Constitutional Democracy

A few days ago, the constitutional court confirmed that certain part of the the marriage laws in South Africa are unconstitutional and instructed parliament to bring applicable laws in line with the constitution. This is what happens in a constitutional democracy - when laws are found to be inconsistent with the constitution, parliament get told to change it. Since then, pro- and anti-same-sex marriage groups have said many things, some of which point to the apparent ignorance of how the system is supposed to work.

On the pro side, a lot of people are questioning why the court can not make such marriages legal straight away. I wonder if people understand the concept of separation of powers at all. In principle, parliament is the only body that can make laws - the court enforces them. The laws themself would have to conform to certain guidelines and ideal (the constitution govern this). This is another function of the judiciary - if a law is found to be inconsistent with this document, parliament should be the only body that can change it. Hence the court can not change the law, but can ask parliament too. On the other hand, it is NOT parliament's role to now decide on the validity of this finding. I really hope that parliament really considers why the laws were found to be unconstitutional and make appropriate changes. I hope the automatic enforcement does not have to play a role - having the judiciary changing laws is not a good sign.

On the anti side, it is clear to me a lot of people are not too happy. A lot of people are saying that it is not what the majority wanted - I question this. It was the majority who approved of the constitution which contains antidiscriminatory clauses - apparently one of a few in the world that prevents discriminatory laws against sexual orientation to be passed. It is clear to me that people should be aiming at changing this part of the constitution if they are not happy. The court simply found that the relavant laws went against this part of the constitution. Are these people saying that they want to to be able to discriminate against others on the basis of their sexual orientation. If the majority of the people really want this then it shouldnt be too difficult to change the constitution - I believe you only need 2/3 yes votes in parliament and 7/9 provinces to agree in the council of provinces to change the constitution.

All the legal stuff aside, what really concerns me is the lack of knowledge about how our constitutional democracy is supposed to work. The so-called community leaders lack the basic knowledge on the country's government system that it is so scary to think of how much others know. Yes democracy is majority rules, but most people forget the constitutional part. The constitution represents basically the citizen's ideals. One of its many function is to protect the minority. Without certain clause, the minority would be unprotected. For example, the poor could vote to take all the money from the rich, the landless could vote to take land from those who have them.

Furthermore, questioning the decision of the constitutional court means that society is at odds with its own predefined ideals. Clearly there is a much more important issue to be sorted. Were those ideals not actually ideal or have our ideals changed. If they have changed, why have they changed? Does the constitution needs to be change and why? If, however, we found that our ideals were not wrong - what does that say about us now? Are we just confused or ignorant?

I wish that our school system and the media would try to do a better job at educating people on how the system really works. How many people actually know what the constitution is for or the roles of the executive, parliament and the judiciary are. What about separation of powers? I'm not a journalist, but I wish someone should write up about this conflict between our ideals (as represented by the constitution) and the apparenty unpopular laws that get passed by parliament. It would be interesting to see how parliamentarians approach this decision. I hope I dont get another shock from their response.