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Cheffi Brenner, , Nantes, January 2006

Is an indirect strengthening of national supreme courts to be feared, leading to “government by the courts “?

This is a question that troubles some governments who are concerned about the knockon effects at national level of international quasi-justiciability. “In a democracy ruled by law, judicial mechanisms arbitrate between methods of exercising government and citizens’legitimate and legal demands in the name of fundamental rights recognised by the State. The chief feature of these rights is their intrinsically coercitive aspect, which is why they are imperative in a State governed by the rule of law and go hand in hand with possibilities of redress that ensure their effectiveness. Otherwise they would be merely moral or virtual.” (Didier Agbodjan)

However, this power must no be given pre-eminence over other powers.

Of course, one of the aims of the draft Protocol is indirectly to expand the case law of supreme courts relating to ESCRs. Few have done so to date. This expansion of the scope of rights covered by supreme courts would assert their power. Is there a risk of excess and of establishing “government by the courts “? On the contrary, an international mechanism could help to regulate these powers. The constraints on States should continue to be a prime element for national courts to take into account when reaching judgments. Considering that they would take advantage of such a mechanism to encroach on the role of States would be to misunderstand that fact.

I. The regulating role of a supranational mechanism to guarantee economic, social and cultural rights

In the many cases where national court systems are very weak, the existence of a supranational mechanism to protect economic, social and cultural rights should first and foremost help to strengthen them. Judicial authority, although one of the building blocks of democracy, is generally relatively embryonic in developing countries, where the threat of “government by the courts » is simply not an issue. This was borne out by several contributors, especially senior civil servants and members of the judiciary.

“To institutional fragility may be added the lack of relevance of modern law to political life and citizens’day-to-day behaviour in most West African States. […] The extreme weakness of judicial systems is probably still the greatest threat to the rule of law, because of the secondary status of the judiciary among republican institutions. Although the principle of the separation of powers is contained in new and newly revised constitutions, the justice system seems to be the weak link in the construction of democracy. Its extreme dependence on the government is often the target of criticism, together with its inability to genuinely sanction flagrant infringements of the rule of law, to censure unlawful acts by

the political authorities and to guarantee effective respect of citizens’rights. Of course, a certain affirmation of judicial authority can be seen now and again, in Benin and Senegal for example, with the courts no longer hesitating to sanction the deeds of political authorities and hence manifesting a degree of independence. However, such boldness does not go very far and most courts tend to display a certain susceptibility with regard to government. Under such circumstances, it is difficult to see how citizens can easily bring governments to task for failing to protect economic, social and cultural rights. What judge, for example, could agree to hear a suit from a citizen based on failure to respect his or her right to health, housing or work? » (Vincent Zakane)

Madagascar’s constitution contains 24 articles devoted to ESCRs, entitled “economic, social and cultural rights and obligations”. The picture is rather bleak, however, when it comes to effective enjoyment of those rights and legal protection against their violation in the courts. There is no specialist jurisdiction of redress for violations of human rights, and there is no ESCR case law in the national courts. Some progress has been made in incorporating international labour standards into social case law and some judgments have been issued sanctioning discrimination against women. Obstacles to assent to the justiciability of ESCRs are the corollary of poverty, but above all of a malfunctioning judicial system, depriving the population of means of redress. […] The consequences are very serious […]: a lack of legal certainty, for example (some officials stand the truth on its head and accuse the victims), or the spread of parallel justice (private justice that fails to respect human rights and applies the law of retaliation). It is now generally accepted that a reliable and transparent legal and judicial system, accessible to all, is a fundamental prerequisite for the establishment of a democratic and efficient government.” (Bakolalao Ramanandraibe)

Asserting the justiciability of ESCR at national level by ricochet from a quasi-justiciability established at international level is bound to strengthen a judicial system that is often the sick man of the new democracies. Progress in this area can already be observed.

