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Published: Fri, 02 Feb 2018
Democracy and judicial review discussion
The following essay will discuss the different forms of democracy, explore theories of judicial review and look at cases which address the question of the separation of powers so as to determine in light of the quote above that judicial review is in fact democratic.
The crucial concept of democracy is referred to in several places in the Constitution. Its meaning in the Constitution will depend on the circumstance. Although there may be some disagreement about the contemporary meaning of the word “Democracy”, the Constitution employs it in three ways: representative democracy, participatory democracy and direct democracy. 
Direct democracy can be defined as a system of government in which major decisions are taken by the members of the political community themselves, without mediation by elected representatives.  In modern times it has proved very impractical form of democracy and has served mainly as a normative ideal. The fundamental difficulty is the sheer complexity of implementing such collective decision making in modern state.  However, the ideal of direct democracy survives in a subsidiary form in many modern constitutions such as in the right to freedom of assembly, referenda and the push towards greater citizen participation in local government.  In South Africa direct democracy, is protected and facilitated by section 17 of the Constitution which deals with the right to assembly, demonstration, picket and petition.  This right allows people to communicate directly with the authorities and the public in a meaningful manner. Direct democracy is also concerned with, sections 84(2)(g) and 127 of the Constitution respectively, and makes provision for the president and the premier of a province to hold national and provincial referenda. The latter are a manifestation of direct democracy. 
All modern democracies are essentially representative democracies in which elected representatives take collective decisions on behalf of citizens and citizens are empowered to exert control over their elected representatives though specified institutions (such as universal adult suffrage, regular elections, the right to free political participation and freedom of the press).  Under the banner of representative democracy have emerged a number of contemporary accounts of democracy including pluralist, participatory, deliberative and, in recent times, constitutional democracy.  The Constitution as a whole is designed to guarantee, facilitate and preserve representative democracy. This is effected through providing institutions which empower the people to govern themselves through their duly elected representatives.  The role and importance of this form of democracy was acknowledged in De Lille v Speaker of the National Assembly. The court held that the suspension of Ms Patricia De Lille from the assembly as a punitive measure, besides violating the applicant’s right to freedom of expression, was “not consistent with the requirements of representative democracy. 
Participatory democracy is concerned with whether, and if so how, citizens should be given the right to participate in decision making, notwithstanding the fact that the basic form of political organization is, and is likely to remain, representative democracy.  Participatory democracy is an attempt to re-inject elements of direct democracy into modern systems of representative democracy. This model under representative democracy does not require a large politically active citizenship as it can function by simply providing the means for citizen participation which will be used by the electorate when political decision are going to affect their lives individually.  Section 72 (1) (a) of the Constitution provides for participatory democracy in South Africa’s representative democracy by requiring public involvement in legislation. 
Constitutional democracy is a term used to connote a political system in which the people’s power to make collective decisions is limited by a written constitution.  The power to decide whether the people, acting through the political organs, have deviated from the terms of the constitution is vested with the judiciary who exercise this power (judicial review) on the authority of a supreme bill of rights.  Ginsburg contends that although judicial review amounts to a limitation of democracy it is a necessary condition for the spread of at least some kind of democracy.  He goes on to argue that the institution of judicial review provides insurance to potential electoral losers and can thus persuade them to commit to the democratic process. The emergence of constitutional democracy and the expansion of judicial power is a recent world phenomenon having occurred over the past 30 years. 
In South Africa as not to afford that all governmental power is under one roof we work under a trias politica principal known as the separation of powers. Under this principal governmental power is divided into three branches namely the legislature, the executive and the judiciary. 
The system of democracy, which functions by electing individuals for a considerable duration and passing periodic judgement on their performance, requires that citizens trust their representatives to govern in an ethical fashion for the benefit of the people.  As history shows us, citizens from all countries, but particularly South Africa have put too much trust in their elected officials whom have not governed for the benefit of the people but for the gain of a select few. This begs the question, who/whom should decide “what is for the benefit of the people”? In South Africa it has been democratically decided that our constitution at the end of the day decides this matter. However, the constitution needs an enforcer, and that is the judiciary, under judicial review.
