The Balance Between Robust Constitutionalism and the Democratic Process: Public Lecture by Deputy Chief Justice Dikgang Moseneke

Level 21, Law Courts Building, 184 Phillip Street
UNSW Law, Gilbert + Tobin Centre of Public Law and Rule of Law Institute of Australia
6.00 pm
Wed, 2016-06-15


The Gilbert + Tobin Centre of Public Law, UNSW Law and the Rule of Law Institute of Australia were proud to present a Public Lecture by the Honourable Dikgang Moseneke, the recently retired Deputy Chief Justice of the Republic of South Africa.


[Photo: Courtesy Anna Kucera]

DCJ Moseneke commenced by reflecting on the centrality of a democratic ideal to the anti-apartheid movement: the notion that all people, irrespective of ethnicity, should be vested with an equal right to vote for a representative and accountable national government. He observed, however, that unqualified majoritarian democracy is prone to abuse of the very principles needed to sustain free societies. He cited the experiences of several post-colonial societies, where parliamentary supremacy has taken root without corresponding checks on government power, to illustrate the dissonance between unfettered majority rule and the public interest. DCJ Moseneke thus advocated a model of constitutional supremacy which empowers courts to enforce normative constraints upon elected governments.

Reflecting on the South African experience post-apartheid, he suggested that democracy and constitutional supremacy were not incompatible. Rather, the Constitution has a democratic foundation as a pre-commitment against repeating abuses of the past, facilitates broad democratic participation and representation through the enforcement of rights, and fosters a range of government and non-governmental institutions that work to align public policy with the public interest. Focusing on the Constitutional Court, he noted its accomplishments both in safeguarding individuals against majoritarian excess (for example, in invalidating capital punishment), and in effecting realisation of broad societal values (for example, in enforcing access to anti-retroviral medication for pregnant mothers infected with HIV).


[Photo: Courtesy Anna Kucera]

The event concluded with DCJ Moseneke responding to questions from the audience. Asked to reflect on the current condition of South African society in light of the ideals of the anti-apartheid movement, he urged a focus on fundamental values as a beacon, so that departures from those values continue to be called out and brought into sharp relief. He praised the engagement of South African youth, the country’s strong civil society, and strong institutions such as the Public Protector, Human Rights Commission, and courts. He concluded that law is not a panacea for every problem, noting in particular the challenges facing South Africa that arise from corruption, violence, and severe economic inequality. The ideals embodied in South Africa’s revolution nevertheless continue to signal a way forward, and the Constitution is an enduring statement of those ideals and means of giving them reality.

[Photo: Courtesy Anna Kucera]

The flyer for the event is available here.

This event was also supported by our interstate partners, the Supreme Court Library Queensland and Melbourne Law School.   

A copy of the lecture by Justice Moseneke is available here.