Structural Reform Litigation has become a strong instrument in order to make some progress in the fulfilment of Economic, Social and Cultural Rights, however, an increasing number of Constitutional Courts still face many challenges. Indeed, in recent years we have noticed an outstanding judicial activism by Constitutional Courts through the implementation of Structural Reform Litigation in a growing number of countries in the world including India, South Africa, Colombia and Argentina. In particular, it has been perceived with great interest that Judges are not only using new methods of constitutional and judicial interpretation, but also Judges are ordering different types of Remedies to States with the aim of ensuring the protection of Social Rights. However, this type of Litigation has been the subject of much criticism.
Structural Reform Litigation might be interpreted in general terms as the new mechanisms used by Constitutional Courts that seek for solutions to collective and complex problems or systematic violations caused by structural failures of very complex nature. The specific mechanism used by the Courts to generate these solutions through orders are the Structural Remedies. These remedies vary according to different factors, for instance, Judges might order weak remedies such as the declarations of unconstitutionality of the laws or Strong remedies such as the structural injunctions that force States to comply with their positive obligations. The purpose of the Structural Reform Litigation is precisely to remove the structural conditions in a complex situation which threatens or is contrary to any constitutional value in a given context. However, many critics argue that Constitutional Courts do not have the institutional capacity to order the State these type of remedies which are perceived of a complex and technical nature. These types of remedies are interpreted to be responsibility of the Executive or the Legislative powers. They also argue that these new mechanisms affect the principle of separation of powers and have a very negative impact on democratic legitimacy.
Despite having generated some structural changes so far, the impact of the remedies is still very weak in some countries, as a result of that, this might be creating and spreading a “Minimalist Constitutional Justice” around the world. Therefore, Courts should strengthen the design, implementation and monitoring of Structural Remedies Strategies.
Among the cases of Structural Reform Litigation where the Courts have ordered various types of Remedies we find for example the case of Government of the Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169 (CC), in this case the orders issued by the South African Court involved General Remedies with weak monitoring, as a result of this, the impact of the decision was very low and it was unable to fulfill the Right to Housing of the poorest communities. This is an example of a type of Court that is still very “shy”, yet, somehow is recognizing social rights violations. On the other hand, in cases such as Decision T-025/2004 (Colombia) and People´s Union for Civil Liberties v Union of India & Ors – 2001 (India) Constitutional Courts have been ordering Strong and Moderate Dialogic Remedies with Strong Monitoring which had a great impact in ensuring the protection of Social Rights. In these cases the Courts not only retained the control of the monitoring process, but also, in the case of India, a number of Commissioners were appointed by the Court with the aim of carrying out motoring strategies, while at the same time these players acted as intermediaries with the Government and Civil Society.
This means that Dialogic Remedies with Strong Monitoring constitute a solid basis for solving the problem of impact of decisions of Social Rights. Not only it ensures through constant dialogue that Governments do not try to circunvent the Court orders, but it also promotes democratic legitimacy through the participation of all stakeholders and especially encouraging the participation of the most marginalized social groups during the Structural Reform Litigation.
It is urgent that Constitutional Courts around the world when formulating these Remedies give priority to the evaluation of the impact of Social Rights decisions by creating and implementing new standards. Courts should be more creative. There is currently a crisis of the Welfare State which really demand urgent solutions, therefore, Courts must innovate both in case law and in procedural oversight mechanisms. The focus of Constitutional Courts should be most oriented not only to the review of Public Policies but also to the implementation of a strong review of Structural problems in order to protect and fulfill Economic, Social and Cultural Rights.