Constitutional Law Concepts

Basic Concepts of Constitutional Law

Introduction

  • Fundamental concepts are crucial for understanding South Africa's constitutional law system.
  • Establishes a shared understanding of doctrines, concepts, and principles at the Constitution's core.
  • Considers the context in which the Constitution emerged and operates.
  • These doctrines, concepts, and principles are expressed in the Constitution's provisions.
  • Specific aspects of the Constitution are studied in light of these doctrines, concepts, and principles.
  • Focuses on constitutional developments post-democracy transition but includes colonial/apartheid periods for context.
  • Recognizes the influence of constitutional law and practices from other countries.

Constitutionalism

Understanding the Nature of Constitutionalism

  • Constitutionalism is challenging to define.
  • It conveys the idea of a government acting under a written constitution and being limited by it.
  • In the modern context, elected officials and judicial officers must act according to the law, with legitimacy derived from the constitution.
  • Constitutionalism addresses:
    • Establishing a government with sufficient power to realize shared purposes and implement elected government programs.
    • Structuring government and controlling power exercise to prevent oppression and abuse.
  • Key characteristics:
    • Identifies and establishes governance institutions like the legislature, executive, judiciary, and spheres of government.
    • Concerned with the formal/legal distribution of public power among institutions and their procedures.
    • Determines the nature/basis of relations between institutions and those they govern.
    • Envisages enacting binding rules for regulating the political community and its institutions.
    • Authorizes and imposes limits on public power exercise, ensuring it aligns with the constitution.
  • Constitutionalism structures and constrains state power.
    • Establishes governance institutions and allocates power for effective state governing.
    • Limits and disperses power among institutions to prevent abuse.
  • Achieving these ideals differs among political communities.
  • A political community's constitutionalism depends on its political and social history.
  • Factors include:
    • Explicit or implicit norms/values on which the constitution is based.
    • How power is structured and allocated.
    • How the constitution text has been interpreted and applied.
  • Different understandings and models have developed over centuries of constitutionalism evolution.

The Unique Nature of South African Constitutionalism

  • The political community's constitutionalism model depends partly on its political and social history.
  • South Africa's constitutionalism aims to remedy colonial and apartheid injustices.
  • The Constitution is more than a technical document; it sets out norms/values for governance.
  • Prescribes and limits state (and sometimes private) power exercise.
  • South African constitutionalism is prescriptive rather than simply descriptive.

Constitutionalism Understood Descriptively

  • Constitutionalism can be understood as a descriptive concept.
  • It provides a factual description of governance institutions and structures.
  • Focuses on explaining institutions, power distribution, relations, and limitations as in the constitution.
  • Does not identify normative values or evaluate the extent to which institutions protect those values.
  • Reduces constitutionalism to merely explaining a constitution’s structural and operational design.
  • Before democracy, South African constitutionalism was understood in this descriptive sense.
  • Similar to colonial territories, the constitution didn't establish representative government or equal rights for all.
  • This was a "hollow form" of constitutionalism, prioritizing form over substance.
Constitutionalism Approached Descriptively and Its Disregard for Substantive Justice
  • Formalism and disregard for substantive claims against injustice are shown in adopting a descriptive approach.
  • The Harris case illustrates this: appellants challenged the Separate Representation of Voters Act (which removed coloured voters) as unconstitutional.
  • The court focused on the 1910 Union Constitution's formal provisions and procedural requirements.
  • It upheld the challenge based on procedural grounds (the Act was passed incorrectly).
  • The Court did not examine the substantive purpose of protecting coloured voters or the racist effects of the amendment.
  • Descriptive constitutionalism doesn't examine the substance of decisions or conduct of constitutional powers.

Constitutionalism Understood Prescriptively

  • The notion of constitutionalism has evolved into a more ideologically infused concept.
  • Constitutionalism prescribes the norms and values that define constitutional government:
    • Separation of powers.
    • Rule of law.
    • Democratic self-government.
    • Protection of human rights.
    • Independent judiciary.
  • Considers different models of constitutionalism that influenced South Africa’s constitutional development.

Constitutionalism in South Africa: A Brief Overview

  • Focuses on the colonial history of constitutionalism in South Africa.
  • The models considered had the most significant impact on South Africa.
The Era of the Dominance of the Westminster Constitutional Model
  • The 1910 Union Constitution established a colonial government tied to the British monarchy.
  • Adopted a Westminster form of government without a bill of rights, limiting Parliament's power.
  • The Westminster model originated in Britain and evolved over time.
  • Britain doesn't have a written constitution; it has conventions and ordinary laws regulating state power.
  • These laws collectively comprise the British constitution.
  • The Westminster model was adopted, particularly in former British colonies like pre-democratic South Africa.
  • Parliament lies at the heart of the Westminster model.
  • In Britain, Parliament comprises the House of Commons (elected) and the House of Lords (unelected).
  • Parliament exercises sovereign law-making powers; its laws can't be undone by any other body except itself.
  • Parliamentary sovereignty or supremacy is a key feature.
  • Every law, including those protecting human rights, can be altered by parliamentary action.
  • Parliament has the power to make any law on any subject.
  • The UK's accession to the European Union subjected Parliament to EU laws, but Britain's withdrawal means these limitations no longer apply.
  • Parliamentary sovereignty denotes the absence of legal limitations, not the absence of all limitations.
  • Parliament is bound to respect the rule of law.
  • The head of state (monarch) and head of government (Prime Minister) are formally separated.
  • After an election, the monarch asks the majority party leader to form a government.
  • The government is formed and governs in the monarch’s name as long as it retains the support of the House of Commons.
  • Political parties play a key role in forming and retaining a government.
  • The executive (Prime Minister and Cabinet) is appointed from and continues to be members of Parliament.
  • There is no strict separation of powers between the legislature and executive.
  • The Prime Minister engages in regular question-and-answer sessions in the House of Commons.
  • Parliament exercises oversight over the executive.
  • Members of the executive must account to Parliament on exercising their powers and conducting government business continuously.
  • Courts do not have the power to decide on the constitutionality of legislation passed by Parliament.
  • Their powers are limited to reviewing administrative decisions.
  • This limitation makes courts institutionally less powerful than the legislature.
  • Courts influence how the law is interpreted and applied.
  • In 1961, South Africa cut ties with the British Commonwealth and adopted a republican Constitution.
  • Institutionally, little changed, but the head of state was no longer the British monarch, and a state president was created.
  • The Republic of South Africa Constitution Act 32 of 1961 explicitly provided for parliamentary sovereignty.
  • Section 59 of the 1961 Constitution stated that Parliament was the sovereign legislative authority and no court could inquire into the validity of its Acts.
  • The National Party (NP) government used parliamentary supremacy to secure political power for the white minority and to insulate discriminatory laws.
  • The Westminster model is not inherently flawed; it has strengths and weaknesses.
  • It is not directly responsible for the system of racial or gender exclusion and apartheid.
  • Problems can be traced back to political culture and parties, not necessarily with constitutional structures.
  • The Westminster system in South Africa was not wholly adopted during constitutional negotiations in the early 1990s.
  • Aspects of the Westminster system found their way into the South African Constitution in amended form.
The Era of Constitutional Supremacy
  • The most definitive feature of South Africa’s post-apartheid constitutional system.
  • The supremacy of the Constitution is a founding value and a binding, enforceable rule.
  • Section 1(c) of the Constitution states that South Africa is founded on the supremacy of the Constitution and the rule of law.
  • Section 2 states that the Constitution is the supreme law, and any inconsistent law or conduct is invalid.
  • Adopting constitutional supremacy has far-reaching implications for the operation of the democratic state.
  • There is a question of whether there is a difference between constitutional supremacy as a value (section 1) and as a rule (section 2).
  • Courts have made little of the difference between the two concepts.
  • The lack of judicial consideration of section 2 is due to the clarity of the rule it states.
  • Section 237 demands that all constitutional obligations must be performed diligently and without delay.
  • Amending section 1 requires a vote of 75% of the National Assembly members and support from six provincial delegations.
  • Amending section 2 requires a two-thirds vote of the National Assembly members.
  • Parliament may not be able to amend section 2 without infringing on the values set out in section 1.
  • Constitutional supremacy renders the Constitution justiciable.
  • Any law/conduct can be tested against the Constitution and declared invalid if it fails to comply.
  • Judicial review is an important incidence of constitutional supremacy, securing rights.
  • Chaskalson P affirmed the Constitution as the supreme law in the Pharmaceutical Manufacturers Association case.
  • The Constitution is the founding law of the Republic, uniting the South African legal system.
  • Michelman explained that the Constitution has three special virtues: pervasiveness, basic-law status, and norm-trumping force.
  • Constitutional supremacy names the value of legal-systemic harmony in the service of the vision of the good society.
  • The unity of the legal system serves transformation by, under, and according to law.
  • All aspects of South African law must now pursue justice.
  • Common law and customary law are not immune from constitutional values.
  • Constitutional supremacy alters the development of all forms of law in South Africa.
  • This aspect is not always appreciated by lawyers and judges.
A Value-Based Constitutional System
  • Section 1 of the Constitution affirms that the South African constitutional model aspires to higher values than majoritarian democracy.
  • It sets out the foundational values:
    • Human dignity, equality, and human rights and freedoms.
    • Non-racialism and non-sexism.
    • Supremacy of the Constitution and the rule of law.
    • Universal adult suffrage, national common voters roll, regular elections, and a multi-party system.
  • Section 1 reflects a break from the past and establishes foundations for a new society.
  • The law derives its force from the Constitution and its development is animated by these values.
  • Section 1 is an entrenched provision that can only be amended subject to special procedures and majorities.
Amending the Founding Provisions of the Constitution
  • The founding provisions may be amended with 75% of the NA members and six provinces in the NCOP vote.
  • Parliament could alter the provision that states that the Constitution (and not Parliament) is supreme.
  • Parliament would be able to abolish the rule of law.
  • Critics argue that section 1 should be unchangeable.
  • Others argue that future generations should not be held to ransom by the drafters of the 1996 Constitution.
  • This depends on one's commitment to the values enshrined in section 1.
Unarticulated Values
  • There are also unarticulated values embodied in the Constitution.
  • The Constitution expresses ideals to which society deems worthy to aspire.
  • Courts have asserted that the democratic constitutional order has established an objective normative value system.
Co-Operative ‘Federalism’
  • The Constitution provides for a quasi-federal division of power across three levels or spheres of government: national, provincial, and local.
  • This system differs from a traditional federal system.
  • The model adopted is that of 'co-operative federalism' or co-operative government.
  • The three spheres of government are distinct but expected to work together.
  • The Constitution envisions a co-operative relationship between the three levels of government that entails sharing responsibilities.
  • Co-operation is not always easy, especially with different political parties governing different entities.
  • Chapter 3 is important for the smooth running of the country.
Critique of Constitutional Supremacy
  • Constitutional supremacy shifted power from the legislature and the executive to the judiciary.
  • The collapse of the Soviet Union facilitated negotiations for a new South Africa.
  • The regime gave up elements of political power to the black majority, immigrating substantial power away from the legislature and the executive.
  • Apartheid forces succeeded in retaining white domination under a black government.
  • The liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and made fatal concessions.
  • The Constitution reflects a great compromise tilted heavily in favor of forces against change.
  • A constitution can be either progressive or reactionary, depending on the balance of forces in the society it governs.

