The Question of the Return to Parliamentary Sovereignty in South Africa: A Comparative Perspective
Abstract
South Africa’s constitutional framework is founded on the principle of constitutional supremacy, deliberately chosen to prevent the perceived abuse that parliamentary sovereignty enabled during apartheid. However, current debates on judicial power raise the legal question of whether courts have exceeded their interpretive mandate by effectively creating law. The central issue is whether a return to parliamentary sovereignty would advance democratic responsiveness or undermine constitutionalism. This article considers three questions: (i) Can judges legitimately exercise law-making authority over Parliament, and what is the role of the Separation of Powers, Checks and Balances? (ii) To what extent does judicial overreach contribute to the weakening of parliamentary oversight in a dominant-party state? and (iii) How does South Africa’s experience compare with other jurisdictions such as the United Kingdom, Finland, and Israel in this regard? It is argued that unchecked parliamentary sovereignty poses grave risks to democracy, while judicial overreach equally threatens constitutional legitimacy. The study will contribute to understanding the legal implications of a potential return to parliamentary sovereignty in South Africa, particularly concerning judicial law-making, parliamentary authority, and the separation of powers.
South Africa’s constitutional framework is founded on the principle of constitutional supremacy, deliberately chosen to prevent the perceived abuse that parliamentary sovereignty enabled during apartheid. However, current debates on judicial power raise the legal question of whether courts have exceeded their interpretive mandate by effectively creating law. The central issue is whether a return to parliamentary sovereignty would advance democratic responsiveness or undermine constitutionalism. This article considers three questions: (i) Can judges legitimately exercise law-making authority over Parliament, and what is the role of the Separation of Powers, Checks and Balances? (ii) To what extent does judicial overreach contribute to the weakening of parliamentary oversight in a dominant-party state? and (iii) How does South Africa’s experience compare with other jurisdictions such as the United Kingdom, Finland, and Israel in this regard? It is argued that unchecked parliamentary sovereignty poses grave risks to democracy, while judicial overreach equally threatens constitutional legitimacy. The study will contribute to understanding the legal implications of a potential return to parliamentary sovereignty in South Africa, particularly concerning judicial law-making, parliamentary authority, and the separation of powers.
Keywords: parliamentary sovereignty, constitutional supremacy, judicial law-making, separation of powers, South Africa.