Who should have the final say over the supply of the antiretroviral drug nevirapine to HIV-positive pregnant women? The executive arm of government or the courts? This issue has nothing to do with nevirapene, HIV-positive pregnant women, the Health Department’s view on the efficacy of the drug, its policy on the best way to handle the AIDS crisis, or even President Mbeki’s views on any of these questions.
The issue has to do with the ultimate responsibility for allocating the country’s health budget. Is it the Department of Health or is it the courts? Can the judiciary compel the government to allocate the budget according to its view of the demands of the Bill of Rights? Is the budget a political or judicial responsibility?
During the constitutional debates the Free Market Foundation warned of the dangers of including such so-called second-generation rights in South Africa’s Bill of Rights and reiterated those warnings in submissions to the Constitutional Review Committee. Now we have the clash of powers we feared would occur.
For understandable reasons, both in terms of South Africa’s history and international trends, our Bill of Rights contains both first and second-generation rights. At the time of drafting, negotiators and drafters grappled with the problem of second-generation rights not being justiciable in any meaningful sense. First generation rights are comparatively simple. They require mere omission. They proscribe what the state may do. In contrast, second-generation rights prescribe what the State must do. In order to fulfil its second-generation right obligations, government has to adopt and implement far-reaching and costly policies.
Government cannot fulfil second-generation obligations
Whilst it is possible for government to uphold first-generation rights absolutely, it is not possible, even under extremely favourable conditions, for it to fulfil second-generation obligations. It was therefore necessary to limit the state’s obligations to the availability of resources. That would not ipso facto have been problematic. Insurmountable problems arise when second-generation rights are equated with first- generation rights by rendering them justiciable. Justiciability means that ultimate control over a wide range of government policies is transferred, presumably unintentionally, from elected and accountable legislators to judges and magistrates. This is clearly both undemocratic and inappropriate.
Notwithstanding this anomaly, they were included as “fundamental” rights due to political imperatives at the time. A “fundamental” right ought to be one that is essentially non-contentious; one that all people of goodwill ought readily to agree is both absolute and can be upheld in the real world. This basically describes first-generation rights. The issue is not so much whether second-generation rights ought to be regarded, along with first-generation rights, as being so fundamental and universal as to be non-voteable, but whether they can realistically be justiciable.
First-generation rights require no action
For the state to uphold first-generation rights, it needs to do nothing. No budget for action is required. The state must merely refrain from violating the rights. Government, must, for instance, not curtail press freedom, not interfere with freedom of movement or association, not impose a state religion, not discriminate unfairly, not detain people without trial, and so on. Such first-generation rights can be upheld, subject to legitimate exceptions, unambiguously and relatively easily.
Second-generation rights, on the other hand, require the state to do something. In order to satisfy such rights, the state must have resources, personnel, political will and more. Typically, the resources required to satisfy second-generation rights, such as health-care, housing, education, welfare, and a clean or safe environment, are so substantial as to be beyond the means of any government except, perhaps, the governments of the wealthiest countries.
Government's obligations are subject to available resources
Mindful of these anomalies and the profound difference between first and second- generation rights the constitution drafters resorted to what appeared at the time to be the most feasible compromise, namely, to provide that second-generation rights will be upheld subject to available resources. It turns out that this results in serious unintended consequences, which no one wants. It shifts ultimate responsibility for decision-making regarding crucial functions of government – arguably its most important functions – from democratically elected politicians to the courts.
It is instructive to note that the targeted benefits of second-generation rights in the constitution are those that are usually the principal issues of contention between political parties in the policies they offer the electorate. They are and should be confined to the subject matter of the democratic process where political parties and their supporters make conscious choices regarding policy priorities and trade-offs.
The courts will control the country's budgets
The current case before the courts in which people are demanding the constitutional right to a particular aspect of health-care is an inevitable consequence of second-generation rights purporting to be “fundamental”, justiciable and real. Unless the wording in the constitution is corrected this anomalous state of affairs will spiral out of control. There is a self-evident need and urgency to address the matter.
Justiciable second-generation rights in their current form unavoidably burden the courts. They are charged with determining how the government should budget its funds, how much it must spend on health-care, housing, education, the environment, and so on. Since government’s “resources” include its power to tax, the courts will also, ultimately, have to dictate taxation policy to government. If sufficient resources, in the judgement of the judiciary, cannot be diverted from other democratically preferred priorities, the courts will be left with no choice but to require the government to impose additional taxes. Government will, in effect, lose control over key policies, including budgetary and fiscal policy.
Preserving the principle of separation of powers
If second-generation rights are retained in the constitution and recast so as to be comparable with first-generation rights and therefore truly justiciable, the sanctity of both first and second-generation rights will be enhanced and the objectives of all parties to the constitution will be achieved. The first-generation rights will not be undermined by unattainable second-generation rights. The courts will not be expected to perform functions for which they are manifestly unintended and unsuited. The principle of separation of powers will be retained, whereby the legislature is responsible for legislation and government policy, the executive for executing and implementing laws and policies, and the judiciary for adjudicating disputes.
The acid test for whether second-generation rights are correctly formulated ought to be whether the courts can uphold them by way of an interdict or injunction against a law, policy or action that would violate the right concerned. This relatively small drafting improvement to the constitution would give existing second-generation rights real meaning and efficacy. It would require the state to refrain from violating both first and second-generation rights. In jurisprudential terms a reformulation of the existing second- generation rights clauses would mean that a court would be empowered to issue an interdict (injunction) against the state when it violates a right. It would not be empowered to issue a mandamus calling on the state to implement a policy formulated by the court, thereby usurping the functions of democratic government.
Author: Leon Louw is the Executive Director of the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author's and are not necessarily shared by the members of the Foundation.
FMF Feature Article / 16 March 2002 - Policy Bulletin / 22 September 2009