Judicial Activism/Discretion and Separation of Powers.
In adopting this criterion, the Court recognises the separation of powers[1] There are many paths the state can take to achieve its objectives, and the Court and the court does not have the institutional capacity for policy comparison at a detail level.[2] All that is then required is that the state has acted reasonably.[3] This is an approach wherein the Constitutional Court shows considerable deference to the other branches of government.[4] This “deference” has been thought to be necessary, in some viewpoints, due to the court’s lack of institutional capacity[5] and its lack of democratic legitimacy: judges are unelected.[6] The judiciary in addition needs the executive to execute its judgments. The South African Constitutional Court is in general more restrained and less activist that many courts [7] such as India[8] and even the United States[9], though both of the latter appear to have become more conservative[10] in recent years.[11] However, from another point of view, deference should be driven by pragmatic considerations about who is best place to make the decision and ensure effective realisation of the right.[12] The classic separation of powers doctrine[13] may presume that the ‘will of the people’ or their interests is equivalent to the views and act of representative institutions.[14] This is not obviously the case in South Africa or elsewhere.[15] Further, in unrestrained democracy, minorities may be oppressed by the majority.[16] In addition, the courts may represent the interests of the people better than their legislatures, as Dworkin holds.[17] In addition, the courts themselves must consider rights in “an open and democratic society”; in fact,[18] in certain courts it has been documented how at least certain members of the supreme court try to make their decisions taking great account of the general viewpoint of the country.[19] In addition, apathy in one branch of government can create a definite need for judicial activism. [20] Judges in addition only have negative legislative power to strike down measures[21] over a limited number of questions whereas parliament has positive power to create a vast number of acts and regulations.[22] It may also be that the point is simply that the state should be forced to justify its actions,[23] which is itself a check on unconstitutional activity.[24] Bilchitz criticises this approach as reducing socio-economic rights to “an entitlement to an explanation”.[25]
O’Cinneide argues that the “technology” of judicial review has made it easier for judges to engage in complex matters. Third party intervention has helped with this as has the use of dialogic modes of review. In addition, it has been pointed out that courts engage with complex issues in other contexts.[26] Complex decisions can also be polycentric[27], in other words they affect many more parties than the two parties before the court.[28] This polycentricity is held to be particularly high in socio-economic rights matters,[29] but Cameron[30] finds this “unsubstantiated”.[31] If it was true that judges shouldn’t decide cases about socio-economic rights, the same arguments could be used to say that judges shouldn’t decide any politically[32] contested cases at all. [33] King holds that the often observed process of legislative reform following court decisions reduces concerns about judges being ill-quipped to deal with complex matters whereas the executive can have many expert staff and hold hearings embracing wider interest groups than in a court case. [34]. These thoughts are equally applicable with respect to judges getting involved in financial and banking matters. These issues around deference are the context for the reasonableness criteria that the court uses today.
[1] To some this means it “restrains itself from considering whether other “more desirable measures could have been adopted or whether public money could have been better spent”. Government of the RSA and others v Grootboom and others 2000 (11) BCLR 1169 (CC); 2001 (1) SA 46 (CC) 41 . This is a standard used routinely across legal systems in different contexts according: Habermas Between Facts and Norm: Contributions to a discourse theory of law and democracy (1998)
[2] This is also argued against the legislature, made up as it is of laymen. Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 387. Judges, while not having an organisation to support them, or technical expertise, at least are skilled and highly intelligent people. In Habermas Between Facts and Norm (1996) 266:” This paternalism is fed by a mistrust, widely shared among legal theorists, regarding the irrationality of legislatures that depend largely on power struggles and emotionalized majority opinions. According to this view, a creative jurisdiction of an activist Court would be justified both by its distance from politics and by the superior rationality of its professional discourse”
[3] The reasonableness criterion is also part of the limitation analysis in Section 36 which requires the law to be “reasonable and justifiable in a democratic society”. There is a question if the two standards of reasonableness are the same. (Khosa v Minister of Social Development 2004 (6) BCLR 569 (CC) 42-44). See discussion in Iles “Limiting Socio-Economic Rights: Beyond the internal Limitations Clauses” 20 SAJHR (2004) 45+
[4] It is possible to take a strong, prescriptive or a more deferential view of the obligations generated by socio-economic rights. These may tend to lead to coercive relief with time limits or open ended declaratory relief respectively Wesson “The emergence and enforcement of socio-economic rights” Reasoning Rights 282
[5] Particularly lack of economic expertise with respect to budgetary matters. Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 394. Pieterse (408) also points out that an entity not capable of budgeting or setting policy can still scrutinise the budget or policy of another entity which is a considerably easier task.
