He Obligations on Government and Society in our Constitutional State to Respect and Support Independent Constitutional Structures

Lwh Ackermann

doi:10.4314/pelj.v3i1.43494

Abstract

he Obligations on Government and Society in our Constitutional State to Respect and Support Independent Constitutional Structures

Highlights

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 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

Summary

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. 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. An invariable consequence of constitutionalism is the tension between the will of the majority, and its representatives, on the one hand, and the normative control of the Constitution, exercised through the courts and other institutions, on the other This tension, one might even call it a paradox, cannot ever be completely or permanently resolved, an inevitability which is, as yet, inadequately appreciated and I will touch on it later in this paper

The Need for Independent Institutions

Substantive Independence of these Institutions

Where These Institutions Need Particular Support

The Paradox of Judicial Review and Appropriate Checks and Balances