Policentrism, political mobilization, and the promise of socioeconomic rights.

• Author: Ray, Brian

1. INTRODUCTION

   One remarkable constitutional development of the twentieth century is the broad inclusion of socioeconomic rights in new constitutions. (1) Because these provisions impose affirmative obligations on the governments enforceable by the courts, they represent significant constitutional developments. They also raise difficult questions over whether and how to enforce these rights.

   There is a lively debate about whether modern constitutions should include socioeconomic rights like these, defined here to mean any rights that relate to minimum survival needs or core requirements for an adequate quality of life. (2) This debate has produced an extensive literature concerning the nature of socioeconomic rights and whether they are qualitatively different from civil and political rights. (3) The arguments generally center on whether socioeconomic rights are uniquely "positive" in that they require expenditures of state resources in contrast to civil and political rights, which are "negative" in that they involve only limiting government intrusion into the private sphere. (4) On one side of the debate, scholars such as Stephen Holmes and Cass Sunstein have argued that the theoretical differences between these categories is unhelpful at best and incoherent at worst pointing out that all rights---even the supposedly "negative" ones--rely on state expenditures. (5) On the other side, critics argue these rights should be characterized differently because they involve courts in adjudicating disputes over complicated resource allocation decisions that are better left to the legislative and executive branches. (6)

   The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. South Africa's post-apartheid Constitution, which established entrenched, judicially enforceable constitutional rights for the first time in South African history, (7) includes several socioeconomic rights. (8) The South African Constitutional Court in its decision approving the new Constitution specifically held that these rights are justiciable in the same fashion as the civil and political rights in the Constitution. (9)

   Since then it has become a leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many as developing a uniquely effective enforcement approach. (10) Mark Tushnet suggests that the Court has adopted a "weak-form" approach to enforcement that gives the legislature a substantial role to play in interpreting these rights. Cass Sunstein similarly argues that the court has adopted an administrative law approach that limits the Court's role to assessing whether policies adopted by the other branches are reasonable. Many in South Africa, however, have been critical of the Court's approach arguing that it fails to give full effect to the promise of these rights by inappropriately limiting the Court's role. (11) This Article addresses the debate over the Constitutional Court's enforcement of socioeconomic rights and draws on the Court's most recent cases and other developments to offer a new framework for understanding the Court's approach.

   Both sides of the debate have failed to adequately consider two key aspects of the Court's early cases. First, the Court has consistently left open the possibility for evolution towards stronger forms of enforcement for these rights in subsequent cases. Second, in two of these cases, the Court has concretely demonstrated its willingness to take a direct role in enforcing socioeconomic rights. Focusing on these two aspects of the early cases, it is evident that the Court has described the possibility for a mixed form of review that is potentially more robust than both sides of the debate claim.

   This mixed form of review is best described as a "policentric" form of review. (12) The distinctive characteristic of policentric review is a sharing of interpretive authority with the legislative and executive branches of government and a consequent willingness by courts to respect constitutional interpretations by those branches that differ from their own. The policentric approach has several key advantages over a traditional juricentric approach that are particularly important in the socioeconomic rights area. Policentric review enhances the informational basis for implementing these rights by giving the courts the benefit of the other branches' better informed perspectives on the complex policy choices involved in enforcing these rights. At the same time, extending interpretive authority to the other branches also establishes a democratic basis for making those policy tradeoffs.

   Most importantly, policentric review improves the prospects for meaningful implementation of socioeconomic rights in the long term. It creates incentives for the legislature and executive branches to take seriously their roles in enforcing these rights by giving them the authority to develop independent interpretations of what these rights require. And, by placing the interpretive function expressly into the political sphere, policentric review encourages the development of political mobilization to seek responsive policy changes by the government.

   Finally, the judicial role is highly flexible under policentric review. This means that courts can operate along a continuum of relatively weaker or stronger interventions in each case. At the weaker end of this continuum, courts can defer completely to the judgment of the government that a particular policy is the most effective mechanism for enforcing a particular right. At the stronger end, courts remain free to order specific changes to a program and even to issue structural injunctions to ensure compliance with their orders.

   Recognizing that the Constitutional Court has begun to develop a policentric approach answers the critics' principal objection that the Court's deferential approach to enforcement in its early cases has diminished the force of these rights. At the same time, the flexibility that the Court has retained to take a more direct role in enforcing socioeconomic rights requires revision of the relatively restrained approach described by those who have commented favorably on the Court's current approach.

   Parts I and II of this Article outline the Court's early cases and the debate that has developed around them. Part III critiques both sides of this debate and develops a new account of the Constitutional Court's approach to socioeconomic rights. Part IV analyzes recent developments in the socioeconomic rights area, including the City of Johannesburg litigation as well as recent lower court cases to assess the effectiveness of the Court's policentric approach.

2. JUSTICIABILITY AND THE EARLY CASES

   1. The Socioeconomic Rights Provisions

      The question of whether South Africa's post-Apartheid Constitution should include socioeconomic rights was hotly contested. (13) Ultimately, express rights to housing, (14) health care, food, water, social security, (15) and education were included in the new constitution. (16) In addition to these specific rights, the Constitution includes affirmative dimensions in other rights. The right to property in Chapter 2, Section 25 includes rights against uncompensated government appropriation and the affirmative requirement that the state take "reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis." (17) Similarly, Chapter 2, Section 28, titled "Children," includes a series of affirmative rights including the right to "family care," and "basic nutrition, shelter, basic health care services and social services." (18)

      The cases that have come before the Court to date have focused on the right to housing contained in Section 26 and the rights to health care, food, water, and social security contained in Section 27. These rights are all qualified by what is referred to as an "internal limitations clause." (19) Each right has three clauses. The first clause establishes a positive right. Section 26(1) creates a "right to have access to adequate housing." Section 27 provides rights to access to health care, food and water, and social security. The second clause, which is worded identically in both Section 26 and Section 27, then limits the obligations of the state to fulfill these rights: "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of [these] rights." (20) The third clause in each contains a prohibition against certain government actions. Section 26(3) prohibits arbitrary evictions, and Section 27(3) prohibits refusal of emergency medical treatment.

      As discussed in more detail below, the Constitutional Court has held that the first two clauses in Sections 26 and 27 must always be read together. In other words, the Court has held that the positive obligations imposed by each right are always qualified by the internal limitations clause. This interpretive move has been the focal point of the principal criticisms of the Court's approach to these rights.

   2. The Early Cases

      The Court has developed its approach to the positive dimensions of Sections 26 and 27 in four main cases. (21) I divide these early cases into two separate categories. The Court's first two cases, Soobramoney v Minister of Health (22) and Government of the Republic of South Afria v Grootboom, (23) decided in 1998 and 2000, establish its default approach of deference to the government combined with weak remedies for constitutional violations. In these cases, the Court's initial approach has been to give considerable deference to the government's justification for particular policy and budget decisions that implicate socioeconomic rights. Even where the Court has found that a particular government...