Volume 43 | Number 2 Spring 2008
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III. Inter-Generational Guaranties: Thin and Thick
¿A nombre de qué puedo condenar a muerte
a otros por lo que son o piensan?
Pero ¿cómo dejar impunes
la tortura o el genocidio o el matar de hambre?
No quiero nada para mí:
sólo anhelo
lo posible imposible:
un mundo sin víctimas.15
Iberian American countries have constitutionally established similar substantive entitlements. They have enacted first-, second-, and third-generation rights, freely borrowing general ideas, as well as specific formulations, from each other. Of course, the various jurisdictions have maintained significant differences from each other and have in no way coalesced into a single, monolithic system.
First- and second-generation rights are associated, respectively, with the 1966 United Nations’ International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.16 They encompass, on the one hand, entitlements such as equality, due process, privacy, free speech, liberty of association, as well as universal suffrage, and, on the other hand, the right to work, to unionize, to subsistence, to housing, to health, to education, and to culture. Third generation rights, in turn, are entitlements that have emerged subsequently and that regard matters such as consumption, the environment, development, and information.17
Upon attaining independence in the nineteenth century, Iberian American nations drafted new constitutions inspired by Spanish, French, and, especially, U.S. models. These documents promulgated civil and political rights, which reflected the republican and liberal ethos that prevailed at the time.18 Current constitutional charters have preserved guarantees such as freedom of expression, religious liberty, fair trial, and suffrage.
Throughout the twentieth century, Latin American jurisdictions evolved to incorporate social welfare entitlements. Mexico’s 1917 Constitution pioneered internationally in recognizing broad socio-economic rights to housing, education, health, and work.19 Virtually all other countries in the region followed suit. Curiously, Puerto Rico tried to jump on the bandwagon with its 1952 Constitution, but the U.S. Congress vetoed the social and economic rights proposed by the constituent assembly and ratified by the local electorate.20
Latin American constitutions have also embraced third-generation rights. They have guaranteed their citizenry, inter alia, sustainable development,21 empowerment as consumers,22 a wholesome environment,23 as well as informational and cultural self-determination.24 The judiciary throughout the region has made clear that these entitlements, like their second-generation counterparts, are not mere aspirations and are certainly not optional. It has repeatedly enforced them programmatically.25 In other words, it has called on the authorities to show that they have a program and, more generally, a real commitment.26
Constitutional systems frequently formulate first-generation prerogatives as negative and second- and third-generation entitlements as positive. Negative rights take the form of a ban on governmental interference with individual liberties. Classical civil and political entitlements, such as free speech or the right to privacy, exemplify this kind of guaranty. In contrast, positive rights require the state to act rather than to refrain from action. Economic and social rights, including the right to work or to health, provide cases in point, as do many of the previously mentioned third-generation rights.
Certainly, the classification of entitlements as negative and positive is somewhat misleading. Typically negative rights often call on the government to act positively by, for instance, using subsidies or restrictions in order to prevent the speech of the powerful from drowning out that of the weak. Conversely, positive entitlements invariably demand that the authorities abstain from certain action, such as interfering with citizens’ right to exercise a profession. Nonetheless, the distinction helpfully underscores the fact that the realization of second- and third-generation entitlements generally requires more elaborate measures and longer-term planning on the part of the state.
Positive rights also raise special questions regarding their judicial enforcement. Is there any role at all for the judiciary to play? Do these entitlements merely define lofty ideals that citizens may not vindicate in court? Or are they instead programmatic such that the government has a judicially enforceable obligation to establish a program or plan for their implementation? If so, how much should judges defer to the executive and legislative branches when passing on their efforts in this area?
In the specific case of the right to housing, may a homeless person sue the authorities? Should a tribunal respond to such a complaint by declaring that the state has no justiciable obligation to provide shelter for the plaintiff or anyone else and that the government must decide on its own to what extent it will meet the guaranty in question? Or, alternatively, should the judiciary probe into whether the authorities are taking their duties seriously and whether they have adopted a credible policy to address the housing needs of the citizenry? How might a court that follows this path address the charge that it has arrogated legislative functions to itself?
As already noted, Iberian American tribunals have held positive rights judiciable. Regional constitutional systems actually distinguish themselves, especially from their U.S. counterpart, not only because they recognize these entitlements, but also because they declare them enforceable in court. Recent litigation to vindicate the right to health in Venezuela and elsewhere in the continent illustrates this development rather vividly.
The 1961 Venezuelan Constitution articulates the right to health in the following terms: “People have a right to the protection of their health. The government shall safeguard public health and shall provide means of prevention and care for those who may need them.”27 The 1999 Constitution takes a step further:
The right to health is socially fundamental. The state shall guarantee this entitlement, as part of the right to life. It shall develop and promote policies to improve the quality of life, the collective well-being, and the access to basic services. The people have a right to the protection of their health.28
This provision connects the entitlement in question to the right to life and obligates the authorities to adopt a comprehensive and effective health policy.
The Venezuelan Supreme Court has, accordingly, taken the government to task for not meeting its duties in the area of health. In Rural Psychiatric Institute Virgen del Rosario v. Ministry of Health and Social Welfare et al., a group of clinics sued the Ministry for failing to renew their contracts and for thus infringing upon their indigent mental patients’ right to life and health.29 The highest tribunal’s Political and Administrative Chamber not only agreed with the plaintiffs, but also expressed categorical “disapproval of the Ministry’s deplorable conduct.”30
This Supreme Court believes that this conduct constitutes an open violation of the rights to life and health of these mental patients. The state cannot effectively guarantee these rights without the necessary resources. Furthermore, defendant has inexcusably failed to meet his duty to care for these unfortunate and neglected Venezuelan citizens who are unable to improve their situation on their own.31
The justices insisted that the clinics bore responsibility, along with the authorities, for the protection of the patients’ social welfare entitlements.
This Chamber believes that plaintiffs should know that, because they have contracted with the government to care for chronic and indigent mental patients, they share with the state the paramount responsibility of guaranteeing the human rights of these individuals. They must do their utmost to heal and socially reintegrate the patients to the extent possible. In carrying out this all too serious responsibility, they have an ineludible duty to care for, support, and heal these patients. They must respect the patients’ dignity and condition as human beings facing the misfortune of being ill and otherwise unassisted.32
The Court ordered the government to renew the plaintiffs’ contracts and to pay for services rendered after the expiration of the original agreements.33
In Cruz del Valle Bermúdez et al. v. Ministry of Health and Social Welfare, the same Chamber upheld the rights of indigent HIV/AIDS patients to receive medicines necessary for the treatment of their illness.34 It underscored the obligatory nature of the entitlements in question with the following statement: “all citizens—including, of course, the plaintiffs in the case at bar—have a right to health. The state has a correlative duty to ensure the effective realization of that right, especially when the health of the indigent is at stake.”35 Accordingly, the justices ordered the government “to deliver, regularly and periodically,” prescribed medication, as well as “to carry out or pay for specialized tests.”36
The Ministry alleged that, in light of its budgetary constraints, it was “impossible to finance the treatment in question for the totality of persons suffering from HIV/AIDS.”37 The Supreme Court impassively replied that the authorities simply had to find the money and called on them to make whatever adjustments in the budget were necessary to meet their constitutional obligations.38
The defendant in this controversy, as well as in Virgen del Rosario, answered in a quite typical fashion. When faced with claims based on positive rights, in general, and programmatic entitlements, in particular, the state often pleads insufficiency of funds. The Venezuelan highest tribunal took this defense with a grain of salt in an attempt to preserve the viability of the guaranties at stake.
In del Valle Bermúdez, Venezuela’s justices most significantly ordered “the Ministry of Health and Social Welfare to develop a policy of information, treatment, and comprehensive medical assistance for the benefit of the plaintiffs.”39 Furthermore, they concluded that, because no known cure for the disease existed, “the battle against the disease should focus on prevention.”40 They made specific proposals on this issue:
The state must develop a national prevention program along the following lines:
Educational programs to target vulnerable groups, teenagers, married couples with problems, etc.
Massive provision of information for the community on the disease, its causes, its transmission, and its prevention.
Elaboration of a national plan to make affordable diagnoses possible through the state’s medical institutions.
