One of the most controversial topics in the debates surrounding socio-economic rights concerns the appropriate role of judges in adjudicating upon disputes surrounding them. One response has been to modify the content of socio-economic rights in order to give effect to a modest conception of the judicial role in their adjudication. This chapter examines what the appropriate relationship should be between institutional concerns relating to the separation of powers and a determination of the content of fundamental rights. First, the paper illustrates the manner in which separation of powers considerations have influenced the ‘reasonableness’ approach to the adjudication of socio-economic rights that has been adopted in the jurisprudence of the South African Constitutional Court. Secondly, it is argued that the conflation of these two sets of concerns is unjustifiable both conceptually – where two incommensurable sets of issues are not adequately distinguished – and, normatively, in terms of the weakening of the entitlements that invariably results. Having argued against such a conflation, it is contended lastly that there is indeed a relationship between the two sets of issues. Centrally important to the argument will be the claim that we must distinguish reasoning relating to fundamental rights from reasoning relating to the obligations which flow from such rights. Institutional and agent-centred considerations are inappropriate when constructing the substance of a constitutional entitlement; they may legitimately enter into the picture when the concrete obligations flowing from such a right are under consideration. The primacy of fundamental rights entails that an understanding of their content is necessary in order to evaluate any reasons for the attenuation of the obligations flowing from them and the ‘separation of powers’ questions that may arise in this context. A substantive understanding of fundamental rights thus provides one key set of normative considerations that conditions the application of the separation of powers doctrine rather than the other way round.
Redson Edward Kapindu
National Human Rights Institutions (NHRIs) play an important role in ensuring that Governments are held to account in respect of their human rights obligations. These NHRIs are variously established. Some are established under the Constitution, others are established through ordinary legislation, whilst others are established by executive decrees. This chapter first explores whether NHRIs may always fit into the tripartite separation of powers model of the executive, the legislature and the judiciary (the trias politica). It argues that they may not always fit well into this model and that there are instances where NHRIs should simply be treated as organs of the state sui generis, falling outside this tripartite model. The chapter then examines the specific instance of the Malawi Human Rights Commission (MHRC), and concludes that the MHRC is one of those NHRIs that do not sit well within the trias politica. The chapter winds up by examining how the MHRC has sought to ensure checks and balances with the other organs of the state, especially the executive, through participation in litigation; and also the contribution that the MHRC has made in developing human rights and constitutional law jurisprudence.
Edited by Gareth Davies and Matej Avbelj
José Ma. Serna de la Garza
The traditional three-branch understanding of Mexican constitution law increasingly contrasts with the emergence of a number of “autonomous constitutional agencies” that have been created in the last couple of decades to perform relevant state functions. This chapter focuses on one of the most important new agencies created in Mexico: the National Commission on Human Rights. It seeks to explain the Commission’s legal status as well as its interactions with Mexico’s Supreme Court of Justice (SCJ). Moreover, in this chapter the author argues that in spite of the fact that the Supreme Court plays some balancing role, the national ombudsman (as is also the case with the other “autonomous constitutional agencies”) is mostly unchecked concerning its actions and omissions. The chapter suggests that Mexican constitutionalism has not yet figured out how to construct a proper balance between independence and accountability in order for these institutions to achieve their full potential.
South Africa’s State Institutions Supporting Democracy, commonly referred to as the Chapter 9s, play a number of roles that overlap significantly with those played by the executive, legislative and judicial branches of government. Dedicated to the entrenchment of good governance, these bodies exist independently from the traditional structures of government, designed to guard against acts of impunity and to foster balance in much the same way that the checks and balances system, derived from the doctrine of separation of powers, intends to. Given this functional interpretation, this chapter contends that the Chapter 9 institutions do constitute a “fourth branch”, and that there are significant potentialities for them to utilise this role to contribute to good governance. These opportunities are explored, looking at the judicial and quasi-judicial roles that many Chapter 9 institutions play, and suggesting that the practice of Alternative Dispute Resolution (ADR) is one means through which these institutions can contribute significantly. Opportunities also exist for the Chapter 9 institutions to be robust research, advisory and rights-promoting bodies, and these should be harnessed and strengthened as distinctive roles that have an important place in South Africa’s constitutional landscape. Ultimately, however, it is recognised that there remain significant challenges which impede the ability of these fourth branch institutions to contribute robustly and meaningfully to good governance, including a lack of clarity about their position; questions about the enforceability (or lack thereof) of their findings; a paralysing lack of resources; and intrinsic and extrinsic weakening or undermining of the Chapter 9 bodies, often for political purposes. This chapter suggests that these challenges will need to be overcome if the Chapter 9 institutions are to live up to their considerable potential as custodians of good governance in South Africa’s constitutional order.
Between the Global North and the Global South
In many constitutional systems around the world, the powers of the executive branch are vast, ever-expanding, and elusive. This chapter draws on a number of examples, from “established” and “fragile” democratic contexts to develop a typology of the different functions that courts can play in checking executive power. It concludes that courts can be surprisingly successful in limiting the growth of even powerful executives. It finds that, as a strategy, courts are more likely to be successful when they focus on empowering other institutions that can serve as a counterweight to powerful presidents, rather than seeking to shoulder the entire burden of limiting executive power themselves. Through case studies the chapter explores the circumstances under which courts have sought to make the constitution matter by placing limits on executive power.