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 Periodical article |
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| Title: | Democracy: its influence upon the process of constitutional interpretation |
| Author: | Davis, Dennis |
| Year: | 1994 |
| Periodical: | South African Journal on Human Rights |
| Volume: | 10 |
| Issue: | 1 |
| Pages: | 103-121 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | democracy constitutions 1993 |
| External link: | https://doi.org/10.1080/02587203.1994.11827531 |
| Abstract: | The Constitution of the Republic of South Africa Act (1993), with its federal structure and its chapter on Fundamental Rights, makes a decisive break with the Westminster tradition and gives the new Constitutional Court and the Supreme Court a heavy responsibility to ensure that the fledgling democratic order keeps to both the lofty ideals and messy compromises of this interim constitutional arrangement. This expanded role for the judiciary gives rise to a puzzle which has confronted constitutional jurisprudence wherever a bill of rights has been introduced. The problem concerns the apparent contradiction between a democratic political system and the institution of judicial review. Constitutional review is conducted by unelected judges who are empowered to overturn the will of a democratically elected and accountable legislature in terms of a process of interpreting abstract constitutional provisions. The question arises as to how to account for and justify the curtailment of the operation of a democratic political system by an unaccountable institution. Consequently the introduction of a bill of rights compels South African courts to engage in an exercise in political theory. The courts are required to justify the process of their review power and to identify those background political ideals which fashion and give content to the bill of rights. Notes, ref. |
