JUDICIAL AUTHORITY
, THE HISTORIC LEGACY OF
PARLIAMENTARY SOVEREIGNTY AND
APARTHEID ON THE JUDICIARY
• In a constitutional democracy the judiciary is often
referred to as the ‘bastion of legal order’.
• In an constitutional democracy an independent judiciary
is free to interpret and apply the law impartially.
• The system of separation of powers and checks and
balances can operate optimally if an independent and
impartial judiciary is empowered to enforce the
provisions of the Constitution.
• The judiciary has the duty to enforce the provisions of
the Constitution and the law, and to check the exercise
of power by the legislature and the executive and other
powerful role players.
, THE HISTORIC LEGACY OF PARLIAMENTARY
SOVEREIGNTY AND APARTHEID ON THE
JUDICIARY
From an institutional and practical political
perspective, the judiciary is seen as
relatively weak in relation to the other two
branches of government.
The judiciary may appear to lack the
political influence/power and democratic
legitimacy associated with the elected
branches of government and is dependent
on the other two branches for funding and
implementation of its decisions. (Think
back about the counter-majoritarian
dilemma discussed in Chp.2).
, THE HISTORIC LEGACY OF
PARLIAMENTARY SOVEREIGNTY AND
APARTHEID ON THE JUDICIARY
• However, the Constitutional Court has pointed
out, that the judiciary cannot function properly
without the support and trust of the public.
• An independent judiciary is most effective
when it respects the separation of powers
doctrine and does not unnecessarily intrude on
the domain of the legislature and the executive.
• The courts must not be timid (must not show a
lack of courage) in protecting the law and
enforcing the Constitution and must interpret
and enforce the Constitution in a fearless way.
, THE HISTORIC LEGACY OF
PARLIAMENTARY SOVEREIGNTY AND
APARTHEID ON THE JUDICIARY
• In a constitutional democracy the judiciary is often
referred to as the ‘bastion of legal order’.
• In an constitutional democracy an independent judiciary
is free to interpret and apply the law impartially.
• The system of separation of powers and checks and
balances can operate optimally if an independent and
impartial judiciary is empowered to enforce the
provisions of the Constitution.
• The judiciary has the duty to enforce the provisions of
the Constitution and the law, and to check the exercise
of power by the legislature and the executive and other
powerful role players.
, THE HISTORIC LEGACY OF PARLIAMENTARY
SOVEREIGNTY AND APARTHEID ON THE
JUDICIARY
From an institutional and practical political
perspective, the judiciary is seen as
relatively weak in relation to the other two
branches of government.
The judiciary may appear to lack the
political influence/power and democratic
legitimacy associated with the elected
branches of government and is dependent
on the other two branches for funding and
implementation of its decisions. (Think
back about the counter-majoritarian
dilemma discussed in Chp.2).
, THE HISTORIC LEGACY OF
PARLIAMENTARY SOVEREIGNTY AND
APARTHEID ON THE JUDICIARY
• However, the Constitutional Court has pointed
out, that the judiciary cannot function properly
without the support and trust of the public.
• An independent judiciary is most effective
when it respects the separation of powers
doctrine and does not unnecessarily intrude on
the domain of the legislature and the executive.
• The courts must not be timid (must not show a
lack of courage) in protecting the law and
enforcing the Constitution and must interpret
and enforce the Constitution in a fearless way.
