n Tydskrif vir die Suid-Afrikaanse Reg - Pride and prejudice in the judiciary - judicial independence and the Belgian high council of justice

Volume 2010, Issue 2
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



As the Dutch constitutional scholar Koopmans has observed, one of the most prominent characteristics of modern constitutionalism is that it is developing into what he calls a bipolar model: the idea of the , which has been determinative of the institutional and constitutional structure of so many democratic states, is changing into a distinction between the judiciary on the one hand and the legislative and executive bodies on the other. The might today thus better be described as a . In Belgium, for example, this might be due to, among other things, the fact that the ruling government (the executive power) is effectively dependent on the support of the political majority in parliament (the legislative power). Of course, this parliamentary majority will not be inclined to drop the curtain on ''its'' government. In practice, therefore, the legislative and executive powers are intimately connected, and the traditional supervisory function of parliament is less well-developed than constitutional theory would have it. As a result, the main characteristic that in this bipolar model distinguishes the courts (the judiciary) from the legislative and executive bodies is its independence from the political sphere.

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