CEU Electronic Theses and Dissertations, 2024
| Author | Begadze, Mariam |
|---|---|
| Title | Judicializing Positive Right to Health in India, South Africa and Colombia: Implications for Separation of Powers |
| Summary | The literature discussing social rights adjudication has primarily focused on its outcomes and less so on its intersection with Separation of Powers (SoP), while the prism of SoP doctrines, practices, and structures in respective jurisdictions was entirely omitted. Given the implications of positive rights regarding SoP and democratic decision-making, this dissertation addresses the gap by assessing the effect of social rights adjudication on SoP doctrines in India, South Africa and Colombia, using the example of a social right – the right to health. The present doctrinal approach is premised on a ‘minimum core’ of SoP conceptualized in the dissertation. The overarching research question posed by the dissertation is - to what extent is SoP doctrine and theory transformed through health (and social) rights jurisprudence in a comparative context of India, South Africa, and Colombia? In the empirical study, despite the shared general concept of the SoP rejecting any form of political question doctrine, the institutionally strong apex courts – ISC in India, SACC in South Africa, and CCC in Colombia - displayed a rather different judicial role. In turn, the locally applicable general SoP doctrines determined the intensity of review on health (and social) rights, ultimately reflecting a continuum of judicial review with the weakest ISC role of a partner/negotiator in India, a medium SACC one of a watchdog/scaffolding in South Africa, and the strongest CCC one of a commander/controller in Colombia. The continuum was similar when incorporating the remedial dimension under the label of dialogic justice. Although review standards on social and health rights largely replicated the strength of general judicial power, variations were discernible on the edges of the continuum – in India and Colombia. Weak judicial power in India translated into a weaker position on social rights, while strong judicial power in Colombia led to the further stretching of the SoP doctrine. This shortfall in India, convergence in South Africa and stretching in Colombia in relation to locally applicable SoP led to a general observation that judicial review at the edges of the continuum manifests in extremes in the context of social rights adjudication - a claim made by refuting alternative explanations. Drawing on the descriptive analysis, the dissertation identifies a typology with 10 categories of substantive review on social and health rights. On the remedial level, these categories in the typology can be combined with mandatory orders on the decision-making process, participatory remedies, and/or supervisory jurisdiction. The 10 categories range from the least intrusive, namely, equality-based and inclusive interpretation of existing subconstitutional norms, to the most intrusive one – granting of individual benefits absent from legislation. From the descriptive analysis and the resulting typology, three overarching normative conclusions are drawn: 1) SoP limits to adjudication on state inaction are not an abstract imposition; rather, it is determined in the particular circumstances of a case based on available evidence and in accordance with judicially manageable standards. 2) The SoP-compliant judicial action has the (varying) capacity to nudge the political branches, that is, to increase the political cost of their inaction, which tends to increase in a cycle of dialogue between the branches 3) Judicial review erasing the SoP limits risks falling into a pattern of unsustainable, inconsistent stretching of principles that will not necessarily advance the goal of realizing social rights and the right to health in particular. Drawing the threads together, this dissertation demonstrates that (1) means-end reasonableness review (2) with principled rights-based reasoning, that is (3) sensitive to the self-correction capacity of the political branches, and depending on the latter, (4) integrates some standards for the policy-making process, including (not automatically) participatory remedies and court-led monitoring of implementation comes closest to the golden mean of judging on unconstitutional state inaction in the context of social rights. |
| Supervisor | András Sajó |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2024/begadze_mariam.pdf |
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