Judicialization of Socioeconomic Rights in Brazil: Mercantilization of the Fundamental Rights as a Deviance in Rights Protection
Paper presented in the 3rd YCC Conference - American Society of Comparative law, at the Lewis & Clark University, Portland, Oregon, in April, 2014.
20 Pages Posted: 20 Oct 2014
Date Written: January 18, 2014
The Brazilian constitution contemplates a large spectrum of socioeconomic rights such as health, education, work, social security, special protection for the vulnerable, etc. Those rights are expressly recognized as justiciable, due to another constitutional clause – article 5º, § 1º – which states that norms defining fundamental rights are of immediate application.
Judicialization of socioeconomic rights is, therefore, a clear possibility in the Brazilian system; resulting from the constitutional commitment with human dignity, set as a fundamental objective of the Republic (article 1º, III of the Brazilian constitution). In a comparative perspective, the Brazilian provision is align with the tendency in constitutional design present since the late 90’s, of formally recognizing socioeconomic rights. The analytic structure adopted by the Brazilian Constitution – there are 78 individual fundamental rights listed in article 5; and 34 in article 6, which contemplates socioeconomic rights – is a testimony of the belief that social transformation may be achieved through constitutional commitments. A distinct feature in the Brazilian constitutional frame of socioeconomic rights is the aforementioned immediate application clause. Other international experiences went with the gradual implementation formula (South Africa), or even extract a certain degree of efficacy to fundamental rights in an amplified interpretation of general constitutional clauses as the right to life itself (India) or the right of the most vulnerable to special protection (Colombia). Such interpretative effort is not required in Brazil – but outlining the content of socioeconomic rights is still a challenge.
The difficulty in defining the real content of socioeconomic rights is strengthen by two distinct factors: 1) institutional design, and 2) judicial competencies. In the institutional design perspective, the Brazilian constitution sometimes draws applicable principles and administrative structures that should construct such content in a dialogical basis – that’s what happened with the right to health. In other cases the constitution simply mentions a fundamental right, and silences about its implementation. Housing rights is an example of the former solution; the constitution mentions them in article 6, and does not clarify who is responsible in the Brazilian federation for its provision. The constitution also don’t indicate a procedure, principle guidance or any other indication of how the content of such a right could be defined by any of the power holders that may be called to grant it.
Judicial competencies present itself as an issue because scrutinizing socioeconomic rights is not in the exclusive domain of the Constitutional Court. Furthermore, the Constitutional Court does not usually examine the realization of such rights – the Brazilian judicial system prevents the examination by the Constitutional Court of any juridical question that involves the evaluation of facts, and fact examining is usually mandatory in socioeconomic rights litigation. This is a significant differentiation in the Brazilian experience: socioeconomic rights will not be frame, most of the time, by the Constitutional Court, but by over 15.000 judges throughout country.
The vagueness of the constitutional provisions in socioeconomic rights; the institutional difficulty and the wide spectrum of possibilities in judicializing such rights are causing serious distortions to the original constitutional transformation project – and mapping those distortions is the main goal of the research presented in this article. The international literature has already pointed possible deviances in such a judicial strategy: 1) the regressive potential of judicial review; 2) significant disarray in public policies; 3) alienation from the real addressees of the constitutional guarantee, etc. The Brazilian experience indicates another possible negative effect of granting socioeconomic rights without a normative and procedural adequate frame.
The vagueness of the rights content and the pressure of the constitutional command that grants immediate efficacy is leading to a generalized “solution” built by Judiciary applied to cases in which the real delivery of goods and services presents itself as a difficult task: substituting the real right for financial aid or compensation. This is happening especially in housing rights, where the material difficulty in building houses is leading to financial aid as a supposed solution to the homeless. That path, when chosen as a temporary one, drains the Public Administration effort in providing a consistent and broad public policy in the right in scrutiny. On the other hand, financial condemnations as a reparative provision promotes a mercantilization in socioeconomic rights, and deviates public funding from the ultimate goal – the real provision of goods or services associated with the fulfillment of socioeconomic rights.
The Brazilian solution, even though well meant, results in a violation of the republican principle, through a patrimonial vision of rights protection that reinforces inequality, denying the true values that found fundamental rights theory.
Keywords: Judicial review, socioeconomic rights, mercantilization
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