The Materialization of Human Rights and the Will to do so

Social protection policies and programmes play a fundamental role in reducing inequalities and improving the quality of life of citizens, especially the less fortunate. Not only do they help to prevent individuals and their families from falling or remaining in poverty, they also contribute to economic growth by raising labour productivity and enhancing social stability (ILO, 2015).

Furthermore, for people to effectively exercise their Human Rights (such as Education, Health, and the Access to a Pension), affirmative action needs to be taken by the authorities through the development of policies and the implementation of programmes.

Political will is essential for the development of policies and programmes, directing public attention and guiding expenditure priorities. For example, the decades-long lack of political will, in Latin America, towards improving the Public Health Sector, has resulted in the collapse of Public Health Systems region-wide during the COVID-19 crisis.

In democratic states, besides the Executive and Legislative, other organs and actors have an important role in ensuring that people’s Human Rights and basic needs are met. Through the case of Peru’s Constitutional Tribunal, this blog will explore how Higher Courts play an essential part in reducing existing inequalities and protecting the Rights of minorities and the most vulnerable, even if it has to rule against the State itself.

 

A Mighty Force of Justice and Balance

In Peru, the structural organization of the State is more complex than traditional States due to the existence of Independent Constitutional Organs[1] (International Institute for Democracy and Electoral Assistance, 2008).

Of these organs, Peru’s most prominent one is the Constitutional Tribunal, the country’s highest court for protection of democracy and defence of Human Rights. As the guardian of constitutionality and maximum interpreter of the Constitution, it plays a pivotal role in the national justice system. Also, it can overrule the decisions taken by the Judiciary, including the Supreme Court. As binding jurisprudence, the Constitutional Tribunal’s rulings must be obeyed and complied by all, plus judges nationwide are bound to employ the same reasoning and criteria, in similar cases.

As such, the Tribunal’s decision can play a significant part in setting the landscape for honouring human rights obligations, including access to social protection. Considering this, the Constitutional Tribunal’s judges also play a key role in guaranteeing and ensuring judicial protection of Human Rights in a democratic State, due to serving as controllers of conventionality, constitutionality and legality of the acts of other powers of the State (Inter-American Commission on Human Rights, 2019).

 

Rising up for Human Rights

As the final level of national justice, most cases the judges of the Constitutional Tribunal see have unsuccessfully gone through the Judiciary. Which means, on their hands lie the last possibility of ending years-long injustices and problems of targeting on social protection programmes.

A good example of this are the cases in which people require special medical treatment provided by the state. The case of Azanca Alhelí Meza García[2], in which she required retroviral treatment, was processed and resolved in 2 months, which is a record, due to the urgency of the matter.

One of the main arguments of the ruling, which unanimously gave the reason to Ms. Meza, says that every public policy is born from the concrete obligation of protecting Human Rights, based on respect for Human Dignity. Also, regarding the budget execution of social purposes, this must not be considered as an expense, but as a social investment.

Due to this jurisprudence of the Constitutional Tribunal[i], the Ministry of Health changed its protocols to acquire a wider stock of antiretrovirals and, currently, large groups of people make lines outside of hospitals to receive their antiretrovirals for free, as part of the State’s health coverage. Jurisprudence carries value and can indeed serve a role in benefitting the community, through improving conditions for all.

Another key jurisprudence of the Constitutional Tribunal determined the diner of the Centre of Nutritional Support of Arequipa shouldn’t have been defunded and shut down, as the beneficiaries of the diner are in human necessity due to their poverty and vulnerability. Following a Constitutional protection of the Right to Subsistence and Food, the Regional Government was obliged to reopen the diner and provide it the necessary funding to resume operations.

This ruling[3] benefitted the 570 people, between men, women, children, and retirees, that the diner attended daily with a balanced meal for the value of less than one dollar (Tribunal Constitucional del Perú, 2019).

Conclusions

In sum, behind every social protection programme like Qali Warma[4], Pensión 65[5] and Universal Healthcare coverage, lies the political will of an authority who chooses to implement it. Due to the transitory nature of the position, the next authority could lack the political will to continue a social protection programme or policy. Therefore, some of the greatest allies for stability, balance and the defence of Human Rights lies within the Judiciary and Constitutional Tribunal of a country.

Late justice is not justice. People seek the justice system for protection from dangers to the exercise of their Human Rights that are imminent and whose effects, irreversible. Consequently, a responsibility lies on judges to not only be honest, compassionate, and fair, but swift.

It’s worth mentioning that the Judiciary and Constitutional Tribunal are independent and, as such, are not bound by political calculations nor third party interests. This sets a landscape of doing what must be done; serving justice even if it the decision taken on the ruling is not convenient to those in power.

Thus, jurisprudence can be a vibrant manifestation of legality and constitutionality, through the lenses of its issuing body. Its effects ripple beyond the constraints of the case itself, because it can serve as a tool of change, both for improving the status quo and as a wakeup call for politicians, to serve the common good and stand up for Human Rights. 

 

List of References

ILO. (2015). Why A Social Protection Floor?. Access here.

Inter-American Commission on Human Rights. (2019). No. 241/19. Access here.

International Institute for Democracy and Electoral Assistance. (2008). Estado: Funcionamiento, Organización y Proceso de Construcción de Políticas Públicas. Access here.

Tribunal Constitucional del Perú (2019). TC ordena a Gobierno Regional de Arequipa reabrir comedor popular. Access here.

Tribunal Constitucional del Perú. (2004). EXP. N.° 2945-2003-AA/TC. Access here.

Tribunal Constitucional del Perú. (2019). EXP. N.° 01470-2016-PHC/TC. Access here.

 

[1] Public entities that the Constitution has created and entrusted the efficient realization of core functions. These organs are autonomous and independent from the 3 traditional powers. In Peru, there are 10: The Constitutional Tribunal, Ombudsman, National Jury of Elections, General Prosecutor’s Office, National Board of Justice, National Office of Electoral Processes (ONPE), National Registry of Identification and Civil Status (RENIEC), Superintendence of Bank and Insurance (SBS), Central Bank of Reserve (BCR) and Comptroller of the Republic.

[2] EXP. N.° 2945-2003-AA/TC

[3] EXP. N.° 01470-2016-PHC/TC

[4] Qali Warma is a social protection programme of the Government of Peru that is focused on providing nutritious food to children during the school year.

[5] Pensión 65 is a social protection programme of the Government of Peru that tends to the elderly over 65 years that are in a situation of vulnerability. By giving them access to a pension, every 2 months, to help attend their basic needs.

[i] We had the honour of speaking to the former President of the Constitutional Tribunal of Peru, Victor Garcia Toma. Due to his recollection of the Tribunal’s most significant cases on the defence of Human Rights, during his tenure, we learned about the case of Azanca Alhelí Meza García and its transcendence.

Social Protection Programmes: 
  • Social assistance
    • Subsidies
      • Non-contributory health insurance
Social Protection Topics: 
  • Legislation
  • Universal Social Protection
Cross-Cutting Areas: 
  • Disasters and crisis
    • Humanitarian crisis
  • Human rights
  • Inequality
  • Poverty
Countries: 
  • Peru
Regions: 
  • Latin America & Caribbean
The views presented here are the author's and not socialprotection.org's