes several changes in its composition during National Party rule. First, the over-representation of the Pretoria Bar— a Bar known for conservatism and close ties to government—and the under-representation of Johannesburg Bar—a Bar known for its liberalism and high level of legal talent. Second, from the mid-1950s appointees to the Bench tended to be conservative individuals who were born in the former Boer Republics and had spent much of their professional life in Pretoria. In this respect, they were unrepresentative of even the average White South African. A third notable trend was the increase in the proportion of AD decisions written in Afrikaans rather than English—from roughly 10% in 1950 to 50% in 1980.220 There also appears to have been several instances of “fast-tracking” of judges to the AD during this period. For example, when Justice Arthur Rabie, the future Chief Justice and his colleague Justice Muller were elevated to the AD from the Transvaal Provincial Division in 1971, they ranked 16th and 17th in seniority in the Transvaal: Rabie had been a judge for five years, Muller for four.221 According to John Dugard, by the late 1970s roughly half of South Africa’s eighty-seven Supreme Court judges could be described as supporters of the National Party’s policies.222 The politicization of appointments to the Bench was also lamented by a number of other prominent members of the legal field.223 That said, it was not only National Party loyalists or arch conservatives were appointed to the Bench. While the National Party was willing to buck tradition in a limited

218 Ibid., 26–30. 219 Ibid., 31–32. 220 Ibid., 35–46. 221 Adrienne E. Van Blerk, Judge and Be Judged (Juta, 1988), 140; Forsyth, In Danger for Their Talents, 8– 11 ('Figure 1’). 222 Dugard, Human Rights and the South African Legal Order, 11. 223 E.g., Justice Didcott Kahn, “Appointment of Magistrates as Judges,” 661; Sydney Kentridge, “Telling the Truth About Law,” South African Law Journal 99, no. 4 (1982): 651–52. 235

Rosevear — Judicial Interpretation of Social Rights way regarding elevation to Chief Justice and, very occasionally, to look outside of the Bar for judges, they did not—and likely could not, at least from a cost benefit perspective— completely disregard tradition. Judicial appointments were and, until the new constitutional dispensation, continued to be selected nearly exclusively from those senior members of the Bar who had taken silk. This was a relatively small group of individuals selected by the profession in recognition of their proven skill and dedication. Moreover, they were “not Government servants, and their training and professional ethics [gave] them habits of detachment and independent judgment.”224 In 1962, for example, there were 324 advocates in South Africa, of whom perhaps 60 would have been Silks.225 Keeping in mind that not all advocates were Afrikaners and not all Afrikaners were Afrikaner Nationalists,226 the pool of potentially “reliable” judges was necessarily small. Moreover, as a result of appointments to the Bench tending to come relatively late in life, one could expect a reasonably expeditious turnover for the 75-80 permanent judgeships there were during this era.227 As one advocate who practice during this era put it:

224 Kentridge, “Telling the Truth About Law,” 651. Similar sentiments were expressed by other scholars holding different perspectives on the courts and apartheid: according to John Dugard, “Because of the semi-corporate, semi-cloistered nature of the various Bars, achieving and retaining the respect of one’s peers tends to be an important factor in guiding actions—this likely includes maintaining the integrity of the legal system and also suggests a greater likelihood that the judge can count on support from the Bar in matters of principle.” Human Rights and the South African Legal Order, 282–83; see also, Van Blerk, Judge and Be Judged, 109. 225 Statistical Yearbook - Republic of South Africa (South Africa Bureau of Statistics, 1968), H-25. In terms of race and gender, there were no women or Black, 1 Coloured, 4 Asian, and 319 White advocates. I have not been able to locate data on the number of Silks during this era. At present, however, roughly 18% of advocates have taken silk. Assuming this proportion has remained relatively constant over time, there would have been about 60 candidates for elevation at any given time. “Statistics for Legal Education and Development (LEAD) and the Legal Profession 2014/2015” (Law Society of South Africa, 2015), 46; “Statistics for Legal Education and Development (LEAD) and the Legal Profession 2015/2016” (Law Society of South Africa, 2016), 47; “Statistics for Legal Education and Development (LEAD) and the Legal Profession 2017/2018” (Law Society of South Africa, 2018), 49. 226 Justice JJ Trengrove, who was called to the Pretoria Bar in 1947, appointed to the Transvaal Provincial Division in 1967, elevated to the AD in 1978, and retired in 1986 is a prime example of this. Although politically conservative Christian, he was also “an old-fashioned Afrikaner who would have nothing to do with what the government wanted to do.” Hodes, interview. Others such as former Constitutional Court judges Johannes Kriegler and Johann van der Westhuizen also exemplify this. 227 In 1967, there were 75, Hahlo and Kahn, The South African Legal System and Its Background, 238; in 1970 there were 74, Glendon Schubert, “Political Culture and Judicial Ideology: Some Cross-and Subcultural Comparisons,” Comparative Political Studies 9, no. 4 (1977): 368, https://doi.org/10/ghdsdd; and, in 1971 there were 80, N. Ogilvie Thompson, “Centenary Celebrations of the Northern Cape Division of the Supreme Court of South Africa,” South African Law Journal 89 (1972): 30. 236

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a lot of people were appointed [to the Bench] by the National Party and some of them actually thought they were appointed on ability, and they weren’t all that able. But others were proper, who grew up in an advocate’s environment and they bit the hand that appointed them. They did proper jobs. But you knew certain judges were very conservative, more minded to be negative toward Black people than others, but on the other hand you had absolutely first class [judges].228

Thus, while the National Party was able to influence the professional and ideological perspectives of the Bench via its unchecked power of appointment, they were effectively forced to do so from a quite small pool of candidates. Moreover, many, if not most, of these candidates would be unlikely to simply do as they were told once on the Bench. More broadly, it is generally thought that the “the strength and persistence of the tradition of the law”229 limited the degree to which policy preferences could be directly manifest in judicial decisions, regardless of judges’ personal predilections. All told, the cultivated independence and professional ethics of the candidate pool meant that the National Party could not eliminate judicial interference with party policy. But, it was still able to create a more deferential Bench by appointing judges sympathetic to either its preferred polices or its preferred—highly deferential—approach to the judicial role while declining to appoint more able members of the bar likely to cause “problems.”230 The judiciary, then, was not a stronghold of partisan hacks. There were, however, National Party sympathizers and arch-formalists. Coupled with the powers of case assignment held by the Judge Presidents of the various divisions—who did tend to favour the National Party—the judiciary of the time can plausibly be described as “executive- minded” at the institutional level. As it is today, the assignment of cases was the responsibility of the relevant Judge President. As the bulk of the cases were not politically sensitive, a relatively small number of sympathetic and/or compliant judges in the right

228 Hodes, interview. 229 Millner, “Apartheid and the South African Courts,” 299. 230 In the words of Senior Counsel Jeremy Gauntlett, “…some of the most senior and lustrous members of the South African Bar have never been offered appointments, while some appointments within the judiciary - to the Appellate Division, and to the office of Chief Justice - have been made in circumstances difficult to reconcile with a rigorous and undeviating regard for merit.” Jeremy Gauntlett, “Appointing and Promoting Judges: Which Way Now?,” Consultus 3, no. 1 (1990): 23. 237

Rosevear — Judicial Interpretation of Social Rights positions could ensure that politically sensitive cases were decided “correctly.”231 This included the AD, where there was a clear pattern of assigning conservative, Afrikaner judges sympathetic to the Nationalist Party’s policies to cases relating to security legislation. During the security crisis, particular responsibility for this state of affairs is attributed to Chief Justice Rabie.232 According to a 1988 report by the International Commission of Jurists, the Appellate Division was instrumental in hampering the attempts of judges to defend human rights and the rule of law as was the assignment of security cases to particularly executive- minded judges by divisional judge presidents, the one notable exception being Judge President Milne of Natal. An examination of the of the AD’s docket from 1960-82, the report found, made its executive-mindedness quite evident: “In many of these cases there was a clear judicial choice open to the judges, but generally the judges chose the course most favourable to the government.”233 This review found clear violations of basic principles of the rule of law, including an unwillingness to chastise security forces for torturing detainees and the denial of reading and writing materials to detainees as “luxuries” that would alleviate the tedium of solitary confinement, thus hampering the purpose of the enabling statute: inducing detainees to talk.234 In an address at the University of the Witwatersrand in 1982 as a part of a series of lectures on the theme of “Truth-Telling—A Dangerous Duty,” Senior Counsel Sidney Kentridge stated that problem as follows:

Over the past several years a certain pattern has become apparent in relation to trials for serious political offences… By political offences I mean offences committed with political motives-such as offences under the Internal Security Act or high treason. In certain parts of the country, at least, it has become obvious that trials of persons charged with these offences are usually heard not at random by all or any of the available members of the

231 Forsyth, In Danger for Their Talents, 49–50; Hodes, interview. 232 Etienne Mureinik, “Pursuing Principle: The Appellate Division and Review Under the State of Emergency,” South African Journal on Human Rights 5 (1989): 72, https://doi.org/10/ghdscg; Nicholas Haysom and Clive Plasket, “The War Against Law: Judicial Activism and the Appellate Division,” South African Journal on Human Rights 4 (1988): 309–10, https://doi.org/10/ghdsbj; Hodes, interview. 233 Bindman, South Africa: Human Rights and the Rule of Law, 110. 234 Ibid., 110–11; see also, Rossouw v. Sachs, 1964 (2) SA 551 (A 1964); S v Mogale reported in J. G. Riekert, “Police Assaults and the Admissibility of Voluntary Confessions,” South African Law Journal 99 (1982): 175. 238

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Supreme Court Bench, but only by a section of the members of that Bench. Time and again the same few judges seem to sit in these cases. Many senior judges, who have been ten years or more on the Bench, have never found themselves presiding over such a trial… [T]the pattern has been too clear, at least in some divisions of the Supreme Court, to allow it to be dismissed as coincidence.235

Although Kentridge proclaimed ignorance of how such cases are allocated and was certain that “the judges themselves… are not and could not be parties to this selectivity,”236 the implication is clear considering the preceding discussion. Support for this explanation is also found in data collected by Glendon Schubert in 1970 and 1971. Specifically, Schubert found that of the fourteen current or former provincial division judge presidents for which at least some data was available, nine of thirteen (69%) were primarily Afrikaans speakers; five of eight (63%) who identified a political affiliation were National Party Supporters; and three of six (50%) who identified a religious affiliation were Dutch Reform.237 All three of these factors were found to be correlated with more conservative attitudes and, at least probabilistically, point toward a degree of sympathy for the National Party’s vision. With respect to the attitudes of the judges more generally, Schubert found that just over half of the permanent judges interviewed were members of the Dutch Reformed Church, a religious persuasion generally associated with Afrikaner Nationalism.238 This was in comparison to twelve who were members of the Church of England or a similar Protestant faith, three of the Jewish faith, and four who were not members of an organized religion. With respect to political parties, fourteen were affiliated with the National Party, sixteen with the United Party, four with the Progressive Party, and six had no political affiliation. The former data are suggestive of an Afrikaner Nationalist influence on the Bench, but the latter are not. However, the extent of Dutch Reform and National Party

235 Kentridge, “Telling the Truth About Law,” 653. 236 Ibid. 237 Schubert, “Political Culture and Judicial Ideology.” 238 Stanley Trapido, “Political Institutions and Afrikaner Social Structures in the Republic of South Africa,” American Political Science Review 57, no. 01 (1963): 83–85, https://doi.org/10/dm6d5g; see more generally, Schubert, “Political Culture and Judicial Ideology.” 239

Rosevear — Judicial Interpretation of Social Rights presence on the Bench are almost certainly understated in light of the extremely low response rate by Transvaal judges. At the time, that region’s Bench both the largest and predominantly Afrikaner.239 as that region has traditionally been the most conservative in the Country, particularly with respect to judicial contravention of elected officials.240 Similarly, the Pretoria Bar—the source of many if not most appointments to the Transvaal Bench—has traditionally been the most conservative in the country.241 Schubert’s finding of a moderate to strong correlation between language and ideology among South African judges—Afrikaans-speaking judges tended to be more conservative—also supports a connection between judicial conservatism, the National Party, and Afrikaans identity.242 On its own, however, this obscures a more important variable. Highlighting a distinction between Afrikaners and Afrikaner Nationalists emphasized by several individuals interviewed during the course of my own research,243 Schubert also identified a strong correlation between conservatism and National Party membership. He also found strong correlations between political party, religion and linguistic subculture in the South African judiciary “Confirming the strength of the ties that bind Afrikaner nationalism together.”244 In spite of this politicization, it was recognized that many trial judges had done the best they could. As apartheid became increasingly unstable in the late 1970s and 1980s, the executive began relying on greater and greater assertions of its discretion and purported to limit—or outright rejected—core rule of law principles such as habeas corpus and the right to legal counsel. During this time, some judges and legal professionals increasingly successful in resisting apartheid. In Hurley, for example, Acting Deputy Judge President

239 The response rate of judges based in the Transvaal was twenty-five percent. This was twenty-five percentage points lower than any other region in the country. For his purposes, Schubert finds it to be statistically insignificant; for present purposes, this is unlikely to be the case. Schubert, “Political Culture and Judicial Ideology,” 368, Appendix A. 240 Dugard, Human Rights and the South African Legal Order, 21–24; see also, Kotzé, Memoirs and Reminiscences. 241 Forsyth, In Danger for Their Talents, 41–42. 242 Schubert, “Political Culture and Judicial Ideology,” 382–84. 243 In particular, Justice Johann van der Westhuizen (retired), April 21, 2016; Johan de Waal, April 29, 2016; Corder, interview. 244 Schubert, “Political Culture and Judicial Ideology,” 391. 240

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(ADJP) Leon of the Durban and Local Coast Division of the Supreme Court of South Africa declared the detention of the plaintiff, purportedly in accordance with the Internal Security Act,245 to be of no force or effect and ordered his immediate release.246 The relevant legislation permitted any commissioned police office of or above the rank of lieutenant-colonel “notwithstanding anything to the contrary in any law or the common law” to arrest without warrant and detain them for interrogation any individual if they had reason to believe that that individual had committed or intended to commit any number of act deemed to constitute terrorism—defined extremely broadly—or were withholding information from the South African police about the same.247 In doing so, Justice Leon found that “reason to believe” under the meaning of the statute required the officer in question to have objective reasons for their belief, rejecting the state’s position that it merely required the officer to hold an opinion to the effect.248 In plain language, the court ruled that the security forces couldn’t detain individuals on the basis of a gut feeling; some form of evidence, even if not to the standard necessary for conviction (or perhaps even enough to sustain a charge) was necessary. On appeal, the response of the AD was mixed in these and similar cases. The AD upheld the lower court’s decision in Hurley.249 It also overruled the decision from the Witwatersrand Local Division in Nkondo and Others,250 and declared the orders of detention to have been invalid. 251 According to Etienne Mureinik, however, this was not the Court stepping up to fill the “the vacuum left open by the moral retreat of the other organs” that many in the legal profession had hoped.”252 Rather, he argued, “In each case the court was doing no more than the least which could properly have been expected of it

245 Specifically, “Internal Security Act,” Act No. 74 of 1982 § (1982) s.29(1). 246 Hurley v Minister of Law and Order, 1985 (4) SA 709 (D 1985). 247 Ibid., 1985 (4):711–14. 248 Ibid., 1985 (4):725. 249 Minister of Law and Order v Hurley, 1986 (3) SA 568 (A 1986). 250 Nkondo v Minister of Law and Order, 1985 (2) SA 720 (W 1984). 251 Nkondo & Gumede v Minister of Law and Order, [1986] ZASCA 20 (1986). 252 Mureinik, “Pursuing Principle,” 61. 241

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[and] was embarking upon a course of renewed passivity.” 253 Moreover, the AD soundly rejected other attempts by lower courts to rein in executive discretion. Also in 1986, they overturned a decision by the full bench of the Durban and Coast Local Division which had struck down the power of detention accorded to all police, military, and prisoner warders by security regulation.254 Similar decisions were issued in 1987 and 1988.255 Nevertheless, there are a number of instances, particularly during the era of emergency legislation in the mid to late-1980s where judges on the lower courts, while remaining within the boundaries of acceptable legal argument, sought to restrain the discretion of the executive and defend individual liberty in the face of an increasingly authoritarian political order.256 Moreover, with the retirement of then Acting Chief Justice Rabie, came the appointment of Chief Justice Corbett and the expression of a more active role for the judiciary with respect to the defence of South Africa’s core legal values. In a speech to the Johannesburg Bar, he affirmed the supremacy of parliament in South Africa, but also argued for the use of the common law to defend individual liberty and human rights at the margins and in cases of unclear validity or where there was ambiguity in the law:

I believe firmly in the importance of the liberty of the individual - in the importance of human rights. I nevertheless recognise, under our present system, the power of legislative authorities to restrict that liberty. Where the meaning or validity of such legislation is in issue, and the language is plain or the validity clear, then the proper administration of justice demands that it be given effect. In the grey areas of uncertainty, however, I believe that our common law and our legal tradition require that the importance of human rights should be kept well to the fore.257

Along similar lines, Justice C.S. Margo, in an edited volume in honor of Justice O.D. Schreiner, rejected the idea that judges were uniformly drawn from and solely concerned with the interests of the elite. Such an assertion, he argued, failed to account for “the fierce

253 Ibid., 61–62. 254 State President v Tsenoli; Kerchhoff v Minister of Law and Order, 1986 (4) SA 1150 (A 1986). 255 Omar v Minister of Law and Order; Fani v Minister of Law and Order; State President v Bill, 1987 (3) SA 859 (A 1987); Staatspresident v Release Mandela Campaign, 1988 (4) SA 903 (A 1988). 256 See generally, David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd ed. (Oxford University Press, 2010) ch. 6. 257 M. M. Corbett, “Speech to Johannesburg Bar,” Consultus 2, no. 2 (1989): 75. 242

Rosevear — Judicial Interpretation of Social Rights independence, moral fearlessness and sense of duty that are generally characteristic of the Bar and of the judiciary.”258 Although constrained by the doctrine of parliamentary supremacy, there were opportunities for judges to issue “reformative decisions” through the use of “judicial enterprise and wisdom to accommodate developments in the social, economic and financial order, where the existing law does not provide for such.” 259 At the same time, however, he cautioned strongly against confusing this with the idea that a judge may be justified in judicially-legislating “as he thinks fit.” 260 The result of such an approach, he argued, “might well be worse than the ills they are intended to cure.”261 The core of the criticism levelled against the judiciary during this era, then, was not so much the adherence to precedent by lower court judges or the acceptance of the doctrine of parliamentary sovereignty. Rather, the primary issues, at least from the perspective of the legal community, were three-fold. The first was reliance on a formalistic approach to adjudication that denied the reality of judicial discretion in the adjudication process, particularly insofar as statutory interpretation was concerned. The second was that when a degree of ambiguity or novelty existed, and the judges could truly be said to have a choice to make, far too many would give effect to the most executive-minded interpretation at the expense of liberty or other values such as dignity and equality that were seen by many as central components of the South African legal order. Third was the apparent selection of judges seen as “reliable” or “safe” judges—insofar as they were unwilling to rock the boat by overruling government actions, broadly sympathetic to the apartheid project, or some combination of the two—for politically significant cases by the Judges President of the high courts.

258 C.S. Margo, “Reflections on Some Aspects of the Judicial Function,” in Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner, ed. Ellison Kahn (Juta, 1983), 282–83. 259 Ibid., 288–90. 260 Ibid., 290. 261 Ibid. 243

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5.4.6 Institutional Considerations In addition to the significantly different career paths of judges in South Africa and Brazil,262 two institutional features of the South African judicial system warrant comment in relation to their impact on social rights interpretation. The first is the relatively low volume of cases heard by individual judges, particularly those on the Constitutional Court. By way of comparison, in 2019 Brazil’s apex court issued 17,733 collegiate decisions— 3,972 by the plenary court and 13,761 by the two turmas (five-member panels)—in addition to the combined 100,000 monocratic decisions of the eleven judges of the Court.263 In contrast, the Constitutional Court of South Africa rendered final judgment in 48 cases in 2019.264 Although not to the same degree, the pattern is evident at the trial and appellate levels. The relatively lower caseload—which should not be confused with workload—of the apex court and the courts more generally in South Africa means that judges and, at least at the Constitutional Court, their clerks have the time to engage with and review the type of in depth and complex research necessary to effectively engage in policy-cognizant decision-making. The second consideration is the relatively small and interconnected nature of the judicial system in South Africa. In contrast to the large, relatively unconnected and inexperienced trial level judiciary found in Brazil, South African High Court judges are relatively few in number—249 permanent judges as of 2018.265 By way of comparison, there were 18,141 judges in Brazil.266 They are also connected to one another via a formal system of precedent, a well-established system for case reporting, and quite often personal familiarity. South African trial court judges certainly have the independence, capacity,

262 See, 4.4.3 and 5.4.5. 263 “Estatísticas do STF: Decisões a Partir de 2010” (Supremo Tribunal Federal), accessed August 16, 2020, http://www.stf.jus.br/portal/cms/verTexto.asp?servico=estatistica&pagina=decisoesinicio. 264 Ibid.; “2019 South Africa: Constitutional Court Decisions” (South African Legal Information Institute), accessed August 16, 2020, http://www.saflii.org/za/cases/ZACC/2019/. 265 “Statistics for Legal Education and Development (LEAD) and the Legal Profession, 2017/2018” (Law Society of South Africa, 2019), 53. There are also 2003 Magistrates who deal with less serious criminal and civil matters. Ibid., 55. 266 Departamento de Pesquisas Judiciárias, “Justiça em Números 2019: Sumário Executivo” (Brasília: Conselho Nacional de Justiça (Brazil), 2019), 6. Adjusting for population, that equates to 0.4 judges per 100,000 people in South Africa versus 8.7 in Brazil. There are also 3.4 magistrates per 100,000 in South Africa. 244

Rosevear — Judicial Interpretation of Social Rights experience, and, at least to a certain degree, understanding of the machinations of politics and policy necessary to exercise a degree of creativity and pragmatism in the interpretation and application of constitutional social rights guarantees. Once these “creative” endeavours are undertaken, the results are almost certain to attract the attention of other judges and scholars and, to the extent they address previously unexplored areas, deal with contested areas of law, or purport to chart a new jurisprudential course, they will be considered by the Constitutional Court or at least other judges. Once this occurs, the interconnectedness and size of the judiciary coupled with judges’ internalized respect for precedent will almost certainly ensure that any authoritative interpretation offered by the Constitutional Court will be faithfully followed.

5.5 Social Rights and the South African Judiciary

5.5.1 A New Constitutional Court A key contrast between the Brazilian and South African experiences with social rights adjudication pertains to their respective constitutional courts. The Brazilian Supreme Court (STF) had effectively lobbied to maintain its apex status. This meant, that for many years, of the ultimate arbiters of the transformative constitution were the most senior members of that Court had been appointed during the military regime, an era in which the judiciary was renowned for its formalism and conservatism. The South African Constitutional Court, however, was (i) a new court, with a clear and limited mandate—to interpret and define the parameters of the new constitution, (ii) a substantial degree of docket control—enabling the Court to devote substantial time and resources to each case it considered, and (iii) populated by a combination of judges, legal practitioners, and academics—each of whom had a degree of anti-apartheid credibility. The initial membership of the Court was selected toward the end of 1994. The first appointee was Arthur Chaskalson as President.267 Chaskalson was remarkable in his ability to command the respect and admiration of both anti-apartheid activists and the legal

267 The appointment was made by the President of the Republic in consultation with the Cabinet and the Chief Justice of South Africa (at the time, the Chief Justice of the Supreme Court of Appeal). Constitution of the Republic of South Africa, 1993 art. 97(2). 245

Rosevear — Judicial Interpretation of Social Rights establishment. In addition to serving as the National Director of the Legal Resources Center (LRC) from its founding in 1979 until his appointment to the Constitutional Court in 1994,268 he had practiced full time at the Johannesburg Bar from 1956, served on the Bar Council on multiple occasions, and taken silk.269 At the same time he was (diplomatically) critical of the profession for failing to fulfill its role as a promoter and protector of social welfare and access to justice. In a 1983 interview with the editor of De Rebus, a publication of the General Council of the Bar of South Africa, Chaskalson outlined this belief.

Legal practitioners are the middle-men of law. Their primary function is to make themselves available to individuals and groups to advise them and represent their interests…Their services must be available to all sections of the community…

They also have a public responsibility to draw attention to unsatisfactory features of the legal system and to promote reforms necessary to remedy such deficiencies.

A number of individual lawyers have played an active role in the political and social life of the country. But the legal profession as a whole has not made as substantial a contribution to community affairs as it could have done… the talents of the legal profession in South Africa have been put to the service of fee-paying clients and insufficient time has been given to broader community interests.270

Moreover, he devoted a significant portion of his career to criticizing and seeking to dismantle apartheid through legal means. The 1993 Constitution also specified the appointment of four sitting judges of the Supreme Court of Appeal by the present in consultation with the same parties.271 This

268 “First Interview with Chief Justice Arthur Chaskalson” (Legal Resources Centre Oral History Project, December 4, 2007), http://historicalpapers-atom.wits.ac.za/chief-justice-arthur-chaskalson-x2-interview. The LRC both ran test cases challenging the apartheid regime and served as a legal clinic for those who would otherwise be unable to access the courts or representation. 269 He was also a member of the Board of the Faculty of Law of the University of the Witwatersrand and of the National Bar Examination Board of the General Council of the Bar of South Africa. Geoff Budlender, “Arthur Chaskalson, the Man,” Advocate 18, no. 2 (2005): 39–40; Arthur Chaskalson, “Legal Resources Centre,” De Rebus, no. 145 (1980): 19–22. 270 Arthur Chaskalson, “The Editor Talks To. . .,” De Rebus 185 (May 1983): 221–22. 271 Dennis M. Davis, Gilbert J. Marcust, and Jonathan Klaaren, “The Administration of Justice, Law Reform and Jurisprudence,” Annual Survey of South African Law 1994 (1994): 715. 246

Rosevear — Judicial Interpretation of Social Rights process resulted in the appointment of Justices Laurie Ackerman, Richard Goldstone, T.H. Madala, and Ismael Mahomed. Having followed the traditional path to judgeship in South Africa, they had distinguished themselves as advocates, taken silk, and eventually elevated to the Bench. These judges, as well as the other two judges selected in the second process— Justices Johann Kriegler and John Didcott—were not among those judges who could be considered “executive-minded.” Indeed, all six had strong anti-apartheid credentials. Justice Mahomed, for example, was the first non-white Justice in South Africa, Justice Kriegler had, inter alia, served as a Trustee of the LRC and refused to bow to pressure from Chief Justice Rabie to resign,272 and Justice Didcott’s submission to the Hoexter Commission in 1980 had cogently and publicly criticized the National Party’s attempts to interfere with judicial independence.273 With respect to attitudes toward adjudication on the Constitutional Court, the interviews conducted by the JSC are instructive. When asked about the political role of the Constitutional Court and whether that meant that it was not a true court, Justice Kriegler replied,

All courts have a political role to play… The Constitutional Court quite clearly has a broader role to play because in terms of the interim constitution it will have to come to final and nationally binding decisions on issues of political contention. Such as those that I have mentioned earlier, redistribution of land, reversed discrimination in order to rectify inequities of the past and so forth, and those will be policy decisions with political implications. It is in that sense more manifestly a political body than the ordinary courts of the land.274

Ultimately, while these “career” judges recognized the political role of courts, the Constitutional Court in particular, and were predisposed toward a transformative constitution and transformative policy, their education and professional practice had instilled in them a strong respect for rules-based adjudication, a desire to avoid policy-

272 “First Interview with Chief Justice Arthur Chaskalson.” 273 Ellison Kahn, “The Didcott Memorandum and Other Submissions to the Hoexter Commission Notes and Comments,” South African Law Journal 97 (1980): 651–75. 274 “Interview with Justice Johan Christiaan Kriegler, Judge of the Appellate Division” (Judicial Service Commission (South Africa), October 5, 1994), http://www.constitutionalcourt.org.za/site/judges/transcripts/johannkriegler.html. 247

Rosevear — Judicial Interpretation of Social Rights determined adjudication, and a sense of professional responsibility regarding the continuity and limits of the law. The five non-judges appointed to the Court, although all legal professionals, did not have the same degree of socialization into legal norms and adjudicative practice of South Africa. Indeed, Albie Sachs was seen as something of a wildcard as a result of his relatively limited practice experience and self-described activist stance regarding the role of judge.275 Nevertheless, Arthur Chaskalson and Pius Langa were both Senior Counsels. In that respect, there would certainly have been an internalization of judicial norms built up through decades of legal practice and courtroom appearances. Catherine O’Regan and Yvonne Mokogoro, both professors of law, would have also been tied, although perhaps to a lesser extent than either Chaskalson or Langa, to the existing doctrine and norms of the legal profession. In the words of one Senior Counsel,

They were judges… They had grown up as judges, they understood how you interpreted something…. [they] still wanted there to be a modicum of respect for the words.276

In short, while committed to the transformation of South Africa, the first Constitutional Court also had a strong commitment to preserving a rational legal order. Their professional norms and concern with maintaining credibility in the eyes of the legal profession, along with a concern for preserving a somewhat tenuous political order, are clearly manifest in the initial decisions.

5.5.2 The Certification of the Constitution and the Justiciability of Social Rights The Interim Constitution’s requirement that the final constitution be certified by the Constitutional Court (which was created by the Interim Constitution) provided a vehicle for it to consider three objections to the inclusion of social rights in the Constitution. The first of these was that healthcare, housing, food and water, and similar rights could not be

275 This point was expressed by a number of interviewees. Indeed, Justice Sach’s writings do suggest a substantially more active approach to judging than the Bar or the bench would have been used to at the time. See e.g., Albie Sachs, The Strange Alchemy of Life and Law (Oxford, UK: Oxford University Press, 2009); Albie Sachs, We, the People: Insights of an Activist Judge (Wits University Press, 2016). 276 Hodes, interview. 248

Rosevear — Judicial Interpretation of Social Rights included as they were not “universally accepted fundamental rights.”277 This objection was dismissed out of hand on the basis that the principle established a minimum bar rather than a ceiling on rights protections. The second objection concerned the separation of powers.278 The inclusion of economic and social rights, it was argued, would necessarily require the courts to enter into the domains of the executive and /or legislative branches and involve themselves in dictating government expenditures and policy, thus violating the separation of powers. Here the Court rejected the premise of the argument, the idea that civil and political rights were qualitatively different from social and economic ones, in the following way:

It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers.279

The third objection, that social and economic rights were not justiciable—and thus could not be the subject of constitutional remedies, as also required by Constitutional Principle II—was rejected for the same reason as the second: the Court was of the opinion that social and economic rights were justiciable.280

277 Certification Case, [1996] ZACC para. 76. This argument relied on the text of Constitutional Principle II: Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution (emphasis added). 278 According to Constitutional Principle VI: There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness. 279 Certification Case, [1996] ZACC para. 77. 280 Ibid. para. 78. 249

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5.5.3 Reticence and Reasonableness: Health and Early Housing Litigation The first major social rights case was brought by Thiagraj Soobramoney, a 41-year- old diabetic man with chronic renal failure as well as a number of other serious medical issues who had been denied the dialysis necessary for his continued survival.281 The resources of the renal clinic in question—the only public one in the province—were limited and it was only able to provide dialysis to 30% of those for whom it was medically indicated. To deal with this shortfall, the clinic had employed national guidelines to prioritize access to treatment for those with the best prospects of recovery. The applicant did not meet these criteria and sought an order from the High Court requiring the clinic to provide treatment. In the High Court decision, Justice Combrinck determined that the clinic had insufficient resources to treat all those requiring it, that the guidelines were not unreasonable, and that it was “not the function of this Court to direct the State to make additional funds available to the renal clinic so that the applicant and others may be treated” as that was a fundamentally political decision.282 Justice Combrinck also rejected the argument that the fact that the claimant would die without dialysis meant that this constituted an emergency situation.283 As such, he dismissed the application. The decision was appealed to the Constitutional Court, which upheld the decision of the High Court. In so doing, Chief Justice Chaskalson affirmed Justice Combrinck’s determination that it was not the place of the courts to interfere the state’s allocation of resources. In light of the depth and diversity of need, he held, the state was required to make difficult decisions and in doing so “There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society.”284 Soobramoney was a great disappointment to many human rights advocates, academics, and civil society organizations, many of whom who viewed the courts’ refusal

281 Soobramoney v. Minister of Health (KwaZulu-Natal), [1997] ZACC 17 (1997); cf. Van Biljon v. Minister of Correctional Services, 1997 (4) SA 441 (C 1997). 282 Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 430 (D 1997) para. 438. 283 If Soobramoney’s circumstances has been deemed to constitute an emergency situation, he would have been entitled to treatment as s.27(s) of the Constitution stipulates that “No one may be refused emergency medical treatment.” 284 Soobramoney, [1997] ZACC para. 32. 250

Rosevear — Judicial Interpretation of Social Rights to examine the reasonableness of the allocation of funding as an abdication of their responsibility.285 A number of commentators, however, have suggested that this reticence was at least partly attributable to the desire of the Court to be seen as legitimate by the legal profession and the public, and to not antagonize the new political order.286 Moreover, it may well be that given the uncertainty involved in how the jurisprudence would and should develop, the Court was unwilling to do too much in one case. Perhaps it was felt that it was enough for the Court to clearly assert that they had the power to review such policies and put the state on notice of what they would be looking for. The next major social rights case heard by the Constitutional Court dealt with the right to housing, an area which has seen the highest volume of social rights litigation in South Africa. The first of these cases, dealing with emergency housing, came before the Western Cape High Court in 1999 and was appealed to the Constitutional Court in 2000.287 In the Grootboom decision, the Court established the basis of its current “reasonableness” approach to the interpretation and application of South Africa’s constitutionalized social rights. The case concerned the residents of an informal settlement near Cape Town who were forcibly evicted and sought relief via the courts. In its decision, the Court held that state capacities are inherently limited and that immediate realization of rights such as the right to housing is not always possible. Rather, what was required was that the state pursue “reasonable” measures to give effect to those rights. The key element of the decision, however, was that the Court also indicated that if the state failed to do so, courts can and must enforce these obligations. The Court also provided some degree of guidance with respect to the parameters of reasonableness: if measures taken failed to make provision for

285 See e.g., Jeremy Sarkin, “Health,” South African Human Rights Yearbook 8 (1998): 101–3; Craig Scott and Philip Alston, “Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise,” South African Journal on Human Rights 16 (2000): 268, https://doi.org/10/ghdsdc. 286 James L Gibson and Gregory A Caldeira, “Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court,” Journal of Politics 65, no. 1 (2003): 1–30, https://doi.org/10/ck6qxw; Theunis Roux, “Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court,” Democratization 10, no. 4 (2003): 93–94, https://doi.org/10/d56dcp; Hodes, interview. 287 Respectively, Grootboom v Oostenberg Municipality, [1999] ZAWCHC 1 (1999); Government of the Republic of South Africa v Grootboom, [2000] ZACC 19 (2000). 251

Rosevear — Judicial Interpretation of Social Rights providing for the needs of the most desperate they were not reasonable.288 As it was determined that the government’s extant programs failed to make provision for temporary relief for the most disadvantaged, the Court issued a declaratory order requiring the state to devise and implement a program which provided shelter for the most desperate. Further, the South African Human Rights Commission was tasked with monitoring the state’s progress in this regard.289 The Court did, however, set aside the High Court’s requirement that the state provide shelter to all children and their parents who had been evicted until such time as the parents could provide that shelter themselves.290 They also expressed concern about the possibility of the decision being interpreted as condoning the invasion of private property, particularly for the purposes of attempting to secure preferential access to housing and clearly condemned such an action as well as leaving open the possibility that the state might be acting reasonably to not provide housing in such cases.291 By 2000, then, the Court was acting more assertively vis-à-vis the state with respect to the content and timeliness of social rights provision and the procedures used to assess how such policies were formulated. In effect, it was approaching social rights litigation from an administrative law perspective, concerning itself with basic principles such as fairness and the appropriate use of discretionary authority. It also remained concerned about both the need to manage expectations regarding social rights realization, committed to the protection of property rights, and unwilling to dictate specific policies to the state.

288 Grootboom, [2000] ZACC para. 44. 289 Ibid. paras. 97-99. 290 Ibid. para. 79; in reference to Grootboom v Oostenberg Municipality, [1999] ZAWCHC pp. 26-27. 291 Specifically, the court held that, This judgment must not be understood as approving any practice of land invasion for the purpose of coercing a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. Land invasion is inimical to the systematic provision of adequate housing on a planned basis. It may well be that the decision of a state structure, faced with the difficulty of repeated land invasions, not to provide housing in response to those invasions, would be reasonable. Reasonableness must be determined on the facts of each case. Grootboom, [2000] ZACC para. 92. 252

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A year after Grootboom, the Court once again dealt with the right to health in Treatment Action Campaign (TAC).292 Rather than the availability of a service to a particular individual, TAC challenged the adequacy of government measures to address mother-to-child transmission of HIV. Specifically, the plaintiff—and HIV rights advocacy organization—argued that restricting the distribution of Nevirapine, an antiretroviral drug, to a limited number of test sites was unreasonable considering its previously demonstrated effectiveness and the fact that the state was receiving the drug at no cost. It also argued that the lack of a national plan for the prevention of mother-to-child transmission was a violation of its duty to progressively realize the right to health through legislative and other means.293 In response, the state argued that it did not have the resources to provide the full package of care it intended to provide with the drug at other locations and that excessive distribution in the absence of that full package might lead to decreased long-term efficacy.294 In its decision, the Court held that the social rights in the Constitution could not be construed to enable everyone to immediately demand the UN Minimum Core.295 Rather, they reiterated that government policy need only to reasonably seek to progressively bring about those rights and that courts were limited-at-best arbiters of policy decisions.296 While denying its ability to make policy, the Court asserted its authority to compel the state to act, holding that it was not a violation of separation of powers to compel adherence through

292 Minister of Health v Treatment Action Campaign (No. 2), [2002] ZACC 15 (2002) [hereinafter “TAC”]. 293 Ibid. para. 10. 294 Ibid. paras. 51-54. 295 This approach, set out by the Committee on Economic, Social and Cultural Rights is based on the assertion that, …a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)” (United Nations, 1991) para. 10. 296 TAC, [2002] ZACC paras. 26, 34-38. 253

Rosevear — Judicial Interpretation of Social Rights injunction.297 Ultimately, the Court declared that the withholding of the drug was unreasonable, as the policy in place failed to provide a potentially lifesaving drug which could have been administered with little or no cost to the state.298 The government was ordered to remove the restrictions on the drug, facilitate its use, and “take reasonable measures to extend the testing and counselling facilities to hospitals and clinics throughout the public health sector beyond the test sites to facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.”299 Although a number of human rights advocates were troubled by the Court’s rejection of the UN Minimum Core approach, this case was widely seen as (correctly) walking back the level of deference accorded the state in the area of healthcare and a promising continuation of the pattern it set in its landmark housing decision in 2000.300 At the same time, the Court maintained is hands-off approach to specific policy making. It had certainly proven itself willing to challenge government policy but, at least rhetorically, unwilling to make policy except in circumstances where it had determined that a reasonable approach to the matter in question could only lead to one conclusion. Social rights were to be given effect by policies and provided the policies in place were reasonable, the state had fulfilled its obligation.

5.5.4 Evictions and Emergency Housing: Developing Reasonableness Since Grootboom, right to housing litigation has centered around the state’s obligations under s.26(3) of the Constitution to ensure that no eviction or demolition of a home can occur “without an order of the court made after considering all the relevant circumstances” two pieces of enabling legislation—the Extension of Security of Tenure Act and the Prevention of Illegal Eviction from and Occupation of Law (PIE) Act301— and

297 Ibid. paras. 96-113. 298 Ibid. para. 80. 299 Ibid. para. 95. 300 See e.g., David Bilchitz, “Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence,” South African Journal on Human Rights 19 (2003): 1–26, https://doi.org/10/ghdr9g. 301 “Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,” Act No. 19 of 1998 § (1998); “Extension of Security of Tenure Act,” Act No. 62 of 1997 § (1997). 254

Rosevear — Judicial Interpretation of Social Rights the nature of the state’s obligations with respect to temporary housing stemming from such evictions.302 Although the Supreme Court of Appeal has declined to develop the common law of eviction beyond requiring that the plaintiff establish their ownership of the property and its occupation by the defendant, as a result of s.26(3) it has been more than happy to accede to the guidance provided by PIE in determining whether, when, and under what conditions, granting an eviction order would be appropriate.303 Specifically, the decision to grant an eviction order turns on whether, in the opinion of the court, “it is just and equitable to do so, after considering all the relevant circumstances.”304 As per the governing statute, these circumstances include (i) whether land has been or can reasonably be made available by the state for the relocation of the evictees and (ii) the likely impact on groups, such as children and households headed by women, attracting special consideration.305 In this jurisprudence, the courts have also emphasized the importance of meaningful engagement and consultation regarding the development of housing policies,306 the primary responsibility of the municipalities to provide alternative accommodation,307 and the fact that the right to housing could justify temporarily limiting individuals’ property rights where eviction could lead to homelessness,308 even where occupation had commenced relatively recently.309

302 See generally, Stuart Wilson and Michael Clark, Evictions and Alternative Accommodation in South Africa 2000-2016: An Analysis of the Jurisprudence and Implications for Local Government, 2nd ed. (Johannesburg, South Africa: Socio-Economic Rights Institute of South Africa, 2016). 303 Brisley v Drotsky, [2002] ZASCA 35 (2002); Ndlovu v Ncgobo; Bekker v Jika, 2003 (1) SA 113 ((SCA) 2002); De Vos and Freedman, South African Constitutional Law in Context, 690–92. 304 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, s.4(7); see also, Extension of Security of Tenure Act ss. 8-11; Constitution of the Republic of South Africa, 1996, 1997 s.26(3). 305 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, preamble; see e.g., Port Elizabeth Municipality v Various Occupiers, [2004] ZACC 7 (2004), para. 30. 306 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes, [2009] ZACC 16 (2009) paras 302-3, 378. 307 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, [2011] ZACC 33 (2011) paras. 42-7, 57. 308 Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue, [2010] ZAGPJHC 4 (2010) paras. 16-18. 309 Occupiers of Skurweplaas v PPC Aggregate Quarries, [2011] ZACC 36 (2011) para. 23; Occupiers of Portion R25 of the Farm Mooiplaats v Golden Thread, [2011] ZACC 35 (2011). 255

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In general, the courts have maintained that they cannot be directly involved in the crafting of policy. Rather, they have restricted themselves to a largely procedural role, ensuring that the processes used to arrive at decisions take into consideration all relevant factors and that the decisions and the actions based on those decisions are reasonable and taken in a timely fashion. In this regard, the courts can be understood to have adopted an administrative law-like approach to the interpretation of the constitution.310 They have, however, proven willing to impose costs on the state for unreasonable delay on in finding alternative accommodations or otherwise settling the issue with the property owner. This has manifest in the concept of constitutional damages. Initially contemplated—but not awarded—in the context of the interim constitution,311 constitutional damages were first imposed on the state by the Supreme Court of Appeal and subsequently upheld by the Constitutional Court.312 In that case, 400 individuals who had been evicted from an informal settlement on municipal land in May 2000 had set up another informal settlement on private land. The owner of the land immediately instigated proceedings to evict the squatters. By October of that year, the estimated population of that settlement was over 10,000 and by the time affidavits had been deposed in March 2001, there were approximately 15,000 residents.313 At trial, Justice Marais held that eviction would be just and equitable in the circumstances:

I find it to be just and equitable that the first respondents, who have deliberately invaded the property of another without his consent and set up an insanitary squatter camp of 15 000 people, have no intention of moving, do not tender any compensation for the unlawful occupation, damage the economic interests of the applicant and infringe his rights as landowner should be ejected from the property.314

310 Brian Ray, Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave (Cambridge University Press, 2016). 311 Fose v. Minister of Safety & Security, [1997] ZACC 6 (1997). 312 Respectively, Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd, [2004] ZASCA 47 (2004) paras. 41-43; President of the Republic of South Africa v. Modderklip Boerdery (Pty) Ltd, [2005] ZACC 5 (2005); De Vos and Freedman, South African Constitutional Law in Context, 409–12. 313 Modderklip Boerdery (pty) Ltd v Modder East Squatters, 2001 (4) SA 385 ((W) 2001). 314 Ibid., 2001 (4):395. 256

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The trial judge also invoked consideration of future behaviour in justifying his decisions:

to encourage or condone a land invasion in these circumstances would almost nullify property rights, particularly of owners of smallholdings or farms, and could amount to allowing virtual expropriation of land without compensation…315

The resulting order gave residents of the settlement two months to remove their shacks and themselves from the property, after which the Sherriff was authorized to removed both and empowered to draft in any person, including members of the South African Polices Services to assist in doing so.316 Despite the issuing of an eviction order, the settlements numbers continued to swell, eventually reaching 80,000. Prior to evicting the occupiers, the Sherriff insisted on a deposit of 1.8 million Rand—an amount that far exceeded the value of the property—by the owner in order to cover the cost of the security firm she intended to engage to assist with the eviction.317 Modderklip was not prepared to do so, and the Sherriff declined to execute the order. After subsequent litigation, the matter ended up before the Supreme Court of Appeal,318 and then the Constitutional Court.319 Broadly supporting the order made by the Supreme Court of Appeal, the Constitutional Court held that while a declaratory order would give the property owner grounds to pursue a delictual claim against the state,320 a more concrete remedy was required and awarded damages to Modderklip against the state for loss of the use of its property. This was the first time the Court had awarded constitutional damages. The court also held that the occupiers were entitled to continued occupation of the land until the state had arranged alternative

315 Ibid. 316 Ibid., 2001 (4):396. 317 Approximately USD 200,000 based on the average 2001 exchange rate. 318 Modder East, [2004] ZASCA. 319 Modderklip, [2005] ZACC. 320 Broadly speaking delict is the civil law equivalent of tort insofar as it is concerned with redressing non- contractual wrongs, generally via monetary compensation. 257

Rosevear — Judicial Interpretation of Social Rights accommodations.321 Although awarded infrequently, the possibility of constitutional damages must certainly have a strong motivating effect on the state in terms of expediency. The most recent case of note in the area of housing and evictions is Blue Moonlight.322 That matter related to a property developer who had purchased a disused factory occupied by squatters and subsequently sought their eviction. In the relevant hearings, the occupiers established that eviction would leave them homeless. In addition, the occupiers successfully sought to have the municipality joined to the proceedings and the order of the High Court required the City of Johannesburg to provide accommodation for the occupiers or 850 Rand per month to each household until such time as accommodation was available.323 The Constitutional Court largely affirmed the High Court’s decision, but stipulated that the owner of the property could not immediately claim constitutional damages, “Although Blue Moonlight cannot be expected to be burdened with providing accommodation to the Occupiers indefinitely, a degree of patience should be reasonably expected of it and the City must be given a reasonable time to comply.”324 In addition, the Constitutional Court indicated that the city could not deflect such obligations onto the provincial or national governments and that it must prioritise its response to emergency housing situations in a reasonable manner. South African courts have generally adopted a pro-occupier approach to the interpretation, at least insofar as they have explicitly rejected the idea that the right to property trumps the right to housing. They have also rejected the reverse, emphasizing the need to balance these competing claims based on the particular facts in order to do justice in individual cases.325 However, some decisions have expressed concern relating to the possible negative economic impacts of the approach, particularly with regard to the limits of state-directed and state-funded initiatives. In a 2012 decision ordering the eviction of

321 Modderklip, [2005] ZACC para. 68. 322 Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue, [2010] ZAGPJHC. 323 Ibid., [2010]:113. 324 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, [2011] ZACC para. 100. 325 PE Municipality, [2004] ZACC para. 24. 258

Rosevear — Judicial Interpretation of Social Rights the occupiers of a liquidated housing cooperative, for example, Justice Willis of the South Gauteng High Court, Johannesburg wrote that,

In economics, the law of supply and demand is incontestable, as ironlike in its strength, as the law of gravity. If we want more people to have access to housing, it must be made easier to own property and not more difficult. It is as simple as that. ‘Progressive’ rhetoric is no more capable of changing this fact than King Canute could stop the tide…

In contrast to the inherent financial limitations which every state must face, the private sector has unlimited potential. It draws upon creativity, human ingenuity, imagination, discipline, incentivises risk-taking and, responsive to market forces, promotes swift decision-making as well as the correction of mistakes. The institutions of the state, including the courts, can foster social progress by encouraging private sector initiatives rather than by stifling them.326

At the same time, judges have also continued to express a concern that permitting illegal occupation pending the provision of alternative accommodations has the potential to seriously complicate eviction proceedings.

Were this court to take the view that 'just and equitable' trumps illegality, so that a person in the circumstances of the appellant can remain indefinitely on the property, no matter the illegality of the situation, this would create vast and significant implications for eviction procedures throughout this Province, in that this, as a judgment of a Full Bench, it would be binding on many of our colleagues, who would have considerable difficulty in a range of cases, and we could not predict as to how subsequent evictions should adjudicated.327

Nevertheless, occupiers have, more often than not, obtained favourable orders in relation to eviction, predominantly through the issuing of orders requiring state provision of alternative land or emergency housing prior to the commencement of evictions. The difficulty of enforcing judgments has presented a serious barrier to rights realization. But, the Constitutional Courts’ relatively recent establishment of the possibility of personal liability for state officials who fail to comply with court order remedies appears

326 Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown Urban Village, [2012] ZAGPJHC 230 (2012) paras. 103, 105. 327 Resnick v Government of the Republic of South Africa, [2012] ZAWCHC 395 (2013). 259

Rosevear — Judicial Interpretation of Social Rights to have been at least somewhat successful in addressing the issue.328 Specifically, some litigants have adopted the strategy of naming specific officers of municipalities (for example, city managers) as parties and a failure on the part of a municipality to conform to a court order can generally be construed as a breach of a statutory duty on the part of the official. This, in turn, opens up the possibility of personal liability up to and including contempt of court. As a rule, litigants are not actually seeking the imprisonment of city officials. However, once legitimately named in a suit, they can be compelled to account for their (lack) of activities in open Court. In the words of Advocate Stuart Wilson,

It’s not so much the threat of contempt or imprisonment or fines that government officials are worried about… once you get a particular official’s name on the court papers, that official can be called to court and personally required to testify. Politicians hate that.329

Broadly speaking, this ‘naming and (potentially) shaming’ strategy, does appear to have had some effect in expediting state action. In recent years, at least some judges have also become less sympathetic to government submissions regarding the regulatory complexity and scarcity of resources to be devoted to social programs that are generally proffered. For example, in Thubakgale, a case concerning the supposed misallocation of public housing units, Justice Teffo, quite bluntly stated,

All the excuses by the first respondent about the budgetary constraints, the various processes that has to be finalised according to it before the houses can be built, etc, are delaying tactics to continue to deprive the applicants access to adequate housing. They are rejected.330

Justice Teffo then ordered the municipality to provide permanent housing to each of the applicants within one year and to register their title to that land within two years. However, the matter was appealed to the Supreme Court of Appeal, which granted the

328 Mchunu v Executive Mayor of eThekwini, [2012] ZAKZDHC 78 (2012); City of Johannesburg Metropolitan Municipality v Hlophe, [2015] ZASCA 16 (2015). 329 Stuart Wilson, April 18, 2016. 330 Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew, [2016] ZAGPJHC 389 (2016) at para. 73. 260

Rosevear — Judicial Interpretation of Social Rights municipality a six-month extension.331 The day before that deadline (28 June 2019), the municipality applied for an additional one-year extension and the residents of the community. Counter applications have been filed—including one for constitutional damages—and, at present, the matter remains before the courts.332

5.5.5 The Right to (Basic) Education: Adding Content to Social Rights? The right to education was not initially the subject of a significant body of litigation. In 1996, the Constitutional Court did assert that section 32(a) of the Interim Constitution created “a positive right that basic education be provided for every person and not merely a negative right that such a person should not be obstructed in pursuing his or her basic education.”333 The key element to note about both articulations of the right,334 however, is that there is no explicit requirement that basic education be free.335 Moreover, Despite the lack of internal qualification, there is some evidence to suggest that the Constitutional Court is inclined to limit the scope of the potentially onerous fiscal burden s.29(1)(a) could impose. This inference is based on the rejection of a “minimum core” approach and immediate realization in TAC coupled with the Constitutional Court’s determination that the primary responsibility for provision for housing children, guaranteed in a similar, unqualified manner, lies with the parents rather than the state.336 For the first decade and a half the Constitution was force, there were relatively few cases dealing with the right to basic education directly. Using the “reasonableness” framework, the Court did determine that children lawfully in the country seeking asylum

331 Ekurhuleni Metropolitan Municipality v Thubakgale, [2018] ZASCA 76 (2018). 332 “Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others ('Winnie Mandela’),” Socio- Economic Rights Institute (Blog) (blog), accessed August 12, 2020, http://www.seri- sa.org/index.php/litigation/securing-a-home?id=349:thubakgale. 333 Gauteng Provincial Legislature in re: Gauteng School Education Bill of 1995, [1996] ZACC 4 (1996) para. 9. 334 The education clause in the Interim Constitution stated that, “32. Every person shall have the right— (a) to basic education and to equal access to educational institutions; …” The education clause in the Final Constitution states that, “29. (1) Everyone has the right— (a) to a basic education, including adult basic education; …” 335 Woolman and Bishop, “Chapter 57: Education,” 5. 336 Ibid., 8. 261

Rosevear — Judicial Interpretation of Social Rights could not be denied access to education,337 nor could intellectually disabled students be excluded from the educational system.338 They also determined that the refusal to admit children prior to the year in which they turned seven was discriminatory,339 have considered the meaning of “where reasonably practicable” in relation to the right to receive education in the official language of one’s choice,340 and dealt with a number of cases regarding school governance and autonomy, particularly with respect to admissions policies and funding obligations.341 This is somewhat surprising considering the serious issues facing South Africa’s basic education system. There are numerous examples of effective and well-organized publicly funded schools in South Africa, including in areas affected by poverty. They are not, however, the norm. Key issues include lack of basic infrastructure and services such as libraries, computers, clean water, and electricity, well-trained teaching staff, and effective administrators.342 This situation remained largely unchallenged for the first decade and a half of the new constitutional dispensation.

337 Minister of Home Affairs v Watchenuka, [2003] ZASCA 142 (2003). 338 Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa, [2010] ZAWCHC 544 (2010). 339 Minister of Education v Harris, [2001] ZACC 25 (2001). 340 Mandla Seleoane, Socio-Economic Rights in South Africa: Theory and Practice (Pretoria, South Africa: Human Sciences Research Council, 2001), 48–52; Cameron McConnachie and Chris McConnachie, “Concretising the Right to a Basic Education,” South African Law Journal 129 (2012): 555–56; see e.g., Minister of Education (Western Cape) v Mikro Primary School Governing Body, [2005] ZASCA 66 (2005); Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo (Federation of Governing Bodies for South African Schools (FEDSAS) as Amicus Curiae), [2009] ZACC 32 (2009). 341 Head of Department, Department of Education, Free State Province v Welkom High School; Head of Department, Department of Education, Free State Province v Harmony High School, [2013] ZACC 25 (2013); MEC for Education in Gauteng Province v Governing Body of Rivonia Primary School, [2013] ZACC 34 (2013); KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, Kwazulu- Natal, [2013] ZACC 10 (2013); see also, Sandra Fredman, “Procedure or Principle: The Role of Adjudication in Achieving the Right to Education,” Constitutional Court Review, no. 6 (n.d.): 165–98. 342 Mncube and Madikizela-Madiya, “South Africa: Educational Reform,” 177–79; see also, Nicholas Spaull, “South Africa’s Education Crisis: The Quality of Education in South Africa 1994-2011” (Johannesburg, South Africa: Centre for Development and Enterprise, 2013); Saleem Badat and Yusuf Sayed, “Post-1994 South African Education: The Challenge of Social Justice,” The ANNALS of the American Academy of Political and Social Science 652, no. 1 (2014): 127–148, https://doi.org/10/f575jf; Dana Donohue and Juan Bornman, “The Challenges of Realising Inclusive Education in South Africa,” South African Journal of Education 34, no. 2 (June 2014): 01–14, https://doi.org/10/ggcr4z. 262

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Since 2011, however, the courts have played a much more active role in the issue.343 In Juma Masjid Primary School, the Constitutional Court affirmed that the right to basic education is an immediately realizable right and strongly suggested that the right implies a substantive standard of education, rather than merely a fixed number of years in school.344 Several subsequent decisions have developed this idea. The Eastern Cape High Court has affirmed the importance of both teaching and non-teaching staff in the realization of the right to basic education, holding that the Provincial MEC for Education was required to determine—and fund—minimum staffing levels for all public schools.345 With respect to learning materials, the Supreme Court of Appeal held that:

(1) It is declared that s 29(1)(a) of the Constitution entitles every learner at public schools in Limpopo to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

(2) It is declared that it is the duty of the State, in terms of s 7(2) of the Constitution, to fulfil the s 29(1)(a) right of every learner by providing him or her with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

(3) It is declared that the National Department of Basic Education and the Limpopo Department of Education violated the s 29(1)(a), s 9 (equality) and s 10 (dignity) right of learners in Limpopo in 2014 by failing to provide all of them with every prescribed textbook before commencement of the teaching of the courses for which they were prescribed.346

In addition, the Eastern Cape High Court has held that geographic or economic circumstances may necessitate state funded transportation to and from school,347 and that “adequate, age and grade appropriate furniture which will enable each child to have his or her own reading and writing space”348 is a component of the right to basic education.

343 McConnachie and McConnachie, “Concretising the Right to a Basic Education,” 560. 344 Governing Body of the Juma Musjid Primary School v Essay NNO, [2011] ZACC 13 (2011) paras. 37-44. 345 Centre for Child Law v. Minister of Basic Education, [2012] ZAECGHC 60 (2012) esp., para. 32. 346 Minister of Basic Education v Basic Education for All, [2015] ZASCA 198 (2015) para. 53; see also, Section 27 v Minister of Education, [2012] ZAGPPHC 114 (2012). 347 Tripartite Steering Committee v Minister of Basic Education, [2015] ZAECGHC 67 (2015) para. 19. 348 Madzodzo v Minister of Basic Education, [2014] ZAECMHC 5 (2014) para. 41. 263

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Overall, this line of interpretation suggests a judiciary that is growing increasingly dissatisfied with the state’s actions to fulfill the right to basic education, a right which is not internally qualified. For example, in a recent case about regulations pertaining to minimum standards and reporting requirements relating to school infrastructure, Acting Justice Msizi characterized the right to basic education as “a right that is unarguably immediately deliverable” and the case as dealing with the failure of the respondents—the Minister of Education and their provincial equivalent—to realize that right.349 Justice Msizi then provided the following analysis:

As I understand the argument put forward by the Minister, her hands are tied. To me this means that she is at the mercy of the other departments and organs of State. This simply compromises the constitutional value of accountability. There is no way that the Government can be held accountable for the discharge of its duty to provide basic school infrastructure. Therefore, because the provision of basic infrastructure is indisputably [an] integral component of the right to basic education, it means Government cannot be held to account…350

I cannot fathom a reason why, given the nature of the right in question, and the abundant crisis, the respondent cannot develop a plan and allocate resources in accordance with her obligations. In the event that she alleges that she is unable to do so, it is incumbent upon her to justify that failure under section 36 or 172(1)(a) of the Constitution. This she has not done…351

The obligation upon the respondent to provide basic education has been in existence since 1996 when the Constitution was born, 22 years ago. Thus, the respondent has had adequate time to plan and budget for all its duties in respect of the right to basic education.352

Ultimately, the impugned regulations were declared unconstitutional and an application for leave to appeal to the Constitutional Court was dismissed with costs on the grounds that the appeal lacked any reasonable possibility of success.353 Although this assessment is rather scathing, the analysis was still conducted within a reasonableness framework and

349 Equal Education v Minister of Basic Education, [2018] ZAECBHC 6 (2018) para. 180. 350 Ibid. para. 182. 351 Ibid. para. 185. 352 Ibid. para. 195. 353 Thami Magubane, “Court Dismisses Department of Education Claim,” The Mercury, November 9, 2018. 264

Rosevear — Judicial Interpretation of Social Rights emphasized the importance of policymaking and planning. Nevertheless, it did constitute a very public rejection of the idea that abstract arguments about resource scarcity and separation of powers are unlikely to find success in the Courts going forward.

5.6 Explaining South African Social Rights Jurisprudence From its earliest days South African judicial culture tended toward formalism and deference the elected branches. This is attributable to the Roman-Dutch origins of the legal system and its shift to a largely common law system at a time when the positivism of AV Dicey and John Austin was dominant. This view of the law promoted, inter alia, a firm separation of law and morality, with the former being the sole concern of the judge, and the priority of legal rules over legal values.354 This tradition did permit a degree of judicial creativity where the common law had not been superseded by statute law and where the application of legislation or case law was not clear. In such cases, common law reasoning permitted reference to concepts such as justice, fairness, and public policy in the rendering of decisions. It was this approach to judicial interpretation that manifest in the decisions of the AD during the Vote Crisis in the 1950s. These tendencies were marginalized during the apartheid era via the selection and promotion of judges prepared to further emphasize dominance of the positivist/formalist ethos already present in the judicial culture. These judges may have done so out of a sincere belief in the appropriateness of doing so, sympathy for the National Party’s political project, or some combination of the two. However, this ethos did not come to dominate South African judicial culture. There remained in the judiciary a number of judges who, channeling the interpretive discretion discussed above, attempted to mitigate the most egregious effects of apartheid-era legislation. In combination with a minority of advocates and attorneys who provided legal services to politically dangerous or indigent clients. It was also advanced by a small number of law professors who actively criticized judicial decisions, advanced doctrinal arguments in favor of a more legal values-based approach to statutory interpretation and the evaluation of actions taken under subordinate legislation, and argued for a greater role for the law in advancing the underlying values of the legal

354 Dugard, Human Rights and the South African Legal Order, 373–74. 265

Rosevear — Judicial Interpretation of Social Rights system. These legal professionals provided both an example for emerging lawyers and a roadmap, at least a partial one, for how to effect positive social change through legal means that did not conflict with existing understandings of how judges ought to judge. These vocal legal professionals were never the majority, but their ideas were to have influence on both the framers of the post-apartheid political order and via the selection of some of them for key judicial roles in the new constitutional dispensation. The judges of the newly created Constitution Court tread lightly at first. This gave the government the chance to set policy in place and get used to the idea of judicial power. It was also a calculated deference on the part of the Constitutional Court, one intended to establish its own legitimacy, particularly within the legal community. However, armed with an extremely progressive set of constitutionally entrenched social rights, the end of parliamentary sovereignty, and operating within an institution with an expressly transformative mandate, they were able to build on the ideas developed by scholars and practitioners alike during the apartheid. Ultimately, the judges of the Constitutional Court—and the judiciary as a whole—were able to develop an approach to constitutional interpretation that respected existing judicial culture and legal norms while simultaneously giving effect to social rights guarantees. They did so by balancing competing rights and interests in reference to technical and policy evidence and adopting an administrative law- like approach to considering the reasonableness of government policy. Thus, the deferential approach of Soobramoney gave way to the much more assertive decisions in Grootboom and TAC.355 The relatively small number of judges and cases, a strong tradition of precedent-following, and a solid case-reporting infrastructure means that these ideas and approaches have been adopted throughout the judicial hierarchy, not least because they support the stated goals of the judiciary and the legal profession more generally while not challenging, at least not too aggressively, existing judicial culture. More recently an increasing dissatisfaction with the ability of the state and its agencies to live up to not only their constitutional but statutory obligations in the areas of housing and, in particular, education have resulted in orders that, while giving the relevant state actor a margin of appreciation and discretion in recognition of the separation of

355 Soobramoney, [1997] ZACC; Grootboom, [2000] ZACC; TAC, [2002] ZACC. 266

Rosevear — Judicial Interpretation of Social Rights powers and the polycentricity of the issues involved, have begun to mandate specific actions on the part of the state that are directly related to the realization of a given right as opposed to simply requiring the development of a “reasonable” policy by which a right will be given effect. Although they have stopped short of defining the content of the right, they have proven themselves willing to demand specific performance (i.e. provision of textbooks to all student by a specific date) as a remedy for perceived failures and rule on the reasonableness of increasingly smaller programs and policies. They have also proven less and less willing to accept governments crying poor, most likely as a result of the frequency of such claims and the limited evidence offered in support of them coupled with more sophisticated litigation and litigators presenting studies and other data to the court that provides judges with a firm base from which interrogate state claim of scarce resources, complexity and length of planning processes. Although the orders and tone of the judgments may be changing, the underlying approach to judicial interpretation is not. The judges now have more information available to them and are better able to conduct meaningful analyses of the reasonableness of policies without having to defer to the state’s own assessment of its position.

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6 Conclusion: The Promise of Social Rights?

6.1 Social Rights Jurisprudence in Brazil and South Africa Differences in the education, socialization, and professional norms of South African judges as compared to Brazilian judges led the two groups to approach social rights in fundamentally different ways. Four principal factors contributed to this divergence. The first was the relative amenability of the South African judges to the consideration of public policy and the process of balancing as compared to Brazilian judges. The South African courts, like those in Brazil, exhibited a substantial degree of formalism during the authoritarian era. In both countries, that retreat was at least partially a pragmatic attempt to retain a degree of independence and personal security. In the context of South Africa, however, that formalism was not as deeply ingrained in the judicial culture as it was in Brazil, nor was it as widely accepted. Indeed, it was vociferously opposed by some leading members of the Bar and the academy, particularly from the early 1970s onward. Rather, it was manifest in a subset of “reliable” judges who, by virtue of judicial appointments being a discretionary power of the government of the day, were placed on the bench and assigned to the politically significant case. More broadly, although common law reasoning and argumentation is quite adaptable to formalism, it is also amenable to the incorporation of values-based reasoning and the consideration of public policy in a way that civil law reasoning is not. The second factor was the nature of legal education in South Africa. The South African professoriate was and is substantially more likely to engage in teaching as a full- time occupation and, in turn, to engage in research. Indeed, the supporters of anti-apartheid movement formed a small but significant portion of the public law side of the legal academy. As such, some of the work produced by the legal academy itself was highly critical of the apartheid regime and yielded a variety of legally-grounded strategies and approaches for opposing it that were available to South African judges.1 In contrast, the

1 That said, much of it was not critical of the regime, as many felt it necessary to avoid engaging with “government” law altogether and retreat into the realm of private law. Moreover, many in the academy were highly critical of those who did not render unto Caesar the realm of public or “government” law.

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Rosevear — Judicial Interpretation of Social Rights structure of the Brazilian legal academy did not lend itself to such work or its results. Thus, although there was a desire for a transformative and progressive approach to adjudication— manifest in, inter alia, the Direito Alternativo (Alternative Law) movement in the 1980s— there was little in the way of theoretically coherent doctrine that would allow Brazilian judges to remain true to their internalized beliefs about “the law” and adjudication on the one hand and their desire to promote and be seen to promote the social good on the other. The third factor was the difference in the nature of judging as a professional activity. South African judges are selected from the ranks of senior legal practitioners, traditionally those who had been accorded the title of Senior Counsel. Invariably, judging was a second career, a job taken up by those with a proven acumen for legal practice and with substantial life experience. This is a marked contrast to Brazilian judges of first instance, who tend to be young, steeped in formal reasoning, and have relatively limited experience outside of the formal study of law. The fourth factor was the creation of a new apex court in South Africa and, more importantly, the selection of its membership from the more pragmatically progressive members of the legal profession—judges, advocates, and law professors alike. With one possible exception, these initial appointees had internalized a respect for and belief in legitimacy of the existing set of interpretive norms that formed the core of South African judicial culture. At the same time, they were empowered to shape the nature of the constitution and, to a certain extent, the common law of South Africa by a transformative constitution that not only gave them the authority to do so but required them to take on that role. In contrast, the Brazilian apex court—the STF—remained in place with no immediate turnover in membership. The judges who presided over the new constitution were, for a time, the same who had done so during military rule and those who followed them entered into a well-established institutional environment. The former is conducive to change, the latter to stability. In short, South Africa’s system of legal education, the legal profession’s self- perception and ethics, and its method of judicial selection produced a specific set of acceptable norms, practices, and ideas about the role of the judiciary that had been internalized by its judges. In combination with the creation of a new Constitutional Court populated with progressive members of this judicial culture, this resulted in a judiciary that

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Rosevear — Judicial Interpretation of Social Rights necessarily approached the issues raised by social rights adjudication in a more pragmatic, policy-oriented fashion concerned with maintaining a balance between the proper role of the courts and the necessity of giving effect to the transformative guarantees present in the Constitution. Moreover, a strong tradition of precedent-following and supporting infrastructure ensured that once a decision had been made by the apex court, it would be applied by all courts going forward. In Brazil, on the other hand, a system of legal education that emphasized rote learning, judicial selection which privileged familiarity with existing law and theoretical coherence, and a generalized opposition to “law-making” on the bench resulted in a judicial culture primed to deal with social rights claims on an individualized basis. In combination with the absence of a newly constituted, progressively populated apex court this resulted in a judiciary which felt compelled to engage in the adjudication of social rights claims in absolute terms for those who came before them, but (almost) universally unwilling to engage in the analysis of policies are laws designed to give effect to those rights. To be sure, there were and continue to be members of the profession dissatisfied with the law, the legal system, and the ability of the judiciary to promote the realization of social rights. All too often, however, they lack a means of articulating their desire for change in a manner that is intelligible to existing judicial culture.