[6] The presence of this debate in the forming on the Constitution is documented in Wesson “The emergence and enforcement of socio-economic rights” Reasoning Rights 286; see also Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 320; Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 391 . Pieterse points out the problems with human rights violations only being able to be corrected at a future election. In addition, I would argue that an election is a blunt tool. A constitutional court can make 1000 separate decisions in the time between one election. Pieterse also argues that judicial acts may uphold or enforce principles that are themselves democratic (at 391), that the Bill of Rights is itself the product of a democratic process. In France, with the historic affinity to democracy and legislatures and hostility to judges (enemies of the people during the revolution), has very weak judicial review, unusual in Europe and the world: “The French Conseil’s constitutional review authority is tightly restricted to the control of parliamentary statutes, after their adoption, but before promulgation, upon referral by elected politicians”: Sweet “The politics of constitutional review in France and Europe” International Journal of Constitutional Law, Vol. 5, Issue 1, pp. 69-92, 2007 71
[7] Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 333 Wesson “The emergence and enforcement of socio-economic rights” Reasoning Rights 282. He argues the Indian Supreme Court has gone between extremes on this issue and that the United States Supreme court is stronger and more coercive in its enforcement of socio economic rights. Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 1 calls the judiciaries approach here “remarkably tentative” South Africa’s deference may be because of its existing legal culture: “However, the continuing influence of South Africa’s pre-constitutional legal culture means that judges remain uncomfortable with the role that the Constitution requires them to play.” In Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 383
[8] The Indian Constitution (in 1950) did not make socio-economic rights judiciable for this reason see Pillay “Judicial Activism and the Indian Supreme Court: Lessons for Economic and Social Rights Adjudication” Reasoning Rights 338
[9] The use of structural injunctions, a very interventionalist remedy, is much more common in the United States. In Brown v Plata the court made an order so intrusive to the realm of the executive that Scalia’s acerbic dissent held it aimed to release 48,000 convicted criminals. Social rights litigation is mostly under state constitutions. The Supreme Court of New York ordered the city education system to spend around $2 billion more per year and court mandated reform has increase educational funding across the country Such cases also often prompt new legislation. (Scalia also being a United States Supreme Court judge of a generally conservative persuasion: “perhaps the most radical injunction in our nation’s history”.) King J “American exceptionalism over social rights” Reasoning Rights 359 -68
[10] In the sense of being less activist.
[11] Pillay “Judicial Activism and the Indian Supreme Court: Lessons for Economic and Social Rights Adjudication” Reasoning Rights 351-4; Toobin “The Nine: Inside the Secret World of the Supreme Court”
[12] See Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 59 and also Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 71 for a discussion of judges making decisions on the more complex matters of policy. One pragmatic strategy engaged by the Indian courts is to appoint fact finding commissions. Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 396 and there are also the conventional tools of expert evidence and access to information remedies. Pieterse also argues for a more inquisitorial approach in more polycentric matters.
