It’s the rule of law
The Constitutional Court has the final say on constitutional matters and can overturn decisions made by the executive as it did in the case brought by the Treatment Action Campaign against the government in 2002. At the time, the Constitutional Court ruled that nevirapine should be rolled out to all pregnant women who needed it, not just a select few, as the Department of Health's policy dictated. Here, Mark Heywood of the TAC is surrounded by supporters celebrating the victory. The Constitutional Court has the final say on constitutional matters and can overturn decisions made by the executive as it did in the case brought by the Treatment Action Campaign against the government in 2002. At the time, the Constitutional Court ruled that nevirapine should be rolled out to all pregnant women who needed it, not just a select few, as the Department of Health's policy dictated. Here, Mark Heywood of the TAC is surrounded by supporters celebrating the victory.
In an address to the Access to Justice conference held in Sandton recently, President Jacob Zuma emphasised that the courts should not be more powerful than the executive government. In this regard President Zuma declared that:
“The executive, as the elected officials, have the sole discretion to decide policies for the government. This means that once the government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of legality, raise that as an opportunity to change the policies.”
Some political analysts and commentators interpreted the president’s comments as a reference or indeed a veiled threat flowing from the Constitutional Court’s bold decision earlier this year in which, by the narrowest majority of judges, it was held in the case of Johannesburg businessman Hugh Glenister, that the legislation flowing from a change of policy by the ANC government, disbanding the Scorpions and putting in its place the Hawks, was unconstitutional.
The issue that is at stake in this polemic involves the separation of powers, which is a cardinal doctrine in constitutional law and democratic government.
The South African constitution provides for constitutional supremacy. This means that the supremacy of the constitution has replaced the sovereignty of Parliament which prevailed in our constitutional dispensation before 1994.
The supremacy of the constitution gives the courts a testing right set out in section 172 in order to invalidate any law in conflict with the constitution.
This means that the final word on constitutional matters is vested in the courts and not in the legislature or the executive.
In effect our constitution establishes judicial as opposed to legislative supremacy.
However, this creates a dilemma, because judges who are merely appointed are empowered to invalidate laws made by a democratic legislature. This is a source of potential controversy.
The courts since 1994 have exercised this power boldly in important cases, involving the supremacy of the constitution, for instance, when then president Nelson Mandela, acting in terms of the powers granted to him by the Local Government Transition Act, amended the principal act in a manner which favoured the ANC and was prejudicial to the New National Party, who challenged its constitutionality. The Constitutional Court reversed the decision of the lower court, invalidating the president’s proclamation and Parliament’s amendment of the Local Government Transition Act by invoking the doctrine of separation of powers.
President Mandela responded with characteristic statesmanship by praising the Constitutional Court’s judgment and observing that “this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance”.
Second, in the seminal decision in Treatment Action Campaign (TAC) and Others versus Minister of Health and Others in the Pretoria High Court, Judge C Botha ruled that the state had to provide the drug nevirapine to all pregnant women, not to just a selected few.
The central government appealed against this decision to the Constitutional Court. In this case the TAC sought first to compel the minister of health to provide nevirapine to pregnant women at public health facilities, and, second, to compel the department to produce and implement an effective national programme to prevent or reduce mother-to-child transmission of HIV.
The court ordered the department to provide nevirapine to pregnant women when medically required, and further to roll out a national mother-to-child transmission programme.
On appeal by the state, the Constitutional Court upheld the decision of the high court, holding that when state policy does not give sufficient weight to the needs of a significant segment of society, then it may fall short of its obligations.
The court indicated clearly that the order it made would require the state to revise its policy. In effect this meant that the state’s policy was found to be unconstitutional as it did not fulfil the health-care and other guarantees in the Bill of Rights.
The judgment represented a comprehensive defeat for the government. Not only was its passionately defended health policy declared unconstitutional, but more significantly, it lost its challenge over the court’s right to intervene on the question, based on separation of powers.
The state in its appeal had claimed that the high court’s ruling infringed the key principles of separation of powers, and that the judiciary was trespassing on areas that were the prerogatives of the executive.
In its judgment, the Constitutional Court unanimously rejected all the state’s contentions.
If the policy of the executive is in conflict with the provisions of the Bill of Rights, or any other part of the constitution, the courts are duty bound to invalidate that policy.
In so doing they are not exceeding their powers, as President Zuma appeared to indicate in his address, by use of the phrase “sole discretion to decide policies for the government”, but acting in accordance with the constitution and all it entails.
l Devenish is a former professor of public law at the University of KwaZulu-Natal