This case involves a tutela action brought to protect the right to public health. An unfinished sewer system was overflowing and causing a significant public health risk to the inhabitants of two neighborhoods. The Constitutional Court used this case to delineate their role in defining and enforcing fundamental rights. The Court also laid out the criteria to interpret whether a right is fundamental and declared the right to public health fundamental.
The claimant filed a tutela action against the Public Works of Cartagena alleging that they put into operation an uncompleted sewer system, producing overflowing black waters and unsanitary conditions in two neighborhoods. The complaint alleged a violation of Article 88 of the Colombian constitution protecting the right to public health and asked for injunctive relief to prevent irreparable harm, as established under Article 5 of the Decree 2591. Though the Administrative Tribunal of Bolivar confirmed the unsanitary conditions alleged, it ruled that the tutela could only be used to enforce fundamental rights listed in Article 1 of the Constitution, which did not include the right to public health.
The Constitutional Court found that, in a social welfare state, the judiciary must not only uphold the formal text of the law but also ensure its positive application. While both legislation and judicial decisions create law, the court has the role of reviewing the other two branches of government to avoid unchecked power and apply the laws created by the legislature to social realities. Judges must also pressure the legislature to ensure they effectively enforce rights. The relationship between the constitutional text and social reality is more important than defining fundamental rights in a vacuum. Rights are not symbolic. They must be enforced.
Fundamental rights must derive from constitutional principles. Some fundamental rights are not expressly named in the constitution, but their connection to the rights that are named is such that without their protection, the named fundamental rights would not be guaranteed. The establishment of these rights through the Court’s interpretation of the constitution gives them immediate efficacy, and their protection is not dependent on legislative rulemaking. When declaring fundamental rights, the Court must take into account the economic reality of the state yet maintain the ultimate goal of constructing a more just, democratic, and freer society envisioned in the preamble to the constitution. The Court felt it should make decisions that neither simply maintain the status quo nor impose orders that would be impossible given the economic reality of the state. Where a fundamental right is declared and a violation is found, judges must formulate a remedy that first and foremost serves to protect the right and also takes into consideration the financial conditions of public entities.
The tutela allows courts to pronounce economic, social and cultural rights to be fundamental and to order enforcement of such rights. The constitution declares that it is the duty of the state to provide public services and to resolve health, educational, environmental, and water issues. Further, under Article 366, the state is obligated to give priority to social spending over any other allocation of resources. Evidence shows that the lack of adequate sewer systems is a grave risk to public health. The consequences of denying the right sought could lead to sickness and death and compromise the fundamental rights to life (Article 11) and human dignity (Article 1). Additionally, because the right sought in this case applies to marginalized neighborhoods, it also compromises the fundamental rights of the marginalized (Article 13). As such, the right to public health is a fundamental right.
The Court struck down the Administrative Tribunal’s decision and ordered the Public Works of Cartagena to resume construction of the sewer system within three months. The Court also declared that this case would serve as a precedent for all similar cases where incomplete public works projects affect public health.
Access to potable water is still a major problem in Colombia, despite the state having invested in sewer systems. Decree 605 of 1996 created new procedures for solid waste management including collection, storage, and disposal. Decree 3137 of 2006 created a Vice-Ministry of Water and initiated four new programs aimed at improving service, particularly in rural areas. Unfortunately, however, wastewater disposal remains a major problem. A significant percentage of wastewater remains uncollected because many households are not connected to municipal sewer systems. And even when connected, many municipalities lack wastewater treatment facilities. The WHO reported in 2006 that in rural areas, which comprise 23% of the population, only 71% had access to safe drinking water and only 54% had access to adequate sanitation.
This decision is considered very important because it proclaims the Constitutional Court’s authority to delineate new fundamental rights from the constitutional text and apply those rights to social realities through the tutela. The Court declares the right to public health to be a fundamental right. The Court also declares that the state has an obligation to give priority to social spending over any other allocation of resources and sets precedent affirming that the state has a duty to complete public works projects once started.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.
