The treatment action campaign case of 2002 is a

Info icon This preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
obligations the judiciary must intervene to uphold the Constitution. The Treatment Action Campaign case of 2002 is a perfect example of when the judiciary is permitted to engage in executive decision-making because if it did not, thousands of babies would have been born HIV positive whereas this could have been prevented if the Department of Health had shown sufficient political willingness to provide nevirapine (the antiretroviral treatment which would prevent mother-to-child transmission of HIV). The Department of Health had repeatedly made excuses for why it could not provide antiretroviral treatment. The excuses ranged from inadequate hospital staff to administer the treatment; insufficient funds to purchase the medication; the fact that the safety and efficacy of the treatment had not been scientifically proven, etc. The Treatment Action Campaign was able to convince the Court that all of these excuses were invalid. The Indian government which produces nevirapine had donated over 5 million of the tablets to the South African government. All it took was a single dose of the drug to dramatically reduce the incidence of mother-to-child transmission of HIV, thus it was not labour intensive on the part of the hospital staff and a variety of tests conducted all over the world had shown that it was a very effective medication. In light of this compelling evidence, the judiciary was forced to assume the role of the executive by deciding that the nevirapine should “immediately” be provided to all pregnant women who were HIV positive. Even though that type of decision is ordinarily made by the executive because they have the knowledge and expertise about whether they are able to perform that type of duty, in this instance where the executive was failing dismally and with no good reason to provide nevirapine, the judiciary stepped into the role of the executive. While it may appear to be a violation of the separation of powers doctrine, it actually is not because the Constitution states that everyone has the right to health care.
Image of page 1

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
The Glenister case is another excellent case to use as illustration (discussed on page 102 of the textbook) of how the separation of powers doctrine actually works. Using this case, it is easy to see that when a court is undertaking the process of judicially reviewing any legislation or executive conduct, the judges carefully inquire into the constitutionality of the legislation or the conduct of the executive, but cannot (and do not) simply substitute their own views for those of the legislature or executive (unless they have no choice, like what happened in the Treatment Action Campaign case). The judiciary upholds the separation of powers doctrine and defers to the authority and expertise of the legislature or executive who is then required to draft a new law which conforms to the Constitution or to rectify the irrational and unconstitutional executive decision.
Image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern