Constitutional Court of Colombia Ruling (Writ/Tutela) for Human Rights Protection T-291/09

2013, New York, CIVISOL 

Original Unabridged Version. The summary published by ESCR-NET is available in http://bit.ly/2lv0FtI

More than 20 individual   waste pickers of the Navarro Waste dump in the city of Cali separately filed individual but requests for Writs of Human Rights Protection against the Empresa de Servicios Varios de Cali- EMSIRVA (Public Enterprise of Various Utilities of Cali); the regional environmental agency or Autonomous Corporation of Valle del Cauca-CVC and the Municipality of Cali represented by the Administrative Planning Department and the municipal environmental agency DAGMA.  Requests denied in all instances.  Selected and accumulated for review by the Constitutional Court through Decisions (Autos) issued on the October 9, November 5 and 18 of 2008 and January 29 of 2009. In March 2009 the CIVISOL Foundation for Systemic Change presented to the Court its intention of being an Amici Curiae for supporting the cause of waste pickers and on April 2 filed its brief. 

Country: Colombia

Thematic Focus: 

Poverty, privatization, right to livelihood, urban issues, right to work,  right to entrepreneurship, public utilities, development, right to water and sanitation, Public Procurement, Tenders, equality and nondiscrimination, right to life, minimal subsistence level, enforceability of escr, Obligation to adopt special protective measures, justiciability and Enforcement of ESCR, Realizing ESCR of vulnerable population, nonprofit organizations, social and solidarity economy, Informal Economy, Affirmative Action, Special treatment of disadvantaged groups, Progressive realization/non-retrogression.

Forum and Date of Decision: Second Revision Courtroom of the Constitutional Court of Colombia, April 29, 2009.

Nature of the Case:

Tutela (injunction) filed separately by individual informal waste pickers of the recently closed Navarro  waste dump serving the municipality of Cali that had been settled and doing waste picking work for decades and for recuperating glass, plastic, metal, cardboard and paper from plastic  and selling it to the intermediary private warehouses of the industry. They deemed that their labor rights were violated when they were “fired” by reason of closure of the waste dump and the impossibility of continuing their work in a new sanitary land fill. The Amicus Curiae filed by the Civisol Foundation for Systemic Change redressed arguments and reasons for a writ of protection. Based on the same facts it was alleged that their request for protection was regarding their right to work, right to (formal and inclusive) development, right to life or survival,  minimum subsistence level,  due process and good faith as explained by principle of legitimate trust in the public administration, freedom of profession and occupation, right to entrepreneurship and livelihood.

Summary:

In 2008 more than 600 families had been displaced from the Navarro Waste dumps their place of work and livelihood. Colombia´s National Superintendent of Domiciliary Public Services (acting as the intervener of the Municipal Public Company Emsirva) ordered to close the Navarro waste dump on the outskirts of the city of Cali due to environmental pollution.  Such order was executed by the Provincial Environmental Agency CVC and the Municipality of Cali via the city´s environmental and urban planning local agencies. The 1500 sedentary waste pickers of the waste dump had been promised to benefit from a social plan for their transition that was never fulfilled by the state agencies once the waste pickers left the dump. After their claims for their rights to work and survival received no attention from the State, the former Navarro waste pickers peacefully took over the Ermita church of Cali. In a coordinated response, the State agencies at the national, provincial and municipal level again promised to find some jobs and subsidies for the waste pickers. Once again the promise remained unfulfilled. Mariela Carabali and other waste pickers filed tutelas to claim indemnity over the recycling labor they had been performing for the past forty years in the waste dump. The 25 writs were either denied or rejected due to the impossibility of using the tutela for claiming economic debts. 

In Bogota, the National Congress had passed Law 1259/08 that penalized  typical  urban waste pickers activities of work on the streets (Law 1259/08), e.g., opening and partial or total extraction of refuse and transporting it in  non-mechanical vehicles, by claiming environmental concerns. Additionally industrial capacity recyclers – albeit informal due to an unregulated recycling environment – among them the waste recycling company of the Presidential family at the time, surged in the recycling sphere of Colombia, following the unenforced and unimplemented Decree 1713 of 2002 that had been ordered to modernize municipal sanitation by creating and regulating the municipal public recycling service via an additional selective route of inorganic or recyclable refuse to be eliminated not in a landfill but a public waste classification/separation plant for waste valorization and commercialization. 

Seeking to (a) deepen the protection of waste pickers from asymmetric competition in a de facto unregulated, uncontrolled recycling market; (b) implement the effective enforcement of the economic rights and affirmative action of waste pickers’ inclusion in waste related tenders from ruling T-724-03; (c) prevent the harmful effects of Law 1259-08 on traditional and informal waste pickers,  CIVISOL submitted an Amicus Curiae seeking to advance structural change for remedying the historic exploitation of waste pickers in Colombia. 