Separation of Powers

The Purpose and Principles of the Doctrine of Separation of Powers

  • Constitutional restrictions on public power exercise can be procedural and substantive.

  • Giving effect to these restrictions is achieved through a justiciable bill of rights and other values.

  • The exercise of public power can be restricted in a structural way.

  • Separation of powers is one of the most important mechanisms.

  • It seeks to limit the powers of each individual branch: the legislature, the executive, and the judiciary.

  • The doctrine is the basis for an institutional division of public power to limit abuse.

  • The South African Constitution makes no express mention of separation of powers.

  • Constitutional Principle VI in the interim Constitution required that the final Constitution incorporate a separation of powers.

  • The separation of powers must be seen as an integral component of South African constitutionalism.

  • It is concerned with establishing structural limits on the exercise of power.

  • Seeks to ensure that power is not concentrated in one institution or branch.

  • Distributes power between different branches of government which, individually, can be better held to account.

  • Seeks to limit the possibility of an overconcentration of power in any one branch.

  • Creates some level of exclusiveness or specialization of functions in each of the branches.

  • Beyond limiting governmental power by distributing it, the modern conception of separation of powers is associated with the protection of rights.

  • The institutional nature of the separation of powers can be seen as preventing the abuse of power through extra-constitutional conduct.

  • Four principles:

    • Trias politica: divides governmental power across the three branches.
    • Separation of functions: allocates distinct areas of responsibility and authority.
    • Separation of personnel: assigns specific persons to each branch.
    • Checks and balances: each branch is held accountable by other branches.

  • No constitutional system encompasses a full separation of governmental authority.

  • The division of power, functions, and personnel, differ extensively among constitutions that subscribe to the doctrine.

