4.2.1 Origins

That judges intervene in cases of institutional failure is not a given. Consider as an example the US Supreme Court’s 1903 decision in Giles v. Harris on the disenfranchisement of black citizens in Alabama.Footnote ¹² After the civil war, Southern states had to accept the Fifteenth Amendment and grant the right to vote to their newly minted black citizens, under the threat of Northern military supervision.Footnote ¹³ As a result, there were often initially quite a few black legislators in the parliaments of Southern states, in some cases even forming a majority. But by the end of the nineteenth and early twentieth centuries, this had changed. Southern states had implemented various mechanisms to keep their black citizens from voting and changed their imposed constitutions. For example, they introduced so-called grandfather clauses, which guaranteed voter registration to those entitled to vote before 1867 and their descendants, while making registration of all others conditional on further requirements. Those requirements typically provided (white) administrators with ample discretion to discriminate against black citizens wishing to register.Footnote ¹⁴

In 1903, Jackson Giles, a literate black man and activist for the Republican Party, set out to challenge before the US Supreme Court the restrictions put in place by the Constitution of Alabama. He asked the Court to order the state to place him and other qualified members of his race on the voter roll of the state.Footnote ¹⁵ The Constitution of Alabama had been changed in 1901 to restrict voting, adding residency, educational and good character requirements, and poll taxes, with exceptions for ex-soldiers and their descendants. In an opinion written by none other than Oliver Wendell Holmes, the Supreme Court, however, declined to find a violation and make the order required.

For this, Holmes offered two arguments. The first seemed plainly disingenuous. Given that the applicant had argued that the registration rules set up by the Constitution of Alabama itself constituted a fraud upon the US Constitution, Holmes argued that inclusion in the voter rolls under these rules would make the Supreme Court itself participate in the fraud in question. Second, and more importantly, Holmes argued that the Supreme Court could not make the order desired by the applicant because there would be resistance by the state of Alabama and because it would be impossible for the Court to actually enforce the order except by directly supervising Alabama’s elections, a task considered obviously impossible as well as inappropriate:

Nowhere does Holmes address the question if the registration scheme of Alabama violated the Fifteenth Amendment, and thus if Southern institutions had actually failed to respect black citizens’ voting rights. Nevertheless, the opinion reads in many respects as if he accepted that premise. As US commentators have pointed out, Holmes might well have been able to dismiss the case on the basis of mootness, as was common for dealing with comparable cases in the South, because the election in question had already taken place.Footnote ¹⁶ He could also have engaged with the substantive questions at stake, namely whether the grandfather clause of Alabama indeed constituted just a thinly disguised form of racial discrimination, and more generally what standard of proof should apply when adjudicating claims of racial discrimination. More particularly, Holmes might have been able to shed light on the role of legislative intent in discrimination cases and the constitutionality of delegating wide discretion to registrars, such as with regard to the ‘good character’ of potential voters. As Klarman argues, all of these debates were very much open at the time – with precedents on both sides.Footnote ¹⁷ That Holmes did not engage with them at all, focusing instead immediately on the question of equitable remedies, suggests two things. First, he neither wanted to appear to give Alabama’s voting procedure the Supreme Court’s seal of approval by explicitly finding no violation, nor did he want to explicitly state that a violation had taken place, which the Supreme Court would then not be able to remedy and which also might have contributed to worsening race relations. Perhaps, as Klarman suggests, Holmes and his fellow justices also shared the growing sense among Northerners that the Fifteenth Amendment and voting rights for black people had been a mistake.Footnote ¹⁸ However, even if we accept that explanation, nothing suggests that Holmes and his colleagues did not in fact recognize that Alabama, like many Southern states, was de jure violating political rights on a massive scale. If Holmes and his colleagues decided not to act upon that recognition, it was most likely for the reasons stated in the judgment itself, namely the Court’s limited power and authority to enforce such a judgment.

Today, we may be puzzled by Holmes’ willingness to admit defeat and invoke the limits of judicial power before even engaging with the substantive question or with the political realities on the ground. Even if we are in principle open to strategic considerations about the limits of judicial power in the face of adverse political and elite opinion – as most US commentators are – we are likely to be suspicious of Holmes’ one-dimensional assessment of the political situation in the South. As Rick Pildes has argued, a closer look at the political situation in Alabama at the time paints a nuanced picture. Opposition to black voting was by no means universal among Alabama’s citizenry at the time. Only 57% of voters supported its disenfranchising Constitution, with 54 out of 66 counties voting against it.Footnote ¹⁹ In light of this, it was much less clear than Holmes pretended how a contrary judgment by the Supreme Court would have been received and if and how it might have been enforced.Footnote ²⁰

And herein lies the broader lesson of Giles v. Harris. Though the literature of the past five decades has provided ample evidence for the limits of judicial power, we also know that courts have achieved successes where other institutions have previously failed, for whatever reason, including in cases where things have looked fairly bleak.Footnote ²¹ Those successes may have been limited and were typically conditional upon support by other actors: the broader population, organized civil society groups and political elites.Footnote ²² We also know that courts will sometimes fail and even face backlash, which may make things worse for the court itself and/or the groups involved in litigation.Footnote ²³ But it will often not be easy to assess the situation in advance – and therefore, it will also be unwise for courts to admit defeat before the provisions and troops are counted and the positions and weaponry on both sides assessed.

But Holmes is not only concerned about what courts can do. He also worries about the appropriateness of judicial intervention: ‘Unless we are prepared to supervise the voting in that state by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form’. Supervising the conduct of state elections, so this passage suggests, is something out the question – and out the question presumably not just because such a task might prove difficult but also because it would be an inappropriate thing for a court to do.

This kind of argument about the judicial role, by and large, is still with us today. Consider as an example an earlier decision of the US Supreme Court on gerrymandering, which, albeit overruled today, is sometimes still invoked by the Court: its 1946 decision on electoral districting in Colegrove v. Green, written by Justice Frankfurter. Frankfurter explicitly cited Giles v. Harris, putting forward a more elaborate argument about the judicial role and its limitations:

Thus, unlike Holmes in Giles, Frankfurter explicitly denied in Colegrove that constitutional rights had been violated, given the vagueness of existing legal rules on districting. Yet, once again, his reasoning is instructive, insofar as he clearly assumes that the litigation presented the court with a case of political failure, namely the failure to revise Illinois’ electoral districts. Yet, Frankfurter and his colleagues did not want to intervene in such a ‘political thicket’: ‘The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action’.Footnote ²⁵

If Giles stands for the difficulties of judicial intervention in light of possible political resistance, Colegrove speaks to the broader debate about the role of courts in a democracy. Today, non-justiciability is no longer the key concern it used to be – and this is particularly true if we take a broader global perspective on the issue. We have not only seen a rise of constitutional review in global terms but also an increased willingness by courts to harness this power to a degree that the result is sometimes described as a ‘juristocracy’.Footnote ²⁶ This is perhaps most visible in fields such as socio-economic rights, which were traditionally considered non-justiciable, but no longer are.Footnote ²⁷ The contemporary jurisprudence of a wide range of courts in Southern and increasingly Northern jurisdictions shows that courts can develop legal mechanisms to enforce such rights – whether they consist in scrutinizing the consistency or reasonableness of governmental approaches or adopting a minimum core approach.Footnote ²⁸ This is not to say that worries and concerns about justiciability have ceased to play a role, but rather that the ground here, too, has shifted. We no longer believe that questions of policy are sharply distinct from questions of law, even though the distinction as such continues to play a role.Footnote ²⁹ This is also reflected in theories of judicial review, which typically operate today no longer by excepting certain issues or questions entirely from judicial scrutiny, but are instead about finding a balance between the courts and democratically elected actors.Footnote ³⁰ In other words, the debate is one about the appropriate degree of judicial control rather than about setting sharp boundaries between law and politics. This is not to say that we are today comfortable with an idea of unlimited judicial power – we certainly are not – but that the relationship between courts and the other branches in most constitutional democracies today tends to be more complicated. As a result, judges today will find it less easy to turn away from cases of institutional failure than Justice Holmes did in Giles.

4.2.2 Development

Since Colegrove, the Supreme Court has changed its stance on redistricting, but even more so in other areas. It has addressed what were initially primarily problems of compliance, inaugurating what Abram Chayes in 1976 called the new model of public law litigation in the United States.Footnote ³¹ This new public law litigation, Chayes argued, broke with the traditional paradigm in several ways: First, the new cases had a ‘sprawling and amorphous’ party structure, no longer representing a bipolar conflict. This party-structure influenced the scope of the lawsuit, which was increasingly shaped by the court and the parties rather than corresponding to an established template of litigation. Suits were also no longer primarily retrospective and concerned with adjudicating past wrongs. Instead, they concerned future reforms, and the relief sought was no longer merely compensatory, but prospective, based on considerations of equity and often so broad as to affect others who were not party to the suit. Finally, and as a result, the trial itself increasingly involved negotiation and mediation among multiple stakeholders who worked out a consensual solution to a problem of public policy. In doing so, they were typically supervised by a managerial judge who directed and oversaw the reform process following the judgment, which often involved ‘a wide range of outsiders – masters, experts, and oversight personnel’.Footnote ³²

Subsequent authors have pointed out that not all of these attributes were as new as Chayes made them out to be. Eisenberg and Yeazell have demonstrated how ongoing supervision of the implementation of judicial decrees, sometimes by judges and sometimes through other newly created institutions, was in fact a fairly routine matter in other fields of law, such as bankruptcy.Footnote ³³ They argued that what was new about ‘new’ public law litigation was therefore less the form of the litigation than the kind of rights being enforced and issues tackled: clean sheets for mental patients or hearings for prisoners before parole could be revoked. This is not altogether surprising. Law develops incrementally, and even where there is noticeable change, that change itself is often rooted in some or other part of the established system. But even if certain elements of public law litigation in the United States thus have in fact a longer pedigree in US legal practice and culture, their combination and the extent of their use in public law litigation as it emerged in the 1960s was nevertheless something new.

The current form of this kind of litigation and its focus on the reform of public institutions developed during the Civil Rights Era. After the US Supreme Court in Brown v. Board of Education had famously judged segregated schools to be ‘inherently unequal’ and struck down segregation in education as unconstitutional, the question was what to do next.Footnote ³⁴ In Brown, the US Supreme Court had not explained how one should remedy the situation nor indeed how fast. A year later, in Brown II, it clarified that desegregation should proceed ‘with all deliberate speed’.Footnote ³⁵ Political resistance in the South meant that in most areas little happened in response. Some years later, in Cooper v. Aaron it showed less patience towards attempts to further delay desegregation by the Arkansas School Board.Footnote ³⁶ At the same time, it became clear that remedying segregation was not an easy task. It became patent that simply opening up former white schools to black students did not automatically lead to integration. The question was what to do then. Often faced with recalcitrant school boards, US federal courts first cautiously and later more assertively started to scrutinize school board desegregation plans.Footnote ³⁷ Where such plans were found wanting, judges frequently became involved in developing substantive desegregation policies. Yet, even where detailed policies were developed in cooperation with a judge or directly ordered from the bench, they often met with resistance. Compliance was at risk. Judges thus increasingly stayed involved in those cases over longer time periods, supervising the reform efforts of school boards in response to the judicial decree. In this new role, they felt compelled first to order and then to supervise the redrawing of school districts, the reallocation of students, the establishment of remedial education programs and, not least, the particularly unpopular policy of busing students to particular schools to ensure de facto integrated educational facilities. All of this involved expansive and detailed judicial intervention, including, in some extreme cases, judicial orders to increase particular taxes to fund necessary improvements.Footnote ³⁸ This style of judicial involvement subsequently spread to other areas of law where existing institutions were found in need of structural reform. Foremost among them were mental hospitals and prisons, the police, public housing and increasingly even private employers.Footnote ³⁹

But public law litigation or structural reform litigation encountered fierce resistance in some quarters and was decried as deeply inappropriate judicial activism. Indeed, by the time Chayes wrote his seminal Harvard Law Review foreword in 1976, some features of the new model were already being rolled back. The process gathered speed in the 1980s and thereafter under the influence of more conservative Supreme Court majorities. Such rollbacks concerned several areas of relevance to institutional litigation,Footnote ⁴⁰ including questions of representation and thus the ability to bring class action suits, standing (public interest standing),Footnote ⁴¹ the ability to order broad remedies (since the Milliken decision in 1974)Footnote ⁴² and the temporal reach of injunctions (Horne v. Flores in 2009)Footnote ⁴³. Legislative changes further contributed to the trend towards judicial restraint. The Prison Litigation Reform Act of 1996, for example, required courts to grant relief only insofar as it constituted the least intrusive means to correct the violation of rightsFootnote ⁴⁴ – and thus makes for an explicit example of a proportionality approach to the choice of judicial remedies, as Kent Roach advocates more broadly today.Footnote ⁴⁵

Insofar as it persists as a tool for institutional reform for litigators in many state and federal courts in the United States, public law litigation has changed since the 1970s. As Simon and Sabel argued in their much-cited article ‘Destabilization Rights’, compared to earlier eras, public law litigation now follows less of a ‘command-and-control model’ and more of an ‘experimentalist’ one with regard to the remedies chosen.Footnote ⁴⁶ This new experimentalist model involves greater reliance on negotiation among the stakeholders and the establishment of rolling rule regimes, leading to the setting of provisional rules only, subject to regular reassessment and potential revision and finally a higher degree of transparency.

4.2.3 Framing and Scholarly Evaluation

In spite of some scepticism, Chayes in 1976 offered a cautious defence of the public interest model.Footnote ⁴⁷ Ultimately, he argued, the model enabled judges, endowed with professional authority and independence from bureaucracy and the political process, to give a voice to those aggrieved and tap energies outside of the government to solve pressing problems. In another now-canonical article in the Harvard Law Review, Owen Fiss set out to analyze and defend the new developments in even stronger terms. Fiss argued that the new model simply enabled judges to realize what had been their task all along: to articulate and implement constitutional values.Footnote ⁴⁸ His was thus essentially an argument about implied powers of courts combined with a purposive approach to constitutional rights in the context of the emergence of large-scale organizations within modern societies.Footnote ⁴⁹

But not everyone supported the new trend as Chayes and Fiss did. Unsurprisingly, the scholarly community in the US has been and remains highly divided on the matter. Partly, this division is due to underlying ideological differences. Progressives sympathetic with the civil rights movement have tended to defend public law litigation, whereas conservatives have tended to be more sceptical for reasons of federalism, the separation of powers and the preservation of the capacity and independence of courts as neutral arbiters. But the lines were not always clear-cut. Among the critics, Lon Fuller’s article ‘The Forms and Limits of Adjudication’ from 1978 turned out to be particularly influential, though it was written in the 1950s and didn’t yet address US public law litigation.Footnote ⁵⁰ Fuller doubted the capacity of judges to adequately tackle structural reform issues, which he understood as polycentric matters not suitable for adjudication.Footnote ⁵¹ Problematizing the new ‘managerial role’ of judges in public law litigation, Judith Resnik drew attention to how considerations of efficiency had become increasingly important both during the trial and during the post-trial management. Judges now had to take into account not merely how to design a suitable remedy but how to assess the effect of their decisions on non-parties.Footnote ⁵² With the need for efficiency came a trend towards experimentation and more informal exchanges between judges and the parties, Resnik pointed out, thus challenging the traditional role of judges to serve as independent neutral arbiters. ‘Seduced by controlled calendars, disposition statistics, and other trappings of the efficiency era and the high-tech age, managerial judges are changing the nature of their work,’ Resnik concluded on a sceptical note.Footnote ⁵³ At the same time, the increasing use of external monitors, masters and/or facilitators to supervise subsequent reform processes in US litigation responded partly to Resnik’s concerns. By removing the judge from the day-to-day supervision of reform efforts, it is easier for her to preserve distance to the parties and remain an impartial arbitrator rather than an efficient manager of the process. That said, it is not surprising that US public law litigation remains contested and has been rolled back by conservative lawmakers and judges.Footnote ⁵⁴

What were the arguments for public law litigation? Since the early school desegregation cases, securing compliance under conditions where it could not be taken for granted has always been one prominent argument for structural reform litigation. As we will see below, this echoes more recent Global South approaches, in particular in South Africa. Another argument that played a role in the defense of public law litigation was narrower – and it too finds immediate parallels in contemporary discourse on Global South judicial activism. It was the idea, built on Carolene’s famous Footnote Four,Footnote ⁵⁵ that judicial scrutiny should be particularly searching when dealing with laws that either restricted the political process or displayed prejudice against ‘discrete and insular minorities’ that were not adequately represented in the ordinary democratic process.Footnote ⁵⁶ As scholars noted, at least some of the early Warren Court’s activism could be understood and defended in terms of Footnote Four, that is as judicial intervention in cases of ‘legislative failure’.Footnote ⁵⁷ However, this line of defence seemed hardly applicable for the range of new fields of judicial activity federal courts had started to embark upon by the late 1970s, as Owen Fiss remarked early on. But if legislative failure and the theory of representation fit badly with some of the new developments, the answer was not necessarily to turn towards a broader theory of adjudication, as Fiss suggested. Instead, it was possible to generalize the idea of legislative failure into a broader concept of institutional failure. In this vein, William Fletcher, then professor at Berkeley, today federal judge, argued in 1982 in the Yale Law Journal that the ‘only legitimate basis for a federal judge to take over the political function in devising or choosing a remedy in an institutional suit is the demonstrated unwillingness or incapacity of the political body’.Footnote ⁵⁸ Though generally sceptical of the wide discretion exercised by judges in the remedial phase of institutional reform litigation, Fletcher thought that an exception should apply in particularly egregious cases of political failure where no alternative to federal court intervention existed. In this case, and only this case, were judges justified in taking over political functions temporarily. Unfortunately, Fletcher did not set out to define more precisely what constituted an egregious political failure, pointing out that this would be a matter of subtle judgment, with many cases falling into a grey area.Footnote ⁵⁹

More than twenty years later, Simon and Sabel proffered a similar justification for their remedy of choice – institutional destabilization.Footnote ⁶⁰ They advocated destabilization in those cases where an existing institution is ‘failing to satisfy minimum standards of adequate performance and, second, is substantially immune from conventional political mechanisms of correction’. Unlike Fletcher, Simon and Sabel gave more thought to defining what constituted minimum standards of adequate performance and immunity from the conventional democratic process. The failure to meet minimum standards, they thought, represented the least problematic element of their account, partly because in practice, state officials often acknowledged that problems existed, and partly because institutional performance could be measured against ‘industry standards’, for example performance standards, rules and guidelines developed by professional associations and within the administration itself. Immunity from the political process arose, they argued, in three cases: One concerned the case of majorities unresponsive to the demands of vulnerable and stigmatized minorities. The second case concerned situations where powerful concentrated groups exploited or disregarded the interests of diffuse majorities with individually smaller stakes, that is classical collective action problems as they arise in the case of regulatory capture of governmental agencies. The third example for immunity was the hardest to capture. Simon and Sabel referred here to ‘the prisoner’s dilemma, (where) groups are caught in a low-level equilibrium that is susceptible to beneficial improvement, but only through a kind of coordination that existing institutions are inadequate to induce’.Footnote ⁶¹ Their concern here is thus primarily with coordination problems, where multiple actors need to work together to induce change. Even though all may be broadly sympathetic to reform, the necessary coordination between them is not possible without some external push as provided by a court. Though their account is – in this regard – more normative than descriptive, we will see elements of these requirements for institutional destabilization recur both in the global literature and within the jurisprudence of certain courts.

4.2.4 Conclusion

In the United States, structural reform litigation emerged first in the context of resistance to the implementation of civil rights for black citizens. Over time, however, resistance was often no longer the key problem. Rather, as Charles Epp writes in Making Rights Real, in the later phase of structural reform litigation, officials often themselves recognized that existing problems constituted ‘fundamental threats to their public and professional legitimacy’, thus prompting them more often than not to cooperate in court-controlled reform projects.Footnote ⁶² Courts thus often addressed cases of incapacity – resulting from different causes – rather than straightforward or pure cases of resistance.

4.3.1 Non-compliance in South Africa

Helen Taylor has described the threat of non-compliance as a key catalyst for remedial innovation in South Africa.Footnote ⁶⁹ Mirroring Art. 142 of the Indian Constitution, Section 172 of the South African Constitution explicitly authorizes courts to ‘make any order that is just and equitable’ and thus provides a textual basis for remedial innovation. Yet, the South African Court has so far not interpreted this power as broadly as Indian courts have, though this may be changing.

The implementation of judgments has for some time been a matter of concern in South African jurisprudence. Somewhat ironically, the South African Constitutional Court’s most internationally famous decision in Makwanyane, declaring the death penalty unconstitutional, was not implemented for a long time, because authorities failed to provide for the re-sentencing of those prisoners previously sentenced to death. In response, the South African Constitutional Court ultimately had to set out a structural interdict ordering the government to take a series of steps and report back to the Court, resolving the case successfully in the end.Footnote ⁷⁰

Threats of non-compliance with judicial orders have also played a role at the interpretive stage, shaping the deference accorded to a pre-constitutional law that prohibited the attachment of state assets in judgments for money orders against the state as opposed to those against private persons. The plaintiff in that case, Nyathi, had been mistreated in a public hospital. He had sued successfully for the medical costs resulting from the care he subsequently required, but had not been paid fully, and as a result was unable to pay for his care and died.Footnote ⁷¹ Pointing to the ‘systemic failure of state officials to perform their duties’ and ‘the (unacceptable) failure of the state to edify its functionaries about the very legislation which governs their duties,’ as evidenced by some over 200 cases of non-payment of judgment debts (no precise number could be given),Footnote ⁷² the South African Court struck down the statute prohibiting the attachment of state assets as unconstitutional, albeit suspending the order to give parliament time to address the issue. It also ordered the government to draw up a list of all unsatisfied court orders to date and develop a plan to address their speedy settlement with the Court monitoring progress – a very expansive remedy, in what was formally an individual case dealing with one particular failure to pay, albeit a repeated failure. However, as the litigation demonstrated, the case was representative of a much broader pattern of non-compliance with monetary orders made by courts. The Court traced this pattern back to a broader failure of the government to establish an effective mechanism allowing for the payment of judgment debts even though ‘(t)here is a desperate need for legislation to be enacted that will specifically target the areas of concern outlined in this judgment. The apathy of state officials in their failure to pay judgment debts cannot be addressed unless progressive, targeted steps are taken towards solving these problems’.Footnote ⁷³

Problems with governmental payments have also been at the heart of a range of other cases, concerning the discontinuation of disability paymentsFootnote ⁷⁴ and the refusal to pay arrears after reinstatement of welfare grants. In particular, the chronic mismanagement and dysfunction of the South African Social Security Agency (SASSA) led to a series of detailed and expansive judgments by an increasingly impatient and irate Constitutional Court.Footnote ⁷⁵ In these and other cases, there is a clear trend towards broader arguments from failure, such as in the context of education, where institutional failure has been particularly rampant in South Africa, manifesting in the persistent lack of school buildings, furniture and teachers in some parts of the country.Footnote ⁷⁶ South African legal NGOs have been litigating some of the worst cases with considerable success. Several of these cases resulted in settlements between the parties, which were subsequently incorporated into the judicial order. A number of these judgments have been quite expansive, with courts providing step-by-step instructions for necessary reforms, sometimes requiring regular reports to the court, sometimes involving external experts such as auditors and special masters.Footnote ⁷⁷ One of the most far-reaching judgments that explicitly discussed the Court’s role was Mwelase. This dealt with a case where plaintiffs claimed a violation of their constitutional rights because the government had failed to process their claims to be granted property rights as land tenants, as provided for in the respective statutory provisions. Given the government’s failure to act for several years, the Land Claims Court had appointed a special master to help process the claims in question. This order was then overturned by the Supreme Court of Appeal on separation of powers grounds, but was restored by the Constitutional Court.Footnote ⁷⁸ Tuovinen and Mukherjee show that the Court relied on a range of different factors in its judgment, that is the threat of non-compliance, the degree of harm by non-grant/consequentialism, the clarity of remedial steps, the underlying issue’s salience and systematicity, the personal conduct of government officials, the extent of diffusion of powers in cooperative government, its institutional fit and epistemic superiority and the nature and functions of the invasive remedy.Footnote ⁷⁹ While the Court thus argued that the separation of powers should not be understood to block courts from ensuring effective remedies,Footnote ⁸⁰ which could be understood to drive a relatively free-wheeling attitude, it has overall adopted a nuanced and reflective approach. Expansive remedies require specific justification in individual cases rather than relying on a generalist critique of the government. In other words, where South African judges have set out structural interdicts, for example, they have routinely made the case that the situation is in some ways exceptional and thus merits a particularly intrusive remedy; in contrast, where this was not the case, they have been more restrained.Footnote ⁸¹ Like its Indian and Colombian counterparts, the South African Constitutional Court has also experimented with dialogic remedial approaches, developing in particular the so-called engagement remedy. Originally created to deal with eviction cases, it has the parties engage with each other in a meaningful way to come up with a mutually acceptable solution that will be subject to the Court’s scrutiny.Footnote ⁸² Perhaps as a result of this careful approach, the South African jurisprudence is seldom criticized for going too far.

4.3.2 Failure and Good Governance in India

Contrast this with the Indian case. Like US public law litigation, Indian PIL has shifted and developed over time. Indian commentators identify two or three phases of PIL. Key to the first phase were innovations in relation to standing, allowing publicly interested citizens to litigate issues on behalf of other citizens or the public good.Footnote ⁸³ The idea behind this expansion of standing was initially to expand access to court and allow for judicial involvement on behalf of suffering marginalized groups, who would not normally approach the court on their own. Among those groups were, for example, prisoners, migrant labourers, pavement dwellers, children and mentally ill persons.Footnote ⁸⁴ Though other procedural innovations accompanied the development of PIL – evidentiary standards were relaxed and the adversarial model disapplied in favour of a more collaborative process of problem-solving, often by involving other lawyers, technical experts and sometimes civil society activists in the judicial process – it is nevertheless important that PIL began with a concern for marginalized and vulnerable groups against the backdrop of concerns that their rights and interests were being persistently neglected by political actors. Thus, even at the beginning, Indian PIL responded to a broader political problem rather than individual instances of non-compliance with specific judgments.

This key feature of Indian PIL did not change in the second and third phases; indeed, if anything, failure assumed an even broader meaning here. According to the Indian Supreme Court, the second phase started in the 1990s, with a focus on issues such as the protection of the environment (clean air and vehicle regulation, pollution in forests and rivers) and historical monuments (such as the Taj Mahal). In a third phase, PIL increasingly deals with addressing broader good governance themes such as corruption and removal of illegal buildings, waste and slums.Footnote ⁸⁵ In the literature, these latter two phases are often bundled into one and understood as the conservative turn in PIL, insofar as the kind of interests that are litigated reflected more often than not middle-class concerns rather than those of particularly poor or vulnerable social groups.Footnote ⁸⁶

These developments were from the start accompanied by judicial and scholarly discourses of failure – indeed more so than in the other systems discussed here. Thus, Chief Justice Balakrishnan explicitly invoked state failure as a basis for the Court’s increased activism in a speech in 2008:

Even in judgments themselves, references to governmental failures as a basis for judicial intervention abound. For example, in a 2016 judgment dealing with the response to a drought in many parts of India, the Supreme Court made a number of far-reaching orders, including the establishment of a National Disaster Response Force and Fund, which it justified in the following way:

More often than not, however, the Indian Supreme Court confines itself to short remarks criticizing the government in harsh terms, as in a 2018 case concerning the preservation of the Taj Mahal, India’s most famous historical monument: ‘We wonder how the pristine beauty of Taj Mahal as mentioned by the Standing Committee of the Parliament can ever be preserved or protected, if there is no willingness on the part of the concerned authorities to take any positive steps, but on the other hand, to take steps which appear to have more of a negative impact.’Footnote ⁸⁹

Academics have understood the Indian courts’ activism in similar terms. Already in 1985, Upendra Baxi remarked that the new trend of PIL with its appeal to the people came at a time ‘when other institutions of governance are facing a legitimation crisis’Footnote ⁹⁰. Yet, for Baxi the crisis was two-fold. First, there was the failure of liberal legalism to address and combat the oppression and exploitation of India’s marginalized classes. Second, Baxi criticized the widespread practice of governmental lawlessness.Footnote ⁹¹ PIL, as it emerged, could be understood primarily as an attempt to address in particular the first kind of failure, by taking, as Baxi put it, the suffering of many Indian citizens seriously. In contrast, the later phases of PIL have been framed more broadly in terms of combating governmental lawlessness and governance failure, no longer necessarily tied to the protection of the rights of marginalized groups. Thus, according to Manoj Mate, ‘[j]udicial activism in the post-1990 era stemmed from a desire to address the Executive and Parliament’s critical governance failures in the following areas: judicial administration, corruption, accountable environmental policy, and human rights’.Footnote ⁹²

Nick Robinson has similarly explained the Indian Supreme Court’s activism as a response to the real and perceived shortcomings of Indian representative institutions, in particular the malfunctioning, fragmented and at least partly corrupt Indian parliament. He reads both the Court’s development of the basic structure doctrine (safeguarding the un-amendability of a core of Indian constitutional law) and its right-to-life jurisprudence as evidence of the Indian Court’s self-understanding of its task as ensuring ‘good governance’.Footnote ⁹³ Another prominent commentator and constitutional scholar, Pratap Bhanu Mehta, has in this context spoken of a jurisprudence of ‘exasperation’: ‘The function of law in this view is to express, both literally and figuratively, exasperation at the state of affairs. This is not a jurisprudence based on a concern for the formal allocation of powers. Nor does it consider carefully the actual consequences of law. Rather, it expresses a certain impatience with reality.’Footnote ⁹⁴

In addition, Anuj Bhuwania has demonstrated convincingly how Indian PIL is today not infrequently directed against the interests of those groups formerly meant to benefit from it, such as slum dwellers and other groups of urban poor.Footnote ⁹⁵ He explains the Court’s adoption of PIL as an imitation of the Indian government’s populist style in the 1970s, showing how judges increasingly claimed to speak for the people, as opposed to elected politicians – a trend that can also be observed in other places, including notably in recent times in Brazil.Footnote ⁹⁶

Bhuwania’s account in particular emphasizes the ideological malleability of arguments from failure. This malleability is not confined to the realm of international politics, as the Indian cases demonstrate, but rather is present even where we are dealing with courts enforcing individual rights. This is interesting and important because – as we will see more clearly in Chapter 5 – structural reform litigation is often understood and conceptualized as part of a progressive left agenda. That is, to be fair, where it generally originates, both in the United States as well as in India. Yet, the Indian story emphasizes that this association with a progressive political agenda is not a necessity or indeed fixed for all time. The theme of ‘good governance’ as it emerges in the 1990s and 2000s as an explanation for Indian judicial activism should be seen as part of the broader trend towards ‘good governance’ in institutions including the World Bank and associated neoliberal discourses, borne out by the subsequent development of PIL as a middle-class tool, sometimes employed against marginalized and vulnerable groups.

4.3.3 Constitutional Justice in Colombia

Concerns about compliance play a role in the Colombian story, too. But we also see relatively early signs of broader distrust in the government in the Colombian Court’s jurisprudence, often coupled with a general assertion of a broad role for the Court in realizing constitutional justice. Thus, in an early landmark case dealing with the public health impact of inadequate sewage provisions in nearby poor neighbourhoods, the Court already moved to define its role in the context of the constitutional imperative to realize its vision of justice, but also with reference to the ‘dysfunction’ of other institutions: ‘But this intervention is not only manifest as a necessary mechanism to solve a dysfunction, but also, and above all, as an indispensable element to improve the conditions of communication between law and society, in other words, to favour the achievement of justice (…).’Footnote ⁹⁷

The Court noted that the fact that a sewage system had been planned but not completed indicated that the reason for the inaction was not likely to be due to a straightforward lack of funds. Rather, it pointed to the simple ‘blatant neglect’ of the issue by local authorities, who had not even bothered to explain their inaction to the Court.Footnote ⁹⁸ In addition to emphasizing the inaction of local authorities, the Court also referred to broader political dysfunction in the legislature: ‘The difficulties derived from the unchecked growth of the executive power in the interventionist state and of the loss of political leadership of the legislative organ, must be compensated, in constitutional democracy, by the strengthening of the judicial power (…).’Footnote ⁹⁹

This assessment of legislative dysfunction by the Court has since been bolstered in the academic writings on the subject.Footnote ¹⁰⁰ Famous for its adoption of a new, less formalist and more teleological approach to interpretation, the decision draws both on the imperative of a transformative thick understanding of constitutionalism and institutional arguments about the dysfunction of political actors to justify robust intervention in the political and administrative process.

This development was also driven by increasing problems with case management that saw Colombian courts in the 2000s confronted with an enormous docket of individual complaints in the form of tutela (similar to the European Court of Human Rights around the same time). The tutela is special for its ease of use, in particular for foregoing requirements of legal representation and for requiring judges to address tutelas within 10 days, thus giving them priority over other cases. Orders can be appealed in higher courts, and the Constitutional Court has discretion to take up any tutelas and address them in its jurisprudence.Footnote ¹⁰¹ Since their introduction in the 1991 Constitution, tutelas have become a major avenue for citizens to hold government responsible for a violation of their constitutional rights, in particular as the Colombian Constitutional Court has increasingly done away with the original confinement of tutelas to certain rights only – a process partly driven itself by arguments of governmental failure.Footnote ¹⁰² Ultimately, it led to the development of the unconstitutional state of affairs doctrine, designed as a way of dealing with hundreds of thousands of tutelas increasingly clogging the judicial system. The Court had already in its famous healthcare decision treated this situation as indicative of persistent governmental failure.Footnote ¹⁰³ In response to that failure, the Court issued a set of individual and expansive structural orders, subject to further monitoring by the Court itself: ‘For more than a decade, people have had to resort to tutela actions requesting legal intervention to solve controversies that could have been settled by competent regulatory bodies. This fact clearly points to regulatory failures in the health system, which in turn explains the general orders herein issued to correct them.’Footnote ¹⁰⁴

The Court issued a set of far-reaching orders demanding the redesign of the health system to address the problems and failures identified already in previous tutelas, such as clarifying coverage and ensuring access for all to essential medications and treatments while also preserving the financial sustainability of the health system. Moreover, authorities were ordered to involve patient and physician associations to participate in reform efforts, and the order provided for extensive long-term monitoring.Footnote ¹⁰⁵

Ultimately then, there are significant overlaps between the jurisprudence of the Colombian Constitutional Court with those of courts in the United States, South Africa and India. With the latter two, Colombia shares a strong transformative vision of constitutionalism, which drives some of the activism we see. But as in India – and increasingly South Africa – there is also a broader background of both general democratic dysfunction and more specific policy failures with regard to pressing social issues.Footnote ¹⁰⁶ In those conditions, we encounter heightened distrust of political actors, and the failure of other institutions to fulfil their tasks is routinely invoked both by the Constitutional Court and scholars to justify expansive judicial action. However, unlike in South Africa, specific failures of individual officers or institutions seem to play a lesser role. The focus has shifted to broader structural problems, which have not been remedied in the past, but which are also often inherently difficult to remedy – such as the problems in the health system or the improvement of the lives of internally displaced persons (IDPs).

However, the Colombian approach is also more doctrinally structured. With the ‘unconstitutional state of affairs’ doctrine, the Colombian Court has developed a conceptual tool that has since been adopted by other Latin American courts, such as those in PeruFootnote ¹⁰⁷ and Brazil.Footnote ¹⁰⁸ An unconstitutional state of affairs in the jurisprudence of the Court describes the gap between the constitutional commitments and the reality on the ground, which must be so significant that the constitution essentially constitutes a ‘dead letter’.Footnote ¹⁰⁹

The Court first developed the concept of an unconstitutional state of affairs in 1997.Footnote ¹¹⁰ It has since used it a number of times, with varying degrees of success. Its most well-known application, however, came in what is probably the Colombian Court’s globally most famous decision, referenced at the start of this chapter, that is on the rights of IDPs.Footnote ¹¹¹ This concerned persons fleeing from the ongoing Colombian Civil War, whose number had risen to several million people and who largely lived on the outskirts of major cities, such as Bogota, in slums. Though the Colombian government had taken some measures, the number of tutelas seeking to enforce the rights of displaced persons had also risen steadily. In 2004, the Court bundled together 108 of these tutelas filed against different authorities, which primarily concerned issues such as access to housing, employment opportunities, healthcare and education.Footnote ¹¹² After organizing several legislative-style hearings of affected persons and civil society groups and experts, the Court declared an unconstitutional state of affairs. In doing so, it set out a six-factor test, while emphasizing that all factors were only indicative. In its own words, these factors were:

This test raises several questions, but it notably includes an element of failure in the form of a ‘protracted omission by the authorities in complying with their obligations to secure rights’. That said, the key emphasis is less on criticizing the government – though critique does play a role – and more on the structural reasons underlying the problem. In particular, the Court emphasized that ‘the origin of such an infringement is not exclusively ascribable to the authorities accused, but also to structural factors’ and pointed to the ‘[l]imited institutional capacity to implement policies and (ii) insufficient funds’. The Court also made clear that the concept of the unconstitutional state of affairs should be considered exceptional, transitory and limited in character (‘cuyo carácter es excepcional, intenso y transitorio’).Footnote ¹¹⁴

If the Court does find an unconstitutional state of affairs, it will usually not only decide on the individual tutelas but issue structural orders to address the underlying broader problem, thus also working to reduce congestion within the judicial system.Footnote ¹¹⁵ Because an unconstitutional state of affairs will often require the cooperation of several institutions and actors, remedies will also often be complex and require the assistance and cooperation of multiple authorities and require significant expenditures. The Court has tried not to dictate sums from the bench but rather to ask authorities to set out budgets for specific issues on their own and report back to the court. Often the Court will combine a range of short- and long-term orders, including precautionary and immediate protective measures, while also trying to address the broader problem: by asking the government to set aside sufficient funds; work out the steps to be taken for addressing an issue; order specific agencies and actors, often including civil society actors, to co-operate to address a problem; provide victims with information on their rights; set out specific measures for particularly vulnerable groups such as children or the disabled, and, not least, report back to court regularly on progress achieved and the next steps to be taken.Footnote ¹¹⁶

The supervision of the Court’s judgment on internally displaced persons is still ongoing. In 2014, ten years after issuing its judgment, the Court pointed out that much progress had been made but that many problems remained unresolved. Its intervention has provided constant impetus to work towards improving the situation of IDPs in Colombia. Overall, however, scholarship indicates that its success has been mixed.Footnote ¹¹⁷

While its general activist approach has often received applause, particular concepts and decisions have been viewed more critically, and this is particularly true for the Court’s concept of the unconstitutional state of affairs. Some scholars have pointed out that in transcending the protection of individual rights and allocating or directing the allocation of budgets, the Court assumes the historic role of a parliament and oversteps its own competences on the basis of a somewhat ‘naïve’ understanding of normativism.Footnote ¹¹⁸ Others have also accused the Court of judicial ‘populism’.Footnote ¹¹⁹ Not least, there have also been concerns regarding the efficiency of the Court’s interventions. However, given the alternative of deciding individual rights claims on a case-by-case basis, most attention tends to be directed towards identifying where the court can make a positive impact and in what forms, rather than on targeting the concept of the unconstitutional state of affairs itself on principle.Footnote ¹²⁰

In the English-language literature on the Colombian Court, two major strands of justification for the Court’s interventions have emerged. The first line of thought, put forward most notably by David Landau, provides a general defence of the Colombian Court’s activism – regardless of specific cases – as a response to the general dysfunction of the Colombian legislature and thus essentially of Colombian democracy.Footnote ¹²¹ Landau argues that Colombian political parties lack coherent ideological identities and are built around prominent individuals or families with highly clientelistic tendencies. This frequently makes it impossible to build policy coalitions around certain key issues in the legislature, rendering parliament largely dysfunctional. As a result, policy proposals only rarely come from parties, with the Colombian president instead seeking to legislate, often in the form of emergency decrees, to get things done. And even where coalitions are built to pass certain pieces of legislation, Landau argues, they are often not backed by and do not represent major social forces.Footnote ¹²² Landau also points out that the existence of the above-mentioned problems was one of the major drivers for constitutional reform and indeed for the creation of a constitutional court in the 1991 Colombian Constitution.Footnote ¹²³ As a result, he argues that the Colombian Court’s practice of ‘legislative substitution’ can be defended in this context.

Another major strand of justification as well as potential limitation of the Court’s activism points to the dialogic character of many of the Court’s interventions, echoing Simon and Sabel’s work on destabilization rights in the United States. Indeed, the Colombian Court has often tried to avoid dictating detailed policy top-down from the bench and has instead sought to create a dialogue between the court and the state as well as plaintiffs and victims of human rights violations. In particular, Roberto Gargarella and Cesar Rodriguez-Garavito have put forward such arguments for dialogic intervention. They argue that by involving state agencies and civil society actors, the Court’s interventions have been both more effective than more classical top-down one-time remediesFootnote ¹²⁴ and more normatively defensible on democratic grounds by providing for deliberation and participation of different groups.Footnote ¹²⁵