Assignment Task
If you look at the history of nations that maximized the virtues that we associate with democracy, you notice that what came first was constitutionality, rule of law, and the separation of powers. Democracy almost always came last. If by democracy we mean the right of all adults to take part in the choice of government that’s going to rule over them, that came very late – in my lifetime in some countries that we now think of as great democracies, like Switzerland, and certainly in my father’s lifetime for other European countries like France. So we should not tell ourselves that democracy is the starting point … That’s not an argument for going back to restricted suffrage or two classes of voters, or whatever it might be – you know, the informed or the uninformed. But it is an argument for understanding that democracy is not the solution to the problem of unfree societies.
Tony Judt ‘On Intellectuals and Democracy’ The New York Review of Books (May 2012).
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How well would you say the Constitutional Court has done mediating between the competing demands of democratic majoritarian rule and judicial review of state (and social) action (both of which are enshrined and well-articulated in the Constitution)? If one takes Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11, 2016 (3) SA 580 (CC) as a departure point, how well has the Court done in defending the rule of law in the face of executive and legislative malfeasance, and to what degree has it legitimately extended judicial power to regulate the manner in which coordinate branches discharge their constitutionally mandated decision-making power and other constitutional obligations? Even assuming that the expansion of judicial powers are necessary and relatively benign, are they in fact sufficient to ensure that the elected branches of government are capable of running the country in manner that actually serves the people who placed them in high office.
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