The role of the judiciary in a modern state with a tradition of legislative supremacy

Abstract

The legislative supremacy of Parliament, a dominant characteristic of the Westminster system of government, has for a long time been the basic norm of South African constitutional law. In line with the Westminster prototype, the South African judiciary did not have the power to review the substantive validity of legislation. The creation of a new order, based on a supreme Constitution which entrenches fundamental rights and gives the courts the power to review not on! y the procedural validity but also the substantive validity of legislation, has brought about a significant change. This thesis examines the role of the South African judiciary during the transition from a system of legislative supremacy to one of constitutional supremacy and judicial review. The thesis is based on the interim Constitution of 1993. The entrenchment of fundamental human rights in the Constitution implies a greater role for the judiciary. The judiciary has to apply and interpret the human rights provisions vigorously and fearlessly. The human rights provisions have to be applied and interpreted with a keen awareness that a system of constitutional supremacy differs materially from one of legislative supremacy. In a system of legislative supremacy the intention of the legislature is paramount; in a system of constitutional supremacy the Constitution is supreme and overrides all laws, including Acts of Parliament, which are in conflict with it The doctrine of legislative supremacy has in the past led to a literalist and mechanical application of law; this has had a negative impact on the constitutional role of the South African judiciary. The provisions of a Constitution, especially its human rights provisions, are framed in wide and open ended terms; these need to be elaborated before they can be applied; the nature of these provisions, their purpose and the larger objects of the Constitution are important. The interpretation of the provisions of a supreme Constitution is incompatible with a literalistic and mechanical approach. A purposive and liberal or generous approach is called for. A framework and approach to the interpretation and application of South Africa's Bill of Rights are suggested in the thesis.