The Countermajoritarian Dilemma

In South African law, we have a separation of powers between the three branches of government. The Legislature makes the law, the Executive enforces the law, and the Judiciary decides the law. Above these three branches however is the Constitution, which is the supreme law and binds all three. An issue arises however in that whilst the Legislature and Executive are elected by the people, the Judiciary is appointed by the Judicial Service Commission and thus does not have a popular mandate. The Judiciary however has extensive power to set aside laws made by the elected representatives and acts of the Executive who are acting with a popular mandate. The countermajoritarian dilemma is essentially whether or not this undermines democracy as an unelected judiciary can essentially “trump” the democratically elected Legislature and Executive. As such, while the Legislature and Executive may be representing the will of the majority of the people, the Judiciary can still oppose them.

A prime example of the countermajoritarian dilemma is the case of S v Makwanyane which established that the death penalty is unconstitutional. Even though the death penalty was supported by the majority of the people of South Africa (and the Executive and the Legislature as their representatives), the Judiciary found it to be unconstitutional nevertheless and thus the death penalty was abolished. This is the crux of the countermajoritarian dilemma – going against what the majority wants. On the face of it, it seems like the opposite of democracy. But that is why do not refer to ourselves as just a democracy, but a constitutional democracy as the Constitution is supreme.

So how do we manage the countermajoritarian dilemma? By respecting the doctrine of separation of powers. Judges must be aware of the constraints set upon them by precedent, the Constitution, and other sources of law as this eases some of the tension. The countermajoritarian dilemma acknowledges the limits of judicial power – the judiciary cannot tell Parliament how to vote (for example the court cannot tell the National Assembly or National Council of Provinces to impeach the president even if the court has found the president’s conduct to be unconstitutional). Impeachment is a political process governed by section 89 of the Constitution that falls out of the ambit of the Judiciary. Ultimately, the Judiciary must just tread carefully so as to not undermine democracy by encroaching upon the tasks and functions of the Legislature or Executive.