It was alleged that contractual inclusion of waste pickers in poverty into the municipal solid waste management was ineffective, because recycling failed to turn into a structured and regulated public utility (Decree 1713/02) and the Affirmative Action of T724-03 was also disregarded by the National Government, the superintendent of domiciliary public services and rapidly privatized waste management. Three out of four waste-related contracts had already been adjudicated in complete disregard for the judicial precedent and affirmative action and Decree 1713/2002 due compliance and implementation.  The only effective protection was to preemptively suspend the tender process for adjudicating the fourth contract and force to amend the integral waste management system of Cali in a way that would also address the waste pickers’ poverty. Given that inclusion in procurement had not worked in the past, it was requested in the Amicus to instead formalize waste pickers by occupation as recyclable public waste management providers in their own customary right, that is in their own-account entrepreneurial type of work and /or cooperated and solidarity economy associations. Given that neither private nor public resources for decent employment were available, and least for so many people in poverty, the request was intended to safeguard their survival and trade as preferential in recycling their customary subsistence market niche, and the amendment of the tender so as to make it socially inclusive and capable of incentivizing bidders to incorporate in their offers effective corporate social responsibility and innovation

The Constitutional Court’s ruling T-291-09 (1) developed the 2003 precedent and affirmative action, (2) suspended the privatization of the tender process already in course, (3) ordered the State to correct  structural poverty in light of the Social Rule of Law of Colombia,  (4) recognized organized waste pickers as solidarity-based and autonomous waste entrepreneurs, (5) ordered the tender to be amended in light of  human right and social inclusion for poverty reduction, and (6) created a 12 member committee to effect and decide the reform the municipal waste management  policy of Cali and  formalize waste pickers by occupation as municipal  waste recycling service providers. 

To safeguard against abuse of the affirmative action, the Court ordered a census of informal waste pickers (both from the Navarro waste dump and itinerant waste pickers on the streets) effecting as of the date of the ruling. Because the former waste dump waste pickers had lost their source of income with the closure of Navarro, complementary simple orders were given as well that related specifically to their urgent needs of survival. In order to make its orders and waste reform for systemic inclusion of waste pickers, Law 1259/08 was authorized to suspend its effects in Cali through the use of an exception of unconstitutionality.  As requested, and while Decree 1713 was enforced in Cali, the court asked civil society to continue to cede their organic waste to traditional own account or cooperated waste pickers. 

CIVISOL which had filed the Amicus brief was requested by invitation of the Court to continued defending the human rights and interests of the informal waste pickers, to be one of the 12 members of the Municipal committee created the T-291-09 and to report to the Court on the implementation of its judicial orders, which were given a six-month implementation period.   

Enforcement of the Decision and other Outcomes: 

Note: Arguments for change and protection granted by the Court began with prior constitutional decision T-724-03 and C-741’0 and has been refined and developed by ruling T-291-09. Supervision to the precedent and judicial affirmative action for waste pickers’ inclusion through formalization as municipal waste management public utilities providers has been supervised by Auto 268-10 and Auto 275-11.

-Following ruling T-291-09 and the considerable deliberation and controversy within the Committee created by Court´s orders, consensus was finally reached by the Committee’s members, which included six state representatives of the State, the representatives of the detected four waste pickers’ organizations in Cali, the representative from the ombudsman office and the CIVISOL foundation for systemic change.  Cali’s Municipal Minute # 6 of September 2009 reflects the consensus reached by the Committee in that organized and informal waste pickers by occupation and in poverty would be the sole and exclusive waste providers for the new public waste recycling municipal service. For that purpose, they would create a second-degree organization in Cali that would include preexisting waste pickers organizations:  ARCA, the Association of Cali Waste Pickers, would include waste pickers irrespective of their waste dump or urban street origin. The tender was redrafted to make it inclusive by not selling the bidding documents and encouraging CSR and social innovation in bidders, i.e., additional points were to be granted to those entities bidding jointly with ARCA, or if not yet formed, with an organization of waste pickers. All the organic waste was reserved for ARCA, as autonomous entrepreneurs based on solidarity (instead of capital) economics.

-One month before sending the socially inclusive waste management policy to the Court, the Mayor of Cali imposed a new and unilateral avenue of reform and waste pickers formalization and discarded that of the Committee created by the Court. It ordered that the recently terminated municipal public company Emsirva by orders of the national Government acting as intervener was to be revived and the public company renamed Girasol. It was argued that such decision was for the sake and formalization of waste pickers.  Girasol would incorporate waste pickers as shareholders of Girasol and such determination was agreed to and reconfirmed by the municipal town hall (Concejo de Cali). Waste pickers and their initial efforts and cohesions for organizing as ARCA, were consequently divided into those who believed in the Girasol alternative of the Mayor and those who claimed ARCA and the consensus achieved by the Court-ordered Committee. 

