Topic 1 Flashcards
What does a Constitution define?
A constitution defines the scope of government power, establishes the institutions to exercise its power, encapsulates ideology, values and principles, codifies a society’s aspirational goals and protects an individual’s rights and freedoms and the state’s international obligations.
What are the characteristics of Constitutionalism?
- Constitutionalism identifies and establishes the institutions and structures of governance
- Constitutionalism is concerned with the formal and legal distribution of public power
- Constitutionalism plays an important role in determining the nature and basis of relations that exist between institutions and structures of governance
- Constitutionalism envisages the enactment of binding rules or laws for the regulation of the political community and its institutions and structures of governance
- Constitutionalism simultaneously authorises and imposes limits on the exercise of public power
What is a constitutionalim goverment?
Constitutionalism is a government that not only acts under the authority of a written constitution but is also limited by it. It shows how the power should be exercised (process) and the limits of the power (substance)
What is Modern Constitutionalism?
- Constitutional Supremacy
- Substantive Rule of Law
- The Bill of Rights
- Separation of Powers
- Democracy
- Co-operative Federalism
- Transformative Constitutionalism
What is internationl constitutionalism?
International constitutionalism shows the globalisation of modern constitutionalism. This looks at common values accepted internationally rather than more narrowly on their specific society. Meaning it doesn’t come out of the specific context and history of the society. It values rights and values within international law, as well as other institutional values
What is the theory of limited goverment ?
The theory of limited government can be found in modern constitutionalism which not only limits the scope of government power but prescribes the method of its exercise. This is a central feature of the liberal constitutional tradition, showing that political power should not be exercised arbitrarily.
What is a thin constitutionalism?
Thin constitutionalism is a set of rules or norms that create, structure, and define the limits of government or authority. It is an allocation of power, defines the scope of governments. This is flexible
What is thick constitutionalism
Thick constitutionalism states that a constitution must be enduring, It must constitute a superior law, it must be more difficult to amende than ordinary laws and it must reflect the shared goals of an individual society
How is constituional restrictions achieved?
Constitutional restrictions are primarily achieved through a justiciable (subject to trial in a court of law) bill of rights and the constitutional commitment to other values such as the rule of law.
Where is constituional supremecy in South African constitution?
Constitutional supremacy is a value captured by Section 1 and constitutional supremacy is a binding and enforceable rule set out in Section 2.
What is the quasi-federal division of power?
The Constitution provides for a quasi-federal division of power across three levels or spheres of government. According to Chapter 3 of the Constitution, the three sphered of government are distinct, all three spheres are expected to work together to deliver the vision of the Constitution
What is the seperation of power doctrine basis?
The separation of powers doctrine originated in American Constitutional law. It arose out of the need to restrict the authority of the organs of the state. This shifted the focus to constitutionally created institutions. It shows the interaction and fixing disputes about the aims, values of different organs
What does constituional Principle VI state?
Constitutional Principles VI stated the purpose of the separation of powers was to uphold and safeguard important democratic values and norms such as accountability responsiveness and openness
What are the four primary principles of the seperation of powers?
- Trias politca - divides government power across the three branches
- Separation of functions - provides that distinct areas of responsibility and authority must conferred on each of the three branches of government
- Separation of personnel - must have specific persons assigned to it who are responsible, for the performance or execution of that branch function
- Checks and balances - each branch must be held accountable by the other branches to check the exercise of power by each branch
Where is the rule of law enchried?
The rule of law is enshrined in section 1(c) of the Constitution.
How is the rule of law enforced?
It is enforced by the courts in how they limit and regulate as well as give more precise meaning to how government power is exercised.
What was held in the Fedsure case about the rule of law?
The CC in Fedsure case held that the powers of the Court went on to hold that the powers exercised by local government remained subject to the Constitution. It was held that the powers exercised by local government remained subject to the Constitution and were permitted only to exercise powers that it had lawfully conferred on it. The court held that the principle of legality is an incidence of the rule of law.
What was held in Affordable Medicines Trust about the exercise of public power?
In Affordable Medicines Trust the Court held that the exercise of public power must therefore comply with the Constitution which is the supreme law, and the doctrine of legality, which is part of that law.
What is the principle of legality as an incidence of the rule of law?
The principle of legality as an incidence of the rule of law, has emerged as a pathway of review which holds that the exercise of public or governmental power is lawful only when such power is exercised within the limits of the law and in a rational manner
How is power of judical review a hallmark of modern constitutionalism?
The power of judicial reviews is emphasised as courts play a crucial role in the protection of fundamental constitutional values, including human rights. This is seen as the hallmark of modern constitutionalism, however, the basis of this power is upon a non-represented institution but doesn’t take away from the power of the legislature
What was held in Democratic Aliance held about rational review
The CC in Democratic Alliance v President of South Africa held that the rationality review is really concerned with the evaluation of a relationship between means and end. The aim of the evaluation of the relationship is not to determine whether some means will achieve the purpose better than others but only whether the means employed are rationally related to the purpose for which the power conferred
What was held in the Ablutt about the principle of rationality?
In Albutt the CC said that in the principle of rationality, everything done to reach the decision must also be rational. Both the process by which the decision is made and the decision itself must be rational
What was held in Chief Lesapo about the use of rule of law by public officals?
It was held by the CC in Chief Lesapo v North West Agricultural Bank that the use of the rule of law to demand that public officials not act arbitrarily or put positively that they must exercise their powers in a rational manner related to the purpose for which the power is given
How does the rule of law simultaneously operate?
The rule of law simultaneously operates as an independent and enforceable principle with an important and equally useful derivative in the form of legality
What Fundamental rights and freedoms reflect the fundamental principles of liberalism?
Fundamental rights and freedoms reflect some of the fundamental principles of liberalism. The inclusion of political and civil rights reflects the ideology of individualism. Individual rights are an inherent component of the Western liberal tradition. These are not just defensive checks on the power of the state but can also be positive entitlements, such as socio-economic and cultural rights.
How is the beyond majority rule balanced?
The beyond majority rule is balanced through the recognition that democracy is only a part of the values that need to be balanced within a constitutional framework. This balance needs to be recognised to stop less democratic power structures or to discard other constitutional values
Why do we need to restict the power of majoirty?
The need to restrict the power of the majority arises out of a commitment that certain fundamental values need to be preserved. This stops the disregard of rights and freedom to reach goals. This is also to further stop the democratically elected legislature from reallocation power to its benefit by mere enactment of law.
What protects minorities against majority rule?
Constitutions in a pluralistic society protect minorities against majority rule, usually in the form of a political compromise during the drafting of the Constitution.
How does constitutionalism facilitate democracy?
Constitutionalism facilitates a democratic political system by creating an orderly framework within which people may make political decisions
What are the different concepts of democracy?
- Direct democracy
- Representative democracy
- Participatory democracy
- Constitutional democracy
What is direct democracy?
Direct democracy - a system of governance that entails direct participation on the part of the citizen rather than the elected representatives in the rule and decision-making of their political community. Direct democracy would demand a vote on every piece of legislation by every eligible member of society.
What is representative democracy?
Representative democracy - a system of governance in which the members of a political community participate indirectly through elected representatives in the governance community. Representative democracy presupposes that citizens elect representatives who govern on their behalf for a limited period of time until the next election.
What is participatory democracy?
Participatory democracy - It’s primarily concerned with ensuring that citizens are afforded the opportunity to participate or otherwise be involved in decision-making on matters that affect their lives. It adds a participatory element to representative democracy
What is Constitutional democracy?
Constitutional democracy - A political system in which a particular political community’s decisions are made in terms of a constitution. A supreme and justifiable Constitution, a culture of human rights and a commitment to a broad range of democratic ideals, non-racialism, multiculturalism and multilingualism
What is the beyond majority rule?
The beyond majority rule states that the option preferred by the majority should always win, regardless of the social consequences
What is the principles of the rule of law?
- Clear
- Pre-announced
- General in their application
- Impartially enforced
- Enforced fairly in terms of consistent procedures
Why was the rule of law developed?
Rule of law developed out of an acknowledgement of that the state should not exercise its power arbitrarily and there should be equality before the law.
What is federalism?
Federalism is the vertical division of power between levels of government and a horizontal division of power between the legislator and judiciary.
What is SA federalism?
SA federalism is cooperative it is found in sections 40 & 41 of the Constitution
What is US federalism?
