By questioning the status of the Constitutional Court, politicians have done great harm.

According to the constitution, courts must apply the law impartially and without fear or favour. Some, unhappy with certain decisions but ignoring the reasons given for them, question whether judges of the Constitutional Court have discharged this duty. In recent times the judges have been called counter-revolutionaries and subjected to other abuse. It has even been suggested that the status of the Constitutional Court should be reviewed. This may not be entirely unexpected at times of political tension such as we have experienced in recent years, but the harm it does to one of the most important institutions of our constitution is great.

I was privileged to preside over the Constitutional Court from its inception until I retired in 2005. I can state unequivocally that the judges took their constitutional duty seriously Issues, often complex and difficult, were debated at length before a final decision was taken. The debates focused on the legal principles to be applied to the case under consideration, and not on the popularity or political correctness of the outcome. On no occasion throughout the nearly 11 years that I presided over that court did I ever hear or think that one of its judges was allowing personal considerations to interfere with his or her judicial duties. I have no reason to believe that this has changed since my retirement. On the contrary knowing its judges as I do, I would be astounded if that were the case.

Our constitution states: "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and obligations imposed by it must be fulfilled." This provision is of such importance that, together with the rule of law, it is declared in the first section of the constitution to be one of the founding values that provide the basic structure of the constitution and, according to Section 74 of the constitution, can`t be amended without the support of at least 75 percent of the members of the National Assembly and at least six provinces.

The independence of the judiciary is a component of the rule of law. The constitution recognises this by providing that the judicial authority of the Republic is vested in the courts, which are to be independent and subject only to the constitution and the law. To protect the independence of the courts, the constitution stipulates that organs of state must assist and protect the courts to ensure their independence, and no person or organ of state may interfere with the functioning of the courts. Any attempt to interfere with the functioning of the courts would be unconstitutional.

Courts function openly and transparently and give detailed reasons for their decisions: cases are heard and issues debated in open court to which the public has access, unless there are matters that require such access to be denied. This happens only rarely, as for instance where the interests of a child, or matters of state security, require this to be done.

According to the constitution, an order or decision of a court binds all persons to whom and organs of state to which it applies. An organ of state includes any department of state or person exercising a public power or performing a public function in terms of any legislation. That includes the president, the executive and the legislature, all of whom are bound by the constitution and are required to exercise their powers in accordance with its provisions. The binding force of decisions of the Constitutional Court has always been respected by the president and other organs of state, even when decisions have gone against them. This is important, for if the government does not respect the courts and obey the law, it can`t expect or require others to do so.

As is the case in all democracies, there is a hierarchy of courts, with provision for appeals to be noted to and be determined by higher courts. In South Africa, constitutional matters are heard at first instance in a high court, from whose decisions an appeal lies to the Supreme Court of Appeal and from there, with leave of the court, to the Constitutional Court, which is the highest court in such matters.

There has to be finality in disputes that come before the courts. The Constitutional Court, as the highest court in all constitutional matters, makes the final decision on these matters, including whether an Act of parliament, a provincial Act, or conduct of the president is constitutional.

The chief justice, as head of the judiciary, has important ceremonial, administrative and related responsibilities, but is not the "ultimate authority" in such matters. There are 11 judges of the Constitutional Court, all of whom, unless ill or absent, hear each case that comes before the court, and participate in the decision-making process. Where the judges are not unanimous, more than one judgment may be given. In such cases, the views of the majority prevail. The chief justice has an equal vote with the other 10 judges in decisions and in particular cases may be, and sometimes is, one of the dissenting judges.

The views of judges on complex constitutional matters may differ. The appeal process allows arguments to be aired in different courts, mistakes to be exposed and corrected, and the Constitutional Court itself, where 11 judges consider the arguments and issues, to have the benefit of the views of other courts before deciding the matter as the court of last instance. That power is vested in it by the constitution and is not one it has arrogated unto itself. It can`t be changed without changing the basic structure of the constitution itself, an unthinkable proposition that to the best of my knowledge no political party asserts or aspires to do.

• Arthur Chashalson is the former chief justice of the Constitutional Court