judicial review – making decisions about life and death

Constitutional democracies – moving beyond abstraction and reflection – a politics of bodies, things and relations (continue)

by Linda Stewart (firtst published on fuZZYface)


1 Introduction

With reference to Deleuze’s Course on Rousseau, Kleinherenbrink in his translation of the course (A politics of things p.5) emphasis Deleuze’s remark that “we know how to legislate, but we do not know what to do”. Kleinherenbrink explains that Deleuze

reminds us that the Sovereign only has the law itself as its object, in a purely formal sense. In other words, after the completion of the fourth stage, we know how to legislate, but we do not know what to do. One more thing must be added, and this is precisely the relation with things or with concrete situations which confront the people: ‘to determine a law, the general will does not suffice. The formal determination of the will must be joined to the content of objective circumstances of a given society’ and adapt itself to concrete situations. Deleuze sees the figure of the legislator as referring to this ‘injection’ of material circumstances: without the legislator, the general will formally know what it wants. But it needs him to be determined materially. A good law must not consider particular persons – formal aspect – and adapt itself to concrete situations – material aspect– (p. 27) (A politics of things p.5).

This post refers to case law on socio-economic rights to use it as examples where the judiciary are continually confronted with the apparent tension between democracy and constitutional reason and illustrates the judiciary’s unresponsiveness to deal with the question what to legislate, given the court’s role as quasi legislator in constitutional democracies.

2 Knowing how but not knowing what

The most difficult area under the South African constitution involving the apparent tension between democratic will and constitutional reason (discussed here) is the interpretation and adjudication of socio-economic rights. Socio-economic rights are human rights, which supposedly target vulnerable bodies and are concerned with the material conditions of human welfare. Examples of this are the right to water, housing, and health care. Mazibuko v City of Johannesburg former Justice O’Regan explained

The purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy (para 60).

A close reading of these rights exposes that in their textual setting, some of these rights are qualified by an obligation placed on the state to realize these rights within the boundaries of reasonable legislative and other measures, the state’s available resources, and progressive realisation. The rights to have access to adequate housing; health care services, including reproductive health care, sufficient food and water; social security and appropriate social assistance; further education and access to land on an equitable basis (see ss. 25(5); 26, 27, 29(1)(b)) are all examples of the qualification that the realization thereof is dependent on reasonable measures. Section 27, for example reads

(1) Everyone has the right to have access to a) health care services, including reproductive health care; b) sufficient food and water; and c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights (emphasis provided).

Section 7(2) of the Constitution furthermore, places an obligation on the state to respect, protect, promote and fulfil the constitutional rights in the Bill of Rights. These obligations place negative as well as positive duties on the state to comply with rights. Already in the Certification judgment it was argued that socio-economic rights is inconsistent with the separation of powers (the apparent tension between democratic will and constitutional reason) because it required that a court enter the domain of the legislature and executive when it gives content to socio-economic rights and this will result that the court interfere with budgetary and other policy matters (para 77). The Constitutional Court nonetheless reasoned that some civil and political rights such as the right to vote might have similar implications. It held

… it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers (par 78).

The court also held that socio-economic rights are to some extend justiciable although these rights may have budgetary implications (para 78).

The first case dealing with socio-economic rights dealt with a decision concerning an application brought by a 41-year-old man suffering from a terminal illness. Mr Soobramoney was in need for renal dialysis to prolong his life, and he brought a constitutional application seeking an order for the hospital to provide him with access to dialysis treatment. In Soobramoney v Minister of Health (KwaZulu-Natal) the court refused to grant his request. In a highly technical manner, the court reasoned that it could not interfere with decisions taken in good faith by political organs and medical authorities as to how to allocate budgets and decide on priorities. The court held that

[c]ourts are not the proper place to resolve the agonising personal and medical problems that underlie these choices. Important though our review functions are, there are areas where institutional incapacity and appropriate constitutional modesty require us to be especially cautious (para 58).

