Using the legal system to influence policy is not generally the first choice for advocates seeking to make public policy changes to address social and development issues. However, in some instances it is necessary to ensure that the government is meeting its obligations. Budget advocacy has been both enabled by legal action that has opened up the opportunities for engaging in public budget process in a meaningful way, and used by civil society organizations (CSOs) to provide budget information to strengthen litigation related to public service delivery.
Using the Courts to Open Up the Process and Gain Access to Information
In the first category, CSOs have used the courts to establish access to government information. In order to effectively participate in budget processes to influence policies, practices, and institutions, CSOs need access to comprehensive, timely, and useful budget information. In addition to efforts to enact Freedom of Information laws, CSOs have used litigation to establish this right.
For example, the Center for Legal and Social Studies (CELS) in Argentina has used strategic litigation through international legal instruments and provisions to demand access to government information by defining that access as a human right. “Access to information is a fundamental right recognized in several international legal instruments, which enables citizens to participate in the analysis and formulation of effective public policies that respond to human rights obligations acquired by the state,” explains Andrea Pochack of CELS. Since Argentina is a signatory of the International Convention on Civil and Political Rights government agencies could be taken to court for not allowing access to public information. (Read more about CELS work)
Using the Courts to Help Force Certain Budget Spending
In the second category, governments sometimes establish programs to provide a particular public service to people, such as health care or income supports, but may limit the scope, and thus the cost, of these programs by establishing regulations that restrict eligibility. In order to increase access to these services, groups will often challenge these regulations in the courts, and civil society budget advocates have provided budget evidence that bolsters the cases.
For example, IBP’s partner Fundar joined with another Mexican CSO, Sonora Ciudadana A.C., in a legal battle for removing a discriminatory restriction on access to a public health insurance scheme.
Using Budget Data to take a Mexican Health Care Program to Court
Mr. Abel Montenegro Velázquez was a public servant in the state of Sonora, Mexico and is, therefore, guaranteed under Mexican law the right to receive health services from the state via the “Instituto de Seguridad y Servicios Sociales de los Trabajadores del Estado de Sonora” (ISSSTESON). But because of a discriminatory internal regulation Mr. Montenegro Velázquez and 404 other public servants (and their families) were denied medical coverage because they were “not in good health.”
After 10 years of talking with public officials and getting nowhere, Mr. Montenegro Velázquez visited two health advocacy organizations looking for help (Sonora Ciudadana and Fundar). The organizations studied the under spending in the Mexican national health sector and found that the Social Protection Health Subsidy program failed to transfer 80 percent of the budget for the construction and expansion of hospitals and clinics. The two groups used this information to take Mr. Montenegro Velazquez’s case to the Supreme Court. The Court concluded that the discrimination regulation was unconstitutional and the program was required to provide health service to all of those who had been denied access under the discriminatory regulation.