A Brief History of the Doctrine of Separation of Powers

  • The doctrine of separation of powers is said to have its origins in the political philosophy of the Enlightenment.
  • Traditional leaders were expected to consult with an advisory body or seek approval from the population.
  • The modern concept of separation of powers is said to have emerged as a model to explain the English constitutional model developed by John Locke.
  • Locke was concerned that absolute monarchic power should not be replaced by absolute parliamentary power.
  • Locke's writing wrestled with ways of countering the power-accumulating tendencies.
  • Locke never envisaged the separation of powers between the executive and the judiciary.
  • Charles Baron de Montesquieu devised the modern concept.
  • The concept envisaged the division of governmental power into the trias politica.
  • Development must be seen against a history of absolute monarchy.
  • Kings or queens were believed to rule by divine right, all powers located in the monarch.
  • Distributing and balancing power became self-evident to prevent overconcentration.
  • The ideas were regarded as revolutionary, seeking to disrupt the prevailing social order.
  • Initially conceived as a reaction to the absolute power of kings.
  • An over-accumulation of power remained at the core of the development.
  • Found its earliest expression in the US Constitution.

Separation of Powers: The South African Experience

Introduction
  • The interim Constitution required the final Constitution incorporate a system of separation of powers.
  • This Principle specified the purpose: uphold and safeguard democratic values.
  • The nature of the distribution of power between the three branches was not written.
  • There is no universal model of separation of powers.
  • Democratic systems impose restraints by one branch of government on another.
  • There is no separation that is absolute.
  • The Constitutional Court is reluctant to measure the South African model against the standards of other countries.
  • South Africa’s model must be interpreted and judged with our own historical experiences and political context in mind.
  • It is implicit in the Constitution and is of equal force as the express provision.
  • The manner in which governmental power is distributed between the legislative, the executive and the judicial branches implies it.
  • Other provisions support the implicit inclusion.
  • These include regulating function distribution, personnel identification, and the control framework of interactions between branches.
Does the legislature in South Africa, in fact, hold the executive accountable?
  • The Constitutional Court had to deal with arguments that the South African Constitution contravened the principle.
  • The executive are also members of legislatures.
  • In rejecting this criticism, the Constitutional Court noted that there is more than one model.
  • The importance of checks and balances was focused on.
  • The Constitutional Court's view is unclear and in practice may seem illusory.
  • Members of the majority party in the legislature are required to hold accountable the members of the executive who are also members.
  • Challenging the authority of party leaders makes it not easily done.
  • Legislature members are not individually elected, but there is an electoral system.
  • The Constitutional Court considers the need to challenge authority in United Democratic Movement and Others v Speaker of the National Assembly and Others.
  • Parliament members express dissatisfaction about the executive’s performance during elections.
  • The exercise of the power to determine the voting procedure must enhance the prospects of the purpose being served or advanced.
The legislature
  • A strict version requires creating a separate legislature with personnel empowered to exercise its powers independently.
  • Chapter 4 creates a slightly less strict separation.
  • The national legislative authority consists of the National Assembly (NA) and the National Council of Provinces (NCOP).
  • Chapter 4 determines that exercising legislative authority entails the power to make laws.
  • Parliament is constrained by the fact that it must act in accordance with the limits of the Constitution.
  • Legislate powers vest in NA and NCOP members.
  • The Constitution empowers members to regulate their own processes.
  • It confers parliamentary privileges and immunities for all speeches made in Parliament and its committees.
  • The executive must initiate and prepare legislation, introduce bills, and develop and implement policy.
  • The executive enjoys limited law-making powers and is empowered to make subordinate legislation.
  • There is an overlap in personnel between the legislature and the executive.
  • The connection can be seen as rooted in the Westminster tradition of parliamentary government.
  • The executive's involvement could promote efficiency and accountability, considering governing has become more complicated.
  • Members of Parliament rely on the executive to formulate policy and translate policies into draft legislation.
Does South Africa’s electoral system weaken the power of the legislature?
  • The electoral system requires that political parties compile electoral lists.
  • The leaders may have a decisive say in who appears on the lists.
  • Members of the majority party may be reluctant to hold the executive to account because they depend on the leadership of the parties.
  • Members of parliament may bend over backwards to implement legislation.
  • It weakens the system of checks and balances.
  • The legislature has declined in political influence in comparison to the executive which has burgeoned in size, influence over the legislature.
  • Leaders decide who is nominated; not changing the electoral system will not affect power.
  • The Constitutional Court has considered executive power to interfere with the law-making functions.
  • An Act of Parliament granted the President powers delegating him to amend the Local Government Transition Act.
  • There is some level of delegation of law-making power to the executive.
  • The delegation in question was unconstitutional.
  • Parliament could not delegate powers to make or amend a statute to the executive branch.
  • Parliament contravened the separation of powers principle.
The executive
  • Chapter 5 vests executive authority in the President, who is both head of State and the National Executive.
  • The executive is responsible for the development/implementation of policy/legislation as well as co-ordinating functions.
  • More generally, the executive must execute and implement law, policy, administration.
  • The President is duty-bound to uphold and defend the Constitution.
  • The President exercises executive authority together with the Cabinet.
  • The President has the power to appoint and dismiss members of the Cabinet.
  • He or she must select all but two members of the Cabinet from the NA.
  • Members of the Cabinet are accountable to Parliament.
  • Cabinet members must provide full and regular reports.
  • NA has the power to remove or recall the executive.
  • It can recall the Cabinet or only the Deputy President and Ministers by way of a vote of no confidence.
  • Permits the NA to remove the President by a two-thirds vote.
The judiciary
  • There is an absolute separation in personnel between the legislature/executive and judiciary.
  • Chapter 8 vests judicial authority in the courts, which establishes a hierarchy of courts.
  • Establishes the Constitutional Court as the apex court.
  • The primary function of the courts is the adjudication of legal disputes, including interpreting the Constitution.
  • The focus is on the courts’ constitutional jurisdiction and powers of judicial review.
  • Judicial review empowers courts to declare as constitutionally invalid any law or conduct contravening the Constitution.
  • The courts have power to check the exercise as well as any abuse of it.
  • The South African Constitution provisions for judicial review.
  • This includes power to declare law or conduct invalid to the extent it is inconsistent with it.
  • Detailed and regulated processes for the appointment of judges exist.
  • This involves three branches of government and other bodies through the Judicial Service Commission (JSC).
  • The reason to to include it is the need to secure the independence of the judiciary.
  • Judicial independence is a fundamental concept and is essential to the effective functioning of the separation of powers.
  • The Constitution demands that the courts be independent and subject only to the Constitution and the law.
  • It prohibits interfering with the functioning of the courts.
  • Places a positive duty on organs of state to assist and protect the courts.
  • These provisions seek to protect the institutional independence of the courts.
  • The other important element of judicial independence relates to the personal independence of judges who perform functions impartially.
  • Judges' security of tenure and salaries guarantee independence.
  • Judges may be removed where they suffer from incapacity or are found guilty of gross incompetence.
  • The JSC conducts an investigation and makes a finding.
  • The NA adopts a resolution to order the removal of the judge.
  • The President is obliged to effect the removal.
Checks and Balances
  • Legislature checks the executive.
  • Legislature checks the judiciary.
  • Executive checks the legislature.
  • Executive checks the judiciary.
  • Judiciary checks the legislature.
  • Judiciary checks the executive.

