If the government fails to deliver, judges are obliged to act

President Jacob Zuma certainly caught the attention of legal and political commentators when he addressed a judicial conference in Sandton last week.

He remarked that “the executive must be allowed to conduct its administration and policymaking work as freely as it possibly can. The powers conferred on the courts cannot be superior to the powers resulting from a political and consequently administrative mandate resulting from popular democratic elections.”

The president said that the constitutional scheme was not intended for minority parties to claw back, in effect, what they had resoundingly lost at the ballot box.

Some found the speech to be an ominous warning to the judiciary to refrain from excessive activism. Could the majority judgment in Glenister v the President and Others, in which the Constitutional Court found the legislation creating the Hawks to be constitutionally wanting, have been a target of the speech?

The contrary view was that many jurists have spoken about the need for respect among the three arms of the state and, flowing from that, that the judiciary should be cautious about overreaching its role when it comes to policy and its implementation. Hence the president was hardly making a novel and thus threatening argument.

What thus to make of the speech, taking into account these contrary interpretations?

The starting point must be the constitutional text, which sets out an ambitious role for the judiciary. By including socioeconomic rights, substantive equality and a clear commitment to transparency and openness, and by imposing obligations on all arms of the state to protect and promote the Constitution, the drafters of the text ensured that the courts would have to play a significant role in ensuring the vindication of these rights and thereby be obliged to engage fundamentally at times with government policy and its implementation.

This ambitious model of constitutional democracy thus foresaw the judiciary as being partners with the other arms of state in the implementation of the new democratic vision. It is correct to suggest that the courts should be careful not to impose their conception of a policy designed to carry out the distributive commitments of the Constitution over a contrary but plausible and justifiable plan proposed by the legislature and/or the executive.

Hence, if Zuma was arguing against a judicial takeover of policy, he was fully justified in making that argument. If, however, he was saying that all areas of administration and policymaking fall outside of the judicial authority, so that the other arms of state must be left unconstrained to carry out their programmes, then his speech poses a serious problem in the attainment of the vision of constitutional democracy as contained in our text.

There will always be a number of cases in which government policy is in conflict with what the Constitution promised the people and, when that occurs, the powers of the courts are superior to those of the other two arms of the state. A few illustrations must suffice.

A community contests current educational policy because it fails to meet the right to education enshrined in the Constitution, or seeks relief from the courts on the basis that the government has failed to deliver adequate basic healthcare or, to take a current dispute, legislation is passed under the justification of protection of official secrets but unreasonably diminishes the right to freedom of the media.

In all these cases the Constitution insists that the review powers of the courts can trump the legislative or policy powers of the legislature or the executive. That is the name of the South African constitutional game and, if the president is arguing differently, then we are possibly witnessing more than the kind of tension that invariably exists among the arms of the state in any constitutional democracy.

Courts face particular problems in developing countries based on written constitutions that include a Bill of Rights and South Africa is no exception. Zuma correctly noted in his speech that poverty represents a massive obstacle to the attainment of access to justice for all in this country.

But, as long as there is the magnitude of poverty experienced daily by millions of South Africans, in addition to significant failures on the part of government at all three levels to deliver the basic goods and services promised in the Constitution, desperate communities will seek the assistance of the courts. In turn, this will result in judgments that, for example, insist that toilets be provided that respect the privacy and dignity of all, no matter what the policy formulated by the provincial government.

The irony is that if the government fails to deliver the courts will be compelled to play a greater role, which, in turn, appears to be what the president’s speech seeks to counter.

Perhaps the president did not intend to go so far but the words he chose are clearly susceptible to this interpretation. If that is what was meant, expect not only an increased tension between the judiciary and the government but calls to change the Constitution and the appointment of judges in the future who will hold to a similar restrictive legal philosophy.

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