[13] As per Madison in the Federalist Papers (47) or in French droit administratif discussed in Dicey Introduction to the study of the constitution 138 . Dicey’s focus is on the right to freedom and Habeas Corpus. Most modern versions of the separation of powers doctrine include some kind of rights based judicial review. Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 384. Forms of mixed government are discussed in Aristotle Politics and Rome had a type of separation of powers in the Republic (Polybius Histories Book 6, 11–13) but Montesquieu Spirit of the Laws (Ch 16-18,) was the first to discuss the idea as a doctrine. On Montesquieu and the separation of powers see further Feteris “Developments in Legal Argumentation Theory: Dialectical Approaches to Legal Argumentation” International Journal for the Semiotics of Law Volvo no,20 [1994] 134 especially in its connection with the Alexy view of evaluating rights using principles v strict logic and rules. Sweet “The politics of constitutional review in France and Europe” International Journal of Constitutional Law, Vol. 5, Issue 1, pp. 69-92, 2007 77 describes how the doctrine is applied mainly in its classic form in present day France, judicial review is very limited.
[14] Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 64
[15] Bilchitz “Are socio-economic rights a form of political rights?” South African Journal of Human Rights Volume 31, Issue 1, Jan 2015 86
[16] Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 387
[17] According to Cameron, Dworkin’s view is that democracy’s aim is that “collective decisions be made by institutions whose structure, composition and practice treat all members of the community with equal concern and respect” which may sometimes be judges rather than members of parliament. Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 322. In my view, this does indeed seem to be the case in fact.
[18] Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 65
[19] Notably O’Connor in the United States Supreme Court who, being the casting vote in many matters, often saw her view become the view of the court. See Toobin “The Nine: Inside the Secret World of the Supreme Court”
[20] Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 332
[21] And to strike down measures is a rare (though dramatic) move. Sweet “The politics of constitutional review in France and Europe” International Journal of Constitutional Law, Vol. 5, Issue 1, pp. 69-92, 2007 87. Sweet continues however that the presence of the possibility makes legislatures “auto-limit”, in other words not submit measures likely to be struck down.
[22] Sweet “The politics of constitutional review in France and Europe” International Journal of Constitutional Law, Vol. 5, Issue 1, pp. 69-92, 2007 83 following Kelsen, La garantie juridictionnelle de la Constitution [ The Jurisdictional Protection of the Constitution ], 44 Revue de Droit Public. 197 (1928). For a discussion of Kelsen’s viewpoint at a high level see Habermas Between Facts and Norm (1996) 201+
[23] Wesson “The emergence and enforcement of socio-economic rights” Reasoning Rights 286 see also Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 322 – to Cameron, the very fact that a decision maker aware in advance that he might have to justify a decision will always consider it more closely than if there were no such risk (citing Mureinik to this effect).
[24] This is confirmed in Mazibuko and others v City of Johannesburg and others [2009] ZACC 28;2010(4) SA 1 (CC) where the city changed its policy repeatedly during the Constitutional proceedings. Evidence as the effect of being accountable. see also Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 325-7
[25] Bilchitz “Constitutionalism, the Global South and Economic Justice” in Maldonado Constitutionalism and the Global South (2013) 73. Though the prospect of having to give an explanation to the Constitutional Court may affect the behaviour of many in government. At the very least, this creates a ‘culture of justification’ Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 385
[26] O’Cinneide “The problematic of social rights” Reasoning Rights 307
[27] Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 392. Pieterse argues that any decision with budgetary implications is intrinsically polycentric for that reason. (at 393).
[28] And may have unknown and large repercussions.
[29] Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 320 and in all matters apply particularly to the remedy granted (Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 412). In this regard Pieterse “Coming to terms with judicial enforcement of socio-economic rights” South African Journal on Human Rights, Volume 20, Issue 3, Jan 2004 says consequences on extraneous third parties should be kept to a minimum, the exact terms of a legislative enactment should not be dictated too precisely, and flexibility should be maintained to allow the executive to set policy in the light of changing circumstances. Yet the remedy should be precise enough that people know what is required of them, and the remedy effective.
[30] Judge of the South African Constitutional Court.
[31] Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 321
[32] For a treatment of how political constitutional decisions are see Sweet “The politics of constitutional review in France and Europe” International Journal of Constitutional Law, Vol. 5, Issue 1, pp. 69-92, 2007
[33] Cameron “A South African Perspective on the Judicial Development of Socio- Economic Rights” Reasoning Rights 322
[34] King J “American exceptionalism over social rights” Reasoning Rights 369