The Separation of Powers Is Essential to Uphold the Integrity of the State

Cape Times (South Africa), July 11, 2011 | Go to article overview

The Separation of Powers Is Essential to Uphold the Integrity of the State


We are PLEASED that among the pertinent themes that will be discussed in this conference is judicial independence, which with the rule of law is interconnected with the notion of "separation of powers".

The concept of separation of powers as we know it today has ancient origin, and enjoyed pride of place even in the unity of the 13 states of America in 1788.

After the Civil War of the Americas, the triumph of the people was marked mostly in adopting a constitution based on the separation of the legislature, the executive and the judiciary. The constitution was regarded as supreme law.

The principle of precedence in the adjudication of cases before the judiciary was also adopted, to ensure consistency as one of the primary requirements for a just dispensation. This ensures that justice is dispensed without any fear or favour and that all enjoy equal status before the law.

Also important is the appointment of judicial officers, whose duty is to inspire the confidence of the people in the system.

It is an established principle that access to equal justice and the protection of human rights and civil liberties are dependent on the guarantee that judges are not only independent, but are also seen to be independent in decision-making.

Judicial independence and the rule of law are the pillars of democratic systems worldwide.

Article 10 of the Universal Declaration of Human Rights of 1948 affirms that all persons are entitled in full equality to a fair and public hearing by an independent and impartial tribunal.

This principle subsequently formed part of the Basic Principles on the Independence of the Judiciary, adopted by the UN General Assembly in 1985. These basic principles require states to guarantee the independence of the judiciary in their constitutions. Indeed, our constitution has adequate checks and balances to protect and safeguard the independence of the judiciary.

The appointment of judges in the different judicial offices has also been found to be in line with our model of separation of powers.

The functioning and role of the Judicial Service Commission in the appointment of judges and handling of complaints against judges are paramount.

Its diverse composition of representatives of the three arms of government and the legal profession provide the necessary balance between competing interests.

All these enhance not only our legal system, but our constitutional democracy as well. We have done truly done well in transforming our legal system over the past 17 years. …

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