Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
| Autor | Vanice Regina Lírio do Valle |
| Cargo | Professora Permanente do Programa de Pós-Graduação em Direito da Universidade Estácio de Sá ? UNESA (Rio de Janeiro-RJ) |
| Páginas | 67-102 |
Licenciado sob uma Licença Creative Commons
Licensed under Creative Commons
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Revista de Investigações Constitucionais, Curitiba, vol. 1, n. 2, p. 67-102, maio/ago. 2014.
Judicial adjudication in housing rights in Brazil and Colombia:
a comparative perspective
Tutela judicial do direito à moradia no Brasil e na Colômbia:
uma perspectiva comparada
VANICE REGINA LÍRIO DO VALLE*
Universidade Estácio de Sá (Brasil)
vanicevalle@gmail.com
Recebido/Received: 07.01.2014 / January 7th, 2014
Aprovado/Approved: 28.01.2014 / January 28th, 2014
Resumo
Constitucionalismo cooperativo é a palavra de ordem
no século XXI, e a criação de uma rede judiciária é uma
ferramenta importante para o desenvolvimento de um
sistema de proteção aos direitos humanos. Este artigo
contribui neste campo, relatando a moldura constitucio-
nal e as principais decisões havidas nas Cortes Constitu-
cionais brasileira e colombiana, na proteção ao direito
fundamental à moradia. A comparação é justicada pela
proximidade histórica na transição jurídica em ambos os
países – a do Brasil, em 1988, e a da Colombia em 1991 –;
e também pela clara inspiração que a Colombia houve da
constituição brasileira. Como a narrativa vai demonstrar,
cláusulas constitucionais formais não foram o elemento-
chave para assegurar ecácia ao direito fundamental à
moradia; os resultados na Colombiana apresentam-se
mais sólidos e baseados em parâmetros normativos, não
obstante o texto da constituição não proveja direitos re-
vestidos de ecácia imediata.
Palavras-chave: direito fundamental à moradia; jurisdi-
ção constitucional no Brasil e na Colômbia; direitos so-
cioeconômicos; interpretação constitucional.
Abstract
Cooperative constitutionalism is the watchword in the 21st.
century, and the creation of a judicial network is an impor-
tant tool to improve human rights protection. This paper in-
tends to contribute in that eld, reporting the constitutional
framework and the main decisions held by the Brazilian and
the Colombian Constitutional Courts in protecting housing
rights. The comparison is justied by the historical proximity
in the juridical transition in both countries – 1988 in Brazil
and 1991 in Colombia –; and also by the clear inspiration
that Colombia took in the Brazilian Constitution at the time
of their Constituent Assembly. As the narrative may show,
formal constitutional clauses were not the key element to
assure some level of ecacy to the housing right; Colom-
bian results seems to be more solid and based in normative
parameters, even though the literal text of the constitution
does not provide housing rights with immediate ecacy.
Keywords: housing right; judicial adjudication in Brazil
and Colombia; socioeconomic rights; constitutional inter-
pretation.
Como citar este artigo | How to cite this article: VALLE, Vanice Regina Lírio do. Judicial adjudication in housing rights in Brazil
and Colombia: a comparative perspective. Revista de Investigações Constitucionais, Curitiba, vol. 1, n. 2, p. 67-102, maio/ago.
2014. DOI: http://dx.doi.org/10.5380/rinc.v1i2.40511
* Professora Permanente do Programa de Pós-Graduação em Direito da Universidade Estácio de Sá – UNESA (Rio de Janeiro-RJ).
Pós-doutorado pela EBAPE/Rio (Fundação Getúlio Vargas). Doutorado em Direito pela Universidade Gama Filho (Rio de Janeiro-
-RJ). Membro do Instituto de Direito Administrativo do Estado do Rio de Janeiro.
Revista de Investigações Constitucionais
ISSN 2359-5639
DOI: http://dx.doi.org/10.5380/rinc.v1i2.40511
Revista de Investigações Constitucionais, Curitiba, vol. 1, n. 2, p. 67-102, maio/ago. 2014.
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Vanice Regina Lírio do Valle
CONTENTS
1. Comparative constitutionalism: barriers in learning from each other. 2. Redemocratization in Latin
America at the end of the XX century: the Brazilian and the Colombian cases. 2.1. Constituent Assembly
in Brazil and Colombia – a brief historical overview. 2.2. Fundamental rights in the constitutional system
in Brazil and Colombia. 2.3. Legal guarantees of fundamental rights in Brazil and Colombia. 3. Housing
rights in Brazil and Colombia: constitutional framework. 4. Judicial examination of the housing right in
Brazil and in Colombia. 4.1. Assertion of the justiciability of the housing right in Brazil and Colombia.
4.2. Scope of judicial analysis in housing rights lawsuits in Brazil and Colombia. 5. Judicial protection
in housing rights and democracy: a subject to be faced in Brazil and also in Colombia. 5.1. Scarcity and
public choices. 5.2. Legitimaticy and emancipation. 6. Conclusion. 7. References.
1. COMPARATIVE CONSTITUTIONALISM: BARRIERS
IN LEARNING FROM EACH OTHER
Constitutionalism and judicial review, as featured in postmodern political prac-
tice in democratic States, is an idea that has broken frontiers and now prevails from the
United States to the more recently institutionally reorganized republics in Africa and
Asia. After all, according to a so called canonical view, “the crowning proof of democra-
cy in our times is the growing acceptance and enforcement of the idea that democracy
is not the same thing as majority rule”1 – which leads to an institutional design that con-
templates counter majoritarian tools that may guarantee minorities a political voice.
The universalization of that model – constitutionalism and judicial review –
brought an unexpected bonus: submission of conicts related mainly to fundamental
rights to Constitutional Courts worldwide, providing a rich environment to compara-
tive analysis, and the possibility of a productive exchange between these same courts2.
That environment allows comparative constitutionalism to move from constitutional
texts to real examples in constitutional adjudication, creating what Tushnet3 called ju-
dicial network, provided the necessary dialogue between Courts and countries.
That kind of exchange is especially useful in countries in which constitution-
al provisions related with fundamental rights embrace also the socioeconomic ones,
proposing all the dicult questions related with immediate or progressive realisation,
funding, minimum core, etc. In facing those challenges, getting in touch with foreign
experiences might be enlightening.
1 HIRSCHL, Ran. Towards juristocracy. The origins and consequences of the new constitutionalism. Cam-
bridge-Massachussets-London: Harvard University Press, 2004, p. 1.
2 Zagrebelsky, referring to that same exchange phenomena uses the expression “judiciary cosmopolitism” (ZA-
GREBELSKY, Gustavo. Jueces constitucionales. Boletín Mexicano de Derecho Comparado, nueva serie, año
XXXIX, nº 117, septiembre-deciembre de 2006, p. 1135-1151).
3 TUSHNET, Mark. The Inevitable Globalization of Constitutional Law (December 18, 2008). Hague Institute
for the Internationalization of Law; Harvard Public Law Working Paper No. 09-06. Available at SSRN:
http://ssrn.com/abstract=1317766 or http://dx.doi.org/10.2139/ssrn.1317766
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
The South African Constitution embraces expressly that idea, allowing their courts
to consider foreign law in their own reasoning4. In other precedents, Constitutional Courts
world have been evoking each other rulings, building a some what general consensus in
conceptualizing human rights and the best strategies to protect them in an hostile envi-
ronment as such provided by extreme individualism and profound social cleavages. The
phenomena – one of the many aspects of what Schauer has already called legal trans-
plantation5 – seems to be in an ascendant path, due to many reasons, among which one
should include the growing importance of international courts and forums oriented to
building a transnational view of the inherent relationship between democracy and law6.
That kind of global or transnational jurisprudence is perceived, especially by
Constitutional Courts as a powerful tool to learn about foreign understanding related
to human rights7; and also to increase the legitimacy and eectiveness in their own
decisions. One notable exception in accepting foreign approaches in legal reasoning
when it comes to human rights is the United States, the idea that any kind of inter-
change may result in a cultural contamination, therefore, in some kind of depreciation
of the American constitutional interpretation is still somehow, present8. Even in the US,
the perception that globalizing jurisprudence may be useful is a rising path9, as can be
noted from Justice Breyer’s assertion at Yale Law School, last September 19, 2014, ac-
cording to which “The only way to preserve our American values, which are now widely
shared, is to know more — not less — about what is going on abroad,”10.
4 South Africa Constitution, Chapter 2 – Bill of Rights, Sec. 39 – Interpretation of Bill of Rights: When interpret-
ing the Bill of Rights, a court, tribunal or forum (…) (b) must consider international law; and (c) may consider
foreign law.
5 SCHAUER, Frederick. The politics and incentives of legal transplantation. CID Working Paper nº 44, April
2000, Law and Development Paper nº 2, [on line], available at
storage/fckeditor/le/pdfs/centers-programs/centers/cid/publications/faculty/wp/044.pdf>, access in
02/15/2013.
6 The Venice Commission is a good example of an advisory body on constitutional matters that started as-
sembling European countries, and that now aggregates also Latin American and Asian states like Chile, Korea,
Morocco and Brazil.
7 One notable exception in accepting foreign approaches in legal reasoning when it comes to human rights
is the United States, where it’s still predominant the idea that any kind of interchange may result in a cultural
contamination, therefore, in some kind of depreciation of the American constitutional interpretation. System-
atizing objections to the use of foreign decisions as even a persuasive argument, POSNER, Richard. No thanks,
we already have our own laws. Legal Aairs July/ August 2004. Available at http://www.legalaairs.org/issues/
July-August-2004/feature_posner_julaug04.msp, access in 01/31/2013.
8 Presenting objections to the use of foreign decisions as even a persuasive argument, POSNER, Richard. No
thanks, we already have our own laws. Legal Aairs July/ August 2004. Available at http://www.legalaairs.org/
issues/July-August-2004/feature_posner_julaug04.msp, access in 01/31/2013.
9 Systematizing statistics and precedents in which the use of transnational jurisprudence, Globalizing Juris-
prudence, MCKINSTRY, Lucy. The Use of Foreign Authority in Domestic Constitutional Interpretation. Eruditio -
Duke University’s Undergraduate Humanities Journal, Volume 28: 2007-2008, [on line], available at https://
web.duke.edu/erudito/McKinstry.html, access in 10/28/2014.
10 SHIMER, David. Supreme Court justice underscores constitutional values. Yale Daily News. September 19, 2014.
Available at http://yaledailynews.com/blog/2014/09/19/supreme-court-justice-underscores-constitutional-
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Nevertheless, there are still barriers that elude the potential learning benets
when it comes to that desired exchange between constitutional courts. Social context,
political ambience, judicial practice, institutional design; all these are elements that
help understanding why in some cases, a Court’s decision supports a broader com-
prehension or a minimalistic approach when it comes to a certain fundamental right; a
mandatory remedy or a dialogical one11.
Another barrier – prosaic, but still relevant – is language. Even though Spanish, is
a language spoken by more than 330 million people, which may lead to a greater dissemi-
nation to the decisions held by, Latin American Courts, the fact is that the law community,
even in that same continent has not achieved the ideal level of exchanging experiences
and critical analysis. Language can also be the reason why the so-called constitutionalism
of the Global South12 encompasses distinct experiences like India and South Africa – but
excludes Brazil and Argentina. Still, courts’ decisions deal with repeated subjects – espe-
cially in the human rights eld, where states echoes worldwide a quite similar agenda,
strongly inuenced by the concerns noted in the international community.
This paper is part of an eort toward breaking through this isolation13, sharing a
judiciary perception revealed in recent decisions in Brazil and Colombia, on the partic-
ular subject of housing rights. The main purpose is to allow a broader understanding of
how that fundamental right has been normatively entrenched in the Brazilian and the
Colombian constitution, and how the judiciary, highlighting similarities and dierences
in each experience, is reading that formal provision. A dialogue may happen, in certain
aspects, with decisions held by the South African Court, which has, since the Govern-
ment of the Republic of South Africa and others vs. Grootboom vs. others, also developed
very interesting parameters to judiciary scrutiny when it comes to protecting housing
rights.
values/; access in 10/28/2014.
11 Pointing out the diculties related with a real understanding of the real social, political, cultural and eco-
nomic conditions that constrict constitutional law in a country in which you are not directly inserted, ZUM-
BANSEN, Peer, Comparative, Global and Transnational Constitutionalism: The Emergence of a Transnational
Legal-Pluralist Order (2011). Comparative Research in Law & Political Economy. Research Paper No. 24/2011.
Available at http://digitalcommons.osgoode.yorku.ca/clpe/62, access in 03/12/2013.
12 MALDONADO, Daniel Bonilla. Constitutionalism of the Global South. The Activist Tribunals of India. South
Africa and Colombia. US: Cambridge University Press, 2013.
13 A rst eort in publicizing how socioeconomic rights have been judicialized in the Brazilian experience can
be found in VALLE, Vanice Lírio do. Judicialization of Socio-Economic Rights in Brazil: The Subversion of
an Egalitarian Discourse (March 30, 2012). Available at SSRN: http://ssrn.com/abstract=2031719 or http://
dx.doi.org/10.2139/ssrn.2031719. Analyzing the troublesome eect of judicialization – the regressive poten-
tial present in that kind of adjudication, VALLE, Vanice Lírio do, Judicialization of Socioeconomic Rights in
Brazil: Mercantilization of the Fundamental Rights as a Deviance in Rights Protection. Paper presented
in the 3rd YCC Conference - American Society of Comparative law, (April, 2014). Available at SSRN: http://ssrn.
com/abstract=2511648.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
The comparative analysis between the Colombian Constitutional Court, and the
Brazilian judicial decisions in the matter, evidences a very signicative empirical nding:
the eectiveness of a socioeconomic right do not rely in its normative assertion. After
all, it is always very dicult bring to reality provisions that formulate allocative choices
about public expenditure through socioeconomic rights. That practical evidence reaf-
rm that constitutional choices are not out of the politics realm of deliberation; and
underlines the need of new tools, when it comes to adjudication in judicial review; tools
that may face a structural problem related with the ineectiveness of a socioeconomic
rights, using the same approach.
This paper is presented in 6 parts: in Part I the possible contribution from the
Brazilian and Colombian experiences to a supranational judicial network in the housing
rights subject is discussed. Part II is dedicated to a narrative of the political processes
that lead to the Brazilian and the Colombian constitution in the late 80’s and early 90’s.
Understanding the political ambience is a key factor to comprehending the constitu-
tional features on both countries, and the subsequent development of its interpreta-
tion in socioeconomic rights. Part III presents the constitutional provision in the Co-
lombian and the Brazilian constitutions in regard to housing rights; it will also describe
the general aspects of how the constitutional matter related with a violation of such
right may be brought to judicial appreciation. In Part IV some relevant decisions will be
brought to attention, in order to allow a glance of how those Constitutional Courts are
dealing with these conicts. Part V nally presents an important feature not explored
by either of the courts: the participatory dimension, and its importance in enforcing a
democratic practice.
2. REDEMOCRATIZATION IN LATIN AMERICA AT THE END OF THE
XX CENTURY: THE BRAZILIAN AND THE COLOMBIAN CASES
The last three decades held a sensible number of transitional political changes
in Latin America, most of them resulting in new constitutions14, or in profound amend-
ment processes in the previous texts15. These experiences held in countries that carry
common traces of historicity and geography, have been studied as dierent manifes-
tations of what has been named Latin American constitutionalism16. The Brazilian and
14 Brazil was the rst one to adopt a new constitution in 1988, followed by Colombia (1991), Paraguay (1992),
Peru (1993), Venezuela (1999), Ecuador (2008) and Bolivia (2009).
15 Costa Rica was the rst one to step into that path in 1989, followed by Mexico (1992) and Argentina (1994).
16 Analyzing features of the Latin America constitutionalism, UPRIMNY, Rodrigo. The recent transforma-
tion of Constitutional Law in Latin America: trends and challenges. Texas Law Review, Vol. 89, 2011, p.
1587/1609. Available at: http://www.texaslrev.com/wp-content/uploads/Uprimny-89-TLR-1587.pdf, access
in 01/31/2013. For a broader analysis, grounded in historical aspects of the constitutionalization process in
Latin America, GARGARELLA, Roberto. Latin American Constitutionalism, 1810-2010. US: Oxford Univer-
sity Press, 2013.
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Vanice Regina Lírio do Valle
the Colombian experiences are very close given to time proximity, therefore, to the
express inspiration that the latter one took in ideas from the former. Surely, both texts
have already been amended – but these changes have not subverted the original foun-
dational idea translated in both constitutions.
2.1. Constituent Assembly in Brazil and Colombia
– a brief historical overview
The two countries engaged themselves in a political transformation through
negotiation and agreement, in spite of violence or revolution, even though they had
experienced serious arbitrariness and violence in their recent past. That search for set-
tlement brought very peculiar features to the political process through which both the
constitution were written – and should be took into account in order to comprehend
the result of the constituent assembly in each of the two countries.
In Brazil, after almost three decades of military dictatorship, and the defeat in
1984 of the massive popular movement in favour of direct elections to presidency17,
the country found itself with a former leader of the conservative party as President –
and the approval of a new constitution appears to be a proper strategy to consolidate
the redemocatization process. Without the charismatic leadership of Tancredo Neves,
and dealing with the contingency of a non-wanted President; a man who has had re-
lations with the military regime; the delicate balance among forces needed something
new in the public agenda that might lay as foundation to a deeper change.
The Constitutional Assembly was called through a constitutional amendment
sent to the national Congress by President Sarney in July 1985, in the very early days
of his term. The amendment granted constitutional powers to the National Congress,
which was to be elect in 1986, a mild solution that brought a lot of criticism because
it would lead to an accumulation of the ordinary legislative functions, with the more
prominent task of carving the new Fundamental Law.
Despite the initial diculties, the Constituent Assembly took place, and deliber-
ation happened in an ambience of delicate balance between conservative forces, and
progressive ones. Brazilian political literature points that the inclusion of a broad list
of fundamental rights – related with liberty, but also socioeconomic ones – was the
17 The popular campaign asking for direct elections for presidency in 1984 was defeated – the constitutional
amendment needed to do so was not approved, and so the Electoral College prevail as the way to nomi-
nate the President. Nevertheless, millions of citizens in the street asking for direct elections for the presidency
showed conservatives that they would not be able to elect whoever they want; the solution was to compro-
mise with Tancredo Neves candidacy – a man identied with the redemocratizing movement, but also a very
experienced politician, who was believed to have the ability to complete the political transition with the mil-
itary. Unfortunately, Tancredo Neves got ill in his inauguration`s eve, and the Vice-President took oce – at
rst, as a provisory decision; becoming denitive with the death of the elected President in April 21st, 1985.
José Sarney, a former leader in the conservative party, indicated as Vice-President in the slate as a strategy of
facilitating a winning in the Electoral College was, out of pure dumb lock, President in Brazil.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
strategic path adopted by the progressive forces that were present at the Constituent
Assembly, in order to create at least, priorities in the political agenda settled by social
inclusiveness. That plan of action was complete with an institutional design that con-
templates a variety of agents that might control the adherence, by the political process,
to those constitutional values and priorities.
In 1988, the Constitution was promulgated, and given the name “the Citizen
Constitution”, since it prioritised the country’s citizens and the national goal of social
inclusion. Even though the 83 amendments that were already approved in the Brazilian
constitution, the central distribution of power, and the main commitment with social
transformation is still there – actually, it is reinforced by new clauses related with public
funding for all those socioeconomic rights.
Colombia also had its Constitutional Assembly summoned through an uncon-
ventional path. At the end of the 80’s, President Virgilio Barco intended to summon a
referendum to consolidate peace agreements with rebel political movements in Colom-
bia – especially M-19, but the drug tracking movement reacted so violently that the
idea was postponed indenitely.
The trigger to overcome that deadlock was a student movement called “The
seventh ballot”. It all began with a popular campaign, proposing that the nation’s citi-
zens, who were to vote for seats in the Senate, House of Representatives, Departmental
Assembly, and other political positions, brought with them to the voting booth a sev-
enth ballot (a simple paper with a pre-agreed message) in which they’d express their
desire to have a Constitutional Assembly summoned. Answering to that informal call to
express their desire for a new Constitution, 2 million citizens, comprising a total of 88%
of the votes, brought the seventh ballot to voting booths – which showed the inevita-
bility in summoning the Constitutional Assembly.
A legislative decree18 was then edited – Decreto Legislativo 927 de 1990 (3 de
mayo) – allowing the electoral branch to consider ballots in which the people would
be inquired about their agreement with the summoning of a Constituent Assembly,
designated to promote a large constitutional reform. Those ballots should be oered
and counted in the presidential election that would be held in the same year – and
might give more formality to the undoubted popular will showed through the “Seventh
Ballot” movement. One should take into account that the country had been under siege
for the past 6 years, and that certainly, a Constituent Assembly could not be summoned
by a simple act of the Executive branch “allowing” votes to be counted. It was a bold
choice, quickly submitted to judicial scrutiny by the Supreme Court, arguing about that
formal aw.
18 The expression “legislative decree” could be deceiving; this is a normative act – for sure – but edited by the
Executive Branch.
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In spite of all the legal concerns, the Supreme Court of Justice held the decree
constitutional19, pronouncing that the deliberation it held was among in the inherent
powers grant to the President by the siege. The Court also proclaimed an “evident” con-
nexion between the summoning of the Constituent Assembly; the denitions of a new
institutional framework to political power and the overcoming of the violence and the
lack of institutional order that determined the siege itself. As a result, convene the Con-
stituent Assembly was armed to be possible, and the next step was to model the
proceedings that may be applied.
The design of the procedure to be observed through constituent deliberation
was turned public by Decreto Legislativo 1926 de 1990, drawing limits to the Assem-
bly’s deliberation – all of them related to a political agreement celebrated between the
competing forces that lead Colombia to the path of violence and instability resulting in
the siege20. The Supreme Court of Justice in examining that new decree sustained the
same approach about the importance of a free and unlimited Constituent Assembly,
that should give voice to a (re)foundational pact among Colombians21. That premise
leads to a decision holding unconstitutional the provisions in that decree which repre-
sented limitations to the free deliberation of the peoples representatives in the Constit-
uent Assembly. In the use by the Court of a quotation from Bobbio22, one could identify
the leading thought in those decisions: the political life is develop through conicts
never completely solved, in which a solution is achieved through agreements, truce
and those more lasting peace treaties called constitutions.
The Constituent Assembly took place in Colombia in a very pluralistic political
ambience, reincorporating social tendencies that were excluded of the political life23.
19 COLOMBIA. SUPERIOR COUT OF JUSTICE. Sentencia 59, mayo veinticuatro (24) de mil novecientos noventa
(1990). Sala Plena, Expediente No. 2149 (334-E). Available at ftp://ftp.camara.gov.co/camara/basedoc/csj_nf/
sp/1990/csj_sp_s59_2505_1990.html.
20 The political process to build some kind of agreement that may facilitate the approval of a new consti-
tutional order is similar to the one held in South Africa. A broad conversation involving political parties, so-
cial movements and even paramilitary organizations in Colombia ended with the stipulation of subjects that
should be reformed or brought to the constitutional reform – just like the 34 points that guided the South
Africa constitutional process. In Colombia, due to a fear that the delicate balance might be lost, the proposal
in Decreto Legislativo numero 1926 de 1990 was that only those specic subjects were to be considered in the
deliberation process – and that was the clause ruled unconstitutional by the Court, given to the unacceptable
result of the originary constituent power.
21 COLOMBIA. SUPERIOR COURT OF JUSTICE. Sentencia 138, octubre nueve (9) de mil novecientos noventa
(1990). Sala Plena, Expediente No. 2214 (351-E). Available at ftp://ftp.camara.gov.co/camara/basedoc/csj_nf/
sp/1990/csj_sp_s138_0910_1990.html, access in 02/05/2013.
22 COLOMBIA. SUPERIOR COURT OF JUSTICE. Sentencia 59, mayo veinticuatro (24) de mil novecientos noventa
(1990). Sala Plena, Expediente No. 2149 (334-E). Available at ftp://ftp.camara.gov.co/camara/basedoc/csj_nf/
sp/1990/csj_sp_s59_2505_1990.html, Consideraciones de la Corte, c) La conexidad.
23 UPRIMNY YEPES, Rodrigo. Should Courts enforce social rights? The Experience of
the Colombian Constitutional Court. [on line], available at <http://www.google.com.br/
url?sa=t&rct=j&q=housing%20rights%20colombia%20constitutional%20court&source=web&c-
d=9&ved=0CF8QFjAI&url=http%3A%2F%2Fwww.dejusticia.org%2Fadmin%2Ffile.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
As a result, the deliberative process was – just like in Brazil – very balanced, each subject
held at a time, in a delicate operation destined to build consensus.
This was not the last event in the Colombian constitutional life – the political in-
stability, and the recurrent issue of reintegrating in political life who had been involved
with violent tactics in the past still impels new proposals in constitutional amendment.
Such initiatives, like the previous constitution amendment that took place in 2003, and
the current proposition in expanding jurisdiction to military courts, in order to examine
incidents of violence and crime that occurred during the harsher siege period; although
very important to build an accurate understanding about the Colombian constitutional
ambience, won’t harm the analysis in the judicial appreciation of conicts related with
socioeconomic rights, and specially, the housing rights.
Given to their root in a strong popular mobilization as a trigger to constitutional
change, it is not surprising that in both countries, the new fundamental chart came to light
with a strong commitment to promoting democracy in it’s two dimensions (representative
and participative)24 and to fundamental rights, social justice and promoting equality. The
problem is that those new systems require a completely dierent way in building public
choices. Public Administration has now constitutional guidelines about which should be
the result of its own plan of action, and deance of those same purposes qualies as a con-
stitutional violation, and can be object of judicial scrutiny, through a huge variety of law-
suits. A new balance of powers is to be establish, in a normative system in which constitu-
tional law requires public action from the Executive and Legislative branch – and allows the
Judiciary to rule about suciency, adequacy and eciency of those same public policies.
2.2. Fundamental rights in the constitutional
system in Brazil and Colombia
Even though theoretical categories like transitional, aspirational or transforma-
tion constitutionalism25 were not organized in the early 90’s – and cannot be pointed
php%3Ftable%3Ddocumentos_publicacion%26field%3Darchivo%26id%3D67&ei=wRoeUZSfLoaY-
9QTu8ID4Ag&usg=AFQjCNHIpwsZ6gvQRl-38EUzpX_HvGLXIg&bvm=bv.42553238,d.eWU>, access in
02/15/2013: “As a result, more than forty per cent of the delegates did not belong to the Liberal and Conser-
vative parties, which until that day had dominated the political scene, and many interpreted the situation as
the end of the two-party system of political domination. Moreover, given that the voting system was based
on qualied majorities, and there was no clearly dominant group, all the assembly’s delegates had to seek
consensus and organize dialogue and transactions to make decisions”.
24 In Colombia, participation as an essential feature of democracy was a pivotal subject; after all, the para-
military organizations intended to be reinserted in the political life. In Brazil, on the contrary, consolidating
a representative democracy was the rst concern – after all, the constitution succeeded three decades of au-
thoritarian military government, in which even when elections took place, the representation principle was
undermined by elections rules, and the occupancy of political positions like Senator or mayor in the states
capitals happened through direct nomination – and not democratic surage.
25 Systematizing features of transitional constitutionalism, YEH JIUNN-RONG e CHANG WEN-CHEN. The Chang-
ing Landscape of Modern Constitutionalism: Transitional Perspective (march 31, 2009). National Taiwan
University Law review, Vol. 4, No 1, pp.158, 2009. Available in:
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as a model or inspiration for the Brazilian or Colombian constitutions –, the intention of
promoting change and overcoming social exclusion presents itself as a clear objective
in both political experiences26. In fact, committing to fundamental rights was a strate-
gy carried by progressive forces in both Constituent Assemblies to establish a political
agenda oriented to social inclusiveness, in subjects where, at that time, there was not
enough political consensus to allow a denite constitutional provision27.
Both constitutions came to light with an extensive list of fundamental rights,
including those referred to as socioeconomic ones. In a comparative perspective, that
strategy aligns with a worldwide tendency in constitutional design present since the
late 1990’s, of formally recognizing socioeconomic rights. The analytic structure ad-
opted particularly by the Brazilian Constitution – there are 78 individual fundamental
rights listed in article 5; and 34 in article 6, which contemplates socioeconomic rights28
– is a testimony of the belief that social transformation may be achieved through con-
stitutional commitments.
Nevertheless, they dier in a very important aspect: ecacy. In the Brazilian
constitution, art. 5º § 1º asserts that every fundamental right is endowed with immedi-
ate ecacy29. That express command was jurisprudentially extended to each and every
fundamental right – including the socioeconomic ones. The most important conse-
quence of that assumption is that any violation of fundamental rights expressed in the
in 05/10/2012 and KHATIWADA, A. 2008. Constitutionalism of transition. Kathmandu Law Review, 1(1):1-
17. Available in: http://ssrn.com/abstract=1500826. Access in: 04/07/2012. On the subject of transformative
constitutionalism, CHRISTIANSEN, E.C. 2010. Transformative constitutionalism in South Africa: creative use of
Constitutional Court authority do advance substantive justice. The Journal of Gender, Race & Justice, 13:575-
614. Available in: http://ssrn.com/abstract=18908885. Access: 22/04/2012; KLARE, K.E. 1998. Legal culture and
transformative constitutionalism. South African Journal on Human Rights, 14:146 e ss.; LANGA, Pius. Trans-
formative constitutionalism. Stellenbosch Law Review, 2006. Available at < http://sun025.sun.ac.za/portal/
page/portal/law/index.afrikaans/nuus/2006/Pius%20Langa%20Speech.pdf, access in 04/01/2012
26 A detachment of an ordinary foundationalist understanding of the constituent moment, as the previous
narrative shows may also be pointed as a feature in the Brazilian and the Colombian experience that brings
them closer to transitional constitutionalism.
27 The most signicant example in the Brazilian constitution was the social function of property rights. The
right to property is granted in art. 5o. XX, and its subordination to the so called social function is the following
commandment (art. 5o., XXI) – the meaning of that constraining clause is not in the constitution, but has been
developed through further legislation (Civil Code, Urban Planning Code and other legal documents), and is still
object of intensive controversy.
28 That number should not be took as nal; there are other fundamental rights mentioned along the Brazil-
ian Constitution. There is also a specic clause (article 5º, § 2º) which states that the rights and guarantees
expressed in the constitution do not exclude other ones deriving from the principles contained in the Funda-
mental Text, or from international treaties in which Brazil is a signing party.
29 Gilmar Mendes, former Chief Justice of the Brazilian Supreme Court, and still a Justice in the bench, remarks
the diculty proposed to the Court in facing “…the increasing demand from society with a deep commitment
to the realization of fundamental rights…” That task, according to Mendes, “… can be especially complex in cases
concerning socio-economic rights, which are declared in the Brazilian 1988 constitutional text by directly applicable
legal norms…” (Mendes, Gilmar. The Judiciary and the right to Health”, speech delivered in the “Judiciary
and the right to Heath” Princeton University, (EUA). March 25th, 2010, available at http://www.stf.jus.br/portal/
cms/verNoticiaDetalhe.asp?idConteudo=122591&sigServico=noticiaArtigoDiscurso&caixaBusca=N).
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
constitution may be submit to judicial appreciation, in a competency shared by all the
levels of the judiciary power, and not reserved to the constitutional court.
The judicialization of socioeconomic rights is, therefore, a clear possibility in the
Brazilian system; resulting from the constitutional commitment with human dignity, set
as a fundamental objective of the Republic (article 1º, III of the Brazilian constitution).
In a comparative perspective, the Brazilian provision aligns with a worldwide tendency
in constitutional design present since the late 1990’s, of formally recognizing socioeco-
nomic rights. The analytic structure adopted by the Brazilian Constitution – there are 78
individual fundamental rights listed in article 5; and 34 in article 6, which contemplates
socioeconomic rights30 – is a testimony of the belief that social transformation may be
achieved through constitutional commitments.
It should be note that the immediate ecacy clause in Brazil was initially red as
establishing towards the State, a duty of instantaneous and complete action needed
to grant the constitutional socioeconomic right. Progressive realisation – a known con-
cept that was adopted by the South African Constitution in some of the socioeconomic
rights provisions – was seen as an alternative incompatible with the Brazilian constitu-
tion. That kind of perception about the meaning of immediate ecacy spread around
the Brazilian constitutional literature, and was clearly, at the time, a political discourse:
fearing that the constitutional commitments with social transformation might became
symbolic promises, the assertion of the authority of such clauses and its possible judi-
cial scrutiny was a way to its enforcement.
Colombia’s constitution, dierently, has an express list of rights provided with
immediate ecacy (art. 85)31 – none of them, socioeconomic rights. On the other hand,
socioeconomic rights are not associated to a clause of gradual implementation, as in
South Africa’s constitution. The public duties related to socioeconomic rights are ex-
tracted from general clauses like art. 2 of the Colombia constitution, which establishes
that the eectiveness of principles and rights enounced in it is an essential purpose of
the State. Another interesting feature in the Colombian system is an express clause (art.
13) that enounces priority in providing fundamental rights favouring the discriminated
and the marginalized. That same clause refers to a special protection of those in a per-
sonal condition that expresses manifest weakness32.
30 That number should not be took as nal; there are other fundamental rights mentioned along the Brazil-
ian Constitution. There is also a specic clause (article 5º, § 2º) which states that the rights and guarantees
expressed in the constitution do not exclude other ones deriving from the principles contained in the Funda-
mental Text, or from international treaties in which Brazil is a signing party.
31 In the list contained in article 85 of the Colombian constitution, one may nd a various range of rights such
as the right to life, protection against torture and cruel treatment, personality, intimacy, self development,
freedom of thought and religion, petition to public agencies, work, learning, due process, etc., etc..
32 Once again, one can see the convergence between the Colombian system, and the South African experi-
ence. After all, even without an express provision referring to a especial protection those victims of discrimina-
tion or marginalization, the assertion that protection of the the vulnerable should be a feature of public policy
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A preference sign favouring any part of the population is not an express clause
in the Brazilian constitution. On the contrary, in the right to health for instance, the Bra-
zilian constitution refers to a principle of universalization – and there is still controversy
over what the meaning of that principle is. Even though it seems reasonable that public
plans and policies should privilege the vulnerable segments of society, especially in
a matter like health; one could easily nd in the Brazilian jurisprudence, the concept
that States duties when it comes to health comprehends even wealthy people. That
assertion is grounded in the idea that constitutional protection to a health’s right is a
direct emanation of human dignity as the fundamental grind of the Brazilian Federative
Republic – and that feature is the same, and should be equally protected among rich
and poor.
That double indeterminacy in the Brazilian system – fundamental rights grant-
ed, without a precise content and with no priority, parameters when it comes to who
should be the prior addressees of public policies present as a result, an increasing level
of judicialization about those rights, as will be demonstrated in the following.
The understanding of both constitutional systems – the Brazilian and the Co-
lombian ones – when it comes to fundamental rights and their protection will not be
complete without a glance of the legal guarantees that may apply when those rights
are not fullled by the executive or the legislative branch.
2.3. Legal guarantees of fundamental rights in Brazil and Colombia
Once more, the approximation between the Brazilian and the Colombian con-
stitution and others qualied as transformational or aspirational seems correct. Both
of them incorporate a comprehensive institutional system that should work in case of
constitutional indelity by the political branches – and the judiciary is presented as the
mediator, or even, the main responsible in promoting eectiveness of socioeconomic
rights, even thorough correcting public policy.
That kind of constitutional engineering is understandable through the historical
perspective, in which extreme concentration of power in the Executive branch is point
as a common reaction of the conservative forces in Latin America33. In such a scenery,
preventing inertia and providing formal mechanisms aimed to overcome the non-ob-
servance of those constitutional priorities is a constitutional feature as needed as the
entrenchment of the fundamental rights themselves.
that promotes progressive implementation of socioeconomic rights was present since the earlier decisions like
Government of the Republic of South Africa and others vs. Grootboom vs. others.
33 GARGARELLA, Roberto. The constitution of inequality. Constitutionalism in the Americas. 1776-1860. I-Con,
Volume 3, Number 1, 2005, p. 1-23, available at http://www.ead.unb.br/aprender2013/pluginle.php/904/
course/section/1076/Int%20J%20Constitutional%20Law-2005-Gargarella-1-23.pdf, access in 10/28/2014.
79
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
In Brazil, a violation of fundamental rights may be scrutinized by individual or
collective lawsuits34, in which judicial review (analysis of the constitutionality of a law
provision) will de exercise – or not. The judicial complain may simply involve an unfair
exclusion of the plainti from the realm of a public policy that is already in course; or it
may be grounded in the assertion that a constitutional provision requires some kind of
public policy that simply do not exist.
Judiciary examination of a rights violation is grant to everyone by a constitu-
tional principle called “access to justice”. Therefore, any conict related to any right may
be submitt to the judiciary – and if the prospect plainti cannot pay for the legal fees,
he can be exempt by simply declaring that he cannot pay for them without prejudicing
his basic needs. Legal representation is provided by a state institution called “Defenso-
ria Pública”, which is a board of lawyers, that become public servants by public competi-
tion, whose job is to represent the underprivileged in lawsuits of any kind, even against
the State that provides their own salary.
The scenery in Brazil is not complete without mentioning another public insti-
tution called “Ministério Público”, which represents the “society’s interests”. They too are
public servants, with tenure and other guarantees granted so as to allow them to keep
track of governmental activity, and even promote lawsuits if they believe the collective
interest is not being suciently served. Tenure and no salary regression are import-
ant guarantees that should prevent the institution from feeling impaired of retaliations
such as salary cuts or being red. Also, selection by public competition – and not elec-
tion – complete a framework in which those institutions are nor called primarily to do
political choices when it comes do public interests protection.
Usually, a lawsuit in Brazil involving fundamental rights will be settled by the
lower courts and not by the Constitutional Court. This curious arrangement is due to
an understanding in the Brazilian judiciary system that the Constitutional Court should
not deal with factual evidences; their task is to only interpret and protect constitutional
rules, and this is something that should be done without any consideration of facts.
That is, the protection of the Constitution in Brazil happens through an evaluation of
hypothetical risks and threats, without dealing with case-specic issues.
This a very challenging feature of the Brazilian judicial system, especially after
the 1988’s constitution and its large list of fundamental rights. Surely, when it comes to
the violation of fundamental rights, the facts are all that matters. If not the facts of the
34 Collective lawsuit is a literal translation of the Brazilian legal expression – in the United States they would be
called “class actions”. In the Brazilian system, a collective lawsuit requires a violation of a right that transcends
one single person; that encompasses a determinate collectivity, or even as indeterminate one – in what we call
trans-individual rights. Those kind of lawsuits, according to the Brazilian procedural system, should be led from
the beginning, through an association, union or any other kind of organization that represent collective interests.
Brazilian procedural law also allow a collective lawsuit to be led by federation members (central government,
States governments and municipalities) and by public institutions in charge of protecting societies interests.
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case, at least the ones related to the public policies made by the government in that
area. A proportionality test could never be hold in disregard of the facts – and then, a
decision about the constitutional meaning of social right rides on a very thin line be-
tween a merely abstract assertion, and a glance at the factual circumstances of the case.
There is not in the Brazilian system, a writ, or a particular way through which a
citizen could bring his violation of a fundamental right directly to the Constitutional
Court. There’s a general remedy, called “extraordinary appeal”, that is oriented to the Su-
preme Court – but it could involve any kind of constitutional litigation; it is not reserved
exclusively to the protection of fundamental rights.
So how do fundamental rights get to the Constitutional Court in Brazil? Through
the already mentioned “extraordinary appeal”, that won’t be granted if the discussion
presented to the Court is found “contaminated” by a factual discussion. Of course, this
is a very broad concept, which causes the Brazilian law community to assert that the
Constitutional Court examines whatever they feel like examining, dismissing cases that
seem unimportant or highly controversial, by declaring that the central point of that
specic lawsuit is the discussion is of facts and not of rules or principles35.
In that theoretical approach, the Brazilian Constitutional Court has already as-
serted that fundamental rights are justiciable and that the judiciary might in conse-
quence, control and even formulate public policy, in order to assure that public pro-
grams will be answering to sensitive needs in such a eld36. There are even decisions
from the Constitutional Court in Brazil where specic rights are examine – and pro-
claimed as invested with immediate ecacy, therefore demanding prompt deliverance
of goods and services37. The problem is that those decisions usually limit themselves
to the assertion that the right is justiciable and that State has duties in promoting and
protecting it. When it comes to establishing parameters to evaluate public policy or
even the content of the right in discussion, the Constitutional Court is usually reluctant.
35 As an illustration of what kind of litigation in fundamental rights the Court usually examines, health issues is
on the “top ten” list. This is a clear example of that exibility that the Court allows itself when in comes to grant
– or not – a remedy due to excessive factual background.
36 The rst ruling in which the Constitutional Court proclaimed the possibility of judicial review fall upon pub-
lic policies, striking them out or even formulating a substitutive model, or a new one that should ll the ex-
isting blank was dealing with a fundamental right do access to pre-school (BRAZIL. Federal Supreme Court.
RE 410715 AgR, Relator(a): Min. CELSO DE MELLO, Segunda Turma, julgado em 22/11/2005, DJ 03-02-2006
PP-00076 EMENT VOL-02219-08 PP-01529 RTJ VOL-00199-03 PP-01219 RIP v. 7, n. 35, 2006, p. 291-300 RMP
n. 32, 2009, p. 279-290). The lawsuit was le due to the circumstance that the city of Santo André, despite the
constitutional provision that grants pre-school as an element of the right to education, was not providing the
required public service.
37 It is also widely known and fairly reported the decisions delivered by the Brazilian Constitutional Court relat-
ed with the health right. The rulings go to order the deliverance of medication, to granting medical procedures,
or even to hire medic and other health professionals. To a brief view of judicial litigation in the eld, FERRAZ,
Octavio Luiz Motta. The right to health in the courts of Brazil: worsening health inequities? Health and Human
Rights Jounal. Volume 16, Issue 2: Special Issue on Health Rights Litigation.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
Colombia, on the other hand, has a whole chapter in the constitution regarding
the protection and application of fundamental rights (Chapter 4), and a wide range of
procedures related with the preservation of the Constitutional itself38. The crucial role
was reserved to a particular provision (acción de tutela) designed to protecting consti-
tutional fundamental rights violated or endangered by an action or omission of public
authorities (art. 86). It is an exceptional remedy, and it should be rejected if any other
judicial mean is available. It is the same constitution that allows the use of acción de
tutela as a transitory mechanism oriented to preventing irremediable damage – and in
that sense it has been largely applied, also due to a progressive interpretation held by
the Colombian Constitutional Court.
It is interesting to underline that the judicial system in Colombia, oering the
possibility of a direct motion to the Constitutional Court just like acción de tutela, pro-
vides in a certain way, a broader social control of the public policy that is in action. As
long as any citizen, excluded or damaged by that same governmental plan, can submit
that exclusion to the judicial control of the Constitutional Court; you don’t have to rely
so heavily in institutional controls like in Brazil.
Acción de tutela is not a remedy directed exclusively to the Constitutional Court;
and this is a point that should be stress. It could be directly present by a citizen to any
judge, even without legal representation. What happens is, as the Constitution deems
this type of action as one that should be examined with priority, even if the litigation
starts in a lower court. That feature leads to a tendency of the tutelas to reach higher
decision levels in a relatively short time, enabling the Constitutional Court to give the
necessary guidelines about the rights content.
Unlike in Brazil, in Colombia the appreciation of the facts does not seem to be a
problem when it comes to judicial scrutiny in any level: the Constitutional Court’s decisions
dedicate a whole section exactly to the exam of the factual aspects of the controversy.
One more remark to be done about the Colombian Constitutional Court’s and its
vision of granting fundamental rights – and it is related with de courts orders. Aside from
the ordinary type of ruling, in which the court provides individualized enforcement of
a specic constitutional right, or deliver a negative injunction, striking down a norma-
tive command or a public policy in course of action; the Colombian Constitutional Court
has also applied structural remedies39. That innovative kind of ruling intent to frame, in
38 New procedures were introduced to safeguard dierent types of rights and interests protected by the Con-
stitution. Those tools include: 1) a writ to order administrative authorities to full their legal mandates in specif-
ic situations (Acción de Cumplimiento); 2) a writ to protect collective rights (Acción Popular); 3) a writ to secure
rights of specic social groups (Acción de Grupo); and nally 4) the writ of protection of fundamental rights
(Acción de Tutela). (ESLAVA, Luis, Constitutionalization of Rights in Colombia: Establishing a Ground for Mean-
ingful Comparisons (December 16, 2009). Revista Derecho del Estado, Vol. 22, pp. 183-229, 2009. Available at
SSRN: http://ssrn.com/abstract=1524547).
39 Describing the experience of the Colombian Constitutional Court with structural injunctions, LANDAU,
David. The Reality of Social Rights Enforcement (March 2, 2011). Harvard International Law Journal, Vol.
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a broader base, obligations that emanate from the constitutional provisions. A second
very important characteristic of structural injunctions is that they are deliver, usually, in
a combination of a ruling with some kind of supervisory jurisdiction, meaning, the Court
monitoring – by itself, or with the help of ocial agents or even of society organizations
– the implementation by government, of the initial commands expressed in the ruling.
In a preliminary comparative exercise, it should be noted that the Brazilian solu-
tion sank in opening up the alternatives of judicial scrutiny, by granting everyone ac-
cess to Court, and by empowering public institutions that may support those noncon-
formism with the eectiveness grade of a socioeconomic right. The general idea seem
to be that when the dispute about a social right arrives in Court, it will meet solution
due to the juridical expertise of the constitutional judges. If the conict is grounded
in rights, law should provide the necessary criteria to solve the tension – facts details
and administrative diculties in oering the claimed right are not relevant to nding
the proper legal answer. The problem is that especially in the grounds of social rights,
there is much more them a judicial dispute. Social inclusion through a rights granting
strategy is never set apart from an idea of distributive justice; it is never divorced from a
choice about funding priorities. In short, debating the due content of a socioeconomic
right is never merely a juridical debate.
The Colombian approach, on the other hand, embracing the factual analysis;
providing priority to disputes submitted through acción de tutela and exploring the
possibilities of structural injunctions seems to assume more clearly that enforcing so-
cioeconomic rights is not a pure legal question; therefore it should go beyond the clas-
sical litigation model.
The clear insuciency of the classical judicial tools to overcome social rights
disputes become clearer when the good or service associated with the constitutional
provision is scarce; a scarcity that do not depends merely on the willingness to spend
money, but enclose other features that prevent an immediate solution to the lack in the
oer. This is precisely the diculty associated with the housing right – that is equally
protected in the Colombian and in the Brazilian constitution.
3. HOUSING RIGHTS IN BRAZIL AND COLOMBIA:
CONSTITUTIONAL FRAMEWORK
The main reference in the Colombian constitution to a housing right is art. 5140;
complemented by another disposition that refers to the State’s duty to promote pro-
53, No. 1, 2012; FSU College of Law, Public Law Research Paper No. 488. Available at SSRN: http://ssrn.com/
abstract=1774914.
40 Article 51 – Every Colombian has a right to a proper home. The State shall establish the necessary conditions
to make that right eective, and shall promote social policies oriented to provide housing; adequate systems
in long term nancing, and associative forms of executing those housing programs.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
gressive access to land property in favour of rural workers (art. 64). The housing right
– it should be reminded – is not among the rights provided with immediate ecacy, as
stipulated in art. 85.
The Brazilian constitution, on the other hand, only mentions the housing right
in art. 6º41, in a large list of socioeconomic rights. It should be claried that the original
constitutional text in Brazil did not mentioned a housing right; the reference was in-
cluded by a constitutional amendment in 2000. There is no specic allusion to the e-
cacy of such right, but it is usually read as one of the many encompassed by the generic
clause contained in the Brazilian constitution, art. 5º § 1º 42 which grants immediate
ecacy to fundamental rights. That Brazilian constitutional clause, when interpreted
together with the openness to new fundamental rights in art, 5º, § 2º 43, leads to a
comprehension that immediate ecacy is a feature that should be recognized to every
fundamental right express or implicitly extracted from the Brazilian constitution.
What should be kept in mind when housing issues are examined is the historical
perspective in developing countries like Brazil or Colombia, because the root of these
problem indicates meaningful variables that should be taken into account when think-
ing about judicial scrutiny.
In Colombia, population displacement44 is a sensible issue, usually character-
ized as a side eect of the increasing power of armed groups, and their attempt to con-
quer power. Various paramilitary organizations operating in the country for many years,
as a truly parallel power, created a reality in which armed conicts were almost routine
in some regions. A strategic interest of any of those groups in some localities might
determine massive displacement from a villa or a small town. Displacement could take
place also because a family or even an individual citizen opposed to the presence of the
armed group which has gained power.
The result was a permanent displacement of population, a phenomenon that
took place through a large period of time – sometimes through massive manifesta-
tions; sometimes silent and undetected, comprehending a family, or maybe a single
individual, ordered to leave the community by members of one of the armed groups.
41 Art. 6 º – The social rights are education, health, food, work, housing, leisure, security, social security, mother
and childhood protection, assistance to the unhelped, as ruled in this Constitution.
42 Art. 5 º § 1º - The provisions dening fundamental rights and guarantees have immediate ecacy.
43 Art. 5 º, §2º – Rights and guarantees expressed in that Constitution do not exclude others related to the
regimen and principles adopted by itself, or to international treaties in which the Brazilian Federative Republic
is a party.
44 The phenomenon is called in Colombia, “desplazamiento”. A perfect translation should take into account
that the displacement in their country happened mainly due to political conict between government and
armed groups that for decades intended to conquer political power. Exile, for sure, is a word that would reveal
that political background – but still, wont represent properly what happened, because the population was
moving, but still in the countries frontiers. That is why displacement was the chosen word to be used in that
essay.
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Those features resulted also in kind of a concealment of the problem, hidden in the
broad scenery of an unocial war45.
This lead to an important characteristic of the Colombian displacement: it stroke
all kinds of people, and not a particular ethnicity, religion or social group, given that the
main cause was simply being in the way of the war.46Another relevant feature – a conse-
quence of the multipolar characteristic of the armed conict – is that the displacement
reached many regions in the country. The combination of those traces created a very
heterogeneous group of displaced people – therefore, a collectivity that has no other
identity other then having been struck (all of them) by the displacement. This will have
implications in their own capacity to organize themselves as a social group, in order to
demand from the State a proper response to that unfortunate reality.
That context enlarges housing problems in Colombia, after all, dealing not only
with the goal of providing shelter, but also the challenge of inserting the displaced
population into an unknown, even hostile environment must be dealt with. This in-
sertion would mix people of dierent origins, culture, and history, which could result
in further discomfort and conict among them. Furthermore, loosing their roots as a
result of an unocial war brought also the problem of belonging: the displaced do not
perceive themselves as belonging to the community in which they are living.
In Brazil, housing problems are not so deeply related with displacement. Even
though there is still an exodus to the richest metropolis in the South-East – especially
when the dry season is more acute in the Northeast –; nowadays housing problems are
related mainly to the absence of a comprehensive public policy oriented to providing
that right, especially in the big centres. So, for decades, the government did not oer
popular houses, or even nancing plans – neither for popular housing, nor for the middle
class ones47. On the other hand, even the private sector was not oering nancing or any
kind of programme related with housing – the country was experiencing hiper-ination,
and banks were more interested in the nancial market than in housing projects.
This turned the middle class towards cheaper properties – ones that could be
bought without special conditions in nancing – and left the needy with no alternative
at all. The consequence was the multiplication of slums in most of the main capitals in
Brazil, frequently located not only in the suburbs, but also in the centre of those cities48.
45 GIRALDO, Gloria Naranjo. El desplazamiento forzado en Colombia. Reinvención de la identidade e implica-
ciones en las culturas locales y nacional. Scripta Nova. Revista Electrónica de Geografía y Ciencias Sociales,
Universidad de Barcelona [ISSN 1138-9788] Nº 94 (1), 1 de agosto de 2001.
46 This is an entirely dierent reality when compared with recent history in South Africa, where displacement
was a phenomenon that struck mainly the black population, due to laws in the apartheid regime.
47 In the 70’s, there was a public agency named Housing National Bank, that was in charge of nancing houses
– for the poor, middle class – but a series of scandals resulted in its closing.
48 Another explanation could be oered to slums in the inner city: public transportation is also very precarious
in big cities in Brazil, turning residency nearby work regardless of the conditions, very attractive.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
That unorthodox solution sought by the less favoured, was consolidated through
time, resulting in slums like “Rocinha”, in Rio de Janeiro, with a of around 100.000 people.
A nal consideration should be made about the Brazilian housing rights con-
text. Given the fact that the absence of public policies was the main cause of housing
problems; a state of leniency was installed when it came to the occupation of public
areas. So, for years the population built improvised shelter in public areas, occupying
spaces that were originally intended for the expansion of the roads, or other infrastruc-
ture equipment like squares or leisure areas. The nomination of Brazil as headquarter
for the World Cup in 2014 and the Olympics in 2016 provoked an expressive amount
of public enterprises taking place in major capitals – which frequently involve nally
giving public spaces occupied by the population, their originally intended public desti-
nation. Those public enterprises promote the debate around the eviction of those who
have been living in those public areas, sometimes for decades, sometimes even paying
taxes related with their precarious houses. In Rio de Janeiro, particularly, where both
of the sports events will take place, the signicant enterprises and transformations in
transportation and infrastructure that the city must undergo to be prepared for the
games, have turned populational exodus49 a major issue.
4. JUDICIAL EXAMINATION OF THE HOUSING
RIGHT IN BRAZIL AND IN COLOMBIA
Despite a common trace in history, comprehending the colonization process
and violent domination in previous political regimes; and regardless of the clear inspi-
ration that the Colombian Constituent Assembly found in the Brazilian experience with
the 1988’s constitution; both countries have adopted dierent paths in dealing with so-
cioeconomic rights – particularly, housing rights, as may be imediatly perceived in the
constitutional treatment of the subject adopted by each of the. Curiously, as the deci-
sions came to be, the judicial interpretation in those rights in both courts has provided
dierent approaches, and the results in the eectiveness standpoint, are unexpected.
4.1. Assertion of the justiciability of the housing
right in Brazil and Colombia
The proclamation itself of the justiticiability of the fundamental rights in Brazil
was a direct consequence of the already mentioned constitutional clause that provides
all of the fundamental rights with immediate ecacy50. Even though in the earlier years
of the 1988’s Constitution validity some discussion was established due to the evident
49 The expression should be understood as comprehending all kinds of evictions: those related with ilegal
occupation and expropriations made due to public interest or social need.
50 To a transcription of the mentioned constitutional clauses, see footnotes 27 and 28.
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cost reects of the assertion that socioeconomic rights might be judicialized, soon the
conclusion was that the objection must be overcome by the granting of at least, the
minimum core or those same rights51.
The turning point in the Brazilian Constitutional Court related with fundamen-
tal rights and public policy, was the conclusions stated in RE 410715 AgR, JusticeCelso
de Mello, ruled in 11/22/2005. In that decision the Court asserted that, “even though
the primary prerogative in formulating and executing public policies belong to the
Legislative and Executive power, it turns possible to the Judiciary, even in exceptional
basis, especially when it comes to public policies designed by Constitution itself, order
their implementation by a defaulter state agency, which omission – that implicates in
the non-fulllment of their juridical and political mandatory duties – shows itself apt
to compromise the ecacy and integrity of social and cultural rights provided with
constitutional status.”
That rst proclamation was repeated and extended to the housing right, recent-
ly, in ARE 639337, Justice Celso de Mello, ruled in 08/23/2011, in which the Constitu-
tional Court asserted that the minimum core notion in fundamental rights is enough to
“guarantee do citizenry, goods and services provided by the State, sucient to achieve
the full enjoinment of basic social rights as a right do education, child protection, right
to health, social security, housing, food and public security”.
The conclusion is that housing rights in the Brazilian system are qualied as fun-
damental (despite their socioeconomic nature); and they are provided with immediate
ecacy, meaning that the State have duties in guaranteeing those rights at the same
immediate pace. The judiciary may scrutinize public policy in the subject, assuring pri-
ority to the protection of the minimum core of the housing right.
The constitutional framework was not that clear in Colombia. A right to proper
housing was proclaimed in the Constitution, but as a social right, and excluded of the
clause that invested some of the fundamental ones with immediate ecacy (art. 85 in
the Colombian constitution).
The problem related with that constitutional design arrived at the Colombian
Constitutional Court in the earlier days. After all, despite the fact that those rights were
not included in art. 85 of the Colombian constitution; they surely were not supposed
to be just a wishful thought. From the beginning, the Colombian Constitutional Court
adopted a position in which in spite of rearming the dierence on the ecacy lev-
el between the rst generation of fundamental rights and the socioeconomic ones, it
51 As a matter of fact, that theoretical solution still faces a lot of controversy, due to the diculties associated
with the concept of minimum core, systematized in YOUNG, Katharine, The Minimum Core of Economic and
Social Rights: A Concept in Search of Content. Yale Journal of International Law, Vol. 33, No. 1, 2008. Available
at SSRN: . The Brazilian approach in the subject is clearly oriented to a val-
ue-based core, and this left unsolved the challenging possibility of judicial decisions valuing dierently dignity
and freedom when the plaintis are from dierent social stratum.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
could discern the possibility of granting the latter some degree of enforceability due to
its intrinsic relation – considering the circumstances of the case – with a right provided
with immediate ecacy52.
The housing right specically, was appreciated for the rst time in Sentencia No.
T-251/95, in which the absence of immediate ecacy in such a right was rearmed. A
novelty in the Court’s ruling was labeling housing rights as submitted to a progressive
development clause53 – an expression that in its meaning, is very close to the “progres-
sive realization” clause contained in South Africa’s constitution54.
In the following decisions, the Court proclaimed equally the state’s duty in pro-
viding access to housing programs 55 due to a public interest in facing the housing
decit and in protecting the dimension of human dignity that may be challenged by
the unsheltered condition.
Finally, in the subject of the justiciability, the Colombian Constitutional Court
also established that the abstract nature of the public interest clause – that is the foun-
dation of State’s duties related with housing rights – requires that it’s application should
be oriented to conciliate public interest, individual rights and the social value expressed
in cultural diversity56. That understanding intends to avoid that housing rights, usually
52 COLOMBIA. Constitutional Court. Sentencia No. T-506/92, Justice Ciro Angarita Baron, Sala Primera de Re-
visión, ruled in 01/22/92. “Fundamental rights provided with immediate ecacy are those of liberty and formal
equality, and also some rights designed to promote material equality, related with protecting life and human
dignity. Their immediate ecacy comes from their general nature, and is valid in every case. Fundamental
rights provided with indirect ecacy are those socioeconomic or cultural that have a narrow connection with
fundamental rights provided with immediate ecacy. That kind of ecacy results from the necessity to estab-
lish a balance of the circumstances in each case, which in turn, is a consequence of the very nature of rights that
presume an unequal treatment in order to achieve some level of material equality”.
53 COLOMBIA. Constitutional Court. Sentencia No. T-251/95, Justice Vladimiro Naranjo Mesa, Sala Novena de
Revisión de la Corte Constitucional, ruled in 06/05/95. “Constitutional rights submitted to a progressive devel-
opment clause, like housing rights, may only produce eects with the fulllment of some juridical and material
conditions that turn them possible – meaning that primarily, those rights are not susceptible of immediate pro-
tection by acción de tutela. Therefore, housing is an objective right from an attendance character, that should
be developed by legislation and promoted by Public Administration in accordance with the law.”
54 Art. 26. Housing.- (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realization of this right.
55 COLOMBIA. Constitutional Court. Sentencia No. T-383/99, Justice Alfredo Beltrán Sierra, ruled in 05/27/99.
“According to constitution, acquiring and preserving housing to Colombian families cannot be taken as a sub-
ject not knowledgeable to State given that, dierently from what happened in an overcome individualistic
understanding, authorities have a constitutional specic task to fulll in a favored way, public necessities in
acquiring houses, facilitating payment in adequate conditions”.
56 COLOMBIA. Constitutional Court. Sentencia No. C-053/01, Justice Cristina Pardo Schlesinger, Sala Plena
de la Corte Constitucional, ruled in 01/24/01. “It’s precisely the abstract and undetermined character of
the public interest concept that leaded liberal modern constitutions to consider the necessity in harmo-
nizing it with individual rights and with the social value inherent to cultural diversity. That`s why in order
to provide prevalence of public interest, an indispensable requirement is that the jurist analyze in great
detail the particularities of each case, trying to harmonize public interest with individual rights and, if that
harmonization become impossible, promote a balance taking into account the value hierarchy pointed by
constitution”.
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scrutinized by an individual lawsuit – acción de tutela – may succumb to a hiper-individ-
ualistic perspective.
In sum, housing rights in Colombia are fundamental – but only invested of im-
mediate ecacy when in narrow connection with rst generation fundamental right
such as liberty or material equality; therefore they can be judicially scrutinized, but in
a perspective that allows that concrete connection due to particularities of the case.
4.2. Scope of judicial analysis in housing rights
lawsuits in Brazil and Colombia
A clarication should be done in the scope of the judicial rulings in Brazil and
Colombia, showing a curious paradox.
As a direct consequence of its own judicial system, litigation in Brazil related
with socioeconomic rights – and housing is no exception – may be held in individu-
al lawsuits, or in class actions. Adding to that the immediate ecacy of fundamental
rights, one has an ambience where the Brazilian Constitutional Court is entitled to rule
in a broader approach, drawing major lines concerning the contents of a right and the
parameters that should be used to evaluate a possible violation – especially when that
fundamental right has constitutional status, as happened with housing. That percep-
tion would be reinforced by the Constitutional Courts assertion of the possibility to
control public policy, which should bring to attention the whole public action program
in the eld. Still, this is not what happens in Brazil.
Despite the proclamation of the justiciability of social rights – including housing
rights – the Brazilian Constitutional Court has not yet dedicated itself to establishing
parameters regarding the denition of the abstract content of such a right; nor has it
spent time listing main features that should be followed by a public policy designed to
provide such a right. The most frequent technique utilized by the Constitutional Court
in dealing with those rights would be simply the proclamation of the (in) compatibil-
ity of a legal provision that might have some implication with housing, with the con-
stitutional commitment in protecting housing rights, dening a somewhat negative
certainty zone57. The Brazilian Constitutional Court did not justify that strategy – there
is no proclamation of a discretionary zone reserved to the public administration, or
some kind of deference that should be given to administrative choices. As a result, the
so-called control of public policies in housing rights is not instructional, but merely by
reproach, in a non-dialogical relation between the Court and the Administration. There
57 An example of that kind of strategy can be found in RE 407688, Justice Cezar Peluso, Tribunal Pleno, ruled
in 02/08/2006, in which the Court asserted the constitutionality of a legal provision that allow a homestead
property owned by someone who gures as a guarantor in a contract, to be reached by seizure. That same kind
of decision can be delivered by the Superior Court of Justice, in examining exactly, constitutionality of national
laws ruling any aspect of property, and how it could be challenged by any legal or judicial decision.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
is not an eort in the sense of framing any normative concept of the content of the
right itself, or even of the duties that may be established for the State to abide by in
drawing correspondent public policies.
That path presents itself as especially doubtful when one takes into consider-
ation the fact that the same Brazilian Constitutional Court asserted that each funda-
mental right has a minimum core that should be judicially protected. That proclama-
tion leads to the inevitable recognition that in spite of the constitutional provision that
fundamental rights are provided with immediate ecacy, there is a dierentiation that
should be done between the core content of such rights and the peripheral. That dier-
entiation seams to be an operation to be held by the Constitutional Court, as the main
guardian of the constitution; and in a broader basis, concurring to a greater eective-
ness of the Fundamental Chart. In spite of all this, the Brazilian Constitutional Court has
been opting for a path in which the content of the housing right, or the characteristics
that should be applied to housing programs or public actions of eviction are not a pri-
mary concern and no answer is even hinted at to a public servant that intends to be
guided by judicial interpretation in the fulllment of his constitutional duties.
A predictable risk is that those decisions in housing rights do not really collude,
neither to increase the protection level of such a right, nor to develop the democratic
process inherent to the enunciation of a public policy in the eld. Summing up, the
Brazilian Constitutional Court, when dealing with housing rights has not perceived – or
at least, has not given a proper answer – to the regressive potential of judicial decisions
in socioeconomic rights in without considering the necessary dynamic interaction be-
tween legal and broader political processes58.
An important symptom of how present that risk is, in the Brazilian reality, is the
solution provided by lower courts to housing rights litigation. Frequently, conicts in-
volving eviction are being solved by compensatory measures – nancial reparation for
the lost house (or the house that is to be lost, at times); sometimes granting the plain-
tis a temporary aid called “social rent”, that is presumed to be enough to provide for
the needed shelter. That kind of decision, taken in an individual basis is found by judges
to be granting the housing rights – but it is certainly not doing so. Financial reparation
or “social rent” does not generate the needed shelter, and usually, the result is simply
the displacement of the evicted from irregular occupancy to irregular occupancy – and
most probably, the repetition of the same problem and adjudication in the near future.
Colombia, on the other hand, has been experiencing a dierent path. Building
the justiciability of socioeconomic rights in an inherent connection with liberty and
material equality brought more than a case-oriented approach. The general line of
58 LIEBENBERG, Sandra. Socioeconomic rights: adjudication under a transformative constitution. Claremont:
Juta & Co. Ltd, 2010, p. 41/42.
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thought in developing the possible content of the housing right is built in an inter-
connectivity pattern, that takes into account how those dierent fundamental rights
should relate. As a result, the judicial scrutiny necessarily ends up taking into account,
not only a specic fundamental right, but also a whole set that is inherently related with
the most evident one claimed in the lawsuit.
Dierently from the Brazilian approach – in which the immediate ecacy is as-
serted in abstract, to each and every fundamental right –; in Colombia a conclusion
about the possibility of judicial enforcement of a housing right can only be established
when all the concurring rights are understood on a systematic basis. This is an approxi-
mation that mitigates somehow the regressive potential of the judicial decision; at least
because it takes in account the whole system of fundamental rights and human dignity
protection.
Even though judicial decisions in Colombia in the housing subject usually take
place in acción de amparo – a procedure that, as it was already mentioned is orient-
ed to individual claimings59; the fact is that the denition of the connectivity of the
concurring rights is a logic operation that is held in abstract, and then applied to the
concrete situation. That logical operation is reected even in the physic conguration
of the Colombian Constitutional Court’s decisions, usually divided in dierent sections
which deal with the facts, the previous rulings and the juridical problem that should
be faced. The Court’s considerations are delivered in that same order, examining the
juridical problem in abstract, and only then promoting the conciliation between the
premises established in facing the juridical problem with the facts of the case.