The Counter-Majoritarian Dilemma

  • In South Africa is one in which the constitution rather than Parliament is supreme and in which the judiciary is independent.
  • The judiciary is empowered to review a set aside that is made.
  • The judiciary wields enormous power even though its numbers are not democratically elected.
  • This raises conceptual practicality difficulties.
  • Raises important question that go to the heart of our understanding of the relationship between democracy with the separation of power.
  • If we accept legislation that requires the invalidation of law by the supreme court, the popular vote is against the current rulings this is supported by the majority.
  • There raise what is commonly refer to the counter majoritarian dilemma.
  • Is that the judicial review that is being practiced is taking democratically made decision that go against popular democratic
  • The counter majoritarian poses significant challenges with the United States.
  • The enduring controversies around judicial review relate to the extent of the power and the hands of the unelected government.
  • The concerns regarding the democratic curtailment in the separation of powers issues raised by judicial review.

Despite major arguments there those in support of judicial review are three responses

  • Some view judicial review has been a severe constraint.
  • Other still regard encroachments.
  • Yet others attempt to establish the world's of interpretive theory and judicial review legitimizing intervention in the manner.
  • While those debates have been conducted in the United States contact a quick context as an in light of the fact.
  • For the fact to have our constitution is an important to as it confirms it. Some democratic legitimacy of the process of review.

Constitutional assembly chose the system of judicial review thus bestowing.

  • The fact along to the to which that the acceptance as a legitimate feature has been in the South African community.
  • Particular context of how we ensure that that the courts preform judicial review in the manner that the promote the respective the majoritarian nature of democracy while at the same ensuring the transformative vision is enforced.
  • how does those how does society safeguard judge the power for there all society safeguard using there powerful positions to advance there own religions/ political beliefs.. public acceptance a court decision is to address the counter majoritarian issues
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  • Van der Walt and Botha have a distinct view on the counter-majoritarian difficulty and approach the matter from a theoretically more critical perspective:

  • They believe it irresolvable, can be tentatively addressed by admitting that there will always be a tension between the demand for democratic accountability on the one hand and the demand for judicial review on the other.

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The Rule of Law

Introduction

  • An elemental feature of South African constitutionalism is the principle of respect for the rule of law.
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Democracy

Introduction

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