Judicial Role In Democracy

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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 …show more content…
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 …show more content…
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
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