Each of these programs requires special preparation and implementation, taking into account matters such as the general information currently available about the disease, the adequate use of condoms, and the availability of sterile syringes for drug users; the need for special attention for vulnerable groups; the existing efforts at the level of the community; and the role of marriage counseling.41
The tribunal articulated the defendant Ministry’s duties thus:
The Ministry of Health and Social Welfare must conduct, pursuant to the previously established principles, a thorough study of the basic needs of HIV/AIDS patients and of the different programs available to prevent an increase in the number of people infected. The findings of this study shall be presented to the President of the Republic and the Council of Ministers for consideration in defining the general guidelines for the next fiscal year’s budget.42
“The goal must be,” the opinion explained, “to develop a policy of prevention based on facilitating information to individuals infected with HIV/AIDS, as well as on raising their level of awareness, educating them, and providing comprehensive assistance to them.”43
The Supreme Court merely prescribed rough guidelines for a long-term program of HIV/AIDS treatment and prevention and granted the government sufficient discretion to decide on the details of the required plan. It struck a careful balance between leaving the enforcement of the right to health entirely up to the political authorities and depriving them completely of their decision-making authority in this area. The full realization of programmatic entitlements demands that the judiciary superintend government policies, while allowing state officials sufficient leeway to deploy their resources and expertise efficaciously, as well as creatively.
The opinion in del Valle Bermúdez ends with the following warning: “[t]he authorities must comply with present writ of protection or face sanctions for contempt.”44 Effective adjudication sometimes requires this kind of threat, whether implicit or explicit, in order to assure the government’s compliance.
The Supreme Court should have retained jurisdiction of the case, thereby enabling itself to review the extent to which the Ministry subsequently implemented the remedy, and if necessary, to reconsider its remedial guidelines. Programmatic rights require such prolonged judicial engagement, which ideally should take the form of a conversation between the courts and the authorities. Of course, non-governmental organizations such as Citizen Action against AIDS (Acción ciudadana contra el SIDA), which filed the complaint, should also play a key role not only in setting the litigation in motion, but also in monitoring the relief.
The 1999 Venezuelan Constitution created a new Supreme Court (Tribunal Supremo de Justicia) and the Constituent Assembly appointed the first members of this body in December of 1999.45 The Justices soon confronted additional claims by HIV/AIDS patients. In Glenda López et al. v. the Venezuelan Institute for Social Security, a number of beneficiaries, represented by the same group of attorneys, sued the Institute for Social Security for failing to pay and deliver prescribed HIV/AIDS medicines.46 The Constitutional Chamber of the new Court echoed its predecessor in finding that the defendant had “violated the right to health, threatened the right to life, and encroached upon the right to benefit from scientific and technological progress,”47 as well as the right to social security. The tribunal similarly rejected the contention that lack of funds or credits might justify the Institute’s inaction.48
In 2002, the Constitutional Chamber considered a similar action by HIV/AIDS patients against the Institute for Social Security in Antonio Loreto Tabares v. the Venezuelan Institute for Social Security.49 Not surprisingly, the body affirmed “the holding of Judgment Number 487 of April 6, 2001, (the Glenda López case).”50 In so doing, it noted “the completeness and clarity of [that] decision” and held “the [previously ordered] remedy fully applicable to the complainants in the case at bar.”51
In a sense, the opinion in Loreto Tabares was superfluous. The precedent was not only admittedly complete and clear, but also expressly applied “to anyone (i) who [was] registered with the Venezuelan Institute of Social Security, (ii) who [had] been diagnosed with the disease HIV/AIDS, (iii) who [met] the legal prerequisites to benefit from the social security system, and (iv) who [had] requested that the Institute deliver the medicines needed for the treatment in question, as well as for the opportunist illnesses, and cover the specialized medical examinations required to treat these illnesses.”52 Coincidentally, the earlier opinion in del Valle Bermúdez was also on point and equally broad in its scope of application.53 Inasmuch as its determinations immediately bind all other Venezuelan tribunals,54 the Constitutional Chamber ordinarily does not have to decide the same issue over and over again. It probably made repeated pronouncements in López and Loreto Tabares as an indirect and somewhat inefficient way of maintaining jurisdiction over the controversy.
In sum, Venezuelans have made programmatic entitlements, such as the right to health, constitutionally binding on the government and judicially enforceable. They have taken this step practically as a reaction to the state’s crass delinquency in this area. In fact, this case does not constitute an isolated instance, but rather a critical trend in Latin America. All Iberian American constitutions recognize the right to health,55 along with other positive guaranties. Beyond Venezuela, HIV/AIDS patients throughout the region have likewise seized on this entitlement to try to force the state to provide the medicine and care that they need. They have organized themselves, engaged their fellow citizens, lobbied the executive and legislative branches, and litigated in court.56