he Obligations on Government and Society in our Constitutional State to Respect and Support Independent Constitutional Structures
Constitutional democracy recognises the ancient democratic principle that government of a country is based on and legitimated by the will and consent of the governed, which is determined by regular multi-party elections based on universal adult franchise. Constitutional democracy limits this principle by subjecting the democratically elected government and the will of the majority subject to a written constitution and the norms embodied in it. Such constitution is enshrined as the supreme law of the country in question. An almost universal feature of modern constitutionalism is a Bill of Rights that forms part of the Constitution and which is designed to protect and enforce individual rights principally, although not exclusively, against the state. Constitutionalism also embodies the principle of the separation of powers. A competent and independent judiciary, with the power to review all legislative and executive conduct that is inconsistent with the Constitution, is regarded, almost universally, as the prime and most effective check on the legislative and executive branches of government. Recently it has come to be realised that for the truly effective and meaningful operation of constitutionalism, other independent state institutions are necessary. The collective objective of these institutions is to ensure that the Constitution in fact produces what it proclaims: that constitutionalism becomes a way of life in all institutional structures. The South African Constitution has clearly designated the judiciary as the prime upholder and enforcer of the Constitution. The Constitution has, however, gone further and makes provision for a variety of independent state institutions whose purpose is to "strengthen constitutional democracy in the Republic". Apart from these state institutions the Constitution also makes provision for other independent bodies designed to play an important checking and balancing role. The regular effective functioning of these institutions is vitally important for creating and sustaining an ethos of constitutionalism among the inhabitants of the Republic.
The Constitution makes explicit provision for the protection of the judiciary and the other independent state institutions and thereby indirectly for the development of habits of constitutionalism. The constitutional protection and support given to the independent state institutions are very similar to that given to the courts. One important distinction is to be noted. In the case of the courts, the Constitution provides that they "are subject only to the Constitution and the law" and no provision is made for them to be accountable to any other organ of state or any other institution or person, for that matter. By contrast, the independent institutions envisaged in section 181 of the Constitution are expressly made accountable to the National Assembly and are obliged to report on their activities and the performance of their functions to the Assembly at least once a year. While the formal independence of state institutions may at all times be scrupulously recognised by the legislature and the executive, their substantive independence can easily be undermined by fiscal starvation and their ability to function properly impeded by bureaucratic administrative obstruction or obfuscation or even, quite innocently, by a lack of appreciation of what the Constitution demands from public administration in support of these institutions. Adequate financial and administrative resources are required to achieve aspects of judicial independence. All South Africans must still be vigilant to ensure, from the outset, that all state organs develop habits and practices of constitutionalism and that they do not, whether by omission, error, or otherwise endanger the independence of our independent state institutions by neglecting their constitutional obligations.
For the Constitutional Court to fulfil its role as the ultimate guardian of the Constitution, it must be independent. Its members cannot be elected, because that would imply that the Court owed allegiance or were accountable to the political majority or other elector in question. On the other hand, it is seen as undemocratic for a body that is not elected to be in a position to overrule the expressed will of the political representatives of the majority. This paradox exists in respect of all our courts and makes the method of appointing judicial officers particularly important in order to ensure at the same time, and as far as this is practically possible, both their independence and their legitimacy. The judiciary is however not an arm of the state that has been exempted from all checks and balances. The checks and balances on the judiciary are not the same as in the case of the legislature and the executive. In the case of the latter the checks and balances are principally through the Constitution, as enforced by the courts, and through the political process. In the case of the courts these checks and balances cannot be through the political process, for this would undermine the independence of the judiciary. One of the reciprocal obligations that a constitutional democracy imposes on all its subjects, is to support the independent constitutional institutions, as constitutional institutions, not only vocally at the level of intellectual abstraction, but by actively working to establish the habits of consitutionalism in all societal structures and societal interaction.