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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