In Government of the Republic of South Africa v Grootboom the issue was raised as to the extent of the state’s obligations under section 26 of the Constitution, which entrenches everyone’s right of access to adequate housing (para 34). The Constitutional Court emphasized that section 26(1) did not give any of the respondents the right to claim shelter immediately. The Court reasoned that the housing programme of the Cape Metropolitan Council fell short of the obligations imposed upon the state because it failed to provide for any form of temporary relief to those in desperate need, with no roof over their heads, or living in crisis conditions (paras 52-53, 69). Where the court argued in Soobramoney that they would not interfere in rational decisions made bona fide of state agencies, the court in Grootboom developed the reasonableness test to use as a yardstick to measure state compliance.

The Court turned to an examination of the obligations on government (in other words in how-question) by enquiring into the reasonableness of the measures that were adopted to give effect to these rights. With the reasonableness review the courts evaluate the obligation placed on the state by asking whether the measures taken by the state are reasonable instead of defining the content of the right (in other words the court defer to address the what question). The Court inquires whether government policies and programmes are rational, coherent, inclusive, comprehensive, coordinated, flexible, inclusive, sensitive to various degrees of deprivation and reasonably implemented and conceived as well as whether these measures are transparent (paras 39-45 and Minister of Health v Treatment Action Campaign paras 38 & 123). In the absence of the court being able to address the singularity of the situation and address the what –question in particular relations, the applicant after “winning” the case still died years later without receiving a house.

Mazibuko v City of Johannesburg concerned the right of access to water guaranteed in section 27 of the Constitution. In this case the court did not hesitate to recognize its own institutional limits and constraints when adjudication of socio-economic rights. It provides a range of reasons to justify why it deferred the issue to the other branches of government. The Court firstly reasoned that “…it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right (para 60).” The court perceives it as an issue for the legislature and executive because these institutions are better placed to “investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights” (para 60). Turning to the text of the constitution and the notion of “democratic accountability” the court argues that because government are elected by popular choice, they are far more in touch with the will of the people (para 61). The court proceeds by stating “[c]ourts are ill-placed to make these assessments for both institutional and democratic reasons” (para 62). Again referring to the text of the constitution and the founding values, the court presupposes that ‘government should be accountable, responsive and open’ and argues that “[t]he minimum standard set by the Minister informs citizens of what government is seeking to achieve. In so doing, it enables citizens to monitor government’s performance and to hold it accountable politically if the standard is not achieved. This also empowers citizens to hold government accountable through legal challenge if the standard set is unreasonable” (para 70). Once again the court turns to the reasonableness test referring to the Grootboom case (and doing so projecting the past unto the future) and argues that the court’s function is to answer the question whether government policies were reasonable (para 62).

The judiciary’s use of the “reasonableness test” (as language and strategy) as a mechanism to defer dealing with the content of these rights and its inability to work with singular relations illustrate the idealism, the abstract nature of constitutional text and the notion of judicial review. It calls into question the very idea of constitutional democracies and the supposed protection citizens are guaranteed in terms of human rights. It also stresses that the stratified nature of complex constitutional arrangements affects the ability of real people outside formal political structures and government to actively to participate, engage and oppose decisions on concerning their body. Put differently, the reasonableness test transforms poverty and needs issues into technical and administrative issues (the how-question) which can only be addressed by formal political and governmental structures (based on a liberal-capitalist-economic system) Stewart DPCE: Una costituzione al lavoro).

3 Minor conlusion

For now, we can conclude that the “reasonableness test” (as language and strategy) immobilizes the potentialities that judicial review may possibly present. It function as a deferring mechanism (a stagnant position) to avoid dealing with the material content (the what question) of these rights given the specific situations and singularities involved in every individual case. An attachment to deference and an over emphasis on the apparent binary position between democratic will and constitutional reason highlights a kind of idealism attached to the constitutional text. As such the judiciary cannot move beyond abstraction when dealing with human rights and are unable to deal creatively with a specific relation. It calls into question the very idea of constitutional democracies as part of a representationalist world. It also stresses that the stratified nature of complex constitutional arrangements and how it abstruse the ability of the affected and vulnerable body to participate, engage and oppose decisions made by formal political structures and government.

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