Constitutional courts and bodies performing the review of constitutionality and/or the compliance with international conventions of national laws and administrative regulations and official conduct, remain the main forum for rights claims. For this reason, a separate Chapter 5 of the Guide is dedicated to certain standards and techniques that judicial and quasi-judicial bodies have developed and used to adjudicate ESC rights claims.
In general, because they are the guardians of the Constitution and control the compliance of other authorities or actors with these highest laws in the domestic hierarchy of norms, Constitutional courts and bodies are generally well placed within the judiciary to ensure enforcement of effective remedy and full reparation that include the guarantee of non-repetition. Their decisions are binding on lower jurisdictions and their orders can have far-reaching effects on the domestic legal and policy frameworks.
Constitutional remedies are therefore important because:
- They may expressly refer to human rights and freedoms as provided in the Constitution and/or international human rights law, including treaties;
- They may serve to provide the link between the domestic and international authorities as the last instance and as the interpretive body in matters of human rights;
- They may establish the basis for the most comprehensive scope of remedies and reparations and may be in a position to order the necessary legal reform to guarantee non-repetition of similar violations.
In fact, comparative experiences show that the constitutional guarantee of ESC rights, at least as they are provided for in international human rights instruments, is the most secure scenario for an effective protection of these rights. Such guarantees provide legal certainty and predictability to both those seeking justice and officials with a duty to provide it. The authority that derives from the decision of a constitutional court may also serve to insulate government decision makers from political factors and calculations that might otherwise lead to short term policy priorities that are to the detriment of safeguarding human rights.
Even where there are gaps in respect of the constitutional guarantee of ESC rights, constitutional courts and authorities have sometimes found ways to “read” such guarantees into other existing provisions, often those protecting civil and political rights. The latter are typically provided a greater range of guarantees and protections by domestic constitutions. Particularly given the intrinsic interdependence and interrelatedness of all human rights, civil and political rights offer important possibilities to protect ESC rights. The right to life, the right to privacy, the right to personal integrity, the right to equality before the law or to a fair trial, are among the rights that have served as a basis in the litigation of ESC rights including, among others, the right to health, to housing, and to food.
Of course, this protection through civil and political rights is not fully satisfactory. Using civil and political rights guarantees as a means to protect ESC rights will only be effective where and to the extent there is overlap between the sets of rights. Such protections will therefore necessarily remain only partial. In addition, while judiciaries can and should be robust in protecting rights, it is not consistent with the judicial function to elasticize their interpretation of the scope of rights beyond breaking point. Judiciaries may hold themselves open to reproach for infringing on prerogatives of executive and legislative branches. Courts should not have the primary responsibility of filling in normative gaps and failures of other branches of government in respect of international human rights obligations.
The ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study), should be consulted, as it dedicates a chapter to the indirect protection of ESC rights through civil and political rights. Additionally, in Chapter 5, the present publication will make reference to cases adopting various categories of techniques and standards of judicial review in which civil and political rights have been invoked to protect ESC rights.
A few exemplary cases are highlighted below where judicial and quasi-judicial bodies in several jurisdictions have developed a broader interpretation of some of the fundamental rights and freedoms enshrined in their constitutions that are more classically defined as civil and political rights.
By way of example, courts of highest jurisdiction in India and Colombia have interpreted the right to life as entailing normative content beyond the narrow understanding of a protection against arbitrary deprivation of life. Using the concept of life in “dignity”, these courts have protected the right to health, to housing, to food or to education under the constitutionally guaranteed right to life.
The Indian Supreme Court is well-known for its proactive standpoint in protecting ESC rights through an interpretation of the right to life as entailing not only protection against such practices as unlawful killings, but also as entailing elements such as access to health, food, education and housing, which provide for a dignified life that should be guaranteed to every human being.
One of these emblematic cases is Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal & Anor (1996). In its judgement, the Supreme Court of India found a violation of the right to life under article 21 of the Constitution because of the failure of government hospitals to provide emergency health care to the petitioner, who had fallen off a train and suffered serious head injuries. The petitioner was denied emergency medical treatment at a series of public health facilities on the grounds that they lacked capacity to attend to his needs for care, either because of the lack of adequate services or the lack of vacant beds. An important aspect of the Court’s judgement was the reparation it provided. The Court ordered compensation to redress the violation of the right to life suffered by the individual petitioner. In addition, the Court decided on a number of remedial measures to improve the functioning of the public health system with a view to prevent future repetitions of such violations of the right to life. The decision is not only important because it protects access to emergency health care, as an element necessary to the preservation of human life in a “welfare State”, but also because it rejects the contention of the respondent public authorities that it could not act owing to a lack of resources to provide the necessary health facilities, services and goods for emergency care. The Court stated that: “It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.”
