When the arms of government test boundaries

The Supreme Court will on Monday rule on the disputed salary increment for teachers.

As teachers wait for the outcome, the matter is also a test case for relations between the Judiciary and the Executive.

Without delving into the merits and demerits of the case, the positions of the disputants are not difficult to decipher. On one hand teachers unions are asking TSC to pay up as ordered by the Industrial Court. The TSC on the other hand offers a straightforward response — we would be happy to pay but we have no money! This scenario places the arbiter, the Supreme Court, in a catch 22 situation. If teachers carry the day, Treasury has to dig deeper into the public coffers. Should the court restrain itself and defer to the Executive as being better placed to deploy limited resources amid competing interests? It is a test on the age-old doctrine of separation of powers.

Arguments have been made that when a court specifically directs the Executive on how to expend available resources, it is at the same time denying other budget items the necessary resources. It becomes a case of ‘robbing Peter to pay Paul’. Another contention is that courts are not in charge of the public purse and it is the preserve of the Executive to determine who gets what.

It is also contended that courts should not be quick to assume superior wisdom on issues falling within the ambit of other arms of government. Stated differently, without the necessary facts and evidence such as availability of resources, a court should not order the Executive on how to deploy resources.

The counter-argument is that the doctrine of separation of powers should not be understood in absolute terms. As part of the necessary checks and balances in a democracy, the argument goes, intrusion by one arm of government into another’s domain is conceivable.

Arguably, the decision by the Supreme Court in the teachers’ dispute will turn on its conceptualization of the nature our Constitution. Modern constitutions now provide for a judiciary that either has weak or strong review powers over actions of the other arms of government. It is common for the legislature to have the last word in constitutions with weak judicial review powers.

The South African Constitution, for example, provides for strong judicial review powers. The approach by South Africa’s Constitutional Court oscillates between delicate political balance of the relationship with other branches of government and far reaching directives reversing their decisions. For instance, the court has on some occasions suspended its finding that a law is unconstitutional to allow Parliament time to adopt new legislation, a clever way of avoiding a clash between the two.

 In other instances the court has gone as far as severing the unconstitutional provision or inserting a new provision in an Act of Parliament! (also referred to in legal jargon as ‘reading in’).

Based on provisions in our Constitution and decisions made by courts since its promulgation, there is no doubt that our constitutional design is that of a strong judicial review.

Though at face value this appears an ‘intrusion’ on the other arms of government, lawyers and legal scholars agree that our Constitution sanctions this intrusion and the Judiciary has the last word.

The Supreme Court has a tough choice on whether to take a ‘political’ route and allow the Executive tailor a solution for teachers or assume the strictly legal path and provide remedy itself. Either way, the doctrine of separation of powers is on the scales.