Government’s balancing act

2011-12-14 00:00

OUR Constitution, like any constitution, is a promissory note. It promises a new society that is based on democratic values, social justice and fundamental human rights. The people of South Africa have entrusted the responsibility to establish this society on the three arms of government — the legislature, the executive and the judiciary.

The constitutional obligation of realising these goals is the shared responsibility of all three arms of the government in accordance with the powers that the Constitution allocates to each.

Despite this separation of powers, all three branches of the government have one mission in common: to uphold and protect the Constitution and make good on the constitutional promise of a new society.

There will be tensions in the performance of these constitutional roles, in particular, where the judiciary exercises its constitutional power to declare invalid a law or conduct that is inconsistent with the Constitution and thereafter make an order that is just and equitable.

One of the challenges to building a democracy based on human values is how to manage this tension. This challenge is especially important as more people are turning to the courts hoping that they can resolve their pressing social and political problems. Indeed, issues which would often be considered political questions that lie beyond the proper jurisdiction of courts are regularly considered by South African courts.

The key to the management of this tension lies in understanding and observing the constitutional principle of separation of powers. It requires the maintenance of a delicate balance among the different arms of the government and respect for the different roles of the legislature, the executive and the judiciary.

While acceptance of the value of a system of separate powers, with checks and balances, has become commonplace in modern democracies, experience shows that the actual application of the doctrine differs markedly from country to country.

As those of you who are familiar with our constitutional jurisprudence will recall that the Constitutional Court first considered the doctrine of separation of powers 15 years ago in the First Certification judgment, when it was asked to decide whether the draft text of the new Constitution accorded with certain prenegotiated constitutional principles.

An objection was raised in relation to a provision of the Constitution that provides for members of the executive branch also to be members of the legislature. In addressing this issue, the court established the foundation for managing relationships between the various branches of the government, and, in particular, the relationship between the judiciary and other branches of the government.

The court made three points in this regard. First, there is no universal model of separation of powers, and “the relationship between different branches of the government and the power or influence that one branch of the government has over the others differs from one country to another”. Second, separation of powers “is not a fixed or rigid constitutional doctrine” and “is given expression in many different forms and made subject to checks and balances of many kinds”. Third, in democratic systems of the government in which a system of checks and balances is observed “there is no separation that is absolute”.

The court thus recognised right from the beginning that there would be occasions when the intrusion of one branch into the domain of another will be necessary or unavoidable. This is why there are checks and balances in place to ensure the effective, efficient and constitutional discharge of powers and functions by the government as a whole.

The challenge facing our courts is to develop a distinctively South African doctrine of the separation of powers — one that preserves these checks and balances while allowing the different branches of the government, including the judiciary, the latitude they require to help achieve the vision of a democracy based on human values­.

In S vs Dodo, the court explained that the doctrine of separation of powers under our Constitution “anticipates the necessary or unavoidable instrusion of one branch on the terrain of another. This engenders interaction, but does so in a way which avoids diffusing power so completely that the government is unable to take timely measures in the public interest.”

The “necessary or unavoidable intrusion” or “interaction” that the court referred to is more likely to occur­ in the judicial enforcement of socioeconomic rights.

Adjudicating these rights inevitably requires courts to evaluate state policies and make decisions that have an impact on the expenditure of public funds. These decisions may well have implications beyond the case before the court. They may have myriad social and economic consequences for the community and affect the ability­ of the state to fulfil its other obligations. And yet courts are not institutionally equipped to make the wide-ranging factual and political inquiries necessary to weigh the costs and benefits of different policy options. Nor are they ordinarily competent to decide how public funds should most effectively be spent.

Courts have developed an approach to the adjudication of these rights that is sensitive to these institutional limitations. They have held that the Constitution contemplates a rather restrained and focused role for the courts.

This means that where the Constitution requires the state to take reasonable measures to meet its constitutional obligations, it requires courts to evaluate the reasonableness of the measures taken — not whether there were other reasonable or better options that the state could have pursued.

Courts are also mindful of the fact that it is not their function to govern the country. Governing in a country like ours with a history of discrimination, and thus, a huge demand for basic needs, is not easy. The state must strike a balance between a range of competing interests or considerations. That said, the legislature and the executive are obliged to respect the provisions of the Constitution from which they derive their power, and it is the duty of the courts to ensure that this is done.

But what is required of courts is to hold the state accountable in a manner consistent with the doctrine of the separation of powers. If a case is presented alleging that the state has failed to comply with its constitutional obligations in relation to socioeconomic rights, the state is required to respond to the claim and to show that it has adopted and implemented reasonable measures to give effect to its constitutional obligations. Those measures are then subjected to close evaluation by the courts to determine whether they comply with the constitutional standard of reasonableness. If a court finds that the state has failed to take reasonable steps to give effect to the rights in the Bill of Rights, then it is obliged by the Constitution to say so.

Ultimately, courts must adjudicate claims based on socioeconomic rights in a manner that recognises their institutional incapacity to deal with polycentric issues and respect the role of other branches of the government, but at the same time they must hold other branches of the government accountable to their obligations. They must adjudicate these claims in a manner that leaves it to the government to determine and set priorities, but at the same time they must ensure that in setting these priorities, the government has regard to its constitutional obligations.

The constitutional authority to evaluate policy does not, in itself, give the courts unlimited powers or authorise them to govern the country.

What courts must strive to achieve in adjudicating claims that require them to interact with other branches of the government is an appropriate balance between, on one hand, the role of courts in promoting a democracy of human values, and on the other hand, the respect which courts are required to accord to other branches of the government as required by the doctrine of the separation of powers. This is not an easy task, but one required by the terms of the Constitution itself.

Each arm of the government must observe the constitutional limits on its powers and authority — there is no branch that is superior to the others in its service of the constitutional mission of the republic.

Judges may not like the laws and policies made by the other branches of the government. This is irrelevant and can never influence their decisions. The duty of the judiciary is only to assess the constitutionality of laws and policies, not to look for ways to bring state laws and policies more closely in line with their individual tastes and preferences. To do otherwise would be a breach of a judge’s oath of office and a violation of the Constitution.

Similarly, the legislature and the executive may not like the decisions made by the courts. But this is equally irrelevant, so long as the judiciary is acting in accordance with principles of institutional integrity and through reasoned debate has reached the best attainable judgment in accordance with the Constitution and law.

• This is an edited extract from the Chief Albert Luthuli Memorial lecture given in Durban last weekend.

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