Study Theme 9: Structure of Litigation Involving Constitutional Rights

Question 1

Formal Law

Answer 1

Formal law refers to those procedural aspects that must be complied with, to ensure the enforcement of rights.
– How we do things

Question 2

Substantive Law

Answer 2

The Substantive law refers to the content and scope of the rights that we seek to enforce
- what are my entitlements and how far do they extend

Question 3

What are the 3 stages of Constitutional Litigation:

Answer 3

1. Procedural Stage
2. Substantive Stage
3. Remedy Stage

Question 4

Procedural Stage:

Answer 4

• This lines out who can go to court
• It sets out who is bound by the duties set out in a particular right
• This is still the formal law so this would be determining jurisdiction, standing etc

Question 5

Substantive Stage:

Answer 5

• This sets out the scope and content of the right
• This is where the determination of whether the law or conduct infringed upon that right occurs

Question 6

Remedy Stage:

Answer 6

• Where there is an unjustifiable infringement of the right concerned can the court remedy this infringement – the section 36 limitation analysis occurs here whether the limitation is justifiable in an open and democratic society

Question 7

Section 36 of the Constitution

Answer 7

Limitation of rights

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

Question 8

Section 7 of the Constitution

Answer 8

State’s Duty

Question 9

Section 8 of the Constitution

Answer 9

Who is bound by the rights

Question 10

Section 37 of the Constitution

Answer 10

State of Emergency

Question 11

Section 38 of the Constitution

Answer 11

Standing

Question 12

Section 39 of the Constitution

Answer 12

Interpretation of rights