Another strand of jurisprudence based on civil and political rights that protects important aspects of the normative content of ESC rights concerns the rights of persons deprived of their liberty, who are in a situation of increased dependency on the State to enjoy their rights. In various cases, judicial and quasi-judicial bodies have protected ESC rights of this category of rights-holders in the context of a review of the conditions of detention and/or the right to be free from torture or cruel, inhuman or degrading treatment or punishment, and more generally to physical integrity. Based on global or regional human rights standards in relation to the treatment of persons deprived of liberty, a number of judicial and quasi-judicial bodies have clearly condemned infringements of ESC rights, including by indicating that conduct which would effectively violate such rights must not in any way be used as a punitive response to an offence or crime, or justified by the fact that a person is in detention.
The two following cases illustrate the indirect protection of the rights to food and health in this context.
Habeas corpus case – El Salvador
In a 2013 decision under the habeas corpus procedure, the Constitutional Chamber of the Supreme Court of El Salvador admitted a habeas corpus writ petition of a claimant in detention suffering from diabetes and hypertension against the penitentiary administration. The claimant argued that the failure to provide him with adequate food and an appropriate diet violated his right to health and physical integrity. Although the Court rejected the detainee’s petition on the grounds that medical evidence did not in fact support the claim, the case shows the willingness of the Court to consider the protection of ESC rights under habeas corpus procedures. The Court reviewed a range of international and regional human rights standards, by which the State through the penitentiary authorities is bound and should guarantee to any person in detention. In addition to the General Rules of the Penitentiary Law guaranteeing adequate food to all detainees, including to those with specific dietary needs for health reasons, the Court invoked the right to the highest attainable standard of health of persons in detention as implying obligation of the State to ensure the cooperation between the health care services of detention centres and the general health system.
The Constitutional Chamber also reiterated the doctrine it has developed concerning the use of habeas corpus procedure to protect the dignity and integrity of persons in detention. In this context, it highlighted the central role of protecting the right to health of detainees and warned that a failure to guarantee such protection can unlawfully worsen the conditions of even a lawful detention.
In a case decided by the High Court of Fiji in May 2000, the reduction of food rations as a form of punishment of a detainee was considered to be in violation of section 25 (1) of the Constitution that provides for the prohibition of torture and cruel, inhumane, degrading or disproportionately severe treatment or punishment. It also based its decision, among other factors, on article 10 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees persons deprived of their liberty be treated with humanity and respect for the inherent dignity of the human person, and makes reference to article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which identifies the right of everyone to be free from hunger.
Another way in which civil and political rights may provide indirectly for the protection of ESC rights, relates to the procedural aspects of the normative content of ESC rights and, more generally, rule of law principles. These include equality before the law and the principle of legality. In this regard, the ICJ Justiciability Study provides a series of examples that practitioners may find useful.
- 184. For an overview of the constitutional guarantee of ESC rights, please refer to the information paper of the United Nations Food and Agriculture Organization on the “Recognition of the right to food at the national level”, accessible at: http://www.fao.org/docrep/meeting/007/j0574e.htm#P1060_44517. See
also the analysis of the importance of the constitutional guarantee of ESC rights in the specific cases of El Salvador and Morocco in the ICJ studies on access to justice mentioned above, supra note 183.↵
- 185. ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” [hereafter the ICJ Justiciability Study], pp. 65-72.↵
- 186. Under article 21 of the Indian constitution providing for the protection of life, the Indian Supreme Court has protected inter alia the right to education such as in Mohini Jain v. State of Karnataka, Supreme Court of India, Writ petition No. 456 (1991); or the right to housing such as in Olga Tellis v. Bombay Municipal Corporation, Supreme Court of India, Decision 3 SCC 545 (1985); The Colombian Constitutional Court has linked the protection of the right to health to the right to life in a series of decisions, such as in cases T-974/10 (2010) or T-841 (2011) summarized in Chapter 5, section II. 2. of this Guide.↵
- 187. Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal & Anor., Supreme Court of India, Decision 4 SCC 37 (1996).↵
- 188. Ibid., para.16.↵
- 189. ArticleThe States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidaysof the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), UN Doc. A/6316 [hereinafter ICESCR].↵
- 190. Articles 7 and 10 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), UN Doc. A/6316 [hereafter ICCPR].↵
- 191. José Alberto Preza Hernández v. Director General de Centros Penales y la Directora de la Penitenciaría Central “La Esperanza”, Constitutional Chamber of the Supreme Court of El Salvador, Decision HC 12-2012 (2012).↵
- 192. Article 286 of the Reglamento General de la Ley Penitenciaria.↵
- 193. Principle X of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, approved by the Inter-American Commission on Human Rights on 13 March 2008. This principle affirms the obligation of the State to “ensure that the health services provided in places of deprivation of liberty operate in close coordination with the public health system so that public health policies and practices are also applied in places of deprivation of liberty.”↵
- 194. Rarasea v. The State, High Court of Fiji, criminal appeal no. HAA0027 (2000).↵
- 195. See Chapter 5, section I.↵
- 196. ICJ Justiciability Study, Chapter 3, pp. 54-64.↵