BEYOND MINIMALISM AND USURPATION: DESIGNING JUDICIAL REVIEW TO CONTROL THE MIS-ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS.

• Author: De Oliveira Santos, Pedro Felipe

INTRODUCTION 496 1. JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS: A CRITIQUE OF THE CRITIQUE 503 1.1. The case study: purposes and justification 503 1.2. The case study: the judicial 504 enforcement of the right to health care in Brazil and its associate discourses 1.3. The concept of mis-enforcement of rights 513 2. INSTITUTIONAL ARCHITECTURE, 518 POLITICAL ARRANGEMENTS AND COURTS: PLAYING THE JUDICIAL ROLE 2.1. A critique of the critique again: 518 turning to constitutional law. 2.2. A transformative constitution within 520 a dysfunctional political system 2.3. Reconnecting the dots: the judicial 524 role under institutional arrangements 2.4. Democracy through the courts? 530 3. A DESIGN APPROACH: SOME 535 GUIDELINES FOR DEVELOPMENT 3.1. Justification of a design approach 535 3.2. Theoretical background for a design approach 536 3.3. Imagining it differently: Some practical guidelines 544 CONCLUSION: NEW CONSTITUTIONAL 555 APPROACHES FOR DYSFUNCTIONAL DEMOCRACIES INTRODUCTION

In September 2015, access to phosphoethanolamine was interrupted for cancer patients taking part in drug trials at the Sao Paulo State University. (1) Administrators at this prominent public institution acted to prohibit researchers from distributing unregistered substances. Despite a lack of scientific evidence of phosphoethanolamine's efficacy when used in humans, the Department of Chemistry had been producing and distributing it free of charge, claiming an ability to kill tumor cells. (2)

In October 2015, the Brazilian Supreme Court agreed with a claim brought by an individual plaintiff, and reestablished her access to phosphoethanolamine. (3) Justice Fachin issued a provisional ruling stating that the Sao Paulo State University was to allow the plaintiff, a terminal cancer patient, to continue receiving the phosphoethanolamine. (4) This ruling called nationwide attention to the alleged benefits of the then-unknown phosphoethanolamine, leading other patients to request access to the same treatment. Subsequently, in February 2016, the university claimed it faced a state of chaos, as more than 8,000 rulings from federal and state courts had ordered its Department of Chemistry to produce and distribute the compound for a multitude of plaintiffs. In order to comply with the numerous rulings, the university canceled ongoing research, reallocating resources and budgets to transform research labs into pharmaceutical production facilities. This creation of a small pharmaceutical industry was necessary to produce and distribute adequate quantities of needed phosphoethanolamine. (5)

This case is just a short chapter in one of the most discussed topics in developing countries since the third wave of democracy: the judicial enforcement of socio-economic rights. (6) Most of the national constitutions enacted in the last century have entrenched socio-economic rights, as a movement to transform a set of basic social needs into enforceable entitlements: 144 constitutions have included the right to free education; (7) 142 constitutions have recognized the right to health care, (8) and 138 constitutions have recognized the right to work. (9)

However, the inefficiency of some states in designing policies that guarantee access to socio-economic rights has created complex dynamics of enforcement within which the judiciary plays the protagonist. Perceiving a shortcut to policy implementation, political actors have strategically brought lawsuits against the states asking for rights enforcement. Enrollment in housing policies, construction of schools and hospitals in poor communities, and improvement of labor conditions exemplify the typical claims being brought. In response, courts of developing countries have massively reviewed policies and legislation in favor of plaintiffs. For instance, since the 1990s, the Constitutional Court of South Africa has released remarkable decisions enforcing the right to housing, (10) the right to health care and access to HIV/AIDS treatment, (11) and the right to social security. (12) In the same fashion, the Indian Supreme Court ordered the Government of West Bengal to design a plan guaranteeing adequate medical facilities for dealing with health emergency cases, after eight hospitals in Calcutta had refused to admit a patient, as vacant beds were not available. (13) Significant cases may also be found in Brazil, Pakistan, Colombia, and Hungary, among other countries. (14)

This Article evaluates the involvement of courts in the implementation of socio-economic rights, in order to confront the two main arguments formulated by constitutional law scholars to address this topic. Scholars have split into two lines--minimalism versus activism--as if they were mutually exclusive packages, leading to an endless discussion regarding the ideal level of judicial enforcement of socio-economic rights. Both lines have been inspired by the American literature on the political roles of courts and on the legitimacy of the judicial review. (15)

The first line generally regards judicial enforcement of socio-economic rights as a usurpation of administrative and legislative functions. Thus, judges are prescribed a minimalist, restrained behavior, due to their alleged lack of democratic legitimacy to interfere in other branches, as well as their asserted lack of institutional capacity in dealing with costly rights. (16) For this reason, courts should neither redefine social interests solidified by democratic institutions nor indirectly reallocate the state budget, allowing the executive and legislative branches to formulate policies at their discretion and pace. In this view, judicial under-enforcement would be preferable to the over-enforcement of rights.

Conversely, the second line has depicted the enforcement of socioeconomic rights as a plausible legitimate task constitutionally assigned to courts, especially given the other branches' reiterate procrastination in delivering the social benefits recognized by the constitution. Positive social change resulting from the realization of a right helps preserve the constitutional normativity and justifies court intervention in policies and legislation. Under these assumptions, judicial over-enforcement would be preferable to the under-enforcement of rights.

In sum, the first line adopts a deontological perspective, since an abstract, previously asserted lack of democratic legitimacy is taken as sufficient criterion to limit court action. By contrast, the second approach takes a consequentialist perspective, since the social, moral and normative impacts of rulings are taken as concrete sources of judicial legitimacy, and thus sufficient criteria to encourage court action.

In following the same pattern, and also inspired by the American scholarship on judicial review, constitutional law scholars have moreover contrasted between two strengths of remedies to address the issue. Under strong review, courts may strike down and redefine statutes, as well as impose structural injunctions on the government. (17) Under weak review, courts recognize a rights violation, but may not enforce the constitution on the same ground, (18) thus engaging in dialogical mechanisms to reduce tensions between courts and self-governance. (19) Mark Tushnet and Cass Sunstein have long advocated for the weak form of judicial review. (20)

This Article adopts as a case study the judicial enforcement of the right to health care in Brazil, which currently represents the most problematic field of public law litigation in this country, with 392,921 in-progress lawsuits in 2014 accusing the state of ignoring this constitutional right. (21) Drawing on data collected by the Human Rights Clinic at Harvard Law School, (22) the Brazilian National Council of Justice, the Brazilian Ministry of Health, and the State of Sao Paulo, as well as opinions of the Brazilian courts, it will provide an overall picture of the health-related litigation and its social impacts.

The empirical findings support the hypothesis that the constitutional law debate on judicial enforcement of socio-economic rights has fallen into a false dichotomy. Neither of the mainstream models--judicial restraint and judicial activism--offers a complete account of the topic at stake. The focus of the debate on the ideal level of judicial intervention in policies and legislation hides the core of the issue: the mis-enforcement of rights, a scenario in which the protection of a target group causes unintended, unjustified distributive and aggregate impacts that increase overall inequality.

This scenario, at first glance, seems to weigh against the activist perception that judicial enforcement of socio-economic rights favors disadvantaged groups and enhances equality, which would lead arguments prescribing judicial minimalism or absenteeism to prevail. Indeed, in a number of cases, courts have issued strong remedies to provide middle class individuals with non-basic services, negatively affecting the most disadvantaged people, who would otherwise have benefited through regular policies. (23) However, evidence also demonstrates that, under the Brazilian institutional arrangements, with characteristics shared by other developing countries, weak and dialogical remedies have not induced real policy implementation in a number of other cases. (24) When political institutions are not keen to dialogue with courts, or when the political process seems obstructed, weak remedies have contributed to preserve a status of rights violation. In practice, this scenario has left untouched a distribution of limited resources that may have adversely damaged disadvantaged individuals who would otherwise have benefited if protection had not been denied.

On the contrary, successful cases of both under- and over- enforcement scenarios have also been found. For instance, in the late 1990s, many courts imposed structural injunctions to provide individual plaintiffs with HIV/AIDS drugs. The...