“Although courts have enforced some economic, social and cultural rights, such as workers’rights, a body of increasingly sophisticated national and regional case law relating to other economic and social rights has emerged over the last ten years. Judgments in Argentina, South Africa, Colombia, India and elsewhere have shown how the courts can play an important role by extending assistance to individuals and ensuring that governments constitutionally support the effectiveness of economic, social and cultural rights. Court decisions have contributed significantly to better fulfilment of economic, social and cultural rights. Judgments have given thousands of women easier access to AIDS treatment, thus helping to stop mothers from transmitting the virus to their children ; they have limited arbitrary evictions of poor people, improved the water supply and sanitation infrastructure in poor suburbs, guaranteed school lunches, prevented famine by monitoring food programmes and identified primary needs for a proper education. […] As the number of jurisdictions that are willing to consider economic, social and cultural rights increases, so judicial systems show that they have a part to play in overall support for human rights and hence in the fight against poverty and social exclusion. This role is just as valid in poor countries as in the richest countries. The international human rights system has already given impetus to major changes. The adoption of the International Covenant on Economic, Social and Cultural Rights in 1966 and the construction of regional human rights systems have encouraged the (quasi) judicial recognition of economic, social and cultural rights. In some jurisdictions, the Covenant has even been given constitutional status. This has reinforced the legal value of economic, social and cultural rights and furnished new grounds for the admissibility of complaints in national courts. Some of the most significant national court decisions refer directly to the provisions of the Covenant, or even to the General Comments of the Committee on Economic, Social and Cultural Rights.” (Eric Tistounet) As for Argentina, it has integrated economic, social and cultural rights in its Constitution and some rights have been declared justiciable by judges. (Maria Cécilia Villagra)

In the majority of countries it is desirable for the powers of the courts to be strengthened and improved, a development which the existence of a supranational mechanism would surely encourage. In contrast, such a mechanism would play a moderating role in countries where the courts are already effective enough and where there could be a risk of their becoming too powerful.

First, the international committee, on the basis of international comparisons, could show its disagreement with the decisions of national supreme courts, which would be a guarantee against “government by the courts.”

In some countries, the devolution of an important power to the courts indirectly allows for the assertion of the other powers that constitute the State. In India, for example, the courts, via the case law they produce, participate directly in the framing of a system of law that the government dare not assume directly. In Maganbhai’s v. Union of India, AIR 1969 SC 783 (1969), the Supreme Court thus held that international conventions that add rights to citizens are automatically applicable in domestic law whereas those that remove existing rights from them must be transposed into domestic law before they can apply. (Colin Gonsalves)

The Certification of the Constitution of the Republic of South Africa Act even accepted in advance the possible encroachment on government powers that would occur if a court were to take a decision of a social justice nature that entailed a budget cost. Pointing out that the question of the cost of court decisions also arises for civil and political rights, it concluded that a court could decide to extend entitlement to a statutory benefit or State subsidy to categories of persons that were excluded without thereby causing a breach in the principle of the separation of powers. (Prof. Michelo Hansungunle)

II. The constraints on States as an essential element to be taken into account when national supreme courts take decisions

Fearing a loss of sovereignty may also mean doubting the courts’capacity for objectivity and their wisdom. Court judgments generally take account of the constraints on States, and a number of examples were given on that subject. In Soobramoney v. Minister of Health 1997, South Africa’s Constitutional Court found that the State had acted rightly when a terminally ill patient requiring regular dialysis had been refused the treatment by a public hospital because for budget reasons hospital regulations gave priority to patients who were not terminally ill. The plaintiff brought his case on the grounds of a violation of the right to health and emergency treatment. The Court, considering that the treatment in question was not an emergency treatment, found that the hospital’s decision had been rational and justified. The treatment given to Mr. Soobramoney would have adversely affected the hospital’s ability to treat several other patients. The Court therefore took account of the constraints on the public administration. (Michelo Hansungunle)

Courts form part of a country’s public institutions and it is unrealistic to suppose that, through an excess of zeal with regard to international norms, they might move towards an absolutism disconnected from objective reality. “Fortunate revolutions in jurisprudence enable national courts, in the name of universal rights recognised by the State, to help governments to better realise rights in internal occurrences by ascertaining normative omissions or reaching expansionist decisions of principle or situation through constructive interpretations of fundamental rights (cf. Constitutional Court practices in France and Italy: “constitutionality bloc”, “expansionist decisions”).” (Didier Agbodjan)

Particularly for southern countries, the mechanism created by the Protocol should also provide for recommendations to be accompanied by technical support in order to create favourable conditions for realisation of the economic, social and cultural rights concerned. The agencies taking part in this form of cooperation would be addressing themselves to States, which they would help to consolidate by their actions.

“Between a general court injunction and the corrective measures taken, the executive therefore intervenes autonomously with regard to how its positive action is implemented (cf. the ESCR case law of South Africa’s Supreme Court).” (Didier Agbodjan)

Provided that the courts keep to their role of monitoring the enforcement of laws, strengthening judicial power is anything but a threat to the executive; on the contrary, it helps to affirm it.