Lecture notes for the whole semester

CONSTITUTIONAL LAW (LAWS2013)
Block 1, Topic 1
Introduction to the Basic Concepts of Constitutional Law


What is Constitutional Law:
 The branch of Public law concerned with the State, society, law and Public power
and the relationship between these
 Concerned with the State and the relationship it has with society through law and
public power
 It is both NORMATIVE and DESCRIPTIVE
 it is NORMATIVE- lays down standards that the different branches/organs of state
must adhere to
 It DESCRIBES the composition, powers, duties and interactions of the principle
organs of state (who they are, what they do and what they can do
 Depending on legal system of Country we will find con law in different sources
 Not all have written constitutions- Con law can be found in written/unwritten
common law rules, legislation (SA constitution) or Con Law judgements
 SA main source of Con Law is THE CONSTITUTION (1996) as well as NB con law
judgements that have enforced and interpreted the constitution


The State:
 The State is the authority that manages the public affairs of the community
 The centre of any constitutional system
 Focus is how it exercises its power and how it is organised
 The Government is the main organ of state
 The government has three branches:
1. The Legislature
2. The Executive and the Administration
3. The Judiciary
 Most of Con Law is focused on explaining the powers functions and interactions
between these branches of government at NATIONAL, PROVINCAL and LOCAL levels
 Other Organs of State: regulated by Constitution or other sources of Con Law Police,
Prosecuting Authority, Advisory Council, State Owned Entities (Eskom, Post office,
SAA, SASSA) Auditor General, HR Commission, Public Prosecutor, Commission of
Enquiry




CONSTITUTIONALISM:

,  A body of theoretical prescriptions which determines what a Constitution/Con Law
should do within a particular State (the organising principles that underlie Con Law in
a State)
 This operates in a particular context in a particular country what Con
Law/Constitution should be doing
 It defines and limits the powers of the State and indicates HOW the power should be
exercised
*it defines the substance and limits of State power and the process which must be
followed to exercise these powers
 Procedural component (how power should be exercised) and Substantive
component (the kinds of power that should be exercised and the limits of this)
 Depending on legal system your conception of constitutionalism will be different,
and the functions of Con Law will be different
 Constitutionalism operates in the background in a system of Con Law- like an
operating system (Windows different from Mac- has different features)
 Some have central features of BOR, Judicial review and Separation of Powers and
others have a different BOR and federalism


MODELS OF CONSTITUTIONALISM:
UK Constitutionalism:
 One of the oldest systems of Con Law and notion of Constitutionalism in the world
 Influenced SA due to British colonialism
 Relevant for SA mostly as a reference point to what SA constitutionalism ISNT
ANYMORE
 No written Constitution- Con law found in Common law, parliamentary rules,
judgements, customs
 Distinction: State has different subdivisions but has executive, legislative and judicial
branch that functions differently in different regions in the UK
 Difference: Head of State is different from head of government
Head of State is the QUEEN v Head of Executive(govt) is PRIME MINISTER
 MOST NB feature of UK constitutionalism that SA TRYING TO MOVE AWAY FROM is
Parliamentary Sovereignty-
Acc to this: parliament is the most powerful branch- what the legislature does is law
and cant be overthrown or challenged in principle
 This is harsh and notion of Constitutionalism tried to soften it by imposing
procedural limits and trying to put substantive limits (procedural but not substantive
checks)
 Rule of Law** responsible for these limits and is an NB feature of Con Law
 Externally imposed substantive limits (eg. International HR law) to soften
parliamentary sovereignty by saying parliament cannot exercise its power in unjust
ways
 UK constitutional law is still based on Parliamentary sovereignty

,The Rule of law:
 A feature of constitutionalism by the writings of DICEY who was uncomfortable with
Parliamentary Sovereignty- he studies state power
 LEGALITY PRINCIPLE: Power must be exercised through Law, not arbitrarily- State
may not exercise its power randomly
Eg. policemen can’t arrest you because they decide your action is wrong- they can
only arrest you based on the law
 EQUITY PRINCIPLE: There should be equality before the law- in principle the law
applies to people equally and must be exercised in the same way
 Laws must be: (for power to be exercised through law)
1. Clear
2. Pre-announced- you must know that it is a law
3. General in their application- equality
4. Impartially enforced- enforced in a similar manner
5. Enforced fairly in terms of consistent procedures
 Courts can test laws for adherence to the Rule of Law- this shows if power is
legitimately exercised


US Constitutionalism:
 Resisted colonial British Constitutionalism and developed the most influential system
of constitutionalism
 Written and entrenched constitution- it cannot easily be amended or removed as it is
the SUPREME force of Con Law in the US
 Principle of Constitutional Supremacy** what the constitution says goes- it is
supreme
 Power must be exercised in a compatible way with the constitutional
 This gives the notion of something that is UNCONSTITUTIONAL- exercise of power
going against the constitution and this is invalid
 Courts are guardians of constitution--They exercise powers of Judicial Review to
ensure constitution is adhered to- Procedural and Substantive
 Bill of Rights- gives people certain HR as part of the constitution and state can’t
exercise power to infringe on these rights (SUBSTANTIVE limit on state power)
 Separation of Powers
 Federalism
Separation of Powers:
 Adapted from French constitutionalism

,  French philosopher Montesque wrote that powers in a state must be divided into
different branches- there is a lesser chance that power will be abused in a
government
 3 Main Branches of Government: Legislature, Executive, Judiciary
 3-way separation of powers and Functions:
1. Legislature- makes law
2. Executive- enforces & implements law
3. Judiciary- interprets, adjudicates and solves disputes
 US constitutionalism institutionalised this separation- Legislative branch is Congress,
Executive Branch is president & Secretaries of state and Judicial Branch is the Courts
 Notion of separation of powers means these powers should be separate so that the
POWERS and FUNCTIONS that the different branches have must be separate (eg.
executive cannot make law)
 HOWEVER in a modern state this doesn’t function well in strict practice, so the
notion is adapted- eg. Windows 7, Windows 8
 US constitutionalism introduced Checks and Balances into notion of separation of
powers
 This means even when the powers between different branches are separated that
the branches check up on and police the other branches to ensure the powers are
being exercised properly in accordance with Rule of Law
** Judiciary adjudicates and solves disputes, but the executive and legislature can
check that this is being done correctly (judges are correctly qualified and conduct
themselves appropriately
 JUDICIAL INDEPENDENCE- courts are the arbiter (authority) of where the lines of
separation of powers are drawn and when different branches are overstepping




Federalism:
 There is a “VERTICAL” division of power between the “levels” of government
 US Federalism: