Virgílio Afonso da Silva

 

Read the constitution of any country and it will describe a State which bears little resemblance to reality. Have a look at the constitutions of Latin American countries and you will get the impression that nowhere in the world is the welfare state so highly developed. Pick up the constitutions of Germany, the United States or Norway and you get the opposite impression. Everybody knows, however, that access to education, health, work or housing is very difficult in Latin American countries, especially when compared with countries of the developed world. One of the ways to get reality and constitutional text to converge is for all public officials – from government, legislators, administrators and including judges – to properly fulfil their duty to implement the social rights set out by the constitution. But harmony is here very far from reality.

Although democracy and human rights are positive things, this does not mean that they coexist harmoniously. On the contrary, one of the main goals of a bill of rights is to restrict the individual discretion of legislators and governments. Religious freedom, for example, means among other things that the State (above all legislators and government) must not impose a religion on its citizens. Freedom of expression and freedom of the press mean that government censorship is forbidden, and so on. In this sense a bills of rights is used to create a ‘statefree zone’ in which citizens enjoy almost complete autonomy to decide how to conduct their lives. In nearly every country in the Western world it is the duty of the judiciary to keep a watchful eye on whether government and legislators are respecting the freedom and civil rights of the people. If judges (normally from a supreme or constitutional court) are convinced that a given law or government act unduly restricts a right previously guaranteed by the bill of rights, then they have the legal authority to declare that act or law void. The actions of democratically elected legislators are in this way kept in check by the existence of a bill of rights on the one hand and a constitutional court on the other. This situation is often characterised by two parallel dichotomies: democracy vs. bill of rights, and legislators vs. judges. The tension here is obvious and this is one of the major areas of study of constitutional law. Judges and legislators very often sing out of tune, but the situation can get very much worse.

The bills of rights of many constitutions promulgated after World War II contain not only the above-mentioned civil rights, but also so-called social rights, which are not intended to create a ‘statefree zone’, on the contrary they demand the active participation of all public officials in their implementation. As an example, the Brazilian constitution guarantees a right to education, a right to health, a right to work, a right to housing, a right to leisure, a right to security, a right to social security, the protection of motherhood and childhood, and the assistance to the destitute. Needless to say, none of these rights is fully implemented in Brazil, quite the reverse.

According to the Human Development Report of the United Nations (2004), although Brazil has the ninth highest GNP (Gross National Product) in the world, it also has the fourth highest rate of social inequality.

Among Brazilian legal scholars and legal professionals there is the widespread belief that citizens are always better protected if judges can always interfere and have the last word when it comes to public policy issues. The rationale underpinning this belief is quite simple: social rights need public policies in order to be implemented; if someone does not have full access to a social benefit (education, health etc.), this means that the government and legislators have not done their job properly; only judges can correct this state of affairs, granting individuals access to benefits they did not receive directly from the government, such as medicine or medical treatments etc.

Although this train of thought is certainly appealing, I maintain that in a great number of cases it is in fact quite simply wrong. The reason is twofold:

When judges rule on cases involving social rights and public policies, they very often ignore the collective nature of such rights by treating problems related to them as if they were equal or similar to problems related to individual rights. What consequences does this kind of approach have? In order to answer this question, I will give you a real example. According to the World Health Organization, Brazil has the most advanced national HIV/AIDS treatment programme in the developing world – it includes free distribution of medication among other measures. However, there is an enormous number of judicial decisions granting to individuals the right to medication which is not currently included in the government’s health programme because judges often accept the plaintiffs' allegations according to which the claimed medications are more effective than other drugs in relieving the symptoms of AIDS. Although this kind of decision is often seen as a victory of social justice over government incompetence, there are two hidden issues which make a strong claim for a less simplistic approach.

First of all, in a scenario of scarce resources, the costs incurred by these judicial decisions have to be covered by withdrawing resources from other public policies. This could mean, for instance, that less money is available for buying medicines to cure other diseases, or for building hospitals. The collective nature of social rights is undermined in these cases in favour of the individual, since the money that could be spent in global programmes has to be allocated to individual claims. It could be said that too much individual success often means collective failure.

Furthermore, most of these individual claims for a particular drug or for a particular medical treatment are in fact encouraged by the pharmaceutical industry, in the hope that a large number of judicial decisions granting their medicines to individuals will force the government to include them in the list of drugs in the official health programme. This would mean a huge amount of money to these companies. So, although judges may not be aware of it, their decisions not only undermine the collective character of social rights and public policies, but also help the pharmaceutical industry to sell its new medicines.

 

One could argue that, although the problems mentioned above do exist, it is also true that many people can only gain access to medical treatment or other social rights by appealing to the judiciary, and this in itself, in theory, would be enough to justify judges' activism. This would probably be true in a fairly equal society, but it is surely not the case in Brazil and in many other developing countries in the world. The reason for this is quite simple. Despite the efforts of public and pro-bono attorneys, a successful outcome in a Brazilian court is almost always linked to having enough money to pay for good lawyers. Real access to the judiciary is in reality restricted to the wealthiest in society.

It is no coincidence that many of the cases relating to access to medication are AIDS related, and not for diseases more likely to affect the lower classes, such as diphtheria, tuberculosis etc. While the poor have no access to the basics, the upper middle class are winning their cases to pay for their expensive treatments.

Contrary to appearances, however, I am not arguing for a passive judiciary. As I stated at the beginning of this article, the effective implementation of social rights requires the cooperation of all public officials, including judges.

However, if judges and government officials do not ‘sing in tune’ with each other, do not establish dialogue, we will keep on watching one side trying to put into practice its own idea of social justice independently of the other. Unfortunately, none of them has the talent to be a soloist – it would be better if they began to try to rehearse together.