On the 28th of April 1994, South Africa completed its first democratic election, an election that not only celebrated the death of apartheid, but also vested the power of the country into the hands of its people. Society is required to rely on the state to ensure their human rights, in spite of the fact that the state itself could be a coercive instrument in threatening the realization of these rights. In such cases the judiciary has the authority to stand between the state and its citizens, and by means of its independence can ensure that true democracy is achieved. The purpose of this essay is to analyze the importance of this independence by looking at the role it plays on democracy, the separation of powers and the rule of law.
Judicial The term “judiciary” refers to the courts as an institution as well as the judges that they consist of and this distinction can be seen when analyzing the Constitutional provisions for judicial authority. Section 165 instructs the courts to make impartial decisions, but is impartiality not to the resolve of the individual judge? While judges are enabled to act without fear, favour or prejudice, Justice Howie believes that in such cases where a judge may for instance find against the state, it takes the judge’s own subjective will, to act free from bias and rule accordingly. Judges lend as the voice of the people and although the highest law in the land guarantees judicial independence, the appointment of legitimate judge’s is crucial in safeguarding this ideal and maintaining Madhuku believes that the magnitude of importance that is placed on the independence of the judiciary, by a constitution, directly correlates to the extent that the principle of separation of powers is valued. The relationship between these two aspects can be seen in the similar provisions that are made in order to achieve them; the Constitution prohibits all individuals and organs of state from interfering with the functioning of the courts, whilst Montesquieu requires that in order for there to be a separation of powers “one organ should not control or interfere with the function and exercise of power of another organ”. The division of centralized control that the separation of powers aims to achieve needs the independence of the judiciary to stand as an arbitrator between the organs of government. Chaskalson P held that the judiciary’s authority to control the power of the other arms of government, with the detachment that is required by the Constitution, would be undermined if the functioning of the courts were associated to these branches. When considering that the separation of powers may not survive without judicial independence, one begins to understand why such importance has been placed on guaranteeing this
Justified in a Democracy (45) The US Supreme Court has a number of powers. These include the power to declare acts of Congress, the executive or state legislatures unconstitutional through the power of judicial review. The supreme court justices are also given the power to interpret the constitution when making decisions, again, through their power of judicial review. It is arguable that it is essential for the supreme court to have such powers in order to allow the American democracy to flourish…
This rule is called the judicial review, which can nullify any action that is considered unconstitutional. The concept of judicial review dates back all the way to ancient Greece with similarities to the graphe paranomon that is believed to be established at Athens. Modern judicial review was also influenced by ancient Rome from the Justinian Code, or Corupus Iurus Civilis. Traces of this concept were also from the judicial review introduced in England. Eventually, judicial review made its way into…
Bringing Rights Back Home; Making human rights compatible with parliamentary democracy in the UK – Michael Pinto-Duschinsky No society is safe from torture and brutality on the part of public officials. It is therefore dangerous for democracy to permit judges to become politicians in robes and to substitute their moral judgements for those of elected representatives on issues outside their essential field. The underlying objective of the study is to suggest ways in which the K can have a robust…
to be approved by nine of the thirteen states. States had the power to veto changes made by Congress. States taxed each other’s goods and even negotiated their own trade agreement with other nations (Government by the People pg.13) and unnamed democracies were on the rise in some states (“Pennsylvania’s’ Constitution”) (Prof. Garcia). Biased popular assemblies were against the privileged and believed that wealth undermined equal rights. Since the Articles of Confederation were weak and flawed to…
Canadian government which carries out those duties. A) Legislative I) The Court System B) Executive II) Parliament C) Judicial III) The Cabinet 2. Explain the role of A), B), and C) above. A) The Legislative role is to makes law B) The Executive role is to propose law C) The Judicial role is to interprets the law 3. Parliament of Canada is made up of two different law making bodies. Identify them and explain how their…
likely be judged by the public based on the health of the conomy. 2. National security; President went form national security leader to international security leader during world war II. Beginning of national security state. Modern Presidency and Democracy Representative of the Jamority of Amiericans Domestic vs foreign policy president Hybrid presidency Foreign polcy the president is imperial Domestic policy dominant but accountable Bureaucracy Adminstratos of government 2 types appointed or nominated…
a government to protect and lead them. In America, we have a representative democracy. Not everyone has a say (direct democracy), but people are allowed to vote for others to represent us. This is the most important question because the people have the power to choose who is chosen or taken away from the power we have given them. 2. What are the advantages/disadvantages of direct democracy? If we had a direct democracy, then everyone would have a say in everything what happened. If everyone had…
11-18-12 Unit 3:The New Nation Unit Assignment: The United States Constitution Before you Read and the Preamble 1. Democracy is a form of government in which all eligible citizens have an equal say in the decisions that effect their lives, what I prize about living in a democracy is that I have rights and everyone is supposed to be treated equally. 2. The five purposes of the constitution are to Establish Legitimacy, create appropriate structures, describe and distribute power…
How Far Do Judges Protect Civil Liberties in the UK? In the UK there is no written constitution and therefore it is the role of the judges to try and uphold the law and protect civil liberties. The Rule of Law as defined by Dicey states that ‘No man is punishable except for a breach of the law’ and it is judges that try and uphold the law and make sure no one is falsely imprisoned. Also the UK has a common law system were many legal principles are derived from decisions made my judges. Therefore…
(Weber,1990). Enough said here. Does a strong bureaucracy strengthen/undermine democracy?. When it comes to this question, I am on the fence with this one. It can be a good and bad in different ways. It can keep things running smoothly, while prolonging or showing favoritism in other areas. It’s good as the people who implement…