That strategy in building the Colombian Constitutional Court’s decisions re-
sults in the enouncement of abstract parameters that may orient the comprehension
of the eects of a housing right, though qualied as a socioeconomic one, in public
action. This was the context in which, for instance, the Colombian Constitutional Court
armed that an eviction promoted by public administration in public areas should ob-
serve due process – meaning the citizen who would be struck by the eviction should be
allowed argue against it. The Colombian Court also asserted that in situations where a
state of legitimate trust was established between the citizens and the Administration
related with the possibility of building in a determined area, an eviction process in that
same place should be constrained, and the removal subordinated to the oer of an
allocation alternative by State60.
59 It should be noted that sometimes, the Colombian Constitutional Court decides collectively a big amount
of acción de tutela, in an accurate intellectual exercise of dealing with a problem in a macro vision, an them
applying those macro parameters to individual situations – as an example, COLOMBIA, Constitutional Court,
Sentencia SU-360 de 1999, Justice Alejandro Martinez Cabalero, Sala Plena, ruled in 05/19/1999, dealing with
dozens of workers were claiming a right to oppose to eviction from public spaces.
60 Recently, in Sentencia T-437 de 2012, the Colombian Constitutional Court granted tutela to an old man that
has been living in a public space for almost 20 years, even paying taxes for the occupied area. The main reason
91
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
The combination of the housing right, and the previously mentioned constitu-
tional provision of a special protection favoring the most vulnerable also allowed the
Colombian Constitutional Court to grant protection in favor of women who are heads
of the family61 and children62.
The paramount decision in housing rights, in which that abstract reasoning, fol-
lowed by its concrete application in the existent acciones de tutela is certainly Sentencia
T-025 de 200463, in which the Colombian Constitutional Court decided at a time, 105
acciones de tutela, all of which concerned the inadequacy or insuciency of the pub-
lic policy designed to deal with the internally displaced people. In that decision, the
Court proclaimed what it called an “unconstitutional state of things”64, meaning, a gen-
eral incompatibility between the public policy that was in course to provide shelter for
those people, and the constitutional parameters related with the promoting of social
inclusion, material equality and human dignity. In the ruling, the Court examined the
postponing arguments that Public Administration usually presents – budgetary prob-
lems, constrictions related with bigger priorities, etc. – asserting a general obligation
for the State in taking action, granting a minimum level of protection and preventing
regression in that same cover.
One additional comment deserves to be made, due to its novelty. In the Co-
lombian judicial system, the procedure to be observed in “acción de tutela” is regulated
by Decreto 2591 de 1991, in which a provision can be found (art. 27)65 that allows the
was that it could be seen a legitimate trust by the petitioner, that his occupancy has been somehow taken as
regular by Administration, that was oering him public services and charging him taxes. (COLOMBIA. Consti-
tutional Court, Sentencia T-437 de 2012, Justice Adriana María Guillém Arango, Sala Tercera de Revisión de la
Corte Constitucional, ruled in 06/12/12.)
61 COLOMBIA. Constitutional Court. Sentencia T-079 de 2008, Justice Rodrigo Escobar Gil, Sala Cuarta de Re-
visión de la Corte Constitucional, ruled in 01/31/08..
62 COLOMBIA. Constitutional Court. Sentencia T-617 de 1995, Justice Alejandro Martinez Caballero, Sala Sépti-
ma de Revisión de tutelas de la Corte Constitucional, ruled in 21/13/95. This is a decision with many in common
with Government of the Republic of South Africa and others vs. Grootboom vs. others, where de pivotal reason to
the granting of the tutela was a massive presence of children in a community struck by eviction. The decision
of the Court determined also that the correspondent public agencies should take the necessary provisions in
order to provide the basic conditions necessary to preserve the families’ unity and the children’s protection:
“The existence of minors does not block a judicial or administrative order of eviction. Nevertheless, the State
cannot disregard its duties related with child protection, preserving familiar unity, especially when the children
live in inhuman conditions”.
63 COLOMBIA. Constitutional Court. Sentencia 025 de 2004, Justice Manuel José Cepeda Espinosa, Sala Tercera
de Revisión, ruled in 01/22/2004.
64 This was not precisely the rst time in which the Court applied that concept; as a matter of fact since 1997
there have been seven decisions of this kind, in a broad range of subjects, as noncompliance with the state’s
obligation to aliate numerous public ocials to the social security system, massive prison overcrowding, lack
of protection for human rights defenders and failure to announce an open call for public notary nominations
(RODRÍGUEZ-GARAVITO, César. Beyond the courtroom: the impact of judicial activism on socioeconomic rights
in Latin America. Texas Law review,Vol. 89 (7), 2011).
65 Art. 27 – In every case, the judge will establish the eects of his decision to the concrete case, and will main-
tain competency until the right is entirely reinstated or the menace causes ceased.
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Court to dedicate itself to a supervisory jurisdiction. That strategy is being fully used in
monitoring the compliance with the Court’s decision in such a dicult matter as that
of the displaced people. The Court even ordered66 and has already promoted a special
public audience that, according to its own ruling should “evaluate the eectiveness of
the dierent disciplinary, scal and judicial mechanisms that provide compliance with
the orders delivered by the Constitutional Court as ruller of an acción de tutela intend-
ing to protect displaced people; also the obstacles and institutional practices that have
turned dicult the application of the decision.
So here is the paradox: Regardless of the apparent stronger character of the
housing right in the Brazilian constitution due to its immediate ecacy, the fact is that
judicial protection by Constitutional Court is being held in a minimalist approach. This
is a curious deviation from Mark Tushnet’s thesis67 that opposes two models: strong
rights and weak courts, or weak rights and strong courts. In Brazil, housing rights may
be seen as strong – but in reality, they are not, due to the lack of density in the corre-
spondent constitutional clause. Judicial review in Brazil may be theoretically qualied
as a strong-form, considering that courts have general authority to determine what the
Constitution means, through constitutional interpretations equally authoritative and
binding to the other branches68. Despite that apparent strong-rights and strong-courts
combination, minimalist rulings do not reveal, and are not capable of generating the
intended transformational eect.
In Colombia, on the contrary, the lack of immediate ecacy did not paralyze
the Court. In a creative interpretation, inserting housing rights in the complex of fun-
damental rights that should be protected in order to preserve the core value of human
dignity, the Colombian Constitutional Court carved a strategy that enhances the trans-
formational potential of its own practice, exchanging parameters and evaluation with
public administration, in order to improve public programs in the subject. Even the
binding eect, that is not clearly stated in the Colombian Constitution, was armed by
the Court through the expansion of the originally inter partes eects of tutela, granting
inter communis eects to persons who have not actually led the corresponding tutela,
but share common circumstances with the plaintis, belong to the same community,
and might be negatively aected by a decision that does not include them.
Even the public audience that took place in the displaced people matter is a
demonstration of a dialogic practice of judicial review in socioeconomic rights; an ap-
proach that does not rely exclusively in the judicial capacity to interfere and transform
66 COLOMBIA. Constitutional Court. Auto 219 de 2011, Justice Luis Ernesto Vargas Silva, Sala Especial de Segui-
miento a la Sentencia T-025 de 2009, ruled in 10/13/2011.
67 TUSHNET, Mark. Weak courts, strong rights. Judicial review and social welfare rights in comparative
constitutional law. United States: Princeton University Press, 2008.
68 TUSHNET, M. 2003. Alternative forms of judicial review. Michigan Law Review, 101:2781-2802.
93
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
reality, but requires a broader range of public agents, critics and social organization,
that should provide a pluralistic view69, enhancing the chances of a consistent and
progressive public action in the subject. Activism here appears not to be a behavior
pattern drawn in an adversarial contraposition between power branches; activism in
the Colombian Constitutional Court is a strategy designed to increase institutional
capacities and coordinate public eorts in order to fulll the State’s constitutional
commitments.
5. JUDICIAL PROTECTION IN HOUSING RIGHTS
AND DEMOCRACY: A SUBJECT TO BE FACED
IN BRAZIL AND ALSO IN COLOMBIA
The Constitutional Courts’ courses evidence that litigation in housing rights is
probably a phenomenon in a progressive curve. The housing decit in Brazil, in 2008
was estimated in 5,5 million (in governmental numbers)70; in Colombia, in 2005 the
same decit was established in 3,8 million71. Besides that, the judicialization of the pub-
lic policies is also a tendency in those countries – as it seams to be in the whole world72
– in a pattern that doesn’t seem likely to change in the next years73. The classic causes
for that phenomenon , such as the discredit of the Executive and Legislative branch, or
in the other side of the spectrum, a strategy held by those same political branches ori-
ented to depoliticize those subjects – therefore, lightening their political burden in any
course of action; those are problems that would still be in the scenery. The challenge
is how to protect housing rights, in the sense the constitution intended to do, without
falling back into the trap that is the judicialization of socioeconomic rights.
69 On the importance of a polycentric view when it comes to the enforcement of socioeconomic rights,
dialoguing with the South African experience in judicial review, RAY, Brian, Policentrism, Political Mobili-
zation and the Promise of Socioeconomic Rights (December 9, 2009). Stanford Journal of International
Law Vol. 45, p. 1; Cleveland-Marshall Legal Studies Paper No. 08-154. Available at SSRN: http://ssrn.com/
abstract=1098939.
70 These data were found in a survey held by the Cities Ministry, coted by the federal legislative, available
at
CIONAL-NO-BRASIL-E-DE-5,5-MILHOES-DE-MORADIAS.html>, access in 02/14/2013.
71 These data are provided by Centro de Estudios de la Construcción y el Desarollo urbano y regional, available
at http://www.cenac.org.co/index.shtml?apc=I1----&x=20152718, access in 02/14/2013.
72 HIRSCHL, Ran. The judicialization of mega-politics and the rise os political courts, Annu. Rev. Polit. Sci.
2008. 11: 93-118.
73 In the Colombian experience in judicialization of politics, mapping challenges and benets, YEPES, Ro-
drigo Uprimny. Judicialization of politics in Colombia: cases, merits and risks. Sur, São Paulo, v. 3, Select-
ed Edition 2007 .Available from
-64452007000100003&lng=en&nrm=iso>. access on 15 Feb. 2013. The Brazilian experience in the same path
is described in VALLE, Vanice Lírio do. Judicialization of Socio-Economic Rights in Brazil: The Subversion of an
Egalitarian Discourse (March 30, 2012). Available at SSRN: http://ssrn.com/abstract=2031719 or http://dx.doi.
org/10.2139/ssrn.2031719.
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5.1. Scarcity and public choices
When it comes to housing, two variables are extremely important. One of them
is the scarce nature of the intended good – and the argument here is not only based
in the budgetary problems. One house is rarely like another. There are intangible as-
pects that give particular value to a house – and not to another. Location, community,
personal history, working place proximity, availability of public transportation, familiar
neighborhood – all those are aspects that inuence the value that someone perceives
in a particular house. So the scarcity is an inevitable problem when it comes to housing
programs – because it is not physically possible to assure to every possible displaced
or evicted person, that their new destination would be just like the place they are cur-
rently leaving.
