The basics of successful litigation

- Litigation may be an effective means to secure economic, social and cultural rights, says Camila Gianella. As a result of numerous health rights litigations, the Colombian Constitutional Court ordered extensive structural reforms of the country’s health system.

Colombia is the holder of an ambiguous world record. It is the country with the highest number of individual health rights litigation in the world.

-The world record is the consequence of a flawed health system in which the market orientation has spiraled out of control. But it is also an untenable situation for any country’s judiciary, says Camila Gianella, researcher at the Chr. Michelsen Institute.

To deal with the situation, the Colombian Constitutional Court issued a new law which ordered the Colombian government to adopt the necessary measures to correct deficiencies in the health-care system. The law was passed in 2008, but progress has been slow and the Colombian people still file individual complaints.

-This does not mean that the litigation process has been a failure, argues Gianella. It is a sign that the criteria for success have been missing. The problems implementing the Colombian Constitutional Court ruling illustrate that the use of legal strategies is not a static and isolated process. Legal strategies always take place in a specific context. To understand the effects of health rights litigation, we need to analyse the social, institutional and political challenges, says Gianella.

A practical framework for analysis
In her PhD thesis, Camila Gianella uses a new framework for analysing the impact of judicial decisions. The framework has been developed by a group of scholars at the Global Center for the Study of Law and Social Transformation, of which she has been a member. The framework contributes to identifying the most relevant contextual factors influencing the legal enforcement of economic, social and cultural rights (ECSR).

The first step involves describing the context in which legal strategies are taking place. This implies an analysis of the social, political and institutional causes and challenges. The second step is a plunge into the legal strategies used by different actors. Are the legal strategies top-down processes or bottom-up? Who participates in the discussions?

Finally, the effects of the legal strategies need to be analysed. Do they have any real impact?

-To cut a long story short; if health rights litigation fails to provide results, we need to investigate why the ruling is not being implemented, rather than dismissing litigation as a way of ensuring ESCR, says Gianella.

Health rights litigation under unfavourable conditions
For health rights litigation to be successful, the social, institutional and political context needs to be favourable. These contextual factors have not been favourable in Colombia.

Colombia has been torn by conflict for decades, and there is still a general sense of distress between different actors. There is also a deeply rooted ideological disagreement on the basics of what makes a sound health system. Even before the court ruling in 2008, there was a strong momentum for a broader, less market orientated approach on the political left, but Colombia has lacked arenas for dialogue and debate.

- Participation has different meanings, and the Colombian understanding of what participation entails has been too narrow. This has made participation, or rather the lack of participation, a crucial contextual factor impeding the health rights litigation process in Colombia. The Colombian government claims that it has facilitated participation through information, but this is not enough. The Colombian authorities have to create arenas for dialogue and make sure that they are used according to the intentions, says Gianella.

The long drawn-out process is not only a matter of lacking political will. The Colombian court ruling has also fallen victim to another contextual factor of great importance; weak institutions with little or no capacity to implement rulings. The Colombian health institutions have not been able to turn the tables, whereas the Colombian Constitutional Court has been unable to follow up the lack of compliance from health actors.

-There have not been any incentives to force the structural changes that the court ordered through. This has caused severe problems for the implementation process, problems that ultimately affect poor Colombians, says Gianella.