In any case the National superintendent complied with the Committed agreements and opened the tender for organic waste collection only as the recycling route of the city was left reserved for the forthcoming waste pickers’ organization, Additionally it awarded the waste management contract to a Mexica based Corporation l that decided to partner with a cooperative of former Navarro waste pickers for performing street sweeping under the awarded contract of organic waste collection only. 

The mayor’s office realizing finally that a public service company created by town hall agreement is not stock-owned and hence cannot in any way be owned by waste pickers, the mayor derived from it a simplified stock company la Ruta SAS in which Girasol held 51 % of the shares and some selected waste picker organizations the rest. As Girasol this Ruta SAS was to operate the recycling “business unit” of sanitation  under the direction with one of his advisers and head of Girasol; La Ruta SAS was created on the last day of the mayor’s term, December 30, 2011. Girasol went bankrupt in less than a year, 27 fiscal irregularities and 2 fiscal processes were open. The mayor announced in 2012 the liquidation of Girasol additionally to old Emsirva under termination also and since 2009.

– CIVISOL raised attention to these activities in an attempt to prevent public-private corruption channeled through non-profit contracting. The last of the six reports CIVISOL filed to the court raised the issues of reinterpretation of the Court´s order of affirmation action away from reducing the poverty of waste pickers and instead to advance privatization of the recycling industry and the continuing impoverishment of the poor for the sake of third-party electoral or economic interest.  It also submitted considerable evidence to support its reports. It also requested the Court to refer alerts and evidence submitted for disciplinary, fiscal and penal control in Bogota.

The Constitutional Court has remained unresponsive. Not one Auto de Seguimeinto or Supervisory decision has been issued to review the progressive and effective realization of its orders or follow up on the indicators of effective enjoyment of waste pickers human rights originally solicited by the Court. Waste pickers petitions and motions of contempt to court have also remained unattended to by the Court.  The Municipal Contraloria of Cali has found, however, that USD 6 million have been spent through nonprofit public contracting. One foundation was found to have received direct contracts for more than USD one million each for supporting the implementation of the ruling T-291-09. All execution was limited to workshops on gardening and accounting for a few selected waste pickers, with which the marketization of rulings and the trend to industrialize human development is confirmed as a growing trend.   

-The waste pickers still lack secure and justiciable economic rights, hundreds of private small. Medium, big and mega warehouses in Cali continue to exploit their poverty to stockpile plastic, metal, paper, cardboard and glass as cheap secondary commodities for the multinational and national industries on which the marketization of household refuse pivots. 

-Pro bono attorneys’ cases and subsequent ruling C-793-09 and C-928-09 stabilized and further developed the Courts decision in writ T-291-09 of leaving Environmental Infraction and Subpoenas as established in Law 1259-08 without effects with respect to waste pickers by occupation activities and trade. 

-A Draft bill to develop in statutory law the affirmative action for waste pickers formalization as municipal waste recycling public utility providers was presented in 2010 and  retired by the Author shortly after.

Significance: This case is the crystallization of the theory of change driven by public interest litigation and bottom-up civic fueled effort for legal and policy reform to reduce structural poverty of either waste pickers occupational group in the informal economy.  It is the case that managed to conceptually and legally separate waste collection routes for reserving the inorganic waste collection public service exclusively for recyclers by occupation in order to secure their right to life, development, livelihood and entrepreneurial work to earn a living. It is also the first socially inclusive privatization and deliberate effort of inclusion of nonprofits as SMESs of the solidarity economy in waste policy and public procurement. It is also a landmark case and ruling for state in the use of law in structural poverty reduction and the role of justice in the formalization of vulnerable occupational groups and the applications of business and human rights in the drafting of public tenders.  It is also important for understanding poverty in light of legal reform as the creation of the categories coined by CIVISOL such as urban/itinerant and sedentary/waste dump waste pickers and the distinction of waste picker or recycler by occupation as opposed to industrial and investment recyclers proved useful for creating judicial orders for vulnerable groups until then invisible and unaddressed by law. It is also a significant case was when considering how to develop and apply the Court’s criteria to determine when a group or population is considered vulnerable and marginalized and thus entitled to special constitutional protection. It also develops the Court’s jurisprudence on equality between citizens, and the positive steps the State must take to compensate for material inequality between groups, rather than limiting itself to a definition of equality before the law premised on state abstention. Finally, this decision discusses the role and types of positive discrimination that State agencies must adopt within programs and policies in order to protect vulnerable and marginalized groups subject to special constitutional protection.

Attorneys’ involvement:  Adriana Ruiz-Restrepo, Shailly Barnes 

Groups: CIVISOL 

 

Source: http://bit.ly/2kZTUy6