The Constitution Flashcards
Define the Constitution
A foundational law that sets out all the powers of the state. The rules to which the country is governed are set out and it is a special type of law that contains the most important rules of the government and society. It also establishes who holds power and how such power should be exercised.
Why is it an important source of law?
It is the basis from which the state acquires its law making authority.
What is the narrow sense?
The Constitution is a written document setting out all the powers and functions of the various arms of government and establishing the sort of legal relationship the government has with its people.
What is the broad sense?
The constitution is the entire system of government, including all the rules, conventions and customs that govern it.
What is is a flexible constitution?
A constitution that can easily be amended
What is an inflexible constitution?
A constitution that is difficult to change
What are examples of procedures or mechanisms that make an amendment more difficult?
Special majorities or referenda
What is a unitary level of government?
One central government for the whole state. The powers of government are centralised.
What is a federal level of government?
The national (federal) and provincial levels of government co-exist.
Legislature on both the federal and provincial level.
Constitution will stipulate which competences (legal authority) may be executed at which level.
Each province has its own executive authority (cabinet) responsible for the province
federal executive authority executes the statutes for the whole country.
A high court binds the provinces.
What is a subordinate constitution?
Legislature retains competence to promulgate any new statute or to amend legislation.
Legislature can amend the constitution on its own and thus the constitution is subordinate
Parliament is therefore sovereign or supreme.
What is a Sovereign constitution?
Constitution may on the other hand be the highest source of authority and thus is sovereign. all statutes and executive actions have to comply with he constitution
What is parliamentary Sovereignty?
It allows the lawmaking arm of the government to make or unmake any laws, regardless of wether they are just or unjust.
It subordinates peoples human rights to the power to make laws.
Courts only have limited testing powers or review. Can only strike down acts of parliament as invalid on procedural grounds only.
What is constitutional supremacy?
Constitution is the supreme law of the land, and any law that is in violation of the Constitution’s provisions will be viewed as unconstitutional and therefore invalid. This is made clear in section 2 of the 1996 constitution. section 8 reinforces section 2 by stating that the bill of rights applies to all all law and binds ‘the legislature, the executive, the judiciary and all organs of the state’