Judicial checks and balances are often seen as crucial guarantees of freedom. There are two ways in which the judiciary provides such checks and balances: judicial independence and judicial review. 
There are at least two theories which purport to justify judicial review. The first type Majoritarianism (often also called majority rule) is a political theory which asserts that a majority of the population is entitled to a certain degree of dominance in society, and has the right to make decisions that affect the society.  Under a majoritarian political structure the majority has a single restriction: it is not allowed to exclude any minority from future participation in the democratic process. 
Majoritarian theories of judicial review enforce the democratic will of the people. Therefore, enforcing limitations on the power of the legislature by establishing a system of judicial review should not be understood as imposing limitations on the power of the people; instead enforcing these limitations simply facilitates or enhances participation by providing mechanisms for a dependable carrying out of the will of the people.  Majoritarian theories justify judicial review by demonstrating that judicial review is ultimately a mechanism for protecting and realising majoritarianism rather than undermining it. 
The principal of Majortarianism can be illustrated in the case of New National Party. The decision was concerned with the right to vote and the issue was whether the statutory requirement, imposed nine months before the 1999 general election, that voters be in possession of a bar-coded identity document to vote was unconstitutional, given the fact that a substantial number of voters, primarily from rural areas, were not in possession of bar-coded identity documents and the applicant’s contention that the relevant government agency lacked the capacity or ability to issue the correct documentation to these people timelessly.
Yacoob J’s judgment, for the majority directly stated “Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of parliament. This is fundamental to the doctrine of separation of powers and to the role of the courts in a democratic society. Courts do not review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is not rationally connected to a legitimate governmental purpose. In such circumstances, review is competent because the legislation is arbitrary. Arbitrariness is inconsistent with the rule of law which is a core value of the Constitution.” 
Therefore, according to Yaccob J there must be a rational purpose, a legitimate reason why government requires a person to have a bar-coded identify document. For Yacoob J, that was that the document contains the photograph of the holder, the holder’s name and particulars from which the age of the person to whom it was issued can be readily established.  The bar- code on the document facilitates quick, easy and reliable verification of the fact that the name of the person has been entered on the population register and also prevents electoral fraud. 
Yacoob J rightly noted that any system regulating voting has the outcome that some people will fail to comply with its requirements and so will be prevented from voting. Accordingly, such a scheme is not irrational simply because certain people who do not meet its requirements are now not allowed to vote. The test, according to Yacoob J, was whether parliament had ensured that people eligible to vote could vote if they took reasonable steps to do so. 
This would mean that yes, a very small minority could potentially lose their right to vote, but it can be convincingly argued that the government’s proposed electoral arrangements are more democratic than the alternative since they provide greater safeguards for the election, ensuring that the voting will be orderly and the results valid, and that the exclusion of a certain number of voters to facilitate this is a justified trade-off. 
Therefore, we can deduce from New National Party that even though there is no direct reference in the court’s decision. That without the court knowing, it applied the theory of majortarianism and representative democracy in its decision to up hold the separation of powers. It thus, ruled that the electoral law had to be made by Parliament and not the Commission, and there was nothing in the Electoral Act which detracted from the independence of the Commission. 
The second theory which embraces judicial review is the anti-majoritarism theory which in contrast, to majoritarian theories holds that judicial review is not a means to protect democracy directly but a means of protecting other important goals.  One of the most influential anti-majoritarian theories is the moral rights justification a theory which is founded on the belief that that there are basic rights and freedoms which should be protected irrespective of the preferences or will of the democratic majority. 
People tend to exaggerate the tension between democracy and individual rights. Democracy comes with its own internal morality; this requires constitutional protection of individual rights.  Properly understood democracy is not opposed to rights, it protects rights, thus constraining what majorities are able to do to individuals.  Judicial review exists to protect minorities against the oppression of the majority and judges should not defer to the will of the legislature, but must instead interpret constitutional rights according to the demands of precedent and integrity. 
In Minster of Health v Treatment Action Campaign, the government, in responses to the HIV pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified nevirapine as its drug of choice for this purpose.  The programme imposed restrictions on the availability of nevirapine in the public health sector. This is where the first of two main issues in the case arose. The applicants contended that these restrictions are unreasonable when measured against the Constitution, which commands the state and all its organs to give effect to the rights guaranteed by the Bill of Rights.