US Federalism is based on separating different branches of government such as the central, national and local governments
What is German Constitutionalism?
German Constitutionalism has Federalism but with a strong central government and separation of powers. They have a section on rights. Courts have the power of substantive judicial review, they also have a specialist Constitutional Court. They have a Substantive rule of law which focuses on openness, accountability; respect for core values, and respect for rights in their rule of law.
What is the UK Constitutionalism?
UK Constitutionalism is based on the common law and legislation but there is no written Constitution and there is a distinction between the head of state and the head of the executive. There is also Parliamentary sovereignty which has procedural but not substantive checks, these checks have been done through the rule of law and externally imposed substantive limits
What is the US Constitutionalism?
US Constitutionalism is written and its entrenched leading to Constitutional supremacy. Power must be exercised in accordance with their constitution. Judicial review through the courts guards their constitution. It has a Bill of Rights, which substantively limits the state’s power. It further has Separation of powers and Federalism.
What is descriptive Constitutionalism?
A descriptive constitution reduces constitutional law to an explanation of a structural and operational design.
What is perspecitive constitution?
A prescriptive constitution offers an ideological understanding based on liberal political philosophy. This includes the demand for separation of powers, the rule of law, democratic self-government, protection of human rights and the existence of an independent judiciary.
What is Procedural review and where was it found?
When courts have procedural review when the incorrect process is followed the law is unconstitutional regardless of intention/content, however when the Correct process is followed the law stands regardless of content. This was found during the apartheid rule.
Where is procedural and substantive veiw found and what is it?
When courts have procedural and substantive reviews when the Incorrect process is followed the law is unconstitutional regardless of intention/content and when there is unjust substance the law is unconstitutional regardless of the process followed. This is what is found in or democracy now
What is Pre-Union Constitutionalism imade up off?
- Indigenous law - brought Chieftaincy with strong executive, dispute resolution, advisory and consultative bodies
- British colonise - brought Parliamentary sovereignty, the repugnancy clause, racial stratification and indirect rule.
- Boer republics - brought Racially exclusive experiments with separation of powers and citizenship rights
What was the law during the colonies times?
In colonies, the development of constitutional forms mirrored those of other British colonies with large European settler populations. In the nineteenth century, there were systems in which locally elected executives governed these territories but were subject to the British-appointed Governor General’s power to the above legislation. This established the principle of supremacy of the legislature on SA soil. The protections of the Constitution were limited to white males only
When was the constitutional crisis?
In 1950 there was a Constitutional Crisis.
What was the Constitutional crisis?
The NP attempted to remove coloured voters from the common voter roll by adopting the Separate Representation of Voters Act. This was Constitutionally challenged in the first Harris case. It was found that the Act was unconstitutional due to the fact the incorrect process being followed. The NP then increased the size of the AD from 5 to 11 and also increased the size of the Senate. Collins’s case was brought to the courts where it was found that the Act followed the correct process and passed 10 to 1, the minority judge stated it remained substantively unconstitutional
How did SA move from British rule?
The white citizens of the Union of South Africa voted in a referendum to end the country’s status as a British dominion and for it to be a republic instead.
What was the rules dominate in the 1961 Republic?
- Bringing around the 1961 Republic Constitution which had a hard separation of powers
- Absolute parliamentary sovereignty together with increased executive power and limited judicial review.
- Judicial review stunted: “Ius dicere non facere” (“speak law not make law”)
- Indirect rule turned into a homeland system and their citizenship was increasingly stratified by race
What brought about the Tricameral legislature?
By the late 1970, the apartheid state had come under increasing pressure both internally and externally as opposition and resistance to apartheid and white minority rule increased and the struggle for freedom by the black majority gathered momentum. This led to the 1983 Constitution which extended the franchise to coloureds and Indians in a tricameral legislature.
What was the aims of the Tricamrcal Constitution?
The Tricamrcal Constituion aimed to give the president more power. Hard separation of powers continued, the Executive became more powerful as the head of state was broken down and Judicial review was still limited to process, however, there was substantive review seen in administrative law.
What was the importance of the Freedom Charter adoption?
From a constitutional law perspective the adoption of the Freedom Charter in 1955 by liberation organisations aligned with the non-racial movement. The Charter has often been seen as one of the founding documents of human rights culture, it spoke of common citizenship (South Africa belongs to all who live in it), democracy, universal voting rights and Social state principles with civil and social rights.
When was the first normal steps towards formal negotiations?
The first normal steps towards formal negotiations took place in February 1990 with the unbanning of the ANC and other organisations by FW de Klerk and the release of political leaders from prison
When was CODESA convened?
The Dawn of Democracy, which happened through Congress for a Democratic South Africa (CODESA), was convened in late 1991. This led to the interim constitution with constitutional principles. CODESA was preceded by intense negotiations, particularly between the NP and the ANC
What was CODESA made up of?
CODESA was made up of multiple national parties that agreed on the shared commitment to political compromise for non-racial, multi-party democracy based on constitutional supremacy; separation of powers, checks and balances; and the Bill of Rights.
What was the points of contention in CODESA?
- Federalism - ANC wants a unitary state; NP and IFP want strong federalism with provincial
- Bill of Rights - ANC wants civil, and socio-economic rights, substantive equality; redistribution and land reform. NP wants only civil rights, formal equality and a strong right to property
- IFP wants a strong role for traditional leaders, ANC is symbolic only
- Who should write the new Constitution - NP/IFP wanted CODESA/MPNP; ANC wants democratically elected Parliament
When did CODESA negotiations stall and how did it get back on track?
Negotiations stalled in June 1992 when ANC walked out in protest at the slow pace of progress. CODESA was eventually replaced by the Multi-Party Negotiating Process (MPNP), which continued to negotiate an interim Constitution amid widespread violence and allegations by opponents of the NP regime that it was using its state power to undermine the negotiations
What compromises did the MPNP start with?
- MPNP drafts interim Constitution containing guiding principles for final Constitution
- Democratic elections are followed by a democratically representative constitutional assembly that will draft the final Constitution
- Final Constitution to be certified by Constitutional Court for compliance with guiding principles
How did the interim Constiution provide for an interim goverment?
The interim Constitution provided for the establishment of an interim government of national unity and the country was governed on a coalition basis. This arrangement lapsed in 1999 and there is currently no constitutional obligation to share power
What was made in the 34 Constitutional principles?
- Universal democracy and constitutional supremacy
- Entrenched constitution
- Separation of powers and checks and balances
- Full judicial review for constitutional compliance
- Accountability, responsiveness, openness
- Bill of Rights (content not prescribed)
- Co-operative federalism (not substantially less than in the interim Constitution)
- Equality before the law and redress measures
- Recognition of status and institution of traditional leadership
How was the new Constitution certified?
The Constitutional Court had to certify that the provisions of the new constitutional text complied with Constitutional Principles and this would be final and binding. An enormous public participation programme and a programme of political discussion were also launched to ensure popular participation.
What was the CC task as judical review of the final Constituions?
The CC saw its task as measuring the text of the final Constitution against the Constitutional Principles. The Court held that the Principles had to be applied purposively and teleologically to give expression to the commitment to create a new order based on a sovereign and democratic constitutional state in which all citizens are able to enjoy and exercise their fundamental rights and freedoms. This created a strong judicial review.
What happened during the 1st certification of the Constitution?
During the 1st Certification case, the CC refused to certify the Constitution as they found that the text did comply with the structural requirements but was not in compliance with the details of the Constitutional Principles. It found that the power given to provinces was substantially less, the fact that some laws weren’t allowed to be judicially reviewed, and the order of the Bill of Rights, had to be amended.
How did the final draft of the Consitution get certified?
The CC finally certified the amended draft of the Final Constitution. The courts granted the certification, however, they werent fully satisfied with the federalism of provinces as they didn’t have sufficient power, but they felt that the principles were met, so they certified the text.
When did the final Constitution become binding?
The final Constitution became binding immediately after the first democratic election on 16 April 1994
What was the outcome of the final Constitution adopted by the assembly?
The Constitution adopted by the Assembly creates a sovereign democratic state founded on the values of human dignity and the advancement of equality, non-racialism and non-sexism, the supremacy of the Constitution, the rule of law, universal suffrage and multi-party democracy in which free and fair elections are held regularly.