6.2 The Individual Model of Social Rights Adjudication

It is tempting to assess the approaches to social rights interpretation evident in Brazil and South Africa in terms of better and worse, with the policy-oriented South African model the better of the two and Brazil’s individualized model the worse. To do so, however, is to oversimplify a complicated and nuanced set of circumstances, the operation of which is not clearly understood. A particular matter of concern, here, is the degree to which individualized decision can result in structural changes. Initial analyses of social rights litigation in Brazil advanced a positive view of the judicialization of healthcare. Passarelli and Terto Júnior, for example, concluded that a key driver of Brazil’s success in the treatment of HIV/AIDS was the use of the litigation—both

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Rosevear — Judicial Interpretation of Social Rights individual and collective—to give force and effect to the principles underlying the unified health system.2 Similarly, Flynn argued that,

It was only as a result of high-profile court decisions in favor of patients, and extensive political pressure from AIDS activists and Sanitaristas that Congress passed Law 9.313 in 1996, guaranteeing free and universal access to HIV/AIDS treatment through the public health system.3

Writing in 2008, Piovesan noted a relatively low initial volume of litigation—attributed to barriers to accessing the courts for many Brazilians, a concern echoed by a number of other commentators4—but an emerging trend of right to health litigation that included “judicial rulings on the free provision of medicine, which, coupled with well-coordinated and efficient litigation strategies, have prompted changes in the law and the adoption of public policies that are considered exemplary.”5 Nevertheless, as early as 2007 concerns were being raised about judicial involvement in the distribution of medicines. Vieira and Zucchi, for example, argued that a citizen’s right to seek access to medication to which they are explicitly entitled is an essential accountability mechanism. But, “to take as a starting point the assumption that any claim for medication should be met” by virtue of the constitutionalized right to health, “reveals, in a pharmaceutical market of more than 15,000 specialized products, a lack of understanding of public health policies and the accompanying pharmaceutical management.”6 A number of empirical studies support this claim insofar as they identify substantial costs incurred by state actors in complying with judicial mandates of this type

2 Carlos André F. Passarelli and Veriano Terto Júnior, “Non-Governmental Organizations and Access to Anti-Retroviral Treatments in Brazil,” Divulgação Em Saúde Para Debate 27 (2003): 256. 3 Matthew Flynn, “Public Production of Anti-Retroviral Medicines in Brazil, 1990–2007,” Development and Change 39, no. 4 (2008): 520, https://doi.org/10/fpf2g2. 4 Regarding social rights, see Florian F. Hoffman and Fernando R.N.M. Bentes, “Accountability for Social and Economic Rights in Brazil,” in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, ed. Varun Gauri and Daniel M. Brinks (Cambridge University Press, 2008), 115. Regarding barriers to accessing the legal system in Brazil more generally, see William C. Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law (Praeger, 2000). 5 Flavia Piovesan, “Brazil: Impact and Challenges of Social Rights in the Courts,” in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, ed. Malcolm Langford (Cambridge University Press, 2008), 189. 6 Fabiola Sulpino Vieira and Paola Zucchi, “Distortions to National Drug Policy Caused by Lawsuits in Brazil,” Revista de Saúde Pública 41, no. 2 (2007): 8. 271

Rosevear — Judicial Interpretation of Social Rights as well as exponential rises in pharmaceutical expenditures—and health expenditures more generally—that are correlated with increases in right to health litigation.7 In addition, Ferraz has identified equity concerns with this “Brazilian model” of right to health litigation for publicly-funded curative treatment in which litigants have an extremely high success rate. This model of adjudication, he argues, both impairs the efficient allocation of scarce public resources and privileges those who are able to access the courts, an ability generally associated with socio-economic advantage. Put succinctly, he questioned the ability of this judicial approach to further the pro-poor intent of such rights. His findings have been supported by subsequent research,8 but challenged by at least one cross-national study.9 At present, the difficulties associated with reliably tracking right to health litigation noted previously, in conjunction with those relating to the identification of litigants’ socio- economic status have thus far impeded authoritative empirical analysis of this theory. Despite these concerns, many commentators have argued that favorable interpretations of social rights in the courts will have a positive impact if not immediately, then at least in the medium- to long-term by bringing about structural change. There are two key types of structural change that can result from litigation. Direct structural impacts manifest as court-mandates that require state action that benefits an entire class, such as the creation of a specific policy or program (e.g. a needle exchange). Indirect structural impacts

7 Vieira and Zucchi, “Distortions to National Drug Policy Caused by Lawsuits in Brazil”; Ana Luiza Chieffi and Rita de Cássia Barradas Barata, “Ações Judiciais: Estratégia da Indústria Farmacêutica para Introdução de Novos Medicamentos,” Revista de Saúde Pública 44, no. 3 (2010): 421–429, https://doi.org/10/cqnq5g; Januária Ramos Pereira et al., “Análise das Demandas Judiciais para o Fornecimento de Medicamentos pela Secretaria de Estado da Saúde de Santa Catarina nos anos de 2003 e 2004,” Ciência & Saúde Coletiva 15, no. suppl. 3 (2010): 3551–60, https://doi.org/10/df8m9d; Luciane Cruz Lopes et al., “Rational Use of Anticancer Drugs and Patient Lawsuits in the State of São Paulo, Southeastern Brazil,” Revista de Saúde Pública 44, no. 4 (2010): 620–28, https://doi.org/10/drgq6q; Marcelo Medeiros, Debora Diniz, and Ida Vanessa Doederlein Schwartz, “A Tese da Judicialização da Saúde Pelas Elites: Os Medicamentos Para Mucopolissacaridose,” Ciência & Saúde Coletiva 18, no. 4 (2013): 1079–88, https://doi.org/10/ghdsb8. 8 Virgilio Afonso da Silva and Fernanda Vargas Terrazas, “Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?,” Law & Social Inquiry 36, no. 4 (2011): 825–853, https://doi.org/10/c8chh6; Daniel M Brinks and Varun Gauri, “Law’s Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights,” Policy Research Working Paper (The World Bank Development Research Group, March 2012), 383; Daniel W. Liang Wang and Octavio Luiz Motta Ferraz, “Reaching Out to the Needy? Access to Justice and Public Attorneys’ Role in Right to Health Litigation in the City of São Paulo,” SUR - International Journal on Human Rights 10, no. 18 (2013). 9 Daniel M. Brinks and Varun Gauri, “The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights,” Perspectives on Politics 12, no. 2 (2014): 375–93, https://doi.org/10/f6bp3j. 272

Rosevear — Judicial Interpretation of Social Rights take the form of strategic responses to patterns of litigation, such as the expansion of antiretroviral programs in order to avoid the cost of continually litigating, and losing, individual claims.10 Indirect impacts may also operate more circuitously, as the result of political pressure generated by symbolic cases—victories or defeats—that act as rallying points for mobilization or readily communicable examples that increase public awareness and sympathy for an issue.11 Although there have been no apparent direct structural impacts on healthcare policy as the result of individual acts of litigation,12 there is at least one clear instance of an indirect structural change: Brazil’s policy of universal antiretroviral provision. As discussed above, the move toward a national policy of universal provision is attributable to a number of actors, including the Sanitaristas and various advocacy groups, however, there is a general agreement that the courts also played an important role in the creation of this policy in both São Paulo and Rio Grande do Sul and then at the federal level.13 In sum, there has been at least one structural change in Brazilian healthcare that has proven highly beneficial and is at least partly attributable to social rights litigation. Moreover, when contrasted with the South

10 Ibid., 379. 11 Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998); Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?, 2nd ed. (University of Chicago Press, 2008); César Rodríguez-Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America,” Texas Law Review 89, no. 7 (2011): 1669–98. 12 Cf. Danielle Borges, “Individual Inputs and Collective Outputs: Understanding the Structural Effects of Individual Litigation on Healthcare in Brazil,” Working Paper (FGV Direito Rio, 2014), 11–12. In 2010, the CNJ did issue guidelines regarding the adjudication of right to health claims and established a permanent forum to monitor health issues and litigation. Rather than altering the nature of the healthcare system or health policy, however, these changes were aimed at more effectively managing healthcare litigation and cannot really be considered direct structural change. 13 E.g., Passarelli and Terto Júnior, “Non-Governmental Organizations and Access to Anti-Retroviral Treatments in Brazil,” 257. The 2012 creation of a federal institution to deal with the assessment of healthcare technology (the Comissão Nacional de Incorporação de Tecnologias or CONITEC), including pharmaceuticals, is likely a second such instance. Daniel Wang, “Courts as Healthcare Policy-Makers: The Problem, the Responses to the Problem and Problems in the Responses,” Direito GV Research Paper Series (São Paulo, Brazil: Direito GV, August 2, 2013), 44; Borges, “Individual Inputs and Collective Outputs: Understanding the Structural Effects of Individual Litigation on Healthcare in Brazil,” 12–13. That being said, CONITEC has been criticized for a “[l]ack of objective clinical evaluation criteria… on what is more efficacious or safe” and the “absence of clear parameters for the analysis of cost effectiveness.” Tania Rodrigues, Milena Izmirlieva, and Gustav Ando, “Analysis of Brazilian Public Funding Process for New Biologic Drugs,” Value in Health 16, no. 7 (2013): A678–A678, https://doi.org/10/f2xhbd. 273

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African experience with litigation surrounding access to HIV/AIDS pharmaceuticals and the current scale of the problem, the individual model is less clearly inferior to the policy-oriented model. To be sure, Brazil’s courts had a head start in terms of right to health adjudication and it would be misleading to draw conclusions based on an analysis of only one element of a broader system of social welfare promotion, but the fact of the matter is that in 1990, HIV prevalence in 15-49 year-olds was 0.2% in Brazil and 0.4% in South Africa. In 2018, it was 0.5% in Brazil and 20.4% in South Africa.14 Whatever its drawbacks, we should be careful of too easily dismissing the utility of the individual model of social rights litigation for realizing discrete public health goals.

6.3 The Problem of Competing Rights: Housing versus Property A common theme in the adjudication of the right to housing in both Brazil and South Africa has been a conflict between the right to property and the right to housing. In both jurisdictions, significant proportions of the population live in informal settlements and lack security of tenure in their residences.15 In both jurisdictions, there was no serious debate about a judicially enforceable right to demand housing directly and immediately through the courts. Rather, litigation has focused on the justice of granting eviction orders to property owners seeking to remove the occupiers of informal settlements from their land and, in South Africa, the “reasonableness” of government plans to address housing shortfalls. With respect to the former, both South African and Brazilian judges have had to wrestle with the same conceptual problem: how to balance the competing interests of property rights holders and those seeking to realize their right to housing. The core of the issue has to do with determining who or what ought to be expected to bear the burden of rights realization.

14 “World Development Indicators” (The World Bank), accessed August 6, 2020, https://datacatalog.worldbank.org/dataset/world-development-indicators. 15 UN-Habitat estimates indicate that 22.3% of Brazil’s urban population and 23.0% of South Africa’s live in slums. Population living in slums is the proportion of the urban population living in slum households. A slum household is defined as a group of individuals living under the same roof lacking one or more of the following conditions: access to improved water, access to improved sanitation, sufficient living area, and durability of housing. Ibid. 274

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The Brazil and South Africa judges alike have clearly indicated that it is the State that bears the primary burden.16 While agreed in principle, in practice the two jurisdictions have dealt with this conflict in notably different ways. In Brazil, the judiciary has almost invariably granted eviction orders solely on the basis of established ownership and illegal occupation. Although the 1988 Constitution does make mention of the social function of property and prescribes a method of expropriation and compensation if that function is not being fulfilled,17 the interests of the occupiers are not taken into consideration in the determination of whether or not to grant the request except insofar as there may be practical considerations relating to the length of time required for vacation or removal in a manner that does not directly result in injury. To do so would impose the cost of realizing the right to housing directly on the property owner, who ought not be obligated to bear that cost rather than the state, who is obligated to do so, albeit progressively. As previously discussed, there have been instances in which Brazilian judges have required the state to pay stipends to occupiers on a temporary basis with the intent of enabling the occupiers to secure housing, but the effectiveness of this measure is questionable. More importantly, however, the eviction orders have not been contingent on the occupiers obtaining alternative accommodations or even receiving the stipend. It would, at least theoretically, be open to Brazilian judges to compel expropriation in such cases, but as yet this has not occurred, almost certainly as it would be considered an un-judge-like intervention in the policy-making process and subsequently overturned on appeal. In contrast, the South African judiciary has had no problem (indirectly) imposing part of the burden of realizing the right to housing on private individuals whose property is the subject of occupation, taking the line that an eviction order should, as a rule, not be granted if it would render the occupiers homeless. At the same time, they have consistently maintained that the principal burden for addressing the matter lies on the state. To this end, the concept of constitutional damages was developed and is applicable in circumstances where undue delay on the part of the state in ensuring the provision of alternative

16 Ultimately, of course, private individuals may be compelled to shoulder the cost, but this will occur indirectly, in a manner which distributes the burden as equitably as each jurisdiction’s system of taxation. 17 Art. 182. 275

Rosevear — Judicial Interpretation of Social Rights accommodations for occupiers has resulted in an unreasonable loss by the owner of the property to the benefit of the state (who gained by not providing accommodation).18 The award of such damages has proven rare and the Constitutional Court has affirmed that such damages would be only be appropriate in very particular circumstances. In the majority of cases, it has held, the law requires, “that an owner patiently wait to vindicate her property until the state has been given a reasonable opportunity to discharge its obligations… to provide alternative accommodation.”19 It is also of note that, while not foreclosing the possibility, the South African courts have, like their Brazilian counterparts, not asserted the competence to compel expropriation of occupied property as a means of forcing the realization of the right to housing.20 Here, too, the principal concern would appear to be a violation of the separation of powers. Another significant concern that has received substantially less attention is the effect of limiting property rights for indeterminant periods of time on the country’s investment climate and, by extension, economic growth. The issue was raised by a Judge of the South Gauteng High Court in 2012 who expressed a firm belief in neoclassical economic theory and substantial concern about the interference of the state in matters of property.21 However, a review of the standard case reporting databases shows no subsequent references to the judgment, suggesting the perspective it advances has not been taken up by other members of the judiciary. Nevertheless, despite being expressed in a somewhat ideological fashion, the point remains valid. As legitimate as the concerns regarding the realization of the right to housing are, limiting the enforceability of property rights will have and surely has had economic consequences. It may well be necessary to

18 Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd, [2004] ZASCA 47 (2004) para. 43. 19 Stuart Wilson and Michael Clark, Evictions and Alternative Accommodation in South Africa 2000-2016: An Analysis of the Jurisprudence and Implications for Local Government, 2nd ed. (Socio-Economic Rights Institute of South Africa, 2016), 18. 20 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, [2011] ZACC 33 (2011) paras. 62-66. 21 Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown Urban Village, [2012] ZAGPJHC 230 (2012) paras. 103, 105, 109. 276

Rosevear — Judicial Interpretation of Social Rights accept them in order to facilitate respect human dignity and the constitution, but this should be done with full and open knowledge of the costs and benefits of so doing.

6.4 Future Research With respect to the future of this line of research, I plan to expand the arguments and analysis developed in herein into a generalizable theory of socio-economic rights interpretation in transformative constitutions. The first step in this process will be the inclusion of two additional country-cases: one Asian (tentatively Indonesia) and the other Central or Eastern European (tentatively Estonia). The resulting quartet of case studies will present a nuanced portrait of judicial culture across key global regions, thus improving the generalizability of the findings, and facilitate further examination of the influence of political environment on judicial capacity to hand down judgments compelling substantial policy change or expenditure on the part of the elected branches. It will also offer insight into the impact of the formal structure of the judicial system on which social rights are claimed via the courts, how those claims are framed, and by whom they are advanced. These findings will, in turn, be used to undertake a quantitatively oriented study of the material impact of social rights entrenchment and litigation. Using data from the TIESR database, which I have recently taken on the stewardship of, I will further investigate the relationship of constitutionally entrenched ESRs, expenditures on social programs, and citizen well-being. Making use of the findings from the research described above, I will develop a more detailed model of the processes and effects of various arrangements of legal institutions involved in ESR litigation and interpretation. Particular attention will be paid to the distributive consequences of the two ideal-type jurisprudential approaches to social rights emerging from my doctoral research. The results of this work will be used to operationalize key legal concepts relevant to ESR adjudication in the development of improved statistical models of ESR efficacy. This, in turn, will contribute to an emerging quantitative literature examining the impact of ESR entrenchment on social spending, redistribution, and key development indicators such as infant mortality, literacy, life expectancy, and HIV prevalence Two additional lines of inquiry also suggest themselves. The first is the examination of the diffusion of judicially imposed remedies for social rights violations. As noted in the

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Rosevear — Judicial Interpretation of Social Rights analyses of the Brazilian and South African social rights jurisprudence, in certain instances the remedies and orders made by courts in those countries bear a striking resemblance to one another as well as the suggestion of a Colombian Constitutional Court influence on emerging Brazilian right to education jurisprudence. It appears that judicial ideas about social rights, particularly the types of remedies that may be appropriate or required, are diffusing; what is not apparent are the patterns of diffusion, the mechanisms by which it occurs, and the effects of incorporating these novel approaches into existing judicial culture. The second is the possibility of expanding the descriptive and explanatory power of the concept of judicial culture beyond the realm of social rights. Such a task would certainly be monumental, but there are many others working along similar lines and the cumulative nature of academic works suggests the potential for significant insights into the working of the least dangerous branch, though they may come about across scholars and years.

6.5 Conclusion Social rights are neither an unalloyed good, nor are they merely “cheap talk” put in place to allay criticism and divert the energy of activists. They are more complicated than this. They articulate noble goals and promote the cause of substantive equality, but they are, in the end, just words. To realize these goals the words must put into practice and, in so doing, the uncomfortable conflict of scarce resources, polycentric problems, and imperfect information must be accepted and managed. Poverty, homelessness, and destitution do not have clear solutions and it would likely be unreasonable to expect judges to know what those solutions were even if they did. Judges, courts, rights, and constitutions are all part of a broader struggle. But they are far from the only players. Indeed, it may well be that they are not even the most significant. Nevertheless they do have a role to play, by holding the agents of the state and elected officials accountable, by defining their obligations, by hearing arguments about applied moral philosophy in a forum of reason, and by rendering judgments that give validity and legitimacy to the claims of marginalized individuals and groups. Affirming the domestic legal obligations social rights place on the state is neither the end nor the beginning of the struggle, but it is an important component.

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References Constitutional Documents “Act of the British Parliament to Constitute the Union of South Africa, 1909.” British and Foreign State Papers, 1913, 5–39. “Constitution of Costa Rica, 1949.” British and Foreign State Papers 155 (1958): 175–220. “Constitution of the Bolivian Republic, 1826.” British and Foreign State Papers 23 (1852): 5–24. Constitution of the Federative Republic of Brazil (1988). “Constitution of the Republic of Austria, 1920.” British and Foreign State Papers 113 (1923): 883–916. “Constitution of the Republic of Costa Rica, 1869.” British and Foreign State Papers 59 (1874): 216–35. “Constitution of the Republic of Costa Rica, 1917.” British and Foreign State Papers 125 (1932): 301–41. Constitution of the Republic of South Africa, 1993, Act No. 200 of 1993 § (1994). “Constitution of the Republic of South Africa, 1996.” Government Gazette (Republic of South Africa) 378, no. 17678 (December 18, 1996): [1]-150. Constitution of the Republic of South Africa, Act No. 108 of 1996 (1997). “Constitution of the Sovereign Democratic Republic of India, 1949.” British and Foreign State Papers 157 (1959): 34–211. “Constitution of Zimbabwe Amendment (No. 20) Act, 2013.” in World Constitutions Illustrated. William S. Hein & Co., 2013. James, Herman G., trans. “Constitution of the Empire of Brazil, 1824.” in The Constitutional System of Brazil, 237–52. Washington: Carnegie Institution, 1923. James, Herman G., trans. “Constitution of the Republic of the United States of Brazil, 1891.” in The Constitutional System of Brazil, 221–36. Washington: Carnegie Institution, 1923. James, Herman G. The Constitutional System of Brazil. Washington: Carnegie Institution, 1923.

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Janvier, Louis Joseph, ed. “Constitution de 1843.” In Les Constitutions D’Haiti, 1801- 1885, 1:145–87. Paris: Marpon & Flammarion, 1886. Peaslee, Amos J., ed. “Basic Law for the Federal Republic of Germany, 1949.” In Constitutions of Nations, 3:599–626. Concord, NH: Rumford, 1950. ———, ed. “Constitution of the Argentine Republic, 1949.” In Constitutions of Nations. Concord, NH: Rumford, 1950. ———, ed. “Constitution of the Republic of Panama, 1946.” In Constitutions of Nations, 2:702–41. Concord, NH: Rumford, 1950. ———, ed. “Text of Draft Constitution for East Germany, 1949.” In Constitutions of Nations, 3:627–48. Concord, NH: Rumford, 1950. ———, ed. “The Constitution of Syria, 1950.” In Constitutions of Nations, 2nd ed., 3:360– 82. The Hague: M. Nijhoff, 1956. Peaslee, Amos J., and Dorothy Peaslee Xydis, eds. “Constitution of Ireland (1937).” In Constitutions of Nations, 239–67, 1950. ———, eds. “Constitution of the Republic of Guatemala, 1965.” In Constitutions of Nations, 3 (Rev.)., 4:559–624. The Hague, Netherlands: M. Nijhoff, 1970. Polish Constitutional Tribunal, trans. “Constitution of the Republic of Poland, 1997 (As Amended to 2009).” In World Constitutions Illustrated. William S. Hein & Co. “Political Constitution of the Peruvian Republic, 1828.” British and Foreign State Papers 16 (1828): 966–88. Rosenn, Keith S., trans. “1988 Constitution of the Federation Republic of Brazil: Annotated English Translation.” In World Constitutions Illustrated, 383–84, 1989. Ruchti, Jefri J., ed. “Constitution of the Federative Republic of Brazil, 1988, as Amended to December 2014.” In Constitutions of the Countries of the World, 1. William S. Hein & Co., 2015. Ruchti, Jefri J., and Maria del Carmen Gress, trans. “Constitution of the Gabonese Republic, 1991 (As Consolidated to Law No. 047/2010 of 12 January 2011).” In World Constitutions Illustrated. William S. Hein & Co., 2011. Ruchti, Jefri Jay, ed. “Political Constitution of the Republic of Chile, 1925.” In World Constitutions Illustrated. William S. Hein & Co., 2010. Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 § (1982).

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Secretary of State for Mass Communication, trans. “Constitution of the Portuguese Republic, 1976.” Diario Da Republica [Official Gazette] 1, no. 86 (April 10, 1976): 3–148. The Constitution of Sweden: The Fundamental Laws and the Riksdag Act (2016). Sveriges Riksdag, 2016. “The Constitution of the French Republic, 1958 (as Amended to 2008).” In Constitutions of the Countries of the World. Oceana Online, n.d. The Constitution of the Pluri-National State of Bolivia, 2009 (2009). http://www.heinonline.org.myaccess.library.utoronto.ca/HOL/Page?handle=hein.c ow/zzbo0044&collection=cow. “The Constitution of the Republic of Estonia, 1992 (as Amended to 13 August 2015).” In World Constitutions Illustrated. William S. Hein & Co., 2015. “The Constitution of the Republic of Indonesia, 1945 (as Amended to 2002).” In Constitutions of the Countries of the World. Oceana Online, n.d. “The Constitution of the Republic of the Philippines, 1987.” In Constitutions of the Countries of the World. Oceana Online, n.d. “The Interim National Constitution of the Republic of the Sudan, 2005.” In Constitutions of the Countries of the World. Oceana Online, 2005.

Legislation Brazil “Emenda Constitucional No. 3, de 1993.” Diário Oficial República Federativa do Brasil, no. 52 (1993): 3209–10. “Emenda Constitucional No. 45.” Díaro Oficial da União, no. 252 (2004): 9–12. “Emenda Constitucional No. 95.” Diário Oficial da União (Brazil), no. 241 (2016): 2–3.

Canada Supreme Court Act, c. S-26 RSC § (1985).\

South Africa Appellate Division Quorum Act, No. 27 of 1955 § (1955).

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Extension of Security of Tenure Act, No. 62 of 1997. Extension of University Education Act, No. 45 of 1959 Group Areas Act, No. 41 of 1950. High Court of Parliament Act, No. 35 of 1952. Native Laws Amendment Act, No. 54 of 1952. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998. Representation of Natives Act, No. 12 of 1936. Reservation of Separate Amenities Act, No. 49 of 1953. Senate Act, No. 53 of 1955. Separate Representation of Voters Act, No. 46 of 1951. South Africa Act Amendment Act, No. 9 of 1956.

United Kingdom Statute of Westminster, 1931 c. 4 . Human Rights Act, 1998, United Kingdom c.42.

Cases Brazil Min. Celso de Mello. ARE 639337 AgR/SP, 127 DJe 125 (STF (Segunda Turma) 2011). ———. PET 1246 MC/SC (Medida Cautelar na Petição), 13-02–1997 DJ ___ (STF (Monocrática) 1997). ———. RE 410715 AgR /SP, 03-02–2006 DJ 1529 (STF (Segunda Turma) 2005). Min. Ellen Gracie. RE 342413/PR, 09-11–2004 DJ 81 (STF (Monocrática) 2004). ———. SS 3073/RN, 14-02–2007 DJ 21 (STF (Presidência) 2007). ———. SS 3158/RN, 08-06–2007 DJ 22 (STF (Presidência) 2007). ———. SS 3205/AM, 08-06–2007 D.J. 23 (STF (Presidência) 2007). ———. SS 3429/RN, [2008] No. 18 D.J. ___ (STF (Presidência) 2007). ———. SS 3452/RN, [2008] No. 18 DJ ___ (STF (Presidência) 2007). ———. STA 91/AL, 05-03–2007 D.J. 23 (S.T.F. (Presidência) 2007). ———. STA 181/RN, [2008] No. 18 D.J. (S.T.F. (Presidência) 2007). Min. Gilmar Mendes. SS 3623/AM, [2008] No. 165 D.J. ___ (STF (Presidência) 2008).

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———. STA 185/DF, [2009] No. 207 D.J. ___ (S.T.F. (Presidência) 2009). Min. Marco Aurélio. RE 195192, 31/03/2000 DJ 266 (STF (Segunda Turma) 2000). ———. RE 368564/DF, 153 DJe 64 (STF (Primeira Turma) 2011). Min. Maurício Corrêa. RE 259508 AgR/RS, 16-02–2001 DJ 137 (STF (Segunda Turma) 2000). Min. Sepúlveda Pertence. PET 1246 MC/SC, 17-04–1998 DJ 64 (STF 1997). Min. Sydney Sanches. RE 198263/RS, 30-03–2001 DJ 144 (STF (Monocrática) 2001).

Canada Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. Gosselin v. Quebec (Attorney General), [2002] 2 S.C.R. 429. R. v. K. and F., EDL 71 (1932). R. v. Morgentaler, [1988] 1 S.C.R. 30. R v Oakes, [1986] 1 S.C.R. 103. Roncarelli v. Duplessis, [1959] S.C.R. 121.

Colombia Decision T-025 of 2004 (Const’l Ct. (3d Cham) January 22, 2004). Judgment T-760 of 2008 (Const’l Ct. (2d Cham.) July 31, 2008).

England and Wales Balfour v. Balfour, 2 KB 571 (1919). Fairchild v. Glenhaven Funeral Services Ltd., [2002] UKHL 22 Merritt v. Merritt, EWCA Civ 6 (1970).

France Decision N° 2010-617 DC, Act to Reform Retirement Pensions (Conseil Constitutionel (France) November 9, 2010). Decision N° 2013-672 DC, Law on the Protection of Employment (Conseil Constitutionnel June 13, 2013).

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Decision N° 2014-698 DC, Law Supplementing the Financing of Social Security for 2014 (Conseil Constitutionnel August 6, 2014).

Germany Abortion I Case, 39 BVerfGE 1 (1975). Abortion II Case, BVerfGE 88, 203, 2 BvF 2/90, 2 BvF 4/92, and 2 BvF 5/92 (1993).

India Confederation of Ex-Servicemen Associations and Others v. Union of India and Others, I.N.S.C. 513 (2006). M.C. Mehta v. Kamal Nath and Others, I.N.S.C. 1608 (1996). M.C. Mehta v. Union of India and Others, 5 S.C.C. 367 (2003). Olga Tellis v. Bombay Municipal Corporation, 3 S.C.C. 545 (1985). Re Sant Ram, INSC [India] 68 ([India] 1960). State of Punjab and Others v. Ram Lubhaya Bagga, I.N.S.C. 131 (1998).

