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3 Potchefstroom Elec. L.J. [i] (2000)

handle is hein.journals/per2000 and id is 1 raw text is: THE OBLIGATIONS ON GOVERNMENT AND SOCIETY IN OUR CONSTITUTIONAL STATE TO RESPECT AND SUPPORT INDEPENDENT CONSTITUTIONAL STRUCTURES LWH Ackermann SC. Judge of the Constitutional Court. 1 Introduction When there has been a heavy fall of rain on a newly made and newly grassed football field, you do not chase two football teams on to it to play a match. These homely but profound remarks were addressed to our small delegation during 1994 when we were visiting Hungary to study its recently adopted new Constitution and its young Constitutional Court. The Hungarian Constitution and its Constitutional Court were then but five years old. The remarks were made by the leader of the opposition in the Hungarian national legislature. This wise, seasoned political campaigner had been criticising some of the recent judgments of the Hungarian Constitutional Court and his remarks were intended to impress on us that, whatever his criticisms might be, he had a deep commitment to the new constitutional state and its independent institutions and that the latter should never be harmed for the sake of political or other gain. Our own Constitution, and the constitutional democracy it guarantees, is also a newly planted field, little more than five years old. In this paper I propose noting first some of the features of modem constitutionalism and the paradoxes to which they give rise. I then discuss the need for independent constitutional institutions, the substantive independence necessary for their proper functioning and areas where they require special support. I conclude with some observations on the paradox of judicial review, appropriate checks and balances on courts exercising judicial review and the vital importance of distinguishing between honest and informed criticism of judgments and judges and the undermining of the judiciary as a constitutional institution.

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