The second issue that arises is whether government is constitutionally obligated to be ordered immediately to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country. 
Regarding the separations of powers the court had the following to say. The primary duty of courts is to the Constitution and the law, which they must apply fairly and without fear or discrimination. The Constitution requires the state to respect, protect, promote, and carry out the rights in the Bill of Rights.  Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations.  If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. If by saying that the state has not given effect to it constitutional obligations; that constitute an intrusion into the domain of the executive that is an intrusion mandated by the Constitution itself. 
In its finding the court also applied its decision in August and Another v Electoral Commission and Others where the Court, in order to afford prisoners the right to vote, directed the Electoral Commission to alter its election policy, planning and regulations, with marked cost implications.  In ending the court added that where a breach of any right has taken place, including a socio-economic right a court is under a duty to ensure that effective relief is granted. 
By looking at the judgment above on the separation of powers in Minster of Health v Treatment Action Campaign it is with great certainty that we can deduce that the court applied the theory rights justification (anti-majoritarism) and the principal of constitutional democracy. Therefore, judicial review not only protects specific right but also the minority.
The final case we shall look at is Doctors for Life International v Speaker of the National Assembly and Others, where Doctors for Life International argued that Parliament failed to fulfil its constitutional obligation to facilitate public involvement when it passed four Bills, all of which related to health issues. These Bills are: the Sterilisation Amendment Bill; the Traditional Health Practitioners Bill; the Choice on Termination of Pregnancy Amendment Bill; and the Dental Technicians Amendment Bill.
This case concerns an important question relating to the role of the public in the law-making process. This issue lies at the heart of our constitutional democracy. Regarding the separation of powers we shall look at two questions that the court focused on. The first question looked at whether the nature and scope of the constitutional obligation of a legislative organ of state to facilitate public involvement in the law-making process.  The second question concerned the extent to which this Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement in law-making processes. 
With regard to the first question the court had the following to say: The duty to facilitate public involvement in the legislative process under our Constitution must therefore be understood as a manifestation of the international law of the right to political participation.  Public involvement in the legislative and other processes of legislatures of our country is a more specific form of political participation therefore, the Constitutional Assembly, in framing our Constitution, was not content only with the right to vote as an
expression of the right to political participation.  It opted for a more expansive role of the public in the conduct of public affairs by placing a higher value on public participation in the law-making process and this is reflected in the very nature of our constitutional democracy. 
When tackling the second issue the court came up with the following argument
“The purpose of giving the Court exclusive jurisdiction to decide issues that have important political consequences is to preserve the comity between the judicial branch of government and the other branches of government by ensuring that only the highest court in constitutional matters intrudes into the domain of the other branches of government. And thus while vesting in the judiciary the power to declare statutes and the conduct of the highest organs of state inconsistent with the Constitution and thus invalid, the Constitution “entrusts to this Court the duty of supervising the exercise of this power and requires it to consider every case in which an order of invalidity has been made, to decide whether or not this has been correctly done.” 
It can be deduced from the questions answered above that where protection of democracy is concerned the court will use the power given to it to enforce democracy even if that means going over the head of either the legislator or the executive. By the court enforcing participatory democracy in Doctors for Life International v Speaker of the National Assembly and Others it can thus be argued that judicial review by its very nature must be democratic.
In ending I quote directly from Patrick Lenta’s article on judicial review “It is difficult to reflect upon centuries of judicial enforcement of slavery, the upholding of racist practices, the subordination of women and the oppression of homosexuals, without acknowledging that courts have been at least as poor as legislators in protecting rights.” 
In light of the above quote, as a country we have gone through tremendous reform over the past twenty years, in both our courts and the various legislators. When looking at judicial review and the separation of powers I note a constitutional court not just protecting the majority but also the minority. At times it protects specific rights and at times it makes the wrong decision. However, when it makes a decision with reference to the separation of powers it does so in accordance with the constitution taking into account all the relevant provisions including the different forms of democracy. Therefore, nothing is undemocratic about judicial review.
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