Steven Friedman worm’s eye view Do we need judges to do what elected politicians cannot? If a Constitutional Court case decided this week is a guide, the short answer is “yes”. The court this week ruled on the fate of people living on a Western Cape sports field who were spared eviction when High Court Judge Dennis Davis ruled that the Constitution granted them a right to housing and that the children on the field had a right not to be separated from their parents. The state should therefore, he found, provide them with shelter until they can do so themselves.
Various levels of the government appealed against Davis’s judgement – taking it to the Constitutional Court. The highest court in the land has now pronounced on just what the “right to housing” in the Constitution means. The judgement seems to vindicate those who wanted social rights included in the Constitution: the homeless, faced with the threat of harsh government action, have been able to rely on a court to protect them. If there was no right to housing in the Constitution they would probably be without shelter. But the fact that the courts have intervened in this way is a mixed blessing. The Constitutional Court effectively ordered the state to devise and implement an interim relief programme for the desperate applicants.
The issues on which Davis, and the Constitutional Court, ruled are hardly legal technicalities. The Constitution does not extend an unlimited right to housing – in which case it might be a technical matter for judges to decide whether people have been denied that right. It could not have done that without making a mockery of the law: to provide housing the government needs funds. The Constitution therefore extends a right to housing only if the government can afford it. This week’s judgement also implied that the state is not obliged to go beyond its available resources, or to realise the right to housing immediately. What the government can and cannot afford is a matter not of law but of public policy, of opinion rather than legal training. Davis’s ruling will appeal to those of us who believe the government must help the weak as a blow for social justice. For others, it is meddling in property rights (since the people are not living on land which they own). In a democracy, public policy questions are meant to be decided by elected representatives of the people – who are accountable to them – after public debate. Judges are not elected and cannot be fired if people do not like their rulings. Had the residents appeared before a judge who believed the homeless should fend for themselves – and there are several – the court would have handed down the opposite ruling. To submit citizens’ fate to a lottery – which judge they happen to be allocated – does not seem a sound principle of democratic government.
The right of appeal to the Constitutional Court does not make the process any less a matter of judicial political opinion. Its judges may not lack sympathy for the homeless, but they will now have to decide whether they feel that housing is a greater government priority than, say, health or education. Whatever their decision, a group of unelected people with legal training will again be deciding a public policy question. Handing over policy issues to judges is an act of democratic defeatism: it signals that they are more likely to decide them wisely than those we elect. If we want policy decisions taken by judges, we must accept that they will be taken not only by those like Davis who feel for the poor but also by those who believe rape is no business of society if it happens within families or who insist that farmers who shoot people walking on their property could not have meant any harm (both of these are recent judgements). In the United States, judges have not only used their right to review laws passed by elected representatives to desegregate schools, they have also struck down laws limiting working hours. Ideally, the best guarantee of the rights of the poor and homeless in a democracy is, therefore, stronger representative government and democratic political action by people at the grassroots. Victories won through these means are not only more in keeping with democratic principle than court rulings: they may also prove more lasting since they rely on public support rather than judicial opinion.
So much for theory. In practice, we can expect more cases on social and economic issues to reach our courts. The reason stems from the nature of our politics. The African National Congress’s support rests on its ability to represent the identity of the majority. That is likely to ensure its victory at the polls for some time, whatever its policy on housing and other social issues. Even if the poor are organised, so its incentive to listen to specific groups of homeless people is much reduced. Centralisation and tight discipline within the governing party also narrow scope for individual representatives to support the grassroots poor: a few years ago a Cape Town councillor was disciplined for protesting against council demolition of shacks.
As long as these conditions persist, activists will continue to conclude that the poor are better off taking their chances in court (if they enjoy access to the money they need to get to them) rather than with elected government.
Judges will, therefore, be making more public policy choices. They have no option. Even if they are strongly committed to representative democracy, they cannot solve the problem by refusing to intervene; that too is a choice since it endorses the action against which citizens who bring cases are objecting. Refusal to act is likely to be seen less as an expression of democratic commitment than indifference to the poor. How can we ensure that this does least harm to democracy? First, it is important to build a public culture of debate on judicial decisions. Some in the judiciary and many in the society still see judges’ decisions as somehow beyond question. That is a damaging principle at the best of times: when the Bench is deciding public policy matters it is far more so. We need publicly to endorse those decisions which reflect our values, to criticise those which do not. Second, even those of us who admire particular decisions, such as Davis’s and its affirmation by the Constitutional Court, must recognise that relying on the courts rather than democratic politics to decide public policy questions is not a victory for human rights, but an admission that our democracy is inadequate (which, right now, it is). This implies a need to strengthen representative institutions and ensure that the voice of the poor is heard. Activists may then come to see cases pressing social and economic rights as a means to an end – greater democratic participation by those who seek the rights – not an end in itself. However erudite or courageous our judges, we cannot strengthen democracy by relying on the courts to make policy choices which are the responsibility of those we elect.