In my humble opinion when you reach a juncture at which any state for that matter of fact starts talking about “judicial review,” there’s rightful reason for concern. Our constitution, the Constitution of 1996 is the supreme law of our land. Any law or conduct that is inconsistent with the Constitution is invalid. Constitutionalism as a concept is simply a government that conducts itself in accordance with the Constitution and promotes it’s tenets.
There is a valid reason why jurist only refer to the Constitution as “the Constitution of 1996.” Let me explain, initially it was referred to as the “Constitution Act 108 of 1996.” To explain further, just by way of contrast, the criminal procedure act is very rightfully referred to as “The Criminal Procedure Act 51 of 1977.” This is so because is an act of parliament BUT the Constitution is not an act of parliament! The Constitution after much protracted debate was formulated by the Constitutional Assembly(CA), an organ completely separate from parliament.
The Trias Politica doctrine(The separation of powers)
- A character by the name of Montesquieu postulated this concept of separation of power. He believed that you can never really have freedom when one party makes the laws, enforces them and then also sits as judge on matters of dispute;
- A true separation of powers as it stands as at today’s date here in South Africa(without any review) is the separation completely of the Legislature(those 400 people in parliament that make the actual laws e.g Companies Act 71 of 2008) and the Executive(for practical purposes the police force who enforce the laws and the JUDICIARY(in essence the courts);
- There are many constitutions benchmarks if you will but most notably separation of staff in these 3 branches, you can’t have a situation where a captain in the police force also has a part time job as a court manager; freedom of the media(the minute you attempt to curtail this body you headed for dictatorship);
So that’s just my 2 cents on this concept of “judicial review!”