South Africa Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue, [2010] ZAGPJHC 4 (2010). Brisley v Drotsky, [2002] ZASCA 35 (2002). Centre for Child Law v. Minister of Basic Education, [2012] ZAECGHC 60 (2012). Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, [1996] ZACC 24 (1996). Certification of the Constitution of the Republic of South Africa, [1996] ZACC 26 (1996). City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, [2011] ZACC 33 (2011). City of Johannesburg Metropolitan Municipality v Hlophe, [2015] ZASCA 16 (2015). Collins v Minister of the Interior and Another, 1957 (1) SA 552 (A 1956). Ekurhuleni Metropolitan Municipality v Thubakgale, [2018] ZASCA 76 (2018). Equal Education v Minister of Basic Education, [2018] ZAECBHC 6 (2018). Fose v. Minister of Safety & Security, [1997] ZACC 6 (1997).

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Governing Body of the Juma Musjid Primary School v Essay NNO, [2011] ZACC 13 (2011). Government of the Republic of South Africa v Grootboom, [2000] ZACC 19 (2000). Grootboom and Others v The Government of the Republic of South Africa, ZACC ([ 2000). Grootboom v Oostenberg Municipality, [1999] ZAWCHC 1 (1999). Harris v Minister of the Interior, 1952 (4) SA 153 ((C) 1952). Harris v Minister of the Interior, 1952 (2) SA 428 ((A) 1952). Head of Department, Department of Education, Free State Province v Welkom High School; Head of Department, Department of Education, Free State Province v Harmony High School, [2013] ZACC 25 (2013). Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo (Federation of Governing Bodies for South African Schools (FEDSAS) as Amicus Curiae), [2009] ZACC 32 (2009). Helen Suzman Foundation v Judicial Service Commission and Others, [2016] ZASCA 161 (2016). Hurley and Another v Minister of Law and Order and Another, 1985 (4) SA 709 ((D) 1985). Kent v. Transvaalsche Bank, TS 765 (1907). KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, Kwazulu- Natal, [2013] ZACC 10 (2013). Mchunu v Executive Mayor of eThekwini, [2012] ZAKZDHC 78 (2012). Madzodzo v Minister of Basic Education, [2014] ZAECMHC 5 (2014). Minister of Basic Education v Basic Education for All, [2015] ZASCA 198 (2015). Minister of Education v Harris, [2001] ZACC 25 (2001). Minister of Education (Western Cape) v Mikro Primary School Governing Body, [2005] ZASCA 66 (2005). Minister of Health v Treatment Action Campaign (No. 2), [2002] ZACC 15 (2002). Minister of Home Affairs v Watchenuka, [2003] ZASCA 142 (2003). Minister of Law and Order v Hurley, 1986 (3) SA 568 ((A) 1986). Minister of Posts and Telegraphs v Rasool, 1934 AD 167 (1934). Minister of the Interior v Harris, 1952 (4) SA 769 ((A) 1952).

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Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd, [2004] ZASCA 47 (2004). Modderklip Boerdery (pty) Ltd v Modder East Squatters, 2001 (4) SA 385 ((W) 2001). Ndlovu v Ncgobo; Bekker v Jika, 2003 (1) SA 113 ((SCA) 2002). Ndlwana v. Hofmeyr NO, 1937 AD 229 (1937). Nkondo & Gumede v Minister of Law and Order, [1986] ZASCA 20 (1986). Nkondo v Minister of Law and Order, 1985 (2) SA 720 ((W) 1984). Occupiers of Portion R25 of the Farm Mooiplaats v Golden Thread, [2011] ZACC 35 (2011). Occupiers of Skurweplaas v PPC Aggregate Quarries, [2011] ZACC 36 (2011). Port Elizabeth Municipality v Various Occupiers, [2004] ZACC 7 (2004). President of the Republic of South Africa v. Modderklip Boerdery (Pty) Ltd, [2005] ZACC 5 (2005). Preston and Dixon v. Biden’s Trustee, 1 Buch AC 322 (1883). Residents of Joe Slovo Community, Western Cape v Thubelisha Homes, 2009 ZACC 16 (2009). Resnick v Government of the Republic of South Africa, [2012] ZAWCHC 395 Rossouw v. Sachs, 1964 (2) SA 551 ((A) 1964). S v. Adams, 1979 (4) SA 793 ((T) 1979). S v Makwanyane and Another, ZACC 3 (1995). S v. Van Niekerk, 1970 (3) SA 655 ((T) 1970). Sachs v. Minister of Justice, 1934 AD 11 (1933). Section 27 v Minister of Education, [2012] ZAGPPHC 114 (2012). Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 430 ((D) 1997). Soobramoney v. Minister of Health (KwaZulu-Natal), [1997] ZACC 17 (1997). Staatspresident v Release Mandela Campaign, 1988 (4) SA 903 ((A) 1988). State President v Tsenoli; Kerchhoff v Minister of Law and Order, 1986 (4) SA 1150 ((A) 1986). Swart N.O. and Nicol N.O. v. De Kock, 1951 (3) SA 589 ((A) 1951). Tripartite Steering Committee v Minister of Basic Education, [2015] ZAECGHC 67 (2015).

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United States Bowers v. Hardwick, 478 U.S. 186 (1986). Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Brown v. Board of Education of Topeka (II), 394 U.S. 294 (1955). Lawrence v. Texas, 539 U.S. 558 (2003). Marbury v Madison, 5 U.S. 137 (1803). Roe v. Wade, 410 U.S. 113 (1973). Sierra Club v. Morton, 405 U.S. 727 (1972).

Interviews Brazil Alves, Aline Jurca Zavaglia Vincente Nicole Julie Fobe tr, 22 April 2015): Advisor, Office of Public Health Litigation, São Paulo State Public Ministry. Andrade, Roberto de Campos (Nicole Julie Fobe tr, 22 April 2015): Coordinator, Office of Public Health Litigation, São Paulo State Public Ministry. Augusto, André (Nicole Julie Fobe tr, 24 April 2015): President, Association of Judges for Democracy; Trial Judge (Juiz), São Paulo State Judiciary. da Silva, Virgílio Afonso (24 April 2015): Professor of Law, University of São Paulo de Moraes, Rodrigo Schoeller (Fábio Tomkowski tr, 9 May 2015): Prosecutor, Rio Grande do Sul Public Ministry. Falcão, Joaquim (10 November 2014): Dean, FGV-Rio Law School; Member, National Judicial Council (2005-2009); Secretary General, Robert Marinho Foundation (1987-2000). Gomes, Francisco Donizete (Fábio Tomkowski tr, 7 May 2015): Appellate Judge (Desembargador), Federal Court of Brazil (Fourth Region); Member, National Judicial Forum for the Monitoring and Resolution of Healthcare Demands.

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Leivas, Paulo (Fábio Tomkowski tr, 6 May 2015): Prosecutor, Brazilian Federal Public Ministry (Fourth Region). Rascovski, Luiz (Nicole Julie Fobe tr, 23 April 2015): Public Defender, State of São Paulo. Sadek, Maria Tereza (24 April 2015): Professor of Political Science, University of São Paulo Sarlet, Ingo Wolfgang (8 May 2015): Professor of Law, Pontifical Catholic University of Rio Grande do Sul; Trial Judge (Juiz), Rio Grande do Sul State Court. Schulze, Martin (Fábio Tomkowski tr, 7 May 2015): Trial Judge (Juiz), Rio Grande do Sul State Court; Member, National Judicial Forum for the Monitoring and Resolution of Healthcare Demands. Ximenes, Salomão Barros (Nicole Julie Fobe tr, 24 April 2015): Professor of Law and Researcher, Center for Applied Legal Research, FGV-SP; Researcher, Ação Educativa; (FGV-SP); Former Member, Steering Committee of the National Campaign for the Right to Education.

South Africa Anonymous (3 May 2016): Advocate, Cape Bar. Bilchitz, David (21 April 2016): Professor of Law, University of Johannesburg; Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) Blignault, Andre (29 April 2016): Judge, High Court of South Africa, Western Cape Division (Retired). Corder, Hugh (28 April 2016): Professor of Public Law, University of Cape Town; Technical Adviser, Transitional Bill of Rights (1993). de Waal, Johan (29 April 2016): Advocate (Senior Counsel), Cape Bar Dolamo, Mokgoatji Josiah (3 May 2016): Judge, High Court of South Africa, Western Cape Division (Deceased). Goliath, Patricia (29 April 2016): Deputy Judge President, High Court of South Africa, Western Cape Division. Harvey, Suzanna (29 April 2016): Advocate, Cape Bar; former labour activist.

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Hodes, Peter (29 April 2016): Advocate (Senior Counsel), Cape Bar. Le Roux, Michelle (5 May 2016): Advocate, Johannesburg Bar; member, New York Bar. Olivier, Morné (4 May 2016): Professor of Law, University of the Witwatersrand; Acting Judge, High Court of South Africa, Gauteng Division (Pretoria). Stevenson, Sasha (14 May 2016): Attorney and Head of Health, Section 27. Sujee, Zeenat (5 May 2016): Attorney, Basic Service Programme, Centre for Applied Legal Studies (CALS). van der Westhuizen, Johann (21 April 2016): Judge, Constitutional Court of South Africa (retired). Vassen, Mukesh (28 April 2016): Advocate, Cape Bar; former legal adviser, Office of the Speaker, Parliament of South Africa. Wilson, Stuart (18 April 2016): Executive Director, Socio-Economic Rights Institute of South Africa (SERI); Advocate, Johannesburg Bar. Windell, Leonie (22 April 2016): Judge, High Court of South Africa, Gauteng Division (Johannesburg); former magistrate.

Additional Materials “2010 Census: 11.4 Million Brazilians (6.0%) Live in Subnormal Agglomerates.” Instituto Brasileiro de Geografia e Estatística, December 21, 2011. https://censo2010.ibge.gov.br/en/noticias- censo.html?busca=1&id=1&idnoticia=2057&t=2010-census-11-4-million- brazilians-6-0-live-in-subnormal-agglomerates&view=noticia. “2019 South Africa: Constitutional Court Decisions.” South African Legal Information Institute. Accessed August 16, 2020. http://www.saflii.org/za/cases/ZACC/2019/. “About the Court.” Cour de Cassation (France). Accessed July 29, 2020. https://www.courdecassation.fr/about_the_court_9256.html. Ackerman, Bruce. “The Rise of World Constitutionalism.” Virginia Law Review, 1997, 771–797. Alarie, Benjamin, and Andrew Green. “Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada.” University of New Brunswick Law Journal 58 (2007): 73–91.

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Albisa, Cathy, and Jessica Schultz. “The United States.” In Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, edited by Malcolm Langford, 230–49. Cambridge University Press, 2008. Almond, Gabriel A. The Civic Culture: Political Attitudes and Democracy in Five Nations. Princeton, N.J.: Princeton University Press, 1963. Alves da Silva, Oney Cardoso Badaró, and Sheila Cristina Furtado Sales. “Literacy of Young and Adult People: A Reflection on the Program Literacy for All (TOPA), in the City of Vitória da Conquista, Bahia, Brazil.” US-China Education Review A 5, no. 12 (2015): 783–91. Andersen, Ellen Ann. Out of the Closets & into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Electronic resource. Ann Arbor: University of Michigan Press, 2006. Andrew, Milton H., ed. “Political Constitution of the United States of Mexico, 1917.” In Twelve Leading Constitutions, 216–90. Compton: American University, 1931. Anna Jonsson Cornell, Thomas Bull, Lars Karlander, and Anna-Sara Lind. “Developments in Swedish Constitutional Law: The Year 2015 in Review.” I-CONnect Blog (blog), November 2, 2016. http://www.iconnectblog.com/2016/11/developments-in- swedish-constitutional-law-the-year-of-2015-in-review/. Apartheid Medicine: Health and Human Rights in South Africa. AAAS Publication 90- 09S. Washington D.C.: American Association for the Advancement of Science, 1990. Aragao, E. D. Moniz de. “The Brazilian Judicial Organization.” Inter-American Law Review 6 (1964): 239–64. Arantes, Rogério Bastos. “Constitutionalism, the Expansion of Justice and the Judicialization of Politics in Brazil.” in The Judicialization of Politics in Latin America, edited by Alan Angell, Rachel Sieder, and Line Schjolden, 231–61. Basingstoke: Palgrave Macmillan, 2005. Araujo, Nadia de. “The Status of Brazilian Legal Education.” Journal of Legal Education 51 (2001): 325.

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Arguelhes, Diego Werneck. “Old Courts, New Beginnings: Judicial Continuity and Constitutional Transformation in Argentina and Brazil.” JSD, Yale University, 2014. Arguelhes, Diego Werneck, and Ivar A. Hartmann. “Timing Control without Docket Control: How Individual Justices Shape the Brazilian Supreme Court’s Agenda.” Journal of Law and Courts 5, no. 1 (February 9, 2017): 105–40. https://doi.org/10.1086/690195. Arguelhes, Diego Werneck, and Ivar Alberto Martins Hartmann. “Law in the Books and Books in the Court: Are Social Rights Literature and Judicial Practice on the Same Page in Brazil?” Annuaire International Des Droits de l’Homme VII (2014): 17– 38. Aron, Raymond, ed. “Constitution of the French Republic, 1958 (Vth Republic).” In France: The New Republic, 75–113. New York: Fund for the Republic, 1960. Austin, John. Lectures on Jurisprudence, or, the Philosophy of Positive Law. Electronic resource. Edited by Robert Campbell. 5th ed. 2 vols. London: J. Murray, 1885. Baaklini, Abdo I. The Brazilian Legislature and Political System. Westport, Conn.: Greenwood Press, 1992. Baar, Carl. “Social Action Litigation in India: The Operation and Limitations of the World’s Most Active Judiciary.” Policy Studies Journal 19, no. 1 (1990): 140–150. https://doi.org/10.1111/j.1541-0072.1990.tb00883.x. Badat, Saleem, and Yusuf Sayed. “Post-1994 South African Education: The Challenge of Social Justice.” The ANNALS of the American Academy of Political and Social Science 652, no. 1 (2014): 127–148. Balakrishnan, Radhika, Diane Elson, James Heintz, and Nicholas Lusiani. “Maximum Available Resources & Human Rights: Analytical Report.” New Brunswick, NJ: Center for Women’s Global Leadership, 2011. Ballard, Megan J. “The Clash between Local Courts and Global Economics: The Politics of Judicial Reform in Brazil.” Berkeley Journal of International Law 17 (1999): 230. Bantu Education Act No. 47 of 1953, Act § (1953).

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