Remedies for a breach of the right to health: A constitutional approach to the systems of New Zealand, Colombia and China

By Mattia Longa

Obama’s healthcare reforms in the U.S. have gone down in history as one of the greatest political breakthroughs of the new millennium brought about by a President. He has repeatedly stated that healthcare is a right, not a privilege. True, it is a universal fundamental right; however people do perceive it as such only when it is tangible. International human rights law encompasses the right to health in Article 12 of the ICESCR (supplemented by General Comment n.14) and makes it constitutional for those countries adhering to the Covenant even though they have no single written act called a Constitution. New Zealand, Colombia and China are parties to the ICESCR. These countries have vastly different health systems, yet the common need to improve the effectiveness of the right to health. Experience shows, indeed, that the enforcement of the right is just potential at the international level and the right may need to go through domestic judiciary mechanisms to be enforced. At this stage, it is worth noting that any right-to-health judgment requires consideration for its public constitutional nature as well as the private interest of the litigants: i.e. principle of horizontality. Today’s literature on the enforcement of the right to health mostly investigates these aspects and poses the question of whether victims of breaches are given sufficient and effective remedies. In order to find an exhaustive reply, it is of essential importance to take into account divergence between public/tax-based healthcare systems (e.g. New Zealand), social health insurance/managed competition systems (e.g. Colombia) and systems that are combination of the two (e.g. China). That being said, Walsh and Shortland cases convey the belief that New Zealand courts are right-to-health friendly at times and non-friendly at others. Akin to New Zealand is the Chinese case law, notwithstanding a different background. In the case of New Zealand, in fact, the issue is legal. The right to health is contained in several statutes while the statutes are so specific that they are not suitable to “general” claimants. Inconsistency of the Chinese courts, per contra, is motivated – yet not justified – by the total absence of one stare decisis rule. Stare decisis is the doctrine of precedent, whereby a certain court follows a previous ruling issued on an analogous matter by the same or another court. In China only the National’s People Congress may review laws; however, this feeds the pre-existing problem of the government interfering with effective protection of constitutional rights in any form and at any layer of the Chinese social community. Despite divergent reasons, bribery and social evils are sadly evident in Colombia in the same way. Courts’ rulings are coherent due to the nearly-always successful Tutelas and the impact of these writs has been huge on the healthcare system: the poor take home benefits granted by the judges’ decisions, the rich enjoy private treatment and the middle-class is left to fend for itself. The Constitutional Court of Colombia has tried hearing a multitude of Tutela cases together to offer a uniform solutions, but ended up engaging in out-of-case decisions, which conflict with the principle of separated powers. Hence, which legal changes are required to “blaze the trail” in each of the three countries? In terms of procedures, the gap in New Zealand is the easiest to fill. Amending only the Bill of Rights with the addition of a right-to-health provision would, in all likelihood, increase litigation since the people of New Zealand are used to referring to a single Bill. For this task the legislator should just pass a new act without going through veto and/or discouraging majority percentages in Parliament, as happened with the New Zealand Bill of Rights Amendment Act 2011. The situation is far more complex in Colombia where both healthcare and the enforcement of the right to health are lacking. It is evident that change must be organic, yet the Constitutional Court has rejected the government’s declarations for emergency status. The way out might be reforming healthcare in full towards a public system. That takes a long time: pursuant to Title XIII, revision of Article 49 of the Colombian Constitution undergoes two ordinary and consecutive periods of approval at the Congress. In spite of that, almost every alternative attempted so far has been a failure and time is ripe for something new. Finally, the challenge for China is, on the one hand, to outline the role of the governments in statutes and therein forbid them from trespassing the line between their competences and those of the judges (stricter application of the rule of law); on the other hand, it is to establish a stare decisis principle that brings consistency in judicial rulings. All in all, regardless of where improvements are achieved, remedies for a breach of the right to health hinge on constitutional implications and will presumably be capable of positive results only if accompanied by peoples’ and legislators/policy makers’ renewed mentality.

About the author: Mr. Mattia Longa is an LL.M. graduate in International and European Law from the University of Groningen and his paper on this topic was promoted by Mr. Mentko Nap and benefited from input from Prof. Dr. Brigit Toebes and Katrina Perehudoff.