The second variable – intrinsically related with the rst one – is that if scarcity
is an inevitable issue, choices should be made, and when it comes to public choices,
every inclusion brings a correspondent exclusion. If a public park is to nally be created,
providing better life quality in a community, it may require evictions if the public area is
invaded. So here we face a rst choice: maintaining people in the invaded area and de-
priving the neighborhood of the park, or building the park at the cost of those people’s
houses? We can always build the park somewhere else – would this be an acceptable
solution? Will it increase the costs? Would it suce to guarantee the benets the build-
ing of the park seeks to provide?
The usual proposition – and in fact, the inclination of the Colombian Constitu-
tional Court74 – is that the State should provide some form of alternative sheltering to
the displaced or evicted, and it seems to be a good solution. The problem is that the
alternatives provided by State embrace modications in the many elements that com-
pound housing provision. A large community that is evicted because they are placed
in some kind of risk area may not agree do be separated in many settlements. Or they
might prefer to be settled somewhere else – even more distant, but where they could
stay together.
In Rio de Janeiro, recently, the settlements provided by a public policy called
“My house, my life”, a joint eort of the three federation levels, normally provides apart-
ments located in small buildings – and that choice has proven to be a controversial
one, because people in the slums or irregular occupations usually prefer houses. Why?
74 The Brazilian Constitutional Court has not examined any case like this – so there is no precedent to allow
any kind of speculation. The Brazilian judiciary as a whole – and the reference is especially to the lower
courts – is deciding just like the Colombian Constitutional Court, trying to establish a balance between
a compelling public interest that may determinate the eviction, and the protection of the housing right;
usually this is done by demanding Public Administration to provide some kind of alternative of shelter to
the evicted.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
Because another oor can be built if the family grows, a son get married, a mother-in-
law comes to live with the original family.
Scarcity and public choices is a duality that pervades housing conicts; and this
is a central idea that has not been incorporated to the Constitutional Courts decisions
in the subject. The supposedly technical decision that orders public authorities to pro-
vide some alternative to the deprived cannot be executed without taking into account
non-technical variables – such as the sense of belonging and individual autonomy and
even the subject of the legitimacy of such a choice.
For sure, the already mentioned decision in Sentencia 025/04 and the following
pronouncement in supervisory jurisdiction are exceptions in the Colombian scenery.
But even in there, the normal standards of the Court’s decisions do not take into ac-
count that inherent duality in scarce resources and public choices.
5.2. Legitimaticy and emancipation
One of the indicated causes to judicialization of socioeconomic rights – and
housing should not be an exception – is the low level of social organization, which
presents the political path as a winding one, turning the judicial response more appeal-
ing. When the Court began its work, the Colombian population turned to the constitu-
tional instance to demand answers to problems that, in principle, should be debated
by means of citizen’s participation in the political sphere and resolved by the State’s ac-
tion75. In Brazil, the number of “extraordinary appeals”76 has risen from 10.780 in 1990,
to 42.790 in 201277 . The activist trace of both Constitutional Courts is usually pointed
– by themselves and by part of the law community – as a valuable one.
In Brazil, in 2008, in the inauguration of the President of the Supreme Court, one
of its Justices – Celso de Mello – rearmed that judicial activism could be justied by
many causes, as a positive jurisprudential construction that could allow the real prac-
tice of rights proclaimed by the Constitution itself, including the supremacy of the Fun-
damental Chart, many times disrespected and wounded by inadmissible omission of
the public powers78. The combination of these perceptions lead Constitutional Courts
in Brazil and Colombia toward a very tricky road, in which the real democratic transfor-
mation intended to be held by the constitution may be replaced by another authoritari-
75 SOUSA SANTOS, Boaventura de and AVRITZER, Leonardo Avritzer. Opening Up the Canon of Democracy’, in
SOUSA SANTOS, Boaventura de (ed.). Reinventing Social Emancipation: Toward New Manifestos, Volume
1: Democratizing Democracy: Beyond the Liberal Democratic Canon (2005).
76 As alterady mentioned in that same paper, “extraordinary appeal” is the writ that may be presented to the
Brazilian Supreme Court, allowing the examination of a conict envolving fundamental rights.
77 Data extracted from the statistic’s page of the Supreme Federal Court, available at <http://www.stf.jus.br/
portal/cms/verTexto.asp?servico=estatistica&pagina=pesquisaClasse>, access in 02/15/2013.
78 Data extracted from the press page of the Supreme Federal Court, available at <http://www.stf.jus.br/arqui-
vo/cms/noticiaNoticiaStf/anexo/discursoCM.pdf>, access in 02/15/2013.
Revista de Investigações Constitucionais, Curitiba, vol. 1, n. 2, p. 67-102, maio/ago. 2014.
96
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an ruling, in which violence is not be the main tool, but the cultural stereotype that sees
the impoverished as passive beneciaries of social goods is constantly reinforced79.
If the enforcement of housing rights necessarily involves managing scarcity and
public choices, this is a decision that trespasses the technical frontier, and requires a
broader legitimacy, that could only come with a dialogical trace. After all, as pointed by
Dixon80, in enforcing rights, courts have a much greater capacity, even a responsibility,
to play an active role in countering “blind spots” and “burdens of inertia” in the political
process than is envisaged in other theories. This is a task that might be largely facilitat-
ed with practices of monitoring the implementation of the decisions, like experienced
by Colombia in Sentencia 025/04.
In Brazil, that responsibility in punctuating the correspondent roles in the dem-
ocratic process of each and every branch of power seems to be ignored by the Court.
Relying on the immediate ecacy of the housing right, the Constitutional Court acts
and decides as if everyone knew perfectly well what the content of that right should be.
In the Colombian case, the cooperative constitutionalism and the dialogical ex-
ercise have already begun – at least in regard to the outlining of the attributes that
should endow public policies or programs. Granting due process in evictions initiatives;
recognizing the juridical relevancy of a state of trust related with an occupation; as-
signing the State an obligation to oer alternative solutions when promoting massive
removal of people; xing those premises the Colombian Constitutional Court initiates
the dialogue, at least with public authorities.
A dimension that is still unexplored by both countries is the participatory ones
– and that is the point where legitimacy meets emancipation.
As rightly highlighted by Liebenberg81, human rights adjudication permanently
contemplates a paradox between the universal and the particular; the universal pre-
tension deeply rooted in the human rights discourse, and the necessary compliance
with the multiple particularities in the real life. Housing rights contemplates that same
paradox, not only due to the particularities of individuals, situations or locations, but
because they cannot be provided without the overcome of the problems of scarcity
and public choices. Building any kind of solution in housing rights that ignores the dy-
namics of the stricken collectivity, inspired by an abstract idea of how shelter should be
provided, may lead to a judicial order that is unt to solve the real problem.
79 LIEBENBERG, Sandra. Socioeconomic rights: adjudication under a transformative constitution. Claremont:
Juta & Co. Ltd, 2010, p. 41.
80 DIXON, R osalind, Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial
Review Revisited (2007). International Journal of Constitutional Law, Oxford Journals, Vol. 5, No. 3, pp. 391-
418, 2007. Available at SSRN: http://ssrn.com/abstract=1536716 or http://dx.doi.org/10.2139/ssrn.1536716.
81 LIEBENBERG, Sandra. Engaging the paradoxes of the universal and particular in human rights adjudication:
The possibilities and pitfalls of ‘meaningful engagement’” (2012) 12 African Human Rights Law Journal 1 –
29.
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Judicial adjudication in housing rights in Brazil and Colombia: a comparative perspective
A judicial solution, built on a top-to-bottom basis can be easier – but may nd
in its own addressee, the main resistance. It may be found lawful by the evicted or the
unsheltered but unjust, and therefore, illegitimate. That is why enlarging the universe
of carvers of the judicial solution may be important not only to reinforce the legitimacy,
but also to strengthen people’s right to, as an autonomous person, be involved in the
solution of the problem that is aicting their own life – not the judge’s, nor the public
ocial’s. As remarked by Sachs82, in socioeconomic rights justiciability, the solution is
not necessarily in the binomial libertarian versus communitarian – but it could also be
nd in a dignitarian vision, in which respecting human dignity must involve emanci-
pation and autonomy. After all, if freedom is the possibility of choosing your own life
project, the public choices that would impose eects on your life and house should be
open to participation.
In South Africa, that participatory dimension in housing rights conicts has
been explored with the setting of “meaningful engagement” as a requirement to public
initiatives that may menace housing rights. The leading case was Occupiers of 51 Olivia
Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Oth-
ers, the Constitutional Court orders that “The City of Johannesburg and the applicants
are required to engage with each other meaningfully and as soon as it is possible for
them to do so, in an eort to resolve the dierences and diculties aired in this applica-
tion in the light of the values of the Constitution, the constitutional and statutory duties
of the municipality and the rights and duties of the citizens concerned”.
A second case rapidly presented itself to the South African Constitutional Court
– Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others – in
which the engagement idea was still present, even though in a much more modest
proportion. In spite of the still exploratory path in adopting meaningful engagement as
a condition to court’s appreciation in South Africa, this is an alternative to incorporate
the participation of the plaintis not as a blessing, but as a way to conciliate in judicial
review, rights and democracy. It is an experience not immune to criticism – losing a
normative perspective in the solutions building being the main problem – but still, in
times of judicial network, it is a possibility that might be adapted and explored in major
conicts in Brazil or Colombia.
The participatoy dimension is something that concerns only those driven by a
constructive comprehension of constitutionalism. In that standpoint, a judicial decision
should not be evaluated solely by the material eects that it provides directly; a judicial
decision might have indirect or symbolic eects that favors designing a public policy;
allows forming coalitions to inuence the issue; enhances the perception of the subject
as a rights violations and transforms public opinion about the problem’s urgency and
82 SACHS, Albie. The strange alchemy of life and Law. Oxford: Oxford University Press, 2009, p. 173.
Revista de Investigações Constitucionais, Curitiba, vol. 1, n. 2, p. 67-102, maio/ago. 2014.
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gravity83. This is a signicative addition to the importance of the judicial decision – even
though it does not assume a naïve presumption that Court by itself would transform
the world.
6. CONCLUSION
The report of the Brazilian and the Colombian judicial appreciation of housing
rights, even in the narrow limits of a working paper suggest important remarks. First, it
is more than clear that the proclamation itself of the immediate ecacy of a right is not
enough to guarantee an eective result in its protection. As demonstrated, that consti-
tutional clause was not enough in Brazil – and not necessary in Colombia.
A second important conclusion is that abstract concepts are also not very useful
in solving housing needs. Particular conditions – of the plaintis, of the location, of
the relationship established by the occupier and the Public Administration – may be
extremely relevant to the ruling. Even the proclamation by the Brazilian Constitutional
Court that the minimum core of the housing right should be protected is not enough,
neither to fulll the protection, nor to orient public authorities in what the require-
ments that should be applied in a housing program are. This is an important observa-
tion, and should be taken into account by those who feel that minimum core is the key
concept to give socioeconomic rights a higher degree of eectiveness84.
In sum, granting a complex right such as housing is a task that should be faced
one step at a time, prioritizing the construction of a normative concept that might be
tested in each concrete situation. That logical operation won’t be completed in a single
judgment, but should be revisited in each and every one of them. Knowledge is an as-
set that is built through aggregation – and that is no dierent when it comes